EXHIBIT 10.51
$300,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 9, 1999
by and among
CNL APF PARTNERS, LP,
as Borrower,
CNL AMERICAN PROPERTIES FUND, INC.,
as Parent,
FIRST UNION NATIONAL BANK,
as Administrative Agent,
each of
FIRST UNION CAPITAL MARKETS GROUP
and
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arrangers
and
as Book Managers,
NATIONSBANK, N.A.,
as Syndication Agent,
THE CHASE MANHATTAN BANK,
as Documentation Agent,
and
THE FINANCIAL INSTITUTIONS PARTY HERETO
AND THEIR ASSIGNEES UNDER SECTION 12.5.,
as Lenders
TABLE OF CONTENTS/*/
Article I. Definitions.......................................................................................... 1
Section 1.1. Definitions................................................................................... 1
Section 1.2. General; References to Times.................................................................. 26
Article II. Credit Facility...................................................................................... 26
Section 2.1. Revolving Loans............................................................................... 26
Section 2.2. Rates and Payment of Interest on Loans........................................................ 27
Section 2.3. Number of Interest Periods.................................................................... 28
Section 2.4. Repayment of Loans............................................................................ 28
Section 2.5. Prepayments................................................................................... 28
Section 2.6. Continuation.................................................................................. 29
Section 2.7. Conversion.................................................................................... 29
Section 2.8. Notes......................................................................................... 30
Section 2.9. Letters of Credit............................................................................. 30
Section 2.10. Voluntary Reductions of the Commitment........................................................ 34
Section 2.11. Increase of Commitments....................................................................... 34
Section 2.12. Expiration or Maturity Date of Letters of Credit Past Termination Date........................ 35
Section 2.13. Amount Limitations............................................................................ 35
Article III. Payments, Fees and Other General Provisions.......................................................... 35
Section 3.1. Payments...................................................................................... 35
Section 3.2. Pro Rata Treatment............................................................................ 36
Section 3.3. Sharing of Payments, Etc...................................................................... 36
Section 3.4. Several Obligations........................................................................... 37
Section 3.5. Minimum Amounts............................................................................... 37
Section 3.6. Fees.......................................................................................... 38
Section 3.7. Computations.................................................................................. 38
Section 3.8. Usury......................................................................................... 39
Section 3.9. Agreement Regarding Interest and Charges...................................................... 39
Section 3.10. Statements of Account......................................................................... 39
Section 3.11. Defaulting Lenders............................................................................ 39
Section 3.12. Taxes......................................................................................... 41
Article IV. Yield Protection, Etc................................................................................. 42
Section 4.1. Additional Costs; Capital Adequacy............................................................ 42
Section 4.2. Suspension of LIBOR Loans..................................................................... 44
Section 4.3. Illegality.................................................................................... 44
Section 4.4. Compensation.................................................................................. 44
Section 4.5. Treatment of Affected Loans................................................................... 45
Section 4.6. Change of Lending Office...................................................................... 45
Section 4.7. Assumptions Concerning Funding of LIBOR Loans................................................. 45
________________________________
/*/ This Table of Contents is not part of the Credit Agreement and is provided
as a convenience only.
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Article V. Conditions Precedent..................................................................................... 46
Section 5.1. Initial Conditions Precedent.................................................................... 46
Section 5.2. Conditions Precedent to All Loans and Letters of Credit......................................... 49
Section 5.3. Conditions as Covenants......................................................................... 49
Article VI. Representations and Warranties.......................................................................... 49
Section 6.1. Representations and Warranties.................................................................. 49
Section 6.2. Survival of Representations and Warranties, Etc................................................. 56
Article VII. Affirmative Covenants.................................................................................. 56
Section 7.1. Preservation of Existence and Similar Matters................................................... 56
Section 7.2. Compliance with Applicable Law and Material Contracts........................................... 57
Section 7.3. Maintenance of Property......................................................................... 57
Section 7.4. Conduct of Business............................................................................. 57
Section 7.5. Insurance....................................................................................... 57
Section 7.6. Payment of Taxes and Claims..................................................................... 58
Section 7.7. Visits and Inspections.......................................................................... 58
Section 7.8. Use of Proceeds and Letters of Credit........................................................... 58
Section 7.9. Environmental Matters........................................................................... 59
Section 7.10. Books and Records............................................................................... 59
Section 7.11. REIT Status..................................................................................... 59
Section 7.12. ERISA Exemptions................................................................................ 59
Section 7.13. Exchange Listing................................................................................ 60
Section 7.14. Further Assurances.............................................................................. 60
Section 7.15. New Subsidiaries; Joint Ventures................................................................ 60
Section 7.16. Year 2000 Compliance............................................................................ 60
Article VIII. Information........................................................................................... 60
Section 8.1. Quarterly Financial Statements.................................................................. 61
Section 8.2. Year-End Statements............................................................................. 61
Section 8.3. Compliance Certificate.......................................................................... 61
Section 8.4. Other Information............................................................................... 62
Article IX. Negative Covenants...................................................................................... 65
Section 9.1. Financial Covenants............................................................................. 65
Section 9.2. Debt............................................................................................ 66
Section 9.3. Contingent Obligations.......................................................................... 67
Section 9.4. Certain Permitted Investments................................................................... 68
Section 9.5. Investments Generally........................................................................... 69
Section 9.6. Liens; Agreements Regarding Liens; Other Matters................................................ 70
Section 9.7. Restricted Payments............................................................................. 71
Section 9.8. Ground Leases................................................................................... 72
Section 9.9. Merger, Consolidation, Sales of Assets and Other Arrangements; Sale-Lease Back Transactions..... 72
Section 9.10. Dispositions of Assets.......................................................................... 74
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Section 9.11. Fiscal Year..................................................................................... 74
Section 9.12. Modifications to Material Contracts............................................................. 74
Section 9.13. Transactions with Affiliates.................................................................... 74
Section 9.14. Distributions of Income to the Borrower......................................................... 74
Section 9.15. Contribution of Assets by Parent to Borrower.................................................... 75
Section 9.16. Limitation on International Leases.............................................................. 75
Section 9.17. Hedge Agreements................................................................................ 75
Article X. Default.................................................................................................. 75
Section 10.1. Events of Default............................................................................... 75
Section 10.2. Remedies Upon Event of Default.................................................................. 79
Section 10.3. Remedies Upon Default........................................................................... 80
Section 10.4. Allocation of Proceeds.......................................................................... 80
Section 10.5. Performance by Administrative Agent............................................................. 81
Section 10.6. Rights Cumulative............................................................................... 81
Section 10.7. Rescission of Acceleration by Requisite Lenders................................................. 81
Section 10.8. Collateral Account.............................................................................. 82
Article XI. The Administrative Agent................................................................................ 83
Section 11.1. Authorization and Action........................................................................ 83
Section 11.2. Administrative Agent's Reliance, Etc............................................................ 83
Section 11.3. Notice of Defaults.............................................................................. 84
Section 11.4. First Union as Lender........................................................................... 84
Section 11.5. Approvals of Lenders............................................................................ 85
Section 11.6. Lender Credit Decision, Etc..................................................................... 85
Section 11.7. Indemnification of Administrative Agent and Arrangers........................................... 86
Section 11.8. Successor Administrative Agent.................................................................. 87
Section 11.9. Titled Parties Have No Duties................................................................... 87
Article XII. Miscellaneous.......................................................................................... 88
Section 12.1. Notices......................................................................................... 88
Section 12.2. Expenses........................................................................................ 89
Section 12.3. Setoff.......................................................................................... 89
Section 12.4. Waiver of Jury Trial; Arbitration............................................................... 90
Section 12.5. Successors and Assigns.......................................................................... 92
Section 12.6. Amendments...................................................................................... 94
Section 12.7. Nonliability of Administrative Agent and Lenders................................................ 95
Section 12.8. Confidentiality................................................................................. 95
Section 12.9. Indemnification................................................................................. 96
Section 12.10. Termination; Survival........................................................................... 98
Section 12.11. Severability of Provisions...................................................................... 98
Section 12.12. GOVERNING LAW................................................................................... 98
Section 12.13. Counterparts.................................................................................... 98
Section 12.14. Limitation of Liability......................................................................... 99
Section 12.15. Obligations with Respect to Loan Parties........................................................ 99
Section 12.16. Entire Agreement................................................................................ 99
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Section 12.17. Construction................................................................................ 99
Section 12.18. Limitation of Liability of Officers, Directors, Etc......................................... 99
Section 12.19. No Novation................................................................................. 100
EXHIBIT A Form of Assignment and Acceptance Agreement
EXHIBIT B Form of Guaranty
EXHIBIT C Form of Notice of Borrowing
EXHIBIT D Form of Notice of Continuation
EXHIBIT E Form of Notice of Conversion
EXHIBIT F Form of Revolving Note
EXHIBIT G Form of Opinion of Counsel
EXHIBIT H Form of Compliance Certificate
SCHEDULE 1.1. Joint Ventures
SCHEDULE 6.1.(b) Ownership Structure; Unconsolidated Affiliates
SCHEDULE 6.1.(f) Title to Properties; Liens
SCHEDULE 6.1.(g) Unencumbered Properties
SCHEDULE 6.1.(h) Existing Secured and Unsecured Debt
SCHEDULE 6.1.(i) Material Contracts
SCHEDULE 6.1.(j) Litigation
SCHEDULE 9.3. Existing Contingent Obligations
SCHEDULE 9.5. Investments
SCHEDULE 9.13. Transactions With Affiliates
SCHEDULE 9.17. Hedge Agreements
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THIS AMENDED AND RESTATED CREDIT AGREEMENT dated as of June 9, 1999 by and
among CNL APF PARTNERS, LP, a limited partnership formed under the laws of the
State of Delaware (the "Borrower"), CNL AMERICAN PROPERTIES FUND, INC., a
corporation organized under the laws of the State of Maryland (the "Parent"),
FIRST UNION NATIONAL BANK, as contractual representative of the Lenders to the
extent and in the manner provided in Article XI. below (in such capacity, the
"Administrative Agent"), as Administrative Agent, each of FIRST UNION CAPITAL
MARKETS GROUP and BANC OF AMERICA SECURITIES LLC, formerly known as NationsBank
▇▇▇▇▇▇▇▇▇▇ Securities LLC, as Joint Lead Arrangers and Book Managers (each an
"Arranger"), NATIONSBANK, N.A., as Syndication Agent (the "Syndication Agent"),
THE CHASE MANHATTAN BANK, as Documentation Agent (the "Documentation Agent"),
and each of the financial institutions initially a signatory hereto together
with their assignees pursuant to Section 12.5.(d).
WHEREAS, the Administrative Agent and certain of the Lenders have made
available to the Borrower a revolving credit facility in an amount up to
$200,000,000, which includes a $10,000,000 letter of credit subfacility, on the
terms and conditions contained in that certain Credit Agreement dated as of
March 22, 1999 (the "Existing Credit Agreement") by and among the Borrower, the
Parent, such Lenders, the Arrangers, the Syndication Agent and the
Administrative Agent; and
WHEREAS, the Borrower, the Lenders and the Agent desire to amend and
restate the terms of the Existing Credit Agreement in order, among other things,
to increase the amount of such revolving credit facility to $300,000,000, 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 in its
entirety as follows:
Article I. Definitions
Section 1.1. Definitions.
In addition to terms defined elsewhere herein, the following terms shall
have the following meanings for the purposes of this Agreement:
"Accession Agreement" means an Accession Agreement substantially in the
form of Annex I to the Guaranty.
"Additional Costs" has the meaning given that term in Section 4.1.
"Adjusted EBITDA" means, for any period, EBITDA for such period excluding
the following: (a) EBITDA attributable to income from any Excluded Asset and (b)
depreciation with respect to any Real Property Asset which is the subject of a
lease that is an Excluded Asset. For purposes of this definition only, EBITDA
attributable to a lease under which the tenant is the subject of a Bankruptcy
Proceeding shall not be excluded when determining Adjusted EBITDA once such
lease has been accepted (as opposed to rejected) under Section 365 of Bankruptcy
Code of 1978, as amended, and the other applicable provisions of such Bankruptcy
Code, and so long as such lease otherwise remains an Eligible Lease.
"Adjusted Eurodollar Rate" means, with respect to each Interest Period for
any LIBOR Loan, the rate obtained by dividing (a) LIBOR for such Interest Period
by (b) a percentage equal to 1 minus the stated maximum rate (stated as a
decimal) of all reserves, if any, required to be maintained against
"Eurocurrency liabilities" as specified in Regulation D of the Board of
Governors of the Federal Reserve System (or against any other category of
liabilities which includes deposits by reference to which the interest rate on
LIBOR Loans is determined or any category of extensions of credit or other
assets which includes loans by an office of any Lender outside of the United
States of America to residents of the United States of America).
"Adjusted Net Capitalization" means, with respect to the Parent and its
Consolidated Subsidiaries: (a) Total Assets minus (b) the aggregate amount of
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all Intangible Assets minus (c) 50% of the Value of all leases that are Excluded
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Assets, and 50% of the book value of all promissory notes that are Excluded
Assets plus (d) the aggregate amount of accumulated depreciation and
----
amortization minus (e) 50% of the aggregate amount of accumulated depreciation
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and amortization with respect to the Real Property Assets which are leased under
Operating Leases that are Excluded Assets minus (f) the aggregate amount by
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which the book value of all Subordinated Interests (excluding those issued in
connection with Permitted On Balance Sheet Warehouse Financings and Nonrecourse
SPE Financings) held by the Parent and its Consolidated Subsidiaries exceeds the
respective Fair Value of such Subordinated Interests. For purposes of
determining Adjusted Net Capitalization, the following limitations shall apply:
(i) to the extent that the aggregate value of Excluded Assets would exceed 2% of
Adjusted Net Capitalization (determined without giving effect to this clause
(i)), such excess shall be excluded in determining Adjusted Net Capitalization;
(ii) to the extent that the aggregate value (which shall equal the lower of book
value or Fair Value) of Subordinated Interests (excluding those issued in
connection with Permitted On Balance Sheet Warehouse Financings and Nonrecourse
SPE Financings) would exceed 10% of Adjusted Net Capitalization (determined
without giving effect to this clause (ii)), such excess shall be excluded in
determining Adjusted Net Capitalization; and (iii) the Fair Value of
Subordinated Interests shall be redetermined as of the last day of each fiscal
quarter of the Parent.
"Administrative Agent" means First Union National Bank, as contractual
representative for the Lenders under the terms of this Agreement, and any of its
successors.
"Affiliate" means any Person (other than the Administrative Agent or any
Lender): (a) directly or indirectly controlling, controlled by, or under common
control with, the Parent; (b) directly or indirectly owning or holding ten
percent (10.0%) or more of any equity interest in the Parent; or (c) ten percent
(10.0%) or more of whose Voting Stock or other equity interest is directly or
indirectly owned or held by the Parent. For purposes of this definition,
"control" (including with correlative meanings, the terms "controlling",
"controlled by" and "under common control with") means the possession directly
or indirectly of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting
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securities or by contract or otherwise. The Affiliates of a Person shall include
any officer or director of such Person.
"Agreement Date" means the date as of which this Agreement is dated.
"Applicable Law" means all applicable provisions of constitutions,
statutes, rules, regulations and orders of all governmental bodies and all
orders and decrees of all courts, tribunals and arbitrators.
"Applicable Margin" means:
(a) during any period for which the Parent has not received an Investment
Grade Rating from both Rating Agencies, the percentage rate set forth below
corresponding to the ratio of Debt to Adjusted Net Capitalization as determined
in accordance with Section 9.1.(a) in effect at such time:
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Ratio Of Debt To Adjusted Net Applicable Margin For Applicable Margin For
Level Capitalization LIBOR Loans Base Rate Loans
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2 Less than or equal to 0.30 to 1.00 1.75% 0.250%
1 Greater than 0.30 to 1.00 2.00% 0.250%
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The Applicable Margin shall be determined by the Administrative Agent under this
clause (a) from time to time, based on the ratio of Debt to Adjusted Net
Capitalization as set forth in the Compliance Certificate most recently
delivered by the Parent pursuant to Section 8.3. Any adjustment to the
Applicable Margin shall be effective (i) in the case of a Compliance Certificate
delivered in connection with quarterly financial statements of the Parent
delivered pursuant to Section 8.1., as of the date 45 days following the end of
the last day of the applicable fiscal period covered by such Compliance
Certificate, (ii) in the case of a Compliance Certificate delivered in
connection with annual financial statements of the Parent delivered pursuant to
Section 8.2., as of the date 90 days following the end of the last day of the
applicable fiscal period covered by such Compliance Certificate, and (iii) in
the case of any other Compliance Certificate, as of the date 5 Business Days
following the Administrative Agent's request for such Compliance Certificate.
Notwithstanding the foregoing, for the period from the Effective Date through
but excluding the date on which the Administrative Agent first determines the
Applicable Margin as set forth above, the Applicable Margin for LIBOR Loans
shall equal 1.75%. Thereafter, the Applicable Margin shall be adjusted from
time to time as set forth above; or
(b) during any period for which the Parent has received an Investment Grade
Rating from both Rating Agencies, the percentage per annum determined, at any
time, based on the range into which the Parent's Credit Rating then falls, in
accordance with the table set forth below. Any change in the Parent's Credit
Rating which would cause it to move to a different level in the table shall
effect a change in the Applicable Margin on the Business Day immediately
following the date on which such change occurs. During any period that the
Parent has received Credit Ratings that are not equivalent, the Applicable
Margin shall be determined by the lower of such two Credit Ratings.
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Parent's Credit Rating Applicable Margin For Applicable Margin For
Level (S&p/▇▇▇▇▇'▇) LIBOR Loans Base Rate Loans
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1 BBB+/Baa1 (or higher) 1.30% 0%
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2 BBB/Baa2 1.40% 0%
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3 BBB-/Baa3 1.50% 0%
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"Assignee" has the meaning given that term in Section 12.5.(d).
"Assignment and Acceptance Agreement" means an Assignment and Acceptance
Agreement among a Lender, an Assignee and the Administrative Agent,
substantially in the form of Exhibit A.
"Bankruptcy Proceeding" means a case, proceeding or condition of any of
the types described in Sections 10.1.(e) or (f).
"Base Rate" means the per annum rate of interest equal to the greater of
(a) the Prime Rate or (b) the Federal Funds Rate plus one-half of one percent
(0.5%). Any change in the Base Rate resulting from a change in the Prime Rate or
the Federal Funds Rate shall become effective as of 12:01 a.m. on the Business
Day on which each such change occurs. The Base Rate is a reference rate used by
the Administrative Agent in determining interest rates on certain loans and is
not intended to be the lowest rate of interest charged by the Administrative
Agent or any Lender on any extension of credit to any debtor.
"Base Rate Loan" means a Loan bearing interest at a rate based on the
Base Rate.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Borrower" has the meaning set forth in the introductory paragraph hereof
and shall include the Borrower's successors and assigns.
"Business Day" means (a) any day other than a Saturday, Sunday or other
day on which banks in Charlotte, North Carolina are authorized or required to
close and (b) with reference to a LIBOR Loan, any such day that is also a day on
which dealings in Dollar deposits are carried out in the London interbank
market.
"Capital Expenditures" means, with respect to any Person, all
expenditures made and liabilities incurred for the acquisition of assets which
are not, in accordance with GAAP, treated as expense items for such Person in
the year made or incurred or as a prepaid expense applicable to a future year or
years.
"Capitalized Lease Obligation" means Debt represented by obligations
under a lease that is required to be capitalized for financial reporting
purposes in accordance with GAAP, and
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the amount of such Debt is the capitalized amount of such obligations determined
in accordance with GAAP.
"Cash Equivalents" means: (a) securities issued, guaranteed or insured by
the United States of America or any of its agencies with maturities of not more
than one year from the date acquired; (b) certificates of deposit with
maturities of not more than one year from the date acquired issued by a United
States federal or state chartered commercial bank of recognized standing, which
has capital and unimpaired surplus in excess of $500,000,000.00 and which bank
or its holding company has a short-term commercial paper rating of at least A-2
or the equivalent by S&P or at least P-2 or the equivalent by Moody's; (c)
reverse repurchase agreements with terms of not more than seven days from the
date acquired, for securities of the type described in clause (a) above and
entered into only with commercial banks having the qualifications described in
clause (b) above; (d) commercial paper issued by any Person incorporated under
the laws of the United States of America or any state thereof or the District of
Columbia and rated at least A-2 or the equivalent thereof by S&P or at least P-2
or the equivalent thereof by Moody's, in each case with maturities of not more
than one year from the date acquired; and (e) investments in money market funds
registered under the Investment Company Act of 1940, which have net assets of at
least $500,000,000.00 and at least 85% of whose assets consist of securities and
other obligations of the type described in clauses (a) through (d) above.
"Collateral Account" means a special non-interest bearing deposit account
maintained by the Administrative Agent and under its sole dominion and control.
"Commitment" means, as to each Lender, such Lender's obligation to make
Revolving Loans pursuant to Section 2.1. and to issue (in the case of the
Administrative Agent) or participate in (in the case of the other Lenders)
Letters of Credit pursuant to Section 2.9.(a) and 2.9.(i) respectively, in an
amount up to, but not exceeding (but in the case of the Administrative Agent
excluding the aggregate amount of participations in the Letters of Credit held
by other Lenders), the amount set forth for such Lender on its signature page
hereto as such Lender's "Commitment Amount" or as set forth in the applicable
Assignment and Acceptance Agreement, as the same may be reduced from time to
time pursuant to Section 2.10. or as appropriate to reflect any assignments to
or by such Lender effected in accordance with Section 12.5.
"Commitment Percentage" means, as to each Lender, the ratio, expressed as
a percentage, of (a) the amount of such Lender's Commitment to (b) the aggregate
amount of the Commitments of all Lenders hereunder; provided, however, that if
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at the time of determination the Commitments have terminated or been reduced to
zero, the "Commitment Percentage" of each Lender shall be the Commitment
Percentage of such Lender in effect immediately prior to such termination or
reduction.
"Compliance Certificate" has the meaning given such term in Section 8.3.
"Concept" refers to any distinctive system for establishing and operating
restaurants which is the subject of a license or franchise from a Person. Not
in limitation of the foregoing,
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and by way of example only, such systems would include "▇▇▇▇ in the Box,"
"Golden Corral" and "IHOP."
"Consolidated Subsidiary" means, with respect to a Person, any Subsidiary
of such Person the accounts of which are required to be consolidated with those
of such Person in its consolidated financial statements in accordance with GAAP.
"Consolidation" means the acquisition by the Parent of (a) CNL Fund
Advisors, Inc.; (b) CNL Financial Services, Inc. and CNL Financial Corporation
and (c) substantially all of the assets of CNL Income Fund, LTD through CNL
Income Fund, XVIII, LTD (other than any such Fund whose limited partners do not
approve its acquisition), all as more particularly described in the materials
delivered by the Parent under Section 5.1.(a)(xviii).
"Contingent Obligation" means, with respect to any Person, any obligation
of such Person to guarantee or intended to guarantee any Debt, leases, dividends
or other obligations ("primary obligations") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including, without
limitation, (a) the direct or indirect guaranty, endorsement (other than for
collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of the obligation
of a primary obligor, (b) the obligation to make take-or-pay or similar
payments, if required, regardless of nonperformance by any other party or
parties to an agreement or (c) any obligation of such Person, whether or not
contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or supply
funds (A) for the purchase or payment of any such primary obligation or (B) to
maintain working capital, equity capital, net worth or other balance sheet
condition or any income statement condition of the primary obligor or otherwise
to maintain the solvency of the primary obligor, (iii) to purchase, lease or
otherwise acquire property, assets, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (iv) otherwise
to assure or hold harmless the holder of such primary obligation against loss in
respect thereof. The amount of any Contingent Obligation shall be deemed to be
an amount equal to the stated or determinable amount of the primary obligation
in respect of which such Contingent Obligation is made (or, if less, the maximum
amount of such primary obligation for which such Person may be liable pursuant
to the terms of the agreement, instrument or other document evidencing such
Contingent Obligation) or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder), as determined by such Person in good faith. Contingent
Obligations shall not include the following obligations or liabilities of the
Parent, the Borrower or any other Subsidiary (including any Special Purpose
Entity) to the extent incurred in connection with a Structured Financing: (a)
reasonable and customary obligations of the Parent, the Borrower or any other
Subsidiary with respect to (i) the servicing of any assets which are the subject
of such Structured Financing, (ii) administrative and ministerial matters
relating to any applicable Special Purpose Entity and related Excluded
Subsidiaries, (iii) maintenance of the corporate separateness of any such
Special Purpose Entity and related Excluded Subsidiaries from that of the Parent
and its other Subsidiaries and (iv) the guaranty of payment of fees of any
Person acting as a trustee in connection with such Structured Financing and
indemnification obligations
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owing to any such Person, and (b) reasonable and customary repurchase
obligations and other liabilities resulting from the breach of representations,
warranties and covenants that are not related to creditworthiness of the
obligors on the financial assets the subject of such Structured Financing and,
following the Parent's acquisition of CNL Financial Services, Inc. and CNL
Financial Corporation in connection with the Consolidation, repurchase
obligations resulting from the conversion of adjustable rate loans to fixed rate
loans, and associated obligations relating to the acquisition of Hedge
Agreements with respect to such loans, in each case arising solely in connection
with the transaction contemplated by that certain Wholesale Warehouse Mortgage
Indenture dated as of August 1, 1998 among CNL Funding 98-1 LP, as Issuer, and
Norwest Bank Minnesota, National Association, as Trustee. In addition, the
ownership of a Subordinated Interest shall not be deemed to give rise to any
Contingent Obligation on the part of the owner thereof. Further, Contingent
Obligations shall not include liabilities of the Parent or any Consolidated
Subsidiary which result solely from the Parent or such Consolidated Subsidiary
being a general partner of a Special Purpose Entity that is a limited
partnership and is not a Consolidated Subsidiary.
"Continue", "Continuation" and "Continued" each refers to the
continuation of a LIBOR Loan from one Interest Period to another Interest Period
pursuant to Section 2.6.
"Contribution Date" means first to occur of (a) the consummation of the
acquisition by the Parent of substantially all of the assets of CNL Income Fund,
LTD through CNL Income Fund, XVIII, LTD (other than any such Fund whose limited
partners do not approve its acquisition) in connection with the Consolidation or
(b) December 31, 1999.
"Convert", "Conversion" and "Converted" each refers to the conversion of
a Loan of one Type into a Loan of another Type pursuant to Section 2.7.
"Credit Event" means any of the following: (a) the making (or deemed
making) of any Loan, (b) the Conversion of a Loan and (c) the issuance of a
Letter of Credit.
"Credit Rating" means the lowest rating assigned by a Rating Agency to
each series of rated senior unsecured long term indebtedness of the Parent.
"Debt" means, with respect to a Person, at the time of computation
thereof, all of the following determined on a consolidated basis (without
duplication): (a) all indebtedness of such Person for borrowed money; (b) all
obligations of such Person for the deferred purchase price of property and
assets or services (other than trade payables or other accounts payable incurred
in the ordinary course of such Person's business and not past due for more than
90 days after the date on which each such trade payable or account payable was
created); (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, or upon which interest payments are
customarily made; (d) all Capitalized Lease Obligations of such Person; (e) all
obligations, contingent or otherwise, of such Person under acceptance, letter of
credit or similar facilities; (f) all obligations of such Person created or
arising under any conditional sale or other title retention agreement with
respect to property or assets acquired by such Person (even though the rights
and remedies of the seller or the lender under such agreement in the event of
default are
-7-
limited to repossession or sale of such property or assets); (g) all Contingent
Obligations of such Person; (h) all Off Balance Sheet Liabilities of such
Person; (i) all obligations of such Person to purchase, redeem, retire, defease
or otherwise make any payment in respect of any Equity Interests in such Person
or any other Person, valued, in the case of redeemable Preferred Stock, at the
greater of its voluntary or involuntary liquidation preference plus accrued and
unpaid dividends (excluding, in the case of the Parent and its Subsidiaries, any
obligation to acquire limited partnership interests in the Borrower which can be
satisfied in full by exchanging shares of common stock of the Parent for such
limited partnership interests); (j) all obligations of such Person in respect of
any take-out commitment or forward equity commitment; (k) all Debt referred to
in clauses (a) through (j) above and other payment obligations of another Person
secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property or assets owned
by such Person, even though such Person has not assumed or become liable for the
payment of such Debt or other payment obligation, valued, in the case of any
such Debt or other payment obligation as to which recourse for the payment
thereof is expressly limited to the property or assets on which such Lien is
granted, at the lesser of (i) the stated or determinable amount of the Debt or
other payment obligation that is so secured or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) and (ii) the fair market value of such
property or assets; (l) all other obligations of such Person considered as debt
by nationally recognized securities rating agencies and (m) such Person's pro
rata share of the Debt of any Unconsolidated Affiliate (excluding (i) any issuer
of a Subordinated Interest acquired in connection with a Permitted Financial
Asset Sale and (ii) prior to the Parent's acquisition of CNL Financial Services,
Inc. and CNL Financial Corporation in connection with the Consolidation, any
issuer of a Subordinated Interest which represents an interest in securitized
pools of promissory notes, mortgage loans, chattel paper, leases or other
similar financial assets originated by any Affiliate) of such Person.
"Default" means any of the events specified in Section 10.1., whether or
not there has been satisfied any requirement for the giving of notice, the lapse
of time, or both.
"Defaulting Lender" has the meaning set forth in Section 3.11.
"Dollars" or "$" means the lawful currency of the United States of
America.
"Ebitda" means, for any period, net earnings (loss) of the Parent and its
Consolidated Subsidiaries for such period plus the sum of the following (but
only to the extent taken into account in determining net earnings (loss) for
such period): (a) depreciation and amortization expense for such period; plus
----
(b) Interest Expense for such period; plus (c) income tax expense in respect of
----
such period; minus (or plus, as appropriate) (d) extraordinary gains (losses)
----- ----
and gains (losses) from sales of assets for such period, including in any event,
gains (losses) from the sale of assets in connection with Permitted Financial
Asset Sales; plus (e) the principal component of all payments made in respect of
----
Capitalized Lease Obligations during such period; plus (or minus, as
---- -----
appropriate) (f) all straight line rent leveling adjustments (reported in the
consolidated financial statements of the Parent and its Consolidated
Subsidiaries for purposes of GAAP); and plus (or minus, as appropriate) (g)
---- -----
equity in net earnings (or net loss) of Unconsolidated Affiliates.
-8-
"Effective Date" means the later of: (a) the Agreement Date; and (b) the
date on which all of the conditions precedent set forth in Section 5.1. shall
have been fulfilled.
"Eligible Assignee" means any Person who is: (i) currently a Lender; (ii)
a commercial bank, trust company, insurance company, savings and loan
association, savings bank, investment bank, pension fund or mutual fund
organized under the laws of the United States of America, or any state thereof,
and having total assets in excess of $5,000,000,000; or (iii) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development ("OECD"), or a political
subdivision of any such country, and having total assets in excess of
$10,000,000,000, provided that such bank is acting through a branch or agency
located in the United States of America. If such Person is not currently a
Lender, such Person's senior unsecured long term indebtedness must be rated BBB
or higher by S&P, Baa2 or higher by Moody's, or the equivalent or higher of
either such rating by another rating agency of national reputation and
reasonably acceptable to the Administrative Agent.
"Eligible Lease" means a lease of a Real Property Asset (exclusive of
furniture, fixtures and equipment) which satisfies all of the following
requirements: (a) such Real Property Asset is owned in fee simple (or leased as
lessee pursuant to a ground lease) by only the Borrower or, at any time prior to
the Contribution Date, the Parent, provided that in the case of a ground lease
(i) such ground lease is permitted under Section 9.8., (ii) has a remaining term
(including any extensions of such term exerciseable at the sole option of the
lessee) of at least 30 years, and (iii) the lessee has the right to assign its
interest in such ground lease (and to encumber such interest) without the
consent of the applicable lessor); (b) neither such Real Property Asset nor any
interest of the Borrower or the Parent therein (including the lease thereof), is
subject to (i) any Lien other than Permitted Liens of the types described in
clauses (a) through (c) of the definition thereof or (ii) any Negative Pledge;
(c) such Real Property Asset is free of all structural defects, environmental
conditions or other adverse matters except for defects, conditions or matters
individually or collectively which are not material to the profitable operation
of such Real Property Asset; (d) such Real Property Asset has been fully
developed for use as a restaurant; (e) such Real Property Asset is occupied by
such tenant and is in operation; and (f) such lease is not an Excluded Asset.
"Eligible Mortgage Income" means, for any given period, the aggregate
income of the Borrower, and at any time prior to the Contribution Date, the
Parent, from Eligible Mortgage Notes Receivable during such period.
"Eligible Mortgage Note Receivable" means a promissory note which
satisfies all of the following requirements: (a) such promissory note is owned
solely by the Borrower or, at any time prior to the Contribution Date, the
Parent; (b) such promissory note is secured by a Mortgage; (c) neither such
promissory note, nor any interest of the Borrower or the Parent therein, is
subject to (i) any Lien other than Permitted Liens of the types described in
clauses (a) through (c) of the definition thereof or (ii) any Negative Pledge;
(d) the real property subject to such Mortgage is not subject to any other Lien
other than Permitted Liens of the types described in clauses (a)
-9-
through (c) of the definition thereof; (e) the real property subject to such
Mortgage is free of all structural defects, environmental conditions or other
adverse matters except for defects, conditions or matters individually or
collectively which are not material to the profitable operation of such real
property; (f) such real property has been fully developed for use as a
restaurant; (g) such real property is occupied and is in operation; and (h) such
promissory note is not an Excluded Asset.
"Eligible Net Lease Income" means, for any given period, the aggregate
income of the Borrower, and at any time prior to the Contribution Date, the
Parent, from Eligible Leases excluding straight line rent leveling adjustments
(reported in the consolidated financial statements of the Parent and its
Consolidated Subsidiaries for purposes of GAAP) in respect of such Eligible
Leases for such period.
"Environmental Laws" means any Applicable Law relating to environmental
protection or the manufacture, storage, disposal or clean-up of Hazardous
Materials including, without limitation, the following: Clean Air Act, 42 U.S.C.
(S) 7401 et seq; Federal Water Pollution Control Act, 33 U.S.C. (S) 1251 et
seq.; Solid Waste Disposal Act, 42 U.S.C. (S) 6901 et seq.; Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. (S) 9601 et
seq.; National Environmental Policy Act, 42 U.S.C. (S) 4321 et seq.; regulations
of the Environmental Protection Agency and any applicable rule of common law and
any judicial interpretation thereof relating primarily to the environment or
Hazardous Materials.
"Equity Interests" means, with respect to any Person, shares of capital
stock of (or other ownership or profit interests in) such Person, warrants,
options or other rights for the purchase or other acquisition from such Person
of shares of capital stock of (or other ownership or profit interests in) such
Person, securities convertible into or exchangeable for shares of capital stock
of (or other ownership or profit interests in) such Person or warrants, rights
or options for the purchase or other acquisition from such Person of such shares
(or such other interests), and other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are authorized or otherwise existing on any
date of determination. Debt securities convertible into other Equity Interests
shall not constitute Equity Interests.
"Equity Issuance" means any issuance or sale by a Person of any Equity
Interest in such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as in
effect from time to time.
"ERISA Group" means the Parent, the Borrower, any other Subsidiary and
all members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Parent, the Borrower or any other Subsidiary, are treated as a single employer
under Section 414 of the Internal Revenue Code.
-10-
"Event of Default" means any of the events specified in Section 10.1.,
provided that any requirement for notice or lapse of time or any other condition
has been satisfied.
"Excluded Asset" means either a lease by the Parent or any Subsidiary, as
lessor, of a Real Property Asset, or a promissory note held by the Parent or any
Subsidiary which is secured by a Mortgage on real property, in either case where
(a) any required rental payment, principal or interest payment, or other payment
due under such lease or promissory note, as the case may be, is more than 60
days past due or (b) the tenant under such lease, the maker of such promissory
note, or any Person that is the franchisor or licensor of any Concept (if any)
applicable to such real property, is the subject of a Bankruptcy Proceeding.
"Excluded Subsidiary" means any Subsidiary of the Parent (other than the
Borrower) (a) which is a Special Purpose Entity or (b) which satisfies all of
the following requirements: (i) such Subsidiary has no assets other than (x)
Equity Interests in other Excluded Subsidiaries, (y) assets which such
Subsidiary is to (and does in fact) dispose of promptly, and in any event within
two Business Days, following such Subsidiary's acquisition of such assets and
(z) cash distributed to such Subsidiary in connection with a Structured
Financing and cash contributed to such Subsidiary to permit it to satisfy its
obligations under a Structured Financing, so long as the amount of such cash
held by such Subsidiary does not exceed $50,000 in the aggregate at any time;
(ii) such Subsidiary engages in no business activities other than the ownership
of such Equity Interests and its other assets, and activities incidental to
Structured Financings; and (iii) such Subsidiary has no Debt, liabilities or
other obligations other than those directly incurred in connection with
Structured Financings.
"Existing Credit Agreement" has the meaning given that term in the
recitals hereof.
"Fair Market Value" means, with respect to any asset, the price which
could be negotiated in an arm's-length transaction, for cash, between a willing
seller and a willing buyer, neither of which is under pressure or compulsion to
complete the transaction. Fair Market Value shall be determined by the Board of
Directors of the Parent acting in good faith and evidenced by a board resolution
thereof delivered to the Administrative Agent or, with respect to any asset
valued at up to $1,000,000, such determination may be made by a duly authorized
officer of the Parent evidenced by an officer's certificate delivered to the
Administrative Agent.
"Fair Value" means, with respect to a Subordinated Interest or I/O Strip,
the fair value of such Subordinated Interest or I/O Strip as disclosed in the
footnotes to the Parent's financial statements most recently delivered to the
Lenders hereunder. If the Parent no longer discloses such fair values in its
financial statements, then the fair value of a Subordinated Interest or I/O
Strip shall be determined in accordance with a valuation methodology reasonably
acceptable to the Administrative Agent.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward to the nearest 1/100th of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next
-11-
succeeding such day, provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day, and (b) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate quoted to the Administrative Agent by federal funds dealers
selected by the Administrative Agent on such day on such transaction as
determined by the Administrative Agent.
"Fees" means the fees and commissions provided for or referred to in
Section 3.6. and any other fees payable by the Borrower hereunder or under any
other Loan Document, or otherwise payable by the Borrower to the Administrative
Agent, either Arranger, the Syndication Agent, the Documentation Agent or any
Lender in connection with the transactions relating to this Agreement.
"Finance Lease" means a lease of a Real Property Asset which would be
categorized as a capital lease under GAAP.
"First Union" means First Union National Bank and its successors and
assigns.
"Fixed Charges" means, for any period, the sum of (a) Interest Expense
for such period plus (b) regularly scheduled principal payments on Debt of the
----
Parent and its Consolidated Subsidiaries during such period, including, without
limitation, the principal component of all payments made in respect of
Capitalized Lease Obligations, but excluding any scheduled balloon, bullet or
similar principal payment which repays such Debt in full plus (c) all Restricted
----
Payments paid or accrued during such period in respect of any Preferred Stock
issued by the Parent or any Consolidated Subsidiary.
"Foreign Lender" means any Lender organized under the laws of a
jurisdiction other than the United States of America.
"Funds From Operations" means, for a given period, (a) net earnings of
the Parent and its Subsidiaries (before minority interests and before
extraordinary and non-recurring items) for such period minus (or plus) (b) gains
----- ----
(or losses) from debt restructuring and sales of property during such period
plus (c) depreciation and amortization of real property assets for such period,
----
and after adjustments for unconsolidated partnerships and joint ventures.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
-12-
"Governmental Authority" means any national, state or local government
(whether domestic or foreign), any political subdivision thereof or any other
governmental, quasi-governmental, judicial, public or statutory instrumentality,
authority, body, agency, bureau or entity (including, without limitation, the
Federal Deposit Insurance Corporation, the Comptroller of the Currency or the
Federal Reserve Board, any central bank or any comparable authority) or any
arbitrator with authority to bind a party at law.
"Guarantor" means any Person that is a party to the Guaranty as a
"Guarantor" and in any event shall include the Parent and all Subsidiaries of
the Parent (excluding the Borrower, any Excluded Subsidiary and, subject to the
last sentence of Section 7.15., the Joint Ventures).
"Guaranty" means the Guaranty substantially in the form of Exhibit B.
"Hazardous Materials" means all or any of the following: (a) substances
that are defined or listed in, or otherwise classified pursuant to, any
applicable Environmental Laws as "hazardous substances", "hazardous materials",
"hazardous wastes", "toxic substances" or any other formulation intended to
define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity or
"TLCP" toxicity, "EP toxicity"; (b) oil, petroleum or petroleum derived
substances, natural gas, natural gas liquids or synthetic gas and drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources; (c)
any flammable substances or explosives or any radioactive materials; and (d)
asbestos in any form or (e) electrical equipment which contains any oil or
dielectric fluid containing levels of polychlorinated biphenyls in excess of
fifty parts per million.
"Hedge Agreements" means, collectively, interest rate swap, cap or collar
agreements, interest rate future or option contracts, commodity future or option
contracts, currency swap agreements, currency future or option contracts and
other similar agreements.
"Intangible Assets" means all assets which would be properly classified
as intangible assets under GAAP.
"Intellectual Property" has the meaning given that term in Section
6.1.(t).
"Interest Expense" means, for any period, the total consolidated interest
expense (including, without limitation, capitalized interest expense and
interest expense attributable to Capitalized Lease Obligations) of the Parent
and its Consolidated Subsidiaries. "Interest Expense" shall also include the
net payment, if any, paid or payable in connection with Hedge Agreements less
the net credit, if any, received in connection with Hedge Agreements.
"I/O Strip" means a senior interest in a pool of promissory notes,
mortgage loans, or other similar financial assets, issued in connection with a
Permitted Financial Asset Sale or otherwise, which entitles the holder to
receive a portion of the interest paid on, but not principal repaid in respect
of, such financial assets.
-13-
"Interest Period" means, with respect to any LIBOR Loan, each period
commencing on the date such LIBOR Loan is made or the last day of the next
preceding Interest Period for such Loan and ending on the numerically
corresponding day in the first, second, third or sixth calendar month
thereafter, as the Borrower may select in a Notice of Borrowing, Notice of
Continuation or Notice of Conversion, as the case may be, except that each
Interest Period that commences on the last Business Day of a calendar month (or
on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month. In addition to such periods, the
Borrower may request Interest Periods having durations of less than one month
for the sole purpose of managing the number of outstanding Interest Periods.
Interest Periods having durations of less than one month will be available at
the sole discretion of the Administrative Agent. Notwithstanding the foregoing:
(a) if any Interest Period would otherwise end after the Termination Date, such
Interest Period shall end on the Termination Date; (b) each Interest Period that
would otherwise end on a day which is not a Business Day shall end on the next
succeeding Business Day (or, if such next succeeding Business Day falls in the
next succeeding calendar month, on the next preceding Business Day); and (c) if
as a result of the application of either of the immediately preceding clauses
(a) or (b) an Interest Period for any LIBOR Loan would have a duration of less
than one month, such Interest Period shall be available only at the discretion
of the Administrative Agent.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended.
"International Lease" means a lease by the Parent or any Subsidiary, as
lessor, of a Real Property Asset not located in a state of the United States of
America or the District of Columbia.
"Investment" means, with respect to any Person and whether or not such
investment constitutes a controlling interest in such Person: (a) the purchase
or other acquisition of any share of capital stock, evidence of Debt or other
security issued by any other Person; (b) any loan, advance or extension of
credit (other than trade payables or other accounts payable incurred in the
ordinary course of business) to, or contribution (in the form of money or goods)
to the capital of, any other Person; and (c) any commitment to make an
Investment in any other Person.
"Investment Grade Franchisor" means the Person who is the licensor or
franchisor of a Concept applicable to a given parcel of real property and which
Person has a rating assigned to its senior long-term debt obligations of at
least BBB- by S&P or Baa3 by ▇▇▇▇▇'▇.
"Investment Grade Rating" means a Credit Rating of BBB- or higher by S&P
or Baa3 or higher by ▇▇▇▇▇'▇.
"Investment Grade Tenant" means any Person which has entered into, and
continues to be subject to, a lease of any portion of a Real Property Asset and
which has a rating assigned to its senior long-term debt obligations of at least
BBB- by S&P or Baa3 by Moody's.
"Joint Ventures" means CNL/▇▇▇ Vista Joint Venture and CNL/Corral South
Joint Venture, and following the Parent's acquisition of substantially all of
the assets of CNL Income
-14-
Fund, LTD through CNL Income Fund, XVIII, LTD (other than any such Fund whose
limited partners do not approve its acquisition) in connection with the
Consolidation, each of the Persons identified on Schedule 1.1., if acquired in
such acqusition.
"L/c Commitment Amount" means an amount equal to $10,000,000.
"Lender" means each financial institution from time to time party hereto
as a "Lender", together with its respective successors and assigns.
"Lending Office" means, for each Lender and for each Type of Loan, the
office of such Lender specified as such on its signature page hereto or in the
applicable Assignment and Acceptance Agreement, or such other office of such
Lender as such Lender may notify the Administrative Agent in writing from time
to time.
"Letter Of Credit" has the meaning set forth in Section 2.9.(a).
"Letter Of Credit Documents" means, with respect to any Letter of Credit,
collectively, any application therefor, any certificate or other document
presented in connection with a drawing under such Letter of Credit and any other
agreement, instrument or other document governing or providing for (a) the
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such obligations.
"Letter Of Credit Liabilities" shall mean, without duplication, at any
time and in respect of any Letter of Credit, the sum of (a) the Stated Amount of
such Letter of Credit plus (b) the aggregate unpaid principal amount of all
Reimbursement Obligations of the Borrower at such time due and payable in
respect of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Lender (other than the Administrative Agent in its capacity as
such) shall be deemed to hold a Letter of Credit Liability in an amount equal to
its participation interest in the related Letter of Credit under Section
2.9.(i), and the Administrative Agent shall be deemed to hold a Letter of Credit
Liability in an amount equal to its retained interest in the related Letter of
Credit after giving effect to the acquisition by the Lenders other than the
Administrative Agent of their participation interests under such Section.
"LIBOR" means, for any LIBOR Loan for any Interest Period therefor, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period. If for any
reason such rate is not available, the term "LIBOR" shall mean, for any LIBOR
Loan for any Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as
the London interbank offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period; provided, however, if more
-------- -------
than one rate is specified on Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates.
-15-
"LIBOR Loans" means Loans bearing interest at a rate based on LIBOR.
"Lien" as applied to the property of any Person means: (a) any security
interest, encumbrance, mortgage, deed to secure debt, deed of trust, pledge,
lien, charge, ground lease or lease constituting a Capitalized Lease Obligation,
conditional sale or other title retention agreement, or other security title or
encumbrance of any kind in respect of any property of such Person, or upon the
income or profits therefrom; (b) any arrangement, express or implied, under
which any property of such Person is transferred, sequestered or otherwise
identified for the purpose of subjecting the same to the payment of Debt or
performance of any other obligation in priority to the payment of the general,
unsecured creditors of such Person; (c) the filing of any financing statement
under the Uniform Commercial Code or its equivalent in any jurisdiction; and (d)
any agreement by such Person to grant, give or otherwise convey any of the
foregoing.
"Loan" means a Revolving Loan.
"Loan Document" means this Agreement, each Note, the Guaranty, each
Letter of Credit Document and each other document or instrument now or hereafter
executed and delivered by any Loan Party in connection with, pursuant to or
relating to this Agreement.
"Loan Party" means the Borrower, the Parent or any other Guarantor.
"Material Adverse Effect" means a materially adverse effect on (a) the
business, properties, condition (financial or otherwise), results of operations
or performance of the Parent and its Consolidated Subsidiaries taken as a whole,
(b) the ability of any Loan Party to perform its obligations under any Loan
Document to which it is a party, (c) the validity or enforceability of any of
the Loan Documents, or (d) the rights and remedies of the Lenders and the
Administrative Agent under any of such Loan Documents.
"Material Contract" means any contract or other arrangement (other than
Loan Documents), whether written or oral, to which the Borrower, the Parent or
any other Subsidiary is a party as to which the breach, nonperformance,
cancellation or failure to renew by any party thereto could reasonably be
expected to have a Material Adverse Effect.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $1,000,000.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgage" means any mortgage, deed of trust, deed to secure debt or
other similar instrument creating a Lien on real property and related
improvements.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years
-16-
made contributions, including for these purposes any Person which ceased to be a
member of the ERISA Group during such five year period.
"Negative Pledge" means a provision of any agreement (other than this
Agreement or any other Loan Document) that prohibits the creation of any Lien on
any assets of a Person; provided, however, that an agreement that establishes a
-------- -------
maximum ratio of unsecured debt to unencumbered assets, or of secured debt to
total assets, or that otherwise conditions a Person's ability to encumber its
assets upon the maintenance of one or more specified ratios that limit such
Person's ability to encumber its assets but that do not generally prohibit the
encumbrance of its assets, or the encumbrance of specific assets, shall not
constitute a "Negative Pledge" for purposes of this Agreement.
"Net Proceeds" means with respect to any Equity Issuance by a Person, the
aggregate amount of all cash and the Fair Market Value of all other property
received by such Person in respect of such Equity Issuance net of investment
banking fees, legal fees, accountants fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred by such
Person in connection with such Equity Issuance.
"Nonrecourse Debt" means, with respect to any Person, Secured Debt of
such Person in respect of which (a) the holder of such Debt has expressly
limited its recourse for repayment to specifically identified assets of such
Person and (b) such Person has no general recourse or other general personal
liability (except for customary exceptions for fraud, environmental matters and
other similar exceptions acceptable to the Administrative Agent).
"Nonrecourse SPE Financing" means a transaction that is not otherwise a
Permitted On Balance Sheet Warehouse Financing and that consists of one or more
transfers by the Parent at any time prior to the Contribution Date, or by the
Borrower or any other Subsidiary, to a Special Purpose Entity of promissory
notes, mortgage loans, chattel paper, leases or other similar financial assets
originated by the Parent, the Borrower or any other Subsidiary, together with
any related title or other insurance policies, Hedge Agreements and other assets
directly related to such financial assets, which transfers may not be accounted
for on the consolidated balance sheet of the Parent as a sale in conformity with
Financial Accounting Standards Board Statement of Financial Accounting Standard
No. 125, and the subsequent incurrence by such Special Purpose Entity of Debt
secured by a Lien encumbering only the assets of such Special Purpose Entity;
provided that (a) all of the Debt, liabilities and other obligations of such
Special Purpose Entity incurred in connection with such transaction are
nonrecourse for the payment or performance thereof to the Parent, the Borrower
or any other Subsidiary (excluding such Special Purpose Entity or any other
Excluded Subsidiary which directly owns Equity Interests in such Special Purpose
Entity) other than reasonable and customary obligations of the Parent, the
Borrower or any other Subsidiary with respect to (i) the servicing of any assets
which are the subject of such transaction, (ii) administrative and ministerial
matters relating to such Special Purpose Entity and related Excluded
Subsidiaries, (iii) maintenance of the corporate separateness of such Special
Purpose Entity and related Excluded Subsidiaries from that of the Parent and its
other Subsidiaries, and (iv) the guaranty of payment of fees of any Person
acting as a trustee in connection with such transaction and indemnification
obligations owing to any such Person; and
-17-
(b) the stated maturity date of such Debt is after the Termination Date and is
also at least one year after the date such Debt was incurred.
"Note" means a Revolving Note.
"Notice of Borrowing" means a notice in the form of Exhibit C to be
delivered to the Administrative Agent pursuant to Section 2.1.(b) evidencing the
Borrower's request for a borrowing of Revolving Loans.
"Notice Of Continuation" means a notice in the form of Exhibit D to be
delivered to the Administrative Agent pursuant to Section 2.6. evidencing the
Borrower's request for the Continuation of a LIBOR Loan.
"Notice Of Conversion" means a notice in the form of Exhibit E to be
delivered to the Administrative Agent pursuant to Section 2.7. evidencing the
Borrower's request for the Conversion of a Loan from one Type to another Type.
"Obligations" means, individually and collectively: (a) the aggregate
principal balance of, and all accrued and unpaid interest on, all Loans; (b) all
Reimbursement Obligations and all other Letter of Credit Liabilities; and (c)
all other indebtedness, liabilities, obligations, covenants and duties of the
Borrower owing to the Administrative Agent or any Lender of every kind, nature
and description, under or in respect of this Agreement or any of the other Loan
Documents, including, without limitation, the Fees and indemnification
obligations, whether direct or indirect, absolute or contingent, due or not due,
contractual or tortious, liquidated or unliquidated, and whether or not
evidenced by any promissory note.
"Off Balance Sheet Liabilities" means, with respect to any Person, (a)
any repurchase obligation or liability, contingent or otherwise, of such Person
with respect to any accounts or notes receivable sold, transferred or otherwise
disposed of by such Person, (b) any repurchase obligation or liability,
contingent or otherwise, of such Person with respect to property or assets
leased by such Person as lessee and (c) all obligations, contingent or
otherwise, of such Person under any synthetic lease, tax retention operating
lease, off balance sheet loan or similar off balance sheet financing if the
transaction giving rise to such obligation (i) is considered indebtedness for
borrowed money for tax purposes but is classified as an operating lease or (ii)
does not (and is not required to pursuant to GAAP) appear as a liability on the
balance sheet of such Person, but excluding from the foregoing provisions of
this definition any obligations or liabilities of any such Person as lessee
under any operating lease so long as the terms of such operating lease do not
require any payment by or on behalf of such Person at the scheduled termination
date of such operating lease, pursuant to a required purchase by or on behalf of
such Person of the property or assets subject to such operating lease, or under
any arrangements pursuant to which such Person guarantees or otherwise assures
any other Person of the value of the property or assets subject to such
operating lease. Off Balance Sheet Liabilities shall not include obligations
and liabilities of the Parent, the Borrower or any other Subsidiary (including
any Special Purpose Entity) referred to in clause (b) of the definition of the
term Permitted Financial Asset Sale.
-18-
"Operating Lease" means a lease of a Real Property Asset which is not a
Finance Lease.
"Parent" has the meaning set forth in the introductory paragraph hereof
and shall include the Parent's successors and assigns.
"Participant" has the meaning given that term in Section 12.5.(c).
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
agency.
"Permitted Financial Asset Sale" means a transaction consisting of one or
more limited recourse or nonrecourse transfers by the Parent at any time prior
to the Contribution Date, or by the Borrower or any other Subsidiary, to a
Special Purpose Entity of promissory notes, mortgage loans, chattel paper,
leases or other similar financial assets originated by the Parent, the Borrower
or any other Subsidiary, together with any related title or other insurance
policies, Hedge Agreements and other assets directly related to such financial
assets, which transfers may properly be, and is, accounted for on the
consolidated balance sheet of the Parent as a sale in conformity with Financial
Accounting Standards Board Statement of Financial Accounting Standard No. 125
followed by either (x) limited recourse or nonrecourse sales of such financial
assets (or interests therein) by such Special Purpose Entity to one or more
Persons the accounts of which would not be required to be consolidated with
those of the Parent in its consolidated financial statements in accordance with
GAAP (provided that Subordinated Interests in such financial assets and I/O
Strips may be issued or sold to any Person) or (y) the incurrence by such
Special Purpose Entity of Debt secured by a Lien encumbering only the assets of
such Special Purpose Entity; provided that all of the Debt, liabilities and
other obligations of such Special Purpose Entity incurred in connection with
such transactions are nonrecourse for the payment or performance thereof to the
Parent, the Borrower or any other Subsidiary (excluding such Special Purpose
Entity or any other Excluded Subsidiary which directly owns Equity Interests in
such Special Purpose Entity) other than the following: (a) reasonable and
customary obligations of the Parent, the Borrower or any other Subsidiary with
respect to (i) the servicing of any assets which are the subject of such
transaction, (ii) administrative and ministerial matters relating to such
Special Purpose Entity and related Excluded Subsidiaries, (iii) maintenance of
the corporate separateness of such Special Purpose Entity and related Excluded
Subsidiaries from that of the Parent and its other Subsidiaries, and (iv) the
guaranty of payment of fees of any Person acting as a trustee in connection with
such transaction and indemnification obligations owing to any such Person; (b)
reasonable and customary repurchase obligations and other liabilities resulting
from the breach of representations, warranties and covenants that are not
related to creditworthiness of the obligors on the financial assets the subject
of such transactions and, following the Parent's acquisition of CNL Financial
Services, Inc. and CNL Financial Corporation in connection with the
Consolidation, repurchase obligations resulting from the conversion of
adjustable rate loans to fixed rate loans, and associated obligations relating
to the acquisition of Hedge Agreements with respect to such loans, in each case
arising solely in connection with the transaction contemplated by that certain
Wholesale Warehouse Mortgage Indenture dated as of August 1, 1998 among CNL
Funding 98-1 LP, as Issuer, and Norwest Bank Minnesota, National Association, as
Trustee, and (c) limited recourse provisions giving rise to Debt solely to the
extent permitted
-19-
under Section 9.2.(b). For purposes of this definition, whether an obligation or
liability is "reasonable and customary" shall be determined with reference to
terms of similar transactions prevailing as of the date hereof.
"Permitted Liens" means, as to any Person: (a) Liens securing taxes,
assessments and other charges or levies imposed by any Governmental Authority
(excluding any Lien imposed pursuant to any of the provisions of ERISA) or the
claims of materialmen, mechanics, carriers, warehousemen or landlords for labor,
materials, supplies or rentals incurred in the ordinary course of business,
which are not at the time required to be paid or discharged under Section 7.6.;
(b) Liens consisting of deposits or pledges made, in the ordinary course of
business, in connection with, or to secure payment of, obligations under
workmen's compensation, unemployment insurance or similar Applicable Laws; (c)
zoning restrictions, easements, rights-of-way, covenants, reservations and other
rights, restrictions or encumbrances of record on the use of real property,
which do not materially detract from the value of such property or materially
impair the use thereof in the business of such Person; (d) Liens in existence as
of the Agreement Date and set forth in Part II of Schedule 6.1.(f); and (e)
Liens, if any, in favor of the Administrative Agent for the benefit of the
Lenders.
"Permitted On Balance Sheet Warehouse Financing" means a transaction
consisting of one or more transfers by the Parent at any time prior to the
Contribution Date, or by the Borrower or any other Subsidiary, to a Special
Purpose Entity of promissory notes, mortgage loans, chattel paper, leases or
other similar financial assets originated by the Parent, the Borrower or any
other Subsidiary, together with any related title or other insurance policies,
Hedge Agreements and other assets directly related to such financial assets,
which transfers may not be accounted for on the consolidated balance sheet of
the Parent as a sale in conformity with Financial Accounting Standards Board
Statement of Financial Accounting Standard No. 125, and the subsequent
incurrence by such Special Purpose Entity of Debt secured by a Lien encumbering
only the assets of such Special Purpose Entity; provided that (a) except as
otherwise permitted under the immediately following clause (b), all of the Debt,
liabilities and other obligations of such Special Purpose Entity incurred in
connection with such transaction are nonrecourse for the payment or performance
thereof to the Parent, the Borrower or any other Subsidiary (excluding such
Special Purpose Entity or any other Excluded Subsidiary which directly owns
Equity Interests in such Special Purpose Entity) other than reasonable and
customary obligations of the Parent, the Borrower or any other Subsidiary with
respect to (i) the servicing of any assets which are the subject of such
transaction, (ii) administrative and ministerial matters relating to such
Special Purpose Entity and related Excluded Subsidiaries, (iii) maintenance of
the corporate separateness of such Special Purpose Entity and related Excluded
Subsidiaries from that of the Parent and its other Subsidiaries, and (iv) the
guaranty of payment of fees of any Person acting as a trustee in connection with
such transaction and indemnification obligations owing to any such Person; (b)
all of the provisions of such Debt regarding the liability of, or recourse to,
the Parent, the Borrower or any other Subsidiary (excluding such Special Purpose
Entity or any other Excluded Subsidiary which directly owns Equity Interests in
such Special Purpose Entity) other than liabilities and obligations referred to
in subclauses (i) through (iv) of the immediately preceding clause (a), have
been approved of by the Administrative Agent in writing in its sole discretion
and (c) all of the other terms and conditions of such Debt have been approved of
by the
-20-
Administrative Agent in writing in its reasonable judgment. For purposes of this
definition, whether an obligation is reasonable and customary shall be
determined with reference to terms of similar transactions prevailing as of the
date hereof. For the two Business Day period commencing on the date of the
Parent's acquisition of CNL Financial Services, Inc. and CNL Financial
Corporation in connection with the Consolidation, both of the following credit
facilities shall be deemed to be Permitted On Balance Sheet Warehouse
Facilities: (x) the credit facility evidenced by that certain Franchise Loan
Warehousing Agreement dated as of November 12, 1996 by and among CNL Financial
I, Inc., First Union National Bank of Florida and Norwest Bank Minnesota,
National Association and (y) the credit facility evidenced by that certain
Franchise Loan Funding and Servicing Facility and Wholesale Warehouse Mortgage
Agreement dated as of April 6, 1998 by and among CNL Financial IV, LP, Variable
Funding Capital Corporation, First Union Capital Markets Corp., First Union
National Bank and CNL Financial Services, Inc. Thereafter such credit facilities
shall be Permitted On Balance Sheet Warehouse Facilities only if they satisfy
the above conditions.
"Person" means an individual, corporation, partnership, limited liability
company, association, trust or unincorporated organization, or a government or
any agency or political subdivision thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Post-Default Rate" means, in respect of any principal of any Loan or any
other Obligation that is not paid when due (whether at stated maturity, by
acceleration, by optional or mandatory prepayment or otherwise), a rate per
annum equal to four percent (4.0%) plus the Base Rate as in effect from time to
time.
"Preferred Stock" means, with respect to any Person, shares of Equity
Interests in such Person which are entitled to preference or priority over any
other Equity Interest in such Person in respect of the payment of dividends or
distribution of assets upon liquidation or both.
"Preferred Stock Entity" means any Person (other than a Subsidiary) in
whom the Borrower or the Parent owns, directly or indirectly, Preferred Stock or
other Equity Interests which are not Voting Stock and which Preferred Stock or
other Equity Interests entitle the Borrower or the Parent, as the case may be,
to receive the majority of all economic benefits associated with ownership of
all Equity Interests issued by such Person.
"Prime Rate" means the rate of interest per annum announced publicly by
the Administrative Agent as its prime rate from time to time. The Prime Rate is
not necessarily the best or the lowest rate of interest offered by the
Administrative Agent or any Lender.
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"Principal Office" means the office of the Administrative Agent located
at One First Union Center, Charlotte, North Carolina, or such other office of
the Administrative Agent as the Administrative Agent may designate from time to
time.
"Quarterly Date" means the last Business Day of March, June, September
and December in each year, the first of which shall be June 30, 1999.
"Rating Agency" means S&P or Moody's.
"Real Property Asset" means a parcel of real property, together with all
improvements (if any) thereon, owned (or leased pursuant to a ground lease) by
the Parent, the Borrower or any other Subsidiary.
"Register" has the meaning given that term in Section 12.5.(e).
"Regulatory Change" means, with respect to any Lender, any change
effective after the Agreement Date in Applicable Law (including without
limitation, Regulation D of the Board of Governors of the Federal Reserve
System) or the adoption or making after such date of any interpretation,
directive or request applying to a class of banks, including such Lender, of or
under any Applicable Law (whether or not having the force of law and whether or
not failure to comply therewith would be unlawful) by any Governmental Authority
or monetary authority charged with the interpretation or administration thereof
or compliance by any Lender with any request or directive regarding capital
adequacy.
"Reimbursement Obligation" means the absolute, unconditional and
irrevocable obligation of the Borrower to reimburse the Administrative Agent for
any drawing honored by the Administrative Agent under a Letter of Credit.
"REIT" means a Person qualifying for treatment as a "real estate
investment trust" under the Internal Revenue Code.
"Requisite Lenders" means, as of any date, Lenders having at least 66-
2/3% of the aggregate amount of the Commitments, or, if the Commitments have
been terminated or reduced to zero, Lenders holding at least 66-2/3% of the
principal amount of the Loans and Letter of Credit Liabilities.
"Restricted Payment" means: (a) any dividend or other distribution,
direct or indirect, on account of any shares of any Equity Interest of the
Parent, the Borrower or any other Subsidiary now or hereafter outstanding,
except a dividend or distribution payable solely in shares of that class of
Equity Interest to the holders of that class; (b) any redemption, conversion,
exchange, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any Equity Interest
of the Parent, the Borrower or any other Subsidiary now or hereafter
outstanding; (c) any payment or prepayment of principal of, premium, if any, or
interest on, redemption, conversion, exchange, purchase, retirement, defeasance,
sinking fund or
-22-
similar payment with respect to, any Debt which is subordinate in right of
repayment to any of the Obligations; and (d) any payment made to retire, or to
obtain the surrender of, any outstanding warrants, options or other rights to
acquire shares of any Equity Interest of the Parent, the Borrower or any other
Subsidiary now or hereafter outstanding.
"Revolving Loan" means a loan made by a Lender to the Borrower pursuant
to Section 2.1.(a).
"Revolving Note" has the meaning given that term in Section 2.8.(a).
"Secured Debt" means, with respect to any Person, any Debt that is (a)
secured in any manner by any Lien or (b) entitled to the benefit of a Negative
Pledge.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, together with all rules and regulations issued thereunder.
"Solvent" means, when used with respect to any Person, that (a) the fair
value and the fair salable value of its assets (excluding any Debt due from any
affiliate of such Person) are each in excess of the fair valuation of its total
liabilities (including all contingent liabilities); and (b) such Person is able
to pay its debts or other obligations in the ordinary course as they mature and
(c) that the Person has capital not unreasonably small to carry on its business
and all business in which it proposes to be engaged.
"Special Purpose Entity" means any Person (a) which has a legal structure
and capitalization intended to make such entity a "bankruptcy remote" entity and
which legal structure and capitalization have been approved in writing by the
Administrative Agent; (b) which has been organized for the sole purpose of
effecting a Structured Financing; (c) which has no assets other than (i) the
financial assets directly acquired in connection with, and which are the subject
of, such Structured Financing, and any related title or other insurance
policies, Hedge Agreements and other assets directly related to such financial
assets, (ii) cash and other assets contributed or distributed to such Person, or
otherwise acquired by it, in connection with such Structured Financing, and
which assets are retained by such Person either pursuant to the requirements of
such Structured Financing or to permit it to fulfill its obligations under the
terms of such Structured Financing, (iii) assets which such Person is to (and
does in fact) dispose of promptly, and in any event within two Business Days,
following such Person's acquisition of such assets, and (iv) in the case of a
Permitted Financial Asset Sale, Subordinated Interests acquired in connection
with such Permitted Financial Asset Sale; (d) which has no Debt, liabilities or
other obligations other than (i) those directly incurred in connection with such
Structured Financing and (ii) any liabilities resulting from representations and
warranties made by such Person with respect to any such financial assets or
other assets being transferred by it to another Person so long as such
representations and warranties are substantially similar to those made to such
Person when such assets were initially transferred to it; and (e) which none of
the Parent, the Borrower or any other Subsidiary has any direct obligation to
maintain or preserve such Person's financial condition or to cause such Person
to achieve any specified levels of operating results except as otherwise
permitted in connection with such Structured Financing.
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"S&P" means Standard & Poor's Rating Services, a division of ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
"Stated Amount" means the amount available to be drawn by a beneficiary
under a Letter of Credit from time to time, as such amount may be increased or
reduced from time to time in accordance with the terms of such Letter of Credit.
"Structured Financing" means a Permitted On Balance Sheet Warehouse
Financing, a Permitted Financial Asset Sale or a Nonrecourse SPE Financing.
"Subordinated Interest" means a subordinate interest (whether
characterized as debt or equity, and including without limitation, general and
limited partnership interests, participation certificates and trust
certificates) in a pool of promissory notes, mortgage loans, chattel paper,
leases or other similar financial assets, issued in connection with a Permitted
Financial Asset Sale or otherwise.
"Subsidiary" means, for any Person, any corporation, partnership or other
entity of which at least a majority of the Voting Stock is at the time directly
or indirectly owned or controlled by such Person or one or more Subsidiaries of
such Person or by such Person and one or more Subsidiaries of such Person.
"Tangible Net Worth" means, as of a given date, total stockholder's
equity of the Parent and its Consolidated Subsidiaries, excluding (to the extent
reflected in determining stockholders' equity of the Parent and its Consolidated
Subsidiaries) (a) accumulated depreciation and amortization and (b) the
aggregate amount of Intangible Assets of the Parent and its Consolidated
Subsidiaries.
"Taxes" has the meaning given that term in Section 3.12.
"Term Securitization" means a Permitted Financial Asset Sale (a)
involving only a single transfer (or series of related and substantially
contemporaneous transfers) to a Special Purpose Entity of financial assets, and
any related title or other insurance policies, Hedge Agreements and other assets
directly related to such financial assets, by the Parent, the Borrower or any
other Subsidiary and (b) under which the Persons acquiring such financial assets
(or interests therein) from the applicable Special Purpose Entity or making
advances to such Special Purpose Entity secured directly or indirectly by such
financial assets, are neither required nor permitted to acquire additional
financial assets (or interests therein) from, or otherwise make additional
advances to, such Special Purpose Entity.
"Termination Date" means March 22, 2002.
"Total Assets" means total assets of the Parent and its Consolidated
Subsidiaries.
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"Type" with respect to any Loan, refers to whether such Loan is a LIBOR
Loan or Base Rate Loan.
"Unconsolidated Affiliate" shall mean, with respect to any Person, any
other Person in whom such Person holds an Investment, which Investment is
accounted for in the financial statements of such Person on an equity basis of
accounting and whose financial results would not be consolidated under GAAP with
the financial results of such Person on the consolidated financial statements of
such Person.
"Unencumbered Asset Value" means the sum of (a) the aggregate Value of
all Eligible Leases as determined in accordance with GAAP plus (b) all
accumulated depreciation with respect to the Real Property Assets leased under
any such Eligible Leases that are Operating Leases plus (c) the aggregate book
----
value of all Eligible Mortgage Notes Receivable as determined in accordance with
GAAP.
"Unencumbered Property Certificate" means a report, certified by the
chief financial officer of the Parent, setting forth the calculations required
to establish the Unencumbered Asset Value as of a specified date, all in form
and detail reasonably satisfactory to the Administrative Agent.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (a) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (b) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"Unsecured Debt" means all Debt of the Parent and its Consolidated
Subsidiaries that is not Secured Debt and shall include all Debt in respect of
Capitalized Lease Obligations.
"Value" means (a) with respect to a Finance Lease, the book value of such
Finance Lease (excluding any portion of such lease relating to furniture,
fixtures and equipment) as determined in accordance with GAAP and (b) with
respect to an Operating Lease, the book value of the Real Property Asset subject
to such Operating Lease as determined in accordance with GAAP.
"Voting Stock" means capital stock issued by a corporation, or equivalent
Equity Interests in any other Person, the holders of which are ordinarily, in
the absence of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even if the right so to
vote has been suspended by the happening of such a contingency.
"Wholly Owned Subsidiary" means, with respect to a Person, any Subsidiary
of such Person all of the equity securities or other ownership interests (other
than, in the case of a corporation, directors' qualifying shares) of which are
at the time directly or indirectly owned or
-25-
controlled by such Person or one or more Subsidiaries of such Person or by such
Person and one or more Subsidiaries of such Person.
"Year 2000 Compliant" has the meaning given that term in Section 6.1.(x).
Section 1.2. General; References to Times.
Unless otherwise indicated, all accounting terms, ratios and measurements
shall be interpreted, or determined on a consolidated basis, in accordance with
GAAP. References in this Agreement to "Sections", "Articles", "Exhibits" and
"Schedules" are to sections, articles, exhibits and schedules herein and hereto
unless otherwise indicated. References in this Agreement to any document,
instrument or agreement (a) shall include all exhibits, schedules and other
attachments thereto, (b) shall include all documents, instruments or agreements
issued or executed in replacement thereof, to the extent permitted hereby and
(c) shall mean such document, instrument or agreement, or replacement or
predecessor thereto, as amended, supplemented, restated or otherwise modified
from time to time to the extent permitted hereby and in effect at any given
time. Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter. Unless explicitly set forth to the
contrary, a reference to "Subsidiary" means a Subsidiary of the Parent or a
Subsidiary of such Subsidiary and a reference to an "Affiliate" means a
reference to an Affiliate of the Parent. Titles and captions of Articles,
Sections, subsections and clauses in this Agreement are for convenience only,
and neither limit nor amplify the provisions of this Agreement. Unless otherwise
indicated, all references to time are references to Charlotte, North Carolina
time.
Article II. Credit Facility
Section 2.1. Revolving Loans.
(a) Generally. Subject to the terms and conditions hereof, including
---------
without limitation Section 2.13., during the period from the Effective Date to
but excluding the Termination Date, each Lender severally and not jointly agrees
to make Revolving Loans to the Borrower in an aggregate principal amount at any
one time outstanding up to, but not exceeding, the amount of such Lender's
Commitment. Subject to the terms and conditions of this Agreement, during the
period from the Effective Date to but excluding the Termination Date, the
Borrower may borrow, repay and reborrow Revolving Loans hereunder. Upon the
Effective Date, all outstanding Revolving Loans (as defined under the Existing
Credit Agreement) shall be deemed to be Revolving Loans to the Borrower
outstanding hereunder being of the same Types, and in the case of LIBOR Loans,
having the same Interest Periods. As of the Effective Date, such Revolving Loans
shall be allocated among the Lenders in accordance with their respective
Commitment Percentages. Each Lender agrees to make such payments to the other
Lenders under the Existing Credit Agreement upon the Effective Date in such
amounts as are necessary to effect such allocation. All such payments shall be
made to the Administrative Agent for the account of the Person to be paid.
-26-
(b) Requesting Revolving Loans. The Borrower shall give the
--------------------------
Administrative Agent notice pursuant to a Notice of Borrowing or telephonic
notice of each borrowing of Revolving Loans. Each Notice of Borrowing shall be
delivered to the Administrative Agent before 12:00 noon (a) in the case of LIBOR
Loans, on the date three Business Days prior to the proposed date of such
borrowing and (b) in the case of Base Rate Loans, on the date one Business Day
prior to the proposed date of such borrowing. Any such telephonic notice shall
include all information to be specified in a written Notice of Borrowing and
shall be promptly confirmed in writing by the Borrower pursuant to a Notice of
Borrowing sent to the Administrative Agent by telecopy on the same day of the
giving of such telephonic notice. The Administrative Agent will transmit by
telecopy the Notice of Borrowing (or the information contained in such Notice of
Borrowing) to each Lender promptly upon receipt by the Administrative Agent.
Each Notice of Borrowing or telephonic notice of each borrowing shall be
irrevocable once given and binding on the Borrower.
(c) Disbursements of Revolving Loan Proceeds. No later than 1:00 p.m. on
----------------------------------------
the date specified in the Notice of Borrowing, each Lender will make available
for the account of its applicable Lending Office to the Administrative Agent at
the Principal Office, in immediately available funds, the proceeds of the
Revolving Loan to be made by such Lender. With respect to Revolving Loans to be
made after the Effective Date, unless the Administrative Agent shall have been
notified by any Lender prior to the specified date of borrowing that such Lender
does not intend to make available to the Administrative Agent the Revolving Loan
to be made by such Lender on such date, the Administrative Agent may assume that
such Lender will make the proceeds of such Revolving Loan available to the
Administrative Agent on the date of the requested borrowing as set forth in the
Notice of Borrowing and the Administrative Agent may (but shall not be obligated
to), in reliance upon such assumption, make available to the Borrower the amount
of such Revolving Loan to be provided by such Lender. Subject to satisfaction
of the applicable conditions set forth in Article V. for such borrowing, the
Administrative Agent will make the proceeds of such borrowing available to the
Borrower no later than 2:00 p.m. on the date and at the account specified by the
Borrower in such Notice of Borrowing.
Section 2.2. Rates And Payment Of Interest On Loans.
(a) Rates. The Borrower promises to pay to the Administrative Agent for
-----
account of each Lender interest on the unpaid principal amount of each Loan made
by such Lender for the period from and including the date of the making of such
Loan to but excluding the date such Loan shall be paid in full, at the following
per annum rates:
(i) during such periods as such Loan is a Base Rate Loan, at the
Base Rate (as in effect from time to time) plus the Applicable Margin;
and
(ii) during such periods as such Loan is a LIBOR Loan, at the
Adjusted Eurodollar Rate for such Loan for the Interest Period therefor,
plus the Applicable Margin.
Notwithstanding the foregoing, during the continuance of an Event of Default,
the Borrower shall pay to the Administrative Agent for account of each Lender
interest at the Post-Default Rate on
-27-
the outstanding principal amount of any Loan made by such Lender and on any
other amount payable by the Borrower hereunder or under the Notes held by such
Lender (including without limitation, accrued but unpaid interest to the extent
permitted under Applicable Law).
(b) Payment of Interest. Accrued interest on each Loan shall be payable
-------------------
(i) in the case of a Base Rate Loan, monthly on the first Business Day of each
calendar month, (ii) in the case of a LIBOR Loan, on the last day of each
Interest Period therefor and, if such Interest Period is longer than three
months, at three-month intervals following the first day of such Interest
Period, and (iii) in the case of any Loan, upon the payment, prepayment or
Continuation thereof or the Conversion of such Loan to a Loan of another Type
(but only on the principal amount so paid, prepaid or Converted). Interest
payable at the Post-Default Rate shall be payable from time to time on demand.
Promptly after the determination of any interest rate provided for herein or any
change therein, the Administrative Agent shall give notice thereof to the
Lenders to which such interest is payable and to the Borrower. All
determinations by the Administrative Agent of an interest rate hereunder shall
be conclusive and binding on the Lenders and the Borrower for all purposes,
absent manifest error.
Section 2.3. Number of Interest Periods.
There may be no more than 6 different Interest Periods outstanding at the
same time.
Section 2.4. Repayment of Loans.
The Borrower shall repay the entire outstanding principal amount of, and
all accrued but unpaid interest on, the Revolving Loans on the Termination Date.
Section 2.5. Prepayments.
(a) Optional. Subject to Section 4.4., the Borrower may prepay any Loan
--------
at any time without premium or penalty. The Borrower shall give the
Administrative Agent at least 3 Business Days prior written notice of the
prepayment of any LIBOR Loan and at least 1 Business Day prior written notice of
the prepayment of any Base Rate Loan. Promptly upon receipt of any such notice
of prepayment, the Administrative Agent shall give notice thereof to each
Lender.
(b) Mandatory. If at any time the aggregate principal amount of all
---------
outstanding Revolving Loans, together with the aggregate amount of all Letter of
Credit Liabilities, exceeds the aggregate amount of the Commitments at such
time, the Borrower shall immediately pay to the Administrative Agent for the
accounts of the Lenders the amount of such excess. Such payment shall be applied
to pay all amounts of principal outstanding on the Loans and all Reimbursement
Obligations pro rata in accordance with Section 3.2. and the remainder, if any,
shall be deposited into the Collateral Account. If the Borrower is required to
pay any outstanding LIBOR Loans by reason of this Section prior to the end of
the applicable Interest Period therefor, the Borrower shall pay all amounts due
under Section 4.4.
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Section 2.6. Continuation.
So long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may on any Business Day, with respect to any LIBOR
Loan, elect to maintain such LIBOR Loan or any portion thereof as a LIBOR Loan
by selecting a new Interest Period for such LIBOR Loan. Each new Interest
Period selected under this Section shall commence on the last day of the
immediately preceding Interest Period. Each selection of a new Interest Period
shall be made by the Borrower giving to the Administrative Agent a Notice of
Continuation not later than 12:00 noon on the third Business Day prior to the
date of any such Continuation. Such notice by the Borrower of a Continuation
shall be by telephone or telecopy, confirmed immediately in writing if by
telephone, in the form of a Notice of Continuation, specifying (a) the proposed
date of such Continuation, (b) the LIBOR Loan and portion thereof subject to
such Continuation and (c) the duration of the selected Interest Period, all of
which shall be specified in such manner as is necessary to comply with all
limitations on Loans outstanding hereunder. Each Notice of Continuation shall
be irrevocable by and binding on the Borrower once given. Promptly after
receipt of a Notice of Continuation, the Administrative Agent shall notify each
Lender by telecopy or other similar form of transmission of the proposed
Continuation. If the Borrower shall fail to select in a timely manner a new
Interest Period for any LIBOR Loan in accordance with this Section, such Loan
will automatically, on the last day of the current Interest Period therefor,
Convert into a Base Rate Loan notwithstanding failure of the Borrower to comply
with Section 2.7.
Section 2.7. Conversion.
So long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may on any Business Day, upon the Borrower's giving of
a Notice of Conversion to the Administrative Agent, Convert all or a portion of
a Loan of one Type into a Loan of another Type. Any Conversion of a LIBOR Loan
into a Base Rate Loan shall be made on, and only on, the last day of an Interest
Period for such LIBOR Loan and, upon Conversion of a Base Rate Loan into a LIBOR
Loan, the Borrower shall pay accrued interest to the date of Conversion on the
principal amount so Converted. Each such Notice of Conversion shall be given not
later than 12:00 noon on the Business Day prior to the date of any proposed
Conversion into Base Rate Loans and on the third Business Day prior to the date
of any proposed Conversion into LIBOR Loans. Promptly after receipt of a Notice
of Conversion, the Administrative Agent shall notify each Lender by telecopy or
other similar form of transmission of the proposed Conversion. Subject to the
restrictions specified above, each Notice of Conversion shall be by telephone
(confirmed immediately in writing) or telecopy in the form of a Notice of
Conversion specifying (a) the requested date of such Conversion, (b) the Type of
Loan to be Converted, (c) the portion of such Type of Loan to be Converted, (d)
the Type of Loan such Loan is to be Converted into and (e) if such Conversion is
into a LIBOR Loan, the requested duration of the Interest Period of such Loan.
Each Notice of Conversion shall be irrevocable by and binding on the Borrower
once given.
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Section 2.8. Notes.
(a) Revolving Note. The Revolving Loans made by each Lender shall, in
--------------
addition to this Agreement, also be evidenced by a promissory note of the
Borrower substantially in the form of Exhibit F (each a "Revolving Note"),
payable to the order of such Lender in a principal amount equal to the amount of
its Commitment as originally in effect and otherwise duly completed.
(b) Records; Endorsement on Transfer. The date, amount of each Loan made
--------------------------------
by each Lender to the Borrower, and each payment made on account of the
principal thereof, shall be recorded by such Lender on its books and such
entries shall be binding on the Borrower absent manifest error. Prior to the
transfer of any Note, the Lender shall endorse such items on such Note or any
allonge thereof; provided that the failure of such Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower to
make a payment when due of any amount owing hereunder or under such Note in
respect of the Loans evidenced by such Note.
Section 2.9. Letters of Credit.
(a) Letters of Credit. Subject to the terms and conditions of this
-----------------
Agreement, the Administrative Agent, on behalf of the Lenders, agrees to issue
for the account of the Borrower during the period from and including the
Effective Date to, but excluding, the date 60 days prior to the Termination Date
one or more letters of credit (each a "Letter of Credit") up to a maximum
aggregate Stated Amount at any one time outstanding not to exceed the L/C
Commitment Amount. Notwithstanding the foregoing, there may be no more than 10
Letters of Credit outstanding at any given time.
(b) Terms of Letters of Credit. At the time of issuance, the amount,
--------------------------
form, terms and conditions of each Letter of Credit, and of any drafts or
acceptances thereunder, shall be subject to approval by the Administrative Agent
and the Borrower. Notwithstanding the foregoing, in no event may the expiration
date of any Letter of Credit extend beyond the date 30 days prior to the
Termination Date, and any Letter of Credit containing an automatic renewal
provision shall also contain a provision pursuant to which, notwithstanding any
other provisions thereof, it shall have a final expiration date no later than
the date 30 days prior to the Termination Date.
(c) Requests for Issuance of Letters of Credit. The Borrower shall give
------------------------------------------
the Administrative Agent written notice (or telephonic notice promptly confirmed
in writing) no later than 9:00 a.m. three Business Days prior to the requested
date of issuance of a Letter of Credit, such notice to describe in reasonable
detail the proposed terms of such Letter of Credit and the nature of the
transactions or obligations proposed to be supported by such Letter of Credit,
and in any event shall set forth with respect to such Letter of Credit (i) the
proposed initial Stated Amount, (ii) the beneficiary or beneficiaries, (iii)
whether such Letter of Credit is a commercial or standby letter of credit and
(iv) the proposed expiration date. The Borrower shall also execute and deliver
such customary letter of credit application forms as requested from time to time
by the Administrative Agent. Provided the Borrower has given the notice
prescribed by this subsection and subject to Section 2.13. and the other terms
and conditions of this Agreement, including the satisfaction of any applicable
conditions precedent set forth in Article V., the
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Administrative Agent shall issue the requested Letter of Credit on the requested
date of issuance. The Administrative Agent shall promptly provide notice to the
Lenders of the issuance of any Letter of Credit issued hereunder which notice
shall set forth each Lender's pro rata share of (1) such Letter of Credit and
(2) all Letters of Credit then outstanding. Upon the written request of the
Borrower, the Administrative Agent (x) shall make reasonable efforts to deliver
to the Borrower a copy of any Letter of Credit proposed to be issued hereunder
prior to the issuance thereof and (y) shall deliver to the Borrower a copy of
each issued Letter of Credit within a reasonable time after the date of issuance
thereof. To the extent any term of a Letter of Credit Document is inconsistent
with a term of any Loan Document, the term of such Loan Document shall control.
(d) Reimbursement Obligations. Upon receipt by the Administrative Agent
-------------------------
from the beneficiary of a Letter of Credit of any demand for payment under such
Letter of Credit, the Administrative Agent shall promptly notify the Borrower of
the amount to be paid by the Administrative Agent as a result of such demand and
the date on which payment is to be made by the Administrative Agent to such
beneficiary in respect of such demand. The Borrower hereby unconditionally and
irrevocably agrees to pay and reimburse the Administrative Agent for the amount
of each demand for payment under such Letter of Credit on or prior to the date
on which payment is to be made by the Administrative Agent to the beneficiary
thereunder, without presentment, demand, protest or other formalities of any
kind. Upon receipt by the Administrative Agent of any payment in respect of any
Reimbursement Obligation, the Administrative Agent shall promptly pay to each
Lender that has acquired a participation therein under the second sentence of
Section 2.9.(i) such Lender's Commitment Percentage of such payment.
(e) Manner of Reimbursement. Upon its receipt of a notice referred to in
-----------------------
the immediately preceding subsection (d), the Borrower shall advise the
Administrative Agent whether or not the Borrower intends to borrow hereunder to
finance its obligation to reimburse the Administrative Agent for the amount of
the related demand for payment and, if it does, the Borrower shall submit a
timely Notice of Borrowing as provided in Section 2.1.(b). If the Borrower fails
to so advise the Administrative Agent, or if the Borrower fails to reimburse the
Administrative Agent for a demand for payment under a Letter of Credit by the
date of such payment, then (i) if the applicable conditions contained in Article
V. would permit the making of Revolving Loans, the Borrower shall be deemed to
have requested a borrowing of Revolving Loans (which shall be Base Rate Loans)
in an amount equal to the unpaid Reimbursement Obligation and the Administrative
Agent shall give each Lender prompt notice of the amount of the Revolving Loan
(which shall not be subject to the limitations of Section 3.5.) to be made by
such Lender, the proceeds of which such Lender shall make available to the
Administrative Agent not later than 3:00 p.m. and (ii) if such conditions would
not permit the making of Revolving Loans, the provisions of subsection (j) of
this Section shall apply.
(f) Effect of Letters of Credit on Commitments. Upon the issuance by the
------------------------------------------
Administrative Agent of any Letter of Credit and until such Letter of Credit
shall have expired or been terminated, the Commitment of each Lender shall be
deemed to be utilized for all purposes
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of this Agreement in an amount equal to such Lender's Commitment Percentage of
the Stated Amount of such Letter of Credit plus any related Reimbursement
Obligations then outstanding.
(g) Administrative Agent's Duties Regarding Letters of Credit;
----------------------------------------------------------
Unconditional Nature of Reimbursement Obligation. In examining documents
------------------------------------------------
presented in connection with drawings under Letters of Credit and making
payments under such Letters of Credit against such documents, the Administrative
Agent shall use the same standard of care as it uses in connection with
examining documents presented in connection with drawings under letters of
credit in which it has not sold participations and making payments under such
letters of credit. The Borrower assumes all risks of the acts and omissions of,
or misuse of the Letters of Credit by, the respective beneficiaries of such
Letters of Credit. In furtherance and not in limitation of the foregoing,
neither the Administrative Agent nor any of the Lenders shall be responsible for
(i) the form, validity, sufficiency, accuracy, genuineness or legal effects of
any document submitted by any party in connection with the application for and
issuance of or any drawing honored under any Letter of Credit even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any Letter of
Credit, or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason; (iii) failure
of the beneficiary of any Letter of Credit to comply fully with conditions
required in order to draw upon such Letter of Credit; (iv) errors, omissions,
interruptions or delays in transmission or delivery of any messages by others,
whether by mail, cable, telex, telecopy or otherwise, whether or not they be in
cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay
by others in the transmission or otherwise of any document required in order to
make a drawing under any Letter of Credit, or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit, or the proceeds
of any drawing under such Letter of Credit; or (viii) any consequences arising
from causes beyond the control of the Administrative Agent or the Lenders. None
of the above shall affect, impair or prevent the vesting of any of the
Administrative Agent's rights or powers hereunder. Any action taken or omitted
to be taken by the Administrative Agent under or in connection with any Letter
of Credit, if taken or omitted in the absence of gross negligence or willful
misconduct, shall not create against the Administrative Agent any liability to
the Borrower or any Lender. In this connection, the obligation of the Borrower
to reimburse the Administrative Agent for any drawing made under any Letter of
Credit shall be absolute, unconditional and irrevocable and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances
whatsoever, including without limitation, the following circumstances: (A) any
lack of validity or enforceability of any Letter of Credit Document or any term
or provisions therein; (B) any amendment or waiver of or any consent to
departure from all or any of the Letter of Credit Documents; (C) the existence
of any claim, setoff, defense or other right which the Borrower may have at any
time against the Administrative Agent, any Lender, any beneficiary of a Letter
of Credit or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or in the Letter of Credit Documents or any
unrelated transaction; (D) any breach of contract or dispute between the
Borrower, the Administrative Agent, any Lender or any other Person; (E) any
demand, statement or any other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein or made in connection therewith being untrue or inaccurate in
any respect whatsoever;
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(F) any non-application or misapplication by the beneficiary of a Letter of
Credit of the proceeds of any drawing under such Letter of Credit; (G) payment
by the Administrative Agent under the Letter of Credit against presentation of a
draft or certificate which does not strictly comply with the terms of the Letter
of Credit; and (H) any other act, omission to act, delay or circumstance
whatsoever that might, but for the provisions of this Section, constitute a
legal or equitable defense to or discharge of the Borrower's Reimbursement
Obligations.
(h) Amendments, Etc. The issuance by the Administrative Agent of any
---------------
amendment, supplement or other modification to any Letter of Credit shall be
subject to the same conditions applicable under this Agreement to the issuance
of new Letters of Credit (including, without limitation, that the request
therefor be made through the Administrative Agent), and no such amendment,
supplement or other modification shall be issued unless either (i) the
respective Letter of Credit affected thereby would have complied with such
conditions had it originally been issued hereunder in such amended, supplemented
or modified form or (ii) the Requisite Lenders shall have consented thereto.
(i) Lenders' Participation in Letters of Credit. Immediately upon the
-------------------------------------------
issuance by the Administrative Agent of any Letter of Credit each Lender shall
be deemed to have irrevocably and unconditionally purchased and received from
the Administrative Agent, without recourse or warranty, an undivided interest
and participation to the extent of such Lender's Commitment Percentage of the
liability of the Administrative Agent with respect to such Letter of Credit and
each Lender thereby shall absolutely, unconditionally and irrevocably assume, as
primary obligor and not as surety, and shall be unconditionally obligated to the
Administrative Agent to pay and discharge when due, such Lender's Commitment
Percentage of the Administrative Agent's liability under such Letter of Credit.
In addition, upon the making of each payment by a Lender to the Administrative
Agent in respect of any Letter of Credit pursuant to the immediately following
subsection (j), such Lender shall, automatically and without any further action
on the part of the Administrative Agent or such Lender, acquire (i) a
participation in an amount equal to such payment in the Reimbursement Obligation
owing to the Administrative Agent by the Borrower in respect of such Letter of
Credit and (ii) a participation in a percentage equal to such Lender's
Commitment Percentage in any interest or other amounts payable by the Borrower
in respect of such Reimbursement Obligation (other than the Fees payable to the
Administrative Agent pursuant to the second and last sentences of Section
3.6.(b)).
(j) Payment Obligation of Lenders. Each Lender severally agrees to pay
-----------------------------
to the Administrative Agent on demand in immediately available funds the amount
of such Lender's Commitment Percentage of each drawing paid by the
Administrative Agent under each Letter of Credit to the extent such amount is
not reimbursed by the Borrower pursuant to Section 2.9.(d) and is not available
from funds then on deposit in the Collateral Account. Each such Lender's
obligation to make such payments to the Administrative Agent under this
subsection, and the Administrative Agent's right to receive the same, shall be
absolute, irrevocable and unconditional and shall not be affected in any way by
any circumstance whatsoever, including without limitation, (i) the failure of
any other Lender to make its payment under this subsection, (ii) the financial
condition of the Borrower or any other Loan Party, (iii) the existence of any
Default or Event of Default, including any Event of Default described in Section
10.1.(e) or 10.1.(f) or (iv) the
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termination of the Commitments. Each such payment to the Administrative Agent
shall be made without any offset, abatement, withholding or deduction
whatsoever.
(k) Information to Lenders. Upon the request of any Lender from time to
----------------------
time, the Administrative Agent shall deliver to such Lender information
reasonably requested by such Lender with respect to any Letter of Credit then
outstanding. Other than as set forth in this subsection or in the immediately
preceding subsection (c), the Administrative Agent shall have no duty to notify
the Lenders regarding the issuance or other matters regarding Letters of Credit
issued hereunder. The failure of the Administrative Agent to perform its
requirements under this subsection or such subsection (c) shall not relieve any
Lender from its obligations under Section 2.9.(j).
Section 2.10. Voluntary Reductions of the Commitment.
The Borrower shall have the right to terminate or reduce the aggregate
unused amount of the Commitments (for which purpose use of the Commitments shall
be deemed to include the aggregate amount of all Letter of Credit Liabilities)
at any time and from time to time without penalty or premium upon not less than
5 Business Days prior written notice to the Administrative Agent of each such
termination or reduction, which notice shall specify the effective date thereof
and the amount of any such reduction and shall be irrevocable once given and
effective only upon receipt by the Administrative Agent. The Administrative
Agent will promptly transmit such notice to each Lender. The Commitments, once
terminated or reduced may not be increased or reinstated. Any reduction in the
aggregate amount of the Commitments shall result in a proportionate reduction
(rounded to the next lowest integral multiple of $100,000) in the L/C Commitment
Amount; provided, however, the L/C Commitment Amount shall not be reduced by
operation of this sentence to an amount less than the Letter of Credit
Liabilities at such time.
Section 2.11. Increase of Commitments.
The Borrower shall have the right to request increases in the aggregate
amount of the Commitments from time to time (provided that after giving effect
to any such increase the aggregate amount of the Commitments would not exceed
$350,000,000) by providing written notice to the Administrative Agent and the
Arrangers, which notice shall be irrevocable once given. The Borrower, prior to
requesting an increase in the Commitments pursuant to this Section must offer in
writing each Lender the right to increase its Commitment by an amount so that
such Lender's Commitment Percentage shall not be decreased as a result of such
increase in the Commitments. If a Lender does not accept the Borrower's offer to
increase its Commitment as provided in the preceding sentence within 10 Business
Days of the receipt of such offer, such offer shall be deemed rejected by such
Lender. No Lender shall be required to increase its Commitment and any new
Lender(s) becoming a party to this Agreement must be an Eligible Assignee. In
the event a new Lender or Lenders become a party to this Agreement, or if any
existing Lender agrees to increase its Commitment, such Lender shall on the date
it becomes a Lender hereunder (or increases its Commitment, in the case of an
existing Lender) (and as a condition thereto) purchase from the other Lenders
its Lender's Commitment Percentage (as determined after giving effect to the
increase of Commitments) of any outstanding Loans, by making available to the
Administrative Agent for the account of such other Lenders at the
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Principal Office, in same day funds, an amount equal to the sum of (A) the
portion of the outstanding principal amount of such Loans to be purchased by
such Lender plus (B) the aggregate amount of payments previously made by such
Lender under Section 2.9.(j) which have not been repaid plus (C) interest
accrued and unpaid to and as of such date on such portion of the outstanding
principal amount of such Loans. Upon any such assignment, the assigning Lender
shall be deemed to represent and warrant to such other Lender that such
assigning Lender is the legal and beneficial owner of such interest being
assigned by it, but makes no other representation or warranty and assumes no
responsibility with respect to any Loan being assigned, the Loan Documents or
any Loan Party. No increase of the Commitments may be effected under this
Section if a Default or Event of Default shall be in existence on the effective
date of such increase. In connection with any increase in the aggregate amount
of the Commitments pursuant to this subsection, the Borrower shall make
appropriate arrangements so that each new Lender, and any existing Lender
increasing its Commitment, receives a new or replacement Note, as appropriate,
in the amount of such Lender's Commitment within 2 Business Days of the
effectiveness of the applicable increase in the aggregate amount of Commitments.
Section 2.12. Expiration or Maturity Date of Letters of Credit Past Termination
Date.
If on the date (the "Facility Termination Date") the Commitments are
terminated (whether voluntarily, by reason of the occurrence of an Event of
Default or otherwise), there are any Letters of Credit outstanding hereunder,
the Borrower shall, on the Facility Termination Date, pay to the Administrative
Agent an amount of money equal to the Stated Amount of such Letter(s) of Credit
for deposit into the Collateral Account. If a drawing pursuant to any such
Letter of Credit occurs on or prior to the expiration date of such Letter of
Credit, the Borrower authorizes the Administrative Agent to use the monies
deposited in the Collateral Account to make payment to the beneficiary with
respect to such drawing or the payee with respect to such presentment. If no
drawing occurs on or prior to the expiration date of such Letter of Credit, the
Administrative Agent shall pay to the Borrower (or to whomever else may be
legally entitled thereto) the monies deposited in the Collateral Account with
respect to such outstanding Letter of Credit on or before the date 30 Business
Days after the expiration date of such Letter of Credit.
Section 2.13. Amount Limitations.
Notwithstanding any other term of this Agreement or any other Loan
Document, at no time may the aggregate principal amount of all outstanding
Revolving Loans, together with the aggregate amount of all Letter of Credit
Liabilities, exceed the aggregate amount of the Commitments.
Article III. Payments, Fees and Other General Provisions
Section 3.1. Payments.
Except to the extent otherwise provided herein, all payments of
principal, interest and other amounts to be made by the Borrower under this
Agreement or any other Loan Document shall be made in Dollars, in immediately
available funds, without deduction, set-off or
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counterclaim, to the Administrative Agent at its Principal Office, not later
than 2:00 p.m. on the date on which such payment shall become due (each such
payment made after such time on such due date to be deemed to have been made on
the next succeeding Business Day). Prior to making any such payment, the
Borrower shall give the Administrative Agent notice of such payment. The
Borrower shall, at the time of making each payment under this Agreement or any
Note, specify to the Administrative Agent the amounts payable by the Borrower
hereunder to which such payment is to be applied. Each payment received by the
Administrative Agent for the account of a Lender under this Agreement or any
Note shall be paid to such Lender at the applicable Lending Office of such
Lender no later than 5:00 p.m. on the date of receipt. If the Administrative
Agent fails to pay such amount to a Lender as provided in the previous sentence,
the Administrative Agent shall pay interest on such amount until paid at a rate
per annum equal to the Federal Funds Rate from time to time in effect. If the
due date of any payment under this Agreement or any other Loan Document would
otherwise fall on a day which is not a Business Day such date shall be extended
to the next succeeding Business Day and interest shall be payable for the period
of such extension.
Section 3.2. Pro Rata Treatment.
Except to the extent otherwise provided herein: (a) each borrowing from
the Lenders under Section 2.1.(a) shall be made from the Lenders, each payment
of the Fees under Section 3.6.(a) and the first sentence of subsection (b)
thereof, shall be made for account of the Lenders, and each termination or
reduction of the amount of the Commitments under Section 2.10. shall be applied
to the respective Commitments of the Lenders, pro rata according to the amounts
of their respective Commitments; (b) each payment or prepayment of principal of
Revolving Loans by the Borrower shall be made for account of the Lenders pro
rata in accordance with the respective unpaid principal amounts of the Revolving
Loans held by them, provided that if immediately prior to giving effect to any
such payment in respect of any Revolving Loans the outstanding principal amount
of the Revolving Loans shall not be held by the Lenders pro rata in accordance
with their respective Commitments in effect at the time such Loans were made,
then such payment shall be applied to the Revolving Loans in such manner as
shall result, as nearly as is practicable, in the outstanding principal amount
of the Revolving Loans being held by the Lenders pro rata in accordance with
their respective Commitments; (c) each payment of interest on Revolving Loans by
the Borrower shall be made for account of the Lenders pro rata in accordance
with the amounts of interest on such Loans then due and payable to the
respective Lenders; (d) the making, Conversion and Continuation of Revolving
Loans of a particular Type (other than Conversions provided for by Section 4.5.)
shall be made pro rata among the Lenders according to the amounts of their
respective Commitments (in the case of making of Loans) or their respective
Loans (in the case of Conversions and Continuations of Loans) and the then
current Interest Period for each Lender's portion of each Loan of such Type
shall be coterminous and (e) the Lenders' participation in, and payment
obligations in respect of, Letters of Credit under Section 2.9., shall be pro
rata in accordance with their respective Commitments.
Section 3.3. Sharing of Payments, Etc.
The Borrower agrees that, in addition to (and without limitation of) any
right of set-off, banker's lien or counterclaim a Lender or the Administrative
Agent may otherwise have, each
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Lender and the Administrative Agent shall be entitled during the continuance of
an Event of Default, at its option, and in the case of any Lender subject to
receipt of the Administrative Agent's prior written consent, to offset balances
held by it for the account of the Borrower at any of such Lender's (or the
Administrative Agent's) offices, in Dollars or in any other currency, against
any principal of, or interest on, any of such Lender's Loans hereunder (or other
Obligations owing to such Lender or the Administrative Agent hereunder) which is
not paid when due (regardless of whether such balances are then due to the
Borrower), in which case such Lender shall promptly notify the Borrower, all
other Lenders and the Administrative Agent thereof; provided, however, such
Lender's failure to give such notice shall not affect the validity of such
offset. If a Lender shall obtain payment of any principal of, or interest on,
any Loan made by it to the Borrower under this Agreement, or shall obtain
payment on any other Obligation owing by the Borrower or a Subsidiary through
the exercise of any right of set-off, banker's lien or counterclaim or similar
right or otherwise or through voluntary prepayments directly to a Lender or
other payments made by the Borrower to a Lender not in accordance with the terms
of this Agreement and such payment should be distributed to the Lenders pro rata
in accordance with Section 3.2. or Section 10.4., as applicable, such Lender
shall promptly pay such amounts to the other Lenders and make such other
adjustments from time to time as shall be equitable, to the end that all the
Lenders shall share the benefit of such payment (net of any reasonable expenses
which may be incurred by such Lender in obtaining or preserving such benefit)
pro rata in accordance with Section 3.2. or Section 10.4. To such end, all the
Lenders shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored. Nothing contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness or
obligation of the Borrower.
Section 3.4. Several Obligations.
No Lender shall be responsible for the failure of any other Lender to
make a Loan or to perform any other obligation to be made or performed by such
other Lender hereunder, and the failure of any Lender to make a Loan or to
perform any other obligation to be made or performed by it hereunder shall not
relieve the obligation of any other Lender to make any Loan or to perform any
other obligation to be made or performed by such other Lender.
Section 3.5. Minimum Amounts.
(a) Borrowings and Conversions. Each borrowing of Base Rate Loans shall
--------------------------
be in an aggregate minimum amount of $1,000,000 and integral multiples of
$500,000 in excess thereof. Each borrowing of LIBOR Loans, and each Conversion
of Base Rate Loans into LIBOR Loans, shall be in an aggregate minimum amount of
$2,000,000 and integral multiples of $500,000 in excess of that amount.
(b) Prepayments. Each voluntary prepayment of Revolving Loans shall be
-----------
in an aggregate minimum amount of $1,000,000 and integral multiples of $500,000
in excess thereof.
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(c) Reductions of Commitments. Each reduction of the Commitments under
-------------------------
Section 2.10. shall be in an aggregate minimum amount of $10,000,000 and
integral multiples of $1,000,000 in excess thereof (or such lesser amount as may
be the remaining aggregate amount of the Commitments).
Section 3.6. Fees.
(a) Unused Commitment Fee. During the period commencing on the Agreement
---------------------
Date to but excluding the Termination Date, the Borrower agrees to pay to the
Administrative Agent for the account of the Lenders an unused facility fee equal
to (a) two-tenths of one percent (0.20%) per annum of the daily aggregate unused
portion of the Lender's Commitments during any period for which the Borrower has
received an Investment Grade Rating from both Rating Agencies or (b) one-quarter
of one percent (0.25%) per annum of the daily aggregate unused portion of the
Lender's Commitments during any other period. Such fee shall be payable
quarterly in arrears on each Quarterly Date and on the Termination Date.
(b) Letter of Credit Fees. In respect of each Letter of Credit, the
---------------------
Borrower agrees to pay to the Administrative Agent for account of each Lender a
letter of credit fee (determined on a per annum basis) in an amount equal to (i)
the initial Stated Amount of such Letter of Credit times the Applicable Margin
for LIBOR Loans determined as of the date of issuance of such Letter of Credit
calculated for the period from and including the date of issuance of such Letter
of Credit to and including the initial date such Letter of Credit is to expire
and (ii) in the case of the extension of the expiration date of any Letter of
Credit (whether as a result of the operation of an automatic extension clause or
otherwise), the Stated Amount of such Letter of Credit on the effective date of
such extension times the Applicable Margin for LIBOR Loans determined as of such
date calculated for the period from but excluding the previous expiration date
to and including the extended expiration date. In addition, the Borrower shall
pay to the Administrative Agent for its own account and not the account of any
Lender, a fronting fee in respect of each Letter of Credit at the rate equal to
one-eighth of one percent (0.125%) per annum on the initial Stated Amount of
such Letter of Credit calculated for the same such period. The fees provided for
in the immediately preceding two sentences shall be nonrefundable upon, and due
and payable in full on, the date of issuance of the applicable Letter of Credit.
The Borrower shall pay directly to the Administrative Agent from time to time on
demand all reasonable commissions, charges, costs and expenses in the amounts
customarily charged by the Administrative Agent from time to time in like
circumstances with respect to the issuance of each Letter of Credit, drawings,
amendments and other transactions relating thereto.
(c) Other Fees. The Borrower agrees to pay the administrative and other
----------
fees of the Administrative Agent as may be agreed to in writing between the
Administrative Agent and the Borrower from time to time.
Section 3.7. Computations.
Unless otherwise expressly set forth herein, any accrued interest on any
Loan, any Fees or other Obligations due hereunder shall be computed on the basis
of a year of 360 days and the actual number of days elapsed.
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Section 3.8. Usury.
In no event shall the amount of interest due or payable on the Loans or
other Obligations exceed the maximum rate of interest allowed by Applicable Law
and, if any such payment is paid by the Borrower or received by any Lender, then
such excess sum shall be credited as a payment of principal, unless the Borrower
shall notify the respective Lender in writing that the Borrower elects to have
such excess sum returned to it forthwith. It is the express intent of the
parties hereto that the Borrower not pay and the Lenders not receive, directly
or indirectly, in any manner whatsoever, interest in excess of that which may be
lawfully paid by the Borrower under Applicable Law.
Section 3.9. Agreement Regarding Interest and Charges.
The parties hereto hereby agree and stipulate that the only charge
imposed upon the Borrower for the use of money in connection with this Agreement
is and shall be the interest specifically described in Section 2.2.(a)(i) and
(ii). Notwithstanding the foregoing, the parties hereto further agree and
stipulate that all agency fees, syndication fees, facility fees, letter of
credit fees, underwriting fees, default charges, late charges, funding or
"breakage" charges, increased cost charges, attorneys' fees and reimbursement
for costs and expenses paid by the Administrative Agent or any Lender to third
parties or for damages incurred by the Administrative Agent or any Lender, are
charges made to compensate the Administrative Agent or any such Lender for
underwriting or administrative services and costs or losses performed or
incurred, and to be performed or incurred, by the Administrative Agent and the
Lenders in connection with this Agreement and shall under no circumstances be
deemed to be charges for the use of money. Except as expressly agreed otherwise
in writing, all charges other than charges for the use of money shall be fully
earned and nonrefundable when due.
Section 3.10. Statements of Account.
The Administrative Agent will account to the Borrower monthly with a
statement of Loans, Letter of Credit, accrued interest and Fees, charges and
payments made pursuant to this Agreement and the other Loan Documents, and such
account rendered by the Administrative Agent shall be prima facie evidence of
the amounts and other matters set forth therein. The failure of the
Administrative Agent to deliver such a statement of accounts shall not relieve
or discharge the Borrower from any of its obligations hereunder.
Section 3.11. Defaulting Lenders.
(a) Generally. If for any reason any Lender (a "Defaulting Lender")
---------
shall fail or refuse to perform any of its obligations under this Agreement or
any other Loan Document to which it is a party within the time period specified
for performance of such obligation or, if no time period is specified, if such
failure or refusal continues for a period of two Business Days after notice from
the Administrative Agent, then, in addition to the rights and remedies that may
be available to the Administrative Agent or the Borrower under this Agreement or
Applicable Law, such Defaulting Lender's right to participate in the
administration of the Loans, this Agreement and the other Loan
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Documents, including without limitation, any right to vote in respect of, to
consent to or to direct any action or inaction of the Administrative Agent or to
be taken into account in the calculation of the Requisite Lenders, shall be
suspended during the pendency of such failure or refusal. Upon a Lender becoming
a Defaulting Lender, the Administrative Agent shall give prompt notice to each
other Lender thereof. If a Lender is a Defaulting Lender because it has failed
to make timely payment to the Administrative Agent of any amount required to be
paid to the Administrative Agent hereunder (without giving effect to any notice
or cure periods), in addition to other rights and remedies which the
Administrative Agent or the Borrower may have under the immediately preceding
provisions or otherwise, the Administrative Agent shall be entitled (i) to
collect interest from such Defaulting Lender on such delinquent payment for the
period from the date on which the payment was due until the date on which the
payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to
apply in satisfaction of the defaulted payment and any related interest, any
amounts otherwise payable to such Defaulting Lender under this Agreement or any
other Loan Document and (iii) to bring an action or suit against such Defaulting
Lender in a court of competent jurisdiction to recover the defaulted amount and
any related interest. Any amounts received by the Administrative Agent in
respect of a Defaulting Lender's Loans shall not be paid to such Defaulting
Lender and shall be held uninvested by the Administrative Agent and either
applied against the purchase price of such Loans under the following subsection
(b) or paid to such Defaulting Lender upon the Defaulting Lender's curing of its
default.
(b) Purchase of Defaulting Lender's Commitment. Any Lender who is not a
------------------------------------------
Defaulting Lender shall have the right, but not the obligation, in its sole
discretion, to acquire all of a Defaulting Lender's Commitment. Any Lender
desiring to exercise such right shall give written notice thereof to the
Administrative Agent no sooner than 2 Business Days and not later than 10
Business Days after such Defaulting Lender became a Defaulting Lender. If more
than one Lender exercises such right, each such Lender shall have the right to
acquire an amount of such Defaulting Lender's Commitment in proportion to the
Commitments of the other Lenders exercising such right. If after such 10th
Business Day, the Lenders have not elected to purchase all of the Commitment of
such Defaulting Lender, then any Eligible Assignee may purchase such Commitment.
None of the Administrative Agent, the Arrangers or any of the Lenders shall have
any obligation whatsoever to initiate any such replacement or to assist in
finding an Eligible Assignee. Upon any such purchase, the Defaulting Lender's
interest in the Loans and its rights hereunder (but not its liability in respect
thereof or under the Loan Documents or this Agreement to the extent the same
relate to the period prior to the effective date of the purchase) shall
terminate on the date of purchase, and the Defaulting Lender shall promptly
execute all documents reasonably requested to surrender and transfer such
interest to the purchaser thereof, including an appropriate Assignment and
Acceptance Agreement and, notwithstanding Section 12.5.(d), shall pay to the
Administrative Agent an assignment fee in the amount of $5,000. The purchase
price for the Commitment of a Defaulting Lender shall be equal to the amount of
the principal balance of the Loans outstanding and owed by the Borrower to the
Defaulting Lender plus the aggregate amount of payments previously made by such
----
Defaulting Lender under Section 2.9.(j) which have not been repaid. Prior to
payment of such purchase price to a Defaulting Lender, the Administrative Agent
shall apply against such purchase price any amounts retained by the
Administrative Agent pursuant to the last sentence of the immediately preceding
subsection (a). The Defaulting Lender shall be entitled to receive amounts owed
to it
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by the Borrower under the Loan Documents which accrued prior to the date of the
default by the Defaulting Lender, to the extent the same are received by the
Administrative Agent from or on behalf of the Borrower. There shall be no
recourse against any Lender or the Administrative Agent for the payment of such
sums except to the extent of the receipt of payments from any other party or in
respect of the Loans. If, prior to a Lender's acquisition of a Defaulting
Lender's Commitment pursuant to this subsection, such Defaulting Lender shall
cure the event or condition which caused it to become a Defaulting Lender and
shall have paid all amounts owing by it hereunder as a result thereof, then such
Lender shall no longer have the right to acquire such Defaulting Lender's
Commitment.
Section 3.12. Taxes.
(a) Taxes Generally. All payments by the Borrower of principal of, and
---------------
interest on, the Loans and all other Obligations shall be made free and clear of
and without deduction for any present or future excise, stamp or other taxes,
fees, duties, levies, imposts, charges, deductions, withholdings or other
charges of any nature whatsoever imposed by any taxing authority, but excluding
(i) franchise taxes, (ii) any taxes (other than withholding taxes) that would
not be imposed but for a connection between the Administrative Agent or a Lender
and the jurisdiction imposing such taxes (other than a connection arising solely
by virtue of the activities of the Administrative Agent or such Lender pursuant
to or in respect of this Agreement or any other Loan Document), (iii) any
withholding taxes payable with respect to payments hereunder or under any other
Loan Document under Applicable Law in effect on the Agreement Date, (iv) any
taxes imposed on or measured by any Lender's assets, net income, receipts or
branch profits, (v) any taxes arising after the Agreement Date solely as a
result of or attributable to a Lender changing its designated Lending Office
after the date such Lender becomes a party hereto (excluding, however, taxes
imposed as a result of a Lender changing its Lending Office pursuant to the
requirements of Section 4.6.) and (vi) any interest, fees, additional taxes or
penalties relating to any of the items described in the preceding clauses (i)
through (v) (such non-excluded items being collectively called "Taxes"). If any
withholding or deduction from any payment to be made by the Borrower hereunder
is required in respect of any Taxes pursuant to any Applicable Law, then the
Borrower will:
(i) pay directly to the relevant Governmental Authority the full
amount required to be so withheld or deducted;
(ii) promptly forward to the Administrative Agent an official receipt
or other documentation satisfactory to the Administrative Agent evidencing
such payment to such Governmental Authority; and
(iii) pay to the Administrative Agent for its account or the account
of the applicable Lender, as the case may be, such additional amount or
amounts as is necessary to ensure that the net amount actually received by
the Administrative Agent or such Lender will equal the full amount that the
Administrative Agent or such Lender would have received had no such
withholding or deduction been required.
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(b) Tax Indemnification. If the Borrower fails to pay any Taxes when due
-------------------
to the appropriate Governmental Authority or fails to remit to the
Administrative Agent, for its account or the account of the respective Lender,
as the case may be, the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent and the Lenders
for any incremental Taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure. For purposes
of this Section, a distribution hereunder by the Administrative Agent or any
Lender to or for the account of any Lender shall be deemed a payment by the
Borrower.
(c) Tax Forms. Prior to the date that any Lender or participant
---------
organized under the laws of a jurisdiction outside the United States of America
becomes a party hereto, such Person shall deliver to the Borrower and the
Administrative Agent such certificates, documents or other evidence, as required
by the Internal Revenue Code or Treasury Regulations issued pursuant thereto
(including Internal Revenue Service Forms 4224 or 1001, as applicable, or
appropriate successor forms), properly completed, currently effective and duly
executed by such Lender or participant establishing that payments to it
hereunder and under the Notes are (i) not subject to United States Federal
backup withholding tax or (ii) not subject to United States Federal withholding
tax under the Code because such payment is either effectively connected with the
conduct by such Lender or participant of a trade or business in the United
States or totally exempt from United States Federal withholding tax by reason of
the application of the provisions of a treaty to which the United States is a
party or such Lender is otherwise exempt.
Article IV. Yield Protection, Etc.
Section 4.1. Additional Costs; Capital Adequacy.
(a) Additional Costs. The Borrower shall promptly (and in any event
----------------
within 30 calendar days of request) pay to the Administrative Agent for the
account of a Lender from time to time such amounts as such Lender may determine
to be necessary to compensate such Lender for any costs incurred by such Lender
that it determines are attributable to its making or maintaining of any LIBOR
Loans or its obligation to make any LIBOR Loans hereunder, any reduction in any
amount receivable by such Lender under this Agreement or any of the other Loan
Documents in respect of any of such Loans or such obligation or the maintenance
by such Lender of capital in respect of its Loans or its Commitments (such
increases in costs and reductions in amounts receivable being herein called
"Additional Costs"), resulting from any Regulatory Change that: (i) changes the
basis of taxation of any amounts payable to such Lender under this Agreement or
any of the other Loan Documents in respect of any of such Loans or its
Commitments (other than taxes imposed on or measured by the overall net income
of such Lender or of its Lending Office for any of such Loans by the
jurisdiction in which such Lender has its principal office or such Lending
Office); or (ii) imposes or modifies any reserve, special deposit or similar
requirements (other than Regulation D of the Board of Governors of the Federal
Reserve System or other reserve requirement utilized in the determination of the
Adjusted Eurodollar Rate for such Loan) relating to any extensions of credit or
other assets of, or any deposits with or other liabilities of, such Lender, or
any commitment of such Lender (including, without limitation, the Commitments of
such Lender hereunder); or (iii) has or would have the effect of reducing the
rate of return on capital of such Lender to a level below that which such Lender
could have achieved
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but for such Regulatory Change (taking into consideration such Lender's policies
with respect to capital adequacy).
(b) Lender's Suspension of LIBOR Loans. Without limiting the effect of
----------------------------------
the provisions of the immediately preceding subsection (a), if by reason of any
Regulatory Change, any Lender either (i) incurs Additional Costs based on or
measured by the excess above a specified level of the amount of a category of
deposits or other liabilities of such Lender that includes deposits by reference
to which the interest rate on LIBOR Loans is determined as provided in this
Agreement or a category of extensions of credit or other assets of such Lender
that includes LIBOR Loans or (ii) becomes subject to restrictions on the amount
of such a category of liabilities or assets that it may hold, then, if such
Lender so elects by notice to the Borrower (with a copy to the Administrative
Agent), the obligation of such Lender to make or Continue, or to Convert any
other Type of Loans into, LIBOR Loans hereunder shall be suspended until such
Regulatory Change ceases to be in effect (in which case the provisions of
Section 4.5. shall apply).
(c) Additional Costs in Respect of Letters of Credit. Without limiting
------------------------------------------------
the obligations of the Borrower under the preceding subsections of this Section
(but without duplication), if as a result of any Regulatory Change or any risk-
based capital guideline or other requirement heretofore or hereafter issued by
any Governmental Authority there shall be imposed, modified or deemed applicable
any tax, reserve, special deposit, capital adequacy or similar requirement
against or with respect to or measured by reference to Letters of Credit and the
result shall be to increase the cost to the Administrative Agent of issuing (or
any Lender purchasing participations in) or maintaining its obligation hereunder
to issue (or purchase participations in) any Letter of Credit or reduce any
amount receivable by the Administrative Agent or any Lender hereunder in respect
of any Letter of Credit, then, upon demand by the Administrative Agent or such
Lender, the Borrower shall pay immediately to the Administrative Agent for its
account or the account of such Lender, as applicable, from time to time as
specified by the Administrative Agent or a Lender, such additional amounts as
shall be sufficient to compensate the Administrative Agent or such Lender for
such increased costs or reductions in amount.
(d) Notification and Determination of Additional Costs. Each of the
--------------------------------------------------
Administrative Agent and each Lender agrees to notify the Borrower of any event
occurring after the Agreement Date entitling the Administrative Agent or such
Lender to compensation under any of the preceding subsections of this Section as
promptly as practicable; provided, however, the failure of the Administrative
-------- -------
Agent or any Lender to give such notice shall not release the Borrower from any
of its obligations hereunder. The Administrative Agent and or such Lender agrees
to furnish to the Borrower a certificate setting forth the basis and amount of
each request by the Administrative Agent or such Lender for compensation under
this Section. Determinations by the Administrative Agent or any Lender of the
effect of any Regulatory Change shall be conclusive, provided that such
determinations are made on a reasonable basis and in good faith.
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Section 4.2. Suspension of LIBOR Loans.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of any Adjusted Eurodollar Rate for any Interest Period:
(a) the Administrative Agent reasonably determines (which
determination shall be conclusive) that by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist
for ascertaining the Adjusted Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent reasonably determines (which
determination shall be conclusive) that the Adjusted Eurodollar Rate will
not adequately and fairly reflect the cost to the Lenders of making or
maintaining LIBOR Loans for such Interest Period;
then the Administrative Agent shall give the Borrower and each Lender prompt
notice thereof and, so long as such condition remains in effect, the Lenders
shall be under no obligation to, and shall not, make additional LIBOR Loans,
Continue LIBOR Loans or Convert Loans into LIBOR Loans and the Borrower shall,
on the last day of each current Interest Period for each outstanding LIBOR Loan,
either repay such Loan or Convert such Loan into a Base Rate Loan.
Section 4.3. Illegality.
Notwithstanding any other provision of this Agreement, if it becomes
unlawful for any Lender to honor its obligation to make or maintain LIBOR Loans
hereunder, then such Lender shall promptly notify the Borrower thereof (with a
copy to the Administrative Agent) and such Lender's obligation to make or
Continue, or to Convert Loans of any other Type into, LIBOR Loans shall be
suspended until such time as such Lender may again make and maintain LIBOR Loans
(in which case the provisions of Section 4.5. shall be applicable).
Section 4.4. Compensation.
The Borrower shall pay to the Administrative Agent for account of a
Lender, upon the request of such Lender through the Administrative Agent, such
amount or amounts as shall be sufficient (in the reasonable opinion of such
Lender) to compensate it for any loss, cost or expense that such Lender
determines is attributable to: (a) any payment or prepayment (whether mandatory
or optional) of a LIBOR Loan, or Conversion of a LIBOR Loan, made by such Lender
for any reason (including, without limitation, acceleration) on a date other
than the last day of the Interest Period for such Loan; or (b) any failure by
the Borrower for any reason (including, without limitation, the failure of any
of the applicable conditions precedent specified in Article V. to be satisfied)
to borrow a LIBOR Loan from such Lender on the date for such borrowing, or to
Convert a Base Rate Loan into a LIBOR Loan or Continue a LIBOR Loan on the
requested date of such Conversion or Continuation.
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Section 4.5. Treatment of Affected Loans.
If the obligation of any Lender to make LIBOR Loans or to Continue, or to
Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to Section
4.1.(b), Section 4.2. or Section 4.3., then such Lender's LIBOR Loans shall be
automatically Converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for LIBOR Loans (or, in the case of a Conversion
required by Section 4.1.(b) or Section 4.3., on such earlier date as such Lender
may specify to the Borrower with a copy to the Administrative Agent) and, unless
and until such Lender gives notice as provided below that the circumstances
specified in Section 4.1., Section 4.2. or Section 4.3. that gave rise to such
Conversion no longer exist:
(a) to the extent that such Lender's LIBOR Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's LIBOR Loans shall be applied instead to its
Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such Lender
as LIBOR Loans shall be made or Continued instead as Base Rate Loans, and
all Base Rate Loans of such Lender that would otherwise be Converted into
LIBOR Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Administrative
Agent) that the circumstances specified in Section 4.1. or 4.3. that gave rise
to the Conversion of such Lender's LIBOR Loans pursuant to this Section no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when LIBOR Loans made by other Lenders are
outstanding, then such Lender's Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s), if
any, for such outstanding LIBOR Loans, to the extent necessary so that, after
giving effect thereto, all Loans held by the Lenders holding LIBOR Loans and by
such Lender are held pro rata (as to principal amounts, Types and Interest
Periods) in accordance with their respective Commitments.
Section 4.6. Change of Lending Office.
Each Lender agrees that it will use reasonable efforts to designate an
alternate Lending Office with respect to any of its Loans affected by the
matters or circumstances described in Sections 3.12., 4.1. or 4.3. to reduce the
liability of the Borrower or avoid the results provided thereunder, so long as
such designation is not disadvantageous to such Lender as determined by such
Lender in its sole discretion, except that such Lender shall have no obligation
to designate a Lending Office located in the United States of America.
Section 4.7. Assumptions Concerning Funding of LIBOR Loans.
Calculation of all amounts payable to a Lender under this Article IV.
shall be made as though such Lender had actually funded LIBOR Loans through the
purchase of deposits in the relevant market bearing interest at the rate
applicable to such LIBOR Loans in an amount equal to the amount of the LIBOR
Loans and having a maturity comparable to the relevant Interest Period;
provided, however, that each Lender may fund each of its LIBOR Loans in any
-------- -------
manner it sees fit
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and the foregoing assumption shall be used only for calculation of amounts
payable under this Article IV.
Article V. Conditions Precedent
Section 5.1. Initial Conditions Precedent.
The effectiveness of the amendment and restatement of the Existing Credit
Agreement contemplated hereby, as well as the obligation of the Lenders to
effect or permit the occurrence of the first Credit Event hereunder, whether as
the making of a Loan or the issuance of a Letter of Credit, are subject to the
following conditions precedent:
(a) The Administrative Agent shall have received each of the following,
in form and substance satisfactory to the Administrative Agent:
(i) Counterparts of this Agreement executed by each of the parties
hereto;
(ii) Notes executed by the Borrower, payable to each Lender and
complying with the terms of Section 2.8.(a);
(iii) The Guaranty executed by the Parent and each other Guarantor
existing as of the Effective Date;
(iv) An opinion of Lowndes, Drosdick, Doster, ▇▇▇▇▇▇ & ▇▇▇▇, counsel
to the Loan Parties, addressed to the Administrative Agent, the Arrangers
and the Lenders, in substantially the form of Exhibit G;
(v) An opinion of Lowndes, Drosdick, Doster, ▇▇▇▇▇▇ & ▇▇▇▇, counsel
to the Loan Parties, addressed to the Administrative Agent, the Arrangers
and the Lenders, regarding the enforceability of the Agreement and the
other Loan Documents under the laws of the State of New York, and such
other matters of New York law as the Administrative Agent may reasonably
request;
(vi) The certificate of limited partnership of the Borrower
certified as of a recent date by the Secretary of State of the State of
Delaware;
(vii) A good standing certificate with respect to the Borrower issued
as of a recent date by the Secretary of State of the State of Delaware and
certificates of qualification to transact business or other comparable
certificates issued by the Secretary of State (and any state department of
taxation, as applicable) of each state in which the Borrower is required to
be so qualified;
(viii) A certificate of incumbency signed by the Secretary or
Assistant Secretary of the general partner of the Borrower with respect to
each of the officers of the general partner of the Borrower authorized to
execute and deliver the Loan Documents to which the Borrower is a party and
the officers of the general partner of the Borrower then
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authorized to deliver Notices of Borrowing, Notices of Continuation and
Notices of Conversion and to request the issuance of Letters of Credit;
(ix) Copies (certified by the Secretary or Assistant Secretary of
the general partner of the Borrower) of the limited partnership agreement
of the Borrower and of all corporate (or comparable) action taken by the
Borrower (and any of the partners of the Borrower) to authorize the
execution, delivery and performance of the Loan Documents to which the
Borrower is a party;
(x) The articles of incorporation, articles of organization,
certificate of limited partnership or other comparable organizational
instrument (if any) of the Parent and each other Guarantor certified as of
a recent date by the Secretary of State of the State of formation of such
Guarantor;
(xi) A certificate of good standing or certificate of similar
meaning with respect to the Parent and each other Guarantor issued as of a
recent date by the Secretary of State of the State of formation of each
such Guarantor and certificates of qualification to transact business or
other comparable certificates issued by each Secretary of State (and any
state department of taxation, as applicable) of each state in which such
Guarantor is required to be so qualified;
(xii) A certificate of incumbency signed by the Secretary or
Assistant Secretary (or other individual performing similar functions) of
the Parent and each other Guarantor with respect to each of the officers of
such Guarantor authorized to execute and deliver the Loan Documents to
which such Guarantor is a party;
(xiii) Copies certified by the Secretary or Assistant Secretary of the
Parent and each other Guarantor (or other individual performing similar
functions) of (i) the by-laws of such Guarantor, if a corporation, the
operating agreement, if a limited liability company, the partnership
agreement, if a limited or general partnership, or other comparable
document in the case of any other form of legal entity and (ii) all
corporate, partnership, member or other necessary action taken by such
Guarantor to authorize the execution, delivery and performance of the Loan
Documents to which it is a party;
(xiv) A copy of (x) each of the documents, instruments and agreements
evidencing any of the Debt described on Schedule 6.1.(h); (y) each Material
Contract and (z) each of the documents, instruments and agreements
evidencing any of the transactions described on Schedule 9.13., in each
case certified as true, correct and complete by the chief executive officer
or chief financial officer of the Parent;
(xv) The Fees, if any, then due under Section 3.6., and any other
Fees payable to the Administrative Agent, the Arrangers, the Syndication
Agent and the Documentation Agent;
(xvi) A Compliance Certificate calculated as of March 31, 1999;
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(xvii) An Unencumbered Property Certificate calculated as of March
31, 1999;
(xviii) A written description of the Consolidation outlining the
proposed organizational structure, financial condition, executive
management, board of directors (or other comparable body), and business
plan of the Parent and its Subsidiaries, in each case, after giving effect
to the Consolidation, which must be in form and substance satisfactory to
the Lenders; and
(xix) Such other documents, agreements and instruments as the
Administrative Agent on behalf of the Lenders may reasonably request; and
(b) In the good faith judgment of the Administrative Agent, the Arrangers
and the Syndication Agent:
(i) There shall not have occurred or become known to the
Administrative Agent, either Arranger or the Syndication Agent any event,
condition, situation or status since the date of the information contained
in the financial and business projections, budgets, pro forma data and
forecasts concerning the Parent and its Subsidiaries delivered to the
Administrative Agent, the Arrangers, the Syndication Agent and the Lenders
prior to the Agreement Date that has had or could reasonably be expected to
have a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral,
administrative or judicial proceeding shall be pending or threatened which
could reasonably be expected to (1) have a Material Adverse Effect or (2)
restrain or enjoin, impose materially burdensome conditions on, or
otherwise materially and adversely affect the ability of the Borrower or
any other Loan Party to fulfill its respective obligations under the Loan
Documents to which it is a party;
(iii) The Borrower, the Parent and the other Subsidiaries shall have
received all approvals, consents and waivers, and shall have made or given
all necessary filings and notices as shall be required to consummate the
transactions contemplated hereby without the occurrence of any default
under, conflict with or violation of (1) any Applicable Law or (2) any
agreement, document or instrument to which any Loan Party is a party or by
which any of them or their respective properties is bound, except for such
approvals, consents, waivers, filings and notices the receipt, making or
giving of which would not reasonably be likely to (A) have a Material
Adverse Effect, or (B) restrain or enjoin, impose materially burdensome
conditions on, or otherwise materially and adversely affect the ability of
the Borrower or any other Loan Party to fulfill its respective obligations
under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any material disruption
of financial or capital markets that could reasonably be expected to
materially and adversely affect the transactions contemplated by the Loan
Documents.
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Section 5.2. Conditions Precedent to All Loans and Letters of Credit.
The obligation of the Lenders to make any Loans and of the Administrative
Agent to issue any Letter of Credit is subject to the further conditions
precedent that: (a) no Default or Event of Default shall have occurred and be
continuing as of the date of the making of such Loan or issuance of such Letter
of Credit or would exist immediately after giving effect thereto; (b) the
representations and warranties made or deemed made by the Borrower and each
other Loan Party in the Loan Documents to which any is a party, shall be true
and correct in all material respects on and as of the date of the making of such
Loan or issuance of such Letter of Credit with the same force and effect as if
made on and as of such date except to the extent that such representations and
warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and accurate on and as of
such earlier date) and except for changes in factual circumstances specifically
and expressly permitted hereunder; and (c) the Administrative Agent shall have
received a timely Notice of Borrowing. Each Credit Event shall constitute a
certification by the Borrower to the effect set forth in the preceding sentence
(both as of the date of the giving of notice relating to such Credit Event and,
unless the Borrower otherwise notifies the Administrative Agent prior to the
date of the occurrence of such Credit Event, as of the date of the occurrence of
such Credit Event). In addition, the Borrower shall be deemed to have
represented to the Administrative Agent and the Lenders at the time such Loan is
made or such Letter of Credit is issued that all conditions to the making of
such Loan or issuance of such Letter of Credit contained in Article V. have been
satisfied.
Section 5.3. Conditions as Covenants.
If the Lenders effect or permit the occurrence of the first Credit Event
hereunder prior to the satisfaction of all conditions precedent set forth in
Sections 5.1. and 5.2., the Borrower shall nevertheless cause such condition or
conditions to be satisfied within 5 Business Days after the occurrence of such
Credit Event. Unless set forth in writing to the contrary prior to the making of
its initial Loan hereunder, the making of its initial Loan by a Lender shall
constitute a certification by such Lender to the Administrative Agent and the
other Lenders that the Borrower has satisfied the conditions precedent for the
occurrence of the initial Credit Event set forth in Sections 5.1. and 5.2.
Article VI. Representations and Warranties
Section 6.1. Representations and Warranties.
In order to induce the Administrative Agent and each Lender to enter into
this Agreement and to make Loans and permit the issuance of Letters of Credit,
the Borrower represents and warrants to the Administrative Agent and each Lender
as follows:
(a) Organization; Power; Qualification. Each of the Borrower, the Parent
----------------------------------
and the other Subsidiaries is a corporation, partnership, limited liability
company or other legal entity, duly organized or formed, validly existing and,
if applicable, in good standing under the jurisdiction of its incorporation or
formation, has the power and authority to own or lease its respective
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properties and to carry on its respective business as now being and hereafter
proposed to be conducted and is duly qualified and is in good standing as a
foreign corporation, partnership, limited liability company or other legal
entity, and authorized to do business, in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification or authorization and where the failure to be so qualified or
authorized could reasonably be expected to have, in each instance, a Material
Adverse Effect.
(b) Ownership Structure. As of the Agreement Date, Part I of Schedule
-------------------
6.1.(b) correctly sets forth the corporate structure and ownership interests of
the Parent's Subsidiaries including the correct legal name of each Subsidiary,
its jurisdiction of formation, the Persons holding equity interests in such
Subsidiary, and their percentage equity or voting interest in such Subsidiary.
Except as set forth in such Schedule, as of the Agreement Date: (i) no
Subsidiary has issued to any third party any securities convertible into any
equity interest in such Subsidiary, or any options, warrants or other rights to
acquire any securities convertible into any such equity interest, and (ii) the
outstanding stock and securities of or other equity interests, as applicable, in
each such Subsidiary are owned by the Persons indicated on such Schedule, free
and clear of all Liens, warrants, options and rights of others of any kind
whatsoever. As of the Agreement Date, Part II of Schedule 6.1.(b) correctly sets
forth all Unconsolidated Affiliates and Preferred Stock Entities of the Parent,
including the correct legal name of such Person, the type of legal entity which
each such Person is, and all ownership interests in such Person held directly or
indirectly by the Parent.
(c) Authorization of Agreement, Notes, Loan Documents and Borrowings.
----------------------------------------------------------------
The Borrower has the right and power, and has taken all necessary action to
authorize it, to borrow hereunder. Each Loan Party has the right and power, and
has taken all necessary action to authorize it, to execute, deliver and perform
each of the Loan Documents to which it is a party in accordance with their
respective terms and to consummate the transactions contemplated hereby and
thereby. The Loan Documents to which the Borrower or any other Loan Party is a
party have been duly executed and delivered by the duly authorized officers of
the Borrower or such Loan Party and each is a legal, valid and binding
obligation of the Borrower or such Loan Party enforceable against such Person in
accordance with its respective terms, except as the same may be limited by
bankruptcy, insolvency, and other similar laws affecting the rights of creditors
generally and the availability of equitable remedies for the enforcement of
certain obligations contained herein or therein may be limited by equitable
principles generally.
(d) Compliance of Agreement, Notes, Loan Documents and Borrowing with
-----------------------------------------------------------------
Laws, etc. The execution, delivery and performance of this Agreement, the
---------
Notes and the other Loan Documents to which the Borrower or any other Loan Party
is a party in accordance with their respective terms and the borrowings
hereunder do not and will not, by the passage of time, the giving of notice, or
both: (i) require any Governmental Approval or violate any Applicable Law
(including all Environmental Laws) relating to the Borrower, the Parent or any
other Subsidiary; (ii) conflict with, result in a breach of or constitute a
default under the organizational documents of the Borrower, the Parent or any
other Subsidiary, or any indenture, agreement or other instrument to which the
Borrower, the Parent or any other Subsidiary is a party or by which it or any of
its respective properties may be bound; or (iii) result in or require the
creation or
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imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by the Borrower, the Parent or any other Subsidiary other
than in favor of the Administrative Agent for the benefit of the Lenders.
(e) Compliance with Law; Governmental Approvals. The Borrower, the
-------------------------------------------
Parent and each other Subsidiary is in compliance with each Governmental
Approval applicable to it and in compliance with all other Applicable Law
relating to the Borrower, the Parent or such other Subsidiary except for
noncompliances which, and Governmental Approvals the failure to possess which,
would not, individually or in the aggregate, cause a Default or Event of Default
or have a Material Adverse Effect.
(f) Title to Properties; Liens. As of the Agreement Date, Part I of
--------------------------
Schedule 6.1.(f) sets forth all of the real property owned or leased by the
Borrower, the Parent or any of the Parent's other Subsidiaries and each such
Person has good and insurable fee simple title (or leasehold title if so
designated on such Schedule) to the applicable real property. As of the
Agreement Date, there are no mortgages, deeds of trust, indentures, debt
instruments or other agreements creating a Lien against any of such Person's
right, title or interest in any such real property or any other property or
assets of the Parent, the Borrower or any other Subsidiary except for Permitted
Liens.
(g) Unencumbered Properties. Each lease included as an Eligible Lease in
-----------------------
calculations of the Unencumbered Asset Value satisfies all requirements
contained in the definition of "Eligible Lease." As of the Agreement Date, Part
I of Schedule 6.1.(g) is a true, correct and complete listing of all such
Eligible Leases. Each promissory note included as an Eligible Mortgage Note
Receivable in calculations of the Unencumbered Asset Value satisfies all
requirements contained in the definition of "Eligible Mortgage Note Receivable."
As of the Agreement Date, Part II of Schedule 6.1.(g) is a true, correct and
complete listing of all such Eligible Mortgage Notes Receivable.
(h) Existing Secured and Unsecured Debt. Schedule 6.1.(h) is, as of the
-----------------------------------
Agreement Date, a complete and correct listing of all Debt of each of the
Parent, the Borrower and the other Subsidiaries, including all guaranties and
all letters of credit and acceptance facilities extended to any such Person, and
indicating whether such Debt is Secured Debt or Unsecured Debt. As of the
Agreement Date, no default or event of default, or event or condition which with
the giving of notice, the lapse of time, or both, would constitute such a
default or event of default, exists with respect to any such Debt.
(i) Material Contracts. Schedule 6.1.(i) is a true, correct and complete
------------------
listing of all Material Contracts as of the Agreement Date. No default or event
of default, or event or condition which with the giving of notice, the lapse of
time, a determination of materiality, the satisfaction of any other condition or
any combination of the foregoing, would constitute such a default or event of
default, exists with respect to any such Material Contract.
(j) Litigation. Except as set forth on Schedule 6.1.(j), there are no
----------
actions, suits or proceedings pending (nor, to the knowledge of the Parent, are
there any actions, suits or
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proceedings threatened, nor is there any basis therefor) against or in any other
way relating adversely to or affecting the Borrower, the Parent or any other
Subsidiary or any of its respective property in any court or before any
arbitrator of any kind or before or by any other Governmental Authority which
could reasonably be expected to have a Material Adverse Effect. There are no
strikes, slow downs, work stoppages or walkouts or other labor disputes in
progress or threatened relating to the Borrower, the Parent or any other
Subsidiary which could reasonably be expected to have a Material Adverse Effect.
(k) Taxes. All federal, state and other tax returns of the Parent and
-----
any Subsidiary required by Applicable Law to be filed have been duly filed
within all applicable deadlines (including any permitted extensions thereof),
and all federal, state and other taxes, assessments and other governmental
charges or levies upon the Parent or any Subsidiary and its respective
properties, income, profits and assets which are due and payable have been paid,
except any such nonpayment which is at the time permitted under Section 7.6. As
of the Agreement Date, none of the United States income tax returns of the
Borrower or any Subsidiary is under audit. All charges, accruals and reserves on
the books of the Borrower and each of its Subsidiaries in respect of any taxes
or other governmental charges are in accordance with GAAP.
(l) Financial Statements. The Borrower has furnished to each Lender
--------------------
copies of (i) the audited consolidated balance sheet of the Parent for the
fiscal year ending December 31, 1998, and the related consolidated statements of
operations, changes in stockholder's equity and cash flows for the fiscal year
ending on such date, with the opinion thereon of PriceWaterhouseCoopers LLP and
(ii) the unaudited consolidated balance sheet of the Parent for the fiscal
quarter ending March 31, 1999, and the related consolidated statements of
operations, changes in stockholder's equity and cash flows for the three fiscal
quarter period ending on such date. Such balance sheets and statements
(including in each case related schedules and notes) present fairly, in all
material respects, in accordance with GAAP consistently applied throughout the
periods involved, the consolidated financial position of the Parent and its
consolidated Subsidiaries, as at their respective dates and, if applicable, the
results of operations and the cash flow for such periods (subject, as to interim
statements, to changes resulting from normal year-end audit adjustments).
Neither the Parent nor any of its Subsidiaries has on the Agreement Date any
material contingent liabilities, liabilities, liabilities for taxes, unusual or
long-term commitments or unrealized or forward anticipated losses from any
unfavorable commitments, except as referred to or reflected or provided for in
said financial statements.
(m) No Material Adverse Change. Since December 31, 1998, there has
--------------------------
been no material adverse change in the business, properties, condition
(financial or otherwise), results of operations or performance of the Parent and
its Subsidiaries taken as a whole. Each of the Borrower, the Parent and its
other Subsidiaries is Solvent.
(n) ERISA. Each member of the ERISA Group is in compliance with its
-----
obligations under the minimum funding standards of ERISA and the Internal
Revenue Code with respect to each Plan and is in compliance with the presently
applicable provisions of ERISA and the Internal Revenue Code with respect to
each Plan, except in each case for noncompliances which could not reasonably be
expected to have a Material Adverse Effect. As of the Agreement Date, no
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member of the ERISA Group has (i) sought a waiver of the minimum funding
standard under Section 412 of the Internal Revenue Code in respect of any Plan,
(ii) failed to make any contribution or payment to any Plan or Multiemployer
Plan or in respect of any Benefit Arrangement, or made any amendment to any Plan
or Benefit Arrangement, which has resulted or could result in the imposition of
a Lien or the posting of a bond or other security under ERISA or the Internal
Revenue Code or (iii) incurred any liability under Title IV of ERISA other than
a liability to the PBGC for premiums under Section 4007 of ERISA.
(o) Absence of Defaults. None of the Borrower, the Parent nor any other
-------------------
Subsidiary is in default under its articles or certificate of incorporation,
bylaws, partnership agreement or other similar organizational documents, and no
event has occurred, which has not been remedied, cured or waived: (i) which
constitutes a Default or an Event of Default; or (ii) which constitutes, or
which with the passage of time, the giving of notice, a determination of
materiality, the satisfaction of any condition, or any combination of the
foregoing, would constitute, a default or event of default by the Borrower, the
Parent or any other Subsidiary under any agreement (excluding the Loan
Documents) or judgment, decree or order to which the Borrower, the Parent or any
other Subsidiary is a party or by which the Borrower, the Parent or any other
Subsidiary or any of their respective properties may be bound where such default
or event of default could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(p) Environmental Laws. In the ordinary course of business, each of the
------------------
Borrower, the Parent and its other Subsidiaries conducts reviews of the effect
of Environmental Laws on its respective business, operations and properties,
including without limitation, its respective Real Property Assets, in the course
of which such Person identifies and evaluates associated liabilities and costs
(including, without limitation, determining whether any capital or operating
expenditures are required for clean-up or closure of properties presently or
previously owned, determining whether any capital or operating expenditures are
required to achieve or maintain compliance with Environmental Laws or required
as a condition of any Governmental Approval, any contract, or any related
constraints on operating activities, determining whether any costs or
liabilities exist in connection with off-site disposal of wastes or Hazardous
Materials, and determining whether any actual or potential liabilities to third
parties, including employees, and any related costs and expenses exist). The
Borrower, the Parent and its other Subsidiaries each has obtained all
Governmental Approvals which are required under Environmental Laws and is in
compliance with all terms and conditions of such Governmental Approvals which
the failure to obtain or to comply with could reasonably be expected to have a
Material Adverse Effect. Each of the Borrower, the Parent and its other
Subsidiaries is also in compliance with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules, and
timetables contained in the Environmental Laws the failure to comply with which
could reasonably be expected to have a Material Adverse Effect. Except for any
of the following matters that could not be reasonably expected to have a
Material Adverse Effect, the Parent is not aware of, and has not received notice
of, any past, present, or future events, conditions, circumstances, activities,
practices, incidents, actions, or plans which, with respect to the Borrower, the
Parent or its other Subsidiaries, may interfere with or prevent compliance or
continued compliance with Environmental Laws, or may give rise to any common-law
or legal liability, or otherwise form the basis of any claim, action, demand,
suit, proceeding, hearing,
-53-
study, or investigation, based on or related to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling or the
emission, discharge, release or threatened release into the environment, of any
pollutant, contaminant, chemical, or industrial, toxic, or other Hazardous
Material.
(q) Investment Company; Public Utility Holding Company. None of the
--------------------------------------------------
Borrower, the Parent or any other Subsidiary is (i) an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, (ii) a "holding company" or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", within the meaning
of the Public Utility Holding Company Act of 1935, as amended, or (iii) subject
to any other Applicable Law which purports to regulate or restrict its ability
to borrow money or to consummate the transactions contemplated by this Agreement
or to perform its obligations under any Loan Document to which it is a party.
(r) Margin Stock. None of the Borrower, the Parent or any other
------------
Subsidiary is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose, whether immediate, incidental or
ultimate, of buying or carrying "margin stock" within the meaning of Regulation
U of the Board of Governors of the Federal Reserve System.
(s) Affiliate Transactions; Restrictions on Dividend, Etc. Except as
-----------------------------------------------------
permitted by Section 9.13., none of the Borrower, the Parent or any other
Subsidiary is a party to or bound by any agreement or arrangement (whether oral
or written) to which any Affiliate of the Borrower, the Parent or any other
Subsidiary is a party. None of the Parent, the Borrower or any other Subsidiary
is a party to any agreement or arrangement which contains or imposes
encumbrances or restrictions prohibited by Section 9.6.(c).
(t) Intellectual Property. The Borrower, the Parent and each other
---------------------
Subsidiary owns or has the right to use, under valid license agreements or
otherwise, all material patents, licenses, franchises, trademarks, trademark
rights, trade names, trade name rights, trade secrets and copyrights
(collectively, "Intellectual Property") necessary to the conduct of its
businesses as now conducted and as contemplated by the Loan Documents, without
known conflict with any patent, license, franchise, trademark, trade secret,
trade name, copyright, or other proprietary right of any other Person. Each such
Person has taken all commercially reasonable measures to ensure that all such
Intellectual Property is fully protected and/or duly and properly registered,
filed or issued in the appropriate office and jurisdictions for such
registrations, filing or issuances. No claim has been asserted by any Person
with respect to the use of any Intellectual Property, or challenging or
questioning the validity or effectiveness of any Intellectual Property, which
could reasonably be expected to have a Material Adverse Effect. The use of such
Intellectual Property by the Borrower, the Parent and its other Subsidiaries,
does not infringe on the rights of any Person, subject to such claims and
infringements as do not, in the aggregate, give rise to any liabilities on the
part of the Borrower, the Parent and its other Subsidiaries that could
reasonably be expected to have a Material Adverse Effect.
(u) REIT Status. The Parent qualifies as a REIT.
-----------
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(v) Not Plan Assets. None of the assets of the Borrower, the Parent or
---------------
any other Subsidiary constitute "plan assets", within the meaning of ERISA, the
Internal Revenue Code and the respective regulations promulgated thereunder. The
execution, delivery and performance of this Agreement, and the borrowing and
repayment of amounts hereunder, do not and will not constitute "prohibited
transactions" under ERISA or the Internal Revenue Code.
(w) Business. As of the Agreement Date, the Parent, the Borrower and the
--------
other Subsidiaries are engaged principally in the business of (i) owning real
estate assets which are net leased to restaurant operators, (ii) originating
mortgage and equipment loans, (iii) securitizing mortgage loans, leases and
certain other assets and (iv) ancillary businesses that are incidental to the
foregoing.
(x) Year 2000. The Parent has conducted a comprehensive review and
---------
assessment of the systems and equipment of the Parent, the Borrower and the
Parent's other Subsidiaries, and made inquiry of the material suppliers, vendors
and customers of the Parent, the Borrower and the Parent's other Subsidiaries,
regarding the "Year 2000 Problem" (that is, the inability of computers, as well
as embedded microchips in non-computing devices, to perform properly, including
performance of date-sensitive functions with respect to certain dates prior to,
on and after December 31, 1999). Based on such review and assessment, the Parent
reasonably believes that all computer hardware and software applications
(including those of its suppliers, vendors and customers) that are material to
its or any of its Subsidiaries' business and operations are reasonably expected
on a timely basis to be able to perform properly date-sensitive functions for
all dates before, on and after January 1, 2000 (that is, be "Year 2000
---------
Compliant"), except to the extent that a failure to do so could not reasonably
---------
be expected to have a Material Adverse Effect. The Parent has developed feasible
contingency plans adequately to ensure uninterrupted and unimpaired business
operation in the event of failure of its own or a third party's systems or
equipment due to the Year 2000 problem, including those of material vendors,
customers and suppliers, as well as a general failure of or interruption in its
communications and delivery infrastructure.
(y) Accuracy and Completeness of Information. All written information,
----------------------------------------
reports and other papers and data (excluding financial projections) furnished to
the Administrative Agent, either Arranger, the Syndication Agent or any Lender
by, on behalf of, or at the direction of, the Borrower, the Parent or any other
Subsidiary were, at the time the same were so furnished, complete and correct in
all material respects, or, in the case of financial statements, present fairly,
in all material respects and in accordance with GAAP consistently applied
throughout the periods involved, the financial position of the Persons involved
as at the date thereof and the results of operations for such periods. All
financial projections prepared by or on behalf of the Parent, the Borrower or
any other Subsidiary that have been or may hereafter be made available to the
Administrative Agent or any Lender were or will be prepared in good faith based
on reasonable assumptions. No fact is known to the Parent which has had, or may
in the future have (so far as the Parent can reasonably foresee), a Material
Adverse Effect which has not been set forth in the financial statements referred
to in Section 6.1.(l) or in such information, reports or other papers or data or
otherwise disclosed in writing to the Administrative Agent and the Lenders prior
to the
-55-
Effective Date. No document furnished or written statement made to the
Administrative Agent, either Arranger, the Syndication Agent or any Lender in
connection with the negotiation, preparation or execution of this Agreement or
any of the other Loan Documents, except as superceded by any subsequent document
or written statement delivered prior to the Effective Date, in light of the
circumstances under which furnished or made, contains or will contain any untrue
statement of a fact material to the creditworthiness of the Borrower, the Parent
or any other Subsidiary or omits or will omit to state a fact necessary in order
to make the statements contained therein not materially misleading.
Section 6.2. Survival of Representations and Warranties, Etc.
All statements contained in any certificate, financial statement or other
instrument delivered by or on behalf of the Borrower, the Parent or any other
Subsidiary to the Administrative Agent, either Arranger, the Syndication Agent
or any Lender pursuant to or in connection with this Agreement or any of the
other Loan Documents (including, but not limited to, any such statement made in
or in connection with any amendment thereto or any statement contained in any
certificate, financial statement or other instrument delivered by or on behalf
of the Borrower prior to the Agreement Date and delivered to the Administrative
Agent, either Arranger, the Syndication Agent or any Lender in connection with
closing the transactions contemplated hereby) shall constitute representations
and warranties made by the Borrower under this Agreement. All representations
and warranties made under this Agreement and the other Loan Documents shall be
deemed to be made at and as of the Agreement Date, the Effective Date and at and
as of the date of the occurrence of any Credit Event, except to the extent that
such representations and warranties expressly relate solely to an earlier date
(in which case such representations and warranties shall have been true and
accurate on and as of such earlier date) and except for changes in factual
circumstances specifically permitted hereunder. All such representations and
warranties shall survive the effectiveness of this Agreement, the execution and
delivery of the Loan Documents and the making of the Loans and issuance of
Letters of Credit.
Article VII. Affirmative Covenants
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 12.6., all of the Lenders) shall otherwise
consent in the manner provided for in Section 12.6., the Borrower and the Parent
shall, as applicable, comply with the following covenants:
Section 7.1. Preservation of Existence and Similar Matters.
Except as otherwise permitted under Section 9.9.(a), the Borrower and the
Parent shall preserve and maintain, and cause each other Subsidiary to preserve
and maintain, its respective existence, rights, franchises, licenses and
privileges in the jurisdiction of its incorporation or formation and qualify and
remain qualified and authorized to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification and authorization and where the failure to be so authorized and
qualified could reasonably be expected to have a Material Adverse Effect.
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Section 7.2. Compliance with Applicable Law and Material Contracts.
The Borrower and the Parent shall comply, and cause each other Subsidiary
to comply, with (a) all Applicable Law, including the obtaining of all
Governmental Approvals, the failure with which to comply or obtain could
reasonably be expected to have a Material Adverse Effect, and (b) all terms and
conditions of all Material Contracts to which it is a party.
Section 7.3. Maintenance of Property.
In addition to the requirements of any of the other Loan Documents, the
Borrower and the Parent shall (a) protect and preserve, and cause each other
Subsidiary, or with respect to any material Real Property Asset leased by the
Borrower to a lessee, use its best efforts to cause such lessee, to protect and
preserve, all of its material properties (or any such Real Property Asset in the
case of any such lessee), and maintain, or use its best efforts to cause such
lessee to maintain, in good repair, working order and condition all tangible
properties necessary to their respective operations (or any such Real Property
Asset in the case of any such lessee), ordinary wear and tear excepted, and (b)
from time to time make, or use its best efforts to cause to be made, all needed
and appropriate repairs, renewals, replacements and additions to such properties
(or any such Real Property Asset in the case of any such lessee), so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times.
Section 7.4. Conduct of Business.
The Parent and the Borrower shall at all times carry on, and cause its
other Subsidiaries to carry on, its respective businesses as described in
Section 6.1.(w) and not enter, and prohibit the other Subsidiaries from
entering, into any field of business not otherwise described in such Section.
Section 7.5. Insurance.
In addition to the requirements of any of the other Loan Documents, the
Parent and the Borrower shall maintain, and cause each other Subsidiary, or with
respect to any Real Property Asset leased by the Borrower to a lessee, use its
best efforts to cause such lessee, to maintain, insurance with financially sound
and reputable insurance companies against such risks and in such amounts as is
customarily maintained by Persons engaged in similar businesses or as may be
required by Applicable Law, and the Borrower will from time to time deliver to
the Administrative Agent upon its request, or to any Lender upon request through
the Administrative Agent, a detailed list, together with copies of all policies
of the insurance then in effect, stating the names of the insurance companies,
the amounts and rates of the insurance, the dates of the expiration thereof and
the properties and risks covered thereby. Not in limitation of the foregoing,
the Parent and the Borrower shall, and shall cause its other Subsidiaries to, or
with respect to any Real Property Asset leased by the Borrower to a lessee, use
its best efforts to cause such lessee to, maintain builder's risk insurance
during any period of construction and, upon completion, "all risk" insurance in
an amount equal to (A) 100% of the replacement cost of the improvements, if any,
on at least 85% (determined by number of parcels) of its Real Property Assets
and (B) 90% of such replacement cost on no more than 15% (determined by number
of
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parcels) of its Real Property Assets, in all cases with insurers having an A.M.
Best policyholder's rating of not less than A- and financial size category of
not less than X, which insurance shall in any event not provide for materially
less coverage than the insurance in effect on the Agreement Date. The Borrower
will deliver to the Lenders (i) upon request of any Lender through the
Administrative Agent from time to time full information as to the insurance
carried, (ii) within 10 days of receipt of notice from any insurer a copy of any
notice of cancellation or material change in coverage from that existing on the
Agreement Date and (iii) promptly upon receipt, notice of any cancellation or
nonrenewal of coverage by the Parent, the Borrower or any other Subsidiary.
Section 7.6. Payment of Taxes and Claims.
The Parent and the Borrower shall pay or discharge, and cause each other
Subsidiary, or with respect to any Real Property Asset leased by the Borrower to
a lessee, use its best efforts to cause such lessee, to pay or discharge, when
due (a) all taxes, assessments and governmental charges or levies imposed upon
it or upon its respective income or profits or upon any properties belonging to
it (or in the case of any such lessee, such lessee or such Real Property Asset),
and (b) all lawful claims of materialmen, mechanics, carriers, warehousemen and
landlords for labor, materials, supplies and rentals which, if unpaid, might
become a Lien on any properties of such Person (or in the case of any such
lessee, such lessee or such Real Property Asset); provided, however, that this
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Section shall not require the payment or discharge of any such tax, assessment,
charge, levy or claim which is being contested in good faith by appropriate
proceedings and for which adequate reserves have been established on the books
of the Parent, the Borrower or such other Subsidiary, as applicable, in
accordance with GAAP.
Section 7.7. Visits and Inspections.
The Parent and the Borrower shall permit, and cause each other Subsidiary
to permit, representatives or agents of any Lender or the Administrative Agent,
from time to time after reasonable prior notice if no Event of Default shall be
in continuance, as often as may be reasonably requested, but only during normal
business hours, and at the expense of such Lender or the Administrative Agent
(unless an Event of Default shall be continuing in which case the exercise by
the Administrative Agent of its rights under this Section shall be at the
expense of the Borrower), as the case may be, to: (a) visit and inspect all
properties of the Parent, the Borrower or such other Subsidiary to the extent
any such right to visit or inspect is within the control of such Person; (b)
inspect and make extracts from their respective books and records, including but
not limited to management letters prepared by independent accountants; and (c)
discuss with its principal officers, and its independent accountants, its
business, properties, condition (financial or otherwise), results of operations
and performance. If requested by the Administrative Agent, the Borrower or the
Parent, as appropriate, shall execute an authorization letter addressed to its
accountants authorizing the Administrative Agent or any Lender to discuss the
financial affairs of the Parent, the Borrower and any other Subsidiary with its
accountants.
Section 7.8. Use of Proceeds and Letters of Credit.
The Borrower shall use the proceeds of all Revolving Loans and use
Letters of Credit only for general corporate purposes, including without
limitation, to finance (a) the acquisition,
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renovation and development of Real Property Assets of the Borrower; (b) the
repayment of indebtedness for money borrowed of the Borrower; (c) financing the
origination of loans secured by Mortgages and/or equipment and (d) for general
working capital purposes of the Borrower. In addition, the Borrower may use
proceeds of Revolving Loans to finance intercompany loans to Guarantors subject
to the limitations of Section 9.2.(f) so long as such Guarantors use the
proceeds of such loans for general corporate purposes. The Borrower shall not,
directly or indirectly, use any part of such proceeds or any Letter of Credit to
purchase or carry, or to reduce or retire or refinance any credit incurred to
purchase or carry, any margin stock (within the meaning of Regulation U of the
Board of Governors of the Federal Reserve System) or to extend credit to others
for the purpose of purchasing or carrying any such margin stock.
Section 7.9. Environmental Matters.
The Parent and the Borrower shall comply, and cause all of its other
Subsidiaries to comply, with all Environmental Laws the failure with which to
comply could reasonably be expected to have a Material Adverse Effect. If the
Parent, the Borrower or any other Subsidiary shall (a) receive notice that any
violation of any Environmental Law may have been committed or is about to be
committed by such Person, (b) receive notice that any administrative or judicial
complaint or order has been filed or is about to be filed against the Parent,
the Borrower or any other Subsidiary alleging violations of any Environmental
Law or requiring any such Person to take any action in connection with the
release of Hazardous Materials or (c) receive any notice from a Governmental
Authority or private party alleging that any such Person may be liable or
responsible for costs associated with a response to or cleanup of a release of a
Hazardous Materials or any damages caused thereby, and such notices or events to
which they relate, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, the Borrower shall provide the
Administrative Agent with a copy of such notice within 10 days after the receipt
thereof by the Parent, the Borrower or any of the other Subsidiaries. The
Parent and the Borrower shall, and shall cause its other Subsidiaries to, take
promptly all actions necessary to prevent the imposition of any Liens on any of
their respective properties arising out of or related to any Environmental Laws.
Section 7.10. Books and Records.
The Parent and the Borrower shall maintain, and cause each of the other
Subsidiaries to maintain, books and records pertaining to its business
operations in such detail, form and scope as is consistent with good business
practice in accordance with GAAP.
Section 7.11. REIT Status.
The Parent shall at all times maintain its status as a REIT.
Section 7.12. ERISA Exemptions.
The Parent and the Borrower shall not, and shall not permit any other
Subsidiary to, permit any of its respective assets to become or be deemed to be
"plan assets" within the meaning of ERISA, the Internal Revenue Code and the
respective regulations promulgated thereunder.
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Section 7.13. Exchange Listing.
At all times on and after March 31, 2000, the Parent shall maintain at
least one class of common shares of the Parent having trading privileges on the
New York Stock Exchange or the American Stock Exchange or which is subject to
price quotations on The NASDAQ Stock Market's National Market System.
Section 7.14. Further Assurances.
The Parent and the Borrower shall, and shall cause each of its other
Subsidiaries to, at their sole cost and expense, upon the request of the
Administrative Agent, duly execute and deliver or cause to be duly executed and
delivered, to the Administrative Agent and the Lenders such further instruments,
documents and certificates, and do and cause to be done such further acts that
may be necessary or advisable in the reasonable opinion of the Administrative
Agent to carry out more effectively the provisions and purposes of this
Agreement and the other Loan Documents.
Section 7.15. New Subsidiaries; Joint Ventures.
Upon the acquisition, incorporation or other creation of any Subsidiary
(other than an Excluded Subsidiary) after the Effective Date, the Parent shall
cause such Subsidiary to execute and deliver to the Administrative Agent within
10 Business Days of such acquisition, incorporation or creation, an Accession
Agreement to the Guaranty executed and delivered by such Subsidiary, together
with each of the items that would have been required to be delivered with
respect to such Subsidiary under subsections (iv), (v), and (x) through (xiii)
of Section 5.1. if such Subsidiary were a Guarantor on the Effective Date.
Within 10 Business Days of the date on which a Joint Venture that is a
Subsidiary shall own more than a single parcel of real property (and the
improvements thereon), the Parent shall cause such Joint Venture to execute and
deliver to the Administrative Agent an Accession Agreement to the Guaranty and
the other items required to be delivered by a Subsidiary under the preceding
sentence.
Section 7.16. Year 2000 Compliance.
The Parent and the Borrower shall cause all computer hardware and
software applications that are material to the business and operations of the
Parent, the Borrower and its other Subsidiaries to be Year 2000 Compliant by
September 30, 1999, except to the extent that a failure to do so could not
reasonably be expected to have a Material Adverse Effect.
Article VIII. Information
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 12.6., all of the Lenders) shall otherwise
consent in the manner set forth in Section 12.6., the Borrower or the Parent, as
applicable, shall furnish to each Lender (or to the Administrative Agent if so
provided below) at its Lending Office:
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Section 8.1. Quarterly Financial Statements.
As soon as available and in any event within 45 days after the close of
each of the first, second and third fiscal quarters of the Parent, the
consolidated balance sheet of the Parent and its Consolidated Subsidiaries as at
the end of such period and the related consolidated statements of income,
retained earnings and cash flows of the Parent and its Consolidated Subsidiaries
for such period, setting forth in each case in comparative form the figures for
the corresponding periods of the previous fiscal year, all of which shall be
certified by the chief financial officer of the Parent, in his or her opinion,
to present fairly, in all material respects and in accordance with GAAP, the
consolidated financial position of the Parent and its Consolidated Subsidiaries
as at the date thereof and the results of operations for such period (subject to
normal year-end audit adjustments).
Section 8.2. Year-End Statements.
As soon as available and in any event within 90 days after the end of
each fiscal year of the Parent, the consolidated balance sheet of the Parent and
its Consolidated Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income, retained earnings and cash flows of the
Parent and its Consolidated Subsidiaries for such fiscal year, setting forth in
comparative form the figures as at the end of and for the previous fiscal year,
all of which shall be certified by (a) the chief financial officer of the
Parent, in his or her opinion, to present fairly, in all material respects and
in accordance with GAAP, the financial position of the Parent and its
Consolidated Subsidiaries as at the date thereof and the result of operations
for such period and (b) the Parent's current independent certified public
accountants or other independent certified public accountants of recognized
national standing reasonably acceptable to the Administrative Agent, whose
certificate shall be unqualified and in scope and substance reasonably
satisfactory to the Requisite Lenders and who shall have authorized the Parent
to deliver such financial statements and certification thereof to the Lenders
pursuant to this Agreement.
Section 8.3. Compliance Certificate.
At the time the quarterly or annual financial statements are furnished
pursuant to Sections 8.1. and Section 8.2., and within 5 Business Days of the
Administrative Agent's request with respect to any other fiscal period, a
certificate substantially in the form of Exhibit H (a "Compliance Certificate")
executed by the chief financial officer of the Parent: (a) setting forth in
reasonable detail as at the end of such quarterly accounting period, fiscal
year, or other fiscal period, as the case may be, the calculations required to
establish whether or not the Parent and the Borrower were in compliance with the
covenants contained in Sections 9.1., 9.4., 9.5.(f) and (g), 9.7., 9.8. and
9.10. and (b) stating that, to the best of his or her knowledge, information and
belief, no Default or Event of Default exists, or, if such is not the case,
specifying such Default or Event of Default and its nature, when it occurred,
whether it is continuing and the steps being taken by the Parent with respect to
such event, condition or failure.
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Section 8.4. Other Information.
(a) within 45 days after the end of each fiscal quarter of the Parent, an
Unencumbered Property Certificate setting forth the information to be contained
therein as of the last day of such fiscal quarter;
(b) within 45 days after the end of each fiscal quarter of the Parent,
calculations of the Parent's taxable income, if any, for such quarter;
(c) promptly upon receipt thereof, copies of all reports, if any,
submitted to the Parent or the Borrower or its Board of Directors by its
independent public accountants including, without limitation, any management
report;
(d) within 5 Business Days of the filing thereof, copies of all
registration statements (excluding the exhibits thereto and any registration
statements on Form S-8 or its equivalent), reports on Forms 10-K, 10-Q and 8-K
(or their equivalents) and all other periodic reports which the Parent, the
Borrower or any other Subsidiary shall file with the Securities and Exchange
Commission (or any Governmental Authority substituted therefor) or any national
securities exchange;
(e) promptly upon the mailing thereof to the shareholders of the Parent
generally, copies of all financial statements, reports and proxy statements so
mailed;
(f) promptly upon the issuance thereof copies of all press releases issued
by the Parent or any Subsidiary;
(g) promptly upon the request of the Administrative Agent, and in any
event within 15 Business Days of such request, a property operating statement
for each Real Property Asset for the requested fiscal period, including, if
requested, budgeted figures for upcoming fiscal periods;
(h) to the extent the Parent, the Borrower or any other Subsidiary is
aware of the same, prompt notice of the commencement of any proceeding or
investigation by or before any Governmental Authority and any action or
proceeding in any court or other tribunal or before any arbitrator against or in
any other way relating adversely to, or adversely affecting, the Parent, the
Borrower or any other Subsidiary or any of their respective properties, assets
or businesses which, if determined or resolved adversely to such Person, could
reasonably be expected to have a Material Adverse Effect, and prompt notice of
the receipt of notice that any United States income tax returns of the Parent,
the Borrower or any other Subsidiary are being audited;
(i) a copy of any amendment to the articles or certificate of
incorporation, bylaws, partnership agreement or other similar organizational
documents of the Parent, the Borrower or any Subsidiary within 10 Business Days
of the effectiveness thereof;
(j) prompt notice of (i) any change in the senior management of the
Parent, the Borrower or any other Subsidiary and (ii) any change in the
business, properties, condition
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(financial or otherwise), results of operations or performance of the Parent,
the Borrower or any other Subsidiary which has had or could reasonably be
expected to have Material Adverse Effect;
(k) prompt notice of the occurrence of (i) any Default or Event of
Default; (ii) any event which constitutes or which with the passage of time, the
giving of notice, or otherwise, would constitute a default or event of default
by the Parent, the Borrower or any other Subsidiary under any Material Contract
to which any such Person is a party or by which any such Person or any of its
respective properties may be bound; or (iii) any default or event of default, or
event or condition which with the giving of notice, the lapse of time, or both,
would constitute such a default or event of default, with respect to any Debt of
the Parent, the Borrower or any other Subsidiary having an aggregate outstanding
principal amount of $1,000,000 or more;
(l) prompt notice of any order, judgment or decree in excess of $500,000
having been entered against the Parent, the Borrower or any other Subsidiary or
any of their respective properties or assets;
(m) prompt notice of the acquisition, incorporation or other creation of
any Subsidiary, the purpose for such Subsidiary, and the nature of the assets
and liabilities thereof;
(n) the proposed sale, transfer or other disposition of any material assets
of the Parent, the Borrower or any other Subsidiary to any other Subsidiary,
Affiliate or other Person;
(o) promptly upon entering into any Material Contract after the Agreement
Date, a copy to the Administrative Agent of such Material Contract;
(p) promptly upon request by the Administrative Agent, evidence reasonably
satisfactory to the Administrative Agent that the Parent continues to qualify as
a REIT;
(q) if and when any member of the ERISA Group (i) gives or is required to
give notice to the PBGC of any "reportable event" (as defined in Section 4043 of
ERISA) with respect to any Plan which might constitute grounds for a termination
of such Plan under Title IV of ERISA, or knows that the plan administrator of
any Plan has given or is required to give notice of any such reportable event, a
copy of the notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability under
Title IV of ERISA or notice that any Multiemployer Plan is in reorganization, is
insolvent or has been terminated, a copy of such notice; (iii) receives notice
from the PBGC under Title IV of ERISA of an intent to terminate, impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or appoint a trustee to administer any Plan, a copy of such notice; (iv) applies
for a waiver of the minimum funding standard under Section 412 of the Internal
Revenue Code, a copy of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and
other information filed with the PBGC; (vi) gives notice of withdrawal from any
Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to
make any payment or contribution to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement or makes any amendment to any Plan or Benefit
Arrangement which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security, a certificate of
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the controller of the Parent setting forth details as to such occurrence and
action, if any, which the Parent or applicable member of the ERISA Group is
required or proposes to take;
(r) not later than 90 days prior to the last day of each fiscal year of
the Parent, pro forma projected consolidated financial statements (including
statements of cash flow) for the Parent and its Consolidated Subsidiaries
reflecting the forecasted financial condition and results of operations of the
Parent and its Consolidated Subsidiaries on a quarterly basis for the next
succeeding year and on an annual basis for the two succeeding fiscal years
thereafter, accompanied by calculations establishing whether or not the Parent
would be in compliance on a pro forma basis with the covenants contained in
Section 9.1., in each case in form and detail reasonably acceptable to the
Requisite Lenders;
(s) not later than 30 days following the adoption or approval thereof, any
business plan and financial projections adopted by the Parent or the Borrower
for itself or any of its respective Subsidiaries;
(t) notice to the Administrative Agent of any change in any Credit Rating
assigned by a Rating Agency promptly upon, and in any event within 2 Business
Days of, the effectiveness of such change;
(u) prompt notice to the Administrative Agent in the event the Parent or
the Borrower discovers or determines that any computer application (including
those of its suppliers, vendors and customers) that is material to its or any of
its Subsidiaries' business and operations will not be Year 2000 Compliant by
June 30, 1999;
(v) prompt notice of any material modifications to the terms of the
Consolidation as disclosed to the Lenders pursuant to the description delivered
under Section 5.1., which modifications must be satisfactory to the Requisite
Lenders and the Arrangers;
(w) from time to time and promptly upon each request in connection with
the Administrative Agent's consideration of the terms of a transaction proposed
as a Permitted On Balance Sheet Warehouse Financing which terms require the
Administrative Agent's prior written approval, such data, financial information,
agreements, instruments, documents, including without limitation, the documents
evidencing such transaction, and other materials and information as the
Administrative Agent may request in its discretion; and
(x) from time to time and promptly upon each request, such data,
certificates, reports, statements, documents or further information regarding
the business, properties, condition (financial or otherwise), results of
operations or performance of the Parent, the Borrower, any other Subsidiary
(including any Special Purpose Entity or any other Excluded Subsidiary), or any
Unconsolidated Affiliate as the Administrative Agent (or any Lender through the
Administrative Agent) may reasonably request.
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Article IX. Negative Covenants
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 12.6., all of the Lenders) shall otherwise
consent in the manner set forth in Section 12.6., the Parent and the Borrower
shall comply with the following covenants:
Section 9.1. Financial Covenants.
The Parent and the Borrower shall not permit at any time:
(a) Maximum Leverage. The ratio of (i) Debt of the Parent and its
----------------
Consolidated Subsidiaries to (ii) Adjusted Net Capitalization, to be greater
than 0.450 to 1.000.
(b) Minimum Interest Coverage Ratio. The ratio of (i) Adjusted EBITDA for
-------------------------------
the period of four consecutive fiscal quarters most recently ending to (ii)
Interest Expense for such period, to be less than 2.750 to 1.000.
(c) Minimum Fixed Charge Coverage Ratio. The ratio of (i) Adjusted EBITDA
-----------------------------------
for the period of four consecutive fiscal quarters most recently ending to (ii)
Fixed Charges for such period, to be less than 2.50 to 1.00.
(d) Maximum Unencumbered Asset Ratio. The ratio of (i) Unsecured Debt to
--------------------------------
(ii) the Unencumbered Asset Value, to be greater than 0.40 to 1.00.
(e) Minimum Unencumbered Interest Coverage. The ratio of (i) the sum of
--------------------------------------
(A) Eligible Net Lease Income for the period of four consecutive fiscal quarters
most recently ending plus (B) Eligible Mortgage Income for such period, to (ii)
----
Interest Expense in respect of Unsecured Debt for such period, to be less than
2.750 to 1.000.
(f) Minimum Tangible Net Worth. Tangible Net Worth to be less than (i)
--------------------------
$600,000,000 plus (ii) 85% of the Net Proceeds of all Equity Issuances effected
----
by the Borrower or any of its Consolidated Subsidiaries to any Person other than
the Borrower or any of its Consolidated Subsidiaries at any time after December
31, 1998; provided, however, the Equity Issuance to occur in connection with the
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transaction contemplated by that certain Agreement and Plan of Merger dated as
of March 11, 1999 by and among the Parent, CFA Acquisition Corp., CNL Fund
Advisors, Inc., and CNL Group, Inc. shall be excluded from this subsection.
(g) Maximum Secured Debt. The ratio of (i) the aggregate amount of Secured
--------------------
Debt of the Parent and its Consolidated Subsidiaries to (ii) Adjusted Net
Capitalization, to be greater than or equal to 0.250 to 1.000.
(h) Concept and Tenant Concentration. More than 10% of the total revenues
--------------------------------
of the Borrower and its Consolidated Subsidiaries for any fiscal quarter to be
attributable to (i) any one Concept or (ii) any one tenant (or group of
affiliated tenants). Notwithstanding the foregoing, prior to the first to occur
of (x) the consummation of the Consolidation or (y) December 31, 1999, the
percentage of such total revenues attributable to the Concepts "Golden Corral",
"S&A
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Properties" and "Foodmaker" and other Investment Grade Franchisors and Tenants
may exceed 10% but cannot exceed 15% for any fiscal quarter.
Any violation of this Section during the two Business Day period commencing on
the date of the Parent's acquisition of CNL Financial Services, Inc. and CNL
Financial Corporation in connection with the Consolidation, which violation
results solely from such acquisition, shall be disregarded. Following such two
Business Day period, this Section shall apply without limitation.
Section 9.2. Debt.
The Parent and the Borrower shall not create, incur, assume, or permit or
suffer to exist, or permit any other Subsidiary to create, incur, assume, or
permit or suffer to exist, any Debt other than the following:
(a) the Obligations;
(b) Debt resulting from the guaranty by the Parent or any Subsidiary of a
Special Purpose Entity's obligation to repay Debt incurred by it in connection
with a Permitted Financial Asset Sale (other than a Term Securitization) so long
as the amount of Debt under such guaranty (i) does not, with regard to any given
Permitted Financial Asset Sale, exceed 10.0% of the aggregate outstanding amount
of obligations evidenced by notes secured by, or certificates of participation
or other similar interests in, such financial assets which notes, certificates
or other interests have been sold or otherwise issued in connection with such
Permitted Financial Asset Sale to Persons the accounts of which would not be
required to be consolidated with those of the Parent in its consolidated
financial statements in accordance with GAAP and (ii) together with all other
Debt of the Parent and any Subsidiary owing under all other such guaranties
relating to other Permitted Financial Asset Sales, does not exceed $50,000,000
in the aggregate;
(c) Debt of the types described in clauses (a) through (c) of the
definition of the term Debt incurred in connection with Permitted On Balance
Sheet Warehouse Financings so long as the outstanding amount of such Debt does
not exceed $300,000,000 in the aggregate at any time;
(d) other Debt incurred in connection with Permitted Financial Asset Sales
and Permitted On Balance Sheet Warehouse Financings;
(e) Debt in existence as of the Agreement Date and described on Schedule
6.1.(h) and any Debt (the "Replacement Debt") extending the maturity of, or
refunding, refinancing or replacing, in whole or in part, any such existing Debt
(the "Replaced Debt") so long as (i) the aggregate principal amount of the
Replacement Debt does not exceed that of the Replaced Debt, (ii) the direct and
contingent obligors with respect to the Replaced Debt and the Replacement Debt
shall be the same, (iii) the Replacement Debt shall not mature prior to the
stated maturity date or mandatory redemption date of the Replaced Debt, and (iv)
if the Replaced Debt is subordinated in right of payment or otherwise to the
Obligations of the Borrower, or the obligations of the Parent or any of its
other Subsidiaries under and in respect of the Loan
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Documents to which any of them is a party, then the Replacement Debt must be
subordinated to such obligations to at least the same extent;
(f) intercompany indebtedness (excluding Subordinated Interests) among the
Parent, the Borrower and its other Subsidiaries; provided, however, that the
obligations of each obligor of such indebtedness shall: (i) be subordinated to
the Obligations on terms acceptable to the Requisite Lenders in their sole
discretion and (ii) have such other terms and provisions as the Administrative
Agent may reasonably require;
(g) Debt arising as a result of Contingent Obligations permitted under
Section 9.3.;
(h) Secured Debt that is Nonrecourse Debt, and Debt incurred in connection
with Nonrecourse SPE Financings;
(i) Unsecured Debt incurred after the Agreement Date which (x) was
incurred in connection with an offering of Debt securities (A) made pursuant to
an effective registration statement filed with the Securities and Exchange
Commission or (B) exempt from the registration requirements of the Securities
Act pursuant to Rule 144A thereof so long as such Debt securities are required
to be exchanged for Debt securities referred to in the preceding clause (A) or
(y) in the case of any other Unsecured Debt, does not exceed $20,000,000 in
aggregate outstanding principal amount at any time; and
(j) Debt resulting from any guaranty of, or other Contingent Obligation or
Off Balance Sheet Liability relating to, other Debt of the Parent, the Borrower
or any other Consolidated Subsidiary which other Debt is permitted to be
incurred pursuant to this Section.
Notwithstanding the foregoing, the Parent and the Borrower shall not, and shall
not permit any other Subsidiary to, create, incur or assume any Debt after the
Agreement Date if immediately prior to the creation, incurring or assumption
thereof, or immediately thereafter and after giving effect thereto, a Default or
Event of Default is or would be in existence, including without limitation, a
Default or Event of Default resulting from a violation of any of the covenants
contained in Section 9.1.
Section 9.3. Contingent Obligations.
The Parent and the Borrower shall not become or remain liable, or permit
any other Subsidiary to become or remain liable, on or under any Contingent
Obligation other than the following:
(a) Contingent Obligations arising under any of the Loan Documents;
(b) Contingent Obligations in existence as of the Agreement Date and set
forth in Schedule 9.3., and any Contingent Obligation incurred in replacement,
in whole or in part, of any such existing Contingent Obligations so long as (i)
the amount of such replacement Contingent Obligation shall not be increased,
(ii) such replacement Contingent Obligation shall not mature or
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otherwise be required to be performed prior to the corresponding maturity or
performance date of the Contingent Obligation being so replaced, and (iii) if
the Contingent Obligation being so replaced is subordinated to the Obligations
of the Borrower, or the obligations of the Parent or any of its other
Subsidiaries under and in respect of the Loan Documents to which any of them is
a party, such replacement Contingent Obligation shall be subordinated to such
obligations to at least the same extent;
(c) Contingent Obligations resulting from endorsement of negotiable
instruments for collection or deposit in the ordinary course of business;
(d) Contingent Obligations incurred in the ordinary course of business
with respect to surety and appeal bonds, performance and return-of-money bonds
and other similar obligations; and
(e) Contingent Obligations to the extent constituting Debt permitted under
Section 9.2.
Section 9.4. Certain Permitted Investments.
The Parent and the Borrower shall not, and shall not permit any other
Consolidated Subsidiary to, make any Investment in or otherwise own the
following items which would cause the aggregate value of such holdings of the
Parent, the Borrower and its other Consolidated Subsidiaries to exceed the
applicable percentage of Total Assets:
(a) common stock, preferred stock and any other Equity Interests in
Unconsolidated Affiliates (excluding Investments subject to the limitations
of the immediately following clause (e)), such that the aggregate value of
such interests, calculated on the basis of cost, exceeds 5.0% of Total
Assets;
(b) Investments in general and limited partnerships, joint ventures
and other Persons which are not corporations (excluding Investments subject
to the limitations of the immediately following clause (e)) and which
Investments are accounted for on an equity basis in accordance with GAAP,
such that the aggregate book value of such Investments exceeds 10.0% of
Total Assets;
(c) Unimproved real estate, such that the aggregate book value of all
such unimproved real estate exceeds 5.0% of Total Assets;
(d) Real property under construction such that the aggregate
Construction Budget for all such real property exceeds 15.0% of Total
Assets. For purposes of this subsection "Construction Budget" means the
fully-budgeted costs for the acquisition and construction of a given piece
of real property (including the cost of acquiring such piece of real
property) as reasonably determined by the Borrower in good faith;
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(e) Investments in (i) Subordinated Interests issued in connection
with Term Securitizations, (ii) prior to the Parent's acquisition of CNL
Financial Services, Inc. and CNL Financial Corporation in connection with
the Consolidation, Subordinated Interests which represent interests in
securitized pools of promissory notes, mortgage loans, chattel paper,
leases or other similar financial assets originated by any Affiliate and
(iii) I/O Strips, such that the aggregate value (determined on the basis of
lower of cost or Fair Value) of all such Subordinated Interests and I/O
Strips exceeds 10.0% of Total Assets; and
(f) (i) Leases of equipment and Investments in promissory notes
secured by a Lien in equipment, such that the aggregate amount of such
leases and Investments (determined in accordance with GAAP) exceeds (A)
5.0% of Total Assets prior to the consummation of the Consolidation and (B)
3.0% of Total Assets at all times thereafter and (ii) commitments to lease
equipment and make Investments of the types described in the immediately
preceding clause (i).
In addition to the foregoing limitations, the aggregate value of all of the
items subject to the limitations in the preceding clauses (a) through (c), (e)
and (f) shall not exceed 20.0% of Total Assets.
Section 9.5. Investments Generally.
The Parent and the Borrower shall not acquire, make or purchase, or permit
any other Consolidated Subsidiary to acquire, make or purchase, after the
Agreement Date, any Investment, or permit any Investment of the Parent, the
Borrower or any other Consolidated Subsidiary to be outstanding on and after the
Agreement Date, other than the following:
(a) Investments in Subsidiaries in existence on the Agreement Date and
disclosed on Part I of Schedule 6.1.(b) or on Schedule 9.5.;
(b) Investments permitted under Section 9.4.;
(c) Investments in Cash Equivalents;
(d) intercompany indebtedness among the Parent, the Borrower and the other
Subsidiaries provided that such indebtedness is permitted by the terms of
Section 9.2.;
(e) loans and advances to employees for moving, entertainment, travel and
other similar expenses in the ordinary course of business consistent with past
practices;
(f) Investments in promissory notes secured by Mortgages, so long as the
aggregate amount of such Investments (determined in accordance with GAAP) does
not exceed 15.0% of Adjusted Net Capitalization at any time, and Investments in
the form of commitments to make loans to be evidenced by promissory notes
secured by Mortgages; provided, however, neither (x) the temporary ownership or
acquisition by any Subsidiary of the Parent of promissory notes secured by
Mortgages in connection with, and as a result of, the Parent's acquisition of
CNL
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Financial Services, Inc. and CNL Financial Corporation as a part of the
Consolidation nor (y) the temporary ownership or acquisition by the Borrower or
other Subsidiary of promissory notes secured by Mortgages which were,
immediately prior to such ownership or acquisition, the subject of a Permitted
Financial Asset Sale (other than a Term Securitization), shall be considered an
Investment for purposes of this subsection, so long as (A) a Person has issued a
valid and binding commitment to acquire such promissory notes (or interests
therein) pursuant to a Permitted Financial Asset Sale, the terms of such
commitment to be reasonably satisfactory to the Administrative Agent, or the
Borrower has made other arrangements reasonably satisfactory to the
Administrative Agent to dispose of such promissory notes and (B) such promissory
notes are in fact so disposed of on the same date acquired by the Borrower or
other Subsidiary, as the case may be;
(g) Investments in Subordinate Interests (excluding any Subordinate
Interest issued in connection with a Term Securitization or a Nonrecourse SPE
Financing), so long as the value (determined on the basis of lower of cost or
Fair Value) of such Investments, together with the aggregate outstanding amount
of Debt permitted under Section 9.2.(b), does not exceed $100,000,000 in the
aggregate at any time;
(h) the Parent or any Subsidiary, in either case, acting in its capacity
as servicer of the financial assets the subject of a Structured Financing, may
make short-term advances to or on behalf of the applicable Special Purpose
Entity or other Person involved in such Structured Financing for the purpose of
maintaining a stable cash flow with respect to such financial assets, so long as
the Parent or such Subsidiary, as the case may be, reasonably expects that such
advance is recoverable;
(i) Investments to acquire Equity Interests of a Subsidiary or any other
Person who after giving effect to such acquisition would be a Subsidiary,
including without limitation, Investments made in connection with the
consummation of the Consolidation, and Investments in the form of additional
capital contributions to existing Subsidiaries, so long as in each case (i)
immediately prior to such acquisition, Investment or contribution, and after
giving effect thereto, no Default or Event of Default is or would be in
existence and (ii) such acquisition, Investment or contribution could not
reasonably be expected to have a Material Adverse Effect; and
(j) other Investments in an aggregate amount not to exceed 0.10% of Total
Assets at any time.
Section 9.6. Liens; Agreements Regarding Liens; Other Matters.
The Parent and the Borrower shall not:
(a) Create, assume, or incur, or permit any other Consolidated Subsidiary
to create, assume, or incur, any Lien (other than Permitted Liens) upon (i) any
Eligible Lease (or the Real Property Asset which is the subject of such Eligible
Lease) or any other property or asset which is taken into account when
calculating Unencumbered Asset Value or (ii) any of its other properties,
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assets, income or profits of any character whether now owned or hereafter
acquired if, in the case of this clause (ii) only, immediately prior to the
creation, assumption or incurring of such Lien, or immediately thereafter, a
Default or Event of Default is or would be in existence, including without
limitation, a Default or Event of Default resulting from a violation of any of
the covenants contained in Section 9.1. or 9.2.;
(b) Enter into, assume or otherwise be bound by, or permit any other
Subsidiary to enter into, assume or otherwise be bound by, any agreement (other
than any Loan Document) prohibiting the creation or assumption of any Lien on
any Eligible Lease (or the Real Property Asset which is the subject of such
Eligible Lease) or any other property or asset which is taken into account when
calculating Unencumbered Asset Value; or
(c) Create or otherwise cause or suffer to exist or become effective, or
permit any Subsidiary to create or otherwise cause or suffer to exist or become
effective, any consensual encumbrance or restriction of any kind on the ability
of any Subsidiary to: (i) pay dividends or make any other distribution on any of
such Subsidiary's capital stock or other equity interests owned by the Parent,
the Borrower or any other Subsidiary; (ii) pay any Debt owed to the Parent, the
Borrower or any other Subsidiary; (iii) make loans or advances to the Borrower
or any other Subsidiary; or (iv) transfer any of its respective property or
assets to the Parent, the Borrower or any other Subsidiary, except (x) as may be
contained in any Loan Document and (y) for such encumbrances and restrictions
imposed on Special Purpose Entities (and with respect to encumbrances and
restrictions described in the immediately preceding clauses (iii) and (iv), on
other Excluded Subsidiaries) in connection with Structured Financings which
encumbrances and restrictions are reasonable and customary for such types of
transactions.
Section 9.7. Restricted Payments.
The Parent and the Borrower will not declare or make, or permit any other
Subsidiary to declare or make, any Restricted Payment; provided, however, that:
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(a) Subsidiaries may pay Restricted Payments to the extent permitted (or
required) to do so under Section 9.14.;
(b) subject to the following sentence, the Parent may cause the Borrower
(directly or indirectly through any intermediate Subsidiaries) to make cash
distributions to the Parent and to other limited partners of the Borrower, and
the Parent may cause other Subsidiaries of the Parent to make cash distributions
to the Parent and to other holders of Equity Interests in such Subsidiaries, in
each case (i) in an aggregate amount not to exceed the amount of cash
distributions that the Parent is permitted to declare or distribute under the
following clause (d) and (ii) on a pro rata basis, such that the aggregate
amount distributed to the Parent does not exceed the amount that the Parent is
permitted to declare or distribute under the following clause (e);
(c) the Parent and its Subsidiaries may acquire limited partnership
interests in the Borrower solely in exchange for common stock of the Parent;
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(d) the Parent may declare or make cash distributions to its shareholders
during any fiscal year in an aggregate amount not to exceed (i) 100% of Funds
From Operations for the fiscal year ending December 31, 1999; (ii) 95% of Funds
From Operations for the fiscal year ending December 31, 2000 and (iii) 90% of
Funds From Operations for any fiscal year thereafter;
(e) subject to the following sentence, if a Default or Event of Default
shall have occurred and be continuing, the Parent may only declare or make cash
distributions to its shareholders during any fiscal year in an aggregate amount
not to exceed the lesser of (i) the amount otherwise permitted to be declared or
made under the immediately preceding clause (d) and (ii) the minimum amount
necessary for the Parent to remain in compliance with Section 7.11.; and
(f) Special Purpose Entities and related Excluded Subsidiaries may
(directly or indirectly through any intermediate Subsidiaries) (i) make
Restricted Payments to the extent required to do so under the terms of a
Structured Financing and (ii) distribute I/O Strips and other assets to the
Parent, the Borrower or any other Guarantor.
Notwithstanding the foregoing, if a Default or Event of Default specified in
Section 10.1.(a) resulting from the Borrower's failure to pay when due the
principal of, or interest on, any of the Loans or any Fees, Section 10.1.(e) or
Section 10.1.(f) shall have occurred and be continuing, or if as a result of the
occurrence of any other Event of Default the Obligations have been accelerated
pursuant to Section 10.2.(a), the Parent and the Borrower shall not, and shall
not permit any other Subsidiary to, make any Restricted Payments whatsoever.
Section 9.8. Ground Leases.
The Parent and the Borrower shall not, and shall not permit any other
Subsidiary to, lease as lessee any real property pursuant to a ground lease
unless (a) such ground lease contains customary provisions protective of any
lender to the lessee which provisions do not vary in any material respect from
those required under the Borrower's standard underwriting procedures and
policies and (b) the aggregate value (determined in accordance with GAAP) of all
ground leases of the Parent, the Borrower and the other Subsidiaries does not
exceed 10% of Adjusted Net Capitalization.
Section 9.9. Merger, Consolidation, Sales of Assets and Other Arrangements;
Sale-Lease Back Transactions.
(a) Merger, Consolidation, Sales of Assets. The Parent and the Borrower
--------------------------------------
shall not (i) enter into, or permit any other Subsidiary to enter into, any
transaction of merger or consolidation; (ii) liquidate, wind-up or dissolve
itself (or suffer any liquidation or dissolution) or permit any other Subsidiary
to do any of the foregoing; or (iii) convey, sell, lease, sublease, transfer or
otherwise dispose of, in one transaction or a series of transactions, all or any
substantial part of its business or assets (including the capital stock of or
other equity interests in any of its Subsidiaries), whether now owned or
hereafter acquired, or permit any Subsidiary to do any of the foregoing;
provided, however, that:
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(A) Subsidiaries of the Parent may merge or consolidate with any
Wholly Owned Subsidiary (other than the Borrower, any Special Purpose
Entity or other Excluded Subsidiary);
(B) the Parent and each Subsidiary (other than the Borrower) may
sell, transfer or dispose of its assets to the Parent, the Borrower or any
Wholly Owned Subsidiary;
(C) a Wholly Owned Subsidiary may liquidate provided that immediately
prior to such liquidation and immediately thereafter and after giving
effect thereto, no Default or Event of Default is or would be in existence;
(D) any Subsidiary that is not a Wholly Owned Subsidiary and that is
no longer actively engaged in any business or activities and does not have
property and assets with an aggregate book value or fair market value in
excess of $1,000,000 may be wound up, liquidated or dissolved so long as
such winding up, liquidation or dissolution is determined in good faith by
management of the Parent to be in the best interests of the Parent and its
Subsidiaries;
(E) a Wholly Owned Subsidiary may merge with any other Person so long
as (x) immediately after giving effect to such merger the survivor of such
merger would be a Wholly Owned Subsidiary and (y) immediately prior to such
merger, and immediately thereafter and after giving effect thereto, no
Default or Event of Default is or would be in existence;
(F) a Person may merge into the Borrower so long as (x) the Borrower
is the survivor of such merger, (y) such merger is being effected in
connection with the consummation of the Consolidation and (z) immediately
prior to such merger, and immediately thereafter and after giving effect
thereto, no Default or Event of Default is or would be in existence;
(G) the Parent, the Borrower and the other Subsidiaries may sell and
assign assets to a Special Purpose Entity, directly or indirectly through
the Parent or other Subsidiary, in connection with a Structured Financing,
and Special Purpose Entities may sell and assign assets (or interests
therein) pursuant to Permitted Financial Asset Sales; and
(H) the Parent, the Borrower and any other Subsidiary may lease and
sublease its assets, as lessor or sublessor (as the case may be), in the
ordinary course of their business.
(b) Sale-Lease Back Transactions. None of the Parent, the Borrower or any
----------------------------
other Subsidiary shall enter into any sale-leaseback transactions or other
transaction by which such Person shall remain liable as lessee (or the economic
equivalent thereof) of any real or personal property that it has sold or leased
to another Person.
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Section 9.10. Dispositions of Assets.
The Parent and the Borrower shall not sell, lease, transfer or otherwise
dispose of, and shall not permit any other Subsidiary to sell, lease, transfer
or otherwise dispose of, assets (including without limitation capital stock or
similar ownership interests) during any fiscal year which have an aggregate book
value in excess of 15% of Total Assets as of the end of the immediately
preceding fiscal year; provided, however, that the limitations of this Section
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shall not apply to (i) the sale, lease or transfer of assets among the Parent,
the Borrower and any other Wholly-Owned Subsidiary that is a Guarantor, (ii) any
lease or sublease, as lessor or sublessor (as the case may be) by the Parent,
the Borrower or any Subsidiary of its assets in the ordinary course of their
business or (iii) any sale or assignment of assets in connection with a
Structured Financing to the extent permitted under clause (a)(G) of Section 9.9.
Section 9.11. Fiscal Year.
The Parent shall not change its fiscal year from that in effect as of the
Agreement Date.
Section 9.12. Modifications to Material Contracts.
The Parent and the Borrower shall not enter into, or permit any other
Subsidiary to enter into, without the prior written consent of the Requisite
Lenders, any amendment or modification to any Material Contract or default in
the performance of any of its respective obligations under any Material Contract
or cancel or terminate any Material Contract prior to its stated maturity.
Section 9.13. Transactions with Affiliates.
The Parent and the Borrower shall not permit to exist or enter into, and
will not permit any other Subsidiary to permit to exist or enter into, any
transaction with any Affiliate except (a) transactions in the ordinary course of
and pursuant to the reasonable requirements of the business of the Parent, the
Borrower or such other Subsidiary, as the case may be, and upon fair and
reasonable terms which are no less favorable to the Parent, the Borrower or such
other Subsidiary, as the case may be, than would be obtained in a comparable
arm's length transaction with a Person that is not an Affiliate, and in the case
of any such transaction with a Special Purpose Entity or other Excluded
Subsidiary involving consideration in excess of $25,000,000, which terms are
fully disclosed to the Administrative Agent and the Lenders; (b) the
transactions described in Schedule 9.13.; and (c) transactions among the Parent,
the Borrower and any Wholly Owned Subsidiary that is a Guarantor.
Section 9.14. Distributions of Income to the Borrower.
Subject to any encumbrances or restrictions permitted under Section
9.6.(c), the Parent and the Borrower shall cause all of the Subsidiaries of the
Borrower to distribute (directly or indirectly through any intermediate
Subsidiaries) to the Borrower and pro rata to holders of Equity Interests in
such Subsidiaries, not less frequently than once each fiscal quarter of the
Borrower and whether in the form of dividends, distributions or otherwise, all
profits, proceeds or other income relating to or arising from its Subsidiaries'
use, operation, financing, refinancing, sale
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or other disposition of their respective assets and properties after (a) the
payment by each Subsidiary of its applicable portion of total Debt service and
operating expenses for such quarter and (b) the establishment of reasonable
reserves for the payment of operating expenses not paid on at least a quarterly
basis and capital improvements to be made to such Subsidiary's assets and
properties approved by such Subsidiary in the ordinary course of business
consistent with its past practices.
Section 9.15. Contribution of Assets by Parent to Borrower.
By the Contribution Date the Parent shall, and shall cause each of its
Subsidiaries that are not also Subsidiaries of the Borrower ("Intermediate
Subs") to, contribute or otherwise convey to the Borrower assets (excluding, at
the option of the Parent, securities of (i) Intermediate Subs and (ii) the
Borrower), such that after giving effect to such contributions and conveyances
substantially all of the assets of the Parent and its Consolidated Subsidiaries
shall be owned by the Borrower and its Subsidiaries.
Section 9.16. Limitation on International Leases.
The Parent shall not permit the aggregate amount of net lease revenues from
International Leases for any fiscal quarter ending during the term of this
Agreement to exceed 2.50% of all net lease revenues for such fiscal quarter from
all Real Property Assets of (a) the Parent and its Subsidiaries prior to the
Contribution Date and (b) the Borrower and its Subsidiaries on and after the
Contribution Date. The lessee under an International Lease must be a Person
(other than an individual) (i) organized under the laws of the United States of
America or any state thereof or the District of Columbia and (ii) whose chief
executive office is located in the United States of America. All International
Leases must provide that rental payments and other payments due the Parent or
any Subsidiary thereunder are payable in Dollars.
Section 9.17. Hedge Agreements.
The Parent and the Borrower shall not create, incur, assume, or permit or
suffer to exist, or permit any other Subsidiary to create, incur, assume, or
permit or suffer to exist, any obligations, contingent or otherwise, in respect
of Hedge Agreements other than in respect of interest rate Hedge Agreements (i)
existing on the date hereof and described in Schedule 9.17. and (ii) entered
into from time to time after the Agreement Date with counterparties that are
nationally recognized, investment grade financial institutions; provided that,
no Hedge Agreement otherwise permitted hereunder may be speculative in nature.
Article X. Default
Section 10.1. Events of Default.
Each of the following shall constitute an Event of Default, whatever the
reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of Applicable Law or pursuant to any judgment or order of
any Governmental Authority:
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(a) Default in Payment. The Borrower shall fail to pay when due (whether
------------------
upon demand, at maturity, by reason of acceleration or otherwise) (i) the
principal of any of the Loans, (ii) any interest on any of the Loans and in the
case of this clause (ii) only, such failure shall continue for a period of 5
days or (iii) any other Obligations owing by the Borrower under this Agreement
or any other Loan Document and in the case of this clause (iii) only, such
failure shall continue for a period of 5 days after the date upon which the
Borrower has received written notice of such failure from the Administrative
Agent.
(b) Default in Performance. (i) The Borrower shall fail to perform or
----------------------
observe any term, covenant, condition or agreement on its part to be performed
or observed contained in Section 8.4.(k)(i) or Article IX. or (ii) the Borrower
or any Guarantor shall fail to perform or observe any term, covenant, condition
or agreement contained in this Agreement or any other Loan Document to which it
is a party and not otherwise mentioned in this Section and in the case of this
clause (ii) only, such failure shall continue for a period of 30 days after the
earlier of (x) the date upon which the Parent or the Borrower obtains knowledge
of such failure or (y) the date upon which the Borrower has received written
notice of such failure from the Administrative Agent.
(c) Misrepresentations. Any written statement, representation or warranty
------------------
made or deemed made by or on behalf of the Borrower or any Guarantor under this
Agreement or under any other Loan Document, or any amendment hereto or thereto,
or in any other writing or statement at any time furnished or made or deemed
made by or on behalf of the Borrower or any Guarantor to the Administrative
Agent, either Arranger, the Syndication Agent or any Lender under or in
connection with any Loan Document, shall at any time prove to have been
incorrect or misleading in any material respect when furnished or made.
(d) Debt Cross-Default.
------------------
(i) The Borrower, any Guarantor, any Special Purpose Entity or any
other Excluded Subsidiary shall fail to pay when due and payable (following
the expiration of any applicable cure periods) the principal of, or
interest on, any Debt (other than the Loans) having an aggregate
outstanding principal amount (or, in the case of any Hedge Agreement,
having an Agreement Value) of $10,000,000 or more ("Material Debt"); or
(ii) the maturity of any Material Debt shall have (x) been
accelerated in accordance with the provisions of any indenture, contract or
instrument evidencing, providing for the creation of or otherwise
concerning such Debt or (y) been required to be prepaid prior to the stated
maturity thereof; or
(iii) any other event shall have occurred and be continuing which
would permit any holder or holders of any Material Debt, any trustee or
agent acting on behalf of such holder or holders or any other Person, to
accelerate the maturity of any such Debt or require any such Debt to be
prepaid prior to its stated maturity.
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For purposes of this subsection (d) only, an obligation of a Special
Purpose Entity to repay Debt incurred by it under a Permitted Financial
Asset Sale shall not be considered a Default or Event of Default under this
subsection so long as at the time of the enforcement of such obligation
either (x) a Person has issued a valid and binding commitment to acquire
the financial assets (or interests therein) the subject of such Permitted
Financial Asset Sale pursuant to another Permitted Financial Asset Sale,
the terms of such commitment to be reasonably satisfactory to the
Administrative Agent or (y) the Borrower has made other arrangements
reasonably satisfactory to the Administrative Agent to cause such Debt to
be repaid.
(e) Voluntary Bankruptcy Proceeding. The Borrower, any Guarantor, any
-------------------------------
Special Purpose Entity or any other Excluded Subsidiary shall: (i) commence a
voluntary case under the Bankruptcy Code of 1978, as amended, or other federal
bankruptcy laws (as now or hereafter in effect); (ii) file a petition seeking to
take advantage of any other Applicable Laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment
of debts; (iii) consent to, or fail to contest in a timely and appropriate
manner, any petition filed against it in an involuntary case under such
bankruptcy laws or other Applicable Laws or consent to any proceeding or action
described in the immediately following subsection; (iv) apply for or consent to,
or fail to contest in a timely and appropriate manner, the appointment of, or
the taking of possession by, a receiver, custodian, trustee, or liquidator of
itself or of a substantial part of its property, domestic or foreign; (v) admit
in writing its inability to pay its debts as they become due; (vi) make a
general assignment for the benefit of creditors; or (vii) take any corporate or
similar action for the purpose of effecting any of the foregoing.
(f) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be
---------------------------------
commenced against the Borrower, any Guarantor, any Special Purpose Entity or any
other Excluded Subsidiary, in any court of competent jurisdiction seeking: (i)
relief under the Bankruptcy Code of 1978, as amended, or other federal
bankruptcy laws (as now or hereafter in effect) or under any other Applicable
Laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts; or (ii) the appointment of a
trustee, receiver, custodian, liquidator or the like of such Person, or of all
or any substantial part of the assets, domestic or foreign, of such Person, and
such case or proceeding shall continue undismissed or unstayed for a period of
60 consecutive calendar days, or an order granting the remedy or other relief
requested in such case or proceeding against the Borrower, such Guarantor, such
Special Purpose Entity or such other Excluded Subsidiary (including, but not
limited to, an order for relief under such Bankruptcy Code or such other federal
bankruptcy laws) shall be entered.
(g) Challenge of Loan Documents. The Borrower or any Guarantor shall
---------------------------
disavow, revoke or terminate or attempt to do any of the foregoing with respect
to any Loan Document to which it is a party or shall otherwise challenge or
contest in any action, suit or proceeding in any court or before any
Governmental Authority the validity or enforceability of this Agreement, any
Note or any other Loan Document.
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(h) Judgment. A judgment or order for the payment of money shall be
--------
entered against the Borrower, any Guarantor, any Special Purpose Entity or any
other Excluded Subsidiary by any court or other tribunal which exceeds,
individually or together with all other such judgments or orders entered against
the Borrower and the Guarantors, $1,000,000 in amount (or which shall otherwise
have a Material Adverse Effect) and such judgment or order shall continue for a
period of 30 days without being stayed or dismissed through appropriate
appellate proceedings.
(i) Attachment. A warrant, writ of attachment, execution or similar
----------
process shall be issued against any property of the Borrower, any Guarantor, any
Special Purpose Entity or any other Excluded Subsidiary which exceeds,
individually or together with all other such warrants, writs, executions and
processes, $1,000,000 in amount and such warrant, writ, execution or process
shall not be discharged, vacated, stayed or bonded for a period of 30 days.
(j) ERISA. Any member of the ERISA Group shall fail to pay when due an
-----
amount or amounts aggregating in excess of $1,000,000 which it shall have become
liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or to cause a trustee to be appointed to administer any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $1,000,000.
(k) Loan Documents. An Event of Default (as defined therein) shall occur
--------------
under any of the other Loan Documents.
(l) Change of Control/Change in Management.
--------------------------------------
(i) Any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) is or becomes the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that a Person will be deemed to have
"beneficial ownership" of all securities that such Person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of more than 25.0% of the total
voting power of the then outstanding Voting Stock of the Borrower;
(ii) During any twelve-month period (commencing either before or after
the Agreement Date), a majority of the Board of Directors of the Parent
shall no longer be composed of individuals (x) who were members of such
Board of Directors on the first date of such period, (y) whose election or
nomination to such Board of Directors was approved by individuals referred
to in clause (x) above constituting at the time of such election or
nomination at least a majority of such Board of Directors or (z) whose
election
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or nomination to such Board of Directors was approved by individuals
referred to in clauses (x) and (y) above constituting at the time of such
election or nomination at least a majority of such Board of Directors;
(iii) If either (x) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. or (y) any two of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇, shall cease for any reason
(including death or disability) to occupy and discharge the
responsibilities of the positions of Chairman of the Board, Vice Chairman
of the Board, Chief Executive Officer or President (or other more senior
officer) of the Parent, respectively; or
(iv) The general partner of the Borrower shall cease to be the
Parent or a Wholly Owned Subsidiary of the Parent.
Section 10.2. Remedies Upon Event of Default.
Upon the occurrence and during the continuance of an Event of Default the
following provisions shall apply:
(a) Acceleration; Termination of Facilities.
---------------------------------------
(i) Automatic. Upon the occurrence of an Event of Default specified
---------
in Sections 10.1.(e) or 10.1.(f), (A)(i) the principal of, and all accrued
interest on, the Loans and the Notes at the time outstanding, (ii) an
amount equal to the Stated Amount of all Letters of Credit then
outstanding, and (iii) all of the other Obligations of the Borrower,
including, but not limited to, the other amounts owed to the Lenders and
the Administrative Agent under this Agreement, the Notes or any of the
other Loan Documents shall become immediately and automatically due and
payable by the Borrower without presentment, demand, protest, or other
notice of any kind, all of which are expressly waived by the Borrower and
(B) the Commitments and the obligation of the Lenders to make Loans
hereunder and the obligation of the Administrative Agent to issue Letters
of Credit hereunder shall immediately and automatically terminate.
(ii) Optional. If any other Event of Default shall have occurred and
--------
be continuing, the Administrative Agent may, and at the direction of the
Requisite Lenders shall: (I) declare (1) the principal of, and accrued
interest on, the Loans and the Notes at the time outstanding, (2) an amount
equal to the Stated Amount of all Letters of Credit then outstanding, and
(3) all of the other Obligations, including, but not limited to, the other
amounts owed to the Lenders and the Administrative Agent under this
Agreement, the Notes or any of the other Loan Documents to be forthwith due
and payable, whereupon the same shall immediately become due and payable
without presentment, demand, protest or other notice of any kind, all of
which are expressly waived by the Borrower and (II) terminate the
Commitments and the obligation of the Lenders to make Loans hereunder and
the obligation of the Administrative Agent to issue Letters of Credit
hereunder.
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(b) Loan Documents. The Requisite Lenders may direct the Administrative
--------------
Agent to, and the Administrative Agent if so directed shall, exercise any and
all of its rights under any and all of the other Loan Documents.
(c) Applicable Law. The Requisite Lenders may direct the Administrative
--------------
Agent to, and the Administrative Agent if so directed shall, exercise all other
rights and remedies it may have under any Applicable Law.
(d) Appointment of Receiver. To the extent permitted by Applicable Law,
-----------------------
the Administrative Agent and the Lenders shall be entitled to the appointment of
a receiver for the assets and properties of the Borrower and its Subsidiaries,
without notice of any kind whatsoever and without regard to the adequacy of any
security for the Obligations or the solvency of any party bound for its payment,
to take possession of all or any portion of the business operations of the
Borrower and its Subsidiaries and to exercise such power as the court shall
confer upon such receiver.
Section 10.3. Remedies Upon Default.
Upon the occurrence of a Default specified in Sections 10.1.(e) or
10.1.(f), the Commitments, and the obligation of the Administrative Agent to
issue Letters of Credit, shall immediately and automatically terminate.
Section 10.4. Allocation of Proceeds.
If an Event of Default shall have occurred and be continuing and maturity
of any of the Obligations has been accelerated, all payments received by the
Administrative Agent under any of the Loan Documents, in respect of any
principal of or interest on the Obligations or any other amounts payable by the
Borrower hereunder or thereunder, shall be applied in the following order and
priority:
(a) amounts due to the Administrative Agent and the Lenders in
respect of Fees and expenses due under Section 12.2.;
(b) payments of interest on Loans and Reimbursement Obligations, to
be applied for the ratable benefit of the Lenders;
(c) payments of principal of Loans and Reimbursement Obligations, to
be applied for the ratable benefit of the Lenders;
(d) payments of cash amounts to the Administrative Agent in respect
of outstanding Letters of Credit pursuant to Section 2.12.;
(e) amounts due to the Administrative Agent, the Arrangers and the
Lenders pursuant to Sections 11.7. and 12.9.;
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(f) payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the Lenders;
and
(g) any amount remaining after application as provided above, shall
be paid to the Borrower or whomever else may be legally entitled thereto.
Section 10.5. Performance by Administrative Agent.
If the Borrower or the Parent shall fail to perform any covenant, duty or
agreement contained in any of the Loan Documents, the Administrative Agent may,
upon notice to the Borrower or the Parent, as the case may be, perform or
attempt to perform such covenant, duty or agreement on behalf of the Borrower or
the Parent, as the case may be, after the expiration of any cure or grace
periods set forth herein; provided, however, the Administrative Agent's failure
-------- -------
to give any such notice shall not affect the validity of any action taken by the
Administrative Agent. In such event, the Borrower shall, at the request of the
Administrative Agent, promptly pay any amount reasonably expended by the
Administrative Agent in such performance or attempted performance to the
Administrative Agent, together with interest thereon at the applicable Post-
Default Rate from the date of such expenditure until paid. Notwithstanding the
foregoing, neither the Administrative Agent nor any Lender shall have any
liability or responsibility whatsoever for the performance of any obligation of
the Borrower or the Parent under this Agreement or any other Loan Document.
Section 10.6. Rights Cumulative.
The rights and remedies of the Administrative Agent and the Lenders under
this Agreement and each of the other Loan Documents shall be cumulative and not
exclusive of any rights or remedies which any of them may otherwise have under
Applicable Law. In exercising their respective rights and remedies the
Administrative Agent and the Lenders may be selective and no failure or delay by
the Administrative Agent or any of the Lenders in exercising any right shall
operate as a waiver of it, nor shall any single or partial exercise of any power
or right preclude its other or further exercise or the exercise of any other
power or right.
Section 10.7. Rescission of Acceleration by Requisite Lenders.
If at any time after acceleration of the maturity of the Obligations, the
Borrower shall pay all arrears of interest and all payments on account of
principal of the Obligations which shall have become due otherwise than by
acceleration (with interest on principal and, to the extent permitted by
Applicable Law, on overdue interest, at the rates specified in this Agreement)
and all Events of Default and Defaults (other than nonpayment of principal of
and accrued interest on the Obligations due and payable solely by virtue of
acceleration) shall be remedied or waived to the satisfaction of the Requisite
Lenders, then by written notice to the Borrower, the Requisite Lenders may
elect, in the sole discretion of such Requisite Lenders, to rescind and annul
the acceleration and its consequences; but such action shall not affect any
subsequent Default or Event of Default or impair any right or remedy consequent
thereon. The provisions of the preceding sentence are intended merely to bind
the Lenders to a decision which may be made at the election of the Requisite
Lenders; they are not intended to benefit the Borrower and do not
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give the Borrower the right to require the Lenders to rescind or annul any
acceleration hereunder, even if the conditions set forth herein are satisfied.
Section 10.8. Collateral Account.
(a) As collateral security for the prompt payment in full when due of all
Letter of Credit Liabilities, the Borrower hereby pledges and grants to the
Administrative Agent, for the benefit of the Administrative Agent and the
Lenders as provided herein, a security interest in all of its right, title and
interest in and to the Collateral Account and the balances from time to time in
the Collateral Account (including the investments and reinvestments therein
provided for below). The balances from time to time in the Collateral Account
shall not constitute payment of any Letter of Credit Liabilities until applied
by the Administrative Agent as provided herein. Anything in this Agreement to
the contrary notwithstanding, funds held in the Collateral Account shall be
subject to withdrawal only as provided in this Section and in Section 2.12.
(b) Amounts on deposit in the Collateral Account shall be invested and
reinvested by the Administrative Agent in such Cash Equivalents as the
Administrative Agent shall determine in its sole discretion. The Collateral
Account, all funds on deposit held in the Collateral Account and all such
investments and reinvestments shall be held in the name of and be under the sole
dominion and control of the Administrative Agent. The Administrative Agent shall
exercise reasonable care in the custody and preservation of any funds held in
the Collateral Account and shall be deemed to have exercised such care if such
funds are accorded treatment substantially equivalent to that which the
Administrative Agent accords other funds deposited with the Administrative
Agent, it being understood that the Administrative Agent shall not have any
responsibility for taking any necessary steps to preserve rights against any
parties with respect to any funds held in the Collateral Account.
(c) If an Event of Default shall have occurred and be continuing, the
Administrative Agent may (and, if instructed by the Requisite Lenders, shall) in
its (or their) discretion at any time and from time to time elect to liquidate
any such investments and reinvestments and credit the proceeds thereof to the
Collateral Account and apply or cause to be applied such proceeds and any other
balances in the Collateral Account to the payment of any of the Letter of Credit
Liabilities due and payable.
(d) If (i) no Default or Event of Default is then in existence and (ii)
all of the Letter of Credit Liabilities have been indefeasibly paid in full, the
Administrative Agent shall, from time to time, at the request of the Borrower,
deliver to the Borrower, against receipt but without any recourse, warranty or
representation whatsoever, such of the balances in the Collateral Account as
exceed the aggregate amount of Letter of Credit Liabilities at such time. When
all of the Obligations shall have been indefeasibly paid in full and no Letters
of Credit remain outstanding, the Administrative Agent shall promptly deliver to
the Borrower, against receipt but without any recourse, warranty or
representation whatsoever, the balances remaining in the Collateral Account.
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(e) The Borrower shall pay to the Administrative Agent from time to time
such reasonable fees as the Administrative Agent customarily charges for similar
services in connection with the Administrative Agent's administration of the
Collateral Account and investments and reinvestments of funds therein.
Article XI. The Administrative Agent
Section 11.1. Authorization and Action.
Each Lender hereby appoints and authorizes the Administrative Agent to take
such action as contractual representative on such Lender's behalf and to
exercise such powers under this Agreement and the other Loan Documents as are
specifically delegated to the Administrative Agent by the terms and thereof,
together with such powers as are reasonably incidental thereto. Nothing herein
shall be construed to deem the Administrative Agent a trustee or fiduciary for
any Lender nor to impose on the Administrative Agent duties or obligations other
than those expressly provided for herein. Not in limitation of the foregoing,
each Lender confirms and agrees that the Administrative Agent has no fiduciary
obligations to such Lender under this Agreement, any other Loan Document or
otherwise. At the request of a Lender, the Administrative Agent will forward to
such Lender copies or, where appropriate, originals of the documents delivered
to the Administrative Agent pursuant to this Agreement or the other Loan
Documents. The Administrative Agent will also furnish to any Lender, upon the
request of such Lender, a copy of any certificate or notice furnished to the
Administrative Agent by the Parent, the Borrower, any other Subsidiary or any
other Affiliate of the Borrower, pursuant to this Agreement or any other Loan
Document not already required to be delivered to such Lender pursuant to the
terms of this Agreement or any such other Loan Document. As to any matters not
expressly provided for by the Loan Documents (including, without limitation,
enforcement or collection of any of the Obligations), the Administrative Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Requisite Lenders
(or all of the Lenders if explicitly required under any other provision of this
Agreement), and such instructions shall be binding upon all Lenders and all
holders of any of the Obligations; provided, however, that, notwithstanding
-------- -------
anything in this Agreement to the contrary, the Administrative Agent shall not
be required to take any action which exposes the Administrative Agent to
personal liability or which is contrary to this Agreement or any other Loan
Document or Applicable Law. The Administrative Agent shall not exercise any
right or remedy it or the Lenders may have under any Loan Document upon the
occurrence of a Default or an Event of Default unless the Requisite Lenders have
so directed the Administrative Agent to exercise such right or remedy.
Section 11.2. Administrative Agent's Reliance, Etc.
Notwithstanding any other provisions of this Agreement or any other Loan
Documents, neither the Administrative Agent nor any of its directors, officers,
agents, employees or counsel shall be liable for any action taken or omitted to
be taken by it or them under or in connection with this Agreement, except to the
extent found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from its or their own gross negligence or willful
misconduct. Without limiting the generality of the foregoing, the
Administrative Agent: (a) may
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treat the payee of any Note as the holder thereof until the Administrative Agent
receives written notice of the assignment or transfer thereof signed by such
payee and in form satisfactory to the Administrative Agent; (b) may consult with
legal counsel (including its own counsel or counsel for the Parent, the Borrower
or any other Subsidiary), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (c) makes no warranty or representation to any Lender or
any other Person and shall not be responsible to any Lender or any other Person
for any statements, warranties or representations made by any Person in or in
connection with this Agreement or any other Loan Document; (d) shall not have
any duty to ascertain or to inquire as to the performance or observance of any
of the terms, covenants or conditions of any of this Agreement or any other Loan
Document or the satisfaction of any conditions precedent under this Agreement or
any Loan Document on the part of the Parent, the Borrower or other Persons or
inspect the property, books or records of the Parent, the Borrower or any other
Person; (e) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other Loan Document, any other instrument or document furnished
pursuant thereto or any collateral covered thereby or the perfection or priority
of any Lien in favor of the Administrative Agent on behalf of the Lenders in any
such collateral; and (f) shall incur no liability under or in respect of this
Agreement or any other Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telephone or
telecopy) believed by it to be genuine and signed, sent or given by the proper
party or parties.
Section 11.3. Notice of Defaults.
The Administrative Agent shall not be deemed to have knowledge or notice of
the occurrence of a Default or Event of Default unless the Administrative Agent
has received notice from a Lender, the Borrower or the Parent referring to this
Agreement, describing with reasonable specificity such Default or Event of
Default and stating that such notice is a "notice of default." If any Lender
(excluding the Administrative Agent in its capacity as a Lender) becomes aware
of any Default or Event of Default, it shall promptly send to the Administrative
Agent such a "notice of default." Further, if the Administrative Agent receives
such a "notice of default", the Administrative Agent shall give prompt notice
thereof to the Lenders.
Section 11.4. First Union as Lender.
First Union, as a Lender, shall have the same rights and powers under this
Agreement and any other Loan Document as any other Lender and may exercise the
same as though it were not the Administrative Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include First Union in
each case in its individual capacity. First Union and its affiliates may each
accept deposits from, maintain deposits or credit balances for, invest in, lend
money to, act as trustee under indentures of, serve as financial advisor to, and
generally engage in any kind of business with the Parent, the Borrower, any
other Subsidiary or any other Affiliate thereof as if it were any other bank and
without any duty to account therefor to the other Lenders. Further, the
Administrative Agent and any affiliate may accept fees and other consideration
from the Parent or the Borrower for services in connection with this Agreement
and otherwise without having to account for the same to the other Lenders.
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Section 11.5. Approvals of Lenders.
All communications from the Administrative Agent to any Lender requesting
such Lender's determination, consent, approval or disapproval (a) shall be given
in the form of a written notice to such Lender, (b) shall be accompanied by a
description of the matter or issue as to which such determination, approval,
consent or disapproval is requested, or shall advise such Lender where
information, if any, regarding such matter or issue may be inspected, or shall
otherwise describe the matter or issue to be resolved, (c) shall include, if
reasonably requested by such Lender and to the extent not previously provided to
such Lender, written materials provided to the Administrative Agent by the
Parent or the Borrower in respect of the matter or issue to be resolved, and (d)
shall include the Administrative Agent's recommended course of action or
determination in respect thereof. Each Lender shall reply promptly, but in any
event within 10 Business Days (or such lesser period as may be required under
the Loan Documents for the Administrative Agent to respond). Unless a Lender
shall give written notice to the Administrative Agent that it objects to the
recommendation or determination of the Administrative Agent (together with a
written explanation of the reasons behind such objection) within the applicable
time period for reply, such Lender shall be deemed to have conclusively approved
of or consented to such recommendation or determination.
Section 11.6. Lender Credit Decision, Etc.
Each Lender expressly acknowledges and agrees that none of the
Administrative Agent, the Arrangers, or any of their respective officers,
directors, employees, agents, counsel, attorneys-in-fact or other affiliates has
made any representations or warranties as to the financial condition,
operations, creditworthiness, solvency or other information concerning the
business or affairs of the Parent, the Borrower, any other Subsidiary or other
Person to such Lender and that no act by the Administrative Agent or either of
the Arrangers hereinafter taken, including any review of the affairs of the
Parent, the Borrower or any other Subsidiary, shall be deemed to constitute any
such representation or warranty by the Administrative Agent or the Arrangers to
any Lender. Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent, either Arranger, any other Lender or
counsel to the Administrative Agent, or any of their respective officers,
directors, employees and agents, and based on the financial statements of the
Parent, the Borrower, the other Subsidiaries or any other Affiliate thereof, and
inquiries of such Persons, its independent due diligence of the business and
affairs of the Parent, the Borrower, the other Subsidiaries and other Persons,
its review of the Loan Documents, the legal opinions required to be delivered to
it hereunder, the advice of its own counsel and such other documents and
information as it has deemed appropriate, made its own credit and legal analysis
and decision to enter into this Agreement and the transactions contemplated
hereby. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent, either Arranger, any other Lender or
counsel to the Administrative Agent or any of their respective officers,
directors, employees and agents, and based on such review, advice, documents and
information as it shall deem appropriate at the time, continue to make its own
decisions in taking or not taking action under the Loan Documents. Except for
notices, reports and other documents and information expressly required to be
furnished to the Lenders by the Administrative Agent or the Arrangers under this
Agreement or any of the other Loan
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Documents, neither the Administrative Agent nor either Arranger shall have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, financial and other
condition or creditworthiness of the Parent, the Borrower, any other Subsidiary
or any other Affiliate thereof which may come into possession of the
Administrative Agent, either Arranger or any of their respective officers,
directors, employees, agents, attorneys-in-fact or other affiliates. Each Lender
acknowledges that the Administrative Agent's legal counsel in connection with
the transactions contemplated by this Agreement is only acting as counsel to the
Administrative Agent and is not acting as counsel to such Lender.
Section 11.7. Indemnification of Administrative Agent and Arrangers.
Each Lender agrees to indemnify each of the Administrative Agent and the
Arrangers (to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so) pro rata in accordance with such Lender's
respective Commitment Percentage, from and against any and all liabilities,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may at any time be imposed
on, incurred by, or asserted against the Administrative Agent or either Arranger
(in its respective capacity as "Administrative Agent" or "Arranger" but not as a
"Lender") in any way relating to or arising out of the Loan Documents, any
transaction contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent or either Arranger under the Loan Documents (collectively,
"Indemnifiable Amounts"); provided, however, that no Lender shall be liable to
-------- -------
the Administrative Agent or an Arranger for any portion of such Indemnifiable
Amounts to the extent found in a final non-appealable judgment by a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the Administrative Agent or such Arranger, as the case may be.
Without limiting the generality of the foregoing, each Lender agrees to
reimburse the Administrative Agent and each Arranger promptly upon demand for
its ratable share of any reasonable out-of-pocket expenses (including counsel
fees of the counsel(s) of the Administrative Agent's own choosing) incurred by
the Administrative Agent in connection with the preparation, execution,
administration, or enforcement of, or legal advice with respect to the rights or
responsibilities of the parties under, the Loan Documents, any suit or action
brought by the Administrative Agent to enforce the terms of the Loan Documents
and/or collect any Obligations, any "lender liability" suit or claim brought
against the Administrative Agent, either Arranger and/or the Lenders, and any
claim or suit brought against the Administrative Agent, either Arranger and/or
the Lenders arising under any Environmental Laws, to the extent that the
Administrative Agent or such Arranger is not reimbursed for such expenses by the
Borrower. Such out-of-pocket expenses (including counsel fees) shall be
advanced by the Lenders on the request of the Administrative Agent
notwithstanding any claim or assertion that the Administrative Agent is not
entitled to indemnification hereunder upon receipt of an undertaking by the
Administrative Agent that the Administrative Agent will reimburse the Lenders if
it is actually and finally determined by a court of competent jurisdiction that
the Administrative Agent is not so entitled to indemnification. The agreements
in this Section shall survive the payment of the Loans and all other amounts
payable hereunder or under the other Loan Documents, the expiration of all
Letters of Credit and the termination of this Agreement. If the Borrower shall
reimburse the Administrative Agent or an Arranger for any Indemnifiable Amount
following payment by any Lender to the Administrative Agent or such Arranger in
respect of such
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Indemnifiable Amount pursuant to this Section, the Administrative Agent or such
Arranger, as the case may be, shall share such reimbursement on a ratable basis
with each Lender making any such payment.
Section 11.8. Successor Administrative Agent.
The Administrative Agent may resign at any time as Administrative Agent
under the Loan Documents by giving written notice thereof to the Lenders and the
Borrower. In the event of a material breach of its duties hereunder, the
Administrative Agent may be removed as Administrative Agent under the Loan
Documents at any time by (a) the Requisite Lenders upon 30-day's prior notice
and (b) all of the Lenders (excluding the Administrative Agent in its capacity
as a Lender) upon 10-day's prior notice. Upon any such resignation or removal,
the Requisite Lenders shall have the right to appoint a successor Administrative
Agent which appointment shall, provided no Default or Event of Default shall
have occurred and be continuing, be subject to the Borrower's approval, which
approval shall not be unreasonably withheld or delayed (except that Borrower
shall, in all events, be deemed to have approved each Lender as a successor
Administrative Agent). If no successor Administrative Agent shall have been so
appointed by the Requisite Lenders, and shall have accepted such appointment,
within 30 days after the resigning Administrative Agent's giving of notice of
resignation or the Requisite Lenders' removal of the resigning Administrative
Agent, then the resigning or removed Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall be a Lender, if
any Lender shall be willing to serve, and otherwise shall be a commercial bank
having total combined assets of at least $50,000,000,000. Upon the acceptance
of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the resigning Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under the Loan Documents.
After any resigning Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article XI. shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under the Loan Documents.
Section 11.9. Titled Parties Have No Duties.
Neither the Arrangers, the Syndication Agent, nor the Documentation Agent
(each in such capacity, a "Titled Party") assumes any responsibility or
obligation hereunder, including, without limitation, for servicing, enforcement
or collection of any of the Loans, nor any duties as an agent hereunder for
Lenders. The titles of "Joint Lead Arranger", "Book Manager", "Syndication
Agent" and "Documentation Agent" are solely honorific and imply no fiduciary
responsibility on the part of the Titled Parties to the Administrative Agent,
the Borrower or any Lender and the use of such titles does not impose on the
Titled Parties any duties or obligations greater than those of any other Lender.
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Article XII. Miscellaneous
Section 12.1. Notices.
Unless otherwise provided herein, communications provided for hereunder
shall be in writing and shall be mailed, telecopied or delivered as follows:
If to the Borrower:
CNL APF Partners, LP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Administrative Agent:
First Union National Bank
First Union Capital Markets Group
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
and
First Union Capital Markets Group
Real Estate Syndications
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to a Lender:
To such Lender's address or telecopy number, as applicable, set forth
on its signature page hereto or in the applicable Assignment and
Acceptance Agreement.
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or, as to each party at such other address as shall be designated by such party
in a written notice to the other parties delivered in compliance with this
Section. All such notices and other communications shall be effective (i) if
mailed, when received; (ii) if telecopied, when transmitted; or (iii) if hand
delivered, when delivered. Notwithstanding the immediately preceding sentence,
all notices or communications to the Administrative Agent or any Lender under
Article II. shall be effective only when actually received. Neither the
Administrative Agent nor any Lender shall incur any liability to the Borrower
(nor shall the Administrative Agent incur any liability to the Lenders) for
acting upon any telephonic notice referred to in this Agreement which the
Administrative Agent or such Lender, as the case may be, believes in good faith
to have been given by a Person authorized to deliver such notice or for
otherwise acting in good faith under hereunder.
Section 12.2. Expenses.
The Borrower agrees (a) to pay or reimburse each of the Administrative
Agent, the Arrangers and the Syndication Agent for all of their reasonable out-
of-pocket costs and expenses incurred in connection with the preparation,
negotiation and execution of, and any amendment, supplement or modification to,
any of the Loan Documents (including without limitation, reasonable due
diligence expenses, and travel expenses relating to closing), and the
consummation of the transactions contemplated thereby, including the reasonable
fees and disbursements of counsel to the Administrative Agent, (b) to pay or
reimburse the Administrative Agent and the Lenders for all their costs and
expenses incurred in connection with the enforcement or preservation of any
rights under the Loan Documents, including the reasonable fees and disbursements
of their respective counsel (including the allocated fees and expenses of in-
house counsel) and any payments in indemnification or otherwise payable by the
Lenders to the Administrative Agent pursuant to the Loan Documents, (c) to pay,
indemnify and hold the Administrative Agent and the Lenders harmless from any
and all recording and filing fees and any and all liabilities with respect to,
or resulting from any failure to pay or delay in paying, documentary, stamp,
excise and other similar taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of any of the Loan
Documents, or consummation of any amendment, supplement or modification of, or
any waiver or consent under or in respect of, any Loan Document and (d) to the
extent not already covered by any of the preceding subsections, to pay or
reimburse the Administrative Agent and the Lenders for all their costs and
expenses incurred in connection with any bankruptcy or other proceeding of the
type described in Sections 10.1.(e) or 10.1.(f), including the reasonable fees
and disbursements of counsel to the Administrative Agent and any Lender, whether
such fees and expenses are incurred prior to, during or after the commencement
of such proceeding or the confirmation or conclusion of any such proceeding.
Section 12.3. Setoff.
Subject to Section 3.3. and in addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
the Administrative Agent, each Lender and each Participant is hereby authorized
by the Borrower, at any time or from time to time during the continuance of an
Event of Default, without prior notice to the Borrower or to any other Person,
any such prior notice being hereby expressly waived, but subject to receipt of
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the Administrative Agent's prior written consent, to set-off and to appropriate
and to apply any and all deposits (general or special, including, but not
limited to, indebtedness evidenced by certificates of deposit, whether matured
or unmatured) and any other indebtedness at any time held or owing by the
Administrative Agent, such Lender or any affiliate of the Administrative Agent
or such Lender, to or for the credit or the account of the Borrower against and
on account of any of the Obligations, irrespective of whether or not any or all
of the Loans and all other Obligations have been declared to be, or have
otherwise become, due and payable as permitted by Section 10.2., and although
such obligations shall be contingent or unmatured. If any Lender or Participant
shall exercise the right of set-off referred to above, such Lender or
Participant shall promptly notify the Borrower, all other Lenders and the
Administrative Agent thereof; provided, however, failure by such Lender or
Participant to give such notice shall not affect the validity of such set-off.
Section 12.4. Waiver of Jury Trial; Arbitration.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN
OR AMONG THE BORROWER, THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS WOULD BE
BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY
AND EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH OF THE LENDERS, THE ADMINISTRATIVE AGENT AND THE BORROWER HEREBY
WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR
NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR
AGAINST ANY PARTY HERETO ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER
BETWEEN OR AMONG THE BORROWER, THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS OF
ANY KIND OR NATURE.
(b) EACH OF THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY
AGREES THAT ANY FEDERAL DISTRICT COURT IN NEW YORK OR, AT THE OPTION OF THE
ADMINISTRATIVE AGENT, ANY STATE COURT LOCATED IN NEW YORK, NEW YORK, SHALL HAVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG THE
BORROWER, THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR
INDIRECTLY TO THIS AGREEMENT, THE LOANS, THE NOTES OR ANY OTHER LOAN DOCUMENT OR
TO ANY MATTER ARISING HEREFROM OR THEREFROM. THE BORROWER AND EACH OF THE
LENDERS EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY
ACTION OR PROCEEDING COMMENCED IN SUCH COURTS. EACH PARTY FURTHER WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME. THE CHOICE
OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING
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OF ANY ACTION BY THE ADMINISTRATIVE AGENT OR ANY LENDER OR THE ENFORCEMENT BY
THE ADMINISTRATIVE AGENT OR ANY LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN
ANY OTHER APPROPRIATE JURISDICTION.
(c) ALL OF THE PARTIES HERETO AGREE THAT UPON DEMAND OF THE ADMINISTRATIVE
AGENT OR ANY LENDER, WHETHER MADE BEFORE OR AFTER INSTITUTION OF ANY JUDICIAL
PROCEEDING, AND SUBJECT TO RECEIPT OF THE PRIOR WRITTEN CONSENT OF THE REQUISITE
LENDERS, ANY CLAIM OR CONTROVERSY ARISING OUT OF, OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENTS ("DISPUTES") BETWEEN OR AMONG THE ADMINISTRATIVE
AGENT OR ANY LENDER ON THE ONE HAND, AND THE BORROWER ON THE OTHER, SHALL BE
RESOLVED BY BINDING ARBITRATION CONDUCTED UNDER AND GOVERNED BY THE COMMERCIAL
FINANCIAL DISPUTES ARBITRATION RULES (THE "ARBITRATION RULES") OF THE AMERICAN
ARBITRATION ASSOCIATION (THE "AAA") AND THE FEDERAL ARBITRATION ACT. DISPUTES
MAY INCLUDE, WITHOUT LIMITATION, TORT CLAIMS, COUNTERCLAIMS, DISPUTES AS TO
WHETHER A MATTER IS SUBJECT TO ARBITRATION, CLAIMS BROUGHT AS CLASS ACTIONS, AND
CLAIMS ARISING FROM LOAN DOCUMENTS EXECUTED IN THE FUTURE. A JUDGMENT UPON THE
AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. NOTWITHSTANDING THE
FOREGOING, THIS ARBITRATION PROVISION DOES NOT APPLY TO DISPUTES UNDER OR
RELATED TO HEDGE AGREEMENTS TO WHICH ANY LENDER IS A PARTY. ALL ARBITRATION
HEARINGS SHALL BE CONDUCTED IN NEW YORK, NEW YORK. A HEARING SHALL BEGIN WITHIN
90 DAYS OF DEMAND FOR ARBITRATION AND ALL HEARINGS SHALL BE CONCLUDED WITHIN 120
DAYS OF DEMAND FOR ARBITRATION. THESE TIME LIMITATIONS MAY NOT BE EXTENDED
UNLESS A PARTY SHOWS CAUSE FOR EXTENSION AND THEN NO MORE THAN A TOTAL EXTENSION
OF 60 DAYS. THE EXPEDITED PROCEDURES SET FORTH IN RULE 51 ET. SEQ. OF THE
ARBITRATION RULES SHALL BE APPLICABLE TO CLAIMS OF LESS THAN $1,000,000.
ARBITRATORS SHALL BE LICENSED ATTORNEYS SELECTED FROM THE COMMERCIAL FINANCIAL
DISPUTE ARBITRATION PANEL OF THE AAA. THE PARTIES DO NOT WAIVE ANY APPLICABLE
LAWS EXCEPT AS PROVIDED HEREIN. NOTWITHSTANDING THE PRECEDING BINDING
ARBITRATION PROVISIONS, THE PARTIES AGREE TO PRESERVE, WITHOUT DIMINUTION, THE
FOLLOWING REMEDIES THAT THE ADMINISTRATIVE AGENT OR THE LENDERS MAY EXERCISE
BEFORE OR AFTER AN ARBITRATION PROCEEDING IS BROUGHT. SUBJECT TO THE OTHER TERMS
HEREOF, THE ADMINISTRATIVE AGENT AND THE LENDERS SHALL HAVE THE RIGHT TO PROCEED
IN ANY COURT OF PROPER JURISDICTION OR BY SELF-HELP TO EXERCISE OR PROSECUTE THE
FOLLOWING REMEDIES, AS APPLICABLE: (I) ALL RIGHTS TO FORECLOSE AGAINST ANY REAL
OR PERSONAL PROPERTY OR OTHER SECURITY BY EXERCISING A POWER OF SALE OR UNDER
APPLICABLE LAW BY JUDICIAL FORECLOSURE INCLUDING A PROCEEDING TO CONFIRM THE
SALE; (II) ALL RIGHTS OF SELF-HELP INCLUDING PEACEFUL OCCUPATION OF
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REAL PROPERTY AND COLLECTION OF RENTS, SET-OFF, AND PEACEFUL POSSESSION OF
PERSONAL PROPERTY; (III) OBTAINING PROVISIONAL OR ANCILLARY REMEDIES INCLUDING
INJUNCTIVE RELIEF, SEQUESTRATION, GARNISHMENT, ATTACHMENT, APPOINTMENT OF
RECEIVER AND FILING AN INVOLUNTARY BANKRUPTCY PROCEEDING; AND (IV) WHEN
APPLICABLE, A JUDGMENT BY CONFESSION OF JUDGMENT. ANY CLAIM OR CONTROVERSY WITH
REGARD TO PARTIES' ENTITLEMENT TO SUCH REMEDIES IS A DISPUTE. THE PARTIES HERETO
ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE IRREVOCABLY WAIVED
ANY RIGHT THEY MAY HAVE TO A JURY TRIAL WITH REGARD TO A DISPUTE.
(d) THE PROVISION OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY WITH
THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES
THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS
PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS AND THE TERMINATION OF THIS
AGREEMENT.
Section 12.5. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
except that the Borrower may not assign or otherwise transfer any of its rights
under this Agreement without the prior written consent of all Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or for the account
of, any of its branch offices or the office of an affiliate of such Lender
except to the extent such transfer would result in increased costs to the
Borrower.
(c) Any Lender may at any time grant to one or more banks or other
financial institutions (each a "Participant") participating interests in its
Commitment or the Obligations owing to such Lender; provided, however, (i) any
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such participating interest must be for a constant and not a varying percentage
interest, (ii) no Lender may grant a participating interest in its Commitment,
or if the Commitments have been terminated, the aggregate outstanding principal
balance of Notes held by it, in an amount less than $10,000,000 and (iii) after
giving effect to any such participation by a Lender, the amount of its
Commitment, or if the Commitments have been terminated, the aggregate
outstanding principal balance of Notes held by it, in which it has not granted
any participating interests must be equal to $10,000,000 and integral multiples
of $5,000,000 in excess thereof. Except as otherwise provided in Section 12.3.,
no Participant shall have any rights or benefits under this Agreement or any
other Loan Document. In the event of any such grant by a Lender of a
participating interest to a Participant, such Lender shall remain responsible
for the performance of its obligations hereunder, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement.
Any agreement pursuant to which any Lender may grant such a participating
interest shall provide that such Lender shall
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retain the sole right and responsibility to enforce the obligations of the
Borrower hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement; provided,
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however, such Lender may agree with the Participant that it will not, without
-------
the consent of the Participant, agree to (i) increase, or extend the term or
extend the time or waive any requirement for the reduction or termination of,
such Lender's Commitment, (ii) extend the date fixed for the payment of
principal of or interest on the Loans or portions thereof owing to such Lender,
(iii) reduce the amount of any such payment of principal, or (iv) reduce the
rate at which interest is payable thereon. An assignment or other transfer which
is not permitted by subsection (d) below shall be given effect for purposes of
this Agreement only to the extent of a participating interest granted in
accordance with this subsection. The selling Lender shall notify the
Administrative Agent and the Borrower of the sale of any participation hereunder
and the terms thereof.
(d) Any Lender may with the prior written consent of the Administrative
Agent and the Borrower (which consent, in each case, shall not be unreasonably
withheld) assign to one or more Eligible Assignees (each an "Assignee") all or a
portion of its Commitment and its other rights and obligations under this
Agreement and the Notes; provided, however, (i) no such consent by the Borrower
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shall be required (x) in the case of any assignment to another Lender or any
affiliate of such Lender or another Lender or (y) if an Event of Default or
Default shall then be existing; (ii) any partial assignment shall be in an
amount at least equal to $10,000,000 and after giving effect to such assignment
the assigning Lender retains a Commitment, or if the Commitments have been
terminated, holds Notes having an aggregate outstanding principal balance, of
$10,000,000 and integral multiples of $5,000,000 in excess thereof; and (iii)
each such assignment shall be effected by means of an Assignment and Acceptance
Agreement. Upon execution and delivery of such instrument and payment by such
Assignee to such transferor Lender of an amount equal to the purchase price
agreed between such transferor Lender and such Assignee, such Assignee shall be
deemed to be a Lender party to this Agreement as of the effective date of the
Assignment and Acceptance Agreement and shall have all the rights and
obligations of a Lender with a Commitment as set forth in such Assignment and
Acceptance Agreement, and the transferor Lender shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection, the transferor Lender, the Administrative Agent and
the Borrower shall make appropriate arrangements so that new Notes are issued to
the Assignee and such transferor Lender, as appropriate. In connection with any
such assignment, the transferor Lender (excluding the Administrative Agent or
either Arranger in their respective capacities as Lenders) shall pay to the
Administrative Agent an administrative fee for processing such assignment in the
amount of $2,500.
(e) The Administrative Agent shall maintain at the Principal Office a copy
of each Assignment and Acceptance Agreement delivered to and accepted by it and
a register for the recordation of the names and addresses of the Lenders and the
Commitment of each Lender from time to time (the "Register"). The
Administrative Agent shall give each Lender and the Borrower notice of the
assignment by any Lender of its rights as contemplated by this Section. The
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register
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and copies of each Assignment and Acceptance Agreement shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice to the Administrative Agent. Upon its receipt
of an Assignment and Acceptance Agreement executed by an assigning Lender,
together with each Note subject to such assignment, the Administrative Agent
shall, if such Assignment and Acceptance Agreement has been completed and if the
Administrative Agent receives the processing and recording fee described in
subsection (d) above, (i) accept such Assignment and Acceptance Agreement, (ii)
record the information contained therein in the Register and (iii) give prompt
notice thereof to the Borrower.
(f) In addition to the assignments and participations permitted under the
foregoing provisions of this Section, any Lender may assign and pledge all or
any portion of its Loans and its Notes to any Federal Reserve Bank as collateral
security pursuant to Regulation A and any Operating Circular issued by such
Federal Reserve Bank, and such Loans and Notes shall be fully transferable as
provided therein. No such assignment shall release the assigning Lender from
its obligations hereunder.
(g) A Lender may furnish any information concerning the Borrower or any
Subsidiary in the possession of such Lender from time to time to Assignees and
Participants (including prospective Assignees and Participants) subject to
compliance with Section 12.8.
(h) Anything in this Section to the contrary notwithstanding, no Lender
may assign or participate any interest in any Loan held by it hereunder to the
Borrower, any Subsidiary or any of their respective Affiliates.
(i) Each Lender agrees that, without the prior written consent of the
Borrower and the Administrative Agent, it will not make any assignment hereunder
in any manner or under any circumstances that would require registration or
qualification of, or filings in respect of, any Loan or Note under the
Securities Act or any other securities laws United States of America or of any
other jurisdiction.
Section 12.6. Amendments.
Except as otherwise expressly provided in this Agreement, any consent or
approval required or permitted by this Agreement or in any Loan Document to be
given by the Lenders may be given, and any term of this Agreement or of any
other Loan Document may be amended, and the performance or observance by the
Borrower or any other Loan Party of any terms of this Agreement or such other
Loan Document or the continuance of any Default or Event of Default may be
waived (either generally or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of the Requisite Lenders
(and, in the case of an amendment to any Loan Document, the written consent of
each Loan Party that is a party to such Loan Document). Notwithstanding the
foregoing, no amendment, waiver or consent shall, unless in writing, and signed
by all of the Lenders (or the Administrative Agent at the written direction of
all of the Lenders), do any of the following: (i) increase the Commitments of
the Lenders (except as permitted under Section 2.11.) or subject the Lenders to
any additional obligations; (ii) reduce the principal of, or interest rates that
have accrued or that will be charged
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on the outstanding principal amount of, any Loans or other Obligations; (iii)
reduce the amount of any Fees payable hereunder; (iv) postpone any date fixed
for any payment of any principal of, interest on, or Fees with respect to, any
Loans or any other Obligations; (v) change the Commitment Percentages (other
than changes resulting from an increase in the aggregate amount of Commitments
as permitted under Section 2.11.); (vi) amend this Section or amend the
definitions of the terms used in this Agreement or the other Loan Documents
insofar as such definitions affect the substance of this Section; (vii) release
any Guarantor from its obligations under the Guaranty; (viii) modify the
definition of the term "Requisite Lenders" or modify in any other manner the
number or percentage of the Lenders required to make any determinations or waive
any rights hereunder or to modify any provision hereof; (ix) modify the terms
of, or waive the Parent's or the Borrower's compliance with (or any Default or
Event of Default resulting from a violation of), Section 9.1.(d) and (xi) modify
the pro rata provisions of Section 3.2. In addition, the definition of
Unencumbered Asset Value (and the definitions used in such definition and the
percentages and rates used in the calculation thereof) may not be amended
without the written consent of all of the Lenders. Further, no amendment, waiver
or consent unless in writing and signed by the Administrative Agent, in addition
to the Lenders required hereinabove to take such action, shall affect the rights
or duties of the Administrative Agent under this Agreement or any of the other
Loan Documents. No waiver shall extend to or affect any obligation not expressly
waived or impair any right consequent thereon and any amendment, waiver or
consent shall be effective only in the specific instance and for the specific
purpose set forth therein. No course of dealing or delay or omission on the part
of the Administrative Agent or any Lender in exercising any right shall operate
as a waiver thereof or otherwise be prejudicial thereto. Except as otherwise
explicitly provided for herein or in any other Loan Document, no notice to or
demand upon the Borrower or any other Loan Party shall entitle the Borrower or
any other Loan Party to other or further notice or demand in similar or other
circumstances.
Section 12.7. Nonliability of Administrative Agent and Lenders.
The relationship between the Borrower, on the one hand, and the Lenders and
the Administrative Agent, on the other hand, shall be solely that of borrower
and lender. Neither the Administrative Agent nor any Lender shall have any
fiduciary responsibilities to the Borrower and no provision in this Agreement or
in any of the other Loan Documents, and no course of dealing between or among
any of the parties hereto, shall be deemed to create any fiduciary duty owing by
the Administrative Agent or any other Lender to any other Lender, the Parent,
the Borrower or any other Subsidiary. Neither the Administrative Agent nor any
Lender undertakes any responsibility to the Borrower or any other Loan Party to
review or inform the Borrower or any other Loan Party of any matter in
connection with any phase of the Borrower's business or operations.
Section 12.8. Confidentiality.
Except as otherwise provided by Applicable Law, the Administrative Agent
and each Lender shall utilize all non-public information obtained pursuant to
the requirements of this Agreement which has been identified as confidential or
proprietary by the Borrower in accordance with the customary procedure of the
Administrative Agent or such Lender, as the case may be, for handling
confidential information of this nature and in accordance with safe and sound
banking
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practices but in any event may make disclosure: (a) to any of their respective
affiliates (provided they shall agree to keep such information confidential in
accordance with the terms of this Section); (b) as reasonably required by any
bona fide Assignee, Participant or other transferee in connection with the
contemplated transfer of any Commitment or participations therein as permitted
hereunder (provided they shall agree to keep such information confidential in
accordance with the terms of this Section); (c) as required by any Governmental
Authority or representative thereof or pursuant to legal process; (d) to the
Administrative Agent's or such Lender's independent auditors and other
professional advisors (provided they shall be notified of the confidential
nature of the information); (e) after the happening and during the continuance
of an Event of Default, to any other Person, in connection with the exercise by
the Administrative Agent or the Lenders of rights hereunder or under any of the
other Loan Documents and (f) as necessary or appropriate in any Lender's
reasonable judgment.
Section 12.9. Indemnification.
(a) The Borrower shall and hereby agrees to indemnify, defend and hold
harmless the Administrative Agent, the Arrangers, each affiliate of the
Administrative Agent or either Arranger, and each of the Lenders and their
respective directors, officers, shareholders, agents, employees and counsel
(each referred to herein as an "Indemnified Party") from and against any and all
losses, costs, claims, damages, liabilities, deficiencies, judgments or expenses
of every kind and nature (including, without limitation, amounts paid in
settlement, court costs and the fees and disbursements of counsel incurred in
connection with any litigation, investigation, claim or proceeding or any advice
rendered in connection therewith) (the foregoing items referred to herein as
"Claims and Expenses") incurred by an Indemnified Party in connection with,
arising out of, or by reason of, any suit, cause of action, claim, arbitration,
investigation or settlement, consent decree or other proceeding (the foregoing
referred to herein as an "Indemnity Proceeding") which is in any way related
directly or indirectly to: (i) this Agreement or any other Loan Document or the
transactions contemplated thereby; (ii) the making of any Loans and the issuance
of any Letters of Credit hereunder; (iii) any actual or proposed use by the
Borrower of the proceeds of the Loans or the Letters of Credit; (iv) the
Administrative Agent's, either Arranger's or any Lender's entering into this
Agreement; (v) the fact that the Administrative Agent and the Lenders have
established the credit facility evidenced hereby in favor of the Borrower; (vi)
the fact that the Administrative Agent and the Lenders are creditors of the
Borrower and have or are alleged to have information regarding the financial
condition, strategic plans or business operations of the Parent, the Borrower
and the other Subsidiaries; (vii) the fact that the Administrative Agent and the
Lenders are material creditors of the Borrower and are alleged to influence
directly or indirectly the business decisions or affairs of the Parent, the
Borrower and the other Subsidiaries or their financial condition; (viii) the
exercise of any right or remedy the Administrative Agent, the Arrangers or the
Lenders may have under this Agreement or the other Loan Documents; (ix) any
violation or non-compliance by the Parent, the Borrower or any other Subsidiary
of any Applicable Law (including any Environmental Law) including, but not
limited to, any Indemnity Proceeding commenced by (A) the Internal Revenue
Service or state taxing authority or (B) any Governmental Authority or other
Person under any Environmental Law, including any Indemnity Proceeding commenced
by a Governmental Authority or other Person seeking remedial or other action to
cause the Parent, the Borrower or the other
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Subsidiaries (or its respective properties) (or the Administrative Agent and/or
the Lenders as successors to any such Loan Party) to be in compliance with such
Environmental Laws; provided, however, that the Borrower shall not be obligated
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to indemnify any Indemnified Party for any Claims and Expenses in connection
with, arising out of, or by reason of any acts or omissions of such Indemnified
Party in connection with matters described in the immediately preceding clause
(i) or (viii) to the extent such acts or omissions have been found in a final
non-appealable judgment by a court of competent jurisdiction to constitute gross
negligence or willful misconduct.
(b) The Borrower's indemnification obligations under this Section shall
apply to all Indemnity Proceedings arising out of, or related to, the foregoing
whether or not an Indemnified Party is a named party in such Indemnity
Proceeding. In this connection, this indemnification shall cover all reasonable
costs and expenses of any Indemnified Party in connection with any deposition of
any Indemnified Party or compliance with any subpoena (including any subpoena
requesting the production of documents). This indemnification shall, among
other things, apply to any Indemnity Proceeding commenced by other creditors of
the Parent, the Borrower or any other Subsidiary, any shareholder of the Parent,
the Borrower or any other Subsidiary (whether such shareholder(s) are
prosecuting such Indemnity Proceeding in their individual capacity or
derivatively on behalf of the Borrower or the Parent), any account debtor of the
Parent, the Borrower or any other Subsidiary or by any Governmental Authority.
This indemnification shall apply to any Indemnity Proceeding arising during the
pendency of any bankruptcy proceeding filed by or against the Parent, the
Borrower and/or any other Subsidiary.
(c) All out-of-pocket fees and expenses of, and all amounts paid to third-
persons by, an Indemnified Party shall be advanced by the Borrower at the
request of such Indemnified Party notwithstanding any claim or assertion by the
Borrower that such Indemnified Party is not entitled to indemnification
hereunder upon receipt of an undertaking by such Indemnified Party that such
Indemnified Party will reimburse the Borrower if it is actually and finally
determined by a court of competent jurisdiction that such Indemnified Party is
not so entitled to indemnification hereunder.
(d) An Indemnified Party may conduct its own investigation and defense of,
and may formulate its own strategy with respect to, any Indemnified Proceeding
covered by this Section and, as provided above, all costs and expenses incurred
by the Indemnified Party shall be reimbursed by the Borrower. No action taken
by legal counsel chosen by an Indemnified Party in investigating or defending
against any such Indemnified Proceeding shall vitiate or in any way impair the
obligations and duties of the Borrower hereunder to indemnify and hold harmless
each such Indemnified Party; provided, however, that (i) if the Borrower is
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required to indemnify an Indemnified Party pursuant hereto and (ii) the Borrower
has provided evidence reasonably satisfactory to such Indemnified Party that the
Borrower has the financial wherewithal to reimburse such Indemnified Party for
any amount paid by such Indemnified Party with respect to such Indemnified
Proceeding, such Indemnified Party shall not settle or compromise any such
Indemnified Proceeding without the prior written consent of the Borrower (which
consent shall not be unreasonably withheld or delayed).
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(e) If and to the extent that the obligations of the Borrower hereunder
are unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under Applicable Law. The Borrower's obligations hereunder shall
survive any termination of this Agreement and the other Loan Documents and the
payment in full of the Obligations, and are in addition to, and not in
substitution of, any other of its obligations set forth in this Agreement or any
other Loan Document to which it is a party.
Section 12.10. Termination; Survival.
At such time as (a) all of the Commitments have been terminated, (b) none
of the Lenders is obligated any longer under this Agreement to make any Loans,
(c) the Administrative Agent is no longer obligated under this Agreement to
issue any Letters of Credit, (d) no Letters of Credit remain outstanding, and
(e) all Obligations (other than obligations which survive as provided in the
following sentence) have been paid and satisfied in full, this Agreement shall
terminate. Notwithstanding any termination of this Agreement, or of the other
Loan Documents, the indemnities to which the Administrative Agent, the Arrangers
and the Lenders are entitled under the provisions of Sections 11.7., 12.2. and
12.9. and any other provision of this Agreement and the other Loan Documents,
and the waivers of jury trial, agreement regarding arbitration and submission to
jurisdictions contained in Section 12.4., shall continue in full force and
effect and shall protect the Administrative Agent, the Arrangers and the Lenders
against events arising after such termination as well as before.
Section 12.11. Severability of Provisions.
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 12.12. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
Section 12.13. Counterparts.
This Agreement and any amendments, waivers, consents or supplements may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all of which counterparts together shall constitute but
one and the same instrument.
-98-
Section 12.14. Limitation of Liability.
To the maximum extent permitted by Applicable Law, none of the
Administrative Agent, either Arranger, any Lender, or any affiliate, officer,
director, employee, attorney, or agent of the Administrative Agent, either
Arranger or any Lender, shall have any liability with respect to, and each of
the Parent and the Borrower hereby waives, releases, and agrees not to ▇▇▇ any
of them upon, any claim for any special, indirect, incidental, or consequential
damages suffered or incurred by the Borrower or the Parent in connection with,
arising out of, or in any way related to, this Agreement or any of the other
Loan Documents, or any of the transactions contemplated by this Agreement or any
of the other Loan Documents. Each of the Parent and the Borrower hereby waives,
releases, and agrees not to ▇▇▇ the Administrative Agent, either Arranger or any
Lender or any of their respective affiliates, officers, directors, employees,
attorneys, or agents for punitive damages in respect of any claim in connection
with, arising out of, or in any way related to, this Agreement or any of the
other Loan Documents, or any of the transactions contemplated by this Agreement
or financed hereby.
Section 12.15. Obligations with Respect to Loan Parties.
The obligations of the Parent or the Borrower to direct or prohibit the
taking of certain actions by the any other Loan Party as specified herein shall
be absolute and not subject to any defense to the effect that the Parent or the
Borrower, as the case may be, does not control such Loan Party.
Section 12.16. Entire Agreement.
This Agreement, the Notes, and the other Loan Documents referred to herein
embody the final, entire agreement among the parties hereto and supersede any
and all prior commitments, agreements, representations, and understandings,
whether written or oral, relating to the subject matter hereof and may not be
contradicted or varied by evidence of prior, contemporaneous, or subsequent oral
agreements or discussions of the parties hereto.
Section 12.17. Construction.
The Administrative Agent, the Parent, the Borrower and each Lender
acknowledge that each of them has had the benefit of legal counsel of its own
choice and has been afforded an opportunity to review this Agreement and the
other Loan Documents with its legal counsel and that this Agreement and the
other Loan Documents shall be construed as if jointly drafted by the
Administrative Agent, the Borrower and each Lender.
Section 12.18. Limitation of Liability of Officers, Directors, Etc.
THE ADMINISTRATIVE AGENT AND THE LENDERS SHALL LOOK SOLELY TO THE BORROWER
AND THE GUARANTORS FOR THE ENFORCEMENT OF ANY CLAIM AGAINST THE BORROWER AND
ACCORDINGLY NONE OF THE OFFICERS, DIRECTORS, EMPLOYEES OR SHAREHOLDERS OF THE
BORROWER OR THE PARENT SHALL HAVE ANY PERSONAL LIABILITY FOR OBLIGATIONS ENTERED
-99-
INTO BY OR ON BEHALF OF THE BORROWER EXCEPT AS ANY SUCH PERSON MAY AGREE
OTHERWISE IN WRITING.
Section 12.19. No Novation.
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 THE BORROWER UNDER OR IN
CONNECTION WITH THE EXISTING CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
(AS DEFINED IN THE EXISTING CREDIT AGREEMENT).
[Signatures on Following Pages]
-100-
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be executed by their authorized officers all as of
the day and year first above written.
BORROWER:
CNL APF PARTNERS, LP
By: CNL APF GP Corp., its sole general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------
Name: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------
Title: CHIEF FINANCIAL OFFICER
-----------------------
PARENT:
CNL AMERICAN PROPERTIES FUND, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------
Name: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------
Title: CHIEF FINANCIAL OFFICER
-----------------------
[Signatures Continued on Next Page]
[Signature Page to Amended and Restated Credit Agreement dated as of
June 9, 1999 with CNL APF Partners, LP]
FIRST UNION NATIONAL BANK, as
Administrative Agent and Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇
---------------
Name: /s/ ▇▇▇ ▇. ▇▇▇▇
---------------
Title: Vice President
--------------
Commitment Amount:
$52,500,000
Lending Office (all Types of Loans):
First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Following Page]
[Signature Page to Amended and Restated Credit Agreement dated as of
June 9, 1999 with CNL APF Partners, LP]
NATIONSBANK, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Title: PRINCIPAL
---------------------
Commitment Amount:
$52,500,000
Lending Office (all Types of Loans):
NationsBank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Following Page]
[Signature Page to Amended and Restated Credit Agreement dated as of
June 9, 1999 with CNL APF Partners, LP]
AMSOUTH BANK
By: /s/ ▇▇▇▇▇ Coffee
Name: ▇▇▇▇▇ Coffee
Title: Sr. Vice-President
Commitment Amount:
$30,000,000
Lending Office (all Types of Loans):
AmSouth Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Following Page]
[Signature Page to Amended and Restated Credit Agreement dated as of
June 9, 1999 with CNL APF Partners, LP]
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------
Name: /s/ ▇▇▇▇▇ ▇▇▇▇
---------------------------
Title: Vice President
--------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Title: Executive Vice President
-------------------------
Commitment Amount:
$30,000,000
Lending Office (all Types of Loans):
Bank Austria Creditanstalt Corporate
Finance, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇
Loan
Administrator
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Notices:
Bank Austria Creditanstalt Corporate
Finance, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Following Page]
[Signature Page to Amended and Restated Credit Agreement dated as of
June 9, 1999 with CNL APF Partners, LP]
THE CHASE MANHATTAN BANK
By: /s/ ▇ ▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Title: Managing Director
--------------------------
Commitment Amount:
$30,000,000
Lending Office (all Types of Loans):
The Chase Manhattan Bank
1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Assistant Treasurer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Notices:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Managing Director
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Following Page]
[Signature Page to Amended and Restated Credit Agreement dated as of
June 9, 1999 with CNL APF Partners, LP]
SUNTRUST BANK, CENTRAL
FLORIDA, N.A.
By: /s/ [SIGNATURE ILLEGIBLE]^^
---------------------------
Name: /s/ ▇▇▇▇▇ ▇. EDGE
-----------------------
Title: Vice President
----------------------
Commitment Amount:
$25,000,000
Lending Office (all Types of Loans):
SunTrust Bank, Central Florida, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ III
First Vice President
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
[Signatures Continued on Following Page]
[Signature Page to Amended and Restated Credit Agreement dated as of
June 9, 1999 with CNL APF Partners, LP]
CITIZENS BANK OF RHODE ISLAND
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
---------------------------
Title: VICE PRESIDENT
--------------------------
Commitment Amount:
$20,000,000
Lending Office (all Types of Loans):
Citizens Bank of Rhode Island
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇-▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
CRE Administration Manager
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Address for Notices:
Citizens Bank of Rhode Island
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇-▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Vice President
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
[Signatures Continued on Following Page]
[Signature Page to Amended and Restated Credit Agreement dated as of
June 9, 1999 with CNL APF Partners, LP]
COMPASS BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
----------------------
Title: SVP
---------------------
Commitment Amount:
$20,000,000
Lending Office (all Types of Loans):
Compass Bank
▇▇ ▇▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Senior Vice President
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
[Signatures Continued on Following Page]
[Signature Page to Amended and Restated Credit Agreement dated as of
June 9, 1999 with CNL APF Partners, LP]
THE HUNTINGTON NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Name: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------
Title: VICE PRESIDENT
---------------------
Commitment Amount:
$20,000,000
Lending Office (all Types of Loans):
The Huntington National Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Account Relationship Associate
Telecopier: 407-774-8267
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Address for Notices:
The Huntington National Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
Telecopier: 407-774-8267
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
[Signatures Continued on Following Page]
[Signature Page to Amended and Restated Credit Agreement dated as of
June 9, 1999 with CNL APF Partners, LP]
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH
By: /s/ ▇▇▇ ▇▇▇▇▇
----------------------------
Name: /s/ ▇▇▇ ▇▇▇▇▇
-----------------------
Title: Senior Credit Officer
----------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------
Name: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------
Title: Vice President
----------------------
Commitment Amount:
$10,000,000
Lending Office (all Types of Loans):
Rabobank Nederland New York Branch
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Services
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
` Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Notices:
Rabobank International
One Atlantic Center, Suite 3450
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
[Signature Page to Amended and Restated Credit Agreement dated as of
June 9, 1999 with CNL APF Partners, LP]
SOUTHTRUST BANK, NATIONAL
ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇
-------------------------
Name: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇
---------------------
Title: V P
--------------------
Commitment Amount:
$10,000,000
Lending Office (all Types of Loans):
SouthTrust Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Banking (St. Petersburg)
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
EXHIBIT A
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
THIS ASSIGNMENT AND ACCEPTANCE AGREEMENT dated as of ___________,
_____ (the "Agreement") by and among _________________________ (the "Assignor"),
_________________________ (the "Assignee"), and FIRST UNION NATIONAL BANK, as
Administrative Agent (the "Administrative Agent").
WHEREAS, the Assignor is a Lender under that certain Amended and
Restated Credit Agreement dated as of June 9, 1999 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
by and among CNL APF Partners, LP (the "Borrower"), CNL American Properties
Fund, Inc., the financial institutions party thereto and their assignees under
Section 12.5.(d) thereof (the "Lenders"), each of First Union Capital Markets
Group and Banc of America Securities LLC, as Joint Lead Arrangers and Book
Managers, NationsBank, N.A., as Syndication Agent, The Chase Manhattan Bank, as
Documentation Agent, and the Administrative Agent;
WHEREAS, the Assignor desires to assign to the Assignee all or a
portion of the Assignor's Commitment under the Credit Agreement, all on the
terms and conditions set forth herein;
WHEREAS, [the Borrower and] the Administrative Agent consent[s] to
such assignment on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged by the parties hereto, the parties
hereto hereby agree as follows:
Section 1. Assignment.
----------
(a) Subject to the terms and conditions of this Agreement and in
consideration of the payment to be made by the Assignee to the Assignor pursuant
to Section 2 of this Agreement, effective as of ____________, _____ (the
"Assignment Date"), the Assignor hereby irrevocably sells, transfers and assigns
to the Assignee, without recourse, a $__________ interest in and to the
Assignor's Commitment (the "Assigned Commitment") and all of the other rights
and obligations of the Assignor under the Credit Agreement, such Assignor's
Revolving Note and the other Loan Documents (representing ______% in respect of
the aggregate amount of all Lenders' Commitments), including without limitation,
a principal amount of outstanding Revolving Loans equal to $_________ and all
voting rights of the Assignor, associated with the Assigned Commitment, all
rights to receive interest on such amount of Loans and all commitment and other
Fees with respect to the Assigned Commitment and other rights of the Assignor
under the Credit Agreement and the other Loan Documents with respect to the
Assigned Commitment, all as if the Assignee were an original Lender under and
signatory to the Credit Agreement having a Commitment equal to the amount of the
Assigned Commitment. The Assignee, subject to the terms and conditions hereof,
hereby assumes all obligations of the Assignor with respect to the
A-1
Assigned Commitment as if the Assignee were an original Lender under and
signatory to the Credit Agreement having a Commitment equal to the Assigned
Commitment, which obligations shall include, but shall not be limited to, the
obligation of the Assignor to make Revolving Loans to the Borrower with respect
to the Assigned Commitment and the obligation to indemnify the Administrative
Agent as provided therein (the foregoing enumerated obligations, together with
all other similar obligations more particularly set forth in the Credit
Agreement and the other Loan Documents, shall be referred to hereinafter,
collectively, as the "Assigned Obligations"). The Assignor shall have no further
duties or obligations with respect to, and shall have no further interest in,
the Assigned Obligations or the Assigned Commitment from and after the
Assignment Date.
(b) The assignment by the Assignor to the Assignee hereunder is
without recourse to the Assignor. The Assignee makes and confirms to the
Administrative Agent, the Assignor, the Arrangers and the other Lenders all of
the representations, warranties and covenants of a Lender under Article XI. of
the Credit Agreement. Not in limitation of the foregoing, the Assignee
acknowledges and agrees that, except as set forth in Section 4 below, the
Assignor is making no representations or warranties with respect to, and the
Assignee hereby releases and discharges the Assignor for any responsibility or
liability for: (i) the present or future solvency or financial condition of the
Borrower or any other loan party, (ii) any representations, warranties,
statements or information made or furnished by the Borrower or any other Loan
Party in connection with the Credit Agreement or otherwise, (iii) the validity,
efficacy, sufficiency, or enforceability of the Credit Agreement, any Loan
Document or any other document or instrument executed in connection therewith,
or the collectibility of the Assigned Obligations, (iv) the perfection, priority
or validity of any Lien with respect to any collateral at any time securing the
Obligations or the Assigned Obligations under the Notes or the Credit Agreement
and (v) the performance or failure to perform by the Borrower or any other Loan
Party of any obligation under the Credit Agreement or any other Loan Document to
which it is a party. Further, the Assignee acknowledges that it has,
independently and without reliance upon the Administrative Agent, or on any
affiliate or subsidiary thereof, either Arranger, or any other Lender and based
on the financial statements supplied by the Borrower and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to become a Lender under the Credit Agreement. The Assignee also
acknowledges that it will, independently and without reliance upon the
Administrative Agent, either Arranger, or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement or any Note or pursuant to any other obligation. Except as expressly
provided in the Credit Agreement, the Administrative Agent shall have no duty or
responsibility whatsoever, either initially or on a continuing basis, to provide
the Assignee with any credit or other information with respect to the Borrower
or to notify the Assignee of any Default or Event of Default. The Assignee has
not relied on the Administrative Agent as to any legal or factual matter in
connection therewith or in connection with the transactions contemplated
thereunder.
Section 2. Payment by Assignee. In consideration of the assignment
-------------------
made pursuant to Section 1 of this Agreement, the Assignee agrees to pay to the
Assignor on the Assignment Date, an amount equal to $_________ representing (i)
the aggregate principal amount outstanding of
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the Revolving Loans owing to the Assignor under the Credit Agreement and the
other Loan Documents being assigned hereby plus (ii) the aggregate amount of
payments previously made by Assignor under Section 2.9(j) of the Credit
Agreement which have not been repaid and which are being assigned hereby.
Section 3. Payments by Assignor. The Assignor agrees to pay to the
--------------------
Administrative Agent on the Assignment Date the administration fee, if any,
payable under the applicable provisions of the Credit Agreement.
Section 4. Representations and Warranties of Assignor. The Assignor
------------------------------------------
hereby represents and warrants to the Assignee that (a) as of the Assignment
Date (i) the Assignor is a Lender under the Credit Agreement having a Commitment
under the Credit Agreement (without reduction by any assignments thereof which
have not yet become effective), equal to $____________, and that the Assignor is
not in default of its obligations under the Credit Agreement; and (ii) the
outstanding balance of Revolving Loans owing to the Assignor (without reduction
by any assignments thereof which have not yet become effective) is
$____________; and (b) it is the legal and beneficial owner of the Assigned
Commitment which is free and clear of any adverse claim created by the Assignor.
Section 5. Representations, Warranties and Agreements of Assignee.
------------------------------------------------------
The Assignee (a) represents and warrants that it is (i) legally authorized to
enter into this Agreement and (ii) an "accredited investor" (as such term is
used in Regulation D of the Securities Act) and an Eligible Assignee; (b)
confirms that it has received a copy of the Credit Agreement, together with
copies of the most recent financial statements delivered pursuant thereto and
such other documents and information (including without limitation the Loan
Documents) as it has deemed appropriate to make its own credit analysis and
decision to enter into this Agreement; (c) appoints and authorizes the
Administrative Agent to take such action as contractual representative on its
behalf and to exercise such powers under the Loan Documents as are delegated to
the Administrative Agent by the terms thereof together with such powers as are
reasonably incidental thereto; and (d) agrees that it will become a party to and
shall be bound by the Credit Agreement, the other Loan Documents to which the
other Lenders are a party on the Assignment Date and will perform in accordance
therewith all of the obligations which are required to be performed by it as a
Lender.
Section 6. Recording and Acknowledgment by the Administrative Agent.
--------------------------------------------------------
Following the execution of this Agreement, the Assignor will deliver to the
Administrative Agent (a) a duly executed copy of this Agreement for
acknowledgment and recording by the Administrative Agent and (b) the Assignor's
Revolving Note. The Borrower agrees to exchange such Note for a new Note as
provided in Section 12.5.(d) of the Credit Agreement. Upon such acknowledgment
and recording, from and after the Assignment Date, the Administrative Agent
shall make all payments in respect of the interest assigned hereby (including
payments of principal, interest, Fees and other amounts) to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in payments under
the Credit Agreement for periods prior to the Assignment Date directly between
themselves.
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Section 7. Addresses. The Assignee specifies as its address for
---------
notices and its Lending Office for all Loans, the offices set forth below:
Notice Address:
_______________________
_______________________
_______________________
Telephone No.: ________
Telecopy No.: _________
Domestic Lending Office:
_______________________
_______________________
_______________________
Telephone No.: ________
Telecopy No.: _________
LIBOR Lending Office:
_______________________
_______________________
_______________________
Telephone No.: ________
Telecopy No.: _________
Section 8. Payment Instructions. All payments to be made to the Assignee
--------------------
under this Agreement by the Assignor, and all payments to be made to the
Assignee under the Credit Agreement, shall be made as provided in the Credit
Agreement in accordance with the following instructions:
_______________________
_______________________
Section 9. Effectiveness of Assignment. This Agreement, and the
---------------------------
assignment and assumption contemplated herein, shall not be effective until (a)
this Agreement is executed and delivered by each of the Assignor, the Assignee,
the Administrative Agent, and if required under Section 12.5.(d) of the Credit
Agreement, the Borrower, and (b) the payment to the Assignor of the amounts, if
any, owing by the Assignee pursuant to Section 2 hereof and (c) the payment to
the Administrative Agent of the amounts owing by the Assignor pursuant to
Section 3 hereof. Upon recording and acknowledgment of this Agreement by the
Administrative Agent, from and after the Assignment Date, (i) the Assignee shall
be a party to the Credit Agreement and, to the extent provided in this
Agreement, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent provided in this Agreement, relinquish its rights
and be released from its obligations under the Credit Agreement; provided,
--------
however, that if the Assignor does not assign its entire interest under the Loan
-------
Documents, it shall remain a Lender entitled to all of the benefits and subject
to all of the obligations thereunder with respect to its Commitment.
Section 10. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
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APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 11. Counterparts. This Agreement may be executed in any number of
------------
counterparts each of which, when taken together, shall constitute one and the
same agreement.
Section 12. Headings. Section headings have been inserted herein for
--------
convenience only and shall not be construed to be a part hereof.
Section 13. Amendments; Waivers. This Agreement may not be amended,
-------------------
changed, waived or modified except by a writing executed by the Assignee and the
Assignor; provided, however, any amendment, waiver or consent which shall affect
-------- -------
the rights or duties of the Administrative Agent under this Agreement shall not
be effective unless signed by the Administrative Agent.
Section 14. Entire Agreement. This Agreement embodies the entire
----------------
agreement between the Assignor and the Assignee with respect to the subject
matter hereof and supersedes all other prior arrangements and understandings
relating to the subject matter hereof.
Section 15. Binding Effect. This Agreement shall be binding upon and
--------------
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
Section 16. Definitions. Terms not otherwise defined herein are used
-----------
herein with the respective meanings given them in the Credit Agreement.
[Include this Section only if Borrower's consent is required under Section
12.5.(d) Section 17. Agreements of the Borrower. The Borrower hereby agrees
--------------------------
that the Assignee shall be a Lender under the Credit Agreement having a
Commitment equal to the Assigned Commitment. The Borrower agrees that the
Assignee shall have all of the rights and remedies of a Lender under the Credit
Agreement and the other Loan Documents as if the Assignee were an original
Lender under and signatory to the Credit Agreement, including, but not limited
to, the right of a Lender to receive payments of principal and interest with
respect to the Assigned Obligations, and to the Revolving Loans made by the
Lenders after the date hereof and to receive the commitment and other Fees
payable to the Lenders as provided in the Credit Agreement. Further, the
Assignee shall be entitled to the indemnification provisions from the Borrower
in favor of the Lenders as provided in the Credit Agreement and the other Loan
Documents. The Borrower further agrees, upon the execution and delivery of this
Agreement, to execute in favor of the Assignee Notes as required by Section
12.5(d) of the Credit Agreement. Upon receipt by the Assignor of the amounts
due the Assignor under Section 2, the Assignor agrees to surrender to the
Borrower such Assignor's Notes.]
[Signatures on Following Pages]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Assignment
and Acceptance Agreement as of the date and year first written above.
ASSIGNOR:
[NAME OF ASSIGNOR]
By:_______________________
Name:__________________
Title:_________________
ASSIGNEE:
[NAME OF ASSIGNEE]
By:_______________________
Name:__________________
Title:_________________
[Include signature of the Borrower only if required under Section 12.5.(d) of
the Credit Agreement]
Agreed and consented to as of the
date first written above.
BORROWER:
CNL APF PARTNERS, LP
By: CNL APF GP Corp., its sole general partner
By:_______________________
Name:___________________
Title:__________________
[Signatures Continued on Following Page]
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Accepted as of the date first written above.
ADMINISTRATIVE AGENT:
FIRST UNION NATIONAL BANK, as
Administrative Agent
By:_______________________
Name:__________________
Title:_________________
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EXHIBIT B
FORM OF GUARANTY
THIS GUARANTY dated as of June 9, 1999, executed and delivered by each of
the undersigned and the other Persons from time to time party hereto pursuant to
the execution and delivery of an Accession Agreement in the form of Annex I
hereto (all of the undersigned, together with such other Persons each a
"Guarantor" and collectively, the "Guarantors") in favor of (a) FIRST UNION
NATIONAL BANK, in its capacity as Administrative Agent (the "Administrative
Agent") for the Lenders under that certain that certain Amended and Restated
Credit Agreement dated as of June 9, 1999 (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), by and among CNL
APF Partners, LP (the "Borrower"), CNL American Properties Fund, Inc., the
financial institutions party thereto and their assignees under Section 12.5.(d)
thereof (the "Lenders"), each of First Union Capital Markets Group and Banc of
America Securities LLC, as Joint Lead Arrangers and Book Managers, NationsBank,
N.A., as Syndication Agent, The Chase Manhattan Bank, as Documentation Agent,
and the Administrative Agent and (b) the Lenders.
WHEREAS, pursuant to the Credit Agreement, the Administrative Agent and the
Lenders have agreed to make available to the Borrower certain financial
accommodations on the terms and conditions set forth in the Credit Agreement;
WHEREAS, the Parent owns, directly or indirectly, all of the issued and
outstanding capital stock of, or other equity interest in, the Borrower and each
other Guarantor;
WHEREAS, the Borrower, the Parent and each of the other Guarantors, though
separate legal entities, are mutually dependent on each other in the conduct of
their respective businesses as an integrated operation and have determined it to
be in their mutual best interests to obtain financing from the Administrative
Agent and the Lenders through their collective efforts;
WHEREAS, each Guarantor acknowledges that it will receive direct and
indirect benefits from the Administrative Agent and the Lenders making such
financial accommodations available to the Borrower under the Credit Agreement
and, accordingly, each Guarantor is willing to guarantee the Borrower's
obligations to the Administrative Agent and the Lenders on the terms and
conditions contained herein; and
WHEREAS, each Guarantor's execution and delivery of this Guaranty is a
condition to the Administrative Agent and the Lenders making such financial
accommodations to the Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each Guarantor, each Guarantor
agrees as follows:
Section 1. Guaranty. Each Guarantor hereby absolutely, irrevocably and
--------
unconditionally guaranties the due and punctual payment and performance when
due, whether at stated maturity,
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by acceleration or otherwise, of all of the following (collectively referred to
as the "Guarantied Obligations"): (a) all indebtedness and obligations owing by
the Borrower to any Lender or the Administrative Agent under or in connection
with the Credit Agreement and any other Loan Document, including without
limitation, the repayment of all principal of the Revolving Loans and the
Reimbursement Obligations, and the payment of all interest, Fees, charges,
attorneys fees and other amounts payable to any Lender or the Administrative
Agent thereunder or in connection therewith; (b) any and all extensions,
renewals, modifications, amendments or substitutions of the foregoing; (c) all
expenses, including, without limitation, reasonable attorneys' fees and
disbursements, that are incurred by the Lenders and the Administrative Agent in
the enforcement of any of the foregoing or any obligation of such Guarantor
hereunder and (d) all other Obligations.
Section 2. Guaranty of Payment and Not of Collection. This Guaranty is a
-----------------------------------------
guaranty of payment, and not of collection, and a debt of each Guarantor for its
own account. Accordingly, neither the Lenders nor the Administrative Agent
shall be obligated or required before enforcing this Guaranty against any
Guarantor: (a) to pursue any right or remedy the Lenders or the Administrative
Agent may have against the Borrower, any other Guarantor or any other Person or
commence any suit or other proceeding against the Borrower, any other Guarantor
or any other Person in any court or other tribunal; (b) to make any claim in a
liquidation or bankruptcy of the Borrower, any other Guarantor or any other
Person; or (c) to make demand of the Borrower, any other Guarantor or any other
Person or to enforce or seek to enforce or realize upon any collateral security
held by the Lenders or the Administrative Agent which may secure any of the
Guarantied Obligations.
Section 3. Guaranty Absolute. Each Guarantor guarantees that the
-----------------
Guarantied Obligations will be paid strictly in accordance with the terms of the
documents evidencing the same, regardless of any Applicable Law now or hereafter
in effect in any jurisdiction affecting any of such terms or the rights of the
Administrative Agent or the Lenders with respect thereto. The liability of each
Guarantor under this Guaranty shall be absolute and unconditional in accordance
with its terms and shall remain in full force and effect without regard to, and
shall not be released, suspended, discharged, terminated or otherwise affected
by, any circumstance or occurrence whatsoever, including without limitation, the
following (whether or not such Guarantor consents thereto or has notice
thereof):
(a) (i) any change in the amount, interest rate or due date or other term
of any of the Guarantied Obligations, (ii) any change in the time, place or
manner of payment of all or any portion of the Guarantied Obligations, (iii) any
amendment or waiver of, or consent to the departure from or other indulgence
with respect to, the Credit Agreement, any other Loan Document, or any other
document or instrument evidencing or relating to any Guarantied Obligations, or
(iv) any waiver, renewal, extension, addition, or supplement to, or deletion
from, or any other action or inaction under or in respect of, the Credit
Agreement, any of the other Loan Documents, or any other documents, instruments
or agreements relating to the Guarantied Obligations or any other instrument or
agreement referred to therein or evidencing any Guarantied Obligations or any
assignment or transfer of any of the foregoing;
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(b) any lack of validity or enforceability of the Credit Agreement, any of
the other Loan Documents, or any other document, instrument or agreement
referred to therein or evidencing any Guarantied Obligations or any assignment
or transfer of any of the foregoing;
(c) any furnishing to the Administrative Agent or the Lenders of any
additional security for the Guarantied Obligations, or any sale, exchange,
release or surrender of, or realization on, any collateral securing any of the
Obligations;
(d) any settlement or compromise of any of the Guarantied Obligations, any
security therefor, or any liability of any other party with respect to the
Guarantied Obligations, or any subordination of the payment of the Guarantied
Obligations to the payment of any other liability of the Borrower or any other
Guarantor;
(e) any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to such Guarantor,
the Borrower, any other Guarantor or any other Person, or any action taken with
respect to this Guaranty by any trustee or receiver, or by any court, in any
such proceeding;
(f) any act or failure to act by the Borrower, any other Guarantor or any
other Person which may adversely affect such Guarantor's subrogation rights, if
any, against the Borrower to recover payments made under this Guaranty;
(g) any nonperfection of any security interest or other Lien on any
collateral, if any, securing in any way any of the Obligations;
(h) any application of sums paid by the Borrower, any other Guarantor or
any other Person with respect to the liabilities of the Borrower to the
Administrative Agent or the Lenders, regardless of what liabilities of the
Borrower remain unpaid;
(i) any defect, limitation or insufficiency in the borrowing powers of the
Borrower or in the exercise thereof; or
(j) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, a Guarantor hereunder (other than indefeasible
payment in full).
Section 4. Action with Respect to Guarantied Obligations. The Lenders and
---------------------------------------------
the Administrative Agent may, at any time and from time to time, without the
consent of, or notice to, any Guarantor, and without discharging any Guarantor
from its obligations hereunder take any and all actions described in Section 3
and may otherwise: (a) amend, modify, alter or supplement the terms of any of
the Guarantied Obligations, including, but not limited to, extending or
shortening the time of payment of any of the Guarantied Obligations or changing
the interest rate that may accrue on any of the Guarantied Obligations; (b)
amend, modify, alter or supplement the Credit Agreement or any other Loan
Document; (c) sell, exchange, release or otherwise deal with all, or any part,
of any collateral securing any of the Obligations; (d) release any other
Guarantor or other Person liable in any manner for the payment or collection of
the Guarantied Obligations;
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(e) exercise, or refrain from exercising, any rights against the Borrower, any
other Guarantor or any other Person; and (f) apply any sum, by whomsoever paid
or however realized, to the Guarantied Obligations in such order as the Lenders
shall elect.
Section 5. Representations and Warranties. Each Guarantor hereby makes to
------------------------------
the Administrative Agent and the Lenders all of the representations and
warranties made by the Borrower with respect to or in any way relating to such
Guarantor in the Credit Agreement and the other Loan Documents, as if the same
were set forth herein in full.
Section 6. Covenants. Each Guarantor will comply with all covenants which
---------
the Borrower is to cause such Guarantor to comply with under the terms of the
Credit Agreement or any of the other Loan Documents.
Section 7. Waiver. Each Guarantor, to the fullest extent permitted by
------
Applicable Law, hereby waives notice of acceptance hereof or any presentment,
demand, protest or notice of any kind, and any other act or thing, or omission
or delay to do any other act or thing, which in any manner or to any extent
might vary the risk of such Guarantor or which otherwise might operate to
discharge such Guarantor from its obligations hereunder and hereby waives all
rights such Guarantor may now or in the future have under any statute or other
Applicable Law.
Section 8. Inability to Accelerate Loan. If the Administrative Agent
----------------------------
and/or the Lenders are prevented under Applicable Law or otherwise from
demanding or accelerating payment of any of the Guarantied Obligations by reason
of any automatic stay or otherwise, the Administrative Agent and/or the Lenders
shall be entitled to receive from each Guarantor, upon demand therefor, the sums
which otherwise would have been due had such demand or acceleration occurred.
Section 9. Reinstatement of Guarantied Obligations. If claim is ever made
---------------------------------------
on the Administrative Agent or any Lender for repayment or recovery of any
amount or amounts received in payment or on account of any of the Guarantied
Obligations, and the Administrative Agent or such Lender repays all or part of
said amount by reason of (a) any judgment, decree or order of any court or
administrative body of competent jurisdiction, or (b) any settlement or
compromise of any such claim effected by the Administrative Agent or such Lender
with any such claimant (including the Borrower or a trustee in bankruptcy for
the Borrower), then and in such event each Guarantor agrees that any such
judgment, decree, order, settlement or compromise shall be binding on it,
notwithstanding any revocation hereof or the cancellation of the Credit
Agreement, any of the other Loan Documents, or any other instrument evidencing
any liability of the Borrower, and such Guarantor shall be and remain liable to
the Administrative Agent or such Lender for the amounts so repaid or recovered
to the same extent as if such amount had never originally been paid to the
Administrative Agent or such Lender.
Section 10. Subrogation. Upon the making by any Guarantor of any payment
-----------
hereunder for the account of the Borrower, such Guarantor shall be subrogated to
the rights of the payee against the Borrower; provided, however, that such
-------- -------
Guarantor shall not enforce any right or receive any payment by way of
subrogation or otherwise take any action in respect of any other claim or cause
of action such Guarantor may have against the Borrower arising by reason of any
B-4
payment or performance by such Guarantor pursuant to this Guaranty, unless and
until all of the Guarantied Obligations have been indefeasibly paid and
performed in full. If any amount shall be paid to such Guarantor on account of
or in respect of such subrogation rights or other claims or causes of action,
such Guarantor shall hold such amount in trust for the benefit of the
Administrative Agent and the Lenders and shall forthwith pay such amount to the
Administrative Agent to be credited and applied against the Guarantied
Obligations, whether matured or unmatured, in accordance with the terms of the
Credit Agreement or to be held by the Administrative Agent as collateral
security for any Guarantied Obligations existing.
Section 11. Payments Free and Clear. All sums payable by each Guarantor
-----------------------
hereunder, whether of principal, interest, Fees, expenses, premiums or
otherwise, shall be paid in full, without set-off or counterclaim or any
deduction or withholding whatsoever (including any taxes or liability imposed by
any Governmental Authority, or any Applicable Law promulgated thereby), and if
any Guarantor is required by such Applicable Law or by such Governmental
Authority to make any such deduction or withholding, such Guarantor shall pay to
the Administrative Agent and the Lenders such additional amount as will result
in the receipt by the Administrative Agent and the Lenders of the full amount
payable hereunder had such deduction or withholding not occurred or been
required.
Section 12. Set-off. In addition to any rights now or hereafter granted
-------
under any of the other Loan Documents or Applicable Law and not by way of
limitation of any such rights, each Guarantor hereby authorizes the
Administrative Agent, at any time during the continuance of an Event of Default,
without any prior notice to such Guarantor or to any other Person, any such
notice being hereby expressly waived, to set-off and to appropriate and to apply
any and all deposits (general or special, including, but not limited to,
indebtedness evidenced by certificates of deposit, whether matured or unmatured)
and any other indebtedness at any time held or owing by the Administrative
Agent, or any affiliate of the Administrative Agent, to or for the credit or the
account of such Guarantor against and on account of any of the Guarantied
Obligations, although such obligations shall be contingent or unmatured.
Section 13. Subordination. Each Guarantor hereby expressly covenants and
-------------
agrees for the benefit of the Administrative Agent and the Lenders that all
obligations and liabilities of the Borrower to such Guarantor of whatever
description, including without limitation, all intercompany receivables of such
Guarantor from the Borrower (collectively, the "Junior Claims") shall be
subordinate and junior in right of payment to all Guarantied Obligations. If an
Event of Default shall have occurred and be continuing, then no Guarantor shall
accept any direct or indirect payment (in cash, property, securities by setoff
or otherwise) from the Borrower on account of or in any manner in respect of any
Junior Claim until all of the Guarantied Obligations have been indefeasibly paid
in full.
Section 14. Avoidance Provisions. It is the intent of each Guarantor, the
--------------------
Administrative Agent and the Lenders that in any Proceeding, such Guarantor's
maximum obligation hereunder shall equal, but not exceed, the maximum amount
which would not otherwise cause the obligations of such Guarantor hereunder (or
any other obligations of such Guarantor to the Administrative Agent and the
Lenders) to be avoidable or unenforceable against such Guarantor
B-5
in such Proceeding as a result of Applicable Law, including without limitation,
(a) Section 548 of the Bankruptcy Code of 1978, as amended (the "Bankruptcy
Code") and (b) any state fraudulent transfer or fraudulent conveyance act or
statute applied in such Proceeding, whether by virtue of Section 544 of the
Bankruptcy Code or otherwise. The Applicable Laws under which the possible
avoidance or unenforceability of the obligations of such Guarantor hereunder (or
any other obligations of such Guarantor to the Administrative Agent and the
Lenders) shall be determined in any such Proceeding are referred to as the
"Avoidance Provisions". Accordingly, to the extent that the obligations of any
Guarantor hereunder would otherwise be subject to avoidance under the Avoidance
Provisions, the maximum Guarantied Obligations for which such Guarantor shall be
liable hereunder shall be reduced to that amount which, as of the time any of
the Guarantied Obligations are deemed to have been incurred under the Avoidance
Provisions, would not cause the obligations of such Guarantor hereunder (or any
other obligations of such Guarantor to the Administrative Agent and the
Lenders), to be subject to avoidance under the Avoidance Provisions. This
Section is intended solely to preserve the rights of the Administrative Agent
and the Lenders hereunder to the maximum extent that would not cause the
obligations of any Guarantor hereunder to be subject to avoidance under the
Avoidance Provisions, and no Guarantor or any other Person shall have any right
or claim under this Section as against the Administrative Agent and the Lenders
that would not otherwise be available to such Person under the Avoidance
Provisions.
Section 15. Information. Each Guarantor assumes all responsibility for
-----------
being and keeping itself informed of the financial condition of the Borrower and
the other Guarantors, and of all other circumstances bearing upon the risk of
nonpayment of any of the Guarantied Obligations and the nature, scope and extent
of the risks that such Guarantor assumes and incurs hereunder, and agrees that
neither the Administrative Agent nor any Lender shall have any duty whatsoever
to advise any Guarantor of information regarding such circumstances or risks.
Section 16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
SECTION 17. WAIVER OF JURY TRIAL; ARBITRATION.
---------------------------------
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN
OR AMONG ANY GUARANTOR, THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS WOULD BE
BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY
AND EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH OF THE LENDERS, THE ADMINISTRATIVE AGENT AND EACH GUARANTOR HEREBY
WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR
NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR
AGAINST ANY PARTY HERETO ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE
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WHATSOEVER BETWEEN OR AMONG THE BORROWER, THE ADMINISTRATIVE AGENT OR ANY OF THE
LENDERS OF ANY KIND OR NATURE.
(b) EACH OF THE GUARANTORS, THE ADMINISTRATIVE AGENT AND EACH LENDER
HEREBY AGREES THAT ANY FEDERAL DISTRICT COURT IN NEW YORK OR, AT THE OPTION OF
THE ADMINISTRATIVE AGENT, ANY STATE COURT LOCATED IN NEW YORK, NEW YORK, SHALL
HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG
ANY GUARANTOR, THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS, PERTAINING
DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, THE LOANS, THE NOTES OR ANY OTHER LOAN
DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. EACH GUARANTOR AND EACH
OF THE LENDERS EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN
ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS. EACH PARTY FURTHER WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME. THE CHOICE OF
FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF
ANY ACTION BY THE ADMINISTRATIVE AGENT OR ANY LENDER OR THE ENFORCEMENT BY THE
ADMINISTRATIVE AGENT OR ANY LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY
OTHER APPROPRIATE JURISDICTION.
(c) EACH GUARANTOR, AND THE ADMINISTRATIVE AGENT AND EACH LENDER BY
ACCEPTING THE BENEFITS OF THIS GUARANTY, AGREES THAT UPON DEMAND OF THE
ADMINISTRATIVE AGENT OR ANY LENDER, WHETHER MADE BEFORE OR AFTER INSTITUTION OF
ANY JUDICIAL PROCEEDING, AND SUBJECT TO RECEIPT OF THE PRIOR WRITTEN CONSENT OF
THE REQUISITE LENDERS, ANY CLAIM OR CONTROVERSY ARISING OUT OF, OR RELATING TO
THIS GUARANTY OR ANY OTHER LOAN DOCUMENTS ("DISPUTES") BETWEEN OR AMONG THE
ADMINISTRATIVE AGENT OR ANY LENDER ON THE ONE HAND, AND ANY GUARANTOR ON THE
OTHER, SHALL BE RESOLVED BY BINDING ARBITRATION CONDUCTED UNDER AND GOVERNED BY
THE COMMERCIAL FINANCIAL DISPUTES ARBITRATION RULES (THE "ARBITRATION RULES") OF
THE AMERICAN ARBITRATION ASSOCIATION (THE "AAA") AND THE FEDERAL ARBITRATION
ACT. DISPUTES MAY INCLUDE, WITHOUT LIMITATION, TORT CLAIMS, COUNTERCLAIMS,
DISPUTES AS TO WHETHER A MATTER IS SUBJECT TO ARBITRATION, CLAIMS BROUGHT AS
CLASS ACTIONS, AND CLAIMS ARISING FROM LOAN DOCUMENTS EXECUTED IN THE FUTURE. A
JUDGMENT UPON THE AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION.
NOTWITHSTANDING THE FOREGOING, THIS ARBITRATION PROVISION DOES NOT APPLY TO
DISPUTES UNDER OR RELATED TO INTEREST RATE AGREEMENTS TO WHICH ANY LENDER IS A
PARTY. ALL ARBITRATION HEARINGS SHALL BE CONDUCTED IN NEW YORK, NEW YORK. A
HEARING SHALL BEGIN WITHIN 90
B-7
DAYS OF DEMAND FOR ARBITRATION AND ALL HEARINGS SHALL CONCLUDED WITHIN 120 DAYS
OF DEMAND FOR ARBITRATION. THESE TIME LIMITATIONS MAY NOT BE EXTENDED UNLESS A
PARTY SHOWS CAUSE FOR EXTENSION AND THEN NO MORE THAN A TOTAL EXTENSION OF 60
DAYS. THE EXPEDITED PROCEDURES SET FORTH IN RULE 51 ET. SEQ. OF THE ARBITRATION
RULES SHALL BE APPLICABLE TO CLAIMS OF LESS THAN $1,000,000. ARBITRATORS SHALL
BE LICENSED ATTORNEYS SELECTED FROM THE COMMERCIAL FINANCIAL DISPUTE ARBITRATION
PANEL OF THE AAA. THE PARTIES DO NOT WAIVE ANY APPLICABLE LAWS EXCEPT AS
PROVIDED HEREIN. NOTWITHSTANDING THE PRECEDING BINDING ARBITRATION PROVISIONS,
THE PARTIES AGREE TO PRESERVE, WITHOUT DIMINUTION, THE FOLLOWING REMEDIES THAT
THE ADMINISTRATIVE AGENT OR THE LENDERS MAY EXERCISE BEFORE OR AFTER AN
ARBITRATION PROCEEDING IS BROUGHT. SUBJECT TO THE OTHER TERMS HEREOF, THE
ADMINISTRATIVE AGENT AND THE LENDERS SHALL HAVE THE RIGHT TO PROCEED IN ANY
COURT OF PROPER JURISDICTION OR BY SELF-HELP TO EXERCISE OR PROSECUTE THE
FOLLOWING REMEDIES, AS APPLICABLE: (I) ALL RIGHTS TO FORECLOSE AGAINST ANY REAL
OR PERSONAL PROPERTY OR OTHER SECURITY BY EXERCISING A POWER OF SALE OR UNDER
APPLICABLE LAW BY JUDICIAL FORECLOSURE INCLUDING A PROCEEDING TO CONFIRM THE
SALE; (II) ALL RIGHTS OF SELF-HELP INCLUDING PEACEFUL OCCUPATION OF REAL
PROPERTY AND COLLECTION OF RENTS, SET-OFF, AND PEACEFUL POSSESSION OF PERSONAL
PROPERTY; (III) OBTAINING PROVISIONAL OR ANCILLARY REMEDIES INCLUDING INJUNCTIVE
RELIEF, SEQUESTRATION, GARNISHMENT, ATTACHMENT, APPOINTMENT OF RECEIVER AND
FILING AN INVOLUNTARY BANKRUPTCY PROCEEDING; AND (IV) WHEN APPLICABLE, A
JUDGMENT BY CONFESSION OF JUDGMENT. ANY CLAIM OR CONTROVERSY WITH REGARD TO
PARTIES ENTITLEMENT TO SUCH REMEDIES IS A DISPUTE. THE PARTIES HERETO
ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE IRREVOCABLY WAIVED
ANY RIGHT THEY MAY HAVE TO A JURY TRIAL WITH REGARD TO A DISPUTE.
Section 18. Loan Accounts. The Administrative Agent and each Lender may
-------------
maintain books and accounts setting forth the amounts of principal, interest and
other sums paid and payable with respect to the Guarantied Obligations, and in
the case of any dispute relating to any of the outstanding amount, payment or
receipt of any of the Guarantied Obligation or otherwise, the entries in such
books and accounts shall deemed prima facie evidence of the amounts and other
matters set forth herein. The failure of the Administrative Agent or any Lender
to maintain such books and accounts shall not in any way relieve or discharge
any Guarantor of any of its obligations hereunder.
Section 19. Waiver of Remedies. No delay or failure on the part of the
------------------
Administrative Agent or any Lender in the exercise of any right or remedy it may
have against any Guarantor hereunder or otherwise shall operate as a waiver
thereof, and no single or partial exercise by the Administrative Agent or any
Lender of any such right or remedy shall preclude other or further exercise
thereof or the exercise of any other such right or remedy.
B-8
Section 20. Termination. This Guaranty shall remain in full force and
-----------
effect until indefeasible payment in full of the Guarantied Obligations and the
other Obligations and the termination or cancellation of the Credit Agreement.
Section 21. Successors and Assigns. Each reference herein to the
----------------------
Administrative Agent or the Lenders shall be deemed to include such Person's
respective successors and assigns (including, but not limited to, any holder of
the Guarantied Obligations) in whose favor the provisions of this Guaranty also
shall inure, and each reference herein to each Guarantor shall be deemed to
include such Guarantor's successors and assigns, upon whom this Guaranty also
shall be binding. The Lenders may, in accordance with the applicable provisions
of the Credit Agreement, assign, transfer or sell any Guarantied Obligation, or
grant or sell participation in any Guarantied Obligations, to any Person without
the consent of, or notice to, any Guarantor and without releasing, discharging
or modifying any Guarantor's obligations hereunder. Each Guarantor hereby
consents to the delivery by the Administrative Agent or any Lender to any
Assignee or Participant (or any prospective Assignee or Participant) of any
financial or other information regarding the Borrower or any Guarantor. No
Guarantor may assign or transfer its obligations hereunder to any Person.
Section 22. JOINT AND SEVERAL OBLIGATIONS. THE OBLIGATIONS OF THE
-----------------------------
GUARANTORS HEREUNDER SHALL BE JOINT AND SEVERAL, AND ACCORDINGLY, EACH GUARANTOR
CONFIRMS THAT IT IS LIABLE FOR THE FULL AMOUNT OF THE "GUARANTIED OBLIGATIONS"
AND ALL OF THE OBLIGATIONS AND LIABILITIES OF EACH OF THE OTHER GUARANTORS
HEREUNDER.
Section 23. Amendments. This Guaranty may not be amended except in
----------
writing signed by the Requisite Lenders (or all of the Lenders if required under
the terms of the Credit Agreement), the Administrative Agent and each Guarantor.
Section 24. Payments. All payments to be made by any Guarantor pursuant
--------
to this Guaranty shall be made in Dollars, in immediately available funds to the
Administrative Agent at the Principal Office, not later than 2:00 p.m. on the
date of demand therefor.
Section 25. Notices. All notices, requests and other communications
-------
hereunder shall be in writing (including facsimile transmission or similar
writing) and shall be given (a) to each Guarantor at its address set forth below
its signature hereto, (b) to the Administrative Agent, any Lender or the
Arrangers at its address for notices provided for in the Credit Agreement, or
(c) as to each such party at such other address as such party shall designate in
a written notice to the other parties. Each such notice, request or other
communication shall be effective (i) if mailed, when received; (ii) if
telecopied, when transmitted; or (iii) if hand delivered, when delivered;
provided, however, that any notice of a change of address for notices shall not
-------- -------
be effective until received.
B-9
Section 26. Severability. In case any provision of this Guaranty shall be
------------
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 27. Headings. Section headings used in this Guaranty are for
--------
convenience only and shall not affect the construction of this Guaranty.
Section 28. Definitions. (a) For the purposes of this Guaranty:
-----------
"Proceeding" means any of the following: (i) a voluntary or involuntary
----------
case concerning any Guarantor shall be commenced under the Bankruptcy Code of
1978, as amended; (ii) a custodian (as defined in such Bankruptcy Code or any
other applicable bankruptcy laws) is appointed for, or takes charge of, all or
any substantial part of the property of any Guarantor; (iii) any other
proceeding under any Applicable Law, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up or composition for adjustment
of debts, whether now or hereafter in effect, is commenced relating to any
Guarantor; (iv) any Guarantor is adjudicated insolvent or bankrupt; (v) any
order of relief or other order approving any such case or proceeding is entered
by a court of competent jurisdiction; (vi) any Guarantor makes a general
assignment for the benefit of creditors; (vii) any Guarantor shall fail to pay,
or shall state that it is unable to pay, or shall be unable to pay, its debts
generally as they become due; (viii) any Guarantor shall call a meeting of its
creditors with a view to arranging a composition or adjustment of its debts;
(ix) any Guarantor shall by any act or failure to act indicate its consent to,
approval of or acquiescence in any of the foregoing; or (x) any corporate action
shall be taken by any Guarantor for the purpose of effecting any of the
foregoing.
(b) Terms not otherwise defined herein are used herein with the respective
meanings given them in the Credit Agreement.
Section 29. NO NOVATION. THE PARTIES HERETO HAVE ENTERED INTO THIS
-----------
GUARANTY SOLELY TO AMEND AND RESTATE THE TERMS OF THE GUARANTY DATED AS OF MARCH
22, 1999 (THE "EXISTING GUARANTY"), EXECUTED BY THE GUARANTORS IN FAVOR OF THE
ADMINISTRATIVE AGENT AND CERTAIN OF THE LENDERS. THE PARTIES DO NOT INTEND THIS
AGREEMENT, NOR THE TRANSACTIONS CONTEMPLATED HEREBY, TO BE, AND THIS AGREEMENT
AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL NOT BE CONSTRUED TO BE, A
NOVATION OR WAIVER OF ANY OF THE OBLIGATIONS OWING BY ANY EXISTING GUARANTOR
UNDER OR IN CONNECTION WITH THE EXISTING GUARANTY.
[Signature on Next Page]
B-10
IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this
Guaranty as of the date and year first written above.
CNL AMERICAN PROPERTIES FUND, INC.
By:__________________________
Name:_____________________
Title:____________________
CNL APF GP CORP.
By:__________________________
Name:_____________________
Title:____________________
CNL APF LP CORP.
By:__________________________
Name:_____________________
Title:____________________
Address for Notices:
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
B-11
ANNEX I
FORM OF ACCESSION AGREEMENT
THIS ACCESSION AGREEMENT dated as of ____________, ____, executed and
delivered by ______________________, a _____________ (the "New Subsidiary") in
favor of (a) FIRST UNION NATIONAL BANK, in its capacity as Administrative Agent
(the "Administrative Agent") for the Lenders under that certain Amended and
Restated Credit Agreement dated as of June 9, 1999 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
by and among CNL APF Partners, LP (the "Borrower"), CNL American Properties
Fund, Inc., the financial institutions party thereto and their assignees under
Section 12.5.(d) thereof (the "Lenders"), each of First Union Capital Markets
Group and Banc of America Securities LLC, as Joint Lead Arrangers and Book
Managers, NationsBank, N.A., as Syndication Agent, The Chase Manhattan Bank, as
Documentation Agent, and the Administrative Agent.
WHEREAS, pursuant to the Credit Agreement, the Administrative Agent and the
Lenders have agreed to make available to the Borrower certain financial
accommodations on the terms and conditions set forth in the Credit Agreement;
WHEREAS, the Parent owns, directly or indirectly, a majority of the issued
and outstanding capital stock of, or other equity interest in, the New
Subsidiary;
WHEREAS, the Borrower, the New Subsidiary, the Parent and the other
Guarantors, though separate legal entities, are mutually dependent on each other
in the conduct of their respective businesses as an integrated operation and
have determined it to be in their mutual best interests to obtain financing from
the Administrative Agent and the Lenders through their collective efforts;
WHEREAS, the New Subsidiary acknowledges that it will receive direct and
indirect benefits from the Administrative Agent and the Lenders making such
financial accommodations available to the Borrower under the Credit Agreement
and, accordingly, the New Subsidiary is willing to guarantee the Borrower's
obligations to the Administrative Agent and the Lenders on the terms and
conditions contained herein; and
WHEREAS, the New Subsidiary's execution and delivery of this Agreement is a
condition to the Administrative Agent and the Lenders continuing to make such
financial accommodations to the Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the New Subsidiary, the New
Subsidiary agrees as follows:
Section 1. Accession to Guaranty. The New Subsidiary hereby agrees that
---------------------
it is a "Guarantor" under that certain Guaranty dated as of June 9, 1999 (as
amended, supplemented, restated or otherwise modified from time to time, the
"Guaranty"), made by each Subsidiary of
B-12
the Parent a party thereto in favor of the Administrative Agent and the Lenders
and assumes all obligations of a "Guarantor" thereunder, all as if the New
Subsidiary had been an original signatory to the Guaranty. Without limiting the
generality of the foregoing, the New Subsidiary hereby:
(a) irrevocably and unconditionally guarantees the due and punctual
payment and performance when due, whether at stated maturity, by acceleration or
otherwise, of all Guarantied Obligations (as defined in the Guaranty);
(b) makes to the Administrative Agent and the Lenders as of the date
hereof each of the representations and warranties contained in Section 5 of the
Guaranty and agrees to be bound by each of the covenants contained in Section 6
of the Guaranty; and
(c) consents and agrees to each provision set forth in the Guaranty.
SECTION 2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 3. Definitions. Capitalized terms used herein and not otherwise
-----------
defined herein shall have their respective defined meanings given them in the
Credit Agreement.
[Signatures on Next Page]
B-13
IN WITNESS WHEREOF, the New Subsidiary has caused this Accession Agreement
to be duly executed and delivered under seal by its duly authorized officers as
of the date first written above.
[NEW SUBSIDIARY]
By:____________________________
Name:_______________________
Title:______________________
Address for Notices:
________________________
________________________
________________________
Attention: ____________
Telecopy Number: _____________
Telephone Number: _____________
Accepted:
FIRST UNION NATIONAL BANK,
as Administrative Agent
By:_______________________
Name:___________________
Title:__________________
B-14
EXHIBIT C
FORM OF NOTICE OF BORROWING
____________, _____
First Union National Bank, as Administrative
Agent
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Mail Code: ▇▇▇▇▇▇
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Attention: ▇▇▇▇ ▇▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of June 9, 1999 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), by and among CNL APF
Partners, LP (the "Borrower"), CNL American Properties Fund, Inc., the financial
institutions party thereto and their assignees under Section 12.5.(d) thereof
(the "Lenders"), each of First Union Capital Markets Group and Banc of America
Securities LLC, as Joint Lead Arrangers and Book Managers, NationsBank, N.A., as
Syndication Agent, The Chase Manhattan Bank, as Documentation Agent, and First
Union National Bank, as Administrative Agent (the "Administrative Agent").
Capitalized terms used herein, and not otherwise defined herein, have their
respective meanings given them in the Credit Agreement.
1. Pursuant to Section 2.1.(b) of the Credit Agreement, the Borrower
hereby requests that the Lenders make Revolving Loans to the Borrower
in an aggregate amount equal to $___________________.
2. The Borrower requests that such Revolving Loans be made available to
the Borrower on ____________, _____.
3. The Borrower hereby requests that the requested Revolving Loans all be
of the following Type:
[Check one box only]
[_] Base Rate Loans
[_] LIBOR Loans, each with an initial Interest Period for a
duration of:
[Check one box only] [_] one month
[_] two months
[_] three months
[_] six months
C-1
[_] other: ____ days (Requires prior
approval of Administrative Agent)
4. The proceeds of this borrowing of Revolving Loans will be used for the
following purpose: ___________________________________________________
____________________________________________________________.
5. The Borrower requests that the proceeds of this borrowing of Revolving
Loans be made available to the Borrower by __________________________.
The Borrower hereby certifies to the Administrative Agent and the Lenders
that as of the date hereof and as of the date of the making of the requested
Revolving Loans and after giving effect thereto, (a) no Default or Event of
Default has or shall have occurred and be continuing, and (b) the
representations and warranties made or deemed made by the Borrower and the
Parent are and shall be true and correct in all material respects, except to the
extent that such representations and warranties expressly relate solely to an
earlier date (in which case such representations and warranties were true and
accurate on and as of such earlier date) and except for changes in factual
circumstances specifically and expressly permitted under the Credit Agreement.
If notice of the requested borrowing of Revolving Loans was previously
given by telephone, this notice is to be considered the written confirmation of
such telephone notice required by Section 2.1.(b) of the Credit Agreement.
CNL APF PARTNERS, LP
By: CNL APF GP Corp., its sole general partner
By:______________________________
Name:_________________________
Title:________________________
C-2
EXHIBIT D
FORM OF NOTICE OF CONTINUATION
____________, _____
First Union National Bank, as Administrative
Agent
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Mail Code: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of June 9, 1999 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), by and among CNL APF
Partners, LP (the "Borrower"), CNL American Properties Fund, Inc., the financial
institutions party thereto and their assignees under Section 12.5.(d) thereof
(the "Lenders"), each of First Union Capital Markets Group and Banc of America
Securities LLC, as Joint Lead Arrangers and Book Managers, NationsBank, N.A., as
Syndication Agent, The Chase Manhattan Bank, as Documentation Agent, and First
Union National Bank, as Administrative Agent (the "Administrative Agent").
Capitalized terms used herein, and not otherwise defined herein, have their
respective meanings given them in the Credit Agreement.
Pursuant to Section 2.6. of the Credit Agreement, the Borrower hereby
requests a Continuation of a borrowing of Loans under the Credit Agreement, and
in that connection sets forth below the information relating to such
Continuation as required by such Section of the Credit Agreement:
1. The proposed date of such Continuation is ____________, _____.
2. The aggregate principal amount of Loans subject to the requested
Continuation is $________________________ and was originally borrowed
by the Borrower on ____________, ______.
3. The portion of such principal amount subject to such Continuation is
$__________________________.
4. The current Interest Period for each of the Loans subject to such
Continuation ends on ________________, _____.
D-1
5. The duration of the new Interest Period for each of such Loans or
portion thereof subject to such Continuation is:
[Check one box only] [_] one month
[_] two months
[_] three months
[_] six months
[_] other: ____ days (Requires prior
approval of Administrative Agent)
The Borrower hereby certifies to the Administrative Agent and the Lenders
that as of the date hereof, as of the proposed date of the requested
Continuation, and after giving effect to such Continuation, no Default or Event
of Default has or shall have occurred and be continuing.
If notice of the requested Continuation was given previously by telephone,
this notice is to be considered the written confirmation of such telephone
notice required by Section 2.6. of the Credit Agreement.
CNL APF PARTNERS, LP
By: CNL APF GP Corp., its sole general partner
By:_______________________________
Name:__________________________
Title:_________________________
D-2
EXHIBIT E
FORM OF NOTICE OF CONVERSION
____________, _____
First Union National Bank, as Administrative
Agent
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Mail Code: ▇▇▇▇▇▇
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Attention: ▇▇▇▇ ▇▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of June 9, 1999 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), by and among CNL APF
Partners, LP (the "Borrower"), CNL American Properties Fund, Inc., the financial
institutions party thereto and their assignees under Section 12.5.(d) thereof
(the "Lenders"), each of First Union Capital Markets Group and Banc of America
Securities LLC, as Joint Lead Arrangers and Book Managers, NationsBank, N.A., as
Syndication Agent, The Chase Manhattan Bank, as Documentation Agent, and First
Union National Bank, as Administrative Agent (the "Administrative Agent").
Capitalized terms used herein, and not otherwise defined herein, have their
respective meanings given them in the Credit Agreement.
Pursuant to Section 2.7. of the Credit Agreement, the Borrower hereby
requests a Conversion of a borrowing of Loans of one Type into Loans of another
Type under the Credit Agreement, and in that connection sets forth below the
information relating to such Conversion as required by such Section of the
Credit Agreement:
1. The proposed date of such Conversion is ______________, _____.
2. The Loans to be Converted pursuant hereto are currently:
[Check one box only] [_] Base Rate Loans
[_] LIBOR Loans
3. The aggregate principal amount of Loans subject to the requested
Conversion is $_____________________ and was originally borrowed by
the Borrower on ____________, ______.
4. The portion of such principal amount subject to such Conversion is
$___________________.
E-1
5. The amount of such Loans to be so Converted is to be converted into
Loans of the following Type:
[Check one box only]
[_] Base Rate Loans
[_] LIBOR Loans, each with an initial Interest Period for a
duration of:
[Check one box only] [_] one month
[_] two months
[_] three months
[_] six months
[_] other: ____ days (Requires prior
approval of Administrative Agent)
The Borrower hereby certifies to the Administrative Agent and the Lenders
that as of the date hereof and as of the date of the requested Conversion and
after giving effect thereto, (a) no Default or Event of Default has or shall
have occurred and be continuing, and (b) the representations and warranties made
or deemed made by the Borrower and the Parent are and shall be true and correct
in all material respects, except to the extent that such representations and
warranties expressly relate solely to an earlier date (in which case such
representations and warranties were true and accurate on and as of such earlier
date) and except for changes in factual circumstances specifically and expressly
permitted under the Credit Agreement.
If notice of the requested Conversion was given previously by telephone,
this notice is to be considered the written confirmation of such telephone
notice required by Section 2.7. of the Credit Agreement.
CNL APF PARTNERS, LP
By: CNL APF GP Corp., its sole general partner
By:________________________________
Name:___________________________
Title:__________________________
E-2
EXHIBIT F
FORM OF REVOLVING NOTE
$____________________ _______________, 19__
FOR VALUE RECEIVED, the undersigned, CNL APF PARTNERS, LP, a Delaware
limited partnership (the "Borrower"), hereby promises to pay to the order of
____________________ (the "Lender"), in care of First Union National Bank, as
Administrative Agent (the "Administrative Agent") to First Union National Bank,
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address as may be specified in writing by the Administrative Agent to the
Borrower, the principal sum of ________________ AND ____/100 DOLLARS
($____________) (or such lesser amount as shall equal the aggregate unpaid
principal amount of Revolving Loans made by the Lender to the Borrower under the
Credit Agreement (as herein defined)), on the dates and in the principal amounts
provided in the Credit Agreement, and to pay interest on the unpaid principal
amount owing hereunder, at the rates and on the dates provided in the Credit
Agreement.
The date, amount of each Revolving Loan made by the Lender to the Borrower,
and each payment made on account of the principal thereof, shall be recorded by
the Lender on its books and, prior to any transfer of this Note, endorsed by the
Lender on the schedule attached hereto or any continuation thereof, provided
--------
that the failure of the Lender to make any such recordation or endorsement shall
not affect the obligations of the Borrower to make a payment when due of any
amount owing under the Credit Agreement or hereunder in respect of the Revolving
Loans made by the Lender.
This Note is one of the Revolving Notes referred to in the Amended and
Restated Credit Agreement dated as of June 9, 1999 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
by and among the Borrower, CNL American Properties Fund, Inc., the financial
institutions party thereto and their assignees under Section 12.5.(d) thereof
(the "Lenders"), each of First Union Capital Markets Group and Banc of America
Securities LLC, as Joint Lead Arrangers and Book Managers, NationsBank, N.A., as
Syndication Agent, The Chase Manhattan Bank, as Documentation Agent, and First
Union National Bank, as Administrative Agent (the "Administrative Agent").
Capitalized terms used herein, and not otherwise defined herein, have their
respective meanings given them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of this
Note upon the occurrence of certain events and for prepayments of Loans upon the
terms and conditions specified therein.
Except as permitted by Section 12.5.(d) of the Credit Agreement, this Note
may not be assigned by the Lender to any other Person.
F-1
[Include this Paragraph only in Notes issued in favor of NationsBank, N.A.
The Lender is hereby authorized to disseminate any information it now has
or hereafter obtains pertaining to the loan evidenced by this Note, including,
without limitation, any security for this Note and credit or other information
on the Borrower, any of its principals and any guarantor of this Note, to any
Assignee or Participant or prospective Assignee or prospective Participant, to
the Lender's affiliates, including without limitation NationsBanc ▇▇▇▇▇▇▇▇▇▇
Securities LLC, to any regulatory body having jurisdiction over the Lender and
to any other parties as necessary or appropriate in the reasonable judgment of
the Lender. Nothing contained in this paragraph is intended to be inconsistent
with the Credit Agreement including, without limitation, Section 12.8 thereof,
and in the event of any inconsistency, the provisions of the Credit Agreement
shall control.]
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
[The following text is to be included in only those Revolving Notes
executed in favor of the Lenders who were a party to the Existing Credit
Agreement at the time of the amendment and restatement thereof --This Note
amends and restates that certain Revolving Note dated March 22, 1999, in the
original principal amount of $75,000,000 executed and delivered by the Borrower,
payable to the order of the Lender. THIS NOTE IS NOT INTENDED TO BE, AND SHALL
NOT BE CONSTRUED TO BE, A NOVATION OF ANY OF THE OBLIGATIONS OWING UNDER OR IN
CONNECTION WITH SUCH OTHER NOTE.]
Time is of the essence for this Note.
[Signature on Next Page]
F-2
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Revolving Note under seal as of the date first written above.
CNL APF PARTNERS, LP
By: CNL APF GP Corp., its sole general partner
By:_____________________________________
Name:________________________________
Title:_______________________________
STATE OF GEORGIA
COUNTY OF ▇▇▇▇▇▇
BEFORE ME, a Notary Public in and for said County, personally appeared
_____________________, known to me to be a person who, as
____________________________ of CNL APF GP Corp., as the general partner of CNL
APF Partners, L.P., the entity which executed the foregoing Revolving Note,
signed the same, and acknowledged to me that he did so sign said instrument in
the name and upon behalf of said corporation as an officer of said corporation.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name, and affixed my
official seal, this ____ day of June, 1999.
____________________________________________
Notary Public
My Commission Expires:
F-3
EXHIBIT G
FORM OF OPINION OF COUNSEL
To be Delivered
G-1
EXHIBIT H
FORM OF COMPLIANCE CERTIFICATE
First Union National Bank, as Administrative Agent
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Each of the Lenders Party to the Credit
Agreement referred to below
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of June 9, 1999 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), by and among CNL APF
Partners, LP (the "Borrower"), CNL American Properties Fund, Inc., the financial
institutions party thereto and their assignees under Section 12.5.(d) thereof
(the "Lenders"), each of First Union Capital Markets Group and Banc of America
Securities LLC, as Joint Lead Arrangers and Book Managers, NationsBank, N.A., as
Syndication Agent, The Chase Manhattan Bank, as Documentation Agent, and First
Union National Bank, as Administrative Agent (the "Administrative Agent").
Capitalized terms used herein, and not otherwise defined herein, have their
respective meanings given them in the Credit Agreement.
Pursuant to Section 8.3. of the Credit Agreement, the undersigned hereby
certifies to the Administrative Agent and the Lenders as follows:
(1) The undersigned is the chief financial officer of the Parent.
(2) The undersigned has examined the books and records of the Borrower and
the Parent and has conducted such other examinations and investigations as are
reasonably necessary to provide this Compliance Certificate.
(3) To the best of the undersigned's knowledge, information and belief, no
Default or Event of Default exists [if such is not the case, specify such
Default or Event of Default and its nature, when it occurred and whether it is
continuing and the steps being taken by the Parent with respect to such event,
condition or failure].
(4) To the best of the undersigned's knowledge, information and belief,
the representations and warranties made or deemed made by the Parent and the
Borrower in the Loan Documents to which either is a party, are true and correct
in all material respects on and as of the date hereof except to the extent that
such representations and warranties expressly relate solely to an earlier date
(in which case such representations and warranties shall have been true and
accurate on and as of such earlier date) and except for changes in factual
circumstances specifically and expressly permitted under the Credit Agreement.
(5) Attached hereto as Schedule 1 are reasonably detailed calculations
establishing whether or not the Borrower and the Parent were in compliance with
the covenants contained in Sections 9.1, 9.2, 9.4, 9.5(f), (g) and (j), 9.7,
9.8, 9.10 and 9.16 of the Credit Agreement.
(6) There have been no material modifications to the terms of the
Consolidation as described in the writing delivered to the Lenders under Section
5.1 of the Credit Agreement, other than those which have been approved in
writing by the Requisite Lenders and the Arrangers as of the following
dates:_____________________________________________________.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of the
date first above written.
_______________________________________
Title:______________________________ of
CNL American Properties Fund, Inc.
H-2
Schedule 1
----------
[Calculations to be Attached]
H-3
Execution Copy
GUARANTY
THIS GUARANTY dated as of June 9, 1999, executed and delivered by each
of the undersigned and the other Persons from time to time party hereto pursuant
to the execution and delivery of an Accession Agreement in the form of Annex I
hereto (all of the undersigned, together with such other Persons each a
"Guarantor" and collectively, the "Guarantors") in favor of (a) FIRST UNION
NATIONAL BANK, in its capacity as Administrative Agent (the "Administrative
Agent") for the Lenders under that certain that certain Amended and Restated
Credit Agreement dated as of June 9, 1999 (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), by and among CNL
APF Partners, LP (the "Borrower"), CNL American Properties Fund, Inc., the
financial institutions party thereto and their assignees under Section 12.5.(d)
thereof (the "Lenders"), each of First Union Capital Markets Group and Banc of
America Securities LLC, as Joint Lead Arrangers and Book Managers, NationsBank,
N.A., as Syndication Agent, The Chase Manhattan Bank, as Documentation Agent,
and the Administrative Agent and (b) the Lenders.
WHEREAS, pursuant to the Credit Agreement, the Administrative Agent and the
Lenders have agreed to make available to the Borrower certain financial
accommodations on the terms and conditions set forth in the Credit Agreement;
WHEREAS, the Parent owns, directly or indirectly, all of the issued and
outstanding capital stock of, or other equity interest in, the Borrower and each
other Guarantor;
WHEREAS, the Borrower, the Parent and each of the other Guarantors, though
separate legal entities, are mutually dependent on each other in the conduct of
their respective businesses as an integrated operation and have determined it to
be in their mutual best interests to obtain financing from the Administrative
Agent and the Lenders through their collective efforts;
WHEREAS, each Guarantor acknowledges that it will receive direct and
indirect benefits from the Administrative Agent and the Lenders making such
financial accommodations available to the Borrower under the Credit Agreement
and, accordingly, each Guarantor is willing to guarantee the Borrower's
obligations to the Administrative Agent and the Lenders on the terms and
conditions contained herein; and
WHEREAS, each Guarantor's execution and delivery of this Guaranty is a
condition to the Administrative Agent and the Lenders making such financial
accommodations to the Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each Guarantor, each Guarantor
agrees as follows:
Section 1. Guaranty. Each Guarantor hereby absolutely, irrevocably and
--------
unconditionally guaranties the due and punctual payment and performance when
due, whether at stated maturity, by acceleration or otherwise, of all of the
following (collectively referred to as the "Guarantied Obligations"): (a) all
indebtedness and obligations owing by the Borrower to any Lender or the
Administrative Agent under or in connection with the Credit Agreement and any
other Loan Document, including without limitation, the repayment of all
principal of the Revolving Loans and the Reimbursement Obligations, and the
payment of all interest, Fees, charges, attorneys fees and other amounts payable
to any Lender or the Administrative Agent thereunder or in connection therewith;
(b) any and all extensions, renewals, modifications, amendments or substitutions
of the foregoing; (c) all expenses, including, without limitation, reasonable
attorneys' fees and disbursements, that are incurred by the Lenders and the
Administrative Agent in the enforcement of any of the foregoing or any
obligation of such Guarantor hereunder and (d) all other Obligations.
Section 2. Guaranty of Payment and Not of Collection. This Guaranty is a
-----------------------------------------
guaranty of payment, and not of collection, and a debt of each Guarantor for its
own account. Accordingly, neither the Lenders nor the Administrative Agent
shall be obligated or required before enforcing this Guaranty against any
Guarantor: (a) to pursue any right or remedy the Lenders or the Administrative
Agent may have against the Borrower, any other Guarantor or any other Person or
commence any suit or other proceeding against the Borrower, any other Guarantor
or any other Person in any court or other tribunal; (b) to make any claim in a
liquidation or bankruptcy of the Borrower, any other Guarantor or any other
Person; or (c) to make demand of the Borrower, any other Guarantor or any other
Person or to enforce or seek to enforce or realize upon any collateral security
held by the Lenders or the Administrative Agent which may secure any of the
Guarantied Obligations.
Section 3. Guaranty Absolute. Each Guarantor guarantees that the
-----------------
Guarantied Obligations will be paid strictly in accordance with the terms of the
documents evidencing the same, regardless of any Applicable Law now or hereafter
in effect in any jurisdiction affecting any of such terms or the rights of the
Administrative Agent or the Lenders with respect thereto. The liability of each
Guarantor under this Guaranty shall be absolute and unconditional in accordance
with its terms and shall remain in full force and effect without regard to, and
shall not be released, suspended, discharged, terminated or otherwise affected
by, any circumstance or occurrence whatsoever, including without limitation, the
following (whether or not such Guarantor consents thereto or has notice
thereof):
(a) (i) any change in the amount, interest rate or due date or other term
of any of the Guarantied Obligations, (ii) any change in the time, place or
manner of payment of all or any portion of the Guarantied Obligations, (iii) any
amendment or waiver of, or consent to the departure from or other indulgence
with respect to, the Credit Agreement, any other Loan Document, or any other
document or instrument evidencing or relating to any Guarantied Obligations, or
(iv) any waiver, renewal, extension, addition, or supplement to, or deletion
from, or any other action or inaction under or in respect of, the
-2-
Credit Agreement, any of the other Loan Documents, or any other documents,
instruments or agreements relating to the Guarantied Obligations or any other
instrument or agreement referred to therein or evidencing any Guarantied
Obligations or any assignment or transfer of any of the foregoing;
(b) any lack of validity or enforceability of the Credit Agreement, any of
the other Loan Documents, or any other document, instrument or agreement
referred to therein or evidencing any Guarantied Obligations or any assignment
or transfer of any of the foregoing;
(c) any furnishing to the Administrative Agent or the Lenders of any
additional security for the Guarantied Obligations, or any sale, exchange,
release or surrender of, or realization on, any collateral securing any of the
Obligations;
(d) any settlement or compromise of any of the Guarantied Obligations, any
security therefor, or any liability of any other party with respect to the
Guarantied Obligations, or any subordination of the payment of the Guarantied
Obligations to the payment of any other liability of the Borrower or any other
Guarantor;
(e) any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to such Guarantor,
the Borrower, any other Guarantor or any other Person, or any action taken with
respect to this Guaranty by any trustee or receiver, or by any court, in any
such proceeding;
(f) any act or failure to act by the Borrower, any other Guarantor or any
other Person which may adversely affect such Guarantor's subrogation rights, if
any, against the Borrower to recover payments made under this Guaranty;
(g) any nonperfection of any security interest or other Lien on any
collateral, if any, securing in any way any of the Obligations;
(h) any application of sums paid by the Borrower, any other Guarantor or
any other Person with respect to the liabilities of the Borrower to the
Administrative Agent or the Lenders, regardless of what liabilities of the
Borrower remain unpaid;
(i) any defect, limitation or insufficiency in the borrowing powers of the
Borrower or in the exercise thereof; or
(j) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, a Guarantor hereunder (other than indefeasible
payment in full).
Section 4. Action with Respect to Guarantied Obligations. The Lenders and
---------------------------------------------
the Administrative Agent may, at any time and from time to time, without the
consent of, or notice to, any Guarantor, and without discharging any Guarantor
from its obligations hereunder take any and all actions described in Section 3
and may otherwise: (a) amend,
-3-
modify, alter or supplement the terms of any of the Guarantied Obligations,
including, but not limited to, extending or shortening the time of payment of
any of the Guarantied Obligations or changing the interest rate that may accrue
on any of the Guarantied Obligations; (b) amend, modify, alter or supplement the
Credit Agreement or any other Loan Document; (c) sell, exchange, release or
otherwise deal with all, or any part, of any collateral securing any of the
Obligations; (d) release any other Guarantor or other Person liable in any
manner for the payment or collection of the Guarantied Obligations; (e)
exercise, or refrain from exercising, any rights against the Borrower, any other
Guarantor or any other Person; and (f) apply any sum, by whomsoever paid or
however realized, to the Guarantied Obligations in such order as the Lenders
shall elect.
Section 5. Representations and Warranties. Each Guarantor hereby makes to
------------------------------
the Administrative Agent and the Lenders all of the representations and
warranties made by the Borrower with respect to or in any way relating to such
Guarantor in the Credit Agreement and the other Loan Documents, as if the same
were set forth herein in full.
Section 6. Covenants. Each Guarantor will comply with all covenants which
---------
the Borrower is to cause such Guarantor to comply with under the terms of the
Credit Agreement or any of the other Loan Documents.
Section 7. Waiver. Each Guarantor, to the fullest extent permitted by
------
Applicable Law, hereby waives notice of acceptance hereof or any presentment,
demand, protest or notice of any kind, and any other act or thing, or omission
or delay to do any other act or thing, which in any manner or to any extent
might vary the risk of such Guarantor or which otherwise might operate to
discharge such Guarantor from its obligations hereunder and hereby waives all
rights such Guarantor may now or in the future have under any statute or other
Applicable Law.
Section 8. Inability to Accelerate Loan. If the Administrative Agent
----------------------------
and/or the Lenders are prevented under Applicable Law or otherwise from
demanding or accelerating payment of any of the Guarantied Obligations by reason
of any automatic stay or otherwise, the Administrative Agent and/or the Lenders
shall be entitled to receive from each Guarantor, upon demand therefor, the sums
which otherwise would have been due had such demand or acceleration occurred.
Section 9. Reinstatement of Guarantied Obligations. If claim is ever made
---------------------------------------
on the Administrative Agent or any Lender for repayment or recovery of any
amount or amounts received in payment or on account of any of the Guarantied
Obligations, and the Administrative Agent or such Lender repays all or part of
said amount by reason of (a) any judgment, decree or order of any court or
administrative body of competent jurisdiction, or (b) any settlement or
compromise of any such claim effected by the Administrative Agent or such Lender
with any such claimant (including the Borrower or a trustee in bankruptcy for
the Borrower), then and in such event each Guarantor agrees that any such
judgment, decree, order, settlement or compromise shall be binding on it,
notwithstanding any revocation hereof or the cancellation of the Credit
Agreement, any of the other Loan Documents, or any other instrument evidencing
any liability of the
-4-
Borrower, and such Guarantor shall be and remain liable to the Administrative
Agent or such Lender for the amounts so repaid or recovered to the same extent
as if such amount had never originally been paid to the Administrative Agent or
such Lender.
Section 10. Subrogation. Upon the making by any Guarantor of any payment
-----------
hereunder for the account of the Borrower, such Guarantor shall be subrogated to
the rights of the payee against the Borrower; provided, however, that such
-------- -------
Guarantor shall not enforce any right or receive any payment by way of
subrogation or otherwise take any action in respect of any other claim or cause
of action such Guarantor may have against the Borrower arising by reason of any
payment or performance by such Guarantor pursuant to this Guaranty, unless and
until all of the Guarantied Obligations have been indefeasibly paid and
performed in full. If any amount shall be paid to such Guarantor on account of
or in respect of such subrogation rights or other claims or causes of action,
such Guarantor shall hold such amount in trust for the benefit of the
Administrative Agent and the Lenders and shall forthwith pay such amount to the
Administrative Agent to be credited and applied against the Guarantied
Obligations, whether matured or unmatured, in accordance with the terms of the
Credit Agreement or to be held by the Administrative Agent as collateral
security for any Guarantied Obligations existing.
Section 11. Payments Free and Clear. All sums payable by each Guarantor
-----------------------
hereunder, whether of principal, interest, Fees, expenses, premiums or
otherwise, shall be paid in full, without set-off or counterclaim or any
deduction or withholding whatsoever (including any taxes or liability imposed by
any Governmental Authority, or any Applicable Law promulgated thereby), and if
any Guarantor is required by such Applicable Law or by such Governmental
Authority to make any such deduction or withholding, such Guarantor shall pay to
the Administrative Agent and the Lenders such additional amount as will result
in the receipt by the Administrative Agent and the Lenders of the full amount
payable hereunder had such deduction or withholding not occurred or been
required.
Section 12. Set-off. In addition to any rights now or hereafter granted
-------
under any of the other Loan Documents or Applicable Law and not by way of
limitation of any such rights, each Guarantor hereby authorizes the
Administrative Agent, at any time during the continuance of an Event of Default,
without any prior notice to such Guarantor or to any other Person, any such
notice being hereby expressly waived, to set-off and to appropriate and to apply
any and all deposits (general or special, including, but not limited to,
indebtedness evidenced by certificates of deposit, whether matured or unmatured)
and any other indebtedness at any time held or owing by the Administrative
Agent, or any affiliate of the Administrative Agent, to or for the credit or the
account of such Guarantor against and on account of any of the Guarantied
Obligations, although such obligations shall be contingent or unmatured.
Section 13. Subordination. Each Guarantor hereby expressly covenants and
-------------
agrees for the benefit of the Administrative Agent and the Lenders that all
obligations and liabilities of the Borrower to such Guarantor of whatever
description, including without limitation, all intercompany receivables of such
Guarantor from the Borrower
-5-
(collectively, the "Junior Claims") shall be subordinate and junior in right of
payment to all Guarantied Obligations. If an Event of Default shall have
occurred and be continuing, then no Guarantor shall accept any direct or
indirect payment (in cash, property, securities by setoff or otherwise) from the
Borrower on account of or in any manner in respect of any Junior Claim until all
of the Guarantied Obligations have been indefeasibly paid in full.
Section 14. Avoidance Provisions. It is the intent of each Guarantor, the
--------------------
Administrative Agent and the Lenders that in any Proceeding, such Guarantor's
maximum obligation hereunder shall equal, but not exceed, the maximum amount
which would not otherwise cause the obligations of such Guarantor hereunder (or
any other obligations of such Guarantor to the Administrative Agent and the
Lenders) to be avoidable or unenforceable against such Guarantor in such
Proceeding as a result of Applicable Law, including without limitation, (a)
Section 548 of the Bankruptcy Code of 1978, as amended (the "Bankruptcy Code")
and (b) any state fraudulent transfer or fraudulent conveyance act or statute
applied in such Proceeding, whether by virtue of Section 544 of the Bankruptcy
Code or otherwise. The Applicable Laws under which the possible avoidance or
unenforceability of the obligations of such Guarantor hereunder (or any other
obligations of such Guarantor to the Administrative Agent and the Lenders) shall
be determined in any such Proceeding are referred to as the "Avoidance
Provisions". Accordingly, to the extent that the obligations of any Guarantor
hereunder would otherwise be subject to avoidance under the Avoidance
Provisions, the maximum Guarantied Obligations for which such Guarantor shall be
liable hereunder shall be reduced to that amount which, as of the time any of
the Guarantied Obligations are deemed to have been incurred under the Avoidance
Provisions, would not cause the obligations of such Guarantor hereunder (or any
other obligations of such Guarantor to the Administrative Agent and the
Lenders), to be subject to avoidance under the Avoidance Provisions. This
Section is intended solely to preserve the rights of the Administrative Agent
and the Lenders hereunder to the maximum extent that would not cause the
obligations of any Guarantor hereunder to be subject to avoidance under the
Avoidance Provisions, and no Guarantor or any other Person shall have any right
or claim under this Section as against the Administrative Agent and the Lenders
that would not otherwise be available to such Person under the Avoidance
Provisions.
Section 15. Information. Each Guarantor assumes all responsibility for
-----------
being and keeping itself informed of the financial condition of the Borrower and
the other Guarantors, and of all other circumstances bearing upon the risk of
nonpayment of any of the Guarantied Obligations and the nature, scope and extent
of the risks that such Guarantor assumes and incurs hereunder, and agrees that
neither the Administrative Agent nor any Lender shall have any duty whatsoever
to advise any Guarantor of information regarding such circumstances or risks.
Section 16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
-6-
SECTION 17. WAIVER OF JURY TRIAL; ARBITRATION.
---------------------------------
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN
OR AMONG ANY GUARANTOR, THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS WOULD BE
BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY
AND EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH OF THE LENDERS, THE ADMINISTRATIVE AGENT AND EACH GUARANTOR HEREBY
WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR
NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR
AGAINST ANY PARTY HERETO ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER
BETWEEN OR AMONG THE BORROWER, THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS OF
ANY KIND OR NATURE.
(b) EACH OF THE GUARANTORS, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY
AGREES THAT ANY FEDERAL DISTRICT COURT IN NEW YORK OR, AT THE OPTION OF THE
ADMINISTRATIVE AGENT, ANY STATE COURT LOCATED IN NEW YORK, NEW YORK, SHALL HAVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG ANY
GUARANTOR, THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY
OR INDIRECTLY TO THIS AGREEMENT, THE LOANS, THE NOTES OR ANY OTHER LOAN DOCUMENT
OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. EACH GUARANTOR AND EACH OF THE
LENDERS EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY
ACTION OR PROCEEDING COMMENCED IN SUCH COURTS. EACH PARTY FURTHER WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME. THE CHOICE
OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING
OF ANY ACTION BY THE ADMINISTRATIVE AGENT OR ANY LENDER OR THE ENFORCEMENT BY
THE ADMINISTRATIVE AGENT OR ANY LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN
ANY OTHER APPROPRIATE JURISDICTION.
(c) EACH GUARANTOR, AND THE ADMINISTRATIVE AGENT AND EACH LENDER BY
ACCEPTING THE BENEFITS OF THIS GUARANTY, AGREES THAT UPON DEMAND OF THE
ADMINISTRATIVE AGENT OR ANY LENDER, WHETHER MADE BEFORE OR AFTER INSTITUTION OF
ANY JUDICIAL PROCEEDING, AND SUBJECT TO RECEIPT OF THE PRIOR WRITTEN CONSENT OF
THE REQUISITE LENDERS, ANY CLAIM OR CONTROVERSY ARISING OUT
-7-
OF, OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENTS ("DISPUTES")
BETWEEN OR AMONG THE ADMINISTRATIVE AGENT OR ANY LENDER ON THE ONE HAND, AND ANY
GUARANTOR ON THE OTHER, SHALL BE RESOLVED BY BINDING ARBITRATION CONDUCTED UNDER
AND GOVERNED BY THE COMMERCIAL FINANCIAL DISPUTES ARBITRATION RULES (THE
"ARBITRATION RULES") OF THE AMERICAN ARBITRATION ASSOCIATION (THE "AAA") AND THE
FEDERAL ARBITRATION ACT. DISPUTES MAY INCLUDE, WITHOUT LIMITATION, TORT CLAIMS,
COUNTERCLAIMS, DISPUTES AS TO WHETHER A MATTER IS SUBJECT TO ARBITRATION, CLAIMS
BROUGHT AS CLASS ACTIONS, AND CLAIMS ARISING FROM LOAN DOCUMENTS EXECUTED IN THE
FUTURE. A JUDGMENT UPON THE AWARD MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. NOTWITHSTANDING THE FOREGOING, THIS ARBITRATION PROVISION DOES NOT
APPLY TO DISPUTES UNDER OR RELATED TO INTEREST RATE AGREEMENTS TO WHICH ANY
LENDER IS A PARTY. ALL ARBITRATION HEARINGS SHALL BE CONDUCTED IN NEW YORK, NEW
YORK. A HEARING SHALL BEGIN WITHIN 90 DAYS OF DEMAND FOR ARBITRATION AND ALL
HEARINGS SHALL BE CONCLUDED WITHIN 120 DAYS OF DEMAND FOR ARBITRATION. THESE
TIME LIMITATIONS MAY NOT BE EXTENDED UNLESS A PARTY SHOWS CAUSE FOR EXTENSION
AND THEN NO MORE THAN A TOTAL EXTENSION OF 60 DAYS. THE EXPEDITED PROCEDURES SET
FORTH IN RULE 51 ET. SEQ. OF THE ARBITRATION RULES SHALL BE APPLICABLE TO CLAIMS
OF LESS THAN $1,000,000. ARBITRATORS SHALL BE LICENSED ATTORNEYS SELECTED FROM
THE COMMERCIAL FINANCIAL DISPUTE ARBITRATION PANEL OF THE AAA. THE PARTIES DO
NOT WAIVE ANY APPLICABLE LAWS EXCEPT AS PROVIDED HEREIN. NOTWITHSTANDING THE
PRECEDING BINDING ARBITRATION PROVISIONS, THE PARTIES AGREE TO PRESERVE, WITHOUT
DIMINUTION, THE FOLLOWING REMEDIES THAT THE ADMINISTRATIVE AGENT OR THE LENDERS
MAY EXERCISE BEFORE OR AFTER AN ARBITRATION PROCEEDING IS BROUGHT. SUBJECT TO
THE OTHER TERMS HEREOF, THE ADMINISTRATIVE AGENT AND THE LENDERS SHALL HAVE THE
RIGHT TO PROCEED IN ANY COURT OF PROPER JURISDICTION OR BY SELF-HELP TO EXERCISE
OR PROSECUTE THE FOLLOWING REMEDIES, AS APPLICABLE: (I) ALL RIGHTS TO FORECLOSE
AGAINST ANY REAL OR PERSONAL PROPERTY OR OTHER SECURITY BY EXERCISING A POWER OF
SALE OR UNDER APPLICABLE LAW BY JUDICIAL FORECLOSURE INCLUDING A PROCEEDING TO
CONFIRM THE SALE; (II) ALL RIGHTS OF SELF-HELP INCLUDING PEACEFUL OCCUPATION OF
REAL PROPERTY AND COLLECTION OF RENTS, SET-OFF, AND PEACEFUL POSSESSION OF
PERSONAL PROPERTY; (III) OBTAINING PROVISIONAL OR ANCILLARY REMEDIES INCLUDING
INJUNCTIVE RELIEF, SEQUESTRATION, GARNISHMENT, ATTACHMENT, APPOINTMENT OF
RECEIVER AND FILING AN INVOLUNTARY BANKRUPTCY PROCEEDING; AND (IV) WHEN
APPLICABLE, A JUDGMENT BY CONFESSION OF JUDGMENT. ANY CLAIM OR CONTROVERSY WITH
REGARD TO PARTIES ENTITLEMENT TO SUCH
-8-
REMEDIES IS A DISPUTE. THE PARTIES HERETO ACKNOWLEDGE THAT BY AGREEING TO
BINDING ARBITRATION THEY HAVE IRREVOCABLY WAIVED ANY RIGHT THEY MAY HAVE TO A
JURY TRIAL WITH REGARD TO A DISPUTE.
Section 18. Loan Accounts. The Administrative Agent and each Lender may
-------------
maintain books and accounts setting forth the amounts of principal, interest and
other sums paid and payable with respect to the Guarantied Obligations, and in
the case of any dispute relating to any of the outstanding amount, payment or
receipt of any of the Guarantied Obligation or otherwise, the entries in such
books and accounts shall be deemed prima facie evidence of the amounts and other
matters set forth herein. The failure of the Administrative Agent or any Lender
to maintain such books and accounts shall not in any way relieve or discharge
any Guarantor of any of its obligations hereunder.
Section 19. Waiver of Remedies. No delay or failure on the part of the
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Administrative Agent or any Lender in the exercise of any right or remedy it may
have against any Guarantor hereunder or otherwise shall operate as a waiver
thereof, and no single or partial exercise by the Administrative Agent or any
Lender of any such right or remedy shall preclude other or further exercise
thereof or the exercise of any other such right or remedy.
Section 20. Termination. This Guaranty shall remain in full force and
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effect until indefeasible payment in full of the Guarantied Obligations and the
other Obligations and the termination or cancellation of the Credit Agreement.
Section 21. Successors and Assigns. Each reference herein to the
----------------------
Administrative Agent or the Lenders shall be deemed to include such Person's
respective successors and assigns (including, but not limited to, any holder of
the Guarantied Obligations) in whose favor the provisions of this Guaranty also
shall inure, and each reference herein to each Guarantor shall be deemed to
include such Guarantor's successors and assigns, upon whom this Guaranty also
shall be binding. The Lenders may, in accordance with the applicable provisions
of the Credit Agreement, assign, transfer or sell any Guarantied Obligation, or
grant or sell participation in any Guarantied Obligations, to any Person without
the consent of, or notice to, any Guarantor and without releasing, discharging
or modifying any Guarantor's obligations hereunder. Each Guarantor hereby
consents to the delivery by the Administrative Agent or any Lender to any
Assignee or Participant (or any prospective Assignee or Participant) of any
financial or other information regarding the Borrower or any Guarantor. No
Guarantor may assign or transfer its obligations hereunder to any Person.
Section 22. JOINT AND SEVERAL OBLIGATIONS. THE OBLIGATIONS OF THE
-----------------------------
GUARANTORS HEREUNDER SHALL BE JOINT AND SEVERAL, AND ACCORDINGLY, EACH GUARANTOR
CONFIRMS THAT IT IS LIABLE FOR THE FULL AMOUNT OF THE "GUARANTIED OBLIGATIONS"
AND ALL OF THE OBLIGATIONS AND LIABILITIES OF EACH OF THE OTHER GUARANTORS
HEREUNDER.
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Section 23. Amendments. This Guaranty may not be amended except in
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writing signed by the Requisite Lenders (or all of the Lenders if required under
the terms of the Credit Agreement), the Administrative Agent and each Guarantor.
Section 24. Payments. All payments to be made by any Guarantor pursuant
--------
to this Guaranty shall be made in Dollars, in immediately available funds to the
Administrative Agent at the Principal Office, not later than 2:00 p.m. on the
date of demand therefor.
Section 25. Notices. All notices, requests and other communications
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hereunder shall be in writing (including facsimile transmission or similar
writing) and shall be given (a) to each Guarantor at its address set forth below
its signature hereto, (b) to the Administrative Agent, any Lender or the
Arrangers at its address for notices provided for in the Credit Agreement, or
(c) as to each such party at such other address as such party shall designate in
a written notice to the other parties. Each such notice, request or other
communication shall be effective (i) if mailed, when received; (ii) if
telecopied, when transmitted; or (iii) if hand delivered, when delivered;
provided, however, that any notice of a change of address for notices shall not
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be effective until received.
Section 26. Severability. In case any provision of this Guaranty shall be
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invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 27. Headings. Section headings used in this Guaranty are for
--------
convenience only and shall not affect the construction of this Guaranty.
Section 28. Definitions. (a) For the purposes of this Guaranty:
-----------
"Proceeding" means any of the following: (i) a voluntary or involuntary
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case concerning any Guarantor shall be commenced under the Bankruptcy Code of
1978, as amended; (ii) a custodian (as defined in such Bankruptcy Code or any
other applicable bankruptcy laws) is appointed for, or takes charge of, all or
any substantial part of the property of any Guarantor; (iii) any other
proceeding under any Applicable Law, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up or composition for adjustment
of debts, whether now or hereafter in effect, is commenced relating to any
Guarantor; (iv) any Guarantor is adjudicated insolvent or bankrupt; (v) any
order of relief or other order approving any such case or proceeding is entered
by a court of competent jurisdiction; (vi) any Guarantor makes a general
assignment for the benefit of creditors; (vii) any Guarantor shall fail to pay,
or shall state that it is unable to pay, or shall be unable to pay, its debts
generally as they become due; (viii) any Guarantor shall call a meeting of its
creditors with a view to arranging a composition or adjustment of its debts;
(ix) any Guarantor shall by any act or failure to act indicate its consent to,
approval of or acquiescence in any of the foregoing; or (x) any corporate action
shall be taken by any Guarantor for the purpose of effecting any of the
foregoing.
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(b) Terms not otherwise defined herein are used herein with the respective
meanings given them in the Credit Agreement.
Section 29. NO NOVATION. THE PARTIES HERETO HAVE ENTERED INTO THIS
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GUARANTY SOLELY TO AMEND AND RESTATE THE TERMS OF THE GUARANTY DATED AS OF MARCH
22, 1999 (THE "EXISTING GUARANTY"), EXECUTED BY THE GUARANTORS IN FAVOR OF THE
ADMINISTRATIVE AGENT AND CERTAIN OF THE LENDERS. THE PARTIES DO NOT INTEND THIS
AGREEMENT, NOR THE TRANSACTIONS CONTEMPLATED HEREBY, TO BE, AND THIS AGREEMENT
AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL NOT BE CONSTRUED TO BE, A
NOVATION OR WAIVER OF ANY OF THE OBLIGATIONS OWING BY ANY EXISTING GUARANTOR
UNDER OR IN CONNECTION WITH THE EXISTING GUARANTY.
[Signature on Next Page]
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IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this
Guaranty as of the date and year first written above.
CNL AMERICAN PROPERTIES FUND, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------
Title:Chief Financial Officer
------------------------
CNL APF GP CORP.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------
Title:Chief Financial Officer
------------------------
CNL APF LP CORP.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------
Title:Chief Financial Officer
------------------------
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
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ACCESSION AGREEMENT
THIS ACCESSION AGREEMENT dated as of ____________, ____, executed and
delivered by ______________________, a _____________ (the "New Subsidiary") in
favor of (a) FIRST UNION NATIONAL BANK, in its capacity as Administrative Agent
(the "Administrative Agent") for the Lenders under that certain Amended and
Restated Credit Agreement dated as of June 9, 1999 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
by and among CNL APF Partners, LP (the "Borrower"), CNL American Properties
Fund, Inc., the financial institutions party thereto and their assignees under
Section 12.5.(d) thereof (the "Lenders"), each of First Union Capital Markets
Group and Banc of America Securities LLC, as Joint Lead Arrangers and Book
Managers, NationsBank, N.A., as Syndication Agent, The Chase Manhattan Bank, as
Documentation Agent, and the Administrative Agent.
WHEREAS, pursuant to the Credit Agreement, the Administrative Agent and the
Lenders have agreed to make available to the Borrower certain financial
accommodations on the terms and conditions set forth in the Credit Agreement;
WHEREAS, the Parent owns, directly or indirectly, a majority of the issued
and outstanding capital stock of, or other equity interest in, the New
Subsidiary;
WHEREAS, the Borrower, the New Subsidiary, the Parent and the other
Guarantors, though separate legal entities, are mutually dependent on each other
in the conduct of their respective businesses as an integrated operation and
have determined it to be in their mutual best interests to obtain financing from
the Administrative Agent and the Lenders through their collective efforts;
WHEREAS, the New Subsidiary acknowledges that it will receive direct and
indirect benefits from the Administrative Agent and the Lenders making such
financial accommodations available to the Borrower under the Credit Agreement
and, accordingly, the New Subsidiary is willing to guarantee the Borrower's
obligations to the Administrative Agent and the Lenders on the terms and
conditions contained herein; and
WHEREAS, the New Subsidiary's execution and delivery of this Agreement is a
condition to the Administrative Agent and the Lenders continuing to make such
financial accommodations to the Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the New Subsidiary, the New
Subsidiary agrees as follows:
Section 1. Accession to Guaranty. The New Subsidiary hereby agrees that
---------------------
it is a "Guarantor" under that certain Guaranty dated as of June 9, 1999 (as
amended, supplemented, restated or otherwise modified from time to time, the
"Guaranty"), made
by each Subsidiary of the Parent a party thereto in favor of the Administrative
Agent and the Lenders and assumes all obligations of a "Guarantor" thereunder,
all as if the New Subsidiary had been an original signatory to the Guaranty.
Without limiting the generality of the foregoing, the New Subsidiary hereby:
(a) irrevocably and unconditionally guarantees the due and punctual payment
and performance when due, whether at stated maturity, by acceleration or
otherwise, of all Guarantied Obligations (as defined in the Guaranty);
(b) makes to the Administrative Agent and the Lenders as of the date hereof
each of the representations and warranties contained in Section 5 of the
Guaranty and agrees to be bound by each of the covenants contained in Section 6
of the Guaranty; and
(c) consents and agrees to each provision set forth in the Guaranty.
SECTION 2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
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CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 3. Definitions. Capitalized terms used herein and not otherwise
-----------
defined herein shall have their respective defined meanings given them in the
Credit Agreement.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the New Subsidiary has caused this Accession Agreement
to be duly executed and delivered under seal by its duly authorized officers as
of the date first written above.
[NEW SUBSIDIARY]
By:_____________________________
Name:________________________
Title:_______________________
Address for Notices:
________________________
________________________
________________________
Attention: _______________
Telecopy Number: _____________
Telephone Number: _____________
Accepted:
FIRST UNION NATIONAL BANK,
as Administrative Agent
By:_______________________
Name:___________________
Title:__________________
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