ARTICLE XI
THE ADMINISTRATIVE AGENT
SECTION 11.1. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Administrative Agent by the terms hereof or
thereof, together with all such powers as are reasonably incidental thereto.
SECTION 11.2. Administrative Agent and Affiliates. KeyBank National
Association shall have the same rights and powers under this Agreement as any
other Bank and may exercise or refrain from exercising the same as though it
were not the Administrative Agent, and KeyBank National Association and its
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Borrower or any subsidiary or affiliate of the
Borrower as if it were not the Administrative Agent hereunder, and the term
"Bank" and "Banks" shall include KeyBank National Association in its individual
capacity.
SECTION 11.3. Action by Administrative Agent. The obligations of the
Administrative Agent hereunder are only those expressly set forth herein.
Without limiting the generality of the foregoing, the Administrative Agent shall
not be required to take any action with respect to any Event of Default, except
as expressly provided in Article X.
SECTION 11.4. Consultation with Experts. Each of the Administrative
Agent may consult with legal counsel (who may be counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts.
SECTION 11.5. Liability of Administrative Agent. Neither the
Administrative Agent nor any of their respective Affiliates nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or not taken by it in connection herewith (i) with the consent or
at the request of the Required Banks or, where required by the terms of this
Agreement, all of the Banks, or (ii) in the absence of its own gross negligence
or willful misconduct. Neither the Administrative Agent nor any of its
respective directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into or verify (i) any statement, warranty
or representation made in connection with this Agreement or any Borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Borrower; (iii) the satisfaction of any condition specified in
Article III, except receipt of items required to be delivered to the
Administrative Agent; or (iv) the validity, effectiveness or genuineness of this
Agreement, the other Loan Documents or any other instrument or writing furnished
in connection herewith. The Administrative Agent shall not incur any liability
by acting in reliance upon any notice, consent, certificate, statement, or other
writing (which may be a Bank wire, telex or similar writing) believed by it in
good faith to be genuine or to be signed by the proper party or parties.
SECTION 11.6. Indemnification. Each Bank shall, ratably in accordance
with its Commitment,
indemnify the Administrative Agent, their respective affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this Agreement, the other
Loan Documents or any action taken or omitted by such indemnitees hereunder.
SECTION 11.7. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Bank, and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each
Bank also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking any action under this Agreement.
SECTION 11.8. Successor Administrative Agent. The Administrative Agent
may resign at any time by giving notice thereof to the Banks and the Borrower.
Upon any such resignation or the removal of the Administrative Agent in
accordance with Section 11.11, the Required Banks shall have the right to
appoint a successor Administrative Agent with the consent of the Borrower
provided that no Event of Default shall have occurred and be continuing. If no
successor Administrative Agent shall have been so appointed by the Required
Banks, and shall have accepted such appointment, within thirty (30) days after
the retiring Administrative Agent gives notice of resignation, then the retiring
Administrative Agent may, on behalf of the Banks, appoint a successor
Administrative Agent, which shall be a commercial Bank organized or licensed
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least Fifty Million Dollars
($50,000,000). Concurrent with the effectiveness of such appointment, the
Borrower shall pay to the retiring or removed Administrative Agent any accrued
and unpaid agency fee, or the Administrative Agent shall refund to the Borrower
any prepaid agency fee, in each case prorated to the effective date of such
appointment of a successor Administrative Agent. Upon the acceptance of its
appointment as the Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder first accruing or arising after the effective date of such
retirement. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was the
Administrative Agent.
SECTION 11.9. Administrative Agent's Fee. The Borrower shall pay to the
Administrative Agent, for their respective accounts, fees in the amounts and at
the times set forth in the Fee Letter.
SECTION 11.10. Copies of Notices. The Administrative Agent shall
deliver to each Bank a copy of any notice sent to the Borrower by the
Administrative Agent in connection with the performance of its duties as
Administrative Agent hereunder.
SECTION 11.11. Removal of the Administrative Agent. The Required Banks
(other than the Administrative Agent) may remove the Administrative Agent upon a
unanimous vote at any time for good cause and shall give at least thirty (30)
days' prior written notice of such removal to the Administrative Agent, the
Borrower and all other Banks.
SECTION 11.12. Consent and Approvals. (a) Each consent, approval,
amendment, modification or waiver specifically enumerated in this Section
11.12(a) shall require the consent of the Required Banks:
(i) Approval of any material amendment of organizational and
other documents (Section 8.1(f);
(ii) Acceleration following an Event of Default (Section
10.2(a));
(iii) Approval of the exercise of rights and remedies under
the Loan Documents following an Event of Default (Section 10.2(a));
(iv)Appointment of a successor Administrative Agent (Section
11.8);
(v) Approval of a change in the method of calculation of any
financial covenants, standards or terms as a result a change in
accounting principles (Section 13.9); and
(vi) Except as referred to in subsection (b) below, approval
of any amendment, modification or termination of this Agreement, or
waiver of any provision herein (Section 13.5).
(b) Each consent, approval, amendment, modification or waiver
specifically enumerated in Section 13.5 as requiring the consent of all Banks
shall require the consent of all Banks.
(c) In addition to the required consents or approvals referred to in
subsection (a) above, the Administrative Agent may at any time request
instructions from the Required Banks with respect to any actions or approvals
which, by the terms of this Agreement or of any of the Loan Documents, the
Administrative Agent is permitted or required to take or to grant without
instructions from any Banks, and if such instructions are promptly requested,
the Administrative Agent shall be absolutely entitled to refrain from taking any
action or to withhold any approval and shall not be under any liability
whatsoever to any Person for refraining from taking any action or withholding
any approval under any of the Loan Documents until it shall have received such
instructions from the Required Banks. Without limiting the foregoing, no Bank
shall have any right of action whatsoever against the Administrative Agent as a
result of the Administrative Agent acting or refraining from acting under this
Agreement or any of the other Loan Documents in accordance with the instructions
of the Required Banks or, where applicable, all Banks. The Administrative Agent
shall promptly notify each Bank at any time that the Required Banks have
instructed the Administrative Agent to act or refrain from acting pursuant
hereto. If the Required Banks fail to provide such instructions to the
Administrative Agent within ten (10) Domestic Business Days of any request for
instructions delivered by the Administrative Agent to the
Required Banks, the Administrative Agent shall be entitled to act or refrain
from acting in accordance with the provisions of this Agreement or any Loan
Document, in such manner as it may determine, in its discretion, and the
Administrative Agent shall not be under any liability whatsoever to any Person
for acting or refraining from acting in accordance with the provisions of this
Agreement or any Loan Document, in the absence of instructions from the Required
Banks.
(d) Each Bank agrees that any action taken by the Administrative Agent
at the direction or with the consent of the Required Banks in accordance with
the provisions of this Agreement or any Loan Document, and the exercise by the
Administrative Agent at the direction or with the consent of the Required Banks
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
Banks, except for actions specifically requiring the approval of all Banks. All
communications from the Administrative Agent to the Banks requesting the Banks'
determination, consent, approval or disapproval (i) shall be given in the form
of a written notice to each Bank, (ii) shall be accompanied by a description of
the matter or thing as to which such determination, approval, consent or
disapproval is requested, or shall advise each Bank where such matter or thing
may be inspected, or shall otherwise describe the matter or issue to be
resolved, (iii) shall include, if reasonably requested by a Bank and to the
extent not previously provided to such Bank, written materials and a summary of
all oral information provided to the Administrative Agent by the Borrower in
respect of the matter or issue to be resolved and (iv) shall include the
Administrative Agent's recommended course of action or determination in respect
thereof. Each Bank shall reply promptly, but in any event within ten (10)
Domestic Business Days (the "Bank Reply Period"). Unless a Bank shall give
written notice to the Administrative Agent that it objects to the recommendation
or determination of the Administrative Agent (together with a written
explanation of the reasons behind such objection) within the Bank Reply Period,
such Bank shall be deemed to have approved of or consented to such
recommendation or determination. With respect to decisions requiring the
approval of the Required Banks or all Banks, the Administrative Agent shall
submit its recommendation or determination for approval of or consent to such
recommendation or determination to all Banks and upon receiving the required
approval or consent shall follow the course of action or determination
recommended to Banks by the Administrative Agent or such other course of action
recommended by the Required Banks, and each non-responding Bank shall be deemed
to have concurred with such recommended course of action.
ARTICLE XII
CHANGE IN CIRCUMSTANCES
SECTION 12.1. Basis for Determining Interest Rate Inadequate or Unfair.
If on or prior to the first day of any Interest Period for any LIBOR Borrowing:
(a) the Administrative Agent is advised by the Reference Bank that
deposits in dollars (in the applicable amounts) are not being offered to the
Reference Bank in the relevant market for such Interest Period, or
(b) Banks having fifty percent (50%) or more of the aggregate amount of
the Commitments advise the Administrative Agent that the LIBOR Rate as
determined by the Administrative Agent will not adequately and fairly reflect
the cost to such Banks of funding their LIBOR Loans for such Interest Period
because of (i) any change since the date of this Agreement in any applicable
law, governmental rule, regulation, guideline, order or request (whether or not
having the force of law), or in the interpretation or administration thereof and
including the introduction of any new law or governmental rule, regulation,
guideline, order or request (such as, for example, but not limited to, a change
in official reserve requirements, but in all events, excluding reserves required
under Regulation D to the extent included in the computation of the LIBOR Rate)
and/or (ii) other circumstances affecting such Banks, the interbank Eurodollar
market or the position of such Banks in such market, the Administrative Agent
shall forthwith give notice thereof to the Borrower and the Banks, whereupon
until the Administrative Agent notifies the Borrower that the circumstances
giving rise to such suspension no longer exist, the obligations of the Banks to
make LIBOR Loans shall be suspended. Unless the Borrower notifies the
Administrative Agent at least two (2) Domestic Business Days before the date of
any LIBOR Borrowing for which a Notice of Borrowing has previously been given
that it elects not to borrow on such date, such Borrowing shall instead be made
as a Base Rate Borrowing.
SECTION 12.2. Illegality. If, after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change in any
existing applicable law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central Bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Bank (or its LIBOR Lending Office) with any request or
directive (whether or not having the force of law) of any such authority,
central Bank or comparable agency shall make it unlawful or impossible for any
Bank (or its LIBOR Lending Office) to make, maintain or fund its LIBOR Loans,
and such Bank shall so notify the Administrative Agent, the Administrative Agent
shall forthwith give notice thereof to the other Banks and the Borrower,
whereupon until such Bank notifies the Borrower and the Administrative Agent
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make LIBOR Loans shall be suspended. Before giving
any notice to the Administrative Agent pursuant to this Section, such Bank shall
designate a different LIBOR Lending Office if such designation will avoid the
need for giving such notice and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. If such Bank shall determine that it may
not lawfully continue to maintain and fund any of its outstanding LIBOR Loans to
maturity and shall so specify in such notice, the Borrower shall immediately
prepay in full the then outstanding principal amount of each such LIBOR Loan,
together with accrued interest thereon. Concurrently with prepaying each such
LIBOR Loan, the Borrower shall borrow a Base Rate Loan in an equal principal
amount from such Bank (on which interest and principal shall be payable
contemporaneously with the related LIBOR Loans of the other Banks), and such
Bank shall make such a Base Rate Loan.
SECTION 12.3. Increased Cost and Reduced Return. (a) If, after the date
hereof, the adoption of any applicable law, rule or regulation, or any change in
any applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central Bank or comparable
agency charged with the interpretation or administration
thereof, or compliance by any Bank (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any such
authority, central Bank or comparable agency shall impose, modify or deem
applicable any reserve (including any such requirement imposed by the Board of
Governors of the Federal Reserve System (but excluding with respect to any LIBOR
Loan any such requirement reflected in an applicable LIBOR Reserve Percentage)),
special deposit, insurance assessment or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Bank (or its
Applicable Lending Office) or shall impose on any Bank (or its Applicable
Lending Office) or on the London interbank market any other condition affecting
its LIBOR Loans, its Note, or its obligation to make LIBOR Loans, and the result
of any of the foregoing is to increase the cost to such Bank (or its Applicable
Lending Office) of making or maintaining any LIBOR Loan, or to reduce the amount
of any sum received or receivable by such Bank (or its Applicable Lending
Office) under this Agreement or under its Note with respect thereto, by an
amount deemed by such Bank to be material, then, within fifteen (15) days after
demand by such Bank (with a copy to the Administrative Agent), which demand
shall be accompanied by a certificate showing, in reasonable detail, the
calculation of such amount or amounts, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such increased
cost or reduction.
(b) If any Bank shall have reasonably determined that, after the date
hereof, the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
central Bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central Bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
reasonably deemed by such Bank to be material, then from time to time, within
fifteen (15) days after demand by such Bank (with a copy to the Administrative
Agent), which demand shall be accompanied by a certificate showing, in
reasonable detail, the calculation of much amount or amounts, the Borrower shall
pay to such Bank such additional amount or amounts as will compensate such Bank
(or its Parent) for such reduction.
(c) Each Bank will promptly notify the Borrower and the Administrative
Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Bank to compensation pursuant to this Section and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. A certificate
of any Bank claiming compensation under this Section and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
SECTION 12.4. Taxes. (a) Any and all payments by the Borrower to or for
the account
of any Bank or the Administrative Agent hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto imposed on it as a result
of the Commitments, this Agreement or any of the other Loan Documents or the
Loans, excluding, in the case of each Bank and the Administrative Agent, taxes
imposed on its income, and franchise taxes imposed on it, by the jurisdiction
under the laws of which such Bank or the Administrative Agent (as the case may
be) is organized or any political subdivision thereof and, in the case of each
Bank, taxes imposed on its income, and franchise or similar taxes imposed on it,
by the jurisdiction of such Bank's Applicable Lending Office or any political
subdivision thereof (and, if different from the jurisdiction of such Bank's
Applicable Lending Office, the jurisdiction of the domicile of its Loans either
established by the Bank pursuant to Section 13.14 or determined by the
applicable taxing authorities) (all such non-excluded taxes, duties, levies,
imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as "Bank Taxes"). If the Borrower shall be required by law to deduct
any Bank Taxes from or in respect of any sum payable hereunder or under any Note
to any Bank or the Administrative Agent, (i) the sum payable shall be increased
as necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 12.4) such Bank, or the
Administrative Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions, (iii) the Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with applicable
law and (iv) the Borrower shall furnish to the Administrative Agent, at its
address referred to in Section 12.1, the original or a certified copy of a
receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any present or future stamp
or documentary taxes and any other excise or property taxes, or charges or
similar levies which arise from any payment made hereunder or under any Note or
from the execution or delivery of, or otherwise with respect to, this Agreement
or any Note (hereinafter referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Bank and the Administrative
Agent for the full amount of Bank Taxes or Other Taxes (including any Bank Taxes
or Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 12.4) paid by such Bank or the Administrative Agent (as the case
may be) and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. Any payment required under this
indemnification shall be made within fifteen (15) days from the date such Bank
or the Administrative Agent (as the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by the Borrower (but
only so long as such Bank remains lawfully able to do so), shall provide the
Borrower with Internal Revenue Service Form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that such
Bank is entitled to benefits under an income tax treaty to which the United
States is a party which reduces the rate of withholding tax on payments of
interest or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States. If the form provided by a Bank at the time such Bank first became a
party to this Agreement or at any time thereafter (other than solely by reason
of a change in United States law or a change in the terms of any treaty to which
the United States is a party after the date hereof) indicates a United States
interest withholding tax rate in excess of zero (or would have indicated such a
withholding tax rate if such form had been submitted and completed accurately
and completely and either was not submitted or was not completed-accurately and
completely), or if a Bank otherwise is subject to United States interest
withholding tax at a rate in excess of zero at any time for any reason (other
than solely by reason of a change in United States law or regulation or a change
in any treaty to which the United States is a party after the date hereof),
withholding tax at such rate shall be considered excluded from "Bank Taxes" as
defined in Section 9.4(a). In addition, any amount that otherwise would be
considered "Bank Taxes" or "Other Taxes" for purposes of this Section 12.4 shall
be excluded therefrom if the Bank either has transferred the domicile of its
Loans pursuant to Section 13.12 or changed the Applicable Lending Office with
respect to such Loans and such amount would not have been incurred had such
transfer or change not been made.
(e) For any period with respect to which a Bank has failed to provide
the Borrower with the appropriate form pursuant to Section 12.4(d) (unless such
failure is due to a change in treaty, law or regulation occurring subsequent to
the date on which a form originally was required to be provided), such Bank
shall not be entitled to indemnification under Section 12.4(a) with respect to
Bank Taxes imposed by the United States; provided, that should a Bank, which is
otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Bank Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as such Bank shall reasonably
request to assist such Bank to recover such Bank Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Bank pursuant to this Section 12.4, then such Bank will change
the jurisdiction of its Applicable Lending Office so as to eliminate or reduce
any such additional payment which may thereafter accrue if such change, in the
judgment of such Bank, is not otherwise disadvantageous to such Bank.
SECTION 12.5. Base Rate Loans Substituted for Affected LIBOR Loans. If
(i) the obligation of any Bank to make LIBOR Loans has been suspended pursuant
to Sections 12.1 or 12.2 or (ii) any Bank has demanded compensation under
Sections 12.3 or 12.4 with respect to its LIBOR Loans and the Borrower shall, by
at least five (5) LIBOR Business Days' prior notice to such Bank through the
Administrative Agent, have elected that the provisions of this Section shall
apply to such Bank, then, unless and until such Bank notifies the Borrower that
the circumstances giving rise to such suspension or demand for compensation no
longer exist:
(a) all Loans which would otherwise be made by such Bank as LIBOR Loans
shall be made instead as Base Rate Loans (on which interest and principal shall
be payable contemporaneously with the related LIBOR Loans of the other Banks),
and
(b) after each of its LIBOR Loans has been repaid, all payments of
principal which would otherwise be applied to repay such LIBOR Loans shall be
applied to repay its Base Rate Loans instead.
SECTION 12.6. Fixed Rate Price Adjustment. The Borrower acknowledges
that prepayment or acceleration of a LIBOR Loan during an Interest Period will
result in the Banks incurring additional costs, expenses and/or liabilities and
that it is extremely difficult and impractical to ascertain the extent of such
costs, expenses and/or liabilities. (For all purposes of this Section 12.6, any
Loan not being made as a LIBOR Loan in accordance with the Notice of Borrowing
therefor, as a result of the Borrower's cancellation thereof or failure to
satisfy the conditions precedent thereto, shall be treated as if such LIBOR Loan
had been prepaid.) Therefore, on the date a LIBOR Loan is prepaid or the date
all sums payable hereunder become due and payable, by acceleration or otherwise
(a "Price Adjustment Date"), the Borrower will pay to the Administrative Agent
for the account of each Bank, (in addition to all other sums then owing), an
amount (the "Fixed Rate Price Adjustment") equal to the then present value of
(A) the amount of interest that would have accrued on the LIBOR Loan for the
remainder of the Interest Period at the rate applicable to such LIBOR Loan, less
(B) the amount of interest that would accrue on the same LIBOR Loan for the same
period if the LIBOR Rate were set on the Price Adjustment Date. The present
value shall be calculated by using as a discount rate the LIBOR Rate quoted on
the Price Adjustment Date. Upon the written notice to the Borrower from the
Administrative Agent, the Borrower shall immediately pay to the Administrative
Agent for the account of the Banks, the Fixed Rate Price Adjustment as
calculated by the Administrative Agent. Such written notice (which shall include
calculations in reasonable detail) shall, in the absence of error, be conclusive
and binding on the Borrower.
SECTION 12.7. Other Provisions. The Borrower understands, agrees and
acknowledges the following: (A) no Bank has any obligation to purchase, sell
and/or match funds in connection with the use of the LIBOR Rate as a basis for
calculating the rate of interest on a LIBOR Loan or a Fixed Rate Price
Adjustment; (B) the LIBOR Rate is used merely as a reference in determining such
rate and/or Fixed Rate Price Adjustment; and (C) the Borrower has accepted the
LIBOR Rate as a reasonable and fair basis for calculating such rate and a Fixed
Rate Price Adjustment. The Borrower further agrees to pay the Fixed Rate Price
Adjustment and Bank Taxes, if any, whether or not a Bank elects to purchase,
sell and/or match funds.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including Bank wire, facsimile
transmission or similar writing) and shall be given to such party: (x) in the
case of the Borrower or the Administrative Agent, at its address or telecopy
number set forth on the signature pages hereof, together with copies thereof, in
the case of the Borrower, to Uni-Invest (U.S.A.) Ltd., 00 Xxxxx Xxxxxx Xxxxxx,
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxxxx, Esq., and in the
case of the Administrative Agent, to Xxxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxxx
Xxxxxx, 0000 Xxx Xxxxx, Xxxxxxxxx, Xxxx 00000, Attention: Xxxxx X. Xxxxxxxxx,
Esq., Telephone: (000) 000-0000, Fax: (000) 000-0000, (y) in the case of any
Bank, at its address or fax number set forth on the signature pages hereof or in
its Administrative Questionnaire or (z) in the case of any party, such other
address or telecopy number as such party may hereafter specify for the purpose
by notice to the Administrative Agent, the Banks and the Borrower. Each such
notice, request or other communication shall be effective (i) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified in
this Section, and transmission is confirmed by the sender's telecopy equipment,
(ii) if given by mail, the notice, request or other communication shall be sent
via certified mail, return receipt requested and shall be effective three (3)
days after delivery or (iii) if given by any other means, when delivered at the
address specified in this Section; provided that notices to the Administrative
Agent under Article II or Article XII shall not be effective until received.
SECTION 13.2. No Waivers. No failure or delay by the Administrative
Agent or any Bank in exercising any right, power or privilege hereunder or under
any Note shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 13.3. Expenses; Indemnification. (a) The Borrower shall pay (i)
all reasonable and customary out-of-pocket expenses of the Administrative Agent
(including reasonable fees and disbursements of special counsel Xxxxxxxx Xxxx &
Xxxxx LLP, local counsel for the Administrative Agent, and travel and site
visits (provided that, prior to the occurrence of a Possible Default or Event of
Default, the Borrower shall pay expenses for only one (1) site visit per
Mortgaged Property), third party reports (including Appraisals), mortgage
recording taxes, environmental and engineering expenses) in connection with the
preparation and administration of this Agreement, the Loan Documents, the
Security Documents and the documents and instruments referred to therein, the
syndication of the Loans, any waiver or consent hereunder or any amendment or
modification hereof or any Event of Default or Possible Default hereunder and
(ii) if an Event of Default occurs, all out-of-pocket expenses incurred by the
Administrative Agent and each Bank, including reasonable fees and disbursements
of counsel for the Administrative Agent, in connection with the enforcement of
the Loan Documents and the instruments referred to therein and such Event of
Default and collection, bankruptcy, insolvency and other enforcement proceedings
resulting therefrom.
(b) The Borrower agrees to indemnify the Administrative Agent and each
Bank, their respective affiliates and the respective directors, officers, agents
and employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including the reasonable fees and
disbursements of counsel and settlements and settlement costs, which may be
incurred by such Indemnitee in connection with any investigative, administrative
or judicial proceeding (whether or not such Indemnitee shall be designated a
party thereto) that may at any time (including at any time following the payment
of the Obligations) be imposed on, asserted against or incurred by any
Indemnitee as a result of, or arising out of, or in any way related to or by
reason of, (i) any of the transactions contemplated by the Loan Documents or the
execution, delivery or performance of any Loan Document (including the
Borrower's actual or proposed use of proceeds of the Loans, whether or not in
compliance with the provisions hereof), (ii) any violation by the Borrower or
the Environmental Affiliates of any applicable Environmental Law, (iii) any
Environmental Claim arising out of the management, use, control, ownership or
operation of property or assets by the Borrower or any of the Environmental
Affiliates, including all on-site and off-site activities involving
Contaminants, (iv) the breach of any environmental representation or warranty
set forth herein, (v) the grant to the Administrative Agent and the Banks of any
Lien in any property or assets of the Borrower or any stock or other equity
interest in the Borrower, and (vi) the exercise by the Administrative Agent and
the Banks of their rights and remedies (including foreclosure) under any
agreements created any such Lien (but excluding, as to any Indemnities, any such
losses, liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements incurred solely by reason of (i) the
gross negligence or willful misconduct of such Indemnitee as finally determined
by a court of competent jurisdiction or (ii) any investigative, administrative
or judicial proceeding imposed or asserted against any Indemnitee by any Bank
regulatory agency or by any equity holder of such Indemnitee). The Borrower's
obligations under this Section shall survive the termination of this Agreement
and the payment of the Obligations.
(c) The Borrower shall pay, and hold the Administrative Agent and each
of the Banks harmless from and against, any and all present and future U.S.
stamp, recording, transfer and other similar foreclosure related taxes with
respect to the foregoing matters and hold the Administrative Agent and each Bank
harmless from and against any and all liabilities with respect to or resulting
from any delay or omission (other than to the extent attributable to such Bank)
to pay such taxes.
SECTION 13.4. Sharing of Set-Offs. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance of
any Event of Default, each Bank is hereby authorized at any time or from time to
time, without presentment, demand, protest or other notice of any kind to the
Borrower or to any other Person, any such notice being hereby expressly waived,
to set off and to appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), other than deposits held for the
benefit of third parties, and any other indebtedness at any time held or owing
by such Bank (including by branches and agencies of such Bank wherever located)
to or for the credit or the account of the Borrower against and on account of
the Obligations of the Borrower then due and payable to such Bank under this
Agreement or under any of the other Loan Documents, including all interests in
Obligations purchased by such Bank. Each Bank agrees that if it shall, by
exercising any right of set-off or counterclaim or otherwise, receive payment of
a proportion of the aggregate amount of principal and interest due with respect
to any Note held by it, which is greater than the proportion received by any
other Bank in respect of the aggregate amount of principal and interest due with
respect to any Note held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participation in the Notes
held by the other Banks, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with respect to the
Notes held by the Banks shall be shared by the Banks pro rata; provided that
nothing in this Section shall impair the right of any Bank to exercise any right
of set-off or counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of the Borrower other than its
indebtedness under the Notes.
SECTION 13.5. Amendments and Waivers. Any provision of this Agreement,
the Notes or the other Loan Documents may be amended or waived if, but only if,
such amendment or waiver is in writing and is signed by the Borrower and the
Required Banks (and, if the rights or duties of the Administrative Agent are
affected thereby, by the Administrative Agent); provided that no such amendment
or waiver shall, unless signed by all the Banks, (i) increase or decrease the
Commitment of any Bank (except for a ratable decrease in the Commitments of all
Banks) or subject any Bank to any additional obligation, (ii) change or reduce
the principal of or rate of interest on any Loan or any fees specified herein,
(iii) postpone the date fixed for any payment of principal of or interest on any
Loan or any fees hereunder or for any reduction or termination of any
Commitment, (iv) change the definition of "Required Banks," "Availability" or
"Real Property Asset Value," (v) release the Lien of any Mortgage or otherwise
release any other collateral, (vi) removal of the Administrative Agent pursuant
to Section 11.8, (vii) amend, restate or otherwise modify any Subsidiary
Guaranty, the effect of which is to reduce, release, waive or terminate the any
Subsidiary Guarantor's liability thereunder, (viii) consent to assignment by the
Borrower of all of its duties and Obligations hereunder or (ix) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Notes, or the number of Banks, which shall be required for the Banks or any of
them to take any action under this Section 13.5 or any other provision of this
Agreement.
SECTION 13.6. 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 assigns, except that the Borrower may not
assign or otherwise transfer any of its rights under this Agreement or the other
Loan Documents without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Borrower and the Administrative Agent, such Bank shall remain responsible for
the performance of its obligations hereunder, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Bank
in connection with such Bank's rights and obligations under this Agreement. Any
agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Borrower hereunder including the right to approve
any amendment, modification or waiver of any provision of this Agreement;
provided that such participating agreement may provide that such Bank will not
agree to any modification, amendment or waiver of this Agreement described in
clauses (i) through (ix) of Section 13.5 without the consent of the Participant.
The Borrower agrees that each Participant shall, to the extent provided in its
participation agreement, be entitled to the benefits of Article IX with respect
to its participating interest. An assignment or other transfer which is not
permitted by subsection (c) or (d) below shall be given effect for purposes of
this Agreement only to the extent of a participating interest granted in
accordance with this subsection (b).
(c) Any Bank may at any time assign to one (1) or more banks or other
institutions (each an "Assignee") a portion of its rights and obligations under
this Agreement, the Notes and the other Loan Documents so long as the assigning
Bank retains a Commitment of not less than Ten Million Dollars ($10,000,000),
and such Assignee shall assume such rights and obligations, pursuant to an
Assignment and Assumption Agreement in substantially the form of Exhibit J
attached hereto executed by such Assignee and such transferor Bank, with (and
subject to) the subscribed consent of the Administrative Agent and, provided no
Event of Default shall have occurred and be continuing, the Borrower, which
consent shall not be unreasonably withheld or delayed. Without limiting the
foregoing, Borrower shall have the right, in its sole discretion, to approve any
Banks to which the Administrative Agent assigns a portion of its rights and
obligations hereunder if such assignment occurs contemparously with the original
closing. Upon execution and delivery of such instrument and payment by such
Assignee to such transferor Bank of an amount equal to the purchase price agreed
between such transferor Bank and such Assignee, such Assignee shall be a Bank
party to this Agreement and shall have all the rights and obligations of a Bank
with a Commitment as set forth in such instrument of assumption, and the
transferor Bank 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
(c), the transferor Bank, the Administrative Agent and the Borrower shall make
appropriate arrangements so that, if required, a new Note or Notes are issued to
the Assignee. In connection with any such assignment, the transferor Bank shall
pay to the Administrative Agent an administrative fee for processing such
assignment in the amount of Two Thousand Five Hundred Dollars ($2,500). If the
Assignee is not incorporated under the laws of the United States of America or a
state thereof, it shall deliver to the Borrower and the Administrative Agent
certification as to exemption from deduction or withholding of any United States
federal income taxes in accordance with Section 12.4.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Note to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Sections 12.3 or 12.4
than such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer in made with the Borrower's prior written
consent or by reason of the provisions of Sections 12.2, 12.3 or 12.4 requiring
such Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
SECTION 13.7. Marshaling; Recapture. Neither the Administrative Agent
nor any Bank shall be under any obligation to marshal any assets in favor of the
Borrower or any other party or against or in payment of any or all of the
Obligations. To the extent any Bank receives any payment by or on behalf of the
Borrower, which payment or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
the Borrower or its estate, trustee, receiver, custodian or any other party
under any bankruptcy law, state or federal law, common law or equitable cause,
then to the extent of such payment or repayment, the Obligation or part thereof
which has been paid, reduced or satisfied by the amount so repaid shall be
reinstated by the amount so repaid and shall be included within the liabilities
of the Borrower to such Bank as of the date such initial payment, reduction or
satisfaction occurred.
SECTION 13.8. Independence of Covenants. All covenants hereunder shall
be given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitations of, another covenant shall
not avoid the occurrence of an Event of Default or Possible Event of Default if
such action is taken or condition exists, and if a particular action or
condition is expressly permitted under any covenant, unless expressly limited to
such covenant, the fact that it would not be permitted under the general
provisions of another covenant shall not constitute an Event of Default or
Possible Event of Default if such action is taken or condition exists.
SECTION 13.9. Change in Accounting Principles. Except as otherwise
provided herein, if any changes in accounting principles from those used in the
preparation of the most recent financial statements delivered to the
Administrative Agent pursuant to the terms hereof are hereinafter required or
permitted by the rules, regulations, pronouncements and opinions of the
Financial Accounting Standards Board or the American Institute of Certified
Public Accountants (or successors thereto or agencies with similar functions)
and are adopted by the Borrower with the agreement of its independent certified
public accountants and such changes result in a change in the method of
calculation of any of the financial covenants, standards or terms found herein,
the parties hereto agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating the financial condition of the Borrower shall be the
same after such changes as if such changes had not been made; provided, that no
change in GAAP that would affect the method of calculation of any of the
financial covenants, standards or terms shall be given effect in such
calculations until such provisions are amended, in a manner satisfactory to the
Administrative Agent and the Required Banks, to so reflect such change in
accounting principles.
SECTION 13.10. Counterparts; Integration; Effectiveness. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof. This
Agreement shall become effective upon receipt by the Administrative Agent of
counterparts hereof signed by each of the parties hereto (or, in the case of any
party as to which an executed counterpart shall not have been received, receipt
by the Administrative Agent in form satisfactory to it of telegraphic, telex or
other written confirmation from such party of execution of a counterpart hereof
by such party).
SECTION 13.11. Survival. All indemnities set forth herein shall survive
the execution and delivery of this Agreement and the other Loan Documents and
the making and repayment of the Loans hereunder.
SECTION 13.12. Domicile of Loans. Subject to the provisions of Article
XII, each Bank may transfer and carry its Loans at, to or for the account of any
domestic or foreign branch office, subsidiary or affiliate of such Bank.
SECTION 13.13. Limitation of Liability. No claim may be made by the
Borrower or any other Person against the Administrative Agent, or any Bank or
the affiliates, directors, officers, employees, attorneys or agent of any of
them for any consequential or punitive damages in respect of any claim for
breach of contract or any other theory of liability arising out of or related to
the transactions contemplated by this Agreement or by the other Loan Documents,
or any act, omission or event occurring in connection therewith, and the
Borrower hereby waives, releases and agrees not to sue upon any claim for any
such damages, whether or not accrued and whether or not known or suspected to
exist in its favor.
SECTION 13.14. Governing Law; Submission to Jurisdiction. (a) THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAWS OF THE STATE OF OHIO (WITHOUT GIVING EFFECT TO THE
PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT AND ANY ACTION FOR ENFORCEMENT OF ANY JUDGMENT IN
RESPECT THEREOF MAY BE BROUGHT IN THE COURTS OF THE STATE OF OHIO OR OF THE
UNITED STATES OF AMERICA FOR THE NORTHERN DISTRICT OF OHIO, AND, BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, THE BORROWER HEREBY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND APPELLATE COURTS FROM ANY THEREOF. THE
BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE HAND DELIVERY, OR
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
THE BORROWER AT ITS ADDRESS SET FORTH BELOW. THE BORROWER HEREBY IRREVOCABLY
WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT BROUGHT IN THE COURTS REFERRED TO
ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN
ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
THE ADMINISTRATIVE AGENT, ANY BANK OR ANY HOLDER OF A NOTE TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST THE BORROWER IN ANY OTHER JURISDICTION.
SECTION 13.15. Waiver of Jury Trial. EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
UNI-INVEST (U.S.A.) PARTNERSHIP, L.P.,
a Delaware limited partnership
BY: UNI-INVEST (U.S.A.), LTD., a Maryland
corporation, its general partner
By:___________________________________________
Print
Name:____________________________________
Title:___________________________________
Address for Notices:
00 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attention: Xxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
TOTAL COMMITMENTS KEYBANK NATIONAL ASSOCIATION,
$10,000,000.00 a national banking association
By:___________________________________
Print
Name:____________________________
Title:___________________________
Address for Notices:
Domestic and LIBOR Lending Office:
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
KEYBANK NATIONAL ASSOCIATION,
as Administrative Agent
By:__________________________________
Print
Name:_____________________________
Title:____________________________
Address for Notices: 000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
EXHIBIT A
FORM OF AVAILABILITY CERTIFICATE
(See attached)
FORM OF AVAILABILITY CERTIFICATE 1
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
(See attached)
FORM OF COMPLIANCE CERTIFICATE 1
EXHIBIT C
REAL PROPERTY ASSETS TO BE ADDED
TO MORTGAGED PROPERTIES AT CLOSING
1. Jacksonville, Florida
2. Salt Lake City, Utah
3. Bloomington, Illinois
LIST OF MORTGAGED PROPERTIES 1
EXHIBIT D
Form of Note
NOTE
$10,000,000.00 Cleveland, Ohio
May __, 2000
For value received, UNI-INVEST (U.S.A.) PARTNERSHIP, L.P., a Delaware
limited partnership (the "Borrower") promises to pay to the order of KEYBANK
NATIONAL ASSOCIATION (the "Bank"), for the account of its Applicable Lending
Office, the unpaid principal amount of each Loan made by the Bank to the
Borrower pursuant to the Credit Agreement referred to below on the Maturity
Date. The Borrower promises to pay interest on the unpaid principal amount of
each such Loan on the dates and at the rate or rates provided for in the Credit
Agreement. All such payments of principal and interest shall be made in lawful
money of the United States in Federal or other immediately available funds at
the office of the Administrative Agent under the Credit Agreement (as defined
below).
All Loans made by the Bank, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Bank and,
if the Bank so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement
(Secured Acquisition Loan and Revolving Line of Credit), dated as of May __,
2000, by and among the Borrower, the Banks party thereto, KeyBank National
Association, as Administrative Agent (as the same may be amended, modified,
restated, extended or substituted from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the payment and
prepayment hereof and the acceleration of the maturity hereof.
ALL FLORIDA DOCUMENTARY STAMP TAXES AND INTANGIBLE TAXES DUE IN
CONNECTION WITH THE EXECUTION AND DELIVERY OF THIS NOTE HAVE BEEN PROPERLY PAID
AND ARE AFFIXED TO THE FLORIDA MORTGAGE(S) SECURING THIS NOTE.
FORM OF NOTE 1
UNI-INVEST (U.S.A.) PARTNERSHIP L.P., a
Delaware limited partnership
By: Uni-Invest (U.S.A.), Ltd., a Maryland
corporation, its general partner
By:___________________________________
Name:______________________________
Title:_____________________________
FORM OF NOTE 2
STATE OF ______________)
) SS:
COUNTY OF _____________)
This instrument was acknowledged before me this ____ day of May, 2000,
by _______________________________, the ____________________________ of
Uni-Invest (U.S.A.), Ltd., a Maryland corporation, the general partner of
Uni-Invest (U.S.A.) Partnership, L.P., a Delaware limited partnership, who
executed the within instrument and acknowledged that he/she did so execute and
acknowledge such instrument on behalf of such corporation and limited
partnership.
-------------------------------------
Notary Public
FORM OF NOTE 3
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
________________________________________________________________________________
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
FORM OF NOTE 4
EXHIBIT E
FORM OF NOTICE OF BORROWING
KeyBank National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxx
Uni-Invest (U.S.A.) Partnership, L.P. (the "Borrower") hereby requests
a Loan pursuant to Section 2.3 of the Credit Agreement, dated as of May __, 2000
(as amended, modified, restated, extended or substituted from time to time, the
"Credit Agreement") by and among Borrower and you as a Bank and the
Administrative Agent.
A Loan is requested to be made in the amount of $__________, to be made
on __________ 2000 and evidenced by Xxxxxxxx's Notes. Such Loan shall be a
[select one] ___ Base Rate Loan ___ LIBOR Loan and the initial Interest Period,
if such requested Loan is a LIBOR Loan, shall be ________________________.
In support of this request, Borrower hereby represents and warrants to
the Administrative Agent and the Banks that:
1. The representations and warranties contained in the Credit Agreement
and in the other Loan Documents are true and correct in all material respects on
and as of the date hereof, and will be true and correct in all material respects
on the date such Loan is made (both before and after such Loan is made) as if
such representations and warranties were made on and as of such dates unless
stated to relate to a specific earlier date.
2. No Event of Default or Possible Default has occurred and is
continuing or will exist on the date such Loan is made and such Loan shall not
cause an Event of Default or Possible Default.
3. The Availability Certificate attached hereto and the computations
contained therein are true and correct.
Acceptance of the proceeds of such Loan by Borrower shall be deemed to
be a further representation and warranty that the representations and warranties
made herein are true and correct in all material respects at the time such
proceeds are disbursed.
Capitalized terms used but not defined herein shall have the respective
meanings assigned to them in the Credit Agreement.
1
FORM OF NOTICE OF BORROWING
UNI-INVEST (U.S.A.) PARTNERSHIP L.P., a
Delaware limited partnership
Dated: May ___, 2000 By: Uni-Invest (U.S.A.), Ltd., a Maryland
corporation, its general partner
By:_______________________________________
Name:__________________________________
Title:_________________________________
2
FORM OF NOTICE OF BORROWING
EXHIBIT F
FORM OF INTEREST RATE ELECTION
To: KeyBank National Association, as Administrative Agent
Date: May ___, 2000
Subject: Credit Agreement (Secured Acquisition Loan and Revolving Line
of Credit) dated as of May __, 2000 (the "Credit Agreement"),
by and among Uni-Invest (U.S.A.) Partnership, L.P.
("Borrower"), KeyBank National Association, as Administrative
Agent (the "Administrative Agent") and the Banks which are
parties from time to time thereto (the "Banks").
Ladies and Gentlemen:
Each term in this Interest Rate Election shall be defined in accordance
with the Credit Agreement. Pursuant to the Credit Agreement, we request:
( ) the Banks to convert the LIBOR Loans comprising the LIBOR Borrowing
(or portion thereof) [made] [converted] [continued] on
__________________, 20___, in the original aggregate principal sum of
$_____________, on ______________, 20____, into [Base Rate Loans]
[LIBOR Loans to have an Interest Period of (thirty, ninety or one
hundred eighty) days from the date thereof].
( ) the Banks to convert the Base Rate Loans comprising the Domestic
Borrowing (or portion thereof) [made] [converted] on
___________________, 20___, in the original aggregate principal sum of
$______________, on ______________, 20___, into LIBOR Loans to have an
Interest Period of (thirty, ninety or one hundred eighty) days from the
date thereof.
( ) the Banks to continue the LIBOR Loans comprising the LIBOR
Borrowing (or portion thereof) [made] [converted] [continued] on
__________________, 20___, with a (thirty, ninety or one hundred
eighty) day Interest Period in the original aggregate principal sum of
$_____________, as LIBOR Loans having an Interest Period of the same
duration commencing on _____________________, 20___.
The undersigned represents and warrants that this request is made in
compliance with Section 2.15 of the Credit Agreement.
The undersigned hereby certifies that:
FORM OF NOTICE OF INTEREST 1
RATE ELECTION
(a) The representations and warranties contained in the Credit
Agreement and in the other Loan Documents are true and correct in all respects
on and as of the date of the rate conversion or rate continuation referred to
herein with the same effect as though made on and as of such date, except to the
extent such representations and warranties expressly relate to an earlier date;
and
(b) No Possible Default or Event of Default has occurred and is
continuing, and at the time of, and immediately after, the rate conversion or
rate continuation referred to herein, no Possible Default or Event of Default
shall have occurred and be continuing; and
(c) The Borrower is in compliance with all other terms and provisions
set forth in the Credit Agreement and in each of the other Loan Documents on its
part to be observed or performed.
Very truly yours,
UNI-INVEST (U.S.A.) PARTNERSHIP L.P., a
Delaware limited partnership
By: Uni-Invest (U.S.A.), Ltd., a Maryland
corporation, its general partner
By:________________________________________
Name:__________________________________
Title:_________________________________
FORM OF NOTICE OF INTEREST 2
RATE ELECTION
EXHIBIT G
GUARANTY
THIS GUARANTY, dated as of May ___, 2000 (this "Guaranty"), is made by
Uni-Invest (U.S.A.), Ltd., a Maryland corporation ("Guarantor") in favor of
KeyBank National Association, a national banking association ("KeyBank" or
"Administrative Agent"), as Administrative Agent, for the benefit of the Banks
under the Credit Agreement (as defined below).
R E C I T A L S:
X. XxxXxxx, in its capacity as a Bank and in its capacity as the
Administrative Agent for the Banks, Uni-Invest (U.S.A.) Partnership, L.P., a
Delaware limited partnership ("Borrower") and the Banks party thereto entered
into that certain Credit Agreement (Secured Acquisition Loan and Revolving Line
of Credit) dated as of May ___, 2000 (as the same may from time to time be
amended, modified, restated, extended or substituted, the "Credit Agreement").
B. As a condition to the effectiveness of the obligations of the Banks
under the Credit Agreement, Guarantor is required to guarantee, among other
things, the Obligations of Borrower under the Operative Documents.
C. Guarantor has reviewed the Credit Agreement, the Notes, and all
other documents, agreements, instruments and certificates furnished by or on
behalf of Borrower in connection therewith (all of the foregoing, as amended or
modified from time to time and together with any agreements or instruments in
replacement thereof, being herein collectively referred to as the "Operative
Documents"), and Guarantor has determined that it is in its interest and to its
financial benefit that the parties to the Operative Documents enter into the
transactions contemplated thereby.
For valuable consideration, the receipt of which is hereby acknowledged
and as further consideration, and as an inducement to the Banks to maintain the
credit facilities established by the Operative Documents, Guarantor agrees with
the Administrative Agent for the benefit of the Banks as follows:
1. Guarantee of Obligations. (a) Guarantor hereby (i) guarantees, as
principal obligor and not as surety only, to the Administrative Agent and the
Banks the prompt payment of the principal of and any and all accrued and unpaid
interest (including interest which otherwise may cease to accrue by operation of
any insolvency law, rule, regulation or interpretation thereof) on the Loans and
all other obligations of Borrower to the Administrative Agent and the Banks
under the Credit Agreement when due, whether by scheduled maturity, acceleration
or otherwise, all in accordance with the terms of the Credit Agreement and the
Notes, including, without limitation, default interest, all reimbursement
obligations under any letters of credit, indemnification payments and all
FORM OF GUARANTY 1
reasonable costs and expenses incurred by the Administrative Agent in connection
with enforcing any obligations of Borrower hereunder, including without
limitation the reasonable fees and disbursements of counsel, (ii) guarantees the
prompt and punctual performance and observance of each and every term, covenant
or agreement contained in any Operative Document to be performed or observed on
the part of Borrower, (iii) guarantees the prompt and complete payment of all
obligations and performance of all covenants of Borrower under any interest rate
or currency swap agreements or similar transactions with the Administrative
Agent or any Bank entered into pursuant to or in connection with the Credit
Agreement and (iv) agrees to make prompt payment, on demand, of any and all
reasonable costs and expenses incurred by the Administrative Agent in connection
with enforcing the obligations of Guarantor hereunder, including, without
limitation, the reasonable fees and disbursements of counsel (all of the
foregoing being collectively referred to as the "Guaranteed Obligations").
(b) If for any reason any duty, agreement or obligation of Borrower
contained in any Operative Document shall not be performed or observed by
Borrower as provided therein, or if any amount payable under or in connection
with any Operative Document shall not be paid in full when the same becomes due
and payable, Guarantor undertakes, but without duplication, to perform or cause
to be performed promptly, each of such duties, agreements and obligations and to
pay forthwith each such amount regardless of any defense or setoff or
counterclaim which Borrower may have or assert, and regardless of any other
condition or contingency.
2. Nature of Guaranty. This Guaranty is an absolute and unconditional
and irrevocable guaranty of payment and not a guaranty of collection and is
wholly independent of and in addition to other rights and remedies of the
Administrative Agent and is not contingent upon the pursuit by the
Administrative Agent of any such rights and remedies, such pursuit being hereby
waived by Guarantor.
3. Waivers and Other Agreements. Guarantor hereby unconditionally (a)
waives any requirement that the Administrative Agent, upon the occurrence of an
Event of Default first make demand upon, or seek to enforce remedies against
Borrower, before demanding payment under or seeking to enforce this Guaranty,
(b) covenants that this Guaranty will not be discharged except by complete
performance of all obligations of Borrower contained in the Operative Documents,
(c) agrees that this Guaranty shall remain in full force and effect without
regard to, and shall not be affected or impaired, without limitation, by any
invalidity, irregularity or unenforceability in whole or in part of any of the
Operative Documents, or any limitation on the liability of Borrower thereunder
(other than those limitations expressly set forth in the other Loan Documents),
or any limitation on the method or terms of payment thereunder which may
hereafter be caused or imposed in any manner whatsoever (including, without
limitation, usury laws), (d) waives diligence, presentment and protest with
respect to, and any notice of default or dishonor in the payment of any amount
at any time payable by Borrower under or in connection with any of the Operative
Documents, and further waives notice of any of the matters referred to in
paragraph 4 below, and further waives all notices which may be required by
statute, rule of law or otherwise to preserve any rights of the Administrative
Agent, including without limitation any requirement of notice of acceptance of,
or other formality relating to this Guaranty to the extent permitted by
FORM OF GUARANTY 2
applicable law and (e) agrees that the Guaranteed Obligations shall include any
amounts paid by Borrower to the Administrative Agent which may be required to be
returned to Borrower or to a trustee, custodian or receiver for Borrower.
4. Obligations Absolute. The obligations, covenants, agreements and
duties of Guarantor under this Guaranty shall not be released, affected or
impaired by any of the following whether or not undertaken with notice to or
consent of Guarantor: (a) an assignment or transfer, in whole or in part, of any
of the Guaranteed Obligations or any of the Operative Documents although made
without notice to or consent of Guarantor; (b) any waiver by the Administrative
Agent or by any other person, of the performance or observance by Borrower of
any of the agreements, covenants, terms or conditions contained in any of the
Operative Documents; (c) any indulgence in or the extension of the time for
payment by the Borrower of any amounts payable under or in connection with any
of the Operative Documents, or of the time for performance by Borrower of any
other obligations under or arising out of any of the Operative Documents, or the
extension or renewal thereof; (d) the modification, amendment or waiver (whether
material or otherwise) of any duty, agreement or obligation of Borrower set
forth in any of the Operative Documents (the modification, amendment or waiver
from time to time of any of the Operative Documents to which Borrower is a party
being expressly authorized without further notice to or consent of Guarantor);
(e) the voluntary or involuntary liquidation, sale or other disposition of all
or substantially all of the assets of Borrower or any receivership, insolvency,
bankruptcy, reorganization, or other similar proceedings, affecting Borrower or
any of its respective assets; (f) the merger or consolidation of Borrower with
or into any other person or any transfer or other disposition of any shares of
capital stock of Borrower by the holder thereof; (g) the release or discharge of
Borrower by operation of law from the performance or observance of any
agreement, covenant, term or condition contained in any Operative Document; (h)
the release of any security, if any, for the obligations of Borrower under any
of the Operative Documents, or the impairment of or failure to perfect an
interest in any such security; (i) any exercise or non-exercise of any right,
remedy, power or privilege in respect of this Guaranty or any of the Operative
Documents, including without limitation the release, discharge, or variance of
the liability of any other Guarantor of the Guaranteed Obligations; or (j) any
other cause whether similar or dissimilar to the foregoing which would release,
affect or impair the obligations, covenants, agreements or duties of Guarantor
hereunder.
5. No Investigation by the Administrative Agent. Guarantor hereby
waives unconditionally any obligation which, in absence of such provision, the
Administrative Agent might otherwise have to investigate or to assure that there
has been compliance with the law of any jurisdiction with respect to the
Guaranteed Obligations recognizing that, to save both time and expense,
Guarantor has requested that the Administrative Agent not undertake such
investigation. Guarantor hereby expressly confirms that the obligations
hereunder shall remain in full force and effect without regard to compliance or
noncompliance with any such law and irrespective of any investigation or
knowledge of any of the Administrative Agent of any such law.
FORM OF GUARANTY 3
6. Indemnity. As a separate, additional and continuing obligation,
Guarantor unconditionally and irrevocably undertakes and agrees with the
Administrative Agent that, should the Guaranteed Obligations not be recoverable
from Guarantor under paragraph 1 hereof for any reason whatsoever (including,
without limitation, by reason of any provision of this Guaranty or any Operative
Document being or becoming void, unenforceable, or otherwise invalid under any
applicable law) then, notwithstanding any knowledge thereof by the
Administrative Agent at any time, Guarantor as sole, original and independent
obligor, upon demand by the Administrative Agent, will make payment to the
Administrative Agent of the Guaranteed Obligations by way of a full indemnity in
such currency and otherwise in such manner as is provided in this Guaranty and
the Operative Documents.
7. Subordination. Guarantor agrees that any present or future
indebtedness, obligations or liabilities of Borrower to Guarantor shall be fully
subordinate and junior in right and priority of payment to any present or future
indebtedness, obligations or liabilities of Borrower to the Administrative
Agent. Guarantor waives any right of subrogation to the rights of any other
person obligated for payment of the Guaranteed Obligations and any right of
reimbursement or indemnity whatsoever arising or accruing out of any payment
which Guarantor may make pursuant to this Guaranty and the Notes, and any right
of recourse to security for the debts and obligations of Borrower, unless and
until the entire principal balance of and interest on the Guaranteed Obligations
shall have been paid in full.
8. Representations, Warranties and Covenants. (a) Guarantor represents
and warrants that: (i) the execution, delivery and performance by Guarantor of
this Guaranty are within its corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or filing
with, any governmental body, and do not contravene, or constitute a default
under, any provision of applicable law or regulation or of the articles of
incorporation or other charter documents or bylaws of Guarantor, or of any
agreement, judgment, injunction, order, decree or other instrument binding upon
such Guarantor or its property; (ii) this Guaranty constitutes a legal, valid
and binding obligation of Guarantor, enforceable against Guarantor in accordance
with its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to
creditors' rights and except that the remedy of specific performance and
injunctive and other forms of equitable relief are subject to equitable defenses
and to the discretion of the court for which any proceedings may be brought; and
(iii) as of the date hereof, each of the following is true and correct: (A) the
fair saleable value and the fair valuation of Guarantor's property is greater
than the total amount of its liabilities (excluding contingent liabilities) and
greater than the amount that would be required to pay its probable aggregate
liability on its existing debts as they become absolute and matured, (B)
Guarantor's capital is not unreasonably small in relation to its current and/or
contemplated business or other undertaken transactions and (C) Guarantor does
not intend to incur, or believe that it will incur, debt beyond its ability to
pay such debts as they become due.
(b) Guarantor covenants and agrees that: (i) it will not directly or
indirectly create, incur, assume or permit to exist any Lien on or with respect
to any Property acquired in whole or in part with the proceeds of any Loan
FORM OF GUARANTY 4
except as permitted by the Credit Agreement; (ii) it will not convey, sell,
transfer, assign, pledge or otherwise dispose of all or any portion of its
assets to the extent the value of such assets either individually or in the
aggregate exceeds five percent (5%) of the Total Asset Value of all assets of
Guarantor, unless permitted by the Credit Agreement; and (iii) it will not
directly or indirectly create, incur, assume or permit to exist any Debt, except
as permitted by the Credit Agreement.
9. Remedies. (a) Upon the occurrence and during the continuance of any
Event of Default, the Administrative Agent, on behalf of the Banks, may, in
addition to the remedies provided in the Operative Documents, enforce its rights
either by suit in equity, or by action at law, or by other appropriate
proceedings, whether for the specific performance (to the extent permitted by
law) of any covenant or agreement contained in this Guaranty or in aid of the
exercise of any power granted in this Guaranty and may enforce payment under
this Guaranty and any of its other rights available at law or in equity.
(b) In addition to any rights now or hereafter granted under applicable
law or otherwise, and not by way of limitation of any such rights, upon the
occurrence and during the continuance of any Event of Default, each Bank is
hereby authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to Guarantor or to any other Person, any
such notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special, time or demand, provisional or
final), other than deposits held for payroll or the benefit of third parties,
and any other indebtedness at any time held or owing by such Bank (including,
without limitation, by branches and agencies of such Bank wherever located) to
or for the credit or the account of Guarantor against and on account of the
Guaranteed Obligations then due and payable to such Bank under this Agreement or
under any of the other Loan Documents executed by Guarantor, including, without
limitation, all interests in Guaranteed Obligations purchased by such Bank. Each
Bank agrees that if it shall, by exercising any right of set-off or counterclaim
or otherwise, receive payment of a proportion of the aggregate amount of
principal and interest due with respect to any Note held by it, which is greater
than the proportion received by any other Bank in respect of the aggregate
amount of principal and interest due with respect to any Note held by such other
Bank, the Bank receiving such proportionately greater payment shall purchase
such participations in the Notes held by the other Banks, and such other
adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Notes held by the Banks shall be
shared by the Banks pro rata; provided that nothing in this paragraph shall
impair the right of any Bank to exercise any right of set-off or counterclaim it
may have and to apply the amount subject to such exercise to the payment of
indebtedness of the Borrower other than its indebtedness under the Notes.
Guarantor agrees, to the fullest extent that it may effectively do so under
applicable law, that any holder of a participation in a Note, whether or not
acquired pursuant to the foregoing arrangements, may exercise rights of set-off
or counterclaim and other rights with respect to such participation as fully as
if such holder of a participation were a direct creditor of Guarantor in the
amount of such participation.
FORM OF GUARANTY 5
(c) To the extent that it lawfully may, Xxxxxxxxx agrees that it shall
not apply for or avail itself of any appraisement, valuation, stay, extension or
exemption laws, or any so-called "moratorium laws," now existing or hereafter
enacted, in order to prevent or hinder the enforcement of this Guaranty, or any
of the Operative Documents, but hereby waives the benefit of such laws.
Guarantor, for itself and all who may claim through or under it waives any and
all right to have the property or estates securing its obligations under this
Guaranty or the Operative Documents marshaled upon any foreclosure of the lien
hereof and agrees that any court having jurisdiction to foreclose such lien may
order such property sold as an entirety. To the fullest extent permitted by law,
Guarantor hereby waives any and all rights of redemption from sale under any
order or decree of foreclosure of the instruments securing its obligations under
this Guaranty or Operative Documents, except decree or judgment of creditors of
Guarantor, acquiring any interest in or title to the property or estates
securing its obligations under this Guaranty or the Operative Documents
subsequent to the date of such instruments.
10. Amendments, Etc. This Guaranty may be amended from time to time and
any provision hereof may be waived in accordance with the requirements of
Section 13.5 of the Credit Agreement. No such amendment or waiver of any
provision of this Guaranty nor consent to any departure by any Guarantor
therefrom shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent and then such amendment, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
11. Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including Bank wire, facsimile transmission
or similar writing) and shall be given to such party at the following addresses:
To KeyBank: With a copy to:
KeyBank National Association Xxxxx X. Xxxxxxxxx, Esq.
000 Xxxxxx Xxxxxx Xxxxxxxx Xxxx & Xxxxx LLP
Cleveland, OH 44114 3900 Key Center, 000 Xxxxxx Xxxxxx
Xxxxxxxxx: Xxxxx Xxxx Xxxxxxxxx, XX 00000
Phone: (000) 000-0000 Phone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
To Guarantor: With a copy to:
Uni-Invest (U.S.A.), Ltd. Uni-Invest (U.S.A.), Ltd.
00 Xxxxx Xxxxxx Xxxxxx 00 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000 Xxxx Xxxxxxxxxx, XX 00000
Attention: Xx. Xxx X. Xxxxxx Attention: Xxxxxx Xxxxxxxx, Esq.
Phone: (000) 000-0000 Phone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
FORM OF GUARANTY 6
To Borrower: With a copy to:
Uni-Invest (U.S.A.), Ltd. Uni-Invest (U.S.A.), Ltd.
00 Xxxxx Xxxxxx Xxxxxx 00 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000 Xxxx Xxxxxxxxxx, XX 00000
Attention: Xx. Xxx X. Xxxxxx Attention: Xxxxxx Xxxxxxxx, Esq.
Phone: (000) 000-0000 Phone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Each such notice, request or other communication shall be effective (i) if given
by telecopy, when such telecopy is transmitted to the telecopy number specified
in this Section and receipt thereof is confirmed by such party's telecopy
machine, (ii) if given by mail, the notice request or other communication shall
be sent via certified mail, return receipt requested, and shall be effective
three (3) days after delivery or (iii) if given by any other means, when
delivered at the address specified in this Section; provided that notices to the
Administrative Agent shall not be effective until received.
12. Conduct No Waiver; Remedies Cumulative. The obligations of
Guarantor under this Guaranty are continuing obligations and a separate and
independent cause of action shall arise in respect of each enforcement hereunder
and default hereunder or under the Credit Agreement. No course of dealing on the
part of the Administrative Agent or any Bank, nor any delay or failure on the
part of the Administrative Agent in exercising any right, power or privilege
hereunder shall operate as a waiver of such right, power or privilege or
otherwise prejudice the rights and remedies of the Administrative Agent
hereunder, nor shall any single or partial exercise thereof preclude any further
exercise thereof or the exercise of any other right, power or privilege. No
right or remedy conferred upon or reserved to the Administrative Agent under
this Guaranty is intended to be exclusive of any other right or remedy, and
every right and remedy shall be cumulative and in addition to every other right
or remedy given hereunder or now or hereafter existing under any applicable law.
Every right and remedy given by this Guaranty or by applicable law to the
Administrative Agent may be exercised from time to time and as often as may be
deemed expedient by it.
13. Reliance on and Survival of Various Provisions. All terms,
covenants, agreements, representations and warranties of Guarantor made herein
or in any certificate or other document delivered pursuant hereto shall be
deemed to be material and to have been relied upon by the Administrative Agent,
notwithstanding any investigation heretofore or hereafter made by the
Administrative Agent or on its behalf.
14. Successors and Assigns. The rights and remedies of the
Administrative Agent hereunder shall inure to the benefit of the Administrative
Agent and its respective successors and assigns, and the duties and obligations
of Guarantor hereunder shall be binding upon Guarantor and its successors and
assigns.
FORM OF GUARANTY 7
15. Survival of the Administrative Agent's Rights and Remedies.
Notwithstanding any provision of this Guaranty to the contrary, the execution
and delivery by Guarantor of this Guaranty, and the Administrative Agent's
acceptance thereof, shall not be deemed to (a) be a consent to any action,
whether heretofore or hereafter taken, by Borrower in violation of any provision
of any Operative Document, (b) be a waiver of any provision of any Operative
Document or (c) prejudice any rights or remedies which the Administrative Agent
may now have or have in the future under or in connection with any Operative
Document, including without limitation any such rights or remedies with respect
to any event of default or event causing or permitting acceleration under any
Operative Document which may heretofore have occurred and be continuing or may
hereafter occur.
16. Definitions; Headings. Terms used but not defined herein shall have
the respective meanings ascribed thereto in the Credit Agreement. The headings
of the various subdivisions hereof are for convenience of reference only and
shall in no way modify any of the terms or provisions hereof.
17. Integration; Severability; Enforceability. This Guaranty embodies
the entire agreement and understanding between Guarantor and the Administrative
Agent, and supersedes all prior agreements and understandings, relating to the
subject matter hereof. If any one or more provisions of this Guaranty should be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected, impaired, prejudiced or disturbed thereby. If at any time any
portion of the obligations of Guarantor under this Guaranty shall be determined
by a court of competent jurisdiction to be invalid, unenforceable or avoidable,
the remaining portion of the obligations of Guarantor under this Guaranty shall
not in any way be affected, impaired, prejudiced or disturbed thereby and shall
remain valid and enforceable to the fullest extent permitted by applicable law.
If at any time all or any portion of the obligations of Guarantor under this
Guaranty would otherwise be determined by a court of competent jurisdiction to
be invalid, unenforceable or avoidable under Section 548 of the Federal
Bankruptcy Code or under a similar applicable law of any jurisdiction, then
notwithstanding any other provisions of this Guaranty to the contrary such
obligation or portion thereof of Guarantor under this Guaranty shall be limited
to the greatest of (a) the value of any quantifiable economic benefits accruing
to Guarantor as a result of this Guaranty, (b) an amount equal to ninety-five
percent (95%) of the excess on the date the relevant Guaranteed Obligations were
incurred of the present fair saleable value of the assets of Guarantor over the
amount of all liabilities of Guarantor, contingent or otherwise and (c) the
maximum amount for which this Guaranty is determined to be enforceable.
18. Reinstatement. This Guaranty shall remain in full force and effect
and continue to be effective in the event any petition be filed by or against
Borrower or Guarantor for liquidation or reorganization, in the event Borrower
or Guarantor becomes insolvent or makes an assignment for the benefit of
creditors or in the event a receiver or trustee be appointed for all or any
significant part of Borrower's or Guarantor's assets, and shall continue to be
effective or be reinstated, as the case may be, if at any time payment and
performance of the Guaranteed Obligations, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
FORM OF GUARANTY 8
returned by the Administrative Agent or the Banks, whether as a "voidable
preference", "fraudulent conveyance", or otherwise, all as though such payment
or performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Guaranteed Obligations
shall be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
19. Counterpart Execution. This Guaranty may be signed upon any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This Guaranty
shall become effective as to Guarantor when a counterpart hereof shall have been
signed by Guarantor.
20. GOVERNING LAW; CONSENT TO JURISDICTION. (A) THIS GUARANTY AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE
WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF OHIO (WITHOUT GIVING EFFECT TO
THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
(B) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY AND
ANY ACTION FOR ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT IN
THE COURTS OF THE STATE OF OHIO OR OF THE UNITED STATES OF AMERICA FOR THE
NORTHERN DISTRICT OF OHIO, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
GUARANTOR HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND
APPELLATE COURTS FROM ANY THEREOF. GUARANTOR IRREVOCABLY CONSENTS TO THE SERVICE
OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE HAND DELIVERY, OR MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER AT ITS ADDRESS SET FORTH IN
SECTION 11 HEREOF. THE GUARANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID
ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT BROUGHT IN THE COURTS REFERRED TO ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
ADMINISTRATIVE AGENT, ANY BANK OR ANY HOLDER OF A NOTE TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST THE GUARANTOR IN ANY OTHER JURISDICTION.
FORM OF GUARANTY 9
21. WAIVER OF JURY TRIAL. GUARANTOR, THE ADMINISTRATIVE AGENT, AND EACH
OF THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, Xxxxxxxxx has caused this Guaranty to be duly
executed and delivered as of the day and year first above written.
UNI-INVEST (U.S.A.) PARTNERSHIP L.P., a
Delaware limited partnership
By: Uni-Invest (U.S.A.), Ltd., a Maryland
corporation, its general partner
By:__________________________________
Name:_____________________________
Title:____________________________
FORM OF GUARANTY 10
EXHIBIT H
SOLVENCY CERTIFICATE
This Certificate is made and delivered to KeyBank National Association,
in connection with (a) the Credit Agreement dated as of May ___, 2000 (the
"Credit Agreement") among Uni-Invest (U.S.A.) Partnership, L.P., a Delaware
limited partnership, as Borrower ("Borrower"), the Banks from time to time party
thereto (the "Banks"), KeyBank National Association, as the Administrative Agent
for itself and the other Banks, and (b) the Notes and all other agreements,
documents and instruments executed and delivered pursuant to such Credit
Agreement by the Borrower (collectively, the "Loan Documents," and the Loan
Documents, all Loans thereunder and all other transactions contemplated pursuant
thereto collectively referred to as the "Transactions"). Except as otherwise
expressly provided herein, terms used but not defined herein shall have the
meanings ascribed thereto in the Credit Agreement.
Pursuant to the Credit Agreement, and acting solely in my capacity as
an officer of Xxxxxxxx and not in my individual capacity, I hereby certify to
the Administrative Agent and the Banks as follows:
1. I am the duly elected, qualified and acting chief financial officer
of Xxxxxxxx, and I have been responsible for acting on behalf of the Borrower in
connection with the negotiation and consummation of the Loan Documents. In
connection with these negotiations, I have been responsible for, among other
things, reviewing the affairs of the Borrower.
2. I have further, for purposes hereof, reviewed the assets and
liabilities of the Borrower. In particular:
A. I have reviewed the financial statements referred to in
Section 6.1 of the Credit Agreement.
B. With respect to contingent and off-balance sheet
liabilities included in the liabilities of the Borrower, I have
consulted with the appropriate officers and employees of the Borrower
and outside counsel of the Borrower concerning pending and threatened
litigation and other contingent liabilities of the Borrower.
On the basis of the review and analysis described above, I have
concluded that, after giving effect to the Transactions:
I. (a) (i) the fair value of the assets of the Borrower, on a
consolidated basis, at a fair valuation, will exceed the debts and liabilities,
subordinated, contingent or otherwise, of the Borrower, on a consolidated basis;
(ii) the Borrower and its Subsidiaries on a consolidated basis will be able to
pay their debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (iii) the Borrower and
its Subsidiaries on a consolidated basis will not have unreasonably small
capital with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted after the date
hereof.
FORM OF SOLVENCY CERTIFICATE 1
(b) Borrower does not intend to, or to permit any of its Subsidiaries
to, and does not believe that it or any of its Subsidiaries will, incur debts
beyond its ability to pay such debts as they mature, taking into account the
timing of and amounts of cash to be received by it or any such Subsidiary and
the timing of the amounts of cash to be payable on or in respect of its Debt or
the Debt of any such Subsidiary.
II. To the best of my knowledge, Xxxxxxxx has not executed any Loan
Document or any documents mentioned therein or made any transfer or incurred any
obligation thereunder or in connection therewith with actual intent to hinder,
defraud or delay either present or future creditors.
EXECUTED AND DELIVERED ON May ___, 2000.
UNI-INVEST (U.S.A.) PARTNERSHIP L.P., a
Delaware limited partnership
By: Uni-Invest (U.S.A.), Ltd., a Maryland
corporation, its general partner
By:_________________________________
Name:____________________________
Title:___________________________
FORM OF SOLVENCY CERTIFICATE 2
EXHIBIT I
SUBSIDIARY GUARANTY AGREEMENT
THIS SUBSIDIARY GUARANTY AGREEMENT, dated as of May ___, 2000 (this
"Guaranty"), is made by ________________________, a _________________ limited
liability company and _____________, a ____________ limited liability company
(the foregoing are hereinafter sometimes referred to individually as a
"Guarantor" and collectively as the "Guarantors"), in favor of KeyBank National
Association, a national banking association ("KeyBank" or "Administrative
Agent"), as Administrative Agent, for the benefit of the Banks under the Credit
Agreement (as defined below).
R E C I T A L S:
A. KeyBank, in its capacity as a Bank and in its capacity as the
Administrative Agent for the Banks, Uni-Invest (U.S.A.) Partnership, L.P., a
Delaware limited partnership, ("Borrower"), and the Banks party thereto entered
into that certain Credit Agreement (Secured Acquisition Loan and Revolving Line
of Credit) dated as of May ___, 2000 (as the same may from time to time be
amended, modified, restated, extended or substituted, the "Credit Agreement").
B. As a condition to the effectiveness of the obligations of the Banks
under the Credit Agreement, each Guarantor is required to guarantee, among other
things, the Obligations of Borrower under the Operative Documents.
C. Each Guarantor has reviewed the Credit Agreement, the Notes, and all
other documents, agreements, instruments and certificates furnished by or on
behalf of Borrower in connection therewith (all of the foregoing, as amended or
modified from time to time and together with any agreements or instruments in
replacement thereof, being herein collectively referred to as the "Operative
Documents"), and each Guarantor has determined that it is in its interest and to
its financial benefit that the parties to the Operative Documents enter into the
transactions contemplated thereby.
For valuable consideration, the receipt of which is hereby acknowledged
and as further consideration, and as an inducement to the Banks to maintain the
credit facilities established by the Operative Documents, each Guarantor agrees
with the Administrative Agent for the benefit of the Banks as follows:
1. Guarantee of Obligations. (a) Each Guarantor hereby (i) guarantees,
as principal obligor and not as surety only, to the Administrative Agent and the
Banks the prompt payment of the principal of and any and all accrued and unpaid
interest (including interest which otherwise may cease to accrue by operation of
any insolvency law, rule, regulation or interpretation thereof) on the Loans and
all other obligations of Borrower to the Administrative Agent and the Banks
under the Credit Agreement when due, whether by scheduled maturity, acceleration
or otherwise, all in accordance with the terms of the Credit Agreement and the
Notes, including, without limitation, default interest, all reimbursement
obligations under any letters of credit, indemnification payments and all
reasonable costs and expenses incurred by the Administrative Agent in connection
with enforcing any obligations of Borrower hereunder, including without
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GUARANTY AGREEMENT
limitation the reasonable fees and disbursements of counsel, (ii) guarantees the
prompt and punctual performance and observance of each and every term, covenant
or agreement contained in any Operative Document to be performed or observed on
the part of Borrower, (iii) guarantees the prompt and complete payment of all
obligations and performance of all covenants of Borrower under any interest rate
or currency swap agreements or similar transactions with the Administrative
Agent or any Bank entered into pursuant to or in connection with the Credit
Agreement, and (iv) agrees to make prompt payment, on demand, of any and all
reasonable costs and expenses incurred by the Administrative Agent in connection
with enforcing the obligations of any Guarantor hereunder, including, without
limitation, the reasonable fees and disbursements of counsel (all of the
foregoing being collectively referred to as the "Guaranteed Obligations").
(b) If for any reason any duty, agreement or obligation of Borrower
contained in any Operative Document shall not be performed or observed by
Borrower as provided therein, or if any amount payable under or in connection
with any Operative Document shall not be paid in full when the same becomes due
and payable, each Guarantor undertakes, but without duplication, to perform or
cause to be performed promptly, each of such duties, agreements and obligations
and to pay forthwith each such amount regardless of any defense or setoff or
counterclaim which Borrower may have or assert, and regardless of any other
condition or contingency.
2. Nature of Guaranty. This Guaranty is an absolute and unconditional
and irrevocable guaranty of payment and not a guaranty of collection and is
wholly independent of and in addition to other rights and remedies of the
Administrative Agent and is not contingent upon the pursuit by the
Administrative Agent of any such rights and remedies, such pursuit being hereby
waived by each Guarantor.
3. Waivers and Other Agreements. Each Guarantor hereby unconditionally
(a) waives any requirement that the Administrative Agent, upon the occurrence of
an Event of Default first make demand upon, or seek to enforce remedies against
Borrower or any other Guarantor or any other party now or hereafter liable,
whether as Guarantor or otherwise, for any of the Guaranteed Obligations, before
demanding payment under or seeking to enforce this Guaranty, (b) covenants that
this Guaranty will not be discharged except by complete performance of all
obligations of Borrower contained in the Operative Documents, (c) agrees that
this Guaranty shall remain in full force and effect without regard to, and shall
not be affected or impaired, without limitation, by any invalidity, irregularity
or unenforceability in whole or in part of any of the Operative Documents, or
any limitation on the liability of Borrower thereunder (other than those
limitations expressly set forth in the other Loan Documents), or any limitation
on the method or terms of payment thereunder which may hereafter be caused or
imposed in any manner whatsoever (including, without limitation, usury laws),
(d) waives diligence, presentment and protest with respect to, and any notice of
default or dishonor in the payment of, any amount at any time payable by
Borrower under or in connection with any of the Operative Documents, and further
waives notice of any of the matters referred to in paragraph 4 below, and
further waives all notices which may be required by statute, rule of law or
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GUARANTY AGREEMENT
otherwise to preserve any rights of the Administrative Agent, including without
limitation any requirement of notice of acceptance of, or other formality
relating to this Guaranty to the extent permitted by applicable law and (e)
agrees that the Guaranteed Obligations shall include any amounts paid by
Borrower to the Administrative Agent which may be required to be returned to
Borrower or to a trustee, custodian or receiver for Borrower.
4. Obligations Absolute. The obligations, covenants, agreements and
duties of any Guarantor under this Guaranty shall not be released, affected or
impaired by any of the following whether or not undertaken with notice to or
consent of any Guarantor: (a) an assignment or transfer, in whole or in part, of
any of the Guaranteed Obligations or any of the Operative Documents although
made without notice to or consent of any Guarantor; (b) any waiver by the
Administrative Agent or by any other person, of the performance or observance by
Borrower of any of the agreements, covenants, terms or conditions contained in
any of the Operative Documents; (c) any indulgence in or the extension of the
time for payment by the Borrower of any amounts payable under or in connection
with any of the Operative Documents, or of the time for performance by Borrower
of any other obligations under or arising out of any of the Operative Documents,
or the extension or renewal thereof; (d) the modification, amendment or waiver
(whether material or otherwise) of any duty, agreement or obligation of Borrower
set forth in any of the Operative Documents (the modification, amendment or
waiver from time to time of any of the Operative Documents to which Borrower is
a party being expressly authorized without further notice to or consent of any
Guarantor); (e) the voluntary or involuntary liquidation, sale or other
disposition of all or substantially all of the assets of Borrower or any
receivership, insolvency, bankruptcy, reorganization, or other similar
proceedings, affecting Borrower or any of its respective assets; (f) the merger
or consolidation of Borrower with or into any other person or any transfer or
other disposition of any shares of capital stock of Borrower by the holder
thereof; (g) the release or discharge of Borrower by operation of law from the
performance or observance of any agreement, covenant, term or condition
contained in any Operative Document; (h) the release of any security, if any,
for the obligations of Borrower under any of the Operative Documents, or the
impairment of or failure to perfect an interest in any such security; (i) any
exercise or non-exercise of any right, remedy, power or privilege in respect of
this Guaranty or any of the Operative Documents, including without limitation
the release, discharge, or variance of the liability of any Guarantor; or (j)
any other cause whether similar or dissimilar to the foregoing which would
release, affect or impair the obligations, covenants, agreements or duties of
any Guarantor hereunder.
5. Joint and Several Obligations. The obligations of Guarantors
hereunder shall be several and also joint each with all or with any one or more
of the other parties now or hereafter guaranteeing any of the Guaranteed
Obligations, and such obligations of Guarantors may be enforced against each
Guarantor separately or against any two or more jointly, or against some
separately and some jointly.
6. No Investigation by the Administrative Agent. Each Guarantor hereby
waives unconditionally any obligation which, in absence of such provision, the
Administrative Agent might otherwise have to investigate or to assure that there
has been compliance with the law of any jurisdiction with respect to the
Guaranteed Obligations recognizing that, to save both time and expense, each
Guarantor has requested that the Administrative Agent not undertake such
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GUARANTY AGREEMENT
investigation. Each Guarantor hereby expressly confirms that the obligations of
such Guarantor hereunder shall remain in full force and effect without regard to
compliance or noncompliance with any such law and irrespective of any
investigation or knowledge of any of the Administrative Agent of any such law.
7. Indemnity. As a separate, additional and continuing obligation, each
Guarantor unconditionally and irrevocably undertakes and agrees with the
Administrative Agent that, should the Guaranteed Obligations not be recoverable
from any Guarantor under paragraph 1 hereof for any reason whatsoever
(including, without limitation, by reason of any provision of this Guaranty or
any Operative Document being or becoming void, unenforceable, or otherwise
invalid under any applicable law) then, notwithstanding any knowledge thereof by
any of the Administrative Agent at any time, each Guarantor as sole, original
and independent obligor, upon demand by the Administrative Agent, will make
payment to the Administrative Agent of the Guaranteed Obligations by way of a
full indemnity in such currency and otherwise in such manner as is provided in
this Guaranty and the Operative Documents.
8. Subordination. Each Guarantor agrees that any present or future
indebtedness, obligations or liabilities of Borrower to such Guarantor shall be
fully subordinate and junior in right and priority of payment to any present or
future indebtedness, obligations or liabilities of Borrower to the
Administrative Agent. Each Guarantor waives any right of subrogation to the
rights of any Guarantor against Borrower or any other person obligated for
payment of the Guaranteed Obligations and any right of reimbursement or
indemnity whatsoever arising or accruing out of any payment which such Guarantor
may make pursuant to this Guaranty and the Notes, and any right of recourse to
security for the debts and obligations of Borrower, unless and until the entire
principal balance of and interest on the Guaranteed Obligations shall have been
paid in full.
9. Representations, Warranties and Covenants. (a) Each Guarantor
represents and warrants that: (i) the execution, delivery and performance by
such Guarantor of this Guaranty are within its corporate powers, have been duty
authorized by all necessary corporate action, require no action by or in respect
of, or filing with, any governmental body, and do not contravene, or constitute
a default under, any provision of applicable law or regulation or of the
articles of incorporation or other charter documents or bylaws of such
Guarantor, or of any agreement, judgment, injunction, order, decree or other
instrument binding upon such Guarantor or its property; (ii) this Guaranty
constitutes a legal, valid and binding obligation of such Guarantor, enforceable
against such Guarantor in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to creditors' rights and except that
the remedy of specific performance and injunctive and other forms of equitable
relief are subject to equitable defenses and to the discretion of the court for
which any proceedings may be brought; and (iii) as of the date hereof, each of
the following is true and correct for such Guarantor: (A) the fair saleable
value and the fair valuation of such Guarantor's property is greater than the
total amount of its liabilities (excluding contingent liabilities) and greater
than the amount that would be required to pay its probable aggregate liability
on its existing debts as they become absolute and matured, (B) such Guarantor's
capital is not unreasonably small in relation to its current and/or contemplated
business or other undertaken transactions, and (C) such Guarantor does not
intend to incur, or believe that it will incur, debt beyond its ability to pay
such debts as they become due.
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GUARANTY AGREEMENT
(b) Each Guarantor covenants and agrees that: (i) it will not directly
or indirectly create, incur, assume or permit to exist any Lien on or with
respect to any Property acquired in whole or in part with the proceeds of any
Loan except as permitted by the Credit Agreement; (ii) it will not convey, sell,
transfer, assign, pledge or otherwise dispose of all or any portion of its
assets to the extent the value of such assets either individually or in the
aggregate exceeds five percent (5%) of the Total Asset Value of all assets of
such Guarantor, unless permitted by the Credit Agreement; and (iii) it will not
directly or indirectly create, incur, assume or permit to exist any Debt, except
as permitted by the Credit Agreement.
10. Remedies. (a) Upon the occurrence and during the continuance of any
Event of Default, the Administrative Agent, on behalf of the Banks, may, in
addition to the remedies provided in the Operative Documents, enforce its rights
either by suit in equity, or by action at law, or by other appropriate
proceedings, whether for the specific performance (to the extent permitted by
law) of any covenant or agreement contained in this Guaranty or in aid of the
exercise of any power granted in this Guaranty and may enforce payment under
this Guaranty and any of its other rights available at law or in equity.
(b) In addition to any rights now or hereafter granted under applicable
law or otherwise, and not by way of limitation of any such rights, upon the
occurrence and during the continuance of any Event of Default, each Bank is
hereby authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to any Guarantor or to any other Person, any
such notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special, time or demand, provisional or
final), other than deposits held for payroll or the benefit of third parties,
and any other indebtedness at any time held or owing by such Bank (including,
without limitation, by branches and agencies of such Bank wherever located) to
or for the credit or the account of the Guarantor against and on account of the
Guaranteed Obligations then due and payable to such Bank under this Agreement or
under any of the other Loan Documents executed by any Guarantor, including,
without limitation, all interests in Guaranteed Obligations purchased by such
Bank. Each Bank agrees that if it shall, by exercising any right of set-off or
counterclaim or otherwise, receive payment of a proportion of the aggregate
amount of principal and interest due with respect to any Note held by it, which
is greater than the proportion received by any other Bank in respect of the
aggregate amount of principal and interest due with respect to any Note held by
such other Bank, the Bank receiving such proportionately greater payment shall
purchase such participations in the Notes held by the other Banks, and such
other adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Notes held by the Banks shall be
shared by the Banks pro rata; provided that nothing in this paragraph shall
impair the right of any Bank to exercise any right of set-off or counterclaim it
may have and to apply the amount subject to such exercise to the payment of
indebtedness of the Borrower other than its indebtedness under the Notes. Each
Guarantor agrees, to the fullest extent that it may effectively do so under
applicable law, that any holder of a participation in a Note, whether or not
acquired pursuant to the foregoing arrangements, may exercise rights of set-off
or counterclaim and other rights with respect to such participation as fully as
if such holder of a participation were a direct creditor of such Guarantor in
the amount of such participation.
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GUARANTY AGREEMENT
(c) To the extent that it lawfully may, each Guarantor agrees that it
shall not apply for or avail itself of any appraisement, valuation, stay,
extension or exemption laws, or any so-called "moratorium laws," now existing or
hereafter enacted, in order to prevent or hinder the enforcement of this
Guaranty, or any of the Operative Documents, but hereby waives the benefit of
such laws. Each Guarantor, for itself and all who may claim through or under it
waives any and all right to have the property or estates securing its
obligations under this Guaranty or the Operative Documents marshaled upon any
foreclosure of the lien hereof and agrees that any court having jurisdiction to
foreclose such lien may order such property sold as an entirety. To the fullest
extent permitted by law, each Guarantor hereby waives any and all rights of
redemption from sale under any order or decree of foreclosure of the instruments
securing its obligations under this Guaranty or Operative Documents, except
decree or judgment of creditors of any Guarantor, acquiring any interest in or
title to the property or estates securing its obligations under this Guaranty or
the Operative Documents subsequent to the date of such instruments.
11. Amendments, Etc. This Guaranty may be amended from time to time and
any provision hereof may be waived in accordance with the requirements of
Section 13.5 of the Credit Agreement. No such amendment or waiver of any
provision of this Guaranty nor consent to any departure by any Guarantor
therefrom shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent and then such amendment, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
12. Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including Bank wire, facsimile transmission
or similar writing) and shall be given to such party at the following addresses:
To KeyBank: With a copy to:
KeyBank National Association Xxxxx X. Xxxxxxxxx, Esq.
000 Xxxxxx Xxxxxx Xxxxxxxx Xxxx & Xxxxx LLP
Cleveland, OH 44114 3900 Key Center, 000 Xxxxxx Xxxxxx
Xxxxxxxxx: Xxxxx Xxxx Xxxxxxxxx, XX 00000
Phone: (000) 000-0000 Phone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
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GUARANTY AGREEMENT
To Guarantor 1: With a copy to:
Attention:______________ Attention:___________________
Phone: ( )___________ Phone:_______________________
Facsimile: ( )_______ Facsimile:___________________
To Guarantor 2: With a copy to:
Attention:_______________ Attention:___________________
Phone: ( )____________ Phone:_______________________
Facsimile: ( )________ Facsimile:___________________
To Borrower: With a copy to:
Uni-Invest (U.S.A.) Partnership, L.P. Uni-Invest (U.S.A.), Ltd.
00 Xxxxx Xxxxxx Xxxxxx 00 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000 Xxxx Xxxxxxxxxx, XX 00000
Attention: Xx. Xxx X. Xxxxxx Attention: Xxxxxx Xxxxxxxx, Esq.
Phone: (000) 000-0000 Phone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Each such notice, request or other communication shall be effective (i) if given
by telecopy, when such telecopy is transmitted to the telecopy number specified
in this Section, (ii) if given by mail, the notice, request or other
communication shall be sent via certified mail, return receipt requested and
shall be effective three (3) days after delivery or (iii) if given by any other
means, when delivered at the address specified in this Section; provided that
notices to the Administrative Agent shall not be effective until received.
13. Conduct No Waiver; Remedies Cumulative. The obligations of each
Guarantor under this Guaranty are continuing obligations and a separate and
independent cause of action shall arise in respect of each enforcement hereunder
and default hereunder or under the Credit Agreement. No course of dealing on the
part of the Administrative Agent or any Bank, nor any delay or failure on the
part of the Administrative Agent in exercising any right, power or privilege
hereunder shall operate as a waiver of such right, power or privilege or
otherwise prejudice the rights and remedies of the Administrative Agent
hereunder, nor shall any single or partial exercise thereof preclude any further
exercise thereof or the exercise of any other right, power or privilege. No
right or remedy conferred upon or reserved to the Administrative Agent under
this Guaranty is intended to be exclusive of any other right or remedy, and
every right and remedy shall be cumulative and in addition to every other right
or remedy given hereunder or now or hereafter existing under any applicable law.
Every right and remedy given by this Guaranty or by applicable law to the
Administrative Agent may be exercised from time to time and as often as may be
deemed expedient by it.
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GUARANTY AGREEMENT
14. Reliance on and Survival of Various Provisions. All terms,
covenants, agreements, representations and warranties of each Guarantor made
herein or in any certificate or other document delivered pursuant hereto shall
be deemed to be material and to have been relied upon by the Administrative
Agent, notwithstanding any investigation heretofore or hereafter made by the
Administrative Agent or on its behalf.
15. Successors and Assigns. The rights and remedies of the
Administrative Agent hereunder shall inure to the benefit of the Administrative
Agent and its respective successors and assigns, and the duties and obligations
of each Guarantor hereunder shall be binding upon such Guarantor and its
successors and assigns.
16. Survival of the Administrative Agent's Rights and Remedies.
Notwithstanding any provision of this Guaranty to the contrary, the execution
and delivery by Guarantors of this Guaranty, and the Administrative Agent's
acceptance thereof, shall not be deemed to (a) be a consent to any action,
whether heretofore or hereafter taken, by Borrower in violation of any provision
of any Operative Document, (b) be a waiver of any provision of any Operative
Document or (c) prejudice any rights or remedies which the Administrative Agent
may now have or have in the future under or in connection with any Operative
Document, including without limitation any such rights or remedies with respect
to any event of default or event causing or permitting acceleration under any
Operative Document which may heretofore have occurred and be continuing or may
hereafter occur.
17. Definitions; Headings. Terms used but not defined herein shall have
the respective meanings ascribed thereto in the Credit Agreement. The headings
of the various subdivisions hereof are for convenience of reference only and
shall in no way modify any of the terms or provisions hereof.
18. Integration; Severability; Enforceability. This Guaranty embodies
the entire agreement and understanding among Guarantors and the Administrative
Agent, and supersedes all prior agreements and understandings, relating to the
subject matter hereof. If any one or more provisions of this Guaranty should be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected, impaired, prejudiced or disturbed thereby. If at any time any
portion of the obligations of any Guarantor under this Guaranty shall be
determined by a court of competent jurisdiction to be invalid, unenforceable or
avoidable, the remaining portion of the obligations of such Guarantor and each
other Guarantor under this Guaranty shall not in any way be affected, impaired,
prejudiced or disturbed thereby and shall remain valid and enforceable to the
fullest extent permitted by applicable law. If at any time all or any portion of
the obligations of any Guarantor under this Guaranty would otherwise be
determined by a court of competent jurisdiction to be invalid, unenforceable or
avoidable under Section 548 of the Federal Bankruptcy Code or under a similar
applicable law of any jurisdiction, then notwithstanding any other provisions of
this Guaranty to the contrary such obligation or portion thereof of such
Guarantor under this Guaranty shall be limited to the greatest of (a) the value
FORM OF SUBSIDIARY 8
GUARANTY AGREEMENT
of any quantifiable economic benefits accruing to such Guarantor as a result of
this Guaranty, (b) an amount equal to ninety-five percent (95%) of the excess on
the date the relevant Guaranteed Obligations were incurred of the present fair
saleable value of the assets of such Guarantor over the amount of all
liabilities of such Guarantor, contingent or otherwise and (c) the maximum
amount for which this Guaranty is determined to be enforceable.
19. Reinstatement. This Guaranty shall remain in full force and effect
and continue to be effective in the event any petition be filed by or against
Borrower or any Guarantor for liquidation or reorganization, in the event
Borrower or any Guarantor becomes insolvent or makes an assignment for the
benefit of creditors or in the event a receiver or trustee be appointed for all
or any significant part of Borrower's or any Guarantor's assets, and shall
continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Guaranteed Obligations, or any part thereof, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by the Administrative Agent or the Banks, whether as a
"voidable preference", "fraudulent conveyance", or otherwise, all as though such
payment or performance had not been made. In the event that any payment, or any
part thereof, is rescinded, reduced, restored or returned, the Guaranteed
Obligations shall be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.
20. Counterpart Execution. This Guaranty may be signed upon any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This Guaranty
shall become effective as to each Guarantor when a counterpart hereof shall have
been signed by such Guarantor.
21. GOVERNING LAW; CONSENT TO JURISDICTION. (A) THIS GUARANTY AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE
WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF OHIO (WITHOUT GIVING EFFECT TO
THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
(B) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY AND
ANY ACTION FOR ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT IN
THE COURTS OF THE STATE OF OHIO OR OF THE UNITED STATES OF AMERICA FOR THE
NORTHERN DISTRICT OF OHIO, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH GUARANTOR HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS AND APPELLATE COURTS FROM ANY THEREOF. EACH GUARANTOR IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE HAND DELIVERY, OR MAILING OF COPIES THEREOF
BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER AT ITS ADDRESS
SET FORTH IN SECTION 12 HEREOF. EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF
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GUARANTY AGREEMENT
THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT BROUGHT IN THE COURTS REFERRED TO ABOVE AND
HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH
COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
ADMINISTRATIVE AGENT, ANY BANK OR ANY HOLDER OF A NOTE TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST SUCH GUARANTOR IN ANY OTHER JURISDICTION.
22. WAIVER OF JURY TRIAL. EACH GUARANTOR, THE ADMINISTRATIVE AGENT, AND
EACH OF THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly
executed and delivered as of the day and year first above written.
______________________________________
By:___________________________________
Its:__________________________________
FORM OF SUBSIDIARY 10
GUARANTY AGREEMENT
EXHIBIT J
FORM OF ASSIGNMENT AND ASSUMPTION
AGREEMENT dated as of May ___, 2000 among [ASSIGNOR] (the "Assignor"),
[ASSIGNEE] (the "Assignee"), UNI-INVEST (U.S.A.) PARTNERSHIP, L.P., a Delaware
limited partnership (the "Borrower") and KEYBANK NATIONAL ASSOCIATION, as
Administrative Agent (the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, this Assignment and Assumption Agreement (the "Assignment")
relates to the Credit Agreement dated as of May ___, 2000 (the "Loan Agreement")
among the Borrower, the Assignor and the other Banks party thereto, as Xxxxx.
WHEREAS, as provided under the Loan Agreement, the Assignor has a
Commitment to make Loans to the Borrower in an aggregate principal amount at any
time outstanding not to exceed $10,000,000.00;
WHEREAS, Loans made to the Borrower by the Assignor under the Loan
Agreement in the aggregate principal amount of $______________ are outstanding
at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Loan Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $______________ (the "Assigned
Amount"), together with a corresponding portion of its outstanding Loans, and
the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Loan Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Loan Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Loan Agreement to the extent of the Assigned Amount, including the purchase from
the Assignor of the corresponding portion of the principal amount of the Loans
made by the Assignor outstanding at the date hereof. Upon the execution and
delivery hereof by the Assignor, the Assignee, the Borrower and the
Administrative Agent and the payment of the amounts specified in Section 3
required to be paid on the date hereof (i) the Assignee shall, as of the date
hereof, succeed to the rights and be obligated to perform the obligations of a
Bank under the Loan Agreement with a Commitment in an amount equal to the
FORM OF ASSIGNMENT 1
AND ASSUMPTION
Assigned Amount, and (ii) the Commitment of the Assignor shall as of the date
hereof, be reduced by a like amount and the Assignor released from its
obligations under the Loan Agreement to the extent such obligations have been
assumed by the Assignee. The assignment provided for herein shall be without
recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them.(1) It is
understood that Unused Commitment Fees and Extension Fees accrued to the date
hereof are for the account of the Assignor and such fees accruing from and
including the date hereof are for the account of the Assignee. Each of the
Assignor and the Assignee hereby agrees that if it receives any amount under the
Loan Agreement which is for the account of the other party hereto, it shall
receive the same for the account of such other party to the extent of such other
party's interest therein and shall promptly pay the same to such other party.
SECTION 4. Consent of the Borrower and the Agent Xxxxx. This Agreement
is conditioned upon the written consent of the Borrower and the consent of the
Administrative Agent pursuant to Section 13.6 of the Loan Agreement. The
execution of this Agreement by the Borrower and the Agent Xxxxx is evidence of
the required consents. Pursuant to Section 13.6(c) of the Credit Agreement, the
Borrower agrees to execute and deliver, if required, a new Note payable to the
order of the Assignee to evidence the assignment and assumption provided for
herein, and the Administrative Agent agrees to cause any replaced Note to be
surrendered to the Borrower.
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the obligations of the Borrower
in respect of the Loan Agreement or any Note. The Assignee acknowledges that it
has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrower.
SECTION 6. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH
AND BE GOVERNED BY THE LAWS OF THE STATE OF OHIO (WITHOUT GIVING EFFECT TO THE
PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
--------
(1) The amount should combine principal together with accrued interest
and breakage compensation, if any, to be paid by the Assignee, net of any
portion of any upfront fee to be paid by the Assignor to the Assignee. It may be
preferable in an appropriate case to specify these amounts generically or by
formula rather than as a fixed sum.
FORM OF ASSIGNMENT 2
AND ASSUMPTION
SECTION 7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By:______________________________________
Name:_________________________________
Title:________________________________
[ASSIGNEE]
By:______________________________________
Name:_________________________________
Title:________________________________
KEYBANK NATIONAL ASSOCIATION, as
Administrative Agent
By:______________________________________
Name:_________________________________
Title:________________________________
FORM OF ASSIGNMENT 3
AND ASSUMPTION
Schedule 2.4(f)
Employees Authorized to Execute Notice of Borrowing
Xxx X. Xxxxxx Chairman of the Board and Chief Executive Officer
Xxx X. Xxxxxx President
Xxxxxx X. Xxxxxx Vice President
1
Schedule 3.4(a)(ix)
ESTOPPEL CERTIFICATE AND AGREEMENT OF SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT
THIS ESTOPPEL CERTIFICATE AND AGREEMENT OF SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT ("Agreement") is made by and among
______________________, a(n) _______________________________ ("Lessee"),
Uni-Invest (U.S.A.) Partnership, L.P., a Delaware limited partnership ("Lessor")
and KEYBANK NATIONAL ASSOCIATION, a national banking association ("KeyBank"), as
a Bank and Administrative Agent for the Banks under the Credit Agreement (as
hereinafter defined). All capitalized terms used herein that are not defined
herein shall have the meaning ascribed to such terms in the Credit Agreement
unless the context requires otherwise.
W I T N E S S E T H:
WHEREAS, KeyBank, in its capacity as a Bank and in its capacity as the
Administrative Agent for the Banks and Lessor, as Borrower ("Borrower") entered
into that certain Credit Agreement (Secured Acquisition Loan and Revolving Line
of Credit) dated as of May ___, 2000 (as the same may from time to time be
amended, modified, restated, extended or substituted, the "Credit Agreement");
WHEREAS, the Credit Agreement obligates the Banks to make Loans to
Borrower in principal amounts not to exceed Ten Million and 00/100 Dollars
($10,000,000.00) in the aggregate, such Loans being evidenced by the Notes from
the Borrower, dated of even date herewith, (collectively, as the same may from
time to time be renewed, amended, modified, restated, supplemented, extended or
substituted, the "Notes");
WHEREAS, the Notes are secured by, among other things, a Mortgage [Deed
of Trust], Security Agreement and Fixture Filing dated _______________, recorded
with the ______________ County, _____________ Recorder's Office (the "Recording
Office") as Document No. ________________ (the "Mortgage") and an Assignment of
Leases, Rents and Security Deposits dated _______________, recorded at the
Recording Office as Document No. ________________ (the "Assignment") each
granted by Lessor, in favor of KeyBank, as Administrative Agent for the Banks;
WHEREAS, Lessee has entered into that certain Lease with Lessor dated
as of ________________, ________, a copy of which is attached hereto, (as the
same may hereafter be amended or supplemented with the Bank's consent, the
"Lease"), pursuant to which Lessor did lease, let, and demise the real property
or portion of real property described on Exhibit A attached hereto and made a
part hereof all as more particularly described in the Lease (the "Premises");
1
WHEREAS, Xxxxxx acknowledges and agrees to the Assignment, and more
particularly, the covenants and agreements of Lessor set forth therein; and
WHEREAS, the parties hereto desire to establish additional rights of
quiet and peaceful possession for the benefit of Xxxxxx, and further to define
the covenants, terms, and conditions precedent to such additional rights.
NOW, THEREFORE, in consideration of the covenants, terms, conditions,
agreements, and demises herein contained, and in consideration of other good and
valuable consideration, each to the other, the sufficiency and receipt of which
are hereby acknowledged, the parties hereto agree, covenant, and warrant as
follows:
1. Subordination of Lease. The Lease is and shall be subject and
subordinate to the Mortgage and the Assignment, and to all renewals,
modifications, consolidations, replacements, and extensions of either.
2. Non-Disturbance of Lessee. Subject to the observance and performance
by Xxxxxx of all of the covenants, terms and conditions of the Lease, KeyBank
hereby covenants that in the event KeyBank obtains title to the Premises, either
by foreclosure or by deed in lieu of foreclosure, and thereafter obtains the
right of possession of the Premises, that the Lease will continue in full force
and effect, and KeyBank shall recognize the Lease and the Lessee's rights
thereunder.
3. Attornment. Lessee shall attorn to (a) KeyBank when in possession of
the Premises; (b) a receiver appointed in an action or proceeding to foreclose
the Mortgage; or (c) to any party acquiring title to the Premises, and shall
execute and deliver upon request an appropriate agreement of attornment
thereunder. Lessee waives all joinder and/or service of any and all foreclosure
actions by KeyBank under the Notes and Mortgage and of any actions of law by
KeyBank to gain possession of the Premises. It shall not be necessary, except as
required by law, for KeyBank to name Xxxxxx as a party to enforce its rights
under the Notes or Mortgage, or any other Loan Document collateralizing the
Loans, or to prosecute any action at law to gain possession of the Premises,
and, unless required by law, KeyBank agrees not to name Xxxxxx in any such
proceeding.
4. No Merger of Estates. In the event Lessee acquires any title or
interest in the Premises subject to the Lease, there shall be no merger of the
estates of the Lessor and Lessee, and the Lease and Lessee's obligations
thereunder shall continue in full force and effect.
5. Notice of Defaults/Termination; Right of Lessee to Cure. Xxxxxx
agrees to give KeyBank by registered or certified mail, return receipt requested
as provided in Section 8 hereof, (a) a copy of any notice of default served upon
Lessor, (b) notice of any acts or matters on which Lessee may claim or predicate
a default by Lessor under the Lease or (c) notice of any termination or proposed
termination of the Lease. In the case of any notice of default, such notice of
default shall specify the nature and extent of all defaults then existing. No
2
notice of the matters described in this Section 5 given by Lessee to the Lessor
shall be legally effective unless a copy of such notice shall have been given by
Xxxxxx as required in the preceding sentence to KeyBank. Xxxxxx further agrees
that if Lessor shall have failed to cure any default within the time period
provided for in the Lease, then KeyBank shall have the right, but not the
obligation, to perform any term, covenant, condition or agreement and to cure
such default as set forth in the Lease (and Lessee shall accept such performance
by KeyBank with the same force and effect as if performed by Lessor), within (x)
in the case of a monetary default, the five (5)-day period following the
expiration of Xxxxxx'x xxxxx period applicable to the default as provided in the
Lease, or (y) in the case of a non-monetary default, the thirty (30)-day period
following the expiration of the Xxxxxx'x xxxxx period applicable to such default
as provided in the Lease, provided, however, if such default cannot be cured
within such thirty (30)-day period then KeyBank shall have such additional time
as may be necessary if, within such thirty (30)-day period, KeyBank has
commenced and are diligently pursuing the remedies necessary to cure such
default, in which event the Lease shall not be terminated while such remedies
are being so diligently pursued.
6. Modification of Lease. Lessee hereby covenants and agrees that
Xxxxxx shall not, without the express written consent of KeyBank in its sole
discretion, (a) amend, modify or waive the provisions of the Lease, in any
material respect, or (b) reduce the rents under, or shorten the term of, the
Lease.
7. Certifications of Lessee. Lessee hereby certifies and represents to
KeyBank:
(a) that the Lease attached to this Agreement has not been
modified, changed, altered or amended in any respect and is the only
and entire lease or agreement between the Lessee and the Lessor
affecting the Premises; and that the Lease is valid and in full force
and effect;
(b) that the Lessee is in possession of the Premises leased
under the Lease; that all improvements required to be constructed by
Lessor under the Lease are complete and have been accepted by Xxxxxx;
(c) that the commencement date of the Lease was
______________________, _____ and the expiration date is
---------------------, ---;
(d) that neither Lessee nor Lessor is currently in default
under the Lease, nor has any event occurred that will constitute a
default after notice and/or the lapse of any applicable grace period,
and that Lessee has no charge, lien or claim of offset under the Lease
or otherwise against rents or other charges due or to become due
thereunder;
(e) that the current rent due under the Lease is
______________ and date of last payment ________________________ was
_____________________; and that no rent has been paid more than thirty
(30) days in advance;
3
(f) that Lessee has made no agreements with Lessor its agents
or employees concerning free rent, partial, rent, rebate or rental
payments or any other type of rental concession other than as set forth
in the Lease; that Xxxxxx's interest in the Lease has not been assigned
and the Premises have not been sublet; and
(g) that there is no action, suit or proceeding pending
against Lessee which questions the validity of the Lease or which would
adversely affect Lessee's ability to perform its obligations under the
Lease; and that no actions, whether voluntary or otherwise, are pending
against Lessee under the bankruptcy laws of the United States or any
state thereof.
8. Notices. Any notices hereunder shall be effective upon mailing by
certified mail, return receipt requested, addressed as follows:
To KeyBank: With a copy to:
KeyBank National Association Xxxxx X. Xxxxxxxxx, Esq.
000 Xxxxxx Xxxxxx Xxxxxxxx Xxxx & Xxxxx LLP
Cleveland, OH 44114 3900 Key Center, 000 Xxxxxx Xxxxxx
Xxxxxxxxx: Xxxxx Xxxx Xxxxxxxxx, XX 00000
Phone: (000) 000-0000 Phone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
To Lessee: With a copy to:
Attention: _____________________ Attention:__________________________
Phone:__________________________ Phone: ( )_______________________
Facsimile: ( ) ______________ Facsimile: ( )___________________
To Lessor: With a copy to:
Uni-Invest (U.S.A.) Partnership, L.P. Uni-Invest (U.S.A.), Ltd.
00 Xxxxx Xxxxxx Xxxxxx 00 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000 Xxxx Xxxxxxxxxx, XX 00000
Attention: Xx. Xxx X. Xxxxxx Attention: Xxxxxx Xxxxxxxx, Esq.
Phone: (000) 000-0000 Phone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
or as to each party, to such other address as the party may designate by a
notice given in accordance with the requirements contained in this Section 8.
4
9. Miscellaneous. (a) This Agreement contains the entire agreement
between the parties hereto. No variations, modifications or changes herein or
hereof shall be binding upon any party hereto unless set forth in a document
duly executed by or on behalf of such party.
(b) This instrument may be executed in multiple counterparts, all of
which shall be deemed originals and with the same effect as if all parties
hereto had signed the same document. All of such counterparts shall be construed
together and shall constitute one instrument, but in making proof, it shall only
be necessary to produce one such counterpart.
(c) Whenever used herein, the singular number shall include the plural,
the plural the singular, and the use of any gender shall include all genders.
The words, "KeyBank", "Banks", "Lessor" and "Lessee" shall include their
successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed, sealed and delivered in their respective names and in their behalf; and,
if a corporation or other entity, by its officers or other parties duly
authorized, as of the date stated above.
LESSEE:
Witnessed by (as to both signatures): [XXXXXX XXXXXX'S NAME]
By:________________________________
Print Name:__________________________
Name:___________________________ Title:_________________________
By:_______________________________
Print Name:_________________________
Name:__________________________ Title:________________________
LESSOR:
Witnessed by (as to both signatures): UNI-INVEST (U.S.A.) PARTNERSHIP L.P., a
Delaware limited partnership
By: Uni-Invest (U.S.A.), Ltd., a Maryland
corporation, its general partner
By:_____________________________________
Print Name:________________________________
Name: _________________________ Title:_______________________________
5
By:____________________________
Print Name:_______________________
Name:__________________________ Title:______________________
KEYBANK:
Witnessed by: KEYBANK NATIONAL ASSOCIATION
By:____________________________
Print Name:_____________________
Name:_________________________ Title:____________________
Print
Name:_________________________
6
STATE OF )
) SS.
COUNTY OF )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared ___________________________, its ____________________________ and
____________________________, its ____________________________ of [insert
Lessee's Name], a(n) _________________________________________________ , the
________________________________ which executed the foregoing instrument, who
acknowledged that they did sign said instrument as such officers of said
corporation for and on behalf of said corporation and that the same is their own
free act and deed individually, as such officers of said corporation.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my
official seal at ____________________, ___________, this _____ day of
________________, 2000.
(SEAL) -------------------------
Notary Public
My commission expires:
7
STATE OF )
) SS.
COUNTY OF )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared ___________________________, the ____________________________ and
____________________________, the ____________________________ of Uni-Invest
(U.S.A.), Ltd., a Maryland corporation, the general partner of Uni-Invest
(U.S.A.) Partnership, L.P., a Delaware limited partnership who acknowledged that
they did sign the within instrument on behalf of said corporation and limited
partnership.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my
official seal at ____________________, ___________, this _____ day of
________________, 2000.
(SEAL) -----------------------
Notary Public
My commission expires:
8
STATE OF )
) SS.
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared ___________________________, the ____________________________ of
KeyBank National Association, a national banking association, the bank which
executed the foregoing instrument, who acknowledged that he/she did sign said
instrument as such officer of said bank for and on behalf of said bank and that
the same is his/her own free act and deed individually, as such officer of said
bank, and the free act and deed of said bank.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my
official seal at Cleveland, Ohio, this _____ day of ________________, 2000.
(SEAL) ------------------------------
Notary Public
My commission expires:
This instrument prepared by:
Xxxxx X. Xxxxxxxxx, Esq.
Xxxxxxxx Xxxx & Xxxxx LLP
0000 Xxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
9
Schedule 4.6(c)
List of Xxxxxxxx's Benefit Plans
None
1
Schedule 4.21
List of Borrower's Collective Bargaining Agreement/
Multi-Employer Plans
None
1
Schedule 4.24
Names
Party Jurisdiction Names as Registered in Jurisdiction
None
1
Schedule 4.28
Ownership Interests of Borrower
None
1
Schedule 4.29
Direct and Indirect Ownership Interests in Borrower
Cedar Bay Company owns 1,703,300 limited partnership units in Borrower. The
balance of the units are owned by Uni-Invest (U.S.A.), Ltd. There are 2,645,411
limited partnership units outstanding as of May 9, 2000.
1
Schedule 5.6(c)
List of REIT's Benefit Plans
None
1
Schedule 5.7
Taxes
Under prior management, the REIT or its Consolidated Subsidiaries did
not make the tax filings listed below:
Party Jurisdiction Type of Filing Tax Period
REIT Utah State Tax Return 1984-1997
REIT Florida State Tax Return 1984-1997
REIT Kentucky State Tax Return 1984-1997
REIT Illinois State Tax Return 1984-1997
1
Schedule 5.19
List of REIT's Collective Bargaining Agreements/
Multi-Employer Plans
None
1
Schedule 5.22
REIT Names
Party Jurisdiction Names as Registered in Jurisdiction
Uni-Invest (U.S.A.) Ltd. Utah Uni-Invest (U.S.A.), Ltd., Corp.
Uni-Invest (U.S.A.) Ltd. Florida Uni-Invest (U.S.A.), Ltd., Corp.
[List each Consolidated Subsidiary]
1
Schedule 5.24
Ownership Interests of REIT
General Partnership interests in Uni-Invest (U.S.A.) Partnership L.P.
1
Schedule 5.25
Direct and Indirect Ownership Interests in REIT
Owning Entity Shares of Common Stock
Cedar Bay Company 189,737
Uni-Invest Holdings (U.S.A.) B.V. 150,000
Xxxxxx Xxxxxxx 50,000
Xxxxx xxx xx Xxxxxxxx 50,000
Xxxxxx Xxxx Xxxxxxxxx 50,000
Xxxxxx X. Xxxx 25,000
Xxxxxx Xxxxxxx 25,000
Xxxx xxx Xxxxxxxxx 25,000
Xxx Xxxxxx xxx Xxxxxxxx 25,000
Attached hereto is a copy of all the shareholders as of January 10,
2000.
[NOTE: AS A RESULT OF NEW SHARES TO BE ISSUED PURSUANT TO THE HOMBURG
SUBSCRIPTION AGREEMENT, 1,666,667 ADDITIONAL SHARES WILL BE ISSUED ON OR ABOUT
MAY 10, 2000.]
