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EXHIBIT 4.1
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CREDIT AGREEMENT
by and among
CPT OPERATING PARTNERSHIP L.P.,
as Borrower
CORRECTIONAL PROPERTIES TRUST,
as Guarantor
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent and as Lender
NATIONSBANC XXXXXXXXXX SECURITIES LLC,
as Lead Arranger
THE BANK OF NOVA SCOTIA,
as Syndication Agent
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
October 2, 1998
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TABLE OF CONTENTS
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ARTICLE I
Definitions and Terms
1.1. Definitions.................................................................................2
1.2. Rules of Interpretation....................................................................30
ARTICLE II
The Revolving Credit Facility
2.1. Revolving Loans............................................................................32
2.2. Payment of Interest........................................................................34
2.3. Payment of Principal.......................................................................34
2.4. Manner of Payment. ........................................................................35
2.5. Revolving Notes............................................................................35
2.6. Pro Rata Payments..........................................................................35
2.7. Reductions.................................................................................36
2.8. Conversions and Elections of Subsequent Interest Periods...................................36
2.9. Increase and Decrease in Amounts...........................................................37
2.10. Unused Fee.................................................................................37
2.11. Deficiency Advances; Failure to Purchase Participations....................................37
2.12. Use of Proceeds............................................................................38
2.13. Mandatory Prepayments of Revolving Loans...................................................38
2.14. Swing Line.................................................................................39
ARTICLE III
Letters of Credit
3.1. Letters of Credit..........................................................................41
3.2. Reimbursement..............................................................................41
3.3. Letter of Credit Facility Fees.............................................................44
3.4. Administrative Fees........................................................................45
ARTICLE IV
Security
4.1. Security...................................................................................46
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4.2. Further Assurances.........................................................................46
4.3. Information Regarding Collateral...........................................................46
4.4. Pledge Pool................................................................................46
ARTICLE V
Facility Guaranty
5.1. Facility Guaranty..........................................................................49
5.2. Payment....................................................................................49
5.3. Guaranty Absolute..........................................................................49
5.4. Reinstatement..............................................................................50
5.5. Waiver; Subrogation........................................................................50
ARTICLE VI
Change in Circumstances
6.1. Increased Cost and Reduced Return..........................................................52
6.2. Limitation on Types of Loans...............................................................53
6.3. Illegality.................................................................................53
6.4. Treatment of Affected Loans................................................................54
6.5. Compensation...............................................................................54
6.6. Taxes......................................................................................55
ARTICLE VII
Conditions to Making Loans and Issuing Letters of Credit
7.1. Conditions of Initial Advance..............................................................57
7.2. Conditions of Loans and Letter of Credit...................................................60
ARTICLE VIII
Representations and Warranties
8.1. Organization and Authority.................................................................62
8.2. Loan Documents.............................................................................62
8.3. Solvency...................................................................................63
8.4. Subsidiaries and Stockholders..............................................................63
8.5. Ownership Interests........................................................................63
8.6. Financial Condition........................................................................63
8.7. Title to Properties........................................................................64
8.8. Taxes......................................................................................64
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8.9. Other Agreements...........................................................................64
8.10. Litigation.................................................................................65
8.11. Margin Stock...............................................................................65
8.12. Investment Company.........................................................................65
8.13. Patents, Etc...............................................................................65
8.14. No Untrue Statement........................................................................65
8.15. No Consents, Etc...........................................................................66
8.16. Employee Benefit Plans.....................................................................66
8.17. No Default.................................................................................67
8.18. Environmental Laws.........................................................................67
8.19. Employment Matters.........................................................................67
8.20. RICO.......................................................................................68
8.21. REIT Status................................................................................68
8.22. Leases; Appraised Value....................................................................68
8.23. Registration Statement.....................................................................68
8.24. Year 2000 Compliance.......................................................................68
ARTICLE IX
Affirmative Covenants
9.1. Financial Reports, Etc.....................................................................70
9.2. Maintain Properties........................................................................71
9.3. Existence, Qualification, Etc..............................................................72
9.4. Regulations and Taxes......................................................................72
9.5. Insurance..................................................................................72
9.6. True Books.................................................................................72
9.7. Right of Inspection........................................................................72
9.8. Observe all Laws...........................................................................73
9.9. Governmental Licenses......................................................................73
9.10. Covenants Extending to Other Persons.......................................................73
9.11. Officer's Knowledge of Default.............................................................73
9.12. Suits or Other Proceedings.................................................................73
9.13. Notice of Environmental Complaint or Condition.............................................73
9.14. Environmental Compliance...................................................................74
9.15. Indemnification............................................................................74
9.16. Further Assurances.........................................................................74
9.17. Employee Benefit Plans.....................................................................74
9.18. Continued Operations.......................................................................75
9.19. New Subsidiaries...........................................................................75
9.20. REIT Status. .............................................................................76
9.21. Use of Proceeds. .........................................................................76
9.22. Ownership of Borrower. ...................................................................76
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9.23. Year 2000 Compliance.......................................................................77
ARTICLE X
Negative Covenants
10.1. Financial Covenants........................................................................78
10.2. Acquisitions...............................................................................79
10.3. Capital Expenditures.......................................................................79
10.4. Liens......................................................................................79
10.5. Indebtedness...............................................................................80
10.6. Transfer of Assets.........................................................................81
10.7. Investments................................................................................81
10.8. Merger or Consolidation....................................................................82
10.9. Restricted Payments........................................................................82
10.10. Transactions with Affiliates...............................................................83
10.11. Compliance with ERISA......................................................................83
10.12. Fiscal Year................................................................................84
10.13. Dissolution, etc...........................................................................84
10.14. Limitations on Sales and Leasebacks........................................................84
10.15. Change of Control..........................................................................84
10.16. Rate Hedging Obligations...................................................................84
10.17. Negative Pledge Clauses....................................................................84
10.18. Unrestricted Subsidiaries..................................................................84
ARTICLE XI
Events of Default and Acceleration
11.1. Events of Default..........................................................................85
11.2. Agent to Act...............................................................................88
11.3. Cumulative Rights..........................................................................88
11.4. No Waiver..................................................................................88
11.5. Allocation of Proceeds.....................................................................89
ARTICLE XII
The Agent
12.1. Appointment, Powers, and Immunities........................................................90
12.2. Reliance by Agent..........................................................................90
12.3. Defaults...................................................................................91
12.4. Rights as Lender...........................................................................91
12.5. Indemnification............................................................................91
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12.6. Non-Reliance on Agent and Other Lenders....................................................92
12.7. Resignation of Agent.......................................................................92
12.8. Sharing of Payments, etc...................................................................92
12.9. Fees.......................................................................................93
ARTICLE XIII
Miscellaneous
13.1. Assignments and Participations.............................................................94
13.2. Notices....................................................................................95
13.3. Right of Set-off; Adjustments..............................................................97
13.4. Survival...................................................................................97
13.5. Expenses...................................................................................98
13.6. Amendments and Waivers.....................................................................98
13.7. Counterparts...............................................................................99
13.8. Termination................................................................................99
13.9. Indemnification; Limitation of Liability...................................................99
13.10. Severability..............................................................................100
13.11. Entire Agreement..........................................................................100
13.12. Agreement Controls........................................................................100
13.13. Usury Savings Clause......................................................................100
13.14. Payments..................................................................................101
13.15. Confidentiality...........................................................................101
13.16. GOVERNING LAW; WAIVER OF JURY TRIAL.......................................................101
EXHIBIT A Applicable Commitment Percentages.................................................A-1
EXHIBIT B Form of Assignment and Acceptance.................................................B-1
EXHIBIT C Notice of Appointment (or Revocation) of Authorized Representative................C-1
EXHIBIT D-1 Form of Borrowing Notice........................................................D-1-1
EXHIBIT D-2 Form of Borrowing Notice--Swing Line Loans......................................D-2-1
EXHIBIT E Form of Interest Rate Selection Notice............................................E-1
EXHIBIT F-1 Form of Revolving Note..........................................................F-1-1
EXHIBIT F-2 Form of Swing Line Note.........................................................F-2-1
EXHIBIT G-1 Form of Opinion of Borrower's Counsel...........................................G-1-1
EXHIBIT G-2 Form of Opinion of Local Counsel................................................G-2-1
EXHIBIT H Compliance Certificate............................................................H-1
EXHIBIT I Form of Facility Guaranty.........................................................I-1
EXHIBIT J Form of Borrowing Base Certificate................................................J-1
EXHIBIT K-1 Form of Mortgage (Wackenhut)................................................... K-1-1
EXHIBIT K-2 Form of Mortgage (non-Wackenhut)................................................K-2-1
EXHIBIT L Eligible Property Compliance Certificate..........................................L-1
EXHIBIT M Form of Estoppel Certificate......................................................M-1
EXHIBIT N Form of Consent to Assignment.....................................................N-1
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EXHIBIT O Form of Subordination, Non-Disturbance and Attornment Agreement...................O-1
EXHIBIT P Form of Amendment Agreement.......................................................P-1
Schedule 4.3 Information Regarding Collateral; Pledged Properties; Pledge Pool.................S-1
Schedule 4.4 Appraisal Requirements............................................................S-2
Schedule 8.4 Subsidiaries and Investments in Other Persons.....................................S-4
Schedule 8.6 Indebtedness......................................................................S-5
Schedule 8.7 Liens.............................................................................S-6
Schedule 8.8 Tax Matters.......................................................................S-7
Schedule 8.10 Litigation........................................................................S-8
Schedule 9.5 Insurance.........................................................................S-9
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of October 2, 1998 (the "Agreement"),
is made by and among:
CPT OPERATING PARTNERSHIP L.P., a Delaware limited partnership having
its principal place of business in Palm Beach Gardens, Florida (the "Borrower");
and
CORRECTIONAL PROPERTIES TRUST, a Maryland real estate investment trust
having its principal place of business in Palm Beach Gardens, Florida ("CPV");
and
NATIONSBANK, NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States, in its capacity as a
Lender ("NationsBank"), and each other financial institution executing and
delivering a signature page hereto and each other financial institution which
may hereafter execute and deliver an instrument of assignment with respect to
this Agreement pursuant to SECTION 13.1 (hereinafter such financial institutions
may be referred to individually as a "Lender" or collectively as the "Lenders");
and
NATIONSBANK, NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States, in its capacity as
agent for the Lenders (in such capacity, and together with any successor agent
appointed in accordance with the terms of SECTION 12.7, the "Agent");
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders make available to
the Borrower a revolving credit facility of up to $150,000,000, the proceeds of
which are to be used for working capital and general partnership purposes,
including the acquisition of correctional and detention facilities, and which
shall include a letter of credit facility of up to $10,000,000 for the issuance
of standby letters of credit and a swing line facility of up to $5,000,000;
WHEREAS, CPV has agreed to guaranty the obligations of the Borrower
arising hereunder in the manner described herein and to secure its Facility
Guaranty by a pledge of its Partnership Units, as defined herein, in the
Borrower; and
WHEREAS, the Lenders party hereto have agreed to make available to the
Borrower a revolving credit facility of up to $100,000,000, which includes a
letter of credit facility of up to $10,000,000 and a swing line facility of up
to $5,000,000 upon the terms and conditions set forth herein and hereby agree
that the revolving credit facility may be increased to $150,000,000 at any time
pursuant to SECTION 2.9, so long as no Default or Event of Default exists,
without further action or approval of the Lenders;
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NOW, THEREFORE, the Borrower, CPV, the Lenders and the Agent hereby
agree as follows:
ARTICLE I
DEFINITIONS AND TERMS
1.1. DEFINITIONS. For the purposes of this Agreement, in addition to
the definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Acquisition" means the acquisition of (i) a controlling
equity interest in another Person (including the purchase of an option,
warrant or convertible or similar type security to acquire such a
controlling interest at the time it becomes exercisable by the holder
thereof), whether by purchase of such equity interest or upon exercise
of an option or warrant for, or conversion of securities into, such
equity interest, or (ii) assets of another Person or a line or lines of
business conducted by such Person so long as such Person is in the
business of owning or leasing or such assets are Qualifying Property.
"Additions or Enhancements" means with respect to any
Qualifying Property any improvements, expansions, additions,
alterations, betterments or appurtenances thereto.
"Adjusted CD Rate" means a rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) determined by the Agent
according to the following formula:
Adjusted CD Rate = CD Rate + Assessment Rate + Applicable
Margin
"Advance" means a borrowing under the Revolving Credit
Facility consisting of a Base Rate Loan or a Eurodollar Rate Loan.
"Affiliate" means any Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is
under common control with the Borrower or CPV; or (ii) which
beneficially owns or holds 5% or more of the Partnership Units of the
Borrower or 5% or more of any class of the outstanding voting stock of
CPV; or 5% or more of any class of the outstanding voting stock (or in
the case of a Person which is not a corporation, 5% or more of the
equity interest) of which is beneficially owned or held by the Borrower
and/or CPV. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through ownership of
partnership interests, voting stock, by contract or otherwise.
"Annualized EBITDA" means, with respect to any Qualifying
Property, the SUM of, without duplication, (i) net income, (ii)
interest expense, (iii) taxes on income, (iv) amortization and (v)
depreciation, all determined in accordance with GAAP applied on a
Consistent Basis, which amount shall be determined (a) if such
Qualifying Property has been owned by CPV, the Borrower or any
Subsidiary for at least four calendar quarters, on a four calendar
quarter basis, (b) if such Qualifying Property has been owned by CPV,
the Borrower or any Subsidiary for one quarter, such quarter's results
shall be multiplied
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by four; if owned for two quarters, such quarters' results shall be
multiplied by two; and if owned for three quarters, such quarters'
results shall be multiplied by 4/3 and (c) if such Qualifying Property
has been owned by the Borrower or any Subsidiary for less than one
quarter, based upon a pro forma annualized estimate of EBITDA prepared
by the Borrower, which, together with the assumptions upon which such
estimate is made is set forth on Schedule II to EXHIBIT H.
"Applicable Commitment Percentage" means, with respect to each
Lender at any time, a fraction, the numerator of which shall be such
Lender's Revolving Credit Commitment and the denominator of which shall
be the Total Revolving Credit Commitment, which Applicable Commitment
Percentage for each Lender as of the Closing Date is as set forth in
EXHIBIT A; PROVIDED that the Applicable Commitment Percentage of each
Lender shall be increased or decreased to reflect any assignments to or
by such Lender effected in accordance with SECTION 13.1.
"Applicable Lending Office" means, for each Lender and for
each Type of Loan, the "Lending Office" of such Lender (or of an
affiliate of such Lender) designated for such Type of Loan on the
signature pages hereof or such other office of such Lender (or an
affiliate of such Lender) as such Lender may from time to time specify
to the Agent and the Borrower by written notice in accordance with the
terms hereof as the office by which its Loans of such Type are to be
made and/or maintained.
"Applicable Margin" means that percent per annum set forth
below, which shall be based upon the ratio of Consolidated Total
Indebtedness to Consolidated Total Value for the most recently ended
quarter period as specified below:
Applicable
Margin
-------------------------------
Pricing Consolidated Total Indebtedness To Base Eurodollar
Level Consolidated Total Value Rate Rate
------- ---------------------------------- ---- -----------
I. Less than or equal to .25 to 1.00 .000% 1.250%
II. Less than or equal to .35 to 1.00 but .000% 1.500%
greater than .25 to 1.00
III. Less than or equal to .40 to 1.00 but .250% 1.750%
greater than .35 to 1.00
IV. Less than or equal to .50 to 1.00 but .500% 2.000%
greater than .40 to 1.00 *
* If greater than .50 to 1.00, the Applicable Margin shall be Pricing Level IV
plus the Default Rate.
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; provided, however, that if CPV shall receive a rating from Standard &
Poor's and/or Xxxxx'x with respect to its senior, unsecured debt
obligations (a "Rating"), the Applicable Margin shall be that percent
per annum set forth below opposite the lower of such ratings:
Applicable
Margin
------------------------------
Pricing Base Eurodollar
Level Rating Rate Rate
----- ------ ---- ----------
I. Greater than or equal to .000% 1.125%
BBB+/Baa1
II. Greater than or equal to BBB/Baa2 .000% 1.250%
but less than BBB+/Baa1
III. Greater than or equal to BBB-/Baa3 .125% 1.375%
but less than BBB/Baa2
IV. Less than BBB-/Baa3 .500% 2.000%
The Applicable Margin shall be established at the end of each fiscal
quarter of CPV (each, a "Determination Date"). Any change in the
Applicable Margin following each Determination Date shall be determined
either (i) based upon the computations set forth in the Compliance
Certificate furnished to the Agent pursuant to SECTION 9.1(A)(II) and
SECTION 9.1(B)(II), subject to review and approval of such computations
by the Agent, and shall be effective commencing on the first Business
Day following the date such certificate is received until the first
Business Day following the date on which a new certificate is delivered
or is required to be delivered, whichever shall first occur; PROVIDED
HOWEVER, if the Borrower shall fail to deliver any such Compliance
Certificate within the time period required by SECTION 9.1, then the
Applicable Margin shall be that shown for Pricing Level IV until the
appropriate Compliance Certificate is so delivered or (ii) the first
Business Day following a change in its Rating which would result in the
change in the Applicable Margin. From the Closing Date to the first
Determination Date, the Applicable Margin shall be that shown for
Pricing Level I.
"Applicable Unused Fee" means (i) .250% per annum for any day
that the sum of the Revolving Credit Outstandings (without giving
effect to Swing Line Outstandings) and Letter of Credit Outstandings as
of the close of business on such day equals or exceeds 50% of the Total
Revolving Credit Commitment, and (ii) .375% per annum for any day that
the sum of the Revolving Credit Outstandings (without giving effect to
Swing Line
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Outstandings) and Letter of Credit Outstandings as of the close of
business on such day is less than 50% of the Total Revolving Credit
Commitment.
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit, or
similar documentation, executed by the Borrower from time to time and
delivered to the Issuing Bank to support the issuance of Letters of
Credit.
"Appraisal Requirements" means, collectively, those standards,
policies, requirements and provisions regarding valuation of Pledged
Properties set forth in SCHEDULE 4.4, as it may be amended from time to
time.
"Appraised Value" means, with respect to any Pledged Property,
the lesser of its (i) Leased Fee Value and (ii) Fee Simple Value, as
determined by a Qualified Appraiser.
"Assessment Rate" means, for any day, the annual assessment
rate (rounded upwards, if necessary, to the nearest 1/100 of 1%) which
is payable by NationsBank to the Federal Deposit Insurance Corporation
(or any successor) for deposit insurance for Dollar time deposits with
NationsBank at the Principal Office as determined by NationsBank. The
Adjusted CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Assessment Rate.
"Assignment and Acceptance" shall mean an Assignment and
Acceptance in the form of EXHIBIT B (with blanks appropriately filled
in) delivered to the Agent in connection with an assignment of a
Lender's interest under this Agreement pursuant to SECTION 13.1.
"Assignment of Leases" means, collectively, the Assignments of
Leases from CPV or any Subsidiary to the Agent for the benefit of the
Lenders pursuant to which CPV or any Subsidiary has assigned its rights
in the Security Leases to the Agent.
"Authorized Representative" means any Person expressly
designated by the Borrower (or the appropriate committee thereof) as an
Authorized Representative of the Borrower, as set forth from time to
time in a certificate in the form of EXHIBIT C.
"Base Rate" means, for any day, the rate per annum equal to
the sum of (a) the higher of (i) the Federal Funds Rate for such day
plus one-half of one percent (0.5%) and (ii) the Prime Rate for such
day plus (b) the Applicable Margin. Any change in the Base Rate due to
a change in the Prime Rate or the Federal Funds Rate shall be effective
on the effective date of such change in the Prime Rate or Federal Funds
Rate.
"Base Rate Loan" means a Loan for which the rate of interest
is determined by reference to the Base Rate.
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"Base Rate Refunding Loan" means a Base Rate Loan or Swing
Line Loan made either to (i) satisfy Reimbursement Obligations arising
from a drawing under a Letter of Credit or (ii) pay NationsBank in
respect of Swing Line Outstandings.
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body).
"Borrower's Account" means a demand deposit account number
375-104-2327 or any successor account with the Agent, which may be
maintained at one or more offices of the Agent or an agent of the
Agent.
"Borrowing Base" means, as of the date of determination
thereof, the lesser of (i) 45% of the Historical Cost of all Pledged
Properties in the Pledge Pool or (ii) 45% of the Appraised Value of all
Pledged Properties in the Pledge Pool.
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Revolving Credit
Facility or a Swing Line Loan, in the forms of EXHIBITS D-1 AND D-2,
respectively.
"Business Day" means, (i) with respect to any Base Rate Loan,
any day which is not a Saturday, Sunday or a day on which banks in the
States of New York, Florida and North Carolina are authorized or
obligated by law, executive order or governmental decree to be closed
and, (ii) with respect to any Eurodollar Rate Loan, any day which is a
Business Day, as described above, and on which the relevant
international financial markets are open for the transaction of
business contemplated by this Agreement in London, England, New York,
New York, Miami, Florida and Charlotte, North Carolina.
"CD Rate" means, for any Swing Line Loan which bears interest
at the Adjusted CD Rate, the most recent weekly average dealer offering
rate for negotiable certificates of deposit with a three-month maturity
in the secondary market as published in the most recent Federal Reserve
System publication entitles "Select Interest Rates" published weekly on
Form H.15 as of the date hereof, or any successor publication thereof,
or if the foregoing publication or any successor or substitute thereof
shall not be published by the Federal Reserve System for any week, then
the weekly offering rate determined by NationsBank on the basis of
quotations for such certificates received by it from three certificate
of deposit dealers of recognized standing. Each change in the CD Rate
shall be effective on the date thereof, without notice to the Borrower.
"Capital Expenditures" means, with respect to CPV and its
Subsidiaries, for any period the SUM of (without duplication) (i) all
expenditures (whether paid in cash or accrued as liabilities) by CPV or
any Subsidiary during such period for items that would be classified as
"property, plant or equipment" or comparable items on the consolidated
balance sheet of CPV and its Subsidiaries, including without limitation
all transactional costs incurred in connection with such expenditures
provided the same have been
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capitalized, excluding, however, the amount of any Capital Expenditures
paid for with proceeds of casualty insurance as evidenced in writing
and submitted to the Agent together with any compliance certificate
delivered pursuant to SECTION 9.1(A) or (B), and (ii) with respect to
any Capital Lease entered into by CPV or any Subsidiary during such
period, the present value of the lease payments due under such Capital
Lease over the term of such Capital Lease applying a discount rate
equal to the interest rate provided in such lease (or in the absence of
a stated interest rate, that rate used in the preparation of the
financial statements described in SECTION 9.1(A)), all the foregoing in
accordance with GAAP applied on a Consistent Basis.
"Capital Leases" means all leases which have been or should be
capitalized in accordance with GAAP as in effect from time to time
including Statement No. 13 of the Financial Accounting Standards Board
and any successor thereof.
"Cash Available for Distribution" means Funds from Operations,
adjusted (a) without giving effect to any changes in working capital
resulting from changes in current assets and current liabilities (which
changes are not anticipated to be material) or the amount of cash
estimated to be used for (i) development, acquisition or other
activities and (ii) financing activities, (b) for certain known events
and/or contractual commitments that may have occurred during the period
but would not have been in effect for the full Fiscal Year and (c) for
certain non-GAAP adjustments consisting of an estimate of amounts
anticipated for recurring tenant improvements and capital expenditures.
"Change of Control" means, at any time:
(i) any "person" or "group" (each as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act) either (A) becomes
the "beneficial owner" (as defined in Rule 13d-3 of the
Exchange Act ), directly or indirectly, of Voting Stock of CPV
(or securities convertible into or exchangeable for such
Voting Stock) representing 10% or more of the combined voting
power of all Voting Stock of CPV (on a fully diluted basis) or
(B) otherwise has the ability, directly or indirectly, to
elect a majority of the board of trustees of CPV;
(ii) during any period of up to 24 consecutive
months, commencing on the Closing Date, individuals who at the
beginning of such 24-month period were trustees of CPV shall
cease for any reason (other than the death, disability or
retirement of an officer of CPV that is serving as a trustee
at such time so long as another officer of CPV replaces such
Person as a trustee) to constitute a majority of the board of
trustees of CPV;
(iii) any Person or two or more Persons acting in
concert shall have acquired by contract or otherwise, or shall
have entered into a contract or arrangement that, upon
consummation thereof, will result in its or their acquisition
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of the power to exercise, directly or indirectly, a
controlling influence on the management or policies of the
Borrower;
(iv) any Person other than CPV shall become the
general partner of the Borrower;
(v) CPV shall at any time be the beneficial owner,
directly or indirectly, of less than 66 2/3% of the
Partnership Units of the Borrower; or
(vi) CPT Limited Partner Inc. shall own less than 1%
of the Partnership Units of the Borrower.
"Closing Date" means the date as of which this Agreement is
executed by the Borrower, CPV, the Lenders and the Agent and on which
the conditions set forth in SECTION 7.1 have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder.
"Collateral" means, collectively, all property of CPV, the
Borrower, any Subsidiary or any other Person in which the Agent or any
Lender is granted a Lien as security for all or any portion of the
Obligations under any Security Instrument.
"Compliance Certificate" means a certificate of an Authorized
Representative demonstrating compliance with the covenants contained in
SECTIONS 10.1, 10.3, 10.5(F)-(H), 10.7(E), 10.9 AND 10.18, as of the
date of such certificate, substantially in the form of EXHIBIT H.
"Consistent Basis" in reference to the application of GAAP
means the accounting principles observed in the period referred to are
comparable in all material respects to those applied in the preparation
of the audited financial statements of CPV referred to in SECTION
8.6(A).
"Consolidated Adjusted EBITDA" means, with respect to CPV and
its Subsidiaries for any Four-Quarter Period ending on the date of
computation thereof, the SUM of, without duplication, (i) Consolidated
Net Income, (ii) Consolidated Interest Expense, (iii) taxes on income,
(iv) amortization, and (v) depreciation, all determined on a
consolidated basis in accordance with GAAP applied on a Consistent
Basis LESS the amount of actual cash expenditures by CPV and its
Subsidiaries for maintenance-related Capital Expenditures during such
Four-Quarter Period; PROVIDED, however, with respect to a Qualifying
Property that is not owned by CPV, the Borrower or any Subsidiary for
such entire Four-Quarter Period, Consolidated Adjusted EBITDA shall be
based on Annualized EBITDA for such Qualifying Property; PROVIDED
further, however, that with respect to any Acquisition, Consolidated
Adjusted EBITDA includes the results of operations of such
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Person or assets so acquired, which amounts shall be determined on a
historical pro forma basis as if such Acquisition had been consummated
as a "pooling of interests".
"Consolidated Interest Coverage Ratio" means, as of the date
of computation thereof, the ratio of (i) Consolidated Adjusted EBITDA
(determined as at such date) to (ii) Consolidated Interest Expense (for
the Four-Quarter Period ending on (or most recently ended prior to)
such date) plus dividends paid in respect of any preferred stock of the
Borrower during such Four-Quarter Period.
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross interest expense of CPV and
its Subsidiaries, including without limitation (i) the current
amortized portion of debt discounts to the extent included in gross
interest expense, (ii) the current amortized portion of all fees
(including fees payable in respect of any Swap Agreement) payable in
connection with the incurrence of Indebtedness to the extent included
in gross interest expense, and (iii) the portion of any payments made
in connection with Capital Leases allocable to interest expense, all
determined on a consolidated basis in accordance with GAAP applied on a
Consistent Basis.
"Consolidated Net Income" means, for any period of computation
thereof, the gross revenues from operations of CPV and its Subsidiaries
(including payments received by CPV and its Subsidiaries of (i)
interest income, and (ii) dividends and distributions made in the
ordinary course of their businesses by Persons in which investment is
permitted pursuant to this Agreement and not related to an
extraordinary event, less all operating and non-operating expenses of
CPV and its Subsidiaries including taxes on income all determined on a
consolidated basis in accordance with GAAP applied on a Consistent
Basis; but excluding (for all purposes other than compliance with
SECTION 10.1(A) hereof as income: (i) net gains on the sale, conversion
or other disposition of capital assets, (ii) net gains on the
acquisition, retirement, sale or other disposition of capital stock and
other securities of CPV or any Subsidiary, (iii) net gains on the
collection of proceeds of life insurance policies, (iv) any write-up of
any asset, and (v) any other net gain or credit of an extraordinary
nature as determined in accordance with GAAP applied on a Consistent
Basis.
"Consolidated Net Worth" means, as of any date on which the
amount thereof is to be determined, Consolidated Shareholders' Equity
minus (without duplication of deductions in respect of items already
deducted in arriving at surplus and retained earnings) all reserves
(other than contingency reserves not allocated to any particular
purpose), including without limitation reserves for depreciation,
depletion, amortization, obsolescence, deferred income taxes, insurance
and inventory valuation, all as determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis.
"Consolidated Secured Indebtedness" means, with respect to CPV
and its Subsidiaries, as of any date on which the amount thereof is to
be determined, all Indebtedness of CPV and its Subsidiaries at such
date that is secured by a Lien on any
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property of CPV or any Subsidiary whether or not such Indebtedness is
assumed, all determined on a consolidated basis in accordance with GAAP
applied on a Consistent Basis.
"Consolidated Shareholders' Equity" means, as of any date on
which the amount thereof is to be determined, the sum of the following
in respect of CPV and its Subsidiaries (determined on a consolidated
basis and excluding any upward adjustment after the Closing Date due to
revaluation of assets): (i) the amount of issued and outstanding share
capital, plus (ii) the amount of additional paid-in capital and
retained earnings (or, in the case of a deficit, minus the amount of
such deficit), plus (iii) the amount of any foreign currency
translation adjustment (if positive, or, if negative, minus the amount
of such translation adjustment), minus (iv) the amount of any treasury
stock, all as determined in accordance with GAAP applied on a
Consistent Basis.
"Consolidated Total Capitalization" means, as of any date on
which the amount thereof is to be determined, the sum of Consolidated
Total Indebtedness plus Consolidated Shareholders' Equity.
"Consolidated Total Indebtedness" means, with respect to CPV
and its Subsidiaries, as of any date on which the amount thereof is to
be determined, the SUM of (i) Indebtedness of CPV and its Subsidiaries
at such date (other than Indebtedness permitted under SECTION 10.5(E)
and (ii) the face amount of all outstanding Letters of Credit issued
for the account of CPV or any Subsidiary and all obligations arising
under such Letters of Credit, all determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis.
"Consolidated Total Liabilities" means all liabilities of CPV
and its Subsidiaries (including all Indebtedness), all determined on a
consolidated basis in accordance with GAAP applied on a Consistent
Basis.
"Consolidated Total Value" means, as of any date on which the
amount thereof is to be determined, the lesser of (a) the Historical
Cost of the Pledged Properties in the Pledge Pool or (b) the Appraised
Value of the Pledged Properties in the Pledge Pool.
"Contingent Obligation" of any Person means all contingent
liabilities required (or which, upon the creation or incurring thereof,
would be required) to be included in the financial statements
(including footnotes) of such Person in accordance with GAAP applied on
a Consistent Basis, including Statement No. 5 of the Financial
Accounting Standards Board, and any obligation of such Person
guaranteeing or in effect guaranteeing any Indebtedness, dividend or
other obligation of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including obligations of such
Person however incurred:
(1) to purchase such Indebtedness or other obligation
or any property or assets constituting security therefor;
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(2) to advance or supply funds in any manner (i) for
the purchase or payment of such Indebtedness or other
obligation, or (ii) to maintain a minimum working capital, net
worth or other balance sheet condition or any income statement
condition of the primary obligor;
(3) to grant or convey any lien, security interest,
pledge, charge or other encumbrance on any property or assets
of such Person to secure payment of such Indebtedness or other
obligation;
(4) to lease property or to purchase securities or
other property or services primarily for the purpose of
assuring the owner or holder of such Indebtedness or
obligation of the ability of the primary obligor to make
payment of such Indebtedness or other obligation; or
(5) otherwise to assure the owner of the Indebtedness
or such obligation of the primary obligor against loss in
respect thereof.
"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to SECTION 2.8 hereof of a Eurodollar Rate Loan
of one Type as a Eurodollar Rate Loan of the same Type from one
Interest Period to the next Interest Period.
"Contract Party" means a Person who is a Governmental
Authority and who contracts with Wackenhut Corrections Corporation or
another Lease Party or the Borrower with respect to the management and
operation of a Pledged Property.
"Convert", "Conversion", and "Converted" shall refer to a
conversion pursuant to SECTION 2.8 or ARTICLE III of one Type of Loan
into another Type of Loan.
"Credit Party" means, collectively, the Borrower and each
Guarantor.
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder.
"Default Rate" means (i) with respect to each Eurodollar Rate
Loan, until the end of the Interest Period applicable thereto, a rate
of two percent (2%) above the Eurodollar Rate applicable to such Loan,
and thereafter at a rate of interest per annum which shall be two
percent (2%) above the Base Rate, (ii) with respect to Base Rate Loans
and Reimbursement Obligations, at a rate of interest per annum which
shall be two percent (2%) above the Base Rate and (iii) in any case,
the maximum rate permitted by applicable law, if lower.
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"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United States
of America.
"Eligible Assignee" means (i) a Lender, (ii) an affiliate of a
Lender, and (iii) any other Person approved by the Agent and, unless an
Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with SECTION 13.1, the Borrower,
such approval not to be unreasonably withheld or delayed by the
Borrower or the Agent, it being agreed that the Borrower may withhold
its approval if as a result of such assignment the Borrower would incur
increased costs under SECTION 6.5; PROVIDED, HOWEVER, that neither the
Borrower nor an affiliate of the Borrower shall qualify as an Eligible
Assignee.
"Eligible Property" means, as of any date of determination,
any Qualifying Property, including the real property upon which it is
situated, in which the Borrower or any Guarantor has a fee simple
interest or a leasehold interest for a term exceeding that of the
related Security Lease, and which, as evidenced in an Eligible Property
Compliance Certificate, is:
(a) located in the United States or one of its
territories; and
(b) unencumbered by any Liens, encumbrances,
easements, restrictions or other matters of
record except for Permitted Encumbrances and
the related Security Lease; and
(c) free of structural defects and has passed a
structural inspection by an architect or
engineer engaged by the Agent, the results
of which have been detailed in writing and
are satisfactory to the Agent in its
reasonable discretion; and
(d) in compliance with all Environmental Laws as
evidenced by Phase I environmental
assessment (and, if required or recommended
by the results of the Phase I environmental
assessment, a Phase II environmental
assessment) in form and substance
satisfactory to the Agent, addressed to the
Agent, and (i) dated not earlier than six
months prior to the date of such Eligible
Property Compliance Certificate or (ii)
supplemented by a "bring-down" letter dated
not earlier than six months prior to the
date of such Eligible Property Compliance
Certificate if such environmental assessment
is dated an earlier date; and
(e) subject to a Security Lease containing terms
and provisions acceptable to the Agent; and
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(f) in full compliance with the terms and
conditions contained in the related Security
Lease, which Security Lease is with a Lease
Party; and
(g) in full compliance with the material terms
and conditions contained in the management
or operating agreement, if any, relating to
such facility, between such Lease Party and
the related Contract Party; or
(h) otherwise acceptable to the Required Lenders
in their sole and absolute discretion.
"Eligible Property Compliance Certificate" means a certificate
of the Borrower, dated the date of submission to the Agent of the items
required thereby, evidencing the compliance by a particular Eligible
Property with items (a) through (g) of the definition of "Eligible
Property", or, with respect to an Eligible Property qualifying as such
under item (h) of the definition of "Eligible Property," evidencing
compliance with those items required by the Required Lenders, in the
form of EXHIBIT L.
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Agent:
(a) Government Securities;
(b) obligations of any corporation organized under
the laws of any state of the United States of America or under
the laws of any other nation, payable in the United States of
America, expressed to mature not later than 92 days following
the date of issuance thereof and rated in an investment grade
rating category by S&P and Xxxxx'x;
(c) interest bearing demand or time deposits issued
by any Lender or certificates of deposit maturing within one
year from the date of issuance thereof and issued by a bank or
trust company organized under the laws of the United States or
of any state thereof having capital surplus and undivided
profits aggregating at least $400,000,000 and being rated "A-"
or better by S&P or "A-3" or better by Xxxxx'x;
(d) Repurchase Agreements;
(e) Municipal Obligations;
(f) Pre-Refunded Municipal Obligations;
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(g) shares of mutual funds which invest in
obligations described in paragraphs (a) through (f) above, the
shares of which mutual funds are at all times rated "AAA" by
S&P;
(h) tax-exempt or taxable adjustable rate preferred
stock issued by a Person having a rating of its long term
unsecured debt of "A-" or better by S&P or "A-3" or better by
Xxxxx'x; and
(i) asset-backed remarketed certificates of
participation representing a fractional undivided interest in
the assets of a trust, which certificates are rated at least
"A-1" by S&P and "P-1" by Xxxxx'x.
"Employee Benefit Plan" means any employee benefit plan within
the meaning of Section 3(3) of ERISA which (i) is maintained for
employees of the Borrower, CPV or any of its or their ERISA Affiliates
or is assumed by the Borrower, CPV or any of its or their ERISA
Affiliates in connection with any Acquisition or (ii) has at any time
been maintained for the Borrower, CPV or any current or former ERISA
Affiliate.
"Environmental Laws" means any federal, state or local
statute, law, ordinance, code, rule, regulation, order, decree, permit
or license regulating, relating to, or imposing liability or standards
of conduct concerning, any environmental matters or conditions,
environmental protection or conservation, including without limitation,
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended; the Superfund Amendments and Reauthorization
Act of 1986, as amended; the Resource Conservation and Recovery Act, as
amended; the Toxic Substances Control Act, as amended; the Clean Air
Act, as amended; the Clean Water Act, as amended; together with all
regulations promulgated thereunder, and any other "Superfund" or
"Superlien" law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute and all
rules and regulations promulgated thereunder.
"ERISA Affiliate", as applied to the Borrower and CPV, means
any Person or trade or business which is a member of a group which is
under common control with the Borrower or CPV, who together with the
Borrower or CPV, is treated as a single employer within the meaning of
Section 414(b) and (c) of the Code.
"Eurodollar Rate Loan" means a Loan for which the rate of
interest is determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means the interest rate per annum calculated
according to the following formula:
Eurodollar = Interbank Offered Rate + Applicable
Rate ------------------------ Margin
1- Reserve Requirement
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"Event of Default" means any of the occurrences set forth as
such in SECTION 11.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the regulations promulgated thereunder.
"Facility Guaranty" means the guaranty by CPV of the
Borrower's Obligations set forth in ARTICLE V and each Guaranty
Agreement in the form of EXHIBIT I between one or more Guarantors and
the Agent for the benefit of the Agent and the Lenders, delivered as of
the Closing Date and otherwise pursuant to SECTION 9.19, as the same
may be amended, modified or supplemented.
"Facility Termination Date" means such date as all of the
following shall have occurred: (a) the Borrower shall have permanently
terminated the Revolving Credit Facility by payment in full of all
Revolving Credit Outstandings and Letter of Credit Outstandings,
together with all accrued and unpaid interest thereon, except for such
issued and undrawn Letters of Credit as have been fully cash
collateralized in a manner consistent with the terms of SECTION
12.1(L)(B), (b) all Swap Agreements shall have been terminated, expired
or cash collateralized, (c) all Revolving Credit Commitments and Letter
of Credit Commitments shall have terminated or expired and (d) the
Borrower shall have fully, finally and irrevocably paid and satisfied
in full all Obligations (other than Obligations consisting of
continuing indemnities and other contingent Obligations of the Borrower
or any Guarantor that may be owing to the Lenders pursuant to the Loan
Documents and expressly survive termination of this Agreement);
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; PROVIDED
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and
(b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate
charged to the Agent (in its individual capacity) on such day on such
transactions as determined by the Agent.
"Fee Simple Value" means the appraised value of a property for
which the owner has absolute ownership, unencumbered by any other
interest or estate subject only to the limitations imposed by the
governmental powers of taxation, eminent domain, police power and
escheat.
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"Fiscal Year" means the twelve month fiscal period of CPV and
its Subsidiaries commencing on January 1 of each calendar year and
ending on December 31 of each calendar year.
"Four-Quarter Period" means a period of four full consecutive
fiscal quarters of CPV and its Subsidiaries, taken together as one
accounting period.
"Funds from Operations" means Consolidated Net Income or loss,
excluding significant non-recurring items, gains (or losses) from debt
restructuring and sales of property, plus depreciation and amortization
on real estate assets, and after adjustments for unconsolidated
partnerships and joint ventures.
"GAAP" or "Generally Accepted Accounting Principles" means
generally accepted accounting principles, being those principles of
accounting set forth in pronouncements of the Financial Accounting
Standards Board, the American Institute of Certified Public Accountants
or which have other substantial authoritative support and are
applicable in the circumstances as of the date of a report.
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of America.
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a
foreign entity or government.
"Guaranties" means all obligations of CPV or any Subsidiary
directly or indirectly guaranteeing, or in effect guaranteeing, any
Indebtedness or other obligation of any other Person.
"Guarantors" means, at any date, CPV, CPT Limited Partner,
Inc. and each Subsidiary now or hereafter existing, which has executed
a Facility Guaranty as required by SECTION 9.19.
"Hazardous Material" means and includes any pollutant,
contaminant, or hazardous, toxic or dangerous waste, substance or
material (including without limitation petroleum products,
asbestos-containing materials and lead), the generation, handling,
storage, transportation, disposal, treatment, release, discharge or
emission of which is subject to any Environmental Law.
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"Historical Cost" means with respect to any Pledged Property,
the SUM of (i) the purchase price of such Pledged Property, PLUS (ii)
reasonable pre-acquisition due diligence expenditures, PLUS (iii)
reasonable and customary closing costs and real estate commissions paid
to third parties with respect to such Pledged Property, PLUS (iv) any
other reasonable and customary expenses incurred in connection with the
acquisition of such Pledged Property, all incurred by the Borrower or
other Credit Party with respect to such Pledged Property and all
verified in writing to the Agent; PROVIDED, HOWEVER, that the SUM of
the amounts described in (ii), (iii) and (iv) above may not exceed 5%
of the amount described in (i) above; PROVIDED, FURTHER, that with
respect to any Pledged Property purchased from Wackenhut Corrections
Corporation the Historical Cost of such Pledged Property may not exceed
105% of the purchase price paid to Wackenhut Corrections Corporation,
as verified in writing to the Agent.
"Increase Amount" means an amount of up to $50,000,000 or such
lesser amount as the Borrower, the Guarantors, the Agent and a lender
or lenders may agree by execution of one or more Amendment Agreements
in the form of EXHIBIT P.
"Indebtedness" means with respect to any Person, without
duplication, all Indebtedness for Money Borrowed, all indebtedness of
such Person for the acquisition of property or arising under Rate
Hedging Obligations, all indebtedness secured by any Lien on the
property of such Person whether or not such indebtedness is assumed,
all liability of such Person by way of endorsements (other than for
collection or deposit in the ordinary course of business), all
Contingent Obligations and Guaranties, that portion of obligations with
respect to Capital Leases and other items which in accordance with GAAP
are required to be classified as a liability on a balance sheet; and
any other items which are treated as debt by Moody's or S&P but
excluding all accounts payable in the ordinary course of business so
long as payment therefor is due within one year; provided that in no
event shall the term Indebtedness include surplus and retained
earnings, lease obligations (other than pursuant to Capital Leases),
reserves for deferred income taxes and investment credits, other
deferred credits or reserves.
"Indebtedness for Money Borrowed" means with respect to any
Person, without duplication, all indebtedness in respect of money
borrowed, including without limitation all Capital Leases and the
deferred purchase price of any property or asset, evidenced by a
promissory note, bond, debenture or similar written obligation for the
payment of money (including conditional sales or similar title
retention agreements), other than trade payables incurred in the
ordinary course of business.
"Initial Properties" means those properties identified as such
in SCHEDULE 4.3.
"Interbank Offered Rate" means, with respect to any Eurodollar
Rate Loan for the Interest Period applicable thereto, the rate per
annum (rounded upwards, if necessary), to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars at approximately 11:00
A.M.
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(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period. If for any reason
such rate is not available, the term "Interbank Offered Rate" shall
mean, with respect to any Eurodollar Rate Loan for the Interest Period
applicable thereto, the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as
the London interbank offered rate for deposits in Dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such
Interest Period, PROVIDED, HOWEVER; if more than one rate is specified
on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates (rounded upwards, if necessary, to
the nearest 1/100 of 1%).
"Interest Period" means, for each Eurodollar Rate Loan, a
period commencing on the date such Eurodollar Rate Loan is made or
Converted and ending, at the Borrower' option, on the date one, two,
three, six or nine months thereafter as notified to the Agent by the
Authorized Representative three (3) Business Days prior to the
beginning of such Interest Period; PROVIDED, that,
(i) if the Authorized Representative fails to notify
the Agent of the length of an Interest Period three (3)
Business Days prior to the first day of such Interest Period,
the Eurodollar Rate Loan for which such Interest Period was to
be determined shall be deemed to be a Base Rate Loan as of the
first day thereof;
(ii) if an Interest Period for a Eurodollar Rate Loan
would end on a day which is not a Business Day, such Interest
Period shall be extended to the next Business Day (unless such
extension would cause the applicable Interest Period to end in
the succeeding calendar month, in which case such Interest
Period shall end on the next preceding Business Day);
(iii) any Interest Period which begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month;
(iv) no Interest Period shall extend past the Stated
Termination Date; and
(v) there shall not be more than eight (8) Interest
Periods in effect on any day.
"Interest Rate Selection Notice" means the written notice
delivered by an Authorized Representative in connection with the
election of a subsequent Interest Period for any Eurodollar Rate Loan
or the Conversion of any Eurodollar Rate Loan into a Base Rate Loan or
the Conversion of any Base Rate Loan into a Eurodollar Rate Loan, in
the form of EXHIBIT E.
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"Issuing Bank" means initially NationsBank and thereafter any
Lender which is successor to NationsBank as issuer of Letters of Credit
under ARTICLE III.
"LC Account Agreement" means the LC Account Agreement dated as
of the date hereof between the Borrower and the Agent, as amended,
modified or supplemented from time to time.
"Lease Party" means any Person who is a lessee of a Pledged
Property pursuant to a Security Lease; PROVIDED that any such Person,
other than a Pre-Approved Lessee, must be approved by the Required
Lenders in their discretion; PROVIDED, further, that (i) no Lease Party
that is not a Pre-Approved Lessee shall be a lessee with respect to
Pledged Properties having Appraised Values aggregating more than 20% of
Consolidated Total Value, and (ii) no Person that is not a Pre-
Approved Lessee shall be approved by the Required Lenders if such
approval would result in the aggregate Appraised Value of all Pledged
Properties which are leased to Persons other than Pre-Approved Lessees
exceeding 50% of Consolidated Total Value
"Lease Party Documents" means, with respect to any Pledged
Property constituting a part of the Pledge Pool, an Estoppel
Certificate in the form attached hereto as EXHIBIT M, a Consent to
Assignment in the form attached hereto as EXHIBIT N, and a
Subordination, Non-Disturbance and Attornment Agreement in the form
attached hereto as EXHIBIT O.
"Leased Fee Value" means the appraised value of a property for
which the owner has conveyed by lease the rights of use and occupancy
of such property to others.
"Letter of Credit" means a standby letter of credit issued by
the Issuing Bank pursuant to ARTICLE III hereof for the account of the
Borrower in favor of a Person advancing credit or securing an
obligation on behalf of such Borrower.
"Letter of Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to acquire Participations in
respect of Letters of Credit and Reimbursement Obligations up to an
aggregate amount at any one time outstanding equal to such Lender's
Applicable Commitment Percentage of the Total Letter of Credit
Commitment as the same may be increased or decreased from time to time
pursuant to this Agreement.
"Letter of Credit Facility" means the facility described in
ARTICLE III hereof providing for the issuance by the Issuing Bank for
the account of the Borrower of Letters of Credit in an aggregate stated
amount at any time outstanding not exceeding the Total Letter of Credit
Commitment.
"Letter of Credit Outstandings" means, as of any date of
determination, the aggregate amount available to be drawn under all
Letters of Credit plus Reimbursement Obligations then outstanding.
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"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, CPV and any Subsidiary
shall be deemed to be the owner of any property which it has acquired
or holds subject to a conditional sale agreement, financing lease, or
other arrangement pursuant to which title to the property has been
retained by or vested in some other Person for security purposes.
"Loan" or "Loans" means any Revolving Loan made under the
Revolving Credit Facility and any such Swing Line Loan made under the
Swing Line Facility.
"Loan Documents" means this Agreement, the Notes, the Security
Instruments, the Facility Guaranties, the Lease Party Documents, the
Owner's Affidavits delivered for each Pledged Property, the LC Account
Agreement, the Applications and Agreements for Letters of Credit, and
all other instruments and documents heretofore or hereafter executed or
delivered to or in favor of any Lender or the Agent in connection with
the Loans made and transactions contemplated under this Agreement, as
the same may be amended, supplemented or replaced from the time to
time.
"Majority Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating at least 51% of
the aggregate Credit Exposures of all the Lenders on such date. For
purposes of the preceding sentence, the amount of the "CREDIT EXPOSURE"
of each Lender shall be equal at all times (a) other than following the
occurrence and during the continuance of an Event of Default, to the
sum of its Revolving Credit Commitment, and (b) following the
occurrence and during the continuance of an Event of Default, to the
sum of (i) the amount of such Lender's Applicable Commitment Percentage
of Revolving Credit Outstandings plus (ii) the amount of such Lender's
Applicable Commitment Percentage of Letter of Credit Outstandings plus
(iii) the amount of such Lender's Applicable Commitment Percentage of
Swing Line Outstandings; PROVIDED that, for the purpose of this
definition only, (A) if any Lender shall have failed to fund its
Applicable Commitment Percentage of any Advance, the Revolving Credit
Commitment of such Lender shall be deemed reduced by the amount it so
failed to fund for so long as such failure shall continue and such
Lender's Credit Exposure attributable to such failure shall be deemed
held by any Lender making more than its Applicable Commitment
Percentage of such Advance to the extent it covers such failure, (B) if
any Lender shall have failed to pay to the Issuing Bank upon demand its
Applicable Commitment Percentage of any drawing under any Letter of
Credit resulting in an outstanding Reimbursement Obligation, such
Lender's Credit Exposure attributable to such Letter of Credit
Outstandings shall be deemed to be held by the Issuing Bank and (C) if
any Lender shall have failed to pay to NationsBank its Applicable
Commitment Percentage of any Swing Line Loan, such Lender's Credit
Exposure attributable to all Swing Line Outstandings shall be deemed to
be held by NationsBank for purposes of this definition.
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"Market Equity Capitalization" means, as of any date on which
the amount thereof is to be determined, the sum of the following in
respect of the Borrower and CPV: (i) the fair market value of the
issued and outstanding common stock of CPV, based upon the average
closing price of such stock for the preceding twenty (20) Business
Days, (ii) the fair market value of the issued and outstanding
preferred stock of CPV, based upon the average closing price of such
stock for the preceding twenty (20) Business Days and (iii) the value
of the Partnership Units of the Borrower if each such Partnership Unit
were converted to a share of the common stock of CPV, based upon the
average closing price of the outstanding common stock of CPV for the
preceding 20 Business Days.
"Master Lease" means that certain Master Agreement to Lease
dated April 28, 1998 between the Borrower, as landlord, and Wackenhut,
as tenant, as the same may be amended, supplemented or replaced from
time to time, as approved by the Agent.
"Material Adverse Effect" means a material adverse effect on
(i) the business, properties, operations, condition or prospects,
financial or otherwise, of CPV and its Subsidiaries taken as a whole,
(ii) the ability of any Credit Party to pay or perform its respective
obligations, liabilities and indebtedness under the Loan Documents as
such payment or performance becomes due in accordance with the terms
thereof, or (iii) the rights, powers and remedies of the Agent or any
Lender under any Loan Document or the validity, legality or
enforceability thereof.
"Mortgage" means, collectively, each of the instruments
entitled Credit Line Deed of Trust, Mortgage, Open-End Mortgage, Deed
of Trust, Deed to Secure Debt, Leasehold Mortgage, Open-End Leasehold
Mortgage, Leasehold Deed of Trust, Leasehold Deed to Secure Debt,
Security Agreement, Fixture Filing, Assignment of Leases and Rents and
Financing Statement in substantially the form of EXHIBIT K-1, in the
case of a lease to Wackenhut or a subsidiary of Wackenhut, or EXHIBIT
K-2 in all other cases, and such other mortgages, deeds of trust and
deeds to secure debt executed by the Borrower, CPV, or any other
Guarantor granting a Lien to the Agent (or a trustee for the benefit of
the Agent) for the benefit of the Lenders in the Pledged Properties, as
such documents may be amended, modified, supplemented or restated from
time to time.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate is making, or is accruing an obligation to make,
contributions or has made, or been obligated to make, contributions
within the preceding six (6) Fiscal Years.
"Municipal Obligations" means general obligations issued by,
and supported by the full taxing authority of, any state of the United
States of America or of any municipal corporation or other public body
organized under the laws of any such state which are rated in the
highest investment rating category by both S&P and Moody's.
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"NAREIT" means the National Association of Real Estate Trusts.
"NationsBank" means NationsBank, National Association and its
successors.
"Net Proceeds" (a) from any equity offering means cash
payments received therefrom as and when received, net of all legal,
accounting, banking and underwriting fees and expenses, commissions,
discounts and other issuance expenses incurred in connection therewith
and all taxes required to be paid or accrued as a consequence of such
issuance; and (b) from any disposition of a Pledged Property means cash
payments received by the Borrower or other Credit Party therefrom
(including any cash payments received pursuant to any note or other
debt security received in connection with such disposition) as and when
received, net of (i) all legal fees and expenses and other commissions
and fees and expenses paid to third parties and incurred in connection
therewith and (ii) all taxes required to be paid or accrued as a
consequence of such sale.
"NMS" means NationsBanc Xxxxxxxxxx Securities LLC and its
successors.
"Non-Conforming Investments" means any of the following:
(a) undeveloped real property;
(b) non-income producing real property; and
(c) real property that is not a Qualifying
Property.
"Non-Recourse Indebtedness" means Indebtedness for which the
recourse for payment is limited to the asset securing such
Indebtedness, with no liability of any Person other than the maker of
such Indebtedness for any deficiency between the proceeds derived from
liquidation of such asset and the amount owed.
"Notes" means, collectively, the Revolving Notes and the Swing
Line Notes.
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrower with respect to (i) the principal and
interest on the Revolving Loans and Swing Line Loans as evidenced by
the Notes, (ii) the Reimbursement Obligations and otherwise in respect
of the Letters of Credit, (iii) all liabilities of the Borrower to any
Lender or an affiliate of a Lender which arise under a Swap Agreement,
and (iv) the payment and performance of all other obligations,
liabilities and Indebtedness of the Borrower to the Lenders, the Agent
or NMS hereunder, under any one or more of the other Loan Documents or
with respect to the Loans.
"Operating Documents" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, the bylaws, operating agreement,
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partnership agreement, limited partnership agreement or other
applicable documents relating to the operation, governance or
management of such entity.
"Organizational Action" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, any corporate, organizational or partnership
action (including any required shareholder, member or partner action),
or other similar official action, as applicable, taken by such entity.
"Organizational Documents" means with respect to any
corporation, limited liability company, partnership, limited
partnership, limited liability partnership or other legally authorized
incorporated or unincorporated entity, the articles of incorporation,
certificate of incorporation, articles of organization, certificate of
limited partnership or other applicable organizational or charter
documents relating to the creation of such entity.
"Outstandings" means, collectively, at any date, the Letter of
Credit Outstandings, Swing Line Outstandings, and Revolving Credit
Outstandings on such date.
"Participation" means, (i) with respect to any Lender (other
than the Issuing Bank) and a Letter of Credit, the extension of credit
represented by the participation of such Lender hereunder in the
liability of the Issuing Bank in respect of a Letter of Credit issued
by the Issuing Bank in accordance with the terms hereof and (ii) with
respect to any Lender (other than NationsBank) and a Swing Line Loan,
the extension of credit represented by the participation of such Lender
hereunder in the liability of NationsBank in respect of a Swing Line
Loan made by NationsBank in accordance with the terms hereof.
"Partnership Interests" shall have the meaning therefor
provided in the Pledge Agreement.
"Partnership Units" means with respect to the Borrower, and
with respect to each class of partnership, those units representing an
equal undivided factional share of each item of the Borrower's income,
gain and loss and in distribution of the Borrower's assets.
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor thereto.
"Pension Plan" means any employee pension benefit plan within
the meaning of Section 3(2) of ERISA, other than a Multiemployer Plan,
which is subject to the provisions of Title IV of ERISA or Section 412
of the Code and which (i) is maintained for employees of the Borrower
or CPV or any of its or their ERISA Affiliates or is assumed by the
Borrower or CPV or any of its or their ERISA Affiliates in connection
with any Acquisition or (ii) has at any time been maintained for the
employees of the Borrower or CPV or any current or former ERISA
Affiliate.
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"Permitted Encumbrances" means with respect to each Eligible
Property such title exceptions which are shown on the title commitment
for such Eligible Property and which have been reviewed and approved by
the Agent in its sole discretion.
"Person" means an individual, partnership, corporation,
limited liability company, limited liability partnership, trust,
unincorporated organization, association, joint venture or a government
or agency or political subdivision thereof.
"Pledge Agreement" means that certain Collateral Assignment of
Partnership Interests dated as of the date hereof between CPV and the
Agent for the benefit of the Agent and the Lenders, as hereafter
amended, supplemented or replaced from time to time.
"Pledge Pool" means, collectively, those Pledged Properties
identified as constituting the Pledge Pool on SCHEDULE 4.3 as it may be
amended or replaced from time to time.
"Pledged Property" or "Pledged Properties" means individually
or collectively as the context indicates, any Eligible Property or
Properties subject to the Mortgage.
"Pledged Stock" has the meaning given to such term in the
Pledge Agreement.
"Pre-Approved Lessee" means Wackenhut or a Governmental
Authority whose unsecured long-term Indebtedness is rated A or better
by S&P and Xxxxx'x.
"Pre-Refunded Municipal Obligations" means obligations of any
state of the United States of America or of any municipal corporation
or other public body organized under the laws of any such state which
are rated, based on the escrow, in the highest investment rating
category by both S&P and Xxxxx'x and which have been irrevocably called
for redemption and advance refunded through the deposit in escrow of
Government Securities or other debt securities which are (i) not
callable at the option of the issuer thereof prior to maturity, (ii)
irrevocably pledged solely to the payment of all principal and interest
on such obligations as the same becomes due and (iii) in a principal
amount and bear such rate or rates of interest as shall be sufficient
to pay in full all principal of, interest, and premium, if any, on such
obligations as the same becomes due as verified by a nationally
recognized firm of certified public accountants.
"Prime Rate" means the per annum rate of interest established
from time to time by NationsBank as its prime rate, which rate may not
be the lowest rate of interest charged by NationsBank to its customers.
"Principal Office" means the principal office of NationsBank,
presently located at Xxxxxxxxxxxx Xxxxxx, 00xx Xxxxx, XX0 000-00-00,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Agency Services, or such
other office and address as the Agent may from time to time designate.
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"Qualified Appraiser" means an MAI appraiser selected by the
Agent.
"Qualifying Property" means any correctional or detention
facility or other improved real property used for any other purpose
approved by the Required Lenders as to which a final certificate of
occupancy has been issued by the applicable Governmental Authority, if
such real property is located in a jurisdiction where such certificates
are issued, or if not so located, an equivalent certificate relating to
such real property's fitness for occupancy or use as a correctional or
detention facility or other approved purpose, as applicable, has been
issued by the applicable Governmental Authority.
"Rate Hedging Obligations" means any and all obligations of
CPV or any Subsidiary, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions
therefor), under (i) any and all agreements, devices or arrangements
designed to protect at least one of the parties thereto from the
fluctuations of interest rates, exchange rates or forward rates
applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, Dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts, warrants and
those commonly known as interest rate "swap" agreements; and (ii) any
and all cancellations, buybacks, reversals, terminations or assignments
of any of the foregoing.
"Registration Statement" means the Registration Statement of
CPV on Form S-11, Registration No. 333-46681, as filed by CPV with the
Securities and Exchange Commission on February 20, 1998, together with
any amendments thereto.
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time.
"Regulatory Change" means any change effective after the
Closing Date in United States federal or state laws or regulations
(including Regulation D and capital adequacy regulations) or foreign
laws or regulations or the adoption or making after such date of any
interpretations, directives or requests applying to a class of banks,
which includes any of the Lenders, under any United States federal or
state or foreign laws or regulations (whether or not having the force
of law) by any court or governmental or monetary authority charged with
the interpretation or administration thereof or compliance by any
Lender with any request or directive regarding capital adequacy,
including those relating to "highly leveraged transactions," whether or
not having the force of law, and whether or not failure to comply
therewith would be unlawful and whether or not published or proposed
prior to the date hereof.
"Reimbursement Obligation" shall mean at any time, the
obligation of the Borrower with respect to any Letter of Credit to
reimburse the Issuing Bank and the Lenders to the extent of their
respective Participations (including by the receipt by the Issuing Bank
of
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proceeds of Loans pursuant to SECTION 3.2) for amounts theretofore paid
by the Issuing Bank pursuant to a drawing under such Letter of Credit.
"REIT" means a real estate investment trust qualified for
treatment as such for federal income tax purposes under Sections 856
through 860 of the Internal Revenue Code of 1986, as amended.
"Repurchase Agreement" means a repurchase agreement entered
into with any financial institution whose debt obligations or
commercial paper are rated "A" by either of S&P or Xxxxx'x or "A-1" by
S&P or "P-1" by Xxxxx'x.
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating at least 662/3%
of the aggregate Credit Exposures of all the Lenders on such date. For
purposes of the preceding sentence, the amount of the "CREDIT EXPOSURE"
of each Lender shall be equal at all times to the sum of its Revolving
Credit Commitment; PROVIDED that, for the purpose of this definition
only, (A) if any Lender shall have failed to fund its Applicable
Commitment Percentage of any Advance, the Revolving Credit Commitment
of such Lender shall be deemed reduced by the amount it so failed to
fund for so long as such failure shall continue and such Lender's
Credit Exposure attributable to such failure shall be deemed held by
any Lender making more than its Applicable Commitment Percentage of
such Advance to the extent it covers such failure, (B) if any Lender
shall have failed to pay to the Issuing Bank upon demand its Applicable
Commitment Percentage of any drawing under any Letter of Credit
resulting in an outstanding Reimbursement Obligation, such Lender's
Credit Exposure attributable to such Letter of Credit Outstandings
shall be deemed to be held by the Issuing Bank and (C) if any Lender
shall have failed to pay to NationsBank its Applicable Commitment
Percentage of any Swing Line Loan, such Lender's Credit Exposure
attributable to all Swing Line Outstandings shall be deemed to be held
by NationsBank for purposes of this definition.
"Reserve Requirement" means, at any time, the maximum rate at
which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained
under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) by member banks of the
Federal Reserve System against "Eurocurrency liabilities" (as such term
is used in Regulation D). Without limiting the effect of the foregoing,
the Reserve Requirement shall reflect any other reserves required to be
maintained by such member banks with respect to (i) any category of
liabilities which includes deposits by reference to which the
Eurodollar Rate is to be determined, or (ii) any category of extensions
of credit or other assets which include Eurodollar Rate Loans. The
Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Reserve Requirement.
"Restricted Payment" means (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class
of stock of CPV or any of its Subsidiaries
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(other than those payable or distributable solely to CPV, the Borrower
or to any Subsidiary other than an Unrestricted Subsidiary) now or
hereafter outstanding, except a dividend payable solely in shares of a
class of stock to the holders of that class; (b) any redemption,
conversion, exchange, retirement or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class
of stock of CPV or any of its Subsidiaries (other than those payable or
distributable solely to CPV) now or hereafter outstanding; (c) any
payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any class of
stock of CPV or any of its Subsidiaries now or hereafter outstanding;
and (d) any issuance and sale of capital stock of any Subsidiary of CPV
(or any option, warrant or right to acquire such stock) other than to
CPV.
"Revolving Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to the
Borrower up to an aggregate principal amount at any one time
outstanding equal to such Lender's Applicable Commitment Percentage of
the Total Revolving Credit Commitment.
"Revolving Credit Facility" means the facility described in
ARTICLE II hereof providing for Revolving Loans to the Borrower by the
Lenders in the aggregate principal amount of the Total Revolving Credit
Commitment.
"Revolving Credit Outstandings" means, as of any date of
determination, the aggregate principal amount of all Revolving Loans
then outstanding.
"Revolving Credit Termination Date" means (i) the Stated
Termination Date or (ii) such earlier date of termination of Lenders'
obligations pursuant to SECTION 11.1 upon the occurrence of an Event of
Default, or (iii) such date as the Borrower may voluntarily and
permanently terminate the Revolving Credit Facility by payment in full
of all Revolving Credit Outstandings, Swing Line Outstandings and
Letter of Credit Outstandings and cancellation of all Letters of
Credit, together with all accrued and unpaid interest thereon.
"Revolving Loan" or "Revolving Loans" means any borrowing made
pursuant to an Advance under the Revolving Credit Facility.
"Revolving Notes" means the promissory notes of the Borrower
evidencing Revolving Loans executed and delivered to the Lenders
substantially in the form of EXHIBIT F-1.
"S&P" means Standard & Poor's Ratings Group, a division of the
XxXxxx-Xxxx Companies, Inc.
"Security Instruments" means, collectively, the Pledge
Agreement, the Mortgage, the Assignments of Leases, related UCC
financing statements and fixture filings and all other agreements,
instruments and other documents, whether now existing or hereafter in
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effect, pursuant to which the Borrower or any Credit Party shall grant
or convey to the Agent or the Lenders a Lien in property as security
for all or any portion of the Obligations, as any of them may be
amended, modified or supplemented from time to time.
"Security Leases" means, collectively, those leases indicated
as such on SCHEDULE 4.3 as it may exist from time to time, which are
leases relating to Pledged Properties and subject to the Assignment of
Leases.
"Single Employer Plan" means any employee pension benefit plan
covered by Title IV of ERISA in respect of which the Borrower, CPV or
any Subsidiary is an "employer" as described in Section 4001(b) of
ERISA and which is not a Multiemployer Plan.
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(i) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including Contingent Obligations; and
(ii) it is then able and expects to be able to pay
its debts as they mature; and
(iii) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
"Stated Termination Date" means October 1, 2003.
"Subsidiary" means any corporation or other entity in which
more than 50% of its outstanding voting stock or more than 50% of all
equity interests is owned directly or indirectly by CPV and/or by one
or more CPV's Subsidiaries.
"Swap Agreement" means one or more agreements between the
Borrower and any Person with respect to Indebtedness evidenced by any
or all of the Notes, on terms mutually acceptable to the Borrower and
such Person which agreements create Rate Hedging Obligations.
"Swing Line" means the revolving line of credit established by
NationsBank in favor of the Borrower pursuant to SECTION 2.14.
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"Swing Line Loans" means loans made by NationsBank to the
Borrower pursuant to SECTION 2.14.
"Swing Line Note" means the promissory note of the Borrower
evidencing Swing Line Loans executed and delivered to the Lenders
substantially in the form of EXHIBIT F-2.
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal amount of all Swing Line Loans
then outstanding.
"Termination Event" means: (i) a "Reportable Event" described
in Section 4043 of ERISA and the regulations issued thereunder (unless
the notice requirement has been waived by applicable regulation); or
(ii) the withdrawal of the Borrower, CPV or any of its or their ERISA
Affiliates from a Pension Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA or was
deemed such under Section 4068(f) of ERISA; or (iii) the termination of
a Pension Plan, the filing of a notice of intent to terminate a Pension
Plan or the treatment of a Pension Plan amendment as a termination
under Section 4041 of ERISA; or (iv) the institution of proceedings to
terminate a Pension Plan by the PBGC; or (v) any other event or
condition which would constitute grounds under Section 4042(a) of ERISA
for the termination of, or the appointment of a trustee to administer,
any Pension Plan; or (vi) the partial or complete withdrawal of the
Borrower, CPV or any of its or their ERISA Affiliates from a
Multiemployer Plan; or (vii) the imposition of a Lien pursuant to
Section 412 of the Code or Section 302 of ERISA; or (viii) any event or
condition which results in the reorganization or insolvency of a
Multiemployer Plan under Section 4241 or Section 4245 of ERISA,
respectively; or (ix) any event or condition which results in the
termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by the PBGC of proceedings to terminate a Multiemployer
Plan under Section 4042 of ERISA.
"Total Letter of Credit Commitment" means an amount not to
exceed $10,000,000.
"Total Revolving Credit Commitment" means a principal amount
equal to (i) $100,000,000 or (ii) at such time or times as EXHIBIT A
hereto is amended by the entering into of an Amendment Agreement in the
form of EXHIBIT P by the Borrower, the Guarantors, the Agent and any
lender or lenders agreeing to provide additional Loans of up to
$50,000,000, an amount equal to the sum of $100,000,000 and the
Increase Amount, as reduced from time to time in accordance with
SECTIONS 2.7 AND 2.13.
"Type" shall mean any type of Loan (i.e., a Base Rate Loan or
a Eurodollar Rate Loan).
"Unrestricted Subsidiary" means a Subsidiary of the Borrower
that has not executed a Facility Guaranty that is in full force and
effect and with respect to which the Borrower has provided a notice as
required by SECTION 9.19.
"Voting Stock" means shares of capital stock issued by a
corporation, or equivalent interests in any other Person, the holders
of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of directors (or persons performing similar
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functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
"Wackenhut" means Wackenhut Corrections Corporation, a Florida
corporation.
1.2. RULES OF INTERPRETATION.
(a) All accounting terms not specifically defined herein shall
have the meanings assigned to such terms and shall be interpreted in
accordance with GAAP applied on a Consistent Basis.
(b) Each term defined in Article 1 or 9 of the Florida Uniform
Commercial Code shall have the meaning given therein unless otherwise
defined herein, except to the extent that the Uniform Commercial Code
of another jurisdiction is controlling, in which case such terms shall
have the meaning given in the Uniform Commercial Code of the applicable
jurisdiction.
(c) The headings, subheadings and table of contents used
herein or in any other Loan Document are solely for convenience of
reference and shall not constitute a part of any such document or
affect the meaning, construction or effect of any provision thereof.
(d) Except as otherwise expressly provided, references herein
to articles, sections, paragraphs, clauses, annexes, appendices,
exhibits and schedules are references to articles, sections,
paragraphs, clauses, annexes, appendices, exhibits and schedules in or
to this Agreement.
(e) All definitions set forth herein or in any other Loan
Document shall apply to the singular as well as the plural form of such
defined term, and all references to the masculine gender shall include
reference to the feminine or neuter gender, and VICE VERSA, as the
context may require.
(f) When used herein or in any other Loan Document, words such
as "hereunder", "hereto", "hereof" and "herein" and other words of like
import shall, unless the context clearly indicates to the contrary,
refer to the whole of the applicable document and not to any particular
article, section, subsection, paragraph or clause thereof.
(g) References to "including" means including without limiting
the generality of any description preceding such term, and for purposes
hereof the rule of EJUSDEM GENERIS shall not be applicable to limit a
general statement, followed by or referable to an enumeration of
specific matters, to matters similar to those specifically mentioned.
(h) All dates and times of day specified herein shall refer to
such dates and times at Charlotte, North Carolina.
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(i) Each of the parties to the Loan Documents and their
counsel have reviewed and revised, or requested (or had the opportunity
to request) revisions to, the Loan Documents, and any rule of
construction that ambiguities are to be resolved against the drafting
party shall be inapplicable in the construing and interpretation of the
Loan Documents and all exhibits, schedules and appendices thereto.
(j) Any reference to an officer of the Borrower or any other
Person by reference to the title of such officer shall be deemed to
refer to each other officer of such Person, however titled, exercising
the same or substantially similar functions.
(k) All references to any agreement or document as amended,
modified or supplemented, or words of similar effect, shall mean such
document or agreement, as the case may be, as amended, modified or
supplemented from time to time only as and to the extent permitted
therein and in the Loan Documents.
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ARTICLE II
THE REVOLVING CREDIT FACILITY
2.1. REVOLVING LOANS.
(a) COMMITMENT. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Advances to the Borrower under
the Revolving Credit Facility from time to time from the Closing Date until the
Revolving Credit Termination Date on a pro rata basis as to the total borrowing
requested by the Borrower on any day determined by such Lender's Applicable
Commitment Percentage up to but not exceeding the Revolving Credit Commitment of
such Lender, PROVIDED, however, that the Lenders will not be required and shall
have no obligation to make any such Advance (i) so long as a Default or an Event
of Default has occurred and is continuing or (ii) if the Agent has accelerated
the maturity of any of the Revolving Notes as a result of an Event of Default;
PROVIDED further, however, that immediately after giving effect to each such
Advance, the amount of Revolving Credit Outstandings plus Letter of Credit
Outstandings plus Swing Line Outstandings shall not exceed the lesser of (A) the
Total Revolving Credit Commitment or (B) the Borrowing Base. Within such limits,
the Borrower may borrow, repay and reborrow under the Revolving Credit Facility
on a Business Day from the Closing Date until, but (as to borrowings and
reborrowings) not including, the Revolving Credit Termination Date; PROVIDED,
however, that (y) no Revolving Loan that is a Eurodollar Rate Loan shall be made
which has an Interest Period that extends beyond the Stated Termination Date and
(z) each Revolving Loan that is a Eurodollar Rate Loan may, subject to the
provisions of SECTION 2.7, be repaid only on the last day of the Interest Period
with respect thereto unless such payment is accompanied by the additional
payment, if any, required by SECTION 6.5.
(b) AMOUNTS. Except as otherwise permitted by the Lenders from
time to time, the amount of Revolving Credit Outstandings plus Letter of Credit
Outstandings plus Swing Line Outstandings shall not exceed at any time the
lesser of (A) the Total Revolving Credit Commitment or (B) the Borrowing Base,
and, in the event there shall be outstanding any such excess, the Borrower shall
immediately make such payments and prepayments as shall be necessary to comply
with this restriction. Each Revolving Loan hereunder, other than Base Rate
Refunding Loans, and each Conversion under SECTION 2.8, shall be in an amount of
at least $2,000,000, and, if greater than $2,000,000, an integral multiple of
$100,000.
(c) ADVANCES. (i) An Authorized Representative shall give the
Agent (1) at least three (3) Business Days' irrevocable written notice by
telefacsimile transmission of a Borrowing Notice or Interest Rate Selection
Notice (as applicable) with appropriate insertions, effective upon receipt, of
each Revolving Loan that is a Eurodollar Rate Loan (whether representing an
additional borrowing hereunder or the Conversion of a borrowing hereunder from
Base Rate Loans to Eurodollar Rate Loans) prior to 11:00 A.M. and (2)
irrevocable written notice by telefacsimile transmission of a Borrowing Notice
or Interest Rate Selection Notice (as applicable) with appropriate insertions,
effective upon receipt, of each Revolving Loan (other than Base Rate Refunding
Loans to the extent the same are effected without notice pursuant to SECTION
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2.1(C)(IV)) that is a Base Rate Loan (whether representing an additional
borrowing hereunder or the Conversion of borrowing hereunder from Eurodollar
Rate Loans to Base Rate Loans) prior to 11:00 A.M. on the day of such proposed
Revolving Loan. Each such notice shall specify the amount of the borrowing, the
Type of Revolving Loan (Base Rate or Eurodollar Rate), the date of borrowing
and, if a Eurodollar Rate Loan, the Interest Period to be used in the
computation of interest. Notice of receipt of such Borrowing Notice or Interest
Rate Selection Notice, as the case may be, together with the amount of each
Lender's portion of an Advance requested thereunder, shall be provided by the
Agent to each Lender by telefacsimile transmission with reasonable promptness,
but (provided the Agent shall have received such notice by 11:00 A.M.) not later
than 1:00 P.M. on the same day as the Agent's receipt of such notice.
(ii) Not later than 2:00 P.M. on the date specified for each borrowing
under this SECTION 2.1, each Lender shall, pursuant to the terms and subject to
the conditions of this Agreement, make the amount of the Advance or Advances to
be made by it on such day available by wire transfer to the Agent in the amount
of its pro rata share, determined according to such Lender's Applicable
Commitment Percentage of the Revolving Loan or Revolving Loans to be made on
such day. Such wire transfer shall be directed to the Agent at the Principal
Office and shall be in the form of Dollars constituting immediately available
funds. The amount so received by the Agent shall, subject to the terms and
conditions of this Agreement, be made available to the Borrower by delivery of
the proceeds thereof to the Borrower's Account or otherwise as shall be directed
in the applicable Borrowing Notice by the Authorized Representative and
reasonably acceptable to the Agent.
(iii) The Borrower shall have the option to elect the duration of the
initial and any subsequent Interest Periods and to Convert the Revolving Loans
in accordance with SECTION 2.8. Eurodollar Rate Loans and Base Rate Loans may be
outstanding at the same time, PROVIDED, HOWEVER, there shall not be outstanding
at any one time Eurodollar Rate Loans having more than eight (8) different
Interest Periods. If the Agent does not receive a Borrowing Notice or an
Interest Rate Selection Notice giving notice of election of the duration of an
Interest Period or of Conversion of any Revolving Loan to or Continuation of a
Revolving Loan as a Eurodollar Rate Loan by the time prescribed by SECTION
2.1(C) OR 2.8, the Borrower shall be deemed to have elected to Convert such
Revolving Loan to (or Continue such Revolving Loan as) a Base Rate Loan until
the Borrower notifies the Agent in accordance with SECTION 2.8.
(iv) Notwithstanding the foregoing, if a drawing is made under any
Letter of Credit, such drawing is honored by the Issuing Bank prior to the
Stated Termination Date, and the Borrower shall not immediately fully reimburse
the Issuing Bank in respect of such drawing, (A) provided that the conditions to
making a Loan as herein provided shall then be satisfied, the Reimbursement
Obligation arising from such drawing shall be paid to the Issuing Bank by the
Agent without the requirement of notice to or from the Borrower from immediately
available funds which shall be advanced as a Base Rate Refunding Loan by each
Lender under the Revolving Credit Facility in an amount equal to such Lender's
Applicable Commitment Percentage of such Reimbursement Obligation, and (B) if
the conditions to making a Loan as herein provided shall not then be satisfied,
each of the Lenders shall fund by payment to the Agent
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(for the benefit of the Issuing Bank) in immediately available funds the
purchase from the Issuing Bank of their respective Participations in the related
Reimbursement Obligation based on their respective Applicable Commitment
Percentages of the Total Letter of Credit Commitment. If a drawing is presented
under any Letter of Credit in accordance with the terms thereof and the Borrower
shall not immediately reimburse the Issuing Bank in respect thereof, then notice
of such drawing or payment shall be provided promptly by the Issuing Bank to the
Agent and the Agent shall provide notice to each Lender by telephone or
telefacsimile transmission. If notice to the Lenders of a drawing under any
Letter of Credit is given by the Agent at or before 12:00 noon on any Business
Day, each Lender shall, pursuant to the conditions specified in this SECTION
2.1(C)(IV), either make a Base Rate Refunding Loan or fund the purchase of its
Participation in the amount of such Lender's Applicable Commitment Percentage of
such drawing or payment and shall pay such amount to the Agent for the account
of the Issuing Bank at the Principal Office in Dollars and in immediately
available funds before 2:30 P.M. on the same Business Day. If notice to the
Lenders of a drawing under a Letter of Credit is given by the Agent after 12:00
noon on any Business Day, each Lender shall, pursuant to the conditions
specified in this SECTION 2.1(C)(IV), either make a Base Rate Refunding Loan or
fund the purchase of its Participation in the amount of such Lender's Applicable
Commitment Percentage of such drawing or payment and shall pay such amount to
the Agent for the account of the Issuing Bank at the Principal Office in Dollars
and in immediately available funds before 12:00 noon on the next following
Business Day. Any such Base Rate Refunding Loan shall be advanced as, and shall
Continue as, a Base Rate Loan unless and until the Borrower Converts such Base
Rate Loan in accordance with the terms of SECTION 2.8.
2.2. PAYMENT OF INTEREST. (a) The Borrower shall pay interest to the
Agent for the account of each Lender on the outstanding and unpaid principal
amount of each Revolving Loan made by such Lender for the period commencing on
the date of such Revolving Loan until such Revolving Loan shall be due at the
then applicable Base Rate for Base Rate Loans or applicable Eurodollar Rate for
Eurodollar Rate Loans, as designated by the Authorized Representative pursuant
to SECTION 2.1; PROVIDED, however, that if any Event of Default shall occur and
be continuing, all amounts outstanding hereunder shall bear interest thereafter
at the Default Rate.
(b) Interest on each Revolving Loan shall be computed on the basis of
a year of 360 days and calculated in each case for the actual number of days
elapsed. Interest on each Revolving Loan shall be paid (i) quarterly in arrears
on the last Business Day of each March, June, September and December, commencing
December 31, 1998, with respect to Base Rate Loans (ii) on the last day of an
Interest Period, with respect to Eurodollar Loans, if such Interest Period
extends for more than three (3) months, at intervals of three (3) months after
the first day of such Interest Period, and (iii) upon payment in full of the
principal amount of such Revolving Loan.
2.3. PAYMENT OF PRINCIPAL. The principal amount of each Revolving Loan
shall be due and payable to the Agent for the benefit of each Lender in full on
the Revolving Credit Termination Date, or earlier as specifically provided
herein. The principal amount of any Base Rate Loan may be prepaid in whole or in
part at any time. The principal amount of any
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Eurodollar Rate Loan may be prepaid only at the end of the applicable Interest
Period unless the Borrower shall pay to the Agent for the account of the Lenders
the additional amount, if any, required under SECTION 6.5. All prepayments of
Revolving Loans made by the Borrower shall be in the amount of $5,000,000 or
such greater amount which is an integral multiple of $1,000,000, or the amount
equal to all Revolving Credit Outstandings, or such other amount as necessary to
comply with SECTION 2.1(B) or SECTION 2.8.
2.4. MANNER OF PAYMENT. (a) Each payment of principal (including any
prepayment) and payment of interest and fees, and any other amount required to
be paid to the Lenders with respect to the Loans, shall be made to the Agent at
the Principal Office, for the account of each Lender, in Dollars and in
immediately available funds without setoff, deduction or counterclaim before
12:30 P.M. on the date such payment is due. The Agent may, but shall not be
obligated to, debit the amount of any such payment which is not made by such
time to any ordinary deposit account, if any, of the Borrower with the Agent.
(b) The Agent shall deem any payment made by or on behalf of the
Borrower hereunder that is not made both in Dollars and in immediately available
funds and prior to 12:30 P.M. to be a non-conforming payment. Any such payment
shall not be deemed to be received by the Agent until the later of (i) the time
such funds become available funds and (ii) the next Business Day. Any
non-conforming payment may constitute or become a Default or Event of Default.
Interest shall continue to accrue on any principal as to which a non-conforming
payment is made until the later of (x) the date such funds become available
funds or (y) the next Business Day at the Default Rate from the date such amount
was due and payable.
(c) In the event that any payment hereunder or under the Revolving
Notes becomes due and payable on a day other than a Business Day, then such due
date shall be extended to the next succeeding Business Day unless provided
otherwise under clause (ii) of the definition of "Interest Period"; PROVIDED
that interest shall continue to accrue during the period of any such extension
and PROVIDED further, that in no event shall any such due date be extended
beyond the Revolving Credit Termination Date.
2.5. REVOLVING NOTES. Revolving Loans made by each Lender shall be
evidenced by the Revolving Note payable to the order of such Lender in the
respective amount of its Applicable Commitment Percentage of the Revolving
Credit Commitment, which Revolving Note shall be dated the Closing Date or a
later date pursuant to the entering into of an Amendment Agreement in the form
of EXHIBIT P to give effect to an Increase Amount or pursuant to an Assignment
and Acceptance and shall be duly completed, executed and delivered by the
Borrower.
2.6. PRO RATA PAYMENTS. Except as otherwise provided herein, (a) each
payment on account of the principal of and interest on the Revolving Loans and
the fees described in SECTION 2.10 shall be made to the Agent for the account of
the Lenders pro rata based on their Applicable Commitment Percentages, (b) all
payments to be made by the Borrower for the account of each of the Lenders on
account of principal, interest and fees, shall be made without diminution,
setoff, recoupment or counterclaim, and (c) the Agent will promptly distribute
to the Lenders in
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immediately available funds payments received in fully collected, immediately
available funds from the Borrower.
2.7. REDUCTIONS. The Borrower shall, by notice from an Authorized
Representative, have the right from time to time but not more frequently than
once each calendar month, upon not less than three (3) Business Days' written
notice to the Agent, effective upon receipt, to reduce the Total Revolving
Credit Commitment. The Agent shall give each Lender, within one (1) Business Day
of receipt of such notice, telefacsimile notice, or telephonic notice (confirmed
in writing), of such reduction. Each such reduction shall be in the aggregate
amount of $5,000,000 or such greater amount which is in an integral multiple of
$1,000,000, or the entire remaining Total Revolving Credit Commitment, and shall
permanently reduce the Total Revolving Credit Commitment. Each reduction of the
Total Revolving Credit Commitment shall be accompanied by payment of the
Revolving Loans to the extent that the principal amount of Revolving Credit
Outstandings plus Letter of Credit Outstandings plus Swing Line Outstandings
exceeds the lesser of (A) the Total Revolving Credit Commitment and (B) the
Borrowing Base, after giving effect to such reduction, together with accrued and
unpaid interest on the amounts prepaid. No such reduction shall result in the
payment of any Eurodollar Rate Loan other than on the last day of the Interest
Period of such Eurodollar Rate Loan unless such prepayment is accompanied by
amounts due, if any, under SECTION 6.5.
2.8. CONVERSIONS AND ELECTIONS OF SUBSEQUENT INTEREST PERIODS. Subject
to the limitations set forth below and in ARTICLE VI, the Borrower may:
(a) upon delivery, effective upon receipt, of a properly
completed Interest Rate Selection Notice to the Agent on or before 11:00 A.M. on
any Business Day, Convert all or a part of Eurodollar Rate Loans to Base Rate
Loans on the last day of the Interest Period for such Eurodollar Rate Loans; and
(b) provided that no Default or Event of Default shall have
occurred and be continuing upon delivery, effective upon receipt, of a properly
completed Interest Rate Selection Notice to the Agent on or before 11:00 A.M.
three (3) Business Days' prior to the date of such election or Conversion:
(i) elect a subsequent Interest Period for all or a
portion of Eurodollar Rate Loans to begin on the last day of
the then current Interest Period for such Eurodollar Rate
Loans; and
(ii) Convert Base Rate Loans to Eurodollar Rate Loans
on any Business Day.
Each election and Conversion pursuant to this SECTION 2.8 shall be
subject to the limitations on Eurodollar Rate Loans set forth in the definition
of "Interest Period" herein and in SECTIONS 2.1, 2.3 and ARTICLE VI. The Agent
shall give written notice to each Lender of such notice of election or
Conversion prior to 3:00 P.M. on the day such notice of election or Conversion
is received.
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All such Continuations or Conversions of Revolving Loans shall be effected pro
rata based on the Applicable Commitment Percentages of the Lenders.
2.9. INCREASE AND DECREASE IN AMOUNTS. The amount of the Total
Revolving Credit Commitment which shall be available to the Borrower as Advances
shall be reduced by the aggregate amount of Revolving Credit Outstandings,
Letters of Credit Outstandings and Swing Line Outstandings. The Total Revolving
Credit Commitment which shall be available to the Borrower as Advances shall be
increased without the consent of the Lenders by the entering into of an
Amendment Agreement in the form of EXHIBIT P in order to give effect to an
Increase Amount. Nothing in this Agreement shall require any Lender to increase
its Dollar amount of its Revolving Credit Commitment.
2.10. UNUSED FEE. For the period beginning on the Closing Date and
ending on the Revolving Credit Termination Date, the Borrower agrees to pay to
the Agent, for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages, an unused fee equal to the Applicable Unused Margin,
multiplied by the daily amount by which the Total Revolving Credit Commitment
exceeds the sum of (i) Revolving Credit Outstandings (without giving effect to
Swing Line Outstandings) plus (ii) Letter of Credit Outstandings at the close of
business on each day during each calendar quarter. Such fees shall be due in
arrears on the last Business Day of each March, June, September and December
commencing December 31, 1998 to and on the Revolving Credit Termination Date.
Notwithstanding the foregoing, so long as any Lender fails to make available any
portion of its Revolving Credit Commitment when requested, such Lender shall not
be entitled to receive payment of its pro rata share of such fee until such
Lender shall make available such portion. Such fee shall be calculated on the
basis of a year of 360 days for the actual number of days elapsed.
2.11. DEFICIENCY ADVANCES; FAILURE TO PURCHASE PARTICIPATIONS. No
Lender shall be responsible for any default of any other Lender in respect to
such other Lender's obligation to make any Revolving Loan hereunder or fund its
purchase of any Participation hereunder nor shall the Revolving Credit
Commitment of any Lender hereunder be increased as a result of such default of
any other Lender. Without limiting the generality of the foregoing, in the event
any Lender shall fail to advance funds to the Borrower as herein provided, the
Agent may in its discre tion, but shall not be obligated to, advance under the
applicable Revolving Note in its favor as a Lender all or any portion of such
amount or amounts (each, a "deficiency advance") and shall thereafter be
entitled to payments of principal of and interest on such deficiency advance in
the same manner and at the same interest rate or rates to which such other
Lender would have been entitled had it made such Advance under its Revolving
Note; provided that, (i) such defaulting Lender shall not be entitled to receive
payments of principal, interest or fees with respect to such deficiency advance
until such deficiency advance shall be paid by such Lender and (ii) upon payment
to the Agent from such other Lender of the entire outstanding amount of each
such deficiency advance, together with accrued and unpaid interest thereon, from
the most recent date or dates interest was paid to the Agent by the Borrower on
each Loan comprising the deficiency advance at the interest rate per annum for
overnight borrowing by the Agent from the Federal Reserve Bank, then such
payment shall be credited against the applicable Revolving Note of the
Borrower in full payment
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of such deficiency advance and the Borrower shall be deemed to have borrowed the
amount of such deficiency advance from such other Lender as of the most recent
date or dates, as the case may be, upon which any payments of interest were made
by such Borrower thereon. In the event any Lender shall fail to fund its
purchase of a Participation after notice from the Issuing Bank or NationsBank,
as the Swing Line lender, as applicable, such Lender shall pay to the Issuing
Bank or NationsBank, as the Swing Line lender, as applicable, interest on the
amount so due from the date of such notice at the interest rate per annum for
overnight borrowing by the Agent from the Federal Reserve Bank to the date such
purchase price is received by the Issuing Bank or NationsBank, as the Swing Line
lender, as applicable.
2.12. USE OF PROCEEDS. The proceeds of the Loans made pursuant to the
Revolving Credit Facility hereunder shall be used by the Borrower for general
working capital needs and other partnership purposes, including the making of
acquisitions of Qualifying Properties.
2.13. MANDATORY PREPAYMENTS OF REVOLVING LOANS. In addition to the
required payments of principal of the Revolving Loans set forth in SECTION 2.3
and any optional payments of principal of the Revolving Loans effected under
SECTIONS 2.3 AND 2.7, the Borrower shall make the following required
prepayments, which prepayments shall not result in a permanent reduction of the
Total Revolving Credit Commitment, each such prepayment to be made to the Agent
for the benefit of the Lenders within the time period specified below:
(a) In the event that the Borrower determines to dispose of a Pledged
Property constituting a part of the Pledge Pool, in accordance with the
provisions of SECTION 4.4(B), and (A) fails to provide a substitute
Pledged Property or (B) provides a substitute Pledged Property having
an Appraised Value that is less than the Appraised Value of the Pledged
Property being disposed, then the Borrower shall make, or shall cause
any Guarantor, as applicable, to make, a payment from the Net Proceeds
of the disposition of such Pledged Property in an amount equal (i) 100%
of such Net Proceeds, in the case of (A) above, or (ii) the difference
between the Appraised Value of the disposed Pledged Property and the
substitute Pledged Property, in the case of (B) above, PLUS, in either
case, any other amount necessary to cause the amount of Outstandings
not to exceed the Borrowing Base as of the date of such disposition.
Each such payment shall be made within 15 Business Days of receipt of
such Net Proceeds and upon not less than three Business Days' written
notice to the Agent, which notice shall include a certificate of an
Authorized Representative setting forth in reasonable detail the
calculations utilized in computing the amount of Net Proceeds.
(b) The Borrower shall make, or shall cause each applicable Guarantor,
to make, a payment from the Net Proceeds from each private or public
offering of the equity securities of the Borrower or such Guarantor in
an amount equal to 100% of such Net Proceeds, each such payment to be
made within ten Business Days of receipt of such Net Proceeds and upon
not less than three Business Days' written notice to the Agent, which
notice shall include a certificate of an Authorized Representative
setting forth in reasonable detail the calculations used in computing
the amount of such payment.
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(c) In the event (i) of damage, destruction or condemnation of any
Pledged Property or portion thereof for which the Borrower reasonably
estimates the cost of rebuilding, restoration or repair of such Pledged
Property to be $250,000 or more, (ii) the Agent shall not have received
from the Borrower a certificate satisfying the requirements of either
SECTION 4.7(A) through (D) or SECTION 7.2(A) through (G) of the
Mortgage, and (iii) there shall not have been deposited with the Agent
the amounts necessary to fully pay for the restoration, repair or
replacement of the Mortgaged Property, then the Agent shall have the
right, at its option, to order an appraisal by a Qualified Appraiser
(or other evidence of value acceptable in the Agent's sole discretion)
of such Pledged Property, in the Borrower's name and at its sole
expense. Within 15 Business Days of the Agent's receipt of such
appraisal, the Borrower shall make, or shall cause any Guarantor, as
applicable, to make, a payment of principal of the Loans to the Agent
in an amount equal to the difference, if any, between the Borrowing
Base adjusted to give effect to the Appraised Value of such Pledged
Property giving effect to such damage, destruction or condemnation, and
the Outstandings, to the extent the Outstandings shall exceed the
adjusted Borrowing Base.
2.14. SWING LINE. (a) Notwithstanding any other provision of this
Agreement to the contrary, in order to administer the Revolving Credit Facility
in an efficient manner and to minimize the transfer of funds between the Agent
and the Lenders, NationsBank shall make available Swing Line Loans to the
Borrower prior to the Revolving Credit Termination Date. NationsBank shall not
be obligated to make any Swing Line Loan pursuant hereto (i) if to the actual
knowledge of NationsBank the Borrower is not in compliance with all the
conditions to the making of Loans set forth in this Agreement, (ii) if after
giving effect to such Swing Line Loan, the Swing Line Outstandings exceed
$5,000,000, or (iii) if after giving effect to such Swing Line Loan, the sum of
the Swing Line Outstandings, Revolving Credit Outstandings and Letter of Credit
Outstandings exceeds the lesser of (A) the Total Revolving Credit Commitment or
(B) the Borrowing Base. Swing Line Loans shall bear interest at the Base Rate or
Adjusted CD Rate, as selected by the Borrower in a Borrowing Notice. The
Borrower may borrow, repay and reborrow under this SECTION 2.14. Unless notified
to the contrary by NationsBank, borrowings under the Swing Line shall be made in
the minimum amount of $200,000 or in the amount necessary to effect a Base Rate
Refunding Loan, upon written request by telefacsimile transmission, effective
upon receipt, by an Authorized Representative of the Borrower made to
NationsBank not later than 12:30 P.M. on the Business Day of the requested
borrowing. Each such Borrowing Notice shall specify the amount of the borrowing,
the interest rate selected (Base Rate or Adjusted CD Rate) and the date of
borrowing, and shall be in the form of EXHIBIT D-2, with appropriate insert
ions. Unless notified to the contrary by NationsBank, each repayment of a Swing
Line Loan shall be in an amount which is an integral multiple of $200,000 or the
aggregate amount of all Swing Line Outstandings. If the Borrower instructs
NationsBank to debit any demand deposit account of the Borrower in the amount of
any payment with respect to a Swing Line Loan, or NationsBank otherwise receives
repayment, after 12:30 P.M. on a Business Day, such payment shall be deemed
received on the next Business Day.
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(b) Swing Line Loans shall bear interest at the Base Rate or the
Adjusted CD Rate, the interest payable on Swing Line Loans is solely for the
account of NationsBank, and all accrued and unpaid interest on Swing Line Loans
shall be payable on the dates and in the manner provided in SECTIONS 2.2(B) AND
2.4 with respect to interest on Revolving Loans. The Swing Line Outstandings
shall be evidenced by the Swing Line Note.
(c) Upon the making of a Swing Line Loan, each Lender shall be deemed
to have purchased from NationsBank a Participation therein in an amount equal to
that Lender's Applicable Commitment Percentage of such Swing Line Loan. Upon
demand made by NationsBank, each Lender shall, according to its Applicable
Commitment Percentage of such Swing Line Loan, promptly provide to NationsBank
its purchase price therefor in an amount equal to its Participation therein. Any
Advance made by a Lender pursuant to demand of NationsBank of the purchase price
of its Participation shall be deemed (i) provided that the conditions to making
Loans shall be satisfied, a Base Rate Refunding Loan under SECTION 2.1 until the
Borrower Converts such Base Rate Loan in accordance with the terms of SECTION
2.8, and (ii) in all other cases, the funding by each Lender of the purchase
price of its Participation in such Swing Line Loan. The obligation of each
Lender to so provide its purchase price to NationsBank shall be absolute and
unconditional and shall not be affected by the occurrence of an Event of Default
or any other occurrence or event.
The Borrower, at its option and subject to the terms hereof, may
request an Advance pursuant to SECTION 2.1 in an amount sufficient to repay
Swing Line Outstandings on any date and the Agent shall provide from the
proceeds of such Advance to NationsBank the amount necessary to repay such Swing
Line Outstandings (which NationsBank shall then apply to such repayment) and
credit any balance of the Advance in immediately available funds in the manner
directed by the Borrower pursuant to SECTION 2.1(C)(II). The proceeds of such
Advances shall be paid to NationsBank for application to the Swing Line
Outstandings and the Lenders shall then be deemed to have made Revolving Loans
in the amount of such Advances. The Swing Line shall continue in effect until
the Revolving Credit Termination Date, at which time all Swing Line Outstandings
and accrued interest thereon shall be due and payable in full.
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ARTICLE III
LETTERS OF CREDIT
3.1. LETTERS OF CREDIT. The Issuing Bank agrees, subject to the terms
and conditions of this Agreement, upon request of the Borrower to issue from
time to time for the account of the Borrower Letters of Credit upon delivery to
the Issuing Bank of an Application and Agreement for Letter of Credit relating
thereto in form and content acceptable to the Issuing Bank; PROVIDED, that (i)
the Letter of Credit Outstandings shall not exceed the Total Letter of Credit
Commitment and (ii) no Letter of Credit shall be issued if, after giving effect
thereto, Letter of Credit Outstandings plus Revolving Credit Outstandings plus
Swing Line Outstandings shall exceed the lesser of (A) the Total Revolving
Credit Commitment or (B) the Borrowing Base. No Letter of Credit shall have an
expiry date (including all rights of the Borrower or any beneficiary named in
such Letter of Credit to require renewal) or payment date occurring later than
the earlier to occur of one year after the date of its issuance or the fifth
Business Day prior to the Stated Termination Date.
3.2. REIMBURSEMENT.
(a) The Borrower hereby unconditionally agrees to pay to the
Issuing Bank immediately on demand at the Principal Office all amounts required
to pay all drafts drawn or purporting to be drawn under the Letters of Credit
and all reasonable expenses incurred by the Issuing Bank in connection with the
Letters of Credit, and in any event and without demand to place in possession of
the Issuing Bank (which shall include Advances under the Revolving Credit
Facility if permitted by SECTION 2.1 and Swing Line Loans if permitted by
SECTION 2.14) sufficient funds to pay all debts and liabilities arising under
any Letter of Credit. The Issuing Bank agrees to give the Borrower prompt notice
of any request for a draw under a Letter of Credit. The Issuing Bank may charge
any account the Borrower may have with it for any and all amounts the Issuing
Bank pays under a Letter of Credit, plus charges and reasonable expenses as from
time to time agreed to by the Issuing Bank and the Borrower; provided that to
the extent permitted by SECTION 2.1(C)(IV) and SECTION 2.14, amounts shall be
paid pursuant to Advances under the Revolving Credit Facility or, if the
Borrower shall elect, by Swing Line Loans. The Borrower agrees to pay the
Issuing Bank interest on any Reimbursement Obligations not paid when due
hereunder at the Default Rate, such rate to be calculated on the basis of a year
of 360 days for actual days elapsed, commencing on the date of such drawing
until such Reimbursement Obligation is so paid by direct reimbursement by the
Borrower or by a Base Rate Refunding Loan.
(b) In accordance with the provisions of SECTION 2.1(C), the
Issuing Bank shall notify the Agent of any drawing under any Letter of Credit
promptly following the receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing Bank) shall
automatically acquire on the date of issuance thereof, a Participation in the
liability of the Issuing Bank in respect of each
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Letter of Credit in an amount equal to such Lender's Applicable Commitment
Percentage of such liability, and to the extent that the Borrower is obligated
to pay the Issuing Bank under SECTION 3.2(A), each Lender (other than the
Issuing Bank) thereby shall absolutely, unconditionally and irrevocably assume,
and shall be unconditionally obligated to pay to the Issuing Bank as hereinafter
described, its Applicable Commitment Percentage of the liability of the Issuing
Bank under such Letter of Credit.
(i) Each Lender (including the Issuing Bank in its
capacity as a Lender) shall, subject to the terms and
conditions of ARTICLE II, pay to the Agent for the account of
the Issuing Bank at the Principal Office in Dollars and in
immediately available funds, an amount equal to its Applicable
Commitment Percentage of any drawing under a Letter of Credit,
such funds to be provided in the manner described in SECTION
2.1(C)(IV).
(ii) Simultaneously with the making of each payment
by a Lender to the Issuing Bank pursuant to SECTION
2.1(C)(IV)(B), such Lender shall, automatically and without
any further action on the part of the Issuing Bank or such
Lender, acquire a Participation in an amount equal to such
payment (excluding the portion thereof constituting interest
accrued prior to the date the Lender made its payment) in the
related Reimbursement Obligation of the Borrower. The
Reimbursement Obligations of the Borrower shall be immediately
due and payable whether by Advances made in accordance with
SECTION 2.1(C)(IV), Swing Line Loans made in accordance with
SECTION 2.14, or otherwise.
(iii) Each Lender's obligation to make payment to the
Agent for the account of the Issuing Bank pursuant to SECTION
2.1(C)(IV) and this SECTION 3.2(C), and the right of the
Issuing Bank to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance
whatsoever and shall be made without any offset, abatement,
withholding or reduction whatsoever. If any Lender is
obligated to pay but does not pay amounts to the Agent for the
account of the Issuing Bank in full upon such request as
required by SECTION 2.1(C)(IV) or this SECTION 3.2(C), such
Lender shall, on demand, pay to the Agent for the account of
the Issuing Bank interest on the unpaid amount for each day
during the period commencing on the date of notice given to
such Lender pursuant to SECTION 2.1(C) until such Lender pays
such amount to the Agent for the account of the Issuing Bank
in full at the interest rate per annum for overnight borrowing
by the Agent from the Federal Reserve Bank.
(iv) In the event the Lenders have purchased
Participations in any Reimbursement Obligation as set forth in
clause (ii) above, then at any time payment (in fully
collected, immediately available funds) of such Reimbursement
Obligation, in whole or in part, is received by Issuing Bank
from the Borrower, Issuing Bank shall promptly pay to each
Lender an amount equal to its Applicable Commitment Percentage
of such payment from the Borrower.
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(d) Promptly following the end of each calendar quarter, the
Issuing Bank shall deliver to the Agent a notice describing the aggregate
undrawn amount of all Letters of Credit at the end of such quarter. Upon the
request of any Lender from time to time, the Issuing Bank shall deliver to the
Agent, and the Agent shall deliver to such Lender, any other information
reasonably requested by such Lender with respect to each Letter of Credit
outstanding.
(e) The issuance by the Issuing Bank of each Letter of Credit
shall, in addition to the conditions precedent set forth in ARTICLE VII, be
subject to the conditions that such Letter of Credit be in such form and contain
such terms as shall be reasonably satisfactory to the Issuing Bank consistent
with the then current practices and procedures of the Issuing Bank with respect
to similar letters of credit, and the Borrower shall have executed and delivered
such other instruments and agreements relating to such Letters of Credit as the
Issuing Bank shall have reasonably requested consistent with such practices and
procedures and shall not be in conflict with any of the express terms herein
contained. All Letters of Credit shall be issued pursuant to and subject to the
Uniform Customs and Practice for Documentary Credits, 1993 revision,
International Chamber of Commerce Publication No. 500 and all subsequent
amendments and revisions thereto.
(f) The Borrower agrees that the Issuing Bank may, in its sole
discretion, accept or pay, as complying with the terms of any Letter of Credit,
any drafts or other documents otherwise in order which may be signed or issued
by an administrator, executor, trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, liquidator, receiver, attorney in fact or
other legal representative of a party who is authorized under such Letter of
Credit to draw or issue any drafts or other documents.
(g) Without limiting the generality of the provisions of
SECTION 13.9, the Borrower hereby agrees to indemnify and hold harmless the
Issuing Bank, each other Lender and the Agent from and against any and all
claims and damages, losses, liabilities, reasonable costs and expenses which the
Issuing Bank, such other Lender or the Agent may incur (or which may be claimed
against the Issuing Bank, such other Lender or the Agent) by any Person by
reason of or in connection with the issuance or transfer of or payment or
failure to pay under any Letter of Credit; provided that the Borrower shall not
be required to indemnify the Issuing Bank, any other Lender or the Agent for any
claims, damages, losses, liabilities, costs or expenses to the extent, but only
to the extent, (i) caused by the willful misconduct or gross negligence of the
party to be indemnified or (ii) caused by the failure of the Issuing Bank to pay
under any Letter of Credit after the presentation to it of a request for payment
strictly complying with the terms and conditions of such Letter of Credit,
unless such payment is prohibited by any law, regulation, court order or decree.
The indemnification and hold harmless provisions of this SECTION 3.2(G) shall
survive repayment of the Obligations, occurrence of the Revolving Credit
Termination Date and expiration or termination of this Agreement.
(h) Without limiting the Borrower's rights as set forth in
SECTION 3.2(G), the obligation of the Borrower to immediately reimburse the
Issuing Bank for drawings made under
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Letters of Credit and the Issuing Bank's right to receive such payment shall be
absolute, unconditional and irrevocable, and that such obligations of the
Borrower shall be performed strictly in accordance with the terms of this
Agreement and such Letters of Credit and the related Applications and Agreement
for any Letter of Credit, under all circumstances whatsoever, including the
following circumstances:
(i) any lack of validity or enforceability of the
Letter of Credit, the obligation supported by the Letter of
Credit or any other agreement or instrument relating thereto
(collectively, the "Related LC Documents");
(ii) any amendment or waiver of or any consent to or
departure from all or any of the Related LC Documents;
(iii) the existence of any claim, setoff, defense
(other than the defense of payment in accordance with the
terms of this Agreement) or other rights which the Borrower
may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any persons or entities for whom any
such beneficiary or any such transferee may be acting), the
Agent, the Lenders or any other Person, whether in connection
with the Loan Documents, the Related LC Documents or any
unrelated transaction;
(iv) any breach of contract or other dispute between
the Borrower and any beneficiary or any transferee of a Letter
of Credit (or any persons or entities for whom such
beneficiary or any such transferee may be acting), the Agent,
the Lenders or any other Person;
(v) any draft, statement or any other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
whatsoever;
(vi) any delay, extension of time, renewal,
compromise or other indulgence or modification granted or
agreed to by the Agent, with or without notice to or approval
by the Borrower in respect of any of the Borrower's
Obligations under this Agreement; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing.
3.3. LETTER OF CREDIT FACILITY FEES. The Borrower shall pay to (i) the
Agent, for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages, a fee on the aggregate amount available to be drawn on
each outstanding Letter of Credit at a rate equal to the Applicable Margin for
Eurodollar Rate Loans and (ii) the Issuing Bank, 0.125% based on the aggregate
amount available to be drawn on each outstanding Letter of Credit. Such fees
shall be
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due with respect to each Letter of Credit quarterly in arrears on the last
Business Day of each March, June, September and December, the first such payment
to be made on the first such date occurring after the date of issuance of a
Letter of Credit. The fees described in this SECTION 3.3 shall be calculated on
the basis of a year of 360 days for the actual number of days elapsed.
3.4. ADMINISTRATIVE FEES. The Borrower shall pay to the Issuing Bank
such other administrative fee and other fees, if any, in connection with the
Letters of Credit in such amounts and at such times as the Issuing Bank and the
Borrower shall agree from time to time.
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ARTICLE IV
SECURITY
4.1. SECURITY. As security for the full and timely payment and
performance of all Obligations, the Credit Parties shall on or before the
Closing Date do or cause to be done all things necessary in the opinion of the
Agent and its counsel to grant to the Agent for the benefit of the Lenders a
duly perfected first priority mortgage and/or security interest in all
Collateral subject to no prior Lien or other encumbrance or restriction on
transfer (other than restrictions on transfer imposed by applicable securities
laws).
4.2. FURTHER ASSURANCES. At the request of the Agent, the Borrower will
or will cause any Guarantor, as the case may be to execute, by its duly
authorized officers, alone or with the Agent, any certificate, instrument,
statement or document, or to procure any such certificate, instrument, statement
or document, or to take such other action (and pay all connected costs) which
the Agent reasonably deems necessary from time to time to create, continue or
preserve the liens and security interests in Collateral (and the perfection and
priority thereof) of the Agent contemplated hereby and by the other Loan
Documents and specifically including all Collateral acquired by the Borrower or
any Guarantor after the Closing Date.
4.3. INFORMATION REGARDING COLLATERAL. The Borrower represents,
warrants and covenants that (i) the chief executive office of the Borrower and
each other Person providing Collateral pursuant to a Security Instrument (each,
a "Grantor") at the Closing Date is located at the address or addresses
specified on SCHEDULE 4.3, and (ii) SCHEDULE 4.3 contains a true and complete
list of (a) the name and address of each Grantor and of each other Person that
has effected any merger or consolidation with a Grantor or contributed or
transferred to a Grantor any property constituting Collateral at any time since
January 1, 1998, (b) each location of the chief executive office of each Grantor
at any time since January 1, 1998, (c) the street address and legal description
of each Initial Property, (d) the street address and legal description of each
Pledged Property, (e) the street address of each Pledged Property included in
the Pledge Pool, and (f) the Security Leases. The Borrower shall not change, or,
permit any other Grantor to change, the location of its chief executive office
except upon giving not less than thirty (30) days' prior written notice to the
Agent and taking or causing to be taken all such action at the Borrower's or
such other Grantor's expense as may be reasonably requested by the Agent to
perfect or maintain the perfection of the Lien of the Agent in Collateral.
4.4. PLEDGE POOL. (a) Upon the request of the Borrower, any Eligible
Property may become a Pledged Property and be included in the Pledge Pool upon
receipt by the Agent of (A) a pro forma Compliance Certificate giving effect to
the inclusion of such Eligible Property in the Pledged Pool with respect to such
Eligible Property, including a calculation of Annualized EBITDA; (B) a Borrowing
Base Certificate in the form of EXHIBIT J; (C) historical (to extent such
Property has been operational for a calendar quarter or more) and pro forma
operating statements and occupancy reports (to the extent such statements or
reports exist, the Borrower hereby acknowledging that the absence of such
statements or reports may impair the ability to obtain
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Required Lender approval) with respect to such Eligible Property (unless such
Property is subject to a Lease with a Pre-Approved Lessee); (D) a Phase I
environmental assessment (and, if required or recommended by the results of the
Phase I environmental assessment, a Phase II environmental assessment) with
respect to such Eligible Property; (E) a site plan and as-built survey and
certificates as to federally designated flood zones with respect to such
Eligible Property; (F) a title insurance commitment for an ALTA Lender's title
insurance policy with respect to such Eligible Property in an amount acceptable
to the Agent insuring fee simple title to such Eligible Property and reflecting
no title exceptions other than Permitted Encumbrances; (G) an appraisal by a
Qualified Appraiser of such Eligible Property, meeting the requirements set
forth in SCHEDULE 4.4 hereto ordered by the Agent (in the name of and at the
sole expense of the Borrower); (H) the Security Lease for such Eligible Property
and any sublease of the same in form and substance satisfactory to the Agent;
(I) the management or operating agreement, if any, with the Contract Party for
such Eligible Property, in form and substance satisfactory to the Agent; (J) an
Eligible Property Compliance Certificate for such Eligible Property,
satisfactory to the Agent; (K) evidence of insurance for such Eligible Property
as required by SECTION 9.5 and by the Mortgage; and (L) a general description of
such Eligible Property's location and features. The Agent shall make its
determination as to the inclusion in the Pledge Pool of any Eligible Property
qualifying as such by compliance with items (a)-(g) of the definition of
"Eligible Property" within 10 Business Days of receipt by the Agent of the
Borrower's request therefor together with the documentation described in this
SECTION 4.4. The Required Lenders shall make their determination as to the
inclusion in the Pledge Pool of any Eligible Property qualifying as such under
item (h) of the definition of "Eligible Property" within 15 Business Days of
receipt by the Agent of the Borrower's request therefor together with the
documentation described in this SECTION 4.4. Upon the approval by the Agent of
the inclusion of such Eligible Property in the Pledge Pool, the Borrower or
applicable Credit Party shall execute or cause to be executed a Mortgage with
respect to such Eligible Property, and, if such Eligible Property is subject to
a lease, an Assignment of Leases. Upon execution, delivery and recordation, as
applicable, of the Mortgage, the Assignment of Leases and the Lease Party
Documents relating to such Eligible Property and any other documents required by
the Agent and delivery of the title policy insuring the lien of the Mortgage as
described above and an opinion of special local counsel in the form of EXHIBIT
G-2, such Eligible Property shall become a part of the Pledge Pool and the
Borrower shall deliver to the Agent an updated SCHEDULE 4.3 reflecting such
additional Pledged Property.
(b) Upon request of the Borrower, any Pledged Property may be released
from the Pledge Pool and the Mortgage provided: (i) the Borrower provides
evidence to the Agent that such Pledged Property will be sold by the Borrower or
other Credit Party on an "arm's length" basis; (ii) either (A) the Borrower
causes another Eligible Property of equal or greater Appraised Value to become
included in the Pledge Pool in substitution for such released Pledged Property,
(B) the Borrower causes another Eligible Property of lesser Appraised Value to
become included in the Pledge Pool and Net Proceeds from the sale of such
Pledged Property in the amount of the difference in such Appraised Values,
together with any other funds necessary, are delivered to the Agent for the
prepayment of Revolving Loans as provided in SECTION 2.13, or (C) 100% of the
Net Proceeds from the sale of such Pledged Property, together with any other
funds necessary, are delivered to the Agent for the prepayment of Revolving
Loans as provided in SECTION 2.13;
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(iii) the Borrower delivers to the Agent a pro forma Compliance Certificate
giving effect to such disposition; (iv) the Borrower delivers to the Agent an
updated SCHEDULE 4.3 reflecting the release of such Pledged Property; and (v) no
Default or Event of Default has occurred or is continuing. All costs, expenses
and attorneys' fees incurred by the Agent or the Trustee under the Mortgage in
connection with the release of any Pledged Property pursuant to this SECTION
4.4(B) shall be reimbursed by the Borrower pursuant to SECTION 13.5 hereof. No
Pledged Property will be released from the Pledge Pool until the Agent has
received the amount of funds, if any, required by this SECTION 4.4(B), together
with any amounts required, if any, owing under SECTION 6.5.
(c) In the event that there shall be made any Addition or Enhancement
to a Pledged Property, the Borrower shall deliver to the Agent (A) an appraisal
by a Qualified Appraiser of such Pledged Property, including the Addition or
Enhancement thereto, (B) if the Addition or Enhancement includes additional real
property (either leased or in fee), a modification to the related Mortgage
amending the legal description of such Pledged Property to include such
additional real property; (C) an endorsement to the existing title insurance
policy covering such Pledged Property adding the Addition or Enhancement to the
description of the insured property (if the Addition or Enhancement includes
additional real property), increasing the amount of such title insurance to
reflect the increase in value and updating the time and date of such policy to
the time and date of recording of the modification to the related Mortgage
described in (B) above and reflecting no title exceptions other than Permitted
Encumbrances, (D) an amendment to the related Security Lease to include the
Addition or Enhancement and increasing the base rental payments as required
under SECTION 10.2, in form and content acceptable to the Agent, and (E) a copy
of any amendment to the related management or operating agreement, if any.
(d) For purposes of calculating the Appraised Value of the Pledged
Properties included in the Pledge Pool, the Borrower shall comply with the
Appraisal Requirements set forth in SCHEDULE 4.4 attached hereto. The Lenders
agree that the Agent and the Borrower may from time to time modify or amend the
Appraisal Requirements so long as such modification or amendment does not
adversely affect the interest of the Lenders hereunder.
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ARTICLE V
FACILITY GUARANTY
5.1. FACILITY GUARANTY. CPV hereby unconditionally, absolutely,
continually and irrevocably guarantees to the Agent and the Lenders
(collectively, the "Secured Parties") the payment and performance in full of (a)
the Borrower's prompt payment in full, when due or declared due and at all such
times, of all Obligations and all other amounts pursuant to the terms hereof,
the Notes, and all other Loan Documents and all Rate Hedging Obligations
heretofore, now or at any time or times hereafter owing, arising, due or payable
from the Borrower to any one or more of the Secured Parties, including without
limitation principal, interest, premium or fee (including, but not limited to,
loan fees and attorneys' fees and expenses); and (b) the Borrower's prompt, full
and faithful performance, observance and discharge of each and every agreement,
undertaking, covenant and provision to be performed, observed or discharged by
the Borrower hereunder and all other Loan Documents; and (c) the Borrower's
prompt payment in full, when due or declared due and at all such times, of Rate
Hedging Obligations arising under Swap Agreements (collectively, the
"Guarantor's Obligations"); PROVIDED, HOWEVER, that the liability of CPV with
respect to the Guarantors' Obligations shall be limited to an aggregate amount
equal to the largest amount that would not render its obligations hereunder
subject to avoidance under Section 548 of the United States Bankruptcy Code or
any comparable provisions of any applicable state law.
5.2. PAYMENT. If the Borrower shall default in payment or performance
of any of the Obligations, whether principal, interest, premium, fee (including,
but not limited to, loan fees and attorneys' fees and expenses), or otherwise,
when and as the same shall become due, whether according to the terms hereof, by
acceleration, or otherwise, or upon the occurrence of any Event of Default
hereunder that has not been cured or waived, then CPV shall, upon demand thereof
by the Agent or its successors or assigns AS OF THE DATE OF SUCH DEMAND, fully
pay to the Agent, for the benefit of the Secured Parties, subject to any
restriction set forth in SECTION 5.1, an amount equal to all of the Guarantor's
Obligations then due and owing.
5.3. GUARANTY ABSOLUTE. The guaranty made under this ARTICLE V is a
guaranty of payment and not of collection. The Guarantor's Obligations shall be
absolute and unconditional irrespective of the validity, legality or
enforceability of this Credit Agreement, the Notes or any other Loan Document or
any other guaranty of the Borrower's Obligations, and shall not be affected by
any action taken under this Credit Agreement, the Notes or any other Loan
Document, any other guaranty of the Borrower's Obligations, or any other
agreement between any Secured Party and the Borrower or any other Person, in the
exercise of any right or power therein conferred, or by any failure or omission
to enforce any right conferred thereby, or by any waiver of any covenant or
condition therein provided, or by any acceleration of the maturity of any of the
Borrower's Obligations, or by the release or other disposal of any security for
any of the Borrower's Obligations, or by the dissolution of the Borrower or the
combination or consolidation of the Borrower into or with another entity or any
transfer or disposition of any assets of the Borrower or by any extension or
renewal of this Credit Agreement, any of the Notes or any other
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Loan Document, in whole or in part, or by any modification, alteration,
amendment or addition of or to this Credit Agreement, any of the Notes or any
other Loan Document, any other guaranty of the Borrower's Obligations, or any
other agreement between any Secured Party and the Borrower or any other Person,
or by any other circumstance whatsoever (with or without notice to or knowledge
of CPV) which may or might in any manner or to any extent vary the risks of CPV,
or might otherwise constitute a legal or equitable discharge of a surety or a
guarantor; it being the purpose and intent of the parties hereto that the
guaranty made under this ARTICLE V shall be absolute and unconditional under any
and all circumstances and shall not be discharged except by payment as herein
provided.
5.4. REINSTATEMENT. CPV agrees that the guaranty made under this
ARTICLE V shall continue to be effective or be reinstated, as the case may be,
at any time payment received by the Agent under this Credit Agreement is
rescinded or must be restored for any reason.
5.5. WAIVER; SUBROGATION.
(a) CPV hereby waives notice of the following events or occurrences:
(i) the Lenders' heretofore, now or from time to time hereafter making Advances
and issuing Letters of Credit and otherwise loaning monies or giving or
extending credit to or for the benefit of the Borrower, whether pursuant to this
Credit Agreement or the Notes or any other Loan Document or any amendments,
modifications, or supplements thereto, or replacements or extensions thereof;
(ii) the Secured Parties or the Borrower heretofore, now or at any time
hereafter, obtaining, amending, substituting for, releasing, waiving or
modifying this Credit Agreement, the Notes or any other Loan Documents; (iii)
presentment, demand, default, non-payment, partial payment and protest; (iv) any
Secured Party heretofore, now or at any time hereafter granting to the Borrower
(or any other party liable to the Secured Parties on account of the Borrower's
Obligations) or to any other Guarantor any indulgence or extensions of time of
payment of the Borrower's Obligations, and (v) any Secured Party heretofore, now
or at any time hereafter accepting from the Borrower, any other Guarantor or any
other Person, any partial payment or payments on account of the Borrower's
Obligations or any collateral securing the payment thereof or the Agent
settling, subordinating, compromising, discharging or releasing the same.
(b) CPV hereby agrees that payment or performance by CPV of the
guaranty made under this ARTICLE V may be enforced by the Agent on behalf of the
Secured Parties upon demand by the Agent to CPV without the Agent being
required, CPV expressly waiving any right it may have to require the Agent, to
(i) prosecute collection or seek to enforce or resort to any remedies against
the Borrower or any other Guarantor, or (ii) seek to enforce or resort to any
remedies with respect to any security interests, Liens or encumbrances granted
to the Agent by the Borrower, any other Guarantor or any other Person on account
of the Borrower's Obligations or any guaranty thereof, IT BEING EXPRESSLY
UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY CPV THAT DEMAND UNDER THIS ARTICLE V
MAY BE MADE BY THE AGENT, AND THE PROVISIONS HEREOF ENFORCED BY THE AGENT,
EFFECTIVE AS OF THE FIRST DATE ANY EVENT OF DEFAULT OCCURS AND IS CONTINUING
UNDER THIS CREDIT AGREEMENT. Neither the Agent nor any Lender shall have any
obligation to
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protect, secure or insure any of the foregoing security interests, Liens or
encumbrances on the properties or interests in properties subject thereto.
(c) CPV further agrees that it shall have no right of subrogation
(unless and until the occurrence of the Facility Termination Date),
reimbursement or indemnity, nor any right of recourse to security for the
Borrower's Obligations. This agreement is expressly intended to prevent the
existence of any claim in respect to such reimbursement by CPV against the
estate of the Borrower within the meaning of Section 101 of the Bankruptcy Code,
and to prevent CPV from constituting a creditor of the Borrower in respect of
such reimbursement within the meaning of Section 547(b) of the Bankruptcy Code
in the event of a subsequent case involving the Borrower. If an amount shall be
paid to CPV on account of such subrogation rights at any time prior to
termination of this Credit Agreement in accordance with the provisions of
SECTION 13.8, such amount shall be held in trust for the benefit of the Secured
Parties and shall forthwith be paid to the Agent, for the benefit of the Secured
Parties, to be credited and applied upon the Guarantor's Obligations, whether
matured or unmatured, in accordance with the terms of this Credit Agreement.
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ARTICLE VI
CHANGE IN CIRCUMSTANCES
6.1. INCREASED COST AND REDUCED RETURN.
(a) If, after the date hereof, the adoption of any applicable law,
rule, or regulation, or any change in any applicable law, rule, or regulation,
or any change in the interpretation or administration thereof by any
governmental authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
Applicable Lending Office) with any request or directive (whether or not having
the force of law) of any such governmental authority, central bank, or
comparable agency:
(i) shall subject such Lender (or its Applicable
Lending Office) to any tax, duty, or other charge with respect to any
Eurodollar Rate Loans, its Revolving Note, or its obligation to make
Eurodollar Rate Loans, or change the basis of taxation of any amounts
payable to such Lender (or its Applicable Lending Office) under this
Agreement or its Revolving Note in respect of any Eurodollar Rate Loans
(other than taxes imposed on the overall net income of such Lender by
the jurisdiction in which such Lender has its principal office or such
Applicable Lending Office and franchise taxes);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, or similar requirement (other
than the Reserve Requirement utilized in the determination of the
Eurodollar Rate) relating to any extensions of credit or other assets
of, or any deposits with or other liabilities or commitments of, such
Lender (or its Applicable Lending Office), including the Revolving
Credit Commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable
Lending Office) or on the London interbank market any other condition
affecting this Agreement or its Revolving Note or any of such
extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Loans or to reduce any sum received or receivable by such Lender
(or its Applicable Lending Office) under this Agreement or its Revolving Note
with respect to any Eurodollar Rate Loans, then the Borrower shall pay to such
Lender on demand such amount or amounts as will compensate such Lender for such
increased cost or reduction. If any Lender requests compensation by the Borrower
under this SECTION 6.1(A), the Borrower may, by notice to such Lender (with a
copy to the Agent), suspend the obligation of such Lender to make or Continue
Loans of the Type with respect to which such compensation is requested, or to
Convert Loans of any other Type into Loans of such Type, until the event or
condition giving rise to such request ceases to be in effect (in which case the
provisions of SECTION 6.4 shall be applicable); PROVIDED that such suspension
shall not affect the right of such Lender to receive the compensation so
requested.
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(b) If, after the date hereof, any Lender shall have determined that
the adoption of any applicable law, rule, or regulation regarding capital
adequacy or any change therein or in the interpretation or administration
thereof by any governmental authority, central bank, or comparable agency
charged with the interpretation or administration thereof, or any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such governmental authority, central bank, or comparable agency, has or
would have the effect of reducing the rate of return on the capital of such
Lender or any corporation controlling such Lender as a consequence of such
Lender's obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change, request, or
directive (taking into consideration its policies with respect to capital
adequacy), then from time to time upon demand the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction.
(c) Each Lender shall promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Lender to compensation pursuant to this SECTION 6.1 and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Lender, be otherwise disadvantageous to it. Any Lender claiming
compensation under this SECTION 6.1 shall furnish to the Borrower and the Agent
a statement setting forth the additional amount or amounts to be paid to it
hereunder which shall be conclusive in the absence of manifest error. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods.
6.2. LIMITATION ON TYPES OF LOANS. If on or prior to the first day of
any Interest Period for any Eurodollar Rate Loan:
(a) the Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period; or
(b) the Majority Lenders determine (which determination shall
be conclusive) and notify the Agent that the Eurodollar Rate will not
adequately and fairly reflect the cost to the Lenders of funding
Eurodollar Rate Loans for such Interest Period;
then the Agent shall give the Borrower prompt notice thereof specifying the
relevant Type of Loans and the relevant amounts or periods, and so long as such
condition remains in effect, the Lenders shall be under no obligation to make
additional Loans of such Type, Continue Loans of such Type, or to Convert Loans
of any other Type into Loans of such Type and the Borrower shall, on the last
day(s) of the then current Interest Period(s) for the outstanding Loans of the
affected Type, either prepay such Loans or Convert such Loans into another Type
of Loan in accordance with the terms of this Agreement.
6.3. ILLEGALITY. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund
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Eurodollar Rate Loans hereunder, then such Lender shall promptly notify the
Borrower thereof and such Lender's obligation to make or Continue Eurodollar
Rate Loans and to Convert other Types of Loans into Eurodollar Rate Loans shall
be suspended until such time as such Lender may again make, maintain, and fund
Eurodollar Rate Loans (in which case the provisions of SECTION 6.4 shall be
applicable).
6.4. TREATMENT OF AFFECTED LOANS. If the obligation of any Lender to
make a Eurodollar Rate Loan or to Continue, or to Convert Loans of any other
Type into, Loans of a particular Type shall be suspended pursuant to SECTION 6.1
OR 6.3 hereof (Loans of such Type being herein called "Affected Loans" and such
Type being herein called the "Affected Type"), such Lender's Affected Loans
shall be automatically Converted into Base Rate Loans on the last day(s) of the
then current Interest Period(s) for Affected Loans (or, in the case of a
Conversion required by SECTION 6.3 hereof, on such earlier date as such Lender
may specify to the Borrower with a copy to the Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in
SECTION 6.1 OR 6.3 hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Affected Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as Loans of the Affected Type shall be made or Continued
instead as Base Rate Loans, and all Loans of such Lender that would
otherwise be Converted into Loans of the Affected Type shall be
Converted instead into (or shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in SECTION 6.1 OR 6.3 hereof that gave rise to the
Conversion of such Lender's Affected Loans pursuant to this SECTION 6.4 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Loans of the Affected Type made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Loans of the Affected Type, to the extent necessary so that,
after giving effect thereto, all Loans held by the Lenders holding Loans of the
Affected Type and by such Lender are held pro rata (as to principal amounts,
Types, and Interest Periods) in accordance with their respective Revolving
Credit Commitments.
6.5. COMPENSATION. Upon the request of any Lender, the Borrower shall
pay to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost, or
expense (including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar
Rate Loan for any reason (including, without limitation, the
acceleration of the Loans pursuant to SECTION 11.1) on a date other
than the last day of the Interest Period for such Loan; or
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(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any condition precedent specified in
ARTICLE VII to be satisfied) to borrow, Convert, Continue, or prepay a
Eurodollar Rate Loan on the date for such borrowing, Conversion,
Continuation, or prepayment specified in the relevant notice of
borrowing, prepayment, Continuation, or Conversion under this
Agreement.
Any Lender claiming compensation under this SECTION 6.5 shall furnish
the Borrower and the Agent a statement setting forth in reasonable detail the
amounts to be paid to it hereunder and the determination thereof shall be
conclusive absent manifest error.
6.6. TAXES. (a) Any and all payments by the Borrower to or for the
account of any Lender or the Agent hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any and all present or
future taxes, duties, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, EXCLUDING, in the case of each Lender and
the Agent, taxes imposed on its income, and franchise taxes imposed on it, by
the jurisdiction under the laws of which such Lender (or its Applicable Lending
Office) or the Agent (as the case may be) is organized or any political
subdivision thereof (all such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings, and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable under this Agreement or any other Loan Document
to any Lender or the Agent, (i) the sum payable shall be increased as necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this SECTION 6.6) such Lender or the Agent
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law, and (iv) the Borrower
shall furnish to the Agent, at its address referred to in SECTION 13.2, the
original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under this Agreement
or any other Loan Document or from the execution or delivery of, or otherwise
with respect to, this Agreement or any other Loan Document (hereinafter referred
to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent for the
full amount of Taxes and Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this SECTION 6.6) paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest, and expenses) arising therefrom or
with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the
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Borrower or the Agent (but only so long as such Lender remains lawfully able to
do so), shall provide the Borrower and the Agent with (i) Internal Revenue
Service Form 1001 or 4224, as appropriate, or any successor form prescribed by
the Internal Revenue Service, certifying that such Lender is entitled to
benefits under an income tax treaty to which the United States is a party which
reduces the rate of withholding tax on payments of interest or certifying that
the income receivable pursuant to this Agreement is effectively connected with
the conduct of a trade or business in the United States, (ii) Internal Revenue
Service Form W-8 or W-9, as appropriate, or any successor form prescribed by the
Internal Revenue Service, and (iii) any other form or certificate required by
any taxing authority (including any certificate required by Sections 871(h) and
881(c) of the Internal Revenue Code), certifying that such Lender is entitled to
an exemption from or a reduced rate of tax on payments pursuant to this
Agreement or any of the other Loan Documents.
(e) For any period with respect to which a Lender has failed to provide
the Borrower and the Agent with the appropriate form pursuant to SECTION 6.6(D)
(unless such failure is due to a change in treaty, law, or regulation occurring
subsequent to the date on which a form originally was required to be provided),
such Lender shall not be entitled to indemnification under SECTION 6.6(A) OR
6.6(B) with respect to Taxes imposed by the United States; PROVIDED, HOWEVER,
that should a Lender, which is otherwise exempt from or subject to a reduced
rate of withholding tax, become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps as such
Lender shall reasonably request to assist such Lender to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this SECTION 6.6, then such Lender will agree
to use reasonable efforts to change the jurisdiction of its Applicable Lending
Office so as to eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the judgment of such Lender, is not
otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent the original or a certified copy of a
receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this SECTION 6.6 shall survive the termination of the Revolving Credit
Commitments and the payment in full of the Notes.
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ARTICLE VII
CONDITIONS TO MAKING LOANS AND ISSUING LETTERS OF CREDIT
7.1. CONDITIONS OF INITIAL ADVANCE. The obligation of the Lenders to
make the initial Advance under the Revolving Credit Facility, and of the Issuing
Bank to issue any Letter of Credit, and of NationsBank to make any Swing Line
Loan, is subject to the conditions precedent that:
(a) the Agent shall have received on the Closing Date, in form
and substance satisfactory to the Agent and Lenders, the following:
(i) executed originals of each of this Agreement,
the Notes, the initial Facility Guaranties, the Security
Instruments, the Lease Party Documents, the LC Account
Agreement the other Loan Documents, together with all
schedules and exhibits thereto;
(ii) the favorable written opinion or opinions with
respect to the Loan Documents and the transactions
contemplated thereby of special Florida counsel and special
Maryland counsel to the Credit Parties dated the Closing Date,
addressed to the Agent and the Lenders and satisfactory to
Xxxxx Xxxxx Mulliss & Xxxxx, L.L.P., special counsel to the
Agent, substantially in the form of EXHIBIT G-1;
(iii) the favorable written opinions with respect to
the Mortgages and related Security Documents for each of the
Initial Properties of special local counsel to the Credit
Parties dated the Closing Date, addressed to the Agent and the
Lenders and satisfactory to Xxxxx Xxxxx Mulliss & Xxxxx,
L.L.P., special counsel to the Agent, substantially in the
form of EXHIBIT G-2;
(iv) resolutions of the boards of directors or other
appropriate governing body (or of the appropriate committee
thereof) of each Credit Party certified by its secretary or
assistant secretary as of the Closing Date, approving and
adopting the Loan Documents to be executed by such Person, and
authorizing the execution and delivery thereof;
(v) specimen signatures of officers of each of the
Credit Parties executing the Loan Documents on behalf of such
Credit Party, certified by the secretary or assistant
secretary of such Credit Party;
(vi) the Organizational Documents of each of the
Credit Parties certified as of a recent date by the Secretary
of State of its state of organization;
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(vii) Operating Documents of each of the Credit
Parties certified as of the Closing Date as true and correct
by its secretary or assistant secretary;
(viii) certificates issued as of a recent date by the
Secretaries of State of the respective jurisdictions of
formation of each of the Credit Parties as to the due
existence and good standing of such Person;
(ix) appropriate certificates of qualification to do
business, good standing and, where appropriate, authority to
conduct business under assumed name, issued in respect of each
of the Credit Parties as of a recent date by the Secretary of
State or comparable official of each jurisdiction in which the
failure to be qualified to do business or authorized so to
conduct business could have a Material Adverse Effect;
(x) notice of appointment of the initial Authorized
Representative(s);
(xi) a Compliance Certificate dated the Closing Date;
(xii) evidence of all insurance required by the Loan
Documents;
(xiii) an initial Borrowing Notice, if any, and, if
elected by the Borrower, Interest Rate Selection Notice;
(xiv) an initial Borrowing Base Certificate, dated as
of the Closing Date in the form of EXHIBIT J acceptable to the
Agent and the Lenders;
(xv) evidence of the filing of Uniform Commercial
Code financing statements reflecting the filing in all places
required by applicable law to perfect the Liens of the Agent
under the Security Instruments as a first priority Lien as to
items of Collateral in which a security interest may be
perfected by the filing of financing statements, and such
other documents and/or evidence of other actions as may be
necessary under applicable law to perfect the Liens of the
Agent under the Security Instruments as a first priority Lien
in and to such other Collateral as the Agent may require,
including without limitation the delivery by CPV of a
certificate of the Registrar of the Borrower evidencing the
due registration on the registration books of the Borrower of
the Lien in favor of the Agent conferred under the Security
Instruments;
(xvi) evidence of the ownership by CPV, as a limited
partner, of not less than 662/3% of the Partnership Units of
the Borrower;
(xvii) fully executed counterparts of each of the
Security Leases;
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(xviii) a Phase I environmental assessment (and, if
required or recommended by the results of the Phase I
environmental assessment, a Phase II environmental assessment)
in form and substance acceptable to the Agent with respect to
each of the Initial Properties;
(xix) an as-built survey and certifications as to
federally designated flood zones, in form and substance
acceptable to the Agent as to each of the Initial Properties;
(xx) an appraisal for each of the Pledged Properties
in form and substance acceptable to the Agent and dated not
earlier than one year prior to the Closing Date;
(xxi) an ALTA Lender's title policy with respect to
each of the Initial Properties insuring the first lien status
of the Mortgage and reflecting only such title exceptions as
are Permitted Encumbrances together with a true copy of any
instrument giving rise to any exceptions;
(xxii) evidence that all fees payable by the Borrower
on the Closing Date to the Agent, NMS and the Lenders have
been paid in full;
(xxiii) Uniform Commercial Code search results
showing only those Liens as are acceptable to the Lenders; and
(xxiv) such other documents, instruments,
certificates and opinions as the Agent or any Lender may
reasonably request on or prior to the Closing Date in
connection with the consummation of the transactions
contemplated hereby; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) there shall not have occurred or become known to
the Agent or the Lenders any event, condition, situation or
status since the date of the information contained in the
financial and business projections, budgets, pro forma data
and forecasts concerning the Credit Parties delivered to the
Agent prior to the Closing Date that has had or could
reasonably be expected to result in a Material Adverse Effect;
(ii) no litigation, action, suit, investigation or
other arbitral, administrative or judicial proceeding shall be
pending or threatened which could reasonably be likely to
result in a Material Adverse Effect; and
(iii) the Credit Parties shall have received all
approvals, consents and waivers, and shall have made or given
all necessary filings and notices as shall be required to
consummate the transactions contemplated hereby without the
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occurrence of any default under, conflict with or violation of
(A) any applicable law, rule, regulation, order or decree of
any Governmental Authority or arbitral authority or (B) any
agreement, document or instrument to which any of the Credit
Parties is a party or by which any of them or their properties
is bound.
7.2. CONDITIONS OF LOANS AND LETTER OF CREDIT. The obligations of the
Lenders to make any Revolving Loans, and the Issuing Bank to issue Letters of
Credit and NationsBank to make Swing Line Loans, hereunder on or subsequent to
the Closing Date are subject to the satisfaction of the following conditions:
(a) the Agent or, in the case of Swing Line Loans, NationsBank
shall have received a Borrowing Notice if required by ARTICLE II and a
Borrowing Base Certificate as of the last day of the immediately
preceding month in the form of EXHIBIT J;
(b) the representations and warranties of the Loan Parties set
forth in ARTICLE VIII and in each of the other Loan Documents shall be
true and correct in all material respects on and as of the date of such
Advance, Swing Line Loan or Letter of Credit issuance or renewal, with
the same effect as though such representations and warranties had been
made on and as of such date, except to the extent that such
representations and warranties expressly relate to an earlier date and
except that the financial statements referred to in SECTION 8.6(A)(I)
shall be deemed to be those financial statements most recently
delivered to the Agent and the Lenders pursuant to SECTION 9.1 from the
date financial statements are delivered to the Agent and the Lenders in
accordance with such Section;
(c) in the case of the issuance of a Letter of Credit, the
Borrower shall have executed and delivered to the Issuing Bank an
Application and Agreement for Letter of Credit in form and content
acceptable to the Issuing Bank together with a Borrowing Base
Certificate as of the last day of the immediately preceding month in
the form of EXHIBIT J, together with such other instruments and
documents as it shall request;
(d) at the time of (and after giving effect to) each Advance,
Swing Line Loan or the issuance of a Letter of Credit, no Default or
Event of Default specified in ARTICLE XI shall have occurred and be
continuing; and
(e) immediately after giving effect to:
(i) a Revolving Loan, the aggregate principal balance
of all outstanding Revolving Loans for each Lender shall not
exceed such Lender's Revolving Credit Commitment;
(ii) a Letter of Credit or renewal thereof, the
aggregate principal balance of all outstanding Participations
in Letters of Credit and Reimbursement Obligations (or in the
case of the Issuing Bank, its remaining interest after
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deduction of all Participations in Letters of Credit and
Reimbursement Obligations of other Lenders) for each Lender
and in the aggregate shall not exceed, respectively, (X) such
Lender's Letter of Credit Commitment or (Y) the Total Letter
of Credit Commitment;
(iii) a Swing Line Loan, the Swing Line Outstandings
shall not exceed $5,000,000; and
(iv) a Revolving Loan, Swing Line Loan or a Letter of
Credit or renewal thereof, the sum of Letter of Credit
Outstandings plus Revolving Credit Outstandings plus Swing
Line Outstandings shall not exceed the lesser of (A) the Total
Revolving Credit Commitment or (B) the Borrowing Base.
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ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
Each of CPV and the Borrower represent and warrant with respect to
itself and each of its Subsidiaries (which representations and warranties shall
survive the delivery of the documents mentioned herein and the making of Loans),
that:
8.1. ORGANIZATION AND AUTHORITY.
(a) Each Credit Party is a corporation, partnership or real
estate investment trust, as applicable, duly organized and validly
existing under the laws of the jurisdiction of its formation;
(b) Each Credit Party (x) has the requisite power and
authority to own its properties and assets and to carry on its business
as now being conducted and as contemplated in the Loan Documents, and
(y) is qualified to do business in every jurisdiction in which failure
so to qualify would have a Material Adverse Effect;
(c) The Borrower and CPV have the power and authority to
execute, deliver and perform this Agreement and each of the other Loan
Documents to which it is a party, and the Borrower has the power and
authority to execute, deliver and perform the Notes and to borrow
hereunder, and to execute, deliver and perform each of the other Loan
Documents to which it is a party;
(d) Each Credit Party has the power and authority to execute,
deliver and perform the Facility Guaranty and each of the other Loan
Documents to which it is a party; and
(e) When executed and delivered, each of the Loan Documents to
which any Credit Party is a party will be the legal, valid and binding
obligation or agreement, as the case may be, of such Credit Party,
enforceable against such Credit Party in accordance with its terms,
subject to the effect of any applicable bankruptcy, moratorium,
insolvency, reorganization or other similar law affecting the
enforceability of creditors' rights generally and to the effect of
general principles of equity (whether considered in a proceeding at law
or in equity);
8.2. LOAN DOCUMENTS. The execution, delivery and performance by each
Credit Party of each of the Loan Documents to which it is a party:
(a) have been duly authorized by all requisite Organizational
Action of such Credit Party required for the lawful execution, delivery
and performance thereof;
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(b) do not violate any provisions of (i) applicable law, rule
or regulation, (ii) any judgment, writ, order, determination, decree or
arbitral award of any Governmental Authority or arbitral authority
binding on such Credit Party or its properties, or (iii) the
Organizational Documents or Operating Documents of such Credit Party;
(c) does not and will not be in conflict with, result in a
breach of or constitute an event of default, or an event which, with
notice or lapse of time or both, would constitute an event of default,
under any contract, indenture, agreement or other instrument or
document to which such Credit Party is a party, or by which the
properties or assets of such Credit Party are bound; and
(d) does not and will not result in the creation or imposition
of any Lien upon any of the properties or assets of such Credit Party
except any Liens in favor of the Agent and the Lenders created by the
Security Instruments;
8.3. SOLVENCY. Each Credit Party is Solvent after giving effect to the
transactions contemplated by the Loan Documents;
8.4. SUBSIDIARIES AND STOCKHOLDERS. CPV has no Subsidiaries other than
those Persons listed as Subsidiaries in SCHEDULE 8.4 and additional Subsidiaries
created or acquired after the Closing Date in compliance with SECTION 9.19;
SCHEDULE 8.4 states as of the date hereof the organizational form of each
entity, the authorized and issued capitalization of each Subsidiary listed
thereon, the number of shares, Partnership Units or other equity interests of
each class of capital stock or interest issued and outstanding of each such
Subsidiary and the number and/or percentage of outstanding shares or other
equity interest (including options, warrants and other rights to acquire any
interest) of each such class of capital stock, Partnership Units or other equity
interest owned by CPV or by any such Subsidiary; the outstanding shares,
Partnership Units or other equity interests of each such Subsidiary have been
duly authorized and validly issued and are fully paid and nonassessable; and CPV
and each such Subsidiary owns beneficially and of record all the shares and
other interests it is listed as owning in SCHEDULE 8.4, free and clear of any
Lien other than the Lien of the Pledge Agreement.
8.5. OWNERSHIP INTERESTS. The CPV and its Subsidiaries own no interest
in any Person other than the Persons listed in SCHEDULE 8.4, equity investments
in Persons not constituting Subsidiaries permitted under SECTION 8.7 and
additional Subsidiaries created or acquired after the Closing Date in compliance
with SECTION 9.19;
8.6. FINANCIAL CONDITION.
(a) The audited pro forma financial statements of CPV and its
Subsidiaries set forth in the Registration Statement present fairly the
financial condition of CPV and its Subsidiaries for the periods
described therein and the unaudited interim financial statements,
including the balance sheet as of June 30,1998 and the statement of
operations for the period ended June 30,1998, are true and accurate;
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(b) since the later of (i) the date of the pro forma financial
statements delivered pursuant to SECTION 8.6(A) hereof or (ii) the date
of the audited financial statements most recently delivered pursuant to
SECTION 9.1(A) hereof, there has been no material adverse change in the
condition, financial or otherwise, of CPV or any of its Subsidiaries or
in the businesses, properties, performance, prospects or operations of
CPV or its Subsidiaries, nor have such businesses or properties been
materially adversely affected as a result of any fire, explosion,
earthquake, accident, strike, lockout, combination of workers, flood,
embargo or act of God; and
(c) except as set forth in the financial statements referred
to in SECTION 8.6(A) or in SCHEDULE 8.6 or permitted by SECTION 8.5,
neither CPV nor any Subsidiary has incurred, other than in the ordinary
course of business, any material Indebtedness, Contingent Obligation or
other commitment or liability which remains outstanding or unsatisfied;
8.7. TITLE TO PROPERTIES.
(a) CPV, the Borrower and each other Credit Party has good and
marketable title to all its real and personal properties, subject to no
transfer restrictions or Liens of any kind, except for the transfer
restrictions and Liens described in SCHEDULE 8.7 and Liens permitted by
SECTION 10.4.
(b) CPV, the Borrower and each other Credit Party has fee
simple, and good and marketable title to each of the Initial
Properties, as applicable, and will have fee simple (or a leasehold
interest of a term exceeding that of the related Security Lease) and
good marketable title to each of the Pledged Properties, as applicable,
subject to no Liens, easement, encumbrances, restrictions or other
matters of record other than Permitted Encumbrances.
8.8. TAXES. Except as set forth in SCHEDULE 8.8, CPV, the Borrower and
each other Credit Party has filed or caused to be filed all federal, state and
local tax returns which are required to be filed by it and, except for taxes and
assessments being contested in good faith by appropriate proceedings diligently
conducted and against which reserves reflected in the financial statements
described in SECTION 8.6(A) and satisfactory to CPV's independent certified
public accountants have been established, have paid or caused to be paid all
taxes as shown on said returns or on any assessment received by either of them,
to the extent that such taxes have become due;
8.9. OTHER AGREEMENTS. No Credit Party is
(a) a party to or subject to any judgment, order, decree,
agreement, lease or instrument, or subject to other restrictions, which
individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect; or
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(b) in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any
agreement or instrument to which such Credit Party is a party, which
default has, or if not remedied within any applicable grace period
could reasonably be likely to have, a Material Adverse Effect;
8.10. LITIGATION. Except as set forth in SCHEDULE 8.10, there is no
action, suit, investigation or proceeding at law or in equity or by or before
any governmental instrumentality or agency or arbitral body pending, or, to the
knowledge of CPV, threatened by or against the Borrower or any other Credit
Party or affecting the Borrower or any other Credit Party or any properties or
rights of the Borrower or any other Credit Party, which could reasonably be
likely to have a Material Adverse Effect;
8.11. MARGIN STOCK. The proceeds of the borrowings made hereunder will
be used by the Borrower only for the purposes expressly authorized herein. None
of such proceeds will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin stock or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry
margin stock or for any other purpose which might constitute any of the Loans
under this Agreement a "purpose credit" within the meaning of said Regulation U
or Regulation X (12 C.F.R. Part 224) of the Board. Neither the Borrower nor any
agent acting in its behalf has taken or will take any action which might cause
this Agreement or any of the documents or instruments delivered pursuant hereto
to violate any regulation of the Board or to violate the Securities Exchange Act
of 1934, as amended, or the Securities Act of 1933, as amended, or any state
securities laws, in each case as in effect on the date hereof;
8.12. INVESTMENT COMPANY. No Credit Party is an "investment company,"
or an "affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company", as such terms are defined in the Investment Company Act of
1940, as amended (15 U.S.C. ss. 80a-1, ET SEQ.). The application of the proceeds
of the Loans and repayment thereof by the Borrower and the performance by the
Borrower and the other Credit Parties of the transactions contemplated by the
Loan Documents will not violate any provision of said Act, or any rule,
regulation or order issued by the Securities and Exchange Commission thereunder,
in each case as in effect on the date hereof;
8.13. PATENTS, ETC. The Borrower and each other Credit Party owns or
has the right to use, under valid license agreements or otherwise, all material
patents, licenses, franchises, trademarks, trademark rights, trade names, trade
name rights, trade secrets and copyrights necessary to or used in the conduct of
its businesses as now conducted and as contemplated by the Loan Documents,
without known conflict with any patent, license, franchise, trademark, trade
secret, trade name, copyright, other proprietary right of any other Person;
8.14. NO UNTRUE STATEMENT. Neither (a) this Agreement nor any other
Loan Document or certificate or document executed and delivered by or on behalf
of the Borrower or any other Credit Party in accordance with or pursuant to any
Loan Document nor (b) any statement, representation, or warranty provided to the
Agent in connection with the negotiation or preparation
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of the Loan Documents contains any misrepresentation or untrue statement of
material fact or omits to state a material fact necessary, in light of the
circumstance under which it was made, in order to make any such warranty,
representation or statement contained therein not misleading;
8.15. NO CONSENTS, ETC. Neither the respective businesses or properties
of the any Credit Parties, nor any relationship among the Credit Parties and any
other Person, nor any circumstance in connection with the execution, delivery
and performance of the Loan Documents and the transactions contemplated thereby,
is such as to require a consent, approval or authorization of, or filing,
registration or qualification with, any Governmental Authority or any other
Person on the part of any Credit Party as a condition to the execution, delivery
and performance of, or consummation of the transactions contemplated by the Loan
Documents, which, if not obtained or effected, would be reasonably likely to
have a Material Adverse Effect, or if so, such consent, approval, authorization,
filing, registration or qualification has been duly obtained or effected, as the
case may be;
8.16. EMPLOYEE BENEFIT PLANS.
(a) The Borrower and CPV and each ERISA Affiliate is in
compliance with all applicable provisions of ERISA and the regulations
and published interpretations thereunder and in compliance with all
Foreign Benefit Laws with respect to all Employee Benefit Plans except
for any required amendments for which the remedial amendment period as
defined in Section 401(b) of the Code has not yet expired. Each
Employee Benefit Plan that is intended to be qualified under Section
401(a) of the Code has been determined by the Internal Revenue Service
to be so qualified, and each trust related to such plan has been
determined to be exempt under Section 501(a) of the Code. No material
liability has been incurred by CPV or any ERISA Affiliate which remains
unsatisfied for any taxes or penalties with respect to any Employee
Benefit Plan or any Multiemployer Plan;
(b) Neither the Borrower, CPV nor any ERISA Affiliate has (i)
engaged in a nonexempt prohibited transaction described in Section 4975
of the Code or Section 406 of ERISA affecting any of the Employee
Benefit Plans or the trusts created thereunder which could subject any
such Employee Benefit Plan or trust to a material tax or penalty on
prohibited transactions imposed under Internal Revenue Code Section
4975 or ERISA, (ii) incurred any accumulated funding deficiency with
respect to any Employee Benefit Plan, whether or not waived, or any
other liability to the PBGC which remains outstanding other than the
payment of premiums and there are no premium payments which are due and
unpaid, (iii) failed to make a required contribution or payment to a
Multiemployer Plan, or (iv) failed to make a required installment or
other required payment under Section 412 of the Code, Section 302 of
ERISA or the terms of such Employee Benefit Plan;
(c) No Termination Event has occurred or is reasonably
expected to occur with respect to any Pension Plan or Multiemployer
Plan, and neither the Borrower, CPV nor
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any ERISA Affiliate has incurred any unpaid withdrawal liability with
respect to any Multiemployer Plan;
(d) The present value of all vested accrued benefits under
each Employee Benefit Plan which is subject to Title IV of ERISA, did
not, as of the most recent valuation date for each such plan, exceed
the then current value of the assets of such Employee Benefit Plan
allocable to such benefits;
(e) To the best of CPV's knowledge, each Employee Benefit Plan
subject to Title IV of ERISA, maintained by the Borrower, CPV or any
ERISA Affiliate, has been administered in accordance with its terms in
all material respects and is in compliance in all material respects
with all applicable requirements of ERISA and other applicable laws,
regulations and rules;
(f) The consummation of the Loans and the issuance of the
Letters of Credit provided for herein will not involve any prohibited
transaction under ERISA which is not subject to a statutory or
administrative exemption; and
(g) No material proceeding, claim, lawsuit and/or
investigation exists or, to the best knowledge of CPV after due
inquiry, is threatened concerning or involving any Employee Benefit
Plan;
8.17. NO DEFAULT. As of the date hereof, there does not exist any
Default or Event of Default hereunder;
8.18. ENVIRONMENTAL LAWS. Except as listed on SCHEDULE 8.18, CPV and
each Subsidiary is in compliance with all applicable Environmental Laws and has
been issued and currently maintains all required federal, state and local
permits, licenses, certificates and approvals. Except as listed on SCHEDULE
8.18, neither CPV nor any Subsidiary has been notified of any pending or
threatened action, suit, proceeding or investigation, and neither CPV nor any
Subsidiary is aware of any facts, which (a) calls into question, or could
reasonably be expected to call into question, compliance by either CPV or any
Subsidiary with any Environmental Laws, (b) seeks, or could reasonably be
expected to form the basis of a meritorious proceeding, to suspend, revoke or
terminate any license, permit or approval necessary for the operation of CPV's
or any Subsidiary's business or facilities or for the generation, handling,
storage, treatment or disposal of any Hazardous Materials, or (c) seeks to
cause, or could reasonably be expected to form the basis of a meritorious
proceeding to cause, any property of CPV or any Subsidiary to be subject to any
restrictions on ownership, use, occupancy or transferability under any
Environmental Law;
8.19. EMPLOYMENT MATTERS. (a) None of the employees of CPV or any
Subsidiary is subject to any collective bargaining agreement and there are no
strikes, work stoppages, election or decertification petitions or proceedings,
unfair labor charges, equal opportunity proceedings, or other material
labor/employee related controversies or proceedings pending or, to the best
knowledge of CPV and the Borrower, threatened against CPV or any Subsidiary or
between CPV
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or any Subsidiary and any of its employees, other than employee grievances
arising in the ordinary course of business which could not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect;
and
(b) Except to the extent a failure to maintain compliance would not
have a Material Adverse Effect, CPV and each Subsidiary is in compliance in all
respects with all applicable laws, rules and regulations pertaining to labor or
employment matters, including without limitation those pertaining to wages,
hours, occupational safety and taxation and there is neither pending or
threatened any litigation, administrative proceeding nor, to the knowledge of
CPV and the Borrower, any investigation, in respect of such matters which, if
decided adversely, could reasonably be likely, individually or in the aggregate,
to have a Material Adverse Effect;
8.20. RICO. Neither CPV nor any Subsidiary is engaged in or has engaged
in any course of conduct that could subject any of their respective properties
to any Lien, seizure or other forfeiture under any criminal law, racketeer
influenced and corrupt organizations law, civil or criminal, or other similar
laws;
8.21. REIT STATUS. CPV has done all things necessary to qualify as a
REIT, has been organized in conformity with the requirements for qualification
as a REIT and its method of operation as described in the Registration Statement
will permit it to meet the requirements for qualification and taxation as an
REIT;
8.22. LEASES; APPRAISED VALUE. Each of the Security Leases is in full
force and effect and the Borrower, CPV and each Guarantor are in compliance with
all of the terms and conditions of such Security Lease; none of the Security
Leases has been amended or modified, except as required under SECTION 10.2 or
except as otherwise permitted by the Agent, since the date of the Eligible
Property Compliance Certificate for the Pledged Property to which it relates;
and neither the Borrower nor CPV has any information which leads it to believe
that the Appraised Value of the Pledged Properties as set forth on SCHEDULE 4.3
is not correct;
8.23. REGISTRATION STATEMENT. The statements and information in the
Registration Statement are true, correct and complete and the Registration
Statement does not contain any untrue statement of a material fact or omit to
state a material fact that is necessary to make the statements and information
therein not misleading;
8.24. YEAR 2000 COMPLIANCE. CPV has (i) initiated a review and
assessment of all areas within its and each of its Subsidiaries' business and
operations (including those affected by suppliers, vendors and customers) that
could be adversely affected by the "Year 2000 Problem" (that is, the risk that
computer applications used by CPV or any of its Subsidiaries (or suppliers,
vendors and customers) may be unable to recognize and perform properly
date-sensitive functions involving certain dates prior to and any date after
December 31, 1999), (ii) developed a plan and timeline for addressing the Year
2000 Problem on a timely basis, and (iii) to date, implemented that plan in
accordance with that timetable. Based on the foregoing, CPV believes that all
computer applications (including those of its suppliers, vendors and customers)
that are material
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to its or any of its Subsidiaries' business and operations are reasonably
expected on a timely basis to be able to perform properly date-sensitive
functions for all dates before and after January 1, 2000 (that is, be "Year 2000
compliant"), except to the extent that a failure to do so could not reasonably
be expected to have Material Adverse Effect.
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ARTICLE IX
AFFIRMATIVE COVENANTS
Until the Facility Termination Date, unless the Majority Lenders shall
otherwise consent in writing, CPV and the Borrower shall, and where applicable
shall cause each Subsidiary to:
9.1. FINANCIAL REPORTS, ETC. (a) As soon as practical and in any event
within 93 days after the end of each Fiscal Year of CPV, deliver or cause to be
delivered to the Agent and each Lender (i) consolidated and consolidating
balance sheets of CPV and its Subsidiaries as at the end of such Fiscal Year,
and the notes thereto, and the related consolidated and consolidating statements
of income, stockholders' equity and cash flows, and the respective notes
thereto, for such Fiscal Year, setting forth (other than for consolidating
statements) comparative financial statements for the preceding Fiscal Year, all
prepared in accordance with GAAP applied on a Consistent Basis and containing,
with respect to the consolidated financial statements, opinions of Xxxxxx
Xxxxxxxx LLP, or other such independent certified public accountants selected by
CPV and approved by the Agent, which are unqualified as to the scope of the
audit performed and as to the "going concern" status of CPV and without any
exception not acceptable to the Lenders, and (ii) a Compliance Certificate dated
as of the end of such Fiscal Year;
(b) as soon as practical and in any event within 48 days after the end
of each fiscal quarter (except the last fiscal quarter of the Fiscal Year),
deliver to the Agent and each Lender (i) consolidated and consolidating balance
sheets of CPV and its Subsidiaries as at the end of such fiscal quarter, and the
related consolidated and consolidating statements of income, stockholders'
equity and cash flows for such fiscal quarter and for the period from the
beginning of the then current Fiscal Year through the end of such reporting
period, and accompanied by a certificate of an Authorized Representative to the
effect that such financial statements present fairly the financial position of
CPV and its Subsidiaries as of the end of such fiscal period and the results of
their operations and the changes in their financial position for such fiscal
period, in conformity with the standards set forth in SECTION 8.6(A) with
respect to interim financial statements, and (ii) a Compliance Certificate
containing computations for such fiscal quarter and dated as of the end of such
fiscal quarter;
(c) together with each delivery of the financial statements required by
SECTION 9.1(A)(I), deliver to the Agent and each Lender a letter from CPV's
accountants specified in SECTION 9.1(A)(I) stating that in performing the audit
necessary to render an opinion on the financial statements delivered under
SECTION 9.1(A)(I), they obtained no knowledge of any Default or Event of Default
by the Borrower in the fulfillment of the terms and provisions of this Agreement
insofar as they relate to financial matters (which at the date of such statement
remains uncured); or if the accountants have obtained knowledge of such Default
or Event of Default, a statement specifying the nature and period of existence
thereof;
(d) promptly upon their becoming available to the Borrower, the
Borrower shall deliver to the Agent and each Lender a copy of (i) all regular or
special reports or effective registration
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statements which either the Borrower, CPV or any Subsidiary shall file with the
Securities and Exchange Commission (or any successor thereto) or any securities
exchange, (ii) any proxy statement distributed by the Borrower, CPV or any
Subsidiary to its shareholders, bondholders or the financial community in
general, and (iii) any management letter or other report submitted to the
Borrower, CPV or any Subsidiary by independent accountants in connection with
any annual, interim or special audit of the Borrower, CPV or any Subsidiary;
(e) not later than the last Business Day of each Fiscal Year, deliver
to the Agent and each Lender a consolidated balance sheet, income statement and
statement of cash flows for CPV and its Subsidiaries for the next Fiscal Year,
prepared in accordance with GAAP applied on a Consistent Basis;
(f) as soon as practicable and in any event within 10 days following
the end of each fiscal month, deliver to the Agent and each Lender a Borrowing
Base Certificate prepared as of the last day of such month in the form of
EXHIBIT J and certified to be true, correct and complete by an Authorized
Representative;
(g) as soon as practical and in any event within 93 days after the end
of each fiscal year of Wackenhut Corrections Corporation deliver to the Agent
and each Lender the audited financial statements of Wackenhut Corrections
Corporation, and as soon as practical and in any event within 48 days after the
end of each fiscal quarter (except the last fiscal quarter of each fiscal year)
of Wackenhut Corrections Corporation, the unaudited financial statements of
Wackenhut Corrections Corporation, all prepared in accordance with GAAP applied
on a Consistent Basis;
(h) promptly, from time to time, deliver or cause to be delivered to
the Agent and each Lender such other information regarding CPV's and any
Subsidiary's operations, business affairs and financial condition, including tax
returns, asset business plans and specific cash flow information, as the Agent
or such Lender may reasonably request;
(i) promptly upon their being delivered to the Borrower or any
Guarantor, deliver to the Agent and each Lender each notice of termination or
default from any Contract Party delivered to the Borrower or any Guarantor by a
Lease Party pursuant to the terms of the Master Lease or any other Security
Lease;
The Agent and the Lenders are hereby authorized to deliver a copy of
any such financial or other information delivered hereunder to the Lenders (or
any affiliate of any Lender) or to the Agent, to any Governmental Authority
having jurisdiction over the Agent or any of the Lenders pursuant to any written
request therefor or in the ordinary course of examination of loan files, or to
any other Person who shall acquire or consider the assignment of, or acquisition
of any participation interest in, any Obligation permitted by this Agreement;
9.2. MAINTAIN PROPERTIES. Maintain all properties necessary to its
operations including, without limitation, each of the Pledged Properties, in
good working order and condition, make all needed repairs, replacements and
renewals to such properties, and maintain free from Liens
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all trademarks, trade names, patents, copyrights, trade secrets, know-how, and
other intellectual property and proprietary information (or adequate licenses
thereto), in each case as are reasonably necessary to conduct its business as
currently conducted or as contemplated hereby, all in accordance with customary
and prudent business practices;
9.3. EXISTENCE, QUALIFICATION, ETC. Except as otherwise expressly
permitted under SECTION 10.8, do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and all material rights
and franchises, and maintain its license or qualification to do business as a
foreign corporation and good standing in each jurisdiction in which its
ownership or lease of property or the nature of its business makes such license
or qualification necessary except where the failure to so qualify would not have
a Material Adverse Effect;
9.4. REGULATIONS AND TAXES. Comply in all material respects with or
contest in good faith all statutes and governmental regulations and pay all
taxes, assessments, governmental charges, claims for labor, supplies, rent and
any other obligation which, if unpaid, would become a Lien against any of its
properties except liabilities being contested in good faith by appropriate
proceedings diligently conducted and against which adequate reserves acceptable
to CPV's independent certified public accountants have been established unless
and until any Lien resulting therefrom attaches to any of its property and
becomes enforceable against its creditors;
9.5. INSURANCE. (a) Keep all of its insurable properties adequately
insured at all times with responsible insurance carriers against loss or damage
by fire and other hazards to the extent and in the manner as are customarily
insured against by similar businesses owning such properties similarly situated
and, with respect to the Pledged Properties, as otherwise required by the
Security Instruments, (b) maintain general public liability insurance at all
times with responsible insurance carriers against liability on account of damage
to persons and property and (c) maintain insurance under all applicable workers'
compensation laws (or in the alternative, maintain required reserves if
self-insured for workers' compensation purposes) and against loss by reason by
business interruption such policies of insurance to have such limits,
deductibles, exclusions, co-insurance and other provisions providing no less
coverages than are maintained by similar businesses that are similarly situated,
such insurance policies to be in form reasonably satisfactory to the Agent. Each
of the policies of insurance described in this SECTION 9.5 shall provide that
the insurer shall give the Agent not less than thirty (30) days' prior written
notice before any such policy shall be terminated, lapse or be altered in any
manner;
9.6. TRUE BOOKS. Keep true books of record and account in which full,
true and correct entries will be made of all of its dealings and transactions,
and set up on its books such reserves as may be required by GAAP with respect to
doubtful accounts and all taxes, assessments, charges, levies and claims and
with respect to its business in general, and include such reserves in interim as
well as year-end financial statements;
9.7. RIGHT OF INSPECTION. Permit any Person designated by the Agent, at
the Agent's or designated Person's expense, to visit and inspect any of the
properties, corporate books and financial reports of CPV or any Subsidiary and
to discuss its affairs, finances and accounts with
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its principal officers and independent certified public accountants, all at
reasonable times, at reasonable intervals and with reasonable prior notice and
permit any Lender to discuss the Borrower's or CPV's affairs, finances and
accounts with its principal officers at all reasonable times, at reasonable
intervals and with reasonable prior notice;
9.8. OBSERVE ALL LAWS. Conform to and duly observe in all material
respects all laws, rules and regulations and all other valid requirements of any
Governmental Authority with respect to the conduct of its business;
9.9. GOVERNMENTAL LICENSES. Obtain and maintain all licenses, permits,
certifications and approvals of all applicable Governmental Authorities as are
required for the conduct of its business as currently conducted and as
contemplated by the Loan Documents;
9.10. COVENANTS EXTENDING TO OTHER PERSONS. Cause each of its
Subsidiaries to do with respect to itself, its business and its assets, of the
things required of CPV or the Borrower in SECTIONS 9.2 through 9.9, 9.13, 9.14,
9.18 and 9.23 inclusive;
9.11. OFFICER'S KNOWLEDGE OF DEFAULT. Upon any officer of the Borrower
or CPV obtaining knowledge of any Default or Event of Default hereunder or under
any other obligation of the Borrower or other Credit Party to any Lender, or any
event, development or occurrence which could reasonably be expected to have a
Material Adverse Effect, cause such officer or an Authorized Representative to
promptly notify the Agent of the nature thereof, the period of existence
thereof, and what action the Borrower or other Credit Party proposes to take
with respect thereto;
9.12. SUITS OR OTHER PROCEEDINGS. Upon any officer of the Borrower or
CPV obtaining knowledge of any litigation or other proceedings being instituted
against the Borrower or any other Credit Party, or any attachment, levy,
execution or other process being instituted against any assets of the Borrower
or any other Credit Party, making a claim or claims in an aggregate amount
greater than $500,000 not otherwise covered by insurance, promptly deliver to
the Agent written notice thereof stating the nature and status of such
litigation, dispute, proceeding, levy, execution or other process;
9.13. NOTICE OF ENVIRONMENTAL COMPLAINT OR CONDITION. Immediately
provide notice to the Agent of, and promptly provide to the Agent true, accurate
and complete copies of, any and all notices, complaints, orders, directives,
claims or citations received by the Borrower or any other Credit Party relating
to any (a) violation or alleged violation by the Borrower or any other Credit
Party of any applicable Environmental Law; (b) release or threatened release by
the Borrower or any other Credit Party, or by any Person handling, transporting
or disposing of any Hazardous Material on behalf of the Borrower or any other
Credit Party, or at any facility or property owned or leased or operated by the
Borrower or any other Credit Party, of any Hazardous Material, except where
occurring legally pursuant to a permit or license; or (c) liability or alleged
liability of the Borrower or any other Credit Party for the costs of cleaning
up,
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removing, remediating or responding to a release of Hazardous Materials. Such
notice shall comply with Section 4.23 of the Mortgage;
9.14. ENVIRONMENTAL COMPLIANCE. If the Borrower or any other Credit
Party shall receive any letter, notice, complaint, order, directive, claim or
citation alleging that the Borrower or any other Credit Party has violated any
Environmental Law, has released any Hazardous Material, or is liable for the
costs of cleaning up, removing, remediating or responding to a release of
Hazardous Materials, the Borrower and any other Credit Party shall, within the
time period permitted and to the extent required by the applicable Environmental
Law or the Governmental Authority responsible for enforcing such Environmental
Law, remove or remedy, or cause the applicable Subsidiary to remove or remedy,
such violation or release or satisfy such liability;
9.15. INDEMNIFICATION. Without limiting the generality of SECTION 13.9,
jointly and severally indemnify and hold the Agent and the Lenders and their
respective officers, directors, employees and agents, harmless from and against
any and all claims, costs, expenses, losses, penalties, liabilities and damages
(including, without limitation, assessment and cleanup costs and reasonable
attorneys', consultants' or other expert fees, expenses and disbursements) and
all judgments, fines and penalties incurred, entered or levied against the
Agent, the Lenders or any of their respective officers, directors, employees and
agents, by any governmental agency or authority arising directly or indirectly
from, or as a result of or in connection with (a) the use of any Pledged
Property; (b) the use of the facilities thereon; (c) the use, generation,
storage, transportation, treatment, emission, discharge, disposal, release or
handling of any Hazardous Materials at, upon or from any Pledged Property; or
(d) the violation or alleged violation of any Environmental Law by CPV or any
Subsidiary. The foregoing indemnity shall include without limitation of the
foregoing indemnity, the indemnity of each of the parties indemnified herein
with respect to claims, demands, losses, damages (including consequential
damages) liabilities, causes of action, judgments, penalties, costs and expenses
(including reasonable attorneys' fees and court costs) and matters which in
whole or in part are caused by or arise out of the negligence (whether sole,
contributory, comparative, or otherwise) of such and/or any other indemnified
party or for which such indemnified party may have strict liability. The
provisions of this SECTION 9.15 shall survive the Facility Termination Date and
expiration or termination of this Agreement;
9.16. FURTHER ASSURANCES. At its cost and expense, upon request of the
Agent, duly execute and deliver or cause to be duly executed and delivered, to
the Agent such further instruments, documents, certificates, financing and
continuation statements, and do and cause to be done such further acts that may
be reasonably necessary or advisable in the reasonable opinion of the Agent to
carry out more effectively the provisions and purposes of this Agreement, the
Security Instruments and the other Loan Documents;
9.17. EMPLOYEE BENEFIT PLANS.
(a) With reasonable promptness, and in any event within thirty
(30) days thereof, give notice to the Agent of (a) the establishment of
any new Pension Plan (which notice shall include a copy of such plan),
(b) the commencement of contributions to any
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Employee Benefit Plan to which the Borrower, CPV or any of its or their
ERISA Affiliates was not previously contributing, (c) any material
increase in the benefits of any existing Employee Benefit Plan, (d)
each funding waiver request filed with respect to any Employee Benefit
Plan and all communications received or sent by the Borrower, CPV or
any of its or their ERISA Affiliates with respect to such request and
(e) the failure of the Borrower, CPV or any of its or their ERISA
Affiliates to make a required installment or payment under Section 302
of ERISA or Section 412 of the Code by the due date;
(b) Promptly and in any event within fifteen (15) days of
becoming aware of the occurrence or forthcoming occurrence of any (a)
Termination Event or (b) nonexempt "prohibited transaction," as such
term is defined in Section 406 of ERISA or Section 4975 of the Code, in
connection with any Pension Plan or any trust created thereunder,
deliver to the Agent a notice specifying the nature thereof, what
action the Borrower, CPV or any of its or their ERISA Affiliates has
taken, is taking or proposes to take with respect thereto and, when
known, any action taken or threatened by the Internal Revenue Service,
the Department of Labor or the PBGC with respect thereto; and
(c) With reasonable promptness but in any event within fifteen
(15) days for purposes of clauses (a), (b) and (c), deliver to the
Agent copies of (a) any unfavorable determination letter from the
Internal Revenue Service regarding the qualification of an Employee
Benefit Plan under Section 401(a) of the Code, (b) all notices received
by the Borrower, CPV or any of its or their ERISA Affiliates of the
PBGC's intent to terminate any Pension Plan or to have a trustee
appointed to administer any Pension Plan, (c) each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) filed
by CPV or any ERISA Affiliate with the Internal Revenue Service with
respect to each Pension Plan and (d) all notices received by the
Borrower, CPV or any of its or their ERISA Affiliates from a
Multiemployer Plan sponsor concerning the imposition or amount of
withdrawal liability pursuant to Section 4202 of ERISA. The Borrower
will notify the Agent in writing within five (5) Business Days of the
Borrower, CPV or any of its or their ERISA Affiliates obtaining
knowledge or reason to know that the Borrower, CPV or any ERISA
Affiliate has filed or intends to file a notice of intent to terminate
any Pension Plan under a distress termination within the meaning of
Section 4041(c) of ERISA;
9.18. CONTINUED OPERATIONS. Continue at all times to conduct its
business and engage principally in the same line or lines of business
substantially as heretofore conducted;
9.19. NEW SUBSIDIARIES. Within thirty (30) days of the acquisition or
creation of any Subsidiary but in any event prior to the acquisition by such
Subsidiary of any Qualifying Property, other than a Subsidiary, that the
Borrower has elected by notice in writing to the Agent to treat as an
Unrestricted Subsidiary, cause to be delivered to the Agent for the benefit of
the Lenders each of the following:
(a) a Facility Guaranty executed by such Subsidiary
substantially in the form of EXHIBIT I;
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(b) an opinion of counsel to the Subsidiary dated as of the
date of delivery of the Facility Guaranty provided for in this SECTION
9.19 and addressed to the Agent and the Lenders, in form and substance
reasonably acceptable to the Agent (which opinion may include
assumptions and qualifications of similar effect to those contained in
the opinions of counsel delivered pursuant to SECTION 7.1(A)), to the
effect that:
(A) such Subsidiary is duly organized, validly
existing and in good standing in the jurisdiction of its
formation, has the requisite power and authority to own its
properties and conduct its business as then owned and then
conducted and proposed to be conducted, and is duly qualified
to transact business and is in good standing as a foreign
corporation or partnership in each other jurisdiction in which
the character of the properties owned or leased, or the
business carried on by it, requires such qualification and the
failure to be so qualified would reasonably be likely to
result in a Material Adverse Effect; and
(B) the execution, delivery and performance of the
Facility Guaranty described in this SECTION 9.19 to which such
Subsidiary is a signatory have been duly authorized by all
requisite corporate or partnership action (including any
required shareholder or partner approval), such agreement has
been duly executed and delivered and constitutes the valid and
binding agreement of such Subsidiary, enforceable against such
Subsidiary in accordance with its terms, subject to the effect
of any applicable bankruptcy, moratorium, insolvency,
reorganization or other similar law affecting the
enforceability of creditors' rights generally and to the
effect of general principles of equity (whether considered in
a proceeding at law or in equity);
(c) current copies of the charter documents, including
partnership agreements and certificate of limited partnership, if
applicable, and bylaws of such Subsidiary, minutes of duly called and
conducted meetings (or duly effected consent actions) of the Board of
Directors, partners, or appropriate committees thereof (and, if
required by such charter documents, bylaws or by applicable law, of the
shareholders) of such Subsidiary authorizing the actions and the
execution and delivery of documents described in this SECTION 9.19.
9.20. REIT STATUS. With respect to CPV, do all things required or
necessary to qualify as and maintain its status as a REIT and obtain, at the
Agent's request an opinion of counsel acceptable to the Agent as to CPV's status
as a REIT and as to CPV's power and authority to conduct its business as a REIT.
9.21. USE OF PROCEEDS. Use the proceeds of the Loans solely for the
purposes specified in SECTION 2.12.
9.22. OWNERSHIP OF BORROWER. With respect to CPV, remain the sole
general partner of the Borrower and own not less than 662/3% of the Partnership
Units of the Borrower and 100%
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of the stock of CPT Limited Partner Inc. Any dilution of CPV's ownership of the
Borrower from its 99% interest on the Closing Date shall be solely related to
the issuance of Partnership Units by the Borrower in connection with
Acquisitions of Qualifying Properties. The Borrower shall at all times
constitute 100% of the combined book value of CPV and CPT Limited Partner, Inc,.
and the revenues of the Borrower for each Fiscal Year shall constitute 100% of
the combined total revenues of CPV and CPT Limited Partner Inc. for such Fiscal
Year.
9.23. YEAR 2000 COMPLIANCE. CPV shall promptly notify the Agent in the
event that the Borrower, CPV or any Subsidiary discovers or determines that any
computer application (including those of its suppliers, vendors and customers)
that is material to its or any of its Subsidiaries' business and operations will
not be Year 2000 compliant, except to the extent that such failure could not
reasonably be expected to have a Material Adverse Effect.
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ARTICLE X
NEGATIVE COVENANTS
Until the Obligations have been paid and satisfied in full, no Letters
of Credit remain outstanding and this Agreement has been terminated in
accordance with the terms hereof, unless the Majority Lenders shall otherwise
consent in writing, CPV and the Borrower shall not, nor shall they permit any
Subsidiary to:
10.1. FINANCIAL COVENANTS.
(a) CONSOLIDATED NET WORTH. Permit Consolidated Net Worth to be less
than $118,000,000 plus 85% of the aggregate amount of all increases in the
stated capital and additional paid-in capital accounts of CPV and its
Subsidiaries resulting from the issuance of equity securities or other capital
investments.
(b) CONSOLIDATED INTEREST COVERAGE RATIO. Permit at any time the
Consolidated Interest Coverage Ratio to be less than 3.00 to 1.00.
(c) TOTAL INDEBTEDNESS.
(i) Permit at any time the ratio of Consolidated
Total Indebtedness (excluding Non-Recourse Indebtedness of
Unrestricted Subsidiaries) to Consolidated Total Value to be
greater than .50 to 1.00.
(ii) Permit at any time Consolidated Total
Indebtedness (excluding Non- Recourse Indebtedness of
Unrestricted Subsidiaries) to exceed the lesser of (A) 4.00
times Consolidated Adjusted EBITDA (excluding EBITDA relating
to properties which are subject to Non-Recourse Indebtedness
of Unrestricted Subsidiaries) or (B) 50% of the Historical
Cost of the Pledged Properties and other Qualifying Properties
(the historical cost of other Qualifying Properties (excluding
EBITDA relating to properties which are subject to
Non-Recourse Indebtedness of Unrestricted Subsidiaries) to be
determined in the same manner as the Historical Cost of
Pledged Properties).
(iii) Permit at any time Consolidated Total
Indebtedness to exceed the lesser of (A) 50% of the sum of
Consolidated Total Liabilities and Market Equity
Capitalization or (B) 50% of the sum of Consolidated Total
Liabilities and Consolidated Shareholders' Equity.
(d) CONSOLIDATED SECURED INDEBTEDNESS. Permit at any time the ratio of
Consolidated Secured Indebtedness (excluding Non-Recourse Indebtedness of
Unrestricted Subsidiaries) to Consolidated Total Value to be greater than .45 to
1.00.
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(e) BORROWING BASE. At all times the amount of the Borrowing Base must
be greater than or equal to the sum of the aggregate amount of Revolving Credit
Outstandings, Letter of Credit Outstandings and Swing Line Outstandings, or if
not, the Borrower must immediately comply with SECTION 2.1(B).
10.2. ACQUISITIONS. Enter into any agreement, contract, binding
commitment or other arrangement providing for any Acquisition (other than an
Acquisition of an Eligible Property), or take any action to solicit the tender
of securities or proxies in respect thereof in order to effect any Acquisition
(other than an Acquisition of an Eligible Property), unless (i) the Person to be
(or whose assets are to be) acquired does not oppose such Acquisition and the
line or lines of business of the Person or assets to be acquired are
substantially the same as one or more line or lines of business conducted by CPV
and its Subsidiaries, (ii) no Default or Event of Default shall have occurred
and be continuing either immediately prior to or immediately after giving effect
to such Acquisition and the Borrower shall have furnished to the Agent (A) pro
forma historical financial statements as of the end of the most recently
completed Fiscal Year of CPV and most recent interim fiscal quarter, if
applicable, giving effect to such Acquisition and (B) a proforma Compliance
Certificate prepared on a historical pro forma basis giving effect to such
Acquisition, which certificate shall demonstrate that no Default or Event of
Default would exist immediately after giving effect thereto, (iii) the Person
acquired shall be a wholly-owned Subsidiary, or be merged into CPV, the Borrower
or a wholly-owned Subsidiary, immediately upon consummation of the Acquisition
(or if assets are being acquired, the acquiror shall be either CPV, the Borrower
or a wholly-owned Subsidiary), and (iv) the Majority Lenders shall consent to
such Acquisition in their discretion. Enter into any agreement, contract,
binding commitment or other arrangement providing for any Acquisition of
Additions or Enhancements unless there is a commensurate increase in the base
rental payments due under the related Security Lease for the Qualifying Property
for which such Additions or Enhancements are made.
10.3. CAPITAL EXPENDITURES. Make or become committed to make Capital
Expenditures other than those necessary to maintain in good condition and repair
any Qualifying Property; PROVIDED, HOWEVER, that expenditures incurred in
connection with the Acquisition of a Qualifying Property (i.e. not made in
connection with renovations or improvements to a Qualifying Property) shall not
be deemed to be Capital Expenditures; PROVIDED FURTHER, HOWEVER, that
expenditures incurred by the Borrower in connection with Additions or
Enhancements shall not be deemed to be Capital Expenditures to the extent there
is a commensurate increase in the base rental payments under the related
Security Lease.
10.4. LIENS. Incur, create or permit to exist any Lien, charge or other
encumbrance of any nature whatsoever with respect to any property or assets now
owned or hereafter acquired by CPV or any Subsidiary, other than
(a) Liens created under the Security Instruments in favor of
the Agent and the Lenders, and otherwise existing as of the date hereof
and as set forth in SCHEDULE 8.7;
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(b) Liens imposed by law for taxes, assessments or charges of
any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings diligently conducted
and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with GAAP and which Liens
are not yet enforceable against other creditors;
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law or
created in the ordinary course of business and in existence less than
90 days from the date of creation thereof for amounts not yet due or
which are being contested in good faith by appropriate proceedings
diligently conducted and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
GAAP and which Liens are not yet enforceable against other creditors;
(d) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal bonds)
in connection with workers' compensation, unemployment insurance and
other types of social security benefits or to secure the performance of
tenders, bids, leases, contracts (other than for the repayment of
Indebtedness), statutory obligations and other similar obligations or
arising as a result of progress payments under government contracts;
(e) easements (including reciprocal easement agreements and
utility agreements), rights-of-way, covenants, consents, reservations,
encroachments, variations and zoning and other restrictions, charges or
encumbrances (whether or not recorded), which do not interfere
materially with the ordinary conduct of the business of CPV or any
Subsidiary and which do not materially detract from the value of the
property to which they attach or materially impair the use thereof to
CPV or any Subsidiary;
(f) purchase money Liens to secure Indebtedness permitted
under SECTION 10.5(F ) and incurred to purchase fixed assets, provided
such Indebtedness represents not less than 75% of the purchase price of
such assets as of the date of purchase thereof and no property other
than the assets so purchased secures such Indebtedness;
(g) Liens to secure Non-Recourse Indebtedness permitted under
SECTION 10.5(G); and
(h) Permitted Encumbrances.
10.5. INDEBTEDNESS. Incur, create, assume or permit to exist any
Indebtedness of CPV, the Borrower or any Subsidiary, howsoever evidenced,
except:
(a) Indebtedness existing as of the Closing Date as set forth
in SCHEDULE 8.6; PROVIDED, none of the instruments and agreements
evidencing or governing such Indebtedness shall be amended, modified or
supplemented after the Closing Date to change
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any terms of subordination, repayment or rights of conversion, put,
exchange or other rights from such terms and rights as in effect on the
Closing Date;
(b) Indebtedness owing to the Agent or any Lender in
connection with this Agreement, any Note or other Loan Document;
(c) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(d) Indebtedness arising from Rate Hedging Obligations
permitted under SECTION 10.16;
(e) unsecured intercompany Indebtedness for loans and advances
made by CPV, the Borrower or any Guarantor to CPV, the Borrower or any
Guarantor, provided that such intercompany Indebtedness is evidenced by
a promissory note or similar written instrument acceptable to the Agent
which provides that such Indebtedness is subordinated to obligations,
liabilities and undertakings of the holder or owner thereof under the
Loan Documents on terms acceptable to the Agent;
(f) purchase money Indebtedness described in SECTION 10.4(F)
not to exceed an aggregate outstanding amount at any time of
$1,000,000;
(g) additional Non-Recourse Indebtedness not otherwise covered
by clauses (a) through (f) above, provided that the aggregate
outstanding principal amount of all such additional Non-Recourse
Indebtedness permitted under this clause (g) shall in no event exceed
20% of Consolidated Total Value at any time;
(h) additional unsecured Indebtedness for Money Borrowed not
otherwise covered by clauses (a) through (g) above, provided that the
aggregate outstanding principal amount of all such other Indebtedness
permitted under this clause (h) shall in no event exceed 5% of
Consolidated Total Value at any time.
10.6. TRANSFER OF ASSETS. Sell, lease, transfer or otherwise dispose of
any assets of CPV or any Subsidiary other than (a) dispositions of Pledged
Properties permitted under SECTION 4.4(B), (b) the lease of a Pledged Property
pursuant to a Security Lease, (c) transfers of assets necessary to give effect
to merger or consolidation transactions permitted by SECTION 10.8, (d) the
disposition of Eligible Securities or Non-Conforming Investments in the ordinary
course of management of the investment portfolio of CPV and its Subsidiaries and
(e) dispositions of personal property that is substantially worn, damaged,
obsolete or, in the judgment of CPV or the Borrower, as the case may be, no
longer best used or useful in its business or that of any Subsidiary.
10.7. INVESTMENTS. Purchase, own, invest in or otherwise acquire,
directly or indirectly, any stock or other securities, or make or permit to
exist any interest whatsoever in any other
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Person or permit to exist any loans or advances to any Person, except that CPV
and the Borrower may maintain investments or invest in:
(a) Eligible Securities;
(b) investments existing as of the date hereof and as set
forth in SCHEDULE 8.4;
(c) investments in Guarantors;
(d) loans between the Borrower, CPV and the Guarantors
described in SECTION 10.5(E); and
(e) Non-conforming Investments and loans and investments in
Unrestricted Subsidiaries; provided, however, that the aggregate
principal amount at any time outstanding of such Non-Conforming
Investments and loans and investments in Unrestricted Subsidiaries
shall not exceed the sum of $5,000,000 plus 5% of Consolidated Total
Value at any time.
10.8. MERGER OR CONSOLIDATION. (a) Consolidate with or merge into any
other Person, or (b) permit any other Person to merge into it, or (c) liquidate,
wind-up or dissolve or sell, transfer or lease or otherwise dispose of all or a
substantial part of its assets (other than sales permitted under SECTIONS
10.6(C) AND (D); PROVIDED, HOWEVER, (i) any Subsidiary may merge or transfer all
or substantially all of its assets into or consolidate with CPV, the Borrower or
any wholly-owned Subsidiary, and (ii) any other Person may merge into or
consolidate with CPV, the Borrower or any wholly-owned Subsidiary and any
Subsidiary may merge into or consolidate with any other Person in order to
consummate an Acquisition permitted by SECTION 10.2; PROVIDED FURTHER, that any
resulting or surviving entity shall execute and deliver such agreements and
other documents, including a Facility Guaranty, and take such other action as
the Agent may require to evidence or confirm its express assumption of the
obligations and liabilities of its predecessor entities under the Loan
Documents.
10.9. RESTRICTED PAYMENTS. Make any Restricted Payment or apply or set
apart any of their assets therefor or agree to do any of the foregoing;
PROVIDED, however, in any fiscal period CPV may if immediately prior to and
immediately after giving effect thereto no Default or Event of Default shall
exist or occur and be continuing, pay dividends on the common or preferred stock
of CPV and make similar distributions in an amount not to exceed the lesser of
(i) 100% of Cash Available for Distribution and (ii) 95% of Funds from
Operations; PROVIDED, FURTHER, however, that if a larger distribution is
necessary for CPV to maintain its status as a REIT and if immediately prior to
and immediately after giving effect thereto no Default or Event of Default shall
exist or occur and be continuing, CPV may pay dividends or make similar
distributions in such greater amount equal to the minimum distribution necessary
for CPV to maintain such status; PROVIDED, FURTHER, however, that CPV may not
pay any such dividends or make any such payments in the aggregate for any
calendar year exceeding the lesser of (i) 100% of Cash Available for
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Distribution and (ii) 95% of Funds from Operations and the Borrower shall make
no distribution if before or after giving effect thereto there exists a Default
or Event of Default.
10.10. TRANSACTIONS WITH AFFILIATES. Other than transactions permitted
under SECTIONS 10.7 and 10.8, enter into any transaction after the Closing Date,
including, without limitation, the purchase, sale, lease or exchange of
property, real or personal, or the rendering of any service, with any Affiliate
of CPV or the Borrower, except (a) that such Persons may render services to CPV
or the Borrower or any Subsidiary for compensation at the same rates generally
paid by Persons engaged in the same or similar businesses for the same or
similar services, (b) that CPV or the Borrower or any Subsidiary may render
services to such Persons for compensation at the same rates generally charged by
CPV or the Borrower or such Subsidiary and (c) in either case in the ordinary
course of business and pursuant to the reasonable requirements of CPV or the
Borrower's (or any Subsidiary's) business and upon fair and reasonable terms no
less favorable to CPV or the Borrower (or any Subsidiary) than would be obtained
in a comparable arm's-length transaction with a Person not an Affiliate.
10.11. COMPLIANCE WITH ERISA. With respect to any Pension Plan,
Employee Benefit Plan or Multiemployer Plan:
(a) permit the occurrence of any Termination Event which would
result in a liability on the part of CPV, the Borrower or any of its or
their ERISA Affiliates to the PBGC; or
(b) permit the present value of all benefit liabilities under
all Pension Plans to exceed the current value of the assets of such
Pension Plans allocable to such benefit liabilities; or
(c) permit any accumulated funding deficiency (as defined in
Section 302 of ERISA and Section 412 of the Code) with respect to any
Pension Plan, whether or not waived; or
(d) fail to make any contribution or payment to any
Multiemployer Plan which CPV, the Borrower or any of its or their ERISA
Affiliates may be required to make under any agreement relating to such
Multiemployer Plan, or any law pertaining thereto; or
(e) engage, or permit CPV, the Borrower or any of its or their
ERISA Affiliates to engage, in any prohibited transaction under Section
406 of ERISA or Sections 4975 of the Code for which a civil penalty
pursuant to Section 502(I) of ERISA or a tax pursuant to Section 4975
of the Code may be imposed; or
(f) permit the establishment of any Employee Benefit Plan
providing post-retirement welfare benefits or establish or amend any
Employee Benefit Plan which establishment or amendment could result in
liability to CPV, the Borrower or any of its
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or their ERISA Affiliates or increase the obligation of CPV, the
Borrower or any of its or their ERISA Affiliates to a Multiemployer
Plan; or
(g) fail, or permit CPV, the Borrower or any of its or their
ERISA Affiliates to fail, to establish, maintain and operate each
Employee Benefit Plan in compliance in all material respects with the
provisions of ERISA, the Code, all applicable Foreign Benefit Laws and
all other applicable laws and the regulations and interpretations
thereof.
10.12. FISCAL YEAR. Change its Fiscal Year.
10.13. DISSOLUTION, ETC. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with a merger or
consolidation permitted pursuant to SECTION 10.8.
10.14. LIMITATIONS ON SALES AND LEASEBACKS. Enter into any arrangement
with any Person providing for the leasing by CPV, the Borrower or any Subsidiary
of real or personal property, whether now owned or hereafter acquired in a
related transaction or series of related transactions, which has been or is to
be sold or transferred by CPV, the Borrower or any Subsidiary to such Person or
to any other Person to whom funds have been or are to be advanced by such Person
on the security of such property or rental obligations of CPV, the Borrower or
any Subsidiary.
10.15. CHANGE OF CONTROL. Cause, suffer or permit to exist or occur any
Change of Control.
10.16. RATE HEDGING OBLIGATIONS. Incur any Rate Hedging Obligations or
enter into any agreements, arrangements, devices or instruments relating to Rate
Hedging Obligations, except pursuant to Swap Agreements in an aggregate notional
amount not to exceed at any time 50% of the Total Revolving Credit Commitment or
as otherwise agreed by the Borrower and the Agent.
10.17. NEGATIVE PLEDGE CLAUSES. Enter into or cause, suffer or permit
to exist any agreement with any Person other than the Agent and the Lenders
pursuant to this Agreement or any other Loan Documents which prohibits or limits
the ability of the Borrower, CPV or any Subsidiary to create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired.
10.18. UNRESTRICTED SUBSIDIARIES. Cause, suffer or permit any
Unrestricted Subsidiary to incur any Indebtedness whatsoever except for
Non-Recourse Indebtedness, which Non-Recourse Indebtedness, together with all
other Non-Recourse Indebtedness of such Unrestricted Subsidiary, is owed to a
single creditor or an agent for more than one creditor so long as such creditors
have provided such Non-Recourse Indebtedness.
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ARTICLE XI
EVENTS OF DEFAULT AND ACCELERATION
11.1. EVENTS OF DEFAULT. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
Governmental Authority), that is to say:
(a) if default shall be made in the due and punctual payment
of the principal of any Loan, Reimbursement Obligation or other
Obligation, when and as the same shall be due and payable whether
pursuant to any provision of ARTICLE II or ARTICLE III, at maturity, by
acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment
of any amount of interest on any Loan, Reimbursement Obligation or
other Obligation or of any fees or other amounts payable to any of the
Lenders or the Agent on the date on which the same shall be due and
payable and such default shall continue for three days or more; or
(c) if default shall be made in the performance or observance
of any covenant set forth in SECTIONS 4.4(C), 9.7, 9.11, 9.12, 9.19
through 9.22 or ARTICLE X;
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement or the Notes (other than as
described in clauses (a), (b) or (c) above) and such default shall
continue for 30 or more days after the earlier of receipt of notice of
such default by the Authorized Representative from the Agent or an
officer of the Borrower becomes aware of such default, or if a default
shall be made in the performance or observance of, or shall occur
under, any covenant, agreement or provision contained in any of the
other Loan Documents (beyond any applicable grace period, if any,
contained therein) or in any instrument or document evidencing or
creating any obligation, guaranty, or Lien in favor of the Agent or any
of the Lenders or delivered to the Agent or any of the Lenders in
connection with or pursuant to this Agreement or any of the
Obligations, or if any Loan Document ceases to be in full force and
effect (other than by reason of any action by the Agent), or if without
the written consent of the Lenders, this Agreement or any other Loan
Document shall be disaffirmed or shall terminate, be terminable or be
terminated or become void or unenforceable for any reason whatsoever
(other than in accordance with its terms in the absence of default or
by reason of any action by the Lenders or the Agent); or
(e) if there shall occur (i) a default, which is not waived,
in the payment of any principal, interest, premium or other amount with
respect to any Indebtedness (other than the Loans and other
Obligations) of CPV or any Subsidiary in an amount not less than
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$500,000 in the aggregate outstanding, or (ii) a default, which is not
waived, in the performance, observance or fulfillment of any term or
covenant contained in any agreement or instrument under or pursuant to
which any such Indebtedness may have been issued, created, assumed,
guaranteed or secured by CPV, the Borrower or any Subsidiary, or (iii)
any other event of default as specified in any agreement or instrument
under or pursuant to which any such Indebtedness may have been issued,
created, assumed, guaranteed or secured by CPV, the Borrower or any
Subsidiary, and such default or event of default shall continue for
more than the period of grace, if any, therein specified, or such
default or event of default as specified in clauses (i), (ii) or (iii)
shall permit the holder of any such Indebtedness (or any agent or
trustee acting on behalf of one or more holders) to accelerate the
maturity thereof; or
(f) if any representation, warranty or other statement of fact
contained in any Loan Document or in any writing, certificate, report
or statement at any time furnished to the Agent or any Lender by or on
behalf of CPV, the Borrower or any other Credit Party pursuant to or in
connection with any Loan Document, or otherwise, shall be false or
misleading in any material respect when given; or
(g) if CPV, the Borrower or any Subsidiary shall be unable to
pay its debts generally as they become due; file a petition to take
advantage of any insolvency statute; make an assignment for the benefit
of its creditors; commence a proceeding for the appointment of a
receiver, trustee, liquidator or conservator of itself or of the whole
or any substantial part of its property; file a petition or answer
seeking liquidation, reorganization or arrangement or similar relief
under the federal bankruptcy laws or any other applicable law or
statute; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of CPV, the Borrower, any other Credit Party
or Wackenhut Corrections Corporation or the whole or any substantial
part of its properties or of any Pledge Property and such order,
judgment or decree continues unstayed and in effect for a period of
sixty (60) days, or approve a petition filed against CPV, the Borrower,
any other Credit Party or Wackenhut Corrections Corporation seeking
liquidation, reorganization or arrangement or similar relief under the
federal bankruptcy laws or any other applicable law or statute of the
United States of America or any state, which petition is not dismissed
within sixty (60) days; or if, under the provisions of any other law
for the relief or aid of debtors, a court of competent jurisdiction
shall assume custody or control of CPV, the Borrower, any other Credit
Party or Wackenhut Corrections Corporation or of the whole or any
substantial part of its properties, or of any Pledge Property which
control is not relinquished within sixty (60) days; or if there is
commenced against CPV, the Borrower, any other Credit Party or
Wackenhut Corrections Corporation any proceeding or petition seeking
reorganization, arrangement or similar relief under the federal
bankruptcy laws or any other applicable law or statute of the United
States of America or any state which proceeding or petition remains
undismissed for a period of sixty (60) days; or if CPV, the Borrower,
any other
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Credit Party or Wackenhut Corrections Corporation takes any action to
indicate its consent to or approval of any such proceeding or petition;
or
(i) if (i) one or more judgments or orders where the amount
not covered by insurance (or the amount as to which the insurer is
found not to be liable) is in excess of $500,000 is rendered against
CPV, the Borrower or any Subsidiary, or (ii) there is any attachment,
injunction or execution against any of CPV, the Borrower's or any
Subsidiary's properties for any amount in excess of $500,000 in the
aggregate; and such judgment, attachment, injunction or execution
remains unpaid, unstayed, undischarged, unbonded or undismissed for a
period of thirty (30) days; or
(j) if CPV, the Borrower or any Subsidiary shall, other than
in the ordinary course of business (as determined by past practices),
suspend all or any part of its operations material to the conduct of
the business of CPV, the Borrower or such Subsidiary for a period of
more than 60 days; or
(k) if CPV, the Borrower or any Subsidiary shall breach any of
the material terms or conditions of any agreement under which any Rate
Hedging Obligations permitted hereby is created and such breach shall
continue beyond any grace period, if any, relating thereto pursuant to
the terms of such agreement, or if CPV, the Borrower or any Subsidiary
shall disaffirm or seek to disaffirm any such agreement or any of its
obligations thereunder; or
(l) if there shall occur and not be waived an Event of Default
as defined in any of the other Loan Documents;
(m) if there shall occur a default (which is not cured within
the applicable cure period therein provided) under, of the breach,
withdrawal, cancellation, rescission, termination, alteration (without
the Agent's consent) of any Security Lease or Security Leases or a
sublease with respect to any Security Lease or Security Leases the
result of which is to cause a termination or reduction of rental
payments under such Security Lease or Security Leases in an amount
exceeding 5% of the total amount of rental payments due during the then
current Fiscal Year under all of the Security Leases then in effect;
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived,
(A) either or both of the following actions may be
taken: (i) the Agent, with the consent of the Majority
Lenders, may, and at the direction of the Majority Lenders
shall, declare any obligation of the Lenders and the Issuing
Bank to make further Revolving Loans and Swing Line Loans or
to issue additional Letters of Credit terminated, whereupon
the obligation of each Lender to make further Revolving Loans,
of NationsBank to make further Swing Line Loans, and of the
Issuing Bank to issue additional Letters of Credit, hereunder
shall terminate
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immediately, and (ii) the Agent shall at the direction of the
Majority Lenders, at their option, declare by notice to the
Borrower any or all of the Obligations to be immediately due
and payable, and the same, including all interest accrued
thereon and all other obligations of the Borrower to the Agent
and the Lenders, shall forthwith become immediately due and
payable without presentment, demand, protest, notice or other
formality of any kind, all of which are hereby expressly
waived, anything contained herein or in any instrument
evidencing the Obligations to the contrary notwithstanding;
PROVIDED, however, that notwithstanding the above, if there
shall occur an Event of Default under clause (g) or (h) above,
then the obligation of the Lenders to make Revolving Loans, of
NationsBank to make Swing Line Loans, and of the Issuing Bank
to issue Letters of Credit hereunder shall automatically
terminate and any and all of the Obligations shall be
immediately due and payable without the necessity of any
action by the Agent or the Majority Lenders or notice to the
Agent or the Lenders;
(B) The Borrower shall, upon demand of the Agent or
the Majority Lenders, deposit cash with the Agent in an amount
equal to the amount of any Letter of Credit Outstandings, as
collateral security for the repayment of any future drawings
or payments under such Letters of Credit, and such amounts
shall be held by the Agent pursuant to the terms of the LC
Account Agreement; and
(C) the Agent and each of the Lenders shall have all
of the rights and remedies available under the Loan Documents
or under any applicable law.
11.2. AGENT TO ACT. In case any one or more Events of Default shall
occur and not have been waived, the Agent may, and at the direction of the
Majority Lenders shall, proceed to protect and enforce their rights or remedies
either by suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or in
any other Loan Document, or to enforce the payment of the Obligations or any
other legal or equitable right or remedy.
11.3. CUMULATIVE RIGHTS. No right or remedy herein conferred upon the
Lenders or the Agent is intended to be exclusive of any other rights or remedies
contained herein or in any other Loan Document, and every such right or remedy
shall be cumulative and shall be in addition to every other such right or remedy
contained herein and therein or now or hereafter existing at law or in equity or
by statute, or otherwise.
11.4. NO WAIVER. No course of dealing between the Borrower and any
Lender or the Agent or any failure or delay on the part of any Lender or the
Agent in exercising any rights or remedies under any Loan Document or otherwise
available to it shall operate as a waiver of any rights or remedies and no
single or partial exercise of any rights or remedies shall operate as a waiver
or preclude the exercise of any other rights or remedies hereunder or of the
same right or remedy on a future occasion.
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11.5. ALLOCATION OF PROCEEDS. If an Event of Default has occurred and
not been waived, and the maturity of the Notes has been accelerated pursuant to
ARTICLE XI hereof, all payments received by the Agent hereunder, in respect of
any principal of or interest on the Obligations or any other amounts payable by
the Borrower hereunder, shall be applied by the Agent in the following order:
(a) amounts due to the Lenders pursuant to SECTIONS 2.10, 3.3,
3.4 AND 13.5;
(b) amounts due to the Agent pursuant to SECTION 12.9;
(c) payments of interest on Revolving Loans, Swing Line Loans
and Reimbursement Obligations, to be applied for the ratable benefit of
the Lenders (with amounts payable in respect of Swing Line Outstandings
being included in such calculation and paid to NationsBank);
(d) payments of principal of Revolving Loans, Swing Line Loans
and Reimbursement Obligations, to be applied for the ratable benefit of
the Lenders (with amounts payable in respect of Swing Line Outstandings
being included in such calculation and paid to NationsBank);
(e) payments of cash amounts to the Agent in respect of
outstanding Letters of Credit pursuant to SECTION 11.1(B);
(f) amounts due to the Lenders pursuant to SECTIONS 3.2(G),
9.15 and 13.9;
(g) payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the
Lenders;
(h) amounts due to any of the Lenders in respect of
Obligations consisting of liabilities under any Swap Agreement with any
of the Lenders on a pro rata basis according to the amounts owed; and
(i) any surplus remaining after application as provided for
herein, to the Borrower or otherwise as may be required by applicable
law.
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ARTICLE XII
THE AGENT
12.1. APPOINTMENT, POWERS, AND IMMUNITIES. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent under this
Agreement and the other Loan Documents with such powers and discretion as are
specifically delegated to the Agent by the terms of this Agreement and the other
Loan Documents, together with such other powers as are reasonably incidental
thereto. The Agent (which term as used in this sentence and in SECTION 12.5 and
the first sentence of SECTION 12.6 hereof shall include its affiliates and its
own and its affiliates' officers, directors, employees, and agents):
(a) shall not have any duties or responsibilities except
those expressly set forth in this Agreement and shall not be a trustee
or fiduciary for any Lender;
(b) shall not be responsible to the Lenders for any recital,
statement, representation, or warranty (whether written or oral) made
in or in connection with any Loan Document or any certificate or other
document referred to or provided for in, or received by any of them
under, any Loan Document, or for the value, validity, effectiveness,
genuineness, enforceability, or sufficiency of any Loan Document, or
any other document referred to or provided for therein or for any
failure by any Credit Party or any other Person to perform any of its
obligations thereunder;
(c) shall not be responsible for or have any duty to
ascertain, inquire into, or verify the performance or observance of any
covenants or agreements by any Credit Party or the satisfaction of any
condition or to inspect the property (including the books and records)
of any Credit Party or any of its Subsidiaries or affiliates;
(d) except as provided in this Agreement, shall not be
required to initiate or conduct any litigation or collection
proceedings under any Loan Document; and
(e) shall not be responsible for any action taken or omitted
to be taken by it under or in connection with any Loan Document, except
for its own gross negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care.
12.2. RELIANCE BY AGENT. The Agent shall be entitled to rely upon any
certification, notice, instrument, writing, or other communication (including,
without limitation, any thereof by telephone or telefacsimile) believed by it to
be genuine and correct and to have been signed, sent or made by or on behalf of
the proper Person or Persons, and upon advice and statements of legal counsel
(including counsel for any Credit Party), independent accountants, and other
experts selected by the Agent. The Agent may deem and treat the payee of any
Note as the holder thereof
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for all purposes hereof unless and until the Agent receives and accepts an
Assignment and Acceptance executed in accordance with SECTION 13.1 hereof. As to
any matters not expressly provided for by this Agreement, 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 Lenders, and such
instructions shall be binding on all of the Lenders; PROVIDED, HOWEVER, that the
Agent shall not be required to take any action that exposes the Agent to
personal liability or that is contrary to any Loan Document or applicable law or
unless it shall first be indemnified to its satisfaction by the Lenders against
any and all liability and expense which may be incurred by it by reason of
taking any such action.
12.3. DEFAULTS. The Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default or Event of Default unless the Agent has
received written notice from a Lender or the Borrower specifying such Default or
Event of Default and stating that such notice is a "Notice of Default". In the
event that the Agent receives such a notice of the occurrence of a Default or
Event of Default, the Agent shall give prompt notice thereof to the Lenders. The
Agent shall (subject to SECTION 12.2 hereof) take such action with respect to
such Default or Event of Default as shall reasonably be directed by the Majority
Lenders, PROVIDED that, unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interest of the Lenders.
12.4. RIGHTS AS LENDER. With respect to its Revolving Credit Commitment
and the Revolving Loans made by it, NationsBank (and any successor acting as
Agent) in its capacity as a Lender hereunder shall have the same rights and
powers hereunder as any other Lender and may exercise the same as though it were
not acting as the Agent, and the term "Lender" or "Lenders" shall, unless the
context otherwise indicates, include the Agent in its individual capacity.
NationsBank (and any successor acting as Agent) and its affiliates may (without
having to account therefor to any Lender) and any Lender may accept deposits
from, lend money to, make investments in, provide services to, and generally
engage in any kind of lending, trust, or other business with any Credit Party or
any of its Subsidiaries or affiliates as if it were not acting as Agent, and
NationsBank (and any successor acting as Agent) and its affiliates may accept
fees and other consideration from any Credit Party or any of its Subsidiaries or
affiliates for services in connection with this Agreement or otherwise without
having to account for the same to the Lenders.
12.5. INDEMNIFICATION. The Lenders agree to indemnify the Agent (to the
extent not reimbursed under SECTION 13.9 hereof, but without limiting the
obligations of the Borrower under such Section) ratably in accordance with their
respective Revolving Credit Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees), or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against the Agent
(including by any Lender) in any way relating to or arising out of any Loan
Document or the transactions contemplated thereby or any action taken or omitted
by the Agent under any Loan Document; PROVIDED that no Lender shall
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be liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Person to be indemnified. Without
limitation of the foregoing, each Lender agrees to reimburse the Agent promptly
upon demand for its ratable share of any costs or expenses payable by the
Borrower under SECTION 13.5, to the extent that the Agent is not promptly
reimbursed for such costs and expenses by the Borrower. The agreements contained
in this SECTION 12.5 shall survive payment in full of the Loans and all other
amounts payable under this Agreement.
12.6. NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender agrees that
it has, independently and without reliance on the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of CPV, the Borrower and their Subsidiaries and decision to
enter into this Agreement and that it will, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under the Loan Documents. Except for
notices, reports, and other documents and information expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition, or business of CPV, the
Borrower or any Subsidiaries or affiliates that may come into the possession of
the Agent or any of its affiliates.
12.7. RESIGNATION OF AGENT. The Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Majority Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Majority Lenders and shall
have accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent which shall be a commercial bank
organized under the laws of the United States of America having combined capital
and surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor, such successor shall thereupon succeed to and
become vested with all the rights, powers, discretion, privileges, and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this ARTICLE XII shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent. In the event NationsBank shall cease to be a Lender
hereunder it shall resign within sixty (60) days as Agent hereunder.
12.8. SHARING OF PAYMENTS, ETC. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, set-off, counterclaim or
otherwise, obtain payment with respect to its Obligations (other than pursuant
to ARTICLE VI) which results in its receiving more than its pro rata share of
the aggregate payments with respect to all of the Obligations (other than any
payment expressly provided hereunder to be distributed on other than a pro rata
basis and payments pursuant to ARTICLE VI), then (a) such Lender shall be deemed
to have simultaneously purchased from the other Lenders a share in their
Obligations so that the amount of the Obligations held by each of the Lenders
shall be pro rata and (b) such other adjustments shall be made from time to
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time as shall be equitable to insure that the Lenders share such payments
ratably; PROVIDED, however, that for purposes of this SECTION 12.8 the term "pro
rata" shall be determined with respect to the Revolving Credit Commitment of
each Lender and to the Total Revolving Credit Commitments after subtraction of
amounts, if any, by which any such Lender has not funded its share of the
outstanding Loans and Obligations. If all or any portion of any such excess
payment is thereafter recovered from the Lender which received the same, the
purchase provided in this SECTION 12.8 shall be rescinded to the extent of such
recovery, without interest. The Borrower expressly consents to the foregoing
arrangements and agree that each Lender so purchasing a portion of the other
Lenders' Obligations may exercise all rights of payment (including, without
limitation, all rights of set-off, banker's lien or counterclaim) with respect
to such portion as fully as if such Lender were the direct holder of such
portion.
12.9. FEES. The Borrower agrees to pay to the Agent, for its individual
account, an annual Agent's fee as from time to time agreed to by the Borrower
and the Agent in writing.
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ARTICLE XIII
MISCELLANEOUS
13.1. ASSIGNMENTS AND PARTICIPATIONS. (a) Each Lender may assign to one
or more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its Revolving
Loans, its Revolving Note, and its Revolving Credit Commitment); PROVIDED,
HOWEVER, that
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or
an assignment of all of a Lender's rights and obligations under this Agreement,
any such partial assignment shall be in an amount at least equal to $10,000,000
or an integral multiple of $1,000,000 in excess thereof;
(iii) each such assignment by a Lender shall be of a constant,
and not varying, percentage of all of its rights and obligations under this
Agreement and the Revolving Note; and
(iv) the parties to such assignment shall execute and deliver
to the Agent for its acceptance an Assignment and Acceptance in the form of
EXHIBIT B hereto, together with any Revolving Note subject to such assignment
and a processing fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder and
the assigning Lender shall, to the extent of such assignment, relinquish its
rights and be released from its obligations under this Agreement. Upon the
consummation of any assignment pursuant to this Section, the assignor, the Agent
and the Borrower shall make appropriate arrangements so that, if required, new
Revolving Notes are issued to the assignor and the assignee. If the assignee is
not incorporated under the laws of the United States of America or a state
thereof, it shall deliver to the Borrower and the Agent certification as to
exemption from deduction or withholding of Taxes in accordance with SECTION 6.6.
(b) The Agent shall maintain at its address referred to in SECTION 13.2
a 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 Lenders and the
Revolving Credit Commitment of, and principal amount of the Revolving Loans
owing to, each Lender 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 Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
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(c) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Revolving Note subject to such assignment and
payment of the processing fee, the Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of EXHIBIT B
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
parties thereto.
(d) Each Lender may sell participations to one or more Persons in all
or a portion of its rights, obligations or rights and obligations under this
Agreement (including all or a portion of its Revolving Credit Commitment or its
Revolving Loans); PROVIDED, HOWEVER, that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the participant shall be entitled to the benefit of the yield protection
provisions contained in ARTICLE VI and the right of set-off contained in SECTION
13.3, and (iv) the Borrower shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrower relating to its Revolving Loans and its Revolving
Note and to approve any amendment, modification, or waiver of any provision of
this Agreement (other than amendments, modifications, or waivers decreasing the
amount of principal of or the rate at which interest is payable on such
Revolving Loans or Revolving Note, extending any scheduled principal payment
date or date fixed for the payment of interest on such Revolving Loans or
Revolving Note, or extending its Revolving Credit Commitment to the extent the
Lender shall grant such rights).
(e) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time assign and pledge all or any portion of its Revolving
Loans and its Revolving Note to any Federal Reserve Bank as collateral security
pursuant to Regulation A and any Operating Circular issued by such Federal
Reserve Bank. No such assignment shall release the assigning Lender from its
obligations hereunder.
(f) Any Lender may furnish any information concerning the Borrower or
any of their Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants),
subject, however, to the provisions of SECTION 13.15 hereof.
13.2. NOTICES. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor) (provided that if such day is not a Business Day, such date of
delivery or receipt shall be deemed to be the next following Business Day), (ii)
on the day of receipt (provided that if such day is not a Business Day, such
date of delivery or receipt shall be deemed to be the next following Business
Day) at such address, telefacsimile number or telex number as may from time to
time be specified by such party in written notice to the other parties hereto or
otherwise received, in the case of notice by telegram, telefacsimile or telex,
respectively (where the receipt of such message is verified by return), or (iii)
on the fifth Business Day after the day on which mailed, if sent prepaid by
certified or registered mail, return receipt requested, in each case delivered,
transmitted or mailed, as the case
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may be, to the address, telex number or telefacsimile number, as appropriate,
set forth below or such other address or number as such party shall specify by
notice hereunder:
(a) if to the Borrower or Guarantor:
c/o CPT Operating Partnership L.P.
0000 XXX Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
with a copy to:
Akerman, Senterfitt & Xxxxxx, P.A.
Las Olas Centre
Suite 950
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxx X. March, Esq.
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
(b) if to the Agent:
NationsBank, National Association
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
with a copy to:
NationsBank, National Association
000 X.X. 0xx Xxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
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(c) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each Assignment
and Acceptance;
(d) if to any other Credit Party, at the address set
forth on the signature page of the Facility Guaranty
or Security Instrument executed by such Credit Party,
as the case may be.
13.3. RIGHT OF SET-OFF; ADJUSTMENTS. (a) Upon the occurrence and during
the continuance of any Event of Default, each Lender (and each of its
affiliates) 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 Lender (or any of its affiliates)
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 this Agreement and
the Note held by such Lender, irrespective of whether such Lender shall have
made any demand under this Agreement or such Note and although such obligations
may be unmatured. Each Lender agrees promptly to notify the Borrower after any
such set-off and application made by such Lender; PROVIDED, HOWEVER, that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this SECTION 13.3 are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Lender may have.
(b) If any Lender (a "benefited Lender") shall at any time receive any
payment of all or part of the Revolving Loans owing to it, or interest thereon,
or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, or otherwise), in a greater proportion than any such
payment to or collateral received by any other Lender, if any, in respect of
such other Lender's Revolving Loans owing to it, or interest thereon, such
benefitted Lender shall purchase for cash from the other Lenders a participating
interest in such portion of each such other Lender's Revolving Loans owing to
it, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefitted Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; PROVIDED, HOWEVER, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest. The
Borrower agrees that any Lender so purchasing a participation from a Lender
pursuant to this SECTION 13.3 may, to the fullest extent permitted by law,
exercise all of its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Person were the direct
creditor of the Borrower in the amount of such participation.
13.4. SURVIVAL. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the issuance of the Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in full force and
effect so long as any of Obligations remain outstanding or any Lender has any
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Eurodollar Rate Loan hereunder or the Borrower have continuing obligations
hereunder unless otherwise provided herein. Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include the
successors and permitted assigns of such party and all covenants, provisions and
agreements by or on behalf of the Borrower which are contained in the Loan
Documents shall inure to the benefit of the successors and permitted assigns of
the Lenders or any of them.
13.5. EXPENSES. The Borrower agrees to pay on demand all costs and
expenses of the Agent in connection with the syndication, preparation,
execution, delivery, administration, modification, and amendment of this
Agreement, the other Loan Documents, and the other documents to be delivered
hereunder, including, without limitation, the reasonable fees and expenses of
counsel for the Agent (including the cost of internal counsel) with respect
thereto and with respect to advising the Agent as to its rights and
responsibilities under the Loan Documents. The Borrower further agrees to pay on
demand all costs and expenses of the Agent and the Lenders, if any (including,
without limitation, reasonable attorneys' fees and expenses and the cost of
internal counsel), in connection with the enforcement (whether through
negotiations, legal proceedings, or otherwise) of the Loan Documents and the
other documents to be delivered hereunder.
13.6. AMENDMENTS AND WAIVERS. Any provision of this Agreement or any
other Loan Document may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower and the Majority Lenders
(and, if ARTICLE XII or the rights or duties of the Agent are affected thereby,
by the Agent); PROVIDED that no such amendment or waiver shall, unless signed by
all the Lenders, (i) increase the Revolving Credit Commitment of the Lenders,
(ii) reduce the principal of or rate of interest on any Loan or any fees or
other amounts payable hereunder, (iii) postpone any date fixed for the payment
of any scheduled installment of principal of or interest on any Loan or any fees
or other amounts payable hereunder or for termination of any Revolving Credit
Commitment, or (iv) change the percentage of the Revolving Credit Commitment or
of the unpaid principal amount of the Notes, or the definition of "Majority
Lenders", or the number of Lenders, which shall be required for the Lenders or
any of them to take any action under this SECTION 13.6 or any other provision of
this Agreement or (v) release any Guarantor or all or substantially all of the
Collateral; and PROVIDED, FURTHER, that no such amendment or waiver that affects
the rights, privileges or obligations of NationsBank as provider of Swing Line
Loans, shall be effective unless also signed in writing by NationsBank or that
affects the rights, privileges or obligations of the Issuing Bank as issuer of
Letters of Credit, shall be effective unless also signed in writing by the
Issuing Bank;
No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances, except as otherwise expressly provided herein. No delay or
omission on any Lender's or the Agent's part in exercising any right, remedy or
option shall operate as a waiver of such or any other right, remedy or option or
of any Default or Event of Default.
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13.7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully- executed counterpart.
13.8. TERMINATION. The termination of this Agreement shall not affect
any rights of the Borrower, the Lenders or the Agent or any obligation of the
Borrower or CPV, the Lenders or the Agent, arising prior to the effective date
of such termination, and the provisions hereof shall continue to be fully
operative until all transactions entered into or rights created or obligations
incurred prior to such termination have been fully disposed of, concluded or
liquidated and the Obligations arising prior to or after such termination have
been irrevocably paid in full. The rights granted to the Agent for the benefit
of the Lenders under the Loan Documents shall continue in full force and effect,
notwithstanding the termination of this Agreement, until all of the Obligations
have been paid in full after the termination hereof (other than Obligations in
the nature of continuing indemnities or expense reimbursement obligations not
yet due and payable, which shall continue) or the Borrower have furnished the
Lenders and the Agent with an indemnification satisfactory to the Agent and each
Lender with respect thereto. All representations, warranties, covenants, waivers
and agreements contained herein shall survive termination hereof until payment
in full of the Obligations unless otherwise provided herein. Notwithstanding the
foregoing, if after receipt of any payment of all or any part of the
Obligations, any Lender is for any reason compelled to surrender such payment to
any Person because such payment is determined to be void or voidable as a
preference, impermissible setoff, a diversion of trust funds or for any other
reason, this Agreement shall continue in full force and the Borrower shall be
liable to, and shall indemnify and hold the Agent or such Lender harmless for,
the amount of such payment surrendered until the Agent or such Lender shall have
been finally and irrevocably paid in full. The provisions of the foregoing
sentence shall be and remain effective notwithstanding any contrary action which
may have been taken by the Agent or the Lenders in reliance upon such payment,
and any such contrary action so taken shall be without prejudice to the Agent or
the Lenders' rights under this Agreement and shall be deemed to have been
conditioned upon such payment having become final and irrevocable.
13.9. INDEMNIFICATION; LIMITATION OF LIABILITY. (a) The Borrower agrees
to indemnify and hold harmless the Agent and each Lender and each of their
affiliates and their respective officers, directors, employees, agents, and
advisors (each, an "Indemnified Party") from and against any and all claims,
damages, losses, liabilities, costs, and expenses (including, without
limitation, reasonable attorneys' fees) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation, or proceeding or preparation of defense in
connection therewith) the Loan Documents, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Loans, except to the
extent such claim, damage, loss, liability, cost, or expense is found in a
final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
In the case of an investigation, litigation or other proceeding to which the
indemnity in this SECTION 13.9 applies, such indemnity shall be effective
whether or not such
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investigation, litigation or proceeding is brought by the Borrower, their
directors, shareholders or creditors or an Indemnified Party or any other Person
or any Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. The Borrower agrees that no
Indemnified Party shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to them, any Subsidiary, any Guarantor, or any
security holders or creditors thereof arising out of, related to or in
connection with the transactions contemplated herein, except to the extent that
such liability is found in a final non-appealable judgment by a court of
competent jurisdiction to have directly resulted from such Indemnified Party's
gross negligence or willful misconduct. The Borrower agrees not to assert any
claim against the Agent, any Lender, any of their affiliates, or any of their
respective directors, officers, employees, attorneys, agents, and advisers, on
any theory of liability, for special, indirect, consequential, or punitive
damages arising out of or otherwise relating to the Loan Documents, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Loans.
(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 13.9 shall survive the payment in full of the Loans and all other
amounts payable under this Agreement.
13.10. SEVERABILITY. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more of
the parties hereto, then such provision shall remain in effect with respect to
all parties, if any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain effective and binding
on the parties hereto.
13.11. ENTIRE AGREEMENT. This Agreement, together with the other Loan
Documents, constitutes the entire agreement among the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, Eurodollar Rate Loans and other communications between or among
the parties, both oral and written, with respect thereto.
13.12. AGREEMENT CONTROLS. In the event that any term of any of the
Loan Documents other than this Agreement conflicts with any express term of this
Agreement, the terms and provisions of this Agreement shall control to the
extent of such conflict.
13.13. USURY SAVINGS CLAUSE. Notwithstanding any other provision
herein, the aggregate interest rate charged under any of the Notes, including
all charges or fees in connection therewith deemed in the nature of interest
under applicable law shall not exceed the Highest Lawful Rate (as such term is
defined below). If the rate of interest (determined without regard to the
preceding sentence) under this Agreement at any time exceeds the Highest Lawful
Rate (as defined below), the outstanding amount of the Loans made hereunder
shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect. In addition, if when the Loans made hereunder are repaid
in full the total interest due hereunder (taking into account the increase
provided for above) is less than the total amount of interest which would have
been due hereunder if the stated rates of interest set forth in this
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Agreement had at all times been in effect, then to the extent permitted by law,
the Borrower shall pay to the Agent an amount equal to the difference between
the amount of interest paid and the amount of interest which would have been
paid if the Highest Lawful Rate had at all times been in effect. Notwithstanding
the foregoing, it is the intention of the Lenders and the Borrower to conform
strictly to any applicable usury laws. Accordingly, if any Lender contracts for,
charges, or receives any consideration which constitutes interest in excess of
the Highest Lawful Rate, then any such excess shall be canceled automatically
and, if previously paid, shall at such Lender's option be applied to the
outstanding amount of the Loans made hereunder or be refunded to the Borrower.
As used in this paragraph, the term "Highest Lawful Rate" means the maximum
lawful interest rate, if any, that at any time or from time to time may be
contracted for, charged, or received under the laws applicable to such Lender
which are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
13.14. PAYMENTS. All principal, interest, and other amounts to be paid
by the Borrower under this Agreement and the other Loan Documents shall be paid
to the Agent at the Principal Office in Dollars and in immediately available
funds, without setoff, deduction or counterclaim. Subject to the definition of
"Interest Period" herein, whenever any payment under this Agreement or any other
Loan Document shall be stated to be due on a day that is not a Business Day,
such payment may be made on the next succeeding Business Day, and such extension
of time in such case shall be included in the computation of interest and fees,
as applicable, and as the case may be.
13.15. CONFIDENTIALITY. The Agent and each Lender (each, a "LENDING
PARTY') agrees to keep confidential any information furnished or made available
to it by the Borrower pursuant to this Agreement that is marked confidential;
PROVIDED that nothing herein shall prevent any Lending Party from disclosing
such information (a) to any other Lending Party or any affiliate of any Party or
affiliate of any Lending Party, (b) to any other Person if reasonably incidental
to the administration of the credit facility provided herein, (c) as required by
any law, rule, or regulation, (d) upon the order of any court or administrative
agency, (e) upon the request or demand of any regulatory agency or authority,
(f) that is or becomes available to the public or that is or becomes available
to any Lending Party other than as a result of a disclosure by any Lending Party
prohibited by this Agreement, (g) in connection with any litigation to which
such Lending Party or any of its affiliates may be a party, (h) to the extent
necessary in connection with the exercise of any remedy under this Agreement or
any other Loan Document, and (i) subject to provisions substantially similar to
those contained in this SECTION 13.15, to any actual or proposed participant or
assignee.
13.16. GOVERNING LAW; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN
THOSE SECURITY INSTRUMENTS WHICH EXPRESSLY PROVIDE THAT THEY SHALL BE
GOVERNED BY THE LAWS OF ANOTHER JURISDICTION) SHALL BE GOVERNED BY, AND
CONSTRUED IN
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ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
(b) THE BORROWER AND CPV HEREBY EXPRESSLY AND IRREVOCABLY
AGREE AND CONSENT THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY
BE INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTIES OF
DADE, BROWARD OR PALM BEACH, STATE OF FLORIDA, UNITED STATES OF AMERICA
AND, BY THE EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER AND
CPV EXPRESSLY WAIVE ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF VENUE IN, OR TO THE EXERCISE OF JURISDICTION OVER IT
AND ITS PROPERTY BY, ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING, AND THE BORROWER AND CPV HEREBY IRREVOCABLY SUBMIT
GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH COURT IN
ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) THE BORROWER AND CPV AGREE THAT SERVICE OF PROCESS MAY BE
MADE BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR
OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY
REGISTERED OR CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE
BORROWER PROVIDED IN SECTION 13.2, OR BY ANY OTHER METHOD OF SERVICE
PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF
FLORIDA.
(d) NOTHING CONTAINED IN SUBSECTIONS (A) OR (B) HEREOF SHALL
PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT IN THE
COURTS OF ANY JURISDICTION WHERE THE BORROWER OR CPV OR ANY OF THE
BORROWER'S OR CPV'S PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE
EXTENT PERMITTED BY THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, THE
BORROWER AND CPV HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY
SUCH COURT AND EXPRESSLY WAIVE, IN RESPECT OF ANY SUCH SUIT, ACTION OR
PROCEEDING, OBJECTION TO THE EXERCISE OF JURISDICTION OVER THEM AND
THEIR PROPERTY BY ANY SUCH OTHER COURT OR COURTS WHICH NOW OR HEREAFTER
MAY BE AVAILABLE UNDER APPLICABLE LAW.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR
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AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN
CONNECTION THEREWITH, THE BORROWER, CPV, THE AGENT AND THE LENDERS
HEREBY AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY SUCH
ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY AND HEREBY IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY
SUCH ACTION OR PROCEEDING.
[Signatures on following pages]
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111
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
CPT OPERATING PARTNERSHIP L.P.,
as Borrower
By: Correctional Properties Trust, General Partner
WITNESS:
/s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxx
--------------------------- --------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President & Chief Executive Officer
/s/ Xxxxxxx X. Xxxxx
---------------------------
CORRECTIONAL PROPERTIES TRUST,
as Guarantor
WITNESS:
/s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxx
--------------------------- --------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President & Chief Executive Officer
/s/ Xxxxxxx X. Xxxxx
---------------------------
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent for the Lenders
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
CREDIT AGREEMENT
SIGNATURE PAGE 1 OF 10
112
NATIONSBANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
Lending Office for Base Rate Loans:
NationsBank, National Association
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
NationsBank, National Association
ABA# 000000000
Account No.: ____________________________
Reference: Correctional Properties Trust
Attention: Agency Services
Lending Office for Eurodollar Rate Loans:
NationsBank, National Association
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
NationsBank, National Association
ABA# 000000000
Account No.: ____________________________
Reference: Correctional Properties Trust
Attention: Agency Services
CREDIT AGREEMENT
SIGNATURE PAGE 2 OF 10
000
XXX XXXX XX XXXX XXXXXX
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Relationship Manager
Lending Office:
0 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wire Transfer Instructions:
The Bank of Nova Scotia
New York, New York
ABA #000000000
Account #NCB New York 6086-37
Attention: Xxxxxx Xxxx
Reference: Correctional Properties Trust
CREDIT AGREEMENT
SIGNATURE PAGE 3 OF 10
114
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxx Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx Xxxxxx
Title: Senior Vice President
Lending Office:
00 X. Xxxxxx Xxxx, 0xx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
First Union National Bank
Jacksonville, Florida
ABA #000000000
Account #______________________________
Account Name: Correctional Properties Trust
Attention: Xxxxx Xxxxx
CREDIT AGREEMENT
SIGNATURE PAGE 4 OF 10
115
PNC BANK, N.A.
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
Lending Office:
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Wire Transfer Instructions:
PNC Bank, N.A.
Pittsburgh, Pennsylvania
ABA #000-000-000
Account #196030010890
Attention: Commercial Loan Operations
Reference: Correctional Properties Trust
CREDIT AGREEMENT
SIGNATURE PAGE 5 OF 10
116
SOUTHTRUST BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
Lending Office:
000 X. 00xx Xxxxxx
Southeastern Banking, 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
SouthTrust Bank, National Association
Birmingham, Alabama
ABA #062-000080
Account #131009
Attention: Xxxxxx Xxxxxxxx (000) 000-0000
upon receipt
CREDIT AGREEMENT
SIGNATURE PAGE 6 OF 10
000
XXXXXXXX XXXX, XXXXX XXXXXXX, N.A.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Lending Office:
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
SunTrust Bank, South Florida, N.A.
Fort Lauderdale, Florida
ABA #000000000
Account #9607004110
Account Name: Corporate Loan Operations
Attention: Xxxxxxxx Xxxxxxxx
Reference: Correctional Properties Trust
CREDIT AGREEMENT
SIGNATURE PAGE 7 OF 10
118
BANKATLANTIC
By: /s/ Xxx X. Xxxxxx
----------------------------------------
Name: Xxx X. Xxxxxx
Title: Senior Vice President
Lending Office:
000 X. Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
BankAtlantic
Ft. Lauderdale, Florida
ABA #000000000
Account #00000000
Account Name: CPT Operating Partnership L.P.
Attention: Xxxxx Xxxxxxxxx
Vice President Commercial Loan Operations
CREDIT AGREEMENT
SIGNATURE PAGE 8 OF 10
119
BANK ONE, OKLAHOMA, N.A.
By: /s/ Xxxx Xxxx XxXxxxx
-------------------------------------
Name: Xxxx Xxxx XxXxxxx
Title: Vice President
Lending Office:
000 X. Xxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Wire Transfer Instructions:
Bank One, Oklahoma, N.A.
Oklahoma City, Oklahoma
ABA #000000000
GL Account #151010-0780
Attention: Commercial Loans
Reference: Correctional Properties Trust
CREDIT AGREEMENT
SIGNATURE PAGE 9 OF 10
120
BANK AUSTRIA CREDITANSTALT CORPORATE
FINANCE, INC.
By: /s/ Xxxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Associate
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
Lending Office:
Xxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
Chase NY
ABA #000000000
Account: Bank Austria
Account #400921944
Reference: Correctional Properties Trust
CREDIT AGREEMENT
SIGNATURE PAGE 10 OF 10
