SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT Dated as of May 9, 2003 by and among COMMERCIAL NET LEASE REALTY, INC.,
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT | |
as Borrower | |
WACHOVIA SECURITIES, INC. | |
as Sole Lead Arranger | |
WACHOVIA BANK, NATIONAL ASSOCIATION, | |
as Administrative Agent, | |
XXXXX FARGO BANK, NATIONAL ASSOCIATION, | |
as Syndication Agent, | |
AMSOUTH BANK | |
each as Co-Documentation Agent, | |
THE FINANCIAL INSTITUTIONS PARTY HERETO | |
as Lenders | |
TABLE OF CONTENTS | ||||
Article I. | Definitions | 1 | ||
Section 1.1. | Definitions. | 1 | ||
Section 1.2. | General; References to Times. | 22 | ||
Article II. | Credit Facility | 22 | ||
Section 2.1. | Revolving Loans. | 22 | ||
Section 2.2. | Bid Rate Loans. | 23 | ||
Section 2.3. | Swingline Loans. | 27 | ||
Section 2.4. | Letters of Credit. | 29 | ||
Section 2.5. | Rates and Payment of Interest on Loans. | 33 | ||
Section 2.6. | Number of Interest Periods. | 34 | ||
Section 2.7. | Repayment of Loans. | 34 | ||
Section 2.8. | Prepayments. | 34 | ||
Section 2.9. | Continuation. | 34 | ||
Section 2.10. | Conversion. | 35 | ||
Section 2.11. | Notes. | 35 | ||
Section 2.12. | Extension of Termination Date. | 36 | ||
Section 2.13. | Expiration or Maturity Date of Letters of Credit Past Termination Date. | 36 | ||
Section 2.14. | Voluntary Reductions of the Commitment. | 37 | ||
Section 2.15. | Increase of Commitments. | 37 | ||
Section 2.16. | Amount Limitations. | 38 | ||
Article III. | Payments, Fees and Other General Provisions | 38 | ||
Section 3.1. | Payments. | 38 | ||
Section 3.2. | Pro Rata Treatment. | 39 | ||
Section 3.3. | Sharing of Payments, Etc. | 39 | ||
Section 3.4. | Several Obligations. | 40 | ||
Section 3.5 | Minimum Amounts. | 40 | ||
Section 3.6. | Fees. | 40 | ||
Section 3.7. | Computations. | 41 | ||
Section 3.8. | Usury. | 41 | ||
Section 3.9. | Agreement Regarding Interest and Charges. | 42 | ||
Section 3.10. | Statements of Account. | 42 | ||
Section 3.11. | Defaulting Lenders. | 42 | ||
Section 3.12. | Taxes. | 43 | ||
Article IV. | Yield Protection, Etc. | 45 | ||
Section 4.1. | Additional Costs; Capital Adequacy. | 45 | ||
Section 4.2. | Suspension of LIBOR Loans. | 46 | ||
Section 4.3. | Illegality. | 47 | ||
Section 4.4. | Compensation. | 47 | ||
Section 4.5. | Affected Lenders. | 48 | ||
Section 4.6. | Treatment of Affected Loans. | 48 | ||
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Section 4.7. | Change of Lending Office. | 49 | ||
Section 4.8. | Assumptions Concerning Funding of LIBOR Loans. | 49 | ||
Article V. | Conditions Precedent | 49 | ||
Section 5.1. | Initial Conditions Precedent. | 49 | ||
Section 5.2. | Conditions Precedent to All Loans and Letters of Credit. | 52 | ||
Section 5.3. | Conditions as Covenants. | 52 | ||
Article VI. | Representations and Warranties | 52 | ||
Section 6.1. | Representations and Warranties. | 52 | ||
Section 6.2. | Survival of Representations and Warranties, Etc. | 58 | ||
Article VII. | Affirmative Covenants | 59 | ||
Section 7.1. | Preservation of Existence and Similar Matters. | 59 | ||
Section 7.2. | Compliance with Applicable Law. | 59 | ||
Section 7.3. | Maintenance of Property. | 59 | ||
Section 7.4. | Insurance. | 59 | ||
Section 7.5. | Payment of Taxes and Claims. | 60 | ||
Section 7.6. | Visits and Inspections. | 60 | ||
Section 7.7. | Use of Proceeds; Letters of Credit. | 60 | ||
Section 7.8. | Environmental Matters. | 61 | ||
Section 7.9. | Books and Records. | 61 | ||
Section 7.10. | Further Assurances. | 61 | ||
Section 7.11. | New Subsidiaries/Guarantors. | 61 | ||
Section 7.12. | REIT Status. | 62 | ||
Section 7.13. | Exchange Listing. | 62 | ||
Article VIII. | Information | 62 | ||
Section 8.1. | Quarterly Financial Statements. | 62 | ||
Section 8.2. | Year-End Statements. | 63 | ||
Section 8.3. | Compliance Certificate; Additional Information. | 63 | ||
Section 8.4. | Other Information. | 63 | ||
Article IX. | Negative Covenants | 65 | ||
Section 9.1. | Financial Covenants. | 65 | ||
Section 9.2. | Restricted Payments. | 66 | ||
Section 9.3. | Debt. | 67 | ||
Section 9.4. | Certain Permitted Investments. | 67 | ||
Section 9.5. | Conduct of Business. | 68 | ||
Section 9.6. | Liens: Negative Pledges; Other Matters. | 68 | ||
Section 9.7. | Merger, Consolidation, Sales of Assets and Other Arrangements. | 68 | ||
Section 9.8. | Fiscal Year. | 69 | ||
Section 9.9. | Modifications of Organizational Documents. | 69 | ||
Section 9.10. | Transactions with Affiliates. | 69 | ||
Section 9.11. | ERISA Exemptions. | 69 | ||
Section 9.12. | Ownership of CNLRS. | 69 | ||
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Article X. | Default | 70 | ||
Section 10.1. | Events of Default. | 70 | ||
Section 10.2. | Remedies Upon Event of Default. | 73 | ||
Section 10.3. | Remedies Upon Default. | 74 | ||
Section 10.4. | Allocation of Proceeds. | 74 | ||
Section 10.5. | Collateral Account. | 75 | ||
Section 10.6. | Performance by Agent. | 76 | ||
Section 10.7. | Rights Cumulative. | 76 | ||
Article XI. | The Agent | 76 | ||
Section 11.1. | Authorization and Action. | 76 | ||
Section 11.2. | Agent's Reliance, Etc. | 77 | ||
Section 11.3. | Notice of Defaults. | 78 | ||
Section 11.4. | Wachovia as Lender. | 78 | ||
Section 11.5. | Approvals of Lenders. | 78 | ||
Section 11.6. | Lender Credit Decision, Etc. | 79 | ||
Section 11.7. | Indemnification of Agent. | 79 | ||
Section 11.8. | Successor Agent. | 80 | ||
Section 11.9. | Titled Agents. | 81 | ||
Article XII. | Miscellaneous | 81 | ||
Section 12.1. | Notices. | 81 | ||
Section 12.2. | Expenses. | 82 | ||
Section 12.3. | Setoff. | 83 | ||
Section 12.4. | Litigation; Jurisdiction; Other Matters; Waivers. | 83 | ||
Section 12.5. | Successors and Assigns. | 84 | ||
Section 12.6. | Amendments. | 87 | ||
Section 12.7. | Nonliability of Agent and Lenders. | 88 | ||
Section 12.8. | Confidentiality. | 88 | ||
Section 12.9. | Indemnification. | 89 | ||
Section 12.10. | Termination; Survival. | 91 | ||
Section 12.11. | Severability of Provisions. | 91 | ||
Section 12.12. | GOVERNING LAW. | 92 | ||
Section 12.13. | Counterparts. | 92 | ||
Section 12.14. | Obligations with Respect to Loan Parties. | 92 | ||
Section 12.15. | Limitation of Liability. | 92 | ||
Section 12.16. | Entire Agreement. | 92 | ||
Section 12.17. | Construction. | 92 | ||
Section 12.18. | NO NOVATION. | 93 | ||
SCHEDULE 1.1(A) | Existing Letters of Credit | |||
SCHEDULE 1.1(B) | List of Loan Parties | |||
SCHEDULE 6.1.(b) | Ownership Structure | |||
SCHEDULE 6.1.(f) | Title to Properties; Liens | |||
SCHEDULE 6.1.(g) | Existing Debt | |||
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SCHEDULE 6.1.(h) | Litigation | |||
SCHEDULE 6.1.(x) | Unencumbered Assets | |||
EXHIBIT A | Form of Assignment and Acceptance Agreement | |||
EXHIBIT B | Form of Designation Agreement | |||
EXHIBIT C | Form of Notice of Borrowing | |||
EXHIBIT D | Form of Notice of Continuation | |||
EXHIBIT E | Form of Notice of Conversion | |||
EXHIBIT F | Form of Notice of Swingline Borrowing | |||
EXHIBIT G | Form of Swingline Note | |||
EXHIBIT H | Form of Bid Rate Quote Request | |||
EXHIBIT I | Form of Bid Rate Quote | |||
EXHIBIT J | Form of Bid Rate Quote Acceptance | |||
EXHIBIT K | Form of Revolving Note | |||
EXHIBIT L | Form of Bid Rate Note | |||
EXHIBIT M | Form of Opinion of Counsel | |||
EXHIBIT N | Form of Compliance Certificate | |||
EXHIBIT O | Form of Guaranty | |||
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THIS SEVENTH AMENDED AND
RESTATED CREDIT AGREEMENT (this “Agreement”) dated as of May 9, 2003 by and
among COMMERCIAL NET LEASE REALTY, INC., a corporation formed under the laws of the State of
Maryland (the “Borrower”), WACHOVIA SECURITIES, INC., as Sole Lead Arranger and
Book Manager (the “Arranger”), WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent,
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Syndication Agent (the “Syndication
Agent”), each of AMSOUTH BANK and SUNTRUST BANK, as Co-Documentation Agent (the
“Co-Documentation Agents”), and each of the financial institutions initially a
signatory hereto together with their assignees pursuant to Section 12.5.(d). | |
ARTICLE I. DEFINITIONS | |
Section 1.1 Definitions. | |
In addition to terms
elsewhere herein, the following terms shall have the following meanings for the
purposes of this Agreement: | |
“Absolute
Rate” has the meaning given that term in Section 2.2.(c)(ii)(C). |
“Adjusted
Eurodollar Rate” means, with respect to each Interest Period for any
LIBOR Loan, the rate obtained by dividing (a) LIBOR for such Interest Period
by (b) a percentage equal to 1 minus the stated maximum rate (stated as a
decimal) of all reserves, if any, required to be maintained against
“Eurocurrency liabilities” as specified in Regulation D of the
Board of Governors of the Federal Reserve System (or against any other category of
liabilities which includes deposits by reference to which the interest rate on
LIBOR Loans is determined or any category of extensions of credit or other assets
which includes loans by an office of any Lender outside of the United States of
America to residents of the United States of America). Any change in such maximum
rate shall result in a change in the Adjusted Eurodollar Rate on the date on which
such change in such maximum rate becomes effective. | |
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Xxxxx | Xxxxxxxx’s Credit Rating (S&P/Xxxxx’x) |
Applicable Margin for LIBOR Loans |
Applicable Margin for Base Rate Loans | |||
1 | A-/A3 (or equivalent) | 0.70% | 0.0% | |||
2 | BBB+/Baa1 (or equivalent) | 0.80% | 0.0% | |||
3 | BBB/Baa2 (or equivalent) | 0.90% | 0.0% | |||
4 | BBB-/Baa3 (or equivalent) | 1.00% | 0.0% | |||
5 | ‹ BBB-/Baa3 (or equivalent) | 1.35% | 0.25% |
“Arranger”
means Wachovia Securities, Inc., together with its successors and permitted
assigns. | |
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“Business
Day” means (a) any day other than a Saturday, Sunday or other day on
which banks in Charlotte, North Carolina are authorized or required to close and
(b) with reference to a LIBOR Loan, any such day that is also a day on which
dealings in Dollar deposits are carried out in the London interbank market.
| |
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set forth in the applicable Assignment and Acceptance Agreement, as the same may
be reduced from time to time pursuant to Section 2.14. or as appropriate to
reflect any assignments to or by such Lender effected in accordance with
Section 12.5. | |
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and unpaid dividends (excluding, (i) in the case of the Borrower and its
Subsidiaries, any obligation to acquire limited partnership interests in any
Subsidiary of the Borrower or the UPREIT which can be satisfied in full by
exchanging shares of common stock of the Borrower for such limited partnership
interests, and (ii) in the case of the Borrower, dividends declared and paid
to holders of common shares of the Borrower); (g) net obligations of such
Person under Swap Agreements; and (h) all Debt of other Persons which
(i) such Person has guaranteed or is otherwise recourse to such Person or
(ii) is secured by a Lien on any property of such Person. The amount of any
net obligation under any Swap Agreement on any date shall be deemed to be the Swap
Termination Value thereof as of such date. | |
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“Eligible
Assignee” means any Person who is: (i) currently a Lender or an
affiliate of a Lender; (ii) a commercial bank, trust, trust company,
insurance company, investment bank or pension fund organized under the laws of the
United States of America, or any state thereof, and having total assets in excess
of $5,000,000,000; (iii) a savings and loan association or savings bank
organized under the laws of the United States of America, or any state thereof,
and having a tangible net worth of at least $500,000,000; or (iv) a
commercial bank organized under the laws of any other country which is a member of
the Organization for Economic Cooperation and Development, or a political
subdivision of any such country, and having total assets in excess of
$10,000,000,000, provided that such bank is acting through a branch or agency
located in the United States of America. If such Person is not currently a Lender
or an affiliate of a Lender, such Person’s senior unsecured long term
indebtedness must be rated BBB or higher by S&P, Baa2 or higher by
Xxxxx’x, or the equivalent or higher of either such rating by another rating
agency acceptable to the Agent. Notwithstanding the foregoing, during any period
in which an Event of Default shall have occurred and be continuing under any of
subsections (a), (b), (f) or (g) of Section 10.1., the term
“Eligible Assignee” shall mean any Person that is not an individual.
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“Equity
Interest” means, with respect to any Person, any share of capital stock
of (or other ownership or profit interests in) such Person, any warrant, option or
other right for the purchase or other acquisition from such Person of any share of
capital stock of (or other ownership or profit interests in) such Person, any
security convertible into or exchangeable for any share of capital stock of (or
other ownership or profit interests in) such Person or warrant, right or option
for the purchase or other acquisition from such Person of such shares (or such
other interests), and any other ownership or profit interest in such Person
(including, without limitation, partnership, member or trust interests therein),
whether voting or nonvoting, and whether or not such share, warrant, option, right
or other interest is authorized or otherwise existing on any date of
determination. | |
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of the Debt of such Subsidiary or has any direct obligation to maintain or
preserve such Subsidiary’s financial condition or to cause such Subsidiary to
achieve any specified levels of operating results, except for customary exceptions
for fraud, misapplication of funds, environmental indemnities, and other similar
exceptions to recourse liability. A Subsidiary shall only remain an Excluded
Subsidiary for so long as (A) the above requirements are satisfied and
(B) such Subsidiary does not Guarantee any Indebtedness of any Person (other
than another Excluded Subsidiary). | |
Level | Borrower’s Credit Rating (S&P/Xxxxx’x) |
Facility Fee | ||
1 | A-/A3 (or equivalent) | 0.15% | ||
2 | BBB+/Baa1 (or equivalent) | 0.15% | ||
3 | BBB/Baa2 (or equivalent) | 0.20% | ||
4 | BBB-/Baa3 (or equivalent) | 0.20% | ||
5 | ‹ BBB-/Baa3 (or equivalent) | 0.30% |
As of the Agreement Date, the Facility Fee equals 0.20%.
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“Fair Market
Value” means, with respect to (a) a security listed on a national
securities exchange or the NASDAQ National Market, the price of such security as
reported on such exchange by any widely recognized reporting method customarily
relied upon by financial institutions and (b) with respect to any other property,
the price which could be negotiated in an arm’s-length free market
transaction, for cash, between a willing seller and a willing buyer, neither of
which is under pressure or compulsion to complete the transaction.
| |
“Federal Funds
Rate” means, for any day, the rate per annum (rounded upward to the
nearest 1/100th of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve Bank of New
York on the Business Day next succeeding such day, provided that (a) if such day
is not a Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day, and (b) if no such rate is
so published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to the Agent by federal funds dealers
selected by the Agent on such day on such transaction as determined by the Agent.
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“Fees” means the fees and commissions provided for or referred to in Section 3.6. and any other fees payable by the Borrower hereunder or under any other Loan Document. | |
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“Finance
Lease” means a lease of a real property asset which would be categorized
as a capital lease under GAAP other than a lease categorized as a capital lease
solely because such lease contains a bargain purchase option.
| |
“Fitch”
means Fitch, Inc. and its successors.
| |
“Fixed
Charges” means for any period, the sum of (a) Interest Expense
plus (b) regularly scheduled principal payments on Debt during such period
(excluding any balloon, bullet or similar principal payment payable on any Debt
which repays such Debt in full) plus (c) all cash dividends and
distributions on Preferred Equity Interests of the Borrower or any Subsidiary paid
during such period to any Person other than the Borrower or a Subsidiary, all on a
consolidated basis determined in accordance with GAAP.
| |
“Funds
Available for Distribution” means, for any accounting period, (a) Funds
From Operations for such period minus (b) the aggregate amount of Capital
Expenditures actually incurred by the Borrower and its Subsidiaries during such
period, excluding (i) Capital Expenditures which directly result in an aggregate
increase in the square footage of real property assets owned by the Borrower or
any Subsidiary which are available for lease, (ii) Capital Expenditures resulting
from tenant improvement and leasing commissions incurred for new tenants and (iii)
Capital Expenditures made in connection with the acquisition of real property
assets, provided that such Capital Expenditures are fully reflected in the budget
relating to such acquisition, and provided further that such capital expenditures
are made within twelve months following consummation of such acquisition of real
property assets.
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“Funds From
Operations” means, for any period, (a) net income (before preferred
dividends) of the Borrower and its Subsidiaries for such period determined on a
consolidated basis exclusive of the following (to the extent included in the
determination of such net income): (i) depreciation and amortization and other
non-cash charges; (ii) gains and losses from extraordinary or non-recurring items;
(iii) gains and losses on sales of real estate excluding gains and losses through
entities whose primary business is the acquisition/development of assets for sale,
plus (b) the Borrower’s share of Funds From Operations from
Unconsolidated Affiliates.
| |
“GAAP”
means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as may
be approved by a significant segment of the accounting profession, which are
applicable to the circumstances as of the date of determination.
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“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 national, state or local government (whether domestic or foreign), any political subdivision thereof or any other governmental, quasi-governmental, judicial, public or statutory instrumentality, authority, body, agency, bureau | |
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or entity (including, without limitation, the Federal Deposit Insurance Corporation,
the Comptroller of the Currency or the Federal Reserve Board, any central bank or
any comparable authority) or any arbitrator with authority to bind a party at law.
| |
“Gross Lease
Revenues” means, for a given period, the aggregate gross revenue of the
Borrower and its Subsidiaries from leases of real property assets, (a) excluding
with respect to such leases that are not Finance Leases, straight line rent
adjustments (reported in the consolidated financial statements of the Borrower and
its Subsidiaries for purposes of GAAP) in respect of such leases for such period,
and (b) including the principal component of all payments actually received in
respect of Finance Leases during such period.
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“Ground
Lease” means a ground lease containing the following terms and
conditions: (a) either (i) a remaining term (taking into account extensions which
may be effected by the lessee without the consent of the lessor) of no less than
30 years from the Agreement Date, or (ii) the right of the lessee to purchase the
property on terms reasonably acceptable to the Agent; (b) the right of the lessee
to mortgage and encumber its interest in the leased property without the consent
of the lessor; (c) the obligation of the lessor to give the holder of any mortgage
Lien on such leased property written notice of any defaults on the part of the
lessee and that such lease will not be terminated until such holder has had a
reasonable opportunity to cure or complete foreclosures, and fails to do so; (d)
free transferability of the lessee’s interest under such lease, including
ability to sublease, subject to only reasonable consent provisions; and (e) other
rights customarily required by mortgagees making a loan secured by the interest of
the holder of the leasehold estate demised pursuant to a ground lease.
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“Guarantor”
means any Person that is a party to the Guaranty as a “Guarantor” and in
any event shall include each Subsidiary (unless an Excluded Subsidiary).
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“Guaranty”, “Guaranteed”, “Guarantying” or to “Guarantee” as applied to any obligation means and includes: (a) a guaranty (other than by endorsement of negotiable instruments for collection in the ordinary course of business), directly or indirectly, in any manner, of any part or all of such obligation, or (b) an agreement, direct or indirect, contingent or otherwise, and whether or not constituting a guaranty, the practical effect of which is to assure the payment or performance (or payment of damages in the event of nonperformance) of any part or all of such obligation whether by: (i) the purchase of securities or obligations, (ii) the purchase, sale or lease (as lessee or lessor) of property or the purchase or sale of services primarily for the purpose of enabling the obligor with respect to such obligation to make any payment or performance (or payment of damages in the event of nonperformance) of or on account of any part or all of such obligation, or to assure the owner of such obligation against loss, (iii) the supplying of funds to or in any other manner investing in the obligor with respect to such obligation, (iv) repayment of amounts drawn down by beneficiaries of letters of credit (including Letters of Credit), or (v) the supplying of funds to or investing in a Person on account of all or any part of such Person’s obligation under a Guaranty of any obligation or indemnifying or holding harmless, in any way, such Person against any part or all of such obligation. As the context requires, “Guaranty” shall also mean the Guaranty to which the Guarantors are parties substantially in the form of Exhibit O. | |
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“Hazardous
Materials” means all or any of the following: (a) substances that are
defined or listed in, or otherwise classified pursuant to, any applicable
Environmental Laws as “hazardous substances”, “hazardous
materials”, “hazardous wastes”, “toxic substances” or any
other formulation intended to define, list or classify substances by reason of
deleterious properties such as ignitability, corrosivity, reactivity,
carcinogenicity, reproductive toxicity, “TCLP” toxicity or “EP
toxicity”; (b) oil, petroleum or petroleum derived substances, natural gas,
natural gas liquids or synthetic gas and drilling fluids, produced waters and
other wastes associated with the exploration, development or production of crude
oil, natural gas or geothermal resources; (c) any flammable substances or
explosives or any radioactive materials; (d) asbestos in any form; (e) toxic mold;
and (f) electrical equipment which contains any oil or dielectric fluid containing
levels of polychlorinated biphenyls in excess of fifty parts per million.
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“Intellectual
Property” has the meaning given that term in Section 6.1.(s).
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“Interest
Expense” means, for any period, the total interest expense (including,
without limitation, capitalized interest expense and interest expense attributable
to Capital Lease Obligations) of the Borrower and its Subsidiaries determined in
accordance with GAAP.
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“Interest
Period” means:
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(a)
with respect to any LIBOR Loan, each period commencing on
the date such LIBOR Loan is made or the last day of the immediately preceding
Interest Period for such Loan and ending one week (if available from all of the
Lenders), or one, two or three months thereafter, as the Borrower may select in a
Notice of Borrowing, Notice of Continuation or Notice of Conversion, as the case
may be, except that each Interest Period that commences on the last Business Day
of a calendar month shall end on the last Business Day of the appropriate
subsequent calendar month; and
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(b)
with respect to any Bid Rate Loan, the period commencing
on the date such Bid Rate Loan is made and ending 30, 60 or 90 days thereafter, as
the Borrower may select as provided in Section 2.2.(b).
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Notwithstanding the foregoing: (i) if any Interest Period would otherwise end
after the Termination Date, such Interest Period shall end on the Termination
Date; and (ii) each Interest Period that would otherwise end on a day which is not
a Business Day shall end on the immediately following Business Day (or, if such
immediately following Business Day falls in the next calendar month, on the
immediately preceding Business Day).
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“Internal
Revenue Code” means the Internal Revenue Code of 1986, as amended.
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“Investment” means, (x) with respect to any Person, any acquisition or investment (whether or not of a controlling interest) by such Person, by means of any of the following: (a) the purchase or other acquisition of any Equity Interest in another Person, (b) a loan, advance or extension of credit to, capital contribution to, Guaranty of Debt of, or purchase or other acquisition of any Debt of, another Person, including any partnership or joint venture interest in such other Person, or (c) the purchase or other acquisition (in one transaction or a series of | |
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transactions) of assets of another Person that constitute the business or a
division or operating unit of another Person and (y) with respect to any Property
or other asset, the acquisition thereof. Any binding commitment to make an
Investment in any other Person, as well as any option of another Person to require
an Investment in such Person, shall be deemed to be an Investment. Except as
expressly provided otherwise, for purposes of determining compliance with any
covenant contained in a Loan Document, the amount of any Investment shall be the
amount actually invested, without adjustment for subsequent increases or decreases
in the value of such Investment.
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“Investment
Grade Rating” shall mean a rating of BBB-/Baa3 (or equivalent) or higher
from two of the Rating Agencies.
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“L/C
Commitment Amount” equals $30,000,000.
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“Lender”
means each financial institution from time to time party hereto as a
“Lender” or a “Designated Lender,” together with its
respective successors and permitted assigns, and as the context requires, includes
the Swingline Lender; provided, however, that the term
“Lender” shall exclude each Designated Lender when used in reference to
any Loan other than a Bid Rate Loan, the Commitments or terms relating to any Loan
other than a Bid Rate Loan and shall further exclude each Designated Lender for
all other purposes under the Loan Documents except that any Designated Lender
which funds a Bid Rate Loan shall, subject to Section 12.5.(e), have the rights
(including the rights given to a Lender contained in Sections 12.2. and 12.9.) and
obligations of a Lender associated with holding such Bid Rate Loan.
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“Lending Office”
means, for each Lender and for each Type of Loan, the office of such Lender
specified as such on its signature page hereto or in the applicable Assignment and
Acceptance Agreement, or such other office of such Lender as such Lender may
notify the Agent in writing from time to time.
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“Letter of
Credit” has the meaning given that term in Section 2.4.(a).
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“Letter of
Credit Documents” means, with respect to any Letter of Credit,
collectively, any application therefor, any certificate or other document
presented in connection with a drawing under such Letter of Credit and any other
agreement, instrument or other document governing or providing for (a) the rights
and obligations of the parties concerned or at risk with respect to such Letter of
Credit or (b) any collateral security for any of such obligations.
| |
“Letter of Credit Liabilities” means, without duplication, at any time and in respect of any Letter of Credit, the sum of (a) the Stated Amount of such Letter of Credit plus (b) the aggregate unpaid principal amount of all Reimbursement Obligations of the Borrower at such time due and payable in respect of all drawings made under such Letter of Credit. For purposes of this Agreement, a Lender (other than the Lender acting as the Agent) shall be deemed to hold a Letter of Credit Liability in an amount equal to its participation interest in the related Letter of Credit under Section 2.4.(i), and the Lender acting as the Agent shall be deemed to hold a Letter of Credit Liability in an amount equal to its retained interest in the related Letter of Credit after | |
-13- |
giving effect to the acquisition by the Lenders other than the Lender acting as
the Agent of their participation interests under such Section.
| |
“Level”
has the meaning given that term in the definition of the term “Applicable
Margin.”
| |
“LIBOR”
means, for any LIBOR Loan for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Telerate
Page 3750 (or any successor page) as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to such
Interest Period. If for any reason such rate is not available, the term
“LIBOR” shall mean, for any LIBOR Loan for any Interest Period therefor,
the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on the Reuters Screen LIBO Page as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to such
Interest Period; provided, however, if more than one rate is specified on the
Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean of all
such rates. If for any reason none of the foregoing rates is available, LIBOR
shall be, for any Interest Period, the rate per annum reasonably determined by the
Agent as the rate of interest at which Dollar deposits in the approximate amount
of the LIBOR Loan comprising part of such borrowing would be offered by the Agent
to major banks in the London interbank eurodollar market at their request at or
about 11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period.
| |
“LIBOR
Auction” means a solicitation of Bid Rate Quotes setting forth LIBOR
Margin Loans based on LIBOR pursuant to Section 2.2.
| |
“LIBOR
Loan” means a Revolving Loan bearing interest at a rate based on LIBOR.
| |
“LIBOR Margin
Loan” means a Bid Rate Loan the interest rate on which is determined on
the basis of LIBOR pursuant to a LIBOR Auction.
| |
“Lien”
as applied to the property of any Person means: (a) any security interest,
encumbrance, mortgage, deed to secure debt, deed of trust, pledge, lien, charge,
Negative Pledge, conditional sale or other title retention agreement, or other
security title or encumbrance of any kind in respect of any property of such
Person, or upon the income or profits therefrom; (b) any arrangement, express or
implied, under which any property of such Person is transferred, sequestered or
otherwise identified for the purpose of subjecting the same to the payment of Debt
or performance of any other obligation in priority to the payment of the general,
unsecured creditors of such Person; (c) the filing of any financing statement
under the Uniform Commercial Code or its equivalent in any jurisdiction; and (d)
any agreement by such Person to grant, give or otherwise convey any of the
foregoing.
| |
“Loan” means a Revolving Loan, a Bid Rate Loan or a Swingline Loan. | |
-14- |
“Loan
Document” means this Agreement, each Note, each Letter of Credit
Document, the Guaranty and each other document or instrument now or hereafter
executed and delivered by a Loan Party in connection with, pursuant to or relating
to this Agreement.
| |
“Loan
Party” means each of the Borrower, any Guarantor and each other Person
who guarantees all or a portion of the Obligations and/or who pledges any
collateral security to secure all or a portion of the Obligations. Schedule
1.1.(B) sets forth the Loan Parties in addition to the Borrower as of the
Agreement Date.
| |
“Material
Adverse Effect” means a materially adverse effect on (a) the business,
assets, liabilities, condition (financial or otherwise), results of operations or
business prospects of the Borrower and its Subsidiaries taken as a whole, (b) the
ability of the Borrower or any other Loan Party to perform its obligations under
any Loan Document to which it is a party, (c) the validity or enforceability of
any of the Loan Documents, (d) the rights and remedies of the Lenders and the
Agent under any of the Loan Documents or (e) the timely payment of the principal
of or interest on the Loans or other amounts payable in connection therewith or
the timely payment of all Reimbursement Obligations.
| |
“Material
Debt” has the meaning given that term in Section 10.1.(e)(i).
| |
“Material
Plan” means at any time a Plan or Plans having aggregate Unfunded
Liabilities in excess of $1,000,000.
| |
“Xxxxx'x”
means Xxxxx’x Investors Service, Inc. and its successors.
| |
“Mortgage”
means a mortgage, deed of trust, deed to secure debt or similar security
instrument made by a Person owning an interest in real property granting a Lien on
such interest in real property as security for the payment of Debt of such Person
or another Person.
| |
“Mortgage
Receivable” means a promissory note secured by a Mortgage of which the
Borrower, a Guarantor or one of their respective Subsidiaries is the holder and
retains the rights of collection of all payments thereunder.
| |
“Multiemployer
Plan” means at any time a multiemployer plan within the meaning of
Section 4001(a)(3) of ERISA to which any member of the ERISA Group is then making
or accruing an obligation to make contributions or has within the preceding five
plan years made contributions, including for these purposes any Person which
ceased to be a member of the ERISA Group during such five year period.
| |
“Negative Pledge” means a provision of any agreement (other than this Agreement or any other Loan Document) that prohibits or limits the creation or assumption of any Lien on any assets of a Person or entitles another Person to obtain or claim the benefit of a Lien on any assets of such Person; provided, however, that an agreement that conditions a Person’s ability to encumber its assets upon the maintenance of one or more specified ratios that limit such Person’s ability to encumber its assets but that do not generally prohibit the encumbrance of its assets, or | |
-15- |
the encumbrance of specific assets, shall not constitute a Negative Pledge for
purposes of this Agreement.
| |
“Net
Proceeds” means with respect to any Equity Issuance by a Person, the
aggregate amount of all cash and the Fair Market Value of all other property
received by such Person in respect of such Equity Issuance net of investment
banking fees, legal fees, accountants’ fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred by such Person
in connection with such Equity Issuance.
| |
“Note” means a
Revolving Note, a Bid Rate Note or a Swingline Note.
| |
“Notice of
Borrowing” means a notice in the form of Exhibit C to be delivered to the
Agent pursuant to Section 2.1.(b) evidencing the Borrower’s request for a
borrowing of Revolving Loans.
| |
“Notice of
Continuation” means a notice in the form of Exhibit D to be delivered to
the Agent pursuant to Section 2.9. evidencing the Borrower’s request for the
Continuation of a LIBOR Loan.
| |
“Notice of
Conversion” means a notice in the form of Exhibit E to be delivered
to the Agent pursuant to Section 2.10. evidencing the Borrower’s request for
the Conversion of a Loan from one Type to another Type.
| |
“Notice of
Swingline Borrowing” means a notice in the form of Exhibit F to be
delivered to the Agent pursuant to Section 2.3. evidencing the Borrower’s
request for a borrowing of Swingline Loans.
| |
“Obligations”
means, individually and collectively: (a) the aggregate principal balance of, and
all accrued and unpaid interest on, all Loans; (b) all Reimbursement Obligations
and all other Letter of Credit Liabilities; and (c) all other indebtedness,
liabilities, obligations, covenants and duties of the Borrower and the other Loan
Parties owing to the Agent or any Lender of every kind, nature and description,
under or in respect of this Agreement or any of the other Loan Documents,
including, without limitation, the Fees and indemnification obligations, whether
direct or indirect, absolute or contingent, due or not due, contractual or
tortious, liquidated or unliquidated, and whether or not evidenced by any
promissory note.
| |
“Participant”
has the meaning given that term in Section 12.5.(c).
| |
“PBGC”
means the Pension Benefit Guaranty Corporation and any successor agency.
| |
“Permitted Liens” means, as to any Person: (a) Liens securing taxes, assessments and other charges or levies imposed by any Governmental Authority (excluding any Lien imposed pursuant to any of the provisions of ERISA) or the claims of materialmen, mechanics, carriers, warehousemen or landlords for labor, materials, supplies or rentals incurred in the ordinary course of business, which are not at the time required to be paid or discharged under Section 7.5.; (b) Liens consisting of deposits or pledges made, in the ordinary course of business, in | |
-16- |
connection with, or to secure payment of, obligations under workers’
compensation, unemployment insurance or similar Applicable Laws; (c) Liens
consisting of encumbrances in the nature of zoning restrictions, easements, and
rights or restrictions of record on the use of real property, which do not
materially detract from the value of such property or impair the use thereof in
the business of such Person; and (d) Liens, if any, in favor of the Agent for the
benefit of the Lenders.
| |
“Person”
means an individual, corporation, partnership, limited liability company,
association, trust or unincorporated organization, or a government or any agency
or political subdivision thereof.
| |
“Plan”
means at any time an employee pension benefit plan (other than a Multiemployer
Plan) which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Internal Revenue Code and either (a) is
maintained, or contributed to, by any member of the ERISA Group for employees of
any member of the ERISA Group or (b) has at any time within the preceding five
years been maintained, or contributed to, by any Person which was at such time a
member of the ERISA Group for employees of any Person which was at such time a
member of the ERISA Group.
| |
“Post-Default
Rate” means, in respect of any principal of any Loan or any other
Obligation that is not paid when due (whether at stated maturity, by acceleration,
by optional or mandatory prepayment or otherwise), a rate per annum equal to the
Base Rate as in effect from time to time plus the Applicable Margin for
Base Rate Loans plus four percent (4.0%).
| |
“Preferred
Equity Interests” means, with respect to any Person, Equity Interests in
such Person which are entitled to preference or priority over any other Equity
Interest in such Person in respect of the payment of dividends or distribution of
assets upon liquidation or both.
| |
“Prime
Rate” means the rate of interest per annum announced publicly by the
Lender acting as the Agent as its prime rate from time to time. The Prime Rate is
not necessarily the best or the lowest rate of interest offered by the Lender
acting as the Agent or any other Lender.
| |
“Principal
Office” means the office of the Agent located at One Wachovia Center,
Charlotte, North Carolina, or such other office of the Agent as the Agent may
designate from time to time.
| |
“Property”
means any parcel of real property, together with all improvements thereon, owned
or leased pursuant to a Ground Lease by the Borrower or any Subsidiary.
| |
“Rating
Agency” means S&P, Xxxxx’x or Fitch.
| |
“Real
Property Value” means the annualized Gross Lease Revenues as of the last
day of the fiscal quarter of the Borrower most recently ended of all Properties in
place at the end of such fiscal quarter divided by the
Capitalization Rate.
| |
“Register” has the meaning given that term in Section 12.5.(f). | |
-17- |
“Regulatory
Change” means, with respect to any Lender, any change effective after the
Agreement Date in Applicable Law (including without limitation, Regulation D of
the Board of Governors of the Federal Reserve System) or the adoption or making
after such date of any interpretation, directive or request applying to a class of
banks, including such Lender, of or under any Applicable Law (whether or not
having the force of law and whether or not failure to comply therewith would be
unlawful) by any Governmental Authority or monetary authority charged with the
interpretation or administration thereof or compliance by any Lender with any
request or directive regarding capital adequacy.
| |
“Reimbursement
Obligation” means the absolute, unconditional and irrevocable obligation
of the Borrower to reimburse the Agent for any drawing honored by the Agent under
a Letter of Credit.
| |
“REIT”
means a Person qualifying for treatment as a “real estate investment
trust” under the Internal Revenue Code.
| |
“Requisite
Lenders” means, as of any date, Lenders having at least 66-2/3% of the
aggregate amount of the Commitments (not held by Defaulting Lenders who are not
entitled to vote), or, if the Commitments have been terminated or reduced to zero,
Lenders holding at least 66-2/3% of the principal amount of the aggregate
outstanding Loans and Letter of Credit Liabilities (not held by Defaulting Lenders
who are not entitled to vote).
| |
“Responsible
Officer” means with respect to the Borrower or any Subsidiary, the chief
executive officer, the chief financial officer and the chief operating officer of
the Borrower or such Subsidiary.
| |
“Restricted
Payment” means: (a) any dividend or other distribution, direct or
indirect, on account of any Equity Interest of the Borrower or any Subsidiary now
or hereafter outstanding, except a dividend payable solely in Equity Interests of
identical class to the holders of that class; (b) any redemption, conversion,
exchange, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any Equity Interest of the Borrower
or any Subsidiary now or hereafter outstanding; and (c) any payment made to
retire, or to obtain the surrender of, any outstanding warrants, options or other
rights to acquire any Equity Interests of the Borrower or any Subsidiary now or
hereafter outstanding.
| |
“Revolving
Loan” means a loan made by a Lender to the Borrower pursuant to Section
2.1.(a).
| |
“Revolving
Note” has the meaning given that term in Section 2.11.(a).
| |
“Secured Debt” means, with respect to a Person as of any given date, the aggregate principal amount of all Debt of such Person outstanding at such date and that is secured in any manner by a Mortgage or any other Lien. | |
-18- |
“Securities
Act” means the Securities Act of 1933, as amended from time to time,
together with all rules and regulations issued thereunder.
| |
“Solvent”
means, when used with respect to any Person, that (a) the fair value and the fair
salable value of its assets (excluding any Debt due from any affiliate of such
Person) are each in excess of the fair valuation of its total liabilities
(including all contingent liabilities computed at the amount which, in light of
all the facts and circumstances existing at such time, represents the amount that
could reasonably be expected to become an actual and matured liability); (b)
such Person is able to pay its debts or other obligations in the ordinary course
as they mature; and (c) such Person has capital not unreasonably small to carry on
its business and all business in which it proposes to be engaged.
| |
“S&P” means Standard
& Poor’s Rating Services, a division of The XxXxxx-Xxxx Companies, Inc. and its
successors.
| |
“Stated
Amount” means the amount available to be drawn by a beneficiary under a
Letter of Credit from time to time, as such amount may be increased or reduced
from time to time in accordance with the terms of such Letter of Credit.
| |
“Subsidiary”
means, for any Person, any corporation, partnership or other entity of which at
least a majority of the securities or other ownership interests having by the
terms thereof ordinary voting power to elect a majority of the board of directors
or other persons performing similar functions of such corporation, partnership or
other entity (without regard to the occurrence of any contingency) is at the time
directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of such
Person, and shall include all Persons the accounts of which are consolidated with
those of such Person pursuant to GAAP. Commercial Net Lease Realty Services, Inc.
and its Subsidiaries shall be deemed to be Subsidiaries of the Borrower.
| |
“Swap
Agreement” has the meaning given the term “swap agreement” in
11 U.S.C. §101, as in effect on the Agreement Date.
| |
“Swap
Termination Value” means, in respect of any one or more Swap Agreements,
after taking into account the effect of any legally enforceable netting agreement
relating to such Swap Agreements, (a) for any date on or after the date such Swap
Agreements have been closed out and termination value(s) determined in accordance
therewith, such termination value(s), and (b) for any date prior to the date
referenced in clause (a) the amount(s) determined as the xxxx-to-market value(s)
for such Swap Agreements, as determined based upon one or more mid-market or other
readily available quotations provided by any recognized dealer in such Swap
Agreements (which may include the Agent or any Lender).
| |
“Swingline Commitment” means the Swingline Lender’s obligation to make Swingline Loans pursuant to Section 2.3. in an amount up to, but not exceeding, $10,000,000, as such amount may be reduced from time to time in accordance with the terms hereof. | |
-19- |
“Swingline
Lender” means Wachovia Bank, National Association, together with its
respective successors and assigns.
| |
“Swingline
Loan” means a loan made by the Swingline Lender to the Borrower pursuant
to Section 2.3.(a).
| |
“Swingline
Note” means the promissory note of the Borrower payable to the order of
the Swingline Lender in a principal amount equal to the amount of the Swingline
Commitment as originally in effect and otherwise duly completed, substantially in
the form of Exhibit G.
| |
“Tangible Net
Worth” means total stockholders’ equity of the Borrower and its
Subsidiaries determined in accordance with GAAP, plus (a) accumulated
depreciation and amortization to the extent reflected in the determination of
stockholders’ equity of the Borrower and its Subsidiaries,
plus (b) the accumulated principal component of all payments made to the
Borrower and its Subsidiaries in respect of Finance Leases to the extent reflected
in the determination of stockholders’ equity of the Borrower and its
Subsidiaries, minus (c) the aggregate value of all intangible assets of the
Borrower and its Subsidiaries.
| |
“Taxes”
has the meaning given that term in Section 3.12.
| |
“Termination
Date” means May 9, 2006, or such later date to which the Termination Date
may be extended pursuant to Section 2.12.
| |
“Titled
Agents” means each of the Arranger, the Syndication Agent and the
Documentation Agent and their respective successors and permitted assigns.
| |
“Total
Assets” means (without duplication): (a) Real Property Value plus
(b) 50.0% of the undepreciated cost of Properties that are developed but that are
unleased and vacant plus (c) the book value of all other tangible assets of
the Borrower and its Subsidiaries less (d) cash and cash equivalents of the
Borrower and its Subsidiaries the disposition of which is restricted in any way.
| |
“Total
Liabilities” means the total liabilities of the Borrower and its
Subsidiaries (including, without limitation, all obligations or indebtedness of
any other Person which the Borrower or any Subsidiary has assumed, guaranteed, or
endorsed or in connection with which the Borrower or any Subsidiary has otherwise
become directly or contingently liable and the amount of any outstanding Letters
of Credit) computed in accordance with GAAP.
| |
“Type”
with respect to any Revolving Loan, refers to whether such Loan is a LIBOR Loan or
Base Rate Loan.
| |
“Unconsolidated Affiliate” means, with respect to any Person, any other Person in whom such Person holds an Investment, which Investment is accounted for in the financial statements of such Person on an equity basis of accounting and whose financial results would not be consolidated under GAAP with the financial results of such Person on the consolidated financial statements of such Person. | |
-20- |
“Unencumbered
Asset Value” means the sum (without duplication) of (a) the Real Property
Value of all Unencumbered Assets which are not Excluded Assets; plus (b)
aggregate book value of all Eligible Mortgage Notes Receivable; provided,
however, that if the aggregate book value of Eligible Mortgage Notes
Receivable exceeds 15.0% of Total Assets, the value of such Eligible Mortgage
Notes Receivable in excess of 15.0% of Total Assets shall be excluded in the
determination of Unencumbered Asset Value hereunder; plus (c) all of the
Borrower’s and Guarantors’ cash and cash equivalents (excluding tenant
deposits and other cash and cash equivalents the disposition of which is
restricted in any way); provided, however, that if the aggregate
value of such cash and cash equivalents exceeds 2.0% of Total Assets, the value of
such cash and cash equivalents in excess of 2.0% of Total Assets shall be excluded
in the determination of Unencumbered Asset Value hereunder; all as determined in
accordance with GAAP.
| |
“Unencumbered
Assets” means, collectively, each Property of the Borrower or any
Guarantor which meets the following criteria: (a) the Property is owned, or leased
under a Ground Lease, entirely by the Borrower and/or a Guarantor; (b) neither
such Property, nor any interest of the Borrower or such Guarantor therein, is
subject to any Lien (other than Permitted Liens of the types described in clauses
(a) through (c) of the definition thereof) or to any Negative Pledge; and (c) if
such Property is owned or leased by Person other than the Borrower (i) none of the
Borrower’s direct or indirect ownership interest in such Person is subject to
any Lien (other than Permitted Liens of the types described in clauses (a) through
(c) of the definition thereof) or to any Negative Pledge; and (ii) the Borrower
directly, or indirectly through a Subsidiary, has the right to take the following
actions without the need to obtain the consent of any Person: (x) to sell,
transfer or otherwise dispose of such Property and (y) to create a Lien on such
Property as security for Debt of the Borrower or such Guarantor, as applicable.
| |
“Unfunded
Liabilities” means, with respect to any Plan at any time, the amount (if
any) by which (a) the value of all benefit liabilities under such Plan, determined
on a plan termination basis using the assumptions prescribed by the PBGC for
purposes of Section 4044 of ERISA, exceeds (b) the fair market value of all Plan
assets allocable to such liabilities under Title IV of ERISA (excluding any
accrued but unpaid contributions), all determined as of the then most recent
valuation date for such Plan, but only to the extent that such excess represents a
potential liability of a member of the ERISA Group to the PBGC or any other Person
under Title IV of ERISA.
| |
“Unsecured
Debt” means, with respect to a Person as of any given date, the aggregate
principal amount of all Debt of such Person outstanding at such date and that is
not Secured Debt.
| |
“UPREIT”
means a limited partnership which is a Subsidiary of the Borrower formed by the
Borrower to function as an umbrella partnership REIT and which becomes a Guarantor
hereunder pursuant to Section 7.11.
| |
“Wachovia” means Wachovia Bank, National Association together with its successors and assigns. | |
-21- |
“Wholly Owned
Subsidiary” means any Subsidiary of a Person in respect of which all of
the equity securities or other ownership interests (other than, in the case of a
corporation, directors’ qualifying shares) are at the time directly or
indirectly owned or controlled by such Person or one or more other Subsidiaries of
such Person or by such Person and one or more other Subsidiaries of such Person.
| |
Section 1.2. General; References to Times.
| |
Unless otherwise
indicated, all accounting terms, ratios and measurements shall be interpreted or
determined in accordance with GAAP consistently applied; provided that, if at any
time any change in GAAP would affect the computation of any financial ratio or
requirement set forth in any Loan Document, and either the Borrower or the
Requisite Lenders shall so request, the Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to the approval
of the Requisite Lenders); provided further that, until so amended, (i) such ratio
or requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Borrower shall provide to the Agent and the Lenders
financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between calculations
of such ratio or requirement made before and after giving effect to such change in
GAAP. References in this Agreement to “Sections”, “Articles”,
“Exhibits” and “Schedules” are to sections, articles, exhibits
and schedules herein and hereto unless otherwise indicated. References in this
Agreement to any document, instrument or agreement (a) shall include all exhibits,
schedules and other attachments thereto, (b) shall include all documents,
instruments or agreements issued or executed in replacement thereof, to the extent
permitted hereby and (c) shall mean such document, instrument or agreement, or
replacement or predecessor thereto, as amended, supplemented, restated or
otherwise modified as of the date of this Agreement and from time to time
thereafter to the extent not prohibited hereby and in effect at any given time.
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. Unless explicitly set forth to the contrary, a reference to
“Subsidiary” means a Subsidiary of the Borrower or a Subsidiary of such
Subsidiary and a reference to an “Affiliate” means a reference to an
Affiliate of the Borrower. Titles and captions of Articles, Sections, subsections
and clauses in this Agreement are for convenience only, and neither limit nor
amplify the provisions of this Agreement. Unless otherwise indicated, all
references to time are references to Charlotte, North Carolina time.
| |
ARTICLE II. CREDIT FACILITY
| |
Section 2.1. Revolving Loans.
| |
(a) Generally. Subject to the terms and conditions hereof, during the period from the Effective Date to but excluding the Termination Date, each Lender severally and not jointly agrees to make Revolving Loans to the Borrower in an aggregate principal amount at any one time outstanding up to, but not exceeding, the amount of such Lender’s Commitment. Subject to the terms and conditions of this Agreement, during the period from the Effective Date to but | |
-22- |
excluding the Termination Date, the Borrower may borrow, repay and reborrow
Revolving Loans hereunder.
| |
(b)
Requesting Revolving Loans.
The Borrower shall give the Agent notice pursuant to a
Notice of Borrowing or telephonic notice of each borrowing of Revolving Loans.
Each Notice of Borrowing shall be delivered to the Agent before 10:00 a.m. (i) in
the case of LIBOR Loans, on the date three Business Days prior to the proposed
date of such borrowing and (ii) in the case of Base Rate Loans, on the date one
Business Day prior to the proposed date of such borrowing. Any such telephonic
notice shall include all information to be specified in a written Notice of
Borrowing and shall be promptly confirmed in writing by the Borrower pursuant to a
Notice of Borrowing sent to the Agent by telecopy on the same day of the giving of
such telephonic notice. The Agent will transmit by telecopy the Notice of
Borrowing (or the information contained in such Notice of Borrowing) to each
Lender promptly upon receipt by the Agent. Each Notice of Borrowing or telephonic
notice of each borrowing shall be irrevocable once given and binding on the
Borrower.
| |
(c)
Disbursements of Revolving Loan Proceeds.
No later than 1:00 p.m. on the date specified in the
Notice of Borrowing, each Lender will make available for the account of its
applicable Lending Office to the Agent at the Principal Office, in immediately
available funds, the proceeds of the Revolving Loan to be made by such Lender.
With respect to Revolving Loans to be made after the Effective Date, unless the
Agent shall have been notified by any Lender prior to the specified date of
borrowing that such Lender does not intend to make available to the Agent the
Revolving Loan to be made by such Lender on such date, the Agent may assume that
such Lender will make the proceeds of such Revolving Loan available to the Agent
on the date of the requested borrowing as set forth in the Notice of Borrowing and
the Agent may (but shall not be obligated to), in reliance upon such assumption,
make available to the Borrower the amount of such Revolving Loan to be provided by
such Lender. Subject to satisfaction of the applicable conditions set forth in
Article V. for such borrowing, the Agent will make the proceeds of such borrowing
available to the Borrower no later than 2:00 p.m. on the date and at the account
specified by the Borrower in such Notice of Borrowing.
| |
Section 2.2. Bid Rate Loans.
| |
(a)
Bid Rate Loans.
So long as the Borrower maintains an Investment Grade
Rating, in addition to borrowings of Revolving Loans, at any time during the
period from the Effective Date to but excluding the Termination Date the Borrower
may, as set forth in this Section, request the Lenders to make offers to make Bid
Rate Loans to the Borrower in Dollars. The Lenders may, but shall have no
obligation to, make such offers and the Borrower may, but shall have no obligation
to, accept any such offers in the manner set forth in this Section.
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(b) Requests for Bid Rate Loans. When the Borrower wishes to request from the Lenders offers to make Bid Rate Loans, it shall give the Agent notice (a “Bid Rate Quote Request”) so as to be received no later than 10:00 a.m. on (x) the Business Day immediately preceding the date of borrowing proposed therein, in the case of an Absolute Rate Auction and (y) the date four Business Days prior to the proposed date of borrowing, in the case of a LIBOR Auction. The Agent shall deliver to each Lender a copy of each Bid Rate Quote Request promptly upon receipt thereof by the Agent. The Borrower may request offers to make Bid Rate | |
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Loans for up to three (3) different Interest Periods in each Bid Rate Quote
Request; provided that the request for each separate Interest Period shall be
deemed to be a separate Bid Rate Quote Request for a separate borrowing (a
“Bid Rate Borrowing”). Each Bid Rate Quote Request shall be
substantially in the form of Exhibit H and shall specify as to each Bid Rate
Borrowing:
|
(i)
the proposed date of such Bid Rate Borrowing, which shall
be a Business Day;
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(ii)
the aggregate amount of such Bid Rate Borrowing, which (x)
shall be in the minimum amount of $10,000,000 and integral multiples of $1,000,000
and (y) shall not cause any of the limits specified in Section 2.16. to be
violated;
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(iii)
whether the Bid Rate Quote Request is for LIBOR Margin
Loans or Absolute Rate Loans; and
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(iv)
the duration of the Interest Period applicable thereto,
which shall not extend beyond the Termination Date.
|
Except as otherwise provided in this subsection (b), no Bid Rate Quote Request
shall be given within five Business Days (or such other number of days as the
Borrower and the Agent, with the consent of the Requisite Lenders, may agree) of
the giving of any other Bid Rate Quote Request.
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(c)
Bid Rate Quotes.
|
(i)
Each Lender may submit one or more Bid Rate Quotes, each
containing an offer to make a Bid Rate Loan in response to any Bid Rate Quote
Request; provided that, if the Borrower’s request under Section 2.2.(b)
specified more than one Interest Period, such Lender may make a single submission
containing one or more Bid Rate Quotes for each such Interest Period. Each Bid
Rate Quote must be submitted to the Agent not later than 10:00 a.m. on the
proposed date of borrowing; provided that the Lender then acting as Agent may
submit a Bid Rate Quote only if it notifies the Borrower of the terms of the offer
contained therein not later than 9:45 a.m. (x) on the proposed date of such
borrowing, in the case of an Absolute Rate Auction and (y) on the date three
Business Days prior to the proposed date of borrowing, in the case of a LIBOR
Auction. Subject to Articles V. and X., any Bid Rate Quote so made shall be
irrevocable except with the consent of the Agent given at the request of the
Borrower. Any Bid Rate Loan may be funded by a Lender’s Designated Lender (if
any) as provided in Section 12.5.(e), however such Lender shall not be required to
specify in its Bid Rate Quote whether such Bid Rate Loan will be funded by such
Designated Lender.
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(ii)
Each Bid Rate Quote shall be substantially in the form of
Exhibit I and shall specify:
|
(A) the proposed date of borrowing and the Interest Period therefor; | |
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(B)
the principal amount of the Bid Rate Loan for which each
such offer is being made; provided that the aggregate principal amount of all Bid
Rate Loans for which a Lender submits Bid Rate Quotes (x) may be greater or less
than the Commitment of such Lender but (y) shall not exceed the principal amount
of the Bid Rate Borrowing for a particular Interest Period for which offers were
requested;
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(C)
in the case of an Absolute Rate Auction, the rate of
interest per annum (rounded upwards, if necessary, to the nearest 1/10,000th of
1%) offered for each such Bid Rate Loan (the “Absolute Rate”);
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(D)
in the case of a LIBOR Auction, the margin above or below
applicable LIBOR (the “LIBOR Margin”) offered for each such LIBOR Margin
Loan, expressed as a percentage (rounded upwards, if necessary, to the nearest
1/1,000th of 1%) to be added to (or subtracted from) the applicable LIBOR; and
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(E)
the identity of the quoting Lender.
|
Unless otherwise agreed by the Agent and the Borrower, no Bid Rate Quote shall
contain qualifying, conditional or similar language or propose terms other than or
in addition to those set forth in the applicable Bid Rate Quote Request and, in
particular, no Bid Rate Quote may be conditioned upon acceptance by the Borrower
of all (or some specified minimum) of the principal amount of the Bid Rate Loan
for which such Bid Rate Quote is being made.
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(d)
Notification by Agent.
The Agent shall, as promptly as practicable after the Bid
Rate Quotes are submitted (but in any event not later than 10:30 a.m. on the
proposed date of borrowing), notify the Borrower of the terms (i) of any Bid Rate
Quote submitted by a Lender that is in accordance with Section 2.2.(c) and (ii) of
any Bid Rate Quote that amends, modifies or is otherwise inconsistent with a
previous Bid Rate Quote submitted by such Lender with respect to the same Bid Rate
Quote Request. Any such subsequent Bid Rate Quote shall be disregarded by the
Agent unless such subsequent Bid Rate Quote is submitted solely to correct a
manifest error in such former Bid Rate Quote. The Agent’s notice to the
Borrower shall specify (A) the aggregate principal amount of the Bid Rate
Borrowing for which offers have been received and (B) the principal amounts and
Absolute Rates or LIBOR Margins, as applicable, so offered by each Lender
(identifying the Lender that made each Bid Rate Quote).
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(e)
Acceptance by Borrower.
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(i) Not later than 11:00 a.m. (x) on the proposed date of borrowing, in the case of an Absolute Rate Auction and (y) on the date three Business Days prior to the proposed date of borrowing, in the case of a LIBOR Auction, the Borrower shall notify the Agent of its acceptance or nonacceptance of the offers so notified to it pursuant to Section 2.2.(d) which notice shall be in the form of Exhibit J. In the case of acceptance, such notice shall specify the aggregate principal amount of offers for each Interest Period that are accepted. The failure of the Borrower to give such notice by such time shall | |
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constitute nonacceptance. The Agent shall promptly notify each affected Lender.
The Borrower may accept any Bid Rate Quote in whole or in part; provided that:
|
(A)
the aggregate principal amount of each Bid Rate Borrowing
may not exceed the applicable amount set forth in the related Bid Rate Quote
Request;
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(B)
the aggregate principal amount of each Bid Rate Borrowing
shall not cause the limits specified in Section 2.16. to be violated;
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(C)
acceptance of offers may be made only in ascending order
of Absolute Rates or LIBOR Margins, as applicable, in each case beginning with the
lowest rate so offered;
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(D)
the Borrower may not accept any Bid Rate Quote that fails
to comply with Section 2.2.(c) or otherwise fails to comply with the requirements
of this Agreement); and
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(E)
any acceptance in part shall be in a minimum amount of
$5,000,000 and integral multiples of $1,000,000 in excess thereof.
|
(ii)
If offers are made by two or more Lenders with the same
Absolute Rates or LIBOR Margins, as applicable, for a greater aggregate principal
amount than the amount in respect of which offers are permitted to be accepted for
the related Interest Period, the principal amount of Bid Rate Loans in respect of
which such offers are accepted shall be allocated by the Agent among such Lenders
in proportion to the aggregate principal amount of such offers. Determinations by
the Agent of the amounts of Bid Rate Loans shall be conclusive in the absence of
manifest error.
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(f) Obligation to Make Bid Rate Loans. The Agent shall promptly (and in any event not later than (x) 12:00 noon on the proposed date of borrowing of Absolute Rate Loans and (y) on the date three Business Days prior to the proposed date of borrowing of LIBOR Margin Loans) notify each Lender whose Bid Rate Quote has been accepted and the amount and rate thereof. A Lender who is notified that it has been selected to make a Bid Rate Loan may designate its Designated Lender (if any) to fund such Bid Rate Loan on its behalf, as described in Section 12.5.(e). Any Designated Lender which funds a Bid Rate Loan shall on and after the time of such funding become the obligee under such Bid Rate Loan and be entitled to receive payment thereof when due. No Lender shall be relieved of its obligation to fund a Bid Rate Loan, and no Designated Lender shall assume such obligation, prior to the time the applicable Bid Rate Loan is funded. Any Lender whose offer to make any Bid Rate Loan has been accepted shall, not later than 1:30 p.m. on the date specified for the making of such Loan, make the amount of such Loan available to the Agent at its Principal Office in immediately available funds, for the account of the Borrower. The amount so received by the Agent shall, subject to the terms and conditions of this Agreement, be made available to the Borrower no later than 2:00 p.m. on such date by depositing the same, in immediately available funds, in an account of the Borrower designated by the Borrower. | |
-26- |
(g)
No Effect on Commitment.
Except for the purpose and to the extent expressly stated
in Section 2.14. the amount of any Bid Rate Loan made by any Lender shall not
constitute a utilization of such Lender’s Commitment.
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Section 2.3. Swingline Loans.
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(a)
Swingline Loans.
Subject to the terms and conditions hereof, during the
period from the Effective Date to but excluding the Termination Date, the
Swingline Lender agrees to make Swingline Loans to the Borrower in an aggregate
principal amount at any one time outstanding up to, but not exceeding, the amount
of the Swingline Commitment. If at any time the aggregate principal amount of the
Swingline Loans outstanding at such time exceeds the Swingline Commitment in
effect at such time, the Borrower shall immediately pay the Agent for the account
of the Swingline Lender the amount of such excess. Subject to the terms and
conditions of this Agreement, the Borrower may borrow, repay and reborrow
Swingline Loans hereunder.
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(b)
Procedure for Borrowing Swingline Loans.
The Borrower shall give the Agent and the Swingline
Lender notice pursuant to a Notice of Swingline Borrowing or telephonic notice of
each borrowing of a Swingline Loan. Each Notice of Swingline Borrowing shall be
delivered to the Swingline Lender no later than 3:00 p.m. on the proposed date of
such borrowing. Any such notice given telephonically shall include all information
to be specified in a written Notice of Swingline Borrowing and shall be promptly
confirmed in writing by the Borrower pursuant to a Notice of Swingline Borrowing
sent to the Swingline Lender by telecopy on the same day of the giving of such
telephonic notice. On the date of the requested Swingline Loan and subject to
satisfaction of the applicable conditions set forth in Article V. for such
borrowing, the Swingline Lender will make the proceeds of such Swingline Loan
available to the Borrower in Dollars, in immediately available funds, at the
account specified by the Borrower in the Notice of Swingline Borrowing not later
than 4:00 p.m. on such date.
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(c)
Interest.
Swingline Loans shall bear interest at a per annum rate
equal to the Base Rate plus the Applicable Margin for Base Rate Loans (or
at such other rate or rates as the Borrower and the Swingline Lender may agree
from time to time in writing). Interest payable on Swingline Loans is solely for
the account of the Swingline Lender (except to the extent a Lender acquires a
participating interest in a Swingline Loan pursuant to the immediately following
subsection (e)). All accrued and unpaid interest on Swingline Loans shall be
payable on the dates and in the manner provided in Section 2.5. with respect to
interest on Base Rate Loans (except as the Swingline Lender and the Borrower may
otherwise agree in writing in connection with any particular Swingline Loan).
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(d) Swingline Loan Amounts, Etc. Each Swingline Loan shall be in the minimum amount of $100,000 and integral multiples of $25,000 or such other minimum amounts agreed to by the Swingline Lender and the Borrower. Any voluntary prepayment of a Swingline Loan must be in integral multiples of $100,000 or the aggregate principal amount of all outstanding Swingline Loans (or such other minimum amounts upon which the Swingline Lender and the Borrower may agree) and in connection with any such prepayment, the Borrower must give the Swingline Lender prior written notice thereof no later than 10:00 a.m. on the date of such | |
-27- |
prepayment. The Swingline Loans shall, in addition to this Agreement, be evidenced
by the Swingline Note.
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(e) Repayment and Participations of Swingline Loans. The Borrower agrees to repay each Swingline Loan within one Business Day of demand therefor by the Swingline Lender and in any event, within 5 Business Days after the date such Swingline Loan was made. Notwithstanding the foregoing, the Borrower shall repay the entire outstanding principal amount of, and all accrued but unpaid interest on, the Swingline Loans on the Termination Date (or such earlier date as the Swingline Lender and the Borrower may agree in writing). In lieu of demanding repayment of any outstanding Swingline Loan from the Borrower, the Swingline Lender may, on behalf of the Borrower (which hereby irrevocably directs the Swingline Lender to act on its behalf), request a borrowing of Base Rate Loans from the Lenders in an amount equal to the principal balance of such Swingline Loan. The amount limitations of Section .5.(a) shall not apply to any borrowing of Base Rate Loans made pursuant to this subsection. The Swingline Lender shall give notice to the Agent of any such borrowing of Base Rate Loans not later than 12:00 noon on the proposed date of such borrowing and the Agent shall give prompt notice of such borrowing to the Lenders. No later than 2:00 p.m. on such date, each Lender will make available to the Agent at the Principal Office for the account of Swingline Lender, in immediately available funds, the proceeds of the Base Rate Loan to be made by such Lender. The Agent shall pay the proceeds of such Base Rate Loans to the Swingline Lender, which shall apply such proceeds to repay such Swingline Loan. If the Lenders are prohibited from making Loans required to be made under this subsection for any reason, including without limitation, the occurrence of any of the Events of Default described in Sections 10.1.(f) or 10.1.(g), each Lender shall purchase from the Swingline Lender, without recourse or warranty, an undivided interest and participation to the extent of such Lender’s Commitment Percentage of such Swingline Loan, by directly purchasing a participation in such Swingline Loan in such amount (regardless of whether the conditions precedent thereto set forth in Section 5.2. are then satisfied, whether or not the Borrower has submitted a Notice of Borrowing and whether or not the Commitments are then in effect, any Event of Default exists or all the Loans have been accelerated) and paying the proceeds thereof to the Agent for the account of the Swingline Lender in Dollars and in immediately available funds. If such amount is not in fact made available to the Swingline Lender by any Lender, the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with accrued interest thereon for each day from the date of demand thereof, at the Federal Funds Rate. If such Lender does not pay such amount forthwith upon the Swingline Lender’s demand therefor, and until such time as such Lender makes the required payment, the Swingline Lender shall be deemed to continue to have outstanding Swingline Loans in the amount of such unpaid participation obligation for all purposes of the Loan Documents (other than those provisions requiring the other Lenders to purchase a participation therein). Further, such Lender shall be deemed to have assigned any and all payments made of principal and interest on its Loans, and any other amounts due to it hereunder, to the Swingline Lender to fund Swingline Loans in the amount of the participation in Swingline Loans that such Lender failed to purchase pursuant to this Section until such amount has been purchased (as a result of such assignment or otherwise). A Lender’s obligation to purchase such a participation in a Swingline Loan shall be absolute and unconditional and shall not be affected by any circumstance whatsoever, including without limitation, (i) any claim of setoff, counterclaim, recoupment, defense or other right which such Lender or any other Person may have or claim | |
-28- |
against the Agent, the Swingline Lender or any other Person whatsoever, (ii) the
occurrence or continuation of a Default or Event of Default (including without
limitation, any of the Defaults or Events of Default described in Sections
10.1.(f) or 10.1.(g)) or the termination of any Lender’s Commitment, (iii)
the existence (or alleged existence) of an event or condition which has had or
could have a Material Adverse Effect, (iv) any breach of any Loan Document by the
Agent, any Lender or the Borrower or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.
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Section 2.4. Letters of Credit.
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(a)
Letters of Credit.
Subject to the terms and conditions of this Agreement, the
Agent, on behalf of the Lenders, agrees to issue for the account of the Borrower
(or the Borrower and any other Loan Party) during the period from and including
the Effective Date to, but excluding, the date 30 days prior to the Termination
Date one or more standby letters of credit (each a “Letter of Credit”)
up to a maximum aggregate Stated Amount at any one time outstanding not to exceed
the L/C Commitment Amount. The parties hereto agree that the Existing Letters of
Credit shall be deemed to be Letters of Credit hereunder.
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(b)
Terms of Letters of Credit.
At the time of issuance, the amount, form, terms and
conditions of each Letter of Credit, and of any drafts or acceptances thereunder,
shall be subject to approval by the Agent and the Borrower. At the time of
issuance of each Letter of Credit, the Agent and the Borrower shall determine
whether such Letter of Credit will be subject to (x) the rules of the
“International Standby Practices 1998” published by the Institute of
International Banking Law & Practice (or such later version thereof as may be
in effect at the time of issuance) or (y) the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce Publication
No. 500 (or such later version thereof as may be in effect at the time of
issuance). Notwithstanding the foregoing, in no event may (i) the expiration date
of any Letter of Credit extend beyond the earlier of (A) the date one year from
its date of issuance or (B) the Termination Date or (ii) any Letter of Credit
contain an automatic renewal provision (other than renewal provisions which are
automatic in the absence of a notice of non-renewal from the Agent which may be
given at least once during any 12-month period, so long as any such renewal
provision does not provide for a renewal period that extends beyond the
Termination Date).
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(c) Requests for Issuance of Letters of Credit. The Borrower shall give the Agent written notice (or telephonic notice promptly confirmed in writing) at least 3 Business Days prior to the requested date of issuance of a Letter of Credit, such notice to describe in reasonable detail the proposed terms of such Letter of Credit and the nature of the transactions or obligations proposed to be supported by such Letter of Credit, and in any event shall set forth with respect to such Letter of Credit the proposed (i) Stated Amount, (ii) the beneficiary, and (iii) the expiration date. The Borrower shall also execute and deliver such customary letter of credit application forms as requested from time to time by the Agent. Provided the Borrower has given the notice prescribed by the first sentence of this subsection and subject to the other terms and conditions of this Agreement, including the satisfaction of any applicable conditions precedent set forth in Article V., the Agent shall issue the requested Letter of Credit on the requested date of issuance for the benefit of the stipulated beneficiary. Upon the written request of the Borrower, the Agent shall deliver to the Borrower a copy of each issued Letter of Credit within a reasonable time after | |
-29- |
the date of issuance thereof. To the extent any term of a Letter of Credit
Document is inconsistent with a term of any Loan Document, the term of such Loan
Document shall control.
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(d)
Reimbursement Obligations.
Upon receipt by the Agent from the beneficiary of a Letter
of Credit of any demand for payment under such Letter of Credit, the Agent shall
promptly notify the Borrower of the amount to be paid by the Agent as a result of
such demand and the date on which payment is to be made by the Agent to such
beneficiary in respect of such demand; provided, however, the
Agent’s failure to give, or delay in giving, such notice shall not discharge
the Borrower in any respect from the applicable Reimbursement Obligation. The
Borrower hereby unconditionally and irrevocably agrees to pay and reimburse the
Agent for the amount of each demand for payment under such Letter of Credit on or
prior to the date on which payment is to be made by the Agent to the beneficiary
thereunder, without presentment, demand, protest or other formalities of any kind
(other than notice as provided in this subsection). Upon receipt by the Agent of
any payment in respect of any Reimbursement Obligation, the Agent shall promptly
pay to each Lender that has acquired a participation therein under the second
sentence of Section 2.4.(i) such Lender’s Commitment Percentage of such
payment.
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(e)
Manner of Reimbursement.
Upon its receipt of a notice referred to in the
immediately preceding subsection (d), the Borrower shall advise the Agent whether
or not the Borrower intends to borrow hereunder to finance its obligation to
reimburse the Agent for the amount of the related demand for payment and, if it
does, the Borrower shall submit a timely request for such borrowing as provided in
the applicable provisions of this Agreement. If the Borrower fails to so advise
the Agent, or if the Borrower fails to reimburse the Agent for a demand for
payment under a Letter of Credit by the date of such payment, then (i) if the
applicable conditions contained in Article V. would permit the making of Revolving
Loans, the Borrower shall be deemed to have requested a borrowing of Revolving
Loans (which shall be Base Rate Loans) in an amount equal to the unpaid
Reimbursement Obligation and the Agent shall give each Lender prompt notice of the
amount of the Revolving Loan to be made available to the Agent not later than 1:00
p.m. and (ii) if such conditions would not permit the making of Revolving Loans,
the provisions of subsection (j) of this Section shall apply. The minimum
amount limitations of Section 3.5.(a) shall not apply to any borrowing of Base
Rate Loans under this subsection.
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(f)
Effect of Letters of Credit on Commitments.
Upon the issuance by the Agent of any Letter of Credit
and until such Letter of Credit shall have expired or been terminated, the
Commitment of each Lender shall be deemed to be utilized for all purposes of this
Agreement in an amount equal to the product of (i) such Lender’s Commitment
Percentage and (ii) the sum of (A) the Stated Amount of such Letter of Credit plus
(B) any related Reimbursement Obligations then outstanding.
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(g) Agent’s Duties Regarding Letters of Credit; Unconditional Nature of Reimbursement Obligations. In examining documents presented in connection with drawings under Letters of Credit and making payments under such Letters of Credit against such documents, the Agent shall only be required to use the same standard of care as it uses in connection with examining documents presented in connection with drawings under letters of credit in which it has not sold participations and making payments under such letters of credit. | |
-30- |
The Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, neither the Agent nor any of the Lenders shall be responsible for (i) the form, validity, sufficiency, accuracy, genuineness or legal effects of any document submitted by any party in connection with the application for and issuance of or any drawing honored under any Letter of Credit even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit, or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telex, telecopy or otherwise, whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any Letter of Credit, or of the proceeds thereof; (vii) the misapplication by the beneficiary of any Letter of Credit, or the proceeds of any drawing under any Letter of Credit; or (viii) any consequences arising from causes beyond the control of the Agent or the Lenders. None of the above shall affect, impair or prevent the vesting of any of the Agent’s rights or powers hereunder. Any action taken or omitted to be taken by the Agent under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create against the Agent or any Lender any liability to the Borrower or any Lender. In this connection, the obligation of the Borrower to reimburse the Agent for any drawing made under any Letter of Credit shall be absolute, unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement and any other applicable Letter of Credit Document under all circumstances whatsoever, including without limitation, the following circumstances: (A) any lack of validity or enforceability of any Letter of Credit Document or any term or provisions therein; (B) any amendment or waiver of or any consent to departure from all or any of the Letter of Credit Documents; (C) the existence of any claim, setoff, defense or other right which the Borrower may have at any time against the Agent, any Lender, any beneficiary of a Letter of Credit or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or in the Letter of Credit Documents or any unrelated transaction; (D) any breach of contract or dispute between the Borrower, the Agent, any Lender or any other Person; (E) any demand, statement or any other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein or made in connection therewith being untrue or inaccurate in any respect whatsoever; (F) any non-application or misapplication by the beneficiary of a Letter of Credit of the proceeds of any drawing under such Letter of Credit; (G) payment by the Agent under any Letter of Credit against presentation of a draft or certificate which does not strictly comply with the terms of such Letter of Credit, unless such payment constituted gross negligence of the Agent as actually and finally determined by a court of competent jurisdiction; and (H) any other act, omission to act, delay or circumstance whatsoever that might, but for the provisions of this Section, constitute a legal or equitable defense to or discharge of the Borrower’s Reimbursement Obligations. Notwithstanding anything to the contrary contained in this Section or Section 12.9., but not in limitation of the Borrower’s unconditional obligation to reimburse the Agent for any drawing made under a Letter of Credit as provided in this Section, the Borrower shall have no obligation to indemnify the Agent or any Lender in respect of any liability incurred by the Agent | |
-31- |
or a Lender arising solely out of the gross negligence or willful misconduct of
the Agent or a Lender in respect of a Letter of Credit as actually and finally
determined by a court of competent jurisdiction. Except as otherwise provided in
this Section, nothing in this Section shall affect any rights the Borrower may
have with respect to the gross negligence or willful misconduct of the Agent or
any Lender with respect to any Letter of Credit.
| |
(h)
Amendments, Etc.
The issuance by the Agent of any amendment, supplement or
other modification to any Letter of Credit shall be subject to the same conditions
applicable under this Agreement to the issuance of new Letters of Credit
(including, without limitation, that the request therefor be made through the
Agent), and no such amendment, supplement or other modification shall be issued
unless either (i) the respective Letter of Credit affected thereby would have
complied with such conditions had it originally been issued hereunder in such
amended, supplemented or modified form or (ii) the Requisite Lenders shall have
consented thereto. In connection with any such amendment, supplement or other
modification, the Borrower shall pay the Fees, if any, payable under the last
sentence of Section 3.6.(b).
| |
(i)
Lenders’ Participation in Letters of Credit.
Immediately upon the issuance by the Agent of any Letter
of Credit each Lender shall be deemed to have irrevocably and unconditionally
purchased and received from the Agent, without recourse or warranty, an undivided
interest and participation to the extent of such Lender’s Commitment
Percentage of the liability of the Agent with respect to such Letter of Credit and
each Lender thereby shall absolutely, unconditionally and irrevocably assume, as
primary obligor and not as surety, and shall be unconditionally obligated to the
Agent to pay and discharge when due, such Lender’s Commitment Percentage of
the Agent’s liability under such Letter of Credit. In addition, upon the
making of each payment by a Lender to the Agent in respect of any Letter of Credit
pursuant to the immediately following subsection (j), such Lender shall,
automatically and without any further action on the part of the Agent or such
Lender, acquire (i) a participation in an amount equal to such payment in the
Reimbursement Obligation owing to the Agent by the Borrower in respect of such
Letter of Credit and (ii) a participation in a percentage equal to such
Lender’s Commitment Percentage in any interest or other amounts payable by
the Borrower in respect of such Reimbursement Obligation (other than the Fees
payable to the Agent pursuant to the third and last sentences of Section 3.6.(b)).
| |
(j) Payment Obligations of Lenders. Each Lender severally agrees to pay to the Agent on demand in immediately available funds in Dollars the amount of such Lender’s Commitment Percentage of each drawing paid by the Agent under each Letter of Credit to the extent such amount is not reimbursed by the Borrower pursuant to Section 2.4.(d); provided, however, that in respect of any drawing under any Letter of Credit, the maximum amount that any Lender shall be required to fund, whether as a Revolving Loan or as a participation, shall not exceed such Lender’s Commitment Percentage of such drawing. Each such Lender’s obligation to make such payments to the Agent under this subsection, and the Agent’s right to receive the same, shall be absolute, irrevocable and unconditional and shall not be affected in any way by any circumstance whatsoever, including without limitation, (i) the failure of any other Lender to make its payment under this subsection, (ii) the financial condition of the Borrower or any other Loan Party, (iii) the existence of any Default or Event of Default, including any Event of Default described in | |
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Section 10.1.(f) or 10.1.(g) or (iv) the termination of the Commitments. Each such
payment to the Agent shall be made without any offset, abatement, withholding or
deduction whatsoever.
| |
(k) Information to Lenders. Upon the request of any Lender from time to time, the Agent shall deliver to such Lender information reasonably requested by such Lender with respect to each Letter of Credit then outstanding. Other than as set forth in this subsection, the Agent shall have no duty to notify the Lenders regarding the issuance or other matters regarding Letters of Credit issued hereunder. The failure of the Agent to perform its requirements under this subsection shall not relieve any Lender from its obligations under Section 2.4.(j). | |
Section 2.5. Rates and Payment of Interest on Loans.
| |
(a)
Rates.
The Borrower promises to pay to the Agent for the account
of each Lender interest on the unpaid principal amount of each Loan made by such
Lender for the period from and including the date of the making of such Loan to
but excluding the date such Loan shall be paid in full, at the following per annum
rates:
|
(i)
during such periods as such Loan is a Base Rate Loan, at
the Base Rate (as in effect from time to time) plus the Applicable Margin;
| |
(ii)
during such periods as such Loan is a LIBOR Loan, at the
Adjusted Eurodollar Rate for such Loan for the Interest Period therefor plus the
Applicable Margin;
| |
(iii)
if such Loan is an Absolute Rate Loan, at the Absolute
Rate for such Loan for the Interest Period therefor quoted by the Lender making
such Loan in accordance with Section 2.2.; and
| |
(iv)
if such Loan is a LIBOR Margin Loan, at LIBOR for such
Loan for the Interest Period therefor plus the LIBOR Margin for such Loan quoted
by the Lender making such Loan in accordance with Section 2.2.
|
Notwithstanding the foregoing, during the continuance of an Event of Default, the
Borrower shall pay to the Agent for the account of each Lender interest at the
Post-Default Rate on the outstanding principal amount of any Loan made by such
Lender, on all Reimbursement Obligations and on any other amount payable by the
Borrower hereunder or under the Notes held by such Lender to or for the account of
such Lender (including without limitation, accrued but unpaid interest to the
extent permitted under Applicable Law).
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(b) Payment of Interest. Accrued and unpaid interest on each Loan shall be payable (i) in the case of a Base Rate Loan, monthly in arrears on the first day of each calendar month, (ii) in the case of a LIBOR Loan or a Bid Rate Loan, in arrears on the last day of each Interest Period therefor, and (iii) in the case of any Loan, in arrears upon the payment, prepayment or Continuation thereof or the Conversion of such Loan to a Loan of another Type (but only on the principal amount so paid, prepaid, Continued or Converted). Interest payable at the Post-Default Rate shall be payable from time to time on demand. Promptly after the determination of any interest rate provided for herein or any change therein, the Agent shall give notice thereof to the | |
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Lenders to which such interest is payable and to the Borrower. All determinations
by the Agent of an interest rate hereunder shall be conclusive and binding on the
Lenders and the Borrower for all purposes, absent manifest error.
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Section 2.6. Number of Interest Periods.
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There may be no more
than 6 different Interest Periods for LIBOR Loans and Bid Rate Loans, collectively
outstanding at the same time (for which purpose Interest Periods described in
different lettered clauses of the definition of the term “Interest
Period” shall be deemed to be different Interest Periods even if they are
coterminous).
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Section 2.7. Repayment of Loans.
| |
(a)
Revolving Loans.
The Borrower shall repay the entire outstanding principal
amount of, and all accrued but unpaid interest on, the Revolving Loans on the
Termination Date.
| |
(b)
Bid Rate Loans.
The Borrower shall repay the entire outstanding principal
amount of, and all accrued but unpaid interest on, each Bid Rate Loan on the last
day of the Interest Period of such Bid Rate Loan.
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Section 2.8. Prepayments.
| |
(a)
Optional.
Subject to Section 4.4., the Borrower may prepay any Loan
(other than a Bid Rate Loan) in whole or in part at any time without premium or
penalty. Bid Rate Loans may not be prepaid at the option of the Borrower. The
Borrower shall give the Agent notice of any prepayment of a Loan before 10:00 a.m.
(i) in the case of LIBOR Loans, on the date three Business Days prior to the
proposed date of such prepayment and (ii) in the case of any other Loans, on the
date one Business Day prior to the proposed date of such prepayment.
| |
(b)
Mandatory.
If at any time the aggregate principal amount of all
outstanding Revolving Loans, together with the aggregate amount of all Letter of
Credit Liabilities, the aggregate principal amount of all outstanding Bid Rate
Loans and the aggregate principal amount of all outstanding Swingline Loans,
exceeds the aggregate amount of the Commitments in effect at such time, the
Borrower shall immediately pay to the Agent for the accounts of the Lenders the
amount of such excess. Such payment shall be applied to pay all amounts of
principal outstanding on the Loans and any Reimbursement Obligations pro rata in
accordance with Section 3.2. and if any Letters of Credit are outstanding at such
time the remainder, if any, shall be deposited into the Collateral Account for
application to any Reimbursement Obligations. If the Borrower is required to pay
any outstanding LIBOR Loans or Bid Rate Loans by reason of this Section prior to
the end of the applicable Interest Period therefor, the Borrower shall pay all
amounts due under Section 4.4.
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Section 2.8. Continuation.
| |
So long as no Default or Event of Default shall have occurred and be continuing, the Borrower may on any Business Day, with respect to any LIBOR Loan, elect to maintain such LIBOR Loan or any portion thereof as a LIBOR Loan by selecting a new Interest Period for such | |
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LIBOR Loan. Each new Interest Period selected under this Section shall commence on
the last day of the immediately preceding Interest Period. Each selection of a new
Interest Period shall be made by the Borrower giving to the Agent a Notice of
Continuation not later than 10:00 a.m. on the third Business Day prior to the date
of any such Continuation. Such notice by the Borrower of a Continuation shall be
by telephone or telecopy, confirmed immediately in writing if by telephone, in the
form of a Notice of Continuation, specifying (a) the proposed date of such
Continuation, (b) the LIBOR Loans and portions thereof subject to such
Continuation and (c) the duration of the selected Interest Period, all of
which shall be specified in such manner as is necessary to comply with all
limitations on Loans outstanding hereunder. Each Notice of Continuation shall be
irrevocable by and binding on the Borrower once given. Promptly after receipt of a
Notice of Continuation, the Agent shall notify each Lender by telecopy, or other
similar form of transmission, of the proposed Continuation. If the Borrower shall
fail to select in a timely manner a new Interest Period for any LIBOR Loan in
accordance with this Section, or if a Default or Event of Default shall have
occurred and be continuing, such Loan will automatically, on the last day of the
current Interest Period therefor, Convert into a Base Rate Loan notwithstanding
the first sentence of Section 2.10. or the Borrower’s failure to comply
with any of the terms of such Section.
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Section 2.10. Conversion.
| |
So long as no Default
or Event of Default shall have occurred and be continuing, the Borrower may on any
Business Day, upon the Borrower’s giving of a Notice of Conversion to the
Agent, Convert all or a portion of a Loan of one Type into a Loan of another Type.
Any Conversion of a LIBOR Loan into a Base Rate Loan shall be made on, and only
on, the last day of an Interest Period for such LIBOR Loan and, upon Conversion of
a Base Rate Loan into a LIBOR Loan, the Borrower shall pay accrued interest to the
date of Conversion on the principal amount so Converted. Each such Notice of
Conversion shall be given not later than 10:00 a.m. on the Business Day prior to
the date of any proposed Conversion into Base Rate Loans and on the third Business
Day prior to the date of any proposed Conversion into LIBOR Loans. Promptly after
receipt of a Notice of Conversion, the Agent shall notify each Lender by telecopy,
or other similar form of transmission, of the proposed Conversion. Subject to the
restrictions specified above, each Notice of Conversion shall be by telephone
(confirmed immediately in writing) or telecopy in the form of a Notice of
Conversion specifying (a) the requested date of such Conversion, (b) the
Type of Loan to be Converted, (c) the portion of such Type of Loan to be
Converted, (d) the Type of Loan such Loan is to be Converted into and
(e) if such Conversion is into a LIBOR Loan, the requested duration of the
Interest Period of such Loan. Each Notice of Conversion shall be irrevocable by
and binding on the Borrower once given.
| |
Section 2.11. Notes.
| |
(a) Revolving Note. The Revolving Loans made by each Lender shall, in addition to this Agreement, also be evidenced by promissory note of the Borrower substantially in the form of Exhibit K (each a "Revolving Note"), payable to the order of such Lender in a principal amount equal to the amount of its Commitment as originally in effect and otherwise duly completed. | |
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(b)
Bid Rate Notes.
The Bid Rate Loans made by any Lender shall, in addition
to this Agreement, also be evidenced by a Promissory note of the Borrower
substantially in the form of Exhibit L (each a “Bid Rate Note”), payable
to the order of such Lender and otherwise duly completed.
| |
(c)
Records.
The date, amount, interest rate, Type and duration of
Interest Periods (if applicable) of each Loan made by each Lender to the Borrower,
and each payment made on account of the principal thereof, shall be recorded by
such Lender on its books and such entries shall be binding on the Borrower absent
manifest error.
| |
(d)
Lost, Stolen, Destroyed or Mutilated Notes.
Upon receipt by the Borrower of (i) written notice from a
Lender that a Note of such Lender has been lost, stolen, destroyed or mutilated,
and (ii) (A) in the case of loss, theft or destruction, an unsecured agreement of
indemnity from such Lender in form reasonably satisfactory to the Borrower, or (B)
in the case of mutilation, upon surrender and cancellation of such Note, the
Borrower shall, at the expense of such Lender, execute and deliver to such Lender
a new Note dated the date of such lost, stolen, destroyed or mutilated Note.
| |
Section 2.12. Extension of Termination Date.
| |
The Borrower shall
have the right, exercisable one time, to extend the Termination Date by one year.
The Borrower may exercise such right only by executing and delivering to the Agent
at least 90 days but not more than 150 days prior to the current Termination Date,
a written request for such extension (an “Extension Request”). The Agent
shall forward to each Lender a copy of the Extension Request delivered to the
Agent promptly upon receipt thereof. Subject to satisfaction of the following
conditions, the Termination Date shall be extended for one year:
(a) immediately prior to such extension and immediately after giving effect
thereto, no Default or Event of Default shall exist, (b) the representations
and warranties made or deemed made by the Borrower and each other Loan Party in
the Loan Documents to which any of them is a party would be true and correct
immediately after giving effect to the requested extension of the Termination
Date, except to the extent that such representations and warranties expressly
relate solely to an earlier date (in which case such representations and
warranties shall have been true and accurate on and as of such earlier date) and
(c) the Borrower shall have paid the Fees payable under
Section 3.6.(c).
| |
Section 2.13. Expiration or Maturity Date of Letters of Credit Past
Termination Date.
| |
If on the date (the “Facility Termination Date”) the Commitments are terminated (whether voluntarily, by reason of the occurrence of an Event of Default or otherwise), there are any Letters of Credit outstanding hereunder, the Borrower shall, on the Facility Termination Date, pay to the Agent an amount of money equal to the Stated Amount of such Letter(s) of Credit for deposit into the Collateral Account. If a drawing pursuant to any such Letter of Credit occurs on or prior to the expiration date of such Letter of Credit, the Borrower authorizes the Agent to use the monies deposited in the Collateral Account to make payment to the beneficiary with respect to such drawing or the payee with respect to such presentment. If no drawing occurs on or prior to the expiration date of such Letter of Credit, the Agent shall withdraw the monies deposited in the Collateral Account with respect to such outstanding Letter of Credit on | |
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or before the date 15 Business Days after the expiration date of such Letter of
Credit and apply such funds to the Obligations, if any, then due and payable in
the order prescribed by Section 10.4.
| |
Section 2.14. Voluntary Reductions of the Commitment.
| |
The Borrower shall
have the right to terminate or reduce the aggregate unused amount of the
Commitments (for which purpose use of the Commitments shall be deemed to include
the aggregate amount of Letter of Credit Liabilities and the aggregate principal
amount of all outstanding Swingline Loans and Bid Rate Loans) at any time and from
time to time without penalty or premium upon not less than 5 Business Days prior
written notice to the Agent of each such termination or reduction, which notice
shall specify the effective date thereof and the amount of any such reduction and
shall be irrevocable once given and effective only upon receipt by the Agent;
provided, however, that if the Borrower seeks to reduce the aggregate amount of
the Commitments below $100,000,000, then the Commitments shall be reduced to zero
and except as otherwise provided herein, the provisions of this Agreement shall
terminate. The Agent will promptly transmit such notice to each Lender. The
Commitments, once terminated or reduced may not be increased or reinstated.
| |
Section 2.15. Increase of Commitments.
| |
The Borrower shall have the right at any time and from time to time during the period beginning on the Effective Date through and including the date 180 days prior to the Termination Date to request increases in the aggregate amount of the Commitments (provided that the aggregate amount of increases in the Commitments pursuant to this Section shall not exceed $175,000,000) by providing written notice to the Agent, which notice shall be irrevocable once given. No Lender shall be required to increase its Commitment and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee. If a new Lender becomes a party to this Agreement, or if any existing Lender agrees to increase its Commitment, such Lender shall on the date it becomes a Lender hereunder (or increases its Commitment, in the case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage (as determined after giving effect to the increase of Commitments) of any outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders, in same day funds, an amount equal to the sum of (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender plus (B) the aggregate amount of payments previously made by the other Lenders under Section 2.4.(j) which have not been repaid plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4. as a result of the prepayment of any such Revolving Loans. No increase of the Commitments may be effected under this Section if (x) a Default or Event of Default exists on the effective date of such increase or (y) any representation or warranty made or deemed made by the Borrower or any other Loan Party in any Loan Document to which any such Loan Party is a party is not (or would not be) true or correct on the effective date of such increase (except for representations or warranties which expressly relate solely to an earlier date). In connection with any increase in the aggregate amount of the Commitments pursuant to this subsection, (a) any Lender becoming a party hereto shall execute such documents and agreements as the Agent may reasonably | |
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request and (b) the Borrower shall make appropriate arrangements so that each new
Lender, and any existing Lender increasing its Commitment, receives a new or
replacement Note, as appropriate, in the amount of such Lender’s Commitment
within 2 Business Days of the effectiveness of the applicable increase in the
aggregate amount of Commitments.
| |
Section 2.16. Amount Limitations.
| |
Notwithstanding any
other term of this Agreement or any other Loan Document, no Lender shall be
required to make a Loan and the Agent shall not be required to issue a Letter of
Credit, if immediately after the making of such Loan or the issuance of such
Letter of Credit:
| |
(a)
the aggregate principal amount of all outstanding
Revolving Loans, together with the aggregate principal amount of all outstanding
Bid Rate Loans, the aggregate principal amount of all outstanding Swingline Loans
and the aggregate amount of all Letter of Credit Liabilities, would exceed the
aggregate amount of the Commitments at such time; or
| |
(b)
the aggregate principal amount of all outstanding Bid Rate
Loans would exceed 50.0% of the aggregate amount of the Commitments at such time.
| |
ARTICLE III. PAYMENTS, FEES AND OTHER GENERAL PROVISIONS
| |
Section 3.1. Payments.
| |
Except to the extent otherwise provided herein, all payments of principal, interest and other amounts to be made by the Borrower under this Agreement or any other Loan Document shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Agent at its Principal Office, not later than 2:00 p.m. on the date on which such payment shall become due (each such payment made after such time on such due date to be deemed to have been made on the next succeeding Business Day). Subject to Sections 3.2. and 3.3., the Agent, or any Lender for whose account any such payment is made, may (but shall not be obligated to) debit the amount of any such payment which is not made by such time from any special or general deposit account of the Borrower with the Agent or such Lender, as the case may be (with notice to the Borrower, the other Lenders and the Agent). The Borrower shall, at the time of making each payment under this Agreement or any Note, specify to the Agent the amounts payable by the Borrower hereunder to which such payment is to be applied. Each payment received by the Agent for the account of a Lender under this Agreement or any Note shall be paid to such Lender at the applicable Lending Office of such Lender no later than 5:00 p.m. on the date of receipt. If the Agent fails to pay such amount to a Lender as provided in the previous sentence, the Agent shall pay interest on such amount until paid at a rate per annum equal to the Federal Funds Rate from time to time in effect. If the due date of any payment under this Agreement or any other Loan Document would otherwise fall on a day which is not a Business Day such date shall be extended to the next succeeding Business Day and interest shall be payable for the period of such extension. | |
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Section 3.2. Pro Rata Treatment.
| |
Except to the extent
otherwise provided herein: (a) each borrowing from the Lenders under
Section 2.1.(a) shall be made from the Lenders, each payment of the Fees
under Section 3.6.(a), the first sentence of Section 3.6.(b) and Section
3.6.(c) shall be made for the account of the Lenders, and each termination or
reduction of the amount of the Commitments under Section 2.14. shall be
applied to the respective Commitments of the Lenders, pro rata according to the
amounts of their respective Commitments; (b) each payment or prepayment of
principal of Revolving Loans by the Borrower shall be made for the account of the
Lenders pro rata in accordance with the respective unpaid principal amounts of the
Revolving Loans held by them, provided that if immediately prior to giving effect
to any such payment in respect of any Revolving Loans the outstanding principal
amount of the Revolving Loans shall not be held by the Lenders pro rata in
accordance with their respective Commitments in effect at the time such Loans were
made, then such payment shall be applied to the Revolving Loans in such manner as
shall result, as nearly as is practicable, in the outstanding principal amount of
the Revolving Loans being held by the Lenders pro rata in accordance with their
respective Commitments; (c) each payment of interest on Revolving Loans by the
Borrower shall be made for the account of the Lenders pro rata in accordance with
the amounts of interest on such Loans then due and payable to the respective
Lenders; (d) the making, Conversion and Continuation of Revolving Loans of a
particular Type (other than Conversions provided for by Section 4.6.) shall be
made pro rata among the Lenders according to the amounts of their respective
Commitments (in the case of making of Loans) or their respective Loans (in the
case of Conversions and Continuations of Loans) and the then current Interest
Period for each Lender’s portion of each Loan of such Type shall be
coterminous; (e) the Lenders’ participation in, and payment obligations in
respect of, Letters of Credit under Section 2.4., shall be pro rata in
accordance with their respective Commitments; (f) the Lenders’
participation in, and payment obligations in respect of, Swingline Loans under
Section 2.3., shall be pro rata in accordance with their respective
Commitments; and (g) each mandatory prepayment of principal of Bid Rate Loans
by the Borrower pursuant to Section 2.8.(b) shall be made for account of the
Lenders then owed Bid Rate Loans pro rata in accordance with the respective unpaid
principal amounts of the Bid Rate Loans then owing to each such Lender. All
payments of principal, interest, fees and other amounts in respect of the
Swingline Loans shall be for the account of the Swingline Lender only (except to
the extent any Lender shall have acquired a participating interest in any such
Swingline Loan pursuant to Section 2.3.(e), in which case such payments shall
be pro rata in accordance with such participating interests).
| |
Section 3.3. Sharing of Payments, Etc.
| |
If a Lender shall obtain payment of any principal of, or interest on, any Loan made by it to the Borrower under this Agreement, or shall obtain payment on any other Obligation owing by the Borrower or a Loan Party through the exercise of any right of set-off, banker’s lien or counterclaim or similar right or otherwise or through voluntary prepayments directly to a Lender or other payments made by the Borrower to a Lender not in accordance with the terms of this Agreement and such payment should be distributed to the Lenders pro rata in accordance with Section 3.2. or Section 10.4., as applicable, such Lender shall promptly purchase from the other Lenders participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans made by the other Lenders or other Obligations owed to such other Lenders in such | |
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amounts, and make such other adjustments from time to time as shall be equitable,
to the end that all the Lenders shall share the benefit of such payment (net of
any reasonable expenses which may be incurred by such Lender in obtaining or
preserving such benefit) pro rata in accordance with Section 3.2. or
Section 10.4. To such end, all the Lenders shall make appropriate adjustments
among themselves (by the resale of participations sold or otherwise) if such
payment is rescinded or must otherwise be restored. The Borrower agrees that any
Lender so purchasing a participation (or direct interest) in the Loans or other
Obligations owed to such other Lenders may exercise all rights of set-off,
banker’s lien, counterclaim or similar rights with respect to such
participation as fully as if such Lender were a direct holder of Loans in the
amount of such participation. Nothing contained herein shall require any Lender to
exercise any such right or shall affect the right of any Lender to exercise, and
retain the benefits of exercising, any such right with respect to any other
indebtedness or obligation of the Borrower.
| |
Section 3.4. Several Obligations.
| |
No Lender shall be
responsible for the failure of any other Lender to make a Loan or to perform any
other obligation to be made or performed by such other Lender hereunder, and the
failure of any Lender to make a Loan or to perform any other obligation to be made
or performed by it hereunder shall not relieve the obligation of any other Lender
to make any Loan or to perform any other obligation to be made or performed by
such other Lender.
| |
Section 3.5. Minimum Amounts.
| |
(a)
Borrowings and Conversions.
Each borrowing of Base Rate Loans shall be in an
aggregate minimum amount of $100,000 and integral multiples of $100,000 in excess
thereof. Each borrowing and each Conversion of LIBOR Loans shall be in an
aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in
excess of that amount.
| |
(b)
Prepayments.
Each voluntary prepayment of Revolving Loans shall be in an
aggregate minimum amount of $100,000 and integral multiples of $100,000 in excess
thereof (or, if less, the aggregate principal amount of Revolving Loans then
outstanding).
| |
(c)
Reductions of Commitments.
Each reduction of the Commitments under Section 2.14.
shall be in an aggregate minimum amount of $10,000,000 and integral multiples of
$5,000,000 in excess thereof.
| |
(d)
Letters of Credit.
The initial Stated Amount of each Letter of Credit shall be
at least $50,000.
| |
Section 3.6. Fees.
| |
(a) Facility Fees. The Borrower agrees to pay to the Agent for the account of each Lender a facility fee equal to the average daily amount of the Commitment of such Lender (whether or not utilized) times the Facility Fee for the period from and including the Agreement Date to but excluding the date such Commitment is terminated or reduced to zero or the Termination Date, such fee to be paid in arrears on (i) the last day of March, June, September | |
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and December in each year, (ii) the date of each reduction in the Commitments (but
only on the amount of the reduction) and (iii) on the Termination Date.
| |
(b)
Letter of Credit Fees.
The Borrower agrees to pay to the Agent for the account
of each Lender a letter of credit e at a rate per annum equal to the Applicable
Margin for LIBOR Loans times the daily average Stated Amount of each Letter of
Credit for the period from and including the date of issuance of such Letter of
Credit (x) through and including the date such Letter of Credit expires or is
terminated or (y) to but excluding the date such Letter of Credit is drawn in
full. The fees provided for in the immediately preceding sentence shall be
nonrefundable and payable in arrears on (i) the last day of March, June, September
and December in each year, (ii) the Termination Date, (iii) the date the
Commitments are terminated or reduced to zero and (iv) thereafter from time to
time on demand of the Agent. In addition, the Borrower shall pay to the Agent for
its own account and not the account of any Lender, a fronting fee in respect of
each Letter of Credit at the rate equal to one-eighth of one percent (0.125%) per
annum on the daily average Stated Amount of such Letter of Credit for the period
from and including the date of issuance of such Letter of Credit (A) through and
including the date such Letter of Credit expires or is terminated or (B) to but
excluding the date such Letter of Credit is drawn in full. The fee provided for in
the immediately preceding sentence shall be nonrefundable and payable upon
issuance of the applicable Letter of Credit. The Borrower shall pay directly to
the Agent from time to time on demand all commissions, charges, costs and expenses
in the amounts customarily charged by the Agent from time to time in like
circumstances with respect to the issuance of each Letter of Credit, drawings,
amendments and other transactions relating thereto.
| |
(c)
Extension Fee.
If the Borrower exercises its right to extend the
Termination Date in accordance with Section 2.12., the Borrower agrees to pay to
the Agent for the account of each Lender a fee equal to one-quarter of one percent
(0.25%) of the amount of such Lender's Commitment (whether or not utilized). Such
fee shall be due and payable in full on the date the Agent receives the Extension
Request pursuant to such Section.
| |
(d)
Administrative and Other Fees.
The Borrower agrees to pay the administrative and other
fees of the Agent as may be agreed to in writing by the Borrower and the Agent from
time to time.
| |
Section 3.7. Computations.
| |
Unless otherwise
expressly set forth herein, any accrued interest on any Loan, any Fees or any
other Obligations due hereunder shall be computed on the basis of a year of 360
days and the actual number of days elapsed.
| |
Section 3.8. Usury.
| |
In no event shall the amount of interest due or payable on the Loans or other Obligations exceed the maximum rate of interest allowed by Applicable Law and, if any such payment is paid by the Borrower or received by any Lender, then such excess sum shall be credited as a payment of principal, unless the Borrower shall notify the respective Lender in writing that the Borrower elects to have such excess sum returned to it forthwith. It is the express intent of the | |
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parties hereto that the Borrower not pay and the Lenders not receive, directly or
indirectly, in any manner whatsoever, interest in excess of that which may be
lawfully paid by the Borrower under Applicable Law.
| |
Section 3.9. Agreement Regarding Interest and Charges.
| |
The parties hereto
hereby agree and stipulate that the only charge imposed upon the Borrower for the
use of money in connection with this Agreement is and shall be the interest
specifically described in Section 2.5.(a)(i) through (iv) and in Section
2.3.(c). Notwithstanding the foregoing, the parties hereto further agree and
stipulate that all agency fees, syndication fees, facility fees, closing fees,
letter of credit fees, underwriting fees, default charges, late charges, funding
or “breakage” charges, increased cost charges, attorneys’ fees and
reimbursement for costs and expenses paid by the Agent or any Lender to third
parties or for damages incurred by the Agent or any Lender, in each case in
connection with the transactions contemplated by this Agreement and the other Loan
Documents, are charges made to compensate the Agent or any such Lender for
underwriting or administrative services and costs or losses performed or incurred,
and to be performed or incurred, by the Agent and the Lenders in connection with
this Agreement and shall under no circumstances be deemed to be charges for the
use of money. All charges other than charges for the use of money shall be fully
earned and nonrefundable when due.
| |
Section 3.10. Statements of Account.
| |
The Agent will account
to the Borrower monthly with a statement of Loans, Letters of Credit, accrued
interest and Fees, charges and payments made pursuant to this Agreement and the
other Loan Documents, and such account rendered by the Agent shall be deemed
conclusive upon Borrower absent manifest error. The failure of the Agent to
deliver such a statement of accounts shall not relieve or discharge the Borrower
from any of its obligations hereunder.
| |
Section 3.11. Defaulting Lenders.
| |
(a) Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender's right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to, or to direct, any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, | |
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(ii) to withhold or setoff and to apply in satisfaction of the defaulted
payment and any related interest, any amounts otherwise payable to such Defaulting
Lender under this Agreement or any other Loan Document and (iii) to bring an
action or suit against such Defaulting Lender in a court of competent jurisdiction
to recover the defaulted amount and any related interest. Any amounts received by
the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such
Defaulting Lender and shall be held uninvested by the Agent and either applied
against the purchase price of such Loans under the following subsection (b)
or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its
default.
| |
(b)
Purchase or Cancellation of Defaulting Lender’s
Commitment.
Any Lender who is not a Defaulting Lender shall have the
right, but not the obligation, in its sole discretion, to acquire all of a
Defaulting Lender’s Commitment. Any Lender desiring to exercise such right
shall give written notice thereof to the Agent and the Borrower no sooner than 2
Business Days and not later than 5 Business Days after such Defaulting Lender
became a Defaulting Lender. If more than one Lender exercises such right, each
such Lender shall have the right to acquire an amount of such Defaulting
Lender’s Commitment in proportion to the Commitments of the other Lenders
exercising such right. If after such 5th Business Day, the Lenders have not
elected to purchase all of the Commitment of such Defaulting Lender, then the
Borrower may, by giving written notice thereof to the Agent, such Defaulting
Lender and the other Lenders, either (i) demand that such Defaulting Lender assign
its Commitment to an Eligible Assignee subject to and in accordance with the
provisions of Section 12.5.(d) for the purchase price provided for below or (ii)
terminate the Commitment of such Defaulting Lender, whereupon such Defaulting
Lender shall no longer be a party hereto or have any rights or obligations
hereunder or under any of the other Loan Documents. No party hereto shall have any
obligation whatsoever to initiate any such replacement or to assist in finding an
Eligible Assignee. Upon any such purchase or assignment, the Defaulting Lender's
interest in the Loans and its rights hereunder (but not its liability in respect
thereof or under the Loan Documents or this Agreement to the extent the same
relate to the period prior to the effective date of the purchase) shall terminate
on the date of purchase, and the Defaulting Lender shall promptly execute all
documents reasonably requested to surrender and transfer such interest to the
purchaser or assignee thereof, including an appropriate Assignment and Acceptance
Agreement and, notwithstanding Section 12.5.(d), shall pay to the Agent an
assignment fee in the amount of $7,000. The purchase price for the Commitment of a
Defaulting Lender shall be equal to the amount of the principal balance of the
Loans outstanding and owed by the Borrower to the Defaulting Lender. Prior to
payment of such purchase price to a Defaulting Lender, the Agent shall apply
against such purchase price any amounts retained by the Agent pursuant to the last
sentence of the immediately preceding subsection (a). The Defaulting Lender shall
be entitled to receive amounts owed to it by the Borrower under the Loan Documents
which accrued prior to the date of the default by the Defaulting Lender, to the
extent the same are received by the Agent from or on behalf of the Borrower. There
shall be no recourse against any Lender or the Agent for the payment of such sums
except to the extent of the receipt of payments from any other party or in respect
of the Loans.
| |
Section 3.12. Taxes.
| |
(a) Taxes Generally. All payments by the Borrower of principal of, and interest on, the Loans and all other Obligations shall be made free and clear of and without deduction for any | |
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present or future excise, stamp or other taxes, fees, duties, levies, imposts,
charges, deductions, withholdings or other charges of any nature whatsoever
imposed by any taxing authority, but excluding (i) franchise taxes, (ii) any taxes
(other than withholding taxes) that would not be imposed but for a connection
between the Agent or a Lender and the jurisdiction imposing such taxes (other than
a connection arising solely by virtue of the activities of the Agent or such
Lender pursuant to or in respect of this Agreement or any other Loan Document),
(iii) any taxes imposed on or measured by any Lender's assets, net income,
receipts or branch profits, and (iv) any taxes, fees, duties, levies, imposts,
charges, deductions, withholdings or other charges to the extent imposed as a
result of the failure of the Agent or a Lender, as applicable, to provide and keep
current (to the extent legally able) any certificates, documents or other evidence
required to qualify for an exemption from, or reduced rate of, any such taxes
fees, duties, levies, imposts, charges, deductions, withholdings or other charges
or required by the immediately following subsection (c) to be furnished by the
Agent or such Lender, as applicable (such non-excluded items being collectively
called “Taxes”). If any withholding or deduction from any payment to be
made by the Borrower hereunder is required in respect of any Taxes pursuant to any
Applicable Law, then the Borrower will:
|
(i)
pay directly to the relevant Governmental Authority the
full amount required to be so withheld or deducted;
| |
(ii)
promptly forward to the Agent an official receipt or other
documentation satisfactory to the Agent evidencing such payment to such
Governmental Authority; and
| |
(iii)
pay to the Agent for its account or the account of the
applicable Lender, as the case may be, such additional amount or amounts as is
necessary to ensure that the net amount actually received by the Agent or such
Lender will equal the full amount that the Agent or such Lender would have
received had no such withholding or deduction been required.
|
(b)
Tax Indemnification.
If the Borrower fails to pay any Taxes when due to the
appropriate Governmental Authority or fails to remit to the Agent, for its account
or the account of the respective Lender, as the case may be, the required receipts
or other required documentary evidence, the Borrower shall indemnify the Agent and
the Lenders for any incremental Taxes, interest or penalties that may become
payable by the Agent or any Lender as a result of any such failure. For purposes
of this Section, a distribution hereunder by the Agent or any Lender to or for the
account of any Lender shall be deemed a payment by the Borrower.
| |
(c) Tax Forms. Prior to the date that any Lender or Participant organized under the laws of a jurisdiction outside the United States of America becomes a party hereto, such Person shall deliver to the Borrower and the Agent such certificates, documents or other evidence, as required by the Internal Revenue Code or Treasury Regulations issued pursuant thereto (including Internal Revenue Service Forms W-8ECI and W-8BEN, as applicable, or appropriate successor forms), properly completed, currently effective and duly executed by such Lender or Participant establishing that payments to it hereunder and under the Notes are (i) not subject to United States Federal backup withholding tax and (ii) not subject to United States Federal withholding tax under the Internal Revenue Code. Each such Lender or Participant shall (x) | |
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deliver further copies of such forms or other appropriate certifications on or
before the date that any such forms expire or become obsolete and after the
occurrence of any event requiring a change in the most recent form delivered to
the Borrower or the Agent and (y) obtain such extensions of the time for filing,
and renew such forms and certifications thereof, as may be reasonably requested by
the Borrower or the Agent. The Borrower shall not be required to pay any amount
pursuant to last sentence of subsection (a) above to any Lender or Participant
that is organized under the laws of a jurisdiction outside of the United States of
America or the Agent, if it is organized under the laws of a jurisdiction outside
of the United States of America, if such Lender, Participant or the Agent, as
applicable, fails to comply with the requirements of this subsection. If any such
Lender or Participant fails to deliver the above forms or other documentation,
then the Agent may withhold from any payments to be made to such Lender under any
of the Loan Documents such amounts as are required by the Internal Revenue Code.
If any Governmental Authority asserts that the Agent did not properly withhold or
backup withhold, as the case may be, any tax or other amount from payments made to
or for the account of any Lender, such Lender shall indemnify the Agent therefor,
including all penalties and interest, any taxes imposed by any jurisdiction on the
amounts payable to the Agent under this Section, and costs and expenses (including
all reasonable fees and disbursements of any law firm or other external counsel
and the allocated cost of internal legal services and all disbursements of
internal counsel) of the Agent. The obligation of the Lenders under this Section
shall survive the termination of the Commitments, repayment of all Obligations and
the resignation or replacement of the Agent.
| |
ARTICLE IV. YIELD PROTECTION, ETC.
| |
Section 4.1. Additional Costs; Capital Adequacy.
| |
(a) Additional Costs. The Borrower shall promptly pay to the Agent for the account of a Lender from time to time such amounts as such Lender may determine to be necessary to compensate such Lender for any costs incurred by such Lender that it determines are attributable to its making or maintaining of any LIBOR Loans or its obligation to make any LIBOR Loans hereunder, any reduction in any amount receivable by such Lender under this Agreement or any of the other Loan Documents in respect of any of such Loans or such obligation or the maintenance by such Lender of capital in respect of its Loans or its Commitment (such increases in costs and reductions in amounts receivable being herein called “Additional Costs”), resulting from any Regulatory Change that: (i) changes the basis of taxation of any amounts payable to such Lender under this Agreement or any of the other Loan Documents in respect of any of such Loans or its Commitment (other than taxes, fees, duties, levies, imposts, charges, deductions, withholdings or other charges which are excluded from the definition of Taxes pursuant to the first sentence of Section 3.12.(a)); or (ii) imposes or modifies any reserve, special deposit or similar requirements (other than Regulation D of the Board of Governors of the Federal Reserve System or other reserve requirement to the extent utilized in the determination of the Adjusted Eurodollar Rate for such Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Lender, or any commitment of such Lender (including, without limitation, the Commitment of such Lender hereunder); or (iii) has or would have the effect of reducing the rate of return on capital of such Lender to a level below that which such Lender could have achieved but for such Regulatory Change (taking into consideration such Lender’s policies with respect to capital adequacy). | |
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(b)
Lender’s Suspension of LIBOR Loans.
Without limiting the effect of the provisions of the
immediately preceding subsection (a), if, by reason of any Regulatory Change, any
Lender either (i) incurs Additional Costs based on or measured by the excess above
a specified level of the amount of a category of deposits or other liabilities of
such Lender that includes deposits by reference to which the interest rate on
LIBOR Loans is determined as provided in this Agreement or a category of
extensions of credit or other assets of such Lender that includes LIBOR Loans or
(ii) becomes subject to restrictions on the amount of such a category of
liabilities or assets that it may hold, then, if such Lender so elects by notice
to the Borrower (with a copy to the Agent), the obligation of such Lender to make
or Continue, or to Convert any other Type of Loans into, LIBOR Loans hereunder
shall be suspended until such Regulatory Change ceases to be in effect (in which
case the provisions of Section 4.6. shall apply).
| |
(c)
Additional Costs in Respect of Letters of Credit.
Without limiting the obligations of the Borrower under
the preceding subsections of this Section (but without duplication), if as a
result of any Regulatory Change or any risk-based capital guideline or other
requirement heretofore or hereafter issued by any Governmental Authority there
shall be imposed, modified or deemed applicable any tax, reserve, special deposit,
capital adequacy or similar requirement against or with respect to or measured by
reference to Letters of Credit and the result shall be to increase the cost to the
Agent of issuing (or any Lender of purchasing participations in) or maintaining
its obligation hereunder to issue (or purchase participations in) any Letter of
Credit or reduce any amount receivable by the Agent or any Lender hereunder in
respect of any Letter of Credit, then, upon demand by the Agent or such Lender,
the Borrower shall pay promptly, and in any event within 3 Business Days of
demand, to the Agent for its account or the account of such Lender, as applicable,
from time to time as specified by the Agent or a Lender, such additional amounts
as shall be sufficient to compensate the Agent or such Lender for such increased
costs or reductions in amount.
| |
(d)
Notification and Determination of Additional Costs.
Each of the Agent and each Lender agrees to notify the
Borrower of any event occurring after the Agreement Date entitling the Agent or
such Lender to compensation under any of the preceding subsections of this Section
as promptly as practicable; provided, however, the failure of the Agent or any
Lender to give such notice shall not release the Borrower from any of its
obligations hereunder (and in the case of a Lender, to the Agent). The Agent or
such Lender agrees to furnish to the Borrower (and in the case of a Lender, to the
Agent) a certificate setting forth the basis and amount of each request by the
Agent or such Lender for compensation under this Section. Absent manifest error,
determinations by the Agent or any Lender of the effect of any Regulatory Change
shall be conclusive, provided that such determinations are made on a reasonable
basis and in good faith.
| |
Section 4.2. Suspension of LIBOR Loans.
| |
Anything herein to the
contrary notwithstanding, if, on or prior to the determination of any Adjusted
Eurodollar Rate for any Interest Period:
|
(a) the Agent reasonably determines (which determination shall be conclusive) that by reason of circumstances affecting the relevant market, adequate and | |
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reasonable means do not exist for ascertaining the Adjusted Eurodollar Rate for
such Interest Period, or
| |
(b)
the Agent reasonably determines (which determination
shall be conclusive) that the Adjusted Eurodollar Rate will not adequately and
fairly reflect the cost to the Lenders of making or maintaining LIBOR Loans for
such Interest Period;
|
then the Agent shall give the Borrower and each Lender prompt notice thereof and,
so long as such condition remains in effect, the Lenders shall be under no
obligation to, and shall not, make additional LIBOR Loans, Continue LIBOR Loans or
Convert Loans into LIBOR Loans and the Borrower shall, on the last day of each
current Interest Period for each outstanding LIBOR Loan, either repay such Loan or
Convert such Loan into a Base Rate Loan.
| |
Section 4.3. Illegality.
| |
Notwithstanding any
other provision of this Agreement, if any Lender shall reasonably determine (which
determination shall be conclusive and binding) that it has become unlawful for
such Lender to honor its obligation to make or maintain LIBOR Loans hereunder,
then such Lender shall promptly notify the Borrower thereof (with a copy to the
Agent) and such Lender’s obligation to make or Continue, or to Convert Loans
of any other Type into, LIBOR Loans shall be suspended until such time as such
Lender may again make and maintain LIBOR Loans (in which case the provisions of
Section 4.6. shall be applicable).
| |
Section 4.4. Compensation.
| |
The Borrower shall
pay to the Agent for the account of each Lender, upon the request of such Lender
through the Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost or expense
that such Lender reasonably determines is attributable to:
|
(a)
any payment or prepayment (whether mandatory or optional)
of a LIBOR Loan or Bid Rate Loan, or Conversion of a LIBOR Loan, made by such
Lender for any reason (including, without limitation, acceleration) on a date
other than the last day of the Interest Period for such Loan; or
| |
(b)
any failure by the Borrower for any reason (including,
without limitation, the failure of any of the applicable conditions precedent
specified in Article V. to be satisfied) to borrow a LIBOR Loan or Bid Rate Loan
from such Lender on the requested date for such borrowing, or to Convert a Base
Rate Loan into a LIBOR Loan or Continue a LIBOR Loan on the requested date of such
Conversion or Continuation.
|
Upon the Borrower’s request, any Lender requesting compensation under this Section shall provide the Borrower with a statement setting forth the basis for requesting such compensation and the method for determining the amount thereof. Absent manifest error, determinations by any Lender in any such statement shall be conclusive, provided that such determinations are made on a reasonable basis and in good faith. | |
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Section 4.5. Affected Lenders.
| |
If (a) a Lender requests compensation pursuant to Section 3.12. or 4.1., and
the Requisite Lenders are not requesting compensation under such Sections, or (b)
the obligation of any Lender to make LIBOR Loans or to Continue, or to Convert
Base Rate Loans into, LIBOR Loans shall be suspended pursuant to
Section 4.1.(b) or 4.3. but the obligation of the Requisite Lenders shall not
have been suspended under such Sections, then, so long as there does not then
exist any Default or Event of Default, the Borrower may demand that such Lender
(the “Affected Lender”), and upon such demand the Affected Lender shall
promptly, assign its Commitment to an Eligible Assignee subject to and in
accordance with the provisions of Section 12.5.(d) for a purchase price equal
to the aggregate principal balance of Loans then owing to the Affected Lender plus
any accrued but unpaid interest thereon and accrued but unpaid fees owing to the
Affected Lender. Each of the Agent and the Affected Lender shall reasonably
cooperate in effectuating the replacement of such Affected Lender under this
Section, but at no time shall the Agent, such Affected Lender nor any other Lender
be obligated in any way whatsoever to initiate any such replacement or to assist
in finding an Eligible Assignee. The exercise by the Borrower of its rights under
this Section shall be at the Borrower’s sole cost and expenses and at no cost
or expense to the Agent, the Affected Lender or any of the other Lenders. The
terms of this Section shall not in any way limit the Borrower’s obligation to
pay to any Affected Lender compensation owing to such Affected Lender pursuant to
Section 3.12. or 4.1.
| |
Section 4.6. Treatment of Affected Loans.
| |
If the obligation of any Lender to make LIBOR Loans or to Continue, or to Convert
Base Rate Loans into, LIBOR Loans shall be suspended pursuant to Section 4.1.(b),
4.2. or 4.3., then such Lender’s LIBOR Loans shall be automatically Converted
into Base Rate Loans on the last day(s) of the then current Interest Period(s) for
LIBOR Loans (or, in the case of a Conversion required by Section 4.1.(b) or 4.3.,
on such earlier date as such Lender may specify to the Borrower with a copy to the
Agent) and, unless and until such Lender gives notice as provided below that the
circumstances specified in Section 4.1. or 4.3. that gave rise to such Conversion
no longer exist:
|
(a)
to the extent that such Lender’s
LIBOR Loans have been so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender’s LIBOR Loans shall be applied instead to its
Base Rate Loans; and
| |
(b)
all Loans that would otherwise be made or Continued by
such Lender as LIBOR Loans shall be made or Continued instead as Base Rate Loans,
and all Base Rate Loans of such Lender that would otherwise be Converted into
LIBOR Loans shall remain as Base Rate Loans.
|
If such Lender gives notice to the Borrower (with a copy to the Agent) that the circumstances specified in Section 4.1. or 4.3. that gave rise to the Conversion of such Lender’s LIBOR Loans pursuant to this Section no longer exist (which such Lender agrees to do promptly upon such circumstances ceasing to exist) at a time when LIBOR Loans made by other Lenders are outstanding, then such Lender’s Base Rate Loans shall be automatically Converted, on the first day(s) of the next succeeding Interest Period(s) for such outstanding LIBOR Loans, to the extent | |
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necessary so that, after giving effect thereto, all Loans held by the Lenders
holding LIBOR Loans and by such Lender are held pro rata (as to principal amounts,
Types and Interest Periods) in accordance with their respective Commitments.
| |
Section 4.7. Change of Lending Office.
| |
Each Lender agrees
that it will use reasonable efforts to designate an alternate Lending Office with
respect to any of its Loans affected by the matters or circumstances described in
Sections 3.12., 4.1. or 4.3. to reduce the liability of the Borrower or avoid the
results provided thereunder, so long as such designation is not disadvantageous to
such Lender as determined by such Lender in its sole discretion, except that such
Lender shall have no obligation to designate a Lending Office located in the
United States of America.
| |
Section 4.8. Assumptions Concerning Funding of LIBOR Loans.
| |
Calculation of all
amounts payable to a Lender under this Article IV. shall be made as though
such Lender had actually funded LIBOR Loans through the purchase of deposits in
the relevant market bearing interest at the rate applicable to such LIBOR Loans in
an amount equal to the amount of the LIBOR Loans and having a maturity comparable
to the relevant Interest Period; provided, however, that each Lender may fund each
of its LIBOR Loans in any manner it sees fit and the foregoing assumption shall be
used only for calculation of amounts payable under this Article IV.
| |
ARTICLE V. CONDITIONS PRECEDENT
| |
Section 5.1. Initial Conditions Precedent.
| |
The obligation of the
Lenders to effect or permit the occurrence of the first Credit Event hereunder,
whether as the making of a Loan or the issuance of a Letter of Credit, is subject
to the following conditions precedent:
| |
(a)
The Agent shall have
received each of the following, in form and substance satisfactory to the Agent:
|
(i)
Counterparts of this Agreement executed by each of the
parties hereto;
| |
(ii)
Revolving Notes and Bid Rate Notes executed by the
Borrower, payable to each Lender (or Designated Lender, if applicable) and
complying with the applicable provisions of Section 2.11., and the Swingline Note
executed by the Borrower;
| |
(iii)
The Guaranty executed by each Guarantor existing as of
the Effective Date;
| |
(iv) The certificate or articles of incorporation of the Borrower certified by the Secretary or Assistant Secretary of the Borrower; | |
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(v)
A good standing certificate with respect to the Borrower
issued as of a recent date by the Secretary of State of the state of its
incorporation and certificates of qualification to transact business or other
comparable certificates issued by the Secretary of State (and any state department
of taxation, as applicable) of each state in which the Borrower is required to be
so qualified and where the failure to be so qualified could reasonably be expected
to have a Material Adverse Effect;
| |
(vi)
A certificate of incumbency signed by the Secretary or
Assistant Secretary of the Borrower with respect to each of the officers of the
Borrower authorized to execute and deliver the Loan Documents to which the
Borrower is a party and the officers of the Borrower then authorized to deliver
Notices of Borrowing, Notices of Swingline Borrowings, Bid Rate Quote Requests,
Bid Rate Quote Acceptances, Notices of Continuation and Notices of Conversion and
to request the issuance of Letters of Credit;
| |
(vii)
Copies, certified by the Secretary or Assistant Secretary
of the Borrower, of (i) the bylaws of the Borrower and (ii) all corporate (or
comparable) action taken by the Borrower to authorize the execution, delivery and
performance of the Loan Documents to which the Borrower is a party;
| |
(viii)
The articles of incorporation, articles of organization,
certificate of limited partnership or other comparable organizational instrument
(if any) of each Guarantor certified by the Secretary or Assistant Secretary (or
other individual performing similar functions) of such Guarantor;
| |
(ix)
A certificate of good standing or certificate of similar
meaning with respect to each Guarantor issued as of a recent date by the Secretary
of State of the state of formation of each such Guarantor and certificates of
qualification to transact business or other comparable certificates issued by each
Secretary of State (and any state department of taxation, as applicable) of each
state in which such Guarantor is required to be so qualified and where the failure
to be so qualified could reasonably be expected to have a Material Adverse Effect;
| |
(x)
A certificate of incumbency signed by the Secretary or
Assistant Secretary (or other individual performing similar functions) of each
Guarantor with respect to each of the officers of such Guarantor authorized to
execute and deliver the Loan Documents to which such Guarantor is a party;
| |
(xi) Copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Guarantor of (i) the by-laws of such Guarantor, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Guarantor to authorize the execution, delivery and performance of the Loan Documents to which it is a party; | |
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(xii)
An opinion of counsel to the Loan Parties, addressed to
the Agent, the Lenders and the Swingline Lender, addressing the matters set forth
in Exhibit M;
| |
(xiii)
A copy of each of the documents, instruments and
agreements evidencing any of the Debt described on Schedule 6.1.(g), in each case
certified as true, correct and complete by the chief executive officer or chief
financial officer of the Borrower;
| |
(xiv)
The Fees then due and payable under Section 3.6., and any
other Fees payable to the Agent, the Titled Agents and the Lenders on or prior to
the Effective Date;
| |
(xv)
A Compliance Certificate calculated as of December 31,
2002; and
| |
(xvi)
Such other documents, agreements and instruments as the
Agent on behalf of the Lenders may reasonably request; and
|
(b)
In
the good faith judgment of the Agent and the Lenders:
|
(i)
There shall not have occurred or become known to the
Agent or any of the Lenders any event, condition, situation or status since the
date of the information contained in the financial and business projections,
budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries
delivered to the Agent and the Lenders prior to the Agreement Date that has had or
could reasonably be expected to result in a Material Adverse Effect;
| |
(ii)
No litigation, action, suit, investigation or other
arbitral, administrative or judicial proceeding shall be pending or threatened
which could reasonably be expected to (1) result in a Material Adverse Effect or
(2) restrain or enjoin, impose materially burdensome conditions on, or otherwise
materially and adversely affect the ability of the Borrower or any other Loan
Party to fulfill its obligations under the Loan Documents to which it is a party;
| |
(iii)
The Borrower and its Subsidiaries shall have received all
approvals, consents and waivers, and shall have made or given all necessary
filings and notices as shall be required to consummate the transactions
contemplated hereby without the occurrence of any default under, conflict with or
violation of (1) any Applicable Law or (2) any agreement, document or instrument
to which the Borrower or any other Loan Party is a party or by which any of them
or their respective properties is bound, except for such approvals, consents,
waivers, filings and notices the receipt, making or giving of which would not
reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or
enjoin, impose materially burdensome conditions on, or otherwise materially and
adversely affect the ability of the Borrower or any other Loan Party to fulfill
its obligations under the Loan Documents to which it is a party; and
| |
(iv) There shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents. | |
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Section 5.2. Conditions Precedent to All Loans and
Letters of Credit.
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The obligations of
the Lenders to make any Loans, and of the Agent to issue Letters of Credit, are
all subject to the further condition precedent that: (a) no Default or Event of
Default shall exist as of the date of the making of such Loan or date of issuance
of such Letter of Credit or would exist immediately after giving effect thereto;
and (b) the representations and warranties made or deemed made by the Borrower and
each other Loan Party in the Loan Documents to which any of them is a party, shall
be true and correct on and as of the date of the making of such Loan or date of
issuance of such Letter of Credit with the same force and effect as if made on and
as of such date except to the extent that such representations and warranties
expressly relate solely to an earlier date (in which case such representations and
warranties shall have been true and accurate on and as of such earlier date). Each
Credit Event shall constitute a certification by the Borrower to the effect set
forth in the preceding sentence (both as of the date of the giving of notice
relating to such Credit Event and, unless the Borrower otherwise notifies the
Agent prior to the date of such Credit Event, as of the date of the occurrence of
such Credit Event). In addition, if such Credit Event is the making of a Loan or
the issuance of a Letter of Credit, the Borrower shall be deemed to have
represented to the Agent and the Lenders at the time such Loan is made or Letter
of Credit issued that all conditions to the occurrence of such Credit Event
contained in Article V. have been satisfied.
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Section 5.3. Conditions as Covenants.
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If the Lenders make
any Loans, or the Agent issues a Letter of Credit, prior to the satisfaction of
all conditions precedent set forth in Sections 5.1. and 5.2., the Borrower shall
nevertheless cause such condition or conditions to be satisfied within 5 Business
Days after the date of the making of such Loans or the issuance of such Letter of
Credit. Unless set forth in writing to the contrary, the making of its initial
Loan by a Lender shall constitute a certification by such Lender to the Agent and
the other Lenders that the Borrower has satisfied the conditions precedent for
initial Loans set forth in Sections 5.1. and 5.2.
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ARTICLE VI. REPRESENTATIONS AND WARRANTIES
| |
Section 6.1. Representations and Warranties.
| |
In order to induce the
Agent and each Lender to enter into this Agreement and to make Loans and issue
Letters of Credit, the Borrower represents and warrants to the Agent and each
Lender as follows:
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(a) Organization; Power; Qualification. Each of the Borrower, each other Loan Party and each other Subsidiary is a corporation, partnership or other legal entity, duly organized or formed, validly existing and in good standing under the jurisdiction of its incorporation or formation, has the power and authority to own or lease its respective properties and to carry on its respective business as now being and hereafter proposed to be conducted and is duly qualified and is in good standing as a foreign corporation, partnership or other legal entity, and authorized to do business, in each jurisdiction in which the character of its properties or the nature of its | |
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business requires such qualification or authorization and where the failure to be
so qualified or authorized could reasonably be expected to have, in each instance,
a Material Adverse Effect.
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(b)
Ownership Structure.
As of the Agreement Date Part I of Schedule 6.1.(b) is a
complete and correct list of all Subsidiaries of the Borrower setting forth for
each such Subsidiary, (i) the jurisdiction of organization of such Subsidiary,
(ii) the type of legal entity of such Subsidiary, (iii) each Person holding any
Equity Interests in such Subsidiary, (iv) the nature of the Equity Interests held
by each such Person, (v) the percentage of ownership of such Subsidiary
represented by such Equity Interests and (vi) whether such Subsidiary is an
Excluded Subsidiary. Except as disclosed in such Schedule, as of the Agreement
Date (i) each of the Borrower and its Subsidiaries owns, free and clear of all
Liens, and has the unencumbered right to vote, all outstanding Equity Interests in
each Person shown to be held by it on such Schedule, (ii) all of the issued and
outstanding capital stock of each such Person organized as a corporation is
validly issued, fully paid and nonassessable and (iii) there are no outstanding
subscriptions, options, warrants, commitments, preemptive rights or agreements of
any kind (including, without limitation, any stockholders’ or voting trust
agreements) for the issuance, sale, registration or voting of, or outstanding
securities convertible into, any additional shares of capital stock of any class,
or partnership or other ownership interests of any type in, any such Person. As of
the Agreement Date Part II of Schedule 6.1.(b) correctly sets forth all
Unconsolidated Affiliates of the Borrower, including the correct legal name of
such Person, the type of legal entity which each such Person is, and all Equity
Interests in such Person held directly or indirectly by the Borrower.
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(c)
Authorization of Agreement, Etc.
The Borrower has the right and power, and has taken all
necessary action to authorize it, to borrow and obtain other extensions of credit
hereunder. The Borrower and each other Loan Party has the right and power, and has
taken all necessary action to authorize it, to execute, deliver and perform each
of the Loan Documents to which it is a party in accordance with their respective
terms and to consummate the transactions contemplated hereby and thereby. The Loan
Documents to which the Borrower or any other Loan Party is a party have been duly
executed and delivered by the duly authorized officers of such Person and each is
a legal, valid and binding obligation of such Person enforceable against such
Person in accordance with its respective terms except as the same may be limited
by bankruptcy, insolvency, and other similar laws affecting the rights of
creditors generally and the availability of equitable remedies for the enforcement
of certain obligations (other than the payment of principal) contained herein or
therein may be limited by equitable principles generally.
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(d) Compliance of Loan Documents with Laws, Etc. The execution, delivery and performance of this Agreement, the Notes and the other Loan Documents to which the Borrower or any other Loan Party is a party in accordance with their respective terms and the borrowings and other extensions of credit hereunder do not and will not, by the passage of time, the giving of notice, or both: (i) require any Governmental Approval or violate any Applicable Law (including all Environmental Laws) relating to the Borrower or any other Loan Party; (ii) conflict with, result in a breach of or constitute a default under the organizational documents of the Borrower or any other Loan Party, or any indenture, agreement or other instrument to which the Borrower or any other Loan Party is a party or by which it or any of its respective properties may | |
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be bound; or (iii) result in or require the creation or imposition of any
Lien upon or with respect to any property now owned or hereafter acquired by the
Borrower or any other Loan Party.
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(e)
Compliance with Law; Governmental Approvals.
The Borrower, each Subsidiary and each other Loan Party is
in compliance with each Governmental Approval applicable to it and in compliance
with all other Applicable Laws (including without limitation, Environmental Laws)
relating to the Borrower, a Subsidiary or such other Loan Party except for
noncompliances which, and Governmental Approvals the failure to possess which,
would not, individually or in the aggregate, cause a Default or Event of Default
or have a Material Adverse Effect.
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(f)
Title to Properties.
As of the Agreement Date, Schedule 6.1.(f) sets forth all
of the real property owned or leased by the Borrower, each other Loan Party and
each other Subsidiary. Each such Person has good, marketable and legal title to,
or a valid leasehold interest in, its respective assets.
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(g)
Existing Debt.
Schedule 6.1.(g) is, as of the Agreement Date, a complete
and correct listing of all Debt of the Borrower and its Subsidiaries, including
without limitation, Guarantees of the Borrower and its Subsidiaries, and
indicating whether such Debt is Secured Debt or Unsecured Debt. The Borrower and
its Subsidiaries have performed and are in material compliance with all of the
terms of such Debt and all instruments and agreements relating thereto.
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(h)
Litigation.
Except as set forth on Schedule 6.1.(h), there are no
actions, suits, investigations or proceedings pending (nor, to the knowledge of
the Borrower, are there any actions, suits or proceedings threatened, nor to the
knowledge of the Borrower is there any basis therefor) against or in any other way
relating adversely to or affecting the Borrower, any Subsidiary or any other Loan
Party or any of its respective property in any court or before any arbitrator of
any kind or before or by any other Governmental Authority which could reasonably
be expected to have a Material Adverse Effect. There are no strikes, slow downs,
work stoppages or walkouts or other labor disputes in progress or threatened
relating to the Borrower, any Subsidiary or any other Loan Party which could
reasonably be expected to have a Material Adverse Effect.
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(i) Taxes. All federal, state and other tax returns of the Borrower, any Subsidiary or any other Loan Party required by Applicable Law to be filed have been duly filed, and all federal, state and other taxes, assessments and other governmental charges or levies upon the Borrower, any Subsidiary and each other Loan Party and its respective properties, income, profits and assets which are due and payable have been paid, except any such nonpayment which is at the time permitted under Section 7.5. As of the Agreement Date, none of the United States income tax returns of the Borrower, its Subsidiaries or any other Loan Party is under audit. All charges, accruals and reserves on the books of the Borrower and each of its Subsidiaries and each other Loan Party in respect of any taxes or other governmental charges are in accordance with GAAP. | |
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(j)
Financial Statements.
The Borrower has furnished to each Lender copies of the
audited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries for the fiscal year ending December 31, 2002, and the related audited
consolidated statements of earnings, cash flows and stockholders' equity for the
fiscal year ending on such dates, with the opinion thereon of KPMG LLP. Such
financial statements (including in each case related schedules and notes) are
complete and correct and present fairly, in accordance with GAAP, the consolidated
financial position of the Borrower and its consolidated Subsidiaries as at their
respective dates and the results of operations and the cash flow for such periods.
Neither the Borrower nor any of its Subsidiaries has on the Agreement Date any
material contingent liabilities, liabilities, liabilities for taxes, unusual or
long-term commitments or unrealized or forward anticipated losses from any
unfavorable commitments, except as referred to or reflected or provided for in
said financial statements.
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(k)
No Material Adverse Change.
Since December 31, 2002, there has been no material adverse
change in the business, assets, liabilities, condition (financial or otherwise),
results of operations or business prospects of the Borrower and its consolidated
Subsidiaries taken as a whole. Each of the Borrower and the other Loan Parties is
Solvent and the Borrower and its Subsidiaries, taken as a whole, are Solvent.
| |
(l)
ERISA.
Each member of the ERISA Group is in compliance with its
obligations under the minimum funding standards of ERISA and the Internal Revenue
Code with respect to each Plan and is in compliance with the presently applicable
provisions of ERISA and the Internal Revenue Code with respect to each Plan,
except in each case for noncompliances which could not reasonably be expected to
have a Material Adverse Effect. As of the Agreement Date, no member of the ERISA
Group has (i) sought a waiver of the minimum funding standard under Section 412 of
the Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could result in the imposition of a Lien or the posting of a
bond or other security under ERISA or the Internal Revenue Code or (iii) incurred
any liability under Title IV of ERISA other than a liability to the PBGC for
premiums under Section 4007 of ERISA.
| |
(m)
Not Plan Assets; No Prohibited Transaction.
None of the assets of the Borrower, any Subsidiary or any
other Loan Party constitute "plan assets" within the meaning of ERISA, the
Internal Revenue Code and the respective regulations promulgated thereunder. The
execution, delivery and performance of this Agreement and the other Loan
Documents, and the borrowing and repayment of amounts hereunder, do not and will
not constitute "prohibited transactions" under ERISA or the Internal Revenue Code.
| |
(n) Absence of Material Defaults. Neither the Borrower, any Subsidiary nor any other Loan Party is in default under its certificate or articles of incorporation, bylaws, partnership agreement or other similar organizational documents, and no event has occurred, which has not been remedied, cured or waived: (i) which constitutes a Default or an Event of Default; or (ii) which constitutes, or which with the passage of time, the giving of notice, a determination of materiality, the satisfaction of any condition, or any combination of the foregoing, would constitute, a default or event of default by the Borrower, any Subsidiary or any other Loan Party | |
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under any agreement (other than this Agreement) or judgment, decree or order to
which the Borrower or any Subsidiary or other Loan Party is a party or by which
the Borrower or any Subsidiary or other Loan Party or any of their respective
properties may be bound where such default or event of default could, individually
or in the aggregate, have a Material Adverse Effect.
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(o)
Environmental Laws.
Each of the Borrower, its Subsidiaries and the other Loan
Parties has obtained all Governmental Approvals which are required under
Environmental Laws and is in compliance with all terms and conditions of such
Governmental Approvals which the failure to obtain or to comply with could
reasonably be expected to have a Material Adverse Effect. Except for any of the
following matters that could not be reasonably expected to have a Material Adverse
Effect, (i) the Borrower is not aware of, and has not received notice of, any
past, present, or future events, conditions, circumstances, activities, practices,
incidents, actions, or plans which, with respect to the Borrower, its Subsidiaries
and each other Loan Party, may interfere with or prevent compliance or continued
compliance with Environmental Laws, or may give rise to any common-law or legal
liability, or otherwise form the basis of any claim, action, demand, suit,
proceeding, hearing, study, or investigation, based on or related to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling or the emission, discharge, release or threatened release
into the environment, of any pollutant, contaminant, chemical, or industrial,
toxic, or other Hazardous Material, and (ii) there is no civil, criminal, or
administrative action, suit, demand, claim, hearing, notice, or demand letter,
notice of violation, investigation, or proceeding pending or, to the Borrower's
knowledge after due inquiry, threatened, against the Borrower, its Subsidiaries
and each other Loan Party relating in any way to Environmental Laws.
| |
(p)
Investment Company; Public Utility Holding Company.
Neither the Borrower nor any Subsidiary nor any other
Loan Party is (i) an “investment company” or a company
“controlled” by an “investment company” within the meaning of
the Investment Company Act of 1940, as amended, (ii) a “holding company”
or a “subsidiary company” of a “holding company”, or an
“affiliate” of a “holding company” or of a “subsidiary
company” of a “holding company”, within the meaning of the Public
Utility Holding Company Act of 1935, as amended, or (iii) subject to any other
Applicable Law which purports to regulate or restrict its ability to borrow money
or to consummate the transactions contemplated by this Agreement or to perform its
obligations under any Loan Document to which it is a party.
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(q)
Margin Stock.
Neither the Borrower, any Subsidiary nor any other Loan
Party is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose, whether immediate, incidental or
ultimate, of buying or carrying “margin stock” within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System.
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(r) Affiliate Transactions. Except as permitted by Section 9.10., neither the Borrower, any Subsidiary nor any other Loan Party is a party to or bound by any agreement or arrangement (whether oral or written) to which any Affiliate of the Borrower, any Subsidiary or any other Loan Party is a party. | |
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(s)
Intellectual Property.
Each of the Borrower, each other Loan Party and each
other Subsidiary owns or has the right to use, under valid license agreements or
otherwise, all material patents, licenses, franchises, trademarks, trademark
rights, trade names, trade name rights, trade secrets and copyrights
(collectively, “Intellectual Property”) necessary to the conduct of its
businesses as now conducted and as contemplated by the Loan Documents, without
known conflict with any patent, license, franchise, trademark, trade secret, trade
name, copyright, or other proprietary right of any other Person. The Borrower,
each other Loan Party and each other Subsidiary have taken all such steps as they
reasonably deem necessary to protect their respective rights under and with
respect to such Intellectual Property. No material claim has been asserted by any
Person with respect to the use of any Intellectual Property by the Borrower, any
other Loan Party or any other Subsidiary, or challenging or questioning the
validity or effectiveness of any Intellectual Property. The use of such
Intellectual Property by the Borrower, its Subsidiaries and the other Loan
Parties, does not infringe on the rights of any Person, subject to such claims and
infringements as do not, in the aggregate, give rise to any liabilities on the
part of the Borrower, any other Loan Party or any other Subsidiary that could
reasonably be expected to have a Material Adverse Effect.
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(t)
Business.
As of the Agreement Date, the Borrower and its
Subsidiaries are engaged in the business of acquiring, owning, financing, leasing,
managing, developing and selling retail, office and industrial real property
generally leased to credit-worthy tenants under net leases, together with other
business activities incidental thereto.
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(u)
Broker’s Fees.
No broker’s or finder’s fee, commission or
similar compensation will be payable with respect to the transactions contemplated
hereby. No other similar fees or commissions will be payable by any Loan Party for
any other services rendered to the Borrower or any of its Subsidiaries ancillary
to the transactions contemplated hereby.
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(v) Accuracy and Completeness of Information. No written information, report or other papers or data (excluding financial projections and other forward looking statements) furnished to the Agent or any Lender by, on behalf of, or at the direction of, the Borrower, any Subsidiary or any other Loan Party in connection with or relating in any way to this Agreement, contained any untrue statement of a fact material to the creditworthiness of the Borrower, any Subsidiary or any other Loan Party or omitted to state a material fact necessary in order to make such statements contained therein, in light of the circumstances under which they were made, not misleading. All financial statements furnished to the Agent or any Lender by, on behalf of, or at the direction of, the Borrower, any Subsidiary or any other Loan Party in connection with or relating in any way to this Agreement, present fairly, in accordance with GAAP consistently applied throughout the periods involved, the financial position of the Persons involved as at the date thereof and the results of operations for such periods. All financial projections and other forward looking statements prepared by or on behalf of the Borrower, any Subsidiary or any other Loan Party that have been or may hereafter be made available to the Agent or any Lender were or will be prepared in good faith based on reasonable assumptions. As of the Effective Date, no fact is known to the Borrower which has had, or may in the future have (so far as the Borrower can reasonably foresee), a Material Adverse Effect which has not been set forth in the financial statements referred to in Section 6.1.(j) or in such information, reports or other papers or data or otherwise disclosed in writing to the Agent and the Lenders. | |
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(w)
REIT Status.
The Borrower qualifies as a REIT and is in compliance with
all requirements and conditions imposed under the Internal Revenue Code to allow
the Borrower to maintain its status as a REIT.
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(x)
Unencumbered Assets.
As of the Agreement Date, Schedule 6.1.(x) is a correct
and complete list of all Unencumbered Assets. Each of the assets included by the
Borrower in calculations of Unencumbered Asset Value satisfies all of the
requirements contained in the definition of “Unencumbered Asset”.
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(y)
Tax Shelter Regulations.
None of the Borrower, any other Loan Party nor any other
Subsidiary intends to treat the Loans, the Letters of Credit or any of the
transactions contemplated by this Agreement and the other Loan Documents as being
a “reportable transaction” (within the meaning of Treasury Regulation
Section 1.6011-4). If the Borrower, any other Loan Party or any other Subsidiary
determines to take any action inconsistent with such intention, the Borrower will
promptly notify the Agent thereof. If the Borrower so notifies the Agent, (i) the
Borrower acknowledges that one or more of the Lenders may treat its Loans or
interest in Letters of Credit as part of a transaction that is subject to Treasury
Regulation Section 301.6112-1, and such Lender or Lenders, as applicable, will
maintain the lists and other records all as required by such Treasury Regulation
and (ii) the Borrower shall, promptly after giving such notice, deliver to the
Agent a duly completed copy of IRS Form 8886 or any successor form.
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Section 6.2
Survival of Representations and Warranties, Etc.
| |
All statements contained in any certificate, financial statement or other instrument delivered by or on behalf of the Borrower, any Subsidiary or any other Loan Party to the Agent or any Lender pursuant to or in connection with this Agreement or any of the other Loan Documents (including, but not limited to, any such statement made in or in connection with any amendment thereto or any statement contained in any certificate, financial statement or other instrument delivered by or on behalf of the Borrower prior to the Agreement Date and delivered to the Agent or any Lender in connection with closing the transactions contemplated hereby) shall constitute representations and warranties made by the Borrower in favor of the Agent or any of the Lenders under this Agreement. All representations and warranties made under this Agreement and the other Loan Documents shall be deemed to be made at and as of the Agreement Date, the Effective Date, the date on which any extension of the Termination Date is effectuated pursuant to Section 2.12. and the date of the occurrence of any Credit Event, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and accurate on and as of such earlier date) and except for changes in factual circumstances specifically permitted hereunder. All such representations and warranties shall survive the effectiveness of this Agreement, the execution and delivery of the Loan Documents and the making of the Loans and the issuance of the Letters of Credit. | |
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ARTICLE VII. AFFIRMATIVE COVENANTS
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For so long as this
Agreement is in effect, unless the Requisite Lenders (or, if required pursuant to
Section 12.6., all of the Lenders) shall otherwise consent in the manner provided
for in Section 12.6., the Borrower shall comply with the following covenants:
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Section 7.1. Preservation of Existence and Similar Matters.
| |
Except as otherwise
permitted under Section 9.7., the Borrower shall, and shall cause each Subsidiary
and each other Loan Party to, preserve and maintain its respective existence,
rights, franchises, licenses and privileges in the jurisdiction of its
incorporation or formation and qualify and remain 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 and where the
failure to be so authorized and qualified could reasonably be expected to have a
Material Adverse Effect.
| |
Section 7.2. Compliance with Applicable Law.
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The Borrower shall,
and shall cause each Subsidiary and each other Loan Party to, comply with all
Applicable Laws, including the obtaining of all Governmental Approvals, the
failure with which to comply could reasonably be expected to have a Material
Adverse Effect.
| |
Section 7.3. Maintenance of Property.
| |
In addition to the
requirements of any of the other Loan Documents, the Borrower shall, and shall
cause each Subsidiary and other Loan Party to, (a) protect and preserve all of its
material properties, including, but not limited to, all Intellectual Property, and
maintain in good repair, working order and condition all tangible properties,
ordinary wear and tear excepted, and (b) make or cause to be made all needed and
appropriate repairs, renewals, replacements and additions to such properties, so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times.
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Section 7.4. Insurance.
| |
In addition to the requirements of any of the other Loan Documents, the Borrower shall, and shall cause each Subsidiary and other Loan Party to, maintain insurance (on a full replacement cost basis) with financially sound and reputable insurance companies against such risks and in such amounts as is customarily maintained by Persons engaged in similar businesses or as may be required by Applicable Law, and from time to time deliver to the Agent upon its request a detailed list, together with copies of all policies of the insurance then in effect if requested, 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. Subject to the requirements of any applicable lease, the Borrower shall, and shall cause its Subsidiaries to, apply any proceeds from such insurance coverage with respect to any Unencumbered Asset to either (i) repair or rebuild the property for which such proceeds are being received, (ii) acquire a substantially equivalent property or (iii) repay Obligations. | |
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Section 7.5. Payment of Taxes and Claims.
| |
The Borrower shall,
and shall cause each Subsidiary and other Loan Party to, pay and discharge when
due (a) all taxes, assessments and governmental charges or levies imposed upon it
or upon its income or profits or upon any properties belonging to it, and (b) all
lawful claims of materialmen, mechanics, carriers, warehousemen and landlords for
labor, materials, supplies and rentals which, if unpaid, might become a Lien on
any properties of such Person; provided, however, that this Section shall not
require the payment or discharge of any such tax, assessment, charge, levy or
claim which is being contested in good faith by appropriate proceedings which
operate to suspend the collection thereof and for which adequate reserves have
been established on the books of the Borrower, such Subsidiary or such other Loan
Party, as applicable, in accordance with GAAP.
| |
Section 7.6. Visits and Inspections.
| |
The Borrower shall,
and shall cause each Subsidiary and other Loan Party to, permit representatives or
agents of any Lender or the Agent, from time to time after reasonable prior notice
if no Event of Default shall be in existence, as often as may be reasonably
requested, but only during normal business hours and at all times subject to the
rights of tenants under their respective leases, to: (a) visit and inspect all
properties of the Borrower or such Subsidiary or other Loan Party to the extent
any such right to visit or inspect is within the control of such Person; (b)
inspect and make extracts from their respective books and records, including but
not limited to management letters prepared by independent accountants; and (c)
discuss with its officers and employees, and its independent accountants, its
business, properties, condition (financial or otherwise), results of operations
and performance. If requested by the Agent, the Borrower shall execute an
authorization letter addressed to the Borrower’s accountants authorizing the
Agent to discuss the financial affairs of the Borrower and any Subsidiary or any
other Loan Party with its accountants; provided, however, so long as
no Default or Event of Default exists, the Borrower shall have the right to have a
representative present during any such discussions. The Borrower shall reimburse
the Agent and, if an Event of Default exists, the Lenders, for their costs and
expenses incurred in connection with the exercise of their rights under this
Section.
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Section 7.7. Use of Proceeds; Letters of Credit.
| |
The Borrower shall use the proceeds of the Loans and the Letters of Credit for general corporate purposes only. The Borrower and the Guarantors shall not, and shall not permit any other Loan Party or any of their respective Subsidiaries to, use any part of such proceeds or any Letter of Credit to purchase or carry, or to reduce or retire or refinance any credit incurred to purchase or carry, any margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System) or to extend credit to others for the purpose of purchasing or carrying any such margin stock; provided, however, the Borrower may use proceeds of the Loans and Letters of Credit to purchase the Borrower’s common stock so long as such use will not result in any of the Loans, Letters of Credit or other Obligations being considered to be “purpose credit” directly or indirectly secured by margin stock within the meaning of Regulation U or Regulation X of the Board of Governors of the Federal Reserve System. | |
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Section 7.8. Environmental Matters.
| |
The Borrower shall,
and shall cause all of its Subsidiaries and the other Loan Parties to, comply with
all Environmental Laws the failure with which to comply could reasonably be
expected to have a Material Adverse Effect. If the Borrower, any Subsidiary or any
other Loan Party shall (a) receive notice that any violation of any Environmental
Law may have been committed or is about to be committed by such Person, (b)
receive notice that any administrative or judicial complaint or order has been
filed or is about to be filed against the Borrower, any Subsidiary or any other
Loan Party alleging violations of any Environmental Law or requiring the Borrower,
any Subsidiary or any other Loan Party to take any action in connection with the
release of Hazardous Materials or (c) receive any notice from a Governmental
Authority or private party alleging that the Borrower, any Subsidiary or any other
Loan Party may be liable or responsible for costs associated with a response to or
cleanup of a release of Hazardous Materials or any damages caused thereby, and
such notices, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect, the Borrower shall provide the Agent and each
Lender with a copy of such notice promptly, and in any event within 10 Business
Days, after the receipt thereof by the Borrower, any Subsidiary or any other Loan
Party. The Borrower shall, and shall cause its Subsidiaries and the other Loan
Parties to, take promptly all actions necessary to prevent the imposition of any
Liens on any of their respective properties arising out of or related to any
Environmental Laws.
| |
Section 7.9. Books and Records.
| |
The Borrower shall,
and shall cause each of its Subsidiaries and the other Loan Parties to, maintain
books and records pertaining to its respective business operations in such detail,
form and scope as is consistent with good business practice and in accordance with
GAAP.
| |
Section 7.10. Further Assurances.
| |
The Borrower shall,
at the Borrower’s cost and expense and upon request of the Agent, execute and
deliver or cause to be executed and delivered, to the Agent such further
instruments, documents and certificates, and do and cause to be done such further
acts that may be reasonably necessary or advisable in the reasonable opinion of
the Agent to carry out more effectively the provisions and purposes of this
Agreement and the other Loan Documents.
| |
Section 7.11. New Subsidiaries/Guarantors.
| |
(a) Requirement to Become Guarantor. Within 10 Business Days of any Person (other than an Excluded Subsidiary) becoming a Subsidiary after the Effective Date, the Borrower shall deliver to the Agent each of the following items, each in form and substance satisfactory to the Agent: (i) an Accession Agreement executed by such Subsidiary and (ii) the items that would have been delivered under Sections 5.1.(a)(viii) through (xiii) and (xvi) if such Subsidiary had been one on the Effective Date; provided, however, promptly (and in any event within 10 Business Days) upon any Subsidiary ceasing to qualify as an Excluded Subsidiary, such Subsidiary shall comply with the provisions of this Section. Upon the request of any | |
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Lender, the Agent shall send to such Lender a copy of each of the foregoing items
received by the Agent with respect to a Subsidiary.
| |
(b)
Release of a Guarantor.
The Borrower may request in writing that the Agent
release, and upon receipt of such request the Agent shall release, a Guarantor
from the Guaranty so long as: (i) such Guarantor meets, or will meet
simultaneously with its release from the Guaranty, all of the provisions of the
definition of the term “Excluded Subsidiary” and none of the
Guarantor’s Properties or other assets are to be taken into account when
calculating Unencumbered Asset Value; (ii) such Guarantor is not otherwise
required to be a party to the Guaranty under the immediately preceding subsection
(a); (iii) no Default or Event of Default shall then be in existence or would
occur as a result of such release, including without limitation, a Default or
Event of Default resulting from a violation of any of the covenants contained in
Section 9.1.; and (iv) the Agent shall have received such written request at least
10 Business Days prior to the requested date of release. Delivery by the Borrower
to the Agent of any such request shall constitute a representation by the Borrower
that the matters set forth in the preceding sentence (both as of the date of the
giving of such request and as of the date of the effectiveness of such request)
are true and correct with respect to such request.
| |
Section 7.12. REIT Status.
| |
The Borrower shall at
all times maintain its status as a REIT.
| |
Section 7.13. Exchange Listing.
| |
The Borrower shall
maintain at least one class of common shares of the Borrower having trading
privileges on the New York Stock Exchange or the American Stock Exchange or which
is the subject of price quotations in the over-the-counter market as reported by
the National Association of Securities Dealers Automated Quotation System.
| |
ARTICLE VIII. INFORMATION
| |
For so long as this
Agreement is in effect, unless the Requisite Lenders (or, if required pursuant to
Section 12.6., all of the Lenders) shall otherwise consent in the manner set forth
in Section 12.6., the Borrower shall furnish to each Lender (or to the Agent if so
provided below) at its Lending Office:
| |
Section 8.1. Quarterly Financial Statements.
| |
As soon as available and in any event within 45 days after the close of each of the first, second and third fiscal quarters of the Borrower, the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such period and the related unaudited consolidated statements of earnings, and cash flows of the Borrower and its Subsidiaries for such period, setting forth in each case in comparative form the figures as of the end of and for the corresponding periods of the previous fiscal year, all of which shall be certified by the chief executive officer or chief financial officer of the Borrower, in his or her opinion, to present fairly, in accordance with GAAP and in all material respects, the consolidated financial position | |
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of the Borrower and its Subsidiaries as at the date thereof and the results of
operations for such period (subject to normal year-end audit adjustments).
| |
Section 8.2. Year-End Statements.
| |
Within 90 days after
the end of each fiscal year of the Borrower, the audited consolidated balance
sheet of the Borrower and its Subsidiaries as at the end of such fiscal year and
the related audited consolidated statements of earnings, stockholders’ equity
and cash flows of the Borrower and its Subsidiaries for such fiscal year, setting
forth in comparative form the figures as at the end of and for the previous fiscal
year, all of which shall be certified by (a) the chief executive officer or chief
financial officer of the Borrower, in his or her opinion, to present fairly, in
accordance with GAAP, the consolidated financial position of the Borrower and its
Subsidiaries as at the date thereof and the results of operations for such period
and (b) independent certified public accountants of recognized national standing
acceptable to the Agent, whose certificate shall be unqualified and in scope and
substance satisfactory to the Requisite Lenders and who shall have authorized the
Borrower to deliver such financial statements and certification thereof to the
Agent and the Lenders pursuant to this Agreement.
| |
Section 8.3. Compliance Certificate; Additional Information.
| |
At the time financial
statements are furnished pursuant to Sections 8.1. and 8.2., and within 5 Business
Days of the Agent’s request with respect to any other fiscal period, a
certificate substantially in the form of Exhibit N (a “Compliance
Certificate”) executed by the chief financial officer of the Borrower: (a)
setting forth in reasonable detail as at the end of such quarterly accounting
period, fiscal year, or other fiscal period, as the case may be, the calculations
required to establish whether or not the Borrower was in compliance with the
covenants contained in Sections 9.1., 9.2. and 9.4. and (b) stating that, to the
best of his or her knowledge, information and belief after due inquiry, no Default
or Event of Default exists, or, if such is not the case, specifying such Default
or Event of Default and its nature, when it occurred, whether it is continuing and
the steps being taken by the Borrower with respect to such event, condition or
failure. Together with any Compliance Certificate delivered with financial
statements furnished pursuant to Sections 8.1. and 8.2., the Borrower shall
deliver reports, in form and detail satisfactory to the Agent, setting forth (a) a
statement of Funds From Operations for the fiscal quarter then ending; (b) all
Capital Expenditures made during the fiscal quarter then ended; (c) a description
of all Properties acquired during such fiscal quarter, including the net operating
income of each such Property, acquisition costs and related mortgage debt and such
other information as the Agent may request; and (d) all Unencumbered Assets at the
end of such fiscal quarter.
| |
Section 8.4. Other Information.
| |
(a)
Management Letter Comments.
Promptly upon receipt thereof, copies of all management
letter comments, if any, submitted to the Borrower or its Board of Directors by
its independent public accountants;
| |
(b) Securities Filings. Promptly upon, and in any event within 10 Business Days of, the filing thereof, copies of all registration statements (excluding the exhibits thereto (unless | |
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requested by the Agent) and any registration statements on Form S-8 or its
equivalent), reports on Forms 10-K, 10-Q and 8-K (or their equivalents) and all
other periodic reports which the Borrower, any Subsidiary or any other Loan Party
shall file with the Securities and Exchange Commission (or any Governmental
Authority substituted therefor) or any national securities exchange;
| |
(c)
Shareholder Information; Press Releases.
Promptly upon the mailing thereof to the shareholders of
the Borrower generally, copies of all financial statements, reports and proxy
statements so mailed and promptly upon the issuance thereof copies of all press
releases issued by the Borrower, any Subsidiary or any other Loan Party;
| |
(d)
ERISA.
If and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any “reportable event” (as
defined in Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows that the
plan administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or required
to be given to the PBGC; (ii) receives notice of complete or partial withdrawal
liability under Title IV of ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been terminated, a copy of such notice; (iii)
receives notice from the PBGC under Title IV of ERISA of an intent to terminate,
impose liability (other than for premiums under Section 4007 of ERISA) in respect
of, or appoint a trustee to administer any Plan, a copy of such notice; (iv)
applies for a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code, a copy of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and other
information filed with the PBGC; (vi) gives notice of withdrawal from any Plan
pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to make
any payment or contribution to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement or makes any amendment to any Plan or Benefit Arrangement
which has resulted or could result in the imposition of a Lien or the posting of a
bond or other security, a certificate of the chief financial officer of the
Borrower setting forth details as to such occurrence and the action, if any, which
the Borrower or applicable member of the ERISA Group is required or proposes to
take;
| |
(e)
Litigation.
To the extent the Borrower, any other Loan Party or any
other Subsidiary is aware of the same, prompt notice of the commencement of any
proceeding or investigation by or before any Governmental Authority and any action
or proceeding in any court or other tribunal or before any arbitrator against or
in any other way relating adversely to, or adversely affecting, the Borrower, any
other Loan Party or any other Subsidiary or any of their respective properties,
assets or businesses which could reasonably be expected to have a Material Adverse
Effect, and prompt notice of the receipt of notice that any United States income
tax returns of the Borrower, any other Loan Party or any other Subsidiary are
being audited;
| |
(f) Modification of Organizational Documents. A copy of any material amendment to the certificate or articles of incorporation, bylaws, partnership agreement or other similar organizational documents of the Borrower or any other Loan Party promptly upon, and in any event within 15 Business Days of, the effectiveness thereof; | |
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(g)
Change of Management or Financial Condition.
Prompt notice of any material change in the executive
management of the Borrower, any Subsidiary or any other Loan Party and any change
in the business, assets, liabilities, condition (financial or otherwise), results
of operations or business prospects of the Borrower, any Subsidiary or any other
Loan Party which has had or could reasonably be expected to have a Material
Adverse Effect;
| |
(h)
Default.
Notice of the occurrence of any Default or Event of
Default promptly upon a Responsible Officer of the Borrower, any other Loan Party
or any other Subsidiary obtaining knowledge thereof;
| |
(i)
Judgments.
Prompt notice of any order, judgment or decree in excess
of $5,000,000 having been entered against the Borrower, any Subsidiary or any
other Loan Party of any of their respective properties or assets;
| |
(j)
Notice of Violations of Law.
Prompt notice if the Borrower, any Subsidiary or any
other Loan Party shall receive any notification from any Governmental Authority
alleging a violation of any Applicable Law, or any inquiry with respect to any
matters, in either case which could reasonably be expected to have a Material
Adverse Effect;
| |
(k)
Material Asset Sales.
Prompt notice of the sale, transfer or other disposition
of any assets having a book value or fair market value in excess of $50,000,000 in
the aggregate of the Borrower, any Subsidiary or any other Loan Party to any
Person other than the Borrower, any Subsidiary or any other Loan Party;
| |
(l)
Ratings Change.
Notice of a change in any Credit Rating within two
Business Days of the occurrence of such change; and
| |
(m)
Other Information.
From time to time and promptly upon each request, such
data, certificates, reports, statements, opinions of counsel, documents or further
information regarding the business, assets, liabilities, financial condition,
results of operations or business prospects of the Borrower or any of its
Subsidiaries as the Agent or any Lender may reasonably request.
| |
ARTICLE IX. NEGATIVE COVENANTS
| |
For so long as this
Agreement is in effect, unless the Requisite Lenders (or, if required pursuant to
Section 12.6., all of the Lenders) shall otherwise consent in the manner set forth
in Section 12.6., the Borrower shall comply with the following covenants:
| |
Section 9.1. Financial Covenants.
| |
The Borrower shall not permit:
| |
(a) Maximum Leverage Ratio. The ratio of (i) Total Liabilities to (ii) Total Assets, to exceed 0.50 to 1.00 at any time. | |
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(b)
Minimum Interest Ratio.
The ratio of (i) EBITDA for the fiscal quarter of the
Borrower most recently ended to (ii) Interest Expense for such period, to be less
than 2.0 to 1.0 at any time.
| |
(c)
Minimum Fixed Charge Ratio.
The ratio of (i) EBITDA for the fiscal quarter of the
Borrower most recently ended to (ii) Fixed Charges for such period, to be less
than 1.75 to 1.0 at any time.
| |
(d)
Unencumbered Asset Ratio.
The ratio of (i) Unencumbered Asset Value to (ii)
Unsecured Debt of the Borrower and its Subsidiaries, to be less than 1.75 to 1.0
at any time.
| |
(e)
Unencumbered Interest Ratio.
The ratio of (i) the sum of (A) Gross Lease Revenues
attributable to Properties that are Unencumbered Assets for the fiscal quarter of
the Borrower most recently ended minus (B) an imputed management fee in the
amount of 2.0% of the aggregate rents received by the Borrower and the Guarantors
with respect to such Unencumbered Assets during such period plus (C)
Eligible Mortgage Income for such period to (ii) Interest Expense in respect of
Unsecured Debt of the Borrower and its Subsidiaries for such period, to be less
than 2.0 to 1.0 at any time.
| |
(f)
Minimum Tangible Net Worth.
Tangible Net Worth at any time to be less than (i)
$490,000,000 plus (ii) 85.0% of the Net Proceeds of all Equity Issuances effected
by the Borrower or any Subsidiary after December 31, 2002 (other than Equity
Issuances to the Borrower or any Subsidiary).
| |
(g)
Maximum Secured Debt Ratio.
The ratio of (i) Secured Debt of the Borrower and its
Subsidiaries to (ii) Total Assets, to exceed 0.30 to 1.0 at any time.
| |
(h)
Revenues from Ground Leases.
The ratio (expressed as a percentage) of (i) the
aggregate income of the Borrower and its Subsidiaries from ground leases,
including without limitation, all Ground Leases, for any fiscal quarter ending
during the term of this Agreement to (ii) Gross Lease Revenues for such fiscal
quarter, to exceed 5.0%.
| |
Section 9.2. Restricted Payments.
| |
The Borrower and the Guarantors will not, and will not permit any of their respective Subsidiaries to, declare or make any Restricted Payments; provided, however, that (a) Subsidiaries of the Borrower may make Restricted Payments to the Borrower or other Subsidiaries of the Borrower; (b) the Borrower and the UPREIT may declare or make cash distributions to their shareholders and partners, respectively, during any period of four consecutive fiscal quarters in an aggregate amount not to exceed 100% of Funds Available for Distribution for such four quarter period; and (c) subject to the following sentence, if a Default or Event of Default exists, the Borrower and the UPREIT may only declare or make cash distributions to their shareholders and partners, respectively, during any fiscal year in an aggregate amount not to exceed the lesser of (i) the amount otherwise permitted to be declared or made under the immediately preceding clause (b) and (ii) the minimum amount necessary for the Borrower to remain in compliance with Section 7.12. Notwithstanding the foregoing, if a Default or Event of Default specified in Section 10.1.(a), Section 10.1.(b), Section 10.1.(f) or | |
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Section 10.1.(g) shall exist, or if as a result of the occurrence of any other
Event of Default any of the Obligations have been accelerated pursuant to Section
10.2.(a), the Borrower and the Guarantors will not, and will not permit any of
their respective Subsidiaries to, declare or make any Restricted Payments
whatsoever.
| |
Section 9.3. Debt.
| |
The Borrower shall
not, and shall not permit any Subsidiary or any other Loan Party to, incur,
assume, or otherwise become obligated in respect of any Debt after the Agreement
Date if immediately prior to the assumption, incurring or becoming obligated in
respect thereof, or immediately thereafter and after giving effect thereto, a
Default or Event of Default is or would be in existence, including without
limitation, a Default or Event of Default resulting from a violation of any of the
covenants contained in Section 9.1.
| |
Section 9.4. Certain Permitted Investments.
| |
The Borrower and the
Guarantors shall not, and shall not permit any of their Subsidiaries to, make any
Investment, or otherwise own the following items, which would cause the aggregate
value of such holdings of the Borrower, the Guarantors and such Subsidiaries to
exceed the applicable limits set forth below:
| |
(a)
Investments in Unconsolidated Affiliates such
that the aggregate book value of such Investments determined in accordance with
GAAP exceeds 20.0% of Total Assets at any time (for purposes of clarity, the
parties agree that loans by the Borrower or any Subsidiary to CNL Commercial
Finance, Inc. are Investments subject to this subsection (a) so long as CNL
Commercial Finance, Inc. is an Unconsolidated Affiliate);
| |
(b)
Mortgage Receivables, including without
limitation, Eligible Mortgage Notes Receivable, such that the aggregate book value
of all such Mortgage Receivables exceeds 10.0% of Total Assets;
| |
(c)
real property under construction such that the
aggregate Construction Budget for all such real property exceeds 15.0% of Total
Assets; provided, however, the Borrower and Guarantors shall not,
and shall not permit any of their Subsidiaries to, make investments in real
property under construction otherwise permitted hereunder unless at least 75.0% of
the total square footage under construction is the subject of executed leases; and
| |
(d)
Investments in loans and interests in
securitized pools of promissory notes, mortgage loans, chattel paper, leases or
similar financial assets originated by CNL Commercial Finance, Inc., such that the
aggregate value (determined on the basis of lower of cost or fair value) of all
such Investments exceeds the greater of (i) the lesser of (A) 60,000,000 or (B)
7.5% of Total Assets or (ii) 10.0% of Tangible Net Worth.
| |
In addition to the foregoing limitations, the aggregate value of all of the items subject to the limitations in the preceding clauses (a), (b) and (d) shall not exceed 25.0% of Total Assets at any time. | |
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Section 9.5. Conduct of Business.
| |
The Borrower shall
not, and shall not permit any Subsidiary or any other Loan Party to, engage in any
type of business except as described in Section 6.1.(t).
| |
Section 9.6. Liens; Negative Pledges; Other Matters.
| |
(a)
The Borrower shall not, and shall not permit
any Subsidiary or other Loan Party to, create, assume, or incur any Lien (other
than Permitted Liens) upon any of its properties, assets, income or profits of any
character whether now owned or hereafter acquired if immediately prior to the
creation, assumption or incurring of such Lien, or immediately thereafter, a
Default or Event of Default is or would be in existence, including without
limitation, a Default or Event of Default resulting from a violation of any of the
covenants contained in Section 9.1.
| |
(b)
The Borrower shall not, and shall not permit
any Subsidiary or other Loan Party to, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction of any kind on
the ability of any Subsidiary (other than an Excluded Subsidiary) to: (i) pay
dividends or make any other distribution on any of such Subsidiary’s capital
stock or other equity interests owned by the Borrower or any Subsidiary; (ii) pay
any Debt owed to the Borrower or any Subsidiary; (iii) make loans or advances to
the Borrower or any Subsidiary; or (iv) transfer any of its property or assets to
the Borrower or any Subsidiary.
| |
Section 9.7. Merger, Consolidation, Sales of Assets and Other Arrangements.
| |
The Borrower shall
not, and shall not permit any Subsidiary or other Loan Party to: (i) enter into
any transaction of merger or consolidation; (ii) liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution); or (iii) convey, sell, lease,
sublease, transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any substantial part of its business or assets, whether now
owned or hereafter acquired; provided, however, that:
| |
(a)
any of the actions described in the
immediately preceding clauses (i) through (iii) may be taken with respect to any
Subsidiary or any other Loan Party (other than the Borrower) so long as
immediately prior to the taking of such action, and immediately thereafter and
after giving effect thereto, no Default or Event of Default is or would be in
existence;
| |
(b)
the Borrower, each Subsidiary and each other
Loan Party may sell, transfer or dispose of assets among themselves;
| |
(c)
the Borrower, its Subsidiaries and the other
Loan Parties may lease and sublease their respective assets, as lessor or
sublessor (as the case may be), in the ordinary course of their business; and
| |
(d) a Person may merge with and into the Borrower, any Subsidiary or any Loan Party so long as (i) the Borrower, such Subsidiary or such Loan Party, as applicable, is the survivor of such merger, (ii) immediately prior to such merger, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence, and | |
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(iii) the Borrower shall have given the Agent and the Lenders at least 10 Business
Days’ prior written notice of such merger (except that such prior notice
shall not be required in the case of the merger of a Subsidiary with and into the
Borrower).
| |
If, as a result of the consummation of any transaction described in the
immediately preceding clause (a) or (b), a Person would become a Subsidiary that
has assets having a book value or fair market value in excess of $50,000,000 in
the aggregate and that is not an Excluded Subsidiary, the Borrower shall not
permit the consummation of such transaction unless the items described in Section
7.11.(a) are delivered to the Agent at the time of the consummation of such
transaction.
| |
Section 9.8. Fiscal Year.
| |
The Borrower shall
not change its fiscal year from that in effect as of the Agreement Date.
| |
Section 9.9. Modifications of Organizational Documents.
| |
The Borrower shall
not, and shall not permit any other Loan Party or other Subsidiary to, amend,
supplement, restate or otherwise modify its articles or certificate of
incorporation, by-laws, operating agreement, declaration of trust, partnership
agreement or other applicable organizational document if such amendment,
supplement, restatement or other modification could reasonably be expected to have
a Material Adverse Effect.
| |
Section 9.10. Transactions with Affiliates.
| |
The Borrower shall
not, and shall not permit any of its Subsidiaries or any other Loan Party to,
permit to exist or enter into, any transaction (including the purchase, sale,
lease or exchange of any property or the rendering of any service) with any
Affiliate, except (a) transactions in the ordinary course of and pursuant to the
reasonable requirements of the business of the Borrower or any of its Subsidiaries
and upon fair and reasonable terms which are no less favorable to the Borrower or
such Subsidiary than would be obtained in a comparable arm’s length
transaction with a Person that is not an Affiliate or (b) which are approved by
the independent directors of the Borrower.
| |
Section 9.11. ERISA Exemptions.
| |
The Borrower shall
not, and shall not permit any Subsidiary to, permit any of its respective assets
to become or be deemed to be “plan assets” within the meaning of ERISA,
the Internal Revenue Code and the respective regulations promulgated thereunder.
| |
Section 9.12. Ownership of CNLRS.
| |
The Borrower shall not permit (a) its percentage ownership of all of the Equity Interests of Commercial Net Lease Realty Services, Inc. (“CNLRS”) entitling holders thereof to the payment of dividends or other distributions from revenues of CNLRS to decrease after the Agreement Date or (b) ordinary voting power to elect a majority of the board of directors of | |
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CNLRS (without regard to the occurrence of any contingency) to be directly owned
or controlled by any Persons other than senior officers of the Borrower.
| |
ARTICLE X. DEFAULT
| |
Section 10.1. 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
Applicable Law or pursuant to any judgment or order of any Governmental Authority:
| |
(a)
Default in Payment of Principal.
The Borrower shall fail to pay when due (whether upon
demand, at maturity, by reason of acceleration or otherwise) the principal of any
of the Loans, or any Reimbursement Obligation.
| |
(b)
Default in Payment of Interest and Other Obligations.
The Borrower shall fail to pay when due any interest on
any of the Loans or any of the other payment Obligations owing by the Borrower
under this Agreement or any other Loan Document, or any other Loan Party shall
fail to pay when due any payment Obligation owing by such other Loan Party under
any Loan Document to which it is a party, and such failure shall continue for a
period of 5 Business Days.
| |
(c)
Default in Performance.
(i) The Borrower shall fail to perform or observe any
term, covenant, condition or agreement contained in Section 8.4.(h) or in Article
IX. or (ii) the Borrower or any other Loan Party shall fail to perform or observe
any term, covenant, condition or agreement contained in this Agreement or any
other Loan Document to which it is a party and not otherwise mentioned in this
Section and such failure shall continue for a period of 30 days after the earlier
of (x) the date upon which a Responsible Officer of the Borrower or such Loan
Party obtains knowledge of such failure or (y) the date upon which the Borrower
has received written notice of such failure from the Agent.
| |
(d)
Material Misrepresentations.
Any written statement, representation or warranty made or
deemed made by or on behalf of the Borrower or any other Loan Party under this
Agreement or under any other Loan Document, or any amendment hereto or thereto, or
in any other writing or statement at any time furnished or made or deemed made by
or on behalf of the Borrower or any other Loan Party to the Agent or any Lender,
shall at any time prove to have been incorrect or misleading, in light of the
circumstances in which made or deemed made, in any material respect when furnished
or made or deemed made.
| |
(e)
Debt Cross-Default.
|
(i)
The Borrower, any Subsidiary or
any other Loan Party shall fail to pay when due and payable, after the expiration
of any applicable notice and cure period, the principal of, or interest on, any
Debt (other than the Loans) having an aggregate outstanding principal amount of
$10,000,000 or more (“Material Debt”); or
| |
(ii) (x) the maturity of any Material Debt shall have been accelerated in accordance with the provisions of any indenture, contract or instrument evidencing, | |
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providing for the creation of or otherwise concerning such Material Debt or (y)
any Material Debt shall have been required to be prepaid or repurchased prior to
the stated maturity thereof; or
| |
(iii)
any other event shall have occurred and be
continuing which, with or without the passage of time, the giving of notice, or
both, would permit any holder or holders of Material Debt, any trustee or agent
acting on behalf of such holder or holders or any other Person, to accelerate the
maturity of any such Material Debt or require any such Material Debt to be prepaid
or repurchased prior to its stated maturity; or
| |
(iv)
there occurs under any Swap Agreement an Early
Termination Date (as defined in such Swap Agreement) resulting from (A) any event
of default under such Swap Agreement as to which any Loan Party is the Defaulting
Party (as defined in such Swap Agreement) or (B) any Termination Event (as so
defined) under such Swap Agreement as to which any Loan Party is an Affected Party
(as so defined) and, in either event, the Swap Termination Value owed by any Loan
Party as a result thereof is $10,000,000 or more.
|
(f)
Voluntary Bankruptcy Proceeding.
The Borrower, any other Loan Party or any Subsidiary
shall: (i) commence a voluntary case under the Bankruptcy Code of 1978, as
amended, or other federal bankruptcy laws (as now or hereafter in effect); (ii)
file a petition seeking to take advantage of any other Applicable Laws, domestic
or foreign, relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or 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 Applicable Laws or consent to any
proceeding or action described in the immediately following subsection; (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; (vii) make a
conveyance fraudulent as to creditors under any Applicable Law; or (viii) take any
corporate or partnership action for the purpose of effecting any of the foregoing.
| |
(g) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be commenced against the Borrower, any other Loan Party or any Subsidiary in any court of competent jurisdiction seeking: (i) relief under the Bankruptcy Code of 1978, as amended, or other federal bankruptcy laws (as now or hereafter in effect) or under any other Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts; or (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of such Person, or of all or any substantial part of the assets, domestic or foreign, of such Person, and such case or proceeding shall continue undismissed or unstayed for a period of 60 consecutive calendar days, or an order granting the remedy or other relief requested in such case or proceeding against the Borrower, such Subsidiary or such other Loan Party (including, but not limited to, an order for relief under such Bankruptcy Code or such other federal bankruptcy laws) shall be entered. | |
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(h)
Litigation; Enforceability.
The Borrower or any other Loan Party shall disavow,
revoke or terminate (or attempt to terminate) any Loan Document to which it is a
party or shall otherwise challenge or contest in any action, suit or proceeding in
any court or before any Governmental Authority the validity or enforceability of
this Agreement, any Note or any other Loan Document or this Agreement, any Note,
the Guaranty or any other Loan Document shall cease to be in full force and effect
(except as a result of the express terms thereof).
| |
(i)
Judgment.
A judgment or order for the payment of money or for an
injunction shall be entered against the Borrower, any Subsidiary or any other Loan
Party, by any court or other tribunal and (i) such judgment or order shall
continue for a period of 60 days without being paid, stayed or dismissed through
appropriate appellate proceedings and (ii) either (A) the amount of such judgment
or order for which insurance has not been acknowledged in writing by the
applicable insurance carrier (or the amount as to which the insurer has denied
liability) exceeds, individually or together with all other such outstanding
judgments or orders entered against the Borrower, such Subsidiaries and such other
Loan Parties, $10,000,000 or (B) in the case of an injunction or other
non-monetary judgment, such judgment could reasonably be expected to have a
Material Adverse Effect.
| |
(j)
Attachment.
A warrant, writ of attachment, execution or similar
process shall be issued against any property of the Borrower, any Subsidiary or
any other Loan Party which exceeds, individually or together with all other such
warrants, writs, executions and processes, $10,000,000 in amount and such warrant,
writ, execution or process shall not be discharged, vacated, stayed or bonded for
a period of 60 days; provided, however, that if a bond has been issued in favor of
the claimant or other Person obtaining such warrant, writ, execution or process,
the issuer of such bond shall execute a waiver or subordination agreement in form
and substance satisfactory to the Agent pursuant to which the issuer of such bond
subordinates its right of reimbursement, contribution or subrogation to the
Obligations and waives or subordinates any Lien it may have on the assets of any
Loan Party.
| |
(k)
ERISA.
Any member of the ERISA Group shall fail to pay when due
an amount or amounts aggregating in excess of $10,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect of, or
to cause a trustee to be appointed to administer, any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $10,000,000.
| |
(l) Loan Documents. An Event of Default (as defined therein) shall occur under any of the other Loan Documents. | |
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(m)
Change of Control.
|
(i)
Any “person” or
“group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)), is or
becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, except that a Person will be deemed to have
“beneficial ownership” of all securities that such Person has the right
to acquire, whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of more than 35.0% of the total voting
power of the then outstanding voting stock of the Borrower; or
| |
(ii)
During any period of 12
consecutive months ending after the Agreement Date, individuals who at the
beginning of any such 12-month period constituted the Board of Directors of the
Borrower (together with any new directors whose election by such Board or whose
nomination for election by the shareholders of the Borrower was approved by a vote
of a majority of the directors then still in office who were either directors at
the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the Board
of Directors of the Borrower then in office.
|
Section 10.2. Remedies Upon Event of Default.
| |
(a)
Acceleration; Termination of Facilities.
|
(i)
Automatic.
Upon the occurrence of an Event of Default specified in
Sections 10.1.(f) or 10.1.(g), (A)(i) the principal of, and all accrued interest
on, the Loans and the Notes at the time outstanding, (ii) an amount equal to the
Stated Amount of all Letters of Credit outstanding as of the date of the
occurrence of such Event of Default and (iii) all of the other Obligations of the
Borrower, including, but not limited to, the other amounts owed to the Lenders,
the Swingline Lender and the Agent under this Agreement, the Notes or any of the
other Loan Documents shall become immediately and automatically due and payable by
the Borrower without presentment, demand, protest, or other notice of any kind,
all of which are expressly waived by the Borrower and (B) all of the Commitments,
the obligation of the Lenders to make Revolving Loans, the Swingline Commitment,
the obligation of the Swingline Lender to make Swingline Loans, and the obligation
of the Agent to issue Letters of Credit hereunder, shall all immediately and
automatically terminate.
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(ii) Optional. If any other Event of Default shall have occurred and be continuing, the Agent shall, at the direction of the Requisite Lenders: (A) declare (1) the principal of, and accrued interest on, the Loans and the Notes at the time outstanding, (2) an amount equal to the Stated Amount of all Letters of Credit outstanding as of the date of the occurrence of such other Event of Default and (3) all of the other Obligations, including, but not limited to, the other amounts owed to the Lenders and the Agent under this Agreement, the Notes or any of the other Loan Documents to be forthwith due and payable, whereupon the same shall immediately become due and payable without | |
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presentment, demand, protest or other notice of any kind, all of which are
expressly waived by the Borrower and (B) terminate the Commitments and the
obligation of the Lenders to make Loans hereunder and the obligation of the Agent
to issue Letters of Credit hereunder. Further, if the Agent has exercised any of
the rights provided under the preceding sentence, the Swingline Lender shall: (x)
declare the principal of, and accrued interest on, the Swingline Loans and the
Swingline Note at the time outstanding, and all of the other Obligations owing to
the Swingline Lender, 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 by the Borrower and (y)
terminate the Swingline Commitment and the obligation of the Swingline Lender to
make Swingline Loans.
|
(b)
Loan Documents.
The Requisite Lenders may direct the Agent to, and the
Agent if so directed shall, exercise any and all of its rights under any and all
of the other Loan Documents.
| |
(c)
Applicable Law.
The Requisite Lenders may direct the Agent to, and the
Agent if so directed shall, exercise all other rights and remedies it may have
under any Applicable Law.
| |
(d)
Appointment of Receiver.
To the extent permitted by Applicable Law, the Agent and
the Lenders shall be entitled to the appointment of a receiver for the assets and
properties of the Borrower and its Subsidiaries, without notice of any kind
whatsoever and without regard to the adequacy of any security for the Obligations
or the solvency of any party bound for its payment, to take possession of all or
any portion of the business operations of the Borrower and its Subsidiaries and to
exercise such power as the court shall confer upon such receiver.
| |
Section 10.3. Remedies Upon Default.
| |
Section 10.4. Allocation of Proceeds.
|
(a)
amounts due to the Agent in respect of fees and expenses
due under Section 12.2.;
| |
(b)
amounts due to the Lenders in respect of fees and expenses
due under Section 12.2.;
| |
(c) payments of interest on Swingline Loans; | |
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(d)
payments of interest on all other Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders;
| |
(e)
payments of principal of Swingline Loans;
| |
(f)
payments of principal of all other Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders;
| |
(g)
amounts to be deposited into the Collateral Account in
respect of Letters of Credit;
| |
(h)
amounts due the Agent and the Lenders pursuant to Sections
11.7. and 12.9.;
| |
(i)
payments of all other amounts due and owing by the
Borrower and the other Loan Parties under any of the Loan Documents, if any, to be
applied for the ratable benefit of the Lenders; and
| |
(j)
any amount remaining after application as provided above,
shall be paid to the Borrower or whomever else may be legally entitled thereto.
|
Section 10.5. Collateral Account.
| |
(b)
Amounts on deposit in the Collateral Account
shall be invested and reinvested by the Agent in such Cash Equivalents as the
Agent shall determine in its sole discretion. All such investments and
reinvestments shall be held in the name of and be under the sole dominion and
control of the Agent for the benefit of the Lenders. The Agent shall exercise
reasonable care in the custody and preservation of any funds held in the
Collateral Account and shall be deemed to have exercised such care if such funds
are accorded treatment substantially equivalent to that which the Agent accords
other funds deposited with the Agent, it being understood that the Agent shall not
have any responsibility for taking any necessary steps to preserve rights against
any parties with respect to any funds held in the Collateral Account.
| |
(c) If an Event of Default shall have occurred and be continuing, the Requisite Lenders may, in their discretion, at any time and from time to time, instruct the Agent to liquidate any such investments and reinvestments and credit the proceeds thereof to the | |
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Collateral Account and apply or cause to be applied such proceeds and any other
balances in the Collateral Account to the payment of any of the Letter of Credit
Liabilities due and payable.
| |
(d)
If (i) no Default or Event of Default has
occurred and is continuing and (ii) all of the Letter of Credit Liabilities have
been paid in full, the Agent shall, from time to time, at the request of the
Borrower, deliver to the Borrower, against receipt but without any recourse,
warranty or representation whatsoever, such of the balances in the Collateral
Account as exceed the aggregate amount of Letter of Credit Liabilities at such
time.
| |
(e)
The Borrower shall pay to the Agent from time to time
such fees as the Agent normally charges for similar services in connection with
the Agent’s administration of the Collateral Account and investments and
reinvestments of funds therein.
| |
Section 10.6. Performance by Agent.
| |
Section 10.7. Rights Cumulative.
| |
ARTICLE XI. THE AGENT
| |
Section 11.1. Authorization and Action.
| |
Each Lender hereby appoints and authorizes the Agent to take such action as contractual representative on such Lender’s behalf and to exercise such powers under this Agreement and the other Loan Documents as are specifically delegated to the Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. Not in limitation of the foregoing, each Lender authorizes and directs the Agent to enter into the Loan Documents for the benefit of the Lenders. Each Lender hereby agrees that, except as otherwise set forth herein, any action taken by the Requisite Lenders in accordance with the provisions of this Agreement or the Loan Documents, and the exercise by the Requisite Lenders of the powers set forth herein or | |
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therein, together with such other powers as are reasonably incidental thereto,
shall be authorized and binding upon all of the Lenders. Nothing herein shall be
construed to deem the Agent a trustee or fiduciary for any Lender nor to impose on
the Agent duties or obligations other than those expressly provided for herein. At
the request of a Lender, the Agent will forward to such Lender copies or, where
appropriate, originals of the documents delivered to the Agent pursuant to this
Agreement or the other Loan Documents. The Agent will also furnish to any Lender,
upon the request of such Lender, a copy of any certificate or notice furnished to
the Agent by the Borrower, any Loan Party or any other Affiliate of the Borrower,
pursuant to this Agreement or any other Loan Document not already delivered to
such Lender pursuant to the terms of this Agreement or any such other Loan
Document. As to any matters not expressly provided for by the Loan Documents
(including, without limitation, enforcement or collection of any of the
Obligations), the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Requisite Lenders (or all of the Lenders if explicitly required under any
other provision of this Agreement), and such instructions shall be binding upon
all Lenders and all holders of any of the Obligations; provided, however, that,
notwithstanding anything in this Agreement to the contrary, the Agent shall not be
required to take any action which exposes the Agent to personal liability or which
is contrary to this Agreement or any other Loan Document or Applicable Law. Not in
limitation of the foregoing, the Agent shall not exercise any right or remedy it
or the Lenders may have under any Loan Document upon the occurrence of a Default
or an Event of Default unless the Requisite Lenders have so directed the Agent to
exercise such right or remedy.
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Section 11.2. Agent’s Reliance, Etc.
| |
Notwithstanding any other provisions of this Agreement or any other Loan Documents, neither the Agent nor any of its directors, officers, agents, employees or counsel shall be liable for any action taken or omitted to be taken by it or them under or in connection with this Agreement or any other Loan Document, except for its or their own gross negligence or willful misconduct. Without limiting the generality of the foregoing, the Agent: (a) may treat the payee of any Note as the holder thereof until the Agent receives written notice of the assignment or transfer thereof signed by such payee and in form satisfactory to the Agent; (b) may consult with legal counsel (including its own counsel or counsel for the Borrower or any other Loan Party), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (c) makes no warranty or representation to any Lender or any other Person and shall not be responsible to any Lender or any other Person for any statements, warranties or representations made by any Person in or in connection with this Agreement or any other Loan Document; (d) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of any of this Agreement or any other Loan Document or the satisfaction of any conditions precedent under this Agreement or any Loan Document on the part of the Borrower or other Persons or inspect the property, books or records of the Borrower or any other Person; (e) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document, any other instrument or document furnished pursuant thereto or any collateral covered thereby or the perfection or priority of any Lien in favor of the Agent on behalf of the Lenders in any such collateral; and (f) shall incur no liability under or in | |
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respect of this Agreement or any other Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telephone or
telecopy) believed by it to be genuine and signed, sent or given by the proper
party or parties.
| |
Section 11.3. Notice of Defaults.
| |
The Agent shall not
be deemed to have knowledge or notice of the occurrence of a Default or Event of
Default unless the Agent has received notice from a Lender or the Borrower
referring to this Agreement, describing with reasonable specificity such Default
or Event of Default and stating that such notice is a “notice of
default.” If any Lender (excluding the Lender which is also serving as the
Agent) becomes aware of any Default or Event of Default, it shall promptly send to
the Agent such a “notice of default.” Further, if the Agent receives
such a “notice of default”, the Agent shall give prompt notice thereof
to the Lenders.
| |
Section 11.4. Wachovia as Lender.
| |
Wachovia, as a Lender,
shall have the same rights and powers under this Agreement and any other Loan
Document as any other Lender and may exercise the same as though it were not the
Agent; and the term “Lender” or “Lenders” shall, unless
otherwise expressly indicated, include Wachovia in each case in its individual
capacity. Wachovia and its affiliates may each accept deposits from, maintain
deposits or credit balances for, invest in, lend money to, act as trustee under
indentures of, serve as financial advisor to, and generally engage in any kind of
business with, the Borrower, any other Loan Party or any other affiliate thereof
as if it were any other bank and without any duty to account therefor to the other
Lenders. Further, the Agent and any affiliate may accept fees and other
consideration from the Borrower for services in connection with this Agreement and
otherwise without having to account for the same to the other Lenders. The Lenders
acknowledge that, pursuant to such activities, Wachovia or its affiliates may
receive information regarding the Borrower, other Loan Parties, other Subsidiaries
and other Affiliates (including information that may be subject to confidentiality
obligations in favor of such Person) and acknowledge that the Agent shall be under
no obligation to provide such information to them.
| |
Section 11.5. Approvals of Lenders.
| |
All communications from the Agent to any Lender requesting such Lender’s determination, consent, approval or disapproval (a) shall be given in the form of a written notice to such Lender, (b) shall be accompanied by a description of the matter or issue as to which such determination, approval, consent or disapproval is requested, or shall advise such Lender where information, if any, regarding such matter or issue may be inspected, or shall otherwise describe the matter or issue to be resolved, (c) shall include, if reasonably requested by such Lender and to the extent not previously provided to such Lender, written materials and a summary of all oral information provided to the Agent by the Borrower in respect of the matter or issue to be resolved, and (d) shall include the Agent’s recommended course of action or determination in respect thereof. Each Lender shall reply promptly, but in any event within 10 Business Days (or such lesser or greater period as may be specifically required under the Loan Documents) of receipt of such communication. Except as otherwise provided in this Agreement and except with respect to items requiring the unanimous consent or approval of the Lenders under Section 12.6., | |
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unless a Lender shall give written notice to the Agent that it specifically
objects to the recommendation or determination of the Agent (together with a
written explanation of the reasons behind such objection) within the applicable
time period for reply, such Lender shall be deemed to have conclusively approved
of or consented to such recommendation or determination.
| |
Section 11.6. Lender Credit Decision, Etc.
| |
Each Lender expressly
acknowledges and agrees that neither the Agent nor any of its officers, directors,
employees, agents, counsel, attorneys-in-fact or other affiliates has made any
representations or warranties as to the financial condition, operations,
creditworthiness, solvency or other information concerning the business or affairs
of the Borrower, any other Loan Party, any Subsidiary or any other Person to such
Lender and that no act by the Agent hereafter taken, including any review of the
affairs of the Borrower, any other Loan Party or any other Subsidiary, shall be
deemed to constitute any such representation or warranty by the Agent to any
Lender. Each Lender acknowledges that it has, independently and without reliance
upon the Agent, any other Lender or counsel to the Agent, or any of their
respective officers, directors, employees and agents, and based on the financial
statements of the Borrower, the Subsidiaries or any other Affiliate thereof, and
inquiries of such Persons, its independent due diligence of the business and
affairs of the Borrower, the Loan Parties, the Subsidiaries and other Persons, its
review of the Loan Documents, the legal opinions required to be delivered to it
hereunder, the advice of its own counsel and such other documents and information
as it has deemed appropriate, made its own credit and legal analysis and decision
to enter into this Agreement and the transactions contemplated hereby. Each Lender
also acknowledges that it will, independently and without reliance upon the Agent,
any other Lender or counsel to the Agent or any of their respective officers,
directors, employees and agents, and based on such review, advice, documents and
information as it shall deem appropriate at the time, continue to make its own
decisions in taking or not taking action under the Loan Documents. Except for
notices, reports and other documents and information expressly required to be
furnished to the Lenders by the Agent under this Agreement or any of the other
Loan Documents, the Agent shall have no 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 the Borrower, any
other Loan Party or any other Affiliate thereof which may come into possession of
the Agent, or any of its officers, directors, employees, agents, attorneys-in-fact
or other Affiliates. Each Lender acknowledges that the Agent’s legal counsel
in connection with the transactions contemplated by this Agreement is only acting
as counsel to the Agent and is not acting as counsel to such Lender.
| |
Section 11.7. Indemnification of Agent.
| |
Each Lender agrees to indemnify the Agent (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so) pro rata in accordance with such Lender’s respective Commitment Percentage, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may at any time be imposed on, incurred by, or asserted against the Agent (in its capacity as Agent but not as a Lender) in any way relating to or arising out of the Loan Documents, any transaction contemplated hereby or thereby | |
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or any action taken or omitted by the Agent under the Loan Documents
(collectively, “Indemnifiable Amounts”); provided, however, that no
Lender shall be liable for any portion of such Indemnifiable Amounts to the extent
resulting from the Agent’s gross negligence or willful misconduct as
determined by a court of competent jurisdiction in a final, non-appealable
judgment or if the Agent fails to follow the written direction of the Requisite
Lenders unless such failure results from the Agent following the advice of counsel
to the Agent of which advice the Lenders have received notice. Without limiting
the generality of the foregoing but subject to the preceding proviso, each Lender
agrees to reimburse the Agent (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), promptly upon demand
for its ratable share of any out-of-pocket expenses (including counsel fees of the
counsel(s) of the Agent’s own choosing) incurred by the Agent in connection
with the preparation, negotiation, execution, or enforcement of, or legal advice
with respect to the rights or responsibilities of the parties under, the Loan
Documents, any suit or action brought by the Agent to enforce the terms of the
Loan Documents and/or collect any Obligations, any “lender liability”
suit or claim brought against the Agent and/or the Lenders, and any claim or suit
brought against the Agent, and/or the Lenders arising under any Environmental
Laws. Such out-of-pocket expenses (including counsel fees) shall be advanced by
the Lenders on the request of the Agent notwithstanding any claim or assertion
that the Agent is not entitled to indemnification hereunder upon receipt of an
undertaking by the Agent that the Agent will reimburse the Lenders if it is
actually and finally determined by a court of competent jurisdiction that the
Agent is not so entitled to indemnification. The agreements in this Section shall
survive the payment of the Loans and all other amounts payable hereunder or under
the other Loan Documents and the termination of this Agreement. If the Borrower
shall reimburse the Agent for any Indemnifiable Amount following payment by any
Lender to the Agent in respect of such Indemnifiable Amount pursuant to this
Section, the Agent shall share such reimbursement on a ratable basis with each
Lender making any such payment.
| |
Section 11.8. Successor Agent.
| |
The Agent may resign at any time as Agent under the Loan Documents by giving at least 30 days’ prior written notice thereof to the Lenders and the Borrower. The Agent may be removed as Agent under the Loan Documents for good cause by all of the Lenders (other than the Lender then acting as Agent) upon at least 30 days’ prior notice. Upon any such resignation or removal, the Requisite Lenders (other than the Lender then acting as Agent, in the case of the removal of the Agent under the immediately preceding sentence) shall have the right to appoint a successor Agent which appointment shall, provided no Default or Event of Default shall have occurred and be continuing, be subject to the Borrower’s approval, which approval shall not be unreasonably withheld or delayed (except that the Borrower shall, in all events, be deemed to have approved each Lender and its affiliates as a successor Agent). If no successor Agent shall have been so appointed in accordance with the immediately preceding sentence, and shall have accepted such appointment, within 30 days after the resigning Agent’s giving of notice of resignation or the Lenders’ removal of the resigning Agent, then the resigning or removed Agent may, on behalf of the Lenders, appoint a successor Agent, which shall be a Lender, if any Lender shall be willing to serve, and otherwise shall be a commercial bank having total combined assets of at least $50,000,000,000. Upon the acceptance of any appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and of the Swingline Lender, and | |
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the retiring Agent shall be discharged from its duties and obligations under the
Loan Documents. Such successor Agent shall issue letters of credit in substitution
for the Letters of Credit, if any, outstanding at the time of such succession or
make other arrangements satisfactory to the current Agent to effectively assume
the obligations of the current Agent with respect to such Letters of Credit. After
any Agent’s resignation or removal hereunder as Agent, the provisions of this
Article XI. shall continue to inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under the Loan Documents.
| |
Section 11.9. Titled Agents.
| |
Each of the Titled
Agents in each such respective capacity, assumes no responsibility or obligation
hereunder, including, without limitation, for servicing, enforcement or collection
of any of the Loans, nor any duties as an agent hereunder for the Lenders. The
titles of “Sole Lead Arranger”, “Book Runner,”
“Syndication Agent” and “Co-Documentation Agent” are solely
honorific and imply no fiduciary responsibility on the part of the Titled Agents
to the Agent, the Borrower or any Lender and the use of such titles does not
impose on the Titled Agents any duties or obligations greater than those of any
other Lender or entitle the Titled Agents to any rights other than those to which
any other Lender is entitled.
| |
ARTICLE XII. MISCELLANEOUS
| |
Section 12.1. Notices.
| |
Unless otherwise
provided herein, communications provided for hereunder shall be in writing and
shall be mailed, telecopied or delivered as follows:
|
Commercial Net Lease
Realty, Inc. 000 X. Xxxxxx Xxxxxx, Xxxxx 000 Xxxxxxx, Xxxxxxx 00000 Attn: Xxxxx X. Xxxxxxx Telephone: (000) 000-0000 Telecopy: (000) 000-0000 | |
If to the Agent:
|
Wachovia Bank, National Association 000 X. Xxxxxxx Xx., XX0000 Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Attn: Xxx X. Xxxx Telephone: (000) 000-0000 Telecopy: (000) 000-0000 | |
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If to a Lender:
|
To such Lender’s address or telecopy number, as applicable, set forth on its
signature page hereto or in the applicable Assignment and Acceptance Agreement;
|
or, as to each party at such other address as shall be designated by such party in
a written notice to the other parties delivered in compliance with this Section.
All such notices and other communications shall be effective (i) if mailed, when
received; (ii) if telecopied, when transmitted; or (iii) if hand delivered, when
delivered. Notwithstanding the immediately preceding sentence, all notices or
communications to the Agent or any Lender under Article II. shall be effective
only when actually received. Neither the Agent nor any Lender shall incur any
liability to the Borrower (nor shall the Agent incur any liability to the Lenders)
for acting upon any telephonic notice referred to in this Agreement which the
Agent or such Lender, as the case may be, believes in good faith to have been
given by a Person authorized to deliver such notice or for otherwise acting in
good faith hereunder.
| |
Section 12.2. Expenses.
| |
The Borrower agrees (a) to pay or reimburse the Agent for all of its reasonable out-of-pocket costs and expenses incurred in connection with the preparation, negotiation and execution of, and any amendment, supplement or modification to, any of the Loan Documents (including due diligence expenses and travel expenses relating to closing), and the consummation of the transactions contemplated thereby, including the reasonable fees and disbursements of counsel to the Agent, (b) to pay or reimburse the Agent, and the Lenders for all their costs and expenses incurred in connection with the enforcement or preservation of any rights under the Loan Documents, including the reasonable fees and disbursements of their respective counsel (including the allocated fees and expenses of in-house counsel) and any payments in indemnification or otherwise payable by the Lenders to the Agent pursuant to the Loan Documents, (c) to pay, and indemnify and hold harmless the Agent, and the Lenders from, any and all recording and filing fees and any and all liabilities with respect to, or resulting from any failure to pay or delay in paying, documentary, stamp, excise and other similar taxes, if any, which may be payable or determined to be payable in connection with the execution and delivery of any of the Loan Documents, or consummation of any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Loan Document and (d) to the extent not already covered by any of the preceding subsections, to pay or reimburse the Agent, and the Lenders for all their costs and expenses incurred in connection with any bankruptcy or other proceeding of the type described in Sections 10.1.(f) or 10.1.(g), including the reasonable fees and disbursements of counsel to the Agent and any Lender, whether such fees and expenses are incurred prior to, during or after the commencement of such proceeding or the confirmation or conclusion of any such proceeding. If the Borrower shall fail to pay any amounts required to be paid by it pursuant to this Section, the Agent, and/or the Lenders may pay such amounts on behalf of the Borrower and either deem the same to be Loans outstanding hereunder or otherwise Obligations owing hereunder. | |
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Section 12.3. Setoff.
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Subject to Section
3.3. and in addition to any rights now or hereafter granted under Applicable Law
and not by way of limitation of any such rights, the Agent, each Lender and each
Participant is hereby authorized by the Borrower, at any time or from time to time
during the continuance of an Event of Default, without prior notice to the
Borrower or to any other Person, any such notice being hereby expressly waived,
but in the case of a Lender or Participant subject to receipt of the prior written
consent of the Agent exercised in its sole discretion, to set off and to
appropriate and to apply any and all deposits (general or special, 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 Agent,
such Lender or any affiliate of the Agent or such Lender, to or for the credit or
the account of the Borrower against and on account of any of the Obligations,
irrespective of whether or not any or all of the Loans and all other Obligations
have been declared to be, or have otherwise become, due and payable as permitted
by Section 10.2., and although such obligations shall be contingent or unmatured.
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Section 12.4. Litigation; Jurisdiction; Other Matters; Waivers.
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(a)
EACH PARTY HERETO
ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG THE BORROWER, THE
AGENT OR ANY OF THE LENDERS WOULD BE BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW
AND FACT AND WOULD RESULT IN DELAY AND EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LENDERS, THE AGENT AND THE
BORROWER HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF
ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY
OR AGAINST ANY PARTY HERETO ARISING OUT OF THIS AGREEMENT, THE NOTES, OR ANY OTHER
LOAN DOCUMENT OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE
WHATSOEVER BETWEEN OR AMONG THE BORROWER, THE AGENT OR ANY OF THE LENDERS OF ANY
KIND OR NATURE.
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(b) EACH OF THE BORROWER, THE AGENT AND EACH LENDER HEREBY AGREES THAT ANY FEDERAL DISTRICT COURT LOCATED IN NORTH CAROLINA OR, AT THE OPTION OF THE AGENT, ANY STATE COURT LOCATED IN CHARLOTTE, NORTH CAROLINA, SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG THE BORROWER, THE AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, THE LOANS AND LETTERS OF CREDIT, THE NOTES OR ANY OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. THE BORROWER AND EACH OF THE LENDERS EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS. EACH PARTY FURTHER WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME. THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING | |
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OF ANY ACTION BY THE AGENT OR ANY LENDER OR THE ENFORCEMENT BY THE AGENT OR ANY
LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE
JURISDICTION.
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(c)
THE PROVISIONS OF
THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY WITH THE ADVICE OF COUNSEL AND
WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE THE
PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER
LOAN DOCUMENTS, THE TERMINATION OR EXPIRATION OF ALL LETTERS OF CREDIT AND THE
TERMINATION OF THIS AGREEMENT.
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Section 12.5. Successors and Assigns.
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(a)
The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations under this
Agreement without the prior written consent of all Lenders and any such assignment
or other transfer to which all of the Lenders have not so consented shall be null
and void.
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(b)
Any Lender may make,
carry or transfer Loans at, to or for the account of any of its branch offices or
the office of an affiliate of such Lender except to the extent such transfer would
result in increased costs to the Borrower.
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(c) Any Lender may at any time grant to one or more banks or other financial institutions (each a “Participant”) participating interests in its Commitment or the Obligations owing to such Lender; provided, however, (i) any such participating interest must be for a constant and not a varying percentage interest (ii) no Lender may grant a participating interest in its Commitment, or if the Commitments have been terminated, the aggregate outstanding principal balance of Notes held by it, in an amount less than $5,000,000 and (iii) after giving effect to any such participation by a Lender, the amount of its Commitment, or if the Commitments have been terminated, the aggregate outstanding principal balance of Notes held by it, in which it has not granted any participating interests much be equal to $5,000,000 and integral multiples of $1,000,000 in excess thereof. Except as otherwise provided in Section 12.3., no Participant shall have any rights or benefits under this Agreement or any other Loan Document. In the event of any such grant by a Lender of a participating interest to a Participant, such Lender shall remain responsible for the performance of its obligations hereunder, and the Borrower and the Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement pursuant to which any Lender may grant such a participating interest shall provide that such Lender shall retain the sole right and responsibility to enforce the obligations of the Borrower hereunder including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement; provided, however, such Lender may agree with the Participant that it will not, without the consent of the Participant, agree to (i) increase, or extend the term or extend the time or waive any requirement for the reduction or termination of, such Lender’s Commitment, (ii) extend the date fixed for the payment of principal of or interest on the Loans or portions thereof owing to such Lender, (iii) reduce the | |
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amount of any such payment of principal, (iv) reduce the rate at which interest is
payable thereon or (v) release any Guarantor (except as otherwise permitted under
Section 7.11.(b)). An assignment or other transfer which is not permitted by
subsection (d) or (e) below shall be given effect for purposes of this Agreement
only to the extent of a participating interest granted in accordance with this
subsection (c). Upon request from the Agent, a Lender shall notify the Agent of
the sale of any participation hereunder and, if requested by the Agent, certify to
the Agent that such participation is permitted hereunder.
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(d)
Any Lender may with
the prior written consent of the Agent and, so long as no Default or Event of
Default shall have occurred and be continuing, the Borrower (which consent, in
each case, shall not be unreasonably withheld), assign to one or more Eligible
Assignees (each an “Assignee”) all or a portion of its Commitment and
its other rights and obligations under this Agreement and the Notes; provided,
however, (i) no such consent by the Borrower shall be required in the case of any
assignment to another Lender or any affiliate of such Lender or another Lender and
no such consent by the Agent shall be required in the case of any assignment by a
Lender to any affiliate of such Lender; (ii) any partial assignment shall be in an
amount at least equal to $5,000,000 and integral multiples of $1,000,000 in excess
thereof and after giving effect to such assignment the assigning Lender retains a
Commitment, or if the Commitments have been terminated, holds Notes having an
aggregate outstanding principal balance, of at least $5,000,000 and integral
multiples of $1,000,000 in excess thereof; and (iii) each such assignment shall be
effected by means of an Assignment and Acceptance Agreement. Upon execution and
delivery of such instrument and payment by such Assignee to such transferor Lender
of an amount equal to the purchase price agreed between such transferor Lender and
such Assignee, such Assignee shall be deemed to be a Lender party to this
Agreement as of the effective date of the Assignment and Acceptance Agreement and
shall have all the rights and obligations of a Lender with a Commitment as set
forth in such Assignment and Acceptance Agreement, and the transferor Lender shall
be released from its obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required. Upon the consummation of
any assignment pursuant to this subsection (d), the transferor Lender, the Agent
and the Borrower shall make appropriate arrangements so that new Notes are issued
to the Assignee and such transferor Lender, as appropriate. In connection with any
such assignment, the transferor Lender shall pay to the Agent an administrative
fee for processing such assignment in the amount of $3,500.
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(e) Any Lender (each, a “Designating Lender”) may at any time while the Borrower has been assigned an Investment Grade Rating from either S&P or Xxxxx’x designate one Designated Lender to fund Bid Rate Loans on behalf of such Designating Lender subject to the terms of this subsection (e) and the provisions in the immediately preceding subsections (c) and (d) shall not apply to such designation. No Lender may designate more than one Designated Lender. The parties to each such designation shall execute and deliver to the Agent for its acceptance a Designation Agreement. Upon such receipt of an appropriately completed Designation Agreement executed by a Designating Lender and a designee representing that it is a Designated Lender, the Agent will accept such Designation Agreement and give prompt notice thereof to the Borrower, whereupon (i) the Borrower shall execute and deliver to the Designating Lender a Designated Lender Note payable to the order of the Designated Lender, (ii) from and after the effective date specified in the Designation Agreement, the Designated Lender shall | |
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become a party to this Agreement with a right to make Bid Rate Loans on behalf of
its Designating Lender pursuant to Section 2.2. after the Borrower has accepted a
Bid Rate Loan (or portion thereof) of the Designating Lender, and (iii) the
Designated Lender shall not be required to make payments with respect to any
obligations in this Agreement except to the extent of excess cash flow of such
Designated Lender which is not otherwise required to repay obligations of such
Designated Lender which are then due and payable; provided, however, that
regardless of such designation and assumption by the Designated Lender, the
Designating Lender shall be and remain obligated to the Borrower, the Agent and
the Lenders for each and every of the obligations of the Designating Lender and
its related Designated Lender with respect to this Agreement, including, without
limitation, any indemnification obligations under Section 11.7. and any sums
otherwise payable to the Borrower by the Designated Lender. Each Designating
Lender shall serve as the administrative agent of the Designated Lender and shall
on behalf of, and to the exclusion of, the Designated Lender: (i) receive any and
all payments made for the benefit of the Designated Lender and (ii) give and
receive all communications and notices and take all actions hereunder, including,
without limitation, votes, approvals, waivers, consents and amendments under or
relating to this Agreement and the other Loan Documents. Any such notice,
communication, vote, approval, waiver, consent or amendment shall be signed by the
Designating Lender as administrative agent for the Designated Lender and shall not
be signed by the Designated Lender on its own behalf and shall be binding on the
Designated Lender to the same extent as if signed by the Designated Lender on its
own behalf. The Borrower, the Agent and the Lenders may rely thereon without any
requirement that the Designated Lender sign or acknowledge the same. No Designated
Lender may assign or transfer all or any portion of its interest hereunder or
under any other Loan Document, other than assignments to the Designating Lender
which originally designated such Designated Lender. The Borrower, the Lenders and
the Agent each hereby agrees that it will not institute against any Designated
Lender or join any other Person in instituting against any Designated Lender any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding
under any federal or state bankruptcy or similar law, until the later to occur of
(x) one year and one day after the payment in full of the latest maturing
commercial paper note issued by such Designated Lender and (y) the Termination
Date.
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(f) The Agent shall maintain at the Principal Office a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of each Lender from time to time (the “Register”). The Agent shall give each Lender and the Borrower notice of the assignment by any Lender of its rights as contemplated by this Section. The Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register and copies of each Assignment and Acceptance Agreement shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice to the Agent. Upon its receipt of an Assignment and Acceptance Agreement executed by an assigning Lender, together with each Note subject to such assignment, the Agent shall, if such Assignment and Acceptance Agreement has been completed and if the Agent receives the processing and recording fee described in subsection (d) above, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. | |
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(g)
In addition to the
assignments and participations permitted under the foregoing provisions of this
Section, any Lender may assign and pledge all or any portion of its Loans and its
Notes to any Federal Reserve Bank as collateral security pursuant to Regulation A
and any Operating Circular issued by such Federal Reserve Bank, and such Loans and
Notes shall be fully transferable as provided therein. No such assignment shall
release the assigning Lender from its obligations hereunder.
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(h)
A Lender may furnish
any information concerning the Borrower, any other Loan Party or any of their
respective Subsidiaries in the possession of such Lender from time to time to
Assignees and Participants (including prospective Assignees and Participants)
subject to compliance with Section 12.8.
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(i)
Anything in this
Section to the contrary notwithstanding, no Lender may assign or participate any
interest in any Loan held by it hereunder to the Borrower, any other Loan Party or
any of their respective Affiliates or Subsidiaries.
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(j)
Each Lender agrees
that, without the prior written consent of the Borrower and the Agent, it will not
make any assignment hereunder in any manner or under any circumstances that would
require registration or qualification of, or filings in respect of, any Loan or
Note under the Securities Act or any other securities laws of the United States of
America or of any other jurisdiction.
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Section 12.6. Amendments.
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Except as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Lenders may be given, and any term of this Agreement or of any other Loan Document may be amended, and the performance or observance by the Borrower or any other Loan Party or any Subsidiary of any terms of this Agreement or such other Loan Document or the continuance of any Default or Event of Default may be waived (either generally or in a particular instance and either retroactively or prospectively) with, but only with, the written consent of the Requisite Lenders (and, in the case of an amendment to any Loan Document, the written consent of the Borrower). Notwithstanding the foregoing, no amendment, waiver or consent shall, unless in writing, and signed by all of the Lenders (or the Agent at the written direction of the Lenders), do any of the following: (i) change the Commitments of the Lenders (except for (x) any increase in the Commitments effectuated pursuant to Section 2.15. or (y) any decrease in the Commitments effectuated pursuant to Section 2.14. or that is pro rata in accordance with the respective amounts of the Lenders’ Commitments) or subject the Lenders to any additional obligations; (ii) reduce the principal of, or interest rates that have accrued or that will be charged on the outstanding principal amount of, any Loans or Fees or other Obligations; (iii) reduce the amount of any Fees payable hereunder; (iv) modify the definition of the term “Termination Date” (except as contemplated under Section 2.12.) or otherwise postpone any date fixed for any payment of any principal of, or interest on, any Loans or any other Obligations (including the waiver of any Default or Event of Default as a result of the nonpayment of any such Obligations as and when due), or extend the expiration date of any Letter of Credit beyond the Termination Date; (v) amend or otherwise modify the provisions of Section 3.2.; (vi) modify the definition of the | |
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term “Requisite Lenders”, or modify in any other manner the number or
percentage of the Lenders required to make any determinations or waive any rights
hereunder or to modify any provision hereof, including without limitation, any
modification of this Section 12.6. if such modification would have such effect;
(vii) release any Guarantor from its obligations under the Guaranty (except as
otherwise permitted under Section 7.11.(b)); (viii) amend or otherwise modify the
provisions of Section 2.16.(a); or (ix) amend Section 9.1.(d), waive any Default
or Event of Default occurring under Section 10.1.(c)(i) resulting from a violation
of such Section, or modify the definition of the terms “Unsecured Debt”
and “Unencumbered Asset Value”. Further, no amendment, waiver or consent
unless in writing and signed by the Agent, in addition to the Lenders required
hereinabove to take such action, shall affect the rights or duties of the Agent
under this Agreement or any of the other Loan Documents. Any amendment, waiver or
consent relating to Section 2.3. or the obligations of the Swingline Lender under
this Agreement or any other Loan Document shall, in addition to the Lenders
required hereinabove to take such action, require the written consent of the
Swingline Lender. No waiver shall extend to or affect any obligation not expressly
waived or impair any right consequent thereon and any amendment, waiver or consent
shall be effective only in the specific instance and for the specific purpose set
forth therein. No course of dealing or delay or omission on the part of the Agent
or any Lender in exercising any right shall operate as a waiver thereof or
otherwise be prejudicial thereto. Except as otherwise explicitly provided for
herein or in any other Loan Document, no notice to or demand upon the Borrower
shall entitle the Borrower to any other or further notice or demand in similar or
other circumstances.
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Section 12.7. Nonliability of Agent and Lenders.
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The relationship
between the Borrower and the Lenders and the Agent shall be solely that of
borrower and lender. Neither the Agent nor any Lender shall have any fiduciary
responsibilities to the Borrower and no provision in this Agreement or in any of
the other Loan Documents, and no course of dealing between or among any of the
parties hereto, shall be deemed to create any fiduciary duty owing by the Agent or
any Lender to any Lender, the Borrower, any Subsidiary or any other Loan Party.
Neither the Agent nor any Lender undertakes any responsibility to the Borrower to
review or inform the Borrower of any matter in connection with any phase of the
Borrower’s business or operations.
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Section 12.8. Confidentiality.
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Except as otherwise provided by Applicable Law, the Agent and each Lender shall utilize all non-public information obtained pursuant to the requirements of this Agreement which has been identified as confidential or proprietary by the Borrower in accordance with its customary procedure for handling confidential information of this nature and in accordance with safe and sound banking practices but in any event may make disclosure: (a) to any of their respective affiliates (provided they shall agree to keep such information confidential in accordance with the terms of this Section 12.8.); (b) as reasonably requested by any bona fide Assignee, Participant or other transferee in connection with the contemplated transfer of any Commitment or participations therein as permitted hereunder (provided they shall agree to keep such information confidential in accordance with the terms of this Section); (c) as required or requested by any Governmental Authority or representative thereof or pursuant to legal process or in connection with any legal proceedings; (d) to the Agent’s or such Lender’s independent auditors and other | |
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professional advisors (provided they shall be notified of the confidential nature
of the information); (e) after the happening and during the continuance of an
Event of Default, to any other Person, in connection with the exercise by the
Agent or the Lenders of rights hereunder or under any of the other Loan Documents;
(f) upon Borrower’s prior consent (which consent shall not be unreasonably
withheld), to any contractual counter-parties to any swap or similar hedging
agreement or to any rating agency; and (g) to the extent such information (x)
becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to the Agent or any Lender on a nonconfidential basis from a
source other than the Borrower or any Affiliate. Notwithstanding anything to the
contrary set forth herein or in any other written or oral understanding or
agreement to which the parties hereto are parties or by which they are bound, the
parties hereto acknowledge and agree that (i) any obligations of confidentiality
contained herein and therein do not apply and have not applied from the
commencement of discussions between the parties to the tax treatment and tax
structure of the transactions contemplated by the Loan Documents (and any related
transactions or arrangements), and (ii) each party (and each of its employees,
representatives, or other agents) may disclose to any and all Persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
contemplated by the Loan Documents and all materials of any kind (including
opinions or other tax analyses) that are provided to such party relating to such
tax treatment and tax structure, all within the meaning of Treasury Regulations
Section 1.6011-4; provided, however, that with respect to any
document or similar item that in either case contains information concerning the
tax treatment or tax structure of the transactions contemplated by the Loan
Documents as well as other information, this sentence shall only apply to such
portions of the document or similar item that relate to the tax treatment or tax
structure of the transactions contemplated by the Loan Documents; provided,
further, however, to the extent not inconsistent with the
immediately preceding clause (ii), the parties hereto do not intend anything
contained in this sentence to be a waiver of the privilege each has to maintain,
in its sole discretion, the confidentiality of a communication with its attorney
or a confidential communication with a federally authorized tax practitioner under
Section 7525 of the Internal Revenue Code relating to the transactions
contemplated by the Loan Documents.
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Section 12.9. Indemnification.
| |
(a) The Borrower shall and hereby agrees to indemnify, defend and hold harmless the Agent, each of the Lenders, any affiliate of the Agent or any Lender, and their respective directors, officers, shareholders, agents, employees and counsel (each referred to herein as an “Indemnified Party”) from and against any and all of the following (collectively, the “Indemnified Costs”): losses, costs, claims, damages, liabilities, deficiencies, judgments or expenses of every kind and nature (including, without limitation, amounts paid in settlement, court costs and the reasonable fees and disbursements of counsel incurred in connection with any litigation, investigation, claim or proceeding or any advice rendered in connection therewith, but excluding losses, costs, claims, damages, liabilities, deficiencies, judgments or expenses indemnification in respect of which is specifically covered by Section 3.12. or 4.1. or expressly excluded from the coverage of such Sections 3.12. or 4.1.) incurred by an Indemnified Party in connection with, arising out of, or by reason of, any suit, cause of action, claim, arbitration, investigation or settlement, consent decree or other proceeding (the foregoing referred to herein as an “Indemnity Proceeding”) which is in any way related directly or indirectly to: (i) this Agreement or any other Loan Document or the transactions contemplated thereby; (ii) the | |
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making of any Loans or issuance of Letters of Credit hereunder; (iii) any actual
or proposed use by the Borrower of the proceeds of the Loans or Letters of Credit;
(iv) the Agent’s or any Lender’s entering into this Agreement; (v) the
fact that the Agent and the Lenders have established the credit facility evidenced
hereby in favor of the Borrower; (vi) the fact that the Agent and the Lenders are
creditors of the Borrower and have or are alleged to have information regarding
the financial condition, strategic plans or business operations of the Borrower
and the Subsidiaries; (vii) the fact that the Agent and the Lenders are material
creditors of the Borrower and are alleged to influence directly or indirectly the
business decisions or affairs of the Borrower and the Subsidiaries or their
financial condition; (viii) the exercise of any right or remedy the Agent or the
Lenders may have under this Agreement or the other Loan Documents; provided,
however, that the Borrower shall not be obligated to indemnify any Indemnified
Party for any acts or omissions of such Indemnified Party in connection with
matters described in this clause (viii) that constitute gross negligence or
willful misconduct; or (ix) any violation or non-compliance by the Borrower or any
Subsidiary of any Applicable Law (including any Environmental Law) including, but
not limited to, any Indemnity Proceeding commenced by (A) the Internal Revenue
Service or state taxing authority or (B) any Governmental Authority or other
Person under any Environmental Law, including any Indemnity Proceeding commenced
by a Governmental Authority or other Person seeking remedial or other action to
cause the Borrower or its Subsidiaries (or its respective properties) (or the
Agent and/or the Lenders as successors to the Borrower) to be in compliance with
such Environmental Laws.
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(b)
The Borrower’s
indemnification obligations under this Section 12.9. shall apply to all Indemnity
Proceedings arising out of, or related to, the foregoing whether or not an
Indemnified Party is a named party in such Indemnity Proceeding. In this
connection, this indemnification shall cover all Indemnified Costs of any
Indemnified Party in connection with any deposition of any Indemnified Party or
compliance with any subpoena (including any subpoena requesting the production of
documents). This indemnification shall, among other things, apply to any Indemnity
Proceeding commenced by other creditors of the Borrower or any Subsidiary, any
shareholder of the Borrower or any Subsidiary (whether such shareholder(s) are
prosecuting such Indemnity Proceeding in their individual capacity or derivatively
on behalf of the Borrower), any account debtor of the Borrower or any Subsidiary
or by any Governmental Authority. If indemnification is to be sought hereunder by
an Indemnified Party, then such Indemnified Party shall notify the Borrower of the
commencement of any Indemnity Proceeding; provided, however, that the failure to
so notify the Borrower shall not relieve the Borrower from any liability that it
may have to such Indemnified Party pursuant to this Section 12.9.
| |
(c)
This indemnification
shall apply to any Indemnity Proceeding arising during the pendency of any
bankruptcy proceeding filed by or against the Borrower and/or any Subsidiary.
| |
(d) All out-of-pocket fees and expenses of, and all amounts paid to third-persons by, an Indemnified Party shall be advanced by the Borrower at the request of such Indemnified Party notwithstanding any claim or assertion by the Borrower that such Indemnified Party is not entitled to indemnification hereunder upon receipt of an undertaking by such Indemnified Party that such Indemnified Party will reimburse the Borrower if it is actually and finally determined by a court of competent jurisdiction that such Indemnified Party is not so entitled to | |
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indemnification hereunder together with reasonable costs of collection actually
incurred, including court costs and attorneys fees.
| |
(e)
An Indemnified Party
may conduct its own investigation and defense of, and may formulate its own
strategy with respect to, any Indemnity Proceeding covered by this Section and, as
provided above, all Indemnified Costs incurred by such Indemnified Party shall be
reimbursed by the Borrower. No action taken by legal counsel chosen by an
Indemnified Party in investigating or defending against any such Indemnity
Proceeding shall vitiate or in any way impair the obligations and duties of the
Borrower hereunder to indemnify and hold harmless each such Indemnified Party;
provided, however, that (i) if the Borrower is required to indemnify an
Indemnified Party pursuant hereto and (ii) the Borrower has provided evidence
reasonably satisfactory to such Indemnified Party that the Borrower has the
financial wherewithal to reimburse such Indemnified Party for any amount paid by
such Indemnified Party with respect to such Indemnity Proceeding, such Indemnified
Party shall not settle or compromise any such Indemnity Proceeding without the
prior written consent of the Borrower (which consent shall not be unreasonably
withheld or delayed).
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(f)
If and to the extent
that the obligations of the Borrower under this Section are unenforceable for any
reason, the Borrower hereby agrees to make the maximum contribution to the payment
and satisfaction of such obligations which is permissible under Applicable Law.
| |
(g)
The Borrower’s
obligations under this Section shall survive any termination of this Agreement and
the other Loan Documents and the payment in full in cash of the Obligations, and
are in addition to, and not in substitution of, any other of their obligations set
forth in this Agreement or any other Loan Document to which it is a party.
| |
Section 12.10. Termination; Survival.
| |
At such time as (a)
all of the Commitments have been terminated, (b) all Letters of Credit have
terminated, (c) none of the Lenders nor the Swingline Lender is obligated any
longer under this Agreement to make any Loans and (d) all Obligations (other than
obligations which survive as provided in the following sentence) have been paid
and satisfied in full, this Agreement shall terminate. The indemnities to which
the Agent, the Lenders and the Swingline Lender are entitled under the provisions
of Sections 3.12., 4.1., 4.4., 11.7., 12.2. and 12.9. and any other provision of
this Agreement and the other Loan Documents, and the provisions of Section 12.4.,
shall continue in full force and effect and shall protect the Agent, the Lenders
and the Swingline Lender (i) notwithstanding any termination of this Agreement, or
of the other Loan Documents, against events arising after such termination as well
as before and (ii) at all times after any such party ceases to be a party to this
Agreement with respect to all matters and events existing on or prior to the date
such party ceased to be a party to this Agreement.
| |
Section 12.11. Severability of Provisions.
| |
Any provision of this Agreement 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 or affecting the validity or enforceability of such provision in any other jurisdiction. | |
-91- |
Section 12.12. GOVERNING LAW.
| |
THIS AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
| |
Section 12.13. Counterparts.
| |
This Agreement and
any amendments, waivers, consents or supplements may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all of which
counterparts together shall constitute but one and the same instrument.
| |
Section 12.14. Obligations with Respect to Loan Parties.
| |
The obligations of the
Borrower to direct or prohibit the taking of certain actions by the other Loan
Parties as specified herein shall be absolute and not subject to any defense the
Borrower may have that the Borrower does not control such Loan Parties.
| |
Section 12.15. Limitation of Liability.
| |
Neither the Agent nor
any Lender, nor any affiliate, officer, director, employee, attorney, or agent of
the Agent or any Lender shall have any liability with respect to, and the Borrower
hereby waives, releases, and agrees not to xxx any of them upon, any claim for any
special, indirect, incidental, or consequential damages suffered or incurred by
the Borrower in connection with, arising out of, or in any way related to, this
Agreement or any of the other Loan Documents, or any of the transactions
contemplated by this Agreement or any of the other Loan Documents. The Borrower
hereby waives, releases, and agrees not to xxx the Agent or any Lender or any of
the Agent’s or any Lender’s affiliates, officers, directors, employees,
attorneys, or agents for punitive damages in respect of any claim in connection
with, arising out of, or in any way related to, this Agreement or any of the other
Loan Documents, or any of the transactions contemplated by this Agreement or
financed hereby.
| |
Section 12.16. Entire Agreement.
| |
This Agreement, the
Notes, and the other Loan Documents referred to herein embody the final, entire
agreement among the parties hereto and supersede any and all prior commitments,
agreements, representations, and understandings, whether written or oral, relating
to the subject matter hereof and thereof and may not be contradicted or varied by
evidence of prior, contemporaneous, or subsequent oral agreements or discussions
of the parties hereto. There are no oral agreements among the parties hereto.
| |
Section 12.17. Construction.
| |
The Agent, the Borrower and each Lender acknowledge that each of them has had the benefit of legal counsel of its own choice and has been afforded an opportunity to review this | |
-92- |
Agreement and the other Loan Documents with its legal counsel and that this
Agreement and the other Loan Documents shall be construed as if jointly drafted by
the Agent, the Borrower and each Lender.
| |
Section 12.18. NO NOVATION.
| |
THE PARTIES HERETO
HAVE ENTERED INTO THIS AGREEMENT SOLELY TO AMEND AND RESTATE THE TERMS OF THE
EXISTING CREDIT AGREEMENT. THE PARTIES DO NOT INTEND THIS AGREEMENT NOR THE
TRANSACTIONS CONTEMPLATED HEREBY TO BE, AND THIS AGREEMENT AND THE TRANSACTION
CONTEMPLATED HEREBY SHALL NOT BE CONSTRUED TO BE, A NOVATION OF ANY OF THE
OBLIGATIONS OWING BY BORROWER UNDER OR IN CONNECTION WITH THE EXISTING CREDIT
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS (AS DEFINED IN THE EXISTING CREDIT
AGREEMENT).
| |
[Signatures on Following Pages]
| |
-93- |
IN WITNESS WHEREOF,
the parties hereto have caused this Seventh Amended and Restated Credit Agreement
to be executed by their authorized officers all as of the day and year first above
written.
|
COMMERCIAL NET LEASE REALTY, INC. | |
STATE OF GEORGIA
| |
COUNTY OF XXXXXX
| |
BEFORE ME, a Notary
Public in and for said County, personally appeared ____________________, known to
me to be a person who, as _______________ of Commercial Net Lease Realty, Inc.,
the entity which executed the foregoing Credit Agreement, signed the same, and
acknowledged to me that he did so sign said instrument in the name and upon behalf
of said corporation as an officer of said corporation.
| |
IN TESTIMONY WHEREOF,
I have subscribed my name, and affixed my official seal, as of May 9, 2003.
|
_____________________________________ | |
[Signatures Continued on Next Page]
| |
-94- |
[Signature Page to Seventh Amended and Restated Credit Agreement dated as of | |
WACHOVIA BANK, NATIONAL ASSOCIATION, as | |
[Signatures Continued on Next Page]
| |
-95- |
[Signature Page to Seventh Amended and Restated Credit Agreement dated as of | |
XXXXX FARGO BANK, NATIONAL ASSOCIATION | |
[Signatures Continued on Next Page]
| |
-96- |
[Signature Page to Seventh Amended and Restated Credit Agreement dated as of | |
AMSOUTH BANK | |
[Signatures Continued on Next Page]
| |
-97- |
[Signature Page to Seventh Amended and Restated Credit Agreement dated as of | |
SUNTRUST BANK | |
[Signatures Continued on Next Page]
| |
-98- |
[Signature Page to Seventh Amended and Restated Credit Agreement dated as of | |
BANK OF AMERICA, N.A. | |
[Signatures Continued on Next Page]
| |
-99- |
[Signature Page to Seventh Amended and Restated Credit Agreement dated as of | |
COMERICA INC. | |
[Signatures Continued on Next Page]
| |
-100- |
[Signature Page to Seventh Amended and Restated Credit Agreement dated as of | |
CHEVY CHASE BANK, FSB | |
[Signatures Continued on Next Page]
| |
-101- |
[Signature Page to Seventh Amended and Restated Credit Agreement dated as of | |
PNC BANK, NATIONAL ASSOCIATION | |
[Signatures Continued on Next Page]
| |
-102- |
[Signature Page to Seventh Amended and Restated Credit Agreement dated as of | |
CITICORP NORTH AMERICA, INC. | |
-103- |
EXHIBIT A | |
THIS ASSIGNMENT AND
ACCEPTANCE AGREEMENT dated as of ___________, 200_ (the “Agreement”) by
and among _________________________ (the “Assignor”),
_________________________ (the “Assignee”), and WACHOVIA BANK, NATIONAL
ASSOCIATION, as Agent (the “Agent”).
| |
WHEREAS, the Assignor
is a Lender under that certain Seventh Amended and Restated Credit Agreement dated
as of May 9, 2003 (as amended, restated, supplemented or otherwise modified from
time to time, the “Credit Agreement”), by and among Commercial Net Lease
Realty, Inc. (the “Borrower”), the financial institutions party thereto
and their assignees under Section 12.5. thereof (the “Lenders”), the
Agent, and the other parties thereto;
| |
WHEREAS, the Assignor
desires to assign to the Assignee, among other things, all or a portion of the
Assignor’s Commitment under the Credit Agreement, all on the terms and
conditions set forth herein; and
| |
WHEREAS, the Agent
consents to such assignment on the terms and conditions set forth herein;
| |
NOW, THEREFORE, for
good and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged by the parties hereto, the parties hereto hereby agree as follows:
| |
Section 1.
Assignment.
| |
(a) Subject to the terms and conditions of this Agreement and in consideration of the payment to be made by the Assignee to the Assignor pursuant to Section 2 of this Agreement, effective as of ____________, 200_ (the “Assignment Date”), the Assignor hereby irrevocably sells, transfers and assigns to the Assignee, without recourse, a $__________ interest (such interest being the “Assigned Commitment”) in and to the Assignor’s Commitment and all of the other rights and obligations of the Assignor under the Credit Agreement, such Assignor’s Revolving Note and the other Loan Documents (representing ______% in respect of the aggregate amount of all Lenders’ Commitments), including without limitation, a principal amount of outstanding Revolving Loans equal to $_________ and all voting rights of the Assignor associated with the Assigned Commitment, all rights to receive interest on such amount of Revolving Loans and all commitment and other Fees with respect to the Assigned Commitment and other rights of the Assignor under the Credit Agreement and the other Loan Documents with respect to the Assigned Commitment, all as if the Assignee were an original Lender under and signatory to the Credit Agreement having a Commitment equal to the amount of the Assigned Commitment. The Assignee, subject to the terms and conditions hereof, hereby assumes all obligations of the Assignor with respect to the Assigned Commitment as if the Assignee were an original Lender under and signatory to the Credit Agreement having a Commitment equal to the Assigned Commitment, which obligations shall include, but shall not be limited to, the obligation of the Assignor to make Revolving Loans to the Borrower with | |
A-1 |
respect to the Assigned Commitment, the obligation to pay the Agent amounts due in
respect of draws under Letters of Credit as required under Section 2.4.(i) of the
Credit Agreement and the obligation to indemnify the Agent as provided therein
(the foregoing enumerated obligations, together with all other similar obligations
more particularly set forth in the Credit Agreement and the other Loan Documents,
collectively, the “Assigned Obligations”). [In addition, the Assignor
hereby irrevocably sells, transfers and assigns to the Assignee, without recourse,
a $____________ interest in and to the Assignor’s Bid Rate Note, including
without limitation, a principal amount of outstanding Bid Rate Loans owing to the
Assignor in an aggregate amount equal to $__________, all rights to receive
interest on such amount of Bid Rate Loans and other rights of the Assignor under
the Credit Agreement and the other Loan Documents with respect to such Bid Rate
Loans, all as if the Assignee had originally made such amount of Bid Rate Loans to
the Borrower. The obligations assigned pursuant to the immediately preceding
sentence shall constitute Assigned Obligations hereunder.] The Assignor shall have
no further duties or obligations with respect to, and shall have no further
interest in, the Assigned Obligations or the Assigned Commitment from and after
the Assignment Date.
| |
(b) The assignment by the Assignor to the Assignee hereunder is without recourse to the Assignor. The Assignee makes and confirms to the Agent, the Assignor, and the other Lenders all of the representations, warranties and covenants of a Lender under Article XI. of the Credit Agreement. Not in limitation of the foregoing, the Assignee acknowledges and agrees that, except as set forth in Section 4 below, the Assignor is making no representations or warranties with respect to, and the Assignee hereby releases and discharges the Assignor for any responsibility or liability for: (i) the present or future solvency or financial condition of the Borrower, any Subsidiary or any other Loan Party, (ii) any representations, warranties, statements or information made or furnished by the Borrower, any Subsidiary or any other Loan Party in connection with the Credit Agreement or otherwise, (iii) the validity, efficacy, sufficiency, or enforceability of the Credit Agreement, any other Loan Document or any other document or instrument executed in connection therewith, or the collectibility of the Assigned Obligations, (iv) the perfection, priority or validity of any Lien with respect to any collateral at any time securing the Obligations or the Assigned Obligations under the Notes or the Credit Agreement and (v) the performance or failure to perform by the Borrower or any other Loan Party of any obligation under the Credit Agreement or any other Loan Document to which it is a party. Further, the Assignee acknowledges that it has, independently and without reliance upon the Agent, or on any affiliate or subsidiary thereof, the Assignor or any other Lender and based on the financial statements supplied by the Borrower and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to become a Lender under the Credit Agreement. The Assignee also acknowledges that it will, independently and without reliance upon the Agent, the Assignor or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement or any other Loan Documents or pursuant to any other obligation. Except as expressly provided in the Credit Agreement, the Agent shall have no duty or responsibility whatsoever, either initially or on a continuing basis, to provide the Assignee with any credit or other information with respect to the Borrower or any other Loan Party or to notify the Assignee of any Default or Event of Default. The Assignee has not relied on the Agent as to any legal or factual matter in connection therewith or in connection with the transactions contemplated thereunder. | |
A-2 |
Section 2.
Payment by Assignee.
In consideration of the assignment made pursuant to
Section 1 of this Agreement, the Assignee agrees to pay to the Assignor on
the Assignment Date, an amount equal to $_________ representing (i) the aggregate
principal amount outstanding of the Loans owing to the Assignor under the Credit
Agreement and the other Loan Documents being assigned hereby plus (ii) the
aggregate amount of payments previously made by Assignor under Section 2.4.(j) of
the Credit Agreement which have not been repaid and which are being assigned
hereby.
| |
Section 3.
Payments by
Assignor.
The Assignor agrees to pay to the Agent on the Assignment
Date the administration fee, if any, payable under the applicable provisions of
the Credit Agreement.
| |
Section 4.
Representations
and Warranties of Assignor.
The Assignor hereby represents and warrants to the
Assignee that (a) as of the Assignment Date (i) the Assignor is a Lender under the
Credit Agreement having a Commitment under the Credit Agreement [and the
outstanding principal balance of Bid Rate Loans owing to the Assignor] (without
reduction by any assignments thereof which have not yet become effective), equal
to $____________ [and $__________, respectively], and that the Assignor is not in
default of its obligations under the Credit Agreement; and (ii) the outstanding
balance of Revolving Loans owing to the Assignor (without reduction by any
assignments thereof which have not yet become effective) is $____________; and (b)
it is the legal and beneficial owner of the Assigned Commitment which is free and
clear of any adverse claim created by the Assignor.
| |
Section 5.
Representations,
Warranties and Agreements of Assignee.
The Assignee (a) represents and warrants that it is (i)
legally authorized to enter into this Agreement, (ii) an “accredited
investor” (as such term is used in Regulation D of the Securities Act) and
(iii) an Eligible Assignee; (b) confirms that it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements delivered
pursuant thereto and such other documents and information (including without
limitation the Loan Documents) as it has deemed appropriate to make its own credit
analysis and decision to enter into this Agreement; (c) appoints and authorizes
the Agent to take such action as contractual representative on its behalf and to
exercise such powers under the Loan Documents as are delegated to the Agent by the
terms thereof together with such powers as are reasonably incidental thereto; and
(d) agrees that it will become a party to and shall be bound by the Credit
Agreement and the other Loan Documents to which the other Lenders are a party on
the Assignment Date and will perform in accordance therewith all of the
obligations which are required to be performed by it as a Lender.
| |
Section 6. Recording and Acknowledgment by the Agent. Following the execution of this Agreement, the Assignor will deliver to the Agent (a) a duly executed copy of this Agreement for acknowledgment and recording by the Agent and (b) the Assignor’s Revolving Note [and Bid Rate Note]. Upon such acknowledgment and recording, from and after the Assignment Date, the Agent shall make all payments in respect of the interest assigned hereby (including payments of principal, interest, Fees and other amounts) to the Assignee. The Assignor and Assignee shall make all appropriate adjustments in payments under the Credit Agreement for periods prior to the Assignment Date directly between themselves. | |
A-3 |
Section 7.
Addresses.
The Assignee specifies as its address for notices and its
Lending Office for all Loans, the offices set forth below:
| |
Notice Address:
_________________________________ | |
Section 8.
Payment Instructions.
All payments to be made to the Assignee under this
Agreement by the Assignor, and all payments to be made to the Assignee under the
Credit Agreement, shall be made as provided in the Credit Agreement in accordance
with the following instructions: | |
Section 9.
Effectiveness of Assignment.
This Agreement, and the assignment and assumption
contemplated herein, shall not be effective until (a) this Agreement is executed
and delivered by each of the Assignor, the Assignee, the Agent, and if required
under Section 12.5.(d) of the Credit Agreement, the Borrower, and (b) the payment
to the Assignor of the amounts, if any, owing by the Assignee pursuant to Section
2 hereof and (c) the payment to the Agent of the amounts, if any, owing by the
Assignor pursuant to Section 3 hereof. Upon recording and acknowledgment of this
Agreement by the Agent, from and after the Assignment Date, (i) the Assignee shall
be a party to the Credit Agreement and, to the extent provided in this Agreement,
have the rights and obligations of a Lender thereunder and (ii) the Assignor
shall, to the extent provided in this Agreement, relinquish its rights (except as
otherwise provided in Section 12.10. of the Credit Agreement) and be released from
its obligations under the Credit Agreement; provided, however, that
if the Assignor does not assign its entire interest under the Loan Documents, it
shall remain a Lender entitled to all of the benefits and subject to all of the
obligations thereunder with respect to its Commitment.
| |
Section 10.
Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO CONTRACTS
EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
| |
Section 11. Counterparts. This Agreement may be executed in any number of counterparts each of which, when taken together, shall constitute one and the same agreement. | |
A-4 |
Section 12.
Headings.
Section headings have been inserted herein for
convenience only and shall not be construed to be a part hereof.
| |
Section 13.
Amendments; Waivers.
This Agreement may not be amended, changed, waived or
modified except by a writing executed by the Assignee and the Assignor;
provided, however, any amendment, waiver or consent which shall
affect the rights or duties of the Agent under this Agreement shall not be
effective unless signed by the Agent.
| |
Section 14.
Entire Agreement.
This Agreement embodies the entire agreement between the
Assignor and the Assignee with respect to the subject matter hereof and supersedes
all other prior arrangements and understandings relating to the subject matter
hereof.
| |
Section 15.
Binding Effect.
This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
| |
Section 16.
Definitions.
Terms not otherwise defined herein are used herein with
the respective meanings given them in the Credit Agreement.
| |
[Include this Section only if Borrower’s consent is required under Section 12.5.(d)
Section 17. Agreements of the Borrower.
The Borrower hereby agrees that the Assignee shall be a
Lender under the Credit Agreement having a Commitment equal to the Assigned
Commitment. The Borrower agrees that the Assignee shall have all of the rights and
remedies of a Lender under the Credit Agreement and the other Loan Documents as if
the Assignee were an original Lender under and signatory to the Credit Agreement,
including, but not limited to, the right of a Lender to receive payments of
principal and interest with respect to the Assigned Obligations, and to the
Revolving Loans made by the Lenders after the date hereof and to receive the
commitment and other Fees payable to the Lenders as provided in the Credit
Agreement. Further, the Assignee shall be entitled to the indemnification
provisions from the Borrower in favor of the Lenders as provided in the Credit
Agreement and the other Loan Documents. The Borrower further agrees, upon the
execution and delivery of this Agreement, to execute in favor of the Assignee
Notes as required by Section 12.5.(d) of the Credit Agreement. Upon receipt by the
Assignor of the amounts due the Assignor under Section 2, the Assignor agrees to
surrender to the Borrower such Assignor’s Notes.]
| |
[Signatures on Following Pages]
| |
A-5 |
IN WITNESS WHEREOF,
the parties hereto have duly executed this Assignment and Acceptance Agreement as
of the date and year first written above.
|
ASSIGNOR: |
Accepted as of the date first written above. | |
[Signatures Continued on Following Page]
| |
A-6 |
[Include signature of the Borrower only if required | |
A-7 |
EXHIBIT B | |
THIS DESIGNATION
AGREEMENT dated as of ___________, 200__ (the “Agreement”) by and among
_________________________ (the“Lender”), _________________________ (the
“Designated Lender”) and Wachovia Bank, National Association, as Agent
(the “Agent”).
| |
WHEREAS, the Lender is
a Lender under that certain Seventh Amended and Restated Credit Agreement dated as
of May 9, 2003 (as amended, restated, supplemented or otherwise modified from time
to time, the “Credit Agreement”), by and among Commercial Net Lease
Realty, Inc. (the “Borrower”), the financial institutions party thereto
and their assignees under Section 12.5. thereof (the “Lenders”), the
Agent, and the other parties thereto;
| |
WHEREAS, pursuant to
Section 12.5.(e), the Lender desires to designate the Designated Lender as its
“Designated Lender” under and as defined in the Credit Agreement; and
| |
WHEREAS, the Agent
consents to such designation on the terms and conditions set forth herein.
| |
NOW, THEREFORE, for
good and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged by the parties hereto, the parties hereto hereby agree as follows:
| |
Section 1.
Designation.
Subject to the terms and conditions of this Agreement, the
Lender hereby designates the Designated Lender, and the Designated Lender hereby
accepts such designation, to have a right to make Bid Rate Loans on behalf of the
Lender pursuant to Section 2.2. of the Credit Agreement. Any assignment by the
Lender to the Designated Lender of rights to make a Bid Rate Loan shall only be
effective at the time such Bid Rate Loan is funded by the Designated Lender. The
Designated Lender, subject to the terms and conditions hereof, hereby agrees to
make such accepted Bid Rate Loans and to perform such other obligations as may be
required of it as a Designated Lender under the Credit Agreement.
| |
Section 2.
Lender Not Discharged.
Notwithstanding the designation of the Designated Lender
hereunder, the Lender shall be and remain obligated to the Borrower, the Agent and
the Lenders for each and every of the obligations of the Lender and its related
Designated Lender with respect to the Credit Agreement and the other Loan
Documents, including, without limitation, any indemnification obligations under
Section 11.7. of the Credit Agreement and any sums otherwise payable to the
Borrower by the Designated Lender.
| |
Section 3. No Representation by Lender. The Lender makes no representation or warranty and, except as set forth in Section 8 below, assumes no responsibility pursuant to this Agreement with respect to (a) any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of any Loan Document or any other instrument and document | |
B-1 |
furnished pursuant thereto and (b) the financial condition of the Borrower, any
Subsidiary or any other Loan Party or the performance or observance by the
Borrower or any other Loan Party of any of its respective obligations under any
Loan Document to which it is a party or any other instrument or document furnished
pursuant thereto.
| |
Section 4.
Representations and Covenants of Designated Lender.
The Designated Lender makes and confirms to the Agent, the
Lender, and the other Lenders all of the representations, warranties and covenants
of a Lender under Article XI. of the Credit Agreement. Not in limitation of the
foregoing, the Designated Lender (a) represents and warrants that it (i) is
legally authorized to enter into this Agreement; (ii) is an “accredited
investor” (as such term is used in Regulation D of the Securities Act) and
(iii) meets the requirements of a “Designated Lender” contained in the
definition of such term contained in the Credit Agreement; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant thereto and such other documents
and information (including without limitation the Loan Documents) as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Agreement; (c) confirms that it has, independently and without reliance upon the
Agent, or on any affiliate thereof, the Lender or any other Lender and based on
such financial statements and such other documents and information, made its own
credit analysis and decision to become a Designated Lender under the Credit
Agreement; (d) appoints and authorizes the Agent to take such action as
contractual representative on its behalf and to exercise such powers under the
Loan Documents as are delegated to the Agent by the terms thereof together with
such powers as are reasonably incidental thereto; and (e) agrees that it will
become a party to and shall be bound by the Credit Agreement, the other Loan
Documents to which the other Lenders are a party on the Effective Date (as defined
below) and will perform in accordance therewith all of the obligations which are
required to be performed by it as a Designated Lender. The Designated Lender also
acknowledges that it will, independently and without reliance upon the Agent, the
Lender or any other Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in taking
or not taking action under the Credit Agreement or any Note or pursuant to any
other obligation. The Designated Lender acknowledges and agrees that except as
expressly required under the Credit Agreement, the Agent shall have no duty or
responsibility whatsoever, either initially or on a continuing basis, to provide
the Designated Lender with any credit or other information with respect to the
Borrower, any Subsidiary or any other Loan Party or to notify the Designated
Lender of any Default or Event of Default.
| |
Section 5. Appointment of Lender as Attorney-In-Fact. The Designated Lender hereby appoints the Lender as the Designated Lender’s agent and attorney-in-fact, and grants to the Lender an irrevocable power of attorney, to receive any and all payments to be made for the benefit of the Designated Lender under the Credit Agreement, to deliver and receive all notices and other communications under the Credit Agreement and other Loan Documents and to exercise on the Designated Lender’s behalf all rights to vote and to grant and make approvals, waivers, consents of amendments to or under the Credit Agreement or other Loan Documents. Any document executed by the Lender on the Designated Lender’s behalf in connection with the Credit Agreement or other Loan Documents shall be binding on the Designated Lender. Each Borrower, each Agent and each of the Lenders may rely on and are beneficiaries of the preceding provisions. | |
B-2 |
Section 6.
Acceptance by the Agent.
Following the execution of this Agreement by the Lender
and the Designated Lender, the Lender will (i) deliver to the Agent a duly
executed original of this Agreement for acceptance by the Agent and (ii) pay to
the Agent the fee, if any, payable under the applicable provisions of the Credit
Agreement whereupon this Agreement shall become effective as of the date of such
acceptance or such other date as may be specified on the signature page hereof
(the “Effective Date”).
| |
Section 7.
Effect of Designation.
Upon such acceptance and recording by the Agent, as of
the Effective Date, the Designated Lender shall be a party to the Credit Agreement
with a right to make Bid Rate Loans as a Lender pursuant to Section 2.2. of the
Credit Agreement and the rights and obligations of a Lender related thereto;
provided, however, that the Designated Lender shall not be required
to make payments with respect to such obligations except to the extent of excess
cash flow of the Designated Lender which is not otherwise required to repay
obligations of the Designated Lender which are then due and payable.
Notwithstanding the foregoing, the Lender, as agent for the Designated Lender,
shall be and remain obligated to the Borrowers, the Agent and the Lenders for each
and every of the obligations of the Designated Lender and the Lender with respect
to the Credit Agreement.
| |
Section 8.
Indemnification of Designated Lender.
The Lender unconditionally agrees to pay or reimburse the
Designated Lender and save the Designated Lender harmless against all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed or
asserted by any of the parties to the Loan Documents against the Designated
Lender, in its capacity as such, in any way relating to or arising out of this
Agreement or any other Loan Documents or any action taken or omitted by the
Designated Lender hereunder or thereunder, provided that the Lender shall not be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements if the same
results from the Designated Lender’s gross negligence or willful misconduct.
| |
Section 9.
Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO CONTRACTS
EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
| |
Section 10.
Counterparts.
This Agreement may be executed in any number of
counterparts each of which, when taken together, shall constitute one and the same
agreement.
| |
Section 11.
Headings.
Section headings have been inserted herein for
convenience only and shall not be construed to be a part hereof.
| |
Section 12.
Amendments; Waivers.
This Agreement may not be amended, changed, waived or
modified except by a writing executed by all parties hereto.
| |
Section 13. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. | |
B-3 |
Section 14.
Definitions.
Terms not otherwise defined herein are used herein with
the respective meanings given them in the Credit Agreement.
| |
IN WITNESS WHEREOF,
the parties hereto have duly executed this Designation Agreement as of the date
and year first written above.
|
EFFECTIVE DATE: ___________________ |
Accepted as of the date first written above. | |
B-4 |
EXHIBIT C | |
Wachovia Bank, National Association, as Agent | |
Reference is made to
that certain Seventh Amended and Restated Credit Agreement dated as of May 9, 2003
(as amended, restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”), by and among Commercial Net Lease Realty, Inc. (the
“Borrower”), the financial institutions party thereto and their
assignees under Section 12.5. thereof (the “Lenders”), Wachovia Bank,
National Association, as Agent (the “Agent”), and the other parties
thereto. Capitalized terms used herein, and not otherwise defined herein, have
their respective meanings given them in the Credit Agreement.
|
1. |
Pursuant to Section 2.1.(b) of the Credit Agreement, the Borrower hereby requests
that the Lenders make Revolving Loans to the Borrower in an aggregate amount equal
to $______________________.
| |
2. |
The Borrower requests that such Revolving Loans be made available to the Borrower
on _______________, 200__.
| |
3. |
The Borrower hereby requests that the requested Revolving Loans all be of the
following Type:
| |
[Check one box only]
| ||
Base Rate Loans
| ||
LIBOR Loans,
each with an initial Interest Period for a duration of:
| ||
[Check one box only]
1 week
| ||
4. |
The proceeds of this borrowing of Revolving Loans will be used for the following
purpose: _____________________________________________________________________________ | |
C-1 |
5. |
The Borrower requests that the proceeds of this borrowing of Revolving Loans be
made available to the Borrower by ____________________________.
|
The Borrower hereby
certifies to the Agent and the Lenders that as of the date hereof and as of the
date of the making of the requested Revolving Loans and after giving effect
thereto, (a) no Default or Event of Default exists or shall exist, and (b) the
representations and warranties made or deemed made by the Borrower and each other
Loan Party in the Loan Documents to which any of them is a party are and shall be
true and correct in all material respects, except to the extent that such
representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties were true and accurate on and as of
such earlier date). In addition, the Borrower certifies to the Agent and the
Lenders that all conditions to the making of the requested Revolving Loans
contained in Article V. of the Credit Agreement will have been satisfied at the
time such Revolving Loans are made.
| |
If notice of the
requested borrowing of Revolving Loans was previously given by telephone, this
notice is to be considered the written confirmation of such telephone notice
required by Section 2.1.(b) of the Credit Agreement.
| |
IN WITNESS WHEREOF,
the undersigned has duly executed and delivered this Notice of Borrowing as of the
date first written above.
|
COMMERCIAL NET LEASE REALTY, INC. | |
C-2 |
EXHIBIT D | |
Wachovia Bank, National Association, as Agent | |
Reference is made to
that certain Seventh Amended and Restated Credit Agreement dated as of May 9, 2003
(as amended, restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”), by and among Commercial Net Lease Realty, Inc. (the
“Borrower”), the financial institutions party thereto and their
assignees under Section 12.5. thereof (the “Lenders”), Wachovia Bank,
National Association, as Agent (the “Agent”), and the other parties
thereto. Capitalized terms used herein, and not otherwise defined herein, have
their respective meanings given them in the Credit Agreement.
| |
Pursuant to Section
2.9. of the Credit Agreement, the Borrower hereby requests a Continuation of a
borrowing of Loans under the Credit Agreement, and in that connection sets forth
below the information relating to such Continuation as required by such Section of
the Credit Agreement:
|
1. |
The proposed date of such Continuation is ____________, 200__.
| |
2. |
The aggregate principal amount of Loans subject to the requested Continuation is
$__________________ and was originally borrowed by the Borrower on
____________, 200__.
| |
3. |
The portion of such principal amount subject to such Continuation is
$_______________________.
| |
4. |
The current Interest Period for each of the Loans subject to such Continuation
ends on ________, 200_.
| |
5. |
The duration of the new Interest Period for each of such Loans or portion thereof
subject to such Continuation is:
| |
[Check one box only]
1 week
| ||
D-1 |
The Borrower hereby
certifies to the Agent and the Lenders that as of the date hereof, as of the
proposed date of the requested Continuation, and after giving effect to such
Continuation, no Default or Event of Default exists or will exist.
| |
If notice of the
requested Continuation was given previously by telephone, this notice is to be
considered the written confirmation of such telephone notice required by Section
2.9. of the Credit Agreement.
| |
IN WITNESS WHEREOF,
the undersigned has duly executed and delivered this Notice of Continuation as of
the date first written above.
|
COMMERCIAL NET LEASE REALTY, INC. | |
D-2 |
EXHIBIT E | |
Wachovia Bank, National Association, as Agent | |
Reference is made to
that certain Seventh Amended and Restated Credit Agreement dated as of May 9, 2003
(as amended, restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”), by and among Commercial Net Lease Realty, Inc. (the
“Borrower”), the financial institutions party thereto and their
assignees under Section 12.5. thereof (the “Lenders”), Wachovia Bank,
National Association, as Agent (the “Agent”), and the other parties
thereto. Capitalized terms used herein, and not otherwise defined herein, have
their respective meanings given them in the Credit Agreement.
| |
Pursuant to Section
2.10. of the Credit Agreement, the Borrower hereby requests a Conversion of a
borrowing of Loans of one Type into Loans of another Type under the Credit
Agreement, and in that connection sets forth below the information relating to
such Conversion as required by such Section of the Credit Agreement:
|
1. |
The proposed date of such Conversion is ____________, 200__.
| |
2. |
The Loans to be Converted pursuant hereto are currently:
| |
[Check one box only]
Base Rate Loans
| ||
3. |
The aggregate principal amount of Loans subject to the requested Conversion is
$__________________ and was originally borrowed by the Borrower on
____________, 200__.
| |
4. |
The portion of such principal amount subject to such Continuation is
$_______________________.
| |
E-1 |
5. |
The amount of such Loans to be so Converted is to be converted into Loans of the
following Type: | |
[Check one box only]
| ||
Base Rate Loans
| ||
LIBOR Loans,
each with an initial Interest Period for a duration of:
| ||
[Check one box only]
1 week
|
The Borrower hereby
certifies to the Agent and the Lenders that as of the date hereof and as of the
date of the requested Conversion and after giving effect thereto, (a) no Default
or Event of Default exists or will exist, and (b) the representations and
warranties made or deemed made by the Borrower and each other Loan Party in the
Loan Documents to which any of them is a party are and shall be true and correct
in all material respects, except to the extent that such representations and
warranties expressly relate solely to an earlier date (in which case such
representations and warranties were true and accurate on and as of such earlier
date).
| |
If notice of the
requested Conversion was given previously by telephone, this notice is to be
considered the written confirmation of such telephone notice required by Section
2.10. of the Credit Agreement.
| |
IN WITNESS WHEREOF,
the undersigned has duly executed and delivered this Notice of Conversion as of the
date first written above.
|
COMMERCIAL NET LEASE REALTY, INC. | |
E-2 |
EXHIBIT F | |
Wachovia Bank, National Association, as Agent | |
Reference is made to
that certain Seventh Amended and Restated Credit Agreement dated as of May 9, 2003
(as amended, restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”), by and among Commercial Net Lease Realty, Inc. (the
“Borrower”), the financial institutions party thereto and their
assignees under Section 12.5. thereof (the “Lenders”), Wachovia Bank,
National Association, as Agent (the “Agent”), and the other parties
thereto. Capitalized terms used herein, and not otherwise defined herein, have
their respective meanings given them in the Credit Agreement.
|
1. |
Pursuant to Section 2.3.(b) of the Credit Agreement, the Borrower hereby requests
that the Swingline Lender make a Swingline Loan to the Borrower in an amount equal
to $___________________.
| |
2. |
The Borrower requests that such Swingline Loan be made available to the Borrower
on __________, 200_.
| |
3. |
The proceeds of this Swingline Loan will be used for the following purpose:
_______________________ | |
4. |
The Borrower requests that the proceeds of such Swingline Loan be made available
to the Borrower by __________________________________________________.
|
The Borrower hereby certifies to the Agent, the Swingline Lender and the Lenders that as of the date hereof, as of the date of the making of the requested Swingline Loan, and after making such Swingline Loan, (a) no Default or Event of Default exists or will exist, and (b) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party are and shall be true and correct in all material respects, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties were true and accurate on and as of such earlier date). In addition, the Borrower certifies to the Agent and the Lenders that all conditions to the making of the requested Swingline Loan contained in | |
F-1 |
Article V. of the Credit Agreement will have been satisfied at the time such
Swingline Loan is made.
| |
If notice of the
requested borrowing of this Swingline Loan was previously given by telephone, this
notice is to be considered the written confirmation of such telephone notice
required by Section 2.3.(b) of the Credit Agreement.
| |
IN WITNESS WHEREOF,
the undersigned has duly executed and delivered this Notice of Swingline Borrowing
as of the date first written above.
|
COMMERCIAL NET LEASE REALTY, INC. | |
F-2 |
EXHIBIT G |
$10,000,000 |
May 9, 2003 |
FOR VALUE RECEIVED,
the undersigned, COMMERCIAL NET LEASE REALTY, INC., a corporation formed under the
laws of the State of Maryland (the “Borrower”), hereby promises to pay
to the order of WACHOVIA BANK, NATIONAL ASSOCIATION (the “Swingline
Lender”) to its address at One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, or at such other address as may be specified in
writing by the Swingline Lender to the Borrower, the principal sum of TEN MILLION
AND NO/100 DOLLARS ($10,000,000) (or such lesser amount as shall equal the
aggregate unpaid principal amount of Swingline Loans made by the Swingline Lender
to the Borrower under the Credit Agreement), on the dates and in the principal
amounts provided in the Credit Agreement, and to pay interest on the unpaid
principal amount owing hereunder, at the rates and on the dates provided in the
Credit Agreement.
| |
The date, amount of
each Swingline Loan, and each payment made on account of the principal thereof,
shall be recorded by the Swingline Lender on its books and, prior to any transfer
of this Note, endorsed by the Swingline Lender on the schedule attached hereto or
any continuation thereof, provided that the failure of the Swingline Lender
to make any such recordation or endorsement shall not affect the obligations of
the Borrower to make a payment when due of any amount owing under the Credit
Agreement or hereunder in respect of the Swingline Loans.
| |
This Note is the
Swingline Note referred to in the Seventh Amended and Restated Credit Agreement
dated as of May 9, 2003 (as amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”), by and among the Borrower,
the financial institutions party thereto and their assignees under Section 12.5.
thereof (the “Lenders”), Wachovia Bank, National Association, as Agent,
and the other parties thereto, and evidences Swingline Loans made to the Borrower
thereunder. Terms used but not otherwise defined in this Note have the respective
meanings assigned to them in the Credit Agreement.
| |
The Credit Agreement
provides for the acceleration of the maturity of this Note upon the occurrence of
certain events and for prepayments of Swingline Loans upon the terms and
conditions specified therein.
| |
THIS NOTE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
| |
The Borrower hereby waives presentment for payment, demand, notice of demand, notice of non-payment, protest, notice of protest and all other similar notices. | |
G-1 |
Time is of the
essence for this Note.
| |
IN WITNESS WHEREOF,
the undersigned has executed and delivered this Swingline Note under seal as of
the date first written above.
|
COMMERCIAL NET LEASE REALTY, INC. |
STATE OF GEORGIA
| |
COUNTY OF FULTON
| |
BEFORE ME, a Notary
Public in and for said County, personally appeared ____________________, known to
me to be a person who, as _______________ of Commercial Net Lease Realty, Inc.,
the entity which executed the foregoing Swingline Note, signed the same, and
acknowledged to me that he did so sign said instrument in the name and upon behalf
of said corporation as an officer of said corporation.
| |
IN TESTIMONY WHEREOF,
I have subscribed my name, and affixed my official seal, as of May 9, 2003.
|
_____________________________________ | |
G-2 |
SCHEDULE OF SWINGLINE LOANS | |
This Note evidences
Swingline Loans made under the within-described Credit Agreement to the Borrower,
on the dates and in the principal amounts set forth below, subject to the payments
and prepayments of principal set forth below:
|
Date of Loan |
Principal |
Amount Paid |
Unpaid |
Notation |
||||||
G-3 |
EXHIBIT H | |
Wachovia Bank, National Association, as Agent | |
Reference is made to
that certain Seventh Amended and Restated Credit Agreement dated as of May 9, 2003
(as amended, restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”), by and among Commercial Net Lease Realty, Inc. (the
“Borrower”), the financial institutions party thereto and their
assignees under Section 12.5. thereof (the “Lenders”), Wachovia Bank,
National Association, as Agent (the “Agent”), and the other parties
thereto. Capitalized terms used herein, and not otherwise defined herein, have
their respective meanings given them in the Credit Agreement.
|
1. |
The Borrower hereby requests Bid Rate Quotes for the following proposed Bid Rate
Borrowings:
|
Borrowing Date |
Amount1 |
Type2 |
Interest Period3 |
|||||
________, 2000__ |
$__________ |
__________ |
_______ days |
|||||
2. |
Borrower’s Credit Rating, as applicable, as of the date hereof is:
| |
_______________________
| |
1
Minimum amount of $10,000,000 or larger multiple of $1,000,000.
| |
2
Insert either Absolute Rate (for Absolute Rate Loan) or LIBOR Margin (for LIBOR Margin Loan).
| |
3
30, 60 or 90 days after the borrowing date and must end on a Business Day.
| |
H-1 |
3. |
The proceeds of this Bid Rate borrowing will be used for the following purpose:
________________ | |
4. |
After giving effect to the Bid Rate Borrowing requested herein, the total amount of Bid
Rate Loans outstanding shall be $_________.1
|
The Borrower hereby
certifies to the Agent and the Lenders that as of the date hereof, as of the date
of the making of the requested Bid Rate Loans, and after making such Bid Rate
Loans, (a) no Default or Event of Default exists or will exist, and (b) the
representations and warranties made or deemed made by the Borrower and each other
Loan Party in the Loan Documents to which any of them is a party are and shall be
true and correct in all material respects, except to the extent that such
representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties were true and accurate on and as of
such earlier date). In addition, the Borrower certifies to the Agent and the
Lenders that all conditions to the making of the requested Bid Rate Loans
contained in Article V. of the Credit Agreement will have been satisfied at the
time such Bid Rate Loans are made.
| |
IN WITNESS WHEREOF,
the undersigned has duly executed and delivered this Bid Rate Quote Request as of
the date first written above.
|
COMMERCIAL NET LEASE REALTY, INC. | |
_______________________
| |
1
Must not be in excess of one-half of the aggregate amount of all existing Commitments.
| |
H-2 |
EXHIBIT I | |
Wachovia Bank, National Association, as Agent | |
Reference is made to that
certain Seventh Amended and Restated Credit Agreement dated as of May 9, 2003 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among Commercial Net Lease Realty, Inc. (the “Borrower”),
the financial institutions party thereto and their assignees under Section 12.5.
thereof (the “Lenders”), Wachovia Bank, National Association, as Agent (the
“Agent”), and the other parties thereto. Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the Credit Agreement.
| |
In response to Borrower’s Bid Rate Quote
Request dated _____________, 200_, the undersigned hereby makes the following Bid
Rate Quote(s) on the following terms:
|
1. |
Quoting Lender:___________________
| |
2. |
Person to contact at quoting Lender:_______________________________
| |
3. |
The undersigned offers to make Bid Rate Loan(s) in the following principal amount(s), for
the following Interest Period(s) and at the following Bid Rate(s):
|
Borrowing Date | Amount1 | Type2 | Interest Period3 | Bid Rate | ||||||
__________, 200__ | $ | __________ | __________ | _____days | ______% | |||||
__________, 200__ | $ | __________ | __________ | _____days | ______% | |||||
__________, 200__ | $ | __________ | __________ | _____days | ______% | |||||
_______________________
| ||
1
Minimum amount of $10,000,000 or larger multiple of $1,000,000.
| ||
2
Insert either Absolute Rate (for Absolute Rate Loan) or LIBOR Margin (for LIBOR Margin Loan).
| ||
3 30, 60 or 90 days after the borrowing date and must end on a Business Day. | ||
I-1 |
The undersigned
understands and agrees that the offer(s) set forth above, subject to satisfaction
of the applicable conditions set forth in the Credit Agreement, irrevocably
obligate[s] the undersigned to make the Bid Rate Loan(s) for which any offer(s)
[is/are] accepted, in whole or in part.
|
_____________________________________ [Name of Quoting Lender] By:________________________________ Name:___________________________ Title:____________________________ | ||
I-2 |
EXHIBIT J | |
Wachovia Bank, National Association, as Agent | |
Reference is made to that
certain Seventh Amended and Restated Credit Agreement dated as of May 9, 2003 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among Commercial Net Lease Realty, Inc. (the “Borrower”),
the financial institutions party thereto and their assignees under Section 12.5.
thereof (the “Lenders”), Wachovia Bank, National Association, as Agent (the
“Agent”), and the other parties thereto. Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the Credit Agreement.
|
Quote Date | Quoting Lender | Amount Accepted | ||||
__________, 200___ | ______________ | $______________ | ||||
__________, 200___ | ______________ | $______________ | ||||
__________, 200___ | ______________ | $______________ | ||||
The Borrower hereby certifies to the Agent and the Lenders that as of the date hereof, as of the date of the making of the requested Bid Rate Loans, and after making such Bid Rate Loans, (a) no Default or Event of Default exists or will exist, and (b) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party are and shall be true and correct in all material respects, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties were true and accurate on and as of such earlier date). In addition, the Borrower certifies to the Agent and the Lenders that all conditions to the making of the requested Bid Rate Loans contained in Article V. of the Credit Agreement will have been satisfied at the time such Bid Rate Loans are made. | ||
J-1 |
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Bid Rate Quote Acceptance as of the date first written above. |
COMMERCIAL NET LEASE REALTY, INC. By:________________________________ Name:___________________________ Title:____________________________ | ||
J-2 |
EXHIBIT K |
$______________ |
_______, 200__ |
FOR VALUE RECEIVED,
the undersigned, COMMERCIAL NET LEASE REALTY, INC., a corporation formed under the
laws of the State of Maryland (the “Borrower”), hereby promises to pay
to the order of ____________________ (the “Lender”), in care of Wachovia
Bank, National Association, as Agent (the “Agent”) to Wachovia Bank,
National Association, One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, or at such other address as may be specified in writing by
the Agent to the Borrower, the principal sum of ________________ AND ____/100
DOLLARS ($____________) (or such lesser amount as shall equal the aggregate unpaid
principal amount of Revolving Loans made by the Lender to the Borrower under the
Credit Agreement (as herein defined)), on the dates and in the principal amounts
provided in the Credit Agreement, and to pay interest on the unpaid principal
amount owing hereunder, at the rates and on the dates provided in the Credit
Agreement.
| |
The date, amount of
each Revolving Loan made by the Lender to the Borrower, and each payment made on
account of the principal thereof, shall be recorded by the Lender on its books
and, prior to any transfer of this Note, endorsed by the Lender on the schedule
attached hereto or any continuation thereof, provided that the failure of
the Lender to make any such recordation or endorsement shall not affect the
obligations of the Borrower to make a payment when due of any amount owing under
the Credit Agreement or hereunder in respect of the Revolving Loans made by the
Lender.
| |
This Note is one of
the Revolving Notes referred to in the Seventh Amended and Restated Credit
Agreement dated as of May 9, 2003 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), by and among the
Borrower, the financial institutions party thereto and their assignees under
Section 12.5. thereof (the “Lenders”), the Agent, and the other parties
thereto. Capitalized terms used herein, and not otherwise defined herein, have
their respective meanings given them in the Credit Agreement.
| |
The Credit Agreement
provides for the acceleration of the maturity of this Note upon the occurrence of
certain events and for prepayments of Loans upon the terms and conditions
specified therein.
| |
Except as permitted by Section 12.5.(d) of the Credit Agreement, this Note may not be assigned by the Lender to any other Person. | |
K-1 |
THIS NOTE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
| |
The Borrower hereby
waives presentment for payment, demand, notice of demand, notice of non-payment,
protest, notice of protest and all other similar notices.
| |
Time is of the
essence for this Note.
| |
IN WITNESS WHEREOF, the undersigned has executed and delivered this Revolving Note under seal as of the date first written above. |
COMMERCIAL NET LEASE REALTY, INC. |
STATE OF GEORGIA
| |
COUNTY OF XXXXXX
| |
BEFORE ME, a Notary
Public in and for said County, personally appeared ____________________, known to
me to be a person who, as _______________ of Commercial Net Lease Realty, Inc.,
the entity which executed the foregoing Revolving Note, signed the same, and
acknowledged to me that he did so sign said instrument in the name and upon behalf
of said corporation as an officer of said corporation.
| |
IN TESTIMONY WHEREOF,
I have subscribed my name, and affixed my official seal, as of _________, 200__.
|
_____________________________________ | |
K-2 |
SCHEDULE OF BID RATE LOANS | |
This Note evidences
Bid Rate Loans made under the within-described Credit Agreement to the Borrower,
on the dates, in the principal amounts, bearing interest at the rates and maturing
on the dates set forth below, subject to the payments and prepayments of principal
set forth below:
|
Date of |
Principal |
Interest |
Maturity |
Amount |
Unpaid |
Notation |
||||||||
K-3 |
EXHIBIT L |
__________, 200__ | |||
FOR VALUE RECEIVED,
the undersigned, COMMERCIAL NET LEASE REALTY, INC., a corporation formed under the
laws of the State of Maryland (the “Borrower”), hereby promises to pay
to the order of ________________ (the “Lender”), in care of Wachovia
Bank, National Association, as Agent (the “Agent”) to Wachovia Bank,
National Association, One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, or at such other address as may be specified in writing by
the Agent to the Borrower, the aggregate unpaid principal amount of Bid Rate Loans
made by the Lender to the Borrower under the Credit Agreement, on the dates and in
the principal amounts provided in the Credit Agreement, and to pay interest on the
unpaid principal amount of each such Bid Rate Loan, at such office at the rates
and on the dates provided in the Credit Agreement.
| |
The date, amount,
interest rate and maturity date of each Bid Rate Loan made by the Lender to the
Borrower, and each payment made on account of the principal thereof, shall be
recorded by the Lender on its books and, prior to any transfer of this Note,
endorsed by the Lender on the schedule attached hereto or any continuation
thereof, provided that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower to
make a payment when due of any amount owing under the Credit Agreement or
hereunder in respect of the Bid Rate Loans made by the Lender.
| |
This Note is one of
the Bid Rate Notes referred to in the Seventh Amended and Restated Credit
Agreement dated as of May 9, 2003 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), by and among the
Borrower, the financial institutions party thereto and their assignees under
Section 12.5. thereof (the “Lenders”), the Agent, and the other parties
thereto, and evidences Bid Rate Loans made by the Lender thereunder. Terms used
but not otherwise defined in this Note have the respective meanings assigned to
them in the Credit Agreement.
| |
The Credit Agreement
provides for the acceleration of the maturity of this Note upon the occurrence of
certain events and for prepayments of Bid Rate Loans upon the terms and conditions
specified therein.
| |
Except as permitted
by Section 12.5. of the Credit Agreement, this Note may not be assigned by the
Lender to any other Person.
| |
THIS NOTE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
| |
The Borrower hereby waives presentment for payment, demand, notice of demand, notice of non-payment, protest, notice of protest and all other similar notices. | |
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Time is of the
essence for this Note.
| |
IN WITNESS WHEREOF, the undersigned has executed and delivered this Bid Rate Note under seal as of the date first written above. |
COMMERCIAL NET LEASE REALTY, INC. |
STATE OF GEORGIA
| |
COUNTY OF XXXXXX
| |
BEFORE ME, a Notary
Public in and for said County, personally appeared ____________________, known to
me to be a person who, as _______________ of Commercial Net Lease Realty, Inc.,
the entity which executed the foregoing Bid Rate Note, signed the same, and
acknowledged to me that he did so sign said instrument in the name and upon behalf
of said corporation as an officer of said corporation.
| |
IN TESTIMONY WHEREOF,
I have subscribed my name, and affixed my official seal, as of _________, 200__.
|
_____________________________________ | |
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SCHEDULE OF BID RATE LOANS | |
This Note evidences
Bid Rate Loans made under the within-described Credit Agreement to the Borrower,
on the dates, in the principal amounts, bearing interest at the rates and maturing
on the dates set forth below, subject to the payments and prepayments of principal
set forth below:
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Date of |
Principal |
Interest |
Maturity |
Amount |
Unpaid |
Notation |
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EXHIBIT M | |
M-1 |
EXHIBIT N | |
Wachovia Bank, National Association, as Agent | |
Reference is made to
that certain Seventh Amended and Restated Credit Agreement dated as of May 9, 2003
(as amended, restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”), by and among Commercial Net Lease Realty, Inc. (the
“Borrower”), the financial institutions party thereto and their
assignees under Section 12.5. thereof (the “Lenders”), Wachovia Bank,
National Association, as Agent (the “Agent”) and the other parties
thereto. Capitalized terms used herein, and not otherwise defined herein, have
their respective meanings given them in the Credit Agreement.
| |
Pursuant to Section
8.3. of the Credit Agreement, the undersigned hereby certifies to the Agent and
the Lenders as follows:
| |
(1)
The undersigned is the _____________________
of the Borrower.
| |
(2)
The undersigned has examined the books and
records of the Borrower and has conducted such other examinations and
investigations as are reasonably necessary to provide this Compliance Certificate.
| |
(3)
No Default or Event of Default exists [if
such is not the case, specify such Default or Event of Default and its nature,
when it occurred and whether it is continuing and the steps being taken by the
Borrower with respect to such event, condition or failure].
| |
(4) The representations and warranties made or deemed made by the Borrower and the other Loan Parties in the Loan Documents to which any is a party, are true and correct in all material respects on and as of the date hereof except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and accurate on and as of such earlier date). | |
N-1 |
(5)
Attached hereto as Schedule 1 are reasonably
detailed calculations establishing whether or not the Borrower and its
Subsidiaries were in compliance with the covenants contained in Sections 9.1.,
9.2. and 9.4. of the Credit Agreement.
| |
IN WITNESS WHEREOF,
the undersigned has executed this certificate as of the date first above written.
|
________________________________ | |
N-2 |
Schedule 1 | |
N-3 |
EXHIBIT O | |
THIS GUARANTY dated as
of May 9, 2003, executed and delivered by each of the undersigned and the other
Persons from time to time party hereto pursuant to the execution and delivery of
an Accession Agreement in the form of Annex I hereto (all of the undersigned,
together with such other Persons each a “Guarantor” and collectively,
the “Guarantors”) in favor of (a) WACHOVIA BANK, NATIONAL ASSOCIATION,
in its capacity as Agent (the “Agent”) for the Lenders under that
certain Seventh Amended and Restated Credit Agreement dated as of May 9, 2003 (as
amended, restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”), by and among Commercial Net Lease Realty, Inc. (the
“Borrower”), the financial institutions party thereto and their
assignees under Section 12.5. thereof (the “Lenders”), the Agent, and
the other parties thereto, and (b) the Lenders and the Swingline Lender.
| |
WHEREAS, pursuant to
the Credit Agreement, the Agent, the Lenders and the Swingline Lender have agreed
to make available to the Borrower certain financial accommodations on the terms
and conditions set forth in the Credit Agreement;
| |
WHEREAS, the Borrower
and each of the Guarantors, though separate legal entities, are mutually dependent
on each other in the conduct of their respective businesses as an integrated
operation and have determined it to be in their mutual best interests to obtain
financing from the Agent, the Lenders and the Swingline Lender through their
collective efforts;
| |
WHEREAS, each
Guarantor acknowledges that it will receive direct and indirect benefits from the
Agent, the Lenders and the Swingline Lender making such financial accommodations
available to the Borrower under the Credit Agreement and, accordingly, each
Guarantor is willing to guarantee the Borrower’s obligations to the Agent,
the Lenders and the Swingline Lender on the terms and conditions contained herein;
and
| |
WHEREAS, each
Guarantor’s execution and delivery of this Guaranty is a condition to the
Agent and the Lenders making, and continuing to make, such financial
accommodations to the Borrower.
| |
NOW, THEREFORE, for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by each Guarantor, each Guarantor agrees as follows:
| |
Section 1. Guaranty. Each Guarantor hereby absolutely, irrevocably and unconditionally guaranties the due and punctual payment and performance when due, whether at stated maturity, by acceleration or otherwise, of all of the following (collectively referred to as the “Guarantied Obligations”): (a) all indebtedness and obligations owing by the Borrower to any Lender, the Swingline Lender or the Agent under or in connection with the Credit Agreement and any other Loan Document, including without limitation, the repayment of all principal of the Revolving Loans, Bid Rate Loans, Swingline Loans and the Reimbursement Obligations, and the payment | |
O-1 |
of all interest, Fees, charges, attorneys’ fees and other amounts payable to
any Lender or the Agent thereunder or in connection therewith; (b) any and all
extensions, renewals, modifications, amendments or substitutions of the foregoing;
(c) all expenses, including, without limitation, reasonable attorneys’ fees
and disbursements, that are incurred by the Lenders and the Agent in the
enforcement of any of the foregoing or any obligation of such Guarantor hereunder;
and (d) all other Obligations.
| |
Section 2.
Guaranty of Payment and Not of Collection.
This Guaranty is a guaranty of payment, and not of
collection, and a debt of each Guarantor for its own account. Accordingly, none of
the Lenders, the Swingline Lender or the Agent shall be obligated or required
before enforcing this Guaranty against any Guarantor: (a) to pursue any right or
remedy any of them may have against the Borrower, any other Guarantor or any other
Person or commence any suit or other proceeding against the Borrower, any other
Guarantor or any other Person in any court or other tribunal; (b) to make any
claim in a liquidation or bankruptcy of the Borrower, any other Guarantor or any
other Person; or (c) to make demand of the Borrower, any other Guarantor or any
other Person or to enforce or seek to enforce or realize upon any collateral
security held by the Lenders, the Swingline Lender or the Agent which may secure
any of the Guarantied Obligations.
| |
Section 3.
Guaranty Absolute.
Each Guarantor guarantees that the Guarantied Obligations
will be paid strictly in accordance with the terms of the documents evidencing the
same, regardless of any Applicable Law now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Agent, the Lenders
or the Swingline Lender with respect thereto. The liability of each Guarantor
under this Guaranty shall be absolute, irrevocable and unconditional in accordance
with its terms and shall remain in full force and effect without regard to, and
shall not be released, suspended, discharged, terminated or otherwise affected by,
any circumstance or occurrence whatsoever, including without limitation, the
following (whether or not such Guarantor consents thereto or has notice thereof):
| |
(a)
(i) any change in the amount, interest rate or
due date or other term of any of the Guarantied Obligations, (ii) any change in
the time, place or manner of payment of all or any portion of the Guarantied
Obligations, (iii) any amendment or waiver of, or consent to the departure from or
other indulgence with respect to, the Credit Agreement, any other Loan Document,
or any other document or instrument evidencing or relating to any Guarantied
Obligations, or (iv) any waiver, renewal, extension, addition, or supplement to,
or deletion from, or any other action or inaction under or in respect of, the
Credit Agreement, any of the other Loan Documents, or any other documents,
instruments or agreements relating to the Guarantied Obligations or any other
instrument or agreement referred to therein or evidencing any Guarantied
Obligations or any assignment or transfer of any of the foregoing;
| |
(b) any lack of validity or enforceability of the Credit Agreement, any of the other Loan Documents, or any other document, instrument or agreement referred to therein or evidencing any Guarantied Obligations or any assignment or transfer of any of the foregoing; | |
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(c)
any furnishing to the Agent, the Lenders or
the Swingline Lender of any security for the Guarantied Obligations, or any sale,
exchange, release or surrender of, or realization on, any collateral securing any
of the Obligations;
| |
(d)
any settlement or compromise of any of the
Guarantied Obligations, any security therefor, or any liability of any other party
with respect to the Guarantied Obligations, or any subordination of the payment of
the Guarantied Obligations to the payment of any other liability of the Borrower
or any other Loan Party;
| |
(e)
any bankruptcy, insolvency, reorganization,
composition, adjustment, dissolution, liquidation or other like proceeding
relating to such Guarantor, the Borrower, any other Loan Party or any other
Person, or any action taken with respect to this Guaranty by any trustee or
receiver, or by any court, in any such proceeding;
| |
(f)
any act or failure to act by the Borrower, any
other Loan Party or any other Person which may adversely affect such
Guarantor’s subrogation rights, if any, against the Borrower to recover
payments made under this Guaranty;
| |
(g)
any nonperfection or impairment of any
security interest or other Lien on any collateral, if any, securing in any way any
of the Obligations;
| |
(h)
any application of sums paid by the Borrower,
any other Guarantor or any other Person with respect to the liabilities of the
Borrower to the Agent, the Lenders or the Swingline Lender, regardless of what
liabilities of the Borrower remain unpaid;
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(i)
any defect, limitation or insufficiency in the
borrowing powers of the Borrower or in the exercise thereof; or
| |
(j)
any other circumstance which might otherwise
constitute a defense available to, or a discharge of, a Guarantor hereunder (other
than indefeasible payment in full).
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Section 4. Action with Respect to Guarantied Obligations. The Lenders and the Agent may, at any time and from time to time, without the consent of, or notice to, any Guarantor, and without discharging any Guarantor from its obligations hereunder, take any and all actions described in Section 3 and may otherwise: (a) amend, modify, alter or supplement the terms of any of the Guarantied Obligations, including, but not limited to, extending or shortening the time of payment of any of the Guarantied Obligations or changing the interest rate that may accrue on any of the Guarantied Obligations; (b) amend, modify, alter or supplement the Credit Agreement or any other Loan Document; (c) sell, exchange, release or otherwise deal with all, or any part, of any collateral securing any of the Obligations; (d) release any other Loan Party or other Person liable in any manner for the payment or collection of the Guarantied Obligations; (e) exercise, or refrain from exercising, any rights against the Borrower, any other Guarantor or any other Person; and (f) apply any sum, by whomsoever paid or however realized, to the Guarantied Obligations in such order as the Lenders shall elect. | |
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Section 5.
Representations and Warranties.
Each Guarantor hereby makes to the Agent, the Lenders and
the Swingline Lender all of the representations and warranties made by the
Borrower with respect to or in any way relating to such Guarantor in the Credit
Agreement and the other Loan Documents, as if the same were set forth herein in
full.
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Section 6.
Covenants.
Each Guarantor will comply with all covenants which the
Borrower is to cause such Guarantor to comply with under the terms of the Credit
Agreement or any of the other Loan Documents.
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Section 7.
Waiver.
Each Guarantor, to the fullest extent permitted by
Applicable Law, hereby waives notice of acceptance hereof or any presentment,
demand, protest or notice of any kind, and any other act or thing, or omission or
delay to do any other act or thing, which in any manner or to any extent might
vary the risk of such Guarantor or which otherwise might operate to discharge such
Guarantor from its obligations hereunder.
| |
Section 8.
Inability to Accelerate Loan.
If the Agent, the Swingline Lender and/or the Lenders are
prevented under Applicable Law or otherwise from demanding or accelerating payment
of any of the Guarantied Obligations by reason of any automatic stay or otherwise,
the Agent, the Swingline Lender and/or the Lenders shall be entitled to receive
from each Guarantor, upon demand therefor, the sums which otherwise would have
been due had such demand or acceleration occurred.
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Section 9.
Reinstatement of Guarantied Obligations.
If claim is ever made on the Agent, any Lender or the
Swingline Lender for repayment or recovery of any amount or amounts received in
payment or on account of any of the Guarantied Obligations, and the Agent, such
Lender or the Swingline Lender repays all or part of said amount by reason of (a)
any judgment, decree or order of any court or administrative body of competent
jurisdiction, or (b) any settlement or compromise of any such claim effected by
the Agent, such Lender or the Swingline Lender with any such claimant (including
the Borrower or a trustee in bankruptcy for the Borrower), then and in such event
each Guarantor agrees that any such judgment, decree, order, settlement or
compromise shall be binding on it, notwithstanding any revocation hereof or the
cancellation of the Credit Agreement, any of the other Loan Documents, or any
other instrument evidencing any liability of the Borrower, and such Guarantor
shall be and remain liable to the Agent, such Lender or the Swingline Lender for
the amounts so repaid or recovered to the same extent as if such amount had never
originally been paid to the Agent, such Lender or the Swingline Lender.
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Section 10. Subrogation. Upon the making by any Guarantor of any payment hereunder for the account of the Borrower, such Guarantor shall be subrogated to the rights of the payee against the Borrower; provided, however, that such Guarantor shall not enforce any right or receive any payment by way of subrogation or otherwise take any action in respect of any other claim or cause of action such Guarantor may have against the Borrower arising by reason of any payment or performance by such Guarantor pursuant to this Guaranty, unless and until all of the Guarantied Obligations have been indefeasibly paid and performed in full. If any amount shall be paid to such Guarantor on account of or in respect of such subrogation rights or other claims or causes of action, such Guarantor shall hold such amount in trust for the benefit of the Agent, | |
O-4 |
the Lenders and the Swingline Lender and shall forthwith pay such amount to the
Agent to be credited and applied against the Guarantied Obligations, whether
matured or unmatured, in accordance with the terms of the Credit Agreement or to
be held by the Agent as collateral security for any Guarantied Obligations
existing.
| |
Section 11.
Payments Free and Clear.
All sums payable by each Guarantor hereunder, whether of
principal, interest, Fees, expenses, premiums or otherwise, shall be paid in full,
without set-off or counterclaim or any deduction or withholding whatsoever
(including any Taxes), and if any Guarantor is required by Applicable Law or by a
Governmental Authority to make any such deduction or withholding, such Guarantor
shall pay to the Agent, the Lenders and the Swingline Lender such additional
amount as will result in the receipt by the Agent, the Lenders and the Swingline
Lender of the full amount payable hereunder had such deduction or withholding not
occurred or been required.
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Section 12.
Set-off.
In addition to any rights now or hereafter granted under
any of the other Loan Documents or Applicable Law and not by way of limitation of
any such rights, each Guarantor hereby authorizes the Agent and each Lender, at
any time during the continuance of an Event of Default, without any prior notice
to such Guarantor or to any other Person, any such notice being hereby expressly
waived, but in the case of a Lender or Participant subject to receipt of the prior
written consent of the Agent exercised in its sole discretion, to set off and to
appropriate and to apply any and all deposits (general or special, 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 Agent,
such Lender, or any affiliate of the Agent or such Lender, to or for the credit or
the account of such Guarantor against and on account of any of the Guarantied
Obligations, although such obligations shall be contingent or unmatured. Each
Guarantor agrees, to the fullest extent permitted by Applicable Law, that any
Participant may exercise rights of setoff or counterclaim and other rights with
respect to its participation as fully as if such Participant were a direct
creditor of such Guarantor in the amount of such participation.
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Section 13.
Subordination.
Each Guarantor hereby expressly covenants and agrees for
the benefit of the Agent, the Lenders and the Swingline Lender that all
obligations and liabilities of the Borrower to such Guarantor of whatever
description, including without limitation, all intercompany receivables of such
Guarantor from the Borrower (collectively, the “Junior Claims”) shall be
subordinate and junior in right of payment to all Guarantied Obligations. If an
Event of Default shall exist, then no Guarantor shall accept any direct or
indirect payment (in cash, property or securities, by setoff or otherwise) from
the Borrower on account of or in any manner in respect of any Junior Claim until
all of the Guarantied Obligations have been indefeasibly paid in full.
| |
Section 14. Avoidance Provisions. It is the intent of each Guarantor, the Agent, the Lenders and the Swingline Lender that in any Proceeding, such Guarantor’s maximum obligation hereunder shall equal, but not exceed, the maximum amount which would not otherwise cause the obligations of such Guarantor hereunder (or any other obligations of such Guarantor to the Agent, the Lenders and the Swingline Lender) to be avoidable or unenforceable against such Guarantor in such Proceeding as a result of Applicable Law, including without limitation, | |
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(a) Section 548 of the Bankruptcy Code of 1978, as amended (the “Bankruptcy
Code”) and (b) any state fraudulent transfer or fraudulent conveyance act or
statute applied in such Proceeding, whether by virtue of Section 544 of the
Bankruptcy Code or otherwise. The Applicable Laws under which the possible
avoidance or unenforceability of the obligations of such Guarantor hereunder (or
any other obligations of such Guarantor to the Agent, the Lenders and the
Swingline Lender) shall be determined in any such Proceeding are referred to as
the "Avoidance Provisions". Accordingly, to the extent that the obligations of any
Guarantor hereunder would otherwise be subject to avoidance under the Avoidance
Provisions, the maximum Guarantied Obligations for which such Guarantor shall be
liable hereunder shall be reduced to that amount which, as of the time any of the
Guarantied Obligations are deemed to have been incurred under the Avoidance
Provisions, would not cause the obligations of such Guarantor hereunder (or any
other obligations of such Guarantor to the Agent, the Lenders and the Swingline
Lender), to be subject to avoidance under the Avoidance Provisions. This Section
is intended solely to preserve the rights of the Agent, the Lenders and the
Swingline Lender hereunder to the maximum extent that would not cause the
obligations of any Guarantor hereunder to be subject to avoidance under the
Avoidance Provisions, and no Guarantor or any other Person shall have any right or
claim under this Section as against the Agent, the Lenders and the Swingline
Lender that would not otherwise be available to such Person under the Avoidance
Provisions.
| |
Section 15.
Information.
Each Guarantor assumes all responsibility for being and
keeping itself informed of the financial condition of the Borrower and the other
Guarantors, and of all other circumstances bearing upon the risk of nonpayment of
any of the Guarantied Obligations and the nature, scope and extent of the risks
that such Guarantor assumes and incurs hereunder, and agrees that none of the
Agent, the Lenders or the Swingline Lender shall have any duty whatsoever to
advise any Guarantor of information regarding such circumstances or risks.
| |
Section 16.
Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO CONTRACTS
EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
| |
Section 17.
WAIVER OF JURY TRIAL.
| |
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG ANY GUARANTOR, THE AGENT OR ANY OF THE LENDERS WOULD BE BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LENDERS, THE AGENT AND EACH GUARANTOR HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR BY REASON OF ANY OTHER SUIT, CAUSE OF | |
O-6 |
ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG THE BORROWER, THE AGENT OR ANY OF
THE LENDERS OF ANY KIND OR NATURE.
| |
(b)
EACH OF THE GUARANTORS, THE AGENT AND EACH
LENDER HEREBY AGREES THAT ANY FEDERAL DISTRICT COURT LOCATED IN NORTH CAROLINA OR,
AT THE OPTION OF THE AGENT, ANY STATE COURT LOCATED IN CHARLOTTE, NORTH CAROLINA,
SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR
AMONG ANY GUARANTOR, THE AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR
INDIRECTLY TO THIS AGREEMENT, THE LOANS, THE LETTERS OF CREDIT, THE NOTES OR ANY
OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. EACH GUARANTOR
AND EACH OF THE LENDERS EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS. EACH PARTY
FURTHER WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY
SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS
BROUGHT IN AN INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME.
THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE
BRINGING OF ANY ACTION BY THE AGENT OR ANY LENDER OR THE ENFORCEMENT BY THE AGENT
OR ANY LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE
JURISDICTION.
| |
(c)
THE PROVISIONS OF THIS SECTION HAVE BEEN
CONSIDERED BY EACH PARTY WITH THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING
OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS AND
ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS AND THE
TERMINATION OF THIS GUARANTY.
| |
Section 18.
Loan Accounts.
The Agent, each Lender and the Swingline Lender may
maintain books and accounts setting forth the amounts of principal, interest and
other sums paid and payable with respect to the Guarantied Obligations, and in the
case of any dispute relating to any of the outstanding amount, payment or receipt
of any of the Guarantied Obligations or otherwise, the entries in such books and
accounts shall be deemed conclusive evidence of the amounts and other matters set
forth herein, absent manifest error. The failure of the Agent, any Lender or the
Swingline Lender to maintain such books and accounts shall not in any way relieve
or discharge any Guarantor of any of its obligations hereunder.
| |
Section 19. Waiver of Remedies. No delay or failure on the part of the Agent, any Lender or the Swingline Lender in the exercise of any right or remedy it may have against any Guarantor hereunder or otherwise shall operate as a waiver thereof, and no single or partial exercise by the Agent, any Lender or the Swingline Lender of any such right or remedy shall preclude any other or further exercise thereof or the exercise of any other such right or remedy. | |
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Section 20.
Termination.
This Guaranty shall remain in full force and effect until
indefeasible payment in full of the Guarantied Obligations and the other
Obligations and the termination or cancellation of the Credit Agreement in
accordance with its terms.
| |
Section 21.
Successors and Assigns.
Each reference herein to the Agent or the Lenders shall be
deemed to include such Person’s respective successors and assigns (including,
but not limited to, any holder of the Guarantied Obligations) in whose favor the
provisions of this Guaranty also shall inure, and each reference herein to each
Guarantor shall be deemed to include such Guarantor’s successors and assigns,
upon whom this Guaranty also shall be binding. The Lenders and the Swingline
Lender may, in accordance with the applicable provisions of the Credit Agreement,
assign, transfer or sell any Guarantied Obligation, or grant or sell
participations in any Guarantied Obligations, to any Person without the consent
of, or notice to, any Guarantor and without releasing, discharging or modifying
any Guarantor’s obligations hereunder. Each Guarantor hereby consents to the
delivery by the Agent or any Lender to any Assignee or Participant (or any
prospective Assignee or Participant) of any financial or other information
regarding the Borrower or any Guarantor. No Guarantor may assign or transfer its
obligations hereunder to any Person without the prior written consent of all
Lenders and any such assignment or other transfer to which all of the Lenders have
not so consented shall be null and void.
| |
Section 22.
JOINT AND SEVERAL OBLIGATIONS.
THE OBLIGATIONS OF THE GUARANTORS HEREUNDER SHALL BE JOINT
AND SEVERAL, AND ACCORDINGLY, EACH GUARANTOR CONFIRMS THAT IT IS LIABLE FOR THE
FULL AMOUNT OF THE “GUARANTIED OBLIGATIONS” AND ALL OF THE OBLIGATIONS
AND LIABILITIES OF EACH OF THE OTHER GUARANTORS HEREUNDER.
| |
Section 23.
Amendments.
This Guaranty may not be amended except in writing signed
by the Requisite Lenders (or all of the Lenders if required under the terms of the
Credit Agreement), the Agent and each Guarantor.
| |
Section 24.
Payments.
All payments to be made by any Guarantor pursuant to this
Guaranty shall be made in Dollars, in immediately available funds to the Agent at
the Principal Office, not later than 2:00 p.m. on the date of demand therefor.
| |
Section 25. Notices. All notices, requests and other communications hereunder shall be in writing (including facsimile transmission or similar writing) and shall be given (a) to each Guarantor at its address set forth below its signature hereto, (b) to the Agent, any Lender or the Swingline Lender at its respective address for notices provided for in the Credit Agreement, or (c) as to each such party at such other address as such party shall designate in a written notice to the other parties. Each such notice, request or other communication shall be effective (i) if mailed, when received; (ii) if telecopied, when transmitted; or (iii) if hand delivered, when delivered; provided, however, that any notice of a change of address for notices shall not be effective until received. | |
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Section 26.
Severability.
In case any provision of this Guaranty shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
| |
Section 27.
Headings.
Section headings used in this Guaranty are for convenience
only and shall not affect the construction of this Guaranty.
| |
Section 28.
Limitation of Liability.
Neither the Agent nor any Lender, nor any affiliate,
officer, director, employee, attorney, or agent of the Agent or any Lender, shall
have any liability with respect to, and each Guarantor hereby waives, releases,
and agrees not to xxx any of them upon, any claim for any special, indirect,
incidental, or consequential damages suffered or incurred by a Guarantor in
connection with, arising out of, or in any way related to, this Guaranty or any of
the other Loan Documents, or any of the transactions contemplated by this
Guaranty, the Credit Agreement or any of the other Loan Documents. Each Guarantor
hereby waives, releases, and agrees not to xxx the Agent or any Lender or any of
the Agent’s or any Lender’s affiliates, officers, directors, employees,
attorneys, or agents for punitive damages in respect of any claim in connection
with, arising out of, or in any way related to, this Guaranty, the Credit
Agreement or any of the other Loan Documents, or any of the transactions
contemplated by Credit Agreement or financed thereby.
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Section 29.
Definitions.
(a) For the purposes of this Guaranty:
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“Proceeding”
means any of the following: (i) a voluntary or involuntary case concerning any
Guarantor shall be commenced under the Bankruptcy Code of 1978, as amended; (ii) a
custodian (as defined in such Bankruptcy Code or any other applicable bankruptcy
laws) is appointed for, or takes charge of, all or any substantial part of the
property of any Guarantor; (iii) any other proceeding under any Applicable Law,
domestic or foreign, relating to bankruptcy, insolvency, reorganization,
winding-up or composition for adjustment of debts, whether now or hereafter in
effect, is commenced relating to any Guarantor; (iv) any Guarantor is adjudicated
insolvent or bankrupt; (v) any order of relief or other order approving any such
case or proceeding is entered by a court of competent jurisdiction; (vi) any
Guarantor makes a general assignment for the benefit of creditors; (vii) any
Guarantor shall fail to pay, or shall state that it is unable to pay, or shall be
unable to pay, its debts generally as they become due; (viii) any Guarantor shall
call a meeting of its creditors with a view to arranging a composition or
adjustment of its debts; (ix) any Guarantor shall by any act or failure to act
indicate its consent to, approval of or acquiescence in any of the foregoing; or
(x) any corporate action shall be taken by any Guarantor for the purpose of
effecting any of the foregoing.
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(b)
Terms not otherwise defined herein are used
herein with the respective meanings given them in the Credit Agreement.
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[Signatures on Next Page]
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IN WITNESS WHEREOF,
each Guarantor has duly executed and delivered this Guaranty as of the date and
year first written above.
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[GUARANTORS] | |
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ANNEX I | |
THIS ACCESSION
AGREEMENT dated as of ____________, 200__, executed and delivered by
______________________, a _____________ (the “New Guarantor”), in favor
of (a) WACHOVIA BANK, NATIONAL ASSOCIATION, in its capacity as Agent (the
“Agent”) for the Lenders under that certain Seventh Amended and Restated
Credit Agreement dated as of May 9, 2003 (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), by and
among Commercial Net Lease Realty, Inc. (the “Borrower”), the financial
institutions party thereto and their assignees under Section 12.5. thereof (the
“Lenders”), the Agent, and the other parties thereto, and (b) the
Lenders and the Swingline Lender.
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WHEREAS, pursuant to
the Credit Agreement, the Agent, the Lenders and the Swingline Lender have agreed
to make available to the Borrower certain financial accommodations on the terms
and conditions set forth in the Credit Agreement;
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WHEREAS, the
Borrower, the New Guarantor, and the existing Guarantors, though separate legal
entities, are mutually dependent on each other in the conduct of their respective
businesses as an integrated operation and have determined it to be in their mutual
best interests to obtain financing from the Agent, the Lenders and the Swingline
Lender through their collective efforts;
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WHEREAS, the New
Guarantor acknowledges that it will receive direct and indirect benefits from the
Agent, the Lenders and the Swingline Lender making such financial accommodations
available to the Borrower under the Credit Agreement and, accordingly, the New
Guarantor is willing to guarantee the Borrower’s obligations to the Agent,
the Lenders and the Swingline Lender on the terms and conditions contained herein;
and
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WHEREAS, the New
Guarantor’s execution and delivery of this Agreement is a condition to the
Agent, the Lenders and the Swingline Lender continuing to make such financial
accommodations to the Borrower.
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NOW, THEREFORE, for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the New Guarantor, the New Guarantor agrees as follows:
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Section 1. Accession to Guaranty. The New Guarantor hereby agrees that it is a “Guarantor” under that certain Guaranty dated as of May 9, 2003 (as amended, supplemented, restated or otherwise modified from time to time, the “Guaranty”), made by each Subsidiary of the Borrower a party thereto in favor of the Agent, the Lenders and the Swingline Lender and assumes all obligations of a “Guarantor” thereunder, all as if the New Guarantor had been an original signatory to the Guaranty. Without limiting the generality of the foregoing, the New Guarantor hereby: | |
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(a)
irrevocably and unconditionally guarantees
the due and punctual payment and performance when due, whether at stated maturity,
by acceleration or otherwise, of all Guarantied Obligations (as defined in the
Guaranty);
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(b)
makes to the Agent, the Lenders and the
Swingline Lender as of the date hereof each of the representations and warranties
contained in Section 5 of the Guaranty and agrees to be bound by each of the
covenants contained in Section 6 of the Guaranty; and
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(c)
consents and agrees to each provision set
forth in the Guaranty.
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Section 2.
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
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Section 3.
Definitions.
Capitalized terms used herein and not otherwise defined
herein shall have their respective defined meanings given them in the Credit
Agreement.
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[Signatures on Next Page] | |
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IN WITNESS WHEREOF,
the New Guarantor has caused this Accession Agreement to be duly executed and
delivered under seal by its duly authorized officers as of the date first written
above.
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[NEW GUARANTOR] |
Accepted: | |
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