EXHIBIT 10.23
CREDIT AGREEMENT
CREDIT AGREEMENT ("Agreement"), dated as of the 12th day of December,
2000 by and among CORNERSTONE REALTY INCOME TRUST, INC., a Virginia corporation
("Cornerstone"), CRIT-NC, LLC, a Virginia limited liability company and a
Subsidiary of Cornerstone ("CRIT-NC"), each Additional Borrower that may become
party to this Agreement pursuant to the terms hereof (the "Additional
Borrowers", and collectively with Cornerstone and CRIT-NC, the "Borrowers"), the
Lenders who are or may become a party to this Agreement (the "Lenders") and
FIRST UNION NATIONAL BANK, as Administrative Agent for the Lenders (the
"Administrative Agent").
STATEMENT OF PURPOSE
The Borrowers have requested and the Lenders have agreed to extend a
credit facility to the Borrowers on the terms and conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. The following terms when used in this
Agreement shall have the meanings assigned to them below:
"Additional Borrower" means each Subsidiary which hereafter becomes a
Borrower pursuant to Section 8.17.
"Adjusted EBITDA" means, with respect to the Borrowers and their
Subsidiaries for any period, the following calculated without duplication for
such period on a Consolidated basis in accordance with GAAP: (a) EBITDA for such
period less (b) the Unit Capital Expense Charge for such period.
"Adjusted NOI" means, with respect the Borrowers and their Subsidiaries
for any period, the amount equal to (a) the sum of all revenues and income
received by the Borrowers and their Subsidiaries with respect to the relevant
Property or Properties less (b) the sum of all reasonable and customary expenses
incurred by the Borrowers and their Subsidiaries in the operation of such
Property or Properties, including, without limitation, utility expenses,
property taxes, insurance premiums, management fees and Capital Expenditures
(but excluding depreciation, amortization and income taxes).
"Adjusted Unencumbered Asset Cash Flow" means, with respect to the
Borrowers and their Wholly-Owned Subsidiaries for any period, the following
calculated without duplication for such
period on a Consolidated basis in accordance with GAAP: (a) the aggregate Net
Operating Income derived from all Unencumbered Assets for such period less (b)
the Unit Capital Expense Charge for such period.
"Adjusted Unencumbered Asset Value" means, with respect to the
Borrowers and their Wholly-Owned Subsidiaries for any period, the quotient of
the following calculated without duplication for such period on a Consolidated
basis in accordance with GAAP: (a) (i) the aggregate Net Operating Income
derived from all Unencumbered Assets, as determined on the date of computation,
for such period less (ii) the Unit Capital Expense Charge for such period
divided by (b) nine and one-half percent (9.5%); provided that (i) for the
purposes hereof, Net Operating Income as used in this definition shall be
calculated on a pro forma basis (based upon Cornerstone's best good faith
estimate as to the applicable fiscal quarter and in form and substance
satisfactory to the Administrative Agent) to include as of the first day of such
period all Unencumbered Assets acquired during such period, (ii) for the
purposes of Section 9.5 hereof, Net Operating Income as used in this definition
shall be calculated for the applicable fiscal quarter on an Annualized basis;
and (iii) for purposes of determining compliance with Section 9.5 hereof, this
computation shall be done on a Property-by-Property basis, and if the Borrowers
own, at the time of computation, eight (8) or fewer Unencumbered Assets which
comply with the requirements of Section 9.7 hereof, then the portion, if any, of
any such Unencumbered Assets' Adjusted Unencumbered Asset Value in excess of
$25,000,000 will be excluded for the purpose of determining compliance with
Section 9.5 hereof.
"Administrative Agent" means First Union in its capacity as
Administrative Agent hereunder, and any successor thereto appointed pursuant to
Section 12.9.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
13.1.
"Affiliate" means, with respect to any Person, any other Person (other
than a Subsidiary) which directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such first Person or any of its Subsidiaries. The term "control" means (a) the
power to vote five percent (5%) or more of the securities or other equity
interests of a Person having ordinary voting power, or (b) the possession,
directly or indirectly, of any other power to direct or cause the direction of
the management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
"Aggregate Commitment" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be reduced or modified at any time or
from time to time pursuant to the terms hereof. On the Closing Date, the
Aggregate Commitment shall be Fifty Million Dollars ($50,000,000).
"Agreement" means this Credit Agreement, as amended, restated,
supplemented or otherwise modified from time to time.
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"Annualized" means, with respect any financial term calculated for the
Borrowers and their Subsidiaries for the applicable fiscal quarter, the
calculation of such financial term for such fiscal quarter times four (4).
"Applicable Law" means all applicable provisions of constitutions,
statutes, laws, rules, treaties, regulations and orders of all Governmental
Authorities and all orders and decrees of all courts and arbitrators.
"Applicable Margin" shall have the meaning assigned thereto in Section
4.1(c).
"Application" means an application, in the form specified by the
Issuing Lender from time to time, requesting the Issuing Lender to issue a
Letter of Credit.
"Assignment and Acceptance" shall have the meaning assigned thereto in
Section 13.10.
"Available Commitment" means, as to any Lender at any time, an amount
equal to (a) such Lender's Commitment less (b) such Lender's Extensions of
Credit.
"Base Rate" means, at any time, the higher of (a) the Prime Rate or (b)
the Federal Funds Rate plus 1/2 of 1%; each change in the Base Rate shall take
effect simultaneously with the corresponding change or changes in the Prime Rate
or the Federal Funds Rate.
"Base Rate Loan" means any Loan bearing interest at a rate based upon
the Base Rate as provided in Section 4.1(a).
"Borrowers" means the collective reference to Cornerstone, CRIT-NC and
any Additional Borrowers in their capacity as borrowers hereunder.
"Business Day" means (a) for all purposes other than as set forth in
clause (b) below, any day other than a Saturday, Sunday or legal holiday on
which banks in Charlotte, North Carolina and New York, New York, are open for
the conduct of their commercial banking business, and (b) with respect to all
notices and determinations in connection with, and payments of principal and
interest on, any LIBOR Rate Loan, any day that is a Business Day described in
clause (a) and that is also a day for trading by and between banks in Dollar
deposits in the London interbank market.
"Capital Asset" means, with respect to the Borrowers and their
Subsidiaries, any asset that should, in accordance with GAAP, be classified and
accounted for as a capital asset on a Consolidated balance sheet of the
Borrowers and their Subsidiaries.
"Capital Expenditures" means, with respect to the Borrowers and their
Subsidiaries for any period, the aggregate cost of all expenditures required for
the leasing of space within the Properties owned and previously leased by the
Borrowers and their Subsidiaries, including, without limitation, upfit expenses
and leasing commissions, together with expenses for the renovation or
improvement of existing Properties that are classified as capital expenditures
in accordance with GAAP.
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"Capital Lease" means, with respect to the Borrowers and their
Subsidiaries, any lease of any property that should, in accordance with GAAP, be
classified and accounted for as a capital lease on a Consolidated balance sheet
of the Borrowers and their Subsidiaries.
"Change in Control" shall have the meaning assigned thereto in Section
11.1(i).
"Closing Date" means the date of this Agreement or such later Business
Day upon which each condition described in Article V shall be satisfied or
waived in all respects in a manner acceptable to the Administrative Agent, in
its sole discretion.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended or supplemented from time to time.
"Commitment" means, as to any Lender, the obligation of such Lender to
make Loans to and issue or participate in Letters of Credit issued for the
account of the Borrowers hereunder in an aggregate principal amount at any time
outstanding not to exceed the amount set forth opposite such Lender's name on
Schedule 1.1(a) hereto, as the same may be reduced or modified at any time or
from time to time pursuant to the terms hereof.
"Commitment Percentage" means, as to any Lender at any time, the ratio
of (a) the amount of the Commitment of such Lender to (b) the Aggregate
Commitment of all of the Lenders.
"Consolidated" means, when used with reference to financial statements
or financial statement items of the Borrowers and their Subsidiaries, such
statements or items on a consolidated basis in accordance with applicable
principles of consolidation under GAAP.
"Contingent Obligation" means, with respect to the Borrowers and their
Subsidiaries, without duplication, any obligation, contingent or otherwise, of
any such Person pursuant to which such Person has directly or indirectly
guaranteed any Debt or other obligation of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of any such Person (a) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by agreement to keep
well, to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement condition or otherwise) or (b) entered into for the
purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided, that the term Contingent
Obligation shall not include endorsements for collection or deposit in the
ordinary course of business.
"Cornerstone" shall have the meaning assigned thereto in the preamble
to this Agreement.
"Credit Facility" means the collective reference to the Revolving
Credit Facility and the L/C Facility.
"CRIT-NC" shall have the meaning assigned thereto in the preamble to
this Agreement.
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"Debt" means, with respect to the Borrowers and their Subsidiaries at
any date and without duplication, the sum of the following calculated in
accordance with GAAP: (a) all liabilities, obligations and indebtedness for
borrowed money including but not limited to obligations evidenced by bonds,
debentures, notes or other similar instruments of any such Person, (b) all
obligations to pay the deferred purchase price of property or services of any
such Person, (c) all obligations of any such Person as lessee under Capital
Leases, (d) all Debt of any other Person secured by a Lien on any asset of any
such Person, (e) all Contingent Obligations of any such Person, (f) all
obligations, contingent or otherwise, of any such Person relative to the face
amount of letters of credit, whether or not drawn, including, without
limitation, any Reimbursement Obligation, and banker's acceptances issued for
the account of any such Person, (g) all obligations incurred by any such Person
pursuant to Hedging Agreements and (h) the Borrowers' and their Subsidiaries'
Proportionate Share of the Debt (as defined in the foregoing clauses) of all
Ventures.
"Default" means any of the events specified in Section 11.1 which with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"Dividends" means, with respect to the Borrowers and their Subsidiaries
for any period, all dividends or distributions paid by any such Person with
respect to its capital stock.
"Dollars" or "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"EBITDA" means, with respect to the Borrowers and their Subsidiaries
for any period, the following, calculated without duplication for such period on
a Consolidated basis in accordance with GAAP: (a) Net Income for such period
plus (b) to the extent deducted in determining Net Income, (i) income and
franchise taxes for such period, (ii) Interest Expense for such period, (iii)
depreciation, amortization and other non-operating, non-cash charges (consisting
of amortization of goodwill, transaction expenses, covenants not to compete and
other intangible assets) and (iv) extraordinary or other non-recurring losses or
expenses less (c) (i) extraordinary or other non-recurring gains or income and
(ii) equity in earnings of Affiliates of the Borrowers and their Subsidiaries
(plus equity in losses of such Persons), plus (d) the Borrowers' and their
Subsidiaries' Proportionate Share of EBITDA (as defined in the foregoing
clauses) of all Ventures.
"Eligible Assignee" means, with respect to any assignment of the
rights, interest and obligations of a Lender hereunder, a Person that is at the
time of such assignment (a) a commercial bank organized under the laws of the
United States or any state thereof, having combined capital and surplus in
excess of $500,000,000, (b) a finance company, insurance company or other
financial institution which in the ordinary course of business extends credit of
the type extended hereunder and that has total assets in excess of
$1,000,000,000, (c) already a Lender hereunder (whether as an original party to
this Agreement or as the assignee of another Lender), (d) the successor (whether
by transfer of assets, merger or otherwise) to all or substantially all of the
commercial lending business of the assigning Lender, or (e) any other Person
that has been approved in writing as an Eligible Assignee by the Borrowers and
the Administrative Agent (except that such approval shall not be required upon
the occurrence and during the continuance of any Event of Default Sections
11.1(a), (b), (j) or (k)).
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"Employee Benefit Plan" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which (a) is maintained for employees of any
Borrower any ERISA Affiliate or (b) has at any time within the preceding six (6)
years been maintained for the employees of any Borrower or any current or former
ERISA Affiliate.
"Environmental Laws" means any and all federal, state and local laws,
statutes, ordinances, rules, regulations, permits, licenses, approvals,
interpretations and orders of courts or Governmental Authorities, relating to
the protection of human health or the environment, including, but not limited
to, requirements pertaining to the manufacture, processing, distribution, use,
treatment, storage, disposal, transportation, handling, reporting, licensing,
permitting, investigation or remediation of Hazardous Materials.
"Equity Issuance" means any issuance by any Borrower or any of its
Subsidiaries of (a) shares of its capital stock or other equity interests
(including, without limitation, participation units), (b) shares of its capital
stock or other equity interests (including, without limitation, participation
units) pursuant to the exercise of options or warrants, or (c) shares of its
capital stock or other equity interests (including, without limitation,
participation units) pursuant to the conversion of any debt securities to
equity.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, each as amended or modified from time to
time.
"ERISA Affiliate" means any Person who together with any Borrower is
treated as a single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or Section 4001(b) of ERISA.
"Eurodollar Reserve Percentage" means, for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve requirement
(including without limitation any basic, supplemental or emergency reserves) in
respect of Eurocurrency liabilities or any similar category of liabilities for a
member bank of the Federal Reserve System in New York City.
"Event of Default" means any of the events specified in Section 11.1,
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"Extensions of Credit" means, as to any Lender at any time, an amount
equal to the sum of (a) the aggregate principal amount of all Loans made by such
Lender then outstanding and (b) the aggregate principal amount of such Lender's
Commitment Percentage of the L/C Obligations then outstanding.
"FDIC" means the Federal Deposit Insurance Corporation, or any
successor thereto.
"Federal Funds Rate" means, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Administrative Agent and confirmed in
Federal Reserve Board Statistical Release H.15 (519) or any
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successor or substitute publication selected by the Administrative Agent. If,
for any reason, such rate is not available, then "Federal Funds Rate" shall mean
a daily rate which is determined, in the opinion of the Administrative Agent, to
be the rate at which federal funds are being offered for sale in the national
federal funds market at 9:00 a.m. (Charlotte time). Rates for weekends or
holidays shall be the same as the rate for the most immediate preceding Business
Day.
"First Union" means First Union National Bank, a national banking
association, and its successors.
"Fiscal Year" means the fiscal year of the Borrowers and their
Subsidiaries ending on December 31.
"Fixed Charges" means, with respect to the Borrowers and their
Subsidiaries for any period, the sum of the following for such period calculated
on a Consolidated basis in accordance with GAAP: (a) Interest Expense paid or
payable during such period, (b) income and franchise taxes paid or payable
during such period, (c) the scheduled principal payments during such period with
respect to any Debt including the Borrowers' and Subsidiaries' Proportionate
Share of Debt of all Ventures (regardless of whether such amounts are actually
paid), and (d) the total amount of Dividends paid or accrued with respect to
preferred stock (to the extent such Dividends are permitted by this Agreement)
during such period, and (e) the Borrowers' and their Subsidiaries' Proportionate
Share of the total amount of any distributions which are paid, payable or
accrued with respect to all Ventures and which has a preference over
distributions paid, payable or accruing in favor of the applicable Borrower or
Subsidiary.
"Funds from Operations" means, with respect to the Borrowers and their
Subsidiaries for any period, all Funds from Operations (as defined as of the
date of such determination by the Board of Governors of the National Association
of Real Estate Investment Trusts).
"GAAP" means generally accepted accounting principles, as recognized by
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis for the Borrowers and their Subsidiaries throughout the period indicated
and consistent with the prior financial practice of the Borrowers and their
Subsidiaries.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Hazardous Materials" means any substances or materials (a) which are
or become defined as hazardous wastes, hazardous substances, pollutants,
contaminants, chemical substances or mixtures or toxic substances under any
Environmental Law, (b) which are toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to
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human health or the environment and are or become regulated by any Governmental
Authority, (c) the presence of which require investigation or remediation under
any Environmental Law or common law, (d) the discharge or emission or release of
which requires a permit or license under any Environmental Law or other
Governmental Approval, (e) which are deemed to constitute a nuisance, a trespass
or pose a health or safety hazard to persons or neighboring properties, (f)
which are materials consisting of underground or aboveground storage tanks,
whether empty, filled or partially filled with any substance, or (g) which
contain, without limitation, asbestos, polychlorinated biphenyls, urea
formaldehyde foam insulation, petroleum hydrocarbons, petroleum derived
substances or waste, crude oil, nuclear fuel, natural gas or synthetic gas.
"Hedging Agreement" means any agreement with respect to an interest
rate swap, collar, cap, floor or a forward rate agreement or other agreement
regarding the hedging of interest rate risk exposure executed in connection with
hedging the interest rate exposure of any Borrower under this Agreement, and any
confirming letter executed pursuant to such hedging agreement, all as amended,
restated, supplemented or otherwise modified.
"Interest Expense" means, with respect to the Borrowers and their
Subsidiaries for any period, the gross interest expense (including, without
limitation, capitalized and accrued interest expense and interest expense
attributable to Capital Leases and all net obligations pursuant to Hedging
Agreements and interest expense attributable to the Borrowers' and their
Subsidiaries' Proportionate Share of Debt of all Ventures) of the Borrowers and
their Subsidiaries, determined for such period on a Consolidated basis in
accordance with GAAP.
"Interest Period" shall have the meaning assigned thereto in Section
4.1(b).
"Issuing Lender" means First Union, in its capacity as issue of any
Letter of Credit, or any successor thereto.
"Joinder Agreement" means each Joinder Agreement executed by an
Additional Borrower pursuant to Section 8.17, substantially in the form of
Exhibit I attached hereto, as amended, supplemented or otherwise modified from
time to time.
"L/C Commitment" means Seven Million Five Hundred Thousand Dollars
($7,500,000).
"L/C Facility" means the letter of credit facility established pursuant
to Article III hereof.
"L/C Obligations" means at any time, an amount equal to the sum of (a)
the aggregate undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit which
have not then been reimbursed pursuant to Section 3.5.
"L/C Participants" means the collective reference to all the Lenders
other than the Issuing Lender.
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"Lender" means each Person executing this Agreement as a Lender set
forth on the signature pages hereto and each Person that hereafter becomes a
party to this Agreement as a Lender pursuant to Section 13.10.
"Lending Office" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Commitment Percentage of the Loans.
"Letters of Credit" shall have the meaning assigned thereto in Section
3.1(a).
"Leverage Ratio" means the ratio determined pursuant to Section 9.1.
"LIBOR" means the rate for deposits in Dollars for a period equal to
the Interest Period selected which appears on the Telerate Page 3750 at
approximately 11:00 a.m. London time, two (2) Business Days prior to the
commencement of the applicable Interest Period. If, for any reason, such rate is
not available, then "LIBOR" shall mean the rate per annum at which, as
determined by the Administrative Agent, Dollars in the amount of $5,000,000 are
being offered to leading banks at approximately 11:00 a.m. London time, two (2)
Business Days prior to the commencement of the applicable Interest Period for
settlement in immediately available funds by leading banks in the London
interbank market for a period equal to the Interest Period selected.
"LIBOR Rate" means a rate per annum (rounded upwards, if necessary, to
the next higher 1/100th of 1%) determined by the Administrative Agent pursuant
to the following formula:
LIBOR Rate = LIBOR
----------------------------------
1.00-Eurodollar Reserve Percentage
"LIBOR Rate Loan" means any Loan bearing interest at a rate based upon
the LIBOR Rate as provided in Section 4.1(a).
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, any asset which a Person has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, Capital Lease or other title retention agreement relating to such
asset shall be deemed to be subject to a Lien.
"Loan" means any revolving loan made to any Borrower pursuant to
Section 2.1, and all such Loans collectively as the context requires.
"Loan Documents" means, collectively, this Agreement, the Notes, any
Hedging Agreement executed by any Lender, and each other document, instrument
and agreement executed and delivered by any Borrower, any Subsidiary thereof or
their counsel in connection with this Agreement, all as may be amended,
restated, supplemented or otherwise modified.
"Material Adverse Effect" means, with respect to any Borrower or any of
its Subsidiaries, a material adverse effect on the properties, business,
prospects, operations or condition (financial or otherwise) of any such Person,
the ability of any such Person to perform its obligations under the
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Loan Documents or Material Contracts, in each case to which it is a party, or
the ability of the Administrative Agent or any Lender to enforce its respective
rights and remedies under the Loan Documents.
"Material Contract" means (a) any single contract or other agreement,
written or oral, of any Borrower or any of its Subsidiaries involving monetary
liability of or to any such Person in an amount in excess of $1,000,000 per
annum, or (b) any other single contract or agreement, written or oral, of any
Borrower or any of its Subsidiaries the failure to comply with which could
reasonably be expected to have a Material Adverse Effect.
"Maturity Date" means December 12, 2002.
"Moody's" means Xxxxx'x Investors Service, Inc., and its successors and
assigns.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which any Borrower or any ERISA Affiliate is making, or
is accruing an obligation to make, contributions within the preceding six years.
"Multifamily Properties" means (i) any apartment Project of any
Borrower or any Subsidiary thereof comprised of no less than fifty (50)
individual units which Project can be operated as a single residential rental
facility without necessity for sharing amenities (i.e., leasing offices, tennis
courts, swimming pools and the like) with any other residential rental facility
and (ii) any apartment Project of any Borrower or any Subsidiary thereof which
Project can be operated as a single residential rental facility as a result of
the sharing of amenities (i.e., leasing offices, tennis courts, swimming pools
and the like) with any other adjoining apartment Project of any Borrower or any
Subsidiary thereof.
"Net Equity Proceeds" means, with respect to any Equity Issuance, the
gross cash proceeds received by any Borrower or any Subsidiary thereof less all
legal, underwriting and other reasonable fees and expenses incurred in
connection therewith.
"Net Income" means, with respect to the Borrowers and their
Subsidiaries for any period, the net income (or loss) for such period determined
on a Consolidated basis in accordance with GAAP; provided that there shall be
excluded from net income (or loss): (a) the income (or loss) of any Person
(other than a Subsidiary of such Person) in which such Person has an ownership
interest unless received by such Person in a cash distribution and (b) the
income (or loss) of any such Person accrued prior to the date it became a
Subsidiary or is merged into or consolidated with such first Person.
"Net Operating Income" means, with respect to the Borrowers and their
Wholly-Owned Subsidiaries for any period, the following calculated in accordance
with GAAP: (a) the gross revenues of the Borrowers and their Wholly-Owned
Subsidiaries derived from Multifamily Properties less (b) operating expenses
(including, without limitation, property taxes and insurance expenses) of the
Borrowers and their Wholly-Owned Subsidiaries attributable to Multifamily
Properties less (c) management fees of the Borrowers and their Wholly-Owned
Subsidiaries attributable to Multifamily Properties.
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"Notes" means the separate Revolving Credit Notes made by the Borrowers
payable to the order of each Lender, substantially in the form of Exhibit A
hereto, evidencing the Revolving Credit Facility, and any amendments and
modifications thereto, any substitutes therefor, and any replacements,
restatements, renewals or extension thereof, in whole or in part; "Note" means
any of such Notes.
"Notice of Account Designation" shall have the meaning assigned thereto
in Section 2.2(b).
"Notice of Borrowing" shall have the meaning assigned thereto in
Section 2.2(a).
"Notice of Conversion/Continuation" shall have the meaning assigned
thereto in Section 4.2.
"Notice of Prepayment" shall have the meaning assigned thereto in
Section 2.3(c).
"Obligations" means, in each case, whether now in existence or
hereafter arising: (a) the principal of and interest on (including interest
accruing after the filing of any bankruptcy or similar petition) the Loans, (b)
the L/C Obligations, (c) all payment and other obligations owing by any Borrower
to any Lender or the Administrative Agent under any Hedging Agreement executed
pursuant to Section 10.1(b) to which a Lender is a party and (d) all other fees
and commissions (including attorneys' fees), charges, indebtedness, loans,
liabilities, financial accommodations, obligations, covenants and duties owing
by any Borrower to the Lenders or the Administrative Agent, of every kind,
nature and description, direct or indirect, absolute or contingent, due or to
become due, contractual or tortious, liquidated or unliquidated, and whether or
not evidenced by any note, and whether or not for the payment of money under or
in respect of this Agreement, any Note or any of the other Loan Documents.
"Officer's Compliance Certificate" shall have the meaning assigned
thereto in Section 7.2.
"Other Taxes" shall have the meaning assigned thereto in Section
4.11(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or
Section 412 of the Code and which (a) is maintained for employees of any
Borrower or any ERISA Affiliates or (b) has at any time within the preceding six
years been maintained for the employees of any Borrower or any of their current
or former ERISA Affiliates.
"Person" means an individual, limited liability company, corporation,
partnership, association, trust, business trust, joint venture, joint stock
company, pool, syndicate, sole proprietorship, unincorporated organization,
Governmental Authority or any other form of entity or group thereof.
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"Prime Rate" means, at any time, the rate of interest per annum
publicly announced from time to time by First Union as its prime rate. Each
change in the Prime Rate shall be effective as of the opening of business on the
day such change in the Prime Rate occurs. The parties hereto acknowledge that
the rate announced publicly by First Union as its Prime Rate is an index or base
rate and shall not necessarily be its lowest or best rate charged to its
customers or other banks.
"Pro Forma Debt Service" shall mean an amount equal to the pro forma
principal and interest payments on the Total Unsecured Debt as calculated based
on a twenty (20) year amortization schedule and an interest rate equal to the
greater of: (i) the then prevailing interest rate on the Treasury Note (as
determined by Administrative Agent) plus 2.00% per annum; or (ii) seven and
one-half percent (7.50%) per annum.
"Projects" or "Properties" means all real property, together with all
improvements thereon, owned by the Borrowers or any of their Subsidiaries;
"Project" or "Property" means any of such Projects or Properties.
"Proportionate Share" means with respect to the allocation of any item
to a Borrower or a Subsidiary from a Venture, the amount of such item for the
period in question so allocated to such Borrower or Subsidiary under the
governing documents of such Venture, or if such documents are silent or are
overridden by Applicable Law then the amount so allocated pursuant to Applicable
Law.
"Register" shall have the meaning assigned thereto in Section 13.10(d).
"Reimbursement Obligation" means the obligation of the Borrowers to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit.
"Required Lenders" means, at any date, any combination of holders of at
least sixty-six and two-thirds percent (66-2/3%) of the aggregate unpaid
principal amount of the Notes, or if no amounts are outstanding under the Notes,
any combination of Lenders whose Commitment Percentages aggregate at least
sixty-six and two-thirds percent (66-2/3%).
"Revolving Credit Facility" means the revolving credit facility
extended pursuant to Article II hereof.
"Shareholder's Equity" means, with respect to the Borrowers and their
Subsidiaries, at any date, the shareholders' equity (including capital stock,
additional paid-in capital and retained earnings, after deducting treasury
stock) of such Persons on such date determined in accordance with GAAP.
"Solvent" means, as to any Borrower or any Subsidiary thereof on a
particular date, that any such Person (a) has capital sufficient to carry on its
business and transactions and all business and transactions in which it is about
to engage and is able to pay its debts as they mature, (b) owns property having
a value, both at fair valuation and at present fair saleable value, greater than
the amount required to pay its probable liabilities (including contingencies),
and (c) does not believe that it will incur debts or liabilities beyond its
ability to pay such debts or liabilities as they mature.
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"Standard & Poor's" means Standard & Poor's Ratings Group, a Division
of XxXxxx-Xxxx Corporation, and its successors and assigns.
"Subordinated Debt" means the collective reference to Debt on Schedule
6.1(r) hereof designated as Subordinated Debt and any other Debt of any Borrower
or any Subsidiary subordinated in right and time of payment to the Obligations
on terms satisfactory to the Required Lenders.
"Subsidiary" means as to any Person, any corporation, partnership or
other entity of which more than fifty percent (50%) of the outstanding capital
stock or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other managers of such corporation,
partnership or other entity is at the time, directly or indirectly, owned by or
the management is otherwise controlled by such Person (irrespective of whether,
at the time, capital stock of any other class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency). Unless otherwise qualified references to "Subsidiary" or
"Subsidiaries" herein shall refer to those of the Borrowers.
"Taxes" shall have the meaning assigned thereto in Section 4.11(a).
"Termination Date" means the earliest of the dates referred to in
Section 2.6.
"Termination Event" means: (a) a "Reportable Event" described in
Section 4043 of ERISA, or (b) the withdrawal of any Borrower or any ERISA
Affiliate 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 (c) 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 (d) the institution of proceedings to terminate, or the appointment of
a trustee with respect to, any Pension Plan by the PBGC, or (e) 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 (f) the partial or complete withdrawal of any Borrower or any ERISA
Affiliate from a Multiemployer Plan, or (g) the imposition of a Lien pursuant to
Section 412 of the Code or Section 302 of ERISA, or (h) any event or condition
which results in the reorganization or insolvency of a Multiemployer Plan under
Sections 4241 or 4245 of ERISA, or (i) any event or condition which results in
the termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by PBGC of proceedings to terminate a Multiemployer Plan under
Section 4042 of ERISA.
"Total Construction in Progress Value" means, with respect to the
Borrowers and their Subsidiaries on any date of determination, the aggregate,
good faith estimated cost of construction (including, without limitation,
acquisition costs for the applicable Properties) for Properties during the time
period from the date which site work has been initiated to the date which is
three (3) months after a certificate of occupancy has been issued. The Total
Construction in Progress Value shall include for purposes hereof the foregoing
items with respect to apartment projects owned by Ventures multiplied by the
same percentage used in determining the applicable Borrower's or Subsidiary's
Proportionate Share of EBITDA of such Venture but shall not include
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rehabilitation/redevelopment costs associated with existing Properties which
have an average occupancy rate during the applicable period of greater than
sixty percent (60%).
"Total Funded Debt" means, with respect to the Borrowers and their
Subsidiaries at any date and without duplication, the sum of the following
calculated in accordance with GAAP: (a) all liabilities, obligations and
indebtedness for borrowed money including, but not limited to, obligations
evidenced by bonds, debentures, notes or other similar instruments of any such
Person, (b) all obligations to pay the deferred purchase price of property or
services of any such Person, except trade payables arising in the ordinary
course of business not more than ninety (90) days past due, accrued expenses
arising in the ordinary course of business, security deposits and rents received
in advance, (c) all obligations of any such Person as lessee under Capital
Leases, (d) all Debt of any other Person secured by a Lien on any asset of any
such Person, (e) all Contingent Obligations of any such Person, (f) all
obligations, contingent or otherwise, of any such Person relative to the face
amount of letters of credit, whether or not drawn and banker's acceptances
issued for the account of any such Person, and (g) the Borrowers' and their
Subsidiaries' Proportionate Share of the foregoing items of all Ventures.
"Total Implied Capitalization Value" means, with respect to the
Borrowers and their Subsidiaries for any fiscal quarter, an amount equal to (a)
the EBITDA of the Borrowers and their Subsidiaries for such period (calculated
on an Annualized basis) less the Unit Capital Expense Charge for such fiscal
quarter divided by (b) nine and one-half percent (9.50%) plus (c) as of the last
day of the fiscal quarter, cash proceeds held by Borrowers and their
Subsidiaries resulting from the sale of any Properties; provided that for the
purposes hereof, EBITDA shall be calculated on a pro forma basis (based upon
Cornerstone's best good faith estimate as to the applicable fiscal quarter and
in form and substance satisfactory to the Administrative Agent) to include, as
of the first day of such period, all Properties acquired during such period and
to exclude, as of the first day of such period, all Properties sold during such
period.
"Total Secured Debt" means the aggregate principal amount of Total
Funded Debt secured by a Lien on any assets of any Borrower or any Subsidiary
thereof or any Venture, and as to which the only recourse which the lenders
thereof have for the payment of principal and interest is to the specific assets
upon which the Liens have been placed.
"Total Unsecured Debt" means the aggregate principal amount of Total
Funded Debt not secured by a Lien on any assets of any Borrower or any
Subsidiary thereof.
"Treasury Note" means the most recently auctioned 10-year note issued
by the United States Department of the Treasury.
"Uniform Customs" the Uniform Customs and Practice for Documentary
Credits (1994 Revision), International Chamber of Commerce Publication No. 500.
"UCC" means the Uniform Commercial Code as in effect in the State of
North Carolina.
"Unencumbered Assets" means, with respect to the Borrowers and their
Wholly-Owned Subsidiaries, all Multifamily Properties which (i) are wholly owned
by any Borrower or any of its
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Wholly-Owned Subsidiaries, (ii) are not secured or otherwise encumbered by any
Lien, and (iii) are at least eighty percent (80%) occupied (provided that, for
the purpose of this clause (iii), (A) Properties shall be required to be only
sixty percent (60%) occupied if such Properties have been acquired within the
six (6) month period prior to the applicable date of determination and (B)
Properties shall be required to be only seventy percent (70%) occupied if such
Properties have been acquired within the six (6) month to twelve (12) month
period prior to the applicable date of determination).
"Unencumbered Asset Coverage Ratio" means the ratio determined pursuant
to Section 9.5.
"Unit" means each individual rental residential apartment within a
Multifamily Property.
"Unit Capital Expense Charge" means, with respect to the Borrowers and
their Subsidiaries for any period, an annual recurring capital expense charge of
$225 per Unit based on the average number of Units held in each such Person's
portfolio during such period. With respect to any calculation for a period less
than one (1) year, such expense charge of $225 per Unit shall be calculated on a
pro rata basis based upon the applicable time period.
"United States" means the United States of America.
"Venture" means any entity in which any Borrower or Subsidiary of a
Borrower owns a beneficial interest and such entity is accounted for in the
financial statements of such Borrower or Subsidiary on an equity basis of
accounting and whose financial results would not be consolidated under GAAP with
the financial results of any Borrower or Subsidiary of Borrower on the
consolidated financial statements of any Borrower or Subsidiary of Borrower.
"Wholly-Owned" means, with respect to a Subsidiary, a Subsidiary all of
the shares of capital stock or other ownership interests of which are, directly
or indirectly, owned or controlled by any Borrower and/or one or more of its
Wholly-Owned Subsidiaries.
SECTION 1.2 General. Unless otherwise specified, a reference in this
Agreement to a particular section, subsection, Schedule or Exhibit is a
reference to that section, subsection, Schedule or Exhibit of this Agreement.
Wherever from the context it appears appropriate, each term stated in either the
singular or plural shall include the singular and plural, and pronouns stated in
the masculine, feminine or neuter gender shall include the masculine, the
feminine and the neuter. Any reference herein to "Charlotte time" shall refer to
the applicable time of day in Charlotte, North Carolina.
SECTION 1.3 Other Definitions and Provisions.
(a) Use of Capitalized Terms. Unless otherwise defined therein, all
capitalized terms defined in this Agreement shall have the defined meanings when
used in this Agreement, the Notes and the other Loan Documents or any
certificate, report or other document made or delivered pursuant to this
Agreement.
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(b) Miscellaneous. The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
ARTICLE II
REVOLVING CREDIT FACILITY
SECTION 2.1 Revolving Credit Loans. Subject to the terms and conditions
of this Agreement, each Lender severally agrees to make Loans to the Borrowers
on a joint and several basis from time to time from the Closing Date through the
Termination Date as requested by Cornerstone on behalf of the Borrowers in
accordance with the terms of Section 2.2; provided, that (a) the aggregate
principal amount of all outstanding Loans (after giving effect to any amount
requested) shall not exceed the Aggregate Commitment less the L/C Obligations
and (b) the principal amount of outstanding Loans from any Lender to the
Borrowers shall not at any time exceed such Lender's Commitment less the
aggregate principal amount of such Lender's Commitment Percentage of the L/C
Obligations. Each Loan by a Lender shall be in a principal amount equal to such
Lender's Commitment Percentage of the aggregate principal amount of Loans
requested on such occasion. Subject to the terms and conditions hereof, the
Borrowers may borrow, repay and reborrow Loans hereunder until the Termination
Date.
SECTION 2.2 Procedure for Advances of Loans.
(a) Requests for Borrowing. Cornerstone, on behalf of the Borrowers,
shall give the Administrative Agent irrevocable prior written notice in the form
attached hereto as Exhibit B (a "Notice of Borrowing") not later than 11:00 a.m.
(Charlotte time) (i) at least one (1) Business Day before each Base Rate Loan
and (ii) at least three (3) Business Days before each LIBOR Rate Loan, of its
intention to borrow, specifying (A) the date of such borrowing, which shall be a
Business Day, (B) the amount of such borrowing, which shall be (x) with respect
to Base Rate Loans in an aggregate principal amount of $2,000,000 or a whole
multiple of $100,000 in excess thereof and (y) with respect to LIBOR Rate Loans
in an aggregate principal amount of $2,000,000 or a whole multiple of $100,000
in excess thereof, (C) whether the Loans are to be LIBOR Rate Loans or Base Rate
Loans, and (D) in the case of a LIBOR Rate Loan, the duration of the Interest
Period applicable thereto. Notices received after 11:00 a.m. (Charlotte time)
shall be deemed received on the next Business Day. The Administrative Agent
shall notify the Lenders of each Notice of Borrowing not later than 5:00 p.m.
(Charlotte time) on the Business Day the Administrative Agent receives such
Notice of Borrowing.
(b) Disbursement of Loans. Not later than 2:00 p.m. (Charlotte time) on
the proposed borrowing date, each Lender will make available to the
Administrative Agent, for the account of the Borrowers, at the office of the
Administrative Agent in funds immediately available to the Administrative Agent,
such Lender's Commitment Percentage of the Loans to be made on such borrowing
date. The Borrowers hereby irrevocably authorize the Administrative Agent to
disburse the proceeds of each borrowing requested pursuant to this Section 2.2
in immediately available funds by crediting or wiring such proceeds to the
deposit account of the Borrowers identified in the
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most recent Notice of Account Designation substantially in the form of Exhibit G
hereto (a "Notice of Account Designation") delivered by the Borrowers to the
Administrative Agent or may be otherwise agreed upon by the Borrowers and the
Administrative Agent from time to time. Subject to Section 4.7 hereof, the
Administrative Agent shall not be obligated to disburse the portion of the
proceeds of any Loan requested pursuant to this Section 2.2 to the extent that
any Lender has not made available to the Administrative Agent its Commitment
Percentage of such Loan.
SECTION 2.3 Repayment of Loans.
(a) Repayment on Termination Date. The Borrowers shall repay the
outstanding principal amount of all Loans in full, together with all accrued but
unpaid interest thereon, on the Termination Date.
(b) Mandatory Repayment of Excess Loans. If at any time the outstanding
principal amount of all Loans exceeds the Aggregate Commitment less the L/C
Obligations, the Borrowers shall repay immediately upon notice from the
Administrative Agent, by payment to the Administrative Agent for the account of
the Lenders, the Loans in an amount equal to such excess. Each such repayment
shall be accompanied by any amount required to be paid pursuant to Section 4.9
hereof.
(c) Optional Repayments. The Borrowers may at any time and from time to
time repay the Loans, in whole or in part, upon at least three (3) Business
Days' irrevocable notice to the Administrative Agent with respect to LIBOR Rate
Loans and one (1) Business Day irrevocable notice with respect to Base Rate
Loans, in the form attached hereto as Exhibit C (a "Notice of Prepayment")
specifying the date and amount of repayment and whether the repayment is of
LIBOR Rate Loans, Base Rate Loans, or a combination thereof, and, if of a
combination thereof, the amount allocable to each. Upon receipt of such notice,
the Administrative Agent shall promptly notify each Lender. If any such notice
is given, the amount specified in such notice shall be due and payable on the
date set forth in such notice. Partial repayments shall be in an aggregate
amount of $1,000,000 or a whole multiple of $100,000 in excess thereof with
respect to Base Rate Loans and $1,000,000 or a whole multiple of $100,000 in
excess thereof with respect to LIBOR Rate Loans. Each such repayment shall be
accompanied by any amount required to be paid pursuant to Section 4.9 hereof.
(d) Limitation on Repayment of LIBOR Rate Loans. The Borrowers may not
repay any LIBOR Rate Loan on any day other than on the last day of the Interest
Period applicable thereto unless such repayment is accompanied by any amount
required to be paid pursuant to Section 4.9 hereof.
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SECTION 2.4 Revolving Credit Notes. Each Lender's Loans and the
obligation of the Borrowers to repay such Loans shall be evidenced by a Note
executed by the Borrowers payable to the order of such Lender representing the
Borrowers' obligation to pay such Lender's Commitment or, if less, the aggregate
unpaid principal amount of all Loans made and to be made by such Lender to the
Borrowers hereunder, plus interest and all other fees, charges and other amounts
due thereon. Each Note shall bear interest on the unpaid principal amount
thereof at the applicable interest rate per annum specified in Section 4.1.
SECTION 2.5 Permanent Reduction of the Aggregate Commitment.
(a) The Borrowers shall have the right at any time and from time to
time, upon at least five (5) Business Days prior written notice to the
Administrative Agent, to permanently reduce, in whole at any time or in part
from time to time, without premium or penalty, the Aggregate Commitment in an
aggregate principal amount not less than $1,000,000 or any whole multiple of
$1,000,000 in excess thereof.
(b) Each permanent reduction permitted or required pursuant to this
Section 2.5 shall be accompanied by a payment of principal sufficient to reduce
the aggregate outstanding Extensions of Credit of the Lenders after such
reduction to the Aggregate Commitment as so reduced. The Commitment of each
Lender shall be reduced by the amount of the applicable reduction on a pro rata
basis in accordance with the Lenders' respective Commitment Percentages. Any
reduction of the Aggregate Commitment to zero shall be accompanied by payment of
all outstanding Obligations (and furnishing of cash collateral satisfactory to
the Administrative Agent for all L/C Obligations) and, if such reduction is
permanent, termination of the Commitments and the Credit Facility. If the
reduction of the Aggregate Commitment requires the repayment of any LIBOR Rate
Loan, such reduction may be made only on the last day of the then current
Interest Period applicable thereto unless such repayment is accompanied by any
amount required to be paid pursuant to Section 4.9 hereof. Such cash collateral
shall be applied in accordance with Section 11.2(b).
SECTION 2.6 Termination of the Credit Facility. The Credit Facility
shall terminate on the earliest of (a) the Maturity Date, (b) the date of
termination by the Borrowers pursuant to Section 2.5(a), and (c) the date of
termination by the Administrative Agent on behalf of the Lenders pursuant to
Section 11.2(a). Notwithstanding anything to the contrary set forth above, the
Borrowers may request a one (1) year extension of the Termination Date by
delivering and written request to the Administrative Agent (on behalf of the
Lenders) not less than one hundred twenty (120) days prior to the existing
Termination Date, which request shall be promptly forwarded by the
Administrative Agent to each of the Lenders. No Lender shall be under any
obligation or commitment to extend the Termination Date, and failure on the part
of any Lender to respond to any such request shall be deemed to be a denial of
such request. The terms and conditions of any such request to extend the
Termination Date shall be agreed upon by the mutual consent of the Lenders, the
Administrative Agent and the Borrowers at the time of any such request.
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SECTION 2.7 Use of Proceeds. The Borrowers shall use the proceeds of
the Loans for working capital and general corporate purposes, including: (a) to
finance the acquisition of apartment properties and (b) to finance the
rehabilitation of apartment properties.
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1 L/C Commitment. Subject to the terms and conditions hereof,
the Issuing Lender, in reliance on the agreements of the other Lenders set forth
in Section 3.4(a), agrees to issue standby letters of credit ("Letters of
Credit") for the account of the Borrowers on any Business Day from the Closing
Date through but not including the Termination Date in such form as may be
approved from time to time by the Issuing Lender; provided, that the Issuing
Lender shall have no obligation to issue any Letter of Credit if, after giving
effect to such issuance, (a) the L/C Obligations would exceed the L/C Commitment
or (b) the Available Commitment of any Lender would be less than zero. Each
Letter of Credit shall (i) be denominated in Dollars in a minimum amount of
$100,000, (ii) be a standby letter of credit issued to support obligations of
any Borrower or any Subsidiary thereof, contingent or otherwise, incurred in the
ordinary course of business, (iii) expire on a date satisfactory to the Issuing
Lender, which date shall be no later than the Termination Date and (iv) be
subject to the Uniform Customs and, to the extent not inconsistent therewith,
the laws of the State of North Carolina. The Issuing Lender shall not at any
time be obligated to issue any Letter of Credit hereunder if such issuance would
conflict with, or cause the Issuing Lender or any L/C Participant to exceed any
limits imposed by, any Applicable Law. References herein to "issue" and
derivations thereof with respect to Letters of Credit shall also include
extensions or modifications of any existing Letters of Credit, unless the
context otherwise requires.
SECTION 3.2 Procedure for Issuance of Letters of Credit. Cornerstone,
on behalf of the Borrowers, may from time to time request that the Issuing
Lender issue a Letter of Credit by delivering to the Issuing Lender at the
Administrative Agent's Office an Application therefor, completed to the
satisfaction of the Issuing Lender, and such other certificates, documents and
other papers and information as the Issuing Lender may request. Upon receipt of
any Application, the Issuing Lender shall process such Application and the
certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall,
subject to Section 3.1 and Article V hereof, promptly issue the Letter of Credit
requested thereby (but in no event shall the Issuing Lender be required to issue
any Letter of Credit earlier than three (3) Business Days after its receipt of
the Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed by the
Issuing Lender and the Borrowers. The Issuing Lender shall furnish to the
Borrowers a copy of such Letter of Credit and furnish to each Lender a copy of
such Letter of Credit and the amount of each Lender's participation in such
Letter of Credit, all promptly following the issuance of such Letter of Credit.
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SECTION 3.3 Commissions and Other Charges.
(a) The Borrowers shall pay to the Administrative Agent, for the
account of the Issuing Lender and the L/C Participants, an annual letter of
credit commission with respect to each Letter of Credit in an amount equal to
the product of (i) the Applicable Margin with respect to LIBOR Rate Loans and
(ii) the face amount of such Letter of Credit. Such commission shall be payable
quarterly in arrears on the last Business Day of each fiscal quarter of the
Borrowers and on the Termination Date.
(b) In addition to the foregoing commission, the Borrowers shall pay
the Issuing Lender an issuance fee of $150 with respect to each Letter of
Credit.
(c) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the Issuing Lender and the L/C Participants all
commissions received by the Administrative Agent in accordance with their
respective Commitment Percentages.
SECTION 3.4 L/C Participations.
(a) The Issuing Lender irrevocably agrees to grant and hereby grants to
each L/C Participant, and, to induce the Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase
and hereby accepts and purchases from the Issuing Lender, on the terms and
conditions hereinafter stated, for such L/C Participant's own account and risk
an undivided interest equal to such L/C Participant's Commitment Percentage in
the Issuing Lender's obligations and rights under each Letter of Credit issued
hereunder and the amount of each draft paid by the Issuing Lender thereunder.
Each L/C Participant unconditionally and irrevocably agrees with the Issuing
Lender that, if a draft is paid under any Letter of Credit for which the Issuing
Lender is not reimbursed in full by the Borrowers in accordance with the terms
of this Agreement, such L/C Participant shall pay to the Issuing Lender upon
demand at the Issuing Lender's address for notices specified herein an amount
equal to such L/C Participant's Commitment Percentage of the amount of such
draft, or any part thereof, which is not so reimbursed.
(b) Upon becoming aware of any amount required to be paid by any L/C
Participant to the Issuing Lender pursuant to Section 3.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit, the Issuing Lender shall notify each L/C Participant of the amount
and due date of such required payment and such L/C Participant shall pay to the
Issuing Lender the amount specified on the applicable due date. If any such
amount is paid to the Issuing Lender after the date such payment is due, such
L/C Participant shall pay to the Issuing Lender on demand, in addition to such
amount, the product of (i) such amount, times (ii) the daily average Federal
Funds Rate as determined by the Administrative Agent during the period from and
including the date such payment is due to the date on which such payment is
immediately available to the Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. A certificate of the Issuing Lender with respect to
any amounts owing under this Section 3.4 shall be conclusive in the absence of
manifest error. With respect to payment to the Issuing Lender of the
unreimbursed amounts described in this Section 3.4(b), if the L/C Participants
receive notice that any such payment is due
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(A) prior to 1:00 p.m. (Charlotte time) on any Business Day, such payment shall
be due that Business Day, and (B) after 1:00 p.m. (Charlotte time) on any
Business Day, such payment shall be due on the following Business Day.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its
Commitment Percentage of such payment in accordance with this Section 3.4, the
Issuing Lender receives any payment related to such Letter of Credit (whether
directly from the Borrowers or otherwise), or any payment of interest on account
thereof, the Issuing Lender will distribute to such L/C Participant its pro rata
share thereof; provided, that in the event that any such payment received by the
Issuing Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof previously
distributed by the Issuing Lender to it.
SECTION 3.5 Reimbursement Obligation of the Borrower. The Borrowers
agree to reimburse the Issuing Lender on each date on which the Issuing Lender
notifies Cornerstone, on behalf of the Borrowers, of the date and amount of a
draft paid under any Letter of Credit for the amount of (a) such draft so paid
and (b) any taxes, fees, charges or other costs or expenses incurred by the
Issuing Lender in connection with such payment. Each such payment shall be made
to the Issuing Lender at its address for notices specified herein in lawful
money of the United States and in immediately available funds. Interest shall be
payable on any and all amounts remaining unpaid by the Borrowers under this
Article III from the date such amounts become payable (whether at stated
maturity, by acceleration or otherwise) until payment in full at the rate which
would be payable on any outstanding Base Rate Loans which were then overdue. If
the Borrowers fail to timely reimburse the Issuing Lender on the date
Cornerstone, on behalf of the Borrowers, receives the notice referred to in this
Section 3.5, Cornerstone, on behalf of the Borrowers, shall be deemed to have
timely given a Notice of Borrowing hereunder to the Administrative Agent
requesting the Lenders to make a Base Rate Loan to the Borrowers on such date in
an amount equal to the amount of such drawing and, subject to the satisfaction
or waiver of the conditions precedent specified in Article V, the Lenders shall
make Base Rate Loans in such amount, the proceeds of which shall be applied to
reimburse the Issuing Lender for the amount of the related drawing and costs and
expenses.
SECTION 3.6 Obligations Absolute. The Borrowers' obligations under this
Article III (including without limitation the Reimbursement Obligation) shall be
absolute and unconditional under any and all circumstances and irrespective of
any set-off, counterclaim or defense to payment which the Borrowers may have or
have had against the Issuing Lender or any beneficiary of a Letter of Credit.
The Borrowers also agree with the Issuing Lender that the Issuing Lender shall
not be responsible for, and the Borrowers' Reimbursement Obligation under
Section 3.5 shall not be affected by, among other things, the validity or
genuineness of documents or of any endorsements thereon, even though such
documents shall in fact prove to be invalid, fraudulent or forged, or any
dispute between or among the Borrowers and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred or
any claims whatsoever of the Borrowers against any beneficiary of such Letter of
Credit or any such transferee. The Issuing Lender shall not be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with any Letter of
Credit, except for errors or omissions caused by the
21
Issuing Lender's gross negligence or willful misconduct. The Borrowers agree
that any action taken or omitted by the Issuing Lender under or in connection
with any Letter of Credit or the related drafts or documents, if done in the
absence of gross negligence or willful misconduct and in accordance with the
standards of care specified in the Uniform Customs and, to the extent not
inconsistent therewith, the UCC shall be binding on the Borrowers and shall not
result in any liability of the Issuing Lender to the Borrowers. The
responsibility of the Issuing Lender to the Borrowers in connection with any
draft presented for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are in conformity with such
Letter of Credit.
SECTION 3.7 Effect of Application. To the extent that any provision of
any Application related to any Letter of Credit is inconsistent with the
provisions of this Article III, the provisions of this Article III shall apply.
ARTICLE IV
GENERAL LOAN PROVISIONS
SECTION 4.1 Interest.
(a) Interest Rate Options. Subject to the provisions of this Section
4.1, at the election of Cornerstone, on behalf of the Borrowers, the aggregate
principal balance of the Notes or any portion thereof shall bear interest at the
Base Rate or the LIBOR Rate plus, in each case, the Applicable Margin as set
forth below. Cornerstone, on behalf of the Borrowers shall select the interest
rate index noted above (i.e., the Base Rate or the LIBOR Rate) and Interest
Period, if any, applicable to any Loan at the time a Notice of Borrowing is
given pursuant to Section 2.2 or at the time a Notice of Conversion/Continuation
is given pursuant to Section 4.2. Each Loan or portion thereof bearing interest
based on the Base Rate shall be a "Base Rate Loan", each Loan or portion thereof
bearing interest based on the LIBOR Rate shall be a "LIBOR Rate Loan". Any Loan
or any portion thereof as to which Cornerstone, on behalf of the Borrowers, has
not duly specified an interest rate as provided herein shall be deemed a Base
Rate Loan.
(b) Interest Periods. In connection with each LIBOR Rate Loan,
Cornerstone, on behalf of the Borrowers, by giving notice at the times described
in Section 4.1(a), shall elect an interest period (each, an "Interest Period")
to be applicable to such Loan, which Interest Period shall be a period of one
(1), two (2), three (3), or six (6) months with respect to each LIBOR Rate Loan;
provided that:
(i) the Interest Period shall commence on the date of advance
of or conversion to any LIBOR Rate Loan and, in the case of immediately
successive Interest Periods, each successive Interest Period shall
commence on the date on which the next preceding Interest Period
expires;
22
(ii) if any Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided, that if any Interest Period
with respect to a LIBOR Rate Loan would otherwise expire on a day that
is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day;
(iii) any Interest Period with respect to a LIBOR Rate Loan
that 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 the relevant calendar month at the end of such Interest
Period;
(iv) no Interest Period shall extend beyond the Termination
Date; and
(v) there shall be no more than five (5) Interest Periods
outstanding at any time.
(c) Applicable Margin. The Applicable Margin provided for in Section
4.1(a) with respect to the Loans (the "Applicable Margin") shall (i) on the
Closing Date equal the percentages set forth in the certificate delivered
pursuant to Section 5.2(d)(iv) and (ii) for each fiscal quarter thereafter be
determined by reference to the Unencumbered Asset Coverage Ratio as of the end
of the fiscal quarter immediately preceding the delivery of the applicable
Officer's Compliance Certificate as follows:
Applicable Margin Per Annum
Unencumbered Asset Coverage Ratio Base Rate + LIBOR Rate +
--------------------------------- -------------------------------------------
Equal to or greater than 6.67 to 1.00 0.000% 0.90%
Equal to or greater than 3.33 to 1.00 0.000% 1.20%
but less than 6.67 to 1.00
Less than 3.33 to 1.00 0.000% 1.60%
Adjustments, if any, in the Applicable Margin as determined herein
shall be made by the Administrative Agent on the tenth (10th) Business
Day after receipt by the Administrative Agent of quarterly financial
statements for the Borrowers and their Subsidiaries and the
accompanying Officer's Compliance Certificate setting forth the
Unencumbered Asset Coverage Ratio of the Borrowers and their
Subsidiaries as of the most recent fiscal quarter end. Subject to
Section 4.1(d), in the event the Borrowers fail to deliver such
financial statements and certificate within the time required by
Section 7.2 hereof, the Applicable Margin shall be the highest
Applicable Margin set forth above until the delivery of such financial
statements and certificate.
23
(d) Default Rate. Upon the occurrence and during the continuance of an
Event of Default, (i) the Borrowers shall no longer have the option to request
LIBOR Rate Loans, (ii) all outstanding LIBOR Rate Loans shall bear interest at a
rate per annum two percent (2%) in excess of the rate then applicable to LIBOR
Rate Loans until the end of the applicable Interest Period and thereafter at a
rate equal to two percent (2%) in excess of the rate then applicable to Base
Rate Loans, and (iii) all outstanding Base Rate Loans shall bear interest at a
rate per annum equal to two percent (2%) in excess of the rate then applicable
to Base Rate Loans. Interest shall continue to accrue on the Notes after the
filing by or against any Borrower of any petition seeking any relief in
bankruptcy or under any act or law pertaining to insolvency or debtor relief,
whether state, federal or foreign.
(e) Interest Payment and Computation. Interest on each Base Rate Loan
shall be payable in arrears with respect to each calendar month on the first
Business Day of the following calendar month commencing January 1, 2001;
interest on each LIBOR Rate Loan shall be payable on the last day of each
Interest Period applicable thereto, and if such Interest Period extends over
three (3) months, at the end of each three (3) month interval during such
Interest Period. All interest rates, fees and commissions provided hereunder
shall be computed on the basis of a 360-day year and assessed for the actual
number of days elapsed.
(f) Maximum Rate. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under any of the Notes
charged or collected pursuant to the terms of this Agreement or pursuant to any
of the Notes exceed the highest rate permissible under any Applicable Law which
a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines that the Lenders
have charged or received interest hereunder in excess of the highest applicable
rate, the rate in effect hereunder shall automatically be reduced to the maximum
rate permitted by Applicable Law and the Lenders shall at the Administrative
Agent's option promptly refund to the Borrowers any interest received by Lenders
in excess of the maximum lawful rate or shall apply such excess to the principal
balance of the Obligations. It is the intent hereof that the Borrowers not pay
or contract to pay, and that neither the Administrative Agent nor any Lender
receive or contract to receive, directly or indirectly in any manner whatsoever,
interest in excess of that which may be paid by the Borrowers under Applicable
Law.
SECTION 4.2 Notice and Manner of Conversion or Continuation of Loans.
Provided that no Event of Default has occurred and is then continuing, the
Borrowers shall have the option to (a) convert at any time all or any portion of
its outstanding Base Rate Loans in a principal amount equal to $2,000,000 or any
whole multiple of $100,000 in excess thereof into one or more LIBOR Rate Loans
or (b) upon the expiration of any Interest Period, (i) convert all or any part
of its outstanding LIBOR Rate Loans in a principal amount equal to $2,000,000 or
a whole multiple of $100,000 in excess thereof into Base Rate Loans or (ii)
continue such LIBOR Rate Loans as LIBOR Rate Loans. Whenever the Borrowers
desire to convert or continue Loans as provided above, the Borrowers shall give
the Administrative Agent irrevocable prior written notice in the form attached
as Exhibit D (a "Notice of Conversion/Continuation") not later than 11:00 a.m.
(Charlotte time) three (3) Business Days before the day on which a proposed
conversion or continuation of such Loan is to be effective specifying (A) the
Loans to be
24
converted or continued, and, in the case of any LIBOR Rate Loan to be converted
or continued, the last day of the Interest Period therefor, (B) the effective
date of such conversion or continuation (which shall be a Business Day), (C) the
principal amount of such Loans to be converted or continued, and (D) the
Interest Period to be applicable to such converted or continued LIBOR Rate Loan.
The Administrative Agent shall promptly notify the Lenders of such Notice of
Conversion/Continuation.
SECTION 4.3 Fees.
(a) Facility Fee. On the Closing Date, the Borrowers shall pay to the
Administrative Agent, for the account of the Lenders, a non-refundable fee equal
to 0.300% of the Aggregate Commitment. Such facility fee shall be distributed by
the Administrative Agent to the Lenders pro rata in accordance with the Lenders'
respective Commitment Percentages.
(b) Commitment Fee. Commencing on the Closing Date, the Borrowers shall
pay to the Administrative Agent, for the account of the Lenders, a
non-refundable commitment fee at a rate per annum equal to 0.250% on the average
daily unused portion of the Aggregate Commitment. The commitment fee shall be
payable in arrears on the last Business Day of each calendar quarter during the
term of this Agreement commencing December 31, 2000, and on the Termination
Date. Such commitment fee shall be distributed by the Administrative Agent to
the Lenders pro rata in accordance with the Lenders' respective Commitment
Percentages.
(c) Administrative Agent's and Other Fees. In order to compensate the
Administrative Agent for structuring and syndicating the Loans and for its
obligations hereunder, the Borrowers agree to pay to the Administrative Agent,
for its account, the fees set forth in the separate fee letter agreement
executed by Cornerstone and the Administrative Agent. In addition, the Borrowers
agree to pay to the Administrative Agent, for its account or for the ratable
benefit of the Lenders (as applicable), any other fees, including, without
limitation, any upfront fees, which the Borrowers have agreed to pay to such
Persons.
SECTION 4.4 Manner of Payment. Each payment by the Borrowers on account
of the principal of or interest on the Loans or of any fee, commission or other
amounts (including the Reimbursement Obligation) payable to the Lenders under
this Agreement or any Note shall be made not later than 1:00 p.m. (Charlotte
time) on the date specified for payment under this Agreement to the
Administrative Agent at the Administrative Agent's Office for the account of the
Lenders (other than as set forth below) pro rata in accordance with their
respective Commitment Percentages, in Dollars, in immediately available funds
and shall be made without any set-off, counterclaim or deduction whatsoever. Any
payment received after such time but before 2:00 p.m. (Charlotte time) on such
day shall be deemed a payment on such date for the purposes of Section 11.1, but
for all other purposes shall be deemed to have been made on the next succeeding
Business Day. Any payment received after 2:00 p.m. (Charlotte time) shall be
deemed to have been made on the next succeeding Business Day for all purposes.
Upon receipt by the Administrative Agent of each such payment, the
Administrative Agent shall distribute in a timely manner to each Lender at its
address for notices set forth herein its pro rata share of such payment in
accordance with such Lender's Commitment Percentage and shall wire advice of the
amount of such credit to each Lender. Each payment to the Administrative Agent
of the Issuing
25
Lender's fees or L/C Participant's commissions shall be made in like manner, but
for the account of the Issuing Lender or the L/C Participants, as the case may
be. Each payment to the Administrative Agent of Administrative Agent's fees or
expenses shall be made for the account of the Administrative Agent and any
amount payable to any Lender under Sections 4.8, 4.9, 4.10, 4.11 or 13.2 shall
be paid to the Administrative Agent for the account of the applicable Lender.
SECTION 4.5 Crediting of Payments and Proceeds. In the event that the
Borrowers shall fail to pay any of the Obligations when due and the Obligations
have been accelerated pursuant to Section 11.2, all payments received by the
Lenders upon the Notes and the other Obligations and all net proceeds from the
enforcement of the Obligations shall be applied first to all expenses then due
and payable by the Borrowers hereunder, then to all indemnity obligations then
due and payable by the Borrowers hereunder, then to all of the Administrative
Agent's and the Issuing Lender's fees then due and payable, then to all
commitment and other fees and commissions then due and payable, then to accrued
and unpaid interest on the Notes and the Reimbursement Obligation (pro rata in
accordance with all such amounts due), then to the principal amount of the Notes
and Reimbursement Obligations, then to the cash collateral account described in
Section 11.2(b) hereof to the extent of any L/C Obligations then outstanding,
and then to any termination payments due in respect of a Hedging Agreement with
any Lender executed pursuant to Section 10.1(b), in that order.
SECTION 4.6 Adjustments. If any Lender (a "Benefited Lender") shall at
any time receive any payment of all or part of its Extensions of Credit, or
interest thereon, or if any Lender shall at any time receive any collateral in
respect to its Extensions of Credit (whether voluntarily or involuntarily, by
set-off or otherwise) in a greater proportion than any such payment to and
collateral received by any other Lender, if any, in respect of such other
Lender's Extensions of Credit, or interest thereon, such Benefited Lender shall
purchase for cash from the other Lenders such portion of each such other
Lender's Extensions of Credit, or shall provide such other Lenders with the
benefits of any such collateral, or the proceeds thereof, as shall be necessary
to cause such Benefited Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided, that if all
or any portion of such excess payment or benefits is thereafter recovered from
such Benefited Lender, such purchase shall be rescinded, and the purchase price
and benefits returned to the extent of such recovery, but without interest. The
Borrowers agree that each Lender so purchasing a portion of another Lender's
Extensions of Credit may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if such
Lender were the direct holder of such portion.
SECTION 4.7 Nature of Obligations of Lenders Regarding Extensions of
Credit; Assumption by the Administrative Agent. The obligations of the Lenders
under this Agreement to make the Loans and issue or participate in Letters of
Credit are several and are not joint or joint and several. Unless the
Administrative Agent shall have received notice from a Lender prior to a
proposed borrowing date that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of the amount to be borrowed
on such date (which notice shall not release such Lender of its obligations
hereunder), the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the proposed borrowing date in
accordance with Section 2.2(b) and the Administrative Agent may, in reliance
upon such
26
assumption, make available to the Borrowers on such date a corresponding amount.
If such amount is made available to the Administrative Agent on a date after
such borrowing date, such Lender shall pay to the Administrative Agent on demand
an amount, until paid, equal to the product of (a) the amount of such Lender's
Commitment Percentage of such borrowing, times (b) the daily average Federal
Funds Rate during such period as determined by the Administrative Agent, times
(c) a fraction the numerator of which is the number of days that elapse from and
including such borrowing date to the date on which such Lender's Commitment
Percentage of such borrowing shall have become immediately available to the
Administrative Agent and the denominator of which is 360. A certificate of the
Administrative Agent with respect to any amounts owing under this Section 4.7
shall be conclusive, absent manifest error. If such Lender's Commitment
Percentage of such borrowing is not made available to the Administrative Agent
by such Lender within three (3) Business Days of such borrowing date, the
Administrative Agent shall be entitled to recover such amount made available by
the Administrative Agent with interest thereon at the rate per annum applicable
to Base Rate Loans hereunder, on demand, from the Borrowers. The failure of any
Lender to make its Commitment Percentage of any Loan available shall not relieve
it or any other Lender of its obligation, if any, hereunder to make its
Commitment Percentage of such Loan available on such borrowing date, but no
Lender shall be responsible for the failure of any other Lender to make its
Commitment Percentage of such Loan available on the borrowing date.
SECTION 4.8 Changed Circumstances.
(a) Circumstances Affecting LIBOR Rate Availability. If with respect to
any Interest Period the Administrative Agent or any Lender (after consultation
with Administrative Agent) shall determine that, by reason of circumstances
affecting the foreign exchange and interbank markets generally, deposits in
eurodollars in the applicable amounts are not being quoted via Telerate Page
3750 or offered to the Administrative Agent or such Lender for such Interest
Period, then the Administrative Agent shall forthwith give notice thereof to the
Borrowers. Thereafter, until the Administrative Agent notifies Cornerstone, on
behalf of the Borrowers, that such circumstances no longer exist, the obligation
of the Lenders to make LIBOR Rate Loans and the right of the Borrowers to
convert any Loan to or continue any Loan as a LIBOR Rate Loan shall be
suspended, and the Borrowers shall repay in full (or cause to be repaid in full)
the then outstanding principal amount of each such LIBOR Rate Loans together
with accrued interest thereon, on the last day of the then current Interest
Period applicable to such LIBOR Rate Loan or convert the then outstanding
principal amount of each such LIBOR Rate Loan to a Base Rate Loan as of the last
day of such Interest Period.
(b) Laws Affecting LIBOR Rate Availability. If, after the date hereof,
the introduction of, or any change in, any Applicable Law 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 any of their respective Lending
Offices) with any request or directive (whether or not having the force of law)
of any such Governmental Authority, central bank or comparable agency, shall
make it unlawful or impossible for any of the Lenders (or any of their
respective Lending Offices) to honor its obligations hereunder to make or
maintain any LIBOR Rate Loan, such Lender shall promptly give notice thereof to
the Administrative Agent and the Administrative Agent shall promptly give notice
to Cornerstone, on behalf of the Borrowers, and the other Lenders. Thereafter,
until the
27
Administrative Agent notifies Cornerstone, on behalf of the Borrowers, that such
circumstances no longer exist, (i) the obligations of the Lenders to make LIBOR
Rate Loans and the right of the Borrowers to convert any Loan or continue any
Loan as a LIBOR Rate Loan shall be suspended and thereafter the Borrowers may
select only Base Rate Loans hereunder, and (ii) if any of the Lenders may not
lawfully continue to maintain a LIBOR Rate Loan to the end of the then current
Interest Period applicable thereto as a LIBOR Rate Loan, the applicable LIBOR
Rate Loan shall immediately be converted to a Base Rate Loan for the remainder
of such Interest Period.
(c) Increased Costs. If, after the date hereof, the introduction of, or
any change in, any Applicable Law, or 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 of the
Lenders (or any of their respective Lending Offices) with any request or
directive (whether or not having the force of law) of such Governmental
Authority, central bank or comparable agency:
(i) shall subject any of the Lenders (or any of their
respective Lending Offices) to any tax, duty or other charge with
respect to any Note, Letter of Credit or Application or shall change
the basis of taxation of payments to any of the Lenders (or any of
their respective Lending Offices) of the principal of or interest on
any Note, Letter of Credit or Application or any other amounts due
under this Agreement in respect thereof (except for changes in the rate
of tax on the overall net income of any of the Lenders or any of their
respective Lending Offices imposed by the jurisdiction in which such
Lender is organized or is or should be qualified to do business or such
Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors
of the Federal Reserve System), special deposit, insurance or capital
or similar requirement against assets of, deposits with or for the
account of, or credit extended by any of the Lenders (or any of their
respective Lending Offices) or shall impose on any of the Lenders (or
any of their respective Lending Offices) or the foreign exchange and
interbank markets any other condition affecting any Note;
and the result of any of the foregoing is to increase the costs to any
of the Lenders of maintaining any LIBOR Rate Loan or issuing or participating in
Letters of Credit to reduce the yield or amount of any sum received or
receivable by any of the Lenders under this Agreement or under the Notes in
respect of a LIBOR Rate Loan or Letter of Credit or Application, then such
Lender shall promptly notify the Administrative Agent, and the Administrative
Agent shall promptly notify Cornerstone, on behalf of the Borrowers, of such
fact and demand compensation therefor and, within fifteen (15) days after such
notice by the Administrative Agent, the Borrowers shall pay to such Lender such
additional amount or amounts as will compensate such Lender or Lenders for such
increased cost or reduction. The Administrative Agent will promptly notify
Cornerstone, on behalf of the Borrowers, of any event of which it has knowledge
which will entitle such Lender to compensation pursuant to this Section 4.8(c);
provided, that the Administrative Agent shall incur no liability whatsoever to
the Lenders or the Borrowers in the event it fails to do so. The amount of such
compensation shall be determined, in the applicable Lender's reasonable
discretion, based upon the assumption that such Lender funded its Commitment
Percentage of the LIBOR Rate Loans in the London interbank and using any
reasonable attribution or averaging methods which such Lender deems appropriate
and
28
practical. A certificate of such Lender setting forth the basis for determining
such amount or amounts necessary to compensate such Lender shall be forwarded to
Cornerstone, on behalf of the Borrowers, through the Administrative Agent and
shall be conclusively presumed to be correct save for manifest error.
SECTION 4.9 Indemnity. Each Borrower hereby indemnifies each of the
Lenders against any loss or expense which may arise or be attributable to each
Lender's obtaining, liquidating or employing deposits or other funds acquired to
effect, fund or maintain any Loan (a) as a consequence of any failure by any
Borrower to make any payment when due of any amount due hereunder in connection
with a LIBOR Rate Loan, (b) due to any failure of any Borrower to borrow on a
date specified therefor in a Notice of Borrowing or Notice of
Continuation/Conversion or (c) due to any payment, prepayment or conversion of
any LIBOR Rate Loan on a date other than the last day of the Interest Period
therefor. The amount of such loss or expense shall be determined, in the
applicable Lender's reasonable discretion, based upon the assumption that such
Lender funded its Commitment Percentage of the LIBOR Rate Loans in the London
interbank and using any reasonable attribution or averaging methods which such
Lender deems appropriate and practical. A certificate of such Lender setting
forth the basis for determining such amount or amounts necessary to compensate
such Lender shall be forwarded to Cornerstone, on behalf of the Borrowers,
through the Administrative Agent and shall be conclusively presumed to be
correct save for manifest error.
SECTION 4.10 Capital Requirements. If either (a) the introduction of,
or any change in, or in the interpretation of, any Applicable Law or (b)
compliance with any guideline or request from any central bank or comparable
agency or other Governmental Authority (whether or not having the force of law),
has or would have the effect of reducing the rate of return on the capital of,
or has affected or would affect the amount of capital required to be maintained
by, any Lender or any corporation controlling such Lender as a consequence of,
or with reference to the Commitments and other commitments of this type, below
the rate which the Lender or such other corporation could have achieved but for
such introduction, change or compliance, then within fifteen (15) days after
written demand by any such Lender, the Borrowers shall pay to such Lender from
time to time as specified by such Lender additional amounts sufficient to
compensate such Lender or other corporation for such reduction. A certificate as
to such amounts submitted to Cornerstone, on behalf of the Borrowers, and the
Administrative Agent by such Lender, shall, in the absence of manifest error, be
presumed to be correct and binding for all purposes.
SECTION 4.11 Taxes.
(a) Payments Free and Clear. Any and all payments by the Borrowers
hereunder or under the Notes or the Letters of Credit shall be made free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholding, and all liabilities with respect
thereto excluding, (i) in the case of each Lender and the Administrative Agent,
income and franchise taxes imposed by the jurisdiction under the laws of which
such Lender or the Administrative Agent (as the case may be) is organized or is
or should be qualified to do business or any political subdivision thereof and
(ii) in the case of each Lender, income and franchise taxes imposed by the
jurisdiction of such Lender's Lending Office or any political
29
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
If any Borrower shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder or under any Note or Letter of Credit to any Lender
or the Administrative Agent, (A) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 4.11) such Lender or
the Administrative Agent (as the case may be) receives an amount equal to the
amount such party would have received had no such deductions been made, (B) such
Borrower shall make such deductions, (C) such Borrower shall pay the full amount
deducted to the relevant taxing authority or other authority in accordance with
applicable law, and (D) such Borrower shall deliver to the Administrative Agent
evidence of such payment to the relevant taxing authority or other authority in
the manner provided in Section 4.11(d).
(b) Stamp and Other Taxes. In addition, the Borrowers shall pay any
present or future stamp, registration, recordation or documentary taxes or any
other similar fees or charges or excise or property taxes, levies of the United
States or any state or political subdivision thereof or any applicable foreign
jurisdiction which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the
Loans, the Letters of Credit, the other Loan Documents, or the perfection of any
rights or security interest in respect thereto (hereinafter referred to as
"Other Taxes").
(c) Indemnity. Each Borrower shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes (including,
without limitation, any Taxes and Other Taxes imposed by any jurisdiction on
amounts payable under this Section 4.11) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Such indemnification shall be made within thirty (30) days from the date such
Lender or the Administrative Agent (as the case may be) makes written demand
therefor.
(d) Evidence of Payment. Within thirty (30) days after the date of any
payment of Taxes or Other Taxes, the Borrowers shall furnish to the
Administrative Agent, at its address referred to in Section 13.1, the original
or a certified copy of a receipt evidencing payment thereof or other evidence of
payment satisfactory to the Administrative Agent.
(e) Delivery of Tax Forms. Each Lender organized under the laws of a
jurisdiction other than the United States or any state thereof shall deliver to
Cornerstone, on behalf of the Borrowers, with a copy to the Administrative
Agent, on the Closing Date or concurrently with the delivery of the relevant
Assignment and Acceptance, as applicable, (i) two United States Internal Revenue
Service Forms 4224 or Forms 1001, as applicable (or successor forms) properly
completed and certifying in each case that such Lender is entitled to a complete
exemption from withholding or deduction for or on account of any United States
federal income taxes, and (ii) an Internal Revenue Service Form W-8 or W-9 or
successor applicable form, as the case may be, to establish an exemption from
United States backup withholding taxes. Each such Lender further agrees to
deliver to Cornerstone, on behalf of the Borrowers, with a copy to the
Administrative Agent, a Form 1001 or 4224 and Form W-8 or W-9, or successor
applicable forms or manner of certification, as the case may be, on or before
the date that any such form expires or becomes obsolete or after the
30
occurrence of any event requiring a change in the most recent form previously
delivered by it to Cornerstone, on behalf of the Borrowers, certifying in the
case of a Form 1001 or 4224 that such Lender is entitled to receive payments
under this Agreement without deduction or withholding of any United States
federal income taxes (unless in any such case an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders such
forms inapplicable or the exemption to which such forms relate unavailable and
such Lender notifies Cornerstone, on behalf of the Borrowers, and the
Administrative Agent that it is not entitled to receive payments without
deduction or withholding of United States federal income taxes) and, in the case
of a Form W-8 or W-9, establishing an exemption from United States backup
withholding tax.
(f) Survival. Without prejudice to the survival of any other agreement
of the Borrowers hereunder, the agreements and obligations of the Borrowers
contained in this Section 4.11 shall survive the payment in full of the
Obligations and the termination of the Commitments.
ARTICLE V
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 5.1 Closing. The closing shall take place at the offices of
Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P., effective as of the date of this
Agreement.
SECTION 5.2 Conditions to Closing and Initial Extensions of Credit. The
obligation of the Lenders to close this Agreement and to make the initial Loan
or issue the initial Letter of Credit is subject to the satisfaction of each of
the following conditions:
(a) Executed Loan Documents. The following Loan Documents, in form and
substance satisfactory to Administrative Agent and each Lender:
(i) this Agreement;
(ii) the Notes; and
(iii) each other document and certificate reasonably requested
by the Administrative Agent;
shall have been duly authorized, executed and delivered to the Administrative
Agent by the parties thereto, shall be in full force and effect and no default
shall exist thereunder, and the Borrowers shall have delivered original
counterparts thereof to the Administrative Agent.
(b) Closing Certificates; etc.
(i) Officer's Certificate of Cornerstone on behalf of each
Borrower. The Administrative Agent shall have received a certificate
from the chief executive officer or chief financial officer of
Cornerstone, on behalf of the Borrowers, in form and substance
31
satisfactory to the Administrative Agent, to the effect that all
representations and warranties of the Borrowers contained in this
Agreement and the other Loan Documents are true, correct and complete;
that the Borrowers are not in violation of any of the covenants
contained in this Agreement and the other Loan Documents; that, after
giving effect to the transactions contemplated by this Agreement, no
Default or Event of Default has occurred and is continuing; and that
the Borrowers have satisfied each of the closing conditions.
(ii) Certificate of Secretary of each Borrower. The
Administrative Agent shall have received a certificate of the secretary
or assistant secretary of each Borrower certifying that attached
thereto is a true and complete copy of the articles of incorporation of
such Borrower and all amendments thereto, certified as of a recent date
by the appropriate Governmental Authority in its jurisdiction of
incorporation; that attached thereto is a true and complete copy of the
bylaws of such Borrower as in effect on the date of such certification;
that attached thereto is a true and complete copy of resolutions duly
adopted by the Board of Directors of such Borrower authorizing the
borrowings contemplated hereunder and the execution, delivery and
performance of this Agreement and the other Loan Documents to which it
is a party; and as to the incumbency and genuineness of the signature
of each officer of such Borrower executing Loan Documents to which it
is a party.
(iii) Certificates of Good Standing. The Administrative Agent
shall have received long-form certificates as of a recent date of the
good standing of each Borrower under the laws of its jurisdiction of
organization and each other jurisdiction where each Borrower is
qualified to do business.
(iv) Opinions of Counsel. The Administrative Agent shall have
received favorable opinions of counsel to the Borrowers addressed to
the Administrative Agent and the Lenders with respect to the Borrowers,
the Loan Documents and such other matters as the Lenders shall request.
(v) Tax Forms. The Administrative Agent shall have received
copies of the United States Internal Revenue Service forms required by
Section 4.11(e) hereof.
(c) Consents; Defaults.
(i) Governmental and Third Party Approvals. All necessary
approvals, authorizations and consents, if any be required, of any
Person and of all Governmental Authorities and courts having
jurisdiction with respect to the transactions contemplated by this
Agreement and the other Loan Documents shall have been obtained.
(ii) No Injunction, Etc. No action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or
proposed before any Governmental Authority to enjoin, restrain, or
prohibit, or to obtain substantial damages in respect of, or which is
related to or arises out of this Agreement or the other Loan Documents
or the consummation of the transactions contemplated hereby or thereby,
or which, in the Administrative Agent's discretion, would make it
inadvisable to consummate the transactions contemplated by this
Agreement and such other Loan Documents.
32
(iii) No Event of Default. No Default or Event of Default
shall have occurred and be continuing.
(d) Financial Matters.
(i) Financial Statements. The Administrative Agent shall have
received the most recent audited Consolidated financial statements of
the Borrowers and their Subsidiaries, all in form and substance
satisfactory to the Administrative Agent.
(ii) Financial Condition Certificate. Cornerstone, on behalf
of the Borrowers, shall have delivered to the Administrative Agent a
certificate, in form and substance satisfactory to the Administrative
Agent, and certified as accurate by the chief executive officer or
chief financial officer of Cornerstone, that (A) each Borrower and each
of its Subsidiaries are each Solvent, (B) each Borrower's payables are
current and not past due, (C) attached thereto is a pro forma balance
sheet of the Borrowers and their Subsidiaries setting forth on a pro
forma basis the financial condition of the Borrowers and their
Subsidiaries on a Consolidated basis as of that date, reflecting a pro
forma basis the effect of the transactions contemplated herein,
including all fees and expenses in connection therewith, and evidencing
compliance on a pro forma basis with the covenants contained in
Articles IX and X hereof and (D) attached thereto are the financial
projections previously delivered to the Administrative Agent
representing the good faith opinions of the Borrowers and senior
management thereof as to the projected results contained therein.
(iii) Payment at Closing; Fee Letters. There shall have been
paid by the Borrowers to the Administrative Agent and the Lenders the
fees set forth or referenced in Section 4.3 and any other accrued and
unpaid fees or commissions due hereunder (including, without
limitation, legal fees and expenses), and to any other Person such
amount as may be due thereto in connection with the transactions
contemplated hereby, including all taxes, fees and other charges in
connection with the execution, delivery, recording, filing and
registration of any of the Loan Documents. The Administrative Agent
shall have received duly authorized and executed copies of the fee
letter agreement referred to in Section 4.3(c).
(iv) Applicable Margin Certificate. Cornerstone, on behalf of
the Borrowers, shall have delivered to the Administrative Agent a
certificate executed by the chief financial officer or treasurer of
Cornerstone setting forth the calculation of the Applicable Margin
pursuant to Section 4.1(c).
(e) [Intentionally Omitted.]
(f) Miscellaneous.
(i) Notice of Borrowing. The Administrative Agent shall have received a
Notice of Borrowing from Cornerstone, on behalf of the Borrowers, in accordance
with
33
Section 2.2(a), and a Notice of Account Designation specifying the
account or accounts to which the proceeds of any loans made after the
Closing Date are to be disbursed.
(ii) Proceedings and Documents. All opinions, certificates and
other instruments and all proceedings in connection with the
transactions contemplated by this Agreement shall be satisfactory in
form and substance to the Lenders. The Lenders shall have received
copies of all other instruments and other evidence as the Lender may
reasonably request, in form and substance satisfactory to the Lenders,
with respect to the transactions contemplated by this Agreement and the
taking of all actions in connection therewith.
(iii) Due Diligence and Other Documents. Each Borrower shall
have delivered to the Administrative Agent such other documents,
certificates and opinions as the Administrative Agent reasonably
requests, including, without limitation, copies of any document
evidencing or governing any Subordinated Debt, certified by a secretary
or assistant secretary of such Borrower as a true and correct copy
thereof.
SECTION 5.3 Conditions to All Loans and Letters of Credit. The
obligation of the Lenders to make any Loan or issue any Letter of Credit is
subject to the satisfaction of the following conditions precedent on the
relevant borrowing or issue date, as applicable:
(a) Continuation of Representations and Warranties. The representations
and warranties contained in Article VI shall be true and correct on and as of
such borrowing or issuance date with the same effect as if made on and as of
such date, except to the extent the failure of any schedule to be true and
correct on and as of such borrowing or issuance date would not have or would not
be reasonably expected to have a Material Adverse Effect.
(b) No Existing Default. No Default or Event of Default shall have
occurred and be continuing hereunder (i) on the borrowing date with respect to
such Loan or after giving effect to the Loans to be made on such date or (ii) on
the issue date with respect to such Letter of Credit or after giving affect to
such Letters of Credit on such date.
(c) Officer's Compliance Certificate; Additional Documents. The
Administrative Agent shall have received the current Officer's Compliance
Certificate and each additional document, instrument, legal opinion or other
item of information reasonably requested by it.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE BORROWERS
SECTION 6.1 Representations and Warranties. To induce the
Administrative Agent to enter into this Agreement and the Lenders to make the
Loans and to issue or participate in the Letters of Credit, the Borrowers hereby
represent and warrant to the Administrative Agent and Lenders that:
34
(a) Organization; Power; Qualification. Each Borrower and each
Subsidiary thereof is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or formation, has the
power and authority to own its properties and to carry on its business as now
being and hereafter proposed to be conducted and is duly qualified and
authorized to do business in each jurisdiction in which the character of its
properties or the nature of its business requires such qualification and
authorization except to the extent the failure to be so qualified and authorized
to do business would not have or would not be reasonably expected to have a
Material Adverse Effect. The jurisdictions in which each Borrower and each
Subsidiary thereof is organized and qualified to do business are described on
Schedule 6.1(a).
(b) Ownership. Each Subsidiary of each Borrower is listed on Schedule
6.1(b). The capitalization of the Borrowers and their Subsidiaries consists of
the number of shares, authorized, issued and outstanding, of such classes and
series, with or without par value, described on Schedule 6.1(b). All outstanding
shares have been duly authorized and validly issued and are fully paid and
nonassessable. The shareholders of the Subsidiaries of the Borrowers and the
number of shares owned by each are described on Schedule 6.1(b). There are no
outstanding stock purchase warrants, subscriptions, options, securities,
instruments or other rights of any type or nature whatsoever, which are
convertible into, exchangeable for or otherwise provide for or permit the
issuance of capital stock of any Borrower or any Subsidiary thereof, except as
described on Schedule 6.1(b).
(c) Authorization of Agreement, Loan Documents and Borrowing. Each
Borrower and each Subsidiary thereof has the right, power and authority and has
taken all necessary corporate and other action to authorize the execution,
delivery and performance of this Agreement and each of the other Loan Documents
to which it is a party in accordance with their respective terms. This Agreement
and each of the other Loan Documents have been duly executed and delivered by
the duly authorized officers of each Borrower and each of its Subsidiaries party
thereto, and each such document constitutes the legal, valid and binding
obligation of each Borrower or its Subsidiary party thereto, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar state or federal
debtor relief laws from time to time in effect which affect the enforcement of
creditors' rights in general and the availability of equitable remedies.
(d) Compliance of Agreement, Loan Documents and Borrowing with Laws,
Etc. The execution, delivery and performance by the Borrowers and their
Subsidiaries of the Loan Documents to which each such Person is a party, in
accordance with their respective terms, the borrowings hereunder and the
transactions contemplated hereby do not and will not, by the passage of time,
the giving of notice or otherwise, (i) require any Governmental Approval or
violate any Applicable Law relating to any Borrower or any of its Subsidiaries,
(ii) conflict with, result in a breach of or constitute a default under the
articles of incorporation, bylaws or other organizational documents of any
Borrower or any of its Subsidiaries, (iii) conflict with, result in a breach of
or constitute a default under any indenture, agreement or other instrument to
which any Borrower or any of its Subsidiaries is a party or by which any of its
properties may be bound or any Governmental Approval relating to such Person,
except where such conflict with, breach of or default under would not have or
would not be reasonably expected to have a Material Adverse Effect, or (iv)
result in or require the creation or imposition of any Lien upon or with respect
to any
35
property now owned or hereafter acquired by any Borrower or any of its
Subsidiaries other than Liens arising under the Loan Documents.
(e) Compliance with Law; Governmental Approvals. Each Borrower and each
Subsidiary thereof (i) has all Governmental Approvals required by any Applicable
Law for it to conduct its business, each of which is in full force and effect,
is final and not subject to review on appeal and is not the subject of any
pending or, to the best of its knowledge, threatened attack by direct or
collateral proceeding, and (ii) is in compliance with each Governmental Approval
applicable to it and in compliance with all other Applicable Laws relating to it
or any of its respective properties, except where the failure to be in such
compliance would not have or would not be reasonably expected to have a Material
Adverse Effect.
(f) Tax Returns and Payments. Each Borrower and Subsidiary thereof has
duly filed or caused to be filed all federal, state, local and other tax returns
required by Applicable Law to be filed, and has paid, or made adequate provision
for the payment of, all federal, state, local and other taxes, assessments and
governmental charges or levies upon it and its property, income, profits and
assets which are due and payable. No Governmental Authority has asserted any
Lien or other claim against any Borrower or any Subsidiary thereof with respect
to unpaid taxes which has not been discharged or resolved. The charges, accruals
and reserves on the books of each Borrower and any of its Subsidiaries in
respect of federal, state, local and other taxes for all Fiscal Years and
portions thereof since the organization of such Borrower and any of its
Subsidiaries are in the judgment of such Borrower adequate, and such Borrower
does not anticipate any additional taxes or assessments for any of such years.
(g) Intellectual Property Matters. Each Borrower and each Subsidiary
thereof owns or possesses rights to use all franchises, licenses, copyrights,
copyright applications, patents, patent rights or licenses, patent applications,
trademarks, trademark rights, trade names, trade name rights, copyrights and
rights with respect to the foregoing which are required to conduct its business,
except where the failure own or possess such rights would not have or would not
be reasonably expected to have a Material Adverse Effect. No event has occurred
which permits, or after notice or lapse of time or both would permit, the
revocation or termination of any such rights, and no Borrower nor any Subsidiary
thereof is liable to any Person for infringement under Applicable Law with
respect to any such rights as a result of its business operations.
(h) Environmental Matters. Except as would not have or would not be
reasonably expected to have a Material Adverse Effect, to the best of the
knowledge of the Borrowers and their Subsidiaries,
(i) The properties of the Borrowers and their Subsidiaries do
not contain, and have not previously contained, any Hazardous Materials
in amounts or concentrations which (A) constitute or constituted a
violation of, or (B) could give rise to liability under, applicable
Environmental Laws;
(ii) Such properties and all operations conducted in
connection therewith are in compliance, and have been in compliance,
with all applicable Environmental Laws, and there is no contamination
at, under or about such properties or such operations which could
36
interfere with the continued operation of such properties or impair the
fair saleable value thereof;
(iii) No Borrower nor any Subsidiary thereof has received any
notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of their properties or the
operations conducted in connection therewith, nor does any Borrower or
any Subsidiary thereof have knowledge or reason to believe that any
such notice will be received or is being threatened;
(iv) Hazardous Materials have not been transported or disposed
of from the properties of any Borrower or any of its Subsidiaries in
violation of, or in a manner or to a location which could give rise to
liability under, Environmental Laws, nor have any Hazardous Materials
been generated, treated, stored or disposed of at, on or under any of
such properties in violation of, or in a manner that could give rise to
liability under, any applicable Environmental Laws;
(v) No judicial proceedings or governmental or administrative
action is pending or threatened under any Environmental Law to which
any Borrower or any Subsidiary thereof is or will be named as a party
with respect to such properties or operations conducted in connection
therewith, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental Law with
respect to such properties or such operations; and
(vi) There has been no release or the threat of release of
Hazardous Materials at or from such properties, in violation of or in
amounts or in a manner that could give rise to liability under
Environmental Laws.
(i) ERISA. Except as would not have or would not be reasonably expected
to have a Material Adverse Effect,
(i) No Borrower nor any ERISA Affiliate maintains or
contributes to, or has any obligation under, any Employee Benefit Plans
other than those identified on Schedule 6.1(i);
(ii) Each Borrower and each ERISA Affiliate is in compliance
with all applicable provisions of ERISA and the regulations and
published interpretations thereunder 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
liability has been incurred by any Borrower or any ERISA Affiliate
which remains unsatisfied for any taxes or penalties with respect to
any Employee Benefit Plan or any Multiemployer Plan;
37
(iii) No Pension Plan has been terminated, nor has any
accumulated funding deficiency (as defined in Section 412 of the Code)
been incurred (without regard to any waiver granted under Section 412
of the Code), nor has any funding waiver from the Internal Revenue
Service been received or requested with respect to any Pension Plan,
nor has any Borrower or any ERISA Affiliate failed to make any
contributions or to pay any amounts due and owing as required by
Section 412 of the Code, Section 302 of ERISA or the terms of any
Pension Plan prior to the due dates of such contributions under Section
412 of the Code or Section 302 of ERISA, nor has there been any event
requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of
ERISA with respect to any Pension Plan;
(iv) No Borrower nor any ERISA Affiliate has: (A) engaged in a
nonexempt prohibited transaction described in Section 406 of the ERISA
or Section 4975 of the Code, (B) incurred any liability to the PBGC
which remains outstanding other than the payment of premiums and there
are no premium payments which are due and unpaid, (C) failed to make a
required contribution or payment to a Multiemployer Plan, or (D) failed
to make a required installment or other required payment under Section
412 of the Code;
(v) No Termination Event has occurred or is reasonably
expected to occur; and
(vi) No proceeding, claim, lawsuit and/or investigation is
existing or, to the best knowledge of any Borrower after due inquiry,
threatened concerning or involving any (A) employee welfare benefit
plan (as defined in Section 3(1) of ERISA) currently maintained or
contributed to by any Borrower or any ERISA Affiliate, (B) Pension Plan
or (C) Multiemployer Plan.
(j) Margin Stock. No Borrower nor any Subsidiary thereof is engaged
principally or as one of its activities in the business of extending credit for
the purpose of "purchasing" or "carrying" any "margin stock" (as each such term
is defined or used in Regulations G and U of the Board of Governors of the
Federal Reserve System). No part of the proceeds of any of the Loans or Letters
of Credit will be used for purchasing or carrying margin stock or for any
purpose which violates, or which would be inconsistent with, the provisions of
Regulation G, T, U or X of such Board of Governors.
(k) Government Regulation. No Borrower nor any Subsidiary thereof is an
"investment company" or a company "controlled" by an "investment company" (as
each such term is defined or used in the Investment Company Act of 1940, as
amended) and no Borrower nor any Subsidiary thereof is, or after giving effect
to any Extension of Credit will be, subject to regulation under the Public
Utility Holding Company Act of 1935 or the Interstate Commerce Act, each as
amended, or any other Applicable Law which limits its ability to incur or
consummate the transactions contemplated hereby.
(l) Material Contracts. Each Material Contract is, and after giving
effect to the consummation of the transactions contemplated by the Loan
Documents will be, in full force and effect in accordance with the terms
thereof.
38
(m) Employee Relations. Each Borrower and each Subsidiary thereof has a
stable work force in place and is not, except as set forth on Schedule 6.1(m),
party to any collective bargaining agreement nor has any labor union been
recognized as the representative of its employees. The Borrowers and their
Subsidiaries do not know of any pending, threatened or contemplated strikes,
work stoppage or other collective labor disputes involving its employees or
those of its Subsidiaries.
(n) Burdensome Provisions. No Borrower nor any Subsidiary thereof is a
party to any indenture, agreement, lease or other instrument, or subject to any
corporate or partnership restriction, Governmental Approval or Applicable Law
which could be reasonably expected to have a Material Adverse Effect. The
Borrowers and their Subsidiaries do not presently anticipate that future
expenditures needed to meet the provisions of any statutes, orders, rules or
regulations of a Governmental Authority will be so burdensome as to have a
Material Adverse Effect.
(o) Financial Statements. The (i) Consolidated balance sheets of the
Borrowers and their Subsidiaries as of December 31, 1999 and the related
statements of income and retained earnings and cash flows for the Fiscal Years
then ended and (ii) unaudited Consolidated balance sheet of the Borrowers and
their Subsidiaries as of September 30, 2000 and related unaudited interim
statements of revenue and retained earnings, copies of which have been furnished
to the Administrative Agent and each Lender, are complete and correct and fairly
present the assets, liabilities and financial position of the Borrowers and
their Subsidiaries as at such dates, and the results of the operations and
changes of financial position for the periods then ended. All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP. The Borrowers and their Subsidiaries have no
Debt, obligation or other unusual forward or long-term commitment which is not
fairly reflected in the foregoing financial statements or in the notes thereto.
(p) No Material Adverse Change. Since December 31, 1999, there has been
no material adverse change in the properties, business, operations, prospects,
or condition (financial or otherwise) of the Borrowers and their Subsidiaries
and no event has occurred or condition arisen that could reasonably be expected
to have a Material Adverse Effect.
(q) Solvency. As of the Closing Date and after giving effect to each
Extension of Credit made hereunder, each Borrower and each Subsidiary thereof
will be Solvent.
(r) Debt and Contingent Obligations. Schedule 6.1(r) is a complete and
correct listing of all Debt and Contingent Obligations of the Borrowers and
their Subsidiaries in excess of $500,000 as of the Closing Date. The Borrowers
and their Subsidiaries have performed and are in compliance with all of the
terms of such Debt and Contingent Obligations and all instruments and agreements
relating thereto, and no default or event of default, or event or condition
which with notice or lapse of time or both would constitute such a default or
event of default on the part of any Borrower or any of its Subsidiaries exists
with respect to any such Debt or Contingent Obligation.
(s) Litigation. Except as set forth on Schedule 6.1(s), there are no
actions, suits or proceedings pending nor, to the knowledge of any Borrower,
threatened against or in any other way relating adversely to or affecting any
Borrower or any Subsidiary thereof or any of their respective
39
properties in any court or before any arbitrator of any kind or before or by any
Governmental Authority which could have or could be reasonably expected to have
a Material Adverse Effect.
(t) Absence of Defaults. No event has occurred or is continuing which
constitutes a Default or an Event of Default, or which constitutes, or which
with the passage of time or giving of notice or both would constitute, a default
or event of default by any Borrower or any Subsidiary thereof under any Material
Contract or judgment, decree or order to which any Borrower or any Subsidiary
thereof is a party or by which any Borrower or any Subsidiary thereof or any of
their respective properties may be bound or which would require any Borrower or
any Subsidiary thereof to make any payment thereunder prior to the scheduled
maturity date therefor.
(u) Status of Cornerstone as REIT. Cornerstone is and has been for each
of Cornerstone's tax years from and including 1993 a "real estate investment
trust" within the meaning of Section 856 of the Code and is being operated in
accordance with the rules for qualification as a "real estate investment trust"
under Sections 856 through 860 of the Code.
(v) Other Property Matters. With respect to each Property owned or
operated by each Borrower and each Subsidiary thereof:
(i) Titles to Properties. Each Borrower and each Subsidiary
thereof has such title to each such Property owned by it as is
necessary or desirable to the conduct of its business and valid and
legal title to all of its personal property and assets, including, but
not limited to, those reflected on the balance sheets of the Borrowers
and their Subsidiaries delivered pursuant to Section 6.1(o), except
those which have been disposed of by the Borrowers or their
Subsidiaries subsequent to such date which dispositions have been in
the ordinary course of business or as otherwise expressly permitted
hereunder.
(ii) Liens. None of the properties and assets of any Borrower
or any Subsidiary thereof is subject to any Lien, except Liens
permitted pursuant to Section 10.5. No financing statement under the
Uniform Commercial Code of any state which names any Borrower or any
Subsidiary thereof or any of their respective trade names or divisions
as debtor and which has not been terminated, has been filed in any
state or other jurisdiction and no Borrower nor any Subsidiary thereof
has signed any such financing statement or any security agreement
authorizing any secured party thereunder to file any such financing
statement, except to perfect those Liens permitted by Section 10.5
hereof.
(iii) Title Insurance. (A) On the date of purchase of each
such Property, either (1) a title insurance policy was issued to the
applicable Borrower or one of its Subsidiaries in an amount not less
than the purchase price paid by such Borrower or such Subsidiary, or
(2) the applicable Borrower or one of its Subsidiaries had obtained a
commitment from a title insurance company to issue such title insurance
policy following such purchase date, had complied as of such purchase
date with each other condition precedent to the issuance of such title
policy and had paid the premium in respect of such policy, and in each
case neither the applicable Borrower nor any of its Subsidiaries has
taken any action that would cause such title insurance policy not to be
valid and in full force and effect or (B) with respect to such
Property, there exists an attorney's opinion of title
40
favorable to the applicable Borrower or one of its Subsidiaries, given
by an attorney licensed to practice law in the jurisdiction where such
Property is located.
(iv) Taxes, etc. Current. All material taxes, governmental
assessments, insurance premiums, and water, sewer and municipal charges
which previously became due and owing in respect of such real property
have been paid, or an escrow of funds in an amount sufficient to cover
such payments has been established.
(v) Hazard Insurance. Such Property is covered by hazard
insurance (and, if applicable, federal flood insurance) in an amount at
least equal to the greater of (i) one hundred percent (100%) of the
replacement cost of the improvements on such Property, and (ii) an
amount sufficient to avoid the application of any coinsurance clause
contained in the related insurance policy; such insurance requires
prior notice to the applicable Borrower of termination or cancellation,
and no such notice has been received.
(vi) Mechanics' Liens. Such Property is free and clear of any
material mechanics' and materialmen's liens or liens in the nature
thereof, except to the extent such liens would not have or would not be
reasonably expected to have a Material Adverse Effect, and no rights
are outstanding that under law could give rise to any such liens,
except those which are insured against by the title insurance policies
referred to in Section 6.1(v)(iii) above, or for work conducted by the
applicable Borrower or any of its Subsidiaries for which payment is not
yet due (or is being contested in good faith).
(vii) Improvements. None of the improvements in respect of
such Property lies outside of the boundaries and building restriction
lines of such Property in such a manner as to materially affect the
value of such improvements, no improvements on adjoining properties
materially encroach upon such Property, and no improvement located on
or forming part of such Property is in material violation of any
applicable zoning laws or ordinances.
(viii) Inspections and Physical Condition. As of the Closing
Date, such Property and any improvement or fixtures thereon are free of
structural defects or damage materially affecting their value, and all
building systems necessary for normal use of such Property are in good
working order subject to ordinary wear and tear.
(ix) Licenses and Permits. The Borrowers and their
Subsidiaries are in possession of all material certificates of
occupancy or other similar licenses, permits and other authorizations
necessary and required by Applicable Law for the use of such Property;
and all such certificates of occupancy or other similar licenses,
permits and authorizations are valid and in full force and effect.
(x) Condemnation Proceedings. As of the Closing Date, there is
no material proceeding pending or threatened for the total or partial
condemnation of such Property, or for the relocation of roadways
providing access to such Property.
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(xi) Purchase Options. There are no outstanding options or
rights of first refusal materially affecting such Property.
(xii) Separate Lots. Such Property is a separate tax parcel,
assessed for real estate tax purposes separately from property owned by
any other Person, with such exceptions as would not have or would not
be reasonably expected to have a Material Adverse Effect.
(xiii) Ground Leases. Where the interest of any Borrower or
any Subsidiary thereof in such Property exists under a ground lease,
such ground lease is in full force and effect and no material default
has occurred under such ground lease, nor is there any existing
condition which, but for the passage of time or the giving of notice
(other than rent, or other payments due but not yet delinquent), would
result in a material default under the terms of such ground lease.
(w) Accuracy and Completeness of Information. All written information,
reports and other papers and data produced by or on behalf of any Borrower or
any Subsidiary thereof and furnished to the Lenders were, at the time the same
were so furnished, complete and correct in all respects to the extent necessary
to give the recipient a true and accurate knowledge of the subject matter. No
document furnished or written statement made to the Administrative Agent or the
Lenders by any Borrower or any Subsidiary thereof in connection with the
negotiation, preparation or execution of this Agreement or any of the Loan
Documents contains or will contain any untrue statement of a fact material to
the creditworthiness of any Borrower or any Subsidiary thereof or omits or will
omit to state a fact necessary in order to make the statements contained therein
not misleading. No Borrower is aware of any facts which it has not disclosed in
writing to the Administrative Agent having a Material Adverse Effect, or insofar
as any Borrower can now foresee, could reasonably be expected to have a Material
Adverse Effect.
SECTION 6.2 Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this Article VI and all
representations and warranties contained in any certificate, or any of the Loan
Documents (including but not limited to any such representation or warranty made
in or in connection with any amendment thereto) shall constitute representations
and warranties made under this Agreement. All representations and warranties
made under this Agreement shall be made or deemed to be made at and as of the
Closing Date, shall survive the Closing Date and shall not be waived by the
execution and delivery of this Agreement, any investigation made by or on behalf
of the Lenders or any borrowing hereunder.
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ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been finally and indefeasibly paid and
satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner set forth in Section 13.11 hereof, the Borrowers will
furnish or cause to be furnished to the Administrative Agent and to the Lenders
at their respective addresses as set forth on Schedule 1.1(a), or such other
office as may be designated by the Administrative Agent and Lenders from time to
time:
SECTION 7.1 Financial Statements and Projections.
(a) Quarterly Reports. As soon as practicable and in any event within
sixty (60) days after the end of each fiscal quarter, (A) a schedule of the
Properties summarizing total revenues, expenses, Net Operating Income as to the
Properties, Adjusted NOI as to the Properties, and occupancy rates as of the
last day of the applicable fiscal quarter and (B) a listing of all Properties
under development showing construction status, the total capital obligation of
the Borrowers and their Subsidiaries and funds expended to date as compared to
budget and showing the Total Construction in Progress Value with respect
thereto.
(b) Annual Financial Reports.
(i) Annual Financial Statements. As soon as practicable and in
any event within one hundred and twenty (120) days after the end of
each Fiscal Year, an audited Consolidated balance sheet of the
Borrowers and their Subsidiaries as of the close of such Fiscal Year
and audited Consolidated statements of income, retained earnings and
cash flows for the Fiscal Year then ended, including the notes thereto,
all in reasonable detail setting forth in comparative form the
corresponding figures for the preceding Fiscal Year and prepared by an
independent certified public accounting firm acceptable to the
Administrative Agent in accordance with GAAP and, if applicable,
containing disclosure of the effect on the financial position or
results of operation of any change in the application of accounting
principles and practices during the year, and accompanied by a report
thereon by such certified public accountants that is not qualified with
respect to scope limitations imposed by any Borrower or any Subsidiary
thereof or with respect to accounting principles followed by any
Borrower or any Subsidiary thereof not in accordance with GAAP.
(ii) Annual Operating Information. As soon as practicable and
in any event within one hundred and twenty (120) days after the end of
each Fiscal Year, (A) a detailed schedule for the Properties,
including, without limitation, project names and locations, leasing
status, Net Operating Income as to the Properties, Adjusted NOI as to
the Properties, the source of cash necessary to cover any operating
deficit, the amount of and the beneficiary of any cash distributions,
and the amount invested in or received from the properties and (B) the
annual report of the Borrowers and their Subsidiaries.
43
(c) Annual Financial Projections. As soon as practicable and in any
event within one hundred twenty (120) days after the end of each Fiscal Year,
the following information: the annual operating capital budget, projected income
statement, projected statement of cash flows and projected balance sheet and a
report containing management's discussion and analysis of such projections for
the Borrower and their Subsidiaries for the next Fiscal Year.
(d) Securities Filings. Promptly upon any other transmission thereof,
copies of each periodic report (including the special reports on Form 8-K, the
annual reports on Form 10-K and the quarterly reports on Form 10-Q), proxy
statement or prospectus relating to any Borrower, any of its Subsidiaries or any
of their respective securities as shall be delivered to shareholders, any
securities exchange or the Commission.
SECTION 7.2 Officer's Compliance Certificate. As soon as practicable
and in any event within forty-five (45) days after the end of each fiscal
quarter, within one hundred and twenty (120) days after the end of each Fiscal
Year and at such other times as the Administrative Agent shall reasonably
request, a certificate of the chief financial officer or the treasurer of
Cornerstone, on behalf of the Borrowers, in the form of Exhibit E attached
hereto (an "Officer's Compliance Certificate").
SECTION 7.3 Other Reports.
(a) Promptly upon receipt thereof, copies of all reports, if any,
submitted to any Borrower or its Board of Directors by its independent public
accountants in connection with their auditing function, including, without
limitation, any management report and any management responses thereto; and
(b) Such other information regarding the operations, business affairs
and financial condition of any Borrower or any of its Subsidiaries as the
Administrative Agent or any Lender may reasonably request.
SECTION 7.4 Notice of Litigation and Other Matters. Prompt (but in no
event later than ten (10) days after an officer of any Borrower obtains
knowledge thereof) telephonic and written notice of:
(a) the commencement of all proceedings and investigations by or before
any Governmental Authority and all actions and proceedings in any court or
before any arbitrator against or involving any Borrower or any Subsidiary
thereof or any of their respective properties, assets or businesses;
(b) any notice of any violation received by any Borrower or any
Subsidiary thereof from any Governmental Authority including, without
limitation, any notice of violation of Environmental Laws which in any such case
could reasonably be expected to have a Material Adverse Effect;
(c) any labor controversy that has resulted in, or threatens to result
in, a strike or other work action against any Borrower or any Subsidiary
thereof;
44
(d) any attachment, judgment, lien, levy or order exceeding $50,000
individually or $100,000 in the aggregate that may be assessed against or
threatened against any Borrower or any Subsidiary thereof;
(e) any Default or Event of Default, or any event which constitutes or
which with the passage of time or giving of notice or both would constitute a
default or event of default under any Material Contract to which any Borrower or
any Subsidiary thereof is a party or by which any Borrower or any Subsidiary
thereof or any of their respective properties may be bound;
(f) (i) any unfavorable determination letter from the Internal Revenue
Service regarding the qualification of an Employee Benefit Plan under Section
401(a) of the Code (along with a copy thereof), (ii) all notices received by any
Borrower or any ERISA Affiliate of the PBGC's intent to terminate any Pension
Plan or to have a trustee appointed to administer any Pension Plan, (iii) all
notices received by any Borrower or any ERISA Affiliate from a Multiemployer
Plan sponsor concerning the imposition or amount of withdrawal liability
pursuant to Section 4202 of ERISA and (iv) any Borrower obtaining knowledge or
reason to know that any Borrower 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; and
(g) any event which makes any of the representations set forth in
Section 6.1 inaccurate in any respect.
SECTION 7.5 Accuracy of Information. All written information, reports,
statements and other papers and data furnished by or on behalf of any Borrower
to the Administrative Agent or any Lender (other than financial forecasts)
whether pursuant to this Article VII or any other provision of this Agreement,
or any of the Loan Documents, shall be, at the time the same is so furnished,
complete and correct in all material respects to the extent necessary to give
the Administrative Agent or any Lender complete, true and accurate knowledge of
the subject matter based on the Borrowers' knowledge thereof.
ARTICLE VIII
AFFIRMATIVE COVENANTS
Until all of the Obligations have been finally and indefeasibly paid
and satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner provided for in Section 13.11, the Borrowers will, and
will cause each of their Subsidiaries to:
SECTION 8.1 Preservation of Corporate Existence and Related Matters.
Except as permitted by Section 10.7, preserve and maintain its separate
corporate existence and all rights, franchises, licenses and privileges
necessary to the conduct of its business, and qualify and remain qualified as a
foreign corporation and authorized to do business in each jurisdiction and
maintain the qualification of Cornerstone and each of its Subsidiaries, as
applicable, as "real estate investment trust" under Sections 856 through 860 of
the Code.
45
SECTION 8.2 Maintenance of Property. Protect and preserve all
properties useful in and material to its business, including copyrights,
patents, trade names and trademarks; maintain in good working order and
condition all buildings, equipment and other tangible real and personal
property; and from time to time make or cause to be made all renewals,
replacements and additions to such property necessary for the conduct of its
business, so that the business carried on in connection therewith may be
properly and advantageously conducted at all times.
SECTION 8.3 Insurance. Maintain insurance with financially sound and
reputable insurance companies against such risks and in such amounts as are
customarily maintained by similar businesses and as may be required by
Applicable Law, and on the Closing Date and from time to time thereafter deliver
to the Administrative Agent upon its request a detailed list of the insurance
then in effect, stating the names of the insurance companies, the amounts and
rates of the insurance, the dates of the expiration thereof and the properties
and risks covered thereby.
SECTION 8.4 Accounting Methods and Financial Records. Maintain a system
of accounting, and keep such books, records and accounts (which shall be true
and complete in all material respects) as may be required or as may be necessary
to permit the preparation of financial statements in accordance with GAAP and in
compliance with the regulations of any Governmental Authority having
jurisdiction over it or any of its properties.
SECTION 8.5 Payment and Performance of Obligations. Pay and perform all
Obligations under this Agreement and the other Loan Documents, and pay or
perform (a) all taxes, assessments and other governmental charges that may be
levied or assessed upon it or any of its property, and (b) all other
indebtedness, obligations and liabilities in accordance with customary trade
practices; provided, that such Borrower or such Subsidiary may contest any item
described in Section 8.5(a) and (b) in good faith so long as adequate reserves
are maintained with respect thereto in accordance with GAAP.
SECTION 8.6 Compliance With Laws and Approvals. Observe and remain in
compliance with all Applicable Laws and maintain in full force and effect all
Governmental Approvals, in each case applicable to the conduct of its business.
SECTION 8.7 Environmental Laws. In addition to and without limiting the
generality of Section 8.6, (a) comply with, and ensure such compliance by all
tenants and subtenants, if any, with, all applicable Environmental Laws and
obtain and comply with and maintain, and ensure that all tenants and subtenants
obtain and comply with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws, (b) conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws, and promptly comply with all lawful orders and directives of
any Governmental Authority regarding Environmental Laws, and (c) defend,
indemnify and hold harmless the Administrative Agent and the Lenders, and their
respective parents, Subsidiaries, Affiliates, employees, agents, officers and
directors, from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature known or
unknown, contingent or otherwise, arising out of, or in any way relating to the
violation of, noncompliance with or liability under any Environmental Laws
applicable to the operations of such Borrower or such Subsidiary, or any
46
orders, requirements or demands of Governmental Authorities related thereto,
including, without limitation, reasonable attorney's and consultant's fees,
investigation and laboratory fees, response costs, court costs and litigation
expenses, except to the extent that any of the foregoing directly result from
the gross negligence or willful misconduct of the party seeking indemnification
therefor.
SECTION 8.8 Compliance with ERISA. In addition to and without limiting
the generality of Section 8.6, (a) comply with all applicable provisions of
ERISA and the regulations and published interpretations thereunder with respect
to all Employee Benefit Plans, (b) not take any action or fail to take action
the result of which could be a liability to the PBGC or to a Multiemployer Plan,
(c) not participate in any prohibited transaction that could result in any civil
penalty under ERISA or tax under the Code, (d) operate each Employee Benefit
Plan in such a manner that will not incur any tax liability under Section 4980B
of the Code or any liability to any qualified beneficiary as defined in Section
4980B of the Code and (e) furnish to the Administrative Agent upon the
Administrative Agent's request such additional information about any Employee
Benefit Plan as may be reasonably requested by the Administrative Agent.
SECTION 8.9 Compliance With Agreements. Comply in all respects with
each term, condition and provision of all leases, agreements and other
instruments entered into in the conduct of its business including, without
limitation, any Material Contract; provided, that such Borrower or such
Subsidiary may contest any such lease, agreement or other instrument in good
faith through applicable proceedings so long as adequate reserves are maintained
in accordance with GAAP.
SECTION 8.10 Conduct of Business. Engage only in businesses in
substantially the same fields as the businesses conducted on the Closing Date
(specifically the ownership and operation of Multifamily Properties).
SECTION 8.11 Visits and Inspections.
(a) Upon reasonable prior notice, permit representatives of the
Administrative Agent or any Lender, from time to time, to visit and inspect its
properties;
(b) Upon reasonable prior notice, permit representatives of the
Administrative Agent (on behalf of the Lenders), from time to time, to inspect,
audit and make extracts from its books, records and files, including, but not
limited to, management letters prepared by independent accountants; and
(c) Upon reasonable prior notice, permit representatives of the
Administrative Agent (on behalf of the Lenders), from time to time, to discuss
with its principal officers, and, together with representatives of the
Borrowers, its independent accountants, its business, assets, liabilities,
financial condition, results of operations and business prospects.
SECTION 8.12 [Intentionally Omitted.]
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SECTION 8.13 Surveys. Obtain for each Project acquired by any Borrower
or any Subsidiary thereof after the Closing Date a current survey prepared by a
certified land surveyor showing the location of actual improvements as of the
date of acquisition of the Project, containing only those matters acceptable to
the Administrative Agent and containing a certification that the Project to be
financed with the Loans is not located in a flood hazard area.
SECTION 8.14 Title Insurance. Obtain for all Projects acquired by any
Borrower or any Subsidiary thereof after the Closing Date paid title insurance
policies in accordance with the applicable title insurance commitment approved
by the Administrative Agent in connection with the requisition of the Loans.
SECTION 8.15 Equity Issuance. Promptly report to the Administrative
Agent all Net Equity Proceeds received from any Equity Issuance by any Borrower
or any of its Subsidiaries and verify to the satisfaction of the Administrative
Agent the amount of such Net Equity Proceeds.
SECTION 8.16 Upstream of Dividends. Cause all Dividends payable by any
Subsidiary of any Borrower to be transferred to such Borrower as promptly as
possible.
SECTION 8.17 Additional Borrowers. Except as otherwise permitted by the
Administrative Agent, upon the creation of any Subsidiary of any Borrower that
is permitted by this Agreement, other than those Subsidiaries set forth on
Schedule 8.17 hereto, cause to be executed and delivered to the Administrative
Agent (a) a Joinder Agreement duly executed by such Subsidiary and each other
document and agreement referred to therein such that such Subsidiary shall
become a borrower hereunder and be bound by all of the terms and conditions
hereof, (b) replacement Notes duly executed by such Subsidiary and each other
Borrower then party hereto, (c) such closing documents and certificates required
of each of the Borrowers pursuant to Section 5.2(b) and (d) such other documents
reasonably requested by the Administrative Agent consistent with the terms of
this Agreement in order that such Subsidiary shall become bound by all of the
terms, covenants and agreements contained in the Loan Documents. Upon
satisfaction of the conditions set forth in this Section 8.17, each Subsidiary
shall become a Borrower hereunder and the other Loan Documents on a joint and
several basis to the same extent as if such Subsidiary had been a party hereto
and thereto on the Closing Date.
SECTION 8.18 Securities Exchange Listing. Take all action necessary to
ensure that Cornerstone maintains a listing (including, without limitation, all
authorizations required in order to be listed) on the New York Stock Exchange,
the American Stock Exchange, the National Market System of the Nasdaq Stock
Market or any other national securities exchange that has listing standards
determined by the Administrative Agent to be substantially similar to the
listing standards applicable to the aforementioned exchanges.
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SECTION 8.19 Further Assurances. Make, execute and deliver all such
additional and further acts, things, deeds and instruments as the Administrative
Agent or any Lender may reasonably require to document and consummate the
transactions contemplated hereby and to vest completely in and insure the
Administrative Agent and the Lenders their respective rights under this
Agreement, the Notes and the other Loan Documents.
ARTICLE IX
FINANCIAL COVENANTS
Until all of the Obligations have been finally and indefeasibly paid
and satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner set forth in Section 13.11 hereof, the Borrowers and
their Subsidiaries (or, as applicable, their Wholly-Owned Subsidiaries) on a
Consolidated basis will not:
SECTION 9.1 Leverage Ratio. As of any fiscal quarter end, permit the
ratio of (a) Total Funded Debt as of such date to (b) Total Implied
Capitalization Value for such fiscal quarter to exceed 0.60 to 1.0.
SECTION 9.2 Fixed Charge Coverage Ratio. As of any fiscal quarter end,
permit the ratio of (a) Adjusted EBITDA for the period of four (4) consecutive
fiscal quarters ending on such fiscal quarter end to (b) Fixed Charges for such
period of four (4) consecutive fiscal quarters, to be less than 1.70 to 1.00.
SECTION 9.3 Minimum Shareholder's Equity. As of any fiscal quarter end,
permit Shareholder's Equity to be less than the sum of (a) $460,000,000 plus (b)
seventy-five percent (75%) of the Net Equity Proceeds from any equity offering
after the Closing Date.
SECTION 9.4 Ratios of Total Secured Debt to Total Implied
Capitalization Value. As of any fiscal quarter end, permit the ratio of (a)
Total Secured Debt as of such date to (b) Total Implied Capitalization Value for
such fiscal quarter to exceed 0.55 to 1.0; provided that any secured debt by the
Borrower and Guarantors is recourse only to the specific assets provided as
collateral.
SECTION 9.5 Ratio of Adjusted Unencumbered Asset Value to Total
Unsecured Debt. As of any fiscal quarter end, permit the ratio of (a) the
Adjusted Unencumbered Asset Value for such fiscal quarter to (b) Total Unsecured
Debt as of such date to be less than 2.50 to 1.0.
SECTION 9.6 Adjusted Unencumbered Asset Cash Flow Ratio. As of any
fiscal quarter end, or as of the date of any Loan made hereunder, permit the
ratio of (a) the Adjusted Unencumbered Asset Cash Flow as of such fiscal quarter
end to (b) Proforma Debt Service for such period to be less than 2.00 to 1.0.
49
SECTION 9.7 Unencumbered Assets. At any time own fewer than eight (8)
Unencumbered Assets which (i) each are at least eighty percent (80%) occupied
and (ii) each have an Adjusted Unencumbered Asset Value of less than
$25,000,000.
SECTION 9.8 Ratio of Total Construction in Progress Value to Total
Implied Capitalization Value. As of any fiscal quarter end, permit the ratio of
(a) Total Construction in Progress Value as of such date to (b) Total Implied
Capitalization Value for such fiscal quarter to exceed 0.10 to 1.0.
SECTION 9.9 Ratio of Dividends to Funds from Operations. As of any
fiscal quarter end, permit the ratio of (a) Dividends paid during the period of
four (4) consecutive fiscal quarters as of such fiscal quarter end to (b) Funds
from Operations for such period of four (4) consecutive fiscal quarters to
exceed 0.95 to 1.0.
ARTICLE X
NEGATIVE COVENANTS
Until all of the Obligations have been finally and indefeasibly paid
and satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner set forth in Section 13.11 hereof, the Borrowers have not
and will not, and will not permit any of their Subsidiaries to:
SECTION 10.1 Limitations on Debt. Create, incur, assume or suffer to
exist any Debt except:
(a) the Obligations;
(b) Debt incurred in connection with a Hedging Agreement with a
counterparty and upon terms and conditions reasonably satisfactory to the
Administrative Agent;
(c) Debt existing on the Closing Date and not otherwise permitted under
this Section 10.1, as set forth on Schedule 6.1(r) and the renewal and
refinancing (but not the increase) thereof;
(d) Debt consisting of Contingent Obligations permitted by Section
10.2;
(e) Debt incurred in connection with trade payables arising in the
ordinary course of business;
(f) Debt incurred in connection with the $7,500,000 cash management
facility between Cornerstone and First Union; and
(g) Debt not otherwise permitted by this Section 10.1; provided that
(i) no Default or Event of Default shall then have occurred and be continuing or
occasioned thereby, (ii) such debt shall not otherwise be prohibited pursuant to
the provisions of Sections 10.2 and 10.3, (iii) for all such Debt with a
scheduled maturity date on or after the Maturity Date, all such Debt will bear
50
interest at a fixed rate and not at a variable rate, and (iv) such Debt shall
not be incurred pursuant to a revolving credit facility or any other revolving
line of credit;
provided, that none of the Debt permitted to be incurred by this Section 10.1
shall restrict, limit or otherwise encumber (by covenant or otherwise) the
ability of any Subsidiary of any Borrower to make any payment to such Borrower
or any of its Subsidiaries (in the form of Dividends, intercompany advances or
otherwise) for the purpose of enabling such Borrower to pay the Obligations.
SECTION 10.2 Unsecured Debt Restriction. With the exception of this
Credit Facility and a preexisting Seven Million Five Hundred Thousand Dollar
($7,500,000.00) cash management line with First Union National Bank, create,
incur, assume or suffer to exist any Unsecured Debt.
SECTION 10.3 Secured Debt Restrictions. Create, incur, assume or suffer
to exist any Debt which is secured by a Lien on collateral, except Debt where
the lender's sole recourse as to the payment of principal and interest is to the
collateral upon which the Lien is granted and which has a maturity date at least
one (1) year after the Maturity Date, except as set forth on Schedule 10.3.
SECTION 10.4 Limitations on Contingent Obligations. Create, incur,
assume or suffer to exist any Contingent Obligations except Contingent
Obligations in favor of the Administrative Agent for the benefit of the
Administrative Agent and the Lenders.
SECTION 10.5 Limitations on Liens. Create, incur, assume or suffer to
exist, any Lien on or with respect to any of its assets or properties (including
without limitation shares of capital stock or other ownership interests), real
or personal, whether now owned or hereafter acquired, except:
(a) Liens for taxes, assessments and other governmental charges or
levies (excluding any Lien imposed pursuant to any of the provisions of ERISA or
Environmental Laws) not yet due or as to which the period of grace (not to
exceed thirty (30) days), if any, related thereto has not expired or which are
being contested in good faith and by appropriate proceedings if adequate
reserves are maintained to the extent required by GAAP;
(b) the claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, (i) which are not overdue for a period of more
than thirty (30) days or (ii) which are being contested in good faith and by
appropriate proceedings;
(c) Liens consisting of deposits or pledges made in the ordinary course
of business in connection with, or to secure payment of, obligations under
workers' compensation, unemployment insurance or similar legislation;
(d) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use of real
property, which in the aggregate are not substantial
51
in amount and which do not, in any case, detract from the value of such property
or impair the use thereof in the ordinary conduct of business;
(e) Liens of the Administrative Agent for the benefit of the
Administrative Agent and the Lenders;
(f) Liens arising under mortgages securing Debt permitted under Section
10.1 of this Agreement; and
(g) Liens not otherwise permitted by this Section 10.5 and in existence
on the Closing Date and described on Schedule 10.5.
SECTION 10.6 Limitations on Loans, Advances, Investments and
Acquisitions. Purchase, own, invest in or otherwise acquire, directly or
indirectly, any capital stock, interests in any partnership or joint venture
(including, without limitation, the creation or capitalization of any
Subsidiary), evidence of Debt or other obligation or security, substantially all
or a portion of the business or assets of any other Person or any other
investment or interest whatsoever in any other Person, or make or permit to
exist, directly or indirectly, any loans, advances or extensions of credit
(which shall not be deemed to include delinquent rental payments being
diligently pursued by the Borrowers in the ordinary course of business) to, or
any investment in cash or by delivery of property in, any Person, or enter into,
directly or indirectly, any commitment or option in respect of the foregoing
except:
(a) investments in Subsidiaries existing on the Closing Date and the
other existing loans, advances and investments described on Schedule 10.6;
(b) investments in (i) marketable direct obligations issued or
unconditionally guaranteed by the United States of America or any agency thereof
maturing within 120 days from the date of acquisition thereof, (ii) commercial
paper maturing no more than 120 days from the date of creation thereof and
currently having the highest rating obtainable from either Standard & Poor's or
Xxxxx'x, (iii) certificates of deposit maturing no more than 120 days from the
date of creation thereof issued by commercial banks incorporated under the laws
of the United States of America, each having combined capital, surplus and
undivided profits of not less than $500,000,000 and having a rating of "A" or
better by a nationally recognized rating agency; provided, that the aggregate
amount invested in such certificates of deposit shall not at any time exceed
$5,000,000 for any one such certificate of deposit and $10,000,000 for any one
such bank, or (iv) time deposits maturing no more than 30 days from the date of
creation thereof with commercial banks or savings banks or savings and loan
associations each having membership either in the FDIC or the deposits of which
are insured by the FDIC and in amounts not exceeding the maximum amounts of
insurance thereunder;
(c) investments by any Borrower or any Subsidiary in the form of
acquisitions of all or substantially all of the business or a line of business
(whether by the acquisition of capital stock, assets or any combination thereof)
of any other Person if such acquisition has been previously approved in writing
by the Required Lenders;
52
(d) investments by any Borrower or any Subsidiary in joint ventures or
partnerships in an aggregate amount not to exceed five percent (5%) of the Total
Implied Capitalization Value on any date of determination; and
(e) investments by any Borrower or any Subsidiary in Properties (other
than Multifamily Properties as permitted hereunder) and in an aggregate amount
(including, without limitation, the aggregate amount of any investments incurred
under Section 10.6(d) and (f)) not to exceed ten percent (10%) of the Total
Implied Capitalization Value on any date of determination.
Notwithstanding the foregoing, to the extent Cornerstone has received equity
proceeds which it reasonably determines it cannot immediately reinvest in
Multifamily Properties, Cornerstone may make temporary investments not otherwise
permitted by this Section 10.6 upon the approval of the Administrative Agent and
all of the Lenders. The approval of such investment, the amount of such
investment and the permitted time period related thereto shall be determined in
discretion of the Administrative Agent and all of the Lenders.
SECTION 10.7 Limitations on Mergers and Liquidation. Merge, consolidate
or enter into any similar combination with any other Person or liquidate,
wind-up or dissolve itself (or suffer any liquidation or dissolution) except:
(a) any Borrower may merge with any other Borrower;
(b) any Borrower may merge into the Person such Borrower was formed to
acquire in connection with an acquisition permitted by Section 10.6(c); and
(c) any Borrower may wind-up into any other Borrower.
SECTION 10.8 Limitations on Dividends and Distributions. Declare or pay
any Dividends upon any of its capital stock; purchase, redeem, retire or
otherwise acquire, directly or indirectly, any shares of its capital stock, or
make any distribution of cash, property or assets among the holders of shares of
its capital stock, or make any change in its capital structure; provided that:
(a) any Borrower or any Subsidiary may pay Dividends in shares of its
own capital stock (provided that no Default or Event of Default under Sections
11.1(a), (b), (j) or (k) shall then have occurred and be continuing or
occasioned thereby);
(b) any Borrower which is a real estate investment trust may pay such
Dividends as are necessary to maintain its status as a real estate investment
trust (provided that no Default or Event of Default under Sections 11.1(a), (b),
(j) or (k) shall then have occurred and be continuing or occasioned thereby);
(c) any Borrower which is a real estate investment trust may pay
Dividends in addition to those Dividends permitted by Section 10.8(b) to the
extent not prohibited by Section 9.9 hereof (provided that no Default or Event
of Default under Sections 11.1(a), (b), (j) or (k) shall then have occurred and
be continuing or occasioned thereby); and
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(d) any Subsidiary may pay cash Dividends to any Borrower.
SECTION 10.9 Limitations on Exchange and Issuance of Capital Stock.
Issue, sell or otherwise dispose of any class or series of capital stock that,
by its terms or by the terms of any security into which it is convertible or
exchangeable, is, or upon the happening of an event or passage of time would be,
(a) convertible or exchangeable into Debt or (b) required to be redeemed or
repurchased, including at the option of the holder, in whole or in part, or has,
or upon the happening of an event or passage of time would have, a redemption or
similar payment due.
SECTION 10.10 Transactions with Affiliates. Except as set forth on
Schedule 10.10, directly or indirectly: (a) make any loan or advance to, or
purchase or assume any note or other obligation to or from, any of its officers,
directors, shareholders or other Affiliates, or to or from any member of the
immediate family of any of its officers, directors, shareholders or other
Affiliates, or subcontract any operations to any of its Affiliates (except loans
or advances to any of its officers, directors or other employees approved by the
Board of Directors in the ordinary course of business), or (b) enter into, or be
a party to, any transaction with any of its Affiliates, except pursuant to the
reasonable requirements of its business and upon fair and reasonable terms that
are fully disclosed to and approved in writing by the Required Lenders and are
no less favorable to it than it would obtain in a comparable arm's length
transaction with a Person not its Affiliate.
SECTION 10.11 Certain Accounting Changes. Change its Fiscal Year end,
or make any change in its accounting treatment and reporting practices except as
required by GAAP.
SECTION 10.12 Amendments; Payments and Prepayments of Subordinated
Debt. Amend or modify (or permit the modification or amendment of) any of the
terms or provisions of any Subordinated Debt, or cancel or forgive, make any
voluntary or optional payment or prepayment on, or redeem or acquire for value
(including without limitation by way of depositing with any trustee with respect
thereto money or securities before due for the purpose of paying when due) any
Subordinated Debt, except where any such amendment, modification, cancellation
or payment would not cause a Default or Event of Default.
SECTION 10.13 Status as REIT. (a) Revoke its election to be a "real
estate investment trust" within the meaning of Section 856 of the Code, (b) take
or fail to take any action that will cause such election to be terminated or to
cease to be valid at any time, (c) incur liability for any excise tax under
Section 4981 of the Code or (d) incur liability for any prohibited transaction
under Section 857(b)(6) of the Code.
SECTION 10.14 Property Acquisition Policy.
(a) Acquire any Property unless the representations contained in
Section 6.1(v) hereof, if given as of the date of such acquisition, would be
true and correct with respect to such Property.
(b) Purchase any new Property unless for each such Property it shall
first:
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(i) conduct such investigations and examinations with respect
to such Property as are customarily made by the Borrowers as of the
date hereof; and
(ii) conduct a Phase I environmental review (a "Phase I") of
such Property and the surrounding area and perform and document in
writing all further investigation necessary or appropriate in light of
the findings of such Phase I and determine that no Hazardous Materials
exist in such area that has the potential to result in any material
adverse effect on the condition (financial or otherwise), operations,
assets, businesses, properties or prospects of any Borrower; provided
that if a Phase I cannot feasibly be conducted due to time constraints
dictated by the terms of the proposed Property, the Borrowers shall
perform computer database searches to confirm the absence of any
Environmental Condition, and shall perform as much of the investigation
and analysis which would be part of a Phase I as is possible prior to
the closing of the transaction related to the Property, and will obtain
a full Phase I within sixty (60) days after the purchase of the
Property has been effected. Each Phase I will be available for
inspection by the Administrative Agent or any Lender. At no time shall
the aggregate book value of all Properties with respect to which there
existed at the time of purchase a Hazardous Material on such Property
as described above exceed five percent (5%) of the aggregate book value
of all the Properties owned by the Borrowers and their Subsidiaries.
SECTION 10.15 Restrictive Agreements. Enter into any Debt which
contains any negative pledge on assets or any covenants more restrictive than
the provisions of Articles VIII, IX and X hereof, or which restricts, limits or
otherwise encumbers its ability to incur Liens on or with respect to any of its
assets or properties other than the assets or properties securing such Debt.
ARTICLE XI
DEFAULT AND REMEDIES
SECTION 11.1 Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans and Reimbursement
Obligation. Any Borrower shall default in any payment of principal of any Loan,
Note or Reimbursement Obligation when and as due (whether at maturity, by reason
of acceleration or otherwise).
(b) Other Payment Default. Any Borrower shall default in the payment
when and as due (whether at maturity, by reason of acceleration or otherwise) of
interest on any Loan, Note or Reimbursement Obligation or the payment of any
other Obligation, and such default shall continue unremedied for five (5)
Business Days.
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(c) Misrepresentation. Any representation or warranty made or deemed to
be made by any Borrower or any Subsidiary thereof under this Agreement, any Loan
Document or any amendment hereto or thereto, shall at any time prove to have
been incorrect or misleading in any material respect when made or deemed made.
(d) Default in Performance of Certain Covenants. Any Borrower shall
default in the performance or observance of any covenant or agreement contained
in Section 7.4(e) or Articles IX or X of this Agreement.
(e) Default in Performance of Other Covenants and Conditions. Any
Borrower or any Subsidiary thereof shall default in the performance or
observance of any term, covenant, condition or agreement contained in this
Agreement (other than as specifically provided for otherwise in this Section
11.1) or any other Loan Document and such default shall continue for a period of
thirty (30) days after written notice thereof has been given to Cornerstone, on
behalf of the Borrowers, by the Administrative Agent.
(f) Hedging Agreement. Any termination payment shall be due by any
Borrower under any Hedging Agreement and such amount is not paid within ten (10)
Business Days of the due date thereof.
(g) Debt Cross-Default. Any Borrower or any Subsidiary thereof shall
(i) default in the payment of any Debt (other than the Notes) the aggregate
outstanding amount of which Debt is in excess of $1,000,000 beyond the period of
grace if any, provided in the instrument or agreement under which such Debt was
created, or (ii) default in the observance or performance of any other agreement
or condition relating to any Debt (other than the Notes) the aggregate
outstanding amount of which Debt is in excess of $1,000,000 or contained in any
instrument or agreement evidencing, securing or relating thereto or any other
event shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such Debt (or a
trustee or agent on behalf of such holder or holders) to cause, with the giving
of notice if required, any such Debt to become due prior to its stated maturity
(any applicable grace period having expired).
(h) Other Cross-Defaults. Any Borrower or any Subsidiary thereof shall
default in the payment when due, or in the performance or observance, of any
obligation or condition of any Material Contract unless, but only as long as,
the existence of any such default is being contested by such Borrower or such
Subsidiary in good faith by appropriate proceedings and adequate reserves in
respect thereof have been established on the books of such Borrower or such
Subsidiary to the extent required by GAAP.
(i) Change in Control. (i) Any person or group of persons (within the
meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended)
shall obtain ownership or control in one or more series of transactions of more
than ten percent (10%) of the common stock or ten percent (10%) of the voting
power of Cornerstone entitled to vote in the election of members of the board of
directors of Cornerstone or (ii) Xxxxx X. Xxxxxx, X.X. Xxxxxxx or Xxxxx Xxxxx
ceases to continue to hold his or her current office or continue with management
responsibilities substantially similar to those existing on the Closing Date and
a replacement for such Person reasonably
56
satisfactory to the Administrative Agent and possessing substantially similar
qualifications and reputation to the Person being replaced is not employed by
the Borrowers within three (3) months after such Person ceases to hold such
office or continue to have such management responsibilities (any such event, a
"Change in Control").
(j) Voluntary Bankruptcy Proceeding. Any Borrower or any Subsidiary
thereof shall (i) commence a voluntary case under the federal bankruptcy laws
(as now or hereafter in effect), (ii) file a petition seeking to take advantage
of any other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition for adjustment of debts, (iii) consent
to or fail to contest in a timely and appropriate manner any petition filed
against it in an involuntary case under such bankruptcy laws or other laws, (iv)
apply for or consent to, or fail to contest in a timely and appropriate manner,
the appointment of, or the taking of possession by, a receiver, custodian,
trustee, or liquidator of itself or of a substantial part of its property,
domestic or foreign, (v) admit in writing its inability to pay its debts as they
become due, (vi) make a general assignment for the benefit of creditors, or
(vii) take any corporate action for the purpose of authorizing any of the
foregoing.
(k) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
be commenced against any Borrower or any Subsidiary thereof in any court of
competent jurisdiction seeking (i) relief under the federal bankruptcy laws (as
now or hereafter in effect) or under any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or adjustment of
debts, or (ii) the appointment of a trustee, receiver, custodian, liquidator or
the like for any Borrower or any Subsidiary thereof or for all or any
substantial part of their respective assets, domestic or foreign, and such case
or proceeding shall continue undismissed or unstayed for a period of sixty (60)
consecutive days, or an order granting the relief requested in such case or
proceeding (including, but not limited to, an order for relief under such
federal bankruptcy laws) shall be entered.
(l) Failure of Agreements. Any provision of this Agreement or of any
other Loan Document shall for any reason cease to be valid and binding on any
Borrower or any Subsidiary party thereto or any such Person shall so state in
writing, or this Agreement or any other Loan Document shall for any reason cease
to create a valid and perfected first priority Lien on, or security interest in,
any of the collateral purported to be covered thereby, in each case other than
in accordance with the express terms hereof or thereof.
(m) Termination Event. The occurrence of any of the following events:
(i) any Borrower or any ERISA Affiliate fails to make full payment when due of
all amounts which, under the provisions of any Pension Plan or Section 412 of
the Code, any Borrower or any ERISA Affiliate is required to pay as
contributions thereto, (ii) an accumulated funding deficiency in excess of
$100,000 occurs or exists, whether or not waived, with respect to any Pension
Plan, (iii) a Termination Event or (iv) any Borrower or any ERISA Affiliate as
employers under one or more Multiemployer Plan makes a complete or partial
withdrawal from any such Multiemployer Plan and the plan sponsor of such
Multiemployer Plans notifies such withdrawing employer that such employer has
incurred a withdrawal liability requiring payments in an amount exceeding
$100,000.
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(n) Judgment. A judgment or order for the payment of money which causes
the aggregate amount of all such judgments to exceed $100,000 in any Fiscal Year
shall be entered against any Borrower or any Subsidiary thereof by any court and
such judgment or order shall continue undischarged or unstayed for a period of
thirty (30) days.
SECTION 11.2 Remedies. Upon the occurrence of an Event of Default, with
the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
Cornerstone, on behalf of the Borrowers:
(a) Acceleration; Termination of Facilities. Declare the principal of
and interest on the Loans, the Notes and the Reimbursement Obligation at the
time outstanding, and all other amounts owed to the Lenders and to the
Administrative Agent under this Agreement or any of the other Loan Documents
(including, without limitation, all L/C Obligations, whether or not the
beneficiaries of the outstanding Letters of Credit shall have presented the
documents required thereunder) and all other Obligations, to be forthwith due
and payable, whereupon the same shall immediately become due and payable without
presentment, demand, protest or other notice of any kind, all of which are
expressly waived, anything in this Agreement or the other Loan Documents to the
contrary notwithstanding, and terminate the Credit Facility and any right of any
Borrower to request borrowings or Letters of Credit thereunder; provided, that
upon the occurrence of an Event of Default specified in Section 11.1(j) or (k),
the Credit Facility shall be automatically terminated and all Obligations shall
automatically become due and payable.
(b) Letters of Credit. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to the preceding paragraph, require the Borrowers at such
time to deposit in a cash collateral account opened by the Administrative Agent
an amount equal to the aggregate then undrawn and unexpired amount of such
Letters of Credit. Amounts held in such cash collateral account shall be applied
by the Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay the
other Obligations. After all such Letters of Credit shall have expired or been
fully drawn upon, the Reimbursement Obligation shall have been satisfied and all
other Obligations shall have been paid in full, the balance, if any, in such
cash collateral account shall be returned to the Borrowers.
(c) Rights of Collection. Exercise on behalf of the Lenders all of its
other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of the Borrowers' Obligations.
SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver; etc. The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the Loan Documents or that may now or hereafter exist in law
or in equity or by suit or otherwise. No delay or failure to take action on the
part of the
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Administrative Agent or any Lender in exercising any right, power or privilege
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or privilege preclude other or further exercise thereof or
the exercise of any other right, power or privilege or shall be construed to be
a waiver of any Event of Default. No course of dealing between any Borrower, the
Administrative Agent and the Lenders or their respective agents or employees
shall be effective to change, modify or discharge any provision of this
Agreement or any of the other Loan Documents or to constitute a waiver of any
Event of Default.
ARTICLE XII
THE ADMINISTRATIVE AGENT
SECTION 12.1 Appointment. Each of the Lenders hereby irrevocably
designates and appoints First Union as Administrative Agent of such Lender under
this Agreement and the other Loan Documents and each such Lender irrevocably
authorizes First Union as Administrative Agent for such Lender, to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and such
other Loan Documents, together with such other powers as are reasonably
incidental thereto. The Administrative Agent shall administer the Loans in the
same manner that the Administrative Agent administers loans made for its own
account. Notwithstanding any provision to the contrary elsewhere in this
Agreement or such other Loan Documents, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein and
therein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or the other Loan Documents or otherwise exist
against the Administrative Agent.
SECTION 12.2 Delegation of Duties. The Administrative Agent may execute
any of its respective duties under this Agreement and the other Loan Documents
by or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by the Administrative Agent with reasonable care.
SECTION 12.3 Exculpatory Provisions. Neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates shall be (a) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with this
Agreement or the other Loan Documents (except for actions occasioned solely by
its or such Person's own gross negligence or willful misconduct), or (b)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any Borrower or any Subsidiary thereof or
any officer thereof contained in this Agreement or the other Loan Documents or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Administrative Agent under or in connection with,
this Agreement or the other Loan Documents or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
the other Loan Documents or for any failure of any Borrower or any Subsidiary
thereof to perform its obligations hereunder or thereunder. The
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Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of any Borrower or any Subsidiary thereof (except
as the Administrative Agent (on behalf of the Lenders) may be directed by the
Required Lenders to take those actions permitted under Section 8.11(b) or (c)).
SECTION 12.4 Reliance by the Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Borrowers), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless such Note shall have been
transferred in accordance with Section 13.10 hereof. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement and the other Loan Documents unless it shall first receive such advice
or concurrence of the Required Lenders (or, when expressly required hereby or by
the relevant other Loan Document, all the Lenders) as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action except for its own gross negligence or
willful misconduct. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
Notes in accordance with a request of the Required Lenders (or, when expressly
required hereby, all the Lenders), and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Notes.
SECTION 12.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless it has received notice from a Lender or a Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, it shall promptly give notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders; provided that unless and until the Administrative Agent
shall have received such directions, the Administrative 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 interests of the Lenders.
SECTION 12.6 Non-Reliance on the Administrative Agent and Other
Lenders. Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its respective officers, directors, employees, agents,
attorneys-in-fact, Subsidiaries or Affiliates has made any representations or
warranties to it and that no act by the Administrative Agent hereinafter taken,
including any review of the affairs of any Borrower or any Subsidiary thereof,
shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to the Administrative
Agent that it has, independently and
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without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Borrowers and their
Subsidiaries and made its own decision to make its Loans and issue or
participate in Letter of Credit hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrowers and their
Subsidiaries. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Administrative Agent hereunder or by the
other Loan Documents, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial and other condition or
creditworthiness of any Borrower or any Subsidiary thereof which may come into
the possession of the Administrative Agent or any of its respective officers,
directors, employees, agents, attorneys-in-fact, Subsidiaries or Affiliates.
SECTION 12.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such and (to the extent not reimbursed
by the Borrowers and without limiting the obligation of the Borrowers to do so),
ratably according to the respective amounts of their Commitment Percentages,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Notes or any Reimbursement Obligation) be
imposed on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or the other Loan Documents, or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the Administrative
Agent's bad faith, gross negligence or willful misconduct. The agreements in
this Section 12.7 shall survive the payment of the Notes, any Reimbursement
Obligation and all other amounts payable hereunder and the termination of this
Agreement.
SECTION 12.8 The Administrative Agent in Its Individual Capacity. The
Administrative Agent and its respective Subsidiaries and Affiliates may make
loans to, accept deposits from and generally engage in any kind of business with
the Borrowers as though the Administrative Agent were not an Administrative
Agent hereunder. With respect to any Loans made or renewed by it and any Note
issued to it and with respect to any Letter of Credit issued by it or
participated in by it, the Administrative Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not an Administrative Agent, and the terms
"Lender" and "Lenders" shall include the Administrative Agent in its individual
capacity.
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SECTION 12.9 Resignation of the Administrative Agent; Successor
Administrative Agent. Subject to the appointment and acceptance of a successor
as provided below, (i) the Administrative Agent may resign at any time by giving
notice thereof to the Lenders and Cornerstone, on behalf of the Borrowers, and
(ii) in the event of a judicial determination of gross negligence or willful
misconduct with respect to the manner in which the Administrative Agent has
carried out its duties hereunder, the Administrative Agent may be removed as
Administrative Agent under the Loan Documents at any time after such
determination by the Required Lenders upon at least thirty (30) Business Days'
prior notice. Upon any such resignation or removal, the Required Lenders, with
the consent of the Borrowers (such consent not to be unreasonably withheld)
unless there then exists a Default or Event of Default, shall have the right to
appoint a successor Administrative Agent, which successor shall have minimum
capital and surplus of at least $500,000,000. If no successor Administrative
Agent shall have been so appointed by the Required Lenders and shall have
accepted such appointment within thirty (30) days after the Administrative
Agent's giving of notice of resignation or the removal of the Administrative
Agent by the Required Lenders, then the Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, which successor shall
have minimum capital and surplus of at least $500,000,000. Upon the acceptance
of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Section 12.9 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
Administrative Agent.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Notices.
(a) Method of Communication. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing, or by
telephone subsequently confirmed in writing. Any notice shall be effective if
delivered by hand delivery or sent via telecopy, recognized overnight courier
service or certified mail, return receipt requested, and shall be presumed to be
received by a party hereto (i) on the date of delivery if delivered by hand or
sent by telecopy, (ii) on the next Business Day if sent by recognized overnight
courier service and (iii) on the third Business Day following the date sent by
certified mail, return receipt requested. A telephonic notice to the
Administrative Agent as understood by the Administrative Agent will be deemed to
be the controlling and proper notice in the event of a discrepancy with or
failure to receive a confirming written notice.
(b) Addresses for Notices. Notices to any party shall be sent to it at
the following addresses, or any other address as to which all the other parties
are notified in writing.
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If to any Borrower: Cornerstone Realty Income Trust, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
With copies to: XxXxxxx Xxxxx Battle & Xxxxxx, LLP
One Xxxxx Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to First Union First Union National Bank
as Administrative Agent: Xxx Xxxxx Xxxxx Xxxxxx, XX-0
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
With copies to: First Union National Bank
Real Estate Capital Markets Group
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to any Lender: To the Address set forth on
Schedule 1.1(a) hereto
(c) Administrative Agent's Office. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to the
Borrowers and the Lenders, as the Administrative Agent's Office referred to
herein, to which payments due are to be made and at which Loans will be
disbursed and Letters of Credit issued.
SECTION 13.2 Expenses; Indemnity. The Borrowers will (a) pay all
out-of-pocket expenses of the Administrative Agent in connection with: (i) the
preparation, execution and delivery of this Agreement and each other Loan
Document, whenever the same shall be executed and delivered, including without
limitation all out-of-pocket syndication and due diligence expenses and
reasonable fees and disbursements of counsel for the Administrative Agent, (ii)
the preparation, execution and delivery of any waiver, amendment or consent by
the Administrative
63
Agent or the Lenders relating to this Agreement or any other Loan Document,
including without limitation reasonable fees and disbursements of counsel for
the Administrative Agent, and (iii) the exercise and enforcement of any rights
and remedies of the Administrative Agent and the Lenders under the Credit
Facility, including consulting with appraisers, accountants, engineers,
attorneys and other Persons concerning the nature, scope or value of any right
or remedy of the Administrative Agent or any Lender hereunder or under any other
Loan Document or any factual matters in connection therewith, which expenses
shall include, without limitation, the reasonable fees and disbursements of such
Persons, (b) pay all out-of-pocket expenses each Lender in connection with the
enforcement of any rights and remedies of the Administrative Agent and the
Lenders under the Credit Facility, including consulting with appraisers,
accountants, engineers, attorneys and other Persons concerning the nature, scope
or value of any right or remedy of the Administrative Agent or any Lender
hereunder or under any other Loan Document or any factual matters in connection
therewith, which expenses shall include, without limitation, the reasonable fees
and disbursements of such Persons, and (c) defend, indemnify and hold harmless
the Administrative Agent and the Lenders, and their respective parents,
Subsidiaries, Affiliates, employees, agents, officers and directors, from and
against any losses, penalties, fines, liabilities, settlements, damages, costs
and expenses, suffered by any such Person in connection with any claim,
investigation, litigation or other proceeding (whether or not the Administrative
Agent or any Lender is a party thereto) and the prosecution and defense thereof,
arising out of or in any way connected with the Agreement, any other Loan
Document or the Loans, including without limitation reasonable attorney's and
consultant's fees, except to the extent that any of the foregoing directly
result from the gross negligence or willful misconduct of the party seeking
indemnification therefor.
SECTION 13.3 Set-off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon and after the occurrence of any Event of Default and during the continuance
thereof, the Lenders and any assignee or participant of a Lender in accordance
with Section 13.10 are hereby authorized by the Borrowers at any time or from
time to time, without notice to any Borrower or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and to apply
any and all deposits (general or special, time or demand, including, but not
limited to, indebtedness evidenced by certificates of deposit, whether matured
or unmatured) and any other indebtedness at any time held or owing by the
Lenders, or any such assignee or participant to or for the credit or the account
of the Borrowers against and on account of the Obligations irrespective of
whether or not (a) the Lenders shall have made any demand under this Agreement
or any of the other Loan Documents or (b) the Administrative Agent shall have
declared any or all of the Obligations to be due and payable as permitted by
Section 11.2 and although such Obligations shall be contingent or unmatured.
SECTION 13.4 Governing Law. This Agreement, the Notes and the other
Loan Documents, unless otherwise expressly set forth therein, shall be governed
by, construed and enforced in accordance with the laws of the State of North
Carolina, without reference to the conflicts or choice of law principles
thereof.
SECTION 13.5 Consent to Jurisdiction. Each Borrower hereby irrevocably
consents to the personal jurisdiction of the state and federal courts located in
Mecklenburg
64
County, North Carolina, in any action, claim or other proceeding arising out of
any dispute in connection with this Agreement, the Notes and the other Loan
Documents, any rights or obligations hereunder or thereunder, or the performance
of such rights and obligations. Each Borrower hereby irrevocably consents to the
service of a summons and complaint and other process in any action, claim or
proceeding brought by the Administrative Agent or any Lender in connection with
this Agreement, the Notes or the other Loan Documents, any rights or obligations
hereunder or thereunder, or the performance of such rights and obligations, on
behalf of itself or its property, in the manner specified in Section 13.1.
Nothing in this Section 13.5 shall affect the right of the Administrative Agent
or any Lender to serve legal process in any other manner permitted by Applicable
Law or affect the right of the Administrative Agent or any Lender to bring any
action or proceeding against any Borrower or its properties in the courts of any
other jurisdictions.
SECTION 13.6 Binding Arbitration; Waiver of Jury Trial.
(a) Binding Arbitration. Upon demand of any party, whether made before
or after institution of any judicial proceeding, any dispute, claim or
controversy arising out of, connected with or relating to the Notes or any other
Loan Documents ("Disputes"), between or among parties to the Notes or any other
Loan Document shall be resolved by binding arbitration as provided herein.
Institution of a judicial proceeding by a party does not waive the right of that
party to demand arbitration hereunder. Disputes may include, without limitation,
tort claims, counterclaims, claims brought as class actions, claims arising from
Loan Documents executed in the future, or claims concerning any aspect of the
past, present or future relationships arising out of or connected with the Loan
Documents. Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association and Title 9 of the U.S. Code. All arbitration hearings
shall be conducted in Charlotte, North Carolina. The expedited procedures set
forth in Rule 51, et seq. of the Arbitration Rules shall be applicable to claims
of less than $1,000,000. All applicable statutes of limitation shall apply to
any Dispute. A judgment upon the award may be entered in any court having
jurisdiction. The panel from which all arbitrators are selected shall be
comprised of licensed attorneys. The single arbitrator selected for expedited
procedure shall be a retired judge from the highest court of general
jurisdiction, state or federal, of the state where the hearing will be
conducted. Notwithstanding the foregoing, this paragraph shall not apply to any
Hedging Agreement that is a Loan Document.
(b) Jury Trial. TO THE EXTENT PERMITTED BY LAW, THE ADMINISTRATIVE
AGENT, EACH LENDER AND EACH BORROWER HEREBY IRREVOCABLY WAIVE THEIR RESPECTIVE
RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER PROCEEDING
ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR THE
OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER, OR THE
PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
(c) Preservation of Certain Remedies. Notwithstanding the preceding
binding arbitration provisions, the parties hereto and the other Loan Documents
preserve, without diminution, certain remedies that such Persons may employ or
exercise freely, either alone, in conjunction with or during a Dispute. Each
such Person shall have and hereby reserves the right to
65
proceed in any court of proper jurisdiction or by self help to exercise or
prosecute the following remedies: (i) all rights to foreclose against any real
or personal property or other security by exercising a power of sale granted in
the Loan Documents or under applicable law or by judicial foreclosure and sale,
(ii) all rights of self help including peaceful occupation of property and
collection of rents, set off, and peaceful possession of property, (iii)
obtaining provisional or ancillary remedies including injunctive relief,
sequestration, garnishment, attachment, appointment of receiver and in filing an
involuntary bankruptcy proceeding, and (iv) when applicable, a judgment by
confession of judgment. Preservation of these remedies does not limit the power
of an arbitrator to grant similar remedies that may be requested by a party in a
Dispute.
SECTION 13.7 Reversal of Payments. To the extent any Borrower makes a
payment or payments to the Administrative Agent for the ratable benefit of the
Lenders or the Administrative Agent receives any payment or proceeds of the
collateral which payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or proceeds repaid, the Obligations or part thereof
intended to be satisfied shall be revived and continued in full force and effect
as if such payment or proceeds had not been received by the Administrative
Agent.
SECTION 13.8 Injunctive Relief; Punitive Damages.
(a) Each Borrower recognizes that, in the event any Borrower fails to
perform, observe or discharge any of its obligations or liabilities under this
Agreement, any remedy of law may prove to be inadequate relief to the Lenders.
Therefore, each Borrower agrees that the Lenders, at the Lenders' option, shall
be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.
(b) The Administrative Agent, the Lenders and each Borrower (on behalf
of itself and its Subsidiaries) hereby agree that no such Person shall have a
remedy of punitive or exemplary damages against any other party to a Loan
Document and each such Person hereby waives any right or claim to punitive or
exemplary damages that they may now have or may arise in the future in
connection with any Dispute, whether such Dispute is resolved through
arbitration or judicially.
(c) The parties agree that they shall not have a remedy of punitive or
exemplary damages against any other party in any Dispute and hereby waive any
right or claim to punitive or exemplary damages they have now or which may arise
in the future in connection with any Dispute whether the Dispute is resolved by
arbitration or judicially.
SECTION 13.9 Accounting Matters. All financial and accounting
calculations, measurements and computations made for any purpose relating to
this Agreement, including, without limitation, all computations utilized by any
Borrower or any Subsidiary thereof to determine compliance with any covenant
contained herein, shall, except as otherwise expressly contemplated hereby or
unless there is an express written direction by the Administrative Agent and the
Required Lenders to the contrary agreed to by Cornerstone, on behalf of the
Borrowers, be performed in accordance with GAAP as in effect on the Closing
Date. In the event that
66
changes in GAAP shall be mandated by the Financial Accounting Standards Board,
or any similar accounting body of comparable standing, or shall be recommended
by the Borrowers' certified public accountants, to the extent that such changes
would modify such accounting terms or the interpretation or computation thereof,
such changes shall be followed in defining such accounting terms only from and
after the date the Borrowers and the Lenders shall have amended this Agreement
to the extent necessary to reflect any such changes in the financial covenants
and other terms and conditions of this Agreement.
SECTION 13.10 Successors and Assigns; Participations.
(a) Benefit of Agreement. This Agreement shall be binding upon and
inure to the benefit of the Borrowers, the Administrative Agent and the Lenders,
all future holders of the Notes, and their respective successors and assigns,
except that the Borrowers shall not assign or transfer any of their rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Assignment by Lenders. Each Lender may, with the consent of the
Borrower and the Administrative Agent, which consent shall not be unreasonably
withheld, assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Agreement (including, without
limitation, all or a portion of the Extensions of Credit at the time owing to it
and the Notes held by it); provided that:
(i) each such assignment shall be of a constant, and not a
varying, percentage of all the assigning Lender's rights and
obligations under this Agreement;
(ii) if less than all of the assigning Lender's Commitment is
to be assigned, (A) the Commitment of the Assigning Lender after any
such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $10,000,000 (or a whole
multiple of $5,000,000 in excess thereof) and (B) the Commitment so
assigned shall not be less than $10,000,000 (or a whole multiple of
$5,000,000 in excess thereof);
(iii) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording
in the Register, an Assignment and Acceptance in the form of Exhibit F
attached hereto (an "Assignment and Acceptance"), together with any
Note or Notes subject to such assignment;
(iv) such assignment shall not, without the consent of the
Borrowers, require any Borrower to file a registration statement with
the Securities and Exchange Commission or apply to or qualify the Loans
or the Notes under the blue sky laws of any state;
(v) the assigning Lender shall pay to the Administrative Agent
an assignment fee of $3,000 upon the execution by such Lender of the
Assignment and Acceptance; provided that no such fee shall be payable
upon any assignment by a Lender to an Affiliate thereof permitted
hereunder;
67
(vi) no Lender may assign all or a portion of its interests,
rights and obligations under this Agreement to more than one (1)
Affiliate of such Lender; and
(vii) the Administrative Agent, in its capacity as a Lender,
shall not effect any assignment of its Commitment if, after giving
effect thereto, the amount of its Commitment would be less than the
amount of the Commitment of any other Lender.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five (5) Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereby
and (B) the Lender thereunder shall, to the extent provided in such assignment,
be released from its obligations under this Agreement.
(c) Rights and Duties Upon Assignment. By executing and delivering an
Assignment and Acceptance, the assigning Lender thereunder and the assignee
thereunder confirm to and agree with each other and the other parties hereto as
set forth in such Assignment and Acceptance.
(d) Register. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders and the amount of the Extensions of
Credit with respect to each Lender from time to time (the "Register"). The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrowers, the Administrative 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
Cornerstone, on behalf of the Borrowers, or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(e) Issuance of New Notes. Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and an Eligible Assignee together
with any Note or Notes subject to such assignment and the written consent to
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is substantially in the form of Exhibit F:
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in the Register;
(iii) give prompt notice thereof to the Lenders and
Cornerstone, on behalf of the Borrowers; and
(iv) promptly deliver a copy of such Assignment and Acceptance
to Cornerstone, on behalf of the Borrowers.
Within five (5) Business Days after receipt of notice, the Borrowers shall
execute and deliver to the Administrative Agent, in exchange for the surrendered
Note or Notes, a new Note or Notes to the order of such Eligible Assignee in
amounts equal to the Commitment assumed by it pursuant to such Assignment and
Acceptance and a new Note or Notes to the order of the assigning Lender in
68
an amount equal to the Commitment retained by it hereunder. Such new Note or
Notes shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of the assigned Notes delivered to the assigning Lender. Each surrendered Note
or Notes shall be canceled and returned to Cornerstone, on behalf of the
Borrowers.
(f) Participations. Each Lender may, with the consent of the Borrower
and the Administrative Agent, which consent shall not be unreasonably withheld,
sell participations to one or more banks or other entities in all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Extensions of Credit and the Notes held by
it); provided that:
(i) each such participation shall be in an amount not less
than $10,000,000 (or a whole multiple of $5,000,000 in excess thereof);
(ii) such Lender's obligations under this Agreement
(including, without limitation, its Commitment) shall remain unchanged;
(iii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations;
(iv) such Lender shall remain the holder of the Notes held by
it for all purposes of this Agreement;
(v) the Borrowers, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement;
(vi) such Lender shall not permit such participant the right
to approve any waivers, amendments or other modifications to this
Agreement or any other Loan Document other than waivers, amendments or
modifications which would reduce the principal of or the interest rate
on any Loan, extend the term or increase the amount of the Commitment,
reduce the amount of any fees to which such participant is entitled,
extend any scheduled payment date for principal of any Loan or, except
as expressly contemplated hereby or thereby, release substantially all
of any collateral securing the Credit Facility; and
(vii) any such disposition shall not, without the consent of
the Borrowers, require any Borrower to file a registration statement
with the Securities and Exchange Commission to apply to qualify the
Loans or the Notes under the blue sky law of any state.
(g) Disclosure of Information; Confidentiality. The Administrative
Agent and the Lenders shall hold all non-public information with respect to the
Borrowers obtained pursuant to the Loan Documents in accordance with their
customary procedures for handling confidential information. Any Lender may, in
connection with any assignment, proposed assignment, participation or proposed
participation pursuant to this Section 13.10, disclose to the assignee,
participant, proposed assignee or proposed participant, any information relating
to the Borrowers
69
furnished to such Lender by or on behalf of the Borrowers; provided, that prior
to any such disclosure, each such assignee, proposed assignee, participant or
proposed participant shall agree with the Borrowers or such Lender to preserve
the confidentiality of any confidential information relating to the Borrowers
received from such Lender.
(h) Certain Pledges or Assignments. Nothing herein shall prohibit any
Lender from pledging or assigning any Note to any Federal Reserve Bank in
accordance with Applicable Law.
SECTION 13.11 Amendments, Waivers and Consents. Except as set forth
below, any term, covenant, agreement or condition of this Agreement or any of
the other Loan Documents may be amended or waived by the Lenders, and any
consent given by the Lenders, if, but only if, such amendment, waiver or consent
is in writing signed by the Required Lenders (or by the Administrative Agent
with the consent of the Required Lenders) and delivered to the Administrative
Agent and, in the case of an amendment, signed by each Borrower; provided that,
no amendment, waiver or consent shall (a) increase the amount or extend the time
of the obligation of the Lenders to make Loans or issue or participate in
Letters of Credit (including, without limitation, pursuant to Section 2.6 except
as otherwise set forth in such Section 2.6), (b) extend the originally scheduled
time or times of payment of the principal of any Loan or Reimbursement
Obligation or the time or times of payment of interest on any Loan or
Reimbursement Obligation, (c) reduce the rate of interest or fees payable on any
Loan or Reimbursement Obligation (except as the rate of interest may fluctuate
pursuant to the provisions of Section 4.1), (d) permit any subordination of the
principal or interest on any Loan or Reimbursement Obligation, (e) release any
material portion of any collateral securing the Credit Facility, (f) amend or
waive the provisions of Section 8.17, (g) amend or waive the provisions of
Section 9.1, (h) amend or waive the provisions of Section 10.7, (i) amend the
provisions of Section 11.1 or the definition of Default or Event of Default, (j)
amend the provisions of the last sentence of Section 10.6 or (k) amend the
provisions of this Section 13.11 or the definition of Required Lenders, without
the prior written consent of each Lender. In addition, no amendment, waiver or
consent to the provisions of (a) Article XII shall be made without the written
consent of the Administrative Agent and (b) Article III without the written
consent of the Issuing Lender.
SECTION 13.12 Performance of Duties. The Borrowers' obligations under
this Agreement and each of the Loan Documents shall be performed by the
Borrowers at their sole cost and expense.
SECTION 13.13 All Powers Coupled with Interest. All powers of attorney
and other authorizations granted to the Lenders, the Administrative Agent and
any Persons designated by the Administrative Agent or any Lender pursuant to any
provisions of this Agreement or any of the other Loan Documents shall be deemed
coupled with an interest and shall be irrevocable so long as any of the
Obligations remain unpaid or unsatisfied or the Credit Facility has not been
terminated.
SECTION 13.14 Survival of Indemnities. Notwithstanding any termination
of this Agreement, the indemnities to which the Administrative Agent and the
Lenders are entitled under the provisions of this Article XIII and any other
provision of this Agreement and the Loan
70
Documents shall continue in full force and effect and shall protect the
Administrative Agent and the Lenders against events arising after such
termination as well as before.
SECTION 13.15 Titles and Captions. Titles and captions of Articles,
Sections and subsections in this Agreement are for convenience only, and neither
limit nor amplify the provisions of this Agreement.
SECTION 13.16 Severability of Provisions. Any provision of this
Agreement or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 13.17 Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns, and all of which taken
together shall constitute one and the same agreement.
SECTION 13.18 Joint and Several Liability. The Obligations of the
Borrowers under this Agreement and the Notes shall be joint and several.
References to the Borrowers with respect to the Obligations or any portion
thereof shall mean each Borrower on a joint and several basis.
SECTION 13.19 Cornerstone as Administrative Agent for Borrowers. Each
Borrower hereby irrevocably appoints and authorizes Cornerstone (i) to provide
the Administrative Agent with all notices with respect to Loans obtained for the
benefit of any Borrower and all other notices and instructions under this
Agreement and (ii) to take such action on behalf of the Borrowers as Cornerstone
deems appropriate on its behalf to obtain Loans and to exercise such other
powers as are reasonably incidental thereto to carry out the purposes of this
Agreement.
SECTION 13.20 Term of Agreement. This Agreement shall remain in effect
from the Closing Date through and including the date upon which all Obligations
shall have been indefeasibly and irrevocably paid and satisfied in full. No
termination of this Agreement shall affect the rights and obligations of the
parties hereto arising prior to such termination.
[Signature pages to follow]
71
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, all as of the day and year first
written above.
BORROWERS:
CORNERSTONE REALTY INCOME TRUST, INC.
By: /s/ Xxxxxxx X.Xxxxxxx, Xx.
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Executive Vice President
-----------------------------------
CRIT-NC, LLC
By: CORNERSTONE REALTY INCOME TRUST, INC.,
its sole Member/Manager
By: /s/ Xxxxxxx X.Xxxxxxx, Xx.
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Executive Vice President
-----------------------------------
ADMINISTRATIVE AGENT:
FIRST UNION NATIONAL BANK, as Administrative Agent
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------------------
Name: Xxxx X. Xxxxxxxx
--------------------------------------------
Title: Director
-------------------------------------------
LENDERS:
FIRST UNION NATIONAL BANK, as Lender
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------------------
Name: Xxxx X. Xxxxxxxx
--------------------------------------------
Title: Director
-------------------------------------------
EXHIBITS TO
CREDIT AGREEMENT
(Consisting of Forms for Future Use)
[OMITTED]
SCHEDULES TO
CREDIT AGREEMENT
SCHEDULE CONTENTS
Schedule 1.1(a) Lenders and Commitments
Schedule 6.1(a) Jurisdictions of Organization and Qualification
Schedule 6.1(b) Subsidiaries and Capitalization
Schedule 6.1(i) ERISA Plans
Schedule 6.1(m) Labor and Collective Bargaining Agreements
Schedule 6.1(r) Debt and Contingent Obligations
Schedule 6.1(s) Litigation
Schedule 8.17 Subsidiaries Not Required to be Additional Borrowers
Schedule 10.3 Exceptions to Secured Debt Restrictions
Schedule 10.5 Existing Liens
Schedule 10.6 Existing Loans, Advances and Investments
Schedule 10.10 Transactions With Affiliates
SCHEDULE 1.1(A)
LENDERS AND COMMITMENTS
LENDER COMMITMENT PERCENTAGE
First Union National Bank $50,000,000 100%
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
SCHEDULE 6.1(A)
JURISDICTIONS OF ORGANIZATION AND QUALIFICATION
Cornerstone Realty Income Trust, Inc. ("Cornerstone")
The following table shows the organization and qualification information for
Cornerstone:
TYPE OF ENTITY FORMATION STATE QUALIFICATION STATES
corporation Virginia Georgia
North Carolina
South Carolina
CRIT-NC, LLC and Other Subsidiaries
The following table shows the organization and qualification information for
CRIT-NC, LLC and the other subsidiaries of Cornerstone, both direct and
indirect:
TABLE 1 (Direct Subsidiaries of Cornerstone)
-------------------------------------------------------------------------------------------------------------
NAME OF TYPE OF FORMATION QUALIFICATION
DIRECT SUBSIDIARY ENTITY STATE STATE(S) OWNERSHIP BY PARENT
-------------------------------------------------------------------------------------------------------------
CRIT-NC, LLC LLC Virginia North Carolina Cornerstone (100%)
-------------------------------------------------------------------------------------------------------------
Cornerstone Acquisition corporation Virginia none Cornerstone (99.99%)
Company
-------------------------------------------------------------------------------------------------------------
CRIT-SC, Inc. corporation Virginia South Carolina Cornerstone (100%)
-------------------------------------------------------------------------------------------------------------
CRIT-SC, LLC LLC Virginia none Cornerstone (100%)
-------------------------------------------------------------------------------------------------------------
CRIT-VA, Inc. corporation Virginia none Cornerstone (100%)
-------------------------------------------------------------------------------------------------------------
CRIT Special, Inc. corporation Virginia none Cornerstone (100%)
-------------------------------------------------------------------------------------------------------------
TABLE 2 (Indirect Subsidiaries of Cornerstone)
----------------------------------------------------------------------------------------------------------------------------
NAME OF TYPE OF FORMATION QUALIFICATION
INDIRECT SUBSIDIARY ENTITY STATE STATE(S) OWNERSHIP BY PARENT
----------------------------------------------------------------------------------------------------------------------------
Apple General, Inc. corporation Virginia Texas Cornerstone Acquisition Company (100%)
----------------------------------------------------------------------------------------------------------------------------
Apple Limited, Inc. corporation Virginia none Cornerstone Acquisition Company (100%)
----------------------------------------------------------------------------------------------------------------------------
Apple REIT Limited LP Virginia Texas Apple General, Inc. (1%)
Apple Limited, Inc. (99%)
----------------------------------------------------------------------------------------------------------------------------
Apple REIT II Limited LP Virginia Texas Apple General, Inc. (1%)
Apple Limited, Inc. (99%)
----------------------------------------------------------------------------------------------------------------------------
Apple REIT III Limited LP Virginia Texas Apple General, Inc. (1%)
Apple Limited, Inc. (99%)
----------------------------------------------------------------------------------------------------------------------------
Apple REIT IV Limited LP Virginia Texas Apple General, Inc. (1%)
Apple Limited, Inc. (99%)
----------------------------------------------------------------------------------------------------------------------------
Apple REIT V Partnership LP Virginia Texas Apple General, Inc. (1%)
Apple Limited, Inc. (99%)
----------------------------------------------------------------------------------------------------------------------------
Apple REIT VI Partnership LP Virginia Texas Apple General, Inc. (1%)
Apple Limited, Inc. (99%)
----------------------------------------------------------------------------------------------------------------------------
Apple REIT VII Partnership LP Virginia Texas Apple General, Inc. (1%)
Apple Limited, Inc. (99%)
----------------------------------------------------------------------------------------------------------------------------
CRIT Cornerstone Partnership LP Virginia South Carolina CRIT-SC, Inc. (1%)
CRIT-SC, LLC (99%)
----------------------------------------------------------------------------------------------------------------------------
CRIT-NC II, LLC LLC Delaware North Carolina CRIT Special, Inc. (100%)
----------------------------------------------------------------------------------------------------------------------------
CAC Special General, Inc. corporation Virginia Texas Cornerstone Acquisition Company (100%)
----------------------------------------------------------------------------------------------------------------------------
CAC Special Limited, Inc. corporation Virginia none Cornerstone Acquisition Company (100%)
----------------------------------------------------------------------------------------------------------------------------
CAC Limited Partnership LP Virginia Texas * CAC Special General, Inc. (1%)
CAC Special Limited, Inc. (99%)
----------------------------------------------------------------------------------------------------------------------------
* qualified in Texas under D/B/A of "Virginia CAC Limited Partnership" to avoid name conflict
SCHEDULE 6.1(B)
SUBSIDIARIES AND CAPITALIZATION
Cornerstone Realty Income Trust, Inc. ("Cornerstone")
Cornerstone is capitalized as follows:
CLASS OF SHARES NUMBER OF SHARES NUMBER OF SHARES
AUTHORIZED AUTHORIZED ISSUED AND OUTSTANDING
Common Shares, no par value 100,000,000 34,893,025 *
Preferred Shares 12,300,000 0
Series A Convertible 12,700,000 12,650,047
Preferred Shares
* On November 1, 2000, based on Cornerstone's most recent Quarterly
Report on Form 10-Q, as filed with the Securities and Exchange
Commission on November 14, 2000.
Cornerstone has reserved the indicated number of shares for issuance under the
following plans:
NUMBER OF SHARES
NAME OF PLAN RESERVED FOR ISSUANCE
1992 Incentive Plan.................................... 2,199,246
1992 Non-Employee Director Stock Option Plan........... 927,000
Special Non-Employee Directors Stock Option Plan....... 23,169
Non-Employee Directors Fees Plan....................... 43,750
CRIT-NC, LLC and Other Subsidiaries
CRIT-NC, LLC and the other subsidiaries of Cornerstone, both direct and
indirect, are capitalized as shown in the following tables:
TABLE 1 (Direct Subsidiaries of Cornerstone)
----------------------------------------------------------------------------------------------------------------------------
NAME OF CLASS OF INTEREST NUMBER
DIRECT SUBSIDIARY AUTHORIZED AUTHORIZED INTEREST ISSUED AND OUTSTANDING
----------------------------------------------------------------------------------------------------------------------------
CRIT-NC, LLC membership interest n/a 100% to Cornerstone
----------------------------------------------------------------------------------------------------------------------------
Cornerstone Acquisition common shares, 2,000,000 1,119,888 shares (99.99%) to Cornerstone
Company no par value 100 shares (0.01%) to employees of Cornerstone
----------------------------------------------------------------------------------------------------------------------------
CRIT-SC, Inc. common shares, 5,000 100 shares (100%) to Cornerstone
no par value
----------------------------------------------------------------------------------------------------------------------------
CRIT-SC, LLC membership interest n/a 100% to Cornerstone
----------------------------------------------------------------------------------------------------------------------------
CRIT-VA, Inc. common shares, 5,000 100 shares (100%) to Cornerstone
no par value
----------------------------------------------------------------------------------------------------------------------------
CRIT Special, Inc. common shares, 5,000 100 shares (100%) to Cornerstone
no par value
----------------------------------------------------------------------------------------------------------------------------
TABLE 2 (Indirect Subsidiaries of Cornerstone)
----------------------------------------------------------------------------------------------------------------------------
NAME OF CLASS OF INTEREST NUMBER
INDIRECT SUBSIDIARY AUTHORIZED AUTHORIZED INTEREST ISSUED AND OUTSTANDING
----------------------------------------------------------------------------------------------------------------------------
Apple General, Inc. common shares, 5,000 100 shares (100%) to Cornerstone
$1.00 par value Acquisition Company
----------------------------------------------------------------------------------------------------------------------------
Apple Limited, Inc. common shares, 5,000 100 shares (100%) to Cornerstone
$1.00 par value Acquisition Company
----------------------------------------------------------------------------------------------------------------------------
Apple REIT partnership interests, n/a 1% to Apple General, Inc. as general partner
Limited Partnership limited and general 99% to Apple Limited, Inc. as limited partner
----------------------------------------------------------------------------------------------------------------------------
Apple REIT II partnership interests, n/a 1% to Apple General, Inc. as general partner
Limited Partnership limited and general 99% to Apple Limited, Inc. as limited partner
----------------------------------------------------------------------------------------------------------------------------
Apple REIT III partnership interests, n/a 1% to Apple General, Inc. as general partner
Limited Partnership limited and general 99% to Apple Limited, Inc. as limited partner
----------------------------------------------------------------------------------------------------------------------------
Apple REIT IV partnership interests, n/a 1% to Apple General, Inc. as general partner
Limited Partnership limited and general 99% to Apple Limited, Inc. as limited partner
----------------------------------------------------------------------------------------------------------------------------
Apple REIT V partnership interests, n/a 1% to Apple General, Inc. as general partner
Limited Partnership limited and general 99% to Apple Limited, Inc. as limited partner
----------------------------------------------------------------------------------------------------------------------------
Apple REIT VI partnership interests, n/a 1% to Apple General, Inc. as general partner
Limited Partnership limited and general 99% to Apple Limited, Inc. as limited partner
----------------------------------------------------------------------------------------------------------------------------
Apple REIT VII partnership interests, n/a 1% to Apple General, Inc. as general partner
Limited Partnership limited and general 99% to Apple Limited, Inc. as limited partner
----------------------------------------------------------------------------------------------------------------------------
CRIT Cornerstone partnership interests, n/a 1% to Apple General, Inc. as general partner
Limited Partnership limited and general 99% to Apple Limited, Inc. as limited partner
----------------------------------------------------------------------------------------------------------------------------
CRIT-NC II, LLC membership interest n/a 100% to CRIT Special, Inc.
----------------------------------------------------------------------------------------------------------------------------
CAC Special General, Inc. common shares, 5,000 100 shares (100%) to Cornerstone
no par value Acquisition Company
----------------------------------------------------------------------------------------------------------------------------
CAC Special Limited, Inc. common shares, 5,000 100 shares (100%) to Cornerstone
no par value Acquisition Company
----------------------------------------------------------------------------------------------------------------------------
CAC Limited Partnership partnership interests, n/a 1% to CAC Special General, Inc.
limited and general as general partner
99% to CAC Special Limited, Inc.
as limited partner
----------------------------------------------------------------------------------------------------------------------------
SCHEDULE 6.1(I)
ERISA PLANS
Cornerstone Realty Income Trust, Inc. (the "Cornerstone")
Cornerstone currently provides or maintains the following employee benefits,
plans and programs, which are more particularly described in Cornerstone's
Associate Handbook (as amended and supplemented from time to time):
1. Vacation benefits.
2. Sick leave benefits ( in addition to absences attributable to workers
compensation injury, disability and the Family and Medical Leave Act).
3. Personal days benefits.
4. Paid holidays (currently six per year).
5. Medical insurance (can be funded pre-tax).
6. Life insurance.
7. Dental benefits (can be funded pre-tax).
8. COBRA continuation benefits.
9. 401(k) retirement plan (employer matches $0.25 for every $1.00 contributed
by the employee until the employee has contributed up to 4% of annual
salary).
10. Flexible Spending Accounts (for medical expenses and dependent day-care
expenses).
11. Workers compensation insurance.
12. Permitted absences from work attributable to military reserve obligations,
the Family and Medical Leave Act, jury or witness duty, and bereavement.
13. Permitted absences due to disability.
14. On-site housing in Cornerstone's properties at reduced rent.
15. Discretionary bonuses.
16. Tuition funded by Cornerstone for certain educational courses.
CRIT-NC, LLC
None.
SCHEDULE 6.1(M)
LABOR AND COLLECTIVE BARGAINING AGREEMENTS
None.
SCHEDULE 6.1(R)
DEBT AND CONTINGENT OBLIGATIONS
Cornerstone Realty Income Trust, Inc. ("Cornerstone")
All indebtedness evidenced by a Promissory Note, dated September 27,
1999, made payable to the order of The Prudential Insurance Company of
America, a New Jersey corporation, in the original principal amount of
$50,550,000 and having a maturity date of October 15, 2006.
Unsecured Line of Credit from First Union National Bank in a principal
amount up to $7,500,000.
CRIT-NC, LLC
All indebtedness evidenced by a Promissory Note, dated September 27,
1999, made payable to the order of The Prudential Insurance Company of
America, a New Jersey corporation, in the original principal amount of
$22,950,000 and having a maturity date of October 15, 2006.
Other Subsidiaries of Cornerstone
Indebtedness of the following subsidiaries of Cornerstone, in the
current aggregate principal amount of approximately $30 million, with
respect to the apartment properties indicated:
------------------------------------------------------------------------------
NAME OF NAME OF LOCATION OF MATURITY
SUBSIDIARY APARTMENT APARTMENT OF DEBT
------------------------------------------------------------------------------
Apple REIT II Xxxxxxx Square II Grapevine TX March 2004
Limited Partnership
------------------------------------------------------------------------------
Apple REIT III Silverbrook II Grand Prairie TX March 2007
Limited Partnership
------------------------------------------------------------------------------
Apple REIT IV Meridian Austin TX November 2005
Limited Partnership
------------------------------------------------------------------------------
Apple REIT V Paces Point Lewisville TX June 2003
Limited Partnership
------------------------------------------------------------------------------
Apple REIT VI Devonshire Dallas TX June 2006
Limited Partnership
------------------------------------------------------------------------------
Apple REIT VII Xxxxxxx Square I Grapevine TX April 2005
Limited Partnership
------------------------------------------------------------------------------
Indebtedness arising from multiple 10-year loans provided as of
December 12, 2000 by First Union National Bank to the following
subsidiaries of Cornerstone in the amounts indicated:
AGGREGATE
NAME OF SUBSIDIARY LOAN AMOUNT
CRIT-VA, Inc. $ 57,500,000
CRIT-NC II, LLC $ 22,250,000
CAC Limited Partnership $ 61,250,000
-------------
TOTAL $ 141,000,000
SCHEDULE 6.1(S)
LITIGATION
None.
SCHEDULE 8.17
SUBSIDIARIES NOT REQUIRED TO BE ADDITIONAL BORROWERS
Cornerstone Realty Income Trust, Inc.
DIRECT SUBSIDIARIES (NON-BORROWERS)
Cornerstone Acquisition Company
CRIT-SC, Inc.
CRIT-SC, LLC
CRIT-VA, Inc.
CRIT Special, Inc.
INDIRECT SUBSIDIARIES (NON-BORROWERS)
Apple General, Inc.
Apple Limited, Inc.
Apple REIT Limited Partnership
Apple REIT II Limited Partnership
Apple REIT III Limited Partnership
Apple REIT IV Limited Partnership
Apple REIT V Limited Partnership
Apple REIT VI Limited Partnership
Apple REIT VII Limited Partnership
CRIT Cornerstone Limited Partnership
CRIT-NC II, LLC
CAC Special General, Inc.
CAC Special Limited, Inc.
CAC Limited Partnership
CRIT-NC, LLC
No subsidiaries
SCHEDULE 10.3
EXCEPTIONS TO SECURED DEBT RESTRICTIONS
None.
SCHEDULE 10.5
EXISTING LIENS
Cornerstone Realty Income Trust, Inc.
All liens arising in connection with indebtedness evidenced by a
Promissory Note, dated September 27, 1999, made payable to the order of
The Prudential Insurance Company of America, a New Jersey corporation,
in the original principal amount of $50,550,000 and having a maturity
date of October 15, 2006.
CRIT-NC, LLC
All liens arising in connection with indebtedness evidenced by a
Promissory Note, dated September 27, 1999, made payable to the order of
The Prudential Insurance Company of America, a New Jersey corporation,
in the original principal amount of $22,950,000 and having a maturity
date of October 15, 2006.
Other Subsidiaries of Cornerstone
Liens arising from indebtedness of the following subsidiaries of
Cornerstone, in the current aggregate principal amount of approximately
$30 million, with respect to the apartment properties indicated:
------------------------------------------------------------------------------------------------
NAME OF NAME OF LOCATION OF MATURITY
SUBSIDIARY APARTMENT APARTMENT OF DEBT
------------------------------------------------------------------------------------------------
Apple REIT II Xxxxxxx Square II Grapevine TX March 2004
Limited Partnership
------------------------------------------------------------------------------------------------
Apple REIT III Silverbrook II Grand Prairie TX March 2007
Limited Partnership
------------------------------------------------------------------------------------------------
Apple REIT IV Meridian Austin TX November 2005
Limited Partnership
------------------------------------------------------------------------------------------------
Apple REIT V Paces Point Lewisville TX June 2003
Limited Partnership
------------------------------------------------------------------------------------------------
Apple REIT VI Devonshire Dallas TX June 2006
Limited Partnership
------------------------------------------------------------------------------------------------
Apple REIT VII Xxxxxxx Square I Grapevine TX April 2005
Limited Partnership
------------------------------------------------------------------------------------------------
Liens relating to indebtedness arising from multiple 10-year loans
provided as of December 12, 2000 by First Union National Bank to the
following subsidiaries of Cornerstone in the amounts indicated:
AGGREGATE
NAME OF SUBSIDIARY LOAN AMOUNT
CRIT-VA, Inc. $ 57,500,000
CRIT-NC II, LLC $ 22,250,000
CAC Limited Partnership $ 61,250,000
-------------
TOTAL $141,000,000
SCHEDULE 10.6
EXISTING LOANS, ADVANCES AND INVESTMENTS
Cornerstone Realty Income Trust, Inc.
None.
CRIT-NC, LLC
None.
SCHEDULE 10.10
TRANSACTIONS WITH AFFILIATES
Cornerstone Realty Income Trust, Inc. ("Cornerstone")
The shareholders of Cornerstone have approved a "Share Purchase Loan
Program," under which officers and directors of Cornerstone may
purchase its common shares with loans from Cornerstone, with the
potential for such loans to be forgiven to the extent that certain
performance targets are reached by Cornerstone. The details of the
Share Purchase Loan Program are set forth in Exhibit A to a Schedule
14A that was filed with the Securities and Exchange Commission on April
18, 2000 and is available from, among other sources, its public XXXXX
database at the following website: xxxx://xxx.xxx.xxx.
CRIT-NC, LLC
None.
