EXHIBIT 10.1
EXECUTION COPY
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
April 6, 1998
among
SC REALTY INCORPORATED,
as Borrower
THE FINANCIAL INSTITUTIONS PARTY HERETO AND THEIR ASSIGNEES UNDER SECTION 10.8.
HEREOF,
as Lenders
and
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Agent
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS........................................................................... 1
SECTION 1.1. Definitions.................................................................... 1
SECTION 1.2. Accounting Terms and Determinations; Time References........................... 17
SECTION 1.3. Subsidiaries................................................................... 17
SECTION 1.4. Interpretation Generally....................................................... 17
ARTICLE II. CREDIT FACILITY...................................................................... 18
SECTION 2.1. Making of Revolving Loans...................................................... 18
SECTION 2.2. Requests for Revolving Loans................................................... 18
SECTION 2.3. Funding........................................................................ 18
SECTION 2.4. Continuation................................................................... 19
SECTION 2.5. Conversion..................................................................... 19
SECTION 2.6. Interest Rate.................................................................. 20
SECTION 2.7. Number of Interest Periods..................................................... 20
SECTION 2.8. Repayment of Loans............................................................. 20
SECTION 2.9. Voluntary Reductions of the Commitments........................................ 22
SECTION 2.10. Extension of Revolving Credit Termination Date................................. 22
SECTION 2.11. Term Loan Conversion........................................................... 23
SECTION 2.12. Release of Collateral.......................................................... 24
SECTION 2.13. Notes.......................................................................... 24
SECTION 2.14. Swingline Loans................................................................ 24
SECTION 2.15. Amount Limitations............................................................. 26
ARTICLE III. GENERAL LOAN PROVISIONS............................................................. 26
SECTION 3.1. Fees........................................................................... 26
SECTION 3.2. Computation of Interest and Fees............................................... 27
SECTION 3.3. Pro Rata Treatment............................................................. 27
SECTION 3.4. Sharing of Payments, Etc....................................................... 28
SECTION 3.5. Defaulting Lenders............................................................. 29
SECTION 3.6. Purchase of Defaulting Lender's Pro Rata Share................................. 29
SECTION 3.7. Usury.......................................................................... 30
SECTION 3.8. Agreement Regarding Interest and Charges....................................... 30
SECTION 3.9. Statements of Account.......................................................... 31
SECTION 3.10. Agent's Reliance............................................................... 31
SECTION 3.11. Unscheduled Borrowing Base Calculations........................................ 31
SECTION 3.12. Foreign Lenders................................................................ 31
ARTICLE IV. YIELD PROTECTION, ETC................................................................. 32
SECTION 4.1. Additional Costs; Capital Adequacy............................................. 32
SECTION 4.2. Suspension of LIBOR Loans...................................................... 33
SECTION 4.3. Illegality..................................................................... 33
SECTION 4.4. Compensation................................................................... 34
SECTION 4.5. Affected Lenders............................................................... 34
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SECTION 4.6. Treatment of Affected Loans.................................................... 34
SECTION 4.7. Change of Lending Office....................................................... 35
ARTICLE V. CONDITIONS............................................................................ 35
SECTION 5.1. Initial Conditions to Loans.................................................... 35
SECTION 5.2. Conditions to All Loans........................................................ 37
SECTION 5.3. Conditions to Conversion to Term Loans......................................... 38
SECTION 5.4. Conditions as Covenants........................................................ 38
ARTICLE VI. REPRESENTATIONS AND WARRANTIES....................................................... 39
SECTION 6.1. Existence and Power............................................................ 39
SECTION 6.2. Ownership Structure............................................................ 39
SECTION 6.3. Authorization of Agreement, Notes, Loan Documents and Borrowings............... 39
SECTION 6.4. Compliance of Agreement, Notes, Loan Documents and Borrowing with Laws, etc.... 39
SECTION 6.5. Compliance with Law; Governmental Approvals.................................... 40
SECTION 6.6. Indebtedness and Guarantees.................................................... 40
SECTION 6.7. Transactions with Affiliates................................................... 40
SECTION 6.8. Absence of Defaults............................................................ 40
SECTION 6.9. Financial Information.......................................................... 40
SECTION 6.10. Litigation..................................................................... 40
SECTION 6.11. ERISA.......................................................................... 41
SECTION 6.12. Environmental Matters.......................................................... 41
SECTION 6.13. Taxes.......................................................................... 41
SECTION 6.14. Other Related Companies........................................................ 41
SECTION 6.15. Not an Investment Company...................................................... 42
SECTION 6.16. Full Disclosure................................................................ 42
SECTION 6.17. Insurance...................................................................... 42
SECTION 6.18. Not Plan Assets................................................................ 42
SECTION 6.19. Sole Shareholder............................................................... 42
SECTION 6.20. Liens.......................................................................... 42
SECTION 6.21. Pledged Shares................................................................. 43
SECTION 6.22. Assets......................................................................... 43
SECTION 6.23. Business Purposes and Objects.................................................. 43
SECTION 6.24. Separateness Representations................................................... 43
SECTION 6.25. Solvency....................................................................... 44
SECTION 6.26. Year 2000 Review............................................................... 44
ARTICLE VII. COVENANTS........................................................................... 44
SECTION 7.1. Information.................................................................... 44
SECTION 7.2. Payment of Obligations......................................................... 46
SECTION 7.3. Maintenance of Property; Insurance............................................. 47
SECTION 7.4. Conduct of Business and Maintenance of Existence............................... 47
SECTION 7.5. Compliance with Laws........................................................... 47
SECTION 7.6. Inspection of Property, Books and Records...................................... 48
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SECTION 7.7. Accounts Payable; Indebtedness................................................. 48
SECTION 7.8. Consolidations, Mergers and Sales of Assets.................................... 48
SECTION 7.9. Use of Proceeds................................................................ 48
SECTION 7.10. ERISA.......................................................................... 49
SECTION 7.11. Negative Pledge................................................................ 49
SECTION 7.12. Restricted Payments; Agreements with Affiliates................................ 49
SECTION 7.13. Loans to Other Persons......................................................... 49
SECTION 7.14. ERISA Exemptions............................................................... 50
SECTION 7.15. Separateness Covenant.......................................................... 50
SECTION 7.16. Independent Director........................................................... 51
SECTION 7.17. Guarantor Note................................................................. 51
SECTION 7.18. Compliance with and Amendment of Charter or Bylaws............................. 51
SECTION 7.19. Additional Assets.............................................................. 51
ARTICLE VIII. DEFAULTS........................................................................... 51
SECTION 8.1. Events of Default.............................................................. 51
SECTION 8.2. Remedies....................................................................... 54
SECTION 8.3. Allocation of Proceeds......................................................... 54
SECTION 8.4. Recision of Acceleration by Supermajority Lenders.............................. 55
ARTICLE IX. THE AGENT............................................................................ 55
SECTION 9.1. Appointment and Authorization.................................................. 55
SECTION 9.2. Agent and Affiliates........................................................... 56
SECTION 9.3. Collateral Matters............................................................. 56
SECTION 9.4. Approvals of Lenders........................................................... 57
SECTION 9.5. Consultation with Experts...................................................... 58
SECTION 9.6. Liability of Agent............................................................. 58
SECTION 9.7. Indemnification of Agent....................................................... 58
SECTION 9.8. Credit Decision................................................................ 59
SECTION 9.9. Successor Agent................................................................ 59
ARTICLE X. MISCELLANEOUS......................................................................... 60
SECTION 10.1. Notices....................................................................... 60
SECTION 10.2. No Waivers.................................................................... 61
SECTION 10.3. Expenses...................................................................... 61
SECTION 10.4. Stamp, Intangible and Recording Taxes......................................... 62
SECTION 10.5. Indemnification............................................................... 62
SECTION 10.6. Setoff........................................................................ 63
SECTION 10.7. Amendments.................................................................... 63
SECTION 10.8. Successors and Assigns........................................................ 64
SECTION 10.9. Governing Law................................................................. 66
SECTION 10.10. Litigation.................................................................... 66
SECTION 10.11. Counterparts; Integration..................................................... 67
SECTION 10.12. Notice of Final Agreement..................................................... 67
SECTION 10.13. Invalid Provisions............................................................ 67
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SECTION 10.14. NO NOVATION; EFFECT OF AMENDMENT AND RESTATEMENT............................. 67
Exhibit A Form of Assignment and Acceptance Agreement
Exhibit B Form of Borrower Pledge Agreement
Exhibit C Form of Borrowing Base Certificate
Exhibit D Form of Guaranty
Exhibit E Form of Notice of Borrowing
Exhibit F Form of Notice of Continuation
Exhibit G Form of Notice of Conversion
Exhibit H Form of Notice of Swingline Borrowing
Exhibit I Form of Pricing Certificate
Exhibit J Form of Qualifying Issuer Certificate
Exhibit K Form of Revolving Note
Exhibit L Form of Swingline Note
Exhibit M Form of Opinion of Borrower and Guarantor Counsel
Exhibit N Form of Opinion of Georgia Local Counsel
Exhibit O Form of Collateral Assignment of Registration Rights
Exhibit P Form of Guarantor Pledge Agreement
Schedule 6.2. Ownership Structure
Schedule 6.17. Insurance
Schedule 6.21.(A) Acquisitions of Security Capital Industrial Trust Shares
Schedule 6.21.(B) Acquisitions of Security Capital Atlantic Incorporated Shares
Schedule 6.21.(C) Acquisitions of Security Capital Pacific Trust Shares
Schedule 6.21.(D) Acquisitions of Security Capital U.S. Realty Shares
Schedule 6.21.(E) Acquisitions of Homestead Village Incorporated Shares
Schedule 6.22. Assets
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement") dated
as of April 6, 1998 by and among SC REALTY INCORPORATED, a Nevada corporation
("Borrower"), each of the financial institutions initially a signatory hereto
together with their assignees pursuant to Section 10.8. ("Lenders"), and ▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION, successor to ▇▇▇▇▇ Fargo Realty Advisors
Funding, Incorporated, as contractual representative for Lenders to the extent
and in the manner provided in Article IX. below (in such capacity "Agent").
WHEREAS, certain of the Lenders have made available to Borrower a
$400,000,000 secured revolving credit facility on the terms and conditions
contained in that certain Amended and Restated Credit Agreement dated as of
August 19, 1996 (as amended and in effect immediately prior to the date hereof,
the "Existing Credit Agreement") by and among Borrower, such Lenders and Agent;
and
WHEREAS, Borrower, such Lenders and Agent desire to amend and restate the
terms of the Existing Credit Agreement, and the other Lenders desire to become a
party thereto, in order to make available to Borrower a $700,000,000 secured
revolving credit facility and to modify the terms of the Existing Credit
Agreement, all pursuant to the terms hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree that the Existing Credit Agreement is amended and restated as
follows:
ARTICLE I. DEFINITIONS
SECTION 1.1. Definitions.
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The following terms, as used herein, have the following meanings:
"Atlantic" means Security Capital Atlantic Incorporated, a Maryland
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corporation, and its successors.
"Additional Costs" has the meaning given that term in Section 4.1.
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"Affiliate" means any Person which controls, is controlled by or is under
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common control with Borrower. As used herein, the term "control" means
possession, directly or indirectly, of the power to vote twenty percent (20%) or
more of any class of voting securities of a Person or to direct or otherwise
cause the direction of the management or policies of a Person, whether through
the ownership of voting securities, by contract or otherwise.
"Applicable Law" means all applicable provisions of local, state, federal
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and foreign constitutions, statutes, rules, regulations, ordinances, decrees,
permits, concessions and orders of all governmental bodies and all orders and
decrees of all courts, tribunals and arbitrators.
"Applicable Margin" means the percentage set forth below corresponding to
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the ratio (expressed as a percentage) of (a) the aggregate amount of the
Commitments at the time of determination to (b) the Market Value of all
Qualifying Securities at such time:
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RATIO OF COMMITMENTS TO MARKET VALUE OF ALL APPLICABLE MARGIN
QUALIFYING SECURITIES
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Greater than or equal to 30% but less than or 1.25%
equal to 35%
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Greater than 20% but less than or equal to 30% 1.125%
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Less than 20% 1.0%
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Based on the information set forth in each Pricing Certificate delivered to
Agent pursuant to Section 7.1.(e), Agent shall determine the Applicable Margin
in accordance with the above table and shall notify Borrower and Lenders of such
determination. Any resulting change in the Applicable Margin shall take effect
on the 10th day following the end of each calendar month. At all times
following Borrower's failure to provide such Pricing Certificate to Agent and
until such Pricing Certificate is so provided, the Applicable Margin shall be
1.25%. In addition, if Agent shall calculate the Borrowing Base as provided in
Section 3.11., (a) Agent shall determine the Applicable Margin in accordance
with the above table; (b) Agent shall notify Borrower and Lenders of such
determination; and (c) any resulting change in the Applicable Margin shall take
effect upon such determination by Agent. Until first determined after the date
hereof as provided in this definition, the Applicable Margin shall initially be
1.00%.
"Assignee" has the meaning given that term in Section 10.8.(c).
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"Assignment and Acceptance Agreement" means an Assignment and
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Acceptance Agreement between a Lender and an Assignee, substantially in the form
of Exhibit A.
"Assignment and Assumption Agreement" means the Assignment and
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Assumption Agreement dated as of February 17, 1995 among Guarantor, Borrower,
certain of the Lenders and Agent.
"Assignment of Registration Rights" means that certain Assignment of
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Registration Rights dated as of April 6, 1998 executed by Guarantor in favor of
Borrower.
"Authorized Representative" means, with respect to any Person, the
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President, any Managing Director, the Treasurer, any controller or any other
officer, employee or representative of such Person duly authorized by such
Person to act on behalf of such Person in connection with this Agreement and the
transactions contemplated hereby; provided that evidence of such authority shall
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have been provided to Agent promptly following Agent's request therefor and such
evidence shall be satisfactory in form and substance to Agent.
"Base Rate" means the greater of (a) the rate of interest per annum
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established from time to time by Agent and designated as its prime rate (which
rate of interest may not be the lowest rate charged by Agent or any of Lenders
on similar loans) and (b) the Federal Funds Rate plus
----
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one-half of one percent (0.5%). Each change in the Base Rate shall become
effective without prior notice to Borrower or Lenders automatically as of the
opening of business on the date of such change in the Base Rate.
"Base Rate Loan" means any Revolving Loan or Term Loan hereunder with
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respect to which the interest rate is calculated by reference to the Base Rate.
"Borrower Pledge Agreement" means the Borrower Second Amended and
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Restated Pledge Agreement dated as of the date hereof executed by Borrower in
favor of Agent, substantially in the form of Exhibit B.
"Borrowing Base" means an amount equal to the lesser of (a) 35% of the
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Market Value of all Qualifying Securities and (b) 50% of the Market Value of all
Primary Securities. Notwithstanding the foregoing, the Market Value of
Securities of any single Issuer included when determining the Borrowing Base
under the immediately preceding clause (a) shall be limited to no more than (i)
50% of the amount of the Borrowing Base in the case of Pacific, Industrial and
Atlantic; (ii) 40% of the amount of the Borrowing Base in the case of U.S.
Realty and (iii) 30% of the amount of the Borrowing Base in the case of
Homestead.
"Borrowing Base Company" means any of Pacific, Industrial, Atlantic, U.S.
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Realty and Homestead.
"Borrowing Base Certificate" means a report certified by an Authorized
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Representative of Borrower setting forth a detailed calculation of the Borrowing
Base, such report substantially in the form of Exhibit C.
"Business Day" means (a) any day except a Saturday, Sunday or other day on
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which commercial banks in Atlanta, Georgia or San Francisco, California are
authorized or required to close and (b) with reference to LIBOR Loans, any such
day on which dealings in Dollar deposits are carried out in the London interbank
market.
"Capitalized Lease Obligation" means Indebtedness represented by
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obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with generally accepted accounting principles,
and the amount of such Indebtedness shall be the capitalized amount of such
obligations determined in accordance with such principles.
"Cash Flow" means, with respect to a Person for the four fiscal quarter
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period ending as of the date of determination, such Person's net income for such
period determined in accordance with generally accepted accounting principles
(excluding capital gains and losses for such period on any disposition of
Strategic Investments in any Real Estate Companies and, to the extent included
in net income, any unrealized gains and losses), except that cash dividends and
other cash received from Investments in Consolidated Subsidiaries, other
Subsidiaries or any other Persons shall be substituted for net income of
Consolidated Subsidiaries and for equity in earnings of any such Subsidiaries or
other Persons, plus the sum of the following amounts (but only to the extent
that any of the following amounts were taken into account when determining such
net income): (a) income taxes accrued for such period, plus (b) interest expense
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paid or
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accrued for such period (excluding interest accrued in respect of any "zero-
coupon" Indebtedness and other similar Indebtedness for which interest is not
due and payable), plus (c) depreciation and amortization expenses for such
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period, plus (d) the return of the capital component of dividends received for
----
such period (to the extent that such component is not reflected already in net
income).
"Cash Flow Available for Distribution" means, with respect to a Person for
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the four fiscal quarter period ending as of the date of determination, such
Person's net income for such period determined in accordance with generally
accepted accounting principles (excluding capital gains and losses for such
period on any disposition of Strategic Investments in any Real Estate Companies,
and to the extent included in net income, any unrealized gains and losses),
except that cash dividends and other cash received from Investments in
Consolidated Subsidiaries, other Subsidiaries or any other Persons shall be
substituted for net income of Consolidated Subsidiaries and for equity in
earnings of any such Subsidiaries or other Persons, plus the sum of the
following amounts (but only to the extent that any of the following amounts were
taken into account when determining such net income): (a) interest expense
accrued but not paid for such period, plus (b) depreciation and amortization
----
expenses for such period, plus (c) the return of the capital component of
----
dividends received for such period (to the extent that such component is not
reflected already in net income).
"Cash Flow to Interest Ratio" means, for any Person and for any given
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period, the ratio of (a) the sum of each of the following of such Person during
such period: (i) net income, (ii) income taxes paid or accrued, (iii) interest
expense paid or accrued (excluding any capitalized interest and interest accrued
in respect of any "zero-coupon" Indebtedness or other similar Indebtedness for
which interest is not due and payable) and (iv) depreciation and amortization
deductions (but only to the extent, in each case, that such taxes, expenses and
deductions are reflected in the calculation of such Person's net income for such
period) to (b) interest expense paid or accrued (excluding any capitalized
interest and interest accrued in respect of any "zero-coupon" Indebtedness or
other similar Indebtedness for which interest is not due and payable) by such
Person during such period, including interest on any Indebtedness of such Person
convertible into capital stock of such Person.
"Collateral" means any real or personal property securing any of the
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Obligations and includes all "Collateral" and "Pledged Collateral", as defined
in each Collateral Document.
"Collateral Assignment of Registration Rights" means the Second Amended and
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Restated Collateral Assignment of Registration Rights Agreements dated as of the
date hereof executed by Borrower in favor of Agent, substantially in the form of
Exhibit O.
"Collateral Documents" means the Borrower Pledge Agreement, the Guarantor
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Pledge Agreement, the Collateral Assignment of Registration Rights and all other
security agreements, financing statements, and other loan and collateral
documents creating, evidencing and perfecting Agent's Liens in any of the
Collateral.
"Commitment" means, as to each Lender, such Lender's obligation to make
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Revolving Loans pursuant to Section 2.1. in an amount up to, but not exceeding,
the amount set forth for
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such Lender on its signature page hereto as such Lender's "Commitment Amount",
as the same may be reduced from time to time pursuant to Section 2.9., or as
appropriate to reflect assignments to or by such Lender effected in accordance
with Section 10.8.
"Compliance Certificate" means the certificate described in Section
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7.1.(c).
"Consolidated Subsidiary" means, with respect to a Person at any date, any
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Subsidiary or other entity the accounts of which would be consolidated with
those of such Person in its consolidated financial statements in accordance with
generally accepted accounting principles, if such statements were prepared as of
such date (other than (a) any Strategic Investee and (b) any Subsidiary that is
a preferred stock subsidiary of any Affiliate of such Person the economic
interest in which Subsidiary owned by such Person is less than 15% of the
aggregate thereof).
"Contingent Obligation" means, for any Person, any commitment, undertaking,
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Guarantee or other obligation constituting a contingent liability that must be
accrued under generally accepted accounting principles.
"Continue", "Continuation" and "Continued" each refers to the continuation
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of a LIBOR Loan from one Interest Period to the next Interest Period pursuant to
Section 2.4.
"Contribution" means the capital contribution by Guarantor to Borrower
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effected on February 17, 1995 of certain of Guarantor's assets, consisting of
all of Guarantor's Securities issued by Industrial, Atlantic and Pacific (or
their respective predecessors) and certain registration rights associated with
such Securities.
"Convert", "Conversion" and "Converted" each refers to the conversion of a
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Loan of one Type into a Loan of another Type pursuant to Section 2.5.
"Default" means any condition or event which constitutes an Event of
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Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Defaulting Lender" has the meaning given that term in Section 3.5.
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"Dollars" or "$" means the lawful currency of the United States of America.
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"Effective Date" means the date this Agreement becomes effective in
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accordance with Section 5.1.
"Eligible Assignee" means any Person who is: (i) currently a Lender; (ii) a
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commercial bank, trust company, savings and loan association, savings bank,
insurance company, investment bank or pension fund organized under the laws of
the United States of America, or any state thereof, and having total assets in
excess of $5,000,000,000; 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
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Lender, such Person's senior unsecured long term indebtedness must be rated BBB
or higher by Standard & Poor's Rating Group, a division of ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., Baa2 or higher by ▇▇▇▇▇'▇ Investors Services, Inc., or the
equivalent or higher of either such rating by another rating agency acceptable
to Agent. Notwithstanding the foregoing, if an Event of Default shall have
occurred and be continuing under Section 8.1.(a) or (b), the term "Eligible
Assignee" shall mean any Person that is not an individual.
"Environmental Laws" means any and all Applicable Laws relating to the
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environment and that are applicable to Borrower and its assets or properties,
the effect of the environment on human health or to emissions, discharges or
releases of pollutants, contaminants, Hazardous Substances or wastes into the
environment including, without limitation, ambient air, surface water, ground
water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, Hazardous Substances or wastes or the clean-up or
other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
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amended, or any successor statute.
"ERISA Group" means all members of a controlled group of corporations
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and all trades or businesses (whether or not incorporated) under common control
that are treated as a single employer under Section 414 of the Internal Revenue
Code.
"ERISA Plan" means any employee benefit plan subject to Title I of ERISA.
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"Event of Default" means the occurrence of any of the events specified in
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Section 8.1., whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
governmental or nongovernmental body; provided that any requirement for notice
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or lapse of time or any other condition has been satisfied.
"Existing Credit Agreement" has the meaning given that term in the first
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WHEREAS clause hereof.
"Extension Request" has the meaning given that term in Section 2.10.
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"Federal Funds Rate" means, on any day, the rate per annum (rounded
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upward, if necessary, 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 as so published on the next succeeding Business Day,
and (b) if no such rate is published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate quoted to Agent on
such day on such transactions as reasonably determined by Agent.
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"Fixed Charges" means, with respect to a Person for the four fiscal quarter
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period ending as of the date of determination, the sum of (a) the total amount
of accrued or paid interest (including, without limitation, interest expense
attributable to Capitalized Lease Obligations but excluding interest accrued in
respect of any "zero-coupon" Indebtedness and other similar Indebtedness for
which interest is not due and payable) of such Person for such period, and in
any event shall include all accrued, paid or capitalized interest with respect
to any Indebtedness or other obligation in respect of which such Person is
wholly or partially liable, whether pursuant to any repayment, interest carry,
performance Guarantee or otherwise (excluding any such "zero-coupon"
Indebtedness and other similar Indebtedness) plus (b) regularly scheduled
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principal payments on Indebtedness of such Person during such period, other than
(i) any balloon, bullet or similar principal payment payable on any Indebtedness
of such Person which spreads the final payment thereof over a period and thereby
reduces refinancing risk and repays such Indebtedness in full and (ii) in the
case of the Borrower, principal payments in respect of the Term Loans.
"Foreign Lender" means any Lender organized under the laws of any
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jurisdiction other than the United States of America, any State thereof or the
District of Columbia.
"Governmental Approvals" means all authorizations, consents,
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approvals, licenses and exemptions of, registrations and filings with, and
reports to, all Governmental Authorities.
"Governmental Authority" means any government (or any political
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subdivision or jurisdiction thereof), court, bureau, agency or other
governmental authority having jurisdiction over Guarantor, Borrower or any
Subsidiary, or any of its or their business, operations or properties.
"Guarantee" by any Person means any obligation, contingent or otherwise,
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of such Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (a) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (b) entered into for the purpose of assuring in any
other manner the obligee of such Indebtedness or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part), provided that the term Guarantee shall not include endorsements for
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collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Guarantor" means Security Capital Group Incorporated, a Maryland
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corporation, formerly known as Security Capital Realty Incorporated.
"Guarantor Note" means that certain Promissory Note dated as of the date
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hereof executed by Guarantor in favor of Borrower and in the original maximum
principal amount of $500,000,000, in form and substance satisfactory to Agent.
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"Guarantor Pledge Agreement" means the Guarantor Amended and Restated
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Pledge Agreement dated as of the date hereof executed by Guarantor in favor of
Agent, substantially in the form of Exhibit P.
"Guaranty" means the Second Amended and Restated Guaranty dated as of the
--------
date hereof executed by Guarantor in favor of Agent and Lenders, substantially
in the form of Exhibit D.
"Hazardous Substances" means any toxic, radioactive, caustic or otherwise
--------------------
hazardous substance, including petroleum, its derivatives, by-products and other
hydrocarbons, or any substance having any constituent elements displaying any of
the foregoing characteristics, which if managed, disposed of, released or
discharged would require reporting, clean-up or remediation under Environmental
Laws.
"Homestead" means Homestead Village Incorporated, a Maryland corporation,
---------
and its successors.
"Indebtedness" of any Person means at any date, without duplication, (a)
------------
all obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or other similar debt instruments,
(c) all obligations of such Person to pay the purchase price of property or
services if such obligations are payable after the receipt of such property or
rendition of such services, except (i) accounts payable arising in the ordinary
course of business, (ii) obligations incurred in the ordinary course to pay the
purchase price of Securities so long as such obligations are paid within
customary settlement periods and (iii) obligations to purchase Securities
pursuant to subscription or stock purchase agreements in the ordinary course of
business, (d) all Capitalized Lease Obligations of such Person, (e) all
reimbursement obligations of such Person under letters of credit or acceptances
in respect of drawings thereunder to the extent not reimbursed, (f) all
Indebtedness secured by a Lien on any asset of such Person, whether or not such
Indebtedness is otherwise an obligation of such Person, and (g) all Indebtedness
of others Guaranteed by such Person. Notwithstanding the foregoing, for purposes
of calculating Guarantor's compliance with Sections 6.(l) through (n) of the
Guaranty, accounts payable (other than deferred compensation) of Guarantor in
excess of 3.0% of the undepreciated book value (determined in accordance with
generally accepted accounting principles) of the assets of the Guarantor, at any
time outstanding shall be treated as Indebtedness to the extent of such excess.
"Industrial" means Security Capital Industrial Trust, a Maryland real
----------
estate investment trust, and its successors.
"Intangible Assets" means, with respect to any Person, the amount (to the
-----------------
extent reflected in determining stockholders' equity of such Person) of all
items which in accordance with generally accepted accounting principles would be
properly classified as intangible assets.
"Interest Period" means with respect to any LIBOR Loan, the period
---------------
commencing on the date of the borrowing, Conversion or Continuation of such Loan
and ending on the last day of the period selected by Borrower pursuant to the
provisions below. The duration of each Interest
-8-
Period shall be one, two, three or six months, in each case as Borrower may, in
an appropriate Notice of Borrowing, Notice of Continuation or Notice of
Conversion, select (except in the case of LIBOR Loans made under Section
2.14.(e)). In no event shall an Interest Period of a Revolving Loan extend
beyond the Revolving Credit Termination Date and in no event shall an Interest
Period of any Loan extend beyond the Termination Date. Whenever the last day of
any Interest Period would otherwise occur on a day other than a Business Day,
the last day of such Interest Period shall be extended to occur on the next
succeeding Business Day; provided, however, that if such extension would cause
-------- -------
the last day of such Interest Period to occur in the next following calendar
month, the last day of such Interest Period shall occur on the next preceding
Business Day.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
---------------------
amended, or any successor statute.
"Investment" means, with respect to a Person, the legal or beneficial
----------
ownership by such Person of any capital stock or other equity interest in
another Person, whether or not such ownership constitutes a controlling interest
in such other Person, and shall include all Consolidated Subsidiaries of such
Person.
"Issuer" means with respect to a Security, the Person issuing such
------
Security.
"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 such
other office of such Lender as such Lender may notify Agent in writing from time
to time.
"LIBO Rate" means, with respect to each Interest Period, the average rate
---------
of interest per annum (rounded upwards, if necessary, to the next highest 1/16th
of 1%) at which deposits in immediately available funds in Dollars are offered
to Agent (at approximately 9:00 a.m., two Business Days prior to the first day
of such Interest Period) by first class banks in the interbank Eurodollar market
where the Eurodollar operations of Agent are customarily conducted, for delivery
on the first day of such Interest Period, such deposits being for a period of
time equal or comparable to such Interest Period and in an amount equal to or
comparable to the principal amount of the LIBOR Loan to which such Interest
Period relates. Each determination of the LIBO Rate by Agent shall, in absence
of demonstrable error, be conclusive and binding.
"LIBOR Loan" means any Revolving Loan or Term Loan hereunder with respect
----------
to which the interest rate is calculated by reference to the LIBO Rate for a
particular Interest Period.
"Lien" as applied to the property of any Person means: (a) any mortgage,
----
deed to secure debt, deed of trust, pledge, lien, charge or lease constituting a
Capitalized Lease Obligation, conditional sale or other title retention
agreement, or other security interest, 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 Indebtedness or performance of any
other obligation in priority to the payment of the
-9-
general, unsecured creditors of such Person; and (c) the filing of, or any
agreement to give, any financing statement under the Uniform Commercial Code or
its equivalent in any jurisdiction.
"Loan" means a Revolving Loan, a Swingline Loan or a Term Loan.
----
"Loan Document" means this Agreement, each of the Notes, each of the
-------------
Collateral Documents, the Guaranty, the Guarantor Note, any agreement evidencing
the fees referred to in Section 3.1.(d) and each other document or instrument
executed and delivered by Borrower or Guarantor in connection with this
Agreement or any of the other foregoing documents.
"Majority Lenders" means, as of any date, Lenders whose combined Pro Rata
----------------
Shares exceed 50.0%.
"Market Value" means, with respect to a Security and on the date of
------------
determination thereof, (a) if such Security is listed on the New York Stock
Exchange, the American Stock Exchange, or some other principal national
securities exchange in the United States of America, the reported last sale
price of a unit of such security regular way on a given day, or, in case no such
sale takes place on such day, the average of the reported closing bid and asked
prices regular way, in each case on the New York Stock Exchange Composite Tape,
the American Stock Exchange Composite Tape or the principal national securities
exchange in the United States of America on which the security is listed or
admitted to trading, as applicable, or, if such Security is not listed or
admitted to trading on any national securities exchange in the United States of
America, the closing sales price, or if there is no closing sales price, the
average of the closing bid and asked prices, in the over-the-counter market as
reported by the National Association of Securities Dealers Automated Quotation
System, (b) with respect to a Security listed on a principal national securities
exchange in Luxembourg, Amsterdam or other European country, the price of such
Security as reported on such exchange by the most widely recognized reporting
method customarily relied upon by financial institutions in such country and
which method is reasonably acceptable to Agent, or (c) if such Security is not
listed on any principal national securities exchange or not so reported, the
original cost of such Security (less any write-down as a result of any
revaluation). Any determination of the "Market Value" of a Security pursuant to
this definition shall be based on the assumption that offers of such Security
are exempt from registration under the Securities Act.
"Market Value Net Worth" means, with respect to a Person on a given date,
----------------------
(a) the sum of (i) the Market Value on and as of such date of all Real Estate
Company Securities owned by such Person, (ii) the aggregate reported net asset
value of all Securities held by such Person in investment funds which invest
primarily in the Securities of publicly traded real estate companies and the net
asset value of which is regularly determined (and in any event at least every
three months) and reported publicly, (iii) the book value of all other assets of
such Person (excluding all Intangible Assets) on and as of such date and (iv)
all cash and cash equivalents of such Person on and as of such date, minus (b)
-----
the total liabilities (excluding deferred taxes on unrealized gains) of such
Person as of such date as determined in accordance with generally accepted
accounting principles.
-10-
"Materially Adverse Effect" means a materially adverse effect on (a) the
-------------------------
business, assets, liabilities, financial condition, or results of operations of
Borrower and its Consolidated Subsidiaries, or Guarantor and its Consolidated
Subsidiaries, in each case taken as a whole, (b) the ability of Borrower or
Guarantor to perform its obligations under any Loan Document to which it is a
party, (c) the validity or enforceability of any of such Loan Documents, (d) the
rights and remedies of Lenders and Agent under any of such Loan Documents or (e)
the timely payment of the principal of or interest on the Loans or other amounts
payable in connection therewith.
"Net Worth" means, for any Person, all amounts which would, in accordance
---------
with generally accepted accounting principles, be included under stockholders'
equity on the balance sheet of such Person.
"New Investee" means any Person (other than an individual and other than
------------
any Borrowing Base Company) (a) in whom Borrower acquires any Securities after
the date hereof and (b) created by Borrower or Guarantor consistent with the
business objective of Borrower or Guarantor.
"Non-ERISA Plan" means any Plan subject to Section 4975 of the Internal
--------------
Revenue Code.
"Note" means either a Revolving Note or the Swingline Note.
----
"Notice of Borrowing" means a notice in the form of Exhibit E to be
-------------------
delivered to Agent pursuant to Section 2.2. evidencing Borrower's request for a
Borrowing of Revolving Loans.
"Notice of Continuation" means a notice in the form of Exhibit F to be
----------------------
delivered to Agent pursuant to Section 2.4. evidencing Borrower's request for
the Continuation of a Borrowing of Revolving Loans.
"Notice of Conversion" means a notice in the form of Exhibit G to be
--------------------
delivered to Agent pursuant to Section 2.5. evidencing Borrower's request for
the Conversion of a Borrowing of Revolving Loans.
"Notice of Swingline Borrowing" means a notice in the form of Exhibit H to
-----------------------------
be delivered to Swingline Lender pursuant to Section 2.14.(b) evidencing
Borrower's request for a Swingline Loan.
"Obligations" means, individually and collectively: (a) all Loans; (b) any
-----------
and all renewals and extensions of any of the foregoing and (c) all other
indebtedness, liabilities, obligations, covenants and duties of Borrower owing
to Agent, any Lender or Swingline Lender of every kind, nature and description,
under or in respect of this Agreement or any of the other Loan Documents,
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.
"Pacific" means Security Capital Pacific Trust, a Maryland real estate
-------
investment trust, and its successors.
-11-
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
----
succeeding to any or all of its functions under ERISA.
"Permitted Liens" means (a) Liens granted to Agent to secure the
---------------
Obligations, (b) pledges or deposits made to secure payment of worker's
compensation (or to participate in any fund in connection with worker's
compensation insurance), unemployment insurance, pensions or social security
programs, (c) encumbrances consisting of zoning restrictions, easements, or
other restrictions on the use of real property, provided that such items do not
materially impair the use of such property for the purposes intended and none of
which is violated in any material respect by existing or proposed structures or
land use, (d) Liens for taxes not yet due and payable), (e) Liens imposed by
mandatory provisions of Applicable Law such as for materialmen's, mechanic's,
warehousemen's and other like Liens arising in the ordinary course of business,
securing payment of Indebtedness the payment of which is not yet due, (f) Liens
for taxes, assessments and governmental charges or assessments that are being
contested in good faith by appropriate proceedings diligently conducted, and for
which reserves, if any, required under generally accepted accounting principles
have been provided, (g) Liens expressly permitted under the terms of the Loan
Documents, and (h) any extension, renewal or replacement of the foregoing to the
extent such Lien as so extended, renewed or replaced would otherwise be
permitted hereunder.
"Person" means an individual, a corporation, a partnership, a limited
------
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Plan" means at any time an employee pension benefit plan which is covered
----
by Title IV of ERISA or subject to the minimum funding standards under Section
412 of the Internal Revenue Code.
"Pricing Certificate" means a report certified by an Authorized
-------------------
Representative of Borrower, setting forth a detailed calculation of the
Borrowing Base, including the Market Value of the Qualifying Securities, such
report to be substantially in the form of Exhibit I.
"Primary Securities" means Qualifying Securities issued only by Pacific,
------------------
Industrial or Atlantic.
"Pro Rata Share" means, with respect to any Lender, the percentage
--------------
obtained by dividing (a) the amount of such Lender's Commitment by (b) the
aggregate amount of Commitments of all Lenders, or, if the Commitments shall
have been terminated, the percentage obtained by dividing (i) the aggregate
unpaid principal amount of Loans owing to such Lender by (ii) the aggregate
unpaid principal amount of all Loans.
"Public Subsidiary" means any Subsidiary whose Securities having ordinary
-----------------
voting power to elect members of the board of directors or other persons
performing similar functions are listed on the New York Stock Exchange, American
Stock Exchange or some other principal national securities exchange or have
price quotations in the over-the-counter market reported by the National
Association of Securities Dealers Automated Quotation System.
-12-
"Qualified Issuer Certificate" means a report certified by an Authorized
----------------------------
Representative of Borrower, setting forth in reasonable detail the calculations
establishing that each Borrowing Base Company meets the requirements set forth
in clauses (g) and (h) of the definition of Qualifying Security, such report to
be substantially in the form of Exhibit J attached hereto.
"Qualifying Security" means any Security (1) which is common stock,
-------------------
beneficial interest in a trust, or the equivalent thereof, (2) the Issuer of
which is a Borrowing Base Company and (3) which Agent confirms meets all of the
following conditions at the time of determination thereof:
(a) such Security is subject to the Lien of the Borrower Pledge Agreement,
which Lien is valid, enforceable, perfected and of first priority, subject only
to Liens permitted under the Loan Documents or Liens acceptable to Agent;
(b) all representations and warranties of Borrower in this Agreement, the
Borrower Pledge Agreement and the other Loan Documents relating in any way to
such Security are true in all material respects (except to the extent (i) such
representations or warranties specifically relate to an earlier date or (ii)
such representations or warranties become untrue by reason of events or
conditions otherwise permitted hereunder and the other Loan Documents);
(c) such Issuer (i) is a REIT; (ii) has filed with its most recently filed
(or has announced its intention to file with its initial) federal income tax
return an election to be a REIT or has made such election for a previous taxable
year, and such election has not been terminated or revoked or (iii) is a Real
Estate Company (including any organized as a societe d'investissement a capital
fixe, a 1929 holding company, or other similar entity);
(d) such Security (i) is listed on the New York Stock Exchange, American
Stock Exchange or some other principal national securities exchange in the
United States of America; (ii) has price quotations in the over-the-counter
market reported by the National Association of Securities Dealers Automated
Quotation System or (iii) is listed on the principal national securities
exchange in Luxembourg, the Netherlands, the United Kingdom of Great Britain or
other European country acceptable to Agent;
(e) such Security is not subject to any instrument, document or agreement
which in any way prohibits the sale of such Security for any specified period of
time or otherwise (other than any agreement between Borrower and an underwriter
entered into in connection with an offering by such underwriter of Securities of
the Issuer of such Security, in which agreement Borrower agrees not to sell such
Security for a period ending no later than 180 days after such offering);
(f) the offer and sale of such Security by Agent when exercising any of
its rights and remedies under the Borrower Pledge Agreement or otherwise would
not be subject to any registration requirements or other restrictions under the
Securities Act or other Applicable Law other than (i) volume limitations imposed
under Rule 144(e) of the Securities Act, (ii) restrictions under Regulation 144A
or S of the Securities and Exchange Commission and (iii) other
-13-
restrictions related to the timing of offers and sales consented to by the
Majority Lenders in writing;
(g) the ratio of (i) such Issuer's Indebtedness to (ii) its Net Worth plus
the amount of accumulated depreciation of such Issuer, does not exceed 1.0 to
1.0 (or 1.75 to 1.00 solely in the case of Homestead);
(h) such Issuer's Cash Flow to Interest Ratio for its immediately
preceding four complete fiscal quarters is not less than 2.0 to 1.0 (or 1.5 to
1.0 solely in the case of Homestead); and
(i) no event or condition exists which permits any holder or holders of
Indebtedness of such Issuer, any trustee or agent acting on behalf of such
holder or holders or any other Person, to accelerate the maturity of any such
Indebtedness and such Person shall not have waived its right to so accelerate
with respect to such event.
"Real Estate Company" means any Person (a) engaged in the business of
-------------------
owning, acquiring, developing, selling, leasing or operating real property and
related assets or (b) who owns, directly or indirectly, other Persons engaged in
the type of business described in the immediately preceding clause (a).
"Real Estate Company Securities" means any Security: (a) which is common
------------------------------
stock, beneficial interest in a trust, or the equivalent thereof; (b) the Issuer
of which is a Real Estate Company and (c) which either (i) is listed on the New
York Stock Exchange, American Stock Exchange or some other principal national
securities exchange in the United States of America; (ii) has price quotations
in the over-the-counter market reported by the National Association of
Securities Dealers Automated Quotation System or (iii) is listed on the
principal national securities exchange in Luxembourg, the Netherlands, the
United Kingdom of Great Britain or other European country acceptable to Agent;
"Reduced Rate" has the meaning given that term in Section 3.12.
------------
"Registration Rights Agreements" means (a)(i) that certain Third Amended
------------------------------
and Restated Investor Agreement dated as of September 9, 1997 by and between
Guarantor and Pacific, (ii) that certain Third Amended and Restated Investor
Agreement dated as of September 9, 1997 by and between Guarantor and Industrial,
(iii) that certain Third Amended and Restated Investor Agreement dated as of
September 9, 1997 by and between Guarantor and Atlantic and (b) any other
agreement pursuant to which Borrower has the right to demand an Issuer to
register under the Securities Act the offering of any Securities of such Issuer
owned by Borrower or has any other rights relating to any such registration.
"Regulations T, U and X" means Regulations T, U and X of the Board of
----------------------
Governors of the Federal Reserve System, as in effect from time to time.
"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
-14-
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.
"REIT" means a Person qualifying for treatment as a "real estate investment
----
trust" under the Internal Revenue Code.
"Related Company" means any of Guarantor, Borrower or any of their
---------------
respective Subsidiaries.
"Restricted Payment" means cash payment or other distributions of property
------------------
on, or in respect of, any class of stock of, or other equity interest in, a
Person, or other payments or transfers of property made in respect of the
redemption, repurchase or acquisition of such stock or equity interest, other
than any distribution or other payment payable solely in capital stock of such
Person.
"Revolving Credit Termination Date" means the earlier to occur of (a) April
---------------------------------
6, 2000, or such later date to which such date may be extended in accordance
with Section 2.10. or (b) the date on which the Revolving Loans are converted
into the Term Loan pursuant to Section 2.11.
"Revolving Loan" means a loan made by a Lender to Borrower under Section
--------------
2.1.
"Revolving Note" means a promissory note executed by Borrower, payable to
--------------
the order of a Lender, in a maximum principal amount equal to such Lender's
Commitment and substantially in the form of Exhibit K.
"Revolving Period" means the period commencing on the Effective Date and
----------------
ending on the earlier of (a) the Revolving Credit Termination Date and (b) the
date on which the Revolving Loans are converted into the Term Loan pursuant to
Section 2.11.
"Securities Act" means the Securities Act of 1933, as amended, and all
--------------
rules and regulations issued pursuant thereto.
"Security" has the meaning given that term in Article 8 of the UCC and
--------
shall include "Securities" as defined in the Borrower Pledge Agreement and the
Guarantor Pledge Agreement, as the case may be.
"Services Subsidiary" means a Subsidiary of Guarantor that provides
-------------------
services for a fee and which Subsidiary is material to the financial condition
of Guarantor.
"Shareholders' Equity" means, at any date with respect to a Person, the
--------------------
Tangible Net Worth of such Person less, to the extent not otherwise deducted in
the determination thereof, the aggregate amount of Contingent Obligations of
such Person, all determined as of such date.
-15-
"Strategic Investee" means, with respect to one Person, any other
------------------
Person (other than, in the case of Guarantor, any of the Service Subsidiaries)
of which such first Person initially owns, directly or indirectly, more than 25%
of the outstanding securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other individuals
performing similar functions.
"Subsidiary" means any Person of which securities or other ownership
----------
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions, are at the time
directly or indirectly owned by another Person, or by one or more Subsidiaries
of such other Person or by such other Person and one or more Subsidiaries of
such other Person.
"Supermajority Lenders" means, as of any date, Lenders whose combined
---------------------
Pro Rata Shares equal or exceed 66-2/3%.
"Swingline Commitment" means Swingline Lender's obligation to make
--------------------
Swingline Loans pursuant to Section 2.14. in an amount up to, but not exceeding,
$50,000,000, as such amount may be reduced from time to time in accordance with
the terms hereof.
"Swingline Lender" means ▇▇▇▇▇ Fargo Bank, National Association,
----------------
together with its respective successors and assigns.
"Swingline Loan" means a loan made by Swingline Lender to Borrower
--------------
pursuant to Section 2.14.(a).
"Swingline Note" means the promissory note of Borrower payable to the
--------------
order of Swingline Lender in a principal amount equal to the amount of the
Swingline Commitment as originally in effect and otherwise duly completed,
substantially in the form of Exhibit L.
"Tangible Net Worth" means, with respect to a Person, at any date the
------------------
Net Worth of such Person less its Intangible Assets, all determined as of such
date in accordance with generally accepted accounting principles.
"Term Loan" has the meaning given that term in Section 2.11.
---------
"Termination Date" means the date four years after the Revolving
----------------
Credit Termination Date.
"Total Liabilities" means, as to any Person, at a particular date, all
-----------------
liabilities which would, in conformity with generally accepted accounting
principles, be properly classified as a liability on the balance sheet of such
Person as at such date, and in any event shall (a) include (without duplication)
(i) Indebtedness of such Person, (ii) all Contingent Obligations of such Person
and (iii) liabilities of any Affiliate of such Person that is not a Consolidated
Subsidiary of such Person, which liabilities such Person has Guaranteed or is
otherwise obligated on a recourse basis and (b) not include (i) any accounts
payable owing to a trade creditor and which is not evidenced by any instrument
and any accounts payable representing deferred compensation,
-16-
(ii) accrued expenses, (iii) deferred taxes on unrealized gains and (iv)
declared but unpaid dividends.
"Type" with respect to any Revolving Loan or Term Loan, refers to
----
whether such Loan is a LIBOR Loan or a Base Rate Loan.
"UCC" means the Uniform Commercial Code as in effect in the State of
---
Georgia.
"U.S. Realty" means Security Capital U.S. Realty, a societe
-----------
d'investissement a capital fixe formed under the laws of the Grand Duchy of
Luxembourg, and its successors.
"▇▇▇▇▇ Fargo" means ▇▇▇▇▇ Fargo Bank, National Association, and its
-----------
successors and permitted assigns.
SECTION 1.2. Accounting Terms and Determinations; Time References.
----------------------------------------------------
Unless otherwise specified herein, all accounting terms used herein
shall be interpreted, all accounting determinations hereunder shall be made, and
all financial statements required to be delivered hereunder shall be prepared in
accordance with generally accepted accounting principles as in effect from time
to time, applied on a basis consistent (except for changes concurred in by
Borrower's independent public accountants) with the most recent audited
financial statements of Borrower delivered to Lenders; provided that, if
--------
Borrower notifies Agent that Borrower wishes to amend any covenant in Section
7.7. or 7.12.(a) hereof, or Guarantor wishes to amend any covenant in Section
6.(j)(i) or 6.(l) through (n) of the Guaranty, to eliminate the effect of any
change in generally accepted accounting principles on the operation of such
covenant (or if Agent notifies Borrower or Guarantor that the Majority Lenders
wish to amend any such Section for such purpose), then the compliance by
Borrower or Guarantor, as the case may be, with such covenant shall be
determined on the basis of generally accepted accounting principles in effect
immediately before the relevant change in generally accepted accounting
principles became effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to Borrower or the Guarantor, as
the case may be, and the Majority Lenders. Unless otherwise indicated, all
references to time are references to San Francisco, California time.
SECTION 1.3. Subsidiaries.
------------
Unless explicitly set forth to the contrary, a reference to
"Subsidiary" shall mean a Subsidiary of Borrower and a reference to an
"Affiliate" shall mean a reference to an Affiliate of Borrower.
SECTION 1.4. Interpretation Generally.
------------------------
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 or any other Loan
Document to any document, instrument or agreement (a) shall include all
exhibits, schedules and other attachments thereto, as updated from time to time,
(b) shall include all documents, instruments or agreements issued or executed in
-17-
replacement thereof, and (c) shall mean such document, instrument or agreement,
or replacement or predecessor thereto, as amended, modified or supplemented from
time to time in accordance with its terms and in effect at any given time. Terms
not otherwise defined herein and which are defined in the UCC are used herein
with the respective meanings given them in the UCC. 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.
ARTICLE II. CREDIT FACILITY
SECTION 2.1. Making of Revolving Loans.
-------------------------
Subject to the terms and conditions set forth in this Agreement,
including, without limitation, Section 2.15., each Lender severally agrees to
make Revolving Loans to Borrower during the period from and including the
Effective Date to but excluding the Revolving Credit Termination Date, in an
aggregate principal amount not to exceed the lesser of (a) such Lender's
Commitment and (b) such Lender's Pro Rata Share of the Borrowing Base. Each
borrowing of Revolving Loans hereunder shall be in an aggregate principal amount
of $1,000,000 and integral multiples of $500,000 in excess of that amount
(except that any such Revolving Loan may be in the aggregate amount of the
unused Commitments). Notwithstanding any other provision of this Agreement or
any other Loan Document, no Revolving Loan shall be made to Borrower if Agent
determines that the making of such Revolving Loan would result in a violation of
the margin requirements of Regulation U as specified in 12 C.F.R. (S)
221.3(a)(1) (or any successor regulation). Within the foregoing limits and
subject to the other terms of this Agreement, Borrower may borrow, repay and
reborrow Revolving Loans. Upon the Effective Date, all Revolving Loans then
outstanding under the Existing Credit Agreement shall be deemed to be Revolving
Loans to Borrower outstanding hereunder being of the same Types and Interest
Periods. As of the Effective Date, such Revolving Loans shall be allocated
among the Lenders in accordance with their respective Pro Rata Shares. Each
Lender agrees to make such payments to the other Lenders and any Person who
ceased to be a Lender upon the Effective Date in such amounts as are necessary
to effect such allocation. All such payments shall be made to Agent for the
account of the Person to be paid.
SECTION 2.2. Requests for Revolving Loans.
----------------------------
Not later than 9:00 a.m. at least one Business Day prior to a
borrowing of Base Rate Loans and not later than 10:00 a.m. at least three
Business Days prior to a borrowing of LIBOR Loans, Borrower shall deliver to
Agent a Notice of Borrowing. Each Notice of Borrowing shall specify the
aggregate principal amount of Revolving Loans to be borrowed, the date such
Revolving Loans are to be borrowed (which must be a Business Day), the use of
the proceeds of such Revolving Loans, the Type of the requested Revolving Loans
and if such Revolving Loan is to be a LIBOR Loan, the initial Interest Period
for such Revolving Loan. Each Notice of Borrowing shall be irrevocable once
given and binding on Borrower. Prior to delivering a Notice of Borrowing,
Borrower may (without specifying whether a Revolving Loan will be a Base Rate
Loan or a LIBOR Loan) request that Agent provide Borrower with the most recent
LIBO Rate
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available to Agent. Agent shall provide such quoted rate to Borrower and to
Lenders on the date of such request or as soon as possible thereafter.
SECTION 2.3. Funding.
-------
(a) Promptly after receipt of a Notice of Borrowing under Section
2.2., Agent shall notify each Lender by telex or telecopy, or other similar form
of transmission of the proposed borrowing. No later than 9:00 a.m. on the date
specified in the Notice of Borrowing, each Lender will make available for the
account of its applicable Lending Office to Agent at Agent's Lending Office, in
immediately available funds, the proceeds of the Revolving Loan to be made by
such Lender. Upon fulfillment of all applicable conditions set forth herein,
Agent shall make available to Borrower at Agent's Lending Office, not later than
11:00 a.m. on the date of the requested Revolving Loan, the proceeds of such
Revolving Loans received by Agent. The failure of any Lender to deposit the
amount described above with Agent shall not relieve any other Lender of its
obligations hereunder to make a Revolving Loan.
(b) With respect to Revolving Loans to be made after the Effective
Date, unless 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 Agent
the Revolving Loan to be made by such Lender on such date, Agent may assume that
such Lender will make the proceeds of such Revolving Loan available to Agent on
the date of the requested borrowing as set forth in the Notice of Borrowing and
Agent may (but shall not be obligated to), in reliance upon such assumption,
make available to Borrower the amount of such Revolving Loan to be provided by
such Lender.
SECTION 2.4. Continuation.
------------
So long as no Event of Default shall have occurred and be continuing,
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
Borrower's giving of a Notice of Continuation not later than 12:00 noon on the
third Business Day prior to the date of any such Continuation by Borrower to
Agent. Promptly after receipt of a Notice of Continuation, Agent shall notify
each Lender by telex or telecopy, or other similar form of transmission of the
proposed Continuation. Such notice by 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 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
Borrower once given. If 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 therefore,
Convert into a Base Rate Loan notwithstanding failure of Borrower to comply with
Section 2.5.
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SECTION 2.5. Conversion.
----------
So long as no Event of Default shall have occurred and be continuing,
Borrower may on any Business Day, upon Borrower's giving of a Notice of
Conversion to Agent, Convert the entire amount of all or a portion of a Loan of
one Type into a Loan of another Type. Promptly after receipt of a Notice of
Conversion, Agent shall notify each Lender by telex or telecopy, or other
similar form of transmission of the proposed Conversion. 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. 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. Subject to the
restrictions specified above, each Notice of Conversion shall be by telephone or
telecopy confirmed immediately in writing if by telephone 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 Borrower once given. Each Conversion from a Base Rate Loan to a
LIBOR Loan shall be in an aggregate amount for the Loans of all Lenders of not
less than $1,000,000 or integral multiples of $500,000 in excess of that amount.
SECTION 2.6. Interest Rate.
-------------
(a) All Loans. The unpaid principal of each Base Rate Loan shall
---------
bear interest from the date of the making of such Loan to but not including the
date of repayment thereof at a rate per annum equal to the Base Rate in effect
from day to day. The unpaid principal of each LIBOR Loan shall bear interest
from the date of the making of such Loan to but not including the date of
repayment thereof at a rate per annum equal to the LIBO Rate plus the Applicable
----
Margin.
(b) Default Rate. All past-due principal of, and to the extent
------------
permitted by Applicable Law, interest on, the Loans shall bear interest until
paid at the Base Rate from time to time in effect plus two percent (2%).
SECTION 2.7. Number of Interest Periods.
--------------------------
Anything herein to the contrary notwithstanding, there may be no more
than 12 different Interest Periods outstanding at the same time.
SECTION 2.8. Repayment of Loans.
------------------
(a) Payment of Interest. All accrued and unpaid interest on the
-------------------
unpaid principal amount of each Loan shall be payable (i) monthly in arrears on
the first day of each month, commencing with the first full calendar month
occurring after the Effective Date, (ii) on the Revolving Credit Termination
Date, (iii) on the Termination Date and (iv) on any date on which the principal
balance of such Loan is due and payable in full.
-20-
(b) Payment of Principal of Revolving Loans. Subject to Section
---------------------------------------
2.11., the aggregate outstanding principal balance of all Revolving Loans shall
be due and payable in full on the Revolving Credit Termination Date.
(c) Payment of Principal of Term Loans. Borrower shall repay the
----------------------------------
principal balance of the Term Loans in consecutive quarterly installments due on
the last day of each March, June, September and December following the Revolving
Credit Termination Date until the Term Loans have been paid in full. The amount
of such installments shall be as follows: (i) the first four installments shall
each be in the aggregate amount of 5.0% of the initial aggregate principal
balance of the Term Loans (or if the outstanding aggregate principal balance of
the Term Loans is less than such amount on the due date of any such installment,
then in the amount of such aggregate outstanding balance) and (ii) if after the
payment of such four installments any principal balance shall remain owing on
the Term Loans, each remaining installment shall be in the aggregate amount of
6.6675% of the initial aggregate principal balance of the Term Loans (or if the
outstanding aggregate principal balance of the Term Loans is less than such
amount on the due date of any such installment, then in the amount of such
aggregate outstanding balance). Notwithstanding the foregoing, the entire
outstanding principal balance of all Term Loans shall be due and payable in full
on the Termination Date.
(d) Optional Prepayments. Borrower may, upon at least one Business
--------------------
Day's prior notice to Agent, prepay any Revolving Loan or Term Loan in whole at
any time, or from time to time in part in an amount equal to $500,000 or
integral multiples of $100,000 in excess of that amount. If Borrower shall
prepay the principal of any LIBOR Loan on any date other than the last day of
the Interest Period applicable thereto, Borrower shall pay the amounts, if any,
due under Section 4.4.
(e) Mandatory Prepayments. If at any time the aggregate principal
---------------------
amount of all outstanding Revolving Loans, together with the aggregate principal
amount of all outstanding Swingline Loans, exceeds the aggregate amount of the
Commitments in effect at such time, Borrower shall promptly upon demand pay to
Agent for the accounts of the Lenders the amount of such excess. If at any time
the aggregate outstanding principal balance of Loans exceeds the Borrowing Base,
then Borrower shall, within fifteen days of Borrower obtaining actual knowledge
of the occurrence of such excess, notify Agent of what action Borrower intends
to take to eliminate such excess. If such excess is not eliminated within
thirty days of Borrower obtaining actual knowledge of the occurrence thereof
(whether by Borrower delivering to Agent additional Qualifying Securities under
the Borrower Pledge Agreement, by an increase in the market value of the
Qualifying Securities, by Borrower repaying an appropriate amount of Loans, or
otherwise), then the entire outstanding principal balance of all Loans shall be
immediately due and payable in full.
(f) General Provisions as to Payments. Except to the extent
---------------------------------
otherwise provided herein, all payments of principal, interest and other amounts
to be made by Borrower under this Agreement, the Notes or any other Loan
Document shall be made in Dollars, in immediately available funds, without
setoff, deduction or counterclaim, to Agent at its Lending Office, not later
than 11:00 a.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
-21-
Business Day). The parties agree that if Borrower makes any payment due
hereunder after 11:00 a.m. but before 5:00 p.m. on the date such payment is due,
such late payment shall not constitute a Default under Section 8.1.(a) but shall
nevertheless for all other purposes, including but not limited to, the
calculation of interest, be deemed to have been paid as of the next succeeding
Business Day as provided in the parenthetical phrase of the preceding sentence.
Each payment received by Agent for the account of a Lender under this Agreement
or any Note shall be paid to such Lender, by wire transfer of immediately
available funds in accordance with the wiring instructions provided by such
Lender to Agent from time to time, for the account of such Lender at the
applicable Lending Office of such Lender. Each payment received by Agent for the
account of Swingline Lender under this Agreement or the Swingline Note shall be
paid to Swingline Lender by wire transfer of immediately available funds in
accordance with the wiring instructions provided by Swingline Lender to the
Agent from time to time. In the event Agent fails to pay such amounts to such
Lender or Swingline Lender, as the case may be, within one Business Day of
receipt by Agent, Agent shall pay interest on such amount 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 2.9. Voluntary Reductions of the Commitments.
---------------------------------------
Borrower may terminate or reduce the aggregate unused amount of the
Commitments (for which purpose use of the Commitments shall be deemed to include
the aggregate principal amount of all outstanding Swingline Loans) at any time
and from time to time without penalty or premium upon not less than three
Business Days prior notice to Agent of each such termination or reduction, which
notice shall specify the effective date thereof and the amount of any such
reduction (which in the case of any partial reduction of the Commitments shall
not be less than $1,000,000 and integral multiples of $1,000,000 in excess of
that amount) and shall be irrevocable once given and effective only upon receipt
by Agent; provided, however, that if Borrower seeks to reduce the aggregate
-------- -------
amount of the Commitments below $200,000,000, then all of the Commitments shall
be reduced to zero and except as otherwise provided herein, the provisions of
this Agreement shall terminate. The Commitments, once reduced pursuant to this
Section, may not be increased. Borrower shall pay all interest and fees on the
Revolving Loans accrued to the date of such reduction or termination of the
Commitments to Agent for the account of Lenders. Any reduction in the aggregate
amount of the Commitments shall result in a proportionate reduction (rounded to
the next lowest integral multiple of multiple of $100,000) in the Swingline
Commitment.
SECTION 2.10. Extension of Revolving Credit Termination Date.
----------------------------------------------
(a) Borrower may request Agent and Lenders to extend the current
Revolving Credit Termination Date by successive one-year intervals by executing
and delivering to Agent no later than January 15 (and not before January 1) of
the year one year prior to the current Revolving Credit Termination Date, a
written request for such extension (an "Extension Request"). Agent shall
forward to each Lender a copy of each Extension Request delivered to Agent
promptly upon receipt thereof. Borrower understands that this Section has been
included in this Agreement for
-22-
Borrower's convenience in requesting an extension and acknowledges that none of
Lenders nor Agent has promised (either expressly or impliedly), nor has any
obligation or commitment whatsoever, to extend the Revolving Credit Termination
Date at any time. If all Lenders shall have notified Agent on or prior to
February 15 of the year one year prior to the Revolving Credit Termination Date
that they accept such Extension Request, the Revolving Credit Termination Date
shall be extended for one year. If any Lender shall not have notified Agent on
or prior to such February 15 that it accepts such Extension Request, the
Revolving Credit Termination Date shall not be extended. Agent shall promptly
notify Borrower whether the Extension Request has been accepted or rejected as
well as which Lender or Lenders rejected Borrower's Extension Request (each such
Lender a "Rejecting Lender").
(b) Notwithstanding the preceding subsection (a), if Borrower receives
notification from Agent that an Extension Request has been rejected (a "Notice
of Rejection"), and provided that the aggregate amount of Commitments of the
Rejecting Lenders does not exceed 20% of the aggregate amount of Commitments
then outstanding, Borrower may elect, with respect to each such Rejecting
Lender, by giving written notice to Agent of any such election within 30 days
after receipt by Borrower of a Notice of Rejection, to either (x) require such
Rejecting Lender to assign its respective Commitment to an Eligible Assignee as
contemplated in the immediately following clause (i) or (y) pay in full the
amount of Revolving Loans, interest and fees owing to such Rejecting Lender and
terminate such Rejecting Lender's Commitment as contemplated in the immediately
following clause (ii). If Borrower has made a timely election as permitted by
the preceding sentence, then Borrower shall take either of the following actions
as specified in such election: (i) demand that such Rejecting Lender, and upon
such demand such Rejecting Lender shall promptly, assign its respective
Commitment to an Eligible Assignee subject to and in accordance with the
provisions of Section 10.8.(c) for a purchase price equal to the aggregate
principal balance of Revolving Loans then outstanding and owing to such
Rejecting Lender plus any accrued but unpaid interest thereon and accrued but
----
unpaid fees owing to such Rejecting Lender, any such assignment to be completed
within 45 days after receipt by Borrower of a Notice of Rejection or (ii) within
45 days after receipt by Borrower of a Notice of Rejection, pay to such
Rejecting Lender the aggregate principal balance of Revolving Loans then
outstanding and owing to such Rejecting Lender plus any accrued but unpaid
----
interest thereon and accrued but unpaid fees owing to such Rejecting Lender,
whereupon such Rejecting Lender's Commitment shall terminate, and such Rejecting
Lender shall no longer be a party hereto or have any rights or obligations
hereunder or under any of the other Loan Documents. Agent may (but shall not be
obligated to) cooperate in effectuating the replacement of any such Rejecting
Lender under this Section, but at no time shall Agent, such Rejecting Lender, or
any other Lender be obligated in any way whatsoever to initiate any such
replacement or to assist in finding an Assignee. If all Rejecting Lenders have
either assigned their Commitments to other financial institutions as
contemplated by the preceding clause (i) or have been paid the amounts specified
in the preceding clause (ii), then the Borrower's Extension Request which was
initially rejected shall be deemed to have been granted and accordingly the
Revolving Credit Termination Date shall be extended by one year, otherwise the
Revolving Credit Termination Date shall not be extended. If the aggregate
amount of Commitments of the Rejecting Lenders exceeds 20% of the aggregate
amount of Commitments then outstanding, the Revolving Credit Termination Date
shall not be extended.
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SECTION 2.11. Term Loan Conversion.
--------------------
Subject to the terms and conditions of this Agreement, if any
Extension Request of Borrower shall be denied, Borrower may then elect to
convert on the date one year prior to the current Revolving Credit Termination
Date the aggregate principal amount of Revolving Loans then owing to each Lender
and outstanding on the Revolving Credit Termination Date into a term loan owing
to such Lender (each a "Term Loan") provided (a) Borrower has given Agent not
less than 15 days' prior notice of Borrower's intention to so convert the
Revolving Loans and (b) the conditions set forth in Section 5.3. have been
satisfied as of the date one year prior to the current Revolving Credit
Termination Date. Upon the effectiveness of the conversion of the outstanding
principal balance of Revolving Loans into Term Loans as contemplated by this
Section, Borrower shall have no right to borrow, and neither Swingline Lender
nor any Lender shall have any obligation to make, any Swingline Loans or
Revolving Loans, as applicable.
SECTION 2.12. Release of Collateral.
---------------------
Within 10 Business Days following receipt by Agent of Borrower's
written request that certain Pledged Collateral be released from the Lien of the
Borrower Pledge Agreement, Agent shall so release such Pledged Collateral if,
and only if: (a) Borrower shall have delivered to Agent a report certified by an
Authorized Representative of Borrower, setting forth in reasonable detail a
calculation of the Borrowing Base and (b) no Default or Event of Default shall
have occurred and be continuing nor would result from any such release (nor
would such release result in the existence of any condition described in Section
2.8.(e)). The Agent shall forward to each Lender a copy of any such written
request from Borrower for release of Pledged Collateral, promptly upon receipt.
If Borrower requests the release of Securities of a given Issuer, some of which
Securities the offer and sale of which by Agent when exercising any of its
rights and remedies under the Borrower Pledge Agreement or otherwise would not
be subject to any registration requirements or other restrictions under the
Securities Act or other Applicable Law or restrictions of the type referred to
in clause (e) of the definition of Qualifying Security, and some of which would
be subject to any such restrictions, then Agent shall first release to Borrower
those Securities that are subject to such restrictions. Any release of
Collateral pursuant to this Section shall be at the sole cost and expense of
Borrower.
SECTION 2.13. Notes.
-----
The obligation of Borrower to repay the Revolving Loans and the Term
Loans shall, in addition to this Agreement, be evidenced by the Revolving Notes.
SECTION 2.14. Swingline Loans.
---------------
(a) Swingline Loans. Subject to the terms and conditions hereof,
---------------
including without limitation, Section 2.15., if necessary to meet Borrower's
funding deadline, Swingline Lender agrees to make Swingline Loans to Borrower,
during the period from the Effective Date to but excluding the Revolving Credit
Termination Date, in an aggregate principal amount at any one time outstanding
up to, but not exceeding, the amount of the Swingline Commitment. If at any
time the aggregate principal amount of the Swingline Loans outstanding at such
time exceeds the
-24-
Swingline Commitment in effect at such time, Borrower shall immediately pay to
Agent for the account of Swingline Lender the amount of such excess. Subject to
the terms and conditions of this Agreement, Borrower may borrow, repay and
reborrow Swingline Loans hereunder. Except as otherwise provided in Section
2.9., the borrowing of a Swingline Loan shall not constitute usage of any
Lender's Commitment.
(b) Procedure for Borrowing Swingline Loans. Borrower shall give
---------------------------------------
Agent and Swingline Lender notice pursuant to a Notice of Swingline Borrowing
delivered to Agent and Swingline Lender no later than 9:00 a.m. on the proposed
date of such borrowing, provided that Borrower shall have given telephonic
notice to Agent and Swingline Lender no later than 9:00 a.m. on the proposed
date of borrowing. Any such telephonic notice shall include all information to
be specified in a written Notice of Swingline Borrowing. Not later than 11:00
a.m. on the date of the requested Swingline Loan and subject to satisfaction of
the applicable conditions set forth in Article V. for such borrowing, Swingline
Lender will make the proceeds of such Swingline Loan available to Borrower in
Dollars, in immediately available funds, at the account specified by Borrower in
the Notice of Swingline Borrowing.
(c) Interest. Swingline Loans shall bear interest at a per annum rate
--------
equal to (i) the Base Rate as in effect from time to time minus (ii) 1.60%, or
-----
at such other rate or rates as Borrower and Swingline Lender may agree from time
to time in writing. Interest payable on Swingline Loans is solely for the
account of Swingline Lender. All accrued and unpaid interest on Swingline Loans
shall be payable on the dates and in the manner provided in Section 2.8. with
respect to interest on Base Rate Loans (except as Swingline Lender and Borrower
may otherwise agree in writing in connection with any particular Swingline
Loan).
(d) Swingline Loan Amounts, Etc. Each Swingline Loan shall be in the
---------------------------
minimum amount of $1,000,000 and integral multiples of $100,000 in excess
thereof, or such other minimum amounts agreed to by Swingline Lender and
Borrower. Any voluntary prepayment of a Swingline Loan must be in integral
multiples of $100,000 or the aggregate principal amount of all outstanding
Swingline Loans (or such other minimum amounts upon which Swingline Lender and
Borrower may agree) and in connection with any such prepayment, Borrower must
give Swingline Lender prior written notice thereof no later than 10:00 a.m. one
Business Day prior to the date of such prepayment. The Swingline Loans shall,
in addition to this Agreement, be evidenced by the Swingline Note.
(e) Repayment and Participations of Swingline Loans. Borrower agrees
-----------------------------------------------
to repay each Swingline Loan within one Business Day of demand therefor by
Swingline Lender and in any event, within 10 Business Days after the date such
Swingline Loan was made. Notwithstanding the foregoing, Borrower shall repay
the entire outstanding principal amount of, and all accrued but unpaid interest
on, the Swingline Loans on the Revolving Credit Termination Date (or such
earlier date as Swingline Lender and Borrower may agree in writing). In lieu of
demanding repayment of any outstanding Swingline Loan from Borrower, Swingline
Lender may, on behalf of Borrower (which hereby irrevocably directs Swingline
Lender to act on its behalf), request a borrowing of either Base Rate Loans or
LIBOR Loans with a one month Interest Period (as chosen by Agent in its sole
discretion) from Lenders in an amount equal to the principal balance of such
Swingline Loan. Swingline Lender shall give notice to Agent of any such
borrowing of
-25-
(x) Base Rate Loans not later than 9:00 a.m. at least one Business Day prior to
the proposed date of such borrowing and (y) LIBOR Loans not later than 10:00
a.m. at least three Business Days prior to the proposed date of such borrowing.
Each Lender will make available to Agent's Lending Office for the account of
Swingline Lender, in immediately available funds, the proceeds of the Loan to be
made by such Lender. Agent shall pay the proceeds of such Loans to Swingline
Lender, which shall apply such proceeds to repay such Swingline Loan. If Lenders
are prohibited from making Loans required to be made under this subsection for
any reason whatsoever, including without limitation, the occurrence of any of
the Defaults or Events of Default described in Sections 8.1.(h) or 8.1.(i), each
Lender shall purchase from Swingline Lender, without recourse or warranty, an
undivided interest and participation to the extent of such Lender's Pro Rata
Share of such Swingline Loan, by directly purchasing a participation in such
Swingline Loan in such amount and paying the proceeds thereof to Agent for the
account of Swingline Lender in Dollars and in immediately available funds. A
Lender's obligation to purchase such a participation in a Swingline Loan shall
be absolute and unconditional and shall not be affected by any circumstance
whatsoever, including without limitation, (i) any claim of setoff, counterclaim,
recoupment, defense or other right which such Lender or any other Person may
have or claim against Agent, the Swingline Lender or any other Person
whatsoever, (ii) the occurrence or continuation of a Default or Event of Default
(including without limitation, any of the Defaults or Events of Default
described in Sections 8.1.(h) or (i)) or the termination of any Lender's
Commitment, (iii) the existence (or alleged existence) of an event of condition
which has had or could have a Material Adverse Effect, (iv) any breach of any
Loan Document by Agent, any Lender or the Borrower or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing; provided, however, a Lender shall not be obligated to purchase
-------- -------
such a participation in a Swingline Loan as provided above if, and only if, the
Swingline Lender made such Swingline Loan after having received written notice
from the Borrower or any Lender that an Event of Default had occurred and is
continuing, and in fact, such Event of Default had occurred and was continuing.
If such amount is not in fact made available to Swingline Lender by any Lender,
Swingline Lender shall be entitled to recover such amount on demand from such
Lender, together with accrued interest thereon for each day from the date of
demand thereof, at the Federal Funds Rate. If such Lender does not pay such
amount forthwith upon Swingline Lender's demand therefor, and until such time as
such Lender makes the required payment, Swingline Lender shall be deemed to
continue to have outstanding Swingline Loans in the amount of such unpaid
participation obligation for all purposes of the Loan Documents (other than
those provisions requiring the other Lenders to purchase a participation
therein). Further, such Lender shall be deemed to have assigned any and all
payments made of principal and interest on its Loans, and any other amounts due
to it hereunder, to Swingline Lender to fund Swingline Loans in the amount of
the participation in Swingline Loans that such Lender failed to purchase
pursuant to this Section until such amount has been purchased (as a result of
such assignment or otherwise).
SECTION 2.15. Amount Limitations.
------------------
Notwithstanding any other term of this Agreement or any other Loan
Document, at no time may the aggregate principal amount of all outstanding
Revolving Loans, together with the aggregate principal amount of all outstanding
Swingline Loans, exceed the lesser of (a) the Borrowing Base and (b) the
aggregate amount of the Commitments.
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ARTICLE III. GENERAL LOAN PROVISIONS
SECTION 3.1. Fees.
----
(a) During the period from the Effective Date to but excluding the
Revolving Credit Termination Date, Borrower agrees to pay Agent for the account
of Lenders an unused facility fee equal to the portion of the daily amount by
which the aggregate amount of the Commitments exceeds the aggregate outstanding
principal balance of Revolving Loans set forth in the table below multiplied by
the corresponding per annum rate applicable to that portion:
-----------------------------------------------------------
PORTION OF AMOUNT BY WHICH
COMMITMENTS EXCEEDS REVOLVING UNUSED FEE
LOANS
-----------------------------------------------------------
$0 to and including $200,000,000 0.125%
-----------------------------------------------------------
Greater than $200,000,000 and less 0.15%
than or equal to $400,000,000
-----------------------------------------------------------
Greater than $400,000,000 0.20%
-----------------------------------------------------------
Such fee shall be payable quarterly in arrears on the first day of each January,
April, July and October during the term of this Agreement and on the Revolving
Credit Termination Date. Borrower acknowledges that the commitment fees payable
hereunder are bona fide commitment fees and are intended as reasonable
compensation to Lenders for committing to make funds available to Borrower as
described herein and for no other purposes.
(b) If, pursuant to Section 2.10., Lenders grant an extension of the
Revolving Credit Termination Date, Borrower agrees to pay to Agent for the
account of each Lender consenting to such extension an extension fee equal to
one-tenth of one percent (0.10%) of such Lender's Commitment at such time. Such
fee shall be payable on the date on which Lenders grant such extension.
(c) If, pursuant to Section 2.11., the outstanding balance of
Revolving Loans is converted into Term Loans, Borrower agrees to pay to Agent
for the account of each Lender a conversion fee equal to two-tenths of one
percent (0.20%) per annum of the principal balance of the Term Loans outstanding
on each date such fee is payable. Such fee shall be payable on the first, second
and third anniversary dates of such conversion and shall be paid within 5
Business Days of such anniversary date.
(d) Borrower agrees to pay to Agent such fees for services rendered by
Agent as shall be separately agreed upon between Borrower and Agent.
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SECTION 3.2. Computation of Interest and Fees.
--------------------------------
Interest on the Loans and all fees shall be computed on the basis of a year
of 360 days and paid for the actual number of days elapsed (including the first
day but excluding the last day of a period).
SECTION 3.3. Pro Rata Treatment.
------------------
Except to the extent otherwise provided herein: (a) each borrowing from
Lenders under Section 2.1. shall be made from Lenders, each payment of the fees
under Sections 3.1.(a) through 3.1.(c) shall be made for account of Lenders, and
each termination or reduction of the amount of the Commitments under Section
2.9. shall be applied to the respective Commitments of Lenders, pro rata
according to the amounts of their respective Commitments; (b) each payment or
prepayment of principal of Loans by Borrower shall be made for account of
Lenders pro rata in accordance with the respective unpaid principal amounts of
the 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 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 Lenders pro rata in
accordance with their respective Commitments; and (c) each payment of interest
on Loans by Borrower shall be made for account of Lenders pro rata in accordance
with the amounts of interest on such Loans then due and payable to the
respective Lenders; (d) the making, Conversion and Continuation of Revolving
Loans of a particular Type (other than Conversions provided for by Section 4.6.)
shall be made pro rata among 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) Lenders' participation in, and payment obligations
in respect of, Swingline Loans under Section 2.14., shall be pro rata in
accordance with their respective Commitments. All payments of principal,
interest, fees and other amounts in respect of the Swingline Loans shall be for
the account of Swingline Lender only (except to the extent any Lender shall have
acquired a participating interest in any such Swingline Loan pursuant to Section
2.14.(e)).
SECTION 3.4. Sharing of Payments, Etc.
------------------------
Borrower agrees that, in addition to (and without limitation of) any right
of set-off, bankers' lien or counterclaim a Lender may otherwise have, each
Lender shall be entitled, at its option, but only after having obtained the
prior written consent of Agent exercised in its sole discretion, to offset
balances held by it for the account of Borrower at any of such Lender'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
hereunder) which is not paid when due after the expiration of any applicable
grace periods (regardless of whether such balances are then due to Borrower), in
which case such Lender shall promptly notify Borrower, all other Lenders and
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
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interest on, any Loan under this Agreement, or shall obtain payment on any other
Obligation owing by Borrower 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 Borrower to a Lender
not in accordance with the terms of this Agreement and such payment, pursuant to
the immediately preceding Section, should be distributed pro rata to Lenders,
such Lender shall promptly purchase from the other Lenders participations in
(or, if and to the extent specified by such Lender, direct interests in) the
Loans made by the other Lenders or other Obligations owed to such other Lenders
in such amounts, and make such other adjustments from time to time as shall be
equitable, to the end that all Lenders shall share the benefit of such payment
(net of any expenses which may be incurred by such Lender in obtaining or
preserving such benefit) in accordance with their respective Pro Rata Shares. To
such end, all 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. Borrower agrees that any Lender so purchasing a
participation (or direct interest) in the Loans or other Obligations owed to
such other Lenders made by other Lenders may exercise all rights of set-off,
bankers' lien, counterclaim or similar rights with respect to such participation
as fully as if such Lender were a direct holder of Loans in the amount of such
participation. Nothing contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness or
obligation of Borrower.
SECTION 3.5. Defaulting Lenders.
------------------
If for any reason any Lender (a "Defaulting Lender") shall fail or refuse
to perform 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 ten Business Days after notice from Agent, then, in
addition to the rights and remedies that may be available to Agent or 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 Agent or to be taken into
account in the calculation of Majority Lenders or Supermajority 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 Agent of any
amount required to be paid to Agent hereunder (without giving effect to any
notice or cure periods), in addition to other rights and remedies which Agent or
Borrower may have under the immediately preceding provisions or otherwise, 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 Lender under this
Agreement or any other Loan Document and (iii) to bring an action or suit
against such Lender in a court of competent jurisdiction to recover the
defaulted amount and any related interest. Any amounts received by Agent in
respect of a Defaulting Lender's Loans shall not be paid to such Defaulting
Lender and shall be held by Agent and either applied against the purchase price
of such Loans under Section 3.6. or paid to such Defaulting Lender upon the
Defaulting Lender's curing of its default.
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SECTION 3.6. Purchase of Defaulting Lender's Pro Rata Share.
----------------------------------------------
(a) 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. 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.
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
10.8.(c), shall pay to Agent an assignment fee in the amount of $6,000.
(b) 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 Borrower to the Defaulting Lender. Prior to payment of such purchase price
to a Defaulting Lender, Agent shall apply against such purchase price any
amounts retained by Agent pursuant to the last sentence of Section 3.5. The
Defaulting Lender shall be entitled to receive amounts owed to it by 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 Agent from or on
behalf of Borrower. There shall be no recourse against any Lender or Agent for
the payment of such sums except to the extent of the receipt of payments from
any other party or in respect of the Loans.
SECTION 3.7. Usury.
-----
In no event shall the amount of interest due or payable on the Loans exceed
the maximum rate of interest allowed by Applicable Law and, in the event any
such payment is paid by Borrower or received by any Lender, then such excess sum
shall be credited as a payment of principal. It is the express intent of the
parties hereto that Borrower not pay and Lenders not receive, directly or
indirectly, in any manner whatsoever, interest in excess of that which may be
lawfully paid by Borrower under Applicable Law.
SECTION 3.8. Agreement Regarding Interest and Charges.
----------------------------------------
THE PARTIES HERETO HEREBY AGREE AND STIPULATE THAT THE ONLY CHARGE IMPOSED
UPON BORROWER FOR THE USE OF MONEY IN CONNECTION WITH THIS AGREEMENT IS AND
SHALL BE THE INTEREST DESCRIBED IN SECTION 2.6. AND, WITH RESPECT TO SWINGLINE
LOANS, IN SECTION 2.14.(c). THE PARTIES HERETO FURTHER AGREE AND STIPULATE THAT
ALL OTHER CHARGES IMPOSED BY LENDERS AND AGENT ON BORROWER IN CONNECTION WITH
THIS AGREEMENT, INCLUDING ALL AGENCY FEES, FACILITY FEES, UNUSED FACILITY FEES,
EXTENSION FEES, UNDERWRITING FEES, DEFAULT CHARGES, LATE CHARGES, ATTORNEYS'
FEES AND REIMBURSEMENT FOR COSTS AND EXPENSES PAID BY AGENT OR ANY LENDER TO
THIRD PARTIES OR FOR DAMAGES INCURRED BY AGENT OR ANY LENDER, ARE CHARGES MADE
TO COMPENSATE
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AGENT OR ANY SUCH LENDER FOR UNDERWRITING OR ADMINISTRATIVE SERVICES AND COSTS
OR LOSSES PERFORMED OR INCURRED, AND TO BE PERFORMED OR INCURRED, BY AGENT AND
LENDERS IN CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND SHALL
UNDER NO CIRCUMSTANCES BE DEEMED TO BE CHARGES FOR THE USE OF MONEY PURSUANT TO
OFFICIAL CODE OF GEORGIA ANNOTATED SECTION 7-4-2 OR 7-4-18. ALL CHARGES OTHER
THAN CHARGES FOR THE USE OF MONEY SHALL BE FULLY EARNED AND NONREFUNDABLE WHEN
DUE.
SECTION 3.9. Statements of Account.
---------------------
Agent will account to Borrower monthly with a statement of Loans, charges
and payments made pursuant to this Agreement and the other Loan Documents, and
such account rendered by Agent shall be deemed final, binding and conclusive
upon Borrower absent demonstrable error. The failure of Agent or any Lender to
maintain or deliver such a statement of accounts shall not relieve or discharge
Borrower from its obligations hereunder.
SECTION 3.10. Agent's Reliance.
----------------
Neither Agent nor any Lender shall incur any liability to Borrower for
acting upon any telephonic notice permitted under this Agreement which Agent or
such Lender believes reasonably and in good faith to have been given by an
individual authorized to deliver a Notice of Borrowing, Notice of Conversion,
Notice of Continuation or Extension Request on behalf of Borrower.
SECTION 3.11. Unscheduled Borrowing Base Calculations.
If Agent (i) reasonably determines that the Market Value of any of the
Qualifying Securities has been affected materially and adversely or (ii)
releases any Pledged Collateral pursuant to Section 2.12., Agent may (but shall
not be obligated to) determine the amount of the Borrowing Base based on
published Market Values and based on the other information most recently
provided by Borrower with respect to the Qualifying Securities (and for such
purpose may assume that there has been no change in such information). Agent
shall give Borrower and Lenders notice of the amount of the Borrowing Base as so
determined.
SECTION 3.12. Foreign Lenders.
---------------
On or before the Effective Date, each Foreign Lender shall deliver to Agent
and Borrower (i) two valid, duly completed copies of IRS Form 1001 or 4224 or
successor applicable form, as the case may be, and any other required form,
certifying in each case that such Foreign Lender is entitled to receive payments
under this Agreement and the Note payable to it without deduction or withholding
of any United States federal income taxes or with such withholding imposed at a
reduced rate (the "Reduced Rate"), and (ii) if requested by Agent or Borrower, a
valid, duly completed IRS Form W-8 or W-9 or successor applicable form, as the
case may be, to establish an exemption from United States backup withholding
tax. Each such Foreign Lender shall also deliver to Agent and Borrower two
further copies of such Form 1001 or 4224 and W-8 or W-9,
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or successor applicable forms, or other manner of required certification, as the
case may be, on or before the date that any such form previously delivered
expires or becomes obsolete or otherwise is required to be resubmitted as a
condition to obtaining an exemption from a required withholding of United States
federal income tax or entitlement to having such withholding imposed at the
Reduced Rate or after the occurrence of any event requiring a change in the most
recent form previously delivered by such Foreign Lender to Borrower and Agent,
and such extensions or renewals thereof as may reasonably be requested by
Borrower and Agent, (i) in the case of a Form 1001 or 4224, certifying that such
Foreign Lender is entitled to receive payments under this Agreement and the Note
payable to it without deduction or withholding of any United States federal
income taxes, unless in any such case any change in a tax treaty to which the
United States is a party, or any change in any Applicable Law of the United
States of America or official interpretation thereof has occurred after the
Effective Date and prior to the date on which any such delivery would otherwise
be required that renders all such forms inapplicable or that would prevent such
Foreign Lender from duly completing and delivering any such form with respect to
it, and such Foreign Lender advises Borrower and Agent that it is not capable of
receiving payments without any deduction or withholding at the Reduced Rate, or
(ii) in the case of a Form W-8 or W-9, establishing an exemption from United
States backup withholding tax.
ARTICLE IV. YIELD PROTECTION, ETC.
SECTION 4.1 Additional Costs; Capital Adequacy.
----------------------------------
(a) Additional Costs. Borrower shall promptly pay to Agent for the account
----------------
of a Lender from time to time such amounts as such Lender may reasonably
determine to be necessary to compensate such Lender for any costs incurred by
such Lender that it determines are attributable to its making or maintaining of
any LIBOR Loans or its obligation to make any LIBOR Loans hereunder, any
reduction in any amount receivable by such Lender under this Agreement or any of
the other Loan Documents in respect of any of such Loans or such obligation or
the maintenance by such Lender of capital in respect of its Loans or its
Commitment (such increases in costs and reductions in amounts receivable being
herein called "Additional Costs"), in each such case resulting from any
Regulatory Change that: (i) changes the basis of taxation of any amounts
payable to such Lender under this Agreement or any of the other Loan Documents
in respect of any of such Loans or its Commitment (other than taxes 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 (including 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 Commitment of such Lender hereunder); or (iii) has or
would have the effect of reducing the rate of return on capital of such Lender
to a level below that which such Lender could have achieved but for such
Regulatory Change (taking into consideration such Lender's policies with respect
to capital adequacy).
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(b) Lender's Suspension of LIBOR Loans. Without limiting the effect of the
----------------------------------
provisions of the immediately preceding subsection (a), if by reason of any
Regulatory Change, any Lender either (i) incurs Additional Costs based on or
measured by the excess above a specified level of the amount of a category of
deposits or other liabilities of such Lender that includes deposits by reference
to which the interest rate on LIBOR Loans is determined as provided in this
Agreement or a category of extensions of credit or other assets of such Lender
that includes LIBOR Loans or (ii) becomes subject to restrictions on the amount
of such a category of liabilities or assets that it may hold, then, if such
Lender so elects by notice to Borrower (with a copy to Agent), the obligation of
such Lender to make or Continue, or to Convert any other Type of Loans into,
LIBOR Loans hereunder shall be suspended until such Regulatory Change ceases to
be in effect (in which case the provisions of Section 4.6. shall apply).
(c) Notification and Determination of Additional Costs. Each Lender agrees
--------------------------------------------------
to notify Borrower of any event occurring after the date hereof entitling such
Lender to compensation under any of the preceding subsections of this Section as
promptly as practicable; provided, however, subject to the last sentence of this
-------- -------
subsection, the failure of any Lender to give such notice shall not release
Borrower from any of its obligations hereunder. Such Lender agrees to furnish
to Borrower a certificate setting forth the basis and amount of each request by
such Lender for compensation under this Section. Determinations by Agent or any
Lender of the effect of any Regulatory Change shall be prima facie evidence of
the matters so certified. A Lender shall only be entitled to compensation under
the preceding subsection (a) as a result of events occurring during the 120-day
period ending on the date Borrower receives the notice described in the first
sentence of this subsection and if such Lender uses reasonable allocation and
attribution methods to determine such compensation.
SECTION 2 Suspension of LIBOR Loans.
-------------------------
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of LIBO Rate for any Interest Period:
(a) 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 LIBO Rate
for such Interest Period, or
(b) Agent reasonably determines (which determination shall be
conclusive) that the LIBO Rate will not adequately and fairly reflect the
cost to Lenders of making or maintaining LIBOR Loans for such Interest
Period;
then Agent shall give Borrower and each Lender prompt notice thereof and,
so long as such condition remains in effect, Lenders shall be under no
obligation to, and shall not, make additional LIBOR Loans, Continue LIBOR Loans
or Convert Loans into LIBOR Loans and 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.
-33-
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 Borrower thereof (with a copy
to Agent) and such Lender's obligation to make or Continue, or to Convert Loans
of any other Type into, LIBOR Loans shall be suspended until such time as such
Lender may again make and maintain LIBOR Loans (in which case the provisions of
Section 4.6. shall be applicable).
SECTION 4.4 Compensation.
------------
Borrower shall pay to Agent for account of each Lender, upon the request of
such Lender through 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 Borrower for any reason (including, without
limitation, the failure of any of the applicable conditions precedent specified
in Article V. to be satisfied) to borrow a LIBOR Loan from such Lender on the
date for such borrowing, or to Convert a Base Rate Loan into a LIBOR Loan or
Continue a LIBOR Loan on the requested date of such Conversion or Continuation.
Upon Borrower's request, any Lender requesting compensation under this Section
shall provide Borrower with a statement setting forth the basis for requesting
such compensation and the method for determining the amount thereof. Any such
statement shall be prima facie evidence of the matters stated therein.
SECTION 4.5. Affected Lenders.
----------------
If any Lender requests compensation pursuant to Section 4.1., or the
obligation of any Lender to make LIBOR Loans or to Continue, or to Convert Base
Rate Loans into, LIBOR Loans shall be suspended pursuant to Section 4.1.(b) or
4.3., then, so long as there does not then exist any Default or Event of
Default, Borrower may (but shall not be obligated to) take either of the
following actions: (a) demand that such Lender (the "Affected Lender"), and upon
such demand the Affected Lender shall promptly, assign its Commitment to an
Eligible Assignee subject to and in accordance with the provisions of Section
10.8.(c) for a purchase price equal to the aggregate principal balance of Loans
then owing to the Affected Lender plus any accrued but unpaid interest thereon
and accrued but unpaid fees owing to the Affected Lender, or (b) pay to the
Affected Lender the aggregate principal balance of Loans then owing to the
Affected Lender plus any accrued but unpaid interest thereon and accrued but
unpaid fees owing to the Affected Lender, whereupon the Affected Lender shall no
longer be a party hereto or have any rights hereunder or under any of the other
Loan Documents. Agent and the Affected Lender may (but shall not be obligated
to) cooperate in effectuating the replacement of such Affected Lender under this
Section, but at no time shall Agent, such Affected Lender, or any other Lender
be obligated in any way whatsoever to initiate any such replacement or to assist
in finding an Assignee. The exercise by Borrower of its rights under this
Section shall be at Borrower's sole cost and expense and at no cost or expense
to Agent, the Affected Lender, or any of the other
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Lenders. The terms of this Section shall not in any way limit Borrower's
obligation to pay to any Affected Lender compensation owing to such Affected
Lender pursuant to Section 4.1.
SECTION 4.6. Treatment of Affected Loans.
---------------------------
If the obligation of any Lender to make LIBOR Loans or to Continue, or to
Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to Section
4.1.(b), 4.2. or 4.3., then such Lender's LIBOR Loans shall be automatically
Converted into Base Rate Loans on the last day(s) of the then current Interest
Period(s) for LIBOR Loans (or, in the case of a Conversion required by Section
4.1.(b) or 4.3., on such earlier date as such Lender may specify to Borrower
with a copy to Agent) and, unless and until such Lender gives notice as provided
below that the circumstances specified in Section 4.1., 4.2. or 4.3. that gave
rise to such Conversion no longer exist:
(a) to the extent that such Lender's LIBOR Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's LIBOR Loans shall be applied instead to its
Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such Lender
as LIBOR Loans shall be made or Continued instead as Base Rate Loans, and
all Base Rate Loans of such Lender that would otherwise be Converted into
LIBOR Loans shall remain as Base Rate Loans.
If such Lender gives notice to Borrower (with a copy to Agent) that the
circumstances specified in Section 4.1. or 4.3. that gave rise to the Conversion
of such Lender's LIBOR Loans pursuant to this Section no longer exist (which
such Lender agrees to do promptly upon such circumstances ceasing to exist) at a
time when LIBOR Loans made by other Lenders are outstanding, then such Lender's
Base Rate Loans shall be automatically Converted, on the first day(s) of the
next succeeding Interest Period(s) for such outstanding LIBOR Loans, to the
extent necessary so that, after giving effect thereto, all Loans held by Lenders
holding LIBOR Loans and by such Lender are held pro rata (as to principal
amounts, Types and Interest Periods) in accordance with their respective
Commitments.
SECTION 4.7. Change of Lending Office.
------------------------
Each Lender agrees that it will use reasonable efforts to designate an
alternate Lending Office with respect to any of its Loans affected by the
matters or circumstances described in Sections 4.1. or 4.3. to reduce the
liability of 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.
-35-
ARTICLE V. CONDITIONS
SECTION 5.1. Initial Conditions to Loans.
---------------------------
The obligation of a Lender to make any Revolving Loan to Borrower, or the
Swingline Lender to make any Swingline Loan to Borrower, in each case in
accordance with the terms hereof, is subject to the condition precedent that
Borrower deliver to Agent each of the following, each of which shall be in form
and substance satisfactory to Agent:
(a) counterparts of this Agreement executed by each of the parties hereto;
(b) Revolving Notes executed by Borrower, payable to each Lender and
complying with the terms of Section 2.13., and the Swingline Note executed by
Borrower;
(c) the Borrower Pledge Agreement executed by Borrower;
(d) evidence that all of the Securities of the Borrowing Base Companies
issued to Borrower and to be pledged by Borrower under the Borrower Pledge
Agreement have been delivered to Agent or a securities depository designated by
Agent;
(e) the original Guarantor Note, duly endorsed by Borrower to Agent;
(f) copies of all of the Registration Rights Agreements, together with a
copy of the Assignment of Registration Rights;
(g) the Collateral Assignment of Registration Rights, together with the
consent of each applicable Issuer with respect to such assignment, if required
to effect such assignment;
(h) the Guaranty executed by Guarantor;
(i) the Guarantor Pledge Agreement executed by Guarantor;
(j) the certificates issued in the name of Guarantor evidencing the
Securities of Borrower subject to the Lien of the Guarantor Pledge Agreement;
(k) appropriate stock transfer powers endorsed in blank by Guarantor with
respect to such certificates;
(l) UCC amendment statements executed by Guarantor and Borrower with
respect to existing financing statements to reflect the amendment and
restatement of the Existing Credit Agreement;
(m) the opinion of ▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇, counsel to Borrower and
Guarantor, and addressed to Agent and Lenders in substantially the form of
Exhibit M;
(n) an opinion of King & Spalding, local Georgia counsel to Borrower and
Guarantor, and addressed to Agent and Lenders in substantially the form of
Exhibit N;
-36-
(o) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, local Luxembourg counsel to
Borrower, addressed to Agent and Lenders, regarding the perfection of Agent's
Lien in the capital stock of U.S. Realty and such other matters as Agent may
reasonably request;
(p) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, local Belgian counsel to Borrower,
addressed to Agent and Lenders, regarding the perfection of Agent's Lien in the
capital stock of U.S. Realty and such other matters as Agent may reasonably
request;
(q) the articles of incorporation of Borrower certified as of a recent
date by the Secretary of State of the State of Nevada;
(r) a Certificate of Good Standing issued as of a recent date by the
Secretary of State of the State of Nevada 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 Borrower is required to be so qualified;
(s) a certificate of incumbency signed by the Secretary or Assistant
Secretary of Borrower with respect to each of the officers of Borrower
authorized to execute and deliver the Loan Documents to which Borrower is a
party and to execute and deliver Notices of Borrowing, Notices of Conversion,
Notices of Continuation and Notices of Swingline Borrowing;
(t) certified copies (certified by the Secretary or Assistant Secretary of
Borrower) of the by-laws of Borrower and of all corporate or other necessary
action taken by Borrower to authorize the execution, delivery and performance of
the Loan Documents to which it is a party;
(u) the articles of incorporation of Guarantor certified as of a recent
date by the Secretary of State of the State of Maryland;
(v) a Certificate of Good Standing issued as of a recent date by the
Secretary of State of the State of Maryland 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 Guarantor is required to be so qualified;
(w) a certificate of incumbency signed by the Secretary or Assistant
Secretary of Guarantor with respect to each of the officers of Guarantor
authorized to execute and deliver the Loan Documents to which Guarantor is a
party;
(x) certified copies (certified by the Secretary or Assistant Secretary of
Guarantor) of the by-laws of Guarantor and of all corporate or other necessary
action taken by Guarantor to authorize the execution, delivery and performance
of the Loan Documents to which it is a party;
(y) a Form FR U-1 and a Form FR G-3 executed by Borrower with respect to
the Collateral in which it has rights;
(z) a Borrowing Base Certificate calculated as of March 31, 1998, a
Pricing Certificate calculated as of March 31, 1998 and a Qualifying Issuer
Certificate calculated as of December 31, 1997; and
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(aa) such other documents and instruments as Agent, or any Lender through
Agent, may reasonably request.
SECTION 5.2. Conditions to All Loans.
-----------------------
The obligation of any Lender to make any Revolving Loan, and of Swingline
Lender to make any Swingline Loan, is subject to the condition precedent that
the following conditions be satisfied in the judgment of Agent:
(a) timely receipt by Agent of a Notice of Borrowing, or in the case of a
Swingline Loan, timely receipt by Swingline Lender of a Notice of Swingline
Borrowing;
(b) the proposed use of proceeds of such Loans set forth in the Notice of
Borrowing or Notice of Swingline Borrowing, as the case may be, is consistent
with the provisions of Section 7.9.;
(c) immediately before and after the making of such Revolving Loans or
Swingline Loan, no Default (including without limitation the existence of the
condition described in Section 2.8.(e)) or Event of Default shall have occurred
and be continuing; and
(d) the representations and warranties of Borrower and Guarantor contained
in the Loan Documents to which either is a party shall be true in all material
respects on and as of the date of such Revolving Loans or Swingline Loan except
to the extent (x) such representations or warranties specifically relate to an
earlier date or (y) such representations or warranties become untrue by reason
of events or conditions otherwise permitted hereunder and the other Loan
Documents.
The delivery of each Notice of Borrowing and each Notice of Swingline Borrowing
and the making of each Loan shall constitute a certification by Borrower to
Agent, Swingline Lender and Lenders that the statements in the immediately
preceding clauses (b) through (d) are true.
SECTION 5.3. Conditions to Conversion to Term Loans.
--------------------------------------
The right of Borrower to convert Revolving Loans into Term Loans under
Section 2.11. is subject to the condition precedent that the following
conditions be satisfied in the judgment of Agent:
(a) timely receipt by Agent of the notice required under such Section;
(b) immediately prior to such conversion, no Default or Event of Default
shall have occurred and be continuing or would result after giving effect to
such conversion; and
(c) the representations and warranties of Borrower and Guarantor contained
in the Loan Documents to which either is a party shall be true in all material
respects on and as of the date of such conversion except to the extent such
representations or warranties specifically relate to an earlier date or such
representations or warranties become untrue by reason of events or conditions
otherwise permitted hereunder and the other Loan Documents.
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The delivery of the notice required under such Section shall constitute a
certification by Borrower to Agent and Lenders that the statements in the
immediately preceding clauses (b) and (c) are true.
SECTION 5.4. Conditions as Covenants.
-----------------------
If Lenders make the initial Revolving Loan, or Swingline Lender makes the
initial Swingline Loan, prior to the satisfaction of all conditions precedent
set forth in Section 5.1., Borrower shall nevertheless cause such condition or
conditions to be satisfied within five Business Days after the date of the
making of such initial Revolving Loans or Swingline Loan.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Agent and each Lender as follows:
SECTION 6.1. Existence and Power.
-------------------
Borrower is a corporation, duly organized, validly existing and in good
standing under the laws of the State of Nevada, and has all requisite power and
authority and all governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted and is duly qualified and is
in good standing as a foreign corporation, 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 except where the failure
to be so qualified or authorized would not have a Materially Adverse Effect on
Borrower.
SECTION 6.2. Ownership Structure.
-------------------
Schedule 6.2. correctly sets forth the corporate structure and ownership
interests of Borrower and all of its Consolidated Subsidiaries including the
correct legal name of Borrower and each such Subsidiary, and Borrower's relative
equity interest in each such Subsidiary.
SECTION 6.3. Authorization of Agreement, Notes, Loan Documents and
-----------------------------------------------------
Borrowings.
----------
Borrower has the right and power, and has taken all necessary action to
authorize it, to borrow hereunder and to execute, deliver and perform this
Agreement, the Notes and the other Loan Documents to which it is a party in
accordance with their respective terms and to consummate the transactions
contemplated hereby. This Agreement, the Notes and each of the other Loan
Documents to which Borrower is a party have been duly executed and delivered by
the duly authorized officers of Borrower and each is a legal, valid and binding
obligation of Borrower enforceable against Borrower in accordance with its
respective terms, except as the same may be limited by bankruptcy, insolvency,
and other similar laws affecting the rights of creditors generally and the
availability of equitable remedies for the enforcement of certain obligations
(other than the payment of principal) contained herein or therein may be limited
by equitable principles generally.
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SECTION 6.4. 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 Borrower is a party in accordance with their
respective terms and the borrowing of Loans hereunder do not and will not, by
the passage of time, the giving of notice or otherwise (a) require any
Governmental Approval or violate any Applicable Law relating to Borrower the
failure to possess or to comply with which would have a Materially Adverse
Effect on Borrower; (b) conflict with, result in a breach of or constitute a
default under the articles of incorporation or the bylaws of Borrower, or any
indenture, agreement or other instrument to which Borrower is a party or by
which it or any of its properties may be bound and the violation of which would
have a Materially Adverse Effect on Borrower; or (c) result in or require the
creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by Borrower other than Permitted Liens.
SECTION 6.5. Compliance with Law; Governmental Approvals.
-------------------------------------------
Borrower is in compliance with each Governmental Approval applicable to it
and in compliance with all other Applicable Law relating to Borrower, except for
noncompliances which, and Governmental Approvals the failure to possess which,
would not, singly or in the aggregate, cause a Default or Event of Default or
have a Materially Adverse Effect on Borrower and in respect of which (if
Borrower has actual knowledge of such Applicable Law or Governmental Approval)
adequate reserves have been established on the books of Borrower.
SECTION 6.6. Indebtedness and Guarantees.
---------------------------
The Borrower has no Indebtedness or Guarantees other than the Indebtedness
hereunder and under the other Loan Documents to which the Borrower is a party.
SECTION 6.7. Transactions with Affiliates.
----------------------------
Borrower is not a party to any transaction with any Affiliate which is in
violation of Section 7.12.(b).
SECTION 6.8. Absence of Defaults.
-------------------
Borrower is not in default under its articles of incorporation or its
bylaws, and no event has occurred, which has not been remedied, cured or waived
(a) which constitutes a Default or an Event of Default; or (b) which
constitutes, or which with the passage of time, the giving of notice or
otherwise, would constitute, a default or event of default by Borrower under any
material agreement (other than this Agreement) or judgment, decree or order to
which Borrower is a party or by which Borrower or any of its properties may be
bound.
SECTION 6.9. Financial Information.
---------------------
The consolidated balance sheet of Borrower as at December 31, 1997 and the
related consolidated statements of operations, stockholders' equity and cash
flows for the fiscal year then
-40-
ending, reported on by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, copies of all of which have been
delivered to Agent and Lenders, fairly present, in conformity with generally
accepted accounting principles, the financial position of Borrower as of such
date and its results of operations and cash flows for such fiscal year and
period. Since December 31, 1997 and with reference to such date, there has been
no material adverse change in the financial position or results of operations of
Borrower and its Consolidated Subsidiaries taken as a whole.
SECTION 6.10. Litigation.
----------
There is no action, suit or proceeding pending against, or to the knowledge
of Borrower threatened against or affecting, any Related Company before any
court or arbitrator or any Governmental Authority (a) which would reasonably be
expected to materially adversely affect the business, properties, financial
position, results of operations or prospects of Borrower or (b) which in any
manner draws into question the validity of any Loan Document.
SECTION 6.11. ERISA.
-----
Borrower does not maintain, and has not at any time maintained, any Plan
subject to the provisions of ERISA and is not, and has not at any time been, a
member of any ERISA Group with any Person that has at any time maintained any
such Plan.
SECTION 6.12. Environmental Matters.
---------------------
In the ordinary course of their business, the Related Companies conduct an
ongoing review of the effect of Environmental Laws on their business, operations
and properties, in the course of which they identify and evaluate associated
liabilities and costs (including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties presently or
previously owned, any capital or operating expenditures required to achieve or
maintain compliance with environmental protection standards imposed by law or as
a condition of any license, permit or contract, any related constraints on
operating activities, including any periodic or permanent shutdown of any
facility or reduction in the level of or change in the nature of operations
conducted thereat, any costs or liabilities in connection with off-site disposal
of wastes or Hazardous Substances, and any actual or potential liabilities to
third parties, including employees, and any related costs and expenses). On the
basis of this review, Borrower has reasonably concluded that such associated
liabilities and costs, including the costs of compliance with Environmental
Laws, are unlikely to have a material adverse effect on the business, financial
condition, results of operations or prospects of Borrower and its Consolidated
Subsidiaries, considered as a whole.
SECTION 6.13. Taxes.
-----
As of the date hereof, no United States Federal income tax returns of the
"affiliated group" (as defined in the Internal Revenue Code) of which Borrower
is a member have been examined and closed. The members of such affiliated group
have filed all United States Federal income tax returns and all other material
tax returns which are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by or any
-41-
of them except for taxes being contested in good faith by appropriate
proceedings and for which appropriate reserves have been established. The
charges, accruals and reserves on the books of Borrower in respect of taxes or
other governmental charges are, in the opinion of Borrower, adequate.
SECTION 6.14. Other Related Companies.
-----------------------
Each of the corporate Related Companies other than Borrower is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, and has all corporate powers and all
material Governmental Approvals required to carry on its business as now
conducted.
SECTION 6.15. Not an Investment Company.
-------------------------
Borrower is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
SECTION 6.16. Full Disclosure.
---------------
All written information furnished by or on behalf of Borrower or Guarantor
to Agent and Lenders for purposes of or in connection with this Agreement and
the other Loan Documents or any transaction contemplated hereby is, and all such
information (other than projections and other similar forward-looking
information) hereafter furnished by or on behalf of Borrower or Guarantor to
Agent and Lenders will be true and accurate in all material respects on the date
as of which such information is stated or certified and does not, and will not,
fail to state any material facts necessary to make the statements contained
therein not misleading. All financial projections prepared by or on behalf of
Borrower or Guarantor that have been or may hereafter be made available to Agent
or any Lender were or will be prepared in good faith based on assumptions
believed by management of Borrower to be reasonable. Borrower has disclosed to
Agent in writing any and all facts known to Borrower which materially and
adversely affect or may affect (to the extent Borrower can now reasonably
foresee), the business, operations or financial condition of Borrower and its
Consolidated Subsidiaries, taken as a whole, or the ability of Borrower to
perform its obligations under the Loan Documents.
SECTION 6.17. Insurance.
---------
Schedule 6.17. sets forth a true and correct description of the insurance
coverage maintained by or on behalf of Borrower currently in effect.
SECTION 6.18. Not Plan Assets.
---------------
The assets of Borrower do not and will not constitute "plan assets", within
the meaning of ERISA, the Internal Revenue Code and the respective regulations
promulgated thereunder, of any ERISA Plan or Non-ERISA Plan. The execution,
delivery and performance of this Agreement, and the borrowing and repayment of
amounts thereunder, do not and will not constitute "prohibited transactions"
under ERISA or the Internal Revenue Code.
-42-
SECTION 6.19. Sole Shareholder.
----------------
Guarantor owns all of the issued and outstanding capital stock of Borrower.
SECTION 6.20. Liens.
-----
The liens and security interests granted to Agent pursuant to the
Collateral Documents are valid and enforceable first-priority Liens subject only
to Permitted Liens.
SECTION 6.21. Pledged Shares.
--------------
Schedules 6.21.(A) through (E) are true, correct and complete descriptions
of the transactions pursuant to which Borrower (or Guarantor prior to the
Contribution) acquired the Pledged Shares of Industrial, Atlantic, Pacific, U.S.
Realty and Homestead, respectively, including the date of acquisition, the
number of Pledged Shares so acquired, whether or not acquired in a public
purchase, the identity of the Person from whom acquired (if known), the per
share acquisition price (if applicable) and when the full acquisition price was
paid or given (if applicable). Schedules 6.21.(A) through (E) each set forth,
as of the date hereof, the number of Pledged Shares, if any, which are
"restricted securities" as such term is defined in Rule 144 of the Securities
Act.
SECTION 6.22. Assets.
------
As of the date hereof, Borrower has no assets other than (a) the Pledged
Collateral (as defined in the Borrower Pledge Agreement) and the registration
rights associated with such Pledged Collateral, (b) Securities issued by New
Investees, (c) cash, cash equivalents, bank accounts, office furniture,
equipment and supplies, leases for office space and other assets used by
Borrower in the operation of its business, (d) Collateral released from the Lien
of the Borrower Pledge Agreement, pursuant to Section 2.12., (e) Investments in
its Consolidated Subsidiaries and the other persons set forth on Schedule 6.22.,
and (f) the Guarantor Note and other promissory notes evidencing loans permitted
under Section 7.13. As of the date hereof, the aggregate value of the assets
described in the immediately preceding clause (c) (excluding bank accounts) does
not exceed $1,000,000.
SECTION 6.23. Business Purposes and Objects.
-----------------------------
The purposes and objects for which Borrower is organized are (a) to hold,
buy and sell interests in and organize, capitalize, promote and control publicly
and privately held real estate investment trusts and corporations electing to be
taxed as real estate investment trusts and other entities engaged in the
ownership, acquisition, development, sale, leasing and operation of real
property and related assets (or companies or other entities which directly or
indirectly own such entities); (b) to hold, buy and sell interests in and
organize, capitalize and control corporations or other entities providing
services to real estate investment trusts, corporations or other entities,
including, without limitation, general management, property management,
development, acquisitions, due diligence, research, capital markets, accounting
and legal services and such other services as such real estate investment
trusts, corporations or other entities may require from time to time (or
companies or other entities which directly or indirectly own such entities);
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and (c) all other purposes and objects necessary, appropriate, convenient,
conducive or advisable to the purposes and objects listed in clauses (a) and
(b).
SECTION 6.24. Separateness Representations.
----------------------------
(a) Consolidation of the business operations of Borrower and Guarantor,
when taken together with the elimination of the financial benefits of the
transactions, would not result in any significant cost savings or in
significantly greater efficiency of such combined business operations.
(b) Borrower has not concealed and will not conceal from any interested
party any transfers made in connection with the Contribution. Borrower did not
enter into the transactions contemplated by the "Existing Credit Agreement" (as
defined in the Existing Credit Agreement) and the Assignment and Assumption
Agreement with the intent of hindering, delaying or defrauding its creditors.
(c) Borrower's management has made a diligent analysis of the business and
operations of Borrower, and is reasonably confident that Borrower is and will
be: (i) adequately capitalized to conduct its business and affairs as a going
concern, considering the size and nature of its business and intended purposes;
(ii) solvent; and (iii) able to pay its debts as they come due. As a result of
the foregoing, Borrower's management believes that Borrower will be able to
conduct its business as a stand alone entity, independent of financial
assistance of any Person. Borrower's management does not anticipate any need
for Guarantor to loan money or contribute capital to Borrower, although it is
possible that Guarantor may take either of these actions in the future.
SECTION 6.25. Solvency.
--------
(a) The fair value and the fair salable value of Borrower's assets
(excluding any Indebtedness due from any Affiliate of Borrower) are each in
excess of the fair valuation of Borrower's total liabilities (including all
contingent liabilities); and (b) Borrower is able to pay its debts or other
obligations in the ordinary course as they mature and (c) Borrower has capital
not unreasonably small to carry on its business and all business in which it
proposes to be engaged.
SECTION 6.26. Year 2000 Review.
----------------
Borrower has reviewed its business and operations and has developed a plan
to address on a timely basis the risk that computer applications used by it in
performing date sensitive functions and involving dates prior to December 31,
1999 and thereafter might fail to perform such functions properly which failure
would reasonably be expected to have a Materially Adverse Effect.
ARTICLE VII. COVENANTS
Borrower agrees that, so long as Lenders have any Commitments hereunder or
any Obligation remains unpaid:
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SECTION 7.1. Information.
-----------
Borrower will deliver to Agent:
(a) as soon as available and in any event within 95 days after the end of
each respective fiscal year of Borrower and any of its Subsidiaries the
financial statements of which are audited, a balance sheet of such Person as of
the end of such fiscal year and the related statements of funds from operations
or earnings, stockholders' equity and cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal year,
and in the case of each such Subsidiary, reported on (other than the statement
of funds from operations) in a manner acceptable to Agent by independent public
accountants of nationally recognized standing;
(b) as soon as available and in any event within 50 days after the end of
each of the first three fiscal quarters of each respective fiscal year of
Borrower and any of its Subsidiaries the financial statements of which are
audited, a balance sheet of such Person as of the end of such quarter and the
related statements of funds from operations or earnings, stockholders' equity
and cash flows for such quarter and for the portion of such Person's fiscal year
ended at the end of such quarter, setting forth in comparative form the figures
for the corresponding quarter and the corresponding portion of such Person's
previous fiscal year, all certified (subject to normal year-end adjustments) as
to fairness of presentation, generally accepted accounting principles (subject
to absence of full footnote disclosures and other than the statement of funds
from operations) and consistency by an Authorized Representative of such Person;
(c) simultaneously with the delivery of each set of financial statements
referred to in the immediately preceding clauses (a) and (b), a certificate of
an Authorized Representative of Borrower (i) setting forth in reasonable detail
the calculations required to establish whether Borrower was in compliance with
the requirements of Sections 7.7. and 7.12. on the date of such financial
statements, (ii) stating whether any Default or Event of Default exists on the
date of such certificate and, if any Default or Event of Default then exists,
setting forth the details thereof and the action which Borrower is taking or
proposes to take with respect thereto, (iii) setting forth a schedule of all
Contingent Obligations of Borrower as of the date of such financial statements,
and (iv) setting forth a schedule, in such form as may be reasonably
satisfactory to Agent, of information with respect to assets and liabilities of
Consolidated Subsidiaries of Borrower;
(d) as soon as available and in any event within 50 days after the end of
each fiscal quarter, or promptly upon the request of Agent, a Qualifying Issuer
Certificate and a Pricing Certificate;
(e) as soon as possible and in any event within 5 days following the end
of each calendar month or promptly upon the request of Agent pursuant to Section
3.11. hereof, a Pricing Certificate;
(f) as soon as possible and in any event within 5 days following the end
of each calendar month, a Borrowing Base Certificate;
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(g) within five days after any executive officer of Borrower obtains
knowledge of any Default or Event of Default, a certificate of an Authorized
Representative of Borrower setting forth the details thereof and the action
which Borrower is taking or proposes to take with respect thereto;
(h) promptly upon the filing thereof, copies of all registration
statements (other than 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 Borrower or any of its
Affiliates which it directly or indirectly controls shall file with the
Securities and Exchange Commission (or any governmental agency substituted
therefor) or any national securities exchange;
(i) promptly upon the release thereof, copies of all press releases of
Borrower and any of its Affiliates which it directly or indirectly controls;
(j) promptly upon obtaining knowledge thereof, a description in reasonable
detail of any action, suit or proceeding commenced or threatened against any of
the Related Companies which is reasonably likely to have a Materially Adversely
Effect on Borrower;
(k) promptly upon the occurrence thereof, any material change in the
senior management of Borrower;
(l) promptly upon the occurrence thereof, any amendment to the bylaws of
Borrower;
(m) promptly upon the filing thereof, the annual report of Borrower filed
with the Secretary of State of the State of Nevada;
(n) promptly upon Agent's request, (i) amendments or other supplements to
any Form FR U-1 or Form FR G-3 delivered under this Agreement, (ii) new Forms FR
U-1 or Forms FR G-3, and (iii) such information regarding the Pledged Shares (as
defined in the Borrower Pledge Agreement) as Agent may request;
(o) promptly upon any executive officer of Borrower obtaining knowledge
that an event or condition has occurred or exists which results in any
Qualifying Security then included in determinations of the Borrowing Base no
longer satisfying the requirements of a Qualifying Security, notice of such
event or condition; and
(p) from time to time such additional information regarding the financial
position or business of Borrower and its Subsidiaries as Agent or any Lender may
reasonably request.
Agent shall deliver to each Lender a copy of each item delivered to the Agent
under the immediately preceding subsections (a) through (o) promptly upon
receipt by Agent.
SECTION 7.2. Payment of Obligations.
----------------------
Borrower will pay and discharge, and will cause each Subsidiary (other than
any Public Subsidiary) to pay and discharge, at or before maturity, all their
respective material obligations
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and liabilities, including, without limitation, tax liabilities, except where
the same may be contested in good faith by appropriate proceedings unless the
contest thereof would have a Materially Adverse Effect on Borrower, and will
maintain, and will cause each Subsidiary (other than any Public Subsidiary) to
maintain, in accordance with generally accepted accounting principles,
appropriate reserves for the accrual of any of the same.
SECTION 7.3. Maintenance of Property; Insurance.
----------------------------------
(a) Borrower will keep, and will cause each Subsidiary (other than any
Public Subsidiary) to keep, all property useful and necessary in its business in
good working order and condition, ordinary wear and tear and insured casualty
losses excepted.
(b) Borrower will maintain, and will cause each Subsidiary (other than any
Public Subsidiary) to maintain, (i) physical damage insurance on all real and
personal property on an all risks basis (including the perils of flood and
earthquake if located in designated flood and earthquake zones), covering the
repair and replacement cost of all such property and consequential loss coverage
for business interruption and extra expense (provided that the amount of such
insurance with respect to earthquakes need not exceed $15,000,000 for property
located in California), (ii) public liability insurance (including
products/completed operations liability coverage) in an amount not less than
$5,000,000 in primary coverage and $25,000,000 in umbrella coverage and (iii)
such other insurance coverage in such amounts and with respect to such risks as
is consistent with insurance maintained by businesses of comparable type and
size in the industry. All such insurance shall be provided by insurers having
an A.M. Best policyholders rating of not less than A-IX (with respect to
liability) and A-XI (with respect to property damage) or such other insurers as
Agent may approve in writing. Borrower will deliver to Agent (i) upon request
of Agent from time to time full information as to the insurance carried, (ii)
within five (5) 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 date of
this Agreement and (iii) forthwith, notice of any cancellation or nonrenewal of
coverage by Borrower.
(c) Except as otherwise permitted under Section 7.8., Borrower will, and
will cause each Subsidiary to, 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 or authorization and where
the failure to be so qualified or authorized would have a Materially Adverse
Effect on Borrower.
SECTION 7.4. Conduct of Business and Maintenance of Existence.
------------------------------------------------
Except as otherwise permitted under Section 7.8., Borrower will continue,
and will cause each Subsidiary to continue, to engage in business of the same
general type as now conducted by Borrower and its Subsidiaries, and will
preserve, renew and keep in full force and effect, and will cause each
Subsidiary to preserve, renew and keep in full force and effect their respective
existence and their respective rights, privileges and franchises necessary or
desirable in the normal conduct of business; provided that nothing in this
--------
Section shall prohibit the dissolution of a Subsidiary if (a) the Borrower's
Board of Directors has determined that such dissolution is in
-47-
the best interest of Borrower, (b) such dissolution will not be materially
disadvantageous to Lenders and (c) such dissolution will not have a Materially
Adverse Effect.
SECTION 7.5. Compliance with Laws.
--------------------
Borrower will comply, and cause each Subsidiary to comply, with all
Applicable Laws, including without limitation, all Environmental Laws and ERISA
and the rules and regulations thereunder, except where compliance therewith is
contested in good faith by appropriate proceedings or the failure to so comply
would not have a Materially Adverse Effect.
SECTION 7.6. Inspection of Property, Books and Records.
-----------------------------------------
Borrower will keep, and will cause each Subsidiary to keep, proper books of
record and account in which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and activities; and will
permit, and will cause each Subsidiary to permit, representatives of Agent to
visit and inspect any of their respective properties, to examine and make
abstracts from any of their respective books and records and to discuss their
respective affairs, finances and accounts with their respective officers,
employees and independent public accountants in Borrower's presence prior to an
Event of Default, all at such reasonable times during business hours and as
often as may reasonably be desired and with reasonable notice so long as no
Event of Default shall have occurred and be continuing.
SECTION 7.7. Accounts Payable; Indebtedness.
------------------------------
Borrower will not incur, assume or suffer to exist (a) any accounts payable
in excess of $10,000,000 in the aggregate at any time outstanding and (b) any
Indebtedness other than:
(i) Indebtedness under this Agreement; and
(ii) Indebtedness represented by declared but unpaid dividends.
SECTION 7.8. Consolidations, Mergers and Sales of Assets.
-------------------------------------------
Neither Borrower nor any of its Subsidiaries (other than any Public
Subsidiary) may (a) consolidate or merge with or into any other Person or (b)
sell, lease or otherwise transfer, directly or indirectly, and whether by one or
a series of related transactions, a substantial portion of any of its assets to
any other Person, except that a Subsidiary may merge or consolidate with another
Person or sell, lease or otherwise transfer a substantial portion of its assets
to another Person so long as (i) Borrower shall have given Agent at least 30
days prior notice thereof, (ii) after giving effect thereto, no Default or Event
of Default shall have occurred and be continuing, and Borrower shall have
delivered to Agent a certificate of an Authorized Representative of Borrower
setting forth in reasonable detail the calculations required to establish
whether Borrower will be in compliance with the requirements of Sections 7.7.
and 7.12. after giving pro forma effect thereto and (iii) in the case of a
consolidation or merger, the Person surviving such consolidation or merger will
be a Subsidiary after giving effect thereto.
-48-
SECTION 7.9. Use of Proceeds.
---------------
Borrower will only use the proceeds of the Loans made under this Agreement
(a) to finance (i) the purchase by Borrower of Securities issued by the
Borrowing Base Companies and New Investees and (ii) loans by Borrower permitted
under Section 7.13., and (b) for general corporate purposes, including without
limitation, the payment of dividends to Guarantor and the making of loans to
Guarantor evidenced by the Guarantor Note, in each case to the extent otherwise
permitted hereunder, and for no other purposes. Borrower will not use any
proceeds of the Loans for the purpose of purchasing or carrying any "margin
stock" within the meaning of Regulations T, U and X if such use would result in
a violation by any party hereto of any of Regulations T, U and X.
SECTION 7.10. ERISA.
-----
Borrower will not at any time maintain any Plan subject to the provisions
of ERISA and will not at any time be a member of any ERISA Group with any Person
that has at any time maintained any such Plan.
SECTION 7.11. Negative Pledge.
---------------
Borrower will not create, assume or suffer to exist any Lien on any of the
Collateral in which it has rights or any of its other assets, now owned or
hereafter acquired, except for Permitted Liens.
SECTION 7.12. Restricted Payments; Agreements with Affiliates.
-----------------------------------------------
(a) Borrower shall not directly or indirectly declare or make, or incur
any liability to make, any Restricted Payments; provided, however, so long as no
-------- -------
Event of Default shall have occurred and be continuing (and would not result
from the occurrence of the following), Borrower may (i) pay cash dividends
during any period of four consecutive fiscal quarters ending during the term of
this Agreement in an aggregate amount not to exceed 100% of Borrower's Cash Flow
Available for Distribution for such four fiscal quarter period, and (ii) make
distributions to Guarantor of any non-cash property of Borrower that is not (nor
required to be) subject to a Lien in favor of Agent.
(b) Borrower shall not, and shall not permit any of its Subsidiaries that
are not Public Subsidiaries to, enter into any transaction requiring such Person
to pay any amounts to or otherwise transfer property to, or pay any management
or other fees to, any Affiliate other than on terms and conditions substantially
as favorable to Borrower or such Subsidiary as would be obtainable at the time
in a comparable arm's-length transaction with a Person not an Affiliate.
SECTION 7.13. Loans to Other Persons.
----------------------
Borrower shall not, and shall not permit any Subsidiary that is not a
Public Subsidiary to, make or permit to be outstanding any loan or advance to
any Person; provided, however, Borrower may make loans to (a) Guarantor
-------- -------
evidenced by the Guarantor Note; and (b) any Consolidated Subsidiary (excluding
any Public Subsidiary) of Guarantor, in each case so long as
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(i) no Default or Event of Default exists at the time of (or would result from)
the making of such loan; (ii) such loan is evidenced by a promissory note in
form acceptable to Agent (or the Guarantor Note in the case of loans to
Guarantor) and (iii) such note is subject to the Lien of the Borrower Pledge
Agreement which Lien is perfected and of first priority (subject only to Liens
permitted under the Borrower Pledge Agreement). In addition to the foregoing,
Borrower and its Subsidiaries that are not Public Subsidiaries may make loans
and advances to employees for moving, entertainment, travel and other similar
expenses in the ordinary course of business consistent with past practices.
SECTION 7.14. ERISA Exemptions.
----------------
Borrower shall not permit any of its 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, of any ERISA Plan or any Non-
ERISA Plan.
SECTION 7.15. Separateness Covenant.
---------------------
(a) Borrower will maintain Borrower's separate existence and identity and
will take reasonable steps to make it apparent to third parties that Borrower is
an entity with assets (in particular the Pledged Shares (as defined in the
Borrower Pledge Agreement)) and liabilities distinct from those of Guarantor.
(b) Not in limitation of the generality of the foregoing, Borrower agrees
as follows:
(i) Borrower will not inadvertently commingle its assets in any
material respects with those of any other Person and shall take all
reasonable steps to maintain its assets in a manner that facilitates their
identification and segregation from those of Guarantor;
(ii) Borrower shall take all reasonable steps to prevent any of
Borrower's funds from at any time being pooled with any funds of Guarantor;
(iii) Borrower will conduct its business in its own name and from an
office separate from that of Guarantor or any other Affiliate of Borrower;
(iv) Borrower will maintain separate corporate records and books of
account from those of any other Person;
(v) Borrower will maintain separate financial statements from those
of any other Person; provided, however, financial information about
-------- -------
Borrower may be contained in consolidated financial statements issued by
Guarantor;
(vi) Borrower will pay its own liabilities, including the salaries
of its own employees, consultants and agents, from its own funds and bank
accounts;
(vii) Borrower will compensate Guarantor at market rates for any
services that Guarantor actually renders to Borrower; and
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(viii) Borrower will observe the formalities of a corporation in all
material respects.
(c) Not in limitation of the generality of the foregoing, Borrower further
agrees as follows:
(i) Borrower will not intentionally commingle its assets in any
material respects with those of any other Person; and
(ii) Borrower shall not maintain joint bank accounts or other
depository accounts to which Guarantor has access.
SECTION 7.16. Independent Director.
--------------------
As of the date hereof, Borrower's Independent Director (as defined in
Borrower's articles of incorporation) is ▇▇▇▇▇ ▇. ▇▇▇▇▇▇. Borrower shall pay
such Independent Director a director's fee not greater than comparable fees
received by independent directors of entities similar to Borrower engaging in
comparable activities with similar risks. Borrower will not permit such
Independent Director to be a trustee in bankruptcy for Guarantor.
SECTION 7.17. Guarantor Note.
--------------
Borrower will not amend, supplement, restate or otherwise modify any of the
terms of the Guarantor Note without the prior written consent of the Majority
Lenders.
SECTION 7.18. Compliance with and Amendment of Charter or Bylaws.
--------------------------------------------------
Borrower will (a) comply with the terms of its articles of incorporation
and bylaws and (b) not amend, supplement, restate or otherwise modify any of the
terms of its articles of incorporation.
SECTION 7.19. Additional Assets.
-----------------
If after the date hereof, the aggregate value of the assets (excluding
cash, cash equivalents and bank accounts) described in clause (c) of Section
6.22. shall exceed the amount set forth in such clause, (x) Borrower shall give
Agent prompt notice thereof and (y) within ten days of Agent's request, Borrower
shall execute and deliver to Agent a security agreement generally in the form of
the Guarantor Security Agreement (as defined in the Existing Credit Agreement)
pursuant to which Borrower grants to Agent for the benefit of Lenders, a
security interest in substantially all of Borrower's assets (excluding
Securities issued by New Investees and Investments in its Consolidated
Subsidiaries and the other Persons set forth on Schedule 6.22.) that are not
already Collateral, together with such other documents, instruments and
agreements as Agent may reasonably request to perfect such security interest.
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ARTICLE VIII. DEFAULTS
SECTION 8.1. Events of Default.
-----------------
If one or more of the following events shall have occurred and be
continuing:
(a) Borrower shall fail to pay within 1 Business Day of the due date
thereof any principal of any Obligation, or shall fail to pay within 3 Business
Days of the due date thereof any interest owing on any Obligation, or shall fail
to pay within 10 Business Days of the due date thereof any fees or other
Obligation;
(b) Borrower shall fail to observe or perform any covenant or agreement
contained in Section 7.1.(g), Section 7.7.(b), Section 7.8., Section 7.11. (if,
in the case of such Section 7.11., such failure was willful or intentional),
Section 7.16. or Section 7.18.;
(c) Borrower shall fail to observe or perform any covenant or agreement
contained in this Agreement (other than those covered by the immediately
preceding clause (a) or (b)) for a period of 30 days after written notice
thereof from Agent has been received by Borrower;
(d) An Event of Default under and as defined in any Loan Document shall
occur and be continuing or Borrower or Guarantor shall fail to observe or
perform any covenant or agreement contained in any of the Loan Documents to
which it is a party (other than those expressly covered by any other clause of
this Section 8.1.) and such failure shall continue beyond any applicable period
of grace;
(e) any representation, warranty, certification or statement made or
deemed made (i) by or on behalf of Borrower in this Agreement or in any
certificate, financial statement or other Loan Document to which it is a party
delivered pursuant to this Agreement or any other Loan Document, or (ii) by or
on behalf of Guarantor in the Guaranty, the Guarantor Pledge Agreement or in any
certificate, financial statement or other Loan Document to which it is a party
delivered pursuant to this Agreement or any other Loan Document, shall prove to
have been incorrect or misleading in any material respect when made or deemed
made;
(f) Borrower or Guarantor shall fail to make any payment in respect of any
of its Indebtedness (other than the Obligations) in an aggregate principal
amount in excess of $10,000,000 in the case of Borrower or $25,000,000 in the
case of Guarantor when due and such failure shall continue beyond any applicable
grace period;
(g) the maturity of any Indebtedness of Borrower or Guarantor in an
aggregate principal amount in excess of $10,000,000 in the case of Borrower or
$25,000,000 in the case of Guarantor in the case of each such Person, shall have
been (i) accelerated in accordance with the provisions of any indenture,
contract or instrument providing for the creation of or concerning such
Indebtedness or (ii) required to be prepaid in full prior to the stated maturity
thereof;
(h) Borrower, Guarantor or any Issuer of a Qualifying Security shall
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in
-52-
effect or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or taking possession
by any such official in an involuntary case or other proceeding commenced
against it, or shall make a general assignment for the benefit of creditors, or
shall fail generally to pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing;
(i) an involuntary case or other proceeding shall be commenced against
Borrower, Guarantor or any Issuer of a Qualifying Security seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property and such
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of 60 days; or an order for relief shall be entered against any such
Person under the federal bankruptcy laws as now or hereafter in effect;
(j) a judgment or order for the payment of money in excess of $10,000,000
with respect to Borrower or $25,000,000 with respect to Guarantor shall be
rendered against Borrower or Guarantor and such judgment or order shall continue
unsatisfied and unstayed for a period of 30 consecutive days;
(k) during any period of twelve consecutive calendar months, individuals
who were directors of Borrower or Guarantor on the first day of such period
shall cease to constitute a majority of the board of directors of Borrower or
Guarantor, as applicable; provided, however, that the directors of Borrower or
-------- -------
Guarantor, as applicable; may include new directors that (i) are an officer,
director or employee of a Related Company or (ii) are required in order (as a
practical matter) for the composition of the board of directors of Borrower or
Guarantor, as applicable, to comply with any provision of the articles of
incorporation or bylaws of Borrower or Guarantor, as applicable, regarding
independent directors;
(l) if a change in the management of Borrower or Guarantor has occurred
there shall have occurred without the consent of Agent within 10 days of such
change any adverse change reasonably deemed material by Agent in the identity of
persons constituting management of Borrower or Guarantor, as applicable;
(m) 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 exercised immediately or only after the passage of time), directly
or indirectly, of more than 25% of the total voting power of the then
outstanding voting stock of Guarantor;
(n) the assets of Borrower at any time constitute assets, within the
meaning of ERISA, the Internal Revenue Code and the respective regulations
promulgated thereunder, of any ERISA Plan or Non-ERISA Plan;
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(o) the Lien of Agent in any of the Collateral shall, for any reason not
otherwise permitted under the Loan Documents, cease to be a valid, enforceable,
perfected and first-priority Lien (subject to Permitted Liens) (other than as a
result of any act or omission of Agent);
(p) Guarantor shall, or shall attempt to, disavow, revoke or terminate the
Guaranty;
(q) Guarantor shall fail to observe or perform any covenant or agreement
contained in Section 6.(a)(iv), Section 6.(g) or Section 6.(i)(if, in the case
of such Section 6.(i), such failure was willful or intentional) of the Guaranty;
(r) Guarantor shall fail to observe or perform any covenant or agreement
contained in the Guaranty (other than those covered by the immediately preceding
clause (q)) for a period of 30 days after written notice thereof has been given
to Guarantor by Agent; or
(s) Guarantor shall cease to own all of the issued and outstanding capital
stock of Borrower.
SECTION 8.2. Remedies.
--------
Upon the occurrence of an Event of Default, and in every such event, Agent
shall, upon the direction of the Supermajority Lenders, (i) by notice to
Borrower terminate the Commitments, which shall thereupon terminate, and (ii) by
notice to Borrower declare the Loans and all other Obligations to be, and the
Loans and all other Obligations shall thereupon become, immediately due and
payable without presentment, demand, protest or notice of intention to
accelerate, all of which are hereby waived by Borrower. If Agent has exercised
any of the rights provided under the preceding sentence, Swingline Lender shall:
(x) declare the principal of, and accrued interest on, the Swingline Loans and
the Swingline Note at the time outstanding, and all of the other Obligations
owing to Swingline Lender, to be forthwith due and payable, whereupon the same
shall immediately become due and payable without presentment, demand, protest or
other notice of any kind, all of which are expressly waived by Borrower and (y)
terminate the Swingline Commitment and the obligation of Swingline Lender to
make Swingline Loans. Notwithstanding the foregoing, upon the occurrence of any
of the Events of Default specified in clause (h) or (i) above, without any
notice to Borrower or any other act by Agent, the Commitments and the Swingline
Commitment shall thereupon immediately and automatically terminate and the Loans
and all other Obligations shall become immediately due and payable without
presentment, demand, protest, notice of intention to accelerate or notice of
acceleration, or other notice of any kind, all of which are hereby waived by
Borrower. In addition upon the occurrence of an Event of Default, the
Supermajority Lenders may direct Agent to, and Agent if so directed shall,
instruct Borrower to cease making Investments and upon receipt of any such
instruction Borrower shall cease to do so. Not in limitation of the foregoing,
upon the occurrence of an Event of Default, the Supermajority Lenders may direct
Agent to, and Agent if so directed shall, exercise any and all of its rights
under any and all of the other Loan Documents and under Applicable Law.
-54-
SECTION 8.3. Allocation of Proceeds.
----------------------
If an Event of Default shall have occurred and be continuing and maturity
of any of the Obligations has been accelerated, all payments received by Agent
under any of the Loan Documents, in respect of any principal of or interest on
the Obligations or any other amounts payable by Borrower hereunder or
thereunder, shall be applied in the following order and priority:
(a) amounts due to Agent, and Lenders in respect of Fees and expenses due
under Sections 3.1. and 10.3., ratably in accordance with the amounts then
payable;
(b) payments of interest on Swingline Loans;
(c) payments of principal on Swingline Loans;
(d) payments of interest on Loans, to be applied for the ratable benefit
of Lenders;
(e) payments of principal of Loans, to be applied for the ratable benefit
of Lenders;
(f) amounts due to Agent and Lenders pursuant to Sections 9.7. and 10.5.;
(g) payments of all other amounts due under any of the Loan Documents, if
any, to be applied for the ratable benefit of Lenders; and
(h) any amount remaining after application as provided above, shall be
paid to Borrower or whomever else may be legally entitled thereto.
SECTION 8.4. Recision of Acceleration by Supermajority Lenders.
If at any time after acceleration of the maturity of the Obligations,
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
Supermajority Lenders, then by written notice to Borrower, the Supermajority
Lenders may elect, in the sole discretion of such Supermajority 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 Supermajority Lenders; they are not intended to benefit Borrower
and do not give Borrower the right to require the Lenders to rescind or annul
any acceleration hereunder, even if the conditions set forth herein are
satisfied.
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ARTICLE IX. THE AGENT
SECTION 9.1. Appointment and Authorization.
-----------------------------
Each Lender hereby appoints and authorizes Agent to take such action as
contractual representative on its behalf and to exercise such powers under the
Loan Documents as are delegated to Agent by the terms thereof, together with all
such powers as are reasonably incidental thereto. Borrower shall be entitled to
rely conclusively upon a written notice or written response from Agent as being
made pursuant to the requisite concurrence or consent of Lenders necessary to
take such action without investigation or otherwise contacting Lenders
hereunder. The relationship between Agent and Lenders shall be that of
principal and agent only and nothing herein shall be construed to deem Agent a
trustee for any Lender nor to impose on Agent duties or obligations other than
those expressly provided for herein. Not in limitation of the foregoing, each
Lender agrees Agent has no fiduciary obligations to such Lender under this
Agreement, any other Loan Document or otherwise. At the request of a Lender,
Agent will forward to each Lender copies or, where appropriate, originals of the
documents delivered to Agent pursuant to Section 5.1. The Agent will also
furnish to any Lender, upon the request of such Lender, a copy of any
certificate or notice furnished to Agent by Borrower pursuant to this Agreement
or any other Loan Document not already delivered to such Lender pursuant to the
terms of this Agreement or any such other Loan Document. As to any matters not
expressly provided for by the Loan Documents (including, without limitation,
enforcement or collection of the Notes), 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 Majority Lenders, and such instructions
shall be binding upon all Lenders and all holders of Notes; provided, however,
-------- -------
that Agent shall not be required to take any action which exposes Agent to
personal liability or which is contrary to this Agreement or any other Loan
Document or Applicable Law. Not in limitation of the foregoing, Agent shall not
exercise any right or remedy it or Lenders may have under any Loan Document upon
the occurrence of a Default or an Event of Default unless the Supermajority
Lenders have so directed Agent to exercise such right or remedy. Agent shall
not be deemed to have knowledge or notice of the occurrence of a Default or
Event of Default unless Agent has actual knowledge of such Default or Event of
Default. In the event that Agent has actual knowledge of the occurrence of a
Default or Event of Default, Agent shall give prompt notice thereof to Lenders.
SECTION 9.2. Agent and Affiliates.
--------------------
▇▇▇▇▇ Fargo, 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 Agent; and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include ▇▇▇▇▇ Fargo in each case in its
individual capacity. ▇▇▇▇▇ Fargo and its affiliates and the other Lenders and
their respective affiliates may each accept deposits from, maintain deposits or
credit balances for, invest in, lend money to, act as trustee under indentures
of, and generally engage in any kind of business with Borrower, any Related
Company and any Affiliate of Borrower and any Related Company as if ▇▇▇▇▇ Fargo
or such Lender were any other bank and without any duty to account therefor to
the other Lenders.
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SECTION 9.3. Collateral Matters.
------------------
(a) Each Lender authorizes and directs Agent to enter into the Loan
Documents for the benefit of Lenders. Each Lender hereby agrees that, except as
otherwise set forth herein, any action taken by the Majority Lenders in
accordance with the provisions of this Agreement or the Loan Documents, and the
exercise by the Majority Lenders of the powers set forth herein or therein,
together with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of Lenders. Agent is hereby authorized on
behalf of all of Lenders, without the necessity of any notice to or further
consent from any Lender, from time to time prior to an Event of Default, to take
any action with respect to any Collateral or Loan Documents which may be
necessary to perfect and maintain perfected the security interest in and liens
upon the Collateral granted pursuant to the Loan Documents.
(b) Lenders hereby authorize Agent, at its option and in its discretion,
to release any Lien granted to or held by Agent upon any Collateral upon
termination of the Commitments and payment and satisfaction of all of the
Obligations at any time arising under or in respect of this Agreement or the
Loan Documents or the transactions contemplated hereby or thereby.
(c) Upon any sale and transfer of Collateral which is permitted pursuant
to the terms of this Agreement, including the terms of Section 2.12., and upon
at least five (5) Business Days' prior written request by Borrower, Agent shall
(and is hereby irrevocably authorized by Lenders to) execute such documents as
may be necessary to evidence the release of the Liens granted to Agent for the
benefit of Lenders herein or pursuant hereto upon the Collateral that was sold
or transferred; provided, however, that (i) Agent shall not be required to
-------- -------
execute any such document on terms which, in Agent's opinion, would expose Agent
to liability or create any obligation or entail any consequence other than the
release of such Liens without recourse or warranty and (ii) such release shall
not in any manner discharge, affect or impair the Obligations or any Liens upon
(or obligations of Borrower or any Subsidiary in respect of) all interests
retained by Borrower or any Subsidiary, including (without limitation) the
proceeds of the sale, all of which shall continue to constitute part of the
Collateral. In the event of any sale or transfer of Collateral, or any
foreclosure with respect to any of the Collateral, Agent shall be authorized to
deduct all of the expenses reasonably incurred by Agent from the proceeds of any
such sale, transfer or foreclosure.
(d) Except as expressly provided for herein, including without limitation,
in the ninth sentence of Section 9.1., or in any of the other Loan Documents,
Agent shall have no obligation whatsoever to Lenders or to any other Person to
assure that the Collateral exists or is owned by Borrower or any Subsidiary or
is cared for, protected or insured or that the Liens granted to Agent herein or
pursuant hereto have been properly or sufficiently or lawfully created,
perfected, protected or enforced or are entitled to any particular priority, or
to exercise or to continue exercising at all or in any manner or under any duty
of care, disclosure or fidelity any of the rights, authorities and powers
granted or available to Agent in this Section or in any of the Loan Documents,
it being understood and agreed that in respect of the Collateral, or any act,
omission or event related thereto, Agent may act in any manner it may deem
appropriate, in its sole discretion, given Agent's own interest in the
Collateral as one of Lenders and that Agent shall
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have no duty or liability whatsoever to Lenders, except for its gross negligence
or willful misconduct.
SECTION 9.4. Approvals of Lenders.
--------------------
All communications from 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 thing as to which such determination, approval, consent or
disapproval is requested, or shall advise such Lender where such matter or thing
may be inspected, or shall otherwise describe the matter or issue to be
resolved, (c) shall include, if reasonably requested by such Lender and to the
extent not previously provided to such Lender, written materials and a summary
of all oral information provided to Agent by Borrower or Guarantor in respect of
the matter or issue to be resolved, and (d) shall include Agent's recommended
course of action or determination in respect thereof. Each Lender shall reply
promptly, but in any event (x) within ten Business Days (or such lesser period
as may be required under the Loan Documents for Agent to respond) for those
matters relating to foreclosure on, disposition of or the exercise of any
similar remedy with respect to any Collateral and (y) within fifteen Business
Days (or such lesser period as may be required under the Loan Documents for
Agent to respond) for any other matter. Unless a Lender shall give written
notice to Agent that it objects to the recommendation or determination of 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 9.5. Consultation with Experts.
-------------------------
Agent may consult with legal counsel (who may be counsel for Borrower or
Guarantor), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken by it in good
faith in accordance with the advice of such counsel, accountants or experts.
SECTION 9.6. Liability of Agent.
------------------
Neither Agent nor any of its affiliates nor any of their respective
directors, officers, agents or employees shall be liable for any action taken or
not taken by Agent in connection with any of the Loan Documents in the absence
of its own gross negligence or willful misconduct. Neither Agent nor any of its
affiliates nor any of their respective directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into or verify
(a) any statement, warranty or representation made in connection with any of the
Loan Documents, or any borrowing hereunder, (b) the performance or observance of
any of the covenants or agreements of Borrower or Guarantor, (c) the
satisfaction of any condition specified in Article V., or (d) the validity,
effectiveness or genuineness of any of the Loan Documents or any other
instrument or writing furnished in connection herewith or therewith. Agent
shall not incur any liability by acting in reliance upon any notice, consent,
certificate, statement, or other writing (which may be a bank wire, telex or
similar writing) believed by it to be genuine or to be signed by the proper
party or parties.
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SECTION 9.7. Indemnification of Agent.
------------------------
Lenders agree to indemnify Agent (to the extent not reimbursed by Borrower
and without limiting the obligation of Borrower to do so) in accordance with
Lenders' respective Pro Rata Shares, 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 Agent in any way relating to or
arising out of the Loan Documents or any action taken or omitted by Agent under
the Loan Documents; provided, however, that no Lender shall be liable for any
-------- -------
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements (i) to the extent arising
from Agent's gross negligence or willful misconduct or (ii) if Agent fails to
follow the written direction of the Majority Lenders unless such failure is
pursuant to Agent's good faith reliance on the advice of counsel of which
Lenders have received notice. Without limiting the generality of the foregoing,
each Lender agrees to reimburse Agent promptly upon demand for its ratable share
of any out-of-pocket expenses (including counsel fees) incurred by 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, to the extent that Agent is not reimbursed for such
expenses by Borrower. The agreements in this Section shall survive the payment
of the Loans and all other amounts payable hereunder or under the other Loan
Documents and the termination of this Agreement.
SECTION 9.8. Credit Decision.
---------------
Each Lender expressly acknowledges that neither Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or other affiliates
has made any representations or warranties to such Lender and that no act by
Agent hereinafter taken, including any review of the affairs of Borrower or
Guarantor, shall be deemed to constitute any representation or warranty by Agent
to any Lender. Each Lender acknowledges that it has, independently and without
reliance upon Agent, any other Lender or counsel to Agent, and based on the
financial statements of Borrower or Guarantor and its affiliates, its review of
the Loan Documents, the legal opinions required to be delivered to it hereunder,
the advice of its own counsel and such other documents and information as it has
deemed appropriate, made its own credit and legal analysis and decision to enter
into this Agreement and the transaction contemplated hereby. Each Lender also
acknowledges that it will, independently and without reliance upon Agent, any
other Lender or counsel to Agent, 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 expressly required to be furnished to
Lenders by Agent hereunder, Agent shall have no duty or responsibility to
provide any Lender with any credit or other information concerning the business,
operations, property, financial and other condition or creditworthiness of
Borrower, Guarantor, any other Related Company or any other Affiliate thereof
which may come into possession of Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or other affiliates.
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SECTION 9.9. Successor Agent.
---------------
Agent may resign at any time by giving 30 days' prior written notice
thereof, to Lenders and Borrower. Agent may be removed as Agent under the Loan
Documents for good cause upon 30 days' prior written notice to Agent by the
Supermajority Lenders. Upon any such resignation or removal, the Supermajority
Lenders shall have the right to appoint a successor Agent. If no successor
Agent shall have been so appointed by the Supermajority Lenders, and shall have
accepted such appointment, within 30 days after the current Agent's giving of
notice of resignation or the Supermajority Lenders' removal of the current
Agent, then the current Agent may, on behalf of Lenders, appoint a successor
Agent, which shall be a Lender, if any Lender shall be willing to serve. Any
successor Agent must be a bank (a) whose debt obligations (or whose parent's
debt obligations) are rated not less than investment grade or its equivalent by
▇▇▇▇▇'▇ Investors Service, Inc. or not less than investment grade or its
equivalent by Standard & Poor's Rating Services, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc.
(b) which has total assets in excess of $10,000,000,000 and (c) so long as no
Default or Event of Default shall have occurred and be continuing, reasonably
acceptable to Borrower. Upon the acceptance of its appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights and duties of the current Agent, and the
current Agent shall be discharged from its duties and obligations hereunder.
The current Agent shall at the expense of Borrower transfer all Collateral then
held by it to such successor Agent and execute and deliver to such successor
Agent such instruments of transfer as may be reasonably necessary to accomplish
such succession. After any current Agent's resignation hereunder as Agent, the
provisions of this Article shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent.
ARTICLE X. MISCELLANEOUS
SECTION 10.1. Notices.
-------
All notices, requests and other communications to any party under the Loan
Documents shall be in writing (including bank wire, facsimile transmission or
similar writing) and shall be given to such party as follows:
If to Borrower:
SC Realty Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If to a Lender or Agent:
To such Lender's or Agent's Lending Office
or as to each party at such other address as such party shall designate in a
written notice to the other parties. Each such notice, request or other
communication shall be effective (a) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (b) if given by any other means (including facsimile),
when delivered at the applicable address provided for in this Section; provided
--------
that notices to Agent under Article II., and any notice of a change of address
for notices, shall not be effective until received. In addition to the Agent's
Lending Office, Borrower shall send copies of the information described in
Section 7.1. to the following address of Agent:
▇▇▇▇▇ Fargo Bank, National Association
Real Estate Group
▇▇▇▇ Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
SECTION 10.2. No Waivers.
----------
No failure or delay by Agent or any Lender in exercising any right, power
or privilege under any Loan Document shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies provided in the Loan Documents shall be cumulative and not exclusive of
any rights or remedies provided by law.
SECTION 10.3. Expenses.
--------
Borrower will pay on demand all present and future reasonable expenses of:
(a) Agent in connection with the negotiation, preparation, execution,
delivery and administration (including reasonable out-of-pocket costs and
expenses incurred in connection with the assignment of Commitments pursuant to
Section 10.8.) of this Agreement, the Notes and each of the other Loan
Documents, whenever the same shall be executed and delivered, including
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appraisers' fees, search fees, recording fees and the reasonable fees and
disbursements of: (i) ▇▇▇▇▇▇ & Bird, counsel for Agent, and (ii) each local
counsel retained by Agent;
(b) Agent in connection with the negotiation, preparation, execution and
delivery of any waiver, amendment or consent by Agent or any Lender relating to
this Agreement, the Notes or any of the other Loan Documents or sales of
participations in any Lender's Commitment, including the reasonable fees and
disbursements of counsel to Agent;
(c) Agent and each of Lenders in connection with any restructuring,
refinancing or "workout" of the transactions contemplated by this Agreement, the
Notes and the other Loan Documents, including the reasonable fees and
disbursements of counsel to Agent actually incurred;
(d) Agent and each of Lenders, after the occurrence of a Default or Event
of Default, in connection with the collection or enforcement of the obligations
of Borrower or Guarantor under this Agreement, the Notes or any other Loan
Document, including the reasonable fees and disbursements of counsel to Agent or
to any Lender actually incurred if such collection or enforcement is done by or
through an attorney;
(e) Subject to any limitation contained in Section 10.5., Agent and each
of Lenders in connection with prosecuting or defending any claim in any way
arising out of, related to, or connected with this Agreement, the Notes or any
of the other Loan Documents, including the reasonable fees and disbursements of
counsel to Agent or any Lender actually incurred and of experts and other
consultants retained by Agent or any Lender in connection therewith;
(f) Agent and each of Lenders, after the occurrence of a Default or Event
of Default, in connection with the exercise by Agent or any Lender of any right
or remedy granted to it under this Agreement, the Notes or any of the other Loan
Documents including the reasonable fees and disbursements of counsel to Agent or
any Lender actually incurred;
(g) Agent in connection with costs and expenses incurred by Agent in
gaining possession of, maintaining, appraising, selling, preparing for sale and
advertising to sell the Collateral, whether or not a sale is consummated; and
(h) Agent and each of Lenders, to the extent not already covered by any of
the preceding subsections, in connection with any bankruptcy or other proceeding
of the type described in Sections 8.1.(h) or (i), and the reasonable fees and
disbursements of counsel to Agent and any Lender actually incurred in connection
with the representation of Agent or such Lender in any matter relating to or
arising out of any such proceeding, including without limitation (i) any motion
for relief from any stay or similar order, (ii) the negotiation, preparation,
execution and delivery of any document relating to Agent or such Lender and
(iii) the negotiation and preparation of any plan of reorganization of Borrower
or Guarantor, whether proposed by Borrower or Guarantor, Lenders or any other
Person, and 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.
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SECTION 10.4. Stamp, Intangible and Recording Taxes.
-------------------------------------
Borrower will pay any and all stamp, intangible, registration, recordation
and similar taxes, fees or charges and shall indemnify Agent and each Lender
against any and all liabilities with respect to or resulting from any delay in
the payment or omission to pay any such taxes, fees or charges, which may be
payable or determined to be payable in connection with the execution, delivery,
recording, performance or enforcement of this Agreement, the Notes and any of
the other Loan Documents or the perfection of any rights or Liens thereunder.
SECTION 10.5. Indemnification.
---------------
Borrower shall and hereby agrees to indemnify, defend and hold harmless
Agent and each of Lenders and their respective directors, officers, agents and
employees from and against (a) any and all losses, claims, damages, liabilities,
deficiencies, judgments or expenses incurred by any of them (except to the
extent that it results from their own gross negligence or willful misconduct)
arising out of or by reason of any litigation, investigations, claims or
proceedings which arise out of or are in any way related to: (i) this Agreement
or the transactions contemplated thereby; (ii) the making of Loans; (iii) any
actual or proposed use by Borrower of the proceeds of the Loans; (iv) the
Contribution or (v) Agent's or Lenders' entering into this Agreement, the other
Loan Documents or any other agreements and documents relating hereto, including,
without limitation, amounts paid in settlement, court costs and the reasonable
fees and disbursements of counsel incurred in connection with any such
litigation, investigation, claim or proceeding or any advice rendered in
connection with any of the foregoing and (b) any such losses, claims, damages,
liabilities, deficiencies, judgments or expenses incurred in connection with any
remedial or other similar action taken by Borrower, Agent or any of Lenders in
connection with the required compliance by Borrower or any of the Subsidiaries,
or any of their respective properties, with any federal, state or local
Environmental Laws or other material environmental rules, regulations, orders,
directions, ordinances, criteria or guidelines. If and to the extent that the
obligations of Borrower hereunder are unenforceable for any reason, Borrower
hereby agrees to make the maximum contribution to the payment and satisfaction
of such obligations which is permissible under Applicable Law. 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 its other obligations set
forth in this Agreement and the other Loan Documents.
SECTION 10.6. Setoff.
------
In addition to any rights now or hereafter granted under Applicable Law and
not by way of limitation of any such rights, each Lender is hereby authorized by
Borrower, at any time or from time to time, without notice to Borrower or to any
other Person, any such notice being hereby expressly waived, to set-off and to
appropriate and to apply any and all deposits (general or special, including,
but not limited to, indebtedness evidenced by certificates of deposit, whether
matured or unmatured) and any other indebtedness at any time held or owing by
such Lender or any affiliate of such Lender, to or for the credit or the account
of Borrower against and on account of any of the Obligations then due and owing
after the expiration of any applicable grace periods. Borrower agrees, to the
fullest extent it may effectively do so under Applicable
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Law, that any holder of a participation in a Note, whether or not acquired
pursuant to the foregoing arrangements, may exercise rights of setoff or
counterclaim and other rights with respect to such participation as fully as if
such holder of a participation were a direct creditor of Borrower in the amount
of such participation.
SECTION 10.7. Amendments.
----------
Any consent or approval required or permitted by this Agreement or in any
other Loan Document (other than any agreement evidencing the fees referred to in
Section 3.1.(d)) to be given by Lenders may be given, and the performance or
observance by Borrower or Guarantor of any terms of any such 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 Majority Lenders. Any provision
of this Agreement or of any other Loan Document (other than any agreement
evidencing the fees referred to in Section 3.1.(d)) may be amended or otherwise
modified with, but only with, the written consent of Borrower or Guarantor, as
applicable, and the Majority Lenders. Any provision of any agreement evidencing
the fees referred to in Section 3.1.(d) may be amended or otherwise modified
only in writing by Agent and Borrower, and the performance or observance by
Borrower of any terms of any such agreement may be waived only with the written
consent of Agent. Notwithstanding the foregoing, none of the following may be
amended or otherwise modified, nor may compliance by Borrower or Guarantor, as
applicable thereunder or with respect thereto be waived, without the written
consent of all Lenders and Borrower or Guarantor, as applicable: (a) the
principal amount of any Loan (including forgiveness of any amount of principal);
(b) the rates of interest on the Loans and the amount of any interest payable on
the Loans (including the forgiveness of any accrued but unpaid interest); (c)
the dates on which any principal or interest payable by Borrower under any Loan
Document is due; (d) the provisions of this Section; (e) the Revolving Credit
Termination Date; (f) the Termination Date; (g) the definition of Commitment,
Primary Securities, Borrowing Base Company or Borrowing Base; and (h) the amount
and payment date of any fees. Notwithstanding the foregoing, none of the
following may be amended or otherwise modified, nor may compliance by Borrower
or Guarantor, as applicable thereunder or with respect thereto be waived,
without the written consent of the Supermajority Lenders and Borrower or
Guarantor, as applicable: (i) the definitions of Qualifying Securities and
Supermajority Lenders; (ii) the provisions of Section 7.7. through and including
Section 7.19. and (iii) the provisions of Section 6.(g) through and including
Section 6.(q) of the Guaranty. Further, no amendment, waiver or consent unless
in writing and signed by Agent, in addition to Lenders required hereinabove to
take such action, shall affect the rights or duties of Agent under this
Agreement or any of the other Loan Documents. Any amendment, waiver or consent
relating to Section 2.14. or the obligations of Swingline Lender under this
Agreement or any other Loan Document shall, in addition to Lenders required
hereinabove to take such action, require the written consent of Swingline
Lender. Further, no Collateral shall be released or disposed of by the Agent
unless all of the Lenders so direct the Agent in writing or unless released or
disposed of as permitted by, and in accordance with, Section 9.3.(b) or (c).
Further, the Guarantor shall not be released from the Guaranty, nor shall the
Guaranty be terminated (except as expressly permitted by the terms thereof),
unless all of the Lenders consent thereto in writing. No waiver shall extend to
or affect any obligation not expressly waived or impair any right consequent
thereon. No course of
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dealing or delay or omission on the part of any Lender or Agent in exercising
any right shall operate as a waiver thereof or otherwise be prejudicial thereto.
No notice to or demand upon Borrower shall entitle Borrower to other or further
notice or demand in similar or other circumstances.
SECTION 10.8. 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 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 at any time grant to one or more banks or other
financial institutions which are not affiliates of, or otherwise related in any
way to, Borrower or Guarantor (each a "Participant") participating interests in
its Commitment or the Obligations owing to such Lender; provided, however, (i)
-------- -------
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 (ii) after giving
effect to any such participation by Agent in its capacity as 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 at least $10,000,000. Except as
otherwise provided in Section 10.6., 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
Borrower and 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 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 except as contemplated by Section 2.10., extend the
term or extend the time or waive any requirement for the reduction or
termination of, such Lender's Commitment, (ii) extend the date fixed for the
payment of principal of or interest on the Loans or portions thereof owing to
such Lender, (iii) reduce the amount of any such payment of principal, (iv)
reduce the rate at which interest is payable thereon or (v) any release of all
or substantially all of the Collateral. An assignment or other transfer which
is not permitted by subsection (c) or (d) below shall be given effect for
purposes of this Agreement only to the extent of a participating interest
granted in accordance with this subsection (b).
(c) Any Lender may with the prior written consent of Agent and, so long as
no Event of Default shall have occurred and be continuing, Borrower (which
consent, in each case, shall not be unreasonably withheld) at any time assign to
one or more Eligible Assignees which are not affiliates of, or otherwise related
in any way to, Borrower or Guarantor (each an "Assignee") all or a portion of
its rights and obligations under this Agreement and the Notes; provided,
--------
however, (i) no such consent by Borrower or Agent shall be required in the case
-------
of any assignment to
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another Lender or any affiliate of such Lender or another Lender; (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 at least $10,000,000; (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 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 (c), the transferor Lender, Agent and Borrower shall make
appropriate arrangements so that new Notes are issued to the Assignee and such
transferor Lender, as appropriate. In connection with any such assignment, the
transferor Lender shall pay to Agent an administrative fee for processing such
assignment in the amount of $3,000.
(d) 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.
(e) A Lender may furnish any information concerning Guarantor, Borrower or
any of its Subsidiaries in the possession of such Lender from time to time to
Assignees and Participants (including prospective Assignees and Participants).
(f) Anything in this Section to the contrary notwithstanding, no Lender
may assign or participate any interest in any Loan held by it hereunder to
Guarantor, Borrower or any of their respective affiliates or Subsidiaries.
SECTION 10.9. Governing Law.
-------------
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF GEORGIA.
SECTION 10.10. Litigation.
----------
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN
OR AMONG BORROWER, AGENT OR ANY OF LENDERS WOULD BE BASED ON DIFFICULT AND
COMPLEX ISSUES OF LAW AND FACT AND THAT A TRIAL BY JURY COULD RESULT IN
SIGNIFICANT DELAY AND EXPENSE. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF LENDERS, AGENT AND BORROWER HEREBY WAIVES TRIAL BY JURY
IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR
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TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST BORROWER ARISING OUT
OF THIS AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENT OR IN CONNECTION WITH
THE COLLATERAL OR ANY LIEN OR BY REASON OF ANY OTHER CAUSE OR DISPUTE WHATSOEVER
BETWEEN OR AMONG BORROWER, AGENT OR ANY OF LENDERS OF ANY KIND OR NATURE.
(b) BORROWER, AGENT AND EACH LENDER EACH HEREBY AGREES THAT THE FEDERAL
DISTRICT COURT OF THE NORTHERN DISTRICT OF GEORGIA OR, AT THE OPTION OF AGENT,
ANY STATE COURT LOCATED IN ▇▇▇▇▇▇ COUNTY, GEORGIA SHALL HAVE NON-EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG
BORROWER, AGENT OR ANY OF LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING
HEREFROM OR THEREFROM OR THE COLLATERAL. BORROWER EXPRESSLY SUBMITS AND
CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED
IN SUCH COURTS. THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE
DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY AGENT OR ANY LENDER OR THE
ENFORCEMENT BY AGENT OR ANY LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY
OTHER APPROPRIATE JURISDICTION. FURTHER, BORROWER IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH
A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
(c) THE FOREGOING WAIVERS HAVE BEEN MADE 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 10.11. Counterparts; Integration.
-------------------------
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. This Agreement, together with the other
Loan Documents, constitutes the entire agreement and understanding among the
parties hereto and supersedes any and all prior agreements and understandings,
oral or written, relating to the subject matter hereof.
SECTION 10.12. Notice of Final Agreement.
-------------------------
THIS AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
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SECTION 10.13. Invalid Provisions.
------------------
Any provision of this Agreement or any other Loan Document held by a court
of competent jurisdiction to be illegal, invalid or unenforceable shall not
invalidate the remaining provisions of such Loan Document which shall remain in
full force and effect and the effect thereof shall be confined to the provision
held invalid or illegal.
SECTION 10.14. NO NOVATION; EFFECT OF AMENDMENT AND RESTATEMENT.
------------------------------------------------
THE PARTIES HERETO HAVE ENTERED INTO THIS AGREEMENT SOLELY TO AMEND AND
RESTATE THE TERMS OF THE EXISTING CREDIT AGREEMENT. THE PARTIES DO NOT INTEND
THIS AGREEMENT NOR THE TRANSACTIONS CONTEMPLATED HEREBY TO BE, AND THIS
AGREEMENT AND THE TRANSACTION CONTEMPLATED HEREBY SHALL NOT BE CONSTRUED TO BE,
A NOVATION OF ANY OF THE OBLIGATIONS OWING BY BORROWER UNDER OR IN CONNECTION
WITH ANY OF THE EXISTING CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS (AS
DEFINED IN THE EXISTING CREDIT AGREEMENT). FURTHER, THE PARTIES DO NOT INTEND
THIS AGREEMENT NOR THE TRANSACTIONS CONTEMPLATED HEREBY TO AFFECT THE PERFECTION
OR PRIORITY OF ANY LIEN OF AGENT IN ANY OF THE COLLATERAL IN ANY WAY WHATSOEVER.
THE AMENDMENT AND RESTATEMENT OF THE EXISTING CREDIT AGREEMENT EFFECTED BY THIS
AGREEMENT SHALL BE DEEMED TO HAVE PROSPECTIVE APPLICATION ONLY UNLESS OTHERWISE
SPECIFICALLY STATED HEREIN.
[Signatures on Following Pages]
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amended and
Restated Credit Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
SC REALTY INCORPORATED
By:_______________________________
Name:____________________________
Title:___________________________
[Signatures Continued on Next Page]
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[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
APRIL 6, 1998 WITH SC REALTY INCORPORATED]
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
individually and as Agent
By:_____________________________
Name:________________________
Title:_______________________
Commitment Amount: $77,500,000
Lending Office (all Types of Loans):
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
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[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
APRIL 6, 1998 WITH SC REALTY INCORPORATED]
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
By:_____________________________
Name:_________________________
Title:________________________
Commitment Amount: $77,500,000
Lending Office (all Types of Loans):
707 ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
-71-
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
APRIL 6, 1998 WITH SC REALTY INCORPORATED]
CREDIT LYONNAIS NEW YORK BRANCH
By:_____________________________
Name:_________________________
Title:________________________
Commitment Amount: $75,000,000
Lending Office (all Types of Loans):
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
-72-
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
APRIL 6, 1998 WITH SC REALTY INCORPORATED]
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By:_____________________________
Name:_________________________
Title:________________________
Commitment Amount: $50,000,000
Lending Office (all Types of Loans):
▇▇▇▇ #▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
-73-
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
APRIL 6, 1998 WITH SC REALTY INCORPORATED]
BANK OF MONTREAL, CHICAGO BRANCH
By:_____________________________
Name:_________________________
Title:________________________
Commitment Amount: $50,000,000
Lending Office (all Types of Loans):
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Copy of Notices to go to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
-74-
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
APRIL 6, 1998 WITH SC REALTY INCORPORATED]
NATIONSBANK OF TEXAS, N.A.
By:_____________________________
Name:_________________________
Title:________________________
Commitment Amount: $50,000,000
Lending Office (all Types of Loans):
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: M. ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
-75-
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
APRIL 6, 1998 WITH SC REALTY INCORPORATED]
GUARANTY FEDERAL BANK, F.S.B.
By:_____________________________
Name:_________________________
Title:________________________
Commitment Amount: $40,000,000
Lending Office (all Types of Loans):
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
-76-
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
APRIL 6, 1998 WITH SC REALTY INCORPORATED]
AMSOUTH BANK
By:_____________________________
Name:_________________________
Title:________________________
Commitment Amount: $35,000,000
Lending Office (all Types of Loans):
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
-77-
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
APRIL 6, 1998 WITH SC REALTY INCORPORATED]
DRESDNER BANK AG, NEW YORK BRANCH AND
GRAND CAYMAN BRANCH
By:_____________________________
Name:_________________________
Title:________________________
By:_____________________________
Name:_________________________
Title:________________________
Commitment Amount: $35,000,000
Lending Office (all Types of Loans):
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
-78-
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
APRIL 6, 1998 WITH SC REALTY INCORPORATED]
FIRST UNION NATIONAL BANK
By:_____________________________
Name:_________________________
Title:________________________
Commitment Amount: $35,000,000
Lending Office (all Types of Loans):
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
-79-
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
APRIL 6, 1998 WITH SC REALTY INCORPORATED]
PNC BANK, NATIONAL ASSOCIATION
By:_____________________________
Name:_________________________
Title:________________________
Commitment Amount: $35,000,000
Lending Office (all Types of Loans):
One PNC Plaza, 19th Floor
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
-80-
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
APRIL 6, 1998 WITH SC REALTY INCORPORATED]
TRANSAMERICA LIFE INSURANCE AND ANNUITY CO.
By:_____________________________
Name:_________________________
Title:________________________
Commitment Amount: $35,000,000
Lending Office (all Types of Loans):
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇-▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures continued on Next Page]
-81-
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
APRIL 6, 1998 WITH SC REALTY INCORPORATED]
BANK ONE ARIZONA, NA
By:_____________________________
Name:_________________________
Title:________________________
Commitment Amount: $25,000,000
Lending Office (all Types of Loans):
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇. ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
-82-
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
APRIL 6, 1998 WITH SC REALTY INCORPORATED]
FLEET NATIONAL BANK
By:_____________________________
Name:_________________________
Title:________________________
Commitment Amount: $25,000,000
Lending Office (all Types of Loans):
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code RIMO 215
Providence, Rhode Island 02903
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
-83-
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
APRIL 6, 1998 WITH SC REALTY INCORPORATED]
BANKBOSTON, N.A.
By:_____________________________
Name:_________________________
Title:________________________
Commitment Amount: $20,000,000
Lending Office (all Types of Loans):
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
-84-
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
APRIL 6, 1998 WITH SC REALTY INCORPORATED]
KREDIETBANK N.V.
By:_____________________________
Name:_________________________
Title:________________________
By:_____________________________
Name:_________________________
Title:________________________
Commitment Amount: $20,000,000
Lending Office (all Types of Loans):
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
-85-
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
APRIL 6, 1998 WITH SC REALTY INCORPORATED]
MELLON BANK, N.A.
By:_____________________________
Name:_________________________
Title:________________________
Commitment Amount: $15,000,000
Lending Office (all Types of Loans):
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-86-