EXHIBIT 10.38
CREDIT AGREEMENT
DATED AS OF MARCH 22, 2005
BY AND AMONG
COLONIAL REALTY LIMITED PARTNERSHIP,
AS BORROWER
WACHOVIA CAPITAL MARKETS, LLC
AND
BANC OF AMERICA SECURITIES LLC,
AS JOINT LEAD ARRANGERS AND JOINT BOOK MANAGERS
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT
BANK OF AMERICA, N.A.,
AS SYNDICATION AGENT
XXXXX FARGO BANK. NATIONAL ASSOCIATION,
CITICORP NORTH AMERICA, INC.
AND
AMSOUTH BANK,
AS CO-DOCUMENTATION AGENTS
U.S. BANK NATIONAL ASSOCIATION
AND
PNC BANK, NATIONAL ASSOCIATION,
AS CO-SENIOR MANAGING AGENTS
AND
THE FINANCIAL INSTITUTIONS PARTY HERETO
AND THEIR ASSIGNEES UNDER SECTION 12.5,
AS LENDERS
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THIS CREDIT AGREEMENT (this "Agreement") dated as of March 22, 2005 by and
among COLONIAL REALTY LIMITED PARTNERSHIP, a Delaware limited partnership
("Borrower"), each of the financial institutions initially a signatory hereto
together with their assignees pursuant to Section 12.5(d) (collectively, the
"Lenders" and individually a "Lender"), WACHOVIA BANK, NATIONAL ASSOCIATION, as
Agent (the "Agent"), BANK OF AMERICA, N.A., as Syndication Agent, XXXXX FARGO
BANK, NATIONAL ASSOCIATION, CITICORP NORTH AMERICA, INC. and AMSOUTH BANK, as
Co-Documentation Agents, and U.S. BANK NATIONAL ASSOCIATION and PNC BANK,
NATIONAL ASSOCIATION, as Co-Senior Managing Agents.
WHEREAS, the Lenders have agreed to make a credit facility available to the
Borrower; and
WHEREAS, the parties desire to enter into this Agreement in order to set
forth the terms and provisions applicable to such facility;
NOW, THEREFORE, in consideration of the recitals herein and the mutual
covenants contained herein, the parties hereto hereby agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.1 DEFINITIONS.
In addition to terms defined elsewhere herein, the following terms shall have
the following meanings for the purposes of this Agreement:
"ADDITIONAL COSTS" has the meaning given that term in Section 4.1.
"ADJUSTED EBITDA" means as of any date of determination the sum of (a) EBITDA
of Borrower for the immediately preceding calendar quarter annualized less (b)
the Capital Reserve for such period. In determining Adjusted EBITDA, EBITDA
attributable to enclosed mall Properties shall be calculated using EBITDA
attributable to such enclosed mall Properties for the preceding four (4)
calendar quarters divided by four (4), and then annualized.
"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).
"ADJUSTED TOTAL ASSET VALUE" means as of any date of determination the sum of
(a) Total Asset Value less (b) the value of assets (determined in a manner
consistent with the definition of Total Asset Value) owned or leased by Excluded
Subsidiaries or Unconsolidated Affiliates and included in Total Asset Value.
"AFFILIATE" means as to any Person: any other Person directly or indirectly
controlling, controlled by, or under common control with such Person. For
purposes of this definition, "control" (including with correlative meanings, the
terms "controlling", "controlled by" and "under common control with") means the
possession directly or indirectly of the power to direct or cause the direction
of the management and policies of a Person, whether through the ownership of
voting securities or by contract or otherwise.
"AGENT" means Wachovia Bank, as contractual representative for the Lenders
under the terms of this Agreement, and any of its successors.
"AGREEMENT DATE" means the date as of which this Agreement is dated.
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"ANTI-TERRORISM LAWS" has the meaning given that term in Section 6.1(hh).
"APPLICABLE LAW" means all applicable provisions of constitutions, statutes,
rules, regulations and orders of all governmental bodies and all orders and
decrees of all courts, tribunals and arbitrators.
"APPLICABLE MARGIN" means at any time the percentage rate per annum set forth
below in the Base Rate Margin column with respect to Base Rate Loans, the LIBOR
Margin/Revolving Loans column with respect to Revolving Loans that are LIBOR
Loans and the LIBOR Margin/Term Loans column with respect to Term Loans that are
LIBOR Loans determined based upon the Credit Rating of Borrower:
LIBOR Margin/ LIBOR Margin/
Pricing Level Base Rate Margin Revolving Loans Term Loans
--------------- ---------------- --------------- -------------
Pricing Xxxxx 0 [0.00%] 0.50% 0.55%
Pricing Xxxxx 0 [0.00%] 0.55% 0.60%
Pricing Xxxxx 0 [0.00%] 0.70% 0.75%
Pricing Xxxxx 0 [0.00%] 0.80% 0.90%
Pricing Xxxxx 0 0.25% 1.15% 1.35%
As of the Agreement Date, the Applicable Margin is determined based on Pricing
Level 4. Any issuance, change or withdrawal of a Credit Rating or other
circumstance that would result in a change to a different Pricing Level shall
effect a change in the Applicable Margin, as applicable, on each Performance
Pricing Determination Date (provided that each change in the Applicable Margin
as a result of a change in the Credit Rating shall be effective only for Loans
(including Conversions or Continuations) which are made on or after the date of
the relevant Performance Pricing Determination Date).
"ASSIGNEE" has the meaning given that term in Section 12.5(d).
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" means an Assignment and Acceptance
Agreement among a Lender, an Assignee and the Agent, substantially in the form
of Exhibit A.
"BANKRUPTCY CODE" means Title 11, U.S.C.A., as amended from time to time or
any successor statute thereto.
"BASE RATE" means the per annum rate of interest equal to the greater of (a)
the Prime Rate or (b) the Federal Funds Rate plus one-half of one percent
(0.5%). Any change in the Base Rate resulting from a change in the Prime Rate or
the Federal Funds Rate shall become effective as of 12:01 a.m. on the Business
Day on which each such change occurs. The Base Rate is a reference rate used by
the Lender acting as the Agent in determining interest rates on certain loans
and is not intended to be the lowest rate of interest charged by the Lender
acting as the Agent or any other Lender on any extension of credit to any
debtor.
"BASE RATE LOAN" means a Loan bearing interest at a rate based on the Base
Rate.
"BENEFIT ARRANGEMENT" means at any time an employee benefit plan within the
meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and
which is maintained or otherwise contributed to by any member of the ERISA
Group.
"BORROWER" has the meaning set forth in the introductory paragraph hereof.
"BUSINESS DAY" means (a) any day other than a Saturday, Sunday or other day
on which banks in Charlotte, North Carolina or New York, New York 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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"CAPITAL RESERVES" means, for any period and with respect to a Property, an
amount equal to (a) $200 per unit per annum for multifamily Properties, $0.40
per square foot per annum for all office Properties and $0.15 per square foot
per annum for retail Properties multiplied by (b) a fraction, the numerator of
which is the number of days in such period and the denominator of which is 365.
Any portion of a Property leased under a ground lease to a third party that owns
the improvements on such portion of such Property shall not be included in the
determination of Capital Reserves. If the term Capital Reserves is used without
reference to any specific Property, then the amount shall be determined on an
aggregate basis with respect to all Properties of the Borrower and a
proportionate share of all Properties of all of its Subsidiaries and
Unconsolidated Affiliates.
"CAPITALIZATION RATE" means 7.50% for multifamily Properties, 8.25% for
retail Properties, 8.75% for office Properties, and 7.25% for Tax Exempt
Financed Properties.
"CAPITALIZED LEASE OBLIGATIONS" means obligations under a lease that are
required to be capitalized for financial reporting purposes in accordance with
GAAP. The amount of a Capitalized Lease Obligation is the capitalized amount of
such obligation as would be required to be reflected on a balance sheet of the
applicable Person prepared in accordance with GAAP as of the applicable date.
"CASH EQUIVALENTS" means: (a) securities issued, guaranteed or insured by the
United States of America or any of its agencies with maturities of not more than
one year from the date acquired; (b) certificates of deposit with maturities of
not more than one year from the date acquired which are issued by a United
States federal or state chartered commercial bank of recognized standing, or 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, acting through a branch or agency, which bank
at the time of the acquisition thereof has capital and unimpaired surplus in
excess of $500,000,000 and which bank or its holding company at the time of the
acquisition thereof has a short-term commercial paper rating of at least A-2 or
the equivalent by S&P or at least P-2 or the equivalent by Xxxxx'x; (c) reverse
repurchase agreements with terms of not more than seven days from the date
acquired, for securities of the type described in clause (a) above and entered
into only with commercial banks having the qualifications described in clause
(b) above; (d) commercial paper issued by any Person incorporated under the laws
of the United States of America or any State thereof and rated at the time of
the acquisition thereof at least A-2 or the equivalent thereof by S&P or at
least P-2 or the equivalent thereof by Xxxxx'x, in each case with maturities of
not more than one year from the date acquired; and (e) investments in money
market funds registered under the Investment Company Act of 1940, which have at
the time of the acquisition thereof net assets of at least $500,000,000 and at
least 85% of whose assets consist of securities and other obligations of the
type described in clauses (a) through (d) above.
"CHANGE OF CONTROL" means the occurrence of any of the following:
(a) 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 twenty-five percent (25%) of the
total voting power of the then outstanding voting stock of CLP;
(b) during any period of 12 consecutive months, a majority of the
Board of Trustees or Directors of CLP consists of individuals who were not
either (i) trustees or directors of CLP as of the corresponding date of the
previous year, (ii) selected or nominated to become trustees or directors by the
Board of Trustees or Directors of CLP of which a majority consisted of
individuals described in clause (b)(i) above (including those selected or
nominated to replace members as a result of the retirement due to age, death or
disability of members of such board), or (iii) selected or nominated to become
trustees or directors by the Board of Trustees or Directors of CLP of which a
majority consisted of individuals described in clause (b)(i) above and
individuals described in clause (b)(ii), above (including those
11
selected or nominated to replace members as a result of the retirement due to
age, death or disability of members of such board);
(c) CLP fails to directly own, free of any liens, encumbrances or
adverse claims, at least fifty-one percent (51%) of the Equity Interests of
Borrower; or
(d) Borrower fails to own, free of any liens, encumbrances or
adverse claims, all of the Equity Interests of each Guarantor (other than CLP).
"CLP" means Colonial Properties Trust, an Alabama trust.
"COLLATERAL ACCOUNT" means a special non-interest bearing deposit account
maintained by the Agent at the Principal Office and under its sole dominion and
control.
"COMMITMENT" means, as to each Lender, the aggregate of such Lender's
Revolving Loan Commitment and Term Loan Commitment.
"COMMITMENT PERCENTAGE" means, as to each Lender, the ratio, expressed as a
percentage, of (a) the amount of such Lender's Commitment to (b) the aggregate
amount of the Commitments of all Lenders hereunder.
"COMPETITIVE ADVANCE" means a Loan made to Borrower by any Revolving Loan
Lender not determined by that Revolving Loan Lender's Revolving Loan Commitment
Percentage pursuant to Section 2.3.
"COMPETITIVE ADVANCE NOTE" means the promissory note made by Borrower in
favor of a Revolving Loan Lender to evidence the Competitive Advances made by
that Revolving Loan Lender, substantially in the form of Exhibit B.
"COMPETITIVE BID" means a written bid to provide a Competitive Advance
substantially in the form of Exhibit C, signed by a Responsible Officer of a
Revolving Loan Lender and properly completed to provide all information required
to be included therein.
"COMPETITIVE BID REQUEST" means a written request submitted by Borrower to
the Agent to provide a Competitive Bid, substantially in the form of Exhibit D
signed by a Responsible Officer of Borrower and properly completed to provide
all information required to be included therein.
"COMPLIANCE CERTIFICATE" has the meaning given that term in Section 8.3.
"CONDOMINIUM CONVERSION" means that both of the following have occurred as to
a Residential Property: (a) notice of the conversion of such Property to a
condominium form of ownership has been sent to the tenants of such Property if
required by Applicable Law, and (b) a declaration of condominium or other
similar document with respect to such Property has been filed with the
applicable Governmental Authority.
"CONSOLIDATED BASIS" means a Person and its Subsidiaries, consolidated in
accordance with GAAP.
"CONSTRUCTION BUDGET" means, in the aggregate, the fully budgeted total cost
to develop the property under construction or to convert a property to
Residential Units for Sale, including the acquisition cost of land as reasonably
determined by Borrower in good faith.
"CONSTRUCTION-IN-PROCESS" means cash expenditures for land and improvements
(including indirect costs internally allocated and development costs) determined
in accordance with GAAP on all Development Properties that are under
development.
"CONTINGENT LIABILITIES" as to any Person, but without duplication of any
amount included or includable in items (a) through (h), (j) and (k) of
Indebtedness, as applied to any obligation, means and includes liabilities or
obligations with respect to: (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
12
part or all of such obligation; (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 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; (c) all obligations, contingent or otherwise, of such Person under
any synthetic lease, tax retention operating lease, or similar off balance sheet
financing arrangement; (d) all obligations of such Person with respect to any
take-out commitment or forward equity commitment; (e) purchase obligations net
of asset value; and (f) all obligations under performance and/or completion
guaranties (or other agreements the practical effect of which is to assure
performance or completion of such obligations) as and to the extent such
obligations are required to be included as liabilities on the balance sheet of
such Person in accordance with GAAP.
"CONTINUE", "CONTINUATION" and "CONTINUED" each refers to the continuation of
a LIBOR Loan from one Interest Period to another Interest Period pursuant to
Section 2.10.
"CONTRIBUTION AGREEMENT" means the Contribution Agreement of even date
herewith in substantially the form of Exhibit E to be executed by the Borrower
and the Guarantors.
"CONVERT", "CONVERSION" and "CONVERTED" each refers to the conversion of a
Loan of one Type into a Loan of another Type pursuant to Section 2.11.
"CREDIT EVENT" means any of the following: (a) the making (or deemed making)
of any Loan, (b) the Conversion of a Loan and (c) the issuance of a Letter of
Credit.
"CREDIT RATING" means the lowest rating assigned by the Rating Agencies to
each series of rated senior unsecured, non-credit enhanced long term
indebtedness of Borrower (or if no such debt exists, its issuer credit rating
for debt of such type). If, at any time after Borrower obtains a Credit Rating,
(a) the rating system of any of the Rating Agencies (as opposed to the rating of
Borrower) shall change, or (b) any of the Rating Agencies shall no longer
perform the functions of a securities rating agency, then the Borrower and the
Agent shall promptly negotiate in good faith to amend the reference to the
specific ratings in this Agreement for the determination of the Pricing Level,
the Facility Fee, and the availability of Competitive Advances and pending such
amendment, the applicable rating in effect as of the date the event described in
this paragraph occurred shall continue to apply.
"DEBT TO TOTAL ASSET VALUE RATIO" shall mean the ratio (expressed as a
percentage) of (a) the sum of the Borrower's and its Subsidiaries' Indebtedness
to (b) Total Asset Value, with Total Asset Value based on the immediately
preceding calendar quarter.
"DEFAULT" means any of the events specified in Section 10.1, whether or not
there has been satisfied any requirement for the giving of notice, the lapse of
time, or both.
"DEFAULTING LENDER" has the meaning set forth in Section 3.11.
"DERIVATIVES CONTRACT" means any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the
13
foregoing), whether or not any such transaction is governed by or subject to any
master agreement. Not in limitation of the foregoing, the term "Derivatives
Contract" includes any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed by,
any form of master agreement published by the International Swaps and
Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement, including any such obligations or
liabilities under any such master agreement.
"DERIVATIVES TERMINATION VALUE" means, in respect of any one or more
Derivatives Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Derivatives Contracts, (a) for
any date on or after the date such Derivatives Contracts 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 Derivatives
Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Derivatives
Contracts (which may include the Agent or any Lender).
"DEVELOPMENT PROPERTY" means (a) a Property (other than a Residential Unit
for Sale Property) currently under development that has not become a Stabilized
Property, or on which the improvements (other than tenant improvements on
unoccupied space) related to the development have not been completed, provided
that such a Development Property on which all improvements (other than tenant
improvements on unoccupied space) related to the development of such Property
have been completed for at least eighteen (18) months for multifamily Properties
or twelve (12) months for retail and office Properties shall cease to constitute
a Development Property notwithstanding the fact that such Property has not
become a Stabilized Property, and (b) a Residential Unit for Sale Property,
provided that such a Property shall cease to be a Development Property upon the
earlier to occur of (i) twenty four (24) months after the Condominium Conversion
and (ii) thirty-six (36) months after commencement of construction (whether of
infrastructure, above ground improvements or otherwise).
"DOCUMENTATION AGENT" means Xxxxx Fargo Bank, National Association, Citicorp
North America, Inc. and AmSouth Bank.
"DOLLARS" or "$" means dollars in lawful currency of the United States of
America.
"EBITDA" means, with respect to a Person for any period (without
duplication): (a) net income (loss) of such Person for such period determined on
a Consolidated Basis in accordance with GAAP, exclusive of the following (but
only to the extent included in the determination of such net income (loss)): (i)
depreciation and amortization expense; (ii) Interest Expense; (iii) income tax
expense; and (iv) extraordinary or non-recurring gains and losses; plus (b) such
Person's pro rata share of EBITDA of its Unconsolidated Affiliates. EBITDA shall
be adjusted to remove any impact from straight line rent leveling adjustments
required under GAAP and amortization of intangibles pursuant to FAS 141. EBITDA
shall in no event include any income, gain or loss in any case realized on the
sale of any portion of a Residential Unit for Sale Property.
"EFFECTIVE DATE" means the later of: (a) the Agreement Date; and (b) the date
on which all of the conditions precedent set forth in Section 5.1 shall have
been fulfilled or waived in writing by the Requisite Lenders.
"ELIGIBLE ASSIGNEE" means any Person who is: (i) currently a Lender; (ii) a
commercial bank, 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.
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"ELIGIBLE GROUND LEASE" means a ground lease containing the following terms
and conditions: (a) a remaining term (exclusive of any unexercised extension
options) of 40 years or more from the Effective Date; (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 agreement of such lessor that such lease will not be
terminated until such holder has had a reasonable opportunity to cure or
complete foreclosure, and fails to do so; (d) reasonable transferability of the
lessee's interest under such lease, including the ability to sublease; and (e)
such 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.
"ELIGIBLE QI CASH AND CASH EQUIVALENTS" means at any time the sum of (a) the
proceeds from the sale of Properties by Borrower or a Subsidiary of Borrower
which are held by a Qualified Intermediary as cash or Cash Equivalents in a
"qualified escrow account" within the meaning of the regulations issued pursuant
to Section 1031 of the Internal Revenue Code as cash or Cash Equivalents
pursuant to an exchange agreement intended for the purposes of implementing a
tax deferred exchange transaction under Section 1031 of the Internal Revenue
Code, minus (b) all costs, expenses and other obligations incurred by or owing
to such Qualified Intermediary or any other Person which are to be paid from
such qualified escrow account prior to or at the time of the disbursement of the
proceeds from such qualified escrow account by the Qualified Intermediary. In
the event (i) all or a portion of the cash or Cash Equivalents held by the
Qualified Intermediary become subject to any Lien or (ii) the Qualified
Intermediary becomes subject to any bankruptcy or insolvency proceedings, then
with respect to clause (i) above, the value of the cash or Cash Equivalents
subject to such Lien shall be reduced by the principal amount of such Lien, and
with respect to clause (ii) above, the cash or Cash Equivalents held by such
Qualified Intermediary shall be deemed to be zero dollars ($0).
"ENVIRONMENTAL LAWS" means any Applicable Law relating to environmental
protection or the manufacture, storage, disposal or clean-up of Hazardous
Materials including, without limitation, the following: Clean Air Act, 42 U.S.C.
Section 7401 et seq.; Federal Water Pollution Control Act, 33 U.S.C. Section
1251 et seq.; Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901 et seq.; Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq.;
National Environmental Policy Act, 42 U.S.C. Section 4321 et seq.; regulations
of the Environmental Protection Agency and any applicable rule of common law and
any judicial interpretation thereof relating primarily to the environment or
Hazardous Materials.
"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.
"EQUITY ISSUANCE" means any issuance by a Person of any Equity Interest and
shall in any event include the issuance of any Equity Interest upon the
conversion or exchange of any security constituting Indebtedness that is
convertible or exchangeable, or is being converted or exchanged, for Equity
Interests.
"EQUITY PERCENTAGE" shall mean the aggregate ownership percentage of Borrower
or a Subsidiary of Borrower in each Unconsolidated Affiliate.
"ERISA" means the Employee Retirement Income Security Act of 1974, as in
effect from time to time.
"ERISA GROUP" means the Borrower, the other Obligors, any Subsidiary of
Borrower or any of the other Obligors and all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, the other
15
Obligors or any of their respective Subsidiaries, are treated as a single
employer under Section 414 of the Internal Revenue Code.
"EVENT OF DEFAULT" means any of the events specified in Section 10.1,
provided that any requirement for notice or lapse of time or any other condition
has been satisfied.
"EXCLUDED SUBSIDIARY" means any Subsidiary of Borrower (a) holding title to
assets which are or are to become collateral for any Secured Indebtedness of
such Subsidiary; (b) which is prohibited from guarantying the Indebtedness of
any other Person pursuant to (i) any document, instrument or agreement
evidencing such Secured Indebtedness or (ii) a provision of such Subsidiary's
organizational documents which provision was included in such Subsidiary's
organizational documents as a condition to the extension of such Secured
Indebtedness; and (c) for which none of the Borrower, CLP, any of their
respective Subsidiaries (other than another Excluded Subsidiary) or any other
Obligor has any Contingent Liability or is otherwise liable with respect to any
of the Indebtedness of such Subsidiary, except for customary exceptions for
fraud, misapplication of funds, environmental indemnities, and other similar
exceptions from non recourse liability.
"EXECUTIVE ORDER" has the meaning given that term in Section 6.1(hh).
"EXTENSION FEE" has the meaning given that term in Section 3.6.
"EXTENSION REQUEST" has the meaning given that term in Section 2.18.
"FACILITY FEE" means the per annum percentage in the table set forth below
corresponding to the Pricing Level at which the "Applicable Margin" is
determined in accordance with the definition thereof:
Pricing Level Applicable Facility Fee Percentage
--------------- ----------------------------------
Pricing Xxxxx 0 0.15%
Pricing Xxxxx 0 0.15%
Pricing Xxxxx 0 0.15%
Pricing Xxxxx 0 0.20%
Pricing Xxxxx 0 0.30%
Changes in the Facility Fee resulting from a change in a Pricing Level shall
become effective as of the Performance Pricing Determination Date.
"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.
"FEES" means the fees and commissions provided for or referred to in Section
3.6 and any other fees payable by the Borrower to the Agent or any Lender
hereunder or under any other Loan Document.
16
"FIRST MORTGAGE RECEIVABLE" means a Mortgage Receivable (a) secured by a
first priority mortgage, deed of trust or deed to secure debt on a fully
developed and operational multifamily, retail or office property, (b) which is
performing in accordance with its payment terms and as to which no event of
default or other event which would permit the acceleration of such loan shall
have occurred, and (c) the outstanding principal balance of which shall not
exceed eighty percent (80%) of the value of the underlying real estate, as
reasonably determined by Borrower.
"FIXED CHARGE COVERAGE RATIO" shall mean the ratio of (a) Adjusted EBITDA to
(b) Fixed Charges for the period used to calculate EBITDA annualized.
"FIXED CHARGES" means, for the immediately preceding fiscal quarter on an
annualized basis, the sum of (a) Interest Expense of the Borrower and its
Subsidiaries determined on a Consolidated Basis for such period, plus (b) all
regularly scheduled principal payments made with respect to Indebtedness of the
Borrower and its Subsidiaries during such period, other than any balloon, bullet
or similar principal payment which repays such Indebtedness in full, plus (c)
all Preferred Dividends paid during such period. The Borrower's and the
Subsidiaries' Equity Percentage in the Fixed Charges of their Unconsolidated
Affiliates shall be included in the determination of Fixed Charges.
"FUNDS FROM OPERATIONS" means, with respect to a Person and for a given
period, (a) net income (loss) of such Person determined on a Consolidated Basis
for such period minus (or plus) (b) gains (or losses) from debt restructuring
and sales of property during such period, plus (c) depreciation with respect to
such Person's real estate assets and amortization (other than amortization of
deferred financing costs) of such Person for such period, all after adjustment
for unconsolidated partnerships and joint ventures. Adjustments for
unconsolidated entities will be calculated to reflect funds from operations on
the same basis.
"GAAP" means U.S. 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 Agreement Date.
"GOVERNING DOCUMENTS" of any Person means the declaration of trust,
certificate or articles of incorporation, by-laws, partnership agreement or
operating or members agreement, as the case may be, and any other organizational
or governing documents, of such Person.
"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 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.
"GUARANTORS" (whether one or more) means CLP and any other Person that is now
or hereafter a party to the Guaranty as a "Guarantor".
"GUARANTIES" (whether one or more) means the Guaranty substantially in the
form of Exhibit F executed by the Guarantors as of the Agreement Date and
delivered to the Agent in accordance with this Agreement.
"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 "contaminant", "hazardous substances", "hazardous
materials", "hazardous wastes", "pollutant", "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
17
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)
electrical equipment which contains any oil or dielectric fluid containing
levels of polychlorinated biphenyls in excess of fifty parts per million; and
(f) any other chemicals, materials or substances regulated pursuant to any
Environmental Law.
"INDEBTEDNESS" means, with respect to a Person, at the time of computation
thereof, all of the following (without duplication): (a) all obligations of such
Person in respect of money borrowed (other than trade debt incurred in the
ordinary course of business which is not more than 30 days past due); (b) all
obligations of such Person, whether or not for money borrowed (i) represented by
notes payable, or drafts accepted, in each case representing extensions of
credit, (ii) evidenced by bonds, debentures, notes or similar instruments, or
(iii) constituting purchase money indebtedness, conditional sales contracts,
title retention debt instruments or other similar instruments, upon which
interest charges are customarily paid or that are issued or assumed as full or
partial payment for property or services rendered; (c) Capitalized Lease
Obligations of such Person; (d) all reimbursement obligations of such Person
under any letters of credit or acceptances (whether or not the same have been
presented for payment); (e) all Off-Balance Sheet Obligations of such Person;
(f) all obligations of such Person to purchase, redeem, retire, defease or
otherwise make any payment in respect of any Mandatorily Redeemable Stock issued
by such Person or any other Person, valued at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends; (g) all
obligations of such Person in respect of any purchase obligation, repurchase
obligation, takeout commitment or forward equity commitment, in each case
evidenced by a binding agreement (excluding any such obligation to the extent
the obligation can be satisfied by the issuance of Equity Interests (other than
Mandatorily Redeemable Stock)); (h) net obligations under any Derivatives
Contract not entered into as a hedge against existing Indebtedness, in an amount
equal to the Derivatives Termination Value thereof; (i) all Contingent
Liabilities of such Person (except for and guaranties of customary exceptions
for fraud, misapplication of funds, environmental indemnities, and other similar
exceptions to recourse liability (but not exceptions relating to bankruptcy,
insolvency, receivership or other similar events)); (j) all Indebtedness of
another Person secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on property
or assets owned by such Person, even though such Person has not assumed or
become liable for the payment of such Indebtedness or other payment obligation;
and (k) such Person's pro rata share of the Indebtedness of any Unconsolidated
Affiliate of such Person. Indebtedness of any Person shall include Indebtedness
of any partnership or joint venture in which such Person is a general partner or
joint venturer to the extent of such Person's pro rata share of the ownership of
such partnership or joint venture (except if such Indebtedness, or portion
thereof, is recourse to such Person, in which case the greater of such Person's
pro rata portion of such Indebtedness or the amount of the recourse portion of
the Indebtedness, shall be included as Indebtedness of such Person). All Loans
and Letter of Credit Liabilities shall constitute Indebtedness of the Borrower.
"INTELLECTUAL PROPERTY" has the meaning given that term in Section 6.1(t).
"INTEREST COVERAGE RATIO" shall mean the ratio of (a) Adjusted EBITDA to (b)
the Interest Expense for the period used to calculate EBITDA annualized.
"INTEREST EXPENSE" means, for any period, without duplication, (a) total
interest expense of the Borrower and its Subsidiaries, including capitalized
interest not funded under a construction loan interest reserve account plus
recurring fees such as recurring issuer, trustee and credit enhancement fees in
connection with tax-exempt financings, determined on a Consolidated Basis in
accordance with GAAP for such period, plus (b) the Borrower's and its
Subsidiaries' Equity Percentage of Interest Expense of their Unconsolidated
Affiliates for such period.
"INTEREST PERIOD" means with respect to any LIBOR Loan, each period
commencing on the date such LIBOR Loan is made or the last day of the next
preceding Interest Period for such Loan and ending 7, 14,
18
30, 60, 90, or 180 days 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 of 30, 60, 90 or 180 day's duration that
commences on the last Business Day of a calendar month shall end on the last
Business Day of the appropriate subsequent calendar month. Notwithstanding the
foregoing: (i) no Interest Period for a Revolving Loan or Competitive Advance
shall end after the Revolving Loan Termination Date, and no Interest Period for
a Term Loan shall end after the Term Loan Termination Date; and (ii) each
Interest Period that would otherwise end on a day which is not a Business Day
shall end on the next succeeding Business Day (or, if such next succeeding
Business Day falls in the next succeeding calendar month, on the next preceding
Business Day).
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as amended.
"INVESTMENT GRADE RATING" means a Credit Rating of BBB- or better from S&P
and a Credit Rating of Baa3 or better rating from Moody's.
"INVESTMENT" means, 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 Indebtedness of, or purchase or other acquisition
of any Indebtedness 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 transactions) of assets of another Person
that constitute the business or a division or operating unit of another Person.
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
constitute an Investment. Except as expressly provided otherwise, for purposes
of determining compliance with any covenant contained in the Loan Documents, the
amount of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such
Investment.
"ISSUING LENDER" means Wachovia Bank in its capacity as the Revolving Loan
Lender issuing the Letters of Credit and its successors and assigns.
"JOINDER AGREEMENT" means the joinder agreement with respect to the Guaranty
and the Contribution Agreement to be executed and delivered pursuant to Section
7.12 by any additional Guarantor, substantially in the form of Exhibit G.
"JOINT LEAD ARRANGERS" means Wachovia Capital Markets, LLC and Banc of
America Securities LLC.
"L/C COMMITMENT AMOUNT" equals $25,000,000.
"LENDER" means each Revolving Loan Lender and Term Loan Lender.
"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.
"LETTER OF CREDIT" means an irrevocable standby letter of credit in respect
of obligations of the Borrower or a Subsidiary incurred pursuant to contracts
made or performances undertaken or to be undertaken in the ordinary course of
such Person's business which is payable upon presentation of a sight draft and
other documents described in the Letter of Credit, if any, as originally issued
pursuant to this Agreement or as amended, modified, extended, renewed or
supplemented.
"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.
19
"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
Revolving Loan Lender (other than the Revolving Loan Lender acting as the
Issuing Lender) 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, and the Revolving Loan Lender acting as the Issuing Lender 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 giving effect to the acquisition
by the Revolving Loan Lenders other than the Revolving Loan Lender acting as the
Issuing Lender of their participation interests under such section.
"LIBOR" means, for any LIBOR Loan for any Interest Period therefor, the rate
per annum (rounded upwards, if necessary, to the nearest 1/100th 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 (2) 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 1/100th 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 (2) Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period; provided, however, if more
than one rate is specified on the Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates.
"LIBOR LOANS" means Loans bearing interest at a rate based on LIBOR.
"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 or lease constituting a Capitalized Lease Obligation, conditional
sale or other title retention agreement, or other security title, encumbrance or
preferential arrangement which has the same practical effect of constituting a
security interest or encumbrance of any kind, whether voluntarily incurred or
arising by operation of law, 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 Indebtedness
or performance of any other obligation in priority to the payment of the
general, unsecured creditors of such Person; and (c) the filing of any financing
statement under the Uniform Commercial Code or its equivalent in any
jurisdiction, other than a financing statement filed in respect of a lease not
constituting a Capitalized Lease Obligation pursuant to Section 9-505 (or a
successor provision) of the Uniform Commercial Code as in effect in an
applicable jurisdiction that is not in the nature of a security interest.
"LOAN" means a Revolving Loan, a Swingline Loan, a Competitive Advance or a
Term Loan. Amounts drawn under a Letter of Credit shall also be considered
Revolving Loans as provided in Section 2.4.
"LOAN DOCUMENT" means this Agreement, each Note, each Letter of Credit
Document, the Guaranty, the Contribution Agreement, each Joinder Agreement, and
each other document or instrument now or hereafter executed and delivered by an
Obligor in connection with, pursuant to or relating to this Agreement.
"MANDATORILY REDEEMABLE STOCK" means, with respect to any Person, any Equity
Interest of such Person which by the terms of such Equity Interest (or by the
terms of any security into which it is convertible or for which it is
exchangeable or exercisable), upon the happening of any event or otherwise (a)
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise (other than an Equity Interest to the extent redeemable in exchange
for common stock or other equivalent common Equity Interests), (b) is
convertible into or exchangeable or exercisable for Indebtedness or Mandatorily
Redeemable Stock, or (c) is redeemable at the option of the holder thereof, in
whole or in part (other than
20
an Equity Interest which is redeemable solely in exchange for common stock or
other equivalent common Equity Interests); in each case, on or prior to the
latest to occur of the Revolving Loan Termination Date and the Term Loan
Termination Date.
"MATERIAL ADVERSE EFFECT" means a material adverse change in or effect on (a)
the business, assets, financial condition, liabilities (actual or contingent),
or results of operations or prospects of Borrower and its Subsidiaries or any
other Obligor and its Subsidiaries each taken as a whole, (b) the ability of an
Obligor to perform its obligations under the Loan Documents to which it is a
party, (c) the validity or enforceability of such Loan Documents, or (d) the
rights and remedies of Lenders and Agent under the Loan Documents.
"MATERIAL CONTRACT" means any contract or other arrangement (other than Loan
Documents), whether written or oral, to which the Borrower, any other Obligor or
any of their respective Subsidiaries is a party as to which the breach,
nonperformance, cancellation or failure to renew by any party thereto could
reasonably be expected to have a Material Adverse Effect.
"MATERIAL SUBSIDIARY" means any Subsidiary which either (a) has assets which
constitute more than five percent (5%) of Adjusted Total Asset Value at the end
of the most recent calendar quarter of Borrower, or (b) owns (or is the lessee
under an Eligible Ground Lease of) an Unencumbered Asset included in determining
the Unencumbered Asset Value.
"MAXIMUM COMPETITIVE ADVANCE" means, with respect to any Competitive Bid made
by a Revolving Loan Lender, the amount set forth therein as the maximum
Competitive Advance which that Revolving Loan Lender is willing to make in
response to the related Competitive Bid Request.
"MOODY'S" means Xxxxx'x Investors Service, Inc. and its successors.
"MORTGAGE RECEIVABLE" means mortgage and notes receivable, including interest
payments thereunder, of Borrower or any Subsidiary in a Person (other than CLP
or its Subsidiaries).
"MULTIEMPLOYER PLAN" means at any time an employee pension benefit 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 document, instrument or agreement
(including any Governing Document), other than this Agreement or any other Loan
Document, that prohibits, restricts or limits, or purports to prohibit, restrict
or limit, the creation or assumption of any Lien on any assets of a Person as
security for the Indebtedness of such Person or any other 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 the encumbrance of specific assets,
shall not constitute a Negative Pledge.
"NET OPERATING INCOME" or "NOI" means, for any Property and for a given
period, the sum of the following (without duplication and determined on a
consistent basis with prior periods): (a) rents and other revenues received in
the ordinary course from such Property (including proceeds of rent loss or
business interruption insurance but excluding pre-paid rents and revenues
(including termination payments) and security deposits except to the extent
applied in satisfaction of tenants' obligations for rent) minus (b) all expenses
paid (excluding interest but including an appropriate accrual for property taxes
and insurance) related to the ownership, operation or maintenance of such
Property, including but not limited to property taxes, assessments and the like,
insurance, utilities, payroll costs, maintenance, repair and landscaping
expenses, marketing expenses, and general and administrative expenses (including
an appropriate allocation for legal, accounting, advertising, marketing and
other expenses incurred in connection with such Property, but specifically
excluding general overhead expenses of the Borrower or any Subsidiary and any
property management fees) minus (c) the Capital Reserves for such Property as of
21
the end of such period minus (d) the greater of (i) the actual property
management fee paid during such period and (ii) an imputed management fee in the
amount of 3% of the gross revenues for such Property for such period.
Notwithstanding anything in this Agreement to the contrary, (x) for the purpose
of determining Residential Unit for Sale Value, no Net Operating Income
attributable to a Property for the period after the end of the calendar quarter
immediately preceding the Condominium Conversion with respect to such Property
shall be included, (y) for the purpose of calculating compliance with the
Interest Coverage Ratio, the Fixed Charge Coverage Ratio and the Unencumbered
Interest Coverage Ratio, Net Operating Income attributable to a Property
following the Condominium Conversion may be included, and (z) in no event shall
Net Operating Income include any income, gain or loss in any case realized on
the sale of any portion of a Residential Unit for Sale Property.
"NOTE" means a Revolving Note, a Swingline Note, a Competitive Advance Note
or a Term Loan Note.
"NOTICE OF BORROWING" means a notice in the form of Exhibit H-1 to be
delivered to the Agent pursuant to Section 2.1(b) evidencing the Borrower's
request for a borrowing of Revolving Loans, or a notice in the form of Exhibit
H-2 to be delivered to the Agent pursuant to Section 2.5(b) evidencing the
Borrower's request for the borrowing of the Term Loans.
"NOTICE OF CONTINUATION" means a notice in the form of Exhibit I to be
delivered to the Agent pursuant to Section 2.10 evidencing the Borrower's
request for the Continuation of a LIBOR Loan.
"NOTICE OF CONVERSION" means a notice in the form of Exhibit J to be
delivered to the Agent pursuant to Section 2.11 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 K to be
delivered to the Agent pursuant to Section 2.2 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 Obligors owing to the Agent, the Swingline Lender, the
Issuing Lender 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.
"OBLIGORS" means any Person now or hereafter primarily or secondarily
obligated to pay all or any part of the Obligations, including Borrower and
Guarantors.
"OCCUPANCY RATE" means, with respect to a Property at any time, the ratio,
expressed as a percentage, of (a) the net rentable square footage of such
Property (or with respect to a multifamily Property, the number of multifamily
units) actually occupied by tenants that are not affiliated with the Borrower
and paying rent at rates not materially less than rates generally prevailing at
the time the applicable lease was entered into, pursuant to binding leases as to
which no monetary default has occurred and has continued unremedied for 60 or
more days to (b) the aggregate net rentable square footage (or with respect to a
multifamily Property, the number of multifamily units) of such Property. For
purposes of the definition of "Occupancy Rate", a tenant shall be deemed to
actually occupy a Property notwithstanding a temporary cessation of operations
for renovation, repairs or other temporary reason, or for the purpose of
completing tenant build-out or that is otherwise scheduled to be open for
business within 90 days of such date.
"OFF-BALANCE SHEET OBLIGATIONS" means liabilities and obligations of the
Borrower, any Subsidiary or any other Person in respect of "off-balance sheet
arrangements" (as defined in the SEC Off-Balance Sheet Rules) which the Borrower
would be required to disclose in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" section of the Borrower's report
on Form 10-Q or Form 10-K (or their equivalents) which the Borrower is required
to file with the Securities and Exchange
22
Commission (or any Governmental Authority substituted therefore). As used in
this definition, the term "SEC Off-Balance Sheet Rules" means the Disclosure in
Management's Discussion and Analysis About Off Balance Sheet Arrangements,
Securities Act Release No. 33-8182, 68 Fed. Reg. 5982 (Feb. 5, 2003) (codified
at 17 CFR Parts 228, 229 and 249).
"PARTICIPANT" has the meaning given that term in Section 12.5(c).
"PATRIOT ACT" means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as
the same may be amended from time to time, and corresponding provisions of
future laws.
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
agency.
"PERFORMANCE PRICING DETERMINATION DATE" means each date on which the Credit
Rating changes.
"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
pursuant to any environmental laws) 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 the applicable provisions of this Agreement; (b)
liens consisting of deposits or pledges made, in the ordinary course of
business, in connection with, or to secure payment of, obligations under
workers' compensation, unemployment insurance or similar 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
intended use thereof in the business of such Person; (d) the rights of tenants
under leases or subleases not interfering with the ordinary conduct of business
of such Person; (e) liens in favor of the Agent for the benefit of the Lenders;
and (f) liens in favor of the Borrower or a Guarantor securing obligations owing
by a Subsidiary to the Borrower or a Guarantor.
"PERSON" means an individual, corporation, partnership, limited liability
company, joint stock company, association, trust or unincorporated organization,
joint venture, a government or any agency or political subdivision thereof, or
any other entity of whatever nature.
"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 sum of (a) two percent (2.0%) per annum plus (b) the sum of
(i) the Base Rate plus (ii) the Applicable Margin as in effect from time to
time.
"PREFERRED DIVIDENDS" means, for any period and without duplication, all
Restricted Payments paid during such period on Preferred Equity Interests issued
by the Borrower, CLP or a Subsidiary of either of them. Preferred Dividends
shall not include dividends or distributions (a) paid or payable solely in
Equity Interests (other than Mandatorily Redeemable Stock) payable to holders of
such class of Equity Interests; (b) paid or payable to the Borrower or a
Subsidiary of Borrower; or (c) constituting or resulting in the redemption of
Preferred Equity Interests, other than scheduled redemptions not constituting
balloon, bullet or similar redemptions in full.
"PREFERRED EQUITY INTEREST" 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.
23
"PRICING LEVEL" means one of the following five pricing levels, as
applicable, based on the Credit Ratings by S&P and Xxxxx'x as provided herein:
"Pricing Level 1" means the Pricing Level which would be applicable
for so long as the higher of the Credit Ratings of Borrower is equal
to A- by S&P or A3 by Xxxxx'x.
"Pricing Xxxxx 0" means the Pricing Level which would be applicable
for so long as the higher of the Credit Ratings of Borrower is equal
to BBB+ by S&P or Baa1 by Xxxxx'x.
"Pricing Xxxxx 0" means the Pricing Level which would be applicable
for so long as the higher of the Credit Ratings of Borrower is equal
to BBB by S&P or Baa2 by Xxxxx'x.
"Pricing Xxxxx 0" means the Pricing Level which would be applicable
for so long as the higher of the Credit Ratings of Borrower is equal
to BBB- by S&P or Baa3 by Xxxxx'x.
"Pricing Xxxxx 0" means the Pricing Level which would be applicable
for so long as Borrower does not have a Credit Rating from both S&P
and Xxxxx'x or has a Credit Rating of less than BBB- by S&P and Baa3
by Xxxxx'x.
If Borrower shall not have a Credit Rating from both Rating Agencies, Pricing
Level 5 shall apply. If Borrower shall only obtain a Credit Rating from one of
the Rating Agencies, the Borrower shall be entitled to the benefit of the
applicable Pricing Level based upon the Credit Rating issued by such Rating
Agency.
"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.
"PROHIBITED PERSON" has the meaning given that term in Section 6.1(hh).
"PROPERTY" means any parcel of real property, together with all improvements
thereon, owned or leased pursuant to a ground lease by Borrower, any other
Obligor, or any of their respective Subsidiaries or any Unconsolidated Affiliate
of Borrower and which is located in a State of the United States of America or
the District of Columbia.
"QUALIFIED INTERMEDIARY" means any Person serving as a "qualified
intermediary" and/or "exchange accommodation title holder" for purposes of a
sale or exchange pursuant to, and qualifying for tax treatment under, Section
1031 of the Internal Revenue Code.
"RATING AGENCIES" means S&P and Xxxxx'x.
"REGISTER" has the meaning given that term in Section 12.5(e).
"REGULATORY CHANGE" means, with respect to any Lender, any change in
Applicable Law effective after the Agreement Date (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
24
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 Issuing Lender for any drawing
honored by the Issuing Lender 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 whose aggregate Commitment
Percentage equals or exceeds 66-2/3% (excluding Defaulting Lenders who,
accordingly, are not entitled to vote), or if the Commitments (or any part
thereof) are no longer in effect as a result of the terms of Section 10.2,
Lenders holding at least 66-2/3% of the aggregate outstanding principal amount
of the Loans and participations in Letters of Credit (excluding Defaulting
Lenders who, accordingly, are not entitled to vote).
"REQUISITE REVOLVING LOAN LENDERS" means, as of any date, Revolving Loan
Lenders whose aggregate Revolving Loan Commitment Percentage equals or exceeds
66-2/3% (excluding Defaulting Lenders who, accordingly, are not entitled to
vote), or if the Revolving Loan Commitments (or any part thereof) are no longer
in effect as a result of the terms of Section 10.2, Revolving Loan Lenders
holding at least 66-2/3% of the aggregate outstanding principal amount of the
Revolving Loans and participations in Letters of Credit (excluding Defaulting
Lenders who, accordingly, are not entitled to vote).
"RESIDENTIAL PROPERTY" means a residential condominium Property or a Property
comprised of a group of residential units for sale.
"RESIDENTIAL UNIT FOR SALE" means a Residential Property that is being
developed, or has been the subject of a Condominium Conversion for the purpose
of sale of units therein.
"RESIDENTIAL UNIT FOR SALE VALUE" means as of any date of determination, the
sum of the following: (a) the sum of (i) the Net Operating Income attributable
to Residential Properties subject to a Condominium Conversion for the four (4)
calendar quarter period ending immediately prior to such conversion divided by
seven and one-half percent (7.50%), plus (ii) the cost of capital improvements
made to such Residential Properties following the Condominium Conversion, which
amount pursuant to this clause (ii) shall not as to any Residential Property
exceed twenty-five percent (25%) of the amount determined in accordance with the
preceding clause (a) (i) with respect to such Residential Property, plus (b) the
cost of all other Residential Units For Sale that are not the subject of a
Condominium Conversion (that is, such Residential Units For Sale are a new
development), minus (c) ninety percent (90%) of the gross actual contractual
sales price of each Residential Unit For Sale prior to any deductions for
commissions, fees and any other expenses. Notwithstanding the foregoing, no
value will be attributed to any Residential Unit For Sale that is the subject of
a Condominium Conversion twenty-four (24) months after such conversion, and no
value will be attributed to any other Residential Unit For Sale thirty-six (36)
months after commencement of construction (whether of infrastructure,
above-ground improvements or otherwise). In addition, no value shall be
attributable to any Residential Unit For Sale at any time following the earlier
of the date that (i) all residential units within such Residential Property have
been sold or otherwise conveyed, (ii) the management or control of such
Residential Property has been turned over to such Property's homeowner's
association or similar entity, or (iii) less than ten percent (10%) of the
residential units within such Residential Property remain unsold.
"RESPONSIBLE OFFICER" means (a) with respect to CLP (acting as a signatory
for Borrower), CLP's President, chief financial officer, chief accounting
officer or any other senior officer, (b) with respect to any other Obligor, such
Obligor's chief executive officer, chief financial officer, or any other senior
officer, and (c) with respect to any Lender, any officer, partner, managing
member or similar person apparently authorized to execute documents on behalf of
such Lender. A Responsible Officer shall also include any other person or
officer specifically authorized and designated as such by the applicable Person.
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"RESTRICTED PAYMENT" means (a) any dividend or other distribution, direct or
indirect, on account of any Equity Interest of the Borrower, any Obligor or any
of their respective Subsidiaries 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, any Obligor or any of their respective
Subsidiaries 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, any Obligor or any of their
respective Subsidiaries now or hereafter outstanding.
"REVOLVING LOAN" means a loan made by a Revolving Loan Lender to the Borrower
pursuant to Section 2.1(a).
"REVOLVING LOAN COMMITMENT" means, as to each Revolving Loan Lender, such
Revolving Loan Lender's obligation to make Revolving Loans pursuant to Section
2.1, to issue (in the case of the Issuing Lender) or participate in (in the case
of the other Revolving Loan Lenders) Letters of Credit pursuant to Section 2.4
and to participate in Swingline Loans pursuant to Section 2.2, to an amount up
to, but not exceeding (but in the case of the Revolving Loan Lender acting as
the Issuing Lender excluding the aggregate amount of participations in the
Letters of Credit held by other Revolving Loan Lenders) the amount set forth for
such Revolving Loan Lender on its signature page hereto as such Revolving Loan
Lender's "Revolving Loan Commitment Amount" or as set forth in the applicable
Assignment and Acceptance Agreement, as the same may be reduced from time to
time pursuant to Section 2.13, increased pursuant to Section 2.16, or as
appropriate to reflect any assignments to or by such Revolving Loan Lender
effected in accordance with Section 12.5.
"REVOLVING LOAN COMMITMENT PERCENTAGE" means, as to each Revolving Loan
Lender, the ratio, expressed as a percentage, of (a) the amount of such
Revolving Loan Lender's Revolving Loan Commitment to (b) the aggregate amount of
the Revolving Loan Commitments of all Revolving Loan Lenders hereunder;
provided, however, that if at the time of determination the Revolving Loan
Commitments have terminated or been reduced to zero, the "Revolving Loan
Commitment Percentage" of each Revolving Loan Lender shall be the Revolving Loan
Commitment Percentage of such Revolving Loan Lender in effect immediately prior
to such termination or reduction.
"REVOLVING LOAN LENDER" means each financial institution from time to time
party hereto which is a holder of a Revolving Note, together with its respective
successors and permitted assigns. The Issuing Lender shall also be a Revolving
Loan Lender.
"REVOLVING LOAN TERMINATION DATE" means March 22, 2008, or if the Revolving
Loan Termination Date has then been extended pursuant to Section 2.18, such
extended Revolving Loan Termination Date, or if the Revolving Loan Commitments
are earlier terminated pursuant to Section 2.13, such earlier termination date.
"REVOLVING NOTE" has the meaning given that term in Section 2.12(a).
"SECURED DEBT" means with respect to Borrower or any of its Subsidiaries as
of any given date, the aggregate principal amount of all Indebtedness of such
Persons on a Consolidated Basis outstanding at such date and that is secured in
any manner by any Lien, and in the case of the Borrower, shall include (without
duplication), the Borrower's Equity Percentage of the Secured Indebtedness of
its Unconsolidated Affiliates.
"SECURED DEBT TO TOTAL ASSET VALUE RATIO" shall mean the ratio (expressed as
a percentage) of Secured Debt to Total Asset Value.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time, together with all rules and regulations issued thereunder.
"SENIOR MANAGING AGENT" means U.S. Bank National Association and PNC Bank,
National Association.
26
"SOLVENT" means, when used with respect to any Person, that (a) the fair
value and the fair salable value of its assets 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.
"STABILIZED PROPERTY" means a completed Property that has achieved an
Occupancy Rate of at least eighty percent (80%) for a period of not less than
one (1) full calendar quarter.
"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,
reinstated or reduced from time to time in accordance with the terms of such
Letter of Credit.
"SUBSIDIARY" means, for any Person, any corporation, partnership, limited
liability company 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, limited liability company 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.
"SWINGLINE COMMITMENT" means the Swingline Lender's obligation to make
Swingline Loans pursuant to Section 2.2 in an amount up to, but not exceeding,
$40,000,000, as such amount may be reduced from time to time in accordance with
the terms hereof.
"SWINGLINE LENDER" means Wachovia Bank, together with its successors and
assigns.
"SWINGLINE LOAN" means a loan made by the Swingline Lender to the Borrower
pursuant to Section 2.2(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 L.
"SYNDICATION AGENT" means Bank of America, N.A.
"TAX EXEMPT FINANCED PROPERTIES" means any Properties encumbered by Liens to
secure tax exempt revenue bonds or similar instruments issued by a Governmental
Authority to finance such Property.
"TAXES" has the meaning given that term in Section 3.12.
"TERM LOAN COMMITMENT" means, as to each Term Loan Lender, such Term Loan
Lender's obligation to make the Term Loan pursuant to Section 2.5 in the amount
set forth for such Term Loan Lender on its signature page hereto as such Term
Loan Lender's "Term Loan Commitment Amount" or as set forth in the applicable
Assignment and Acceptance Agreement, as the same may be reduced from time to
time upon repayment or as appropriate to reflect any assignments to or by such
Term Loan Lender effected in accordance with Section 12.l5.
"TERM LOAN COMMITMENT PERCENTAGE" means, as to each Term Loan Lender, the
ratio, expressed as a percentage of (a) the amount of such Term Loan Lender's
Term Loan Commitment to (b) the aggregate amount of the Term Loan Commitments of
all Term Loan Lenders hereunder.
27
"TERM LOAN LENDER" means each financial institution from time to time party
hereto which is a holder of a Term Loan Note, together with its respective
successors and permitted assigns.
"TERM LOAN NOTE" has the meaning given that term in Section 2.12(b).
"TERM LOAN TERMINATION DATE" means March 22, 2008, or if the Term Loan
Termination Date has then been extended pursuant to Section 2.18, such extended
Term Loan Termination Date.
"TITLED AGENT" means any of the Joint Lead Arrangers, the Syndication Agent,
the Documentation Agent, the Senior Managing Agent and their respective
successors and permitted assigns.
"TOTAL ASSET VALUE" means as of any date of determination the sum (without
duplication) of all of the following of the Borrower and its Subsidiaries on a
Consolidated Basis determined in accordance with GAAP applied on a consistent
basis: (a) cash and Cash Equivalents, plus (b) with respect to each Property
owned for the prior eighteen (18) consecutive months by the Borrower or any
Subsidiary of Borrower, the quotient of (i) Net Operating Income attributable to
such Property (without regard to its occupancy) for the calendar quarter most
recently ended times four (4), divided by (ii) the applicable Capitalization
Rate, plus (c) the GAAP book value of Properties acquired during the most recent
period of eighteen (18) consecutive months, plus (d) Construction-in-Process
until the earlier of (i) the date such Property is no longer a Development
Property or (ii) the calendar quarter after the Property becomes a Stabilized
Property, plus (e) the GAAP book value of Unimproved Land, Mortgage Receivables,
other promissory notes and other tangible assets, plus (f) the Residential Unit
for Sale Value. The Borrower's pro rata share of assets held by Unconsolidated
Affiliates (excluding assets of the type described in the immediately preceding
clause (a)) will be included in Total Asset Value calculations consistent with
the above described treatment for wholly-owned assets. For purposes of
determining Total Asset Value, (x) Net Operating Income from Properties acquired
or disposed of by the Borrower, any Subsidiary of Borrower or any Unconsolidated
Affiliate during the immediately preceding calendar quarter of the Borrower
shall be excluded and (y) Capital Reserves shall not be deducted from Net
Operating Income of multifamily Properties. Notwithstanding the foregoing, the
Net Operating Income of enclosed mall Properties shall for the purposes of
clause (b)(i) above be determined for the preceding four (4) calendar quarters
divided by four (4), and then annualized. The value attributable to any
Residential Unit for Sale Property shall only be included under clause (f)
above.
"TOTAL COMMITMENT" means, as of any date, the sum of the then current
Revolving Loan Commitments and Term Loan Commitments of the Lenders. As of the
Effective Date, the Total Commitment (including the Swingline Commitment) is
$600,000,000, subject to increase upon an increase of the Revolving Loan
Commitment in accordance with the provisions of Section 2.16.
"TOTAL INDEBTEDNESS" means all Indebtedness of the Borrower and all of its
Subsidiaries determined on a Consolidated Basis.
"TYPE" with respect to any Loan, refers to whether such Loan is a LIBOR Loan
or Base Rate Loan.
"UNCONSOLIDATED AFFILIATE" means, in respect of any Person, any other Person
(a) 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 first Person on the consolidated financial statements of such
first Person, or (b) which is not a Subsidiary of such first Person.
"UNENCUMBERED ADJUSTED NOI" means, for any period, NOI from all Unencumbered
Assets (without regard to the occupancy of an individual Unencumbered Asset, but
subject to the terms of Section 9.14) for the immediately preceding quarter
annualized. Notwithstanding the foregoing, NOI of enclosed mall Properties
included within Unencumbered Assets shall be determined for the preceding four
(4) calendar quarters divided by four (4), and then annualized.
"UNENCUMBERED ASSET" means a Property which satisfies all of the following
requirements: (a) such Property is fully developed and operational as a retail,
office or multifamily property unless such property
28
is a Development Property; (b) the Property is owned, or leased under an
Eligible Ground Lease, entirely by the Borrower and/or a Guarantor (except for
any individual units within a Residential Unit for Sale Property that have been
sold to unaffiliated third party purchasers); (c) neither such Property, nor any
interest of the Borrower or any Guarantor therein, is subject to any Lien (other
than those described in clauses (a), (c) and (d) of the definition of Permitted
Liens) or a Negative Pledge; (d) if such Property is owned or leased by a
Guarantor (i) none of the Borrower's direct or indirect ownership interest in
such Guarantor is subject to any Lien or to a 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 Indebtedness of the Borrower or such Guarantor, as
applicable; (e) such Property is free of all structural defects or major
architectural deficiencies, title defects, environmental conditions or other
adverse matters except for defects, deficiencies, conditions or other matters
individually or collectively which are not material to the profitable operation
of such Property; (f) if such Property constitutes Construction-In-Process and
construction of above-ground improvements has commenced, or a Residential Unit
for Sale Property and improvements or alterations thereto have commenced, such
construction has not been terminated, suspended, or otherwise interrupted for
more than one hundred twenty (120) consecutive days (unless such delay is a
result of force majeure); (g) such Property is located entirely in a state
within the contiguous 48 states of the continental United States or the District
of Columbia; and (h) such Property has been designated as an "Unencumbered
Asset" on Schedule 6.1(y) or an Unencumbered Asset Certificate and in either
event has not been removed as an Unencumbered Asset pursuant to Section 8.4(o).
With respect to Eligible QI Cash and Cash Equivalents, unrestricted Cash
Equivalents and First Mortgage Receivables included in the Unencumbered Asset
Value, (x) neither such asset, nor any interest of the Borrower or any Guarantor
therein, is subject to any Lien (other than those described in clause (a) of the
definition of "Permitted Liens") or a Negative Pledge, (y) with respect to First
Mortgage Receivables, the underlying collateral for such loan shall be a
property which is owned in fee simple by the borrower or is ground leased under
an Eligible Ground Lease which satisfies the requirements of clauses (a), (e),
(f) and (g) of the definition of "Unencumbered Assets"(except that the
underlying real estate need not be owned by Borrower or a Guarantor), and (z) in
any such case such asset has been designated as an "Unencumbered Asset" on
Schedule 6.1(y) or an Unencumbered Asset Certificate and in either event has not
been removed as an Unencumbered Asset pursuant to Section 8.4(o).
"UNENCUMBERED ASSET CERTIFICATE" has the meaning given that term in Section
8.3.
"UNENCUMBERED ASSET VALUE" means as of any date of determination the sum
(without duplication) of (a) the Unencumbered Adjusted NOI from Properties
included in Unencumbered Assets (excluding NOI attributable to Development
Properties included within Unencumbered Assets) for the calendar quarter most
recently ended times four (4) divided by the applicable Capitalization Rate,
plus (b) the GAAP book value of all Unencumbered Assets acquired during the
period of eighteen (18) consecutive months most recently ended, plus (c) the
GAAP book value of Construction-In-Process and Development Properties included
within Unencumbered Assets, until the earlier of (i) the date such Property is
no longer a Development Property or (ii) the second calendar quarter after such
Property becomes a Stabilized Property (except that to the extent the
Unencumbered Asset Value pursuant to this clause (c) and clause (d) would exceed
fifteen percent (15%) of the Unencumbered Asset Value, such excess shall be
excluded), plus (d) the Residential Units for Sale Value for Residential Units
for Sale included in Unencumbered Assets (except that to the extent the
Unencumbered Asset Value pursuant to this clause (d) would exceed ten percent
(10%) of the Unencumbered Asset Value, such excess shall be excluded), plus (e)
Eligible QI Cash and Cash Equivalents included within Unencumbered Assets, plus
(f) unrestricted Cash Equivalents held by the Borrower and the Guarantors
included within Unencumbered Assets (except that to the extent that the
Unencumbered Asset Value pursuant to clauses (e) and (f) exceeds ten percent
(10%) of Unencumbered Asset Value, any such excess shall be excluded), plus (g)
the outstanding principal balance of First Mortgage Receivables of the Borrower
and Guarantors included within Unencumbered Assets (except that to the extent
the Unencumbered Asset Value pursuant
29
to this clause (g) would exceed five percent (5%) of the Unencumbered Asset
Value, such excess shall be excluded). In addition, to the extent that the
aggregate Unencumbered Asset Value pursuant to clauses (c), (d), (e), (f) and
(g) exceeds twenty-five percent (25%) of the Unencumbered Asset Value, any such
excess shall be excluded. For purposes of this definition, Capital Reserves for
multifamily Properties shall not be deducted from Net Operating Income.
"UNENCUMBERED INTEREST COVERAGE RATIO" means the ratio of (a) the
Unencumbered Adjusted NOI to (b) the Unsecured Interest Expense for the
immediately preceding calendar quarter annualized.
"UNENCUMBERED LEVERAGE RATIO" means the ratio of (a) the Unencumbered Asset
Value as of the date of determination to (b) the Unsecured Debt of the Obligors
and their Subsidiaries as of such date of determination.
"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.
"UNIMPROVED LAND" shall mean land on which no development (other than
improvements that are not material and are temporary in nature) has occurred.
"UNSECURED DEBT" means Indebtedness of the Obligors and their Subsidiaries on
a Consolidated Basis outstanding at any time which is not Secured Indebtedness.
"UNSECURED INTEREST EXPENSE" shall mean, for a given period, all Interest
Expense of the Obligors and their Subsidiaries on a Consolidated Basis
attributable to Unsecured Debt of the Obligors and their Subsidiaries for such
period.
"WACHOVIA BANK" means Wachovia Bank, National Association and its successors.
"WHOLLY OWNED SUBSIDIARY" means any Subsidiary of Borrower 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 by Borrower.
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 in effect as of the
Agreement Date. 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.
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.
30
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 Revolving Loan Termination
Date, each Revolving Loan 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 Revolving Loan Lender's
Revolving Loan Commitment. Subject to the terms and conditions of this
Agreement, during the period from the Effective Date to but excluding the
Revolving Loan 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 (i)
before 11:00 a.m. in the case of LIBOR Loans, on the date three (3) Business
Days prior to the proposed date of such borrowing and (ii) in the case of Base
Rate Loans, on the date one (1) 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) or the information contained in a telephonic notice of
borrowing (if such telephonic notice is received prior to a Notice of Borrowing)
to each Revolving Loan 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 Revolving Loan 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 Revolving Loan 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 in
Dollars, in immediately available funds, 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 SWINGLINE LOANS.
(a) Swingline Loans. Subject to the terms and conditions hereof, during
the period from the Effective Date to but excluding the Revolving Loan
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.
(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 11:00 a.m. on the proposed date of such borrowing. Any such
telephonic notice 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
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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 2:00 p.m. on such date.
(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. Interest
payable on Swingline Loans is solely for the account of the Swingline Lender.
All accrued and unpaid interest on Swingline Loans shall be payable on the dates
and in the manner provided in Section 2.6 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).
(d) Swingline Loan Amounts, Etc. Each Swingline Loan shall be in the
minimum amount of $1,000,000 and integral multiples of $500,000 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 prepayment. The Swingline Loans shall, in addition to this
Agreement, be evidenced by the Swingline Note.
(e) Repayment and Participations of Swingline Loans. The Borrower agrees
to repay each Swingline Loan within ten (10) 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 Revolving Loan 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 in
respect of which the Agent has not either (x) received a Notice of Borrowing or
a Competitive Bid Request indicating that such Swingline Loan is to be repaid
with the proceeds thereof within ten (10) days of the date such Swingline Loan
was made or (y) received notice from the Borrower that it intends to repay such
Swingline Loan within ten (10) days of the date such Swingline Loan was made
and, in the case of this clause (y) only, such Swingline Loan is not repaid by
11:30 a.m. on such date, the Swingline Lender may, on behalf of the Borrower
(which hereby irrevocably direct the Swingline Lender to act on their behalf),
request a borrowing of Revolving Loans (which shall be Base Rate Loans) from the
Revolving Loan Lenders in an amount equal to the principal balance of such
Swingline Loan. The limitations of Section 3.5(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 promptly give notice to the Revolving Loan Lenders of any such borrowing
of Base Rate Loans. No later than 2:00 p.m. on such date, each Revolving Loan
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 Revolving Loan 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. Immediately upon the making of a
Swingline Loan, each Revolving Loan Lender will be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase, without recourse or
warranty, an undivided participation interest in the Swingline Loan in an amount
equal to its Revolving Loan Commitment Percentage of such Swingline Loan. If the
Revolving Loan 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 Revolving Loan Lender shall fund its participation interest
(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 Revolving Loan Commitments are then in effect,
any Event of Default exists or all the Loans have been accelerated) by paying
the proceeds
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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 Revolving Loan Lender, the Swingline Lender shall be
entitled to recover such amount on demand from such Revolving Loan Lender,
together with accrued interest thereon for each day from the date of demand
thereof, at the Federal Funds Rate. If such Revolving Loan Lender does not pay
such amount forthwith upon the Swingline Lender's demand therefor, and until
such time as such Revolving Loan 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 Revolving Loan
Lenders to purchase a participation therein). Further, such Revolving Loan
Lender shall be deemed to have assigned any and all payments made of principal
and interest on its Revolving 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 Revolving Loan Lender failed to
purchase pursuant to this Section until such amount has been purchased (as a
result of such assignment or otherwise). A Revolving Loan 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 Revolving Loan Lender or any other Person may
have or claim 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 Revolving
Loan Lender's Revolving Loan 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 Revolving
Loan Lender or the Borrower or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing. Upon the receipt by
Swingline Lender of any payment in respect of any Swingline Loan, Swingline
Lender shall promptly pay to each Revolving Loan Lender that has acquired and
funded a participation therein under this Section 2.2(e) such Revolving Loan
Lender's Revolving Loan Commitment Percentage of such payment; provided,
however, that in the event that such payment received by the Swingline Lender is
required to be returned, such Revolving Loan Lender will return to the Swingline
Lender any portion thereof previously distributed by the Swingline Lender to it.
SECTION 2.3 COMPETITIVE ADVANCES.
(a) For so long as Borrower maintains an Investment Grade Rating,
subject to the terms and conditions hereof, at any time and from time to time
from the Effective Date to but excluding the Revolving Loan Termination Date,
and provided that no Default or Event of Default shall have occurred and be
continuing, Borrower may request and each Revolving Loan Lender may in its sole
and absolute discretion make Competitive Advances to Borrower in such principal
amounts as Borrower may request pursuant to a Competitive Bid Request that do
not result in (i) the aggregate principal amount outstanding under the
Competitive Advance Notes (after giving effect to all amounts requested
thereunder) being in excess of an amount equal to 50% of the aggregate amount of
the Revolving Loan Commitments (provided that in connection with the purchase of
a portfolio of properties having a purchase price of not less than $100,000,000,
the aggregate principal amount outstanding under the Competitive Advance Notes
may be up to an amount equal to 70% of the aggregate amount of the Revolving
Loan Commitments, provided further that such increased limit shall only be
available one (1) time each calendar quarter, and the maturity of any such
Competitive Advance over an amount equal to 50% of the aggregate amount of the
Revolving Loan Commitments shall not exceed thirty (30) days), and (ii) the
aggregate principal amount outstanding under the Notes (other than the Term Loan
Notes) (after giving effect to all amounts requested thereunder) plus the Letter
of Credit Liabilities being in excess of the aggregate amount of the Revolving
Loan Commitments.
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(b) Borrower shall request Competitive Advances by submitting a duly
completed Competitive Bid Request to the Agent, which Competitive Bid Request
shall specify the relevant date, amount and maturity for the proposed
Competitive Advance. Each request shall be for an advance on the basis of a
margin over the Adjusted Eurodollar Rate and shall have a maturity date equal to
one of the Interest Periods permitted by Section 2.3(d) (subject to the
limitations therein). Any Competitive Bid Requests shall be accompanied by
payment of a nonrefundable $1,000 competitive bid request fee for the account of
the Agent. Any Competitive Advance shall be a LIBOR Loan. The proposed funding
date shall be a Business Day. The Agent shall incur no liability whatsoever
hereunder in acting upon any Competitive Bid Request purportedly made by a
Responsible Officer of Borrower, which hereby agrees to indemnify the Agent from
any loss, cost, expense or liability as a result of so acting. The Competitive
Bid Request must be received by the Agent not later than 10:00 a.m. on a
Business Day that is at least four (4) Business Days prior to the date of the
proposed Competitive Advance.
(c) Each Competitive Bid Request must be made for a Competitive Advance
of at least $3,000,000 and shall be in an integral multiple of $1,000,000.
(d) No Competitive Bid Request shall be made for a Competitive Advance
with a maturity of less than 7 days or more than 90 days, or with a maturity
date subsequent to the Revolving Loan Termination Date. The Borrower may request
offers to make Competitive Advances for up to four (4) Interest Periods in a
single Competitive Bid Request, provided that in no event shall Borrower be
permitted to have more than twelve (12) different Interest Periods outstanding
at any one time with respect to all LIBOR Loans that are Revolving Loans
(including Competitive Advances).
(e) The Agent shall, promptly after receipt of a Competitive Bid
Request, provide the Revolving Loan Lenders a copy thereof by telecopier. Any
Revolving Loan Lender may, by written notice to the Agent, advise the Agent that
it elects not to be so notified of Competitive Bid Requests, in which case the
Agent shall not notify such Revolving Loan Lender of the Competitive Bid
Request.
(f) Each Revolving Loan Lender receiving a Competitive Bid Request may,
in its sole and absolute discretion, make or not make a Competitive Bid
responsive to the Competitive Bid Request. A Revolving Loan Lender shall have no
obligation to make a Competitive Bid. Each Competitive Bid shall be submitted so
as to be received by the Agent not later than 10:00 a.m. (or, in the case of the
Revolving Loan Lender acting as Agent, not later than 9:00 a.m.) on the date
which is three (3) Business Days prior to the requested Competitive Advance. Any
Competitive Bid received by the Agent after 10:00 a.m. (or 9:00 a.m. in the case
of the Revolving Loan Lender acting as Agent) on such date shall be disregarded
for purposes of this Agreement. The Agent shall incur no liability whatsoever
hereunder in acting upon any Competitive Bid purportedly made by a Responsible
Officer of a Revolving Loan Lender, each of which hereby agrees to indemnify the
Agent from any loss, cost, expense or liability as a result of so acting with
respect to that Revolving Loan Lender.
(g) Each Competitive Bid shall specify the margin over the Adjusted
Eurodollar Rate for the offered Maximum Competitive Advance set forth in the
Competitive Bid. The Maximum Competitive Advance offered by a Revolving Loan
Lender in a Competitive Bid shall not exceed the Competitive Advance requested
and may be less than the Competitive Advance requested by Borrower in the
Competitive Bid Request, but shall be an integral multiple of $1,000,000. Any
Competitive Bid which offers an interest rate other than a margin over the
Adjusted Eurodollar Rate, is in a form other than as set forth in Exhibit C or
which otherwise contains any term, condition, qualification or provision not
contained in the Competitive Bid Request (including without limitation a
requirement of a minimum advance) or is received after the time set forth in
this Section 2.3(g) shall be disregarded for purposes of this Agreement. A
Competitive Bid once submitted to the Agent shall, subject to the terms of
Section 4.3 and Article V, be irrevocable until 12:00 noon on the date which is
two (2) Business Days prior to the
34
requested Competitive Advance set forth in the related Competitive Bid Request,
and shall expire by its terms at such time unless accepted by Borrower on or
prior thereto.
(h) Promptly after 10:00 a.m. on the date which is three (3) Business
Days prior to the date of the proposed Competitive Advance, the Agent shall
notify Borrower of the names of the Revolving Loan Lenders providing Competitive
Bids to the Agent at or before 10:00 a.m. on that date (or 9:00 a.m. in the case
of the Revolving Loan Lender acting as Agent) and satisfying the conditions of
this Section 2.3 and the Maximum Competitive Advance and margin over the
Adjusted Eurodollar Rate set forth by each such Revolving Loan Lender in its
Competitive Bid.
(i) Borrower may, in its sole and absolute discretion, reject any or all
of the Competitive Bids. If Borrower accepts any Competitive Bid, by telephone
or in writing (provided that any acceptance by telephone shall be confirmed
promptly by hand delivery or telecopy of such acceptance signed by Borrower),
the following shall apply: (i) Borrower must accept all Competitive Bids at all
lower margins over the Adjusted Eurodollar Rate before accepting any portion of
a Competitive Bid at a higher margin over the Adjusted Eurodollar Rate, (ii) if
two or more Revolving Loan Lenders have submitted a Competitive Bid at the same
margin, then Borrower must accept either all of such Competitive Bids or accept
such Competitive Bids in the same proportion as the Maximum Competitive Advance
of each Revolving Loan Lender bears to the aggregate Maximum Competitive
Advances of all such Revolving Loan Lenders, (iii) Borrower may not accept
Competitive Bids for an aggregate amount in excess of the requested Competitive
Advance set forth in the Competitive Bid Request, and (iv) the aggregate
principal amount of the Competitive Bids accepted must be at least $3,000,000
and shall be in an integral multiple of $1,000,000. Acceptance by Borrower of a
Competitive Bid must be made prior to 12:00 noon on the date which is two (2)
Business Days prior to the requested Competitive Advance. Acceptance of a
Competitive Bid by Borrower shall be accomplished by telephonic or written
notification thereof to the Agent (provided that any acceptance by telephone
shall be confirmed promptly by hand delivery or telecopy of such acceptance
signed by Borrower) and shall be irrevocable upon such notification. The Agent
shall promptly notify each of the Revolving Loan Lenders whose Competitive Bid
has been accepted by Borrower by telephone, which notification shall promptly be
confirmed in writing delivered in person or by telecopier to such Revolving Loan
Lenders. Any Competitive Bid not accepted or rejected by Borrower by 12:00 noon,
on the date which is two (2) Business Days prior to the proposed Competitive
Advance, shall be deemed rejected.
(j) In the case of a Competitive Bid, the Agent shall determine the
Adjusted Eurodollar Rate on the date which is two (2) Business Days prior to the
date of the proposed Competitive Advance, and shall promptly thereafter notify
Borrower and the Revolving Loan Lenders whose Competitive Bids were accepted by
Borrower of such Adjusted Eurodollar Rate.
(k) A Revolving Loan Lender whose Competitive Bid has been accepted by
Borrower shall make the Competitive Advance in accordance with the Competitive
Bid Request and with its Competitive Bid, subject to the applicable conditions
set forth in this Agreement, by making funds immediately available to the Agent
at the Principal Office in the amount of such Competitive Advance not later than
1:00 p.m. on the date set forth in the Competitive Bid Request. The Agent shall
then promptly make available to the Borrower the aggregate amount of the
Competitive Advances made available to the Agent by crediting such amount in
immediately available funds to the account of the Borrower on the books of such
office of Agent.
(l) The Agent shall notify Borrower and the Revolving Loan Lenders
promptly after any Competitive Advance is made of the amounts and maturity of
such Competitive Advances and the range of margin over the Adjusted Eurodollar
Rate for such Competitive Advances.
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(m) The Competitive Advances made by a Revolving Loan Lender shall be
evidenced by that Revolving Loan Lender's Competitive Advance Note.
(n) Each Competitive Advance shall be subject to all of the provisions
of this Agreement generally, provided, however, that a Competitive Advance shall
not reduce a Revolving Loan Lender's Revolving Loan Commitment or a Revolving
Loan Lender's obligation to fund its Revolving Loan Commitment Percentage of any
Revolving Loan or to participate in Swingline Loans or Letters of Credit. No
Competitive Advance may be prepaid prior to the end of the applicable Interest
Period without the prior written consent of the affected Revolving Loan Lender.
SECTION 2.4 LETTERS OF CREDIT.
(a) Letters of Credit. Subject to the terms and conditions of this
Agreement, the Issuing Lender, on behalf of the Revolving Loan Lenders, agrees
to issue for the account of the Borrower during the period from and including
the Effective Date to, but excluding, the date 30 days prior to the Revolving
Loan Termination Date one or more Standby Letters of Credit up to a maximum
aggregate Stated Amount at any one time outstanding not to exceed the L/C
Commitment Amount with respect thereto.
(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 Issuing Lender and
the Borrower. Notwithstanding the foregoing, in no event may (i) the amount of
any Standby Letter of Credit be less than $300,000, or (ii) the expiration date
of any Standby Letter of Credit extend beyond the later of (A) one (1) year from
the issuance date of such Letter of Credit and (B) the date that is five (5)
days prior to the Revolving Loan Termination Date; provided, however, that a
Standby Letter of Credit may provide for the renewal thereof upon terms
satisfactory to the Issuing Lender for an additional period of up to one (1)
year, which extension term shall in no event extend beyond the date referred to
in Section 2.4(b)(ii) unless not later than twenty (20) Business Days prior to
the initial expiration date of such Standby Letter of Credit Borrower deposits
in the Collateral Account cash in an amount equal to the maximum liability under
such Standby Letter of Credit.
(c) Requests for Issuance of Standby Letters of Credit. The Borrower
shall give the Issuing Lender and the Agent written notice (or telephonic notice
promptly confirmed in writing) at least five (5) Business Days prior to the
requested date of issuance of a Standby Letter of Credit, such notice to
describe in reasonable detail the proposed terms of such Standby Letter of
Credit and the nature of the transactions or obligations proposed to be
supported by such Standby Letter of Credit, and in any event shall set forth
with respect to such Standby Letter of Credit (i) the proposed initial Stated
Amount, (ii) the beneficiary or beneficiaries, and (iii) the proposed expiration
date. The Borrower shall also execute and deliver such customary letter of
credit application forms as requested from time to time by the Issuing Lender.
Provided the Borrower has given the notice prescribed by the first sentence of
this subsection and subject to Section 2.15 and the other terms and conditions
of this Agreement, including, without limitation, the satisfaction of any
applicable conditions precedent set forth in Article V, and Issuing Lender has
not received written notice from any Lender, the Agent or the Borrower, at least
one Business Day prior to the requested date of issuance or amendment of the
applicable Letter of Credit, that one or more applicable conditions contained in
Article V shall not be satisfied, the Issuing Lender shall issue the requested
Standby Letter of Credit on the requested date of issuance for the benefit of
the stipulated beneficiary. The Issuing Lender shall deliver to the Borrower a
copy of each issued Standby Letter of Credit within a reasonable time after 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.
(d) Reimbursement Obligations. Upon receipt by the Issuing Lender from
the beneficiary of a Letter of Credit of any demand for payment under such
Letter of Credit, the Issuing Lender shall
36
promptly notify the Borrower and the Agent of the amount to be paid by the
Issuing Lender as a result of such demand and the date on which payment is to be
made by the Issuing Lender to such beneficiary in respect of such demand;
provided, however, the Issuing Lender'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 account of the Issuing Lender 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 Issuing Lender to the beneficiary
thereunder, without presentment, demand, protest or other formalities of any
kind. Upon receipt by the Issuing Lender of any payment in respect of any
Reimbursement Obligation, the Issuing Lender shall promptly pay to each
Revolving Loan Lender that has acquired and funded a participation therein under
the second sentence of Section 2.4(i) such Revolving Loan Lender's Revolving
Loan Commitment Percentage of such payment; provided, however, that in the event
that such payment received by the Issuing Lender is required to be returned,
such Revolving Loan Lender will return to the Issuing Lender any portion thereof
previously distributed by the Issuing Lender to it.
(e) Manner of Reimbursement. Upon its receipt of a notice referred to in
Section 2.4(d), the Borrower shall advise the Agent and the Issuing Lender
whether or not the Borrower intends to borrow hereunder to finance its
obligation to reimburse the Issuing Lender for the amount of the related demand
for payment. If the Borrower fails to so advise the Agent and the Issuing
Lender, or if the Borrower fails to reimburse the Issuing Lender 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 Revolving Loan
Lender prompt notice (which shall be no later than 12:00 p.m.) of the amount of
the Revolving Loan to be made available to the Agent for the account of the
Issuing Lender not later than 2:00 p.m. and (ii) if such conditions would not
permit the making of Revolving Loans, the provisions of Section 2.4(j) shall
apply. The limitations of Section 3.5(a) shall not apply to any borrowing of
Base Rate Loans under this subsection.
(f) Effect of Letters of Credit on Commitments. Upon the issuance by the
Issuing Lender of any Letter of Credit and until such Letter of Credit shall
have expired or been terminated, the Revolving Loan Commitment of each Revolving
Loan Lender shall be deemed to be utilized for all purposes of this Agreement in
an amount equal to the product of (i) such Revolving Loan Lender's Revolving
Loan Commitment Percentage and (ii) the sum of (A) the Stated Amount of such
Letter of Credit plus (B) any related Reimbursement Obligations then
outstanding.
(g) Issuing Lender's Duties Regarding Letters of Credit; Unconditional
Nature of Reimbursement Obligation. In examining documents presented in
connection with drawings under Letters of Credit and making payments under such
Letters of Credit against such documents, the Issuing Lender 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. 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, the Issuing Lender 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
37
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, the Issuing Lender or the Lenders. None of the above shall
affect, impair or prevent the vesting of any of the Agent's, the Issuing
Lender's or any Lender's rights or powers hereunder. Any action taken or omitted
to be taken by the Issuing Lender 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, the Issuing Lender or any Lender
any liability to the Borrower or any Lender. In this connection, the obligation
of the Borrower to reimburse the Issuing Lender 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 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, the Issuing
Lender, any beneficiary or transferee 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, any beneficiary or
transferee of a Letter of Credit, the Agent, the Issuing Lender, any Lender or
any other Person; (E) any draft, certificate, 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 or transferee of a
Letter of Credit or any other Person of the proceeds of any drawing under such
Letter of Credit; (G) payment by the Issuing Lender under any Letter of Credit
against presentation of a draft, certificate, demand, statement or other
document which does not comply with the terms of such Letter of Credit; (H) any
improper use which may be made of any Letter of Credit or any improper acts or
omissions of any beneficiary or transferee of any Letter of Credit in connection
therewith; (I) any irregularity in the transaction with respect to which any
Letter of Credit is issued, including any fraud by the beneficiary or any
transferee of such Letter of Credit; (J) the legality, validity, form,
regularity or enforceability of the Letter of Credit; (K) the failure of any
payment by Issuing Lender to conform to the terms of a Letter of Credit (if, in
Issuing Lender's good faith judgment, such payment is determined to be
appropriate); (L) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan Documents; (M)
the occurrence of any Default or Event of Default; and (N) 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 Issuing Lender for
any drawing made under a Letter of Credit as provided in this Section, the
Borrower shall have no obligation to indemnify the Agent, the Issuing Lender or
any Lender in respect of any liability incurred by the Issuing Lender arising
solely out of the gross negligence or willful misconduct of the Issuing Lender
in respect of a Letter of Credit (including, without limitation, a failure of
Issuing Lender to comply with the terms 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 Issuing Lender's gross negligence or
willful misconduct with respect to any Letter of Credit.
(h) Amendments, Etc. The issuance by the Issuing Lender of any
extension, 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 Issuing Lender), and no such extension,
amendment, supplement or
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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 extended, amended, supplemented or
modified form or (ii) the Requisite Revolving Loan Lenders shall have consented
thereto. In connection with any such extension, amendment, supplement or other
modification, the Borrower shall pay the Fees, if any, payable under Section
3.6(b).
(i) Revolving Loan Lenders' Participation in Letters of Credit.
Immediately upon the issuance by the Issuing Lender of any Letter of Credit each
Revolving Loan Lender shall be deemed to have irrevocably and unconditionally
purchased and received from the Issuing Lender, without recourse or warranty, an
undivided interest and participation to the extent of such Revolving Loan
Lender's Revolving Loan Commitment Percentage of the liability of the Issuing
Lender with respect to such Letter of Credit and each Revolving Loan Lender
thereby shall absolutely, unconditionally and irrevocably assume, as primary
obligor and not as surety, and shall be unconditionally obligated to the Issuing
Lender to pay and discharge when due, such Revolving Loan Lender's Revolving
Loan Commitment Percentage of the Issuing Lender's liability under such Letter
of Credit. In addition, upon the making of each payment by a Revolving Loan
Lender to the Agent for the account of the Issuing Lender in respect of any
Letter of Credit pursuant to Section 2.4(j), such Revolving Loan Lender shall,
automatically and without any further action on the part of the Agent, the
Issuing Lender or such Revolving Loan Lender, acquire (i) a participation in an
amount equal to such payment in the Reimbursement Obligation owing to the
Issuing Lender by the Borrower in respect of such Letter of Credit and (ii) a
participation in a percentage equal to such Revolving Loan Lender's Revolving
Loan 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 Issuing Lender pursuant to Section 3.6(b)(ii)).
(j) Payment Obligation of Revolving Loan Lenders. Each Revolving Loan
Lender severally agrees to pay to the Agent for the account of the Issuing
Lender on demand in immediately available funds in Dollars the amount of such
Revolving Loan Lender's Revolving Loan Commitment Percentage of each drawing
paid by the Issuing Lender under each Letter of Credit to the extent such amount
is not reimbursed by the Borrower pursuant to Section 2.4(d). Each such
Revolving Loan Lender's obligation to make such payments to the Agent for the
account of the Issuing Lender under this subsection, and the Issuing Lender'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 Revolving Loan Lender to make
its payment under this subsection, (ii) the financial condition of the Borrower
or any other Obligor, (iii) the existence of any Default or Event of Default,
including any Event of Default described in Section 10.1(f) or 10.1(g), or (iv)
the termination of the Revolving Loan Commitments. Each such payment to the
Agent for the account of the Issuing Lender shall be made without any offset,
abatement, withholding or deduction whatsoever.
(k) Information to Revolving Loan Lenders. Within thirty (30) days after
the end of each calendar quarter, the Issuing Lender shall deliver to the
Revolving Loan Lenders an accounting of each Letter of Credit then outstanding.
Upon the request of any Revolving Loan Lender from time to time, the Issuing
Lender shall deliver to such Revolving Loan Lender information reasonably
requested by such Revolving Loan Lender with respect to each Letter of Credit
then outstanding. Other than as set forth in this subsection, the Issuing Lender
shall have no duty to notify the Lenders regarding the issuance or other matters
regarding Letters of Credit issued hereunder. The failure of the Issuing Lender
to perform its requirements under this subsection shall not relieve any
Revolving Loan Lender from its obligations under Section 2.4(j).
SECTION 2.5 TERM LOAN.
(a) Generally. Subject to the terms and conditions hereof, on the
Effective Date each Term Loan Lender severally and not jointly agrees to make
the Term Loan to the Borrower in the aggregate
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principal amount of such Term Loan Lender's Term Loan Commitment. There shall
only be a single advance of proceeds of the Term Loan. Any amount of the Term
Loan that is repaid may not be reborrowed.
(b) Requesting the Term Loan. The Borrower shall give the Agent notice
pursuant to a Notice of Borrowing or telephonic notice of the borrowing of the
Term Loan. Such Notice of Borrowing shall be delivered to the Agent (i) before
11:00 a.m. in the case of LIBOR Loans, on the date three (3) Business Days prior
to the Effective Date and (ii) in the case of Base Rate Loans, on the date one
(1) Business Day prior to the Effective Date. 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) or the information
contained in a telephonic notice of borrowing (if such telephonic notice is
received prior to a Notice of Borrowing) to each Term Loan 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 Term Loan Proceeds. On the Effective Date, each
Term Loan 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 Term Loan to be made by such Term Loan 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 in Dollars, in immediately available funds, on the Effective Date.
SECTION 2.6 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) with respect to Revolving Loans:
(A) during such periods as such Revolving Loan is a Base
Rate Loan, at the Base Rate (as in effect from time to time) plus the Applicable
Margin (utilizing the applicable "Base Rate Margin" as identified in the
definition of Applicable Margin); and
(B) during such periods as such Revolving Loan (other than a
Competitive Advance) is a LIBOR Loan, at the Adjusted Eurodollar Rate for such
Loan for the Interest Period therefor plus the Applicable Margin (using the
applicable "LIBOR Margin/Revolving Loan" as identified in the definition of
Applicable Margin); and
(ii) with respect to Term Loans:
(A) during such periods as such Term Loan is a Base Rate
Loan, at the Base Rate (as in effect from time to time) plus the Applicable
Margin (utilizing the applicable "Base Rate Margin" as identified in the
definition of Applicable Margin); and
(B) during such periods as such Term Loan is a LIBOR Loan,
at the Adjusted Eurodollar Rate for such Loan for the Interest Period therefor
plus the Applicable Margin (utilizing the applicable "LIBOR Margin/Term Loan" as
identified in the definition of Applicable Margin); and
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(iii) with respect to each Competitive Advance, at the margin over
the Adjusted Eurodollar Rate determined pursuant to Section 2.3.
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).
(b) Payment of Interest. Accrued interest on each Loan shall be payable
in arrears (i) in the case of a Base Rate Loan on the first day of each calendar
month, (ii) in the case of a LIBOR Loan, on the last day of each Interest Period
therefor (provided, however, if any Interest Period for a LIBOR Loan exceeds
ninety (90) days, interest shall also be payable with respect to such Loans on
the ninetieth (90th) day following the commencement of such Interest Period),
and (iii) in the case of any Loan, 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 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 (that is an obvious
mathematical error).
SECTION 2.7 NUMBER OF INTEREST PERIODS.
There may be no more than twelve (12) different Interest Periods for LIBOR
Loans that are Revolving Loans (including Competitive Advances) outstanding at
the same time. There may be no more than two (2) different Interest Periods for
LIBOR Loans that are Term Loans outstanding at the same time.
SECTION 2.8 REPAYMENT OF LOANS.
(a) The Borrower shall repay the entire outstanding principal amount of,
and all accrued but unpaid interest on, the Loans (other than the Term Loans),
together with all other amounts then outstanding under this Agreement (other
than the Term Loans and accrued interest thereon), on the Revolving Loan
Termination Date.
(b) The Borrower shall repay the entire outstanding principal amount of,
and all accrued but unpaid interest on, the Term Loans on the Term Loan
Termination Date.
SECTION 2.9 PREPAYMENTS.
(a) Optional. Subject to Section 3.5 and Section 4.4, the Borrower may
prepay any Loan at any time without premium or penalty. The Borrower shall give
the Agent at least one (1) Business Day's prior written notice of the prepayment
of any Revolving Loan or Term Loan. Upon each repayment or prepayment of the
Term Loan, the aggregate Term Loan Commitments of the Term Loan Lenders shall be
automatically and permanently reduced, on a pro rata basis, by an amount equal
to the amount by which the aggregate Term Loan Commitments immediately prior to
such reduction exceed the aggregate unpaid principal amount of the Term Loans
then outstanding (after giving effect to any such repayment or prepayment
thereof).
(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 and the aggregate principal amount of all outstanding
Swingline Loans and Competitive Advances, exceeds the amount of the total
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Revolving Loan Commitment in effect at such time, the Borrower shall immediately
pay to the Agent for the accounts of the Revolving Loan Lenders the amount of
such excess. Such payment shall be applied by the Agent to pay all amounts of
principal outstanding on the Revolving 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 by the Agent
into the Collateral Account for application to any Reimbursement Obligations. If
the Borrower is required to pay any outstanding LIBOR 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.
SECTION 2.10 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 Revolving
Loan or Term Loan that is a LIBOR Loan, elect to maintain such LIBOR Loan or any
portion thereof as a LIBOR Loan by selecting a new Interest Period for such
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's giving to the Agent a
Notice of Continuation not later than 11:00 a.m. on the third (3rd) 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 applicable
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 such LIBOR Loan in accordance with this Section, or
shall fail to give a timely Notice of Continuation with respect to a Base Rate
Loan, 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 (or, with respect to a Base Rate Loan, continue as) a
Base Rate Loan notwithstanding the first sentence of Section 2.11 or the
Borrower's failure to comply with any of the terms of such Section.
SECTION 2.11 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 Revolving
Loan or Term Loan of one Type into a Revolving Loan or Term Loan, respectively,
of another Type. Any Conversion of a Revolving Loan or Term Loan that is 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 11:00 a.m. on the Business Day prior to the date
of any proposed Conversion into Base Rate Loans and on the third (3rd) 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 applicable
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 Revolving Loan or Term Loan to be Converted, (c) the
portion of such Type of Revolving Loan or Term Loan to be Converted, (d) the
Type of Revolving Loan such Revolving Loan, or Type of Term Loan such Term 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.
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SECTION 2.12 NOTES.
(a) Revolving Note. The Revolving Loans made by each Revolving Loan
Lender shall, in addition to this Agreement, also be evidenced by a promissory
note of the Borrower substantially in the form of Exhibit M (each a "Revolving
Note"), payable to the order of such Revolving Loan Lender in a principal amount
equal to the amount of its Revolving Loan Commitment as originally in effect and
otherwise duly completed.
(b) Term Loan Note. The Term Loans made by each Term Loan Lender shall,
in addition to this Agreement, also be evidenced by a promissory note of the
Borrower substantially in the form of Exhibit O (each a "Term Loan Note"),
payable to the order of such Term Loan Lender in a principal amount equal to the
amount of its Term Loan Commitment as originally in effect 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 (that is an obvious mathematical 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 its own expense
execute and deliver to such Lender a new Note dated the date of such lost,
stolen, destroyed or mutilated Note.
SECTION 2.13 VOLUNTARY REDUCTIONS OF THE REVOLVING LOAN COMMITMENT.
The Borrower shall have the right to terminate or reduce the aggregate unused
amount of the Revolving Loan Commitments (for which purpose use of the Revolving
Loan 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 Competitive Advances) at any time and from time to time
without penalty or premium upon not less than fifteen (15) 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. The Agent will promptly transmit such notice to each Revolving Loan
Lender. The Revolving Loan Commitments may not be reduced below $100,000,000 in
the aggregate unless the Borrower terminates the Revolving Loan Commitments in
their entirety, and, once terminated or reduced, the Revolving Loan Commitments
may not be increased or reinstated. Any reduction in the aggregate amount of the
Revolving Loan Commitments shall result in a proportionate reduction (rounded to
the next lowest integral multiple of multiple of $100,000) in the maximum amount
of Competitive Advances.
SECTION 2.14 EXPIRATION OR MATURITY DATE OF LETTERS OF CREDIT PAST REVOLVING
LOAN TERMINATION DATE.
If on the date (the "Facility Termination Date") the Revolving Loan
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, without limiting the terms of Section 2.4(b), 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 (including for the
purposes hereof any Standby Letter of Credit whose term is extended beyond the
Revolving Loan Termination Date pursuant to Section 2.4(b)) occurs on or prior
to the expiration date of such Letter of Credit, the Borrower authorizes the
Issuing Lender to notify the Agent, and authorize the
43
Agent to pay to the Issuing Lender monies deposited in the Collateral Account
for Issuing Lender 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 or before the date twenty (20) 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
10.3. No amount drawn under a Letter of Credit shall be subject to
reinstatement.
SECTION 2.15 AMOUNT LIMITATIONS.
Notwithstanding any other term of this Agreement or any other Loan Document,
at no time may the aggregate principal amount of all outstanding Revolving
Loans, together with the aggregate principal amount of all outstanding Swingline
Loans and Competitive Advances and the aggregate amount of all Letter of Credit
Liabilities, exceed the total Revolving Loan Commitments at such time.
SECTION 2.16 INCREASE OF REVOLVING LOAN COMMITMENTS.
Subject to the approval of the Agent (which shall not be unreasonably
withheld, delayed or, except with respect to the fees to be paid to Agent for
arranging the increase, conditioned), the Borrower shall have the right to
request an increase in the aggregate amount of the Revolving Loan Commitments by
providing written notice to the Agent, which notice shall be irrevocable once
given; provided that (a) the aggregate amount of such increases in the Revolving
Loan Commitments pursuant to this Section shall not exceed $150,000,000; (b)
Borrower may not exercise its rights pursuant to this Section 2.16 more than two
(2) times; and (c) Borrower may not exercise its rights under this Section 2.16
if there are less than six (6) full months to the Revolving Loan Termination
Date. Each such increase in the Revolving Loan Commitments must be an aggregate
minimum amount of $25,000,000 and integral multiples of $1,000,000 in excess
thereof. The Agent shall promptly notify each Revolving Loan Lender of such
request. Each existing Revolving Loan Lender shall have the right to increase
its Revolving Loan Commitment by an amount so that such Revolving Loan Lender's
Revolving Loan Commitment Percentage shall not be decreased as a result of such
requested increase in the Revolving Loan Commitments. All other allocations of
such requested increase shall be subject to the approval of the Agent. Each
Revolving Loan Lender shall notify the Agent within ten (10) Business Days after
receipt of the Agent's notice whether such Revolving Loan Lender wishes to
increase the amount of its Revolving Loan Commitment. If a Revolving Loan Lender
fails to deliver any such notice to the Agent within such time period, then such
Revolving Loan Lender shall be deemed to have declined to increase its Revolving
Loan Commitment. No Revolving Loan Lender shall be required to increase its
Revolving Loan Commitment and any new Revolving Loan Lender(s) becoming a party
to this Agreement in connection with any such requested increase must be an
Eligible Assignee. As a condition to any increase in the Revolving Loan
Commitment, the Borrower shall pay to the Agent such fees as it may require in
connection with the arrangement of such increase, and to the Revolving Loan
Lenders acquiring such increase such fees as they may require in connection
therewith, which fees shall, when paid, be fully earned and non-refundable under
any circumstances. In the event a new Revolving Loan Lender or Revolving Loan
Lenders become a party to this Agreement, or if any existing Revolving Loan
Lender agrees to increase its Revolving Loan Commitment, such Revolving Loan
Lender shall on the date it becomes a Revolving Loan Lender hereunder (or
increases its Revolving Loan Commitment, in the case of an existing Revolving
Loan Lender) (and as a condition thereto) purchase from the other Revolving Loan
Lenders its Revolving Loan Commitment Percentage (as determined after giving
effect to the increase of Revolving Loan Commitments) of any outstanding
Revolving Loans, by making available to the Agent for the account of such other
Revolving Loan Lenders at the Principal Office, 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 Revolving Loan Lender plus (b) the
aggregate amount of payments previously made by the other Revolving Loan Lenders
under Sections 2.2(e) or 2.4(j) which have not been repaid, and the Borrower
shall pay to such other Revolving Loan Lenders interest accrued
44
and unpaid to and as of such date on such portion of the outstanding principal
amount of such Revolving Loans. The Borrower shall also pay to the Revolving
Loan Lenders amounts payable, if any, to such Revolving Loan Lenders under
Section 4.4 as a result of the prepayment of any such Revolving Loans. No
increase of the Revolving Loan Commitments may be effected under this Section if
either (x) a Default or Event of Default shall be in existence on the effective
date of such increase or (y) any representation or warranty made or deemed made
by or on behalf of the Borrower or any other Obligor in any Loan Document is not
(or would not be) true or correct in all material respects 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 Revolving Loan Commitments pursuant to this subsection,
(A) any Revolving Loan Lender becoming a party hereto shall execute such
documents and agreements as the Agent may reasonably request and (B) the
Borrower shall make appropriate arrangements so that each new Revolving Loan
Lender, and any existing Revolving Loan Lender increasing its Revolving Loan
Commitment, receives a new or replacement Revolving Note, as appropriate, in the
amount of such Lender's Commitment and a Competitive Advance Note
contemporaneously with of the effectiveness of the applicable increase in the
aggregate amount of Revolving Loan Commitments. The Borrower shall also execute
and deliver to the other Revolving Loan Lenders replacement Competitive Advance
Notes increasing the principal face amount thereof to 70% of the new total
Revolving Loan Commitment.
SECTION 2.17 ADVANCES BY AGENT.
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 Loan to be made by such Lender on such date, the Agent may
assume that such Lender will make the proceeds of such Loan available to the
Agent on the date of the requested 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 Loan to be provided by such Lender and such Lender shall be
liable to Agent for the amount of such advance. If such Lender does not pay such
corresponding amount upon the Agent's demand therefor, the Agent will promptly
notify the Borrower, and the Borrower shall promptly pay such corresponding
amount to the Agent. The Agent shall also be entitled to recover from the Lender
or the Borrower, as the case may be, interest on such corresponding amount in
respect of each day from the date such corresponding amount was made available
by the Agent to the Borrower to the date such corresponding amount is recovered
by the Agent at a per annum rate equal to (i) from the Borrower at the
applicable rate for such Loan or (ii) from a Lender at the Federal Funds Rate.
Subject to the terms of this Agreement (including, without limitation, Section
12.15), Borrower does not waive any claim that it may have against a Defaulting
Lender.
SECTION 2.18 EXTENSION OF REVOLVING LOAN TERMINATION DATE AND TERM LOAN
TERMINATION DATE.
Provided that no Default or Event of Default shall have occurred and be
continuing, the Borrower shall have the one-time right to extend the Revolving
Loan Termination Date and the Term Loan Termination Date to March 22, 2009 upon
satisfaction of the following conditions precedent which must be satisfied prior
to the effectiveness of such extension of the Revolving Loan Termination Date
and the Term Loan Termination Date:
(a) Extension Request. The Borrower shall deliver written notice of such
request (the "Extension Request") to Agent not earlier than the date which is
one hundred eighty (180) days prior to the Revolving Loan Termination Date and
the Term Loan Termination Date and not later than the date which is ninety (90)
days prior to the Revolving Loan Termination Date and the Term Loan Termination
Date.
(b) Payment of the Extension Fee. Borrower shall pay to Agent the
extension fee pursuant to Section 3.6(d).
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(c) No Default. On the date the Extension Request is submitted and on
the Revolving Loan Termination Date and the Term Loan Termination Date (as
determined without regard to such extension), there shall exist no Default or
Event of Default; and
(d) Representations and Warranties. The representations and warranties
made by or on behalf of the Borrower, the other Obligors and the Subsidiaries of
the Borrower and the other Obligors in the Loan Documents or otherwise made by
or on behalf of the Borrower, the other Obligors and the Subsidiaries of the
Borrower and the other Obligors in connection therewith or after the date
thereof (except to the extent that such representations and warranties 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)) shall have
been true and correct in all material respects (and without regard to any
qualifications limiting such representations to knowledge or belief) on the date
the Extension Request is made and on the Revolving Loan Termination Date and the
Term Loan Termination Date (as determined without regard to such Extension
Request).
Each Extension Request shall constitute a representation and warranty by the
Borrower that all of the foregoing conditions have been satisfied on the date of
such Extension Request. The Borrower shall not have the right to make an
Extension Request at any time after the Revolving Loan Termination Date.
Notwithstanding anything in this Section 2.18 to the contrary, any election by
Borrower pursuant to this Section 2.18 shall either be an election to extend
only the Revolving Loan Termination Date or both the Revolving Loan Termination
Date and the Term Loan Termination Date. Borrower shall not have the right to
only extend the Term Loan Termination Date.
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 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 Borrower with 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 one (1) Business Day after 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. If
a court of competent jurisdiction shall adjudge that any amount received and
distributed by the Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the Agent its
proportionate share of the amount so adjudged to be repaid or shall pay over the
same in such manner and to such Persons as shall be determined by such court.
SECTION 3.2 PRO RATA TREATMENT.
(a) Except to the extent otherwise provided herein: (i) each borrowing
from the Revolving Loan Lenders under Section 2.1(a) shall be made from the
Revolving Loan Lenders, each payment of the
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Fees under Section 3.6(a), Section 3.6(b)(ii) and Section 3.6(d) shall be made
for the account of the Revolving Loan Lenders, and each termination or reduction
of the amount of the Revolving Loan Commitments under Section 2.13 shall be
applied to the respective Revolving Loan Commitments of the Revolving Loan
Lenders, pro rata according to the amounts of their respective Revolving Loan
Commitments; (ii) each payment or prepayment of principal of Revolving Loans by
the Borrower shall be made for the account of the Revolving Loan 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 Revolving Loan Lenders pro rata
in accordance with their respective Revolving Loan Commitments in effect at the
time such Revolving 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
Revolving Loan Lenders pro rata in accordance with their respective Revolving
Loan Commitments; (iii) each payment of interest on Revolving Loans by the
Borrower shall be made for the account of the Revolving Loan Lenders pro rata in
accordance with the amount of interest on such Revolving Loans then due and
payable to the respective Revolving Loan Lenders; (iv) 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 Revolving Loan
Lenders according to the amounts of their respective Revolving Loan Commitments
(in the case of making of Revolving Loans) or their respective Revolving Loans
(in the case of Conversions and Continuations of Revolving Loans) and the then
current Interest Period for each Revolving Loan Lender's portion of each
Revolving Loan of such Type shall be coterminous; (v) the Revolving Loan
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
Revolving Loan Commitments; and (vi) the Revolving Loan Lenders' participation
in, and payment obligations in respect of, Swingline Loans under Section 2.2,
shall be in accordance with their respective Revolving Loan Commitments. 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 Revolving Loan Lender shall have acquired a participating
interest in any such Swingline Loan pursuant to Section 2.2(e)). All payments of
principal and interest in respect of Competitive Advances shall be for the
account of the Revolving Loan Lender making such Competitive Advance only.
(b) Except to the extent otherwise provided herein: (i) each borrowing
from the Term Loan Lenders under Section 2.5 shall be made from the Term Loan
Lenders pro rata according to the amounts of their respective Term Loan
Commitments; (ii) each payment or prepayment of principal of Term Loans by the
Borrower shall be made for the account of the Term Loan Lenders pro rata in
accordance with the respective unpaid principal amounts of the Term Loans held
by them, provided that if immediately prior to giving effect to any such payment
in respect of any Term Loans the outstanding principal amount of the Term Loans
shall not be held by the Term Loan Lenders pro rata in accordance with their
respective Term Loan Commitments in effect at the time such Term Loans were
made, then such payment shall be applied to the Term Loans in such manner as
shall result, as nearly as is practicable, in the outstanding principal amount
of the Term Loans being held by the Term Loan Lenders pro rata in accordance
with their respective Term Loan Commitments; (iii) each payment of interest on
Term Loans by the Borrower shall be made for the account of the Term Loan
Lenders pro rata in accordance with the amount of interest on such Term Loans
then due and payable to the respective Term Loan Lenders; (iv) each payment of
the Fees under Section 3.6(d) shall be made for the account of the Term Loan
Lenders pro rata in accordance with their respective Term Loan Commitments; and
(v) the making, Conversion and Continuation of Term Loans of a particular Type
(other than Conversions provided for by Section 4.6) shall be made pro rata
among the Term Loan Lenders according to the amounts of their respective Term
Loan Commitments (in the case of making of Term Loans) or their respective Term
Loans (in the case of Conversions and Continuations of Term Loans) and the then
current Interest Period for each Term Loan Lender's portion of each Term Loan of
such Type shall be coterminous.
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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 an Obligor 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 some or all of the
Lenders pro rata in accordance with Section 3.2 or Section 10.3, as applicable,
such Lender shall promptly purchase from the other applicable Lenders
participations in (or, if and to the extent specified by such Lender, direct
interests in) the Loans made by such other Lenders or other Obligations owed to
such other Lenders in such amounts, and make such other adjustments from time to
time as shall be equitable, to the end that all the applicable 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 10.3. To such end, all the applicable
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 $1,000,000 and integral multiples of
$250,000 in excess thereof. Each borrowing and each Conversion of LIBOR Loans
shall be in an aggregate minimum amount of $5,000,000 and integral multiples of
$500,000 in excess of that amount.
(b) Prepayments. Each voluntary prepayment of Revolving Loans or Term
Loans shall be in an aggregate minimum amount of $1,000,000 and integral
multiples of $500,000 in excess thereof (or, if less, the aggregate principal
amount of Revolving Loans or Term Loans, as applicable, then outstanding).
(c) Reductions of Revolving Loan Commitments. Each reduction of the
Revolving Loan Commitments under Section 2.13 shall be in an aggregate minimum
amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof.
SECTION 3.6 FEES.
(a) Facility Fees. Borrower agrees to pay to the Agent for the account
of each Revolving Loan Lender an annual facility fee equal to the average daily
amount of the Revolving Loan Commitment of such Revolving Loan Lender (whether
or not utilized) times the Facility Fee (utilizing the "Applicable Facility Fee
Percentage" as identified in the definition of Facility Fee) for the period to
but excluding the date such Revolving Loan Commitment is terminated or reduced
to zero or the Revolving Loan
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Termination Date, such fee to be paid in arrears on (w) the last Business Day of
March, June, September and December in each year, (x) the date of each reduction
in the Revolving Loan Commitments (but only on the amount of the reduction), and
(y) on the Revolving Loan Termination Date.
(b) Letter of Credit Fees.
(i) The Borrower shall pay to the Agent for the account of the
Issuing Lender only, and not the account of any other Lender, a fee in respect
of each Letter of Credit at the rate equal to one-eighth of one percent (0.125%)
of the Stated Amount of each Letter of Credit. Such fee shall be non-refundable
and payable in arrears on the last Business Day of March, June, September and
December in each year, on the Revolving Loan Termination Date, and on the date
the Revolving Loan Commitments are terminated or reduced to zero.
(ii) The Borrower agrees to pay to the Agent for the account of
each Revolving Loan Lender a letter of credit fee at a rate per annum equal to
the Applicable Margin for Revolving Loans that are LIBOR Loans times the daily
average Stated Amount of each Letter of Credit for the period from and including
the date of issuance or extension of such Letter of Credit (A) to 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. Such fees shall be
nonrefundable and payable in arrears on the last Business Day of March, June,
September and December in each year, on the Revolving Loan Termination Date, and
on the date the Revolving Loan Commitments are terminated or reduced to zero.
During the continuance of an Event of Default, the Letter of Credit fee payable
pursuant to this Section 3.6(b)(ii) shall be payable at a rate per annum equal
to the sum of (x) the Applicable Margin for Revolving Loans that are LIBOR Loans
plus (y) two percent (2%), and such fees shall be due and payable upon demand.
(iii) The Borrower shall pay directly to the Issuing Lender from
time to time on demand all commissions, charges, costs and expenses in the
amounts customarily charged by the Issuing Lender 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) Administrative and Other Fees. The Borrower agrees to pay the
reasonable administrative and other fees of the Agent as may be agreed to in
writing from time to time.
(d) Extension Fee. Borrower agrees to pay Agent for the account of each
Revolving Loan Lender an extension fee concurrently with the extension of the
Revolving Loan Termination Date pursuant to Section 2.18 equal to 0.15% of the
total Revolving Loan Commitment. Borrower agrees to pay Agent for the account of
each Term Loan Lender an extension fee concurrently with the extension of the
Term Loan Termination Date pursuant to Section 2.18 equal to 0.15% of the total
Term Loan Commitment.
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 (or a year of 365 days in the case of Base Rate
Loans) 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
parties hereto that the Borrower not pay and the
49
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 2.2(c), Section 2.3 and
Section 2.6(a)(i), (ii) and (iii). Notwithstanding the foregoing, the parties
hereto further agree and stipulate that all agency fees, syndication fees,
arrangement fees, amendment fees, up-front fees, commitment fees, facility fees,
unused fee, 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,
or any other similar amounts 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. Borrower hereby acknowledges and
agrees that the Lenders have imposed no minimum borrowing requirements, reserve
or escrow balances or compensating balances related in any way to the
Obligations. Any use by Borrower of certificates of deposit issued by any Lender
or other accounts maintained with any Lender has been and shall be voluntary on
the part of Borrower. 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 (that is an
obvious mathematical 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 (2) 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 all of the Lenders or 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, (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 Section 3.11(b) or paid to such
Defaulting Lender upon the Defaulting Lender's curing of its default. Subject to
the terms of this Agreement
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(including, without limitation, Section 12.15), Borrower does not waive any
claim that it may have against a Defaulting Lender.
(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 two (2) Business Days and
not later than five (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 fifth (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 approved by Agent (such approval not to be
unreasonably withheld or delayed) 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 (except as expressly provided
in this Section 3.11(b)). 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 $3,500. 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 Section 3.11(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 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, and (ii) any taxes imposed on or measured by any Lender's
assets, net income, receipts or branch profits (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
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(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
(but only so long as such Lender or participant is or remains lawfully able to
do so) 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 indicating whether payments to it hereunder and under
the Notes are (i) not subject to United States Federal backup withholding tax or
(ii) not subject to United States Federal withholding tax under the Internal
Revenue Code because such payment is either effectively connected with the
conduct by such Lender or participant of a trade or business in the United
States or totally exempt from United States Federal withholding tax by reason of
the application of the provisions of a treaty to which the United States is a
party or such Lender is otherwise wholly exempt; provided that nothing herein
(including, without limitation, the failure or inability to provide any of such
certificates, documents or other evidence) shall relieve the Borrower of its
obligations under this Section 3.12. In addition, any such Lender or participant
shall deliver to the Borrower and the Agent (but only so long as such Lender or
participant is or remains lawfully able to do so) further copies of any such
certificate, document or other evidence on or before the date that any such
certificate, document or other evidence expires or becomes obsolete.
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 reasonably 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 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 Commitments of such Lender hereunder); or (iii) has or
would have the
52
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).
(b) Lender's Suspension of LIBOR Loans. Without limiting the effect of
the provisions of Section 4.1(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 Issuing Lender of
issuing (or any Revolving Loan 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 Issuing Lender or
any Revolving Loan Lender hereunder in respect of any Letter of Credit, then,
upon demand by the Issuing Lender or such Revolving Loan Lender, the Borrower
shall pay promptly, and in any event within thirty (30) days of demand, to the
Agent for its account or the account of the Issuing Lender or such Revolving
Loan Lender, as applicable, from time to time as specified by the Issuing Lender
or a Revolving Loan Lender, such additional amounts as shall be sufficient to
compensate the Issuing Lender or such Revolving Loan 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; provided,
however, that notwithstanding the foregoing provisions of this Section, the
Agent or a Lender, as the case may be, shall not be entitled to compensation for
any such amount relating to any period ending more than six months prior to the
date that the Agent or such Lender, as applicable, first notifies the Borrower
in writing thereof. The Agent and or such Lender agrees to furnish to the
Borrower 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
(that is an obvious mathematical 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 reasonable means do not exist for ascertaining the Adjusted
Eurodollar Rate for such Interest Period, or
53
(b) the Agent reasonably determines (which determination shall be
conclusive) that the Adjusted Eurodollar Rate as determined by the Agent 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 it becomes unlawful
for any 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 determines is attributable to:
(a) any payment or prepayment (whether mandatory or optional) of a LIBOR
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 from such Lender on the
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.
Each Lender may use any reasonable averaging and attribution methods generally
applied by such Lender and may include, without limitation, administrative costs
as a component of such loss, cost or expense. Absent manifest error (that is an
obvious mathematical 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.
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 also doing the same, 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, within thirty (30) days of such request for compensation
or suspension, as applicable, may either (i) demand that such Lender (the
"Affected Lender"), and upon such demand the Affected Lender shall promptly,
assign its Commitments 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
54
accrued but unpaid interest thereon and accrued but unpaid fees owing to the
Affected Lender, or (ii) pay to the Affected Lender 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,
whereupon the Affected Lender shall no longer be a party hereto or have any
rights or obligations hereunder or under any of the other Loan Documents. 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 expense 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, 4.1 or 4.4.
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
Revolving Credit Loans that are 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 necessary so that, after giving
effect thereto, all Revolving 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
55
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 Term Loan Notes executed by the Borrower
payable to each Revolving Loan Lender and Term Loan Lender, as applicable, and
complying with the applicable provisions of Section 2.12, Competitive Advance
Notes executed by the Borrower payable to each Lender, and the Swingline Note
executed by the Borrower payable to the Agent (which Notes shall be promptly
forwarded by the Agent to the applicable Lender);
(iii) The Guaranty executed by each Guarantor existing as of the
Effective Date;
(iv) A favorable opinion of counsel to the Obligors, addressed to
the Agent, the Lenders and the Swingline Lender, addressing such matters as
Agent may reasonably require;
(v) The Governing Documents of Borrower, each Guarantor and each
general partner, managing member (or Person performing similar functions) of
such Persons certified as of a recent date by the Secretary of State of the
State of formation of the applicable Person;
(vi) A good standing certificate with respect to Borrower, each
Guarantor and each general partner, managing member (or Person performing
similar functions) of such Persons issued as of a recent date by the appropriate
Secretary of State (and any state department of taxation, as applicable) 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 such Person is organized, in
which the Unencumbered Assets owned (or leased pursuant to an Eligible Ground
Lease) by such Person are located, and wherever such Person is required to be so
qualified and where the failure to be so qualified would have, in each instance,
a Material Adverse Effect;
(vii) A certificate of incumbency signed by the general partner,
secretary (or Person performing similar functions) of Borrower, each Guarantor
and their respective general partners, managing members (or Person performing
similar functions) as to each of the partners, officers or other Persons
authorized to execute and deliver the Loan Documents to which any of them is a
party and the officers or other representatives of the Borrower then authorized
to deliver Notices of Borrowing, Notices of Continuation, Notices of Conversion,
Notices of Swingline Borrowings and Competitive Bid Requests and to request the
issuance of Letters of Credit;
(viii) Copies, certified by the general partner, secretary or other
authorized Person of each of the Borrower, the Guarantors and their respective
general partners, managing members (or Persons performing similar functions) of
such Persons of all partnership, limited liability company,
56
corporate (or comparable) action taken by such Person to authorize the
execution, delivery and performance of the Loan Documents to which such Persons
are a party;
(ix) A copy of each document or agreement evidencing any of the
Indebtedness described in Schedule 6.1(g) as Agent may request, in each case
certified as true, correct and complete by the chief operating officer or chief
financial officer of the Borrower;
(x) The Fees then due and payable under Section 3.6, and any other
Fees payable to the Agent and the Lenders on or prior to the Effective Date;
(xi) A Compliance Certificate calculated as of December 31, 2004;
(xii) Evidence that the outstanding Indebtedness of the Borrower
under the Credit Agreement dated as of November 22, 2002 with SouthTrust Bank,
as managing agent, and the Bridge Credit Agreement dated as of October 29, 2004
with SouthTrust Bank, as managing agent, have been or will contemporaneously be
paid in full and the credit agreements relating thereto have been or will
contemporaneously be terminated; and
(xiii) 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, the other Obligors, and
their respective 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 Obligor
to fulfill the respective obligations under the Loan Documents to which it is a
party;
(iii) The Borrower, the other Obligors and their respective
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 Obligor 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 Obligor to fulfill their respective 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.
57
SECTION 5.2 CONDITIONS PRECEDENT TO ALL LOANS AND LETTERS OF CREDIT.
The obligations of the Lenders to make any Loans, of the Issuing Lender to
issue Letters of Credit, and of the Swingline Lender to make any Swingline Loan
are all subject to the further condition precedent that: (a) no Default or Event
of Default shall have occurred and be continuing 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; (b) the representations and warranties
made or deemed made by the Borrower and each other Obligor in the Loan Documents
to which any of them is a party, shall be true and correct in all material
respects (and without regard to any qualifications limiting such representations
to knowledge or belief) 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) and except for changes in factual circumstances specifically
and expressly permitted hereunder, and (c) in the case of the borrowing of
Revolving Loans or the Term Loan, the Agent shall have received a timely Notice
of Borrowing. 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 and the Issuing Lender, as applicable, 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, the Borrower
shall be deemed to have represented to the Agent and the Lenders at the time
such Loan is made that all applicable conditions to the making of such Loan
contained in Article V have been satisfied.
SECTION 5.3 CONDITIONS AS COVENANTS.
If the Lenders make any Loans, or the Issuing Lender issues a Letter of
Credit, prior to the satisfaction of all applicable conditions precedent set
forth in Sections 5.1 and 5.2, the Borrower shall nevertheless cause such
condition or conditions to be satisfied within five (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 or such Lender has waived such
conditions.
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:
(a) Organization; Power; Qualification. Each of the Borrower, the other
Obligors and their respective Subsidiaries 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 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.
(b) Ownership Structure. As of the Agreement Date Part I of Schedule
6.1(b) is a complete and correct list or diagram of all Subsidiaries of Borrower
and the other Obligors setting forth for each such Subsidiary (i) the
jurisdiction of organization of such Subsidiary, (ii) each Obligor which holds
any Equity Interests in such Subsidiary, (iii) the nature of the Equity
Interests held by each such Person, (iv)
58
the percentage of ownership of such Subsidiary represented by such Equity
Interests and (v) whether such Subsidiary is a Material Subsidiary and/or an
Excluded Subsidiary. Except as disclosed in such Schedule, as of the Agreement
Date (i) each Obligor and its Subsidiaries owns, free and clear of all Liens
(other than Permitted Liens) and Negative Pledges, 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 or diagrams all
Unconsolidated Affiliates of 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 Borrower.
(c) Authorization of Agreement, Etc. Borrower has the right and power,
and has taken all necessary action to authorize it, to borrow and obtain other
extensions of credit hereunder. Borrower and each other Obligor 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 Obligor is a party have been duly executed and delivered by the duly
authorized officers or other representatives 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.
(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 Obligor 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 Obligor; (ii) conflict
with, result in a breach of or constitute a default under the organizational
documents of the Borrower or any other Obligor, or any indenture, agreement or
other instrument to which the Borrower or any other Obligor is a party or by
which it or any of its respective properties may 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 Obligor.
(e) Compliance with Law; Governmental Approvals, Agreements. The
Borrower, each other Obligor, and each of their respective Subsidiaries is in
compliance with its Governing Documents, each agreement, judgment, decree or
order to which any of them is a party or by which any of them or their
properties may be bound, each Governmental Approval applicable to it and in
compliance with all other Applicable Law (including without limitation,
Environmental Laws) relating to such Person except for noncompliances which, and
Governmental Approvals the failure to possess which, would not, individually or
in the aggregate, cause a Default or an Event of Default or have a Material
Adverse Effect.
(f) Title to Properties; Liens; Title Insurance. As of the Agreement
Date, Part I of Schedule 6.1(f) sets forth all of the real property owned or
leased by the Borrower, each other Obligor and each of their respective
Subsidiaries. Each such Person has good, marketable and legal title to, or a
valid leasehold interest in, its respective assets. Each of the Borrower, the
other Obligors and their respective Subsidiaries have title to their properties
sufficient for the conduct of their business. As of the Agreement
59
Date, there are no Liens or Negative Pledges against any Unencumbered Assets
except for Permitted Liens. The Borrower or another Obligor is with respect to
all Unencumbered Assets and other real property reasonably necessary for the
operation of its business, the named insured under a policy of title insurance
issued by a title insurer operating in the jurisdiction where such real property
is located. As to each such policy of title insurance (i) the coverage amount
equals or exceeds the acquisition cost of the related real property and any
improvements added thereto by such Person (ii) no claims are pending that, if
adversely determined, have had or could reasonably be expected to have a
Material Adverse Effect; and (iii) no title insurer has given notice to the
insured Person that such policy of title insurance is no longer in effect.
Neither Borrower, any other Obligor nor any of their respective Subsidiaries has
knowledge of any defect in title of any Property that, individually or in the
aggregate, has had or could reasonably be expected to have a Material Adverse
Effect. Notwithstanding the foregoing in this Section 6.1(f), there may be a
limited number of Properties for which no title insurance policies exist or have
been found but the results of such failure to exist or to be able to locate such
policies, individually or in the aggregate, has not had and could not reasonably
be expected to have a Material Adverse Effect.
(g) Existing Indebtedness. Schedule 6.1(g) is, as of December 31, 2004,
a complete and correct listing of all Indebtedness of the Borrower, the other
Obligors and their respective Subsidiaries, including without limitation,
Contingent Liabilities of the Borrower and the other Obligors and their
respective Subsidiaries, and indicating whether such Indebtedness is Secured
Debt or Unsecured Debt. During the period from such date to the Agreement Date,
neither the Borrower, any other Obligor nor any of their respective Subsidiaries
incurred any material Indebtedness except as set forth in such Schedule. The
Borrower, the other Obligors, and their respective Subsidiaries have performed
and are in compliance with all of the material terms of all Indebtedness of such
Persons and all instruments and agreements relating thereto, and no default or
event of default, or event or condition which with the giving of notice, the
lapse of time, or both, would constitute such a default or event of default,
exists with respect to any such Indebtedness.
(h) Material Contracts. Each of the Borrower, the other Obligors and
their respective Subsidiaries that is a party to any Material Contract is in
compliance with all of the material terms of such Material Contract, and no
default or event of default, or event or condition which with the giving of
notice, the lapse of time, or both, would constitute such a default or event of
default, exists with respect to any such Material Contract.
(i) Litigation. Except as set forth on Schedule 6.1(i), there are no
actions, suits or proceedings pending (nor, to the knowledge of the Borrower,
are there any actions, suits or proceedings threatened, nor is there any basis
therefor) against or in any other way relating adversely to or affecting the
Borrower, any other Obligor, any of their respective Subsidiaries or any of
their respective property in any court, or before any tribunal, administrative
agency, board, arbitrator or mediator of any kind or before or by any other
Governmental Authority which has had or could reasonably be expected to have a
Material Adverse Effect or which question the validity or enforceability of any
of the Loan Documents. There are no strikes, slow downs, work stoppages or
walkouts or other labor disputes in progress or threatened relating to the
Borrower, any other Obligor, or any of their respective Subsidiaries which has
had or could be reasonably expected to have a Material Adverse Effect. There are
no judgments outstanding against or affecting the Borrower, any other Obligor,
any of their respective Subsidiaries or any of their respective properties
individually or in the aggregate involving amounts in excess of $10,000,000.
(j) Taxes. All federal, state and other tax returns of the Borrower, any
other Obligor or any of their respective Subsidiaries 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, each
other Obligor, any of their respective Subsidiaries and their respective
properties, income, profits and assets which are due and payable have been paid,
except any such nonpayment which is at the time
60
permitted under Section 7.6. As of the Agreement Date, none of the United States
income tax returns of the Borrower, any other Obligor or any of their respective
Subsidiaries is under audit. All charges, accruals and reserves on the books of
the Borrower, any other Obligor and each of their respective Subsidiaries in
respect of any taxes or other governmental charges are in accordance with GAAP.
(k) Financial Statements. Borrower has furnished to each Lender copies
of (i) the audited consolidated balance sheet of Borrower and its consolidated
Subsidiaries for the fiscal year ending December 31, 2003, and the related
audited consolidated statements of income, shareholders' equity and cash flow
for the fiscal year ending on such date, with the opinion thereon of
Pricewaterhouse Coopers, (ii) the audited consolidated balance sheet of CLP and
its consolidated Subsidiaries for the fiscal year ending December 31, 2003 and
the related audited consolidated statements of income, shareholders' equity and
cash flow for the fiscal year ending on such date with the opinion thereof of
Pricewaterhouse Coopers, (iii) the unaudited consolidated statements of income
and cash flow for Borrower and its consolidated Subsidiaries for the twelve (12)
months ending December 31, 2004 certified by a Responsible Officer of CLP, (iv)
the unaudited consolidated statements of income and cash flow for CLP and its
consolidated Subsidiaries for the twelve (12) months ending December 31, 2004
certified by a Responsible Officer of CLP, and (v) unaudited statements of Net
Operating Income for each of the Unencumbered Assets for the fiscal quarter
ended December 31, 2004 satisfactory in form to the Agent and certified by a
Responsible Officer of CLP. Such financial statements (including in each case
related schedules and notes) are complete and correct and present fairly, in
accordance with GAAP consistently applied throughout the periods involved, the
consolidated financial position of Borrower and its consolidated Subsidiaries or
CLP and its consolidated Subsidiaries, as applicable, as at their respective
dates and the results of operations and the cash flow for such periods. Such
statements included in the item (v) above are complete and correct and present
fairly, in accordance with GAAP consistently applied throughout the periods
involved the Net Operating Income for such periods. Neither Borrower, CLP, nor
any Subsidiary of Borrower or CLP has on the Agreement Date any material
contingent liabilities, liabilities, liabilities for taxes, or 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 or except as set forth on Schedule 6.1(k).
(l) No Material Adverse Change. Since December 31, 2004, there has been
no material adverse change in the consolidated financial condition, results of
operations, business or prospects of the Borrower, the Obligors or their
respective Subsidiaries. Each of the Borrower, the other Obligors and their
respective Subsidiaries are Solvent.
(m) 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.
(n) No Plan Assets; No Prohibited Transaction. None of the assets of the
Borrower, any other Obligor or their respective Subsidiaries 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
61
amounts hereunder, do not and will not constitute "prohibited transactions"
under ERISA or the Internal Revenue Code.
(o) Absence of Defaults. None of the Borrower, any other Obligor nor any
of their respective Subsidiaries is in default under its Governing Documents,
and no event has occurred, which has not been remedied, cured or irrevocably
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
Borrower, any other Obligor or any of their respective Subsidiaries under any
agreement (other than this Agreement) or judgment, decree or order to which
Borrower, any other Obligor or any of their respective Subsidiaries is a party
or by which any Borrower, any other Obligor, any of their respective
Subsidiaries or any of their respective properties may be bound where such
default or event of default could, individually or in the aggregate, involve
Indebtedness or other obligations or liabilities in excess of $20,000,000.
(p) Environmental Matters.
(i) The Borrower, each other Obligor and each of their respective
Subsidiaries is in compliance with the requirements of all applicable
Environmental Laws except for the matters set forth on Schedule 6.1(p) and such
other non-compliance which, in any event, either individually or in the
aggregate, has not had and could not reasonably be expected to have a Material
Adverse Effect.
(ii) No Hazardous Materials have been (i) generated or manufactured
on, transported to or from, treated at, stored at or discharged from any
Property in violation of any Environmental Laws; (ii) discharged into subsurface
waters under any Property in violation of any Environmental Laws; or (iii)
discharged from any Property on or into property or waters (including subsurface
waters) adjacent to any Property in violation of any Environmental Laws, except
for the matters set forth on Schedule 6.1(p) and other violations which
violations, in any event, in the case of any of (i), (ii) or (iii), either
individually or in the aggregate, has had or could reasonably be expected to
have a Material Adverse Effect.
(iii) Except for the matters set forth on Schedule 6.1(p) and any of
the following matters or liabilities that, in any event, either individually or
in the aggregate, have not had and could not reasonably be expected to have a
Material Adverse Effect, neither the Borrower, any other Obligor nor any of
their respective Subsidiaries (i) has received notice (written or oral) or
otherwise learned of any claim, demand, suit, action, proceeding, event,
condition, report, directive, lien, violation, non-compliance or investigation
indicating or concerning any potential or actual liability (including, without
limitation, potential liability for enforcement, investigatory costs, cleanup
costs, government response costs, removal costs, remedial costs, natural
resources damages, property damages, personal injuries or penalties) arising in
connection with (x) any non-compliance with or violation of the requirements of
any applicable Environmental Laws, or (y) the presence of any Hazardous
Materials on any Property (or any Property previously owned by any of such
Persons) or the release or threatened release of any Hazardous Materials into
the environment, (ii) has any threatened or actual liability in connection with
the presence of any Hazardous Materials on any Property (or any Property
previously owned by any of such Persons) or the release or threatened release of
any Hazardous Materials into the environment, (iii) has received notice of any
federal or state investigation evaluating whether any remedial action is needed
to respond to the presence of any Hazardous Materials on any Property (or any
Property previously owned by any of such Persons) or a release or threatened
release of any Hazardous Materials into the environment for which the Borrower,
any Obligor or any of their respective Subsidiaries is or may be liable, or (iv)
has received notice that a Borrower, any Obligor or any of their respective
Subsidiaries is or may be liable to any Person under any Environmental Law.
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(iv) To the best of Borrower's knowledge after due inquiry, no
Property is located in an area identified by the Secretary of Housing and Urban
Development as an area having special flood hazards, or if any such Property is
located in such a special flood hazard area, then the Borrower has obtained all
insurance that is required to be maintained by law or which is customarily
maintained by Persons engaged in similar businesses and owning similar
Properties in the same general areas in which the Borrower operates except where
such failure individually or in the aggregate has not had and could not
reasonably be expected to have a Material Adverse Effect.
(q) Investment Company; Public Utility Holding Company. None of the
Borrower, any other Obligor or any of their respective Subsidiaries, 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.
(r) Margin Stock. None of the Borrower, any other Obligor or any of
their respective Subsidiaries 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" or a
"margin security" within the meaning of Regulations T, U and X of the Board of
Governors of the Federal Reserve System.
(s) Affiliate Transactions. Except as permitted by Section 9.10, none of
the Borrower, any other Obligor or any of their respective Subsidiaries is a
party to or bound by any agreement or arrangement (whether oral or written) to
which any Affiliate (but not any Subsidiary of Borrower) of any Borrower, any
other Obligor or any of their respective Subsidiaries is a party.
(t) Intellectual Property. Except as has not had and could not be
reasonably expected to have a Material Adverse Effect, (i) The Borrower, each
other Obligor and each of their respective Subsidiaries 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")
used in the conduct of their respective 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; (ii) the Borrower, and each other Obligor
and each of their respective Subsidiaries have taken all such steps as they deem
reasonably necessary to protect their respective rights under and with respect
to such Intellectual Property; (iii) no claim has been asserted by any Person
with respect to the use of any Intellectual Property by the Borrower, any other
Obligor or any of their respective Subsidiaries, or challenging or questioning
the validity or effectiveness of any Intellectual Property; and (iv) the use of
such Intellectual Property by the Borrower, the other Obligors and each of their
respective Subsidiaries, 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, the other Obligors or any of their
respective Subsidiaries.
(u) Business. The Borrower, the other Obligors and each of their
respective Subsidiaries are engaged substantially in the business of the
acquisition, disposition, financing, ownership, development rehabilitation,
leasing, operation and management of office, multifamily and retail buildings
and other business activities similar, related or incidental thereto.
63
(v) Broker's Fees. No broker's or finder's fee, commission or similar
compensation will be payable with respect to the transactions contemplated
hereby except normal accounting, legal or other related or normal charges. No
other similar fees or commissions will be payable by any Obligor for any other
services rendered to the Borrower, any of the Subsidiaries of the Borrower or
any other Obligor or any other Obligor ancillary to the transactions
contemplated hereby.
(w) 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 other Obligor or any of their
respective Subsidiaries 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 other Obligor or any of their respective
Subsidiaries 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. The written information, reports and other papers and
data with respect to the Borrower, any other Obligor or any of their respective
Subsidiaries or the Unencumbered Assets (other than projections and other
forward-looking statements) furnished to the Agent or the Lenders in connection
with or relating in any way to this Agreement was, at the time so furnished,
complete and correct in all material respects, or has been subsequently
supplemented by other written information, reports or other papers or data, to
the extent necessary to give in all material respects a true and accurate
knowledge of the subject matter. All financial statements furnished to the Agent
or any Lender by, on behalf of, or at the direction of, the Borrower, any other
Obligor or any of their respective Subsidiaries 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 other Obligor or any of their
respective Subsidiaries 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. No fact or circumstance 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(k) or in such information, reports or other papers or
data or otherwise disclosed in writing to the Agent and the Lenders prior to the
Effective Date.
(x) REIT Status. CLP qualifies, and has since 1993 qualified, as a REIT,
has elected to be treated as a REIT, and is in compliance with all requirements
and conditions imposed under the Internal Revenue Code to allow CLP to maintain
its status as a REIT.
(y) Unencumbered Assets. As of the Agreement Date, Schedule 6.1(y) is a
correct and complete list of all Unencumbered Assets. Each of the Unencumbered
Assets included by the Borrower in calculations of the Unencumbered Asset Value
satisfies all of the requirements contained in this Agreement for the same to be
included therein.
(z) Insurance. The Borrower, the other Obligors and their respective
Subsidiaries have insurance covering the Borrower, the other Obligors and their
respective Subsidiaries and their respective Properties in such amounts and
against such risks and casualties as are customary for Persons or Properties of
similar character and location, due regard being given to the type of
improvements thereon, their construction, location, use and occupancy. As of the
Agreement Date, none of the Borrower, any other Obligor nor any of their
respective Subsidiaries has received notice that any such insurance has been
cancelled, not renewed, or impaired in any way.
(aa) Ownership of Borrower. CLP is the sole general partner of Borrower
and owns free of any Lien or other claim not less than a fifty-one percent (51%)
Equity Interest in Borrower as the general partner thereof.
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(bb) No Bankruptcy Filing. None of the Borrower, any Obligor or any of
their respective Subsidiaries is contemplating either the filing of a petition
by it under any state or federal bankruptcy or insolvency laws or the
liquidation of its assets or property, and the Borrower has no knowledge of any
Person threatening the filing of any such petition against any of the Borrower,
any Obligor or any of their respective Subsidiaries.
(cc) No Fraudulent Intent. Neither the execution and delivery of this
Agreement or any of the other Loan Documents nor the performance of any actions
required hereunder or thereunder is being undertaken by the Borrower or any
other Obligor with or as a result of any actual intent by any of such Persons to
hinder, delay or defraud any entity to which any of such Persons is now or will
hereafter become indebted.
(dd) Transaction in Best Interests of Borrower and Obligors;
Consideration. The transaction evidenced by this Agreement and the other Loan
Documents is in the best interests of the Borrower and the other Obligors and
the creditors of such Persons. The direct and indirect benefits to inure to the
Borrower and the other Obligors pursuant to this Agreement and the other Loan
Documents constitute substantially more than "reasonably equivalent value" (as
such term is used in Section 548 of the Bankruptcy Code) and "valuable
consideration," "fair value," and "fair consideration" (as such terms are used
in any applicable state fraudulent conveyance law), in exchange for the benefits
to be provided by the Borrower and the other Obligors pursuant to this Agreement
and the other Loan Documents, and but for the willingness of each Guarantor to
guaranty the Obligations, the Borrower would be unable to obtain the financing
contemplated hereunder which financing will enable the Borrower and the other
Obligors to have available financing to conduct and expand their business. The
Borrower and the other Obligors constitute a single integrated financial
enterprise and each receives a benefit from the availability of credit under
this Agreement to the Borrower.
(ee) Property. All of the Borrower's, the other Obligors' and their
respective Subsidiaries' properties are in good repair and condition, subject to
ordinary wear and tear, other than with respect to deferred maintenance existing
as of the date of acquisition of such property as permitted in this Section. The
Borrower has completed or caused to be completed an appropriate investigation of
the environmental condition of each Property as of the later of the date of the
Borrower's, the Obligors' or the applicable Subsidiary's purchase thereof or the
date upon which such property was last security for Indebtedness of such
Persons, including preparation of a "Phase I" report and, if appropriate, a
"Phase II" report, in each case prepared by a recognized environmental engineer
in accordance with customary standards which discloses that such property is not
in violation of the representations and covenants set forth in this Agreement,
unless such violation has been disclosed in writing to the Agent and remediation
actions satisfactory to Agent are being taken. There are no unpaid or
outstanding real estate or other taxes or assessments on or against any property
of the Borrower, the other Obligors or their respective Subsidiaries which are
delinquent. Except as set forth in Schedule 6.1(ee) hereto, there are no pending
eminent domain proceedings against any property of the Borrower, the other
Obligors or their respective 'Subsidiaries or any part thereof, and, to the
knowledge of the Borrower, no such proceedings are presently threatened or
contemplated by any taking authority which, in all such events, individually or
in the aggregate have had or could reasonably be expected to have a Material
Adverse Effect. None of the property of the Borrower, the other Obligors or
their respective Subsidiaries is now damaged or injured as a result of any fire,
explosion, accident, flood or other casualty in any manner which individually or
in the aggregate has had or could reasonably be expected to have any Material
Adverse Effect. Notwithstanding the foregoing in this Section 6.1(ee), certain
environmental matters have been disclosed to Agent and the Lenders on Schedule
6.1(p) and there may be a limited number of Properties for which no Phase I
reports have been obtained or located but the result of any such matters,
individually or in the aggregate, have not had and could not reasonably be
expected to have any Material Adverse Effect.
(ff) No Event of Default. No Default or Event of Default has occurred and
is continuing.
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(gg) Subordination. None of the Borrower or any other Obligor is a party
to or bound by any agreement, instrument or indenture that may require the
subordination in right or time of payment of any of the Obligations to any other
indebtedness or obligation of any of such Persons.
(hh) Anti-Terrorism Laws.
(i) None of the Borrower or any other Obligor or any of their
Affiliates is in violation of any laws or regulations relating to terrorism or
money laundering ("Anti-Terrorism Laws"), including Executive Order No. 13224 on
Terrorist Financing, effective September 24, 2001 (the "Executive Order") and
the Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56.
(ii) None of the Borrower, any other Obligor or any of their
Affiliates, or any of their brokers or other agents acting or benefiting from
the Loan is a Prohibited Person. A "Prohibited Person" is any of the following:
(A) a person or entity that is listed in the Annex to, or is
otherwise subject to the provisions of, the Executive Order;
(B) a person or entity owned or controlled by, or acting for
or on behalf of, any person or entity that is listed in the Annex to, or is
otherwise subject to the provisions of, the Executive Order;
(C) a person or entity with whom any Lender is prohibited
from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law;
(D) a person or entity who commits, threatens or conspires
to commit or supports "terrorism" as defined in the Executive Order; or
(E) a person or entity that is named as a "specially
designated national and blocked person" on the most current list published by
the U.S. Treasury Department Office of Foreign Asset Control at its official
website or any replacement website or other replacement official publication of
such list.
(iii) None of the Borrower or any other Obligor, any of their
Affiliates or any of their brokers or other agents acting in any capacity in
connection with the Loan (1) conducts any business or engages in making or
receiving any contribution of funds, goods or services to or for the benefit of
any Prohibited Person, (2) deals in, or otherwise engages in any transaction
relating to, any property or interests in property blocked pursuant to the
Executive Order, or (iii) engages in or conspires to engage in any transaction
that evades or avoids, or has the purpose of evading or avoiding, or attempts to
violate, any of the prohibitions set forth in any Anti-Terrorism Law.
(iv) Borrower and the other Obligors shall not (1) conduct any
business or engage in making or receiving any contribution of funds, goods or
services to or for the benefit of any Prohibited Person, (ii) deal in, or
otherwise engage in any transaction relating to, any property or interests in
property blocked pursuant to the Executive Order or any other Anti-Terrorism
Law, or (iii) engage in or conspire to engage in any transaction that evades or
avoids, or has the purpose of evading or avoiding, or attempts to violate, any
of the prohibitions set forth in any Anti-Terrorism Law (and Borrower shall
deliver to Agent any certification or other evidence requested from time to time
by Agent in its reasonable discretion, confirming Borrower's and the other
Obligors' compliance herewith).
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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 other Obligor or any
of their respective Subsidiaries 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 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 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.
ARTICLE VII. AFFIRMATIVE 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 provided for in Section 12.6, the Borrower shall comply
with the following covenants:
SECTION 7.1 PRESERVATION OF EXISTENCE AND SIMILAR MATTERS.
Except as otherwise permitted under Section 9.7, the Borrower shall preserve
and maintain, and cause each other Obligor and each Subsidiary of the Borrower
or any other Obligor to preserve and maintain, their 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 it is organized, in each jurisdiction in
which any Unencumbered Asset owned (or leased pursuant to an Eligible Ground
Lease) by it is located, and in each other 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. Borrower shall, and
shall cause the other Obligors and each Subsidiary of the Borrower or any other
Obligor to, develop and implement such programs, policies and procedures as are
necessary to comply with the USA Patriot Act and shall promptly advise Agent in
writing in the event that any of such Persons shall determine that any investors
in such Persons are in violation of such act.
SECTION 7.2 COMPLIANCE WITH APPLICABLE LAW AND CONTRACTS.
The Borrower shall comply, and cause each other Obligor and each Subsidiary
of the Borrower or any other Obligor to comply, with (a) all Applicable Law,
including the obtaining of all Governmental Approvals, (b) their respective
Governing Documents, and (c) all mortgages, indentures, contracts, agreements
and instruments to which it is a party or by which any of its properties may be
bound, the failure, in any such event, 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 other Obligor and each Subsidiary of the
Borrower and each other Obligor to, (a) protect and preserve all of its
properties or cause to be protected and preserved, and maintain or cause to be
maintained in good repair, working order and condition all tangible properties,
ordinary wear and tear
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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.
SECTION 7.4 CONDUCT OF BUSINESS.
The Borrower shall at all times carry on, and cause the other Obligors and
the Subsidiaries of the Borrower and the other Obligors to carry on, their
respective businesses as now conducted and as described in Section 6.1(u).
SECTION 7.5 INSURANCE.
In addition to the requirements of any of the other Loan Documents, the
Borrower shall, and shall cause each other Obligor and each Subsidiary of the
Borrower and each other Obligor to, maintain or cause to be maintained
commercially reasonable insurance with financially sound and reputable insurance
companies covering such Persons and their respective properties in such amounts
and against such risks and casualties as are customary for Persons or properties
of similar character and location, due regard being given to the type of
improvements thereon, their construction, location, use and occupancy, and from
time to time deliver to the Agent or any Lender upon its request a detailed list
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, together with copies of all policies or certificates of the
insurance then in effect.
SECTION 7.6 PAYMENT OF TAXES AND CLAIMS.
The Borrower shall, and shall cause each other Obligor and each Subsidiary of
the Borrower and each other Obligor to, pay and discharge or cause to be paid
and discharged 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 such Person, in
accordance with GAAP; provided further that upon the commencement of proceedings
to foreclose any lien that may have attached as security therefor, such Person
either (A) will provide a bond issued by a surety reasonably acceptable to the
Agent and sufficient to stay all such proceedings or (B) if no such bond is
provided, will pay each such tax, assessment, governmental charge, levy or
claim.
SECTION 7.7 VISITS AND INSPECTIONS.
The Borrower shall, and shall cause each other Obligor and each Subsidiary of
the Borrower and each other Obligor to, permit representatives or agents of any
Lender or the Agent, from time to time, as often as may be reasonably requested,
but only during normal business hours and at the expense of such Lender or the
Agent (unless a Default or Event of Default shall be continuing, in which case
the exercise by the Agent or such Lender of its rights under this Section shall
be at the expense of the Borrower), as the case may be, to: (a) visit and
inspect all properties of the Borrower, such Subsidiary or other Obligor (but
without disturbing the quiet possession of tenants) 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
principal officers, 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 its accountants authorizing the Agent or any Lender to discuss the
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financial affairs of the Borrower, any other Obligor or any Subsidiary of
Borrower or any other Obligor with its accountants.
SECTION 7.8 USE OF PROCEEDS; LETTERS OF CREDIT.
The Borrower shall use the proceeds of all Loans and all Letters of Credit
for general business purposes only. The Borrower shall not, and shall not permit
any other Obligor or any Subsidiary of Borrower or any other Obligor to, use any
part of such proceeds or Letters 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 Regulations T, U or X 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.
SECTION 7.9 ENVIRONMENTAL MATTERS.
The Borrower shall, and shall cause all other Obligors and each Subsidiary of
the Borrower and each other Obligor to, comply or cause to be complied with, all
Environmental Laws in all material respects. If the Borrower, any other Obligor
or any Subsidiary of Borrower or any other Obligor shall (a) receive notice that
any material 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
Borrower, or any other Obligor or any of their respective Subsidiaries alleging
material violations of any Environmental Law or requiring Borrower, any other
Obligor or any of their respective Subsidiaries 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 Borrower, any other
Obligor or any of their respective Subsidiaries 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 individually or in the aggregate in
excess of $10,000,000, the Borrower shall provide the Agent and each Lender with
a copy of such notice within thirty (30) days after the receipt thereof by such
Person. The Borrower shall, and shall cause the other Obligors and each
Subsidiary of the Borrower or any other Obligor to, take or cause to be taken
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 7.10 BOOKS AND RECORDS.
The Borrower shall, and shall cause each of the other Obligors and each
Subsidiary of the Borrower or any other Obligor to, maintain true and accurate
books and records pertaining to their respective business operations in which
full, true and correct entries will be made in accordance with GAAP. Borrower
shall maintain its current accounting procedures unless approved by the Agent or
as required by Applicable Law.
SECTION 7.11 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 7.12 GUARANTORS.
(a) Material Subsidiaries. Within fifteen (15) days of any Person
becoming a Material Subsidiary (other than an Excluded 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) a Joinder
Agreement executed by such Material Subsidiary and (ii) the items that would
have been delivered under Sections 5.1(a)(iv) through (viii) if such Material
Subsidiary had been one on the Effective Date. Additionally, in the event that
any Subsidiary of Borrower or CLP, whether presently existing or hereafter
69
formed or acquired, which is not a Guarantor at such time, shall after the date
hereof become a guarantor under any existing or future Unsecured Debt of
Borrower or any other Obligor, then Borrower shall cause such Subsidiary to
execute and deliver the items described in this Section 7.12(a).
(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, the
applicable Guarantor from the Guaranty so long as: (i) such Guarantor is not
otherwise required to be a party to the Guaranty under this Section 7.12; (ii)
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 this
Section 7.12; (iii) the Agent shall have received such written request at least
ten (10) Business Days prior to the requested date of release and (iv) Borrower
shall deliver to Agent evidence reasonably satisfactory to Agent either that (A)
if the Guarantor is a Material Subsidiary, the Borrower has disposed of or
simultaneously with such release will dispose of its entire interest in such
Guarantor or (B) if Guarantor is the owner of an Unencumbered Asset, but not a
Material Subsidiary, that all assets owned by such Guarantor have been removed
from the calculation of Unencumbered Asset Value. Delivery by the Borrower to
the Agent of any such request for a release 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.
Notwithstanding the foregoing, the foregoing provisions shall not apply to CLP,
which may only be released upon the written approval of Agent and all of the
Lenders.
SECTION 7.13 REIT STATUS.
CLP shall at all times maintain its status as, and elect to receive status
as, a REIT.
SECTION 7.14 DISTRIBUTION OF INCOME TO THE BORROWER.
The Borrower shall cause all of its Subsidiaries to promptly distribute to
the Borrower (but not less frequently than once each fiscal quarter of the
Borrower unless otherwise approved by the Agent), whether in the form of
dividends, distributions or otherwise, all profits, proceeds or other income
relating to or arising from such Subsidiaries' use, operation, financing,
refinancing, sale or other disposition of their respective assets and properties
after (a) the payment by each such Subsidiary of its debt service and operating
expenses for such quarter and (b) the establishment of reasonable reserves for
the payment of operating expenses not paid on at least a quarterly basis and
capital improvements to be made to such Subsidiary's assets and properties
approved by such Subsidiary in the ordinary course of business consistent with
its past practices, (c) funding of reserves required by the terms of any deed of
trust, mortgage or similar lien encumbering property of the Subsidiary; (d)
payment or establishment of reserves for payment to minority equity interest
holders of amounts required to be paid in respect of such equity interest.
SECTION 7.15 CREDIT RATING.
Borrower shall at all times pay such monitoring, surveillance or similar fees as
may be required by the applicable Rating Agency to continue to monitor Borrower,
and the Borrower shall upon the request of Agent provide evidence to Agent of
the payment thereof.
SECTION 7.16 EXCHANGE LISTING.
The Borrower shall cause CLP to maintain at least one class of common shares
of CLP having trading privileges on and to be traded on the New York Stock
Exchange or the American Stock Exchange.
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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.
(a) As soon as available and in any event not later than the first to
occur of (i) the date that is five (5) days following the filing of the
Borrower's 10-Q Report with the Securities and Exchange Commission and (ii) the
date that is fifty (50) days after the close of each of the first, second and
third calendar quarters of Borrower, the unaudited consolidated balance sheet of
Borrower and its Subsidiaries as at the end of such period and the related
unaudited consolidated statements of income, shareholders' equity and cash flows
of Borrower and its Subsidiaries for such period and an unaudited statement of
Funds from Operations, setting forth in each case in comparative form the
figures as of the end of and for the corresponding periods of the previous
calendar year, all of which shall be certified by the chief financial or chief
accounting officer of CLP, to the best of such officer's knowledge, to present
fairly, in accordance with GAAP as then in effect, the consolidated financial
position of Borrower and its Subsidiaries as at the date thereof and the results
of operations for such period (subject to normal year-end audit adjustments).
Such certificate shall further include such certifications as are required by
the Xxxxxxxx-Xxxxx Act of 2002. Together with such financial statements, the
Borrower shall deliver reports, in form and detail satisfactory to the Agent,
setting forth (i) all capital expenditures made during the calendar quarter then
ended; (ii) a description of all Properties acquired during such calendar
quarter, including the Net Operating Income of each such Property, acquisition
costs and related mortgage debt; (iii) a description of all Properties sold
during the calendar quarter then ended, including the Net Operating Income from
such Properties and the sales price; (iv) a schedule of the Net Operating Income
contribution by each Property and by each market, including a summary of the
economic occupancy, rent potential, and income and expense for such Properties
for the preceding calendar quarter; (v) pro forma quarterly financial
information for Borrower and its Subsidiaries for the next four (4) calendar
quarters, including pro forma covenant calculations, EBITDA, sources and uses of
funds, capital expenditures, Net Operating Income for the Properties, and other
income and expenses; and (vi) such other information as the Agent may request.
(b) As soon as available and in any event not later than the first to
occur of (i) the date that is five (5) days following the filing of CLP's 10-Q
Report with the Securities and Exchange Commission and (ii) the date that is
fifty (50) days after the close of each of the first, second and third calendar
quarters of CLP, the unaudited consolidated balance sheet of CLP and its
Subsidiaries as at the end of such period and the related unaudited consolidated
statements of income, shareholders' equity and cash flows of CLP and its
Subsidiaries for such period and an unaudited statement of Funds from
Operations, setting forth in each case in comparative form the figures as of the
end of and for the corresponding periods of the previous calendar year, all of
which shall be certified by the chief financial or chief accounting officer of
CLP, in his or her opinion, to present fairly, in accordance with GAAP as then
in effect, the consolidated financial position of CLP 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.
(a) As soon as available and in any event not later than the first to
occur of (i) the date that is five (5) days following the filing of the
Borrower's 10-K Report with the Securities and Exchange Commission and (ii) the
date that is one hundred (100) days after the end of each respective calendar
year of Borrower and its Subsidiaries, the audited consolidated balance sheet of
Borrower and its Subsidiaries as at the end of such calendar year and the
related audited consolidated statements of income, shareholders' equity and cash
flows of Borrower and its Subsidiaries for such calendar year and an
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unaudited statement of Funds from Operations, setting forth in comparative form
the figures as at the end of and for the previous calendar year, all of which
shall be certified by (i) the chief executive officer or chief financial officer
of CLP, to the best of such officer's knowledge, to present fairly, in
accordance with GAAP as then in effect, the consolidated financial position of
Borrower and its Subsidiaries as at the date thereof and the results of
operations for such period, and (ii) 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 Agent and who shall
have authorized Borrower to deliver such financial statements and certification
thereof to the Agent and the Lenders pursuant to this Agreement. Such
certificate shall further include such certifications as are required by the
Xxxxxxxx-Xxxxx Act of 2002. Together with such financial statements, Borrower
shall deliver a written statement from such accountants to the effect that they
have read a copy of this Agreement and the Guaranty, and that in making the
examination necessary to such certification, they have obtained no knowledge of
any Default of Event of Default, or if such accountants shall have obtained
knowledge of any then existing Default or Event of Default they shall disclose
in such statement any such Default or Event of Default; provided that such
accountants shall not be liable to Agent or the Lenders should they fail to
obtain knowledge of any Default or Event of Default. In addition, Borrower shall
deliver the reports described in Section 8.1(a)(i)-(v) with such year-end
statements.
(b) As soon as available and in any event not later than the first to
occur of (i) the date that is five (5) days following the filing of CLP's 10-K
Report with the Securities and Exchange Commission and (ii) the date that is
within one hundred (100) days after the end of each respective calendar year of
CLP and its Subsidiaries, the audited consolidated balance sheet of CLP and its
Subsidiaries as at the end of such calendar year and the related audited
consolidated statements of income, shareholders' equity and cash flows of CLP
and its Subsidiaries for such calendar year and an unaudited statement of Funds
from Operations, setting forth in comparative form the figures as at the end of
and for the previous calendar year, all of which shall be (i) certified by the
chief executive officer or chief financial officer of CLP, to the best of such
officer's knowledge, to present fairly, in accordance with GAAP as then in
effect, the consolidated financial position of CLP and its Subsidiaries as at
the date thereof and the results of operations for such period and (ii)
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 Agent and who shall have authorized CLP to deliver
such financial statements and certification thereof to the Agent and the Lenders
pursuant to this Agreement. Such certificate shall further include such
certifications as are required by the Xxxxxxxx-Xxxxx Act of 2002. Together with
such financial statements, CLP shall deliver a written statement from such
accountants to the effect that they have read a copy of this Agreement and the
Guaranty, and that in making the examination necessary to such certification,
they have obtained no knowledge of any Default of Event of Default, or if such
accountants shall have obtained knowledge of any then existing Default or Event
of Default they shall disclose in such statement any such Default or Event of
Default; provided that such accountants shall not be liable to Agent or the
Lenders should they fail to obtain knowledge of any Default or Event of Default.
SECTION 8.3 COMPLIANCE CERTIFICATE.
At the time financial statements are required to be furnished pursuant to
Sections 8.1 and 8.2, and within ten (10) 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 CLP: (a) setting forth in reasonable detail as at the end of such
quarterly accounting period, calendar year, or other fiscal period, as the case
may be, the calculations required to establish whether or not the Borrower is in
compliance with the covenants contained in Sections 9.1 through 9.3, 9.6 and
9.14; and (b) stating that 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. With each Compliance
Certificate, Borrower shall also deliver a certificate (an "Unencumbered Asset
Certificate") executed by the chief financial
72
officer of CLP that: (i) sets forth a list of all Unencumbered Assets; and (ii)
certifies that (A) all Unencumbered Assets so listed fully qualify as such under
the applicable criteria for inclusion as Unencumbered Assets, and (B) all
acquisitions, dispositions or other removals of Unencumbered Assets completed
during such quarterly accounting period, calendar year, or other fiscal period
were permitted under this Agreement, and (C) the acquisition cost or principal
balance of any Unencumbered Assets, as applicable, acquired during such period
and any other information that Agent may require to determine the Unencumbered
Asset Value of such Unencumbered Asset, and the Unencumbered Asset Value of any
Unencumbered Assets removed during such period. In addition, with each such
Compliance Certificate, Borrower shall deliver the following information: (u) a
development schedule of the announced development pipeline (including
Residential Units for Sale), including for each announced development project,
the project name and location, the square footage (or number of units, as
applicable) to be developed, the expected construction start date, the expected
date of delivery, the expected stabilization date and the total anticipated
cost; (v) with respect to the Residential Units for Sale, the number of units
for sale, the number of units sold, the number of units remaining for sale, the
sales price of each unit, and whether management or control of such Property has
been turned over to a homeowner's association or similar entity, (w) a schedule
of all outstanding Indebtedness of Borrower and its Subsidiaries and CLP and its
Subsidiaries, showing for each component of Indebtedness, the lender, the total
commitment, the total indebtedness outstanding, the interest rate, if fixed, or
the applicable margin over an index, if the interest rate floats, the term, the
required amortization (if any) and the security (if any); (x) a schedule of all
interest rate protection agreements to which Borrower, CLP or any of their
respective Subsidiaries are a party, showing for each such agreement, the total
dollar amount, the type of agreement (i.e. cap, collar, swap, etc.) and the term
thereof and (z) a copy of all management reports, if any, submitted to the
Borrower or CLP or its management by its independent public accountants.
SECTION 8.4 OTHER INFORMATION.
(a) Securities Filings. Within five (5) Business Days of the filing
thereof, written notice and a listing of all registration statements, reports on
Forms 10-K, 10-Q and 8-K (or their equivalents) and all other periodic reports
which the Borrower, any other Obligor or any of their respective Subsidiaries
shall file with the Securities and Exchange Commission (or any Governmental
Authority substituted therefor) or any national securities exchange;
(b) Shareholder Information. Promptly upon the mailing thereof to the
shareholders or partners of Borrower, any other Obligor or any of their
respective Subsidiaries 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 other Obligor or any of their
respective Subsidiaries;
(c) 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
73
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 CLP 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;
(d) Litigation. To the extent Borrower, any other Obligor or any of
their respective Subsidiaries 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, Borrower, any other Obligor, any of their respective Subsidiaries or
any of their respective properties, assets or businesses which involve claims
individually or in the aggregate in excess of $5,000,000, and prompt notice of
the receipt of notice that any United States income tax returns of Borrower, any
other Obligor, or any of their respective Subsidiaries are being audited;
(e) Modification of Governing Documents. A copy of any amendment to a
Governing Document of Borrower or any other Obligor promptly upon, and in any
event within fifteen (15) Business Days of, the effectiveness thereof;
(f) Change of Management or Financial Condition. Prompt notice of any
material change in the senior management of Borrower, any other Obligor or any
of their respective Subsidiaries, any change in the business, assets,
liabilities, financial condition, results of operations or (provided that such
change is related to Borrower, any other Obligor or any of their respective
Subsidiaries and Affiliates and not a general matter affecting the economy or
society) business prospects of Borrower, any other Obligor, or any of their
respective Subsidiaries which has had or could reasonably be expected to have a
Material Adverse Effect, or any other event or circumstance which has had or
could reasonably be expected to have a Material Adverse Effect;
(g) Default. Notice of the occurrence of any of the following promptly
upon a Responsible Officer obtaining knowledge thereof: (i) any Default or Event
of Default (which notice shall state that it is a "notice of default" for the
purposes of Section 11.3 below) or (ii) any event which constitutes or which
with the passage of time, the giving of notice, or otherwise, would constitute a
default or event of default by Borrower, any other Obligor, or any of their
respective Subsidiaries under any Indebtedness individually or in the aggregate
in excess of $20,000,000, or under any Material Contract to which any such
Person is a party or by which any such Person or any of its respective
properties may be bound;
(h) Judgments. Prompt notice of any order, judgment or decree in excess
of $10,000,000 having been entered against Borrower, any other Obligor, or any
of their respective Subsidiaries or any of their respective properties or
assets;
(i) Notice of Violations of Law. Prompt notice if Borrower, any other
Obligor, or any of their respective Subsidiaries shall receive any notification
from any Governmental Authority alleging a violation of any Applicable Law or
any inquiry which could reasonably be expected to have a Material Adverse
Effect;
(j) Material Assets Sales. Prompt notice of the sale, transfer or other
disposition of any material assets of Borrower, any other Obligor, or any of
their respective Subsidiaries to any Person other than Borrower, any other
Obligor, or any of their respective Subsidiaries;
(k) Material Contracts. Promptly upon (i) entering into any Material
Contract after the Agreement Date, a copy to the Agent of such Material
Contract, together with a copy of all related or ancillary documentation and
(ii) the giving or receipt thereof by Borrower, any other Obligor, or any of
their respective Subsidiaries notice alleging that any party to any Material
Contract is in default of its obligations thereunder;
74
(l) Material Subsidiary. Prompt notice of any Person becoming a Material
Subsidiary;
(m) Rating Notices. Not later than two (2) Business Days after Borrower
receives notice of the same from any Rating Agency or otherwise learns of the
same, notice of the issuance of any change or withdrawal in the Credit Rating by
any Rating Agency in respect of Borrower, together with the details thereof, and
of any announcement by such Rating Agency that any such Credit Rating is "under
review" or that any such Credit Rating has been placed on a watch list or that
any similar action has been taking by such Rating Agency;
(n) Additions to Unencumbered Assets. In order to add any asset as an
Unencumbered Asset, the Borrower must deliver to the Agent an Unencumbered Asset
Certificate reflecting such addition, together with a statement of: (i) the
acquisition cost (or with respect to First Mortgage Receivables, the outstanding
principal balance) of such asset; and (ii) the same information that the
Borrower would be required to include in a Compliance Certificate;
(o) Removals from Unencumbered Assets. Within ten (10) Business Days
after any Obligor's disposition of any Unencumbered Asset (or payoff of any
First Mortgage Receivable) or after any Unencumbered Asset ceases to qualify as
an Unencumbered Asset, the Borrower shall deliver to the Agent an Unencumbered
Asset Certificate reflecting such removal or disqualification, together with a
statement of: (i) the identity of the Unencumbered Asset being disposed of or
disqualified, and (ii) the Unencumbered Asset Value attributable to such
Unencumbered Asset. The Borrower also may voluntarily remove any asset from
Unencumbered Assets by delivering to the Agent an Unencumbered Asset Certificate
reflecting such removal, together with a statement (x) that no Default or Event
of Default then exists or would, upon the occurrence of such event or with the
passage of time, result from such removal, (y) of the identity of the
Unencumbered Asset being removed, and (z) the Unencumbered Asset Value
attributable to such Unencumbered Asset; and
(p) 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, any or
other Obligor or any of their respective 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, on a consolidated basis in accordance with
GAAP:
(a) the Secured Debt to Total Asset Value Ratio to exceed thirty-five
percent (35%) at any time;
(b) the Interest Coverage Ratio to be less than 2.0:1.0 at any time;
(c) the Fixed Charge Coverage Ratio to be less than 1.65:1.00 at any
time;
(d) the Debt to Total Asset Value Ratio to exceed sixty percent (60%) at
any time;
(e) the Unencumbered Interest Coverage Ratio to be less than 2.0:1.0 at
any time;
75
(f) the Unencumbered Leverage Ratio to be less than 1.60:1.00 at any
time on or prior to the calendar quarter ending June 30, 2005, or to be less
than 1.67:1.00 at any time thereafter; and
(g) the Adjusted Total Asset Value directly or indirectly owned by the
Borrower and the Guarantors to be less than ninety percent (90%) of the Adjusted
Total Asset Value.
SECTION 9.2 INDEBTEDNESS.
The Borrower shall not, and shall not permit any other Obligor or any
Subsidiary of Borrower or any other Obligor to, create, incur, assume, or permit
or suffer to exist, or assume or guarantee, directly or indirectly, contingently
or otherwise, or become or remain liable with respect to any Indebtedness other
than the following:
(a) the Obligations;
(b) intercompany Indebtedness among Borrower and its Wholly Owned
Subsidiaries; provided, however, that the obligations of the Borrower and each
Guarantor in respect of such intercompany Indebtedness shall be subordinate to
the Obligations; and
(c) any other Indebtedness existing, created, incurred or assumed so
long as immediately prior to the existence, creation, incurring or assumption
thereof, and immediately thereafter and after giving effect thereto, no 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 9.3 CERTAIN PERMITTED INVESTMENTS OF BORROWER.
The Borrower shall not, and shall not permit any other Obligor or any Subsidiary
of Borrower or any other Obligor to, make any Investment in or otherwise own or
hold the following items (whether through the Borrower, an Obligor, a Subsidiary
of Borrower or an Obligor, or their respective Unconsolidated Affiliates) which
would cause the aggregate value of such holdings of the Borrower, such
Subsidiaries and the other Loan Parties to exceed the percentage of Total Asset
Value set forth below at any time:
(a) Investments in Unimproved Land shall not exceed five percent (5%) of
Total Asset Value;
(b) Investments in Mortgage Receivables shall not exceed five percent
(5%) of Total Asset Value;
(c) Investments in Unconsolidated Affiliates shall not exceed twenty
percent (20%) of Total Asset Value; and
(d) the aggregate Construction Budget for Construction-in-Process and
Residential Units for Sale shall not exceed twenty-five percent (25%) of Total
Asset Value (provided that the aggregate Construction Budget for Residential
Units for Sale shall not exceed ten percent (10%) of Total Asset Value).
Notwithstanding the foregoing, in no event shall the aggregate value of the
holdings of the Borrower, any other Obligor and their Subsidiaries in the
Investments described in clauses (a) through (d) exceed thirty-five percent
(35%) of Total Asset Value at any time. For the purposes of this Section 9.3, a
Property shall be considered Construction-in-Process until the issuance of a
permanent certificate of occupancy for such Property or phase thereof.
76
For the purposes of this Section 9.3, the Investment of Borrower, any other
Obligor or their Subsidiaries in any Unconsolidated Affiliates will equal
(without duplication) the sum of (i) such Person's pro rata share of
Construction-in-Process of their Unconsolidated Affiliates, plus (ii) such
Person's pro rata share of their Unconsolidated Affiliate's Investment in
Unimproved Land; plus (iii) such Person's pro rata share of any other
Investments valued at the lower of GAAP book value or market value.
SECTION 9.4 INVESTMENTS GENERALLY.
The Borrower shall not, and shall not permit any other Obligor or any of their
Subsidiaries to, directly or indirectly, acquire, make or purchase any
Investment, or permit any Investment of such Person to be outstanding on and
after the Agreement Date, other than the following:
(a) Investments in Subsidiaries and Unconsolidated Affiliates in
existence on the Agreement Date and disclosed on Part I of Schedule 6.1(b);
(b) Investments to acquire Equity Interests of a Subsidiary or any other
Person who after giving effect to such acquisition would be a Subsidiary, so
long as in each case (i) immediately after giving effect to such Investment, no
Default or Event of Default is or would be in existence and (ii) if such
Subsidiary is (or after giving effect to such Investment would become) a
Material Subsidiary, the terms and conditions set forth in Section 7.12 are
satisfied;
(c) Investments permitted under Section 9.3;
(d) Investments in Cash Equivalents; and
(e) intercompany Indebtedness among the Borrower, CLP and their Wholly
Owned Subsidiaries provided that such Indebtedness is permitted by the terms of
Section 9.2.
SECTION 9.5 LIENS; NEGATIVE PLEDGES; OTHER MATTERS.
(a) The Borrower shall not, and shall not permit any other Obligor or
any Subsidiary of Borrower or any other Obligor 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 other Obligor or
any Subsidiary of Borrower or any other Obligor to, enter into, assume or
otherwise be bound by any Negative Pledge except for a Negative Pledge contained
in any agreement (i) evidencing Indebtedness which Borrower or such Subsidiary
or Obligor may create, incur, assume, or permit or suffer to exist under Section
9.2, (ii) which Indebtedness is secured by a Lien permitted to exist pursuant to
this Agreement, and (iii) which prohibits the creation of any other Lien on only
the property securing such Indebtedness as of the date such agreement was
entered into.
(c) The Borrower shall not, and shall not permit any other Obligor or
any Subsidiary of Borrower or any other Obligor to, create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or restriction of
any kind on (i) the ability of Borrower, any other Obligor or any Subsidiary of
Borrower or any other Obligor to: (A) pay dividends or make any other
distribution on any of such Person's capital stock or other equity interests
owned by the Borrower, any other Obligor, or any of their respective
Subsidiaries, (B) pay any Indebtedness owed to Borrower, any other Obligor, or
any of their respective Subsidiaries, (C) make loans or advances to Borrower,
any other Obligor, or any of their respective Subsidiaries, or (D) transfer any
of its property or assets to Borrower, any Obligor, or any of
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their respective Subsidiaries, or (ii) the ability of Borrower or any other
Obligor to pledge the Unencumbered Assets as security for the Obligations.
SECTION 9.6 RESTRICTED PAYMENTS; STOCK REPURCHASES.
(a) Borrower will not make any Restricted Payment to CLP and CLP will
not make any Restricted Payments during any calendar quarter which, based upon
the prior twelve (12) months from the date of calculation, would exceed the
greater of (i) ninety-five percent (95%) of such Person's Funds From Operations
through the date of any such Restricted Payment or (ii) the minimum amount
required in order for CLP to maintain its status as a REIT, as set forth in a
certification to Agent from the chief financial officer of CLP. If a Default or
Event of Default specified in Section 10.1(a), Section 10.1(b), Section
10.1(c)(i), Section 10.1(e), Section 10.1(f) or Section 10.1(g) shall have
occurred and be continuing or if as a result of the occurrence of any other
Event of Default the Obligations have been accelerated pursuant to Section
10.2(a), then neither the Borrower nor CLP shall make any Restricted Payments to
any Person whatsoever without the prior written consent of the Requisite
Lenders.
(b) Neither the Borrower nor CLP shall at any time buy back, redeem,
retire or otherwise acquire, directly or indirectly, any shares of its capital
stock if a Default or Event of Default exists or immediately thereafter and
after giving effect thereto, a Default or Event of Default is or would be in
existence.
SECTION 9.7 MERGER, CONSOLIDATION, SALES OF ASSETS AND OTHER ARRANGEMENTS.
The Borrower shall not, and shall not permit any other Obligor or any
Subsidiary of Borrower or any other Obligor to: (i) enter into any transaction
of merger, consolidation, reorganization or other business combination; (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, or discontinue or eliminate any business line or segment (any such
event described in clause (iii), a "Sale"); 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 of Borrower that
is not also an Obligor, 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) a Person may merge with Borrower or any of its Subsidiaries that is
a Guarantor, so long as (i) such Person was organized under the laws of the
United States of America or one of its states; (ii) if such merger involves the
Borrower, Borrower is the survivor of such merger; (iii) if such merger involves
a Subsidiary of Borrower that is a Guarantor, subject to Section 9.7(b)(ii),
such Subsidiary is the survivor of such merger; (iv) 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; (v) the Borrower shall have
given the Agent and the Lenders at least ten (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 of Borrower with and into Borrower); (vi)
such merger is completed as a result of negotiations with the approval of the
board of directors or similar body of such Person and is not a so called
"hostile takeover"; and (vii) following such merger, Borrower and its
Subsidiaries will continue to be engaged solely in the business of the
ownership, development, management and investment in real estate; and
(c) the foregoing limitation on the sale, lease or other transfer of
assets and on the discontinuation or elimination of a business line or segment
shall not prohibit the sale of Properties whether to an Affiliate or a third
party, during any period of twelve (12) calendar months, pursuant to reasonable
terms which are no less favorable to the owner of such Property than would be
obtained in a
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comparable arm's length transaction with a Person which is not an Affiliate, if
such sale is to an Affiliate, for fair market value (as determined in good faith
by the board of directors of CLP or an executive committee thereof), for an
aggregate amount, which when combined with all other such sales pursuant to this
clause (c), does not exceed twenty-five percent (25%) of Total Asset Value as of
the end of the fiscal quarter that immediately precedes the commencement of such
twelve (12) calendar month period. Notwithstanding anything in this Agreement to
the contrary, any disposition of assets by the Obligors and their Subsidiaries
shall be made in the ordinary course of business for a full and fair
consideration.
SECTION 9.8 FISCAL YEAR.
Neither the Borrower nor CLP shall change its fiscal year from that in effect
as of the Agreement Date.
SECTION 9.9 MODIFICATIONS TO MATERIAL CONTRACTS.
The Borrower shall not, and shall not permit any other Obligor or any
Subsidiary of Borrower or any other Obligor to, enter into any amendment or
modification to any Material Contract which 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 other Obligor or any
Subsidiary of Borrower or any other Obligor 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 (but not including any
Subsidiary of Borrower), except transactions in the ordinary course of and
pursuant to the reasonable requirements of the business of such Person and upon
fair and reasonable terms which are no less favorable to such Person than would
be obtained in a comparable arm's length transaction with a Person that is not
an Affiliate.
SECTION 9.11 ERISA EXEMPTIONS.
The Borrower shall not, and shall not permit any other Obligor or any
Subsidiary of Borrower or any other Obligor 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 RESTRICTION ON PREPAYMENT OF INDEBTEDNESS.
Without the prior written consent of the Agent, neither Borrower, any other
Obligor, nor any Subsidiary of Borrower or any other Obligor shall prepay,
redeem or purchase the principal amount, in whole or in part, of any
Indebtedness other than the Obligations after the occurrence of any Event of
Default; provided, however, that this Section 9.12 shall not prohibit the
prepayment of Indebtedness which is financed solely from the proceeds of a new
loan which would otherwise be permitted by the terms of this Agreement.
SECTION 9.13 MODIFICATIONS TO GOVERNING DOCUMENTS.
The Borrower shall not, and shall not permit any other Obligor or any
Subsidiary of Borrower or any other Obligor to enter into any amendment or
modification of any Governing Document of Borrower, such Subsidiary, or such
Obligor which would have a Material Adverse Effect.
SECTION 9.14 OCCUPANCY OF UNENCUMBERED ASSETS.
(a) The Unencumbered Assets that are Properties (excluding those
Unencumbered Assets which are Development Properties) in the aggregate shall
consist solely of Properties which have an aggregate occupancy level for the
preceding calendar quarter of tenants in possession and paying rent of
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at least eighty percent (80%) of the aggregate rentable area or apartment units,
as applicable, within such Unencumbered Assets.
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 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 Obligor shall fail to pay when due any payment Obligation
owing by such other Obligor under any Loan Document to which it is a party, and
such failure shall continue for a period of five (5) Business Days from the date
such payment was due.
(c) Default in Performance. (i) The Borrower shall fail to perform or
observe any term, covenant, condition or agreement contained in Sections 7.13 or
8.3 or in Article IX, or (ii) the Borrower shall fail to perform or observe any
term, covenant, condition or agreement contained in Section 7.7 or Section 7.12
and such failure under this Section 10.1(c)(ii) shall continue for a period of
five (5) days after the earlier of (x) the date upon which a Responsible Officer
of Borrower or such Obligor obtains knowledge of such failure or (y) the date
upon which the Borrower has received written notice of such failure from the
Agent, or (iii) the Borrower or any other Obligor 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 under this Section 10.1(c)(iii) shall continue for
a period of thirty (30) days after the earlier of (x) the date upon which a
Responsible Officer of Borrower or such Obligor obtains knowledge of such
failure or (y) the date upon which the Borrower has received written notice of
such failure from the Agent.
(d) Misrepresentations. Any written statement, representation or
warranty made or deemed made by or on behalf of Borrower or any other Obligor
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 Borrower or any other Obligor to the Agent or
any Lender, shall at any time prove to have been incorrect or misleading (and
without regard to any qualifications limiting such representations to knowledge
or belief), in light of the circumstances in which made or deemed made, in any
material respect when furnished or made or deemed made.
(e) Indebtedness Cross-Default.
(i) A Borrower, any other Obligor, or any of their respective
Subsidiaries shall fail to pay when due and payable, the principal of, or
interest on, any Indebtedness (other than the Obligations) having an aggregate
outstanding principal amount greater than or equal to $20,000,000 (all such
Indebtedness or obligations under Derivative Contracts being "Material
Indebtedness"); or
(ii) (x) The maturity of any Material Indebtedness shall have been
accelerated in accordance with the provisions of any indenture, contract or
instrument evidencing, providing for the creation of or otherwise concerning
such Material Indebtedness or (y) any Material Indebtedness shall
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have been required to be prepaid or repurchased prior to the stated maturity
thereof (which for the purposes hereof shall include any termination event or
other event resulting in the settling of payments due under a Derivative
Contract); 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 Indebtedness, any trustee or agent acting on
behalf of such holder or holders or any other Person, to accelerate the maturity
of any such Material Indebtedness or require any such Material Indebtedness to
be prepaid or repurchased prior to its stated maturity (which for the purposes
hereof shall include any termination event or other event resulting in the
settling of payments due under a Derivative Contract).
(f) Voluntary Bankruptcy Proceeding. Borrower, any other Obligor, or any
of their respective Subsidiaries shall: (i) commence a voluntary case under the
Bankruptcy Code, 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; provided, however, that the events
described in this Section 10.1(f) as to any Subsidiary of any Obligor that is
not also an Obligor shall not constitute an Event of Default unless more than
five percent (5%) of the Total Asset Value is attributable to such Subsidiaries.
(g) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
be commenced against Borrower, any other Obligor or any of their respective
Subsidiaries in any court of competent jurisdiction seeking: (i) relief under
the Bankruptcy Code, 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 sixty (60) consecutive calendar days, or
an order granting the remedy or other relief requested in such case or
proceeding against such Person (including, but not limited to, an order for
relief under such Bankruptcy Code or such other federal bankruptcy laws) shall
be entered; provided, however, that the events described in this Section 10.1(g)
as to any Subsidiary of any Obligor that is not also an Obligor shall not
constitute an Event of Default unless more than five percent (5%) of the Total
Asset Value is attributable to such Subsidiaries.
(h) Litigation; Enforceability. Borrower or any other Obligor 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 Borrower, any other Obligor, or any of their
respective Subsidiaries by any court or other tribunal and (i) such judgment or
order shall continue for a period of thirty (30) days without being paid, stayed
or dismissed through appropriate appellate proceedings, and (ii) either (A) the
amount of such
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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 Borrower, such other Obligor or
such Subsidiary, $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 Borrower, any other Obligor, or
any of their respective Subsidiaries which exceeds, individually or together
with all other such warrants, writs, executions and processes for Borrower, such
Obligor or such Subsidiary, $10,000,000, and such warrant, writ, execution or
process shall not be discharged, vacated, stayed or bonded for a period of
thirty (30) 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 Obligor.
(k) ERISA. Any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $5,000,000 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 $5,000,000.
(l) Loan Documents. An Event of Default (as defined therein) shall occur
under any of the other Loan Documents.
(m) Change of Control. A Change of Control shall occur.
(n) Federal Tax Lien. A federal tax lien shall be filed against the
Borrower, any Obligor, or any of their respective Subsidiaries under Section
6323 of the Internal Revenue Code or a lien of the PBGC shall be filed against
Borrower, any other Obligor, or any of their respective Subsidiaries under
Section 4068 of ERISA and in either case such lien shall remain undischarged (or
otherwise unsatisfied) for a period of twenty-five (25) days after the date of
filing.
SECTION 10.2 REMEDIES UPON EVENT OF DEFAULT.
Upon the occurrence of an Event of Default the following provisions shall
apply:
(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, the Issuing 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,
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or other notice of any kind, all of which are expressly waived by the Borrower,
and (B) all of the Revolving Loan Commitments, the obligation of the Revolving
Loan Lenders to make Revolving Loans, the Swingline Commitment, the obligation
of the Swingline Lender to make Swingline Loans, and the obligation of the
Issuing Lender to issue Letters of Credit hereunder, shall all immediately and
automatically terminate.
(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
presentment, demand, protest or other notice of any kind, all of which are
expressly waived by the Borrower, and (B) terminate the Revolving Loan
Commitments and the obligation of the Revolving Loan Lenders to make Revolving
Loans hereunder and the obligation of the Issuing Lender 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, the other Obligors and their
respective 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, the other Obligors and their respective
Subsidiaries and to exercise such power as the court shall confer upon such
receiver.
SECTION 10.3 ALLOCATION OF PROCEEDS.
If an Event of Default shall have occurred and be continuing and maturity of
any of the Obligations has been accelerated, all payments received by the Agent
under any of the Loan Documents, in respect of any principal of or interest on
the Obligations or any other amounts payable by the Borrower hereunder or
thereunder, shall be applied in the following order and priority:
(a) amounts due to the Agent and the Lenders in respect of fees and
expenses due under Sections 3.6 and 12.2;
(b) payments of interest on Swingline Loans;
(c) payments of interest on all other Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders, pro rata
among the Revolving Loan Lenders and the Term Loan Lenders based upon the
aggregate outstanding Revolving Loans, Reimbursement Obligations and Term
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Loans (and as to the Revolving Loans and Term Loans, first to Base Rate Loans
and then to LIBOR Loans);
(d) payments of principal of Swingline Loans;
(e) payments of principal of all other Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders, pro rata
among the Revolving Loan Lenders and the Term Loan Lenders based upon the
aggregate outstanding Revolving Loans, Reimbursement Obligations and Term Loans
(and as to the Revolving Loans and Term Loans, first to Base Rate Loans and then
to LIBOR Loans);
(f) amounts to be deposited into the Collateral Account in respect of
Letters of Credit (to be applied as provided in Section 10.4);
(g) amounts due the Agent and the Lenders pursuant to Sections 11.7 and
12.9;
(h) payments of all other amounts due and owing by the Borrower under
any of the Loan Documents, if any, to be applied for the ratable benefit of the
Lenders and Agent; and
(i) any amount remaining after application as provided above, shall be
paid to the Borrower or whomever else may be legally entitled thereto.
SECTION 10.4 COLLATERAL ACCOUNT.
(a) As collateral security for the prompt payment in full when due of
all Letter of Credit Liabilities and the other Obligations, the Borrower hereby
pledges and grants to the Agent, for the ratable benefit of the Lenders as
provided herein, a security interest in all of its right, title and interest in
and to the Collateral Account and the balances from time to time in the
Collateral Account (including the investments and reinvestments therein provided
for below). The balances from time to time in the Collateral Account shall not
constitute payment of any Letter of Credit Liabilities until applied by the
Agent as provided herein. Anything in this Agreement to the contrary
notwithstanding, funds held in the Collateral Account shall be subject to
withdrawal only as provided in this Section and in Section 2.14.
(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 deposits, investments and reinvestments shall be
held in the name of and be under the sole dominion and control of the Agent.
Borrower irrevocably authorizes Agent to exercise any and all rights of Borrower
in respect of the Collateral Account and to give all instructions, directions
and entitlement orders in respect thereof as Agent shall deem necessary or
desirable. Agent is authorized by Borrower to file such financing statements as
Agent may deem necessary in connection with the perfection of the security
interests in the Collateral Account. Borrower agrees to do such further acts and
things, and to execute and deliver such additional documents as Agent may
reasonably request at any time in connection with the administration or
enforcement of its rights with respect to the Collateral Account. For the
purposes of the Uniform Commercial Code, Georgia shall be deemed to be the
location and jurisdiction of Agent, the Collateral Account and any securities
entitlements relating thereto. 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.
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(c) If an Event of Default shall have occurred and be continuing, the
Requisite Revolving Loan 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 Collateral Account and
apply or cause to be applied such proceeds and any other balances in the
Collateral Account for the ratable benefit of the Revolving Loan Lenders 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 10.5 PERFORMANCE BY AGENT.
If the Borrower shall fail to perform any covenant, duty or agreement
contained in any of the Loan Documents, the Agent may perform or attempt to
perform such covenant, duty or agreement on behalf of the Borrower after the
expiration of any cure or grace periods set forth herein. In such event, the
Borrower shall, at the request of the Agent, promptly pay any amount reasonably
expended by the Agent in such performance or attempted performance to the Agent,
together with interest thereon at the applicable Post-Default Rate from the date
of such expenditure until paid. Notwithstanding the foregoing, neither the Agent
nor any Lender shall have any liability or responsibility whatsoever for the
performance of any obligation of the Borrower under this Agreement or any other
Loan Document.
SECTION 10.6 RIGHTS CUMULATIVE.
The rights and remedies of the Agent and the Lenders under this Agreement and
each of the other Loan Documents shall be cumulative and not exclusive of any
rights or remedies which any of them may otherwise have under Applicable Law. In
exercising their respective rights and remedies the Agent and the Lenders may be
selective and no failure or delay by the Agent or any of the Lenders in
exercising any right shall operate as a waiver of it, nor shall any single or
partial exercise of any power or right preclude its other or further exercise or
the exercise of any other power or right.
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 or the Requisite
Revolving Loan Lenders, as applicable, in accordance with the provisions of this
Agreement or the Loan Documents, and the exercise by the Requisite Lenders or
the Requisite Revolving Loan Lenders, as applicable, of the powers set forth
herein or therein, together with such other powers as are reasonably incidental
thereto, shall be authorized and binding upon all of the Lenders. Nothing herein
(including the use of the term "Agent") 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
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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 Obligor or any other Affiliate of the Borrower or any
Obligor, 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 the Requisite Revolving Loan Lenders,
as applicable, (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. The Borrower may rely on
written amendments or waivers executed by Agent or acts taken by Agent as being
authorized by the Lenders or the Requisite Lenders, as applicable, to the extent
Agent does not advise Borrower that it has not obtained such authorization from
the Lenders or the Requisite Lenders, as applicable.
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, 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 Obligor), 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 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, except with respect to defaults in the payment
of principal, interest and fees required to be paid to Agent for the account of
the Lenders, unless the Agent has received notice from a Lender or the Borrower
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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 BANK AS LENDER.
Wachovia Bank, 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 Bank in each case in its
individual capacity. Wachovia Bank 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 Obligor 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.
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 ten (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, 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 Obligor, any of
their respective Subsidiaries 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, 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 other Obligors, and their
respective Subsidiaries, or any other Affiliate thereof, and inquiries of such
Persons, its independent due diligence of the business and affairs of the
Borrower, the Obligors, their respective 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 transaction contemplated
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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 Obligor, any of their respective
Subsidiaries 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 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 or if
the Agent fails to follow the written direction of the Requisite Lenders or the
Requisite Revolving Loan Lenders, as applicable, unless such failure is pursuant
to the reasonable advice of counsel of which the Lenders have received notice.
Without limiting the generality of the foregoing but subject to the preceding
provision, 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 reasonable counsel fees of the counsel(s) of the Agent's own
choosing) incurred by the Agent in connection with the preparation, negotiation,
execution, administration 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
written notice thereof to the Lenders and the Borrower. The Agent may be removed
as Agent under the Loan Documents as a result of its gross negligence or willful
misconduct by the Requisite Lenders (other than the Lender then acting as the
Agent). Any such removal or resignation shall also constitute Agent's
resignation as Swingline Lender and may, at such Agent's option, also constitute
its resignation as Issuing Lender.
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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 and Swingline Lender, 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 $5,000,000,000, 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 and Swingline
Lender). If no successor Agent shall have been so appointed in accordance with
the immediately preceding sentence, and shall have accepted such appointment,
within thirty (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 $5,000,000,000.
Upon the acceptance of any appointment as Agent or Swingline Lender hereunder by
a successor Agent, such successor Agent and Swingline Lender shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations under the Loan Documents as Agent and Swingline Lender.
After any Agent's resignation or removal hereunder as Agent, the provisions of
this Article XI and all provisions of this Agreement relating to Swingline Loans
shall continue to inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent or Swingline Lender under the Loan Documents.
SECTION 11.9 TITLED AGENTS.
Each of the Titled Agents in each such respective capacity, assumes no
responsibility or obligations 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 "Joint Lead Arrangers",
"Documentation Agent", "Syndication Agent" and "Senior Managing 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.
SECTION 11.10 OTHER LOANS BY LENDERS TO OBLIGORS.
The Lenders agree that one or more of them may now or hereafter have other
loans to one or more of the Obligors which are not subject to this Agreement.
The Lenders agree that the Lender(s) which may have such other loan(s) to the
Obligors may collect payments on such loan(s) and may secure such loan(s) (so
long as such loan does not itself expressly violate this Agreement). Further,
the Lenders agree that the Lender(s) which may have such other loan(s) to the
Obligors shall have no obligation to attempt to collect payments under the Loans
or Reimbursement Obligations in preference and priority over the collection
and/or enforcement of such other loan(s).
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 by hand or by
nationally-recognized overnight courier as follows:
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If to the Borrower:
Colonial Realty Limited Partnership
Xxxxxxxx Xxxxx
Xxxxx 000
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention:______________________________
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
If to the Agent:
Wachovia Bank, National Association
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
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 or sent by overnight courier, 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, execution, administration and interpretation 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 (such expenses to
include ongoing charges for Intralinks or any similar system), (b) to pay or
reimburse Wachovia Bank and Wachovia Capital Markets, LLC for their reasonable
out-of-pocket costs and expenses incurred in connection with the initial
syndication of the Loans by Wachovia Bank and Wachovia Capital Markets, LLC, (c)
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, (d) 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
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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 (e) 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.
SECTION 12.3 SETOFF.
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
and each Lender 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 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 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. Promptly following any such set-off the Agent shall
notify the Borrower thereof and of the application of such set-off, provided
that the failure to give such notice shall not invalidate such set-off.
SECTION 12.4 LITIGATION; JURISDICTION; OTHER MATTERS; WAIVERS.
(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.
(b) THE BORROWER, THE AGENT AND EACH LENDER HEREBY AGREES THAT THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, ATLANTA
DIVISION OR, AT THE OPTION OF THE AGENT, ANY STATE COURT LOCATED IN ATLANTA,
GEORGIA, 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
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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, THE TERMINATION OR
EXPIRATION OF ALL LETTERS OF CREDIT AND THE TERMINATION OF THIS AGREEMENT.
SECTION 12.5 SUCCESSORS AND ASSIGNS.
(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 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.
(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.
(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 Revolving
Loan Commitment or Term Loan Commitment, or if any of the Commitments have been
terminated, the aggregate outstanding principal balance of Revolving Notes held
by it, in an amount less than $5,000,000 or Term Loan 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 Revolving Loan Commitment or Term
Loan Commitment, as applicable, or if any of the Commitments have been
terminated, the aggregate outstanding principal balance of Revolving Notes or
Term Loan Notes, as applicable, held by it, in which it has not granted any
participating interests must be equal to $5,000,000 and integral multiples of
$1,000,000 in excess thereof. 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
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 7.12(b)). An assignment or other transfer which is not permitted
by Section 12.5(d) or (e) below
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shall be given effect for purposes of this Agreement only to the extent of a
participating interest granted in accordance with this subsection (c). The
selling Lender shall notify the Agent and the Borrower of the sale of any
participation hereunder and, if requested by the Agent, certify to the Agent
that such participation is permitted hereunder.
(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 or
delayed), 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 (x) another Lender, any
affiliate of such Lender or of 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 of a Revolving Loan Commitment or Term
Loan Commitment 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
partial assignment the assigning Lender retains a portion of the Commitment so
assigned, or if any of the Commitments have been terminated, holds Revolving
Notes or Term Loan Notes, as applicable, having an aggregate outstanding
principal balance, of at least $5,000,000 and integral multiples of $1,000,000
in excess thereof (provided, however, the conditions set forth in this
subsection (ii) shall not apply to any full assignment by any Lender of its
Revolving Loan Commitment or Term Loan Commitment); and (iii) each such
assignment shall be effected by means of an Assignment and Acceptance Agreement.
In connection with such assignment, the assignor may assign all or any portion
of its Competitive Advance Note and the Competitive Advances at the time owing
to it, which, if so assigned, shall be assigned in such proportion as the
assignor and assignee agree, but in no event shall the assignee acquire an
interest in the Competitive Advances of the assignor of less than $10,000,000;
provided, however, that in the event such assignor assigns all of its Revolving
Loan Commitment, such assignor shall assign all of its Competitive Advance Note
and Competitive Advances, if any, in connection therewith. 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.
(e) 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 Section 12.5(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.
93
(f) 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.
(g) A Lender may furnish any information concerning the Borrower, any
other Obligor or any of their respective Subsidiaries or Affiliates 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.
(h) 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 Obligor or any of their respective Affiliates or
Subsidiaries.
(i) 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.
SECTION 12.6 AMENDMENTS.
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 Obligor or any of their respective Subsidiaries 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) increase the Commitments (or any component thereof) of
the Lenders (except as contemplated by Section 2.16) 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) except as provided in Section 2.18, postpone any date fixed for
any payment of any principal of, or interest on, any Loans or any other
Obligations, or, except as provided in Section 2.4, extend the expiration date
of any Letter of Credit beyond the Revolving Loan Termination Date; (v) change
the Commitment Percentages (or any component thereof) (except as a result of any
increase in the aggregate amount of the Commitments contemplated by Section
2.16, 3.11(b) or 4.5) or amend or otherwise modify the provisions of Section
3.2; (vi) modify the definition of the term "Requisite Lenders" or "Requisite
Revolving Loan Lenders", modify in any other manner the number or percentage of
the Lenders (including all 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 if such modification would
have such effect; or (vii) release any Guarantor from its obligations under the
Guaranty (except as otherwise permitted under Section 7.12(b)). 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 2.2 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. Any amendment,
waiver or consent relating to Section 2.4 or the obligations or rights of the
94
Issuing Lender under this Agreement or any other Loan Documents shall, in
addition to the Lenders required hereinabove to take such action, require the
written consent of the Issuing 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.
SECTION 12.7 NONLIABILITY OF AGENT AND LENDERS.
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
other Obligor or any of their respective Subsidiaries. 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.
SECTION 12.8 CONFIDENTIALITY.
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 to prevent improper disclosure
(including disclosure to competitors of Borrower) 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 be notified of the obligation
to keep such information confidential in accordance with the terms of this
Section); (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 be
notified of the obligation 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 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; and (f) to the extent such information
(i) becomes publicly available other than as a result of a breach of this
Section or (ii) becomes available to the Agent or any Lender on a
nonconfidential basis from a source other than the Borrower, any other Obligor,
or any of their respective Subsidiaries or any of their respective Affiliates.
SECTION 12.9 INDEMNIFICATION.
(a) Borrower shall and hereby agrees to indemnify, defend and hold
harmless the Agent, any affiliate of the Agent and each of the Lenders and their
respective directors, officers, shareholders, agents, employees and counsel
(each referred to herein as an "Indemnified Party") from and against any and all
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 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) incurred by an Indemnified Party in
95
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 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,
the other Obligors, or their respective 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, the other Obligors and their respective 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; or (ix) any
violation or non-compliance by the Borrower, any other Obligor, or any of their
respective Subsidiaries 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, the Obligors or their respective
Subsidiaries (or their respective properties) (or the Agent and/or the Lenders
as successors to the Borrower, any other Obligor or their respective
Subsidiaries) to be in compliance with such Environmental Laws; provided,
however, that the Borrower shall not be obligated to indemnify any Indemnified
Party for any acts or omissions of such Indemnified Party that constitute gross
negligence or willful misconduct, or for liabilities of an Indemnified Party
arising as a result of a breach of such Person's obligations under the Loan
Documents as finally determined by a court of competent jurisdiction after the
expiration of all applicable appeal periods.
(b) The Borrower's indemnification obligations under this Section 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 reasonable
costs and expenses 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, any other Obligor, or any of their respective Subsidiaries, any
shareholder, partner or other equity holder of the Borrower, any other Obligor
or any of their respective Subsidiaries (whether such shareholder(s) or such
other Persons are prosecuting such Indemnity Proceeding in their individual
capacity or derivatively on behalf of such Person), any account debtor of the
Borrower, any other Obligor, or any of their respective Subsidiaries or by any
Governmental Authority.
(c) This indemnification shall apply to any Indemnity Proceeding arising
during the pendency of any bankruptcy proceeding filed by or against Borrower
and/or an Obligor or any of their respective Subsidiaries.
(d) All out-of-pocket fees and expenses of, and all amounts paid to
third-persons by, an Indemnified Party with respect to an Indemnified Proceeding
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 indemnification
hereunder.
96
(e) An Indemnified Party may conduct its own investigation and defense
of, and may formulate its own strategy with respect to, any Indemnified
Proceeding covered by this Section and, as provided above, all costs and
expenses 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 Indemnified 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.
(f) If and to the extent that the obligations of the Borrower hereunder
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 hereunder 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, the Swingline Lender
nor the Issuing Lender is obligated any longer under this Agreement to make any
Loans or issue Letters of Credit 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.
SECTION 12.12 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF GEORGIA 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.
97
SECTION 12.14 OBLIGATIONS WITH RESPECT TO OBLIGORS AND SUBSIDIARIES.
The obligations of the Borrower to direct or prohibit the taking of certain
actions by the other Obligors and the Subsidiaries of the Borrower and the other
Obligors as specified herein shall be absolute and not subject to any defense
the Borrower may have that the Borrower does not control such Obligors or
Subsidiaries.
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 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 TIME OF THE ESSENCE.
Time is of the essence with respect to each and every covenant, agreement and
obligation of the Borrower under this Agreement and the other Loan Documents.
SECTION 12.19 PATRIOT ACT.
Each Lender and the Agent (for itself and not on behalf of any Lender) hereby
notifies Borrower and Guarantors that, pursuant to the requirements of the
Patriot Act, it is required to obtain, verify and record information that
identifies Borrower and Guarantors, which information includes names and
addresses and other information that will allow such Lender or the Agent, as
applicable, to identify Borrower and Guarantors in accordance with the Patriot
Act.
SECTION 12.20 TRUSTEES NOT LIABLE FOR OBLIGATIONS OF CLP.
CLP is organized as a business trust. Its trustees shall be deemed for
purposes of this Agreement and the other Loan Documents to serve in the same
capacity as directors of a business corporation and shall have no personal
liability or obligation, by reason of their serving as such trustees, for the
obligations of CLP hereunder or thereunder.
98
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to
be executed under seal by their authorized officers all as of the day and year
first above written.
BORROWER:
COLONIAL REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Colonial Properties Trust, an
Alabama Trust, its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
[SEAL]
Address:
Colonial Plaza, Suite 750
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
[Signatures Continued on Next Page]
99
[SIGNATURE PAGE TO MARCH 2005 CREDIT AGREEMENT
WITH COLONIAL REALTY LIMITED PARTNERSHIP]
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent, as a Lender, as Swingline
Lender and as Issuing Lender
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Director
REVOLVING LOAN COMMITMENT AMOUNT:
$ 40,416,667.00
TERM LOAN COMMITMENT AMOUNT:
$ 8,083,333.00
LENDING OFFICE (ALL TYPES OF LOANS):
Wachovia Bank, National Association
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
100
[SIGNATURE PAGE TO MARCH 2005 CREDIT AGREEMENT
WITH COLONIAL REALTY LIMITED PARTNERSHIP]
BANK OF AMERICA, N.A., as a Lender
and as Syndication Agent
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
REVOLVING LOAN COMMITMENT AMOUNT:
$ 40,416,667.00
TERM LOAN COMMITMENT AMOUNT:
$ 8,803,333.00
LENDING OFFICE (ALL TYPES OF LOANS):
Bank of America, N.A.
________________________________________
________________________________________
________________________________________
________________________________________
Attention:______________________________
Telecopy Number: (___) ___-____
Telephone Number: (___) ___-____
101
[SIGNATURE PAGE TO MARCH 2005 CREDIT AGREEMENT
WITH COLONIAL REALTY LIMITED PARTNERSHIP]
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Lender and as Co-Documentation
Agent
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
REVOLVING LOAN COMMITMENT AMOUNT:
$ 37,500,000.00
TERM LOAN COMMITMENT AMOUNT:
$ 7,500,000.00
LENDING OFFICE (ALL TYPES OF LOANS):
Xxxxx Fargo Bank, National Association
0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
102
[SIGNATURE PAGE TO MARCH 2005 CREDIT AGREEMENT
WITH COLONIAL REALTY LIMITED PARTNERSHIP]
CITICORP NORTH AMERICA, INC., as a
Lender and as Co-Documentation Agent
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
REVOLVING LOAN COMMITMENT AMOUNT:
$ 37,500,000.00
TERM LOAN COMMITMENT AMOUNT:
$ 7,500,000.00
LENDING OFFICE (ALL TYPES OF LOANS):
000 Xxxxxxxxx Xx., Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
_________________________________
Attention: Xxxxx Xxxxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
103
[SIGNATURE PAGE TO MARCH 2005 CREDIT AGREEMENT
WITH COLONIAL REALTY LIMITED PARTNERSHIP]
AMSOUTH BANK, as a Lender and as
Co-Documentation Agent
By: /s/ Xxx Xxxxxxx
------------------------------
Name: Xxx Xxxxxxx
Title: Asst. Vice President
REVOLVING LOAN COMMITMENT AMOUNT:
$ 37,500,000.00
TERM LOAN COMMITMENT AMOUNT:
$ 7,500,000.00
LENDING OFFICE (ALL TYPES OF LOANS):
AmSouth Bank
0000 0xx Xxxxxx X XXX00
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
104
[SIGNATURE PAGE TO MARCH 2005 CREDIT AGREEMENT
WITH COLONIAL REALTY LIMITED PARTNERSHIP]
U.S. BANK NATIONAL ASSOCIATION, as a
Lender and as Co-Senior Managing Agent
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Commercial Banking Officer
REVOLVING LOAN COMMITMENT AMOUNT:
$ 33,333,333.00
TERM LOAN COMMITMENT AMOUNT:
$ 6,666,667.00
LENDING OFFICE (ALL TYPES OF LOANS):
U.S. Bank National Association
000 - 0xx Xxxxxx X., Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
105
[SIGNATURE PAGE TO MARCH 2005 CREDIT AGREEMENT
WITH COLONIAL REALTY LIMITED PARTNERSHIP]
PNC BANK, NATIONAL ASSOCIATION, as a
Lender and as Co-Senior Managing Agent
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
REVOLVING LOAN COMMITMENT AMOUNT:
$ 33,333,333.00
TERM LOAN COMMITMENT AMOUNT:
$ 6,666,667.00
LENDING OFFICE (ALL TYPES OF LOANS):
PNC Bank, National Association
One PNC Plaza, 249 Fifth Avenue
Mailstop: P1-XXXX-19-2
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
106
[SIGNATURE PAGE TO MARCH 2005 CREDIT AGREEMENT
WITH COLONIAL REALTY LIMITED PARTNERSHIP]
BEAR XXXXXXX CORPORATE LENDING INC.
By: /s/ Xxxxxx Xxxxxxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President
REVOLVING LOAN COMMITMENT AMOUNT:
$ 25,000,000.00
TERM LOAN COMMITMENT AMOUNT:
$ 5,000,000.00
LENDING OFFICE (ALL TYPES OF LOANS):
Bear Xxxxxxx & Co., Inc.
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
107
[SIGNATURE PAGE TO MARCH 2005 CREDIT AGREEMENT
WITH COLONIAL REALTY LIMITED PARTNERSHIP]
COMERICA BANK
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President
REVOLVING LOAN COMMITMENT AMOUNT:
$ 25,000,000.00
TERM LOAN COMMITMENT AMOUNT:
$ 5,000,000.00
LENDING OFFICE (ALL TYPES OF LOANS):
Comerica Bank
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
108
[SIGNATURE PAGE TO MARCH 2005 CREDIT AGREEMENT
WITH COLONIAL REALTY LIMITED PARTNERSHIP]
UBS LOAN FINANCE LLC
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
By: /s/ Winslowe Ogbourne
----------------------------------
Name: Winslowe Ogbourne
Title: Associate Director
REVOLVING LOAN COMMITMENT AMOUNT:
$ 25,000,000.00
TERM LOAN COMMITMENT AMOUNT:
$ 5,000,000.00
LENDING OFFICE (ALL TYPES OF LOANS):
UBS Loan Finance LLC
000 Xxxxxxxxxx Xxxxxxxxx
0 Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
109
[SIGNATURE PAGE TO MARCH 2005 CREDIT AGREEMENT
WITH COLONIAL REALTY LIMITED PARTNERSHIP]
BANK OF CHINA, NEW YORK
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Lending Officer
REVOLVING LOAN COMMITMENT AMOUNT:
$ 15,000,000.00
TERM LOAN COMMITMENT AMOUNT:
$ 3,000,000.00
LENDING OFFICE (ALL TYPES OF LOANS):
Bank of China, New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
Ext. 229/408
110
[SIGNATURE PAGE TO MARCH 2005 CREDIT AGREEMENT
WITH COLONIAL REALTY LIMITED PARTNERSHIP]
BANK HAPOALIM B.M.
By: /s/ Xxxxx Xxxxxxxxx
--------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxx
Title: First Vice President
REVOLVING LOAN COMMITMENT AMOUNT:
$ 15,000,000.00
TERM LOAN COMMITMENT AMOUNT:
$ 3,000,000.00
LENDING OFFICE (ALL TYPES OF LOANS):
Bank Hapoalim B.M.
0000 Xxxxxx xx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
111
[SIGNATURE PAGE TO MARCH 2005 CREDIT AGREEMENT
WITH COLONIAL REALTY LIMITED PARTNERSHIP]
BRANCH BANKING AND TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
REVOLVING LOAN COMMITMENT AMOUNT:
$ 15,000,000.00
TERM LOAN COMMITMENT AMOUNT:
$ 3,000,000.00
LENDING OFFICE (ALL TYPES OF LOANS):
Branch Banking and Trust Company
000 Xxxx 0xx Xxxxxx
Capital Markets, 16th Floor
Winston-Salem, North Carolina 27101
Attention: Xxxxxx Xxxxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
112
[SIGNATURE PAGE TO MARCH 2005 CREDIT AGREEMENT
WITH COLONIAL REALTY LIMITED PARTNERSHIP]
XXXXX XXX COMMERCIAL BANK, LTD.
By: /s/ Ming-Xxxxx Xxx
--------------------------
Name: Ming-Xxxxx Xxx
Title: SVP & General Manager
REVOLVING LOAN COMMITMENT AMOUNT:
$ 15,000,000.00
TERM LOAN COMMITMENT AMOUNT:
$ 3,000,000.00
LENDING OFFICE (ALL TYPES OF LOANS):
Xxxxx Xxx Commercial Bank, Ltd.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000 Ext. 28
113
[SIGNATURE PAGE TO MARCH 2005 CREDIT AGREEMENT
WITH COLONIAL REALTY LIMITED PARTNERSHIP]
JPMORGAN CHASE BANK, N.A.
By: /s/ Xxxxx X. Xxxx
--------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
REVOLVING LOAN COMMITMENT AMOUNT:
$ 15,000,000.00
TERM LOAN COMMITMENT AMOUNT:
$ 3,000,000.00
LENDING OFFICE (ALL TYPES OF LOANS):
JPMorgan Chase Bank, N.A.
000 Xxxxxx 0xx Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
114
[SIGNATURE PAGE TO MARCH 2005 CREDIT AGREEMENT
WITH COLONIAL REALTY LIMITED PARTNERSHIP]
PEOPLE'S BANK
By: /s/ Xxxxxx Xxxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
REVOLVING LOAN COMMITMENT AMOUNT:
$ 15,000,000.00
TERM LOAN COMMITMENT AMOUNT:
$ 3,000,000.00
LENDING OFFICE (ALL TYPES OF LOANS):
000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: National Credits Dept.
Attention: Xxxxxx Xxxxxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
115
[SIGNATURE PAGE TO MARCH 2005 CREDIT AGREEMENT
WITH COLONIAL REALTY LIMITED PARTNERSHIP]
UFJ BANK LIMITED
By: /s/ Xxxxx XxXxxxxx
--------------------------
Name: Xxxxx XxXxxxxx
Title: Vice President
REVOLVING LOAN COMMITMENT AMOUNT:
$ 15,000,000.00
TERM LOAN COMMITMENT AMOUNT:
$ 3,000,000.00
LENDING OFFICE (ALL TYPES OF LOANS):
UFJ Bank Limited
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx XxXxxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
116
[SIGNATURE PAGE TO MARCH 2005 CREDIT AGREEMENT
WITH COLONIAL REALTY LIMITED PARTNERSHIP]
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
By: /s/ Xxxx Xxxxxxx
--------------------------
Name: Xxxx Xxxxxxx
Title: Authorised Signatory
By: /s/ Xxxxx Xxxxx
--------------------------
Name: Xxxxx Xxxxx
Title: Authorised Signatory
REVOLVING LOAN COMMITMENT AMOUNT:
$ 15,000,000.00
TERM LOAN COMMITMENT AMOUNT:
$ 3,000,000.00
LENDING OFFICE (ALL TYPES OF LOANS):
The Governor and Company of the Bank of Ireland
Bank of Ireland Corporate
La Touche House
International Financial Services Centre
Xxxxxx Xxxxx Xxxxx
Xxxxxx 0, Xxxxxxx
Attention: Xx. Xxxxxx Xxxxx
Telecopy Number: 011 353 1 829 0129
Telephone Number: 000 000 0 000 0000
117
[SIGNATURE PAGE TO MARCH 2005 CREDIT AGREEMENT
WITH COLONIAL REALTY LIMITED PARTNERSHIP]
UNITED OVERSEAS BANK LIMITED, NEW YORK AGENCY
By: /s/ Xxxxx Yew Xxxx
--------------------------
Name: Xxxxx Yew Xxxx
Title: FVP & General Manager
By: /s/ Xxxxxx Xxxxxx
--------------------------
Name: Xxxxxx Xxxxxx
Title: VP & Deputy General Manager
REVOLVING LOAN COMMITMENT AMOUNT:
$ 15,000,000.00
TERM LOAN COMMITMENT AMOUNT:
$ 3,000,000.00
LENDING OFFICE (ALL TYPES OF LOANS):
United Overseas Bank Limited, New York Agency
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
International Financial Services Centre
Attention: Xxxxxxx Xxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000 Ext. 50
118
[SIGNATURE PAGE TO MARCH 2005 CREDIT AGREEMENT
WITH COLONIAL REALTY LIMITED PARTNERSHIP]
COMPASS BANK
By: /s/ Xxxxxxx Xxxx Xxxxx
--------------------------
Name: Xxxxxxx Xxxx Xxxxx
Title: Senior Vice President
REVOLVING LOAN COMMITMENT AMOUNT:
$ 7,500,000.00
TERM LOAN COMMITMENT AMOUNT:
$ 1,500,000.00
LENDING OFFICE (ALL TYPES OF LOANS):
Compass Bank
15th - S 20th Street, 15th Floor
Birmingham, Alabama 35233
Attention: Xx Xxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
119
[SIGNATURE PAGE TO MARCH 2005 CREDIT AGREEMENT
WITH COLONIAL REALTY LIMITED PARTNERSHIP]
FIRST COMMERCIAL BANK
By: /s/ Xxxxx X. X. Xx
--------------------------
Name: Xxxxx X. X. Xx
Title: General Manager
REVOLVING LOAN COMMITMENT AMOUNT:
$ 7,500,000.00
TERM LOAN COMMITMENT AMOUNT:
$ 1,500,000.00
LENDING OFFICE (ALL TYPES OF LOANS):
First Commercial Bank
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000 Ext. 216
120
EXHIBIT A
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
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 Credit Agreement dated
as of March 22, 2005 (as amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"), by and among Colonial Realty Limited
Partnership, a Delaware limited partnership (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 and, if required by the Credit Agreement, the Borrower
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, the following (such interest being assigned,
the "Assigned Commitment"):
Commitment
Percentage of
Assigned Facility Amount Assigned Amount Retained Interest Assigned
------------------- --------------- --------------- -----------------
Revolving Loan
Competitive Advance (N/A)
Term Loan
and all voting rights of the Assignor associated with the Assigned Commitment,
all rights to receive interest on such amount of such 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 Revolving Loan Commitment and/or
Term Loan Commitment, as set forth above, 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 Revolving Loan Commitment and/or Term Loan Commitment, as set
forth above, equal to the Assigned Commitment, which obligations shall include,
but shall not be limited to, if a
A-1
Revolving Loan Commitment is part of the Assigned Commitment, the obligation of
the Assignor to make Revolving Loans to the Borrower with respect to the
Assigned Commitment, the obligation to pay amounts due in respect of Swing Loans
as required under Section 2.2 of the Credit Agreement, the obligation to pay
amounts due in respect of draws under Letters of Credit as required under
Section 2.4 of the Credit Agreement, and in any case 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, shall be referred to hereinafter,
collectively, as the "Assigned Obligations"). 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. Unless otherwise agreed among Assignor and Assignee, amounts
outstanding under Assignor's Competitive Advance Note, if any, shall not be
assigned, provided, however, that if Assignor assigns to Assignee all of
Assignor's Revolving Loan Commitment and all of Assignor's Revolving Loans, then
Assignor shall assign all of its Competitive Advance Note and Competitive
Advances, if any, in connection therewith.
(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 other Obligor or any of
their respective Subsidiaries, (ii) any representations, warranties, statements
or information made or furnished by the Borrower, any other Obligor or any of
their respective Subsidiaries 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 collectability 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 Obligor 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 Obligor 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.
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) if applicable, the aggregate amount of payments previously made by
Assignor to fund participations in Swing Loans and Letters of Credit under
Sections 2.2 and 2.4 of the Credit Agreement which have not been repaid and
which are being assigned hereby [PLUS (iii) THE AGGREGATE PRINCIPAL
A-2
AMOUNT OF THE COMPETITIVE ADVANCES OWING TO THE ASSIGNOR UNDER THE CREDIT
AGREEMENT AND THE OTHER LOAN DOCUMENTS 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 [REVOLVING LOAN
COMMITMENT] [TERM LOAN COMMITMENT] under the Credit Agreement (without reduction
by any assignments thereof which have not yet become effective), equal to
$____________ and that the Assignor is not in default of its obligations under
the Credit Agreement; and (ii) the outstanding balance of [REVOLVING LOANS][TERM
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 TERM LOAN NOTE] [AND (c) IF THE
ENTIRE REVOLVING LOAN COMMITMENT OF ASSIGNOR IS BEING ASSIGNED, THE ASSIGNOR'S
COMPETITIVE ADVANCE 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.
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:___________________________________________
___________________________________________
___________________________________________
Telephone No.:______________________________
Telecopy No.:_______________________________
Lending Office:____________________________________________
___________________________________________
A-3
____________________________________________
Telephone No.:______________________________
Telecopy No.:_______________________________
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 retained Commitment.
Section 10. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA 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.
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 and, to the extent Borrower's approval is required under Section
12.5(d) of the Credit Agreement, the identity of the Assignee may not be changed
without the approval of Borrower; 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.
A-4
[Include this Section only if Borrower's consent is required under Section
12.5(d)
Section 17. Agreements of the Borrower. Borrower hereby agrees that the
Assignee shall be a Lender under the Credit Agreement having a Commitment equal
to the Assigned Commitment. 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, if applicable, to the Revolving Loans made after the date
hereof and, if applicable, to receive the commitment and other Fees payable to
the Revolving 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.
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 Revolving Note, Competitive Advance Note and Term Loan Note, as
applicable, as required by the Credit Agreement (subject to the Borrower's
obligations to deliver replacement Notes to the extent that Assignor is
retaining a Commitment).]
[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:
[Name of Assignor]
By: ___________________________________________
Name:__________________________________________
Title:_________________________________________
ASSIGNEE:
[NAME OF ASSIGNEE]
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
[Include signature of the Borrower only
if required under Section 12.5(d) of the
Credit Agreement]
Agreed and consented to as of the date
first written above.
BORROWER:
COLONIAL REALTY LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Colonial Properties Trust, its sole
General Partner
By: _______________________________
Name:______________________________
Title:_____________________________
[Signatures Continued on Following Page]
A-6
Accepted as of the date first written above.
AGENT:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent
By: ________________________________
Name: ______________________________
Title: _____________________________
A-7
EXHIBIT B
FORM OF COMPETITIVE ADVANCE NOTE
$____________________ _______________, 200_
FOR VALUE RECEIVED, the undersigned, COLONIAL REALTY LIMITED PARTNERSHIP, a
Delaware limited partnership (the "Borrower"), hereby promises to pay to the
order of ____________________ (the "Lender"), in care of Agent to Agent's
address at One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, or at such other address as may be specified in writing by the
Agent to the Borrower, the principal sum of ________________ AND ____/100
DOLLARS ($____________) (or such lesser amount as shall equal the aggregate
unpaid principal amount of Competitive Advances 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 Competitive Advance 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
Competitive Advance Note (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 Competitive Advances made by
the Lender.
This Note is one of the Competitive Advance Notes referred to in the Credit
Agreement dated as of March 22, 2005 (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.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF GEORGIA 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.
B-1
Time is of the essence for this Note.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Competitive Advance Note under seal as of the date first written above.
COLONIAL REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Colonial Properties Trust, its sole General
Partner
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
[SEAL]
B-2
SCHEDULE OF COMPETITIVE ADVANCES
This Note evidences Competitive Advances 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:
PRINCIPAL
DATE OF COMPETITIVE AMOUNT OF COMPETITIVE AMOUNT PAID UNPAID PRINCIPAL NOTATION
ADVANCES ADVANCES OR PREPAID AMOUNT MADE BY
------------------- --------------------- ----------- ---------------- --------
B-3
EXHIBIT C
FORM OF COMPETITIVE BID
_____________, 200___
Wachovia Bank, National Association, as Agent
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of March 22, 2005
(as amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among COLONIAL REALTY LIMITED PARTNERSHIP, a
Delaware limited partnership (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 the Competitive Bid Request from Borrower dated
______________, 200__, we hereby make the following Competitive Bid on the
following terms:
1. Lender:
2. Person to contact at Lender and telephone number:
Name:
Telephone Number:
3. Borrowing date of proposed Competitive Advance(1):
4. We hereby offer to make Competitive Advances in the following principal
amounts, for the following durations and at the following rates [INSERT
ONLY ONE APPLICABLE RATE ON EACH LINE BELOW]:
C-1
Principal Amount(2) Duration of Competitive Advance(3) Margin Over Adjusted Eurodollar Rate(4)
-------------------- ---------------------------------- ---------------------------------------
$___________________ __________________________________ ________%
$___________________ __________________________________ ________%
$___________________ __________________________________ ________%
--------------------
(1) As specified in the related Competitive Bid request.
provided that the aggregate Maximum Competitive Advance for which this offer may
be accepted shall not exceed $____________________.(5)
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Credit Agreement,
irrevocably obligate(s) us to make the Competitive Advance(s) for which any
offer(s) is (are) accepted, in whole or in part.
Very truly yours,
[Name of Lender]
By: __________________________
Name: ________________________
Title: _______________________
Date:______________________
----------------------
(2) Offers must be integral multiples of $1,000,000.
(3) As specified in the related Competitive Bid Request.
(4) As defined in the Credit Agreement.
(5) Specify aggregate limitation if the sum of the individual offers exceeds
the aggregate amount the Lender is willing to lend.
C-2
EXHIBIT D
FORM OF COMPETITIVE BID REQUEST
______________, 200__
Wachovia Bank, National Association, as Agent
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of March 22, 2005
(as amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among COLONIAL REALTY LIMITED PARTNERSHIP, a
Delaware limited partnership (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 Competitive Bids pursuant to Section 2.3(b) of the Credit Agreement for
the proposed Competitive Advance described below.
2. The Borrower requests that such Competitive Advance be made available to
the Borrower on ____________, 200_.
3. The Borrower requests that the requested Competitive Advance be in an
aggregate amount equal to $_________________,(1) and a LIBOR Loan with an
Interest Period(s) for a duration of:
[ ] 7 days
[ ] 30 days
[ ] 60 days
[ ] 90 days(2)
4. After giving effect to the requested Competitive Advance, (a) the
aggregate principal amount outstanding under the Competitive Advance Notes
(after giving effect to all amounts requested thereunder) will not exceed an
amount equal to 50% of the aggregate Revolving Loan Commitments (provided that
in connection with the purchase of a portfolio of properties having a purchase
price of not less than $100,000,000, the aggregate principal amount outstanding
under the Competitive Advance
------------------------
(1) Such amount must be $3,000,000 or a larger integral multiple of
$1,000,000.
(2) No requested Competitive Advance shall have a maturity date which exceeds
the Revolving Loan Termination Date. Up to 4 Interest Periods may be
requested, provided that there may be no more than 12 Interest Periods in
the aggregate for all Revolving Loans (including Competitive Advances). If
more than one Interest Period is selected, specify the amount of each
Competitive Advance that is requested for each Interest Period.
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Notes may be up to an amount equal to 70% of the aggregate amount of the
Revolving Loan Commitments, provided further that such increased limit shall
only be available one (1) time each calendar quarter, and the maturity of any
such Competitive Advance over an amount equal to 50% of the aggregate amount of
the Revolving Loan Commitments shall not exceed thirty (30) days), and (b) the
aggregate principal amount outstanding under the Revolving Notes (after giving
effect to all amounts requested thereunder) plus the Letter of Credit
Liabilities will not exceed the aggregate Revolving Loan Commitments.
5. The proceeds of this Competitive Advance will be used for general business
purposes.
6. The Borrower requests that the proceeds of this Competitive Advance 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 Competitive
Advance and after giving effect thereto, (a) no Default or Event of Default has
or shall have occurred and be continuing, and (b) the representations and
warranties made or deemed made by the Borrower and each other Obligor in the
Loan Documents to which any of them is a party are and shall be true and correct
in all material respects (and without regard to any qualifications limiting such
representations to knowledge or belief), 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 Competitive Advance
contained in Article V of the Credit Agreement will have been satisfied at the
time such Competitive Advances is made.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Notice of Borrowing as of the date first written above.
COLONIAL REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Colonial Properties Trust, its sole
General Partner
By: __________________________________
Name: ________________________________
Title: _______________________________
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EXHIBIT E
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement") is entered into as of the 22nd
day of March, 2005, by and among COLONIAL REALTY LIMITED PARTNERSHIP, a Delaware
limited partnership (the "Borrower"), and the parties executing this agreement
as Guarantors (such parties are hereinafter referred to collectively as the
"Guarantors"; the Borrower and the Guarantors are sometimes hereinafter referred
to individually as a "Contributing Party" and collective as the "Contributing
Parties").
WHEREAS, pursuant to that certain Credit Agreement dated as of March 22,
2005, among Borrower, the Lenders a party thereto and Wachovia Bank, National
Association, as Agent (such agreement, as the same may have been or may from
time to time be amended, modified, restated or extended, being hereinafter
referred to as the "Credit Agreement"), the Lenders have agreed to extend
financial accommodations to the Borrower;
WHEREAS, as a condition to the execution of the Credit Agreement, the Lenders
have required that Guarantors execute and deliver that certain Guaranty, dated
of even date herewith (such agreement, as the same may have been or may from
time to time be amended, modified, restated or extended, being hereinafter
referred to as the "Guaranty");
WHEREAS, pursuant to the Guaranty, Guarantors have jointly and severally
agreed to guarantee the obligations described in the Guaranty (the "Guaranteed
Obligations");
WHEREAS, either (i) Borrower is the owner, directly or indirectly, of at
least a majority of the issued and outstanding Equity Interests in each
Guarantor, or (ii) each Guarantor is the owner, directly or indirectly of a
substantial amount of the Equity Interests in Borrower;
WHEREAS, the Borrower and each of the Guarantors, though separate legal
entities, are mutually dependent upon each other in the conduct of their
respective businesses as an integrated operation and have determined it to be in
their mutual best interest to obtain financing from the Agent and the Lenders
through their collective efforts; and
WHEREAS, Borrower and Guarantors will derive substantial direct or indirect
economic benefit from the effectiveness and existence of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, and to induce the Borrower to enter into the Credit
Agreement and the Guarantors to enter into the Guaranty, it is agreed as
follows:
1. Definitions. Capitalized terms used herein that are not otherwise
defined herein shall have the meanings ascribed thereto in the Credit Agreement.
2. Contribution. To the extent that a Contributing Party shall, under the
Guaranty, make a payment (a "Guarantor Payment") of a portion of the Guaranteed
Obligations, then such Guarantor shall be entitled to contribution and
indemnification from, and be reimbursed by, the other Contributing Parties in an
amount equal to the amount derived by subtracting from any such Guarantor
Payment the "Allocable Amount" (as defined herein) of such Contributing Party;
provided, however, that no Contributing Party shall be liable hereunder for
contribution, indemnification, subrogation or reimbursement with respect to any
Guarantor Payment for any amounts in excess of the "Allocable Amount" (as
defined herein) for such Contributing Party.
As of any date of determination, the "Allocable Amount" of each Contributing
Party shall be equal to the maximum amount of liability which could be asserted
against such Contributing Party hereunder with respect to the applicable
Guarantor Payment without (i) rendering such Contributing Party "insolvent"
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within the meaning of Section 101(32) of the Federal Bankruptcy Code (the
"Bankruptcy Code") or Section 2 of either the Uniform Fraudulent Transfer Act
(the "UFTA") or the Uniform Fraudulent Conveyance Act (the "UFCA") or the
fraudulent conveyance and transfer laws of the State of Georgia or such other
jurisdiction whose laws shall be determined to apply to the transactions
contemplated by this Agreement (the "Applicable State Fraudulent Conveyance
Laws"), (ii) leaving such Contributing Party with unreasonably small capital,
within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the
UFTA or Section 5 of the UFCA or the Applicable State Fraudulent Conveyance
Laws, or (iii) leaving such Contributing Party unable to pay its debts as they
become due within the meaning of Section 548 of the Bankruptcy Code or Section 4
of the UFTA or Section 6 of the UFCA or the Applicable State Fraudulent
Conveyance Laws.
3. No Impairment. This Agreement is intended only to define the relative
rights of the Contributing Parties, and nothing set forth in this Agreement is
intended to or shall reduce or impair the obligations of the Guarantors to pay
any amounts, as and when the same shall become due and payable in accordance
with the terms of the Guaranty. The parties hereto acknowledge that the rights
of contribution and indemnification hereunder shall constitute assets in favor
of Guarantors to which such contribution and indemnification is owing.
4. Effectiveness. This Agreement shall become effective upon its execution
by each of the parties hereto and shall continue in full force and effect and
may not be amended, terminated or otherwise revoked by any Contributing Party
until all of the Guaranteed Obligations shall have been indefeasibly paid in
full (in lawful money of the United States of America) and discharged and the
Credit Agreement and financing arrangements evidenced and governed by the Credit
Agreement shall have been terminated, except as to any Guarantor upon its
release from the Guaranty under the terms of the Credit Agreement or as approved
by all of the Lenders. Each Contributing Party agrees that if, notwithstanding
the foregoing, such Contributing Party shall have any right under applicable law
to terminate or revoke this Agreement, and such Contributing Party shall attempt
to exercise such right, then such termination or revocation shall not be
effective until a written notice of such revocation or termination, specifically
referring hereto and signed by such Contributing Party, is actually received by
each of the other Contributing Parties and by the Agent at its notice address
set forth in the Credit Agreement. Such notice shall not affect the right or
power of any Contributing Party to enforce rights arising prior to receipt of
such written notice by each of the other Contributing Parties and the Agent. If
any Lender or the Agent grants additional loans or financial accommodations to
Borrower or takes other action giving rise to additional Guaranteed Obligations
after any Contributing Party has exercised any right to terminate or revoke this
Agreement but before the Agent receives such written notice, the rights of the
other Contributing Parties to contribution and indemnification hereunder in
connection with any Guarantor Payments made with respect to such loans or
Guaranteed Obligations shall be the same as if such termination or revocation
had not occurred.
5. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia (without giving effect to the
conflict of laws rules of any jurisdiction).
6. Third Party Beneficiary. The Contributing Parties agree that Agent has
a valid interest in the terms of this Agreement pursuant to the Credit Agreement
and Guaranty. The Contributing Parties further agree that until all obligations
of the Contributing Parties under the Credit Agreement and Guaranty are fully
performed and the obligations of the Lenders to extend Loans and issue Letters
of Credit has terminated, Agent shall be an express third party beneficiary of
this Agreement with the right to enforce the terms and provisions hereof.
7. Counterparts. This Agreement and any amendment hereof may be executed
in several counterparts and by each party on a separate counterpart, each of
which when so executed and delivered
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shall be an original, and all of which together shall constitute one instrument.
In proving the Agreement it shall not be necessary to produce or account for
more than one such counterpart signed by the party against whom enforcement is
sought.
IN WITNESS WHEREOF, each party has executed and delivered this Agreement,
under seal, as of the date first above written.
BORROWER:
COLONIAL REALTY LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Colonial Properties Trust, its sole
General Partner
By: __________________________________
Name: ________________________________
Title: _______________________________
[SEAL]
GUARANTORS:
COLONIAL PROPERTIES TRUST, an Alabama
trust
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
[SEAL]
[INSERT OTHER GUARANTORS]
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EXHIBIT F
FORM OF GUARANTY
THIS GUARANTY dated as of March 22, 2005, 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 a Joinder Agreement (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 Credit
Agreement dated as of March 22, 2005 (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), by and among
COLONIAL REALTY LIMITED PARTNERSHIP, a Delaware limited partnership (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, the Issuing Lender and the Swingline Lender (the parties
described in (a) and (b) are hereinafter referred to collectively as the "Credit
Parties").
WHEREAS, pursuant to the Credit Agreement, the Credit Parties have agreed to
make available to the Borrower certain financial accommodations on the terms and
conditions set forth in the Credit Agreement;
WHEREAS, either (i) Borrower is the owner, directly or indirectly, of at
least a majority of the issued and outstanding Equity Interests in each
Guarantor, or (ii) each Guarantor is the owner, directly or indirectly of a
substantial amount of the Equity Interests in Borrower;
WHEREAS, the Borrower and each of the Guarantors, though separate legal
entities, are mutually dependent upon 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 Credit Parties through
their collective efforts;
WHEREAS, each Guarantor acknowledges that it will receive direct and indirect
benefits from the Credit Parties 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 Credit Parties on the
terms and conditions contained herein; and
WHEREAS, each Guarantor's execution and delivery of this Guaranty is a
condition to the Credit Parties 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 Credit Party under or
in connection with the Credit Agreement and any other Loan Document, including
without limitation, the repayment of all principal of the Term Loans, the
Revolving Loans, Swingline Loans, Competitive Advances and the Reimbursement
Obligations, and the payment of all interest, Fees, charges, attorneys' fees and
other amounts payable to any Credit Party 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 Credit Parties 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
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the Credit Parties 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 Borrower, any other Guarantor or any other Person or commence any suit
or other proceeding against 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 Borrower, any other Guarantor or any other Person; or (c) to make
demand of Borrower, any other Guarantor or any other Person or to enforce or
seek to enforce or realize upon any collateral security held by a Credit Party
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
Credit Parties 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;
(c) any furnishing to a Credit Party 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
Obligor;
(e) any act or failure to act by Borrower, any other Obligor or any other
Person which may adversely affect such Guarantor's subrogation rights, if any,
against Borrower to recover payments made under this Guaranty;
(f) any nonperfection or impairment of any security interest or other Lien
on any collateral, if any, securing in any way any of the Obligations;
(g) any application of sums paid by the Borrower, any other Guarantor or
any other Person with respect to the liabilities of the Credit Parties,
regardless of what liabilities of the Borrower remain unpaid;
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(h) any statute of limitations in any action hereunder or for the
collection of the Notes or the Reimbursement Obligations or for the payment or
performance of the Guarantied Obligations;
(i) the incapacity or lack of authority of Borrower or any other person or
entity, or the failure of any Credit Party to file or enforce a claim against
the estate (either in administration, bankruptcy or in any other proceeding) of
Borrower or any Guarantor or any other person or entity;
(j) the dissolution or termination of existence of Borrower, any Guarantor
or any other Person;
(k) the voluntary or involuntary liquidation, sale or other disposition of
all or substantially all of the assets of Borrower or any other Person;
(l) the voluntary or involuntary receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, assignment,
composition, or readjustment of, or any similar proceeding affecting, Borrower
or any Guarantor or any other person, or any of Borrower's or any Guarantor's or
any other Person's or entity's properties or assets;
(m) the damage, destruction, condemnation, foreclosure or surrender of all
or any part of any Property or any of the improvements located thereon;
(n) the failure of a Credit Party to give notice of the existence,
creation or incurring of any new or additional indebtedness or obligation or of
any action or nonaction on the part of any other person whomsoever in connection
with any Guarantied Obligation;
(o) any failure or delay of a Credit Party to commence an action against
Borrower or any other Person, to assert or enforce any remedies against Borrower
under the Notes or the Loan Documents, or to realize upon any security;
(p) any failure of any duty on the part of a Credit Party to disclose to
any Guarantor any facts it may now or hereafter know regarding Borrower, any
other Person or the Properties or any of the improvements located thereon,
whether such facts materially increase the risk to Guarantors or not;
(q) failure to accept or give notice of acceptance of this Guaranty by the
Credit Parties;
(r) failure to make or give notice of presentment and demand for payment
of any of the indebtedness or performance of any of the Guarantied Obligations;
(s) failure to make or give protest and notice of dishonor or of default
to Guarantors or to any other party with respect to the indebtedness or
performance of the Guarantied Obligations;
(t) except as otherwise specifically provided in this Guaranty, any and
all other notices whatsoever to which Guarantors might otherwise be entitled;
(u) any lack of diligence by the Credit Parties in collection, protection
or realization upon any collateral securing the payment of the indebtedness or
performance of the Guaranteed Obligations;
(v) the compromise, settlement, release or termination of any or all of
the obligations of Borrower under the Notes or the Loan Documents;
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(w) any transfer by Borrower or any other Person of all or any part of the
security encumbered by the Loan Documents; or
(x) to the fullest extent permitted by law, any other legal, equitable or
surety defenses whatsoever to which Guarantors might otherwise be entitled or
any other circumstances which might otherwise constitute a discharge of a
Guarantor (other than indefeasible payment in full or as to a Guarantor, a
release of such Guarantor pursuant to and as provided in the Credit Agreement or
as approved by all of the Lenders), it being the intention that the obligations
of Guarantors hereunder are absolute, unconditional and irrevocable.
Section 4. Action with Respect to Guarantied Obligations. The Credit
Parties 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 Obligor 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 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 Agent shall elect.
Section 5. Representations and Warranties. Each Guarantor hereby makes to
the Credit Parties 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.
Section 6. Covenants. Each Guarantor will perform and comply with all
covenants applicable to such Guarantor, or which the Borrower is required to
cause such Guarantor to comply with under the terms of the Credit Agreement or
any of the other Loan Documents as if the same were more fully set forth herein.
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. Reinstatement of Guarantied Obligations. If a claim is ever
made on a Credit Party for repayment or recovery of any amount or amounts
received in payment or on account of any of the Guarantied Obligations, and such
Credit Party 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 such Credit
Party with any such claimant (including Borrower or a trustee in bankruptcy for
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, any release herefrom, 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 Credit Parties for the amounts so repaid or recovered to the same extent as
if such amount had never originally been paid to such Credit Party.
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Section 9. No Contest with Credit Parties; Subordination. So long as any
Guarantied Obligation remains unpaid or undischarged, Guarantors will not, by
paying any sum recoverable hereunder (whether or not demanded by any Credit
Party) or by any means or on any other ground, claim any set-off or counterclaim
against Borrower in respect of any liability of Guarantors to Borrower or, in
proceedings under federal bankruptcy law or insolvency proceedings of any
nature, prove in competition with any Credit Party in respect of any payment
hereunder or be entitled to have the benefit of any counterclaim or proof of
claim or dividend or payment by or on behalf of Borrower or the benefit of any
other security for any obligation hereby guaranteed which, now or hereafter, any
Credit Party may hold or in which it may have any share. Except as expressly
provided in the Contribution Agreement, Guarantors hereby expressly waive any
right of contribution from or indemnity against Borrower, whether at law or in
equity, arising from any payments made by Guarantors pursuant to the terms of
this Guaranty, and Guarantors acknowledge that Guarantors have no right
whatsoever to proceed against Borrower for reimbursement of any such payments.
In connection with the foregoing, Guarantors expressly waive any and all rights
of subrogation to the Credit Parties against Borrower, and Guarantors hereby
waive any rights to enforce any remedy which a Credit Party may have against
Borrower and any rights to participate in any collateral for Borrower's
obligations under the Loan Documents. Guarantors hereby subordinate any and all
indebtedness of Borrower now or hereafter owed to Guarantors to all indebtedness
of Borrower to the Credit Parties, and agree with the Credit Parties that (a)
Guarantors shall not demand or accept any payment from Borrower on account of
such indebtedness, provided that, without modifying any limitations on
Indebtedness in the Credit Agreement, Guarantor shall be entitled to receive and
retain payments of indebtedness made from Borrower to Guarantor so long as no
Default or Event of Default shall exist at the time of such payment and no
Default or Event of Default shall occur as a result of any such payment, (b)
Guarantors shall not claim any offset or other reduction of Guarantors'
obligations hereunder because of any such indebtedness, and (c) Guarantors shall
not take any action to obtain any interest in any of the security described in
and encumbered by the Loan Documents because of any such indebtedness; provided,
however, that, if a Credit Party so requests, such indebtedness shall be
collected, enforced and received by Guarantors as trustee for the Credit Parties
and be paid over to the Credit Parties on account of the indebtedness of
Borrower to the Credit Parties, but without reducing or affecting in any manner
the liability of Guarantors under the other provisions of this Guaranty except
to the extent the principal amount of such outstanding indebtedness shall have
been reduced by such payment.
Section 10. 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 Credit Parties such
additional amount as will result in the receipt by the Credit Parties of the
full amount payable hereunder had such deduction or withholding not occurred or
been required.
Section 11. 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 Credit
Parties, 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 Credit Party other than the Agent
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 such Credit Party or any affiliate of
such Credit Party, 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. Promptly following any such set-off, the Agent
shall notify the applicable Guarantor thereof
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and of the application of such set-off, provided that the failure to give such
notice shall not invalidate such set-off.
Section 12. Business Failure, Bankruptcy or Insolvency. In the event of
the business failure of any Guarantor or if there shall be pending any
bankruptcy or insolvency case or proceeding with respect to any Guarantor under
federal bankruptcy law or any other applicable law or in connection with the
insolvency of any Guarantor, or if a liquidator, receiver, or trustee shall have
been appointed for any Guarantor or any Guarantor's properties or assets, the
Credit Parties may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of such Person allowed
in any proceedings relative to such Guarantor, or any of such Guarantor's
properties or assets, and, irrespective of whether the indebtedness or other
obligations of Borrower guaranteed hereby shall then be due and payable, by
declaration or otherwise, the Credit Parties shall be entitled and empowered to
file and prove a claim for the whole amount of any sums or sums owing with
respect to the indebtedness or other obligations of Borrower guaranteed hereby,
and to collect and receive any moneys or other property payable or deliverable
on any such claim. Guarantors covenant and agree that upon the commencement of a
voluntary or involuntary bankruptcy proceeding by or against Borrower,
Guarantors shall not seek a supplemental stay or otherwise pursuant to 11 U.S.C.
Section 105 or any other provision of the Bankruptcy Reform Act of 1978, as
amended (the "Bankruptcy Code"), or any other debtor relief law (whether
statutory, common law, case law, or otherwise) of any jurisdiction whatsoever,
now or hereafter in effect, which may be or become applicable, to stay,
interdict, condition, reduce or inhibit the ability of the Credit Parties to
enforce any rights of such Person against Guarantors by virtue of this Guaranty
or otherwise. If a Credit Party is 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 Credit Parties 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.
Section 13. Additional Guarantors; Release of Guarantors. Section 7.12 of
the Credit Agreement provides that certain Subsidiaries must become Guarantors
by, among other things, executing and delivering to Agent a Joinder Agreement.
Any Subsidiary which executes and delivers to the Agent a Joinder Agreement
shall be a Guarantor for all purposes hereunder. Under certain circumstances
described in Section 7.12(b) of the Credit Agreement, certain Subsidiaries may
obtain from the Agent a written release from this Guaranty pursuant to the
provisions of such section, and upon obtaining such written release, any such
Subsidiary shall no longer be a Guarantor hereunder. Each other Guarantor
consents and agrees to any such release and agrees that no such release shall
affect its obligations hereunder.
Section 14. 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 Credit Parties shall have any duty whatsoever to advise any
Guarantor of information regarding such circumstances or risks.
Section 15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 16. WAIVER OF JURY TRIAL.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN
OR AMONG ANY GUARANTOR, THE AGENT OR ANY OTHER
F-6
CREDIT PARTY 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 CREDIT PARTIES 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 ACTION OR DISPUTE WHATSOEVER
BETWEEN OR AMONG THE BORROWER, THE AGENT OR ANY OTHER CREDIT PARTY OF ANY KIND
OR NATURE.
(b) EACH OF THE GUARANTORS, THE AGENT AND EACH OTHER CREDIT PARTY HEREBY
AGREES THAT THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
GEORGIA, ATLANTA DIVISION OR, AT THE OPTION OF THE AGENT, ANY STATE COURT
LOCATED IN ATLANTA, GEORGIA, SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY
CLAIMS OR DISPUTES BETWEEN OR AMONG ANY GUARANTOR, THE AGENT OR ANY OTHER CREDIT
PARTY, 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 CREDIT PARTY 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 OTHER CREDIT PARTY OR THE ENFORCEMENT BY THE AGENT OR ANY OTHER
CREDIT PARTY 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 17. Loan Accounts. Each Credit Party 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 prima facie evidence of the amounts and other matters set forth
herein. The failure of a Credit Party to maintain such books and accounts shall
not in any way relieve or discharge any Guarantor of any of its obligations
hereunder.
Section 18. Waiver of Remedies. No delay or failure on the part of a
Credit Party 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 a Credit Party of any such right or remedy shall
preclude any other or further exercise thereof or the exercise of any other such
right or remedy.
Section 19. Termination. This Guaranty shall remain in full force and
effect until indefeasible payment in full of the Guarantied Obligations, the
cancellation of all Letters of Credit and the
F-7
other Obligations and the termination or cancellation of the Credit Agreement in
accordance with its terms.
Section 20. Successors and Assigns. Each reference herein to the Agent or
the other Credit Parties shall be deemed to include such Person's respective
successors and assigns 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 permitted successors and assigns, upon whom this Guaranty also
shall be binding. The Lenders, the Issuing Lender 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 21. 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 22. 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 23. 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 24. 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, the Issuing 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.
Section 25. 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 26. Headings. Section headings used in this Guaranty are for
convenience only and shall not affect the construction of this Guaranty.
Section 27. Limitation of Liability.
Neither the Agent, any other Credit Party nor any affiliate, officer,
director, employee, attorney, or agent of such Persons, shall have any liability
with respect to, and each Guarantor hereby waives,
F-8
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, any other Credit Party or any of such Person'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.
Section 28. Definitions.
Capitalized terms used herein that are not otherwise defined herein shall have
the meanings given them in the Credit Agreement.
[Signatures Begin on Next Page]
F-9
IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this
Guaranty under seal as of the date and year first written above.
GUARANTORS:
COLONIAL PROPERTIES TRUST, an Alabama
trust
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
[SEAL]
[INSERT OTHER GUARANTORS]
F-10
EXHIBIT G
FORM OF JOINDER AGREEMENT
THIS JOINDER AGREEMENT dated as of ____________, ____, executed and delivered
by ______________________, a _____________ (the "New Subsidiary"), in favor of
(a) WACHOVIA BANK, NATIONAL ASSOCIATION, in its capacity as Agent (the "Agent")
for the Lenders under that certain Credit Agreement dated as of March 22, 2005
(as amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among COLONIAL REALTY LIMITED PARTNERSHIP, a
Delaware limited partnership (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, the Issuing Lender
and the Swingline Lender (the parties described in (a) and (b) above are
hereinafter referred to collectively as the "Credit Parties").
WHEREAS, pursuant to the Credit Agreement, the Credit Parties have agreed to
make available to the Borrower certain financial accommodations on the terms and
conditions set forth in the Credit Agreement;
WHEREAS, Borrower owns, directly or indirectly, at least a majority of the
issued and outstanding Equity Interests in the New Subsidiary;
WHEREAS, the Borrower, the New Subsidiary, and the existing Guarantors,
though separate legal entities, are mutually dependent upon 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
Credit Parties through their collective efforts;
WHEREAS, the New Subsidiary acknowledges that it will receive direct and
indirect benefits from the Credit Parties making such financial accommodations
available to the Borrower under the Credit Agreement and, accordingly, the New
Subsidiary is willing to guarantee the Borrower's obligations to the Credit
Parties on the terms and conditions contained herein; and
WHEREAS, the New Subsidiary's execution and delivery of this Agreement is a
condition to the Credit Parties 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 the New Subsidiary, the New
Subsidiary agrees as follows:
Section 29. Joinder to Guaranty. The New Subsidiary hereby agrees that it
is a "Guarantor" under that certain Guaranty dated as of March 22, 2005 (as
amended, supplemented, restated or otherwise modified from time to time, the
"Guaranty"), made by Colonial Properties Trust, an Alabama trust, and each other
Person a party thereto in favor of the Credit Parties and assumes all
obligations, representations, warranties, covenants, terms, conditions, duties
and waivers of a "Guarantor" thereunder, all as if the New Subsidiary had been
an original signatory to the Guaranty. Without limiting the generality of the
foregoing, the New Subsidiary hereby:
(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);
(b) makes to the Credit Parties 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
(c) consents and agrees to each provision set forth in the Guaranty.
G-1
Section 30. Joinder to Contribution Agreement. The New Subsidiary hereby
agrees that it is a "Guarantor" under that certain Contribution Agreement dated
as of March 22, 2005 (as amended, supplemented, restated or otherwise modified
from time to time, the "Contribution Agreement"), made by the Borrower and the
other Persons a party thereto and assumes all obligations, representations,
warranties, covenants, terms, conditions, duties and waivers of a "Guarantor"
thereunder, all as if the New Subsidiary had been an original signatory to the
Contribution Agreement. Without limiting the generality of the foregoing, the
New Subsidiary hereby agrees to be bound by each of the covenants contained in
the Contribution Agreement, and consents and agrees to each provision set forth
in the Contribution Agreement.
Section 31. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 32. Further Assurances. The New Subsidiary agrees to execute and
deliver such other instruments and documents and take such other action, as the
Agent may reasonably request, in connection with the transactions contemplated
by this Joinder Agreement.
Section 33. Definitions. Capitalized terms used herein and not otherwise
defined herein shall have their respective defined meanings given them in the
Credit Agreement.
(Signatures on next Page)
G-2
IN WITNESS WHEREOF, the New Subsidiary has caused this Joinder Agreement to
be duly executed and delivered under seal by its duly authorized officers as of
the date first written above.
[NEW SUBSIDIARY]
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
[SEAL]
Address for Notices:
x/x Xxxxxxxx Xxxxxxxxxx Xxxxx
Xxxxxxxx Xxxxx, Xxxxx 000
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: _______________________________
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
Accepted:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent
By: __________________________________
Name: ________________________________
Title: _______________________________
G-3
EXHIBIT H-1
NOTICE OF BORROWING
(Revolving Loans)
___________, 200__
Wachovia Bank, National Association,
as Agent
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Gentlemen:
Reference is made to that certain Credit Agreement (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement")
dated as of March 22, 2005, among Colonial Realty Limited Partnership (the
"Borrower"), the financial institutions a party thereto and their assignees
under Section 12.5 thereof (the "Lenders"), Wachovia Bank, National Association,
as Agent ("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. Borrower hereby requests that the Revolving Loan Lenders
make Revolving Loans to the Borrower pursuant to Section 2.1(b) of the Credit
Agreement in the amount of $__________ [minimum of $1,000,000.00 and in
multiples of $250,000.00 for Base Rate Loans; minimum of $5,000,000.00 and in
multiples of $500,000.00 for LIBOR Loans].
Aggregate Revolving Loan Commitments $500,000,000.00
Less the amount of all outstanding Revolving Loans ($_____________)
Less the aggregate amount of all Letter of Credit Liabilities ($_____________)
Less outstanding Swingline Loans ($_____________)
Less outstanding Competitive Advances ($_____________)
Available amount $_____________
Less amount requested ($_____________)
Amount remaining to be advanced $_____________
The advance is to be made as follows:
A. Base Rate Loan:
1. Amount of Base Rate Loan: $_____________
2. Proposed Date of Base Rate Loan _____________
B. LIBOR Loan:
1. Amount of LIBOR Loan: $_____________
2. Number of LIBOR Loans now in effect: [cannot exceed 12] $_____________
H-1 - Page 1
3. Proposed Date of new LIBOR Loan: $_____________
4. Interest Period for new LIBOR Loan: [CHECK ONE BOX ONLY]
[ ] 7 days
[ ] 14 days
[ ] 30 days
[ ] 60 days
[ ] 90 days
[ ] 180 days
The proceeds of this borrowing of Revolving Loans will be used for general
business purposes.
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 has or shall
have occurred and be continuing, and (b) the representations and warranties made
or deemed made by the Borrower and each other Obligor in the Loan Documents to
which any of them is a party are and shall be true and correct in all material
respects (and without regard to any qualifications limiting such representations
to knowledge or belief), 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.
Sincerely,
COLONIAL REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Colonial Properties Trust, its sole
General Partner
By: __________________________________
Name: ________________________________
Title: _______________________________
H-1 - Page 2
EXHIBIT H-2
NOTICE OF BORROWING
(Term Loan)
___________, 200__
Wachovia Bank, National Association,
as Agent
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Gentlemen:
Reference is made to that certain Credit Agreement (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement")
dated as of March 22, 2005, among Colonial Realty Limited Partnership (the
"Borrower"), the financial institutions a party thereto and their assignees
under Section 12.5 thereof (the "Lenders"), Wachovia Bank, National Association,
as Agent ("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. Borrower hereby requests that the Term Loan Lenders make
the Term Loan to the Borrower pursuant to Section 2.5(b) of the Credit Agreement
in the amount of $__________.
A. Base Rate Loan:
1. Amount of Base Rate Loan: $_____________
2. Proposed Date of Base Rate Loan _____________
B. LIBOR Loan:
1. Amount of LIBOR Loan: $_____________
2. Proposed Date of new LIBOR Loan: $_____________
[CHECK ONE BOX ONLY]
3. Interest Period for new LIBOR Loan: [ ] 7 days
[ ] 14 days
[ ] 30 days
[ ] 60 days
[ ] 90 days
[ ] 180 days
The proceeds of this borrowing of the Term Loan will be used for general
business purposes.
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 Term Loan and
after giving effect thereto, (a) no Default or Event of Default has or shall
have occurred and be continuing, and (b) the representations and warranties made
or deemed made by the Borrower and each other Obligor in the Loan Documents to
which any of them is a party are and shall be true and correct in all material
respects (and without regard to any qualifications
H-2 - Page 1
limiting such representations to knowledge or belief), 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 Term Loan
contained in Article V of the Credit Agreement will have been satisfied at the
time such Term Loan is made.
If notice of the requested borrowing of Term Loan was previously given by
telephone, this notice is to be considered the written confirmation of such
telephone notice required by Section 2.5(b) of the Credit Agreement.
Sincerely,
COLONIAL REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Colonial Properties Trust, its sole
General Partner
By: ________________________________
Name: ______________________________
Title: _____________________________
H-2 - Page 2
EXHIBIT I
FORM OF NOTICE OF CONTINUATION
____________, 200_
Wachovia Bank, National Association, as Agent
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of March 22, 2005
(as amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Colonial Realty Limited Partnership (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 Continuation of a borrowing of Revolving Loans or Term Loans, as
applicable, as LIBOR 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:
A. Revolving Loans:
1. The proposed date of such Continuation is ____________, _____.
2. The aggregate principal amount of Revolving 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 Revolving Loans subject to
such Continuation ends on ________________, 200_.
5. The duration of the new Interest Period for each of such Revolving
Loans or portion thereof subject to such Continuation is:
I-1
Interest Period
[ ] 7 days [check one box only]
[ ] 14 days
[ ] 30 days
[ ] 60 days
[ ] 90 days
[ ] 180 days(1)
B. Term Loans:
6. The proposed date of such Continuation is ____________, _____.
7. The aggregate principal amount of Term Loans subject to the requested
Continuation is $________________________ and was originally borrowed by the
Borrower on ____________, 200_.
8. The portion of such principal amount subject to such Continuation is
$__________________________.
9. The current Interest Period for each of the Term Loans subject to such
Continuation ends on ________________, 200_.
10. The duration of the new Interest Period for each of such Term Loans or
portion thereof subject to such Continuation is:
Interest Period
[ ] 7 days [check one box only]
[ ] 14 days
[ ] 30 days
[ ] 60 days
[ ] 90 days
[ ] 180 days(2)
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 has or shall
have occurred and be continuing.
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 2.10 of the Credit Agreement.
---------------------
(1) If more than one Interest Period is desired, indicate the principal
amount of the Revolving Loans requested for each Interest Period.
(2) If more than one Interest Period is desired, indicate the principal
amount of the Term Loans requested for each Interest Period.
I-2
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Notice of Continuation as of the date first written above.
COLONIAL REALTY LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Colonial Properties Trust, its sole
General Partner
By: _________________________________
Name: _______________________________
Title: ______________________________
I-3
EXHIBIT J
FORM OF NOTICE OF CONVERSION
____________, 200_
Wachovia Bank, National Association, as Agent
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of March 22, 2005
(as amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among Colonial Realty Limited Partnership (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 2.11 of the Credit Agreement, the Borrower hereby
requests a Conversion of a borrowing of Revolving Loans or Term Loans of one
Type into Revolving Loans or Term Loans, respectively, 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:
A. Revolving Loans:
11. The proposed date of such Conversion is ______________, 200_.
12. The Revolving Loans to be Converted pursuant hereto are CURRENTLY:
[CHECK ONE BOX ONLY] [ ] Base Rate Loans
[ ] LIBOR Loans
13. The aggregate principal amount of Revolving Loans subject to the
requested Conversion is $_____________________ and was originally borrowed by
the Borrowers on ____________, 200_.
14. The portion of such principal amount subject to such Conversion is
$___________________.
15. The amount of such Revolving Loans to be so Converted is to be
converted into Revolving Loans of the following Type:
[CHECK ONE BOX ONLY]
[ ] Base Rate Loans
[ ] LIBOR Loans, each with an initial Interest Period for a
duration of:
J-1
Interest Period
[ ] 7 days [check one box only]
[ ] 14 days
[ ] 30 days
[ ] 60 days
[ ] 90 days
[ ] 180 days(1)
B. Term Loans:
16. The proposed date of such Conversion is ______________, 200_.
17. The Term Loans to be Converted pursuant hereto are CURRENTLY:
[CHECK ONE BOX ONLY] [ ] Base Rate Loans
[ ] LIBOR Loans
18. The aggregate principal amount of Term Loans subject to the
requested Conversion is $_____________________ and was originally borrowed by
the Borrowers on ____________, 200_.
19. The portion of such principal amount subject to such Conversion is
$___________________.
20. The amount of such Term Loans to be so Converted is to be converted
into Term Loans of the following Type:
[CHECK ONE BOX ONLY]
[ ] Base Rate Loans
[ ] LIBOR Loans, each with an initial Interest Period for a
duration of:
Interest Period
[ ] 7 days [check one box only]
[ ] 14 days
[ ] 30 days
[ ] 60 days
[ ] 90 days
[ ] 180 days(2)
---------------------------
(1) If more than one Interest Period is desired, indicate the principal
amount of the Revolving Loan requested for each Interest Period.
(2) If more than one Interest Period is desired, indicate the principal
amount of the Term Loan requested for each Interest Period.
J-2
The Borrowers hereby certify 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 no Default or Event of Default has or shall have occurred and be
continuing.
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 2.11 of the Credit Agreement.
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Notice of Conversion as of the date first written above.
COLONIAL REALTY LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Colonial Properties Trust, its sole
General Partner
By: _______________________________
Name: _____________________________
Title: ____________________________
J-3
EXHIBIT K
FORM OF NOTICE OF SWINGLINE BORROWING
____________, _____
Wachovia Bank, National Association, as Agent
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of March 22, 2005
(as amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among COLONIAL REALTY LIMITED PARTNERSHIP, a
Delaware limited partnership (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.
21. Pursuant to Section 2.2(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 $___________________.
22. The Borrower requests that such Swingline Loan be made available to
the Borrower on ____________, 200_.
23. The proceeds of this Swingline Loan will be used for general
business purposes.
24. 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 has or shall have occurred and be continuing, and (b) the
representations and warranties made or deemed made by the Borrower and each
other Obligor in the Loan Documents to which any of them is a party are and
shall be true and correct in all material respects (and without regard to any
qualifications limiting such representations to knowledge or belief), 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, the Swingline Lender and the Lenders that all conditions to the
making of the requested Swingline Loan contained in 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 2.2(b) of the Credit Agreement.
K-1
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Notice of Swingline Borrowing as of the date first written above.
COLONIAL REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Colonial Properties Trust, its sole
General Partner
By: _______________________________
Name: _____________________________
Title: ____________________________
[SEAL]
K-2
EXHIBIT L
FORM OF SWINGLINE NOTE
$40,000,000.00 __________, 2005
FOR VALUE RECEIVED, the undersigned, COLONIAL REALTY LIMITED PARTNERSHIP, a
Delaware limited partnership (the "Borrower"), hereby promises to pay to the
order of WACHOVIA BANK, NATIONAL ASSOCIATION (the "Swingline Lender") in care of
Agent to Agent's 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 Agent to the Borrower, the principal sum of FORTY MILLION AND
NO/100 DOLLARS ($40,000,000.00) (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 Credit Agreement dated as of
March 22, 2005 (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.
Except as permitted by Sections 11.8 and 12.5(d) of the Credit Agreement,
this Note may not be assigned by the Swingline Lender to any other Person.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF GEORGIA 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.
L-1
IN WITNESS WHEREOF, the undersigned has executed and delivered this Swingline
Note under seal as of the date first written above.
COLONIAL REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Colonial Properties Trust, its sole
General Partner
By: _______________________________
Name: _____________________________
Title: ____________________________
[SEAL]
L-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 PRINCIPAL AMOUNT PAID UNPAID PRINCIPAL NOTATION
LOAN AMOUNT OF LOAN OR PREPAID AMOUNT MADE BY
------- -------------- ----------- ---------------- --------
L-3
EXHIBIT M
FORM OF REVOLVING NOTE
$____________________ _______________, 200_
FOR VALUE RECEIVED, the undersigned, COLONIAL REALTY LIMITED PARTNERSHIP, a
Delaware limited partnership (the "Borrower"), hereby promises to pay to the
order of _________________________________ (the "Lender"), in care of Agent to
Agent's address at One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, or at such other address as may be specified in writing by
the Agent to the Borrower, the principal sum of ________________ AND ____/100
DOLLARS ($____________) (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 Credit Agreement
dated as of March 22, 2005 (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.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF GEORGIA 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.
M-1
IN WITNESS WHEREOF, the undersigned has executed and delivered this Revolving
Note under seal as of the date first written above.
COLONIAL REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Colonial Properties Trust, its sole
General Partner
By: _______________________________
Name: _____________________________
Title: ____________________________
[SEAL]
M-2
SCHEDULE OF REVOLVING LOANS
This Note evidences Revolving 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 PRINCIPAL AMOUNT PAID UNPAID PRINCIPAL NOTATION
LOAN AMOUNT OF LOAN OR PREPAID AMOUNT MADE BY
------- -------------- ----------- ---------------- --------
M-3
EXHIBIT N
FORM OF COMPLIANCE CERTIFICATE
_______________, 200_
Wachovia Bank, National Association, as Agent
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
Each of the Lenders Party to the Credit Agreement referred to below
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of March 22, 2005
(as amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among COLONIAL REALTY LIMITED PARTNERSHIP, a
Delaware limited partnership (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 chief financial officer of CLP.
(2) The undersigned is responsible for and has made or caused to be made
under his/her supervision a detailed review of the activities of the Obligors
and their Subsidiaries in connection with the preparation of this Certificate.
(3) 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.
(4) To the best knowledge of the undersigned, 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].
(5) To the best knowledge of the undersigned, the representations and
warranties made or deemed made by the Borrower and the other Obligors 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).
(6) Attached hereto as Schedule 1 are detailed calculations establishing
whether or not the Borrower was in compliance with the covenants contained in
Sections 7.12, 9.1 through 9.3, 9.6 and 9.14 of the Credit Agreement.
N-1
IN WITNESS WHEREOF, the undersigned has executed this certificate as of the
date first above written.
COLONIAL REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Colonial Properties Trust, its sole
General Partner
By: _______________________________
Name: _____________________________
Title: ____________________________
N-2
SCHEDULE 1
[CALCULATIONS TO BE ATTACHED]
N-3
EXHIBIT O
FORM OF TERM LOAN NOTE
$____________________ _______________, 200_
FOR VALUE RECEIVED, the undersigned, COLONIAL REALTY LIMITED PARTNERSHIP, a
Delaware limited partnership (the "Borrower"), hereby promises to pay to the
order of _________________________________ (the "Lender"), in care of Agent to
Agent's address at One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, or at such other address as may be specified in writing by
the Agent to the Borrower, the principal sum of ________________ AND ____/100
DOLLARS ($____________), 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 Term 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 Term
Loans made by the Lender.
This Note is one of the Term Loan Notes referred to in the Credit Agreement
dated as of March 22, 2005 (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.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF GEORGIA 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.
O-1
IN WITNESS WHEREOF, the undersigned has executed and delivered this Term Loan
Note under seal as of the date first written above.
COLONIAL REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Colonial Properties Trust, its sole
General Partner
By: _______________________________
Name: _____________________________
Title: ____________________________
[SEAL]
O-2
SCHEDULE OF TERM LOANS
This Note evidences Term 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 PRINCIPAL AMOUNT PAID UNPAID PRINCIPAL NOTATION
LOAN AMOUNT OF LOAN OR PREPAID AMOUNT MADE BY
------- -------------- ----------- ---------------- --------
O-3
TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS..................................................................................... 1
Section 1.1 Definitions..................................................................................... 1
Section 1.2 General; References to Times.................................................................... 25
ARTICLE II. CREDIT FACILITY................................................................................. 25
Section 2.1 Revolving Loans................................................................................. 25
Section 2.2 Swingline Loans................................................................................. 26
Section 2.3 Competitive Advances............................................................................ 28
Section 2.4 Letters of Credit............................................................................... 30
Section 2.5 Term Loan....................................................................................... 34
Section 2.6 Rates and Payment of Interest on Loans.......................................................... 34
Section 2.7 Number of Interest Periods...................................................................... 35
Section 2.8 Repayment of Loans.............................................................................. 36
Section 2.9 Prepayments..................................................................................... 36
Section 2.10 Continuation.................................................................................... 36
Section 2.11 Conversion...................................................................................... 37
Section 2.12 Notes........................................................................................... 37
Section 2.13 Voluntary Reductions of the Revolving Loan Commitment........................................... 38
Section 2.14 Expiration or Maturity Date of Letters of Credit Past Revolving Loan Termination Date........... 38
Section 2.15 Amount Limitations.............................................................................. 38
Section 2.16 Increase of Revolving Loan Commitments.......................................................... 38
Section 2.17 Advances by Agent............................................................................... 39
Section 2.18 Extension of Revolving Loan Termination Date and Term Loan Termination Date..................... 40
ARTICLE III. PAYMENTS, FEES AND OTHER GENERAL PROVISIONS..................................................... 41
Section 3.1 Payments........................................................................................ 41
Section 3.2 Pro Rata Treatment.............................................................................. 41
Section 3.3 Sharing of Payments, Etc........................................................................ 42
Section 3.4 Several Obligations............................................................................. 43
Section 3.5 Minimum Amounts................................................................................. 43
Section 3.6 Fees............................................................................................ 43
Section 3.7 Computations.................................................................................... 44
Section 3.8 Usury........................................................................................... 44
Section 3.9 Agreement Regarding Interest and Charges........................................................ 44
Section 3.10 Statements of Account........................................................................... 45
Section 3.11 Defaulting Lenders.............................................................................. 45
Section 3.12 Taxes........................................................................................... 46
ARTICLE IV. YIELD PROTECTION, ETC........................................................................... 47
Section 4.1 Additional Costs; Capital Adequacy.............................................................. 47
Section 4.2 Suspension of LIBOR Loans....................................................................... 48
Section 4.3 Illegality...................................................................................... 48
Section 4.4 Compensation.................................................................................... 49
Section 4.5 Affected Lenders................................................................................ 49
Section 4.6 Treatment of Affected Loans..................................................................... 49
Section 4.7 Change of Lending Office........................................................................ 50
Section 4.8 Assumptions Concerning Funding of LIBOR Loans................................................... 50
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE V. CONDITIONS PRECEDENT............................................................................ 50
Section 5.1 Initial Conditions Precedent.................................................................... 50
Section 5.2 Conditions Precedent to All Loans and Letters of Credit......................................... 52
Section 5.3 Conditions as Covenants......................................................................... 53
ARTICLE VI. REPRESENTATIONS AND WARRANTIES.................................................................. 53
Section 6.1 Representations and Warranties.................................................................. 53
Section 6.2 Survival of Representations and Warranties, Etc................................................. 61
ARTICLE VII. AFFIRMATIVE COVENANTS........................................................................... 62
Section 7.1 Preservation of Existence and Similar Matters................................................... 62
Section 7.2 Compliance with Applicable Law and Contracts.................................................... 62
Section 7.3 Maintenance of Property......................................................................... 62
Section 7.4 Conduct of Business............................................................................. 62
Section 7.5 Insurance....................................................................................... 62
Section 7.6 Payment of Taxes and Claims..................................................................... 63
Section 7.7 Visits and Inspections.......................................................................... 63
Section 7.8 Use of Proceeds; Letters of Credit.............................................................. 63
Section 7.9 Environmental Matters........................................................................... 64
Section 7.10 Books and Records............................................................................... 64
Section 7.11 Further Assurances.............................................................................. 64
Section 7.12 Guarantors...................................................................................... 64
Section 7.13 REIT Status..................................................................................... 65
Section 7.14 Distribution of Income to the Borrower.......................................................... 65
Section 7.15 Credit Rating................................................................................... 65
Section 7.16 Exchange Listing................................................................................ 65
ARTICLE VIII. INFORMATION..................................................................................... 65
Section 8.1 Quarterly Financial Statements.................................................................. 65
Section 8.2 Year-End Statements............................................................................. 66
Section 8.3 Compliance Certificate.......................................................................... 67
Section 8.4 Other Information............................................................................... 68
ARTICLE IX. NEGATIVE COVENANTS.............................................................................. 70
Section 9.1 Financial Covenants............................................................................. 70
Section 9.2 Indebtedness.................................................................................... 71
Section 9.3 Certain Permitted Investments of Borrower....................................................... 71
Section 9.4 Investments Generally........................................................................... 72
Section 9.5 Liens; Negative Pledges; Other Matters.......................................................... 72
Section 9.6 Restricted Payments; Stock Repurchases.......................................................... 73
Section 9.7 Merger, Consolidation, Sales of Assets and Other Arrangements................................... 73
Section 9.8 Fiscal Year..................................................................................... 74
Section 9.9 Modifications to Material Contracts............................................................. 74
Section 9.10 Transactions with Affiliates.................................................................... 74
Section 9.11 ERISA Exemptions................................................................................ 74
Section 9.12 Restriction on Prepayment of Indebtedness....................................................... 74
Section 9.13 Modifications to Governing Documents............................................................ 74
Section 9.14 Occupancy of Unencumbered Assets................................................................ 74
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE X. DEFAULT......................................................................................... 75
Section 10.1 Events of Default............................................................................... 75
Section 10.2 Remedies Upon Event of Default.................................................................. 77
Section 10.3 Allocation of Proceeds.......................................................................... 78
Section 10.4 Collateral Account.............................................................................. 79
Section 10.5 Performance by Agent............................................................................ 80
Section 10.6 Rights Cumulative............................................................................... 80
ARTICLE XI. THE AGENT....................................................................................... 80
Section 11.1 Authorization and Action........................................................................ 80
Section 11.2 Agent's Reliance, Etc........................................................................... 81
Section 11.3 Notice of Defaults.............................................................................. 82
Section 11.4 Wachovia Bank as Lender......................................................................... 82
Section 11.5 Approvals of Lenders............................................................................ 82
Section 11.6 Lender Credit Decision, Etc..................................................................... 82
Section 11.7 Indemnification of Agent........................................................................ 83
Section 11.8 Successor Agent................................................................................. 84
Section 11.9 Titled Agents................................................................................... 84
Section 11.10 Other Loans by Lenders to Obligors.............................................................. 84
ARTICLE XII. MISCELLANEOUS................................................................................... 85
Section 12.1 Notices......................................................................................... 85
Section 12.2 Expenses........................................................................................ 85
Section 12.3 Setoff.......................................................................................... 86
Section 12.4 Litigation; Jurisdiction; Other Matters; Waivers................................................ 86
Section 12.5 Successors and Assigns.......................................................................... 87
Section 12.6 Amendments...................................................................................... 89
Section 12.7 Nonliability of Agent and Lenders............................................................... 90
Section 12.8 Confidentiality................................................................................. 90
Section 12.9 Indemnification................................................................................. 91
Section 12.10 Termination; Survival........................................................................... 92
Section 12.11 Severability of Provisions...................................................................... 92
Section 12.12 GOVERNING LAW................................................................................... 93
Section 12.13 Counterparts.................................................................................... 93
Section 12.14 Obligations with Respect to Obligors and Subsidiaries........................................... 93
Section 12.15 Limitation of Liability......................................................................... 93
Section 12.16 Entire Agreement................................................................................ 93
Section 12.17 Construction.................................................................................... 93
Section 12.18 Time of the Essence............................................................................. 93
Section 12.19 Patriot Act..................................................................................... 94
Section 12.20 Trustees Not Liable for Obligations of CLP...................................................... 94
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TABLE OF CONTENTS
(continued)
PAGE
SCHEDULES AND EXHIBITS
SCHEDULE 6.1(b) Ownership Structure
SCHEDULE 6.1(f) Title to Properties; Liens
SCHEDULE 6.1(g) Existing Indebtedness
SCHEDULE 6.1(i) Litigation
SCHEDULE 6.1(k) Financial Statements
SCHEDULE 6.1(p) Environmental Matters
SCHEDULE 6.1(y) List of Unencumbered Assets
SCHEDULE 6.1(ee) Eminent Domain Proceedings
EXHIBIT A Form of Assignment and Acceptance Agreement
EXHIBIT B Form of Competitive Advance Note
EXHIBIT C Form of Competitive Bid
EXHIBIT D Form of Competitive Bid Request
EXHIBIT E Form of Contribution Agreement
EXHIBIT F Form of Guaranty
EXHIBIT G Form of Joinder Agreement
EXHIBIT H-1 Form of Notice of Borrowing (Revolving Loan)
EXHIBIT H-2 Form of Notice of Borrowing (Term Loan)
EXHIBIT I Notice of Continuation
EXHIBIT J Notice of Conversion
EXHIBIT K Form of Notice of Swingline Borrowing
EXHIBIT L Form of Swingline Note
EXHIBIT M Form of Revolving Note
EXHIBIT N Form of Compliance Certificate
EXHIBIT O Form of Term Loan Note
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(continued)
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