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EXHIBIT 10.13
$5,000,000
REVOLVING LOAN CREDIT AGREEMENT
DATED AS OF
NOVEMBER 1, 1999
BETWEEN
IRT PROPERTY COMPANY
AND
WACHOVIA BANK, N.A.
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TABLE OF CONTENTS
CREDIT AGREEMENT
PAGE
ARTICLE I. DEFINITIONS..........................................................................1
SECTION 1.01. DEFINITIONS..............................................................................1
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS.....................................................16
SECTION 1.03. REFERENCES..............................................................................17
SECTION 1.04. USE OF DEFINED TERMS....................................................................17
SECTION 1.05. TERMINOLOGY.............................................................................17
ARTICLE II. THE CREDITS........................................................................17
SECTION 2.01. COMMITMENTS TO LEND REVOLVING LOANS.....................................................17
SECTION 2.02. REVOLVING LOAN NOTE.....................................................................18
SECTION 2.03. MATURITY OF REVOLVING LOANS.............................................................18
SECTION 2.04. INTEREST RATES..........................................................................18
SECTION 2.05. FEES....................................................................................20
SECTION 2.06. OPTIONAL TERMINATION OR REDUCTION OF REVOLVING LOAN COMMITMENT..........................21
SECTION 2.07. MANDATORY REDUCTION AND TERMINATION OF REVOLVING LOAN COMMITMENT........................21
SECTION 2.08. PREPAYMENTS.............................................................................21
SECTION 2.09. GENERAL PROVISIONS AS TO PAYMENTS.......................................................22
SECTION 2.10. COMPUTATION OF INTEREST.................................................................22
ARTICLE III. CONDITIONS TO BORROWINGS..........................................................22
SECTION 3.01. CONDITIONS TO FIRST BORROWING...........................................................22
SECTION 3.02. CONDITIONS TO ALL BORROWINGS............................................................23
ARTICLE IV. REPRESENTATIONS AND WARRANTIES.....................................................24
SECTION 4.01. CORPORATE EXISTENCE AND POWER...........................................................24
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO CONTRAVENTION..............................24
SECTION 4.03. BINDING EFFECT..........................................................................24
SECTION 4.04. FINANCIAL INFORMATION...................................................................25
SECTION 4.05. NO LITIGATION...........................................................................25
SECTION 4.06. COMPLIANCE WITH ERISA...................................................................25
SECTION 4.07. COMPLIANCE WITH LAWS; PAYMENT OF TAXES..................................................25
SECTION 4.08. SUBSIDIARIES............................................................................26
SECTION 4.09. INVESTMENT COMPANY ACT..................................................................26
SECTION 4.10. PUBLIC UTILITY HOLDING COMPANY ACT......................................................26
SECTION 4.11. OWNERSHIP OF PROPERTY; LIENS............................................................26
SECTION 4.12. NO DEFAULT..............................................................................26
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SECTION 4.13. FULL DISCLOSURE.........................................................................27
SECTION 4.14. ENVIRONMENTAL MATTERS...................................................................27
SECTION 4.15. CAPITAL STOCK...........................................................................27
SECTION 4.16. MARGIN STOCK............................................................................28
SECTION 4.17. INSOLVENCY..............................................................................28
SECTION 4.18. INSURANCE...............................................................................28
SECTION 4.19. Y2K PLAN................................................................................28
SECTION 4.20. REAL ESTATE INVESTMENT TRUST............................................................29
ARTICLE V. COVENANTS...........................................................................29
SECTION 5.01. INFORMATION.............................................................................29
SECTION 5.02. INSPECTION OF PROPERTY, BOOKS AND RECORDS...............................................31
SECTION 5.03. MAINTENANCE OF EXISTENCE................................................................31
SECTION 5.04. DISSOLUTION.............................................................................31
SECTION 5.05. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS.............................................32
SECTION 5.06. USE OF PROCEEDS.........................................................................32
SECTION 5.07. COMPLIANCE WITH LAWS; PAYMENT OF TAXES..................................................33
SECTION 5.08. INSURANCE...............................................................................33
SECTION 5.09. CHANGE IN FISCAL YEAR...................................................................33
SECTION 5.10. MAINTENANCE OF PROPERTY.................................................................33
SECTION 5.11. ENVIRONMENTAL NOTICES...................................................................33
SECTION 5.12. ENVIRONMENTAL MATTERS...................................................................34
SECTION 5.13. ENVIRONMENTAL RELEASE...................................................................34
SECTION 5.14. TRANSACTIONS WITH AFFILIATES............................................................34
SECTION 5.15. RESTRICTED PAYMENTS.....................................................................34
SECTION 5.16. INVESTMENTS.............................................................................34
SECTION 5.17. LIENS...................................................................................35
SECTION 5.18. RESTRICTIONS ON ABILITY OF SUBSIDIARIES TO PAY DIVIDENDS................................36
SECTION 5.19. ADDITIONAL DEBT.........................................................................36
SECTION 5.20. RATIO OF CONSOLIDATED TOTAL LIABILITIES TO CONSOLIDATED TOTAL ASSET VALUE...............36
SECTION 5.21. RATIO OF CONSOLIDATED TOTAL SECURED DEBT TO CONSOLIDATED TOTAL ASSET VALUE..............36
SECTION 5.22. RATIO OF CONSOLIDATED EBITDA TO CONSOLIDATED INTEREST EXPENSE...........................37
SECTION 5.23. RATIO OF CONSOLIDATED UNENCUMBERED REAL ESTATE ASSETS TO CONSOLIDATED UNSECURED
SENIOR DEBT.............................................................................37
SECTION 5.24. RATIO OF CONSOLIDATED UNENCUMBERED NET OPERATING INCOME TO CONSOLIDATED
UNSECURED INTEREST EXPENSE..............................................................37
SECTION 5.25. RATIO OF CONSOLIDATED EBITDA TO CONSOLIDATED FIXED CHARGES..............................37
SECTION 5.26. Y2K COMPLIANCE..........................................................................37
SECTION 5.27. SIGNIFICANT SUBSIDIARIES TO BE GUARANTORS; ELECTION TO BECOME GUARANTOR.................37
SECTION 5.28. TOP LEVEL REORGANIZATION................................................................38
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ARTICLE VI. DEFAULTS...........................................................................39
SECTION 6.01. EVENTS OF DEFAULT.......................................................................39
ARTICLE VII. CHANGE IN CIRCUMSTANCES; COMPENSATION.............................................42
SECTION 7.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR UNFAIR................................42
SECTION 7.02. ILLEGALITY..............................................................................42
SECTION 7.03. INCREASED COST AND REDUCED RETURN.......................................................43
SECTION 7.04. BASE RATE LOANS SUBSTITUTED FOR EURO-DOLLAR LOANS.......................................44
ARTICLE VIII. MISCELLANEOUS....................................................................44
SECTION 8.01. NOTICES.................................................................................44
SECTION 8.02. NO WAIVERS..............................................................................44
SECTION 8.03. EXPENSES; DOCUMENTARY TAXES.............................................................44
SECTION 8.04. INDEMNIFICATION.........................................................................45
SECTION 8.05. SETOFF; SHARING OF SETOFFS..............................................................45
SECTION 8.06. AMENDMENTS AND WAIVERS..................................................................46
SECTION 8.07. NO MARGIN STOCK COLLATERAL..............................................................46
SECTION 8.08. SUCCESSORS AND ASSIGNS..................................................................46
SECTION 8.09. CONFIDENTIALITY.........................................................................47
SECTION 8.10. REPRESENTATION BY BANK..................................................................48
SECTION 8.11. CONSEQUENTIAL DAMAGES...................................................................48
SECTION 8.12. GEORGIA LAW.............................................................................48
SECTION 8.13. SEVERABILITY............................................................................48
SECTION 8.14. INTEREST................................................................................48
SECTION 8.15. INTERPRETATION..........................................................................49
SECTION 8.16. WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION...........................................49
SECTION 8.17. COUNTERPARTS............................................................................50
SECTION 8.18. SOURCE OF FUNDS -- ERISA................................................................50
SECTION 8.19. APPROVAL OF GUARANTY PROVISIONS.........................................................50
ARTICLE IX. NAME..............................................................................106
EXHIBIT A Form of Revolving Loan Note
EXHIBIT B Form of Opinion of Counsel for the Borrower and the Guarantors
EXHIBIT C Form of Opinion of Special Counsel for the Bank
EXHIBIT D Form of Compliance Certificate
EXHIBIT E Form of Closing Certificate
EXHIBIT F Form of Officer's Certificate
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EXHIBIT G Form of Guaranty
EXHIBIT H Form of Contribution Agreement
EXHIBIT I Form of Joinder Agreement (Re Top Level Reorganization)
EXHIBIT J Form of FMA Agreement
EXHIBIT K Form of Borrowing Base Certificate
Schedule 4.08 Subsidiaries
Schedule 4.14 Environmental Matters
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REVOLVING LOAN CREDIT AGREEMENT
REVOLVING LOAN CREDIT AGREEMENT dated as of November 1, 1999
between IRT PROPERTY COMPANY, as the Borrower, and WACHOVIA BANK, N.A., as the
Bank.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS.
The terms as defined in this Section 1.01 shall, for all
purposes of this Agreement and any amendment hereto (except as herein otherwise
expressly provided or unless the context otherwise requires), have the meanings
set forth herein:
"Adjusted London Interbank Offered Rate" has the meaning set
forth in Section 2.07(c).
"Affiliate" of any relevant Person means (i) any Person that
directly, or indirectly through one or more intermediaries, controls the
relevant Person (a "Controlling Person"), (ii) any Person (other than the
relevant Person or a Subsidiary of the relevant Person) which is controlled by
or is under common control with a Controlling Person, or (iii) any Person (other
than a Subsidiary of the relevant Person) of which the relevant Person owns,
directly or indirectly, 20% or more of the common stock or equivalent equity
interests. As used herein, the term "control" means possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agreement" means this Credit Agreement, together with all
amendments and supplements hereto.
"Applicable Margin" has the meaning set forth in Section
2.07(a).
"Authority" has the meaning set forth in Section 8.02.
"Bank" means Wachovia Bank, N.A., a national banking
association organized under the laws of the United States of America, and its
successors and permitted assigns.
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"Base Rate" means for any Base Rate Loan for any day, the rate
per annum equal to the higher as of such day of (i) the Prime Rate, or (ii)
one-half of one percent above the Federal Funds Rate. For purposes of
determining the Base Rate for any day, changes in the Prime Rate or the Federal
Funds Rate shall be effective on the date of each such change.
"Base Rate Borrowing" means a Borrowing consisting of Base
Rate Loans.
"Base Rate Loan" means a Revolving Loan which bears or is to
bear interest at a rate based upon the Base Rate, and is to be made as a Base
Rate Loan pursuant to Section 2.04(b) or Article VII, as applicable.
"Borrower" means (i) until the consummation of a Top Level
Reorganization and the satisfaction of the Top Level Reorganization Conditions,
IRT PROPERTY COMPANY, a Georgia corporation, and (ii) thereafter, IRT Partners
L.P., and in each case its successors and its permitted assigns.
"Borrower/Parent" means (i) until the consummation of a Top
Level Reorganization and the satisfaction of the Top Level Reorganization
Conditions, IRT Property Company, a Georgia corporation, as the Borrower
hereunder and (ii) thereafter, the Parent, and in each case its successors and
its permitted assigns.
"Borrowing" means a borrowing hereunder consisting of
Revolving Loans made to the Borrower pursuant to Article II. A Borrowing is a
"Base Rate Borrowing" if such Revolving Loans are Base Rate Loans. A Borrowing
is a Euro-Dollar Borrowing if such Revolving Loans are Euro-Dollar Loans.
"Borrowing Base" means the sum of each of the following, as
determined by reference to the most recent Borrowing Base Certificate furnished
pursuant to Section 5.01(k), (and with respect to any Eligible Property which
consists of phases, each phase thereof shall be separately categorized into
clause (i), (ii) or (iii) below, as appropriate, so long as such phase could be
separately financed on a stand-alone basis).
(i) an amount equal to the product of: (x) the quotient of
(1) the Net Operating Income (but for the Non-Wholly Owned Eligible
Property, include only the Non-Wholly Owned Eligible Property
Percentage thereof) for the 3 month period ending on the last day of
the Fiscal Quarter just ended prior to the date of determination, from
each Eligible Unencumbered Stabilized Property (excluding percentage
rents received during such 3 month period, but including an amortized
value for percentage rents received during the current Fiscal Year),
divided by (2) 0.0975 (which is the capitalization rate); times (y) 4
(which is the annualization factor); times (z) 0.60 (which is the
advance rate); plus
(ii) an amount equal to the lesser of: (A) the product of
(x) 0.50 (which is the advance rate), times (y) the book value of
Construction in Progress on the last day of the Fiscal Quarter just
ended on all Eligible Properties not subject to a Mortgage and (B)
$20,000,000; plus
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(iii) an amount equal to the product of (x) 0.60 (which is
the advance rate), times (y) the acquisition cost of all Eligible
Unencumbered Stabilized Property not owned for the entire 3 month
period ending on the last day of the Fiscal Quarter just ended prior to
the date of determination.
"Borrowing Base Certificate" means a certificate substantially
in the form of Exhibit L, duly executed by an Executive Officer of the Borrower,
setting forth in reasonable detail the calculations for each component of the
Borrowing Base.
"Capital Stock" means any nonredeemable capital stock of (i)
until the consummation of a Top Level Reorganization and the satisfaction of the
Top Level Reorganization Conditions, the Borrower/Parent or any Consolidated
Subsidiary (to the extent issued to a Person other than the Borrower/Parent),
whether common or preferred and (ii) thereafter, the Parent or any Consolidated
Subsidiary (to the extent issued to a Person other than the Parent), whether
common or preferred.
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. ss. 9601 et. seq. and its implementing
regulations and amendments.
"CERCLIS" means the Comprehensive Environmental Response
Compensation and Liability Inventory System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section
8.02.
"Closing Certificate" has the meaning set forth in Section
3.01(e).
"Closing Date" means November 1, 1999.
"Code" means the Internal Revenue Code of 1986, as amended, or
any successor Federal tax code.
"Compliance Certificate" has the meaning set forth in Section
5.01(c).
"Consolidated Debt" means at any date the Debt of the
Borrower/Parent and each Consolidated Entity, determined on a consolidated basis
as of such date.
"Consolidated EBITDA" means at any time the sum of the
following, determined on a consolidated basis for the Borrower/Parent and each
Consolidated Entity, at the end of each Fiscal Quarter, for the applicable
measuring period: (i) Consolidated Net Income; plus (ii) Consolidated Interest
Expense; plus (iii) taxes on income; plus (iv) depreciation; plus (v)
amortization; plus (vi) other non-cash charges.
"Consolidated Entity" means at any date the Guarantors and any
other Person the accounts of which, in accordance with GAAP, are consolidated
with those of the Borrower/Parent in its consolidated financial statements as of
such date.
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"Consolidated Fixed Charges" means at any time the sum of the
following, determined on a consolidated basis for the Borrower/Parent and each
Consolidated Entity, at the end of each Fiscal Quarter, for the Fiscal Quarter
just ended: (i) Consolidated Interest Expense; plus (ii) all Dividends paid, or
declared but not yet paid, by the Borrower/Parent on preferred stock; plus (iii)
the aggregate amount of scheduled principal amortization paid, as reflected on
the Borrower/Parent's most recent quarterly financial statement submitted to the
Bank, but excluding any principal payments under this Agreement or any other
agreement pertaining to revolving Debt permitted under Section 5.19(iii), and
excluding any balloon, bullet or similar payments on other Debt and (iv)
payments on ground leases.
"Consolidated Intangible Assets" means, with respect to the
Borrower/Parent and its Consolidated Subsidiaries, determined on a consolidated
basis, all assets which would be treated as intangible assets for balance sheet
presentation purposes under GAAP, including without limitation goodwill (whether
representing the excess of cost over book value of assets acquired, or
otherwise), trademarks, tradenames, copyrights, patents and technologies, and
unamortized debt discount and expense.
"Consolidated Interest Expense" for any period means interest,
whether expensed or capitalized, in respect of Debt of the Borrower/Parent and
each Consolidated Entity outstanding during such period.
"Consolidated Net Income" means, for any period, the Net
Income of the Borrower/Parent and each Consolidated Entity determined on a
consolidated basis, but excluding (i) extraordinary items, (ii) gains and losses
on sales of assets, (iii) losses resulting from forgiveness by the
Borrower/Parent or any Consolidated Entity of Debt, (iv) expenses associated
with significant non-recurring events and (v) any equity interests of the
Borrower/Parent or any Subsidiary in the unremitted earnings of any Person that
is not a Subsidiary.
"Consolidated Operating Profits" means, for any period, the
Operating Profits of the Borrower/Parent and each Consolidated Entity.
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity the accounts of which, in accordance with GAAP, would be
consolidated with those of the Borrower/Parent in its consolidated financial
statements as of such date.
"Consolidated Tangible Assets" means the sum of (i)
Consolidated Total Assets, less (ii) Consolidated Intangible Assets.
"Consolidated Total Assets" means, at any time, the total
assets of the Borrower/Parent and each Consolidated Entity, determined on a
consolidated basis, as set forth or reflected on the most recent consolidated
balance sheet of the Borrower/Parent and each Consolidated Entity, prepared in
accordance with GAAP.
"Consolidated Total Asset Value" means, on a consolidated
basis for the Borrower/Parent and each Consolidated Entity, the sum of:
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(i) an amount equal to the product of: (x) the quotient
of (1) the Net Operating Income for the 3 month period ending on the
last day of the Fiscal Quarter just ended prior to the date of
determination (excluding percentage rents received during such 3 month
period, but including an amortized value for percentage rents received
during the current Fiscal Year), from each Property (other than
Property owned by Borrower or any Consolidated Entity for less than
three months) less, divided by (2) 0.0975 (which is the capitalization
rate); times (y) 4 (which is the annualization factor); plus
(ii) an amount equal to the book value of (A) Construction
in Progress plus (B) Properties consisting of unimproved land, as
determined on the last day of the Fiscal Quarter just ended; plus
(iii) an amount equal to the acquisition cost of improved
Properties owned by Borrower or any Consolidated Entity less than three
months, as determined on the last day of the Fiscal Quarter just ended;
plus
(iv) an amount equal to the sum of all unrestricted
balances on deposit with banks or other financial institutions and all
restricted cash held by a Qualified intermediary on behalf of the
Borrower/Parent or any Guarantor; plus
(v) for any Subsidiary which is not a Wholly Owned
Subsidiary, an amount equal to the book value of the Ownership
Percentage of such Subsidiary, as shown on the Borrower/Parent's
balance sheet; plus
(vi) without duplication, the book value of all other
Consolidated Tangible Assets.
"Consolidated Total Liabilities" means the total liabilities
of the Borrower/Parent and the Consolidated Entities, on a consolidated basis
(including liabilities on account of Dividends, whether paid or declared but not
yet paid), plus the aggregate amount of Debt Guaranteed by the Borrower/Parent,
the Guarantors and the Subsidiaries (other than of Debt of any of them) at the
end of the Borrower/Parent's most recent Fiscal Quarter.
"Consolidated Total Secured Debt" shall mean all Debt of the
Borrower/Parent and the Consolidated Entities consisting of (i) capitalized
leases, (ii) money borrowed or the deferred purchase price of real property
which is also secured by a Mortgage on any real property owned by the
Borrower/Parent or any Consolidated Entity; and (iii) Guarantees of the
Borrower/Parent or any Consolidated Entity of Debt of any other Person which is
secured by a Mortgage on an asset of the Borrower/Parent or such Consolidated
Entity.
"Consolidated Unencumbered Net Operating Income" means that
portion of Net Operating Income which is attributable to any Property (i) which
is not subject to any Mortgage or (ii) which is owned by any Person whose stock,
partnership interests or other ownership interests are not subject to any pledge
in favor of a third party.
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"Consolidated Unencumbered Real Estate Assets" means at any
time, for the Borrower and each Consolidated Entity, determined on a
consolidated basis, the sum (without duplication with respect to any Property)
of the following:
(i) an amount equal to the product of (x) 9.75 (which is
the capitalization rate), times (y) 4 (which is the annualization
factor), times (z) the Net Operating Income for the 3 month period
ending on the last day of the Fiscal Quarter just ended prior to the
date of determination, from each real estate Property not subject to a
Mortgage and owned by the Borrower or any Consolidated Entity for at
least one Fiscal Quarter; plus
(ii) an amount equal to the acquisition cost of improved
Properties not subject to a Mortgage owned by Borrower or any
Consolidated Entity less than three months, as determined on the last
day of the Fiscal Quarter just ended; plus
(iii) an amount equal to the book value of (A) Construction
in Progress on all Properties not subject to a Mortgage, plus (B)
Properties consisting of unimproved land, as determined on the last day
of the Fiscal Quarter just ended, of each Property not subject to a
Mortgage.
"Consolidated Unsecured Interest Expense" means at any time
that portion of Consolidated Interest Expense attributable to Consolidated
Unsecured Senior Debt.
"Consolidated Unsecured Senior Debt" means Consolidated Debt
which is (i) not expressly made subordinated to any other Consolidated Debt and
(ii) not subject to a Mortgage or any other Lien on any Property of the Borrower
or any Consolidated Entity.
"Construction in Progress" means, for any Property in the
process of being developed as a retail shopping center but is not a Stabilized
Property, calculated on a consolidated basis for the Borrower and the
Guarantors, the construction-in-progress as shown from time to time on the books
and records of the Borrower and the Guarantors, maintained in accordance with
GAAP.
"Contribution Agreement" means the Contribution Agreement of
even date herewith in substantially the form of Exhibit O to be executed by the
Borrower and each of the Guarantors pursuant to Section 3.01 or 5.27.
"Control" means, with respect to any Person, the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities or otherwise.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414 of the Code.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds,
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debentures, notes or other similar instruments, (iii) all obligations of such
Person to pay the deferred purchase price of property or services, except trade
accounts payable arising in the ordinary course of business, (iv) all
obligations of such Person as lessee under capital leases, (v) all obligations
of such Person to reimburse any bank or other Person in respect of amounts
payable under a banker's acceptance, (vi) all Redeemable Preferred Stock of such
Person (in the event such Person is a corporation), (vii) all obligations of
such Person to reimburse any bank or other Person in respect of amounts paid or
to be paid under a letter of credit or similar instrument, (viii) all Debt of
others secured by a Lien on any asset of such Person, whether or not such Debt
is assumed by such Person, (ix) all obligations of such Person with respect to
interest rate protection agreements, foreign currency exchange agreements or
other hedging arrangements (valued as the termination value thereof computed in
accordance with a method approved by the International Swap Dealers Association
and agreed to by such Person in the applicable hedging agreement, if any), (x)
all obligations of such Person under a forward contract for the purchase of
equity securities, and (xi) all Debt of others Guaranteed by such Person.
"Debt Rating" means at any time whichever is the average of
the spread between the ratings of the Borrower/Parent's senior unsecured,
unenhanced debt (or, if no such debt exists, its issuer credit rating for debt
of such type) by Moody's or S&P (as such rating may change from time to time,
either pursuant to Section 2.07(g) or otherwise) (provided, that in the event of
a double or greater split rating, the rating immediately above the lowest rating
shall apply), or if only one of them rates the Borrower/Parent's senior
unsecured, unenhanced debt, such rating.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Default Rate" means, with respect to any Revolving Loan, on
any day, the sum of 2% plus the then highest interest rate (including the
Applicable Margin) which may be applicable to any Revolving Loans hereunder
(irrespective of whether any such type of Revolving Loans are actually
outstanding hereunder).
"Dividends" means for any period the sum of all dividends and
other distributions paid or declared during such period in respect of any
Capital Stock and Redeemable Preferred Stock (other than dividends paid or
payable in the form of additional Capital Stock).
"Dollars" or "$" means dollars in lawful currency of the
United States of America.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in Georgia are authorized by law
to close.
"Eligible Property" means any retail property of the Borrower
or any of the Guarantors consisting of real estate which constitute "Eligible
Property" as defined in and determined pursuant to the Syndicated Revolving
Credit Agreement.
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"Eligible Unencumbered Stabilized Property" means any Eligible
Property which (i) is not subject to a Mortgage, and (ii) is a Stabilized
Property.
"Environmental Authority" means any foreign, federal, state,
local or regional government that exercises any form of jurisdiction or
authority under any Environmental Requirement.
"Environmental Permits" means all licenses, permits, orders,
approvals, notices or registrations, approvals or similar legal authorizations
for conducting the business of the Borrower/Parent or any Subsidiary required by
any Environmental Requirement.
"Environmental Judgments and Orders" means (i) all judgments,
decrees or orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent, or (ii) written agreements
with an Environmental Authority or other entity arising from or in any way
associated with any Environmental Requirement, whether or not incorporated in a
judgment, decree or order.
"Environmental Liabilities" means any liabilities, whether
accrued, contingent or otherwise, arising from and in any way associated with
any Environmental Requirements.
"Environmental Notices" means written notice from any
Environmental Authority or by any other person or entity, of Borrower's or any
Subsidiary's alleged noncompliance with or liability under any Environmental
Requirement, including without limitation any written complaints, citations,
demands or requests from any Environmental Authority or from any other person or
entity for correction of any violation of any Environmental Requirement or any
investigations concerning any violation of any Environmental Requirement.
"Environmental Proceedings" means any judicial or
administrative proceedings arising from or in any way associated with any
Environmental Requirement.
"Environmental Releases" means releases as defined in CERCLA
or under any similar applicable state or local environmental law or regulation.
"Environmental Requirements" means any federal, state or local
laws and ordinances, regulations, writs, judgments, orders or Environmental
Permits relating to pollution or protection of the environment and applicable to
the Borrower/Parent, any Subsidiary or the Properties, including but not limited
to any such requirement under CERCLA, EPCRA, RCRA, the Clean Water Act, the
Clean Air Act, similar state or local requirements or common law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor law. Any reference to any
provision of ERISA shall also be deemed to be a reference to any successor
provision or provisions thereof.
"Euro-Dollar Business Day" means any Domestic Business Day on
which dealings in Dollar deposits are carried out in the London interbank
market.
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"Euro-Dollar Loan" means a Revolving Loan which bears or is to
bear interest at a rate based upon the Adjusted London Interbank Offered Rate,
and to be made as a Euro-Dollar Loan pursuant hereto.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.07(c).
"Executive Officer" refers to an executive officer of the
Borrower, and means the Chairman, the Vice Chairman, the President, the Chief
Financial Officer, Chief Accounting Officer or the Treasurer of the Borrower.
"Event of Default" has the meaning set forth in Section 6.01.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the next higher 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if the day for which
such rate is to be determined is not a Domestic Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding
Domestic Business Day as so published on the next succeeding Domestic Business
Day, and (ii) if such rate is not so published for any day, the Federal Funds
Rate for such day shall be the average rate charged to the Bank on such day on
such transactions, as determined by the Bank.
"Fiscal Quarter" means any fiscal quarter of the
Borrower/Parent.
"Fiscal Year" means any fiscal year of the Borrower/Parent.
"FMA Agreement" means the Financial Management Account
Standalone Commercial Loan Access Agreement between the Borrower and the Bank,
of even date herewith, as amended or supplemented from time to time, which is
executed and delivered in connection, and will operate in conjunction, with this
Agreement. This Agreement is the "Commercial Loan Agreement" referred to
therein. The terms and provisions of the FMA Agreement hereby are incorporated
herein by reference, and capitalized terms which are used herein without
definition and which are defined in the FMA Agreement have the meanings ascribed
to them in the FMA Agreement.
"Funds From Operations" has the meaning ascribed to such term
in preparation of financial statements for real estate investment trusts as
required by NAREIT from time to time, subject to Section 1.02.
"GAAP" means generally accepted accounting principles applied
on a basis consistent with those which, in accordance with Section 1.02, are to
be used in making the calculations for purposes of determining compliance with
the terms of this Agreement.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person
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and, without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to secure, purchase or pay
(or advance or supply funds for the purchase or payment of) such Debt or other
obligation (whether arising by virtue of partnership arrangements, by agreement
to keep-well, to purchase assets, goods, securities or services, to provide
collateral security, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in any
other manner the obligee of such Debt or other obligation of the payment thereof
or to protect such obligee against loss in respect thereof (in whole or in
part), provided that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Guaranty" means, individually and collectively, as the
context shall require, the Guaranty Agreement of even date herewith in
substantially the form of Exhibit N to be executed by the Guarantors,
unconditionally and jointly and severally Guaranteeing payment of the Revolving
Loans, the Revolving Loan Note, the FMA Agreement and all other obligations of
the Borrower to the Bank hereunder, including without limitation all principal,
interest, fees, costs, and compensation and indemnification amounts.
"Guarantors" means any one or more or all of the following, as
the context shall require: (i) IRT Capital Corporation II, a Georgia
corporation, IRT Partners L.P., a Georgia limited partnership (subject to the
provisions of Section 5.28), IRT Management Company, a Georgia corporation, and
IRT Alabama, Inc., an Alabama corporation; and (ii) any Significant Subsidiary
which becomes a Guarantor pursuant to Section 5.27; (iii) any other Subsidiary
which elects to become a Guarantor pursuant to Section 5.27; in each case
subject to the provisions of the last sentence of Section 5.05, and (iv) from
and after the consummation of a Top Level Reorganization and the satisfaction of
the Top Level Reorganization Conditions, the Parent.
"Hazardous Materials" includes, without limitation, (a)
hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. ss. 6901 et seq. and its implementing regulations and
amendments, or in any similar applicable state or local law or regulation, (b)
"hazardous substance", "pollutant", or "contaminant" as defined in CERCLA, or in
any similar applicable state or local law or regulation, (c) gasoline, or any
other petroleum product or by-product, including, crude oil or any fraction
thereof, (d) toxic substances, as defined in the Toxic Substances Control Act of
1976, or in any similar applicable state or local law or regulation and (e)
insecticides, fungicides, or rodenticides, as defined in the Federal
Insecticide, Fungicide, and Rodenticide Act of 1975, or in any similar
applicable state or local law or regulation.
"Interest Period" means, with respect to each Euro-Dollar
Borrowing, the period commencing on the first Euro-Dollar Business Day of each
month and ending on the first Euro-Dollar Business Day of the immediately
succeeding month; provided, that any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day; provided that no Interest Period shall
extend beyond the Termination Date.
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"Investment" means any investment in any Person, whether by
means of (i) purchase or acquisition of all or substantially all of the assets
of such Person (or of a division or line of business of such Person), (ii)
purchase or acquisition of obligations or securities of such Person, (iii)
capital contribution to such Person, (iv) loan or advance to such Person, (v)
making of a time deposit with such Person, (vi) Guarantee or assumption of any
obligation of such Person or (vii) by any other means.
"Lending Office" means the Bank's office located at its
address set forth on the signature pages hereof (or identified on the signature
pages hereof as its Lending Office) or such other office as such Bank may
hereafter designate as its Lending Office by notice to the Borrower.
"Lien" means, with respect to any asset, any mortgage, deed to
secure debt, deed of trust, lien, pledge, charge, security interest, security
title, preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing. For the
purposes of this Agreement, the Borrower/Parent or any Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"Liquidity Bank" means for any Designated Bank, at any date of
determination, the collective reference to the financial institutions which at
such date are providing liquidity or credit support facilities to or for the
account of such Designated Bank to fund such Designated Bank's obligations
hereunder or to support the securities, if any, issued by such Designated Bank
to fund such obligations.
"Loan Documents" means this Agreement, the Revolving Loan
Note, the FMA Agreement, the Guaranty, the Contribution Agreement, any other
document evidencing, relating to or securing the Revolving Loans, and any other
document or instrument delivered from time to time in connection with this
Agreement, the Revolving Loan Note, the Loans or the FMA Agreement, as such
documents and instruments may be amended or supplemented from time to time.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.07(c).
"Margin Stock" means "margin stock" as defined in Regulations
T, U or X.
"Material Adverse Effect" means, with respect to any event,
act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation or
proceeding), whether singly or in conjunction with any other event or events,
act or acts, condition or conditions, occurrence or occurrences, whether or not
related, a material adverse change in, or a material adverse effect upon, any of
(a) the financial condition, operations, business, properties or prospects of
the Borrower/Parent and its Consolidated Subsidiaries taken as a whole, (b) the
rights and remedies of the Bank under
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the Loan Documents, or the ability of the Borrower or the Parent to perform its
obligations under the Loan Documents to which it is a party, as applicable, or
(c) the legality, validity or enforceability of any Loan Document.
"Moody's" means Xxxxx'x Investor Service, Inc.
"Mortgage" means, with respect to any referenced Property or
other asset, a mortgage, deed to secure debt, deed of trust or similar
instrument encumbering such Property or other asset.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"NAREIT" means the National Association of Real Estate
Investment Trusts.
"Net Income" means, as applied to any Person for any period,
the aggregate amount of net income of such Person, after taxes, for such period,
as determined in accordance with GAAP.
"Net Operating Income" means, (A) for any Property, calculated
on a consolidated basis for the Borrower and the Guarantors, the sum of the
following derived from such Property: (i) Property revenues, less (ii) Property
expenses (excluding depreciation, amortization and debt service), less (iii) an
assumed management fee equal to 4% of gross rental income (less any management
fees included in Property expenses under clause (ii)) and less (iv) the ratable
portion allocable to the measurement period of an annual capital reserve equal
to $0.15 per square foot.
"Non-Wholly Owned Eligible Property" means Eligible Property
which is not wholly owned by the Borrower or any Guarantor, which is Venice
Plaza, Venice, Florida.
"Non-Wholly Owned Eligible Property Ownership Percentage"
refers to the ownership percentage which the Borrower and/or the Guarantors have
with respect to the Non-Wholly owned Eligible Property, which, as of the Closing
Date is 75%.
"Officer's Certificate" has the meaning set forth in Section
3.01(f).
"Operating Profits" means, as applied to any Person for any
period, the operating income of such Person for such period, as determined in
accordance with GAAP.
"Ownership Percentage" means, with respect to any Subsidiary
which is not a Wholly Owned Subsidiary, the percentage which the aggregate
beneficial ownership interests of the Borrower/Parent in such Subsidiary bears
to the aggregate beneficial ownership interests of all owners of beneficial
interests in such Subsidiary.
"Parent" has the meaning set forth in Section 5.28, but
references in this Agreement and the other Loan Documents to Parent shall take
effect only upon consummation of
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the Top Level Reorganization and the satisfaction of each of the Top Level
Reorganization Conditions.
"Participant" has the meaning set forth in Section 9.08(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Performance Pricing Determination Date" has the meaning set
forth in Section 2.07(a).
"Person" means an individual, a corporation, a partnership, an
unincorporated association, a trust or any other entity or organization,
including, but not limited to, a government or political subdivision or an
agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and is either (i) maintained by a member
of the Controlled Group for employees of any member of the Controlled Group or
(ii) maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding 5 plan years made contributions.
"Prime Rate" refers to that interest rate so denominated and
set by Wachovia from time to time as an interest rate basis for borrowings. The
Prime Rate is but one of several interest rate bases used by Wachovia. Wachovia
lends at interest rates above and below the Prime Rate.
"Properties" means all real property owned, leased or
otherwise used or occupied by the Borrower or any Subsidiary, wherever located.
"Qualified Intermediary" means any Person serving as a
"qualified intermediary" for purposes of a Section 1031 Exchange.
"Quarterly Payment Date means each March 31, June 30,
September 30 and December 31, or, if any such day is not a Domestic Business
Day, the next succeeding Domestic Business Day.
"Redeemable Preferred Stock" of any Person means any preferred
stock issued by such Person which is at any time prior to the Termination Date
either (i) mandatorily redeemable (by sinking fund or similar payments or
otherwise) or (ii) redeemable at the option of the holder thereof.
"Regulation T" means Regulation T of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
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"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Related Fund" means, with respect to any Bank that is a fund
that invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Bank.
"Relinquished Property" means a Property sold to a Person
which is not the Borrower or an Affiliate thereof, and the proceeds of such sale
are held in an exchange account by a Qualified Intermediary, as part of a
Section 1031 Exchange.
"Replacement Property" means a Property acquired as a
replacement for a Relinquished Property as part of a Section 1031 Exchange.
"Reported Net Income" means, for any period, the Net Income of
the Borrower/Parent and its Consolidated Subsidiaries determined on a
consolidated basis.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Borrower/Parent's Capital Stock (except
Dividends payable solely in shares of its Capital Stock) or (ii) any payment on
account of the purchase, redemption, retirement or acquisition of (a) any shares
of the Borrower/Parent's Capital Stock (except shares acquired upon the
conversion thereof into other shares of its Capital Stock) or (b) any option,
warrant or other right to acquire shares of the Borrower/Parent's Capital Stock.
"Revolving Loan Commitment" means $5,000,000, as such amount
may be reduced from time to time pursuant to Sections 2.07 and 2.08.
"Revolving Loans" means Base Rate Loans or Euro-Dollar Loans
made pursuant to the terms and conditions set forth in Section 2.01.
"Revolving Loan Note" means the promissory note of the
Borrower, substantially in the form of Exhibit A, evidencing the obligation of
the Borrower to repay Revolving Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Section 0000 Xxxxxxxx" means a sale and exchange of a
Relinquished Property for a Replacement Property pursuant to and qualifying for
tax treatment under Section 1031 of the Code.
"Significant Subsidiary" means any Subsidiary, other than IRT
Capital Corporation, which has assets which constitute more than 5% of
Consolidated Total Asset Value
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at the end of the most recent Fiscal Quarter (or, with respect to any Subsidiary
which existed during the entire 4 Fiscal Quarter period but was acquired by the
Borrower/Parent during such period, which would have contributed more than 5% of
Consolidated Total Asset Value during such period had it been a Subsidiary for
the entire period).
"S&P" means Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc.
"Stabilized Property" means at any time any retail shopping
center Property owned by the Borrower or any Guarantor (i) which is at least 85%
leased and under which rent is being paid (pursuant to written leases which have
been signed by both landlord and tenant, but including any month to month
occupancy by any such tenant after the expiration of such written lease) or (ii)
with respect to which a final certificate of occupancy was issued at least 3
months prior to the date of measurement.
"Stock Buyback Plan" means any stock purchase or other stock
acquisition program approved by the board of directors (or any authorized
committee thereof) of the Borrower/Parent pursuant to which the Borrower/Parent
will purchase or otherwise acquire outstanding shares of the common stock of the
Borrower/Parent.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by the Borrower/Parent (including,
after the consummation of the Top Level Reorganization and the satisfaction of
the Top Level Reorganization Conditions, the then Borrower hereunder, IRT
Partners L.P.).
"Syndicated Revolving Credit Agreement" means the Credit
Agreement to be executed on or about the date hereof among the Borrower, the
Banks parties thereto, the Bank, as Administrative Agent and First Union
National Bank, as Syndication Agent, as hereafter amended or supplemented from
time to time, pursuant to which the Banks thereunder made available to the
Borrower a revolving credit facility. References to the Syndicated Revolving
Credit Agreement shall be effective only from and after the execution thereof
and the satisfaction of the conditions precedent set forth in Section 3.01
thereof.
"Taxes" has the meaning set forth in Section 2.13(c).
"Termination Date" means whichever is applicable of (i)
October 31, 2000, (ii) such later date to which it is extended by the Bank
pursuant to Section 2.06(b), in its sole and absolute discretion, (iii) the date
the Revolving Loan Commitment is terminated pursuant to Section 6.01 following
the occurrence of an Event of Default, or (iv) the date the Borrower terminates
the Revolving Loan Commitments entirely pursuant to Section 2.09.
"Third Parties" means all lessees, sublessees, licensees and
other users of the Properties, excluding those users of the Properties in the
ordinary course of the Borrower's business and on a temporary basis.
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"Transferee" has the meaning set forth in Section 9.08(d).
"Top Level Reorganization" has the meaning set forth in
Section 5.28.
"Top Level Reorganization Conditions" has the meaning set
forth in Section 5.28.
"Unfunded Vested Liabilities" means, with respect to any Plan
at any time, the amount (if any) by which (i) the present value of all vested
nonforfeitable benefits under such Plan exceeds (ii) the fair market value of
all Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plan, but only to the extent that such excess
represents a potential liability of a member of the Controlled Group to the PBGC
or the Plan under Title IV of ERISA.
"Wachovia" means Wachovia Bank, N.A., a national banking
association, and its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the
shares of capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the
Borrower/Parent.
"Y2K Plan" has the meaning set forth in Section 4.19.
"Year 2000 Compliant and Ready" means that (a) the
Borrower's/Parent's and its Subsidiaries' hardware and software systems with
respect to the operation of its business and its general business plan will: (i)
handle date information involving any and all dates before, during and after
January 1, 2000, including accepting input, providing output and performing date
calculations in whole or in part; (ii) operate, accurately without material
interruption on and in respect of any and all dates before, during and after
January 1, 2000 and without any change in performance; (iii) store and provide
date input information without creating any ambiguity as to the century and; (b)
the Borrower/Parent has developed alternative plans to ensure business
continuity in the event of the failure of any or all of items (i) through (iii)
in clause (a) above in this definition.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS.
Unless otherwise specified herein, all terms of an accounting
character used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be delivered
hereunder shall be prepared, in accordance with GAAP, or with respect to the
calculation of Funds From Operations, as required by NAREIT, applied on a basis
consistent (except for changes concurred in by the Borrower/Parent's independent
public accountants or otherwise required by a change in GAAP) with the most
recent audited consolidated financial statements of the Borrower/Parent and its
Consolidated Subsidiaries delivered to the Bank unless with respect to any such
change concurred in by the Borrower/Parent's independent public accountants or
required by GAAP or, with respect to the calculation of Funds From Operations,
as required by NAREIT, in determining compliance with any of the provisions of
this Agreement or any of the other Loan Documents: (i) the Borrower
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shall have objected to determining such compliance on such basis at the time of
delivery of such financial statements, or (ii) the Bank shall so object in
writing within 30 days after the delivery of such financial statements, in
either of which events such calculations shall be made on a basis consistent
with those used in the preparation of the latest financial statements as to
which such objection shall not have been made (which, if objection is made in
respect of the first financial statements delivered under Section 5.01 hereof,
shall mean the financial statements referred to in Section 4.04).
SECTION 1.03. REFERENCES.
Unless otherwise indicated, references in this Agreement to
"Articles", "Exhibits", "Schedules", "Sections" and other Subdivisions are
references to articles, exhibits, schedules, sections and other subdivisions
hereof.
SECTION 1.04. USE OF DEFINED TERMS.
All terms defined in this Agreement shall have the same
defined meanings when used in any of the other Loan Documents, unless otherwise
defined therein or unless the context shall require otherwise.
SECTION 1.05. TERMINOLOGY.
All personal pronouns used in this Agreement, whether used in
the masculine, feminine or neuter gender, shall include all other genders; the
singular shall include the plural, and the plural shall include the singular.
Titles of Articles and Sections in this Agreement are for convenience only, and
neither limit nor amplify the provisions of this Agreement.
ARTICLE II.
THE CREDITS
SECTION 2.01. COMMITMENTS TO LEND REVOLVING LOANS.
The Bank agrees, on the terms and conditions set forth herein,
to make Revolving Loans to the Borrower from time to time before the Termination
Date; provided that, immediately after each such Revolving Loan is made, the
aggregate outstanding principal amount of Revolving Loans by the Bank shall not
exceed the amount of its Revolving Loan Commitment. The Borrower may borrow
under this Section, repay or prepay Revolving Loans and reborrow under this
Section at any time before the Termination Date. All Revolving Loans made
hereunder constitute Advances under the FMA Agreement. The Borrower may request
any Revolving Loan by telephone, and the Bank shall be entitled to treat each
such request as the authorized request of the Borrower. In addition, the Bank
shall make Revolving Loans consisting of Advances into the Checking Account from
time to time as needed pursuant to Section 2 of the FMA Agreement in order that
the Collected Balance is not less than the Target
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Balance on any Domestic Business Day, and Revolving Loans otherwise may be made
at any time pursuant to the provisions of the FMA Agreement.
SECTION 2.02. REVOLVING LOAN NOTE.
(a) The Revolving Loans shall be evidenced by the Revolving
Loan Note.
(b) The Bank shall keep records showing the effective interest
rate for each Revolving Loan made by it and the date and amount of each payment
of principal made by the Borrower with respect thereto, and such records shall
constitute rebuttable presumptive evidence of the respective principal amount
owing and unpaid on such Revolving Loan Note.
SECTION 2.03. MATURITY OF REVOLVING LOANS.
The outstanding principal amount of the Revolving Loans, if
any, together with all accrued but unpaid interest thereon, if any, shall be due
and payable on October 31, 2000, unless the Termination Date is otherwise
extended by the Bank, in its sole and absolute discretion. Upon the written
request of the Borrower, which request shall be delivered to the Bank not more
than 30 days prior to the Termination Date then in effect, the Bank shall have
the option (without any obligation whatsoever so to do) of extending the
Termination Date for an additional 364 day period from the Termination Date then
in effect. In the event that the Bank chooses to extend the Termination Date for
such an additional 364 day period, notice shall be given by the Bank to the
Borrower within 15 days of such request; provided, that if within such 15 day
period the Bank has failed to give any notice of its election to so extend the
Termination Date for an additional 364 day period, the Bank shall be deemed to
have elected not to so extend the Termination Date.
SECTION 2.04. INTEREST RATES.
(a) "Applicable Margin" means:
(i) for the period commencing on the Closing Date to and
including the first Performance Pricing Determination Date, (x) for any
Base Rate Loan, 0.00%, and (y) for any Euro-Dollar Loan, 1.15%; and
(ii) from and after the first Performance Pricing
Determination Date, (x) for any Base Rate Loan, 0.00% and (y) for each
Euro-Dollar Loan, the percentage determined on each Performance Pricing
Determination Date by reference to the table set forth below as to such
type of Revolving Loan and the Debt Rating on such Performance Pricing
Determination Date; provided, that if there is no Debt Rating, the
Applicable Margin for Euro-Dollar Loans shall be based upon Level V of
the table below.
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==================================================================================================================
/ XXXXX XXXXX XXXXX XXXXX XXXXX
X II III IV V
==================================================================================================================
>=BBB >=BBB-
>=BBB+ or Baa2 or Baa3 =A- or Baa1 but but or
but =BBB >=BBB-
>=BBB+ or Baa2 or Baa3 =A- or Baa1 but but or
but
