Exhibit 10.4
$200,000,000 Credit Agreement dated as of March 22, 1999 by
and among CNL APF Partners, LP, the Registrant, First Union
National Bank, First Union Capital Markets Group, NationsBank
Xxxxxxxxxx Securities LLC, NationsBank, N.A., and certain
financial institutions
$200,000,000
CREDIT AGREEMENT
Dated as of March 22, 1999
by and among
CNL APF Partners, LP,
as Borrower,
CNL AMERICAN PROPERTIES FUND, INC.,
as Parent,
First Union National Bank,
as Administrative Agent,
each of
First Union Capital Markets Group
and
NationsBanc Xxxxxxxxxx Securities LLC,
as Joint Lead Arrangers
and
as Book Managers,
NationsBank, N.A.,
as Syndication Agent,
and
The financial institutions party hereto
and their assignees under Section 12.5.,
as Lenders
TABLE OF CONTENTS*
Article I.
Definitions....................................................1
Section 1.1. Definitions......................................1
Section 1.2. General; References to Times....................23
Article II. Credit Facility............................................23
Section 2.1. Revolving Loans.................................23
Section 2.2. Rates and Payment of Interest on Loans..........24
Section 2.3. Number of Interest Periods......................25
Section 2.4. Repayment of Loans..............................25
Section 2.5. Prepayments.....................................25
Section 2.6. Continuation....................................26
Section 2.7. Conversion......................................26
Section 2.8. Notes...........................................27
Section 2.9. Letters of Credit...............................27
Section 2.10. Voluntary Reductions of the Commitment..........31
Section 2.11. Increase of Commitments.........................31
Section 2.12. Expiration or Maturity Date of Letters of
Credit Past Termination Date..................32
Section 2.13. Amount Limitations..............................32
Article III. Payments, Fees and Other General Provisions...............32
Section 3.1. Payments........................................32
Section 3.2. Pro Rata Treatment..............................33
Section 3.3. Sharing of Payments, Etc........................33
Section 3.4. Several Obligations.............................34
Section 3.5. Minimum Amounts.................................34
Section 3.6. Fees............................................35
Section 3.7. Computations....................................35
Section 3.8. Usury...........................................35
Section 3.9. Agreement Regarding Interest and Charges........36
Section 3.10. Statements of Account...........................36
Section 3.11. Defaulting Lenders..............................36
Section 3.12. Taxes...........................................38
Article IV. Yield Protection, Etc......................................39
Section 4.1. Additional Costs; Capital Adequacy..............39
Section 4.2. Suspension of LIBOR Loans.......................40
Section 4.3. Illegality......................................41
Section 4.4. Compensation....................................41
Section 4.5. Treatment of Affected Loans.....................41
Section 4.6. Change of Lending Office........................42
Section 4.7. Assumptions Concerning Funding of LIBOR Loans...42
Article V. Conditions
Precedent.....................................................42
Section 5.1. Initial Conditions Precedent....................42
Section 5.2. Conditions Precedent to All Loans and Letters
of Credit.....................................45
Section 5.3. Conditions as Covenants.........................46
Article VI. Representations and Warranties.............................46
Section 6.1. Representations and Warranties..................46
Section 6.2. Survival of Representations and Warranties, Etc.52
Article VII. Affirmative Covenants.....................................53
Section 7.1. Preservation of Existence and Similar Matters...53
Section 7.2. Compliance with Applicable Law and Material
Contracts.....................................53
Section 7.3. Maintenance of Property.........................53
Section 7.4. Conduct of Business.............................54
Section 7.5. Insurance.......................................54
Section 7.6. Payment of Taxes and Claims.....................54
Section 7.7. Visits and Inspections..........................55
Section 7.8. Use of Proceeds and Letters of Credit...........55
Section 7.9. Environmental Matters...........................55
Section 7.10. Books and Records...............................56
Section 7.11. REIT Status.....................................56
Section 7.12. ERISA Exemptions................................56
Section 7.13. Exchange Listing................................56
Section 7.14. Further Assurances..............................56
Section 7.15. New Subsidiaries; Joint Ventures................57
Article VIII. Information..............................................57
Section 8.1. Quarterly Financial Statements..................57
Section 8.2. Year-End Statements.............................57
Section 8.3. Compliance Certificate..........................58
Section 8.4. Other Information...............................58
Article IX. Negative Covenants.........................................61
Section 9.1. Financial Covenants.............................61
Section 9.2. Debt............................................62
Section 9.3. Contingent Obligations..........................63
Section 9.4. Certain Permitted Investments...................64
Section 9.5. Investments Generally...........................65
Section 9.6. Liens; Agreements Regarding Liens; Other
Matters......................................66
Section 9.7. Restricted Payments.............................67
Section 9.8. Ground Leases...................................67
Section 9.9. Merger, Consolidation, Sales of Assets and
Other Arrangements; Sale-Lease Back
Transactions..................................67
Section 9.10. Dispositions of Assets.........................69
Section 9.11. Fiscal Year....................................69
Section 9.12. Modifications to Material Contracts............69
Section 9.13. Transactions with Affiliates...................69
Section 9.14. Distributions of Income to the Borrower........70
Section 9.15. Contribution of Assets by Parent to Borrower...70
Article X. Default.....................................................70
Section 10.1. Events of Default..............................70
Section 10.2. Remedies Upon Event of Default.................73
Section 10.3. Remedies Upon Default..........................74
Section 10.4. Allocation of Proceeds.........................74
Section 10.5. Performance by Administrative Agent............75
Section 10.6. Rights Cumulative..............................75
Section 10.7. Rescission of Acceleration by Requisite
Lenders......................................76
Section 10.8. Collateral Account.............................76
Article XI. The Administrative Agent...................................77
Section 11.1. Authorization and Action.......................77
Section 11.2. Administrative Agent's Reliance, Etc...........78
Section 11.3. Notice of Defaults.............................78
Section 11.4. First Union as Lender..........................79
Section 11.5. Approvals of Lenders...........................79
Section 11.6. Lender Credit Decision, Etc....................79
Section 11.7. Indemnification of Administrative Agent and
Arrangers....................................80
Section 11.8. Successor Administrative Agent.................81
Section 11.9. Titled Parties Have No Duties..................82
Article XII.
Miscellaneous.................................................82
Section 12.1. Notices........................................82
Section 12.2. Expenses.......................................83
Section 12.3. Setoff.........................................83
Section 12.4. Waiver of Jury Trial; Arbitration..............84
Section 12.5. Successors and Assigns.........................86
Section 12.6. Amendments.....................................88
Section 12.7. Nonliability of Administrative Agent and
Lenders......................................89
Section 12.8. Confidentiality................................89
Section 12.9. Indemnification................................90
Section 12.10. Termination; Survival..........................92
Section 12.11. Severability of Provisions.....................92
Section 12.12. GOVERNING LAW..................................92
Section 12.13. Counterparts...................................92
Section 12.14. Limitation of Liability........................92
Section 12.15. Obligations with Respect to Loan Parties.......93
Section 12.16. Entire Agreement...............................93
Section 12.17. Construction...................................93
Section 12.18. Limitation of Liability of Officers,
Directors, Etc...............................93
EXHIBIT A Form of Assignment and Acceptance Agreement
EXHIBIT B Form of Guaranty
EXHIBIT C Form of Notice of Borrowing
EXHIBIT D Form of Notice of Continuation
EXHIBIT E Form of Notice of Conversion
EXHIBIT F Form of Revolving Note
EXHIBIT G Form of Opinion of Counsel
EXHIBIT H Form of Compliance Certificate
SCHEDULE 6.1.(b) Ownership Structure; Unconsolidated Affiliates
SCHEDULE 6.1.(f) Title to Properties; Liens
SCHEDULE 6.1.(g) Unencumbered Properties
SCHEDULE 6.1.(h) Existing Secured and Unsecured Debt
SCHEDULE 6.1.(i) Material Contracts
SCHEDULE 6.1.(j) Litigation
SCHEDULE 9.2.(f) Hedging Agreements
SCHEDULE 9.3 Existing Contingent Obligations
SCHEDULE 9.5 Investments
Schedule 9.13 Transactions With Affiliates
* This Table of Contents is not part of the Credit Agreement
and is provided as a convenience only.
THIS CREDIT AGREEMENT dated as of March 22, 1999 by and among CNL APF
Partners, LP, a limited partnership formed under the laws of the State of
Delaware (the "Borrower"), CNL AMERICAN PROPERTIES FUND, INC., a corporation
organized under the laws of the State of Maryland (the "Parent"), First Union
National Bank, as contractual representative of the Lenders to the extent and in
the manner provided in Article XI. below (in such capacity, the "Administrative
Agent"), as Administrative Agent, each of First Union Capital Markets Group and
NationsBanc Xxxxxxxxxx Securities LLC, as Joint Lead Arrangers and Book Managers
(each an "Arranger"), NationsBank, N.A., as Syndication Agent (the "Syndication
Agent"), and each of the financial institutions initially a signatory hereto
together with their assignees pursuant to Section 12.5.(d).
WHEREAS, the Administrative Agent and the Lenders desire to make
available to the Borrower a revolving credit facility in an amount up to
$200,000,000, which will include a $10,000,000 letter of credit subfacility, on
the terms and conditions contained herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree as follows:
Article I. Definitions
Section 1.1. Definitions.
In addition to terms defined elsewhere herein, the following terms
shall have the following meanings for the purposes of this Agreement:
"Accession Agreement" means an Accession Agreement substantially in the
form of Annex I to the Guaranty.
"Additional Costs" has the meaning given that term in Section 4.1.
"Adjusted EBITDA" means, for any period, EBITDA for such period
excluding the following: (a) EBITDA attributable to income from any Excluded
Asset and (b) depreciation with respect to any Real Property Asset which is the
subject of a lease that is a Excluded Asset. For purposes of this definition
only, EBITDA attributable to a lease under which the tenant is the subject of a
Bankruptcy Proceeding shall not be excluded when determining Adjusted EBITDA
once such lease has been accepted (as opposed to rejected) under Section 365 of
Bankruptcy Code of 1978, as amended, and the other applicable provisions of such
Bankruptcy Code, and so long as such lease otherwise remains an Eligible Lease.
"Adjusted Eurodollar Rate" means, with respect to each Interest Period
for any LIBOR Loan, the rate obtained by dividing (a) LIBOR for such Interest
Period by (b) a percentage equal to 1 minus the stated maximum rate (stated as a
decimal) of all reserves, if any, required to be maintained against
"Eurocurrency liabilities" as specified in Regulation D of the Board of
Governors of the Federal Reserve System (or against any other category of
liabilities which includes deposits by reference to which the interest rate on
LIBOR Loans is determined or any category of extensions of credit or other
assets which includes loans by an office of any Lender outside of the United
States of America to residents of the United States of America).
"Adjusted Net Capitalization" means, with respect to the Parent and its
Subsidiaries determined on a consolidated basis: (a) Total Assets minus (b) the
aggregate amount of all Intangible Assets minus (c) 50% of the Value of all
leases that are Excluded Assets, and 50% of the book value of all promissory
notes that are Excluded Assets plus (d) the aggregate amount of accumulated
depreciation and amortization minus (e) 50% of the aggregate amount of
accumulated depreciation and amortization with respect to the Real Property
Assets which are leased under Operating Leases that are Excluded Assets. For
purposes of determining Adjusted Net Capitalization, the following limitations
shall apply: (i) to the extent that the aggregate value of Excluded Assets would
exceed 2% of Adjusted Net Capitalization, such excess shall be excluded in
determining Adjusted Net Capitalization; (ii) to the extent that the aggregate
value of Subordinated Securities would exceed 10% of Adjusted Net
Capitalization, such excess shall be excluded in determining Adjusted Net
Capitalization and (iii) the value of Subordinated Securities shall be
redetermined on the last day of each fiscal quarter of the Parent on a
marked-to-market basis in accordance with GAAP (using a lower of cost or market
method).
"Administrative Agent" means First Union National Bank, as contractual
representative for the Lenders under the terms of this Agreement, and any of its
successors.
"Affiliate" means any Person (other than the Administrative Agent or
any Lender): (a) directly or indirectly controlling, controlled by, or under
common control with, the Parent; (b) directly or indirectly owning or holding
ten percent (10.0%) or more of any equity interest in the Parent; or (c) ten
percent (10.0%) or more of whose Voting Stock or other equity interest is
directly or indirectly owned or held by the Parent. For purposes of this
definition, "control" (including with correlative meanings, the terms
"controlling", "controlled by" and "under common control with") means the
possession directly or indirectly of the power to direct or cause the direction
of the management and policies of a Person, whether through the ownership of
voting securities or by contract or otherwise. The Affiliates of a Person shall
include any officer or director of such Person. An issuer of a Subordinated
Security held by the Parent or any Subsidiary shall deemed to be an Affiliate
only if the Parent or any Subsidiary has control (as defined above) of such
issuer.
"Agreement Date" means the date as of which this Agreement is dated.
"Applicable Law" means all applicable provisions of constitutions,
statutes, rules, regulations and orders of all governmental bodies and all
orders and decrees of all courts, tribunals and arbitrators.
"Applicable Margin" means:
(a) during any period for which the Parent has not received an
Investment Grade Rating from both Rating Agencies, the percentage rate set forth
below corresponding to the ratio of Debt to Adjusted Net Capitalization as
determined in accordance with Section 9.1.(a) in effect at such time:
------------ ------------------------------------------- --------------------------- ---------------------------
Ratio of Debt to Adjusted Net Applicable Margin for Applicable Margin for
Level Capitalization LIBOR Loans Base Rate Loans
------------ ------------------------------------------- --------------------------- ---------------------------
2 Less than or equal to 0.30 to 1.00 1.75% 0.250%
------------ ------------------------------------------- --------------------------- ---------------------------
1 Greater than 0.30 to 1.00 2.00% 0.250%
------------ ------------------------------------------- --------------------------- ---------------------------
The Applicable Margin shall be determined by the Administrative Agent under this
clause (a) from time to time, based on the ratio of Debt to Adjusted Net
Capitalization as set forth in the Compliance Certificate most recently
delivered by the Parent pursuant to Section 8.3. Any adjustment to the
Applicable Margin shall be effective (i) in the case of a Compliance Certificate
delivered in connection with quarterly financial statements of the Parent
delivered pursuant to Section 8.1., as of the date 45 days following the end of
the last day of the applicable fiscal period covered by such Compliance
Certificate, (ii) in the case of a Compliance Certificate delivered in
connection with annual financial statements of the Parent delivered pursuant to
Section 8.2., as of the date 90 days following the end of the last day of the
applicable fiscal period covered by such Compliance Certificate, and (iii) in
the case of any other Compliance Certificate, as of the date 5 Business Days
following the Administrative Agent's request for such Compliance Certificate.
Notwithstanding the foregoing, for the period from the Effective Date through
but excluding the date on which the Administrative Agent first determines the
Applicable Margin as set forth above, the Applicable Margin for LIBOR Loans
shall equal 1.75%. Thereafter, the Applicable Margin shall be adjusted from time
to time as set forth above; or
(b) during any period for which the Parent has received an Investment
Grade Rating from both Rating Agencies, the percentage per annum determined, at
any time, based on the range into which the Parent's Credit Rating then falls,
in accordance with the table set forth below. Any change in the Parent's Credit
Rating which would cause it to move to a different level in the table shall
effect a change in the Applicable Margin on the Business Day immediately
following the date on which such change occurs. During any period that the
Parent has received Credit Ratings that are not equivalent, the Applicable
Margin shall be determined by the lower of such two Credit Ratings.
-------------- -------------------------------------- ------------------------------ ------------------------------
Parent's Credit Rating Applicable Margin for LIBOR Applicable Margin for Base
Level (S&P/Xxxxx'x) Loans Rate Loans
-------------- -------------------------------------- ------------------------------ ------------------------------
-------------- -------------------------------------- ------------------------------ ------------------------------
1 BBB+/Baa1 (or higher) 1.30% 0%
-------------- -------------------------------------- ------------------------------ ------------------------------
-------------- -------------------------------------- ------------------------------ ------------------------------
2 BBB/Baa2 1.40% 0%
-------------- -------------------------------------- ------------------------------ ------------------------------
3 BBB-/Baa3 1.50% 0%
-------------- -------------------------------------- ------------------------------ ------------------------------
"Assignee" has the meaning given that term in Section 12.5.(d).
"Assignment and Acceptance Agreement" means an Assignment and
Acceptance Agreement among a Lender, an Assignee and the Administrative Agent,
substantially in the form of Exhibit A.
"Bankruptcy Proceeding" means a case, proceeding or condition of any of
the types described in Sections 10.1.(e) or (f).
"Base Rate" means the per annum rate of interest equal to the greater
of (a) the Prime Rate or (b) the Federal Funds Rate plus one-half of one percent
(0.5%). Any change in the Base Rate resulting from a change in the Prime Rate or
the Federal Funds Rate shall become effective as of 12:01 a.m. on the Business
Day on which each such change occurs. The Base Rate is a reference rate used by
the Administrative Agent in determining interest rates on certain loans and is
not intended to be the lowest rate of interest charged by the Administrative
Agent or any Lender on any extension of credit to any debtor.
"Base Rate Loan" means a Loan bearing interest at a rate based on the
Base Rate.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Borrower" has the meaning set forth in the introductory paragraph
hereof and shall include the Borrower's successors and assigns.
"Business Day" means (a) any day other than a Saturday, Sunday or other
day on which banks in Charlotte, North Carolina are authorized or required to
close and (b) with reference to a LIBOR Loan, any such day that is also a day on
which dealings in Dollar deposits are carried out in the London interbank
market.
"Capital Expenditures" means, with respect to any Person, all
expenditures made and liabilities incurred for the acquisition of assets which
are not, in accordance with GAAP, treated as expense items for such Person in
the year made or incurred or as a prepaid expense applicable to a future year or
years.
"Capitalized Lease Obligation" means Debt represented by obligations
under a lease that is required to be capitalized for financial reporting
purposes in accordance with GAAP, and the amount of such Debt is the capitalized
amount of such obligations determined in accordance with GAAP.
"Cash Equivalents" means: (a) securities issued, guaranteed or insured
by the United States of America or any of its agencies with maturities of not
more than one year from the date acquired; (b) certificates of deposit with
maturities of not more than one year from the date acquired issued by a United
States federal or state chartered commercial bank of recognized standing, which
has capital and unimpaired surplus in excess of $500,000,000.00 and which bank
or its holding company has a short-term commercial paper rating of at least A-2
or the equivalent by Standard & Poor's Rating Group, a division of XxXxxx-Xxxx,
Inc. ("S&P") or at least P-2 or the equivalent by Xxxxx'x Investors Services,
Inc. ("Moody's"); (c) reverse repurchase agreements with terms of not more than
seven days from the date acquired, for securities of the type described in
clause (a) above and entered into only with commercial banks having the
qualifications described in clause (b) above; (d) commercial paper issued by any
Person incorporated under the laws of the United States of America or any State
thereof and rated at least A-2 or the equivalent thereof by S&P or at least P-2
or the equivalent thereof by Moody's, in each case with maturities of not more
than one year from the date acquired; and (e) investments in money market funds
registered under the Investment Company Act of 1940, which have net assets of at
least $500,000,000.00 and at least 85% of whose assets consist of securities and
other obligations of the type described in clauses (a) through (d) above.
"Collateral Account" means a special non-interest bearing deposit
account maintained by the Administrative Agent and under its sole dominion and
control.
"Commitment" means, as to each Lender, such Lender's obligation to make
Revolving Loans pursuant to Section 2.1. and to issue (in the case of the
Administrative Agent) or participate in (in the case of the other Lenders)
Letters of Credit pursuant to Section 2.9.(a) and 2.9.(i) respectively, in an
amount up to, but not exceeding (but in the case of the Administrative Agent
excluding the aggregate amount of participations in the Letters of Credit held
by other Lenders), the amount set forth for such Lender on its signature page
hereto as such Lender's "Commitment Amount" or as set forth in the applicable
Assignment and Acceptance Agreement, as the same may be reduced from time to
time pursuant to Section 2.10. or as appropriate to reflect any assignments to
or by such Lender effected in accordance with Section 12.5.
"Commitment Percentage" means, as to each Lender, the ratio, expressed
as a percentage, of (a) the amount of such Lender's Commitment to (b) the sum of
(i) the aggregate amount of the Commitments of all Lenders hereunder; provided,
however, that if at the time of determination the Commitments have terminated or
been reduced to zero, the "Commitment Percentage" of each Lender shall be the
Commitment Percentage of such Lender in effect immediately prior to such
termination or reduction.
"Compliance Certificate" has the meaning given such term in Section
8.3.
"Concept" refers to any distinctive system for establishing and
operating restaurants which is the subject of a license or franchise from a
Person. Not in limitation of the foregoing, and by way of example only, such
systems would include "Xxxx in the Box," "Golden Corral" and "IHOP."
"Consolidation" means the acquisition by the Parent of (a) CNL Fund
Advisors, Inc.; (b) CNL Financial Services, Inc. and CNL Financial Corporation
and (c) substantially all of the assets of CNL Income Fund, LTD through CNL
Income Fund, XVIII, LTD, all as more particularly described in the materials
delivered by the Parent under Section 5.1.(a)(xviii).
"Contingent Obligation" means, with respect to any Person, any
obligation of such Person to guarantee or intended to guarantee any Debt,
leases, dividends or other obligations ("primary obligations") of any other
Person (the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, (a) the direct or indirect guaranty, endorsement
(other than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such Person of the
obligation of a primary obligor, (b) the obligation to make take-or-pay or
similar payments, if required, regardless of nonperformance by any other party
or parties to an agreement or (c) any obligation of such Person, whether or not
contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or supply
funds (A) for the purchase or payment of any such primary obligation or (B) to
maintain working capital, equity capital, net worth or other balance sheet
condition or any income statement condition of the primary obligor or otherwise
to maintain the solvency of the primary obligor, (iii) to purchase, lease or
otherwise acquire property, assets, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (iv) otherwise
to assure or hold harmless the holder of such primary obligation against loss in
respect thereof. The amount of any Contingent Obligation shall be deemed to be
an amount equal to the stated or determinable amount of the primary obligation
in respect of which such Contingent Obligation is made (or, if less, the maximum
amount of such primary obligation for which such Person may be liable pursuant
to the terms of the agreement, instrument or other document evidencing such
Contingent Obligation) or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder), as determined by such Person in good faith. Contingent
Obligations shall not include the following obligations or liabilities of the
Parent, the Borrower or any other Subsidiary (including any Special Purpose
Entity) to the extent incurred in connection with a Permitted Securitization or
Permitted Warehouse Financing: (a) reasonable and customary obligations of the
Parent, the Borrower or any other Subsidiary with respect to (i) the servicing
of any assets which are the subject of such Permitted Securitization or
Permitted Warehouse Financing, (ii) administrative and ministerial matters
relating to any applicable Special Purpose Entity and (iii) maintenance of the
corporate separateness of any such Special Purpose Entity from that of the
Parent and its other Subsidiaries and (b) reasonable and customary repurchase
obligations and other liabilities resulting from the breach of representations,
warranties and covenants that are not related to creditworthiness of the
obligors on the financial assets the subject of such Permitted Securitization or
Permitted Warehouse Financing. In addition, the ownership of a Subordinated
Security shall not be deemed to give rise to any Contingent Obligation on the
part of the owner thereof.
"Continue", "Continuation" and "Continued" each refers to the
continuation of a LIBOR Loan from one Interest Period to another Interest Period
pursuant to Section 2.6.
"Contribution Date" means first to occur of (a) the consummation of the
acquisition by the Parent of substantially all of the assets of CNL Income Fund,
LTD through CNL Income Fund, XVIII, LTD in connection with the Consolidation or
(b) December 31, 1999.
"Convert", "Conversion" and "Converted" each refers to the conversion
of a Loan of one Type into a Loan of another Type pursuant to Section 2.7.
"Credit Event" means any of the following: (a) the making (or deemed
making) of any Loan, (b) the Conversion of a Loan and (c) the issuance of a
Letter of Credit.
"Credit Rating" means the lowest rating assigned by a Rating Agency to
each series of rated senior unsecured long term indebtedness of the Parent.
"Debt" means, with respect to a Person, at the time of computation
thereof, all of the following determined on a consolidated basis (without
duplication): (a) all indebtedness of such Person for borrowed money; (b) all
obligations of such Person for the deferred purchase price of property and
assets or services (other than trade payables or other accounts payable incurred
in the ordinary course of such Person's business and not past due for more than
90 days after the date on which each such trade payable or account payable was
created); (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, or upon which interest payments are
customarily made; (d) all Capitalized Lease Obligations of such Person; (e) all
obligations, contingent or otherwise, of such Person under acceptance, letter of
credit or similar facilities; (f) all obligations of such Person created or
arising under any conditional sale or other title retention agreement with
respect to property or assets acquired by such Person (even though the rights
and remedies of the seller or the lender under such agreement in the event of
default are limited to repossession or sale of such property or assets); (g) all
Contingent Obligations of such Person; (h) all Off Balance Sheet Liabilities of
such Person; (i) all obligations, contingent or otherwise, of such Person in
respect of Hedge Agreements, in each case valued at the Hedge Agreement Value
thereof; (j) all obligations of such Person to purchase, redeem, retire, defease
or otherwise make any payment in respect of any Equity Interests in such Person
or any other Person, valued, in the case of redeemable Preferred Stock, at the
greater of its voluntary or involuntary liquidation preference plus accrued and
unpaid dividends (excluding, in the case of the Parent and its Subsidiaries, any
obligation to acquire limited partnership interests in the Borrower which can be
satisfied in full by exchanging shares of common stock of the Parent for such
limited partnership interests); (k) all obligations of such Person in respect of
any take-out commitment or forward equity commitment; (l) all Debt referred to
in clauses (a) through (k) above and other payment obligations of another Person
secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property or assets owned
by such Person, even though such Person has not assumed or become liable for the
payment of such Debt or other payment obligation, valued, in the case of any
such Debt or other payment obligation as to which recourse for the payment
thereof is expressly limited to the property or assets on which such Lien is
granted, at the lesser of (i) the stated or determinable amount of the Debt or
other payment obligation that is so secured or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) and (ii) the fair market value of such
property or assets; (m) all other obligations of such Person considered as debt
by nationally recognized securities rating agencies and (n) such Person's pro
rata share of the Debt of any Unconsolidated Affiliate (excluding (i) any issuer
of a Subordinated Security acquired in connection with a Permitted
Securitization and (ii) prior to the Parent's acquisition of CNL Financial
Services, Inc. and CNL Financial Corporation in connection with the
Consolidation, any issuer of a Subordinated Security which represents an
interest in securitized pools of promissory notes, mortgage loans, chattel
paper, leases or other similar financial assets originated by any Affiliate) of
such Person.
"Default" means any of the events specified in Section 10.1., whether
or not there has been satisfied any requirement for the giving of notice, the
lapse of time, or both.
"Defaulting Lender" has the meaning set forth in Section 3.11.
"Dollars" or "$" means the lawful currency of the United States of
America.
"EBITDA" means, for any period, net earnings (loss) of the Parent and
its Subsidiaries determined on a consolidated basis for such period plus the sum
of the following (but only to the extent taken into account in determining net
income (loss) for such period)): (a) depreciation and amortization expense for
such period; plus (b) Interest Expense for such period; plus (c) income tax
expense in respect of such period; minus (d) extraordinary gains and gains from
sales of assets for such period; plus (e) extraordinary losses and losses from
sales of assets for such period; plus (f) the principal component of all
payments made in respect of Capitalized Lease Obligations during such period;
plus (or minus, as appropriate) (g) all straight line rent leveling adjustments
(reported in the consolidated financial statements of the Parent and its
Subsidiaries for purposes of GAAP); and plus (or minus, as appropriate) (h)
equity in net earnings (or net loss) of Unconsolidated Affiliates.
"Effective Date" means the later of: (a) the Agreement Date; and (b)
the date on which all of the conditions precedent set forth in Section 5.1.
shall have been fulfilled.
"Eligible Assignee" means any Person who is: (i) currently a Lender;
(ii) a commercial bank, trust company, insurance company, savings and loan
association, savings bank, investment bank, pension fund or mutual fund
organized under the laws of the United States of America, or any state thereof,
and having total assets in excess of $5,000,000,000; or (iii) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development ("OECD"), or a political
subdivision of any such country, and having total assets in excess of
$10,000,000,000, provided that such bank is acting through a branch or agency
located in the United States of America. If such Person is not currently a
Lender, such Person's senior unsecured long term indebtedness must be rated BBB
or higher by S&P, Baa2 or higher by Xxxxx'x, or the equivalent or higher of
either such rating by another rating agency of national reputation and
reasonably acceptable to the Administrative Agent.
"Eligible Lease" means a lease of a Real Property Asset (exclusive of
furniture, fixtures and equipment) which satisfies all of the following
requirements: (a) such Real Property Asset is owned in fee simple (or leased as
lessee pursuant to a ground lease) by only the Borrower or, at any time prior to
the Contribution Date, the Parent, provided that in the case of a ground lease
(i) such ground lease is permitted under Section 9.8., (ii) has a remaining term
(including any extensions of such term exerciseable at the sole option of the
lessee) of at least 30 years, and (iii) the lessee has the right to assign its
interest in such ground lease (and to encumber such interest) without the
consent of the applicable lessor); (b) neither such Real Property Asset nor any
interest of the Borrower or the Parent therein (including the lease thereof), is
subject to (i) any Lien other than Permitted Liens of the types described in
clauses (a) through (c) of the definition thereof or (ii) any Negative Pledge;
(c) such Real Property Asset is free of all structural defects, environmental
conditions or other adverse matters except for defects, conditions or matters
individually or collectively which are not material to the profitable operation
of such Real Property Asset; (d) such Real Property Asset has been fully
developed for use as a restaurant; (e) such Real Property Asset is occupied by
such tenant and is in operation; and (f) such lease is not an Excluded Asset.
"Eligible Mortgage Income" means, for any given period, the aggregate
income of the Borrower, and at any time prior to the Contribution Date, the
Parent, from Eligible Mortgage Notes Receivable during such period.
"Eligible Mortgage Note Receivable" means a promissory note which
satisfies all of the following requirements: (a) such promissory note is owned
solely by the Borrower or, at any time prior to the Contribution Date, the
Parent; (b) such promissory note is secured by a Mortgage; (c) neither such
promissory note, nor any interest of the Borrower or the Parent therein, is
subject to (i) any Lien other than Permitted Liens of the types described in
clauses (a) through (c) of the definition thereof or (ii) any Negative Pledge;
(d) the real property subject to such Mortgage is not subject to any other Lien
other than Permitted Liens of the types described in clauses (a) through (c) of
the definition thereof; (e) the real property subject to such Mortgage is free
of all structural defects, environmental conditions or other adverse matters
except for defects, conditions or matters individually or collectively which are
not material to the profitable operation of such real property; (f) such real
property has been fully developed for use as a restaurant; (g) such real
property is occupied and is in operation; and (h) such promissory note is not an
Excluded Asset.
"Eligible Net Lease Income" means, for any given period, the aggregate
income of the Borrower, and at any time prior to the Contribution Date, the
Parent, from Eligible Leases excluding straight line rent leveling adjustments
(reported in the consolidated financial statements of the Parent and its
Subsidiaries for purposes of GAAP) in respect of such Eligible Leases for such
period.
"Environmental Laws" means any Applicable Law relating to environmental
protection or the manufacture, storage, disposal or clean-up of Hazardous
Materials including, without limitation, the following: Clean Air Act, 42 U.S.C.
ss. 7401 et seq; Federal Water Pollution Control Act, 33 U.S.C. ss. 1251 et
seq.; Xxxxx Xxxxx Xxxxxxxx Xxx, 00 U.S.C. ss. 6901 et seq.; Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. ss. 9601 et
seq.; National Environmental Policy Act, 42 U.S.C. ss. 4321 et seq.; regulations
of the Environmental Protection Agency and any applicable rule of common law and
any judicial interpretation thereof relating primarily to the environment or
Hazardous Materials.
"Equity Interests" means, with respect to any Person, shares of capital
stock of (or other ownership or profit interests in) such Person, warrants,
options or other rights for the purchase or other acquisition from such Person
of shares of capital stock of (or other ownership or profit interests in) such
Person, securities convertible into or exchangeable for shares of capital stock
of (or other ownership or profit interests in) such Person or warrants, rights
or options for the purchase or other acquisition from such Person of such shares
(or such other interests), and other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are authorized or otherwise existing on any
date of determination. Debt securities convertible into other Equity Interests
shall not constitute Equity Interests.
"Equity Issuance" means any issuance or sale by a Person of any Equity
Interest in such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
in effect from time to time.
"ERISA Group" means the Parent, the Borrower, any other Subsidiary and
all members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Parent, the Borrower or any other Subsidiary, are treated as a single employer
under Section 414 of the Internal Revenue Code.
"Event of Default" means any of the events specified in Section 10.1.,
provided that any requirement for notice or lapse of time or any other condition
has been satisfied.
"Excluded Asset" means either a lease by the Parent or any Subsidiary,
as lessor, of a Real Property Asset, or a promissory note held by the Parent or
any Subsidiary which is secured by a Mortgage on real property, in either case
where (a) any required rental payment, principal or interest payment, or other
payment due under such lease or promissory note, as the case may be, is more
than 60 days past due or (b) the tenant under such lease, the maker of such
promissory note, or any Person that is the franchisor or licensor of any Concept
(if any) applicable to such real property, is the subject of a Bankruptcy
Proceeding.
"Fair Market Value" means, with respect to any asset, the price which
could be negotiated in an arm's-length transaction, for cash, between a willing
seller and a willing buyer, neither of which is under pressure or compulsion to
complete the transaction. Fair Market Value shall be determined by the Board of
Directors of the Parent acting in good faith and evidenced by a board resolution
thereof delivered to the Administrative Agent or, with respect to any asset
valued at up to $1,000,000, such determination may be made by a duly authorized
officer of the Parent evidenced by an officer's certificate delivered to the
Administrative Agent.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward to the nearest 1/100th of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day,
provided that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate quoted to the
Administrative Agent by federal funds dealers selected by the Administrative
Agent on such day on such transaction as determined by the Administrative Agent.
"Fees" means the fees and commissions provided for or referred to in
Section 3.6. and any other fees payable by the Borrower hereunder or under any
other Loan Document, or otherwise payable by the Borrower to the Administrative
Agent, either Arranger, the Syndication Agent or any Lender in connection with
the transactions relating to this Agreement.
"Finance Lease" means a lease of a Real Property Asset which would be
categorized as a capital lease under GAAP.
"First Union" means First Union National Bank and its successors and
assigns.
"Fixed Charges" means, for any period, the sum of (a) Interest Expense
for such period plus (b) regularly scheduled principal payments on Debt of the
Parent and its Subsidiaries during such period, including, without limitation,
the principal component of all payments made in respect of Capitalized Lease
Obligations, but excluding any scheduled balloon, bullet or similar principal
payment which repays such Debt in full plus (c) all Restricted Payments paid or
accrued during such period in respect of any Preferred Stock issued by the
Parent or any Subsidiary.
"Foreign Lender" means any Lender organized under the laws of a
jurisdiction other than the United States of America.
"Funds From Operations" means, for a given period, (a) net earnings of
the Parent and its Subsidiaries (before minority interests and before
extraordinary and non-recurring items) determined on a consolidated basis for
such period minus (or plus) (b) gains (or losses) from debt restructuring and
sales of property during such period plus (c) depreciation and amortization of
real property assets for such period, and after adjustments for unconsolidated
partnerships and joint ventures.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any national, state or local government
(whether domestic or foreign), any political subdivision thereof or any other
governmental, quasi-governmental, judicial, public or statutory instrumentality,
authority, body, agency, bureau or entity (including, without limitation, the
Federal Deposit Insurance Corporation, the Comptroller of the Currency or the
Federal Reserve Board, any central bank or any comparable authority) or any
arbitrator with authority to bind a party at law.
"Guarantor" means any Person that is a party to the Guaranty as a
"Guarantor" and in any event shall include the Parent and all Subsidiaries of
the Parent (excluding the Borrower, any Special Purpose Entity and, subject to
the last sentence of Section 7.15., the Joint Ventures).
"Guaranty" means the Guaranty to which various Subsidiaries of the
Parent are from time to time parties and substantially in the form of Exhibit B.
"Hazardous Materials" means all or any of the following: (a) substances
that are defined or listed in, or otherwise classified pursuant to, any
applicable Environmental Laws as "hazardous substances", "hazardous materials",
"hazardous wastes", "toxic substances" or any other formulation intended to
define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity or
"TLCP" toxicity, "EP toxicity"; (b) oil, petroleum or petroleum derived
substances, natural gas, natural gas liquids or synthetic gas and drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources; (c)
any flammable substances or explosives or any radioactive materials; and (d)
asbestos in any form or (e) electrical equipment which contains any oil or
dielectric fluid containing levels of polychlorinated biphenyls in excess of
fifty parts per million.
"Hedge Agreement Value" means, with respect to any Hedge Agreement on
any date of determination, an amount equal to the greater of (a) the amount, if
any, that would be payable by the Parent, the Borrower or other Subsidiary, as
the case may be, in respect of the "agreement value" of such Hedge Agreement if
such Hedge Agreement were terminated on such date, calculated as provided in the
International Swap Dealers Association Inc. Code of Standard Wording,
Assumptions and Provisions for Swaps, 1986 Edition, and (b) the xxxx-to-market
value of such Hedge Agreement, for which the unrealized gain (or unrealized
loss) on such Hedge Agreement is calculated as the amount by which the present
value of the future cash flows to be received under such Hedge Agreement exceeds
(or is less than) the present value of the future cash flows to be paid pursuant
to such Hedge Agreement.
"Hedge Agreements" means, collectively, interest rate swap, cap or
collar agreements, interest rate future or option contracts, commodity future or
option contracts, currency swap agreements, currency future or option contracts
and other similar agreements.
"Intangible Assets" means all assets which would be properly classified
as intangible assets under GAAP.
"Intellectual Property" has the meaning given that term in Section
6.1.(t).
"Interest Expense" means, for any period, the total consolidated
interest expense (including, without limitation, capitalized interest expense
and interest expense attributable to Capitalized Lease Obligations) of the
Parent and its Subsidiaries determined on a consolidated basis. "Interest
Expense" shall also include the net payment, if any, paid or payable in
connection with Hedging Agreements less the net credit, if any, received in
connection with Hedge Agreements.
"Interest Period" means, with respect to any LIBOR Loan, each period
commencing on the date such LIBOR Loan is made or the last day of the next
preceding Interest Period for such Loan and ending on the numerically
corresponding day in the first, second, third or sixth calendar month
thereafter, as the Borrower may select in a Notice of Borrowing, Notice of
Continuation or Notice of Conversion, as the case may be, except that each
Interest Period that commences on the last Business Day of a calendar month (or
on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month. In addition to such periods, the Borrower
may request Interest Periods having durations of less than one month for the
sole purpose of managing the number of outstanding Interest Periods. Interest
Periods having durations of less than one month will be available at the sole
discretion of the Administrative Agent. Notwithstanding the foregoing: (a) if
any Interest Period would otherwise end after the Termination Date, such
Interest Period shall end on the Termination Date; (b) each Interest Period that
would otherwise end on a day which is not a Business Day shall end on the next
succeeding Business Day (or, if such next succeeding Business Day falls in the
next succeeding calendar month, on the next preceding Business Day); and (c) if
as a result of the application of either of the immediately preceding clauses
(a) or (b) an Interest Period for any LIBOR Loan would have a duration of less
than one month, such Interest Period shall be available only at the discretion
of the Administrative Agent.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended.
"Investment" means, with respect to any Person and whether or not such
investment constitutes a controlling interest in such Person: (a) the purchase
or other acquisition of any share of capital stock, evidence of Debt or other
security issued by any other Person; (b) any loan, advance or extension of
credit (other than trade payables or other accounts payable incurred in the
ordinary course of business) to, or contribution (in the form of money or goods)
to the capital of, any other Person; and (c) any commitment to make an
Investment in any other Person.
"Investment Grade Franchisor" means the Person who is the licensor or
franchisor of a Concept applicable to a given parcel of real property and which
Person has a rating assigned to its senior long-term debt obligations of at
least BBB- by S&P or Baa3 by Xxxxx'x.
"Investment Grade Rating" means a Credit Rating of BBB- or higher by
S&P or Baa3 or higher by Xxxxx'x.
"Investment Grade Tenant" means any Person which has entered into, and
continues to be subject to, a lease of any portion of a Real Property Asset and
which has a rating assigned to its senior long-term debt obligations of at least
BBB- by S&P or Baa3 by Xxxxx'x.
"Joint Ventures" means CNL/Xxx Vista Joint Venture and CNL/Corral South
Joint Venture.
"L/C Commitment Amount" means an amount equal to $10,000,000.
"Lender" means each financial institution from time to time party
hereto as a "Lender", together with its respective successors and assigns.
"Lending Office" means, for each Lender and for each Type of Loan, the
office of such Lender specified as such on its signature page hereto or in the
applicable Assignment and Acceptance Agreement, or such other office of such
Lender as such Lender may notify the Administrative Agent in writing from time
to time.
"Letter of Credit" has the meaning set forth in Section 2.9.(a).
"Letter of Credit Documents" means, with respect to any Letter of
Credit, collectively, any application therefor, any certificate or other
document presented in connection with a drawing under such Letter of Credit and
any other agreement, instrument or other document governing or providing for (a)
the rights and obligations of the parties concerned or at risk with respect to
such Letter of Credit or (b) any collateral security for any of such
obligations.
"Letter of Credit Liabilities" shall mean, without duplication, at any
time and in respect of any Letter of Credit, the sum of (a) the Stated Amount of
such Letter of Credit plus (b) the aggregate unpaid principal amount of all
Reimbursement Obligations of the Borrower at such time due and payable in
respect of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Lender (other than the Administrative Agent in its capacity as
such) shall be deemed to hold a Letter of Credit Liability in an amount equal to
its participation interest in the related Letter of Credit under Section
2.9.(i), and the Administrative Agent shall be deemed to hold a Letter of Credit
Liability in an amount equal to its retained interest in the related Letter of
Credit after giving effect to the acquisition by the Lenders other than the
Administrative Agent of their participation interests under such Section.
"LIBOR" means, for any LIBOR Loan for any Interest Period therefor, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period. If for any
reason such rate is not available, the term "LIBOR" shall mean, for any LIBOR
Loan for any Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as
the London interbank offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period; provided, however, if more
than one rate is specified on Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates.
"LIBOR Loans" means Loans bearing interest at a rate based on LIBOR.
"Lien" as applied to the property of any Person means: (a) any security
interest, encumbrance, mortgage, deed to secure debt, deed of trust, pledge,
lien, charge, ground lease or lease constituting a Capitalized Lease Obligation,
conditional sale or other title retention agreement, or other security title or
encumbrance of any kind in respect of any property of such Person, or upon the
income or profits therefrom; (b) any arrangement, express or implied, under
which any property of such Person is transferred, sequestered or otherwise
identified for the purpose of subjecting the same to the payment of Debt or
performance of any other obligation in priority to the payment of the general,
unsecured creditors of such Person; (c) the filing of any financing statement
under the Uniform Commercial Code or its equivalent in any jurisdiction; and (d)
any agreement by such Person to grant, give or otherwise convey any of the
foregoing.
"Loan" means a Revolving Loan.
"Loan Document" means this Agreement, each Note, the Guaranty, each
Letter of Credit Document and each other document or instrument now or hereafter
executed and delivered by any Loan Party in connection with, pursuant to or
relating to this Agreement.
"Loan Party" means the Borrower, the Parent or any other Guarantor.
"Material Adverse Effect" means a materially adverse effect on (a) the
business, properties, condition (financial or otherwise), results of operations
or performance of the Parent and its Subsidiaries taken as a whole, (b) the
ability of any Loan Party to perform its obligations under any Loan Document to
which it is a party, (c) the validity or enforceability of any of the Loan
Documents, or (d) the rights and remedies of the Lenders and the Administrative
Agent under any of such Loan Documents.
"Material Contract" means any contract or other arrangement (other than
Loan Documents), whether written or oral, to which the Borrower, the Parent or
any other Subsidiary is a party as to which the breach, nonperformance,
cancellation or failure to renew by any party thereto could reasonably be
expected to have a Material Adverse Effect.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $1,000,000.
"Xxxxx'x" means Xxxxx'x Investors Services, Inc.
"Mortgage" means any mortgage, deed of trust, deed to secure debt or
other similar instrument creating a Lien on real property and related
improvements.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"Negative Pledge" means a provision of any agreement (other than this
Agreement or any other Loan Document) that prohibits the creation of any Lien on
any assets of a Person; provided, however, that an agreement that establishes a
maximum ratio of unsecured debt to unencumbered assets, or of secured debt to
total assets, or that otherwise conditions a Person's ability to encumber its
assets upon the maintenance of one or more specified ratios that limit such
Person's ability to encumber its assets but that do not generally prohibit the
encumbrance of its assets, or the encumbrance of specific assets, shall not
constitute a "Negative Pledge" for purposes of this Agreement.
"Net Proceeds" means with respect to any Equity Issuance by a Person,
the aggregate amount of all cash and the Fair Market Value of all other property
received by such Person in respect of such Equity Issuance net of investment
banking fees, legal fees, accountants fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred by such
Person in connection with such Equity Issuance.
"Nonrecourse Debt" means, with respect to any Person, Secured Debt of
such Person in respect of which (a) the holder of such Debt has expressly
limited its recourse for repayment to specifically identified assets of such
Person and (b) such Person has no general recourse or other general personal
liability (except for customary exceptions for fraud, environmental matters and
other similar exceptions acceptable to the Administrative Agent).
"Note" means a Revolving Note.
"Notice of Borrowing" means a notice in the form of Exhibit C to be
delivered to the Administrative Agent pursuant to Section 2.1.(b) evidencing the
Borrower's request for a borrowing of Revolving Loans.
"Notice of Continuation" means a notice in the form of Exhibit D to be
delivered to the Administrative Agent pursuant to Section 2.6. evidencing the
Borrower's request for the Continuation of a LIBOR Loan.
"Notice of Conversion" means a notice in the form of Exhibit E to be
delivered to the Administrative Agent pursuant to Section 2.7. evidencing the
Borrower's request for the Conversion of a Loan from one Type to another Type.
"Obligations" means, individually and collectively: (a) the aggregate
principal balance of, and all accrued and unpaid interest on, all Loans; (b) all
Reimbursement Obligations and all other Letter of Credit Liabilities; and (c)
all other indebtedness, liabilities, obligations, covenants and duties of the
Borrower owing to the Administrative Agent or any Lender of every kind, nature
and description, under or in respect of this Agreement or any of the other Loan
Documents, including, without limitation, the Fees and indemnification
obligations, whether direct or indirect, absolute or contingent, due or not due,
contractual or tortious, liquidated or unliquidated, and whether or not
evidenced by any promissory note.
"Off Balance Sheet Liabilities" means, with respect to any Person, (a)
any repurchase obligation or liability, contingent or otherwise, of such Person
with respect to any accounts or notes receivable sold, transferred or otherwise
disposed of by such Person, (b) any repurchase obligation or liability,
contingent or otherwise, of such Person with respect to property or assets
leased by such Person as lessee and (c) all obligations, contingent or
otherwise, of such Person under any synthetic lease, tax retention operating
lease, off balance sheet loan or similar off balance sheet financing if the
transaction giving rise to such obligation (i) is considered indebtedness for
borrowed money for tax purposes but is classified as an operating lease or (ii)
does not (and is not required to pursuant to GAAP) appear as a liability on the
balance sheet of such Person, but excluding from the foregoing provisions of
this definition any obligations or liabilities of any such Person as lessee
under any operating lease so long as the terms of such operating lease do not
require any payment by or on behalf of such Person at the scheduled termination
date of such operating lease, pursuant to a required purchase by or on behalf of
such Person of the property or assets subject to such operating lease, or under
any arrangements pursuant to which such Person guarantees or otherwise assures
any other Person of the value of the property or assets subject to such
operating lease. Off Balance Sheet Liabilities shall not include obligations and
liabilities of the Parent, the Borrower or any other Subsidiary (including any
Special Purpose Entity) referred to in clause (b)(i) of the definition of the
term Permitted Securitization.
"Operating Lease" means a lease of a Real Property Asset which is not a
Finance Lease.
"Parent" has the meaning set forth in the introductory paragraph hereof
and shall include the Parent's successors and assigns.
"Participant" has the meaning given that term in Section 12.5.(c).
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
agency.
"Permitted Liens" means, as to any Person: (a) Liens securing taxes,
assessments and other charges or levies imposed by any Governmental Authority
(excluding any Lien imposed pursuant to any of the provisions of ERISA) or the
claims of materialmen, mechanics, carriers, warehousemen or landlords for labor,
materials, supplies or rentals incurred in the ordinary course of business,
which are not at the time required to be paid or discharged under Section 7.6.;
(b) Liens consisting of deposits or pledges made, in the ordinary course of
business, in connection with, or to secure payment of, obligations under
workmen's compensation, unemployment insurance or similar Applicable Laws; (c)
zoning restrictions, easements, rights-of-way, covenants, reservations and other
rights, restrictions or encumbrances of record on the use of real property,
which do not materially detract from the value of such property or materially
impair the use thereof in the business of such Person; (d) Liens in existence as
of the Agreement Date and set forth in Part II of Schedule 6.1.(f); and (e)
Liens, if any, in favor of the Administrative Agent for the benefit of the
Lenders.
"Permitted Securitization" means a transaction consisting of one or
more limited recourse or nonrecourse sales and assignments by the Parent at any
time prior to the Contribution Date or by the Borrower or any other Subsidiary
to a Special Purpose Entity of promissory notes, mortgage loans, chattel paper,
leases or other similar financial assets originated by the Parent, the Borrower
or any other Subsidiary, and any subsequent limited recourse or nonrecourse
sales and assignments of such financial assets (or interests therein) by such
Special Purpose Entity to any Person other than an Affiliate; provided that all
of the Debt, liabilities and other obligations of such Special Purpose Entity
incurred in connection with such transactions are nonrecourse for the payment or
performance thereof to the Parent, the Borrower or any other Subsidiary
(excluding such Special Purpose Entity) other than the following: (a) reasonable
and customary obligations of the Parent, the Borrower or any other Subsidiary
with respect to (i) the servicing of any assets which are the subject of such
transaction, (ii) administrative and ministerial matters relating to such
Special Purpose Entity and (iii) maintenance of the corporate separateness of
such Special Purpose Entity from that of the Parent and its other Subsidiaries
and (b) if approved of by the Arrangers in writing in their reasonable judgment:
(i) reasonable and customary repurchase obligations and other liabilities
resulting from the breach of representations, warranties and covenants that are
not related to creditworthiness of the obligors on the financial assets the
subject of such transactions and (ii) limited recourse provisions.
"Permitted Warehouse Financing" means a transaction consisting of one
or more sales and assignments by the Parent at any time prior to the
Contribution Date or by the Borrower or any other Subsidiary to a Special
Purpose Entity of promissory notes, mortgage loans, chattel paper, leases or
other similar financial assets originated by the Parent, the Borrower or any
other Subsidiary, and the subsequent incurrence by such Special Purpose Entity
of Debt secured by a Lien encumbering only the assets of such Special Purpose
Entity (but in the case of a Special Purpose Entity that is a limited
partnership or limited liability company, not the assets of any other
Subsidiary); provided that (a) except as otherwise permitted under the
immediately following clause (b)(ii), all of the Debt, liabilities and other
obligations of such Special Purpose Entity incurred in connection with such
transaction are nonrecourse for the payment or performance thereof to the
Parent, the Borrower or any other Subsidiary (excluding such Special Purpose
Entity) other than reasonable and customary obligations of the Parent, the
Borrower or any other Subsidiary with respect to (i) the servicing of any assets
which are the subject of such transaction, (ii) administrative and ministerial
matters relating to such Special Purpose Entity and (iii) maintenance of the
corporate separateness of such Special Purpose Entity from that of the Parent
and its other Subsidiaries; (b) all of the provisions of such Debt regarding (i)
cross defaults to Debt of any other Person and (ii) the liability of, or
recourse to, the Parent, the Borrower or any other Subsidiary (excluding such
Special Purpose Entity) other than liabilities and obligations referred to in
subclauses (i) through (iii) of the immediately preceding clause (a), have been
approved of by the Arrangers in writing in their sole discretion and (c) all of
the other terms and conditions of such Debt have been approved of by the
Arrangers in writing in their reasonable judgment.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or unincorporated organization, or a
government or any agency or political subdivision thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Post-Default Rate" means, in respect of any principal of any Loan or
any other Obligation that is not paid when due (whether at stated maturity, by
acceleration, by optional or mandatory prepayment or otherwise), a rate per
annum equal to four percent (4.0%) plus the Base Rate as in effect from time to
time.
"Preferred Stock" means, with respect to any Person, shares of Equity
Interests in such Person which are entitled to preference or priority over any
other Equity Interest in such Person in respect of the payment of dividends or
distribution of assets upon liquidation or both.
"Preferred Stock Entity" means any Person (other than a Subsidiary) in
whom the Borrower or the Parent owns, directly or indirectly, Preferred Stock or
other Equity Interests which are not Voting Stock and which Preferred Stock or
other Equity Interests entitle the Borrower or the Parent, as the case may be,
to receive the majority of all economic benefits associated with ownership of
all Equity Interests issued by such Person.
"Prime Rate" means the rate of interest per annum announced publicly by
the Administrative Agent as its prime rate from time to time. The Prime Rate is
not necessarily the best or the lowest rate of interest offered by the
Administrative Agent or any Lender.
"Principal Office" means the office of the Administrative Agent located
at One First Union Center, Charlotte, North Carolina, or such other office of
the Administrative Agent as the Administrative Agent may designate from time to
time.
"Quarterly Date" means the last Business Day of March, June, September
and December in each year, the first of which shall be March 31, 1999.
"Rating Agency" means S&P or Xxxxx'x.
"Real Property Asset" means a parcel of real property, together with
all improvements (if any) thereon, owned (or leased pursuant to a ground lease)
by the Parent, the Borrower or any other Subsidiary.
"Register" has the meaning given that term in Section 12.5.(e).
"Regulatory Change" means, with respect to any Lender, any change
effective after the Agreement Date in Applicable Law (including without
limitation, Regulation D of the Board of Governors of the Federal Reserve
System) or the adoption or making after such date of any interpretation,
directive or request applying to a class of banks, including such Lender, of or
under any Applicable Law (whether or not having the force of law and whether or
not failure to comply therewith would be unlawful) by any Governmental Authority
or monetary authority charged with the interpretation or administration thereof
or compliance by any Lender with any request or directive regarding capital
adequacy.
"Reimbursement Obligation" means the absolute, unconditional and
irrevocable obligation of the Borrower to reimburse the Administrative Agent for
any drawing honored by the Administrative Agent under a Letter of Credit.
"REIT" means a Person qualifying for treatment as a "real estate
investment trust" under the Internal Revenue Code.
"Requisite Lenders" means, as of any date, Lenders having at least
66-2/3% of the aggregate amount of the Commitments, or, if the Commitments have
been terminated or reduced to zero, Lenders holding at least 66-2/3% of the
principal amount of the Loans and Letter of Credit Liabilities.
"Restricted Payment" means: (a) any dividend or other distribution,
direct or indirect, on account of any shares of any Equity Interest of the
Parent, the Borrower or any other Subsidiary now or hereafter outstanding,
except a dividend or distribution payable solely in shares of that class of
Equity Interest to the holders of that class; (b) any redemption, conversion,
exchange, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any Equity Interest
of the Parent, the Borrower or any other Subsidiary now or hereafter
outstanding; (c) any payment or prepayment of principal of, premium, if any, or
interest on, redemption, conversion, exchange, purchase, retirement, defeasance,
sinking fund or similar payment with respect to, any Debt which is subordinate
in right of repayment to any of the Obligations; and (d) any payment made to
retire, or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire shares of any Equity Interest of the Parent, the
Borrower or any other Subsidiary now or hereafter outstanding.
"Revolving Loan" means a loan made by a Lender to the Borrower pursuant
to Section 2.1.(a).
"Revolving Note" has the meaning given that term in Section 2.8.(a).
"Secured Debt" means, with respect to any Person, any Debt that is (a)
secured in any manner by any Lien or (b) entitled to the benefit of a Negative
Pledge.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, together with all rules and regulations issued thereunder.
"Solvent" means, when used with respect to any Person, that (a) the
fair value and the fair salable value of its assets (excluding any Debt due from
any affiliate of such Person) are each in excess of the fair valuation of its
total liabilities (including all contingent liabilities); and (b) such Person is
able to pay its debts or other obligations in the ordinary course as they mature
and (c) that the Person has capital not unreasonably small to carry on its
business and all business in which it proposes to be engaged.
"Special Purpose Entity" means any Person (a) which has a legal
structure and capitalization intended to make such entity a "bankruptcy remote"
entity and which legal structure and capitalization have been approved in
writing by the Arrangers; (b) which has been organized for the sole purpose of
effecting a Permitted Securitization or Permitted Warehouse Financing; (c) which
has no assets other than (i) the financial assets directly acquired in
connection with, and which are the subject of, such Permitted Securitization or
Permitted Warehouse Financing and (ii) Subordinated Securities acquired in
connection with a Permitted Securitization; (d) which has no Debt, liabilities
or other obligations other than those directly incurred in connection with such
Permitted Securitization or Permitted Warehouse Financing; and (e) which none of
the Parent, the Borrower or any other Subsidiary has any direct obligation to
maintain or preserve such Person's financial condition or to cause such Person
to achieve any specified levels of operating results except as otherwise
permitted in connection with such Permitted Securitization or Permitted
Warehouse Financing. In the case of a Special Purpose Entity which is a limited
partnership or a limited liability company, (i) any reference to such Special
Purpose Entity in any Loan Document shall be deemed to be references to such
Special Purpose Entity and all of its partners or members, as applicable and
(ii) notwithstanding the immediately preceding clause (c), the only assets which
such partners or members, as applicable, may own are Equity Interests in such
Special Purpose Entity or other Special Purpose Entities engaged in Permitted
Securitizations or Permitted Warehouse Facilities.
"S&P" means Standard & Poor's Rating Services, a division of
XxXxxx-Xxxx Companies, Inc.
"Stated Amount" means the amount available to be drawn by a beneficiary
under a Letter of Credit from time to time, as such amount may be increased or
reduced from time to time in accordance with the terms of such Letter of Credit.
"Subordinated Security" means any security evidencing a subordinate
interest in securitized pools of promissory notes, mortgage loans, chattel
paper, leases or other similar financial assets issued in connection with a
Permitted Securitization or otherwise.
"Subsidiary" means, for any Person, any corporation, partnership or
other entity of which at least a majority of the Voting Stock is at the time
directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person.
"Tangible Net Worth" means, as of a given date, total stockholder's
equity of the Parent and its Subsidiaries determined on a consolidated basis in
accordance with GAAP, excluding (to the extent reflected in determining
stockholders' equity of the Parent and its Subsidiaries) (a) accumulated
depreciation and amortization and (b) the aggregate amount of Intangible Assets
of the Parent and its Subsidiaries.
"Taxes" has the meaning given that term in Section 3.12.
"Termination Date" means March 22, 2002.
"Total Assets" means total assets of the Parent and its Subsidiaries
determined on a consolidated basis in accordance with GAAP.
"Type" with respect to any Loan, refers to whether such Loan is a LIBOR
Loan or Base Rate Loan.
"Unconsolidated Affiliate" shall mean, with respect to any Person, any
other Person in whom such Person holds an Investment, which Investment is
accounted for in the financial statements of such Person on an equity basis of
accounting and whose financial results would not be consolidated under GAAP with
the financial results of such Person on the consolidated financial statements of
such Person.
"Unencumbered Asset Value" means the sum of (a) the aggregate Value of
all Eligible Leases as determined in accordance with GAAP plus (b) all
accumulated depreciation with respect to the Real Property Assets leased under
any such Eligible Leases that are Operating Leases plus (c) the aggregate book
value of all Eligible Mortgage Notes Receivable as determined in accordance with
GAAP.
"Unencumbered Property Certificate" means a report, certified by the
chief financial officer of the Parent, setting forth the calculations required
to establish the Unencumbered Asset Value as of a specified date, all in form
and detail reasonably satisfactory to the Administrative Agent.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (a) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (b) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"Unsecured Debt" means all Debt of the Parent and its Subsidiaries that
is not Secured Debt and shall include all Debt in respect of Capitalized Lease
Obligations.
"Value" means (a) with respect to a Finance Lease, the book value of
such Finance Lease (excluding any portion of such lease relating to furniture,
fixtures and equipment) as determined in accordance with GAAP and (b) with
respect to an Operating Lease, the book value of the Real Property Asset subject
to such Operating Lease as determined in accordance with GAAP.
"Voting Stock" means capital stock issued by a corporation, or
equivalent Equity Interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election
of directors (or persons performing similar functions) of such Person, even if
the right so to vote has been suspended by the happening of such a contingency
"Wholly Owned Subsidiary" means, with respect to a Person, any
Subsidiary of such Person all of the equity securities or other ownership
interests (other than, in the case of a corporation, directors' qualifying
shares) are at the time directly or indirectly owned or controlled by such
Person or one or more Subsidiaries of such Person or by such Person and one or
more Subsidiaries of such Person.
"Year 2000 Compliant" has the meaning given that term in Section
6.1.(x).
Section 1.2. General; References to Times.
Unless otherwise indicated, all accounting terms, ratios and
measurements shall be interpreted or determined in accordance with GAAP.
References in this Agreement to "Sections", "Articles", "Exhibits" and
"Schedules" are to sections, articles, exhibits and schedules herein and hereto
unless otherwise indicated. references in this Agreement to any document,
instrument or agreement (a) shall include all exhibits, schedules and other
attachments thereto, (b) shall include all documents, instruments or agreements
issued or executed in replacement thereof, to the extent permitted hereby and
(c) shall mean such document, instrument or agreement, or replacement or
predecessor thereto, as amended, supplemented, restated or otherwise modified
from time to time to the extent permitted hereby and in effect at any given
time. Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter. Unless explicitly set forth to the
contrary, a reference to "Subsidiary" means a Subsidiary of the Parent or a
Subsidiary of such Subsidiary and a reference to an "Affiliate" means a
reference to an Affiliate of the Parent. Titles and captions of Articles,
Sections, subsections and clauses in this Agreement are for convenience only,
and neither limit nor amplify the provisions of this Agreement. Unless otherwise
indicated, all references to time are references to Charlotte, North Carolina
time.
Article II. Credit Facility
Section 2.1. Revolving Loans.
(a) Generally. Subject to the terms and conditions hereof, including
without Limitation Section 2.13., during the period from the Effective Date to
but excluding the Termination Date, each Lender severally and not jointly agrees
to make Revolving Loans to the Borrower in an aggregate principal amount at any
one time outstanding up to, but not exceeding, the amount of such Lender's
Commitment. Subject to the terms and conditions of this Agreement, during the
period from the Effective Date to but excluding the Termination Date, the
Borrower may borrow, repay and reborrow Revolving Loans hereunder.
(b) Requesting Revolving Loans. The Borrower shall give the
Administrative Agent notice pursuant to a Notice of Borrowing or telephonic
notice of each borrowing of Revolving Loans. Each Notice of Borrowing shall be
delivered to the Administrative Agent before 12:00 noon (a) in the case of LIBOR
Loans, on the date three Business Days prior to the proposed date of such
borrowing and (b) in the case of Base Rate Loans, on the date one Business Day
prior to the proposed date of such borrowing. Any such telephonic notice shall
include all information to be specified in a written Notice of Borrowing and
shall be promptly confirmed in writing by the Borrower pursuant to a Notice of
Borrowing sent to the Administrative Agent by telecopy on the same day of the
giving of such telephonic notice. The Administrative Agent will transmit by
telecopy the Notice of Borrowing (or the information contained in such Notice of
Borrowing) to each Lender promptly upon receipt by the Administrative Agent.
Each Notice of Borrowing or telephonic notice of each borrowing shall be
irrevocable once given and binding on the Borrower.
(c) Disbursements of Revolving Loan Proceeds. No later than 1:00 p.m.
on the date specified in the Notice of Borrowing, each Lender will make
available for the account of its applicable Lending Office to the Administrative
Agent at the Principal Office, in immediately available funds, the proceeds of
the Revolving Loan to be made by such Lender. With respect to Revolving Loans to
be made after the Effective Date, unless the Administrative Agent shall have
been notified by any Lender prior to the specified date of borrowing that such
Lender does not intend to make available to the Administrative Agent the
Revolving Loan to be made by such Lender on such date, the Administrative Agent
may assume that such Lender will make the proceeds of such Revolving Loan
available to the Administrative Agent on the date of the requested borrowing as
set forth in the Notice of Borrowing and the Administrative Agent may (but shall
not be obligated to), in reliance upon such assumption, make available to the
Borrower the amount of such Revolving Loan to be provided by such Lender.
Subject to satisfaction of the applicable conditions set forth in Article V. for
such borrowing, the Administrative Agent will make the proceeds of such
borrowing available to the Borrower no later than 2:00 p.m. on the date and at
the account specified by the Borrower in such Notice of Borrowing.
Section 2.2. Rates and Payment of Interest on Loans.
(a) Rates. The Borrower promises to pay to the Administrative Agent for
account of each Lender interest on the unpaid principal amount of each Loan made
by such Lender for the period from and including the date of the making of such
Loan to but excluding the date such Loan shall be paid in full, at the following
per annum rates:
(i) during such periods as such Loan is a Base Rate Loan, at
the Base Rate (as in effect from time to time) plus the Applicable
Margin; and
(ii) during such periods as such Loan is a LIBOR Loan, at the
Adjusted Eurodollar Rate for such Loan for the Interest Period
therefor, plus the Applicable Margin.
Notwithstanding the foregoing, during the continuance of an Event of Default,
the Borrower shall pay to the Administrative Agent for account of each Lender
interest at the Post-Default Rate on the outstanding principal amount of any
Loan made by such Lender and on any other amount payable by the Borrower
hereunder or under the Notes held by such Lender (including without limitation,
accrued but unpaid interest to the extent permitted under Applicable Law).
(b) Payment of Interest. Accrued interest on each Loan shall be payable
(i) in the case of a Base Rate Loan, monthly on the first Business Day of each
calendar month, (ii) in the case of a LIBOR Loan, on the last day of each
Interest Period therefor and, if such Interest Period is longer than three
months, at three-month intervals following the first day of such Interest
Period, and (iii) in the case of any Loan, upon the payment, prepayment or
Continuation thereof or the Conversion of such Loan to a Loan of another Type
(but only on the principal amount so paid, prepaid or Converted). Interest
payable at the Post-Default Rate shall be payable from time to time on demand.
Promptly after the determination of any interest rate provided for herein or any
change therein, the Administrative Agent shall give notice thereof to the
Lenders to which such interest is payable and to the Borrower. All
determinations by the Administrative Agent of an interest rate hereunder shall
be conclusive and binding on the Lenders and the Borrower for all purposes,
absent manifest error.
Section 2.3. Number of Interest Periods.
There may be no more than 6 different Interest Periods outstanding at
the same time.
Section 2.4. Repayment of Loans.
The Borrower shall repay the entire outstanding principal amount of,
and all accrued but unpaid interest on, the Revolving Loans on the Termination
Date.
Section 2.5. Prepayments.
(a) Optional. Subject to Section 4.4., the Borrower may prepay any Loan
at any time without premium or penalty. The Borrower shall give the
Administrative Agent at least 3 Business Days prior written notice of the
prepayment of any LIBOR Loan and at least 1 Business Day prior written notice of
the prepayment of any Base Rate Loan.
(b) Mandatory. If at any time the aggregate principal amount of all
outstanding Revolving Loans, together with the aggregate amount of all Letter of
Credit Liabilities, exceeds the aggregate amount of the Commitments at such
time, the Borrower shall immediately pay to the Administrative Agent for the
accounts of the Lenders the amount of such excess. Such payment shall be applied
to pay all amounts of principal outstanding on the Loans and all Reimbursement
Obligations pro rata in accordance with Section 3.2. and the remainder, if any,
shall be deposited into the Collateral Account. If the Borrower is required to
pay any outstanding LIBOR Loans by reason of this Section prior to the end of
the applicable Interest Period therefor, the Borrower shall pay all amounts due
under Section 4.4.
Section 2.6. Continuation.
So long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may on any Business Day, with respect to any LIBOR
Loan, elect to maintain such LIBOR Loan or any portion thereof as a LIBOR Loan
by selecting a new Interest Period for such LIBOR Loan. Each new Interest Period
selected under this Section shall commence on the last day of the immediately
preceding Interest Period. Each selection of a new Interest Period shall be made
by the Borrower giving to the Administrative Agent a Notice of Continuation not
later than 12:00 noon on the third Business Day prior to the date of any such
Continuation. Such notice by the Borrower of a Continuation shall be by
telephone or telecopy, confirmed immediately in writing if by telephone, in the
form of a Notice of Continuation, specifying (a) the proposed date of such
Continuation, (b) the LIBOR Loan and portion thereof subject to such
Continuation and (c) the duration of the selected Interest Period, all of which
shall be specified in such manner as is necessary to comply with all limitations
on Loans outstanding hereunder. Each Notice of Continuation shall be irrevocable
by and binding on the Borrower once given. Promptly after receipt of a Notice of
Continuation, the Administrative Agent shall notify each Lender by telecopy or
other similar form of transmission of the proposed Continuation. If the Borrower
shall fail to select in a timely manner a new Interest Period for any LIBOR Loan
in accordance with this Section, such Loan will automatically, on the last day
of the current Interest Period therefor, Convert into a Base Rate Loan
notwithstanding failure of the Borrower to comply with Section 2.7.
Section 2.7. Conversion.
So long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may on any Business Day, upon the Borrower's giving of
a Notice of Conversion to the Administrative Agent, Convert all or a portion of
a Loan of one Type into a Loan of another Type. Any Conversion of a LIBOR Loan
into a Base Rate Loan shall be made on, and only on, the last day of an Interest
Period for such LIBOR Loan and, upon Conversion of a Base Rate Loan into a LIBOR
Loan, the Borrower shall pay accrued interest to the date of Conversion on the
principal amount so Converted. Each such Notice of Conversion shall be given not
later than 12:00 noon on the Business Day prior to the date of any proposed
Conversion into Base Rate Loans and on the third Business Day prior to the date
of any proposed Conversion into LIBOR Loans. Promptly after receipt of a Notice
of Conversion, the Administrative Agent shall notify each Lender by telecopy or
other similar form of transmission of the proposed Conversion. Subject to the
restrictions specified above, each Notice of Conversion shall be by telephone
(confirmed immediately in writing) or telecopy in the form of a Notice of
Conversion specifying (a) the requested date of such Conversion, (b) the Type of
Loan to be Converted, (c) the portion of such Type of Loan to be Converted, (d)
the Type of Loan such Loan is to be Converted into and (e) if such Conversion is
into a LIBOR Loan, the requested duration of the Interest Period of such Loan.
Each Notice of Conversion shall be irrevocable by and binding on the Borrower
once given.
Section 2.8. Notes.
(a) Revolving Note. The Revolving Loans made by each Lender shall, in
addition to this Agreement, also be evidenced by a promissory note of the
Borrower substantially in the form of Exhibit G (each a "Revolving Note"),
payable to the order of such Lender in a principal amount equal to the amount of
its Commitment as originally in effect and otherwise duly completed.
(b) Records; Endorsement on Transfer. The date, amount of each Loan
made by each Lender to the Borrower, and each payment made on account of the
principal thereof, shall be recorded by such Lender on its books and such
entries shall be binding on the Borrower absent manifest error. Prior to the
transfer of any Note, the Lender shall endorse such items on such Note or any
allonge thereof; provided that the failure of such Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower to
make a payment when due of any amount owing hereunder or under such Note in
respect of the Loans evidenced by such Note.
Section 2.9. Letters of Credit.
(a) Letters of Credit. Subject to the terms and conditions of this
Agreement, the Administrative Agent, on behalf of the Lenders, agrees to issue
for the account of the Borrower during the period from and including the
Effective Date to, but excluding, the date 60 days prior to the Termination Date
one or more letters of credit (each a "Letter of Credit") up to a maximum
aggregate Stated Amount at any one time outstanding not to exceed the L/C
Commitment Amount. Notwithstanding the foregoing, there may be no more than 10
Letters of Credit outstanding at any given time.
(b) Terms of Letters of Credit. At the time of issuance, the amount,
form, terms and conditions of each Letter of Credit, and of any drafts or
acceptances thereunder, shall be subject to approval by the Administrative Agent
and the Borrower. Notwithstanding the foregoing, in no event may the expiration
date of any Letter of Credit extend beyond the date 30 days prior to the
Termination Date, and any Letter of Credit containing an automatic renewal
provision shall also contain a provision pursuant to which, notwithstanding any
other provisions thereof, it shall have a final expiration date no later than
the date 30 days prior to the Termination Date.
(c) Requests for Issuance of Letters of Credit. The Borrower shall give
the Administrative Agent written notice (or telephonic notice promptly confirmed
in writing) no later than 9:00 a.m. three Business Days prior to the requested
date of issuance of a Letter of Credit, such notice to describe in reasonable
detail the proposed terms of such Letter of Credit and the nature of the
transactions or obligations proposed to be supported by such Letter of Credit,
and in any event shall set forth with respect to such Letter of Credit (i) the
proposed initial Stated Amount, (ii) the beneficiary or beneficiaries, (iii)
whether such Letter of Credit is a commercial or standby letter of credit and
(iv) the proposed expiration date. The Borrower shall also execute and deliver
such customary letter of credit application forms as requested from time to time
by the Administrative Agent. Provided the Borrower has given the notice
prescribed by Section 2.9.(a) and subject to Section 2.13. and the other terms
and conditions of this Agreement, including the satisfaction of any applicable
conditions precedent set forth in Article V., the Administrative Agent shall
issue the requested Letter of Credit on the requested date of issuance. The
Administrative Agent shall promptly provide notice to the Lenders of the
issuance of any Letter of Credit issued hereunder which notice shall set forth
each Lender's pro rata share of (1) such Letter of Credit and (2) all Letters of
Credit then outstanding. Upon the written request of the Borrower, the
Administrative Agent (x) shall make reasonable efforts to deliver to the
Borrower a copy of any Letter of Credit proposed to be issued hereunder prior to
the issuance thereof and (y) shall deliver to the Borrower a copy of each issued
Letter of Credit within a reasonable time after the date of issuance thereof. To
the extent any term of a Letter of Credit Document is inconsistent with a term
of any Loan Document, the term of such Loan Document shall control.
(d) Reimbursement Obligations. Upon receipt by the Administrative Agent
from the beneficiary of a Letter of Credit of any demand for payment under such
Letter of Credit, the Administrative Agent shall promptly notify the Borrower of
the amount to be paid by the Administrative Agent as a result of such demand and
the date on which payment is to be made by the Administrative Agent to such
beneficiary in respect of such demand. The Borrower hereby unconditionally and
irrevocably agrees to pay and reimburse the Administrative Agent for the amount
of each demand for payment under such Letter of Credit on or prior to the date
on which payment is to be made by the Administrative Agent to the beneficiary
thereunder, without presentment, demand, protest or other formalities of any
kind. Upon receipt by the Administrative Agent of any payment in respect of any
Reimbursement Obligation, the Administrative Agent shall promptly pay to each
Lender that has acquired a participation therein under the second sentence of
Section 2.9.(i) such Lender's Commitment Percentage of such payment.
(e) Manner of Reimbursement. Upon its receipt of a notice referred to
in the immediately preceding subsection (d), the Borrower shall advise the
Administrative Agent whether or not the Borrower intends to borrow hereunder to
finance its obligation to reimburse the Administrative Agent for the amount of
the related demand for payment and, if it does, the Borrower shall submit a
timely Notice of Borrowing as provided in Section 2.1.(b). If the Borrower fails
to so advise the Administrative Agent, or if the Borrower fails to reimburse the
Administrative Agent for a demand for payment under a Letter of Credit by the
date of such payment, then (i) if the applicable conditions contained in Article
V. would permit the making of Revolving Loans, the Borrower shall be deemed to
have requested a borrowing of Revolving Loans (which shall be Base Rate Loans)
in an amount equal to the unpaid Reimbursement Obligation and the Administrative
Agent shall give each Lender prompt notice of the amount of the Revolving Loan
(which shall not be subject to the limitations of Section 2.13.) to be made by
such Lender, the proceeds of which such Lender shall make available to the
Administrative Agent not later than 3:00 p.m. and (ii) if such conditions would
not permit the making of Revolving Loans, the provisions of subsection (j) of
this Section shall apply.
(f) Effect of Letters of Credit on Commitments. Upon the issuance by
the Administrative Agent of any Letter of Credit and until such Letter of Credit
shall have expired or been terminated, the Commitment of each Lender shall be
deemed to be utilized for all purposes of this Agreement in an amount equal to
such Lender's Commitment Percentage of the Stated Amount of such Letter of
Credit plus any related Reimbursement Obligations then outstanding.
(g) Administrative Agent's Duties Regarding Letters of Credit;
Unconditional Nature of Reimbursement Obligation. In examining documents
presented in connection with drawings under Letters of Credit and making
payments under such Letters of Credit against such documents, the Administrative
Agent shall use the same standard of care as it uses in connection with
examining documents presented in connection with drawings under letters of
credit in which it has not sold participations and making payments under such
letters of credit. The Borrower assumes all risks of the acts and omissions of,
or misuse of the Letters of Credit by, the respective beneficiaries of such
Letters of Credit. In furtherance and not in limitation of the foregoing,
neither the Administrative Agent nor any of the Lenders shall be responsible for
(i) the form, validity, sufficiency, accuracy, genuineness or legal effects of
any document submitted by any party in connection with the application for and
issuance of or any drawing honored under any Letter of Credit even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any Letter of
Credit, or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason; (iii) failure
of the beneficiary of any Letter of Credit to comply fully with conditions
required in order to draw upon such Letter of Credit; (iv) errors, omissions,
interruptions or delays in transmission or delivery of any messages by others,
whether by mail, cable, telex, telecopy or otherwise, whether or not they be in
cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay
by others in the transmission or otherwise of any document required in order to
make a drawing under any Letter of Credit, or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit, or the proceeds
of any drawing under such Letter of Credit; or (viii) any consequences arising
from causes beyond the control of the Administrative Agent or the Lenders. None
of the above shall affect, impair or prevent the vesting of any of the
Administrative Agent's rights or powers hereunder. Any action taken or omitted
to be taken by the Administrative Agent under or in connection with any Letter
of Credit, if taken or omitted in the absence of gross negligence or willful
misconduct, shall not create against the Administrative Agent any liability to
the Borrower or any Lender. In this connection, the obligation of the Borrower
to reimburse the Administrative Agent for any drawing made under any Letter of
Credit shall be absolute, unconditional and irrevocable and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances
whatsoever, including without limitation, the following circumstances: (A) any
lack of validity or enforceability of any Letter of Credit Document or any term
or provisions therein; (B) any amendment or waiver of or any consent to
departure from all or any of the Letter of Credit Documents; (C) the existence
of any claim, setoff, defense or other right which the Borrower may have at any
time against the Administrative Agent, any Lender, any beneficiary of a Letter
of Credit or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or in the Letter of Credit Documents or any
unrelated transaction; (D) any breach of contract or dispute between the
Borrower, the Administrative Agent, any Lender or any other Person; (E) any
demand, statement or any other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein or made in connection therewith being untrue or inaccurate in
any respect whatsoever; (F) any non-application or misapplication by the
beneficiary of a Letter of Credit of the proceeds of any drawing under such
Letter of Credit; (G) payment by the Administrative Agent under the Letter of
Credit against presentation of a draft or certificate which does not strictly
comply with the terms of the Letter of Credit; and (H) any other act, omission
to act, delay or circumstance whatsoever that might, but for the provisions of
this Section, constitute a legal or equitable defense to or discharge of the
Borrower's Reimbursement Obligations.
(h) Amendments, Etc. The issuance by the Administrative Agent of any
amendment, supplement or other modification to any Letter of Credit shall be
subject to the same conditions applicable under this Agreement to the issuance
of new Letters of Credit (including, without limitation, that the request
therefor be made through the Administrative Agent), and no such amendment,
supplement or other modification shall be issued unless either (i) the
respective Letter of Credit affected thereby would have complied with such
conditions had it originally been issued hereunder in such amended, supplemented
or modified form or (ii) the Requisite Lenders shall have consented thereto.
(i) Lenders' Participation in Letters of Credit. Immediately upon the
issuance by the Administrative Agent of any Letter of Credit each Lender shall
be deemed to have irrevocably and unconditionally purchased and received from
the Administrative Agent, without recourse or warranty, an undivided interest
and participation to the extent of such Lender's Commitment Percentage of the
liability of the Administrative Agent with respect to such Letter of Credit and
each Lender thereby shall absolutely, unconditionally and irrevocably assume, as
primary obligor and not as surety, and shall be unconditionally obligated to the
Administrative Agent to pay and discharge when due, such Lender's Commitment
Percentage of the Administrative Agent's liability under such Letter of Credit.
In addition, upon the making of each payment by a Lender to the Administrative
Agent in respect of any Letter of Credit pursuant to the immediately following
subsection (j), such Lender shall, automatically and without any further action
on the part of the Administrative Agent or such Lender, acquire (i) a
participation in an amount equal to such payment in the Reimbursement Obligation
owing to the Administrative Agent by the Borrower in respect of such Letter of
Credit and (ii) a participation in a percentage equal to such Lender's
Commitment Percentage in any interest or other amounts payable by the Borrower
in respect of such Reimbursement Obligation (other than the Fees payable to the
Administrative Agent pursuant to the second and last sentences of Section
3.6.(b)).
(j) Payment Obligation of Lenders. Each Lender severally agrees to pay
to the Administrative Agent on demand in immediately available funds the amount
of such Lender's Commitment Percentage of each drawing paid by the
Administrative Agent under each Letter of Credit to the extent such amount is
not reimbursed by the Borrower pursuant to Section 2.9.(d) and is not available
from funds then on deposit in the Collateral Account. Each such Lender's
obligation to make such payments to the Administrative Agent under this
subsection, and the Administrative Agent's right to receive the same, shall be
absolute, irrevocable and unconditional and shall not be affected in any way by
any circumstance whatsoever, including without limitation, (i) the failure of
any other Lender to make its payment under this subsection, (ii) the financial
condition of the Borrower or any other Loan Party, (iii) the existence of any
Default or Event of Default, including any Event of Default described in Section
10.1.(e) or 10.1.(f) or (iv) the termination of the Commitments. Each such
payment to the Administrative Agent shall be made without any offset, abatement,
withholding or deduction whatsoever.
(k) Information to Lenders. Upon the request of any Lender from time to
time, the Administrative Agent shall deliver to such Lender information
reasonably requested by such Lender with respect to any Letter of Credit then
outstanding. Other than as set forth in this subsection or in the immediately
preceding subsection (c), the Administrative Agent shall have no duty to notify
the Lenders regarding the issuance or other matters regarding Letters of Credit
issued hereunder. The failure of the Administrative Agent to perform its
requirements under this subsection or such subsection (c) shall not relieve any
Lender from its obligations under Section 2.9.(j).
Section 2.10. Voluntary Reductions of the Commitment.
The Borrower shall have the right to terminate or reduce the aggregate
unused amount of the Commitments (for which purpose use of the Commitments shall
be deemed to include the aggregate amount of all Letter of Credit Liabilities)
at any time and from time to time without penalty or premium upon not less than
5 Business Days prior written notice to the Administrative Agent of each such
termination or reduction, which notice shall specify the effective date thereof
and the amount of any such reduction and shall be irrevocable once given and
effective only upon receipt by the Administrative Agent. The Administrative
Agent will promptly transmit such notice to each Lender. The Commitments, once
terminated or reduced may not be increased or reinstated. Any reduction in the
aggregate amount of the Commitments shall result in a proportionate reduction
(rounded to the next lowest integral multiple of $100,000) in the L/C Commitment
Amount; provided, however, the L/C Commitment Amount shall not be reduced by
operation of this sentence to an amount less than the Letter of Credit
Liabilities at such time.
Section 2.11. Increase of Commitments.
The Borrower shall have the right to request increases in the aggregate
amount of the Commitments from time to time (provided that after giving effect
to any such increase the aggregate amount of the Commitments would not exceed
$350,000,000) by providing written notice to the Administrative Agent and the
Arrangers, which notice shall be irrevocable once given. The Borrower, prior to
requesting an increase in the Commitments pursuant to this Section must offer in
writing each Lender the right to increase its Commitment by an amount so that
such Lender's Commitment Percentage shall not be decreased as a result of such
increase in the Commitments. If a Lender does not accept the Borrower's offer to
increase its Commitment as provided in the preceding sentence within 10 Business
Days of the receipt of such offer, such offer shall be deemed rejected by such
Lender. No Lender shall be required to increase its Commitment and any new
Lender(s) becoming a party to this Agreement shall be an Eligible Assignee. In
the event a new Lender or Lenders become a party to this Agreement, or if any
existing Lender agrees to increase its Commitment, such Lender shall on the date
it becomes a Lender hereunder (or increases its Commitment, in the case of an
existing Lender) (and as a condition hereto) purchase from the other Lenders its
Lender's Commitment Percentage (as determined after giving effect to the
increase of Commitments) of any outstanding Loans, by making available to the
Administrative Agent for the account of such other Lenders at the Principal
Office, in same day funds, an amount equal to the sum of (A) the portion of the
outstanding principal amount of such Loans to be purchased by such Lender plus
(B) the aggregate amount of payments previously made by such Lender under
Section 2.9.(j) which have not been repaid plus (C) interest accrued and unpaid
to and as of such date on such portion of the outstanding principal amount of
such Loans. Upon any such assignment, the assigning Lender shall be deemed to
represent and warrant to such other Lender that such assigning Lender is the
legal and beneficial owner of such interest being assigned by it, but makes no
other representation or warranty and assumes no responsibility with respect to
any Loan being assigned, the Loan Documents or any Loan Party. No increase of
the Commitments may be effected under this Section if a Default or Event of
Default shall be in existence on the effective date of such increase.
Section 2.12. Expiration or Maturity Date of Letters of Credit Past Termination
Date.
If on the date (the "Facility Termination Date") the Commitments are
terminated (whether voluntarily, by reason of the occurrence of an Event of
Default or otherwise), there are any Letters of Credit outstanding hereunder,
the Borrower shall, on the Facility Termination Date, pay to the Administrative
Agent an amount of money equal to the Stated Amount of such Letter(s) of Credit
for deposit into the Collateral Account. If a drawing pursuant to any such
Letter of Credit occurs on or prior to the expiration date of such Letter of
Credit, the Borrower authorizes the Administrative Agent to use the monies
deposited in the Collateral Account to make payment to the beneficiary with
respect to such drawing or the payee with respect to such presentment. If no
drawing occurs on or prior to the expiration date of such Letter of Credit, the
Administrative Agent shall pay to the Borrower (or to whomever else may be
legally entitled thereto) the monies deposited in the Collateral Account with
respect to such outstanding Letter of Credit on or before the date 30 Business
Days after the expiration date of such Letter of Credit.
Section 2.13. Amount Limitations.
Notwithstanding any other term of this Agreement or any other Loan
Document, at no time may the aggregate principal amount of all outstanding
Revolving Loans, together with the aggregate amount of all Letter of Credit
Liabilities, exceed the aggregate amount of the Commitments.
Article III. Payments, Fees and Other General Provisions
Section 3.1. Payments.
Except to the extent otherwise provided herein, all payments of
principal, interest and other amounts to be made by the Borrower under this
Agreement or any other Loan Document shall be made in Dollars, in immediately
available funds, without deduction, set-off or counterclaim, to the
Administrative Agent at its Principal Office, not later than 2:00 p.m. on the
date on which such payment shall become due (each such payment made after such
time on such due date to be deemed to have been made on the next succeeding
Business Day). Prior to making any such payment, the Borrower shall give the
Administrative Agent notice of such payment. The Borrower shall, at the time of
making each payment under this Agreement or any Note, specify to the
Administrative Agent the amounts payable by the Borrower hereunder to which such
payment is to be applied. Each payment received by the Administrative Agent for
the account of a Lender under this Agreement or any Note shall be paid to such
Lender at the applicable Lending Office of such Lender no later than 5:00 p.m.
on the date of receipt. If the Administrative Agent fails to pay such amount to
a Lender as provided in the previous sentence, the Administrative Agent shall
pay interest on such amount until paid at a rate per annum equal to the Federal
Funds Rate from time to time in effect. If the due date of any payment under
this Agreement or any other Loan Document would otherwise fall on a day which is
not a Business Day such date shall be extended to the next succeeding Business
Day and interest shall be payable for the period of such extension.
Section 3.2. Pro Rata Treatment.
Except to the extent otherwise provided herein: (a) each borrowing from
the Lenders under Section 2.1.(a) shall be made from the Lenders, each payment
of the Fees under Section 3.6.(a) and the first sentence of subsection (b)
thereof, shall be made for account of the Lenders, and each termination or
reduction of the amount of the Commitments under Section 2.10. shall be applied
to the respective Commitments of the Lenders, pro rata according to the amounts
of their respective Commitments; (b) each payment or prepayment of principal of
Revolving Loans by the Borrower shall be made for account of the Lenders pro
rata in accordance with the respective unpaid principal amounts of the Revolving
Loans held by them, provided that if immediately prior to giving effect to any
such payment in respect of any Revolving Loans the outstanding principal amount
of the Revolving Loans shall not be held by the Lenders pro rata in accordance
with their respective Commitments in effect at the time such Loans were made,
then such payment shall be applied to the Revolving Loans in such manner as
shall result, as nearly as is practicable, in the outstanding principal amount
of the Revolving Loans being held by the Lenders pro rata in accordance with
their respective Commitments; (c) each payment of interest on Revolving Loans by
the Borrower shall be made for account of the Lenders pro rata in accordance
with the amounts of interest on such Loans then due and payable to the
respective Lenders; (d) the making, Conversion and Continuation of Revolving
Loans of a particular Type (other than Conversions provided for by Section 4.5.)
shall be made pro rata among the Lenders according to the amounts of their
respective Commitments (in the case of making of Loans) or their respective
Loans (in the case of Conversions and Continuations of Loans) and the then
current Interest Period for each Lender's portion of each Loan of such Type
shall be coterminous and (e) the Lenders' participation in, and payment
obligations in respect of, Letters of Credit under Section 2.9., shall be pro
rata in accordance with their respective Commitments.
Section 3.3. Sharing of Payments, Etc.
The Borrower agrees that, in addition to (and without limitation of)
any right of set-off, banker's lien or counterclaim a Lender or the
Administrative Agent may otherwise have, each Lender and the Administrative
Agent shall be entitled during the continuance of an Event of Default, at its
option, and in the case of any Lender subject to receipt of the Administrative
Agent's prior written consent, to offset balances held by it for the account of
the Borrower at any of such Lender's (or the Administrative Agent's) offices, in
Dollars or in any other currency, against any principal of, or interest on, any
of such Lender's Loans hereunder (or other Obligations owing to such Lender or
the Administrative Agent hereunder) which is not paid when due (regardless of
whether such balances are then due to the Borrower), in which case such Lender
shall promptly notify the Borrower, all other Lenders and the Administrative
Agent thereof; provided, however, such Lender's failure to give such notice
shall not affect the validity of such offset. If a Lender shall obtain payment
of any principal of, or interest on, any Loan made by it to the Borrower under
this Agreement, or shall obtain payment on any other Obligation owing by the
Borrower or a Subsidiary through the exercise of any right of set-off, banker's
lien or counterclaim or similar right or otherwise or through voluntary
prepayments directly to a Lender or other payments made by the Borrower to a
Lender not in accordance with the terms of this Agreement and such payment
should be distributed to the Lenders pro rata in accordance with Section 3.2. or
Section 10.4., as applicable, such Lender shall promptly pay such amounts to the
other Lenders and make such other adjustments from time to time as shall be
equitable, to the end that all the Lenders shall share the benefit of such
payment (net of any reasonable expenses which may be incurred by such Lender in
obtaining or preserving such benefit) pro rata in accordance with Section 3.2.
or Section 10.4. To such end, all the Lenders shall make appropriate adjustments
among themselves (by the resale of participations sold or otherwise) if such
payment is rescinded or must otherwise be restored. Nothing contained herein
shall require any Lender to exercise any such right or shall affect the right of
any Lender to exercise, and retain the benefits of exercising, any such right
with respect to any other indebtedness or obligation of the Borrower.
Section 3.4. Several Obligations.
No Lender shall be responsible for the failure of any other Lender to
make a Loan or to perform any other obligation to be made or performed by such
other Lender hereunder, and the failure of any Lender to make a Loan or to
perform any other obligation to be made or performed by it hereunder shall not
relieve the obligation of any other Lender to make any Loan or to perform any
other obligation to be made or performed by such other Lender.
Section 3.5. Minimum Amounts.
(a) Borrowings and Conversions. Each borrowing of Base Rate Loans shall
be in an aggregate minimum amount of $1,000,000 and integral multiples of
$500,000 in excess thereof. Each borrowing of LIBOR Loans, and each Conversion
of Base Rate Loans into LIBOR Loans, shall be in an aggregate minimum amount of
$2,000,000 and integral multiples of $500,000 in excess of that amount.
(b) Prepayments. Each voluntary prepayment of Revolving Loans shall be
in an aggregate minimum amount of $1,000,000 and integral multiples of $500,000
in excess thereof.
(c) Reductions of Commitments. Each reduction of the Commitments under
Section 2.10. shall be in an aggregate minimum amount of $10,000,000 and
integral multiples of $1,000,000 in excess thereof (or such lesser amount as may
be the remaining aggregate amount of the Commitments).
Section 3.6. Fees.
(a) Unused Commitment Fee. During the period commencing on the
Agreement Date to but excluding the Termination Date, the Borrower agrees to pay
to the Administrative Agent for the account of the Lenders an unused facility
fee equal to (a) two-tenths of one percent (0.20%) per annum of the daily
aggregate unused portion of the Lender's Commitments during any period for which
the Borrower has received an Investment Grade Rating from both Rating Agencies
or (b) one-quarter of one percent (0.25%) per annum of the daily aggregate
unused portion of the Lender's Commitments during any other period. Such fee
shall be payable quarterly in arrears on each Quarterly Date and on the
Termination Date.
(b) Letter of Credit Fees. In respect of each Letter of Credit, the
Borrower agrees to pay to the Administrative Agent for account of each Lender a
letter of credit fee (determined on a per annum basis) in an amount equal to the
initial Stated Amount of such Letter of Credit times the Applicable Margin for
LIBOR Loans determined as of the date of issuance of such Letter of Credit
calculated for the period from and including the date of issuance of such Letter
of Credit to and including the initial date such Letter of Credit is to expire.
In addition, the Borrower shall pay to the Administrative Agent for its own
account and not the account of any Lender, a fronting fee in respect of each
Letter of Credit at the rate equal to one-eighth of one percent (0.125%) per
annum on the initial Stated Amount of such Letter of Credit calculated for the
same such period. The fees provided for in the immediately preceding two
sentences shall be nonrefundable upon, and due and payable in full on, the date
of issuance of the applicable Letter of Credit. The Borrower shall pay directly
to the Administrative Agent from time to time on demand all reasonable
commissions, charges, costs and expenses in the amounts customarily charged by
the Administrative Agent from time to time in like circumstances with respect to
the issuance of each Letter of Credit, drawings, amendments and other
transactions relating thereto.
(c) Other Fees. The Borrower agrees to pay the administrative and other
fees of the Administrative Agent as may be agreed to in writing between the
Administrative Agent and the Borrower from time to time.
Section 3.7. Computations.
Unless otherwise expressly set forth herein, any accrued interest on
any Loan, any Fees or other Obligations due hereunder shall be computed on the
basis of a year of 360 days and the actual number of days elapsed.
Section 3.8. Usury.
In no event shall the amount of interest due or payable on the Loans or
other Obligations exceed the maximum rate of interest allowed by Applicable Law
and, if any such payment is paid by the Borrower or received by any Lender, then
such excess sum shall be credited as a payment of principal, unless the Borrower
shall notify the respective Lender in writing that the Borrower elects to have
such excess sum returned to it forthwith. It is the express intent of the
parties hereto that the Borrower not pay and the Lenders not receive, directly
or indirectly, in any manner whatsoever, interest in excess of that which may be
lawfully paid by the Borrower under Applicable Law.
Section 3.9. Agreement Regarding Interest and Charges.
The parties hereto hereby agree and stipulate that the only charge
imposed upon the Borrower for the use of money in connection with this Agreement
is and shall be the interest specifically described in Section 2.2.(a)(i) and
(ii). Notwithstanding the foregoing, the parties hereto further agree and
stipulate that all agency fees, syndication fees, facility fees, letter of
credit fees, underwriting fees, default charges, late charges, funding or
"breakage" charges, increased cost charges, attorneys' fees and reimbursement
for costs and expenses paid by the Administrative Agent or any Lender to third
parties or for damages incurred by the Administrative Agent or any Lender, are
charges made to compensate the Administrative Agent or any such Lender for
underwriting or administrative services and costs or losses performed or
incurred, and to be performed or incurred, by the Administrative Agent and the
Lenders in connection with this Agreement and shall under no circumstances be
deemed to be charges for the use of money. Except as expressly agreed otherwise
in writing, all charges other than charges for the use of money shall be fully
earned and nonrefundable when due.
Section 3.10. Statements of Account.
The Administrative Agent will account to the Borrower monthly with a
statement of Loans, Letter of Credit, accrued interest and Fees, charges and
payments made pursuant to this Agreement and the other Loan Documents, and such
account rendered by the Administrative Agent shall be prima facie evidence of
the amounts and other matters set forth therein. The failure of the
Administrative Agent to deliver such a statement of accounts shall not relieve
or discharge the Borrower from any of its obligations hereunder.
Section 3.11. Defaulting Lenders.
(a) Generally. If for any reason any Lender (a "Defaulting Lender")
shall fail or refuse to perform any of its obligations under this Agreement or
any other Loan Document to which it is a party within the time period specified
for performance of such obligation or, if no time period is specified, if such
failure or refusal continues for a period of two Business Days after notice from
the Administrative Agent, then, in addition to the rights and remedies that may
be available to the Administrative Agent or the Borrower under this Agreement or
Applicable Law, such Defaulting Lender's right to participate in the
administration of the Loans, this Agreement and the other Loan Documents,
including without limitation, any right to vote in respect of, to consent to or
to direct any action or inaction of the Administrative Agent or to be taken into
account in the calculation of the Requisite Lenders, shall be suspended during
the pendency of such failure or refusal. If a Lender is a Defaulting Lender
because it has failed to make timely payment to the Administrative Agent of any
amount required to be paid to the Administrative Agent hereunder (without giving
effect to any notice or cure periods), in addition to other rights and remedies
which the Administrative Agent or the Borrower may have under the immediately
preceding provisions or otherwise, the Administrative Agent shall be entitled
(i) to collect interest from such Defaulting Lender on such delinquent payment
for the period from the date on which the payment was due until the date on
which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff
and to apply in satisfaction of the defaulted payment and any related interest,
any amounts otherwise payable to such Defaulting Lender under this Agreement or
any other Loan Document and (iii) to bring an action or suit against such
Defaulting Lender in a court of competent jurisdiction to recover the defaulted
amount and any related interest. Any amounts received by the Administrative
Agent in respect of a Defaulting Lender's Loans shall not be paid to such
Defaulting Lender and shall be held uninvested by the Administrative Agent and
either applied against the purchase price of such Loans under the following
subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender's
curing of its default.
(b) Purchase of Defaulting Lender's Commitment. Any Lender who is not a
Defaulting Lender shall have the right, but not the obligation, in its sole
discretion, to acquire all of a Defaulting Lender's Commitment. Any Lender
desiring to exercise such right shall give written notice thereof to the
Administrative Agent no sooner than 2 Business Days and not later than 10
Business Days after such Defaulting Lender became a Defaulting Lender. If more
than one Lender exercises such right, each such Lender shall have the right to
acquire an amount of such Defaulting Lender's Commitment in proportion to the
Commitments of the other Lenders exercising such right. If after such 10th
Business Day, the Lenders have not elected to purchase all of the Commitment of
such Defaulting Lender, then any Eligible Assignee may purchase such Commitment.
None of the Administrative Agent, the Arrangers or any of the Lenders shall have
any obligation whatsoever to initiate any such replacement or to assist in
finding an Eligible Assignee. Upon any such purchase, the Defaulting Lender's
interest in the Loans and its rights hereunder (but not its liability in respect
thereof or under the Loan Documents or this Agreement to the extent the same
relate to the period prior to the effective date of the purchase) shall
terminate on the date of purchase, and the Defaulting Lender shall promptly
execute all documents reasonably requested to surrender and transfer such
interest to the purchaser thereof, including an appropriate Assignment and
Acceptance Agreement and, notwithstanding Section 12.5.(d), shall pay to the
Administrative Agent an assignment fee in the amount of $5,000. The purchase
price for the Commitment of a Defaulting Lender shall be equal to the amount of
the principal balance of the Loans outstanding and owed by the Borrower to the
Defaulting Lender plus the aggregate amount of payments previously made by such
Defaulting Lender under Section 2.9.(j) which have not been repaid. Prior to
payment of such purchase price to a Defaulting Lender, the Administrative Agent
shall apply against such purchase price any amounts retained by the
Administrative Agent pursuant to the last sentence of the immediately preceding
subsection (a). The Defaulting Lender shall be entitled to receive amounts owed
to it by the Borrower under the Loan Documents which accrued prior to the date
of the default by the Defaulting Lender, to the extent the same are received by
the Administrative Agent from or on behalf of the Borrower. There shall be no
recourse against any Lender or the Administrative Agent for the payment of such
sums except to the extent of the receipt of payments from any other party or in
respect of the Loans. If, prior to a Lender's acquisition of a Defaulting
Lender's Commitment pursuant to this subsection, such Defaulting Lender shall
cure the event or condition which caused it to become a Defaulting Lender and
shall have paid all amounts owing by it hereunder as a result thereof, then such
Lender shall no longer have the right to acquire such Defaulting Lender's
Commitment.
Section 3.12. Taxes.
(a) Taxes Generally. All payments by the Borrower of principal of, and
interest on, the Loans and all other Obligations shall be made free and clear of
and without deduction for any present or future excise, stamp or other taxes,
fees, duties, levies, imposts, charges, deductions, withholdings or other
charges of any nature whatsoever imposed by any taxing authority, but excluding
(i) franchise taxes, (ii) any taxes (other than withholding taxes) that would
not be imposed but for a connection between the Administrative Agent or a Lender
and the jurisdiction imposing such taxes (other than a connection arising solely
by virtue of the activities of the Administrative Agent or such Lender pursuant
to or in respect of this Agreement or any other Loan Document), (iii) any
withholding taxes payable with respect to payments hereunder or under any other
Loan Document under Applicable Law in effect on the Agreement Date, (iv) any
taxes imposed on or measured by any Lender's assets, net income, receipts or
branch profits, (v) any taxes arising after the Agreement Date solely as a
result of or attributable to a Lender changing its designated Lending Office
after the date such Lender becomes a party hereto and (vi) any interest, fees,
additional taxes or penalties relating to any of the items described in the
preceding clauses (i) through (v) (such non-excluded items being collectively
called "Taxes"). If any withholding or deduction from any payment to be made by
the Borrower hereunder is required in respect of any Taxes pursuant to any
Applicable Law, then the Borrower will:
(i) pay directly to the relevant Governmental Authority the
full amount required to be so withheld or deducted;
(ii) promptly forward to the Administrative Agent an official
receipt or other documentation satisfactory to the Administrative Agent
evidencing such payment to such Governmental Authority; and
(iii) pay to the Administrative Agent for its account or the
account of the applicable Lender, as the case may be, such additional
amount or amounts as is necessary to ensure that the net amount
actually received by the Administrative Agent or such Lender will equal
the full amount that the Administrative Agent or such Lender would have
received had no such withholding or deduction been required.
(b) Tax Indemnification. If the Borrower fails to pay any Taxes when
due to the appropriate Governmental Authority or fails to remit to the
Administrative Agent, for its account or the account of the respective Lender,
as the case may be, the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent and the Lenders
for any incremental Taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure. For purposes
of this Section, a distribution hereunder by the Administrative Agent or any
Lender to or for the account of any Lender shall be deemed a payment by the
Borrower.
(c) Tax Forms. Prior to the date that any Lender or participant
organized under the laws of a jurisdiction outside the United States of America
becomes a party hereto, such Person shall deliver to the Borrower and the
Administrative Agent such certificates, documents or other evidence, as required
by the Internal Revenue Code or Treasury Regulations issued pursuant thereto
(including Internal Revenue Service Forms 4224 or 1001, as applicable, or
appropriate successor forms), properly completed, currently effective and duly
executed by such Lender or participant establishing that payments to it
hereunder and under the Notes are (i) not subject to United States Federal
backup withholding tax or (ii) not subject to United States Federal withholding
tax under the Code because such payment is either effectively connected with the
conduct by such Lender or participant of a trade or business in the United
States or totally exempt from United States Federal withholding tax by reason of
the application of the provisions of a treaty to which the United States is a
party or such Lender is otherwise exempt.
Article IV. Yield Protection, Etc.
Section 4.1. Additional Costs; Capital Adequacy.
(a) Additional Costs. The Borrower shall promptly (and in any event
within 30 calendar days of request) pay to the Administrative Agent for the
account of a Lender from time to time such amounts as such Lender may determine
to be necessary to compensate such Lender for any costs incurred by such Lender
that it determines are attributable to its making or maintaining of any LIBOR
Loans or its obligation to make any LIBOR Loans hereunder, any reduction in any
amount receivable by such Lender under this Agreement or any of the other Loan
Documents in respect of any of such Loans or such obligation or the maintenance
by such Lender of capital in respect of its Loans or its Commitments (such
increases in costs and reductions in amounts receivable being herein called
"Additional Costs"), resulting from any Regulatory Change that: (i) changes the
basis of taxation of any amounts payable to such Lender under this Agreement or
any of the other Loan Documents in respect of any of such Loans or its
Commitments (other than taxes imposed on or measured by the overall net income
of such Lender or of its Lending Office for any of such Loans by the
jurisdiction in which such Lender has its principal office or such Lending
Office); or (ii) imposes or modifies any reserve, special deposit or similar
requirements (other than Regulation D of the Board of Governors of the Federal
Reserve System or other reserve requirement utilized in the determination of the
Adjusted Eurodollar Rate for such Loan) relating to any extensions of credit or
other assets of, or any deposits with or other liabilities of, such Lender, or
any commitment of such Lender (including, without limitation, the Commitments of
such Lender hereunder); or (iii) has or would have the effect of reducing the
rate of return on capital of such Lender to a level below that which such Lender
could have achieved but for such Regulatory Change (taking into consideration
such Lender's policies with respect to capital adequacy).
(b) Lender's Suspension of LIBOR Loans. Without limiting the effect of
the provisions of the immediately preceding subsection (a), if by reason of any
Regulatory Change, any Lender either (i) incurs Additional Costs based on or
measured by the excess above a specified level of the amount of a category of
deposits or other liabilities of such Lender that includes deposits by reference
to which the interest rate on LIBOR Loans is determined as provided in this
Agreement or a category of extensions of credit or other assets of such Lender
that includes LIBOR Loans or (ii) becomes subject to restrictions on the amount
of such a category of liabilities or assets that it may hold, then, if such
Lender so elects by notice to the Borrower (with a copy to the Administrative
Agent), the obligation of such Lender to make or Continue, or to Convert any
other Type of Loans into, LIBOR Loans hereunder shall be suspended until such
Regulatory Change ceases to be in effect (in which case the provisions of
Section 4.5. shall apply).
(c) Additional Costs in Respect of Letters of Credit. Without limiting
the obligations of the Borrower under the preceding subsections of this Section
(but without duplication), if as a result of any Regulatory Change or any
risk-based capital guideline or other requirement heretofore or hereafter issued
by any Governmental Authority there shall be imposed, modified or deemed
applicable any tax, reserve, special deposit, capital adequacy or similar
requirement against or with respect to or measured by reference to Letters of
Credit and the result shall be to increase the cost to the Administrative Agent
of issuing (or any Lender purchasing participations in) or maintaining its
obligation hereunder to issue (or purchase participations in) any Letter of
Credit or reduce any amount receivable by the Administrative Agent or any Lender
hereunder in respect of any Letter of Credit, then, upon demand by the
Administrative Agent or such Lender, the Borrower shall pay immediately to the
Administrative Agent for its account or the account of such Lender, as
applicable, from time to time as specified by the Administrative Agent or a
Lender, such additional amounts as shall be sufficient to compensate the
Administrative Agent or such Lender for such increased costs or reductions in
amount.
(d) Notification and Determination of Additional Costs. Each of the
Administrative Agent and each Lender agrees to notify the Borrower of any event
occurring after the Agreement Date entitling the Administrative Agent or such
Lender to compensation under any of the preceding subsections of this Section as
promptly as practicable; provided, however, the failure of the Administrative
Agent or any Lender to give such notice shall not release the Borrower from any
of its obligations hereunder. The Administrative Agent and or such Lender agrees
to furnish to the Borrower a certificate setting forth the basis and amount of
each request by the Administrative Agent or such Lender for compensation under
this Section. Determinations by the Administrative Agent or any Lender of the
effect of any Regulatory Change shall be conclusive, provided that such
determinations are made on a reasonable basis and in good faith.
Section 4.2. Suspension of LIBOR Loans.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of any Adjusted Eurodollar Rate for any Interest Period:
(a) the Administrative Agent reasonably determines (which
determination shall be conclusive) that by reason of circumstances
affecting the relevant market, adequate and reasonable means do not
exist for ascertaining the Adjusted Eurodollar Rate for such Interest
Period, or
(b) the Administrative Agent reasonably determines (which
determination shall be conclusive) that the Adjusted Eurodollar Rate
will not adequately and fairly reflect the cost to the Lenders of
making or maintaining LIBOR Loans for such Interest Period;
then the Administrative Agent shall give the Borrower and each Lender prompt
notice thereof and, so long as such condition remains in effect, the Lenders
shall be under no obligation to, and shall not, make additional LIBOR Loans,
Continue LIBOR Loans or Convert Loans into LIBOR Loans and the Borrower shall,
on the last day of each current Interest Period for each outstanding LIBOR Loan,
either repay such Loan or Convert such Loan into a Base Rate Loan.
Section 4.3. Illegality.
Notwithstanding any other provision of this Agreement, if it becomes
unlawful for any Lender to honor its obligation to make or maintain LIBOR Loans
hereunder, then such Lender shall promptly notify the Borrower thereof (with a
copy to the Administrative Agent) and such Lender's obligation to make or
Continue, or to Convert Loans of any other Type into, LIBOR Loans shall be
suspended until such time as such Lender may again make and maintain LIBOR Loans
(in which case the provisions of Section 4.5. shall be applicable).
Section 4.4. Compensation.
The Borrower shall pay to the Administrative Agent for account of a
Lender, upon the request of such Lender through the Administrative Agent, such
amount or amounts as shall be sufficient (in the reasonable opinion of such
Lender) to compensate it for any loss, cost or expense that such Lender
determines is attributable to: (a) any payment or prepayment (whether mandatory
or optional) of a LIBOR Loan, or Conversion of a LIBOR Loan, made by such Lender
for any reason (including, without limitation, acceleration) on a date other
than the last day of the Interest Period for such Loan; or (b) any failure by
the Borrower for any reason (including, without limitation, the failure of any
of the applicable conditions precedent specified in Article V. to be satisfied)
to borrow a LIBOR Loan from such Lender on the date for such borrowing, or to
Convert a Base Rate Loan into a LIBOR Loan or Continue a LIBOR Loan on the
requested date of such Conversion or Continuation.
Section 4.5. Treatment of Affected Loans.
If the obligation of any Lender to make LIBOR Loans or to Continue, or
to Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to
Section 4.1.(b), Section 4.2. or Section 4.3., then such Lender's LIBOR Loans
shall be automatically Converted into Base Rate Loans on the last day(s) of the
then current Interest Period(s) for LIBOR Loans (or, in the case of a Conversion
required by Section 4.1.(b) or Section 4.3., on such earlier date as such Lender
may specify to the Borrower with a copy to the Administrative Agent) and, unless
and until such Lender gives notice as provided below that the circumstances
specified in Section 4.1., Section 4.2.
or Section 4.3. that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's LIBOR Loans have been so
Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's LIBOR Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as LIBOR Loans shall be made or Continued instead as Base
Rate Loans, and all Base Rate Loans of such Lender that would otherwise
be Converted into LIBOR Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Administrative
Agent) that the circumstances specified in Section 4.1. or 4.3. that gave rise
to the Conversion of such Lender's LIBOR Loans pursuant to this Section no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when LIBOR Loans made by other Lenders are
outstanding, then such Lender's Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s), if
any, for such outstanding LIBOR Loans, to the extent necessary so that, after
giving effect thereto, all Loans held by the Lenders holding LIBOR Loans and by
such Lender are held pro rata (as to principal amounts, Types and Interest
Periods) in accordance with their respective Commitments.
Section 4.6. Change of Lending Office.
Each Lender agrees that it will use reasonable efforts to designate an
alternate Lending Office with respect to any of its Loans affected by the
matters or circumstances described in Sections 3.12., 4.1. or 4.3. to reduce the
liability of the Borrower or avoid the results provided thereunder, so long as
such designation is not disadvantageous to such Lender as determined by such
Lender in its sole discretion, except that such Lender shall have no obligation
to designate a Lending Office located in the United States of America.
Section 4.7. Assumptions Concerning Funding of LIBOR Loans.
Calculation of all amounts payable to a Lender under this Article IV.
shall be made as though such Lender had actually funded LIBOR Loans through the
purchase of deposits in the relevant market bearing interest at the rate
applicable to such LIBOR Loans in an amount equal to the amount of the LIBOR
Loans and having a maturity comparable to the relevant Interest Period;
provided, however, that each Lender may fund each of its LIBOR Loans in any
manner it sees fit and the foregoing assumption shall be used only for
calculation of amounts payable under this Article IV.
Article V. Conditions Precedent
Section 5.1. Initial Conditions Precedent.
The obligation of the Lenders to effect or permit the occurrence of the
first Credit Event hereunder, whether as the making of a Loan or the issuance of
a Letter of Credit, is subject to the following conditions precedent:
(a) The Administrative Agent shall have received each of the following,
in form and substance satisfactory to the Administrative Agent:
(i) Counterparts of this Agreement executed by each of the
parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender
and complying with the terms of Section 2.8.(a);
(iii) The Guaranty executed by the Parent and each other
Guarantor existing as of the Effective Date;
(iv) An opinion of Lowndes, Drosdick, Doster, Xxxxxx & Xxxx,
counsel to the Loan Parties, addressed to the Administrative Agent, the
Arrangers and the Lenders, in substantially the form of Exhibit H;
(v) An opinion of Xxxxx Xxxxx Mulliss & Xxxxx, L.L.P., North
Carolina counsel to the Loan Parties, addressed to the Administrative
Agent, the Arrangers and the Lenders, regarding the enforceability of
the Agreement and the other Loan Documents under the laws of the State
of North Carolina, and such other matters of North Carolina law as the
Administrative Agent may reasonably request;
(vi) The certificate of limited partnership of the Borrower
certified as of a recent date by the Secretary of State of the State of
Delaware;
(vii) A good standing certificate with respect to the Borrower
issued as of a recent date by the Secretary of State of the State of
Delaware and certificates of qualification to transact business or
other comparable certificates issued by the Secretary of State (and any
state department of taxation, as applicable) of each state in which the
Borrower is required to be so qualified;
(viii) A certificate of incumbency signed by the Secretary or
Assistant Secretary of the general partner of the Borrower with respect
to each of the officers of the general partner of the Borrower
authorized to execute and deliver the Loan Documents to which the
Borrower is a party and the officers of the general partner of the
Borrower then authorized to deliver Notices of Borrowing, Notices of
Continuation and Notices of Conversion and to request the issuance of
Letters of Credit;
(ix) Copies (certified by the Secretary or Assistant Secretary
of the general partner of the Borrower) of the limited partnership
agreement of the Borrower and of all corporate (or comparable) action
taken by the Borrower (and any of the partners of the Borrower) to
authorize the execution, delivery and performance of the Loan Documents
to which the Borrower is a party;
(x) The articles of incorporation, articles of organization,
certificate of limited partnership or other comparable organizational
instrument (if any) of the Parent and each other Guarantor certified as
of a recent date by the Secretary of State of the State of formation of
such Guarantor;
(xi) A certificate of good standing or certificate of similar
meaning with respect to the Parent and each other Guarantor issued as
of a recent date by the Secretary of State of the State of formation of
each such Guarantor and certificates of qualification to transact
business or other comparable certificates issued by each Secretary of
State (and any state department of taxation, as applicable) of each
state in which such Guarantor is required to be so qualified;
(xii) A certificate of incumbency signed by the Secretary or
Assistant Secretary (or other individual performing similar functions)
of the Parent and each other Guarantor with respect to each of the
officers of such Guarantor authorized to execute and deliver the Loan
Documents to which such Guarantor is a party;
(xiii) Copies certified by the Secretary or Assistant
Secretary of the Parent and each other Guarantor (or other individual
performing similar functions) of (i) the by-laws of such Guarantor, if
a corporation, the operating agreement, if a limited liability company,
the partnership agreement, if a limited or general partnership, or
other comparable document in the case of any other form of legal entity
and (ii) all corporate, partnership, member or other necessary action
taken by such Guarantor to authorize the execution, delivery and
performance of the Loan Documents to which it is a party;
(xiv) A copy of (x) each of the documents, instruments and
agreements evidencing any of the Debt described on Schedule 6.1.(h);
(y) each Material Contract and (z) each of the documents, instruments
and agreements evidencing any of the transactions described on Schedule
9.13., in each case certified as true, correct and complete by the
chief executive officer or chief financial officer of the Parent;
(xv) The Fees, if any, then due under Section 3.6., and any
other Fees payable to the Administrative Agent, the Arrangers, the
Syndication Agent and the Documentation Agent;
(xvi) A Compliance Certificate calculated as of December 31,
1998;
(xvii) An Unencumbered Property Certificate calculated as of
the Effective Date;
(xviii) A written description of the Consolidation outlining
the proposed organizational structure, financial condition, executive
management, board of directors (or other comparable body), and business
plan of the Parent and its Subsidiaries, in each case, after giving
effect to the Consolidation, which must be in form and substance
satisfactory to the Lenders; and
(xix) Such other documents, agreements and instruments as the
Administrative Agent on behalf of the Lenders may reasonably request;
and
(b) In the good faith judgment of the Administrative Agent, the
Arrangers and the Syndication Agent:
(i) There shall not have occurred or become known to the
Administrative Agent, either Arranger or the Syndication Agent any
event, condition, situation or status since the date of the information
contained in the financial and business projections, budgets, pro forma
data and forecasts concerning the Parent and its Subsidiaries delivered
to the Administrative Agent, the Arrangers, the Syndication Agent and
the Lenders prior to the Agreement Date that has had or could
reasonably be expected to have a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other
arbitral, administrative or judicial proceeding shall be pending or
threatened which could reasonably be expected to (1) have a Material
Adverse Effect or (2) restrain or enjoin, impose materially burdensome
conditions on, or otherwise materially and adversely affect the ability
of the Borrower or any other Loan Party to fulfill its respective
obligations under the Loan Documents to which it is a party;
(iii) The Borrower, the Parent and the other Subsidiaries
shall have received all approvals, consents and waivers, and shall have
made or given all necessary filings and notices as shall be required to
consummate the transactions contemplated hereby without the occurrence
of any default under, conflict with or violation of (1) any Applicable
Law or (2) any agreement, document or instrument to which any Loan
Party is a party or by which any of them or their respective properties
is bound, except for such approvals, consents, waivers, filings and
notices the receipt, making or giving of which would not reasonably be
likely to (A) have a Material Adverse Effect, or (B) restrain or
enjoin, impose materially burdensome conditions on, or otherwise
materially and adversely affect the ability of the Borrower or any
other Loan Party to fulfill its respective obligations under the Loan
Documents to which it is a party; and
(iv) There shall not have occurred or exist any material
disruption of financial or capital markets that could reasonably be
expected to materially and adversely affect the transactions
contemplated by the Loan Documents.
Section 5.2. Conditions Precedent to All Loans and Letters of Credit.
The obligation of the Lenders to make any Loans and of the
Administrative Agent to issue any Letter of Credit is subject to the further
conditions precedent that: (a) no Default or Event of Default shall have
occurred and be continuing as of the date of the making of such Loan or issuance
of such Letter of Credit or would exist immediately after giving effect thereto;
(b) the representations and warranties made or deemed made by the Borrower and
each other Loan Party in the Loan Documents to which any is a party, shall be
true and correct in all material respects on and as of the date of the making of
such Loan or issuance of such Letter of Credit with the same force and effect as
if made on and as of such date except to the extent that such representations
and warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and accurate on and as of
such earlier date) and except for changes in factual circumstances specifically
and expressly permitted hereunder; and (c) the Administrative Agent shall have
received a timely Notice of Borrowing. Each Credit Event shall constitute a
certification by the Borrower to the effect set forth in the preceding sentence
(both as of the date of the giving of notice relating to such Credit Event and,
unless the Borrower otherwise notifies the Administrative Agent prior to the
date of the occurrence of such Credit Event, as of the date of the occurrence of
such Credit Event). In addition, the Borrower shall be deemed to have
represented to the Administrative Agent and the Lenders at the time such Loan is
made or such Letter of Credit is issued that all conditions to the making of
such Loan or issuance of such Letter of Credit contained in Article V. have been
satisfied.
Section 5.3. Conditions as Covenants.
If the Lenders effect or permit the occurrence of the first Credit
Event hereunder prior to the satisfaction of all conditions precedent set forth
in Sections 5.1. and 5.2., the Borrower shall nevertheless cause such condition
or conditions to be satisfied within 5 Business Days after the occurrence of
such Credit Event. Unless set forth in writing to the contrary prior to the
making of its initial Loan hereunder, the making of its initial Loan by a Lender
shall constitute a certification by such Lender to the Administrative Agent and
the other Lenders that the Borrower has satisfied the conditions precedent for
the occurrence of the initial Credit Event set forth in Sections 5.1. and 5.2.
Article VI. Representations and Warranties
Section 6.1. Representations and Warranties.
In order to induce the Administrative Agent and each Lender to enter
into this Agreement and to make Loans and permit the issuance of Letters of
Credit, the Borrower represents and warrants to the Administrative Agent and
each Lender as follows:
(a) Organization; Power; Qualification. Each of the Borrower, the
Parent and the other Subsidiaries is a corporation, partnership, limited
liability company or other legal entity, duly organized or formed, validly
existing and, if applicable, in good standing under the jurisdiction of its
incorporation or formation, has the power and authority to own or lease its
respective properties and to carry on its respective business as now being and
hereafter proposed to be conducted and is duly qualified and is in good standing
as a foreign corporation, partnership, limited liability company or other legal
entity, and authorized to do business, in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification or authorization and where the failure to be so qualified or
authorized could reasonably be expected to have, in each instance, a Material
Adverse Effect.
(b) Ownership Structure. As of the Agreement Date, Part I of Schedule
6.1.(b) correctly sets forth the corporate structure and ownership interests of
the Parent's Subsidiaries including the correct legal name of each Subsidiary,
its jurisdiction of formation, the Persons holding equity interests in such
Subsidiary, and their percentage equity or voting interest in such Subsidiary.
Except as set forth in such Schedule, as of the Agreement Date: (i) no
Subsidiary has issued to any third party any securities convertible into any
equity interest in such Subsidiary, or any options, warrants or other rights to
acquire any securities convertible into any such equity interest, and (ii) the
outstanding stock and securities of or other equity interests, as applicable, in
each such Subsidiary are owned by the Persons indicated on such Schedule, free
and clear of all Liens, warrants, options and rights of others of any kind
whatsoever. As of the Agreement Date, Part II of Schedule 6.1.(b) correctly sets
forth all Unconsolidated Affiliates and Preferred Stock Entities of the Parent,
including the correct legal name of such Person, the type of legal entity which
each such Person is, and all ownership interests in such Person held directly or
indirectly by the Parent.
(c) Authorization of Agreement, Notes, Loan Documents and Borrowings.
The Borrower has the right and power, and has taken all necessary action to
authorize it, to borrow hereunder. Each Loan Party has the right and power, and
has taken all necessary action to authorize it, to execute, deliver and perform
each of the Loan Documents to which it is a party in accordance with their
respective terms and to consummate the transactions contemplated hereby and
thereby. The Loan Documents to which the Borrower or any other Loan Party is a
party have been duly executed and delivered by the duly authorized officers of
the Borrower or such Loan Party and each is a legal, valid and binding
obligation of the Borrower or such Loan Party enforceable against such Person in
accordance with its respective terms, except as the same may be limited by
bankruptcy, insolvency, and other similar laws affecting the rights of creditors
generally and the availability of equitable remedies for the enforcement of
certain obligations contained herein or therein may be limited by equitable
principles generally.
(d) Compliance of Agreement, Notes, Loan Documents and Borrowing with
Laws, etc. The execution, delivery and performance of this Agreement, the Notes
and the other Loan Documents to which the Borrower or any other Loan Party is a
party in accordance with their respective terms and the borrowings hereunder do
not and will not, by the passage of time, the giving of notice, or both: (i)
require any Governmental Approval or violate any Applicable Law (including all
Environmental Laws) relating to the Borrower, the Parent or any other
Subsidiary; (ii) conflict with, result in a breach of or constitute a default
under the organizational documents of the Borrower, the Parent or any other
Subsidiary, or any indenture, agreement or other instrument to which the
Borrower, the Parent or any other Subsidiary is a party or by which it or any of
its respective properties may be bound; or (iii) result in or require the
creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by the Borrower, the Parent or any other Subsidiary
other than in favor of the Administrative Agent for the benefit of the Lenders.
(e) Compliance with Law; Governmental Approvals. The Borrower, the
Parent and each other Subsidiary is in compliance with each Governmental
Approval applicable to it and in compliance with all other Applicable Law
relating to the Borrower, the Parent or such other Subsidiary except for
noncompliances which, and Governmental Approvals the failure to possess which,
would not, individually or in the aggregate, cause a Default or Event of Default
or have a Material Adverse Effect.
(f) Title to Properties; Liens. As of the Agreement Date, Part I of
Schedule 6.1.(f) sets forth all of the real property owned or leased by the
Borrower, the Parent or any of the Parent's other Subsidiaries and each such
Person has good and insurable fee simple title (or leasehold title if so
designated on such Schedule) to the applicable real property. As of the
Agreement Date, there are no mortgages, deeds of trust, indentures, debt
instruments or other agreements creating a Lien against any of such Person's
right, title or interest in any such real property or any other property or
assets of the Parent, the Borrower or any other Subsidiary except for Permitted
Liens.
(g) Unencumbered Properties. Each lease included as an Eligible Lease
in calculations of the Unencumbered Asset Value satisfies all requirements
contained in the definition of "Eligible Lease." As of the Agreement Date, Part
I of Schedule 6.1.(g) is a true, correct and complete listing of all such
Eligible Leases. Each promissory note included as an Eligible Mortgage Note
Receivable in calculations of the Unencumbered Asset Value satisfies all
requirements contained in the definition of "Eligible Mortgage Note Receivable."
As of the Agreement Date, Part II of Schedule 6.1.(g) is a true, correct and
complete listing of all such Eligible Mortgage Notes Receivable.
(h) Existing Secured and Unsecured Debt. Schedule 6.1.(h) is, as of the
Agreement Date, a complete and correct listing of all Debt of each of the
Parent, the Borrower and the other Subsidiaries, including all guaranties and
all letters of credit and acceptance facilities extended to any such Person, and
indicating whether such Debt is Secured Debt or Unsecured Debt. As of the
Agreement Date, no default or event of default, or event or condition which with
the giving of notice, the lapse of time, or both, would constitute such a
default or event of default, exists with respect to any such Debt.
(i) Material Contracts. Schedule 6.1.(i) is a true, correct and
complete listing of all Material Contracts as of the Agreement Date. No default
or event of default, or event or condition which with the giving of notice, the
lapse of time, a determination of materiality, the satisfaction of any other
condition or any combination of the foregoing, would constitute such a default
or event of default, exists with respect to any such Material Contract.
(j) Litigation. Except as set forth on Schedule 6.1.(j), there are no
actions, suits or proceedings pending (nor, to the knowledge of the Parent, are
there any actions, suits or proceedings threatened, nor is there any basis
therefor) against or in any other way relating adversely to or affecting the
Borrower, the Parent or any other Subsidiary or any of its respective property
in any court or before any arbitrator of any kind or before or by any other
Governmental Authority which could reasonably be expected to have a Material
Adverse Effect. There are no strikes, slow downs, work stoppages or walkouts or
other labor disputes in progress or threatened relating to the Borrower, the
Parent or any other Subsidiary which could reasonably be expected to have a
Material Adverse Effect.
(k) Taxes. All federal, state and other tax returns of the Parent and
any Subsidiary required by Applicable Law to be filed have been duly filed
within all applicable deadlines (including any permitted extensions thereof),
and all federal, state and other taxes, assessments and other governmental
charges or levies upon the Parent or any Subsidiary and its respective
properties, income, profits and assets which are due and payable have been paid,
except any such nonpayment which is at the time permitted under Section 7.6. As
of the Agreement Date, none of the United States income tax returns of the
Borrower or any Subsidiary is under audit. All charges, accruals and reserves on
the books of the Borrower and each of its Subsidiaries in respect of any taxes
or other governmental charges are in accordance with GAAP.
(l) Financial Statements. The Borrower has furnished to each Lender
copies of (i) the audited consolidated balance sheet of the Parent for the
fiscal year ending December 31, 1997, and the related consolidated statements of
operations, changes in stockholder's equity and cash flows for the fiscal year
ending on such date, with the opinion thereon of PriceWaterhouseCoopers LLP and
(ii) the unaudited consolidated balance sheet of the Parent for the fiscal
quarter ending September 30, 1998, and the related consolidated statements of
operations, changes in stockholder's equity and cash flows for the three fiscal
quarter period ending on such date. Such balance sheets and statements
(including in each case related schedules and notes) present fairly, in all
material respects, in accordance with GAAP consistently applied throughout the
periods involved, the consolidated financial position of the Parent and its
consolidated Subsidiaries, as at their respective dates and, if applicable, the
results of operations and the cash flow for such periods (subject, as to interim
statements, to changes resulting from normal year-end audit adjustments).
Neither the Parent nor any of its Subsidiaries has on the Agreement Date any
material contingent liabilities, liabilities, liabilities for taxes, unusual or
long-term commitments or unrealized or forward anticipated losses from any
unfavorable commitments, except as referred to or reflected or provided for in
said financial statements.
(m) No Material Adverse Change. Since September 30, 1998, there has
been no material adverse change in the business, properties, condition
(financial or otherwise), results of operations or performance of the Parent and
its Subsidiaries taken as a whole. Each of the Borrower, the Parent and its
other Subsidiaries is Solvent.
(n) ERISA. Each member of the ERISA Group is in compliance with its
obligations under the minimum funding standards of ERISA and the Internal
Revenue Code with respect to each Plan and is in compliance with the presently
applicable provisions of ERISA and the Internal Revenue Code with respect to
each Plan, except in each case for noncompliances which could not reasonably be
expected to have a Material Adverse Effect. As of the Agreement Date, no member
of the ERISA Group has (i) sought a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code in respect of any Plan, (ii) failed to
make any contribution or payment to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement, or made any amendment to any Plan or Benefit
Arrangement, which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the Internal Revenue Code
or (iii) incurred any liability under Title IV of ERISA other than a liability
to the PBGC for premiums under Section 4007 of ERISA.
(o) Absence of Defaults. None of the Borrower, the Parent nor any other
Subsidiary is in default under its articles or certificate of incorporation,
bylaws, partnership agreement or other similar organizational documents, and no
event has occurred, which has not been remedied, cured or waived: (i) which
constitutes a Default or an Event of Default; or (ii) which constitutes, or
which with the passage of time, the giving of notice, a determination of
materiality, the satisfaction of any condition, or any combination of the
foregoing, would constitute, a default or event of default by the Borrower, the
Parent or any other Subsidiary under any agreement (excluding the Loan
Documents) or judgment, decree or order to which the Borrower, the Parent or any
other Subsidiary is a party or by which the Borrower, the Parent or any other
Subsidiary or any of their respective properties may be bound where such default
or event of default could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(p) Environmental Laws. In the ordinary course of business, each of the
Borrower, the Parent and its other Subsidiaries conducts reviews of the effect
of Environmental Laws on its respective business, operations and properties,
including without limitation, its respective Real Property Assets, in the course
of which such Person identifies and evaluates associated liabilities and costs
(including, without limitation, determining whether any capital or operating
expenditures are required for clean-up or closure of properties presently or
previously owned, determining whether any capital or operating expenditures are
required to achieve or maintain compliance with Environmental Laws or required
as a condition of any Governmental Approval, any contract, or any related
constraints on operating activities, determining whether any costs or
liabilities exist in connection with off-site disposal of wastes or Hazardous
Materials, and determining whether any actual or potential liabilities to third
parties, including employees, and any related costs and expenses exist). The
Borrower, the Parent and its other Subsidiaries each has obtained all
Governmental Approvals which are required under Environmental Laws and is in
compliance with all terms and conditions of such Governmental Approvals which
the failure to obtain or to comply with could reasonably be expected to have a
Material Adverse Effect. Each of the Borrower, the Parent and its other
Subsidiaries is also in compliance with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules, and
timetables contained in the Environmental Laws the failure to comply with which
could reasonably be expected to have a Material Adverse Effect. Except for any
of the following matters that could not be reasonably expected to have a
Material Adverse Effect, the Parent is not aware of, and has not received notice
of, any past, present, or future events, conditions, circumstances, activities,
practices, incidents, actions, or plans which, with respect to the Borrower, the
Parent or its other Subsidiaries, may interfere with or prevent compliance or
continued compliance with Environmental Laws, or may give rise to any common-law
or legal liability, or otherwise form the basis of any claim, action, demand,
suit, proceeding, hearing, study, or investigation, based on or related to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling or the emission, discharge, release or threatened release
into the environment, of any pollutant, contaminant, chemical, or industrial,
toxic, or other Hazardous Material.
(q) Investment Company; Public Utility Holding Company. None of the
Borrower, the Parent or any other Subsidiary is (i) an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, (ii) a "holding company" or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", within the meaning
of the Public Utility Holding Company Act of 1935, as amended, or (iii) subject
to any other Applicable Law which purports to regulate or restrict its ability
to borrow money or to consummate the transactions contemplated by this Agreement
or to perform its obligations under any Loan Document to which it is a party.
(r) Margin Stock. None of the Borrower, the Parent or any other
Subsidiary is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose, whether immediate, incidental or
ultimate, of buying or carrying "margin stock" within the meaning of Regulation
U of the Board of Governors of the Federal Reserve System.
(s) Affiliate Transactions; Restrictions on Dividend, Etc. Except as
permitted by Section 9.13., none of the Borrower, the Parent or any other
Subsidiary is a party to or bound by any agreement or arrangement (whether oral
or written) to which any Affiliate of the Borrower, the Parent or any other
Subsidiary is a party. None of the Parent, the Borrower or any other Subsidiary
is a party to any agreement or arrangement which contains or imposes
encumbrances or restrictions prohibited by Section 9.6.(c).
(t) Intellectual Property. The Borrower, the Parent and each other
Subsidiary owns or has the right to use, under valid license agreements or
otherwise, all material patents, licenses, franchises, trademarks, trademark
rights, trade names, trade name rights, trade secrets and copyrights
(collectively, "Intellectual Property") necessary to the conduct of its
businesses as now conducted and as contemplated by the Loan Documents, without
known conflict with any patent, license, franchise, trademark, trade secret,
trade name, copyright, or other proprietary right of any other Person. Each such
Person has taken all commercially reasonable measures to ensure that all such
Intellectual Property is fully protected and/or duly and properly registered,
filed or issued in the appropriate office and jurisdictions for such
registrations, filing or issuances. No claim has been asserted by any Person
with respect to the use of any Intellectual Property, or challenging or
questioning the validity or effectiveness of any Intellectual Property, which
could reasonably be expected to have a Material Adverse Effect. The use of such
Intellectual Property by the Borrower, the Parent and its other Subsidiaries,
does not infringe on the rights of any Person, subject to such claims and
infringements as do not, in the aggregate, give rise to any liabilities on the
part of the Borrower, the Parent and its other Subsidiaries that could
reasonably be expected to have a Material Adverse Effect.
(u) REIT Status. The Parent qualifies as a REIT.
(v) Not Plan Assets. None of the assets of the Borrower, the Parent or
any other Subsidiary constitute "plan assets", within the meaning of ERISA, the
Internal Revenue Code and the respective regulations promulgated thereunder. The
execution, delivery and performance of this Agreement, and the borrowing and
repayment of amounts hereunder, do not and will not constitute "prohibited
transactions" under ERISA or the Internal Revenue Code.
(w) Business. As of the Agreement Date, the Parent, the Borrower and
the other Subsidiaries are engaged principally in the business of (i) owning
real estate assets which are net leased to restaurant operators, (ii)
originating mortgage loans, (iii) securitizing mortgage loans, leases and
certain other assets and (iv) ancillary businesses that are incidental to the
foregoing.
(x) Year 2000. The Parent has conducted a comprehensive review and
assessment of the systems and equipment of the Parent, the Borrower and the
Parent's other Subsidiaries, and made inquiry of the material suppliers, vendors
and customers of the Parent, the Borrower and the Parent's other Subsidiaries,
regarding the "Year 2000 Problem" (that is, the inability of computers, as well
as embedded microchips in non-computing devices, to perform properly, including
performance of date-sensitive functions with respect to certain dates prior to
and after December 31, 1999). Based on such review and assessment, the Parent
reasonably believes that all computer hardware and software applications
(including those of its suppliers, vendors and customers) that are material to
its or any of its Subsidiaries' business and operations are reasonably expected
on a timely basis to be able to perform properly date-sensitive functions for
all dates before and after January 1, 2000 (that is, be "Year 2000 Compliant"),
except to the extent that a failure to do so could not reasonably be expected to
have a Material Adverse Effect. The Parent has developed feasible contingency
plans adequately to ensure uninterrupted and unimpaired business operation in
the event of failure of its own or a third party's systems or equipment due to
the Year 2000 problem, including those of material vendors, customers and
suppliers, as well as a general failure of or interruption in its communications
and delivery infrastructure.
(y) Accuracy and Completeness of Information. All written information,
reports and other papers and data (excluding financial projections) furnished to
the Administrative Agent, either Arranger, the Syndication Agent or any Lender
by, on behalf of, or at the direction of, the Borrower, the Parent or any other
Subsidiary were, at the time the same were so furnished, complete and correct in
all material respects, or, in the case of financial statements, present fairly,
in all material respects and in accordance with GAAP consistently applied
throughout the periods involved, the financial position of the Persons involved
as at the date thereof and the results of operations for such periods. All
financial projections prepared by or on behalf of the Parent, the Borrower or
any other Subsidiary that have been or may hereafter be made available to the
Administrative Agent or any Lender were or will be prepared in good faith based
on reasonable assumptions. No fact is known to the Parent which has had, or may
in the future have (so far as the Parent can reasonably foresee), a Material
Adverse Effect which has not been set forth in the financial statements referred
to in Section 6.1.(l) or in such information, reports or other papers or data or
otherwise disclosed in writing to the Administrative Agent and the Lenders prior
to the Effective Date. No document furnished or written statement made to the
Administrative Agent, either Arranger, the Syndication Agent or any Lender in
connection with the negotiation, preparation of execution of this Agreement or
any of the other Loan Documents, except as superceded by any subsequent document
or written statement delivered prior to the Effective Date, in light of the
circumstances under which furnished or made, contains or will contain any untrue
statement of a fact material to the creditworthiness of the Borrower, the Parent
or any other Subsidiary or omits or will omit to state a fact necessary in order
to make the statements contained therein not materially misleading.
Section 6.2. Survival of Representations and Warranties, Etc.
All statements contained in any certificate, financial statement or
other instrument delivered by or on behalf of the Borrower, the Parent or any
other Subsidiary to the Administrative Agent, either Arranger, the Syndication
Agent or any Lender pursuant to or in connection with this Agreement or any of
the other Loan Documents (including, but not limited to, any such statement made
in or in connection with any amendment thereto or any statement contained in any
certificate, financial statement or other instrument delivered by or on behalf
of the Borrower prior to the Agreement Date and delivered to the Administrative
Agent, either Arranger, the Syndication Agent or any Lender in connection with
closing the transactions contemplated hereby) shall constitute representations
and warranties made by the Borrower under this Agreement. All representations
and warranties made under this Agreement and the other Loan Documents shall be
deemed to be made at and as of the Agreement Date, the Effective Date and at and
as of the date of the occurrence of any Credit Event, except to the extent that
such representations and warranties expressly relate solely to an earlier date
(in which case such representations and warranties shall have been true and
accurate on and as of such earlier date) and except for changes in factual
circumstances specifically permitted hereunder. All such representations and
warranties shall survive the effectiveness of this Agreement, the execution and
delivery of the Loan Documents and the making of the Loans and issuance of
Letters of Credit.
Article VII. Affirmative Covenants
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 12.6., all of the Lenders) shall
otherwise consent in the manner provided for in Section 12.6., the Borrower and
the Parent shall, as applicable, comply with the following covenants:
Section 7.1. Preservation of Existence and Similar Matters.
Except as otherwise permitted under Section 9.9.(a), the Borrower and
the Parent shall preserve and maintain, and cause each other Subsidiary to
preserve and maintain, its respective existence, rights, franchises, licenses
and privileges in the jurisdiction of its incorporation or formation and qualify
and remain qualified and authorized to do business in each jurisdiction in which
the character of its properties or the nature of its business requires such
qualification and authorization and where the failure to be so authorized and
qualified could reasonably be expected to have a Material Adverse Effect.
Section 7.2. Compliance with Applicable Law and Material Contracts.
The Borrower and the Parent shall comply, and cause each other
Subsidiary to comply, with (a) all Applicable Law, including the obtaining of
all Governmental Approvals, the failure with which to comply or obtain could
reasonably be expected to have a Material Adverse Effect, and (b) all terms and
conditions of all Material Contracts to which it is a party.
Section 7.3. Maintenance of Property.
In addition to the requirements of any of the other Loan Documents, the
Borrower and the Parent shall (a) protect and preserve, and cause each other
Subsidiary, or with respect to any material Real Property Asset leased by the
Borrower to a lessee, use its best efforts to cause such lessee, to protect and
preserve, all of its material properties (or any such Real Property Asset in the
case of any such lessee), and maintain, or use its best efforts to cause such
lessee to maintain, in good repair, working order and condition all tangible
properties necessary to their respective operations (or any such Real Property
Asset in the case of any such lessee), ordinary wear and tear excepted, and (b)
from time to time make, or use its best efforts to cause to be made, all needed
and appropriate repairs, renewals, replacements and additions to such properties
(or any such Real Property Asset in the case of any such lessee), so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times.
Section 7.4. Conduct of Business.
The Parent and the Borrower shall at all times carry on, and cause its
other Subsidiaries to carry on, its respective businesses as described in
Section 6.1.(w) and not enter, and prohibit the other Subsidiaries from
entering, into any field of business not otherwise described in such Section.
Section 7.5. Insurance.
In addition to the requirements of any of the other Loan Documents, the
Parent and the Borrower shall maintain, and cause each other Subsidiary, or with
respect to any Real Property Asset leased by the Borrower to a lessee, use its
best efforts to cause such lessee, to maintain, insurance with financially sound
and reputable insurance companies against such risks and in such amounts as is
customarily maintained by Persons engaged in similar businesses or as may be
required by Applicable Law, and the Borrower will from time to time deliver to
the Administrative Agent upon its request, or to any Lender upon request through
the Administrative Agent, a detailed list, together with copies of all policies
of the insurance then in effect, stating the names of the insurance companies,
the amounts and rates of the insurance, the dates of the expiration thereof and
the properties and risks covered thereby. Not in limitation of the foregoing,
the Parent and the Borrower shall, and shall cause its other Subsidiaries to, or
with respect to any Real Property Asset leased by the Borrower to a lessee, use
its best efforts to cause such lessee to, maintain builder's risk insurance
during any period of construction and, upon completion, "all risk" insurance in
an amount equal to (A) 100% of the replacement cost of the improvements, if any,
on at least 85% (determined by number of parcels) of its Real Property Assets
and (B) 90% of such replacement cost on no more than 15% (determined by number
of parcels) of its Real Property Assets, in all cases with insurers having an
A.M. Best policyholder's rating of not less than A- and financial size category
of not less than X, which insurance shall in any event not provide for
materially less coverage than the insurance in effect on the Agreement Date. The
Borrower will deliver to the Lenders (i) upon request of any Lender through the
Administrative Agent from time to time full information as to the insurance
carried, (ii) within 10 days of receipt of notice from any insurer a copy of any
notice of cancellation or material change in coverage from that existing on the
Agreement Date and (iii) promptly upon receipt, notice of any cancellation or
nonrenewal of coverage by the Parent, the Borrower or any other Subsidiary.
Section 7.6. Payment of Taxes and Claims.
The Parent and the Borrower shall pay or discharge, and cause each
other Subsidiary, or with respect to any Real Property Asset leased by the
Borrower to a lessee, use its best efforts to cause such lessee, to pay or
discharge, when due (a) all taxes, assessments and governmental charges or
levies imposed upon it or upon its respective income or profits or upon any
properties belonging to it (or in the case of any such lessee, such lessee or
such Real Property Asset), and (b) all lawful claims of materialmen, mechanics,
carriers, warehousemen and landlords for labor, materials, supplies and rentals
which, if unpaid, might become a Lien on any properties of such Person (or in
the case of any such lessee, such lessee or such Real Property Asset); provided,
however, that this Section shall not require the payment or discharge of any
such tax, assessment, charge, levy or claim which is being contested in good
faith by appropriate proceedings and for which adequate reserves have been
established on the books of the Parent, the Borrower or such other Subsidiary,
as applicable, in accordance with GAAP.
Section 7.7. Visits and Inspections.
The Parent and the Borrower shall permit, and cause each other
Subsidiary to permit, representatives or agents of any Lender or the
Administrative Agent, from time to time after reasonable prior notice if no
Event of Default shall be in continuance, as often as may be reasonably
requested, but only during normal business hours, and at the expense of such
Lender or the Administrative Agent (unless an Event of Default shall be
continuing in which case the exercise by the Administrative Agent of its rights
under this Section shall be at the expense of the Borrower), as the case may be,
to: (a) visit and inspect all properties of the Parent, the Borrower or such
other Subsidiary to the extent any such right to visit or inspect is within the
control of such Person; (b) inspect and make extracts from their respective
books and records, including but not limited to management letters prepared by
independent accountants; and (c) discuss with its principal officers, and its
independent accountants, its business, properties, condition (financial or
otherwise), results of operations and performance. If requested by the
Administrative Agent, the Borrower or the Parent, as appropriate, shall execute
an authorization letter addressed to its accountants authorizing the
Administrative Agent or any Lender to discuss the financial affairs of the
Parent, the Borrower and any other Subsidiary with its accountants.
Section 7.8. Use of Proceeds and Letters of Credit.
The Borrower shall use the proceeds of all Revolving Loans and use
Letters of Credit only for general corporate purposes, including without
limitation, to finance (a) the acquisition, renovation and development of Real
Property Assets of the Borrower; (b) the repayment of indebtedness for money
borrowed of the Borrower; (c) financing the origination of loans secured by
Mortgages and (d) for general working capital purposes of the Borrower. In
addition, the Borrower may use proceeds of Revolving Loans to finance
intercompany loans to Guarantors subject to the limitations of Section 9.2.(d)
so long as such Guarantors use the proceeds of such loans for general corporate
purposes. The Borrower shall not, directly or indirectly, use any part of such
proceeds or any Letter of Credit to purchase or carry, or to reduce or retire or
refinance any credit incurred to purchase or carry, any margin stock (within the
meaning of Regulation U of the Board of Governors of the Federal Reserve System)
or to extend credit to others for the purpose of purchasing or carrying any such
margin stock.
Section 7.9. Environmental Matters.
The Parent and the Borrower shall comply, and cause all of its other
Subsidiaries to comply, with all Environmental Laws the failure with which to
comply could reasonably be expected to have a Material Adverse Effect. If the
Parent, the Borrower or any other Subsidiary shall (a) receive notice that any
violation of any Environmental Law may have been committed or is about to be
committed by such Person, (b) receive notice that any administrative or judicial
complaint or order has been filed or is about to be filed against the Parent,
the Borrower or any other Subsidiary alleging violations of any Environmental
Law or requiring any such Person to take any action in connection with the
release of Hazardous Materials or (c) receive any notice from a Governmental
Authority or private party alleging that any such Person may be liable or
responsible for costs associated with a response to or cleanup of a release of a
Hazardous Materials or any damages caused thereby, and such notices or events to
which they relate, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, the Borrower shall provide the
Administrative Agent with a copy of such notice within 10 days after the receipt
thereof by the Parent, the Borrower or any of the other Subsidiaries. The Parent
and the Borrower shall, and shall cause its other Subsidiaries to, take promptly
all actions necessary to prevent the imposition of any Liens on any of their
respective properties arising out of or related to any Environmental Laws.
Section 7.10. Books and Records.
The Parent and the Borrower shall maintain, and cause each of the other
Subsidiaries to maintain, books and records pertaining to its business
operations in such detail, form and scope as is consistent with good business
practice in accordance with GAAP.
Section 7.11. REIT Status.
The Parent shall at all times maintain its status as a REIT.
Section 7.12. ERISA Exemptions.
The Parent and the Borrower shall not, and shall not permit any other
Subsidiary to, permit any of its respective assets to become or be deemed to be
"plan assets" within the meaning of ERISA, the Internal Revenue Code and the
respective regulations promulgated thereunder.
Section 7.13. Exchange Listing.
At all times on and after March 31, 2000, the Parent shall maintain at
least one class of common shares of the Parent having trading privileges on the
New York Stock Exchange or the American Stock Exchange or which is subject to
price quotations on The NASDAQ Stock Market's National Market System.
Section 7.14. Further Assurances.
The Parent and the Borrower shall, and shall cause each of its other
Subsidiaries to, at their sole cost and expense, upon the request of the
Administrative Agent, duly execute and deliver or cause to be duly executed and
delivered, to the Administrative Agent and the Lenders such further instruments,
documents and certificates, and do and cause to be done such further acts that
may be necessary or advisable in the reasonable opinion of the Administrative
Agent to carry out more effectively the provisions and purposes of this
Agreement and the other Loan Documents.
Section 7.15. New Subsidiaries; Joint Ventures.
Upon the acquisition, incorporation or other creation of any Subsidiary
(other than a Special Purpose Entity) after the Effective Date, the Parent shall
cause such Subsidiary to execute and deliver to the Administrative Agent within
10 Business Days of such acquisition, incorporation or creation, an Accession
Agreement to the Guaranty executed and delivered by such Subsidiary, together
with each of the items that would have been required to be delivered with
respect to such Subsidiary under subsections (iv), (v), and (x) through (xiii)
of Section 5.1. if such Subsidiary were a Guarantor on the Effective Date.
Within 10 Business Days of the date on which a Joint Venture shall own more than
a single parcel of real property (and the improvements thereon), the Parent
shall cause such Joint Venture to execute and deliver to the Administrative
Agent an Accession Agreement to the Guaranty and the other items required to be
delivered by a Subsidiary under the preceding sentence.
Article VIII. Information
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 12.6., all of the Lenders) shall
otherwise consent in the manner set forth in Section 12.6., the Borrower or the
Parent, as applicable, shall furnish to each Lender (or to the Administrative
Agent if so provided below) at its Lending Office:
Section 8.1. Quarterly Financial Statements.
As soon as available and in any event within 45 days after the close of
each of the first, second and third fiscal quarters of the Parent, the
consolidated balance sheet of the Parent and its Subsidiaries as at the end of
such period and the related consolidated statements of income, retained earnings
and cash flows of the Parent and its Subsidiaries for such period, setting forth
in each case in comparative form the figures for the corresponding periods of
the previous fiscal year, all of which shall be certified by the chief financial
officer of the Parent, in his or her opinion, to present fairly, in all material
respects and in accordance with GAAP, the consolidated financial position of the
Parent and its Subsidiaries as at the date thereof and the results of operations
for such period (subject to normal year-end audit adjustments).
Section 8.2. Year-End Statements.
As soon as available and in any event within 90 days after the end of
each fiscal year of the Parent, the consolidated balance sheet of the Parent and
its Subsidiaries as at the end of such fiscal year and the related consolidated
statements of income, retained earnings and cash flows of the Parent and its
Subsidiaries for such fiscal year, setting forth in comparative form the figures
as at the end of and for the previous fiscal year, all of which shall be
certified by (a) the chief financial officer of the Parent, in his or her
opinion, to present fairly, in all material respects and in accordance with
GAAP, the financial position of the Parent and its Subsidiaries as at the date
thereof and the result of operations for such period and (b) the Parent's
current independent certified public accountants or other independent certified
public accountants of recognized national standing reasonably acceptable to the
Administrative Agent, whose certificate shall be unqualified and in scope and
substance reasonably satisfactory to the Requisite Lenders and who shall have
authorized the Parent to deliver such financial statements and certification
thereof to the Lenders pursuant to this Agreement.
Section 8.3. Compliance Certificate.
At the time the quarterly or annual financial statements are furnished
pursuant to Sections 8.1. and Section 8.2., and within 5 Business Days of the
Administrative Agent's request with respect to any other fiscal period, a
certificate substantially in the form of Exhibit I (a "Compliance Certificate")
executed by the chief financial officer of the Parent: (a) setting forth in
reasonable detail as at the end of such quarterly accounting period, fiscal
year, or other fiscal period, as the case may be, the calculations required to
establish whether or not the Parent and the Borrower were in compliance with the
covenants contained in Sections 9.1., 9.4., 9.5.(f) and (g), 9.7., 9.8. and
9.10. and (b) stating that, to the best of his or her knowledge, information and
belief, no Default or Event of Default exists, or, if such is not the case,
specifying such Default or Event of Default and its nature, when it occurred,
whether it is continuing and the steps being taken by the Parent with respect to
such event, condition or failure.
Section 8.4. Other Information.
(a) within 45 days after the end of each fiscal quarter of the Parent,
an Unencumbered Property Certificate setting forth the information to be
contained therein as of the last day of such fiscal quarter;
(b) within 45 days after the end of each fiscal quarter of the Parent,
calculations of the Parent's taxable income, if any, for such quarter;
(c) promptly upon receipt thereof, copies of all reports, if any,
submitted to the Parent or the Borrower or its Board of Directors by its
independent public accountants including, without limitation, any management
report;
(d) within 5 Business Days of the filing thereof, copies of all
registration statements (excluding the exhibits thereto and any registration
statements on Form S-8 or its equivalent), reports on Forms 10-K, 10-Q and 8-K
(or their equivalents) and all other periodic reports which the Parent, the
Borrower or any other Subsidiary shall file with the Securities and Exchange
Commission (or any Governmental Authority substituted therefor) or any national
securities exchange;
(e) promptly upon the mailing thereof to the shareholders of the Parent
generally, copies of all financial statements, reports and proxy statements so
mailed;
(f) promptly upon the issuance thereof copies of all press releases
issued by the Parent or any Subsidiary;
(g) promptly upon the request of the Administrative Agent, and in any
event within 15 Business Days of such request, a property operating statement
for each Real Property Asset for the requested fiscal period, including, if
requested, budgeted figures for upcoming fiscal periods;
(h) to the extent the Parent, the Borrower or any other Subsidiary is
aware of the same, prompt notice of the commencement of any proceeding or
investigation by or before any Governmental Authority and any action or
proceeding in any court or other tribunal or before any arbitrator against or in
any other way relating adversely to, or adversely affecting, the Parent, the
Borrower or any other Subsidiary or any of their respective properties, assets
or businesses which, if determined or resolved adversely to such Person, could
reasonably be expected to have a Material Adverse Effect, and prompt notice of
the receipt of notice that any United States income tax returns of the Parent,
the Borrower or any other Subsidiary are being audited;
(i) a copy of any amendment to the articles or certificate of
incorporation, bylaws, partnership agreement or other similar organizational
documents of the Parent, the Borrower or any Subsidiary within 10 Business Days
of the effectiveness thereof;
(j) prompt notice of (i) any change in the senior management of the
Parent, the Borrower or any other Subsidiary and (ii) any change in the
business, properties, condition (financial or otherwise), results of operations
or performance of the Parent, the Borrower or any other Subsidiary which has had
or could reasonably be expected to have Material Adverse Effect;
(k) prompt notice of the occurrence of (i) any Default or Event of
Default; (ii) any event which constitutes or which with the passage of time, the
giving of notice, or otherwise, would constitute a default or event of default
by the Parent, the Borrower or any other Subsidiary under any Material Contract
to which any such Person is a party or by which any such Person or any of its
respective properties may be bound; or (iii) any default or event of default, or
event or condition which with the giving of notice, the lapse of time, or both,
would constitute such a default or event of default, with respect to any Debt of
the Parent, the Borrower or any other Subsidiary having an aggregate outstanding
principal amount of $1,000,000 or more;
(l) prompt notice of any order, judgment or decree in excess of
$500,000 having been entered against the Parent, the Borrower or any other
Subsidiary or any of their respective properties or assets;
(m) prompt notice of the acquisition, incorporation or other creation
of any Subsidiary, the purpose for such Subsidiary, and the nature of the assets
and liabilities thereof;
(n) the proposed sale, transfer or other disposition of any material
assets of the Parent, the Borrower or any other Subsidiary to any other
Subsidiary, Affiliate or other Person;
(o) promptly upon entering into any Material Contract after the
Agreement Date, a copy to the Administrative Agent of such Material Contract;
(p) promptly upon request by the Administrative Agent, evidence
reasonably satisfactory to the Administrative Agent that the Parent continues to
qualify as a REIT;
(q) if and when any member of the ERISA Group (i) gives or is required
to give notice to the PBGC of any "reportable event" (as defined in Section 4043
of ERISA) with respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security, a
certificate of the controller of the Parent setting forth details as to such
occurrence and action, if any, which the Parent or applicable member of the
ERISA Group is required or proposes to take;
(r) not later than 90 days prior to the last day of each fiscal year of
the Parent, pro forma projected consolidated financial statements (including
statements of cash flow) for the Parent and its Subsidiaries reflecting the
forecasted financial condition and results of operations of the Parent and its
Subsidiaries on a quarterly basis for the next succeeding year and on an annual
basis for the two succeeding fiscal years thereafter, accompanied by
calculations establishing whether or not the Parent would be in compliance on a
pro forma basis with the covenants contained in Section 9.1., in each case in
form and detail reasonably acceptable to the Requisite Lenders;
(s) not later than 30 days following the adoption or approval thereof,
any business plan and financial projections adopted by the Parent or the
Borrower for itself or any of its respective Subsidiaries;
(t) notice to the Administrative Agent of any change in any Credit
Rating assigned by a Ratings Agency promptly upon, and in any event within 2
Business Days of, the effectiveness of such change;
(u) prompt notice to the Administrative Agent in the event the Parent
or the Borrower discovers or determines that any computer application (including
those of its suppliers, vendors and customers) that is material to its or any of
its Subsidiaries' business and operations will not be Year 2000 Compliant by
June 30, 1999;
(v) prompt notice of any material modifications to the terms of the
Consolidation as disclosed to the Lenders pursuant to the description delivered
under Section 5.1., which modifications must be satisfactory to the Requisite
Lenders and the Arrangers;
(w) from time to time and promptly upon each request in connection with
the Arrangers' consideration of the terms of a transaction proposed as a
Permitted Securitization or Permitted Warehouse Facility which require the
Arrangers' prior written approval, such data, financial information, agreements,
instruments, documents, including without limitation, the documents evidencing
such transaction, and other materials and information as either Arranger may
request in their discretion; and
(x) from time to time and promptly upon each request, such data,
certificates, reports, statements, documents or further information regarding
the business, properties, condition (financial or otherwise), results of
operations or performance of the Parent, the Borrower, any other Subsidiary, any
Special Purpose Entity or any Unconsolidated Affiliate as the Administrative
Agent (or any Lender through the Administrative Agent) may reasonably request.
Article IX. Negative Covenants
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 12.6., all of the Lenders) shall
otherwise consent in the manner set forth in Section 12.6., the Parent and the
Borrower shall comply with the following covenants:
Section 9.1. Financial Covenants.
The Parent and the Borrower shall not permit at any time:
(a) Maximum Leverage. The ratio of (i) Debt of the Parent and its
Subsidiaries determined on a consolidated basis to (ii) Adjusted Net
Capitalization, to be greater than 0.450 to 1.000.
(b) Minimum Interest Coverage Ratio. The ratio of (i) Adjusted EBITDA
for the period of four consecutive fiscal quarters most recently ending to (ii)
Interest Expense for such period, to be less than 2.750 to 1.000.
(c) Minimum Fixed Charge Coverage Ratio. The ratio of (i) Adjusted
EBITDA for the period of four consecutive fiscal quarters most recently ending
to (ii) Fixed Charges for such period, to be less than 2.50 to 1.00.
(d) Maximum Unencumbered Asset Ratio. The ratio of (i) Unsecured Debt
to (ii) the Unencumbered Asset Value, to be greater than 0.40 to 1.00.
(e) Minimum Unencumbered Interest Coverage. The ratio of (i) the sum of
(A) Eligible Net Lease Income for the period of four consecutive fiscal quarters
most recently ending plus (B) Eligible Mortgage Income for such period, to (ii)
Interest Expense in respect of Unsecured Debt for such period, to be less than
2.750 to 1.000.
(f) Minimum Tangible Net Worth. Tangible Net Worth to be less than (i)
$600,000,000 plus (ii) 85% of the Net Proceeds of all Equity Issuances effected
by the Borrower or any of its Subsidiaries at any time after December 31, 1998.
(g) Maximum Secured Debt. The ratio of (i) the aggregate amount of
Secured Debt of the Parent and its Subsidiaries determined on a consolidated
basis to (ii) Adjusted Net Capitalization, to be greater than or equal to 0.250
to 1.000.
(h) Concept and Tenant Concentration. More than 10% of the total
revenues of the Borrower and its Subsidiaries determined on a consolidated basis
for any fiscal quarter to be attributable to (i) any one Concept or (ii) any one
tenant (or group of affiliated tenants). Notwithstanding the foregoing, prior to
the first to occur of (x) the consummation of the Consolidation or (y) December
31, 1999, the percentage of such total revenues attributable to the Concepts
"Golden Corral", "S&A Properties" and "Foodmaker" and other Investment Grade
Franchisors and Tenants may exceed 10% but cannot exceed 15% for any fiscal
quarter.
Section 9.2. Debt.
The Parent and the Borrower shall not create, incur, assume, or permit
or suffer to exist, or permit any other Subsidiary to create, incur, assume, or
permit or suffer to exist, any Debt other than the following:
(a) the Obligations;
(b) Debt incurred under Permitted Securitizations and Permitted
Warehouse Financings;
(c) Debt in existence as of the Agreement Date and described on
Schedule 6.1.(h) and any Debt (the "Replacement Debt") extending the maturity
of, or refunding, refinancing or replacing, in whole or in part, any such
existing Debt (the "Replaced Debt") so long as (i) the aggregate principal
amount of the Replacement Debt does not exceed that of the Replaced Debt, (ii)
the direct and contingent obligors with respect to the Replaced Debt and the
Replacement Debt shall be the same, (iii) the Replacement Debt shall not mature
prior to the stated maturity date or mandatory redemption date of the Replaced
Debt, and (iv) if the Replaced Debt is subordinated in right of payment or
otherwise to the Obligations of the Borrower, or the obligations of the Parent
or any of its other Subsidiaries under and in respect of the Loan Documents to
which any of them is a party, then the Replacement Debt must be subordinated to
such obligations to at least the same extent;
(d) intercompany indebtedness among the Parent, the Borrower and its
other Subsidiaries; provided, however, that the obligations of each obligor of
such indebtedness shall: (i) be subordinated to the Obligations on terms
acceptable to the Requisite Lenders in their sole discretion and (ii) have such
other terms and provisions as the Administrative Agent may reasonably require;
(e) Debt arising as a result of Contingent Obligations permitted under
Section 9.3.;
(f) Debt in respect of interest rate Hedging Agreements (i) existing on
the date hereof and described in Schedule 9.2.(f); and (ii) entered into from
time to time after the Agreement Date with counterparties that are nationally
recognized, investment grade financial institutions; provided that, no Hedging
Agreement otherwise permitted hereunder may be speculative in nature;
(g) Secured Debt that is Nonrecourse Debt;
(h) Unsecured Debt incurred after the Agreement Date which (x) was
incurred in connection with an offering of Debt securities (A) made pursuant to
an effective registration statement filed with the Securities and Exchange
Commission or (B) exempt from the registration requirements of the Securities
Act pursuant to Rule 144A thereof so long as such Debt securities are required
to be exchanged for Debt securities referred to in the preceding clause (A) or
(y) in the case of any other Unsecured Debt, does not exceed $20,000,000 in
aggregate outstanding principal amount at any time; and
(i) Debt resulting from any guaranty of other Debt of the Parent, the
Borrower or any other Subsidiary which other Debt is permitted to be incurred
pursuant to this Section.
Notwithstanding the foregoing, the Parent and the Borrower shall not, and shall
not permit any other Subsidiary to, create, incur or assume any Debt after the
Agreement Date if immediately prior to the creation, incurring or assumption
thereof, or immediately thereafter and after giving effect thereto, a Default or
Event of Default is or would be in existence, including without limitation, a
Default or Event of Default resulting from a violation of any of the covenants
contained in Section 9.1.
Section 9.3. Contingent Obligations.
The Parent and the Borrower shall not become or remain liable, or
permit any other Subsidiary to become or remain liable, on or under any
Contingent Obligation other than the following:
(a) Contingent Obligations arising under any of the Loan Documents;
(b) Contingent Obligations in existence as of the Agreement Date and
set forth in Schedule 9.3., and any Contingent Obligation incurred in
replacement, in whole or in part, of any such existing Contingent Obligations so
long as (i) the amount of such replacement Contingent Obligation shall not be
increased, (ii) such replacement Contingent Obligation shall not mature or
otherwise be required to be performed prior to the corresponding maturity or
performance date of the Contingent Obligation being so replaced, and (iii) if
the Contingent Obligation being so replaced is subordinated to the Obligations
of the Borrower, or the obligations of the Parent or any of its other
Subsidiaries under and in respect of the Loan Documents to which any of them is
a party, such replacement Contingent Obligation shall be subordinated to such
obligations to at least the same extent;
(c) Contingent Obligations resulting from endorsement of negotiable
instruments for collection or deposit in the ordinary course of business;
(d) Contingent Obligations incurred in the ordinary course of business
with respect to surety and appeal bonds, performance and return-of-money bonds
and other similar obligations; and
(e) Contingent Obligations to the extent constituting Debt permitted
under Section 9.2.
Section 9.4. Certain Permitted Investments.
The Parent and the Borrower shall not, and shall not permit any other
Subsidiary to, make any Investment in or otherwise own the following items which
would cause the aggregate value of such holdings of the Parent, the Borrower and
its other Subsidiaries to exceed the applicable percentage of Total Assets:
(a) common stock, preferred stock and any other Equity
Interests in Unconsolidated Affiliates (excluding Investments subject
to the limitations of the immediately following clause (e)), such that
the aggregate value of such interests, calculated on the basis of cost,
exceeds 5.0% of Total Assets;
(b) Investments in general and limited partnerships, joint
ventures and other Persons (excluding Investments subject to the
limitations of the immediately following clause (e)) which are not
corporations and which Investments are accounted for on an equity basis
in accordance with GAAP, such that the aggregate book value of such
Investments exceeds 10% of Total Assets;
(c) Unimproved real estate, such that the aggregate book value
of all such unimproved real estate exceeds 5.0% of Total Assets;
(d) Real property under construction such that the aggregate
Construction Budget for all such real property exceeds 15.0% of Total
Assets. For purposes of this subsection "Construction Budget" means the
fully-budgeted costs for the acquisition and construction of a given
piece of real property (including the cost of acquiring such piece of
real property) as reasonably determined by the Borrower in good faith;
(e) Investments in (i) Subordinated Securities acquired in
connection with Permitted Securitizations and (ii) prior to the
Parent's acquisition of CNL Financial Services, Inc. and CNL Financial
Corporation in connection with the Consolidation, Subordinated
Securities which represent interests in securitized pools of promissory
notes, mortgage loans, chattel paper, leases or other similar financial
assets originated by any Affiliate, such that the aggregate amount of
all such Subordinated Securities exceeds 10.0% of Total Assets; and
(f) Investments (i) in leases of equipment and in promissory
notes secured by a Lien in equipment, such that the aggregate amount of
such Investments (determined in accordance with GAAP) exceeds (A) 5.0%
of Total Assets prior to the consummation of the Consolidation and (B)
3.0% of Total Assets at all times thereafter and (ii) in the form of
commitments to make Investments of the types described in the
immediately preceding clause (i).
In addition to the foregoing limitations, the aggregate value of all of the
items subject to the limitations in the preceding clauses (a) through (d) and
(f) shall not exceed 20.0% of Total Assets.
Section 9.5. Investments Generally.
The Parent and the Borrower shall not acquire, make or purchase, or
permit any other Subsidiary to acquire, make or purchase, after the Agreement
Date, any Investment, or permit any Investment of the Parent, the Borrower or
any Subsidiary to be outstanding on and after the Agreement Date, other than the
following:
(a) Investments in Subsidiaries in existence on the Agreement Date and
disclosed on Part I of Schedule 6.1.(b) or on Schedule 9.5.;
(b) Investments permitted under Section 9.4.;
(c) Investments in Cash Equivalents;
(d) intercompany indebtedness among the Parent, the Borrower and the
other Subsidiaries provided that such indebtedness is permitted by the terms of
Section 9.2.;
(e) loans and advances to employees for moving, entertainment, travel
and other similar expenses in the ordinary course of business consistent with
past practices;
(f) Investments in promissory notes secured by Mortgages, so long as
the aggregate amount of such Investments (determined in accordance with GAAP)
does not exceed 15.0% of Adjusted Net Capitalization at any time, and
Investments in the form of commitments to make loans to be evidenced by
promissory notes secured by Mortgages;
(g) Investments in Special Purpose Entities so long as the amount of
such Investments (determined in accordance with GAAP) excluding any amount of
such Investment attributable to Subordinated Securities does not exceed
$100,000,000 in the aggregate at any time;
(h) the Parent or any Subsidiary, in either case, acting in its
capacity as servicer of the financial assets the subject of a Permitted
Securitization or Permitted Warehouse Financing, may make short-term advances to
or on behalf of the applicable Special Purpose Entity or other Person involved
in such Permitted Securitization or Permitted Warehouse Financing for the
purpose of maintaining a stable cash flow with respect to such financial assets,
so long as the Parent or such Subsidiary, as the case may be, reasonably expects
that such advance is recoverable; and
(i) Investments to acquire Equity Interests of a Subsidiary or any
other Person who after giving effect to such acquisition would be a Subsidiary,
including without limitation, Investments made in connection with the
consummation of the Consolidation, and Investments in the form of additional
capital contributions to existing Subsidiaries, so long as in each case (i)
immediately prior to such acquisition, Investment or contribution, and after
giving effect thereto, no Default or Event of Default is or would be in
existence and (ii) such acquisition, Investment or contribution could not
reasonably be expected to have a Material Adverse Effect.
Section 9.6. Liens; Agreements Regarding Liens; Other Matters.
The Parent and the Borrower shall not:
(a) Create, assume, or incur, or permit any other Subsidiary to create,
assume, or incur, any Lien (other than Permitted Liens) upon (i) any Eligible
Lease (or the Real Property Asset which is the subject of such Eligible Lease)
or any other property or asset which is taken into account when calculating
Unencumbered Asset Value or (ii) any of its other properties, assets, income or
profits of any character whether now owned or hereafter acquired if, in the case
of this clause (ii) only, immediately prior to the creation, assumption or
incurring of such Lien, or immediately thereafter, a Default or Event of Default
is or would be in existence, including without limitation, a Default or Event of
Default resulting from a violation of any of the covenants contained in Section
9.1. or 9.2.;
(b) Enter into, assume or otherwise be bound by, or permit any other
Subsidiary to enter into, assume or otherwise be bound by, any agreement (other
than any Loan Document) prohibiting the creation or assumption of any Lien on
any Eligible Lease (or the Real Property Asset which is the subject of such
Eligible Lease) or any other property or asset which is taken into account when
calculating Unencumbered Asset Value; or
(c) Create or otherwise cause or suffer to exist or become effective,
or permit any Subsidiary (excluding any Special Purpose Entity) to create or
otherwise cause or suffer to exist or become effective, any consensual
encumbrance or restriction of any kind on the ability of any Subsidiary
(excluding any Special Purpose Entity) to: (i) pay dividends or make any other
distribution on any of such Subsidiary's capital stock or other equity interests
owned by the Parent, the Borrower or any other Subsidiary; (ii) pay any Debt
owed to the Parent, the Borrower or any other Subsidiary; (iii) make loans or
advances to the Borrower or any other Subsidiary; or (iv) transfer any of its
respective property or assets to the Parent, the Borrower or any other
Subsidiary, except (x) as may be contained in any Loan Document and (y) for such
encumbrances and restrictions imposed on Special Purpose Entities in connection
with Permitted Securitizations or Permitted Warehouse Financings which
encumbrances and restrictions are reasonable and customary for such types of
transactions.
Section 9.7. Restricted Payments.
The Parent and the Borrower will not declare or make, or permit any
other Subsidiary to declare or make, any Restricted Payment; provided, however,
that (a) Subsidiaries may pay Restricted Payments to the extent permitted (or
required) to do so under Section 9.14.; (b) subject to the following sentence,
the Parent may cause the Borrower (directly or indirectly through any
intermediate Subsidiaries) to make cash distributions to the Parent and to other
limited partners of the Borrower (i) in an aggregate amount not to exceed the
amount of cash distributions that the Parent is permitted to declare or
distribute under the following clause (d) and (ii) on a pro rata basis, such
that the aggregate amount distributed to the Parent does not exceed the amount
that the Parent is permitted to declare or distribute under the following clause
(e); (c) the Parent and its Subsidiaries may acquire limited partnership
interests in the Borrower solely in exchange for common stock of the Parent; (d)
the Parent may declare or make cash distributions to its shareholders during any
fiscal year in an aggregate amount not to exceed (i) 100% of Funds From
Operations for the fiscal year ending December 31, 1999; (ii) 95% of Funds From
Operations for the fiscal year ending December 31, 2000 and (iii) 90% Funds From
Operations for any fiscal year thereafter; and (e) subject to the following
sentence, if a Default or Event of Default shall have occurred and be
continuing, the Parent may only declare or make cash distributions to its
shareholders during any fiscal year in an aggregate amount not to exceed the
lesser of (i) the amount otherwise permitted to be declared or made under the
immediately preceding clause (d) and (ii) the minimum amount necessary for the
Parent to remain in compliance with Section 7.11. Notwithstanding the foregoing,
if a Default or Event of Default specified in Section 10.1.(a) resulting from
the Borrower's failure to pay when due the principal of, or interest on, any of
the Loans or any Fees, Section 10.1.(e) or Section 10.1.(f) shall have occurred
and be continuing, or if as a result of the occurrence of any other Event of
Default the Obligations have been accelerated pursuant to Section 10.2.(a), the
Parent and the Borrower shall not, and shall not permit any other Subsidiary to,
make any Restricted Payments whatsoever.
Section 9.8. Ground Leases.
The Parent and the Borrower shall not, and shall not permit any other
Subsidiary to, lease as lessee any real property pursuant to a ground lease
unless (a) such ground lease contains customary provisions protective of any
lender to the lessee which provisions do not vary in any material respect from
those required under the Borrower's standard underwriting procedures and
policies and (b) the aggregate value (determined in accordance with GAAP) of all
ground leases of the Parent, the Borrower and the other Subsidiaries does not
exceed 10% of Adjusted Net Capitalization.
Section 9.9. Merger, Consolidation, Sales of Assets and Other
Arrangements; Sale-Lease Back Transactions.
(a) Merger, Consolidation, Sales of Assets. The Parent and the Borrower
shall not (i) enter into, or permit any other Subsidiary to enter into, any
transaction of merger or consolidation; (ii) liquidate, wind-up or dissolve
itself (or suffer any liquidation or dissolution) or permit any other Subsidiary
to do any of the foregoing; or (iii) convey, sell, lease, sublease, transfer or
otherwise dispose of, in one transaction or a series of transactions, all or any
substantial part of its business or assets (including the capital stock of or
other equity interests in any of its Subsidiaries), whether now owned or
hereafter acquired, or permit any Subsidiary to do any of the foregoing;
provided, however, that:
(A) Subsidiaries of the Parent may merge or consolidate with
any Wholly Owned Subsidiary (other than the Borrower and any Special
Purpose Entity);
(B) the Parent and each Subsidiary (other than the Borrower)
may sell, transfer or dispose of its assets to the Parent, the Borrower
or any Wholly Owned Subsidiary;
(C) a Wholly Owned Subsidiary may liquidate provided that
immediately prior to such liquidation and immediately thereafter and
after giving effect thereto, no Default or Event of Default is or would
be in existence;
(D) any Subsidiary that is not a Wholly Owned Subsidiary and
that is no longer actively engaged in any business or activities and
does not have property and assets with an aggregate book value or fair
market value in excess of $1,000,000 may be wound up, liquidated or
dissolved so long as such winding up, liquidation or dissolution is
determined in good faith by management of the Parent to be in the best
interests of the Parent and its Subsidiaries;
(E) a Wholly Owned Subsidiary may merge with any other Person
so long as (x) immediately after giving effect to such merger the
survivor of such merger would be a Wholly Owned Subsidiary and (y)
immediately prior to such merger, and immediately thereafter and after
giving effect thereto, no Default or Event of Default is or would be in
existence;
(F) a Person may merge into the Borrower so long as (x) the
Borrower is the survivor of such merger, (y) such merger is being
effected in connection with the consummation of the Consolidation and
(z) immediately prior to such merger, and immediately thereafter and
after giving effect thereto, no Default or Event of Default is or would
be in existence;
(G) the Parent, the Borrower and the other Subsidiaries may
sell and assign assets to a Special Purpose Entity in connection with a
Permitted Securitization or Permitted Warehouse Financing, and Special
Purpose Entities may sell and assign assets (or interests therein)
pursuant to Permitted Securitizations; and
(H) the Parent, the Borrower and any other Subsidiary may
lease and sublease its assets, as lessor or sublessor (as the case may
be), in the ordinary course of their business.
(b) Sale-Lease Back Transactions. None of the Parent, the Borrower or
any other Subsidiary shall enter into any sale-leaseback transactions or other
transaction by which such Person shall remain liable as lessee (or the economic
equivalent thereof) of any real or personal property that it has sold or leased
to another Person.
Section 9.10. Dispositions of Assets.
The Parent and the Borrower shall not sell, lease, transfer or
otherwise dispose of, and shall not permit any other Subsidiary to sell, lease,
transfer or otherwise dispose of, assets (including without limitation capital
stock or similar ownership interests) during any fiscal year which have an
aggregate book value in excess of 15% of Total Assets as of the end of the
immediately preceding fiscal year; provided, however, that the limitations of
this Section shall not apply to (i) the sale, lease or transfer of assets among
the Parent, the Borrower and any other Wholly-Owned Subsidiary that is a
Guarantor, (ii) any lease or sublease, as lessor or sublessor (as the case may
be) by the Parent, the Borrower or any Subsidiary of its assets in the ordinary
course of their business or (iii) any sale or assignment of assets in connection
with a Permitted Securitization or Permitted Warehouse Financing to the extent
permitted under clause (a)(G) of Section 9.9.
Section 9.11. Fiscal Year.
The Parent shall not change its fiscal year from that in effect as of
the Agreement Date.
Section 9.12. Modifications to Material Contracts.
The Parent and the Borrower shall not enter into, or permit any other
Subsidiary to enter into, without the prior written consent of the Requisite
Lenders, any amendment or modification to any Material Contract or default in
the performance of any of its respective obligations under any Material Contract
or permit any Material Contract to be canceled or terminated prior to its stated
maturity.
Section 9.13. Transactions with Affiliates.
The Parent and the Borrower shall not permit to exist or enter into,
and will not permit any other Subsidiary to permit to exist or enter into, any
transaction with any Affiliate except (a) transactions in the ordinary course of
and pursuant to the reasonable requirements of the business of the Parent, the
Borrower or such other Subsidiary, as the case may be, and upon fair and
reasonable terms which are no less favorable to the Parent, the Borrower or such
other Subsidiary, as the case may be, than would be obtained in a comparable
arm's length transaction with a Person that is not an Affiliate, and in the case
of any such transaction with a Special Purpose Entity involving consideration in
excess of $25,000,000, which terms are fully disclosed to the Administrative
Agent and the Lenders; (b) the transactions described in Schedule 9.13.; and (c)
transactions among the Parent, the Borrower and any Wholly Owned Subsidiary that
is a Guarantor.
Section 9.14. Distributions of Income to the Borrower.
The Parent and the Borrower shall cause all of the Subsidiaries of the
Borrower to distribute promptly to the Borrower (but not less frequently than
once each fiscal quarter of the Borrower), whether in the form of dividends,
distributions or otherwise, all profits, proceeds or other income relating to or
arising from its Subsidiaries' use, operation, financing, refinancing, sale or
other disposition of their respective assets and properties after (a) the
payment by each Subsidiary of its applicable portion of total Debt service and
operating expenses for such quarter and (b) the establishment of reasonable
reserves for the payment of operating expenses not paid on at least a quarterly
basis and capital improvements to be made to such Subsidiary's assets and
properties approved by such Subsidiary in the ordinary course of business
consistent with its past practices.
Section 9.15. Contribution of Assets by Parent to Borrower.
By the Contribution Date the Parent shall, and shall cause each of its
Subsidiaries that are not also Subsidiaries of the Borrower ("Intermediate
Subs") to, contribute or otherwise convey to the Borrower assets (excluding, at
the option of the Parent, securities of (i) Intermediate Subs and (ii) the
Borrower), such that after giving effect to such contributions and conveyances
substantially all of the assets of the Parent and its Subsidiaries (determined
on a consolidated basis) shall be owned by the Borrower.
Article X. Default
Section 10.1. Events of Default.
Each of the following shall constitute an Event of Default, whatever
the reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of Applicable Law or pursuant to any judgment or order of
any Governmental Authority:
(a) Default in Payment. The Borrower shall fail to pay when due
(whether upon demand, at maturity, by reason of acceleration or otherwise) (i)
the principal of any of the Loans, (ii) any interest on any of the Loans and in
the case of this clause (ii) only, such failure shall continue for a period of 5
days or (iii) any other Obligations owing by the Borrower under this Agreement
or any other Loan Document and in the case of this clause (iii) only, such
failure shall continue for a period of 5 days after the date upon which the
Borrower has received written notice of such failure from the Administrative
Agent.
(b) Default in Performance. (i) The Borrower shall fail to perform or
observe any term, covenant, condition or agreement on its part to be performed
or observed contained in Article IX. or (ii) the Borrower or any Guarantor shall
fail to perform or observe any term, covenant, condition or agreement contained
in this Agreement or any other Loan Document to which it is a party and not
otherwise mentioned in this Section and in the case of this clause (ii) only,
such failure shall continue for a period of 30 days after the earlier of (x) the
date upon which the Parent or the Borrower obtains knowledge of such failure or
(y) the date upon which the Borrower has received written notice of such failure
from the Administrative Agent.
(c) Misrepresentations. Any written statement, representation or
warranty made or deemed made by or on behalf of the Borrower or any Guarantor
under this Agreement or under any other Loan Document, or any amendment hereto
or thereto, or in any other writing or statement at any time furnished or made
or deemed made by or on behalf of the Borrower or any Guarantor to the
Administrative Agent, either Arranger, the Syndication Agent or any Lender under
or in connection with any Loan Document, shall at any time prove to have been
incorrect or misleading in any material respect when furnished or made.
(d) Debt Cross-Default.
(i) The Borrower, any Guarantor or any Special Purpose Entity
shall fail to pay when due and payable (following the expiration of any
applicable cure periods) the principal of, or interest on, any Debt
(other than the Loans) having an aggregate outstanding principal amount
(or, in the case of any Hedging Agreement, having an Agreement Value)
of $10,000,000 or more ("Material Debt"); or
(ii) the maturity of any Material Debt shall have (x) been
accelerated in accordance with the provisions of any indenture,
contract or instrument evidencing, providing for the creation of or
otherwise concerning such Debt or (y) been required to be prepaid prior
to the stated maturity thereof; or
(iii) any other event shall have occurred and be continuing
which would permit any holder or holders of any Material Debt, any
trustee or agent acting on behalf of such holder or holders or any
other Person, to accelerate the maturity of any such Debt or require
any such Debt to be prepaid prior to its stated maturity.
(e) Voluntary Bankruptcy Proceeding. The Borrower, any Guarantor or any
Special Purpose Entity shall: (i) commence a voluntary case under the Bankruptcy
Code of 1978, as amended or other federal bankruptcy laws (as now or hereafter
in effect); (ii) file a petition seeking to take advantage of any other
Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts; (iii) consent
to, or fail to contest in a timely and appropriate manner, any petition filed
against it in an involuntary case under such bankruptcy laws or other Applicable
Laws or consent to any proceeding or action described in the immediately
following subsection; (iv) apply for or consent to, or fail to contest in a
timely and appropriate manner, the appointment of, or the taking of possession
by, a receiver, custodian, trustee, or liquidator of itself or of a substantial
part of its property, domestic or foreign; (v) admit in writing its inability to
pay its debts as they become due; (vi) make a general assignment for the benefit
of creditors; or (vii) take any corporate or similar action for the purpose of
effecting any of the foregoing.
(f) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
be commenced against the Borrower, any Guarantor or any Special Purpose Entity,
in any court of competent jurisdiction seeking: (i) relief under the Bankruptcy
Code of 1978, as amended or other federal bankruptcy laws (as now or hereafter
in effect) or under any other Applicable Laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment
of debts; or (ii) the appointment of a trustee, receiver, custodian, liquidator
or the like of such Person, or of all or any substantial part of the assets,
domestic or foreign, of such Person, and such case or proceeding shall continue
undismissed or unstayed for a period of 60 consecutive calendar days, or an
order granting the remedy or other relief requested in such case or proceeding
against the Borrower or such Guarantor (including, but not limited to, an order
for relief under such Bankruptcy Code or such other federal bankruptcy laws)
shall be entered.
(g) Challenge of Loan Documents. The Borrower or any Guarantor shall
disavow, revoke or terminate or attempt to do any of the foregoing with respect
to any Loan Document to which it is a party or shall otherwise challenge or
contest in any action, suit or proceeding in any court or before any
Governmental Authority the validity or enforceability of this Agreement, any
Note or any other Loan Document.
(h) Judgment. A judgment or order for the payment of money shall be
entered against the Borrower, any Guarantor or any Special Purpose Entity by any
court or other tribunal which exceeds, individually or together with all other
such judgments or orders entered against the Borrower and the Guarantors,
$1,000,000 in amount (or which shall otherwise have a Material Adverse Effect)
and such judgment or order shall continue for a period of 30 days without being
stayed or dismissed through appropriate appellate proceedings.
(i) Attachment. A warrant, writ of attachment, execution or similar
process shall be issued against any property of the Borrower, any Guarantor or
any Special Purpose Entity which exceeds, individually or together with all
other such warrants, writs, executions and processes, $1,000,000 in amount and
such warrant, writ, execution or process shall not be discharged, vacated,
stayed or bonded for a period of 30 days.
(j) ERISA. Any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $1,000,000 which it shall have become
liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or to cause a trustee to be appointed to administer any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $1,000,000.
(k) Loan Documents. An Event of Default (as defined therein) shall
occur under any of the other Loan Documents.
(l) Change of Control/Change in Management.
(i) Any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) is or becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a
Person will be deemed to have "beneficial ownership" of all securities
that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 25.0% of the total voting power of the then
outstanding Voting Stock of the Borrower;
(ii) During any twelve-month period (commencing either before
or after the Agreement Date), a majority of the Board of Directors of
the Parent shall no longer be composed of individuals (x) who were
members of such Board of Directors on the first date of such period,
(y) whose election or nomination to such Board of Directors was
approved by individuals referred to in clause (x) above constituting at
the time of such election or nomination at least a majority of such
Board of Directors or (z) whose election or nomination to such Board of
Directors was approved by individuals referred to in clauses (x) and
(y) above constituting at the time of such election or nomination at
least a majority of such Board of Directors;
(iii) If either (x) Xxxxx X. Xxxxxx, Xx. or (y) any two of
Xxxxxx X. Xxxxxx, Xxxxxx X. XxXxxxxxxx and Xxxx X. Xxxxxx, shall cease
for any reason (including death or disability) to occupy the positions
of Chairman of the Board, Vice Chairman of the Board, Chief Executive
Officer or President (or other more senior officer) of the Parent,
respectively; or
(iv) The general partner of the Borrower shall cease to be the
Parent or a Wholly Owned Subsidiary of the Parent.
Section 10.2. Remedies Upon Event of Default.
Upon the occurrence and during the continuance of an Event of Default
the following provisions shall apply:
(a) Acceleration; Termination of Facilities.
(i) Automatic. Upon the occurrence of an Event of Default
specified in Sections 10.1.(e) or 10.1.(f), (A)(i) the principal of,
and all accrued interest on, the Loans and the Notes at the time
outstanding, (ii) an amount equal to the Stated Amount of all Letters
of Credit then outstanding, and (iii) all of the other Obligations of
the Borrower, including, but not limited to, the other amounts owed to
the Lenders and the Administrative Agent under this Agreement, the
Notes or any of the other Loan Documents shall become immediately and
automatically due and payable by the Borrower without presentment,
demand, protest, or other notice of any kind, all of which are
expressly waived by the Borrower and (B) the Commitments and the
obligation of the Lenders to make Loans hereunder and the obligation of
the Administrative Agent to issue Letters of Credit hereunder shall
immediately and automatically terminate.
(ii) Optional. If any other Event of Default shall have
occurred and be continuing, the Administrative Agent may, and at the
direction of the Requisite Lenders shall: (I) declare (1) the principal
of, and accrued interest on, the Loans and the Notes at the time
outstanding, (2) an amount equal to the Stated Amount of all Letters of
Credit then outstanding, and (3) all of the other Obligations,
including, but not limited to, the other amounts owed to the Lenders
and the Administrative Agent under this Agreement, the Notes or any of
the other Loan Documents to be forthwith due and payable, whereupon the
same shall immediately become due and payable without presentment,
demand, protest or other notice of any kind, all of which are expressly
waived by the Borrower and (II) terminate the Commitments and the
obligation of the Lenders to make Loans hereunder and the obligation of
the Administrative Agent to issue Letters of Credit hereunder.
(b) Loan Documents. The Requisite Lenders may direct the Administrative
Agent to, and the Administrative Agent if so directed shall, exercise any and
all of its rights under any and all of the other Loan Documents.
(c) Applicable Law. The Requisite Lenders may direct the Administrative
Agent to, and the Administrative Agent if so directed shall, exercise all other
rights and remedies it may have under any Applicable Law.
(d) Appointment of Receiver. To the extent permitted by Applicable Law,
the Administrative Agent and the Lenders shall be entitled to the appointment of
a receiver for the assets and properties of the Borrower and its Subsidiaries,
without notice of any kind whatsoever and without regard to the adequacy of any
security for the Obligations or the solvency of any party bound for its payment,
to take possession of all or any portion of the business operations of the
Borrower and its Subsidiaries and to exercise such power as the court shall
confer upon such receiver.
Section 10.3. Remedies Upon Default.
Upon the occurrence of a Default specified in Sections 10.1.(e) or
10.1.(f), the Commitments, and the obligation of the Administrative Agent to
issue Letters of Credit, shall immediately and automatically terminate.
Section 10.4. Allocation of Proceeds.
If an Event of Default shall have occurred and be continuing and
maturity of any of the Obligations has been accelerated, all payments received
by the Administrative Agent under any of the Loan Documents, in respect of any
principal of or interest on the Obligations or any other amounts payable by the
Borrower hereunder or thereunder, shall be applied in the following order and
priority:
(a) amounts due to the Administrative Agent and the Lenders in
respect of Fees and expenses due under Section 12.2.;
(b) payments of interest on Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders;
(c) payments of principal of Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders;
(d) payments of cash amounts to the Administrative Agent in
respect of outstanding Letters of Credit pursuant to Section 2.12.;
(e) amounts due to the Administrative Agent, the Arrangers and
the Lenders pursuant to Sections 11.7. and 12.9.;
(f) payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the
Lenders; and
(g) any amount remaining after application as provided above,
shall be paid to the Borrower or whomever else may be legally entitled
thereto.
Section 10.5. Performance by Administrative Agent.
If the Borrower or the Parent shall fail to perform any covenant, duty
or agreement contained in any of the Loan Documents, the Administrative Agent
may, upon notice to the Borrower or the Parent, as the case may be, perform or
attempt to perform such covenant, duty or agreement on behalf of the Borrower or
the Parent, as the case may be, after the expiration of any cure or grace
periods set forth herein; provided, however, the Administrative Agent's failure
to give any such notice shall not effect the validity of any action taken by the
Administrative Agent. In such event, the Borrower shall, at the request of the
Administrative Agent, promptly pay any amount reasonably expended by the
Administrative Agent in such performance or attempted performance to the
Administrative Agent, together with interest thereon at the applicable
Post-Default Rate from the date of such expenditure until paid. Notwithstanding
the foregoing, neither the Administrative Agent nor any Lender shall have any
liability or responsibility whatsoever for the performance of any obligation of
the Borrower or the Parent under this Agreement or any other Loan Document.
Section 10.6. Rights Cumulative.
The rights and remedies of the Administrative Agent and the Lenders
under this Agreement and each of the other Loan Documents shall be cumulative
and not exclusive of any rights or remedies which any of them may otherwise have
under Applicable Law. In exercising their respective rights and remedies the
Administrative Agent and the Lenders may be selective and no failure or delay by
the Administrative Agent or any of the Lenders in exercising any right shall
operate as a waiver of it, nor shall any single or partial exercise of any power
or right preclude its other or further exercise or the exercise of any other
power or right.
Section 10.7. Rescission of Acceleration by Requisite Lenders.
If at any time after acceleration of the maturity of the Obligations,
the Borrower shall pay all arrears of interest and all payments on account of
principal of the Obligations which shall have become due otherwise than by
acceleration (with interest on principal and, to the extent permitted by
Applicable Law, on overdue interest, at the rates specified in this Agreement)
and all Events of Default and Defaults (other than nonpayment of principal of
and accrued interest on the Obligations due and payable solely by virtue of
acceleration) shall be remedied or waived to the satisfaction of the Requisite
Lenders, then by written notice to the Borrower, the Requisite Lenders may
elect, in the sole discretion of such Requisite Lenders, to rescind and annul
the acceleration and its consequences; but such action shall not affect any
subsequent Default or Event of Default or impair any right or remedy consequent
thereon. The provisions of the preceding sentence are intended merely to bind
the Lenders to a decision which may be made at the election of the Requisite
Lenders; they are not intended to benefit the Borrower and do not give the
Borrower the right to require the Lenders to rescind or annul any acceleration
hereunder, even if the conditions set forth herein are satisfied.
Section 10.8. Collateral Account.
(a) As collateral security for the prompt payment in full when due of
all Letter of Credit Liabilities, the Borrower hereby pledges and grants to the
Administrative Agent, for the benefit of the Administrative Agent and the
Lenders as provided herein, a security interest in all of its right, title and
interest in and to the Collateral Account and the balances from time to time in
the Collateral Account (including the investments and reinvestments therein
provided for below). The balances from time to time in the Collateral Account
shall not constitute payment of any Letter of Credit Liabilities until applied
by the Administrative Agent as provided herein. Anything in this Agreement to
the contrary notwithstanding, funds held in the Collateral Account shall be
subject to withdrawal only as provided in this Section and in Section 2.12.
(b) Amounts on deposit in the Collateral Account shall be invested and
reinvested by the Administrative Agent in such Cash Equivalents as the
Administrative Agent shall determine in its sole discretion. The Collateral
Account, all funds on deposit held in the Collateral Account and all such
investments and reinvestments shall be held in the name of and be under the sole
dominion and control of the Administrative Agent. The Administrative Agent shall
exercise reasonable care in the custody and preservation of any funds held in
the Collateral Account and shall be deemed to have exercised such care if such
funds are accorded treatment substantially equivalent to that which the
Administrative Agent accords other funds deposited with the Administrative
Agent, it being understood that the Administrative Agent shall not have any
responsibility for taking any necessary steps to preserve rights against any
parties with respect to any funds held in the Collateral Account.
(c) If an Event of Default shall have occurred and be continuing, the
Administrative Agent may (and, if instructed by the Requisite Lenders, shall) in
its (or their) discretion at any time and from time to time elect to liquidate
any such investments and reinvestments and credit the proceeds thereof to the
Collateral Account and apply or cause to be applied such proceeds and any other
balances in the Collateral Account to the payment of any of the Letter of Credit
Liabilities due and payable.
(d) If (i) no Default or Event of Default is then in existence and (ii)
all of the Letter of Credit Liabilities have been indefeasibly paid in full, the
Administrative Agent shall, from time to time, at the request of the Borrower,
deliver to the Borrower, against receipt but without any recourse, warranty or
representation whatsoever, such of the balances in the Collateral Account as
exceed the aggregate amount of Letter of Credit Liabilities at such time. When
all of the Obligations shall have been indefeasibly paid in full and no Letters
of Credit remain outstanding, the Administrative Agent shall promptly deliver to
the Borrower, against receipt but without any recourse, warranty or
representation whatsoever, the balances remaining in the Collateral Account.
(e) The Borrower shall pay to the Administrative Agent from time to
time such reasonable fees as the Administrative Agent customarily charges for
similar services in connection with the Administrative Agent's administration of
the Collateral Account and investments and reinvestments of funds therein.
Article XI. The Administrative Agent
Section 11.1. Authorization and Action.
Each Lender hereby appoints and authorizes the Administrative Agent to
take such action as contractual representative on such Lender's behalf and to
exercise such powers under this Agreement and the other Loan Documents as are
specifically delegated to the Administrative Agent by the terms and thereof,
together with such powers as are reasonably incidental thereto. Nothing herein
shall be construed to deem the Administrative Agent a trustee or fiduciary for
any Lender nor to impose on the Administrative Agent duties or obligations other
than those expressly provided for herein. Not in limitation of the foregoing,
each Lender confirms and agrees that the Administrative Agent has no fiduciary
obligations to such Lender under this Agreement, any other Loan document or
otherwise. At the request of a Lender, the Administrative Agent will forward to
such Lender copies or, where appropriate, originals of the documents delivered
to the Administrative Agent pursuant to this Agreement or the other Loan
Documents. The Administrative Agent will also furnish to any Lender, upon the
request of such Lender, a copy of any certificate or notice furnished to the
Administrative Agent by the Parent, the Borrower, any other Subsidiary or any
other Affiliate of the Borrower, pursuant to this Agreement or any other Loan
Document not already required to be delivered to such Lender pursuant to the
terms of this Agreement or any such other Loan Document. As to any matters not
expressly provided for by the Loan Documents (including, without limitation,
enforcement or collection of any of the Obligations), the Administrative Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Requisite Lenders
(or all of the Lenders if explicitly required under any other provision of this
Agreement), and such instructions shall be binding upon all Lenders and all
holders of any of the Obligations; provided, however, that, notwithstanding
anything in this Agreement to the contrary, the Administrative Agent shall not
be required to take any action which exposes the Administrative Agent to
personal liability or which is contrary to this Agreement or any other Loan
Document or Applicable Law. The Administrative Agent shall not exercise any
right or remedy it or the Lenders may have under any Loan Document upon the
occurrence of a Default or an Event of Default unless the Requisite Lenders have
so directed the Administrative Agent to exercise such right or remedy.
Section 11.2. Administrative Agent's Reliance, Etc.
Notwithstanding any other provisions of this Agreement or any other
Loan Documents, neither the Administrative Agent nor any of its directors,
officers, agents, employees or counsel shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement,
except to the extent found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from its or their own gross negligence
or willful misconduct. Without limiting the generality of the foregoing, the
Administrative Agent: (a) may treat the payee of any Note as the holder thereof
until the Administrative Agent receives written notice of the assignment or
transfer thereof signed by such payee and in form satisfactory to the
Administrative Agent; (b) may consult with legal counsel (including its own
counsel or counsel for the Parent, the Borrower or any other Subsidiary),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Lender or any other Person and shall not be
responsible to any Lender or any other Person for any statements, warranties or
representations made by any Person in or in connection with this Agreement or
any other Loan Document; (d) shall not have any duty to ascertain or to inquire
as to the performance or observance of any of the terms, covenants or conditions
of any of this Agreement or any other Loan Document or the satisfaction of any
conditions precedent under this Agreement or any Loan Document on the part of
the Parent, the Borrower or other Persons or inspect the property, books or
records of the Parent, the Borrower or any other Person; (e) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
Loan Document, any other instrument or document furnished pursuant thereto or
any Collateral covered thereby or the perfection or priority of any Lien in
favor of the Administrative Agent on behalf of the Lenders in any such
Collateral; and (f) shall incur no liability under or in respect of this
Agreement or any other Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telephone or
telecopy) believed by it to be genuine and signed, sent or given by the proper
party or parties.
Section 11.3. Notice of Defaults.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default or Event of Default unless the
Administrative Agent has received notice from a Lender, the Borrower or the
Parent referring to this Agreement, describing with reasonable specificity such
Default or Event of Default and stating that such notice is a "notice of
default." If any Lender becomes aware of any Default or Event of Default, it
shall promptly send to the Administrative Agent such a "notice of default."
Further, if the Administrative Agent receives such a "notice of default", the
Administrative Agent shall give prompt notice thereof to the Lenders.
Section 11.4. First Union as Lender.
First Union, as a Lender, shall have the same rights and powers under
this Agreement and any other Loan Document as any other Lender and may exercise
the same as though it were not the Administrative Agent; and the term "Lender"
or "Lenders" shall, unless otherwise expressly indicated, include First Union in
each case in its individual capacity. First Union and its affiliates may each
accept deposits from, maintain deposits or credit balances for, invest in, lend
money to, act as trustee under indentures of, serve as financial advisor to, and
generally engage in any kind of business with the Parent, the Borrower, any
other Subsidiary or any other Affiliate thereof as if it were any other bank and
without any duty to account therefor to the other Lenders. Further, the
Administrative Agent and any affiliate may accept fees and other consideration
from the Parent or the Borrower for services in connection with this Agreement
and otherwise without having to account for the same to the other Lenders.
Section 11.5. Approvals of Lenders.
All communications from the Administrative Agent to any Lender
requesting such Lender's determination, consent, approval or disapproval (a)
shall be given in the form of a written notice to such Lender, (b) shall be
accompanied by a description of the matter or issue as to which such
determination, approval, consent or disapproval is requested, or shall advise
such Lender where information, if any, regarding such matter or issue may be
inspected, or shall otherwise describe the matter or issue to be resolved, (c)
shall include, if reasonably requested by such Lender and to the extent not
previously provided to such Lender, written materials provided to the
Administrative Agent by the Parent or the Borrower in respect of the matter or
issue to be resolved, and (d) shall include the Administrative Agent's
recommended course of action or determination in respect thereof. Each Lender
shall reply promptly, but in any event within 10 Business Days (or such lesser
period as may be required under the Loan Documents for the Administrative Agent
to respond). Unless a Lender 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 applicable time period for reply, such Lender shall
be deemed to have conclusively approved of or consented to such recommendation
or determination.
Section 11.6. Lender Credit Decision, Etc.
Each Lender expressly acknowledges and agrees that none of the
Administrative Agent, the Arrangers, or any of their respective officers,
directors, employees, agents, counsel, attorneys-in-fact or other affiliates has
made any representations or warranties as to the financial condition,
operations, creditworthiness, solvency or other information concerning the
business or affairs of the Parent, the Borrower, any other Subsidiary or other
Person to such Lender and that no act by the Administrative Agent or either of
the Arrangers hereinafter taken, including any review of the affairs of the
Parent, the Borrower or any other Subsidiary, shall be deemed to constitute any
such representation or warranty by the Administrative Agent or the Arrangers to
any Lender. Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent, either Arranger, any other Lender or
counsel to the Administrative Agent, or any of their respective officers,
directors, employees and agents, and based on the financial statements of the
Parent, the Borrower, the other Subsidiaries or any other Affiliate thereof, and
inquiries of such Persons, its independent due diligence of the business and
affairs of the Parent, the Borrower, the other Subsidiaries and other Persons,
its review of the Loan Documents, the legal opinions required to be delivered to
it hereunder, the advice of its own counsel and such other documents and
information as it has deemed appropriate, made its own credit and legal analysis
and decision to enter into this Agreement and the transactions contemplated
hereby. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent, either Arranger, any other Lender or
counsel to the Administrative Agent or any of their respective officers,
directors, employees and agents, and based on such review, advice, documents and
information as it shall deem appropriate at the time, continue to make its own
decisions in taking or not taking action under the Loan Documents. Except for
notices, reports and other documents and information expressly required to be
furnished to the Lenders by the Administrative Agent or the Arrangers under this
Agreement or any of the other Loan Documents, neither the Administrative Agent
or either Arranger shall have any duty or responsibility to provide any Lender
with any credit or other information concerning the business, operations,
property, financial and other condition or creditworthiness of the Parent, the
Borrower, any other Subsidiary or any other Affiliate thereof which may come
into possession of the Administrative Agent, either Arranger or any of their
respective officers, directors, employees, agents, attorneys-in-fact or other
affiliates. Each Lender acknowledges that the Administrative Agent's legal
counsel in connection with the transactions contemplated by this Agreement is
only acting as counsel to the Administrative Agent and is not acting as counsel
to such Lender.
Section 11.7. Indemnification of Administrative Agent and Arrangers.
Each Lender agrees to indemnify each of the Administrative Agent and
the Arrangers (to the extent not reimbursed by the Borrower and without limiting
the obligation of the Borrower to do so) pro rata in accordance with such
Lender's respective Commitment Percentage, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may at
any time be imposed on, incurred by, or asserted against the Administrative
Agent or either Arranger (in its respective capacity as "Administrative Agent"
or "Arranger" but not as a "Lender") in any way relating to or arising out of
the Loan Documents, any transaction contemplated hereby or thereby or any action
taken or omitted by the Administrative Agent or either Arranger under the Loan
Documents (collectively, "Indemnifiable Amounts"); provided, however, that no
Lender shall be liable to the Administrative Agent or an Arranger for any
portion of such Indemnifiable Amounts to the extent found in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the Administrative Agent or
such Arranger, as the case may be. Without limiting the generality of the
foregoing, each Lender agrees to reimburse the Administrative Agent and each
Arranger promptly upon demand for its ratable share of any out-of-pocket
expenses (including counsel fees of the counsel(s) of the Administrative Agent's
own choosing) incurred by the Administrative Agent in connection with the
preparation, execution, administration, or enforcement of, or legal advice with
respect to the rights or responsibilities of the parties under, the Loan
Documents, any suit or action brought by the Administrative Agent to enforce the
terms of the Loan Documents and/or collect any Obligations, any "lender
liability" suit or claim brought against the Administrative Agent, either
Arranger and/or the Lenders, and any claim or suit brought against the
Administrative Agent, either Arranger and/or the Lenders arising under any
Environmental Laws, to the extent that the Administrative Agent or such Arranger
is not reimbursed for such expenses by the Borrower. Such out-of-pocket expenses
(including counsel fees) shall be advanced by the Lenders on the request of the
Administrative Agent notwithstanding any claim or assertion that the
Administrative Agent is not entitled to indemnification hereunder upon receipt
of an undertaking by the Administrative Agent that the Administrative Agent will
reimburse the Lenders if it is actually and finally determined by a court of
competent jurisdiction that the Administrative Agent is not so entitled to
indemnification. The agreements in this Section shall survive the payment of the
Loans and all other amounts payable hereunder or under the other Loan Documents,
the expiration of all Letters of Credit and the termination of this Agreement.
If the Borrower shall reimburse the Administrative Agent or an Arranger for any
Indemnifiable Amount following payment by any Lender to the Administrative Agent
or such Arranger in respect of such Indemnifiable Amount pursuant to this
Section, the Administrative Agent or such Arranger, as the case may be, shall
share such reimbursement on a ratable basis with each Lender making any such
payment.
Section 11.8. Successor Administrative Agent.
The Administrative Agent may resign at any time as Administrative Agent
under the Loan Documents by giving written notice thereof to the Lenders and the
Borrower. In the event of a material breach of its duties hereunder, the
Administrative Agent may be removed as Administrative Agent under the Loan
Documents at any time by the Requisite Lenders upon 30-day's prior notice. Upon
any such resignation or removal, the Requisite Lenders shall have the right to
appoint a successor Administrative Agent which appointment shall, provided no
Default or Event of Default shall have occurred and be continuing, be subject to
the Borrower's approval, which approval shall not be unreasonably withheld or
delayed (except that Borrower shall, in all events, be deemed to have approved
each Lender as a successor Administrative Agent). If no successor Administrative
Agent shall have been so appointed by the Requisite Lenders, and shall have
accepted such appointment, within 30 days after the resigning Administrative
Agent's giving of notice of resignation or the Requisite Lenders' removal of the
resigning Administrative Agent, then the resigning or removed Administrative
Agent may, on behalf of the Lenders, appoint a successor Administrative Agent,
which shall be a Lender, if any Lender shall be willing to serve, and otherwise
shall be a commercial bank having total combined assets of at least
$50,000,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the resigning Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
the Loan Documents. After any resigning Administrative Agent's resignation or
removal hereunder as Administrative Agent, the provisions of this Article XI.
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under the Loan Documents.
Section 11.9. Titled Parties Have No Duties.
Neither the Arrangers nor the Syndication Agent (each in such capacity,
a "Titled Party") assumes any responsibility or obligation hereunder, including,
without limitation, for servicing, enforcement or collection of any of the
Loans, nor any duties as an agent hereunder for Lenders. The titles of "Joint
Lead Arranger", "Book Manager" and "Syndication Agent" are solely honorific and
imply no fiduciary responsibility on the part of the Titled Parties to the
Administrative Agent, the Borrower or any Lender and the use of such titles does
not impose on the Titled Parties any duties or obligations greater than those of
any other Lender.
Article XII. Miscellaneous
Section 12.1. Notices.
Unless otherwise provided herein, communications provided for hereunder
shall be in writing and shall be mailed, telecopied or delivered as follows:
If to the Borrower:
CNL APF Partners, LP
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
If to the Administrative Agent:
First Union National Bank
First Union Capital Markets Group
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxx Xxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
If to a Lender:
To such Lender's address or telecopy number, as applicable,
set forth on its signature page hereto or in the applicable
Assignment and Acceptance Agreement.
or, as to each party at such other address as shall be designated by such party
in a written notice to the other parties delivered in compliance with this
Section. All such notices and other communications shall be effective (i) if
mailed, when received; (ii) if telecopied, when transmitted; or (iii) if hand
delivered, when delivered. Notwithstanding the immediately preceding sentence,
all notices or communications to the Administrative Agent or any Lender under
Article II. shall be effective only when actually received. Neither the
Administrative Agent nor any Lender shall incur any liability to the Borrower
(nor shall the Administrative Agent incur any liability to the Lenders) for
acting upon any telephonic notice referred to in this Agreement which the
Administrative Agent or such Lender, as the case may be, believes in good faith
to have been given by a Person authorized to deliver such notice or for
otherwise acting in good faith under hereunder.
Section 12.2. Expenses.
The Borrower agrees (a) to pay or reimburse each of the Administrative
Agent, the Arrangers and the Syndication Agent for all of their reasonable
out-of-pocket costs and expenses incurred in connection with the preparation,
negotiation and execution of, and any amendment, supplement or modification to,
any of the Loan Documents (including without limitation, reasonable due
diligence expenses, and travel expenses relating to closing), and the
consummation of the transactions contemplated thereby, including the reasonable
fees and disbursements of counsel to the Administrative Agent, (b) to pay or
reimburse the Administrative Agent and the Lenders for all their costs and
expenses incurred in connection with the enforcement or preservation of any
rights under the Loan Documents, including the reasonable fees and disbursements
of their respective counsel (including the allocated fees and expenses of
in-house counsel) and any payments in indemnification or otherwise payable by
the Lenders to the Administrative Agent pursuant to the Loan Documents, (c) to
pay, indemnify and hold the Administrative Agent and the Lenders harmless from
any and all recording and filing fees and any and all liabilities with respect
to, or resulting from any failure to pay or delay in paying, documentary, stamp,
excise and other similar taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of any of the Loan
Documents, or consummation of any amendment, supplement or modification of, or
any waiver or consent under or in respect of, any Loan Document and (d) to the
extent not already covered by any of the preceding subsections, to pay or
reimburse the Administrative Agent and the Lenders for all their costs and
expenses incurred in connection with any bankruptcy or other proceeding of the
type described in Sections 10.1.(e) or 10.1.(f), including the reasonable fees
and disbursements of counsel to the Administrative Agent and any Lender, whether
such fees and expenses are incurred prior to, during or after the commencement
of such proceeding or the confirmation or conclusion of any such proceeding.
Section 12.3. Setoff.
Subject to Section 3.3. and in addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
the Administrative Agent, each Lender and each Participant is hereby authorized
by the Borrower, at any time or from time to time during the continuance of an
Event of Default, without prior notice to the Borrower or to any other Person,
any such prior notice being hereby expressly waived, but subject to receipt of
the Administrative Agent's prior written consent, to set-off and to appropriate
and to apply any and all deposits (general or special, including, but not
limited to, indebtedness evidenced by certificates of deposit, whether matured
or unmatured) and any other indebtedness at any time held or owing by the
Administrative Agent, such Lender or any affiliate of the Administrative Agent
or such Lender, to or for the credit or the account of the Borrower against and
on account of any of the Obligations, irrespective of whether or not any or all
of the Loans and all other Obligations have been declared to be, or have
otherwise become, due and payable as permitted by Section 10.2., and although
such obligations shall be contingent or unmatured. If any Lender or Participant
shall exercise the right of set-off referred to above, such Lender or
Participant shall promptly notify the Borrower, all other Lenders and the
Administrative Agent thereof; provided, however, failure by such Lender or
Participant to give such notice shall not affect the validity of such set-off.
Section 12.4. Waiver of Jury Trial; Arbitration.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY
BETWEEN OR AMONG THE BORROWER, THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS
WOULD BE BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT
IN DELAY AND EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE LENDERS, THE ADMINISTRATIVE AGENT AND THE BORROWER
HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY
KIND OR NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY
OR AGAINST ANY PARTY HERETO ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER
BETWEEN OR AMONG THE BORROWER, THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS OF
ANY KIND OR NATURE.
(b) EACH OF THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER
HEREBY AGREES THAT ANY FEDERAL DISTRICT COURT IN NORTH CAROLINA OR, AT THE
OPTION OF THE ADMINISTRATIVE AGENT, ANY STATE COURT LOCATED IN CHARLOTTE, NORTH
CAROLINA, SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES
BETWEEN OR AMONG THE BORROWER, THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS,
PERTAINING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, THE LOANS, THE NOTES OR ANY
OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. THE BORROWER
AND EACH OF THE LENDERS EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS. EACH PARTY
FURTHER WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR
CLAIM THE SAME. THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE
DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY THE ADMINISTRATIVE AGENT OR ANY
LENDER OR THE ENFORCEMENT BY THE ADMINISTRATIVE AGENT OR ANY LENDER OF ANY
JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.
(c) UPON demand of any party hereto, whether made before or after
institution of any judicial proceeding, any claim or controversy arising out of,
or relating to this Agreement or any other Loan Documents ("Disputes") between
or among any such parties shall be resolved by binding arbitration conducted
under and governed by the Commercial Financial Disputes Arbitration Rules (the
"Arbitration Rules") of the American Arbitration Association (the "AAA") and the
Federal Arbitration Act. Disputes may include, without limitation, tort claims,
counterclaims, disputes as to whether a matter is subject to arbitration, claims
brought as class actions, and claims arising from Loan Documents executed in the
future. A judgment upon the award may be entered in any court having
jurisdiction. Notwithstanding the foregoing, this arbitration provision does not
apply to Disputes under or related to HEDGING Agreements to which any Lender is
a party. All arbitration hearings shall be conducted in Charlotte, North
Carolina. A hearing shall begin within 90 days of demand for arbitration and all
hearings shall BE concluded within 120 days of demand for arbitration. These
time limitations may not be extended unless a party shows cause for extension
and then no more than a total extension of 60 days. The expedited procedures set
forth in Rule 51 et. seq. of the Arbitration Rules shall be applicable to claims
of less than $1,000,000. Arbitrators shall be licensed attorneys selected from
the Commercial Financial Dispute Arbitration Panel of the AAA. The parties do
not waive any Applicable Laws except as provided herein. Notwithstanding the
preceding binding arbitration provisions, the parties agree to preserve, without
diminution, the following remedies that the Administrative Agent or the Lenders
may exercise before or after an arbitration proceeding is brought. Subject to
the other terms hereof, the Administrative Agent and the Lenders shall have the
right to proceed in any court of proper jurisdiction or by self-help to exercise
or prosecute the following remedies, as applicable: (i) all rights to foreclose
against any real or personal property or other security by exercising a power of
sale or under Applicable Law by judicial foreclosure including a proceeding to
confirm the sale; (ii) all rights of self-help including peaceful occupation of
real property and collection of rents, set-off, and peaceful possession of
personal property; (iii) obtaining provisional or ancillary remedies including
injunctive relief, sequestration, garnishment, attachment, appointment of
receiver and filing an involuntary bankruptcy proceeding; and (iv) when
applicable, a judgment by confession of judgment. Any claim or controversy with
regard to parties' entitlement to such remedies is a Dispute. The parties hereto
acknowledge that by agreeing to binding arbitration they have irrevocably waived
any right they may have to a jury trial with regard to a Dispute.
(d) THE PROVISION OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY
WITH THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL
CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS AND ALL OTHER
AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS AND THE TERMINATION
OF THIS AGREEMENT.
Section 12.5. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
except that the Borrower may not assign or otherwise transfer any of its rights
under this Agreement without the prior written consent of all Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or for the
account of, any of its branch offices or the office of an affiliate of such
Lender except to the extent such transfer would result in increased costs to the
Borrower.
(c) Any Lender may at any time grant to one or more banks or other
financial institutions (each a "Participant") participating interests in its
Commitment or the Obligations owing to such Lender; provided, however, (i) any
such participating interest must be for a constant and not a varying percentage
interest, (ii) no Lender may grant a participating interest in its Commitment,
or if the Commitments have been terminated, the aggregate outstanding principal
balance of Notes held by it, in an amount less than $10,000,000 and (iii) after
giving effect to any such participation by a Lender, the amount of its
Commitment, or if the Commitments have been terminated, the aggregate
outstanding principal balance of Notes held by it, in which it has not granted
any participating interests must be equal to $10,000,000 and integral multiples
of $5,000,000 in excess thereof. Except as otherwise provided in Section 12.3.,
no Participant shall have any rights or benefits under this Agreement or any
other Loan Document. In the event of any such grant by a Lender of a
participating interest to a Participant, such Lender shall remain responsible
for the performance of its obligations hereunder, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement.
Any agreement pursuant to which any Lender may grant such a participating
interest shall provide that such Lender shall retain the sole right and
responsibility to enforce the obligations of the Borrower hereunder including,
without limitation, the right to approve any amendment, modification or waiver
of any provision of this Agreement; provided, however, such Lender may agree
with the Participant that it will not, without the consent of the Participant,
agree to (i) increase, or extend the term or extend the time or waive any
requirement for the reduction or termination of, such Lender's Commitment, (ii)
extend the date fixed for the payment of principal of or interest on the Loans
or portions thereof owing to such Lender, (iii) reduce the amount of any such
payment of principal, or (iv) reduce the rate at which interest is payable
thereon. An assignment or other transfer which is not permitted by subsection
(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.
The selling Lender shall notify the Administrative Agent and the Borrower of the
sale of any participation hereunder and the terms thereof.
(d) Any Lender may with the prior written consent of the Administrative
Agent, the Arrangers and the Borrower (which consent, in each case, shall not be
unreasonably withheld) assign to one or more Eligible Assignees (each an
"Assignee") all or a portion of its Commitment and its other rights and
obligations under this Agreement and the Notes; provided, however, (i) no such
consent by the Borrower shall be required (x) in the case of any assignment to
another Lender or any affiliate of such Lender or another Lender or (y) if an
Event of Default or Default shall then be existing; (ii) any partial assignment
shall be in an amount at least equal to $10,000,000 and after giving effect to
such assignment the assigning Lender retains a Commitment, or if the Commitments
have been terminated, holds Notes having an aggregate outstanding principal
balance, of $10,000,000 and integral multiples of $5,000,000 in excess thereof;
and (iii) each such assignment shall be effected by means of an Assignment and
Acceptance Agreement. Upon execution and delivery of such instrument and payment
by such Assignee to such transferor Lender of an amount equal to the purchase
price agreed between such transferor Lender and such Assignee, such Assignee
shall be deemed to be a Lender party to this Agreement as of the effective date
of the Assignment and Acceptance Agreement and shall have all the rights and
obligations of a Lender with a Commitment as set forth in such Assignment and
Acceptance Agreement, and the transferor Lender shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection, the transferor Lender, the Administrative Agent and
the Borrower shall make appropriate arrangements so that new Notes are issued to
the Assignee and such transferor Lender, as appropriate. In connection with any
such assignment, the transferor Lender (excluding the Administrative Agent or
either Arranger in their respective capacities as Lenders) shall pay to the
Administrative Agent an administrative fee for processing such assignment in the
amount of $2,500.
(e) The Administrative Agent shall maintain at the Principal Office a
copy of each Assignment and Acceptance Agreement delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders and
the Commitment of each Lender from time to time (the "Register"). The
Administrative Agent shall give each Lender and the Borrower notice of the
assignment by any Lender of its rights as contemplated by this Section. The
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register and copies of each Assignment and Acceptance Agreement
shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice to the
Administrative Agent. Upon its receipt of an Assignment and Acceptance Agreement
executed by an assigning Lender, together with each Note subject to such
assignment, the Administrative Agent shall, if such Assignment and Acceptance
Agreement has been completed and if the Administrative Agent receives the
processing and recording fee described in subsection (d) above, (i) accept such
Assignment and Acceptance Agreement, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Borrower.
(f) In addition to the assignments and participations permitted under
the foregoing provisions of this Section, any Lender may assign and pledge all
or any portion of its Loans and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular issued
by such Federal Reserve Bank, and such Loans and Notes shall be fully
transferable as provided therein. No such assignment shall release the assigning
Lender from its obligations hereunder.
(g) A Lender may furnish any information concerning the Borrower or any
Subsidiary in the possession of such Lender from time to time to Assignees and
Participants (including prospective Assignees and Participants) subject to
compliance with Section 12.8.
(h) Anything in this Section to the contrary notwithstanding, no Lender
may assign or participate any interest in any Loan held by it hereunder to the
Borrower, any Subsidiary or any of their respective Affiliates.
(i) Each Lender agrees that, without the prior written consent of the
Borrower and the Administrative Agent, it will not make any assignment hereunder
in any manner or under any circumstances that would require registration or
qualification of, or filings in respect of, any Loan or Note under the
Securities Act or any other securities laws United States of America or of any
other jurisdiction.
Section 12.6. Amendments.
Except as otherwise expressly provided in this Agreement, any consent
or approval required or permitted by this Agreement or in any Loan Document to
be given by the Lenders may be given, and any term of this Agreement or of any
other Loan Document may be amended, and the performance or observance by the
Borrower or any other Loan Party of any terms of this Agreement or such other
Loan Document or the continuance of any Default or Event of Default may be
waived (either generally or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of the Requisite Lenders
(and, in the case of an amendment to any Loan Document, the written consent of
each Loan Party that is a party to such Loan Document). Notwithstanding the
foregoing, no amendment, waiver or consent shall, unless in writing, and signed
by all of the Lenders (or the Administrative Agent at the written direction of
all of the Lenders), do any of the following: (i) increase the Commitments of
the Lenders (except as permitted under Section 2.11.) or subject the Lenders to
any additional obligations; (ii) reduce the principal of, or interest rates that
have accrued or that will be charged on the outstanding principal amount of, any
Loans or other Obligations; (iii) reduce the amount of any Fees payable
hereunder; (iv) postpone any date fixed for any payment of any principal of,
interest on, or Fees with respect to, any Loans or any other Obligations; (v)
change the Commitment Percentages; (vi) amend this Section or amend the
definitions of the terms used in this Agreement or the other Loan Documents
insofar as such definitions affect the substance of this Section; (vii) release
any Guarantor from its obligations under the Guaranty and (viii) modify the
definition of the term "Requisite Lenders" or modify in any other manner the
number or percentage of the Lenders required to make any determinations or waive
any rights hereunder or to modify any provision hereof. In addition, the
definition of Unencumbered Asset Value (and the definitions used in such
definition and the percentages and rates used in the calculation thereof) may
not be amended without the written consent of all of the Lenders. Further, no
amendment, waiver or consent unless in writing and signed by the Administrative
Agent, in addition to the Lenders required hereinabove to take such action,
shall affect the rights or duties of the Administrative Agent under this
Agreement or any of the other Loan Documents. No waiver shall extend to or
affect any obligation not expressly waived or impair any right consequent
thereon and any amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose set forth therein. No course of
dealing or delay or omission on the part of the Administrative Agent or any
Lender in exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. Except as otherwise explicitly provided for herein or in
any other Loan Document, no notice to or demand upon the Borrower or any other
Loan Party shall entitle the Borrower or any other Loan Party to other or
further notice or demand in similar or other circumstances.
Section 12.7. Nonliability of Administrative Agent and Lenders.
The relationship between the Borrower, on the one hand, and the Lenders
and the Administrative Agent, on the other hand, shall be solely that of
borrower and lender. Neither the Administrative Agent nor any Lender shall have
any fiduciary responsibilities to the Borrower and no provision in this
Agreement or in any of the other Loan Documents, and no course of dealing
between or among any of the parties hereto, shall be deemed to create any
fiduciary duty owing by the Administrative Agent or any other Lender to any
other Lender, the Parent, the Borrower or any other Subsidiary. Neither the
Administrative Agent nor any Lender undertakes any responsibility to the
Borrower or any other Loan Party to review or inform the Borrower or any other
Loan Party of any matter in connection with any phase of the Borrower's business
or operations.
Section 12.8. Confidentiality.
Except as otherwise provided by Applicable Law, the Administrative
Agent and each Lender shall utilize all non-public information obtained pursuant
to the requirements of this Agreement which has been identified as confidential
or proprietary by the Borrower in accordance with the customary procedure of the
Administrative Agent or such Lender, as the case may be, for handling
confidential information of this nature and in accordance with safe and sound
banking practices but in any event may make disclosure: (a) to any of their
respective affiliates (provided they shall agree to keep such information
confidential in accordance with the terms of this Section); (b) as reasonably
required by any bona fide Assignee, Participant or other transferee in
connection with the contemplated transfer of any Commitment or participations
therein as permitted hereunder (provided they shall agree to keep such
information confidential in accordance with the terms of this Section); (c) as
required by any Governmental Authority or representative thereof or pursuant to
legal process; (d) to the Administrative Agent's or such Lender's independent
auditors and other professional advisors (provided they shall be notified of the
confidential nature of the information); (e) after the happening and during the
continuance of an Event of Default, to any other Person, in connection with the
exercise by the Administrative Agent or the Lenders of rights hereunder or under
any of the other Loan Documents and (f) as necessary or appropriate in any
Lender's reasonable judgment.
Section 12.9. Indemnification.
(a) The Borrower shall and hereby agrees to indemnify, defend and hold
harmless the Administrative Agent, the Arrangers, each affiliate of the
Administrative Agent or either Arranger, and each of the Lenders and their
respective directors, officers, shareholders, agents, employees and counsel
(each referred to herein as an "Indemnified Party") from and against any and all
losses, costs, claims, damages, liabilities, deficiencies, judgments or expenses
of every kind and nature (including, without limitation, amounts paid in
settlement, court costs and the fees and disbursements of counsel incurred in
connection with any litigation, investigation, claim or proceeding or any advice
rendered in connection therewith) (the foregoing items referred to herein as
"Claims and Expenses") incurred by an Indemnified Party in connection with,
arising out of, or by reason of, any suit, cause of action, claim, arbitration,
investigation or settlement, consent decree or other proceeding (the foregoing
referred to herein as an "Indemnity Proceeding") which is in any way related
directly or indirectly to: (i) this Agreement or any other Loan Document or the
transactions contemplated thereby; (ii) the making of any Loans and the issuance
of any Letters of Credit hereunder; (iii) any actual or proposed use by the
Borrower of the proceeds of the Loans or the Letters of Credit; (iv) the
Administrative Agent's, either Arranger's or any Lender's entering into this
Agreement; (v) the fact that the Administrative Agent and the Lenders have
established the credit facility evidenced hereby in favor of the Borrower; (vi)
the fact that the Administrative Agent and the Lenders are creditors of the
Borrower and have or are alleged to have information regarding the financial
condition, strategic plans or business operations of the Parent, the Borrower
and the other Subsidiaries; (vii) the fact that the Administrative Agent and the
Lenders are material creditors of the Borrower and are alleged to influence
directly or indirectly the business decisions or affairs of the Parent, the
Borrower and the other Subsidiaries or their financial condition; (viii) the
exercise of any right or remedy the Administrative Agent, the Arrangers or the
Lenders may have under this Agreement or the other Loan Documents; (ix) any
violation or non-compliance by the Parent, the Borrower or any other Subsidiary
of any Applicable Law (including any Environmental Law) including, but not
limited to, any Indemnity Proceeding commenced by (A) the Internal Revenue
Service or state taxing authority or (B) any Governmental Authority or other
Person under any Environmental Law, including any Indemnity Proceeding commenced
by a Governmental Authority or other Person seeking remedial or other action to
cause the Parent, the Borrower or the other Subsidiaries (or its respective
properties) (or the Administrative Agent and/or the Lenders as successors to any
such Loan Party) to be in compliance with such Environmental Laws; provided,
however, that the Borrower shall not be obligated to indemnify any Indemnified
Party for any Claims and Expenses in connection with, arising out of, or by
reason of any acts or omissions of such Indemnified Party in connection with
matters described in the immediately preceding clause (i) or (viii) to the
extent such acts or omissions have been found in a final non-appealable judgment
by a court of competent jurisdiction to constitute gross negligence or willful
misconduct.
(b) The Borrower's indemnification obligations under this Section shall
apply to all Indemnity Proceedings arising out of, or related to, the foregoing
whether or not an Indemnified Party is a named party in such Indemnity
Proceeding. In this connection, this indemnification shall cover all reasonable
costs and expenses of any Indemnified Party in connection with any deposition of
any Indemnified Party or compliance with any subpoena (including any subpoena
requesting the production of documents). This indemnification shall, among other
things, apply to any Indemnity Proceeding commenced by other creditors of the
Parent, the Borrower or any other Subsidiary, any shareholder of the Parent, the
Borrower or any other Subsidiary (whether such shareholder(s) are prosecuting
such Indemnity Proceeding in their individual capacity or derivatively on behalf
of the Borrower or the Parent), any account debtor of the Parent, the Borrower
or any other Subsidiary or by any Governmental Authority. This indemnification
shall apply to any Indemnity Proceeding arising during the pendency of any
bankruptcy proceeding filed by or against the Parent, the Borrower and/or any
other Subsidiary.
(c) All out-of-pocket fees and expenses of, and all amounts paid to
third-persons by, an Indemnified Party shall be advanced by the Borrower at the
request of such Indemnified Party notwithstanding any claim or assertion by the
Borrower that such Indemnified Party is not entitled to indemnification
hereunder upon receipt of an undertaking by such Indemnified Party that such
Indemnified Party will reimburse the Borrower if it is actually and finally
determined by a court of competent jurisdiction that such Indemnified Party is
not so entitled to indemnification hereunder.
(d) An Indemnified Party may conduct its own investigation and defense
of, and may formulate its own strategy with respect to, any Indemnified
Proceeding covered by this Section and, as provided above, all costs and
expenses incurred by the Indemnified Party shall be reimbursed by the Borrower.
No action taken by legal counsel chosen by an Indemnified Party in investigating
or defending against any such Indemnified Proceeding shall vitiate or in any way
impair the obligations and duties of the Borrower hereunder to indemnify and
hold harmless each such Indemnified Party; provided, however, that (i) if the
Borrower is required to indemnify an Indemnified Party pursuant hereto and (ii)
the Borrower has provided evidence reasonably satisfactory to such Indemnified
Party that the Borrower has the financial wherewithal to reimburse such
Indemnified Party for any amount paid by such Indemnified Party with respect to
such Indemnified Proceeding, such Indemnified Party shall not settle or
compromise any such Indemnified Proceeding without the prior written consent of
the Borrower (which consent shall not be unreasonably withheld or delayed).
(e) If and to the extent that the obligations of the Borrower hereunder
are unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under Applicable Law. The Borrower's obligations hereunder shall
survive any termination of this Agreement and the other Loan Documents and the
payment in full of the Obligations, and are in addition to, and not in
substitution of, any other of their obligations set forth in this Agreement or
any other Loan Document to which it is a party.
Section 12.10. Termination; Survival.
At such time as (a) all of the Commitments have been terminated, (b)
none of the Lenders is obligated any longer under this Agreement to make any
Loans, (c) the Administrative Agent is no longer obligated under this Agreement
to issue any Letters of Credit, (d) no Letters of Credit remain outstanding, and
(e) all Obligations (other than obligations which survive as provided in the
following sentence) have been paid and satisfied in full, this Agreement shall
terminate. Notwithstanding any termination of this Agreement, or of the other
Loan Documents, the indemnities to which the Administrative Agent, the Arrangers
and the Lenders are entitled under the provisions of Sections 11.7., 12.2. and
12.9. and any other provision of this Agreement and the other Loan Documents,
and the waivers of jury trial, agreement regarding arbitration and submission to
jurisdictions contained in Section 12.4., shall continue in full force and
effect and shall protect the Administrative Agent, the Arrangers and the Lenders
against events arising after such termination as well as before.
Section 12.11. Severability of Provisions.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating the
remainder of such provision or the remaining provisions or affecting the
validity or enforceability of such provision in any other jurisdiction.
Section 12.12. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NORTH CAROLINA APPLICABLE TO CONTRACTS EXECUTED, AND TO
BE FULLY PERFORMED, IN SUCH STATE.
Section 12.13. Counterparts.
This Agreement and any amendments, waivers, consents or supplements may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all of which counterparts together shall constitute but
one and the same instrument.
Section 12.14. Limitation of Liability.
To the maximum extent permitted by Applicable Law, none of the
Administrative Agent, either Arranger, any Lender, or any affiliate, officer,
director, employee, attorney, or agent of the Administrative Agent, either
Arranger or any Lender, shall have any liability with respect to, and each of
the Parent and the Borrower hereby waives, releases, and agrees not to xxx any
of them upon, any claim for any special, indirect, incidental, or consequential
damages suffered or incurred by the Borrower or the Parent in connection with,
arising out of, or in any way related to, this Agreement or any of the other
Loan Documents, or any of the transactions contemplated by this Agreement or any
of the other Loan Documents. Each of the Parent and the Borrower hereby waives,
releases, and agrees not to xxx the Administrative Agent, either Arranger or any
Lender or any of their respective affiliates, officers, directors, employees,
attorneys, or agents for punitive damages in respect of any claim in connection
with, arising out of, or in any way related to, this Agreement or any of the
other Loan Documents, or any of the transactions contemplated by this Agreement
or financed hereby.
Section 12.15. Obligations with Respect to Loan Parties.
The obligations of the Parent or the Borrower to direct or prohibit the
taking of certain actions by the any other Loan Party as specified herein shall
be absolute and not subject to any defense to the effect that the Parent or the
Borrower, as the case may be, does not control such Loan Party.
Section 12.16. Entire Agreement.
This Agreement, the Notes, and the other Loan Documents referred to
herein embody the final, entire agreement among the parties hereto and supersede
any and all prior commitments, agreements, representations, and understandings,
whether written or oral, relating to the subject matter hereof and may not be
contradicted or varied by evidence of prior, contemporaneous, or subsequent oral
agreements or discussions of the parties hereto.
Section 12.17. Construction.
The Administrative Agent, the Parent, the Borrower and each Lender
acknowledge that each of them has had the benefit of legal counsel of its own
choice and has been afforded an opportunity to review this Agreement and the
other Loan Documents with its legal counsel and that this Agreement and the
other Loan Documents shall be construed as if jointly drafted by the
Administrative Agent, the Borrower and each Lender.
Section 12.18. Limitation of Liability of Officers, Directors, Etc.
THE ADMINISTRATIVE Agent and THE Lenders shall look solely to THE
Borrower AND THE GUARANTORS for the enforcement of any claim against THE
Borrower and accordingly NONE OF THE officers, DIRECTORS, EMPLOYEES or
shareholders of THE Borrower OR THE PARENT shall have any personal liability for
obligations entered into by or on behalf of THE Borrower EXCEPT AS ANY SUCH
PERSON MAY AGREE OTHERWISE IN WRITING.
[Signatures on Following Pages]
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be executed by their authorized officers all as of the day and year
first above written.
Borrower:
CNL APF Partners, LP
By: CNL APF GP Corp. its sole general partner
By:_____________________________________________
Name:______________________________________
Title:_____________________________________
PARENT:
CNL AMERICAN PROPERTIES FUND, INC.
By:__________________________________________________
Name:___________________________________________
Title:__________________________________________
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement dated as of
March 22, 1999 with CNL APF Partners, LP]
First Union National Bank, as Administrative Agent and Lender
By:______________________________________________
Name:_______________________________________
Title:______________________________________
Commitment Amount:
$75,000,000
Lending Office (all Types of Loans):
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Xxx Xxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
[Signatures Continued on Following Page]
[Signature Page to Credit Agreement dated as of
March 22, 1999 with CNL APF Partners, LP]
NATIONSBANK, N.A.
By:______________________________________________
Name:_______________________________________
Title:______________________________________
Commitment Amount:
$75,000,000
Lending Office (all Types of Loans):
NationsBank, N.A.
000 Xxxxxxxxx Xxxxxx, X.X., 0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxx Xxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
