LOAN AGREEMENT
AMONG
COUSINS PROPERTIES INCORPORATED,
WACHOVIA BANK OF GEORGIA, N.A.,
NATIONSBANK OF GEORGIA, N.A.
AND
NATIONSBANK OF GEORGIA, N.A.
As Administrative Agent for the Banks
ARTICLE 1 - Definitions. . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2 - Loans and Letters of Credit. . . . . . . . . . . . 12
Section 2.1Extension of Credit. . . . . . . . . . . . . . 12
Section 2.2Manner of Borrowing and Disbursement . . . . . 13
Section 2.3Interest . . . . . . . . . . . . . . . . . . . 14
Section 2.4Fees and Commissions.. . . . . . . . . . . . . 15
Section 2.5Repayment. . . . . . . . . . . . . . . . . . . 15
Section 2.6Notes; Loan Accounts . . . . . . . . . . . . . 16
Section 2.7Manner of Payment. . . . . . . . . . . . . . . 16
Section 2.8Application of Payments. . . . . . . . . . . . 17
Section 2.9Letters of Credit. . . . . . . . . . . . . . . 18
ARTICLE 3 - Conditions Precedent . . . . . . . . . . . . . . . 22
Section 3.1Conditions Precedent to Initial Advance. . . . 22
Section 3.2Conditions Precedent to Each Advance . . . . . 23
Section 3.3Conditions Precedent to Issuance of
Letters of Credit. . . . . . . . . . . . . . . 24
ARTICLE 4 - Representations and Warranties . . . . . . . . . . 25
Section 4.1Representations and Warranties . . . . . . . . 25
ARTICLE 5 - General Covenants. . . . . . . . . . . . . . . . . 31
Section 5.1Preservation of Existence and Similar Matters. 31
Section 5.2Compliance with Applicable Law . . . . . . . . 31
Section 5.3Maintenance of Properties. . . . . . . . . . . 31
Section 5.4Accounting Methods and Financial Records . . . 31
Section 5.5Insurance. . . . . . . . . . . . . . . . . . . 32
Section 5.6Payment of Taxes and Claims. . . . . . . . . . 32
Section 5.7Visits and Inspections . . . . . . . . . . . . 32
Section 5.8Payment of Indebtedness. . . . . . . . . . . . 33
Section 5.9Use of Proceeds. . . . . . . . . . . . . . . . 33
Section 5.10ERISA . . . . . . . . . . . . . . . . . . . . 33
Section 5.11Further Assurances. . . . . . . . . . . . . . 33
Section 5.12Broker's Claims . . . . . . . . . . . . . . . 33
ARTICLE 6 - Information Covenants. . . . . . . . . . . . . . . 34
Section 6.1Quarterly Financial Statements and Information 34
Section 6.2Annual Financial Statements and Information;
Certificate of No Default. . . . . . . . . . . 34
Section 6.3Performance Certificates . . . . . . . . . . . 34
Section 6.4Copies of Other Reports. . . . . . . . . . . . 35
Section 6.5Notice of Litigation and Other Matters . . . . 35
ARTICLE 7 - Negative Covenants . . . . . . . . . . . . . . . . 36
Section 7.1Indebtedness of the Borrower . . . . . . . . . 36
Section 7.2Investments. . . . . . . . . . . . . . . . . . 37
Section 7.3Limitation on Liens. . . . . . . . . . . . . . 37
Section 7.4Amendment and Waiver . . . . . . . . . . . . . 38
Section 7.5Liquidation; Disposition or Acquisition of
Assets . . . . . . . . . . . . . . . . . . . . 38
Section 7.6Limitation on Guaranties . . . . . . . . . . . 38
Section 7.7Restricted Payments and Purchases. . . . . . . 39
Section 7.8Total Debt to Total Assets Ratio . . . . . . . 39
Section 7.9Leverage Ratio . . . . . . . . . . . . . . . . 39
Section 7.10Minimum Stockholders' Investment. . . . . . . 39
Section 7.11Net Income. . . . . . . . . . . . . . . . . . 39
Section 7.12Interest Coverage Ratio . . . . . . . . . . . 39
Section 7.13Affiliate Transactions. . . . . . . . . . . . 39
Section 7.14ERISA Liabilities . . . . . . . . . . . . . . 40
ARTICLE 8 - Default. . . . . . . . . . . . . . . . . . . . . . 40
Section 8.1Events of Default. . . . . . . . . . . . . . . 40
Section 8.2Remedies . . . . . . . . . . . . . . . . . . . 43
ARTICLE 9 - The Administrative Agent . . . . . . . . . . . . . 44
Section 9.1Appointment and Authorization. . . . . . . . . 44
Section 9.2Delegation of Duties . . . . . . . . . . . . . 44
Section 9.3Interest Holders . . . . . . . . . . . . . . . 44
Section 9.4Consultation with Counsel. . . . . . . . . . . 44
Section 9.5Documents. . . . . . . . . . . . . . . . . . . 44
Section 9.6Administrative Agent and Affiliates. . . . . . 45
Section 9.7Responsibility of the Administrative Agent . . 45
Section 9.8Action by Administrative Agent . . . . . . . . 45
Section 9.9Notice of Default or Event of Default. . . . . 45
Section 9.10Responsibility Disclaimed . . . . . . . . . . 46
Section 9.11Indemnification . . . . . . . . . . . . . . . 46
Section 9.12Credit Decision . . . . . . . . . . . . . . . 46
Section 9.13Successor Administrative Agent. . . . . . . . 47
ARTICLE 10 - Miscellaneous . . . . . . . . . . . . . . . . . . 47
Section 10.1Notices . . . . . . . . . . . . . . . . . . . 47
Section 10.2Expenses. . . . . . . . . . . . . . . . . . . 49
Section 10.3Waivers . . . . . . . . . . . . . . . . . . . 50
Section 10.4Set-Off . . . . . . . . . . . . . . . . . . . 50
Section 10.5Assignment. . . . . . . . . . . . . . . . . . 51
Section 10.6Counterparts. . . . . . . . . . . . . . . . . 52
Section 10.7Governing Law . . . . . . . . . . . . . . . . 52
Section 10.8Severability. . . . . . . . . . . . . . . . . 52
Section 10.9Headings. . . . . . . . . . . . . . . . . . . 52
Section 10.10Interest . . . . . . . . . . . . . . . . . . 52
Section 10.11Entire Agreement . . . . . . . . . . . . . . 53
Section 10.12Amendment and Waiver . . . . . . . . . . . . 53
Section 10.13Other Relationships. . . . . . . . . . . . . 53
Section 10.14Confidentiality. . . . . . . . . . . . . . . 53
ARTICLE 11 - ARBITRATION . . . . . . . . . . . . . . . . . . . 53
<PAGE>
Exhibits
Exhibit A- Form of Assignment of General Partner Interests
Exhibit B- Form of Assignment of Limited Partner Interests
Exhibit C- Form of Note
Exhibit D- Form of Request for Advance
Exhibit E- Form of Request for Issuance of Letter of Credit
Exhibit F- Form of Consolidated Entity Guaranty Agreement
Exhibit G- Form of Borrower's Loan Certificate
Exhibit H- Form of Opinion of Borrower's Counsel
Schedules
Schedule 1- Real Property owned by CSC
Schedule 2- Letters of Credit on Agreement Date
Schedule 3- Liens of Record
Schedule 4- List of Unconsolidated Entities
Schedule 5- List of Consolidated Entity Guarantors
Schedule 6- List of Consolidated Entities
LOAN AGREEMENT
COUSINS PROPERTIES INCORPORATED,
WACHOVIA BANK OF GEORGIA, N.A., NATIONSBANK OF GEORGIA, N.A
and
NATIONSBANK OF GEORGIA, N.A.,
as administrative agent for the Banks,
agree as follows as of the 20th day of July, 1994:
ARTICLE 1 - Definitions.
For the purposes of this Agreement:
"Administrative Agent" shall mean NationsBank of Georgia, N.A. (or any
successor Administrative Agent appointed in accordance with this Agreement),
acting as Administrative Agent for the Banks and the Issuing Bank.
"Administrative Agent's Office" shall mean the office of the
Administrative Agent located at the address set forth in Section 10.1 hereof,
or such other office as may be designated pursuant to the provisions of
Section 10.1 hereof.
"Advance" or "Advances" shall mean amounts advanced by the Banks to the
Borrower pursuant to Article 2 hereof on the occasion of any borrowing.
"Affiliate" shall mean any Person (other than a Person whose sole
relationship with the Borrower is as an employee) directly or indirectly
controlling, controlled by, or under common control with the Borrower. For
purposes of this definition, "control" when used with respect to any Person
means the direct or indirect beneficial ownership of more than twenty percent
(20%) of the voting securities or voting equity or partnership interests,
or the power to direct or cause the direction of the management and
policies whether by control or otherwise.
"Agreement" shall mean this Loan Agreement.
"Agreement Date" shall mean the date as of which this Agreement is
dated.
"Applicable Law" shall mean, in respect of any Person, all provisions
of constitutions, statutes, rules, regulations, and orders of governmental
bodies or regulatory agencies applicable to such Person, including, without
limitation, all orders and decrees of all courts and arbitrators in
proceedings or actions to which the Person in question is a part which it is
bound.
"Assignment of Partnership Interests" shall mean, collectively, (a) that
certain Assignment of General Partner Interests of even date herewith between
the Borrower and the Administrative Agent (for itself and on behalf of the
Banks), substantially in the form of Exhibit A attached hereto, and (b) that
certain Assignment of Limited Partner Interests of even date herewith between
the Borrower and the Administrative Agent (for itself behalf of the Banks),
substantially in the form of Exhibit B attached hereto.
"Authorized Signatory" shall mean, with respect to any Person, such
senior personnel of such Person as may be duly authorized and designated in
writing by the Person to execute documents, agreements, and instruments on
behalf of the Person.
"Available Commitment" shall mean, as of any particular time, (a) (i) for
the period from the Agreement Date through September 30, 1994, $60,000,000;
(ii) for the period from October 1, 1994 through December 31, 1994,
$75,000,000; and (iii) for the period from January 1, 1995 through the
Maturity Date, $100,000,000, minus (b) the sum of (i) the Loan then
outstanding and (ii) the aggregate amount of all Letter of Credit
Obligation outstanding.
"Available Letter of Credit Commitment" shall mean, at any time, the
lesser of (a) $7,500,000 and (b) (i) the Commitment less (ii) all Loans and
Letter of Credit Obligations then outstanding.
"Banks" shall mean those banks whose names are set forth on the
signature pages hereof under the heading "Banks" and any assignees of the
Banks which hereafter become parties hereto pursuant to and in accordance
with Section 10.5 hereof; and "Bank" shall mean any one of the foregoing
Banks.
"Borrower" shall mean Cousins Properties Incorporated, a Georgia
corporation.
"Business Day" shall mean a day on which banks are not authorized or
required to be closed and foreign exchange markets are open for the trans-
action of business required for this Agreement in Atlanta, Georgia.
"Capital Expenditures" shall mean expenditures for the purchase or
improvement of assets of long-term use which are capitalized in accordance
with GAAP.
"Capitalized Lease Obligation" shall mean that portion of any
obligation of a specified Person as lessee under a lease which at the time
would be required to be capitalized on the balance sheet of such lessee
in accordance with GAAP.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean the Borrower's general and limited partnership
interests in CSC.
"Commercial Letter of Credit" shall mean a documentary letter of credit
issued in respect of the purchase of goods or services by the Borrower or its
Consolidated Entities by the Issuing Bank in accordance with the terms hereof.
"Commitment" shall mean the several obligations of the Banks to advance
funds or extend Letters of Credit in the aggregate sum of up to $100,000,000
to the Borrower pursuant to the terms hereof, as such obligations may be
reduced from time to time pursuant to the terms hereof and subject to the
Available Commitment and the Available Letter of Credit Commitment.
"Commitment Ratios" shall mean the percentages as of the date of
determination in which the Banks are severally bound to satisfy the
Commitment to make Advances to the Borrower pursuant to the terms hereof,
which as of the Agreement Date are as set forth below:
<TABLE>
<CAPTION>
Percentage
(Rounded to the Dollar
Bank nearest 1/10%) Commitment
---- --------------- ----------
<S> <C> <C>
NationsBank of Georgia, N.A. 50% $50,000,000
Wachovia Bank of Georgia, N.A. 50% $50,000,000
TOTAL: 100% $100,000,000
</TABLE>
"Consolidated Entity" shall mean any entity whose accounts are
consolidated with those of the Borrower in accordance with GAAP, and shall
include, without limitation, CREC.
"Consolidated Entity Guaranty Agreement" shall mean any Consolidated
Entity Guaranty Agreement issued by any of the Borrower's Consolidated
Entities to the Banks, the Issuing Bank and the Administrative Agent on
behalf of the Banks and in substantially the form of Exhibit F attached
hereto.
"Consolidated Funds From Operations" shall mean, as of any date,
"Consolidated Funds from Operations" on such date calculated in a manner
consistent with the method used in the Borrower's annual report for 1993.
"CREC" shall mean Cousins Real Estate Corporation, a Georgia
corporation.
"CSC" shall mean CSC Associates, L.P., a Georgia limited partnership.
"CSC Property" shall mean that certain real property owned by CSC
and more particularly described on Schedule 1 attached hereto.
"Default" shall mean any Event of Default, and any other event specified
in Section 8.1 hereof which with any passage of time or giving of notice
(or both) would constitute such event an Event of Default.
"Default Rate" shall mean a simple per annum interest rate equal to the
sum of (a) the Prime Rate plus (b) two percent (2%).
"Environmental Laws" shall mean any and all applicable federal, state,
local or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees or requirements of any Governmental Authority regulating,
relating to or imposing liability or standards of conduct concerning
environmental protection matters, including without limitation, Materials,
as now or may at any time hereafter be in effect.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as in effect on the Agreement Date and as such Act may be amended thereafter
from time to time.
"ERISA Affiliate" shall mean (a) any corporation which is a member of
the same controlled group of corporations (within the meaning of Code
Section 414(b)) as is the Borrower, (b) any other trade or business
(whether or not incorporated) under common control (within the meaning of
Code Section 414(c)) with the Borrower, (c) any other corporation,
partnership or other organization which is a member of an affiliated service
group (within the meaning of Code Section 414(m)) with the Borrower, or (d)
any other entity required to be aggregated with the Borrower pursuant to
regulations under Section 414(o).
"Event of Default" shall mean any of the events specified in Section
8.1 hereof, provided that any requirement for notice or lapse of time,
or both, has been satisfied.
"Existing Letters of Credit" shall mean those Letters of Credit
outstanding on the Agreement Date as more particularly described on Schedule
2 attached hereto.
"Federal Funds Effective Rate" shall mean, as of any date, the "Federal
Funds Effective Rate" for each relevant month as published in the Federal
Reserve Statistical Release H.15 (519), as published by the Board of
Governors of the Federal Reserve System, or any successor publication
published by the Board of Governors of the Federal Reserve System. If at
any given time, the Federal Funds Effective Rate no longer is published,
then the Administrative Agent shall notify the Borrower thereof and establish
a reference rate which shall thereafter be deemed to be the Federal Funds
Effective purposes hereof. The rate of interest on the Notes shall be
automatically adjusted as of the first day of each month in which the Federal
Funds Effective Rate changes.
"GAAP" shall mean, as in effect from time to time, generally accepted
accounting principles consistently applied.
"Governmental Authority" shall mean any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guaranty" or "Guaranteed," as applied to an obligation (each a "primary
obligation"), shall mean and include (a) any guaranty, direct or indirect,
in any manner, of any part or all of such primary obligation, and (b) any
agreement, direct or indirect, contingent or otherwise, the practical effect
of which is to assure in any way the payment or perform of damages in the
event of non-performance) of any part or all of such primary obligation,
including, without limiting the foregoing, any reimbursement obligations as
to amounts drawn down by beneficiaries of outstanding letters of credit, and
any obligation of such Person (the "primary obligor"), whether or not
contingent, (i) to purchase any such primary obligation or any property or
asset constituting direct or indirect security therefor, funds (1) for the
purchase or payment of such primary obligation or (2) to capital, equity
capital or the net worth, cash flow, solvency or other balance sheet or
income statement condition of any other Person, (iii) to purchase property,
assets, securities or services primarily for the purpose of assuring the
owner or holder of any primary obligation of the ability of the
primary obligor with respect to such primary obligation to make payment
thereof or (iv) otherwise to assure or hold harmless the owner or
holder of such primary obligation against loss in respect thereof.
"Hazardous Materials" shall mean any hazardous materials, hazardous
wastes, hazardous constituents, hazardous or toxic substances, petroleum
products (including crude oil or any fraction thereof), friable asbestos
containing materials defined or regulated as such in or under any
Environmental Law.
"Indebtedness" shall mean, with respect to any specified Person, (a)
all items, except items of (i) shareholders' and partners' equity, (ii)
capital stock, (iii) surplus, (iv) general contingency or deferred tax
reserves, (v) minority interests in Consolidated Entities, (vi) liabilities
for deposits and (vii) deferred income, which in accordance with GAAP would
be included in determining total liabilities as shown on the liability side
of a balance sheet of such Person, (b) all direct or indirect obligations
secured by any Lien to which any property or asset owned by such Person is
subject, whether or not the obligation secured thereby shall have been
assumed, (c) to the extent not otherwise included, all Capitalized Lease
Obligations of such Person, and (d) all reimbursement obligations
with respect to outstanding letters of credit.
"Indebtedness for Money Borrowed" shall mean, with respect to any
specified Person, all money borrowed by such Person and Indebtedness
represented by notes payable by such Person and drafts accepted
representing extensions of credit to such Person, all obligations of such
Person evidenced by bonds, debentures, notes, or other similar instruments,
all Indebtedness of such Person upon which interest charges are customarily
paid, and all Indebtedness of such Person issued or assumed as full or
partial payment for property orservices, whether or not any such notes,
drafts, obligations, or Indebtedness represent Indebtedness for money
borrowed. For purposes of this definition, interest which is accrued but
not paid on the original due date or within any applicable cure or
grace period as provided by the underlying contract for such interest
shall be deemed Indebtedness for Money Borrowed.
"Interest Capitalized" shall mean, in respect of any period, "Interest
Capitalized" by the Borrower and its Consolidated Entities in such period
calculated in a manner consistent with the method used in the Borrower's
annual report for 1993 and in accordance with GAAP.
"Interest Expense" shall mean, in respect of any period, an amount
equal to the sum of (a) the interest payable during such period with
respect to Indebtedness for Money Borrowed of the Borrower and its
Consolidated Entities, and (b) the interest component of Capitalized Lease
Obligations of the Borrower and its Consolidated Entities.
"Issuing Bank" shall mean NationsBank of Georgia, N.A. (or any successor
Issuing Bank appointed in accordance with the provisions of this Agreement),
as issuer of the Letters of Credit.
"Letter of Credit Obligations" shall mean, at any time, the sum of
(a) an amount equal to the aggregate undrawn and unexpired amount
(including the amount to which any such Letter of Credit can be reinstated
pursuant to the terms hereof) of the then outstanding Letters of
Credit and (b) an amount equal to the aggregate drawn, but unreimbursed
drawings on any Letters of Credit. For purposes of determining the Available
Commitment and the Available Letter of Credit Commitment, Letters of Credit
denominated in foreign currencies shall be, on any relevant date, converted
to United States dollars using the prevailing exchange rate for such
currency on such date.
"Letter of Credit Reserve Account" shall mean any account maintained
by the Administrative Agent for the benefit of the Issuing Bank, the proceeds
of which shall be applied as provided in Section 8.2(e) hereof.
"Letters of Credit" shall mean Standby Letters of Credit, Commercial
Letters of Credit or Letters of Credit issued to replace Existing Letters
of Credit issued by the Issuing Bank on behalf of the Borrower or its
Affiliates from time to time in accordance with the terms hereof.
"Lien" shall mean, with respect to any property, any mortgage, lien,
pledge, assignment, charge, security interest, title retention agreement,
levy, execution, seizure, attachment, garnishment, or other encumbrance of
any kind in the nature of any of the foregoing in respect of such property,
whether or not choate, vested, or perfected.
"Loan Documents" shall mean this Agreement, the Notes, the Assignment
of Partnership Interests, each Consolidated Entity Guaranty, and all other
documents and agreements executed or delivered in connection with or
contemplated by this Agreement.
"Loans" shall mean, collectively, amounts advanced by the Banks to the
Borrower under the Commitment, not to exceed the Commitment, and evidenced
by the Notes.
"Majority Banks" shall mean, at any time, (a) if there are no Loans or
Letters of Credit outstanding, Banks the total of whose Commitment Ratios
exceeds fifty percent (50%), or (b) if there are Loans or Letters of Credit
outstanding, Banks the total of whose Loans and Letters of Credit
Obligations outstanding exceeds fifty percent (50%) of the total principal
amount of the Loans and Letter of Credit Obligations outstanding hereunder.
"Materially Adverse Effect" shall mean any materially adverse effect
upon the (a) business, assets, financial condition, results of operations or
business prospects of the Borrower, its Consolidated Entities and the
Unconsolidated Entities taken as a whole, or (b) ability of the Borrower,
its Consolidated Entities and the Unconsolidated Entities taken as a
whole to perform their Obligations under this Agreement or any other Loan
Document.
"Maturity Date" shall mean September 30, 1996, or such earlier date as
payment of the Loans and the Letter of Credit Obligations shall be due
(whether by acceleration or otherwise).
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Necessary Authorizations" shall mean all authorizations, consents,
permits, approvals, licenses, and exemptions from, and all filings and
registrations with, and all reports to, any governmental or other
regulatory authority whether federal, state, or local, and all agencies
thereof necessary for the conduct of the businesses and the ownership
(or lease) of the properties and assets of the Borrower or its Consolidated
Entities.
"Net Income" shall mean, as applied to any Person for any period, the
aggregate amount of net income of such Person, after taxes, for such period
and as determined in accordance with GAAP.
"Notes" shall mean those certain promissory notes in the aggregate
principal amount of up to $100,000,000; one such note issued to each of the
Banks by the Borrower in the principal amount of $50,000,000, each one in
substantially the form of Exhibit C attached hereto, any other promissory
notes issued pursuant to this Agreement in respect of the Commitment, and
any extensions, renewals or amendments to any of the foregoing.
"Obligations" shall mean (a) all payment and performance obligations of
the Borrower and all other obligors to the Banks, the Issuing Bank and the
Administrative Agent under this Agreement and the other Loan Documents, as
they may be amended from time to time, or as a result of making the
Loans, and (b) the obligation to pay an amount equal to the amount of
any and all damages which the Banks, the Issuing Bank and the Administrative
Agent, or any of them, may suffer by reason of a breach by either Borrower
or any other obligor of any obligation, covenant, or undertaking with respect
to this Agreement or any other Loan Document.
"Overnight Federal Funds Rate" shall mean the rate on overnight Federal
funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day by the Federal Reserve
Bank of New York.
"Permitted Liens" shall mean, as applied to any specified Person:
(a) Any Lien in favor of the Administrative Agent, the Issuing
Bank or the Banks given to secure the Obligations;
(b) (i) Liens on real estate for real estate taxes not yet
delinquent and (ii) Liens for taxes, assessments, judgments, governmental
charges or levies, or claims the non-payment of which is being contested in
good faith by appropriate proceedings and for which adequate reserves have
been set aside on such Person's books, but only so long as no foreclosure,
distraint, sale, or similar proceedings have been commenced with respect
thereto and which remain unstayed for a period of thirty (30) days after
their commencement;
(c) Liens of carriers, warehousemen, mechanics, laborers, and
materialmen incurred in the ordinary course of business for sums not yet
due or being contested in good faith, if such reserve or appropriate
provision, if any, as shall be required by GAAP shall have been made
therefor;
(d) Liens incurred in the ordinary course of business in
connection with worker's compensation and unemployment insurance;
(e) Restrictions on the transfer of assets imposed by any
agreement, or by any federal, state or local statute, regulation or
ordinance applicable to such Person;
(f) Easements, rights-of-way, restrictions, and other similar
encumbrances on the use of real property which do not interfere with the
ordinary conduct of the business of such Person, or Liens incidental
to the conduct of the business of such Person or to the ownership of its
properties which were not incurred in connection with Indebtedness or other
extensions of credit and which do not in the aggregate materially detract
from the value of such properties or materially impair their use in the
operation of the business of such Person;
(g) Purchase money mortgages or security interests, conditional
sale arrangements and other similar security interests (together with
any renewal or other refinancing thereof), on any property or assets
hereinafter acquired by such Person (hereafter referred to individually
as a "Purchase Money Security Interest"); provided; however, that:
(i) the transaction in which any Purchase Money Security
Interest is proposed to be created is not otherwise prohibited by
this Agreement;
(ii) any Purchase Money Security Interest shall attach only
to the property or asset acquired in such transaction and shall not
extend to or cover any other assets or properties of such Person;
(iii) the Indebtedness secured or covered by any Purchase Money
Security Interest shall not exceed the cost of the property or asset
acquired; and
(iv) the aggregate amount of all recourse Indebtedness secured
by Purchase Money Security Interests outstanding at any time shall
not exceed $10,000,000 in the aggregate, excluding the
amount thereof under subparagraph (h) below;
(h) Liens of record on the Agreement Date as set forth on
Schedule 3 attached hereto;
(i) Liens on the Haywood Mall property owned by Haywood Mall
Associates pursuant to a non-recourse financing agreement with a term in
excess of five (5) years from the Agreement Date and a principal amount
not in excess of $50,000,000 at any time;
(j) Liens securing Indebtedness permitted under Section 7.1
hereof;
(k) Deposits to secure the performance of obligations with respect
to utilities, leases, surety and appeal bonds, and other obligations of
like nature incurred in the ordinary course of business;
(l) Banker's Liens arising by statute or under customary terms
regarding depository relationships on deposits held by financial institutions
with whom a banker-customer relationship has been established;
(m) Liens on any asset of any entity existing at the time such
entity is merged or consolidated with or into such Person and not created in
contemplation of such event;
(n) Liens existing on any asset prior to the acquisition thereof
by such Person and not created in contemplation of such acquisition; and
(o) Liens securing any Indebtedness owed by any Consolidated
Entity or Unconsolidated Entity to the Borrower.
"Person" shall mean an individual, corporation, partnership, limited
liability company, trust, or unincorporated organization, or a government
or any agency or political subdivision thereof.
"Plan" shall mean an employee benefit plan within the meaning of
Section 3(3) of ERISA maintained by or contributed to by the Borrower or
any ERISA Affiliate.
"Prime Rate" shall mean, at any time, the fluctuating and floating
rate per annum equal to the rate of interest announced by the Administrative
Agent as its reference rate for the determination of interest rates for
loans of varying maturities in U.S. Dollars to United States residents of
varying degrees of creditworthiness and being quoted by the Administrative
Agent as its "prime rate." The Prime Rate in effect as of the close of
business of each day shall be the applicable Prime Rate for that day and
each succeeding non-Business Day, in determining the applicable Prime Rate.
If the Administrative Agent shall cease announcing a Prime Rate, the
Administrative Agent shall designate in writing to the Borrower a comparable
reference rate for purposes of this Agreement. The Prime Rate is not
necessarily the lowest rate of interest charged to borrowers of the
Administrative Agent.
"Property" shall mean any real property or personal property, plant,
building, facility, structure, underground storage tank or unit, equipment,
inventory or other asset owned, leased or operated by the Borrower, its
Consolidated Entities or the Unconsolidated Entities (including, without
limitation, any surface water thereon or adjacent thereto and soil and
groundwater thereunder).
"REIT" shall mean a Real Estate Investment Trust (or REIT) as such
term is defined in the Code.
"Reportable Event" shall have the meaning set forth in Section 4043(b)
of ERISA.
"Request for Advance" shall mean any certificate signed by an Authorized
Signatory of the Borrower requesting an Advance hereunder which will increase
the aggregate amount of the Loans outstanding, which certificate shall be
denominated a "Request for Advance," and shall be in substantially the form
of Exhibit D attached hereto. Each Request for Advance shall, among other
things, (a) specify the date of the Advance, which shall be a Business Day,
(b) specify the amount of the Advance, (c) state that there shall not exist,
on the date of the requested Advance and after giving effect thereto, a
Default or an Event of Default, and (d) state that all conditions precedent
to the making of the Advance have been satisfied.
"Request for Issuance of Letter of Credit" shall mean any certificate
signed by an Authorized Signatory of the Borrower requesting that the
Issuing Bank issue a Letter of Credit hereunder, which certificate shall be
in substantially the form of Exhibit E attached hereto, and shall, among
other things, (a) specify that the requested Letter of Credit is either a
Commercial Letter of Credit or a Standby Letter of Credit, (b) the stated
amount of the Letter of Credit, (c) the effective date for the issuance
of the Letter of Credit (which shall be a Business Day), (d) the date on
which the Letter of Credit is to expire (which shall be a Business Day),
(e) the Person for whose benefit such Letter of Credit is to be issued,
(f) other relevant terms of such Letter of Credit, (g) be accompanied by
a completed letter of credit application in form and substance satisfactory
to the Issuing Bank, and (h) state that there shall not exist, on the date
of issuance of the requested Letter of Credit and after giving effect
thereto, a Default or an Event of Default.
"Restricted Payment" shall mean any direct or indirect distribution,
dividend, or other payment to any Person on account of any partnership
interest in, or stock of, such Person.
"Restricted Purchase" shall mean any payment on account of the purchase,
redemption, or other acquisition or retirement of any stock of the Borrower.
"Solvent" shall mean, with respect to any Person on a particular date,
that on such date (i) the fair value of the property (tangible or intangible)
of such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (ii) the
amount that will be required to pay the probable liabilities of such Person
on its debts as they become absolute and matured will not be greater than
the fair salable value of the assets of such Person at such time, (iii)
such Person is able to realize upon its assets and pay its debts and
other liabilities, contingent obligations and other commitments as they
mature in the normal course of business, and (iv) such Person is not
engaged in a business ora transaction, and is not about to engage in a
business or a transaction, for which such Person's property would constitute
unreasonably small capital after giving due consideration to prevailing
practices in the industry in which such Person is engaged. In computing
the amount of any contingent liability at any time, it is intended that such
liability will be computed at the amount which, in light of all the facts
and circumstances existing at suchtime, represents the amount that might
reasonably be expected to become an actual or matured liability.
"Standby Letter of Credit" shall mean a letter of credit issued to
support obligations of the Borrower or its Affiliates and which is not a
Commercial Letter of Credit.
"Stockholders' Investment" shall mean as of any date, the aggregate
amount of shareholder's equity (paid in capital, surplus and retained
earnings less the cost of any treasury stock) calculated in a manner
consistent with the Borrower's annual report for 1993 and in accordance
with GAAP.
"Total Assets" shall mean, as of any date, (a) all assets of the
Borrower and its Consolidated Entities, plus (b) the product of (i) the
assets of each Unconsolidated Entity times (ii) the percentage of the
Borrower's direct and indirect ownership interest in such
Unconsolidated Entity.
"Total Debt" shall mean with respect to the Borrower, its Consolidated
Entities and the Unconsolidated Entities, as of any date, without duplication
(a) all outstanding Indebtedness for Money Borrowed, (b) all Capitalized
Lease Obligations, and (c) all obligations Guaranteed by such Persons.
In calculating the Total Debt of each Unconsolidated Entity, the
amount of the items described in (a), (b) and (c) above of such
Unconsolidated Entity shall be multiplied by the percentage of the Borrower's
direct and indirect ownership interest in such Unconsolidated Entity.
"Total Liabilities" shall mean, as of any date, all Indebtedness of the
Borrower and its Consolidated Entities.
"Unconsolidated Entity" shall mean any Person (a) with respect to which
the Borrower owns directly or indirectly twenty percent (20%) or more of the
voting securities or voting equity or partnership interests, and (b) which is
not consolidated with the Borrower on the financial statements of the
Borrower, and shall, as of the Agreement Date, include those Persons set
forth on Schedule 4 attached hereto.
Each definition of an agreement in this Article 1 shall include such
agreement as modified, amended, or supplemented from time to time with the
prior written consent of the Majority Banks, except as provided in Section
10.12 hereof, and except where the context otherwise requires, definitions
imparting the singular shall include the plural and vice versa. Except where
otherwise specifically restricted, reference to a party to a Loan Document
includes that party and its successors and assigns. All terms used herein
which are defined in Article 9 of the Uniform Commercial Code in effect in
the State of Georgia on the date hereof and which are not otherwise defined
herein shall have the same meanings herein as set forth therein.
All accounting terms used herein without definition shall be used as
defined under GAAP. All references to financial information and results
of the Borrower shall be determined on a consolidated basis with the
Borrower's Consolidated Entities.
ARTICLE 2 - Loans and Letters of Credit.
Section 2.1Extension of Credit. Subject to the terms and conditions
of, and in reliance upon the representations and warranties made in, this
Agreement and the other Loan Documents, the Banks agree, severally in
accordance with their respective Commitment Ratios, and not jointly, to
extend credit to the Borrower in an aggregate principal amount not to exceed
$100,000,000 as provided below:
(a) The Loans. Subject to the terms and conditions of this
Agreement, the Banks agree, severally in accordance with their Commitment
Ratios, and not jointly, upon the terms and subject to the conditions of this
Agreement, to lend and relend to the Borrower, prior to the Maturity Date,
amounts which in the aggregate at any one time outstanding do not exceed the
Available Commitment. Advances hereunder may be repaid and reborrowed
from time to time on a revolving basis.
(b) The Letters of Credit. Subject to the terms and conditions of
this Agreement, the Issuing Bank agrees to issue Letters of Credit for the
account of the Borrower pursuant to Section 2.9 hereof in an aggregate amount
for the Borrower not to exceed the Available Letter of Credit Commitment.
(c) Use of Proceeds. The Administrative Agent, the Banks, and the
Borrower agree that the proceeds of the Loans shall be used for general
corporate purposes.
Section 2.2Manner of Borrowing and Disbursement.
(a) Advances. The Borrower shall give the Administrative Agent
irrevocable written notice for Advances not later than 4:00 p.m. (Eastern
time) on the day immediately preceding the date of the requested Advance
in the form of a Request for Advance, or notice by telephone or telecopy
followed immediately by a Request for Advance; provided, however, that the
failure by the Borrower to confirm any notice by telephone or telecopy
with a Request for Advance shall not invalidate any notice so given. Upon
receipt of such notice from the Borrower, the Administrative Agent shall
promptly notify each Bank by telephone or telecopy of the contents thereof.
The Banks may, in their sole discretion, fund a Request for Advance on
the date received if such Request for Advance is received prior to 10:00 a.m.
(Eastern time) on such date. Each Advance hereunder shall be in principal
amounts of not less than $100,000 and in integral multiples of $100,000. The
Borrower acknowledges and agrees that the Administrative Agent may from time
to time with notice to the Borrower impose reasonable restrictions on the
monthly volume of Advances permitted hereunder.
(b) Notification of Banks. Upon receipt of a Request for Advance
or notice by telephone or telecopy, the Administrative Agent shall promptly
notify each Bank by telephone or telecopy of the contents thereof and the
amount of such Bank's portion of the applicable Advance. Each Bank shall,
not later than 12:00 noon (Eastern time) on the date specified in such
notice, make available to the Administrative Agent at the Administrative
Agent's Office, or at such account as the Administrative Agent shall
designate, the amount of its portion of the applicable Advance in immediately
available funds.
(c) Disbursement. Prior to 2:00 p.m. (Eastern time) on the date
of an Advance hereunder, the Administrative Agent shall, subject to the
satisfaction of the conditions set forth in this Section 2.2 and in Article 3
hereof, disburse the amounts made available to the Administrative Agent by
the Banks in immediately available funds by (i) transferring the amounts so
made available by wire transfer pursuant to the instructions of the Borrower,
or (ii) in the absence of such instructions, crediting the amounts so made
available to the account of the Borrower maintained with the Administrative
Agent or an affiliate of the Administrative Agent. Unless the Administrative
Agent shall have received notice from a Bank prior to the date of any Advance
that such Bank will not make available to the Administrative Agent such
Bank's ratable portion of such Advance, and so long as notice has been given
as provided in Section 2.2 hereof, the Administrative Agent may assume that
such Bank has made such portion available to the Administrative Agent on the
date of such Advance and the Administrative Agent may, in its sole discretion
and in reliance upon such assumption, without any obligation hereunder to
do so, make available to the Borrower on such date a corresponding amount.
If and to the extent such Bank shall not have so made such ratable portion
available to the Administrative Agent, such Bank agrees to repay to the
Administrative Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the
Administrative Agent for the first two (2) days that such amount is
not repaid, at the Overnight Federal Funds Rate, and, thereafter, at the
Overnight Federal Funds Rate plus four percent (4%). If such Bank shall
repay to the Administrative Agent such corresponding amount, such amount
so repaid shall constitute such Bank's portion of the applicable Advance
for purposes of this Agreement. If such Bank does not repay such
corresponding amount immediately upon the Administrative Agent's demand
therefor, the Administrative Agent shall notify the Borrower, and the
Borrower shall pay such corresponding amount to the Administrative
Agent, together with all interest accrued thereonand on the same terms
and conditions that would have applied to such Advance had such Bank
funded its portion thereof. The failure of any Bank to fund its portion
of any Advance shall not relieve any other Bank of its obligation, if
any, hereunder to fund its respective portion of the Advance on the date
of such borrowing, but no Bank shall be responsible for any such
failure of any other Bank. In the event that, at any time when the
Borrower is not in Default, a Bank for any reason fails or refuses to fund
its portion of an Advance, then,until such time as such Bank has funded
its portion of such Advance, or all other Banks have received payment in
full (whether by repayment or prepayment) of the principal and interest
due in respect of such Advance, such non-funding Bank shall (i) have no
right to vote regarding any issue on which voting is required or advisable
under this Agreement or any other Loan Document, and (ii) not be entitled
to receive payments of principal, interest or fees from the Borrower in
respect of such Advances which such Bank failed to make.
Section 2.3Interest.
(a) Generally. Interest shall be computed on the basis of a
hypothetical year of 360 days for the actual number of days elapsed during
each calendar month and shall be payable at a simple interest rate equal
to the sum of (i) the Federal Funds Effective Rate and (ii) 0.85%, times
the principal balance outstanding from time to time under the Notes
for the number of days such principal amounts are outstanding during
such calendar month. Interest then outstanding shall be due and payable in
arrears on the twentieth (20th) day of each calendar month and on the
Maturity Date.
(b) Upon Default. Upon the occurrence and during the continuance
of an Event of Default, the Majority Banks shall have the option (but shall
not be required to give prior notice thereof to the Borrower, to accelerate
the maturity of the Loans, or to exercise any other rights or remedies
hereunder in connection with the exercise of this right) to charge interest
on the outstanding principal balance of the Loans at the Default Rate from
the date of such Event of Default. Such interest shall be payable on the
earlier of DEMAND or the maturity Date and shall accrue until the earlier of
(i) waiver or cure (to the satisfaction of the Majority Banks) of the
applicable Event of Default, (ii) agreement by the Majority Banks to rescind
the charging of interest at the Default Rate, or (iii) payment in full of
the Obligations.
Section 2.4Fees and Commissions.
(a) Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the benefit of the Banks, in accordance with their
respective Commitment Ratios, a commitment fee for each calendar quarter
(i) for the period commencing on October 1, 1994 and ending on
September 30, 1995, on the difference between (X) the highest sum of the
outstanding principal amount of the Loans to, and the Letter of Credit
Obligations of, the Borrower for such calendar quarter period commencing
on the Agreement Date and ending onthe date preceding the payment date
for such fee, and (Y) the average daily sum of the outstanding principal
amount of the Loans to, and Letter of Credit Obligations of, the Borrower
during such calendar quarter, and (ii) for all quarterly periods thereafter,
on the difference between the Commitment and the Average Daily sum
of the outstanding Loans to, and the Letter of Credit Obligations of,
the Borrower for each day during the applicable period, in each case
at the rate of one-eighth of one percent (1/8%) per annum; provided,
however, that any commitment fee for any quarter during the period
commencing on October 1, 1994, and ending on September 30, 1995 shall in
no event be less than $5,000. Such commitment fee shall be computed on the
basis of a hypothetical year of 360 days for the actual number of days
elapsed, shall be payable quarterly in arrears on the first day of each
calendar quarter for the immediately preceding quarter, commencing on
January 1, 1995 (for the period from October 1, 1994 through
December 31, 1994), and continuing on the first day of each successive
calendar quarter, and shall be fully earned when due and non-refundable
when paid.
(b) Letter of Credit Commission. The Borrower shall pay to the
Administrative Agent for the benefit of the Banks, in accordance with their
respective Commitment Ratios, a commission on the stated amount of any
outstanding Letters of Credit from the date of issuance through the
expiration date of each such Letter of Credit at a rate of three-quarters of
one percent (3/4%) per annum, which fee shall be computed on the basis of a
hypothetical year of 360 days for the actual number of days elapsed, shall
be payable quarterly in advance on the date of issuance of such Letter of
Credit and on the first day of each calendar quarter commencing on
October 1, 1994, and continuing on the first day of each successive
calendar quarter, and shall be fully earned when due and non-refundable
when paid.
Section 2.5Repayment.
(a) Loans Exceeding Commitment. If, at any time, the amount of the
Loans then outstanding shall exceed the Available Commitment, the Borrower
shall make a repayment of the principal amount of the Loans in an amount
equal to such excess.
(b) Issuance of Securities. If, at any time, after the occurrence and
during the continuation of an Event of Default, the Borrower shall issue
additional equity or similar securities, the Borrower shall make a repayment
of the principal amount of the Loans in an amount equal to the net cash
proceeds received by the Borrower in connection therewith. Repayments under
this Section 2.5(b) shall permanently reduce the Commitment by a
corresponding amount.
(c) Asset Sales. The Borrower shall also repay the outstanding
principal of the Loans on the date of any single sale of improved, income
producing real property by an amount equal to one hundred percent (100%)
of the net cash proceeds of such sale; provided, however no such
repayment shall be required with respect to sales, the net cash proceeds
of which do not exceed $12,500,000. Repayments under this Section 2.5(c)
shall, unless otherwise approved, in the sole discretion of the Banks
permanently reduce the Commitment by an amount equal to such repayment.
(d) Maturity. In addition to the foregoing, a final payment of all
Obligations then outstanding shall be due and payable on the Maturity Date.
Section 2.6Notes; Loan Accounts.
(a) The Loans shall be repayable in accordance with the terms and
provisions set forth herein, and shall be evidenced by the Notes. One of the
Notes shall be payable to the order of each Bank in accordance with the
respective Commitment Ratio of the Bank. The Notes shall be issued by the
Borrower to each of the Banks and shall be duly executed and delivered
by Authorized Signatories.
(b) Each Bank may open and maintain on its books in the name of
the Borrower a loan account with respect to the Loans and interest thereon
and a letter of credit account with respect to its obligations pursuant to
Letters of Credit. Each Bank which opens such accounts shall debit the
applicable loan account for the principal amount of each Advance made by it
and accrued interest thereon, and shall credit such loan account for each
payment on account of principal of or interest on the Loans. The records
of each Bank with respect to the accounts maintained by it shall be prima
facie evidence of the Loans and Letter of Credit Obligations and accrued
interest thereon, but the failure to maintain such records shall not
impair the obligation of the Borrower to repay Indebtedness hereunder.
(c) Each Advance from the Banks under this Agreement shall be
made pro rata on the basis of their respective Commitment Ratios.
Section 2.7Manner of Payment.
(a) Each payment (including any prepayment) by the Borrower on
account of the principal of or interest on its Loans, fees, and any other
amount owed to the Banks or the Administrative Agent under this Agreement,
the Notes, or the other Loan Documents shall be made not later than 1:00 p.m.
(Eastern time) on the date specified for payment under this Agreement or such
other Loan Document to the Administrative Agent to an account designated by
the Administrative Agent, for the account of the Banks or the Administrative
Agent, as the case may be, in lawful money of the United States of America
in immediately available funds. Any payment received by the Administrative
Agent after 12:00 noon (Eastern time) shall be deemed received on the next
Business Day for purposes of interest accrual. In the case of a payment
for the account of a Bank, the Administrative Agent will promptly thereafter
distribute the amount so received in like funds to such Bank. If the
Administrative Agent shall not have received any payment from the Borrower
as and when due, the Administrative Agent will promptly notify the Banks
accordingly and the Administrative Agent shall not be obligated to make any
distributions under this Section 2.7.
(b) If any payment under this Agreement or any of the Notes shall
be specified to be made upon a day which is not a Business Day, it shall be
made on the next succeeding day which is a Business Day, and such extension
of time shall in such case be included in computing interest and fees, if
any, in connection with such payment.
(c) The Borrower agrees to pay principal, interest, fees, and all
other amounts due hereunder or under the Notes and Letter of Credit
Obligations without set-off or counterclaim or any deduction whatsoever.
Section 2.8Application of Payments. Payments made to the Administrative
Agent or the Banks, or any of them, or otherwise received by the
Administrative Agent or the Banks, or any of them (from realization on
collateral for the Obligations or otherwise), shall be distributed
(subject to Section 2.2(c) hereof) as follows: First, to the costs and
expenses, if any, incurred by the Administrative Agent or the Banks, or
any of them, to the extentpermitted by Section 10.2 hereof in the collection
of such amounts under this Agreement or any of the other Loan Documents,
including, without limitation, any reasonable costs incurred in connection
with the sale or disposition of any collateral for the Obligations; Second,
pro rata among the Administrative Agent, the Issuing Bank and the Banks
based on the total amount of fees then due and payable hereunder or under
any other Loan Document and to any other fees and commissions then due
and payable by the Borrower to the Banks, the Issuing Bank and the
Administrative Agent under this Agreement or any Loan Document; Third,
to any unpaid interest of the Borrower which may have accrued on the
Loans, pro rata among the Banks based on the outstanding principal
amount of the Loans of the Borrower outstanding immediately prior to
such payment; Fourth, pro rata among the Banks based on the outstanding
principal amount of the Loans of the Borrower outstanding immediately prior
to such payment, to any unpaid principal of the Loans of the Borrower;
Fifth, to any other obligations not otherwise referred to in this
Section 2.8 until all such Obligations are paid in full; Sixth, to damages
incurred by the Administrative Agent, the Issuing Bank or the Banks, or any
of them, by reason of any breach hereof or of any other Loan Documents;
and Seventh, upon satisfaction in full of all Obligations, to the
Borrower or as otherwise required by law. If any Bank shall obtain any
payment (whether involuntary or otherwise) on account of the Loans made by
it in excess of its ratable share of the Loans then outstanding and such
Bank's share of any expenses, fees and other items due and payable to it
hereunder, such Bank shall forthwith purchase aparticipation in the
Loans from the other Banks as shall be necessary to cause such purchasing
Bank to share the excess payment ratably based on theCommitment Ratios
with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Bank,
such purchase from each Bank shall be rescinded and such Bank shall
repay to the purchasing Bank the purchase price to the extent of such
recovery. The Borrower agrees that any Bank so purchasing a
participation from another Bank pursuant to this Section may, to the
fullest extent permittedby law, exercise all its rights of payment with
respect to such participation as fully as if such Bank were the direct
creditor of the Borrower in the amount of such participation so long as
the Borrower's Obligations are not increased.
Section 2.9Letters of Credit.
(a) Subject to the terms and conditions hereof, the Issuing Bank,
on behalf of the Banks, and in reliance on the agreements of the Banks set
forth in subsection (d) below, hereby agrees to issue one or more Letters
of Credit up to an aggregate face amount equal to the Available
Letter of Credit Commitment; provided, however, that the Issuing Bank shall
not issue any Letter of Credit unless the conditions precedent to the
issuance thereof set forthin Section 3.3 hereof have been satisfied, and
shall have no obligation to issue any Letter of Credit if any Default then
exists or would be caused thereby or if, after giving effect to such
issuance, the Available Commitment would be less than zero; and provided
further, however, that at no time shall the total Letter of Credit
Obligations outstanding hereunder exceed the Available Letter of Credit
Commitment. Each Letter of Credit shall (1) be denominated in U.S.
dollars (with the exception of any Letter of Credit issued to replace
the Existing Letter of Credit for the benefit of CREC, which may be in
Deutsche Marks), and (2) expire no later than 360 days after its date of
issuance (but may contain provisions for automatic renewal provided that no
Default or Event of Default exists on the renewal date or would be caused
by such renewal). Each Letter of Credit shall besubject to the Uniform
Customs and Practices for Documentary Credits and, to the extent not
inconsistent therewith, the laws of the State of Georgia. The Issuing Bank
shall not at any time be obligated to issue, or cause to be issued, any
Letter of Credit if such issuance would conflict with, or cause the Issuing
Bank to exceed any limits imposed by, any Applicable Law. If a Letter of
Credit provides that it is automatically renewable unless notice is given
by the Issuing Bank that it will not be renewed, the Issuing Bank shall not
be bound to give a notice of non-renewal unless directed to do so by the
Majority Banks at least thirty (30) days prior to the date on which
such notice of non-renewal is required to be delivered to the
beneficiary of the applicable Letter of Credit pursuant to the terms thereof.
The Borrower hereby agrees that upon the Maturity Date (whether by reason
of acceleration or otherwise) atthe request of the Administrative Agent the
Borrower shall deposit in an interest bearing account with the Administrative
Agent, as cash collateral for the Obligations, an amount equal to the maximum
amount currently or at any time thereafter to be drawn on all outstanding
Letters of Credit, and the Borrower hereby grants to the Administrative
Agent (for itself andon behalf of the Issuing Bank) a security interest
in all such cash. Upon receipt of the cash collateral referred to in the
preceding sentence, the obligations of the Banks under this Section 2.9
shall cease. The terms hereof shall govern the reimbursement obligation
of the Borrower.
(b) The Borrower may from time to time request that the Issuing
Bank issue a Letter of Credit. The Borrower shall execute and deliver to
the Administrative Agent and the Issuing Bank a Request for Issuance of
Letter of Credit for each Letter of Credit to be issued by the Issuing
Bank, not later than 12:00 noon (Eastern time) on the fifth (5th) Business
Day preceding the date on which the requested Letter of Credit is to be
issued, or such shorter notice as may be acceptable to the Issuing Bank and
the Administrative Agent. Upon receipt of any such Request for Issuance
of Letter of Credit, subject to satisfaction of all conditions precedent
thereto as set forth in Section 3.3 hereof, the Issuing Bank shall process
such Request for Issuance of Letter of Credit and the certificates, documents
and other papers and information delivered to it in connection therewith
in accordance with its customary procedures and shall promptly issue the
Letter of Credit requested thereby. TheIssuing Bank shall furnish a copy
of such Letter of Credit to the Borrower and the Administrative Agent
following the issuance thereof. The Borrower shall pay or reimburse
the Issuing Bank for normal and customary costs and expenses incurred by
the Issuing Bank in issuing, effecting payment under, amending or
otherwise administering the Letters of Credit.
(c) At such time as the Administrative Agent shall be notified
by the Issuing Bank that the beneficiary under any Letter of Credit has drawn
on the same, the Administrative Agent shall promptly notify the Borrower
and each Bank, by telephone or telecopy, of the amount of the draw and,
in the case of each Bank, such Bank's portion of such draw amount as
calculated in accordance with its Commitment Ratio. The Issuing Bank may
maintain in accordance with its usual practice a record of account
evidencing the Indebtedness of the Borrower resulting from each drawing
under a Letter of Credit. In any legal action or proceeding in respect
of this Agreement, the entries made in such record shallbe
conclusive evidence, absent manifest error, of the existence and amounts of
the obligations of the Borrower therein recorded. Failure of the Issuing
Bank to maintain any such record shall not excuse the Borrower from the
obligation to pay such Indebtedness. The Issuing Bank agrees to give the
Borrower reasonable notice of its receipt of a draw request in
connection with any Letter of Credit; provided, however, that the
failure to provide such notice shall not excuse the Borrower
from the obligation to pay any Indebtedness resulting from such draw.
(d) The Borrower hereby agrees to immediately reimburse the
Issuing Bank for amounts paid by the Issuing Bank in respect of draws under
a Letter of Credit issued at the Borrower's request. In order to facilitate
such repayment, the Borrower hereby irrevocably requests the Banks, and the
Banks hereby severally agree, on the terms and conditions of this Agreement
(other than as provided in Article 2 hereof with respect to the amounts of,
the timing of requests for, and the repayment of Advances hereunder and in
Article 3 hereof with respect to conditions precedent to Advances hereunder),
with respect to any drawing under a Letter of Credit prior to the occurrence
of an event described in clauses (g) or (h) of Section 8.1 hereof, to make
an Advance to the Borrower on each day on which a draw is made under any
Letter of Credit and in the amount of such draw, and to pay the proceeds
of such Advance directly to the Issuing Bank to reimburse the Issuing Bank
for the amount paid by it upon such draw. Each Bank shall pay its share of
such Advance by paying its portion of such Advance to the Administrative
Agent in accordance with Section 2.2(c) hereof and its Commitment
Ratio, without reduction for any set-off or counterclaim of any nature
whatsoever and regardless of whether any Default or Event of Default
(other than with respect to an event described in clauses (g) or (h) of
Section 8.1 hereof) then exists or would be caused thereby. If at any time
that any Letters of Credit are outstanding, any of the events described
in clauses (g) or (h) of Section 8.1 hereof shall have occurred, then each
Bank shall, automatically upon the occurrence of any such event and without
any action on the partof the Issuing Bank, the Borrower, the Administrative
Agent or the Banks, be deemed to have purchased an undivided participation
in the face amount of all Letters of Credit then outstanding in an amount
equal to such Bank's Commitment Ratio, and each Bank shall, notwithstanding
such Event of Default, upon a drawing under any Letter of Credit, immediately
pay to the Administrative Agent for the account of the Issuing Bank, in
immediately available funds, the amount of such Bank's participation (and
the Issuing Bank shall deliver tosuch Bank a loan participation certificate
dated the date of the occurrence ofsuch event and in the amount of such
Bank's Commitment Ratio). The disbursement of funds in connection with a
draw under a Letter of Credit pursuant to this Section hereunder shall be
subject to the terms and conditions of Section 2.2(c) hereof. The obligation
of each Bank to make payments to the Administrative Agent, for the account
of the Issuing Bank, in accordance with this Section 2.9 shall be
absolute and unconditional and no Bank shall be relieved of its
obligations to make such payments by reason of noncompliance by any other
Person with the terms of the Letter of Credit or for any other reason. The
Administrative Agent shall promptly remit to the Issuing Bank the amounts so
received from the other Banks. Any overdue amounts payable by the Banks to
the Issuing Bank in respect of a draw under any Letter of Credit shall bear
interest, payable on demand, for the first two (2) days of such non-payment,
at the Overnight Federal Funds Rate, and, thereafter, at the Overnight
Federal Funds Rate plus four percent (4%).
(e) The Borrower agrees that any action taken or omitted to be
taken by the Issuing Bank in connection with any Letter of Credit, except
for such actions or omissions as shall constitute gross negligence or willful
misconduct on the part of the Issuing Bank, shall be binding on the Borrower
as between the Borrower and the Issuing Bank, and shall not result in
any liability of the Issuing Bank to the Borrower. The obligation
of the Borrower to reimburse the Banks for Letter of Credit Advances made
to reimburse the Issuing Bank fordraws under any Letters 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:
(i) Any lack of validity or enforceability of any Loan Document;
(ii) Any amendment or waiver of or consent to any departure from
any or all of the Loan Documents;
(iii) Any improper use which may be made of any Letter of Credit
or any improper acts or omissions of any beneficiary or transferee of
any Letter of Credit in connection therewith;
(iv) The existence of any claim, set-off, defense or any right
which the Borrower may have at any time against any beneficiary or any
transferee of any Letter of Credit (or Persons for whom any such
beneficiary or any such transferee may be acting) or any Bank (other
than the defense of payment to such Bank in accordance with the terms of
this Agreement) or any other Person, whether in connection with any
Letter of Credit, any transaction contemplated by any Letter of Credit,
this Agreement, any other Loan Document, or any unrelated transaction;
(v) Any statement or any other documents presented under any
Leter of Credit proving to be insufficient, forged, fraudulent or
invalid in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever, provided that such payment shall
not have constituted gross negligence or willful misconduct
of the Issuing Bank;
(vi) The insolvency of any Person issuing any documents in
connection with any Letter of Credit;
(vii) Any breach of any agreement between such Borrower and any
beneficiary or transferee of any Letter of Credit;
(viii) Any irregularity in the transaction with respect to which
any Letter of Credit is issued, including any fraud by the beneficiary
or any transferee of such Letter of Credit;
(ix) Any errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph,
wireless or otherwise, whether or not they are in code;
(x) Any act, error, neglect or default, omission, insolvency or
failure of business of any of the correspondents of the Issuing Bank,
provided that the same shall not have constituted the gross negligence
or willful misconduct of the Issuing Bank;
(xi) Any other circumstances arising from causes beyond the
control of the Issuing Bank;
(xii) Payment by the Issuing Bank under any Letter of Credit
against presentation of a sight draft or a certificate which does not
comply with the terms of such Letter of Credit, provided that such
payment shall not have constituted gross negligence or willful
misconduct of the Issuing Bank; and
(xiii) Any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, provided that such other
circumstances or happenings shall not have been the result of gross
negligence or wilful misconduct of the Issuing Bank or any Bank.
(f) Each Bank shall be responsible for its pro rata share (based
on such Bank's Commitment Ratio) of any and all reasonable out-of-pocket
costs, expenses (including reasonable legal fees) and disbursements which may
be incurred or made by the Issuing Bank in connection with the collection of
any amounts due under, the administration of, or the presentation or
enforcement of any rights conferred by any Letter of Credit, the Borrower's
or any guarantor's obligations to reimburse or otherwise. In the event the
Borrower shall fail topay such expenses of the Issuing Bank within ten (10)
days after demand for payment by the Issuing Bank, each Bank shall
thereupon pay to the Issuing Bank its pro rata share (based on such
Bank's Commitment Ratio) of such expenses within five (5) days from
the date of the Issuing Bank's notice to the Banks of the Borrower's
failure to pay; provided, however, that if the Borrower or any guarantor
shall thereafter pay such expense, the Issuing Bank will repay to each
Bank the amounts received from such Bank hereunder. The Borrower hereby
acknowledges and agrees with, and hereby irrevocably requests and the Banks
hereby severally agree subject to compliance with the terms and conditions
hereof (other than as provided in Article 2 with respect to the amounts of
and the timing of requests for Advances hereunder and Article 3 hereof with
respect to conditions precedent to Advances hereunder) to make an Advance
to the Borrower for reimbursement of expenses under this Section 2.9(f).
(g) The Borrower agrees that each Advance by the Banks to
reimburse the Issuing Bank for draws under any Letter of Credit or for
expenses as provided in Section 2.9(f) hereof, shall, for all purposes
hereunder, be deemed to be an Advance under the Commitment to the Borrower
and shall be payable and bear interest in accordance with all other Loans
to the Borrower.
(h) The Borrower will indemnify and hold harmless the
Administrative Agent, the Issuing Bank and each other Bank and each of their
respective employees, representatives, officers and directors from and
against any and all claims, liabilities, obligations, losses (other than
loss of profits), damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever (including
reasonable attorneys' fees, but excluding taxes) which may be imposed on,
incurred by or asserted against the Administrative Agent, the Issuing Bank
or any such other Bank in any way relating to or arising out of the
issuance of a Letter of Credit, except that the Borrower shall not be liable
to the Administrative Agent, the Issuing Bank or any such Bank for any
portion of such claims, liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses, or disbursements resulting from
the negligence or willful misconduct of the Administrative Agent, the Issuing
Bank or such Bank, as the case may be. This Section 2.9(h) shall survive
termination of this Agreement.
ARTICLE 3 - Conditions Precedent.
Section 3.1Conditions Precedent to Initial Advance. The obligation of
the Banks to undertake the Commitment and to make the initial Advance
hereunder is subject to the prior fulfillment of each of the following
conditions:
(a) The Administrative Agent shall have received each of the
following, in form and substance satisfactory to the Banks:
(i) the loan certificate of the Borrower, including a
certificate of incumbency with respect to the signature of each
Authorized Signatory, which loan certificate shall be in substantially
the form of Exhibit G attached hereto, together with appropriate attach-
ments thereto, which shall include without limitation the following
items: (A) a true, complete and correct copy of the Articles of
Incorporation and By-Laws, and (B) a copy of the resolutions of the
Borrower authorizing the Borrower with respect to the borrowing
hereunder and the execution, delivery and performance by the
Borrower of the Loan Agreement and the other Loan Documents in
accordance with their respective terms and of any other
documents contemplated hereunder and the consummation of the
transactions contemplated hereby and thereby;
(ii) duly executed Notes;
(iii) duly executed Assignment of Partnership Interests;
(iv) duly executed Consolidated Entity Guaranties from those
Consolidated Entities of the Borrower set forth on Schedule 5 attached
hereto;
(v) the opinion of counsel to the Borrower addressed to each
Bank, the Issuing Bank and the Administrative Agent substantially in
the form of Exhibit H attached hereto;
(vi) the duly executed Request for Advance for the initial
Advance of the Loans;
(vii) audited financial statements for the Borrower for the
calendar year ended December 31, 1993 and the unaudited financial
statements for the Borrower for the quarter ended March 31, 1994;
(viii) duly executed UCC financing statements required to be filed
in connection with the perfection of the security interest granted
under the Assignment of Partnership Interests; and
(ix) payment in full of an origination fee to each Bank in the
amount of $5,000, which fee shall be fully earned when due and non-
refundable when paid.
(b) All of the representations and warranties of the Borrower
under this Agreement shall be true and correct in all material respects,
both before and after giving effect to the application of the proceeds
of the initial Advance.
Section 3.2Conditions Precedent to Each Advance. The obligation of each
Bank to make each Advance, including the initial Advance (but excluding
Advances to reimburse the Issuing Bank) hereunder is subject to the
fulfillment of each of the following conditions immediately prior to or
contemporaneously with such Advance:
(a) All of the representations and warranties of the Borrower
uder this Agreement, which, in accordance with Section 4.2 hereof, are made
at and as of the time of the Advance, shall be true and correct at such time,
both before and after giving effect to the application of the proceeds
of the Advance;
(b) The incumbency of the Authorized Signatories shall be as
stated in the applicable certificate of incumbency contained in the
certificate of the Borrower delivered pursuant to Section 3.1(a) hereof or
as subsequently modified and reflected in a certificate of incumbency
delivered to the Administrative Agent and the Banks;
(c) There shall not exist, on the date of the making of the
Advance and after giving effect thereto, a Default or an Event of Default
hereunder and, the Administrative Agent shall have received a Request
for Advance so certifying; and
(d) The Administrative Agent and each of the Banks shall have
received all such other certificates, reports, statements, opinions of
counsel or other documents as any of them may reasonably request.
Section 3.3Conditions Precedent to Issuance of Letters of Credit. The
obligation of the Issuing Bank to issue each Letter of Credit hereunder is
subject to the fulfillment of each of the following conditions immediately
prior to or contemporaneously with the issuance of such Letter of Credit:
(a) All of the representations and warranties of the Borrower
under this Agreement, which, in accordance with Section 4.2 hereof, are made
at and as of the time of the issuance of such Letter of Credit, shall be
true and correct at such time, both before and after giving effect to the
issuance of such Letter of Credit;
(b) The incumbency of the Authorized Signatories shall be as
stated in the applicable certificate of incumbency contained in the
certificate of the Borrower delivered pursuant to Section 3.1(a) hereof
or as subsequently modified and reflected in a certificate of incumbency
delivered to the Administrative Agent and the Banks;
(c) There shall not exist, on the date of the issuance of such
Letter of Credit and after giving effect thereto, a Default or an Event of
Default hereunder and, the Administrative Agent shall have received a
Request for Issuance of a Letter of Credit so certifying; and
(d) The Administrative Agent, the Issuing Bank and each of the
Banks shall have received all such other certificates, reports, statements,
opinions of counsel or other documents as any of them may reasonably request.
ARTICLE 4 - Representations and Warranties.
Section 4.1Representations and Warranties. The Borrower hereby agrees,
represents, and warrants that:
(a) Organization; Power; Qualification.
(i) The Borrower is a corporation duly organized and validly
existing under the laws of the State of Georgia. The Borrower has the
power and authority to own or lease and operate its properties and to
carry on its business as now being and hereafter proposed to be
conducted, and is duly qualified and authorized to do business, in each
jurisdiction in which such qualification is necessary in view of the
character of its properties or the nature of its business requires such
qualification or authorization, except for qualifications and
authorizations, the lack of which, singly or in the aggregate, has not
had and is not likely to have a Materially Adverse Effect.
(ii) Each Consolidated Entity and Unconsolidated Entity of the
Borrower is a corporation or partnership duly organized and validly
existing under the laws of its state of formation. Each Consolidated
Entity and Unconsolidated Entity of the Borrower has the power and
authority to own or lease and operate its properties and to carry on
its business as now being and hereafter proposed to be conducted, and is
duly qualified and authorized to do business, in each jurisdiction in
which such qualification is necessary in view of the character of its
properties or the nature of its business requires such qualification or
authorization, except for qualifications and authorizations, the lack of
which, singly or in the aggregate, has not had and is not likely to have
a Materially Adverse Effect.
(b) Authorization; Enforceability. Each of the Borrower and each
of its Consolidated Entities has the partnership or corporate power and has
taken all necessary partnership or corporate action to authorize it to
execute, deliver, and perform this Agreement and each of the other Loan
Documents to which it is a party in accordance with the terms thereof and to
consummate the transactions contemplated hereby and thereby. This Agreement
has been duly executed and delivered by the Borrower, and is, and the Notes,
when issued for value received will be, and each of the other Loan Documents
to which the Borrower is a party is, a legal, valid and binding obligation of
the Borrower, enforceable in accordance with its terms, subject to
limitations on enforceability under bankruptcy, reorganization, insolvency
and similar laws affecting creditors' rights generally and limitations on
the availability of the remedy of specific performance imposed
by the application of general equity principles.
(c) Consolidated Entities. As of the Agreement Date, the Borrower
has the Consolidated Entities and Unconsolidated Entities set forth on
Schedules 4 and 6 attached hereto.
(d) Compliance with Laws, etc., of Agreement, Other Loan Documents,
and Contemplated Transactions. The execution, delivery, and performance of
this Agreement and each of the other Loan Documents in accordance with the
terms and the consummation of the transactions contemplated hereby and
thereby do not and will not (i) violate any Applicable Law, (ii) result in
a breach of, or constitute a default under the articles of incorporation,
by-laws or partnership agreement, as the case may be, or under any
indenture, agreement, or other instrument to which the Borrower or any of
its Consolidated Entities or Unconsolidated Entities is a party or by
which they or any of their properties may be bound, or (iii) result in or
require the creation or imposition of anyLien upon or with respect to any
property now owned or hereafter acquired bythe Borrower except Permitted
Liens; except where such violations, breaches or defaults, if any,
singly or in the aggregate, has not had and is not likely to have a
Materially Adverse Effect.
(e) Necessary Authorizations. No approval or consent of, or
filing or registration with, any federal, state or local commission or other
regulatory authority is required in connection with the execution, delivery
and performance by the Borrower or any of its Consolidated Entities or
Unconsolidated Entities of this Agreement, the Notes, and the other Loan
Documents to which it is a party (other than the filing of this Agreement and
the Loan Documents with the Securities and Exchange Commission). All such
described action required to be taken as a condition to the execution and
delivery of this Agreement, the Notes and other Loan Documents to which
the Borrower or any of its Consolidated Entities or Unconsolidated Entities
is a party has been duly taken by all such commissions and authorities or
other Persons, as the case may be, and all such action required to be taken
as a condition to the initial Advance hereunder has been or will be duly
taken prior to such initial Advance.
(f) Title to Properties. Each of the Borrower and its
Consolidated Entities has good, marketable, and legal title to, or a valid
leasehold interest in, all of their respective material tangible properties
and assets free and clear of all Liens, except Permitted Liens.
(g) Collective Bargaining. There are no collective bargaining
agreements between the Borrower or any of its Consolidated Entities and any
trade or labor union or other employee collective bargaining agent.
(h) Taxes. All federal, state, and other tax returns of the
Borrower and each of its Consolidated Entities required by law to be filed
have been duly filed, and all federal, state, and other taxes, assessments,
and other governmental charges or levies upon the Borrower and each of its
Consolidated Entities and any of their respective properties, income,
profits, and assets, which are due and payable, have been paid, except any
such tax payment(i) of which the Borrower or its Consolidated Entity,
as the case may be, is contesting in good faith by appropriate
proceedings, (ii) for which adequate reserves have been provided on the
books of the Borrower or any of its Consolidated Entities, and (iii) as
to which neither any Lien other than a Permitted Lien has attached nor
any foreclosure, distraint, sale, orsimilar proceedings have been commenced.
The charges, accruals, and reserves on the books of the Borrower and each of
its Consolidated Entities in respect of taxes are, in the reasonable
judgment of the Borrower, adequate.
(i) Financial Statements. The Borrower has furnished, or caused
to be furnished, to the Banks audited financial statements for the Borrower
and its Consolidated Entities which are complete and correct in all material
respects and present fairly in accordance with GAAP the financial
position of the Borrower as at December 31, 1993, and the results of
operations for the periods then ended. Except as disclosed in such financial
statements, the Borrower had no material liabilities, contingent or otherwise,
and there are no material unrealized or anticipated losses of the Borrower
which have not heretofore been disclosed in writing to the Banks.
(j) No Adverse Change. Since December 31, 1993, there has
occurred no event which would have a Materially Adverse Effect.
(k) Investments and Guaranties. The Borrower has not made
material (i) investments in, or advances to, any Person, except as
reflected in the financial statements referred to in Section 4.1(i) above or
disclosed to the Banks on or prior to the Agreement Date and from time
to time thereafter in financial statements delivered pursuant to
Article 6 hereof, or (ii) guaranties of the obligations of any Person,
except (A) as disclosed to and approved by the Banks in writing, (B)
for guaranties which singly do not exceed $500,000,and (C) the
guaranties permitted under Sections 7.6(a) through (e) and Sections
7.6(g) through (i) hereof.
(l) Liabilities, Litigation, etc. Except for liabilities
incurred in the normal course of business, neither the Borrower nor any of
its Consolidated Entities has any material (individually or in the
aggregate) liabilities, direct or contingent, except as disclosed or
referred to in the financial statements referred to in Section 4.1(i)
above. There is no materiallitigation, legal or administrative
proceeding, investigation, or other action of any nature pending or, to
the knowledge of the Borrower, threatened against or affecting the Borrower,
any of its Consolidated Entities or any of its or their properties
which involves the possibility of any judgment or liability not fully
covered by insurance.
(m) ERISA. Each of the Borrower and its ERISA Affiliates and
each of their respective Plans are in substantial compliance with ERISA
and the Code and neither the Borrower nor any of its ERISA Affiliates has
incurred any accumulated funding deficiency with respect to any such
Plan within the meaning of ERISA or the Code. The Borrower and
each of its ERISA Affiliates have complied with all requirements
of ERISA Sections 601 through 608 and Code Section 4980B in all
material respects. The Borrower has not incurredany material
liability to the Pension Benefit Guaranty Corporation in connection with
any Plan. The assets of each Plan which is subject to Title IV of
ERISA are sufficient to provide the benefits under such Plan, the payment
of which the Pension Benefit Guaranty Corporation would guarantee if such
Plan were terminated, and such assets are also sufficient to provide all
other "benefit liabilities" (as defined in ERISA Section 4001(a)(16)) due
under the plan upon termination. No Reportable Event has occurred and is
continuing with respect to any Plan. No Plan or trust created thereunder,
or party in interest (as defined in Section 3(14) of ERISA, or any
fiduciary (as defined in Section 3(21) of ERISA), has engaged in a
"prohibited transaction" (as such term is defined in Section 406 of
ERISA or Section 4975 of the Code)which would subject the Borrower or any
ERISA Affiliate to a material penalty or tax on "prohibited transactions"
imposed by Section 502 of ERISA or Section 4975 of the Code.
Neither the Borrower nor any of its ERISA Affiliates is a participant
in or is obligated to make any payment to a Multiemployer Plan.
(n) Patents, Trademarks, etc. The Borrower and each of its
Consolidated Entities owns, possesses or has the right to use all licenses
and rights to all patents, trademarks, trademark rights, trade names, trade
name rights, service marks, and copyrights, and rights with respect thereto,
necessary to conduct its business in all material respects as now conducted,
without known conflict with any patent, trademark, trade name, service mark,
license or copyright of any other Person, and in each case, with respect to
patents, trademarks, trademark rights, trade names, trade name and copyrights
and licenses with respect thereto owned by the Borrower or its Consolidated
Entities, subject to no mortgage, pledge, lien, lease, encumbrance, charge,
security interest, title retention agreement or option. All such licenses
and rights with respect to patents, trademarks, trademark rights, trade
names, trade name rights, service marks and copyrights are in full force and
effect, and to the extent applicable, the Borrower and its Consolidated
Entities are in full compliance in all material respects with all of the
provisions thereof. No such patent, trademark, trademark rights, trade
names, trade name rights, service marks, copyrights or licenses is subject
to any pending or, to the best of the Borrower's knowledge, threatened
attack or revocation. Neither the Borrower nor any of its Consolidated
Entities owns any registered copyrights or patents and the Borrower's
business is not subject to any license (other than general business
licenses and permits).
(o) Compliance with Law; Absence of Default. The Borrower and
each of its Consolidated Entities is in compliance with all Applicable Laws
and with all of the applicable provisions of the articles of incorporation,
by-laws or partnership agreement, and no event has occurred or has failed
to occur which has not been remedied or waived, the occurrence or non-
occurrence of which constitutes (i) a Default or (ii) a default by the
Borrower or any of its Consolidated Entities under any other indenture,
agreement, or other instrument, or any judgment, decree, or order to
which the Borrower or any of its Consolidated Entities is a party or by
which the Borrower or any of its Consolidated Entities or any of its or
their properties may be bound, which default could reasonably be
considered to have a Materially Adverse Effect.
(p) Casualties; Taking of Properties, etc. Since the date of the
most recent financial statements provided to the Administrative Agent and the
Banks by the Borrower, neither the business nor the properties of the
Borrower have been materially and adversely affected as a result of any
fire, explosion, earthquake, flood, drought, windstorm, accident, strike or
other labor disturbance, embargo, requisition or taking of property or
cancellation of contracts, permits or concessions by any domestic or foreign
government or any agency thereof, riot, activities of armed forces, or acts
of God or of any public enemy which are not subject to a claim for
reimbursement of insurance.
(q) Accuracy and Completeness of Information. None of the
financial statements or any written statements delivered to the
Administrative Agent or the Banks pursuant to this Agreement contains, as
at the date of delivery thereof, any untrue statement of material fact
nor do such financial statements, and such written statements, taken as a
whole, omit to state a material fact or any fact necessary to make
the statements contained therein not misleading.
(r) Compliance with Regulations G, U, and X. Neither the Borrower
nor any of its Consolidated Entities is engaged principally or as one of
its important activities in the business of extending credit for the
purpose of purchasing or carrying, and the Borrower does not own or presently
intend to acquire, any "margin security" or "margin stock" as defined in
Regulations G, U, and X (12 C.F.R. Parts 221 and 224) of the Board of
Governors of the Federal Reserve System (herein called "margin stock").
None of the proceeds of the Loans will be used, directly or indirectly,
for the purpose of purchasing or carrying any margin stock or for
the purpose of reducing or retiring any Indebtedness which was originally
incurred to purchase or carry margin stock or for any other purpose which
might constitute this transaction a "purpose credit" within the meaning
of said Regulations G, U, and X. Neither the Borrower nor any bank acting
on its behalf has taken or will take any action which might cause this
Agreement or the Notes to violate Regulation G, U, or X or any other
regulation of the Board of Governors of the Federal Reserve System or to
violate the Securities Exchange Act of 1934, in each case as now in
effect or as the same may hereafter be in effect. If so requested
by a Bank, the Borrower will furnish such Bank with (i) a statement or
statements in conformity with the requirements of Federal Reserve Forms G-3
and/or U-1 referred to in Regulations G and U of said Board of Governors and
(ii) other documents evidencing its compliance with the margin regulations,
including without limitation an opinion of counsel in form and substance
satisfactory to such Bank. Neither the making of the Loans nor the use of
proceeds thereof will violate, or be inconsistent with, the provisions
of Regulation G, U, or X of said Board of Governors.
(s) Solvency. The Borrower and each of its Consolidated Entities
is, and after giving effect to the transactions contemplated hereby and by
the Loan Documents will be, Solvent.
(t) Broker's or Finder's Commissions. No broker's or finder's fee
or commission will be payable with respect to the issuance of the Notes, and
no other similar fees or commissions will be payable by the Borrower for any
other services rendered to the Borrower ancillary to the transactions
contemplated herein.
(u) Qualification as a REIT. The Borrower is, and after giving
effect to the transactions contemplated herein will be, qualified as a REIT.
(v) Name of Borrower. The Borrower has not changed its name
within the preceding five (5) years from the Agreement Date, nor has the
Borrower transacted business under any other name or tradename during
the preceding five (5) years from the Agreement Date.
(w) Investment Company Act. Neither the Borrower nor any of its
Consolidated Entities is required to register under the provisions of the
Investment Company Act of 1940, as amended, and neither the entering into or
performance by the Borrower of this Agreement nor the issuance of the Notes
violates any provision of such Act or requires any consent, approval, or
authorization of, or registration with, any governmental or public body
or authority pursuant to any of the provisions of such Act.
(x) Environmental Matters. To the best of the Borrower's
knowledge, upon due inquiry and investigation completed by the Borrower,
and except as would not, individually or in the aggregate, have a
Materially Adverse Effect:
(i) The Property does not contain, in, on or under, including,
without limitation, the soil and groundwater thereunder, any Hazardous
Materials in violation of Environmental Laws or in amounts that could
give rise to liability under Environmental Laws.
(ii) The Borrower is in compliance with all applicable
Environmental Laws, and there is no contamination or violation of any
Environmental Law which could interfere with the continued operation
of any of the Properties or impair the financial condition of the
Borrower.
(iii) The Borrower has not received from any Governmental
Authority any complaint, notice of violation, alleged violation,
investigation or advisory action or notice of potential liability
regarding matters of environmental protection or permit compliance
under applicable Environmental Laws with regard to the Properties,
nor is the borrower aware that any Governmental Authority is
contemplating delivering to the Borrower of any such notice.
There has been no pending or threatened complaint, notice of violation,
alleged violation, investigation or notice of potential liability
under Environmental Laws with regard to any of the Properties, except
to the extent that remedial action has been taken in accordance
with Applicable Law prior to the Agreement Date.
(iv) Hazardous Materials have not been generated, treated,
stored, disposed of, at, on or under any of the Property in violation
of any Environmental Laws or in a manner that could give rise to
liability under Environmental Laws, nor have any Hazardous Materials
been transported or disposed of from any of the Properties to any other
location in violation of any Environmental Laws or in a manner that
could give rise to liability under Environmental Laws.
(v) The Borrower is not a party to any governmental
administrative actions or judicial proceedings pending under any
Environmental Law with respect to any of the Properties, nor are there
any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to
any of the Properties.
(vi) There has been no release or threat of release of Hazardous
Materials into the environment at or from any of the Properties, or
arising from or relating to the operations of the Borrower, in
violation of Environmental Laws or in amounts that could give
rise to liability under Environmental Laws, except to the extent
that remedial action has been taken in accordance with Applicable Law
prior to the Agreement Date.
Section 4.2Survival of Representations and Warranties, etc. All
representations and warranties made under this Agreement shall be deemed to
be made, and shall be true and correct, at and as of the Agreement Date
and the date of each Advance or issuance of a Letter of Credit hereunder,
except to the extent previously fulfilled in accordance with the terms
hereof and to the extent subsequently inapplicable. All representations
and warranties made under this Agreement shall survive, and not be waived
by, the execution hereof by the Banks and the Administrative Agent, any
investigation or inquiry by any Bank or the Administrative Agent, or the
making of any Advance under this Agreement.
ARTICLE 5 - General Covenants.
So long as any of the Obligations is outstanding and unpaid or the
Borrower shall have the right to borrow hereunder (whether or not the
conditions to borrowing have been or can be fulfilled), and unless the
Majority Banks shall otherwise consent in writing:
Section 5.1Preservation of Existence and Similar Matters. The Borrower
will, and will cause each of its Consolidated Entities and Unconsolidated
Entities to, (i) preserve and maintain their respective existence, rights,
licenses, and privileges in their respective jurisdictions of formation and
(ii) qualify and remain qualified and authorized to do business in each
jurisdiction in which such qualification is necessary in view of the
character of their respective properties or the nature of their respective
businesses requires such qualification or authorization, except for
qualifications and authorizations, the lack of which, singly or in the
aggregate, has not had and is not likely to have a Materially Adverse Effect.
Section 5.2Compliance with Applicable Law. The Borrower will comply,
and will cause each of its Consolidated Entities and Unconsolidated Entities
to comply, with the requirements of all Applicable Law, the non-compliance
of which could have a Materially Adverse Effect.
Section 5.3Maintenance of Properties. The Borrower will maintain, and
will cause each of its Consolidated Entities and Unconsolidated Entities to
maintain, or cause to be maintained in the ordinary course of business in
good repair, working order, and condition all properties necessary in their
respective businesses (whether owned or held under lease).
Section 5.4Accounting Methods and Financial Records. The Borrower will
maintain, and will cause each of its Consolidated Entities and Unconsolidated
Entities to maintain, a system of accounting established and administered in
accordance with GAAP, and will keep and cause each of its Consolidated
Entities and Unconsolidated Entities to keep adequate records and books of
account in which complete entries will be made in accordance with
such accounting principles consistently applied and reflecting
all transactions required to be reflected by such accounting principles.
Section 5.5Insurance. The Borrower will and will cause each of its
Consolidated Entities and Unconsolidated Entities to:
(a) Maintain insurance on its assets and properties and on its
operations including, but not limited to, public liability, business
interruption and fidelity coverage insurance, from responsible insurance
companies in such amounts and against such risks as shall be customary for
similar businesses. The Borrower shall at all times maintain insurance
coverage comparable to that in place on the Agreement Date, taking into
account the growth of the Borrower's business and operations after the
Agreement Date.
(b) Keep the CSC Property insured by insurers on terms and in a
manner reasonably acceptable to the Majority Banks against loss or damage
by fire, loss of rents, theft, burglary, pilferage, loss in transit,
explosions and hazards insured against by extended coverage, in amounts
reasonably satisfactory to the Majority Banks, all premiums thereon to
be paid by the Borrower, or CSC, as applicable.
Section 5.6Payment of Taxes and Claims. The Borrower will pay and
discharge, and will cause each of its Consolidated Entities and
Unconsolidated Entities to pay and discharge, all taxes, assessments, and
governmental charges or levies imposed upon them or upon their respective
incomes or profits or upon any properties belonging to them prior to the
date on which penalties attach thereto, and all lawful claims for
labor, materials, and supplies which, if unpaid, might become a Lien other
than a Permitted Lien upon any of their respective properties; except
that, no such tax, assessment, charge, levy, or claim need be paid which
is being contested in good faith by appropriate proceedings and for
which adequate reserves shall have been set aside on the appropriate
books, but only so long as such tax,assessment, charge, levy, or claim does
not become a Lien or charge other than a Permitted Lien and no
foreclosure, distraint, sale, or similar proceedings shall have been
commenced and remain unstayed for a period thirty (30) days after such
commencement.
Section 5.7Visits and Inspections. The Borrower will permit, and will
cause each of its Consolidated Entities and Unconsolidated Entities to
permit, representatives of the Administrative Agent and each Bank to (a)
visit and inspect the properties of the Borrower and each of its
Consolidated Entities and Unconsolidated Entities during normal business
hours subject to the rights of tenants of such properties, (b) inspect
and make extracts from and copies of their respective books and records,
and (c) discuss with their respective principal officers its
businesses, assets, liabilities, financial positions, results of
operations, and business prospects relating to the Borrower and each
of its Consolidated Entities and Unconsolidated Entities.
Section 5.8Payment of Indebtedness. The Borrower will pay, and will
cause each of its Consolidated Entities and Unconsolidated Entities
to pay, subject to any provisions therein regarding subordination,
any and all of their respective Indebtedness when and as the same
becomes due, other than Indebtedness the non-payment of which will
not have a Materially Adverse Effect, and which the Person obligated
thereon is contesting in good faith and has established adequate
reserves on its books and records.
Section 5.9Use of Proceeds. The Borrower will use the proceeds of the
Loans for any purposes not in violation of the terms and conditions of this
Agreement.
Section 5.10ERISA. The Borrower shall (a) notify the Banks as soon as
practicable of any Reportable Event and of any additional act or condition
arising in connection with any such Plan which the Borrower believes might
constitute grounds for the termination thereof by the Pension Benefit
Guaranty Corporation or for the appointment by the appropriate United States
District Court of a trustee to administer such Plan; and (b) furnish to the
Banks, promptly upon the Banks' request therefor, such additional information
concerning any such Plan as may be reasonably requested by the Banks.
Section 5.11Further Assurances. The Borrower will promptly cure, or
cause to be cured, defects in the creation and issuance of the Notes and the
execution and delivery of the Loan Documents (including this Agreement),
resulting from any at or failure to act by the Borrower or any of its
Consolidated Entities or any employee or officer thereof. The Borrower at
its expense will promptly execute and deliver to the Administrative Agent
and the Banks, or cause to be executed and delivered to the Administrative
Agent and the Banks,all such other and further documents, agreements, and
instruments in compliance with or accomplishment of the covenants and
agreements of the Borrower in the Loan Documents, including this
Agreement, or to correct any omissions in the Loan Documents, or more
fully to state the obligations set out herein or in any of the Loan
Documents, or to obtain any consents, all as may be necessary
or appropriate in connection therewith as may be reasonably requested.
Section 5.12Broker's Claims. The Borrower hereby indemnifies and
agrees to hold the Administrative Agent and each of the Banks harmless
from and against any and all losses, liabilities, damages, costs and expenses
which may be suffered or incurred by the Administrative Agent and
each of the Banks in respect of any claim, suit, action or cause of
action now or hereafter asserted by a broker or any Person acting
in a similar capacity arisingfrom or in connection with the execution
and delivery of this Agreement or any other Loan Document or the
consummation of the transactions contemplated herein or therein and
arising out of any act or agreement of the Borrower, any Consolidated
Entity or any Unconsolidated Entity.
ARTICLE 6 - Information Covenants.
So long as any of the Obligations is outstanding and unpaid or the
Borrower has a right to borrow hereunder (whether or not the conditions
to borrowing have been or can be fulfilled) and unless the Majority Banks
shall otherwise consent in writing, the Borrower will furnish or cause
to be furnished to each Bank and to the Administrative Agent at their
respective offices:
Section 6.1Quarterly Financial Statements and Information. Within
forty-five (45) days after the last day of each quarter in each calendar
year, except the last quarter in each calendar year, the balance sheet of
the Borrower and it Consolidated Entities as at the end of such quarter,
and the related statement of income and cash flows for the elapsed
portion of the year ended with the last day of such quarter, all of
which shall be on a consolidated basiswith the Borrower's Consolidated
Entities, and certified by an Authorized Signatory of the Borrower to,
in his or her opinion, present fairly, in accordance with GAAP,
the financial position of the Borrower and its Consolidated Entities,
as at the end of such period and the results of operations for
such period, and for the elapsed portion of the year ended with the last
day of such period, subject only to normal year-end adjustments.
Section 6.2Annual Financial Statements and Information; Certificate
of No Default.
(a) Within one hundred twenty (120) days after the end of each
calendar year, the audited balance sheets of the Borrower and its
Consolidated Entities, as at the end of such calendar year, all of which
shall be on a consolidated basis with the Borrower and the Borrower's
Consolidated Entities, and the related audited statements of income and
retained earnings and related audited statements of cash flows for
such calendar year, which financial statements shall set forth in
comparative form such figures as at the end of and for the previous
calendar year, and shall be accompanied by an opinion of a firm of
independent certified public accountants of nationally recognized standing
selected by the Borrower, together with a statement of such accountants
certifying that no Default or Event of Default, including, without
limitation, any Default under Sections 7.8, 7.9, 7.10, 7.11 and 7.12
hereof was detected during the examination of the Borrower, and that
such accountants have authorized the Borrower to deliver such financial
statements and opinion thereon to the Administrative Agent and the
Banks pursuant to this Agreement.
(b) Within one hundred twenty (120) days after the end of each
calendar year, the audited balance sheets of each of Wildwood Associates and
CSC Associates, L.P., and the unaudited consolidating balance sheets and
income statements of the Borrower and its other Consolidated Entities.
Section 6.3Performance Certificates. Within forty-five (45) days after
the last day of each quarter in each calendar year, a certificate of an
Authorized Signatory of the Borrower in form and substance satisfactory
to the Majority Banks:
(a) Setting forth as at the end of such quarter or calendar year,
as the case may be, the arithmetical calculations required to establish
whether or not the Borrower was in compliance with the requirements of
Sections 7.8, 7.9, 7.10, 7.11 and 7.12 hereof; and
(b) Stating that, to the best of his or her knowledge, no Default
or Event of Default has occurred as at the end of such quarter or year, as
the case may be, or, if a Default or an Event of Default has occurred,
disclosing each such Default or Event of Default and its nature, when it
occurred, whether it is continuing, and the steps being taken by the
Borrower with respect to such Default or Event of Default.
Section 6.4Copies of Other Reports.
(a) Promptly upon receipt thereof, copies of all reports, if any,
submitted to the Borrower by its independent public accountants regarding the
Borrower or any of its Consolidated Entities, including, without limitation,
any management report prepared in connection with the annual audit referred
to in Section 6.2 hereof.
(b) Promptly after the preparation of the same, copies of all
material reports or financial information filed with any governmental agency,
department, bureau, division or other governmental authority or regulatory
body (including, without limitation, the Securities and Exchange Commission)
or evidencing facts or containing information which could have a
Materially Adverse Effect.
(c) From time to time and promptly upon each request, such data,
certificates, reports, statements, documents, or further information
regarding the business, assets, liabilities, financial position,
projections, results of operations of the Borrower or any of its
Consolidated Entities as the Administrative Agent, upon request of
the Majority Banks, may reasonably request.
(d) Promptly upon request therefor, such information as may be
reasonably requested pertaining to the CSC Property, including annual rent
rolls and quarterly operating statements.
Section 6.5Notice of Litigation and Other Matters. Prompt notice of
the following events as to which the Borrower has received notice or
otherwise become aware thereof:
(a) The commencement of all material proceedings and
investigations by or before any governmental body and all actions and
proceedings in any court or before any arbitrator (i) against or,
(ii) to the extent known to theBorrower, in any other way relating
adversely and directly to the Borrower, any of its Consolidated Entities
or any Unconsolidated Entities, or any of their respective properties,
assets, or businesses, or which calls intoquestion the validity of
this Agreement or any other Loan Document, except where the
adverse outcome of such proceeding or investigation is not likely to
have a Materially Adverse Effect;
(b) Any material adverse change with respect to the business,
assets, liabilities, financial position, or results of operations of the
Borrower, any of its Consolidated Entities or any Unconsolidated Entities,
other than changes in the ordinary course of business which have not
had and are not likely to have a Materially Adverse Effect;
(c) Any Default or default by the Borrower under any agreement
(other than this Agreement) to which the Borrower, any of its Consolidated
Entities or any Unconsolidated Entities is party or by any of their
respective properties is bound which is likely to have a Materially
Adverse Effect or the occurrence of any other event which could have a
Materially Adverse Effect,giving in each case the details thereof and
specifying the action proposed to be taken with respect thereto; and
(d) The occurrence of any Reportable Event or a "prohibited
transaction" (as such term is defined in Section 406 of ERISA or Section
4975 of the Code) with respect to any Plan of the Borrower or any of its
ERISA Affiliates or the institution or threatened institution by the
Pension Benefit Guaranty Corporation of proceedings under ERISA to
terminate or to partially terminate any such Plan or the commencement or
threatened commencement of any litigation regarding any such Plan or
naming it or the Trustee of any such Plan with respect to such Plan.
(e) The occurrence of any event subsequent to the Agreement Date
which, if such event had occurred prior to the Agreement Date, would have
constituted an exception to the representation and warranty in Section
4.1(x) of this Agreement.
ARTICLE 7 - Negative Covenants.
So long as any of the Obligations is outstanding and unpaid or the
Borrower has a right to borrow hereunder (whether or not the conditions to
borrowing have been or can be fulfilled) and unless the Majority Banks shall
otherwise give their prior consent in writing:
Section 7.1Indebtedness of the Borrower. The Borrower shall not
create, assume, incur or otherwise become or remain obligated in respect of,
or permit to be outstanding, and shall not permit any of its Consolidated
Entities or Unconsolidated Entities to create, assume, incur or otherwise
become or remain obligated in respect of, or permit to be outstanding,
any Indebtedness except (which in each case shall be subject to
compliance with Section 7.8 hereofboth before and after giving effect
to such Indebtedness):
(a) Indebtedness under this Agreement, the Notes and the other
Loan Documents;
(b) Trade accounts payable, accrued expenses, customer advance
payments, contractual obligations to suppliers, customers, tenants and
contractors incurred in the ordinary course of business, and other current
liabilities (other than Indebtedness for Money Borrowed) incurred in the
ordinary course of business;
(c) Indebtedness secured by Permitted Liens;
(d) Indebtedness not to exceed $150,000,000 of Wildwood Associates
inclusive of the Indebtedness permitted under Section 7.1(e) hereof;
(e) Indebtedness of Wildwood Associates to Wachovia Bank of
Georgia, N.A. (or another financial institution in substitution therefor)
not to exceed $50,000,000 outstanding at any time;
(f) Indebtedness of CSC in a principal amount not to exceed
$5,000,000 outstanding at any time;
(g) Indebtedness secured by the cash surrender value of key-man
life insurance policies not to exceed $500,000 outstanding in the aggregate
at any time;
(h) Indebtedness incurred by Norfolk Hotel Associates in an
aggregate principal amount not to exceed $9,500,000 outstanding at any time;
(i) Indebtedness to the Massell interests not to exceed $443,000
in the aggregate outstanding from time to time; and
(j) Indebtedness of any of the Consolidated Entities,
Unconsolidated Entities or the Borrower to any of the foregoing Persons.
Section 7.2Investments. The Borrower shall not and shall not permit any
any of its Consolidated Entities or Unconsolidated Entities to, make any loan,
advance, or otherwise acquire evidences of Indebtedness, capital stock or
other securities of any Person, except that such Persons (a) may make
investments in and loans and advances to and otherwise acquire evidences
of Indebtedness ofthe Borrower and its Consolidated Entities and
Unconsolidated Entities, (b) may purchase or otherwise acquire or own
Indebtedness for Money Borrowed secured by real property having a value
equal to or greater than the purchase price of such Indebtedness on the
acquisition date, (c) may purchase or otherwise acquire or own up to
$5,000,000 of other investments, loans, advances and evidences of
Indebtedness outstanding from time to time, and (d) may acquire the
capital stock or other securities of any Person engaged in a
business similar to that of the Borrower and its Consolidated Entities.
Notwithstanding the foregoing, in addition to the $5,000,000 limitation in
clause 7.2(c), the Borrower may make investments of its working capital and
other reserves (A) in such investments as the Borrower deems appropriate
having maturities not to exceed ninety (90) consecutive days, and
(B) in money market mutual funds.
Section 7.3Limitation on Liens. The Borrower shall not create, assume,
incur or permit to exist or to be created, assumed, incurred or permitted to
exist, directly or indirectly, and shall not permit any of its Consolidated
Entities or Unconsolidated Entities to create, assume, incur, or permit to
exist or to be created, assumed, incurred or permitted to exist, directly
or indirectly, any Lien on any of its properties or assets, whether now owned
or hereafter acquired, except for Permitted Liens, and shall not covenant or
agree, or permit any of its Consolidated Entities or Unconsolidated Entities
to covenant or agree, with any third party that it will not create, assume,
incur or permit to exist or to be created, assumed, incurred or permitted to
exist any Lien on any of its material assets or properties other than
Permitted Liens or in connection with the Indebtedness described in Section
7.1(e) hereof.
Section 7.4Amendment and Waiver. The Borrower shall not, without the
prior written consent of the Majority Banks, enter into any material
amendment of, or agree to or accept any material waiver of its by-laws
or articles of incorporation, which would adversely affect the rights
of the Administrative Agent and the Banks under this Agreement or
any other Loan Document.
Section 7.5Liquidation; Disposition or Acquisition of Assets. The
Borrower shall not, and shall not permit any of its Consolidated Entities
or Unconsolidated Entities to, at any time except for dispositions by
Consolidated Entities or Unconsolidated Entities of their respective
businesses, assets or rights to the Borrower or another Consolidated
Entity or Unconsolidated Entity, (i) liquidate or dissolve itself (or
suffer any liquidation or dissolution, including, without limitation,
the announcement or adoption of any plan of dissolution) or
otherwise wind up, or (ii) enter into any merger or consolidation
(other than a merger or consolidation having the Borrower, the
Unconsolidated Entity or the Consolidated Entity, as the case may
be, as the surviving entity).
Section 7.6Limitation on Guaranties. The Borrower shall not, and
shall not permit any of its Consolidated Entities or Unconsolidated Entities
to, at any time Guaranty, or assume, be obligated with respect to, or
permit to be outstanding any Guaranty of, any obligation of any other Person
other than (a) obligations under any Loan Document, (b) obligations under
agreements to indemnify Persons who have issued bid or performance bonds
or letters of credit issued in lieu of such bonds in the ordinary
course of business of such Person securing performance by such Person
of activities otherwise permissible hereunder and only on behalf of the
Borrower, its Consolidated Entities or the Unconsolidated Entities,
(c) a guaranty by endorsement of negotiable instruments for collection in
the ordinary course of business, (d) guaranties with respect to
environmental matters on any Property, (e) recourse Indebtedness permitted
hereunder, (f) guaranties of completion or performance obligations
not to exceed $20,000,000 in the aggregate (without giving effect to
any such guaranties which singly do not exceed $500,000) outstanding at
any time, (g) obligations of the Borrower, its Consolidated Entities
or Unconsolidated Entities, as a general partner of a partnership with
respect to primary obligations of such partnership which under this
Agreement, (h) guaranties existing as of the Agreement Date, and (i)
guaranties in favor of the Borrower, an Unconsolidated Entity or a
Consolidated Entity.
Section 7.7Restricted Payments and Purchases. The Borrower shall not,
and shall not permit any of its Consolidated Entities or Unconsolidated
Entities to, directly or indirectly declare or make any Restricted Payment
or Restricted Purchase, except that (a) the Borrower's Consolidated
Entities and Unconsolidated Entities may make Restricted Payments to the
Borrower, (b) theBorrower's Consolidated Entities and Unconsolidated
Entities may make distributions to any partner or shareholder of such
Person as permitted by Applicable Law and the articles of incorporation
and by-laws or partnership agreement of such Person, so long as such Person
makes a contemporaneous distribution to the Borrower, its Consolidated
Entities, or its Unconsolidated Entities, as the case may be, and (c) so
long as there does not exist at such time and would not be caused thereby,
an Event of Default (i) under Section8.1(b) of this Agreement, or
(ii) any other Event of Default which has not been cured or waived
by the Banks for a period of ninety (90) days from the date that the
Borrower knew or should have known of such Event of Default, the
Borrower may pay dividends and make distributions to its shareholders
and make Restricted Purchases.
Section 7.8Total Debt to Total Assets Ratio. The Borrower shall not
permit at any time Total Debt to exceed forty percent (40%) of Total Assets.
For purposes hereof, Total Assets of Unconsolidated Entities shall be, at the
Borrower's option, based upon (a) the most recent annual financial statements
delivered to the Banks or (b) the most recent quarterly financial statements
certified as correct by the Chief Financial Officer of the Borrower. In
the case of (a), the Chief Financial Officer shall certify that there has been
no material reduction in Total Assets of Unconsolidated Entities since the
date of the most recent annual financial statements delivered to the Banks
pursuant to Section 6.2 hereof.
Section 7.9Leverage Ratio. The Borrower shall not permit at any time
Total Liabilities to be greater than sixty-five percent (65%) of
Stockholders' Investment.
Section 7.10Minimum Stockholders' Investment. The Borrower shall at all
times maintain a Stockholders' Investment of not less than $250,000,000.
Section 7.11Net Income. The Borrower shall not (a) have a net loss
for any fiscal quarter which is equal to or greater than $1,000,000, (b)
have a Net Income for any two (2) consecutive fiscal quarters which is
less than zero (0), or (c) have a Net Income for any fiscal year which is
less than zero (0).
Section 7.12Interest Coverage Ratio. The Borrower shall for each fiscal
quarter and fiscal year maintain a ratio of (a) the sum of (i) Consolidated
Funds from Operations plus (ii) Interest Expense to (b) the sum of (i)
Interest Expense and (ii) Interest Capitalized, of not less than 3.00 to 1.
Section 7.13Affiliate Transactions. Except for agreements which are
direct cost or direct revenue pass through in nature, the Borrower shall
not, and shall not permit any of its Consolidated Entities or Unconsolidated
Entities to, at any time engage in any transaction with an Affiliate, nor
make an assignment or other transfer of any of its assets to any
Affiliate, on terms less advantageous than would be the case if such
transaction had been effected with a non-Affiliate.
Section 7.14ERISA Liabilities. The Borrower shall not, and shall not
permit any ERISA Affiliate to, fail to meet all of the applicable minimum
funding requirements of ERISA and the Code, without regard to any waivers
thereof, and, to the extent that the assets of any of its Plans would be less
than an amount sufficient to provide all accrued benefits payable under such
Plans, shall make the maximum deductible contributions allowable under the
Code. The Borrower shall not, and shall not permit any ERISA Affiliate to,
become a participant in any Multiemployer Plan.
ARTICLE 8 - Default.
Section 8.1Events 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 law or pursuant to
any judgment or order of any court or any order, rule, or regulation of any
governmental or non-governmental body:
(a) Any representation or warranty made under this Agreement shall
prove incorrect or misleading in any material respect when made or deemed to
have been made;
(b) The Borrower shall default, after receipt of notice from the
Administrative Agent, in the payment of any principal, interest or fees
payable hereunder or under the Notes, or any of them, or under the other Loan
Documents; provided, however, that the Administrative Agent shall not
be required to provide more than two (2) such notices in any
calendar year, and any default in the payment of any principal, interest
or fees payable hereunder or under the Notes, or any of them, or under the
other Loan Documents after the Second (2nd) such notice in any calendar
year shall be an automatic Event of Default hereunder;
(c) The Borrower shall default in the performance or observance
of any agreement or covenant contained in Article 6 or Article 7 hereof;
(d) The Borrower shall default in the performance or observance of
any other agreement or covenant contained in this Agreement not specifically
referred to elsewhere in this Section 8.1, and such Default shall not be
cured to the Majority Banks' satisfaction within a period of thirty (30) days
from the date the Borrower becomes aware of the occurrence of such default;
(e) There shall occur any Default in the performance or
observance of any agreement or covenant or breach of any representation
or warranty contained in any of the Loan Documents (other than this Agreement
or as otherwise provided in Section 8.1 of this Agreement), which shall
not be cured to the Majority Banks' satisfaction within the applicable
cure period, if any, provided for in such Loan Document or thirty (30)
days from the date the Borrower becomes aware of the breach or Default if
no cure period is provided in such Loan Document;
(f) Any Person (together with Affiliates of such Person), other
than Thomas G. Cousins (together with his heirs and administrators and
any other devisees under his will), shall have, directly or indirectly,
a beneficial ownership of more than twenty-five percent (25%) of the
voting equity interests or voting securities or the power to direct
or cause the direction of the management and policies of the Borrower;
(g) There shall be entered a decree or order for relief in
respect of any of the Borrower, its Consolidated Entities or any
Unconsolidated Entity under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other applicable federal or
state bankruptcy law or other similar law, or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator, or similar official
of any of the Borrower, any of itsConsolidated Entities or any
Unconsolidated Entity, or of any substantial part of their respective
properties, or ordering the winding-up or liquidation of the affairs of
any of the Borrower, its Consolidated Entities or any Unconsolidated
Entity, or an involuntary petition shall be filed against any of the
Borrower, its Consolidated Entities or any Unconsolidated Entity, and a
temporary stay entered, and (i) such petition and stay shall not be
diligently contested, or (ii) any such petition and stay shall continue
undismissed for a period of thirty (30) consecutive days;
(h) The Borrower, any of its Consolidated Entities or any
Unconsolidated Entity shall file a petition, answer, or consent seeking
relief under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other applicable federal or state bankruptcy
law or other similar law, or any of the Borrower, its Consolidated
Entities or any Unconsolidated Entity shall consent to the institution of
proceedings thereunder or to the filing of any such petition or to the
appointment or taking of possession of a receiver, liquidator, assignee,
trustee, custodian, sequestrator, or other similar official of any
of the Borrower, its Consolidated Entities or any Unconsolidated
Entity, or of any substantial part of their respective properties, or the
Borrower, any of its Consolidated Entities or any Unconsolidated
Entity shall fail generally to pay their respective debts
as they become due, or the Borrower, any of its Consolidated
Entities or any Unconsolidated Entity shall take any corporate
or partnership action to authorize any such action;
(i) A final judgment shall be entered by any court against the
Borrower, any of its Consolidated Entities or any Unconsolidated Entity for
the payment of money which exceeds $500,000, which judgment is not covered by
insurance or a warrant of attachment or execution or similar process shall be
issued or levied against property of the Borrower, any of its Consolidated
Entities or any Unconsolidated Entity which, together with all other such
property of the Borrower, its Consolidated Entities or any Unconsolidated
Entity subject to other such process, exceeds in value $500,000 in the
aggregate, and if, within thirty (30) days after the entry, issue, or levy
thereof, such judgment, warrant, or process shall not have been paid or
discharged or stayed pending appeal, or if, after the expiration of any
such stay, such judgment, warrant, or process shall not have been paid or
discharged;
(j) (i) There shall be at any time any "accumulated funding
deficiency," as defined in ERISA or in Section 412 of the Code, with respect
to any Plan; or (ii) a trustee shall be appointed by a United States District
Court to administer any Plan; or the Pension Benefit Guaranty Corporation
shall institute proceedings to terminate any Plan; or (iii) any of the
Borrower and its ERISA Affiliates shall incur any liability to the Pension
Benefit Guaranty Corporation in connection with the termination of any Plan;
or (iv) any Plan or trust created under any Plan of any of the Borrower and
its ERISA Affiliates shall engage in a non-exempt "prohibited transaction"
(as such term is defined in Section 406 of ERISA or Section 4975 of the Code)
which would subject the Borrower or any ERISA Affiliate to the tax or
penalty on "prohibited transactions" imposed by Section 502 of ERISA or
Section 4975 of the Code; and by reason of any or all of the events described
in clauses (i) through (iv), as applicable, the Borrower shall have waived
(and/or is likely to incur) and/or incurred liability in excess of
$1,000,000 in the aggregate;
(k) There shall occur any default under any indenture, agreement,
orinstrument evidencing Indebtedness for Money Borrowed in excess of
$500,000 of the Borrower, any of its Consolidated Entities or any
Unconsolidated Entity, which default is not cured or waived within any
applicable cure, notice or notice and cure period and which default shall
give the holder thereof the right to accelerate the obligations thereunder;
(l) All or any portion of any Loan Document shall at any time
and for any reason be declared by a court of competent jurisdiction in a
suit with respect to such Loan Document to be null and void, or a
proceeding shall be commenced by any governmental authority involving a
legitimate dispute or by the Borrower or any of its Consolidated Entities,
having jurisdiction over the Borrower or any of its Consolidated
Entities, seeking to establish the invalidity or unenforceability
thereof (exclusive of questions of interpretation of any provision
thereof), or the Borrower or any of its Consolidated Entities shall deny
that it has any liability or obligation for the payment of principal
or interest purported to be created under any Loan Document;
(m) The Borrower shall at any time cease to be qualified as a
REIT for any purpose under the Code;
(n) (i) Thomas G. Cousins shall cease to be the Chairman of the
Board of the Borrower and (ii) any three (3) of the following (or any
successors thereto approved in writing by the Banks) shall cease to
be actively involved in the management of the Borrower, its
Consolidated Entities and its Unconsolidated Entities: Vipin L. Patel,
George J. Berry, Tom G. Charlesworth, Daniel M. DuPree, John L. Murphy,
W. James Overton, William C.Smith, Peter A. Tartikoff and Roy L.
Wood, Jr., and in either case, the Borrower shall have failed to provide
replacement management satisfactory to the Banks in their sole
discretion within ninety (90) days from the occurrence thereof; or
(o) There shall occur any event which has or is reasonably
likely to have a Materially Adverse Effect.
Section 8.2Remedies. If an Event of Default shall have occurred
and shall be continuing:
(a) With the exception of an Event of Default, specified in
Sections 8.1(g) or (h), the Administrative Agent shall at the request, or
may with the consent, of the Majority Lenders, by notice to the Borrower
(i) declare the Notes, all interest thereon and all other amounts
payable under this Agreement and the other Loan Documents to be
forthwith due and payable, whereupon the Notes, all such interest and all
such amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower and/or (ii) terminate the
Commitment and (iii) require the Borrower to, and the Borrower
shall thereupon, deposit in an interest bearing account with the
Administrative Agent, as cash collateral for the Obligations, an amount
equal to the maximum amount currently or at any time thereafter to be drawn
on all outstanding Letters of Credit, and the Borrower hereby pledges to the
Administrative Agent, the Banks and the Issuing Bank and grants to them a
security interest in, all such cash as security for the Obligations.
(b) Upon the occurrence of an Event of Default under Sections
8.1(g) and (h) hereof, the Commitment shall automatically terminate and such
principal, interest (including without limitation, interest which would have
accrued but for the commencement of a case or proceeding under the federal
bankruptcy laws), Letter of Credit Obligations and other amounts payable
under this Agreement or the Notes shall thereupon and concurrently
therewith become due and payable, all without any action by the
Administrative Agent, the Issuing Bank or the Banks or the holders of
the Notes, and the Borrower shall thereupon forthwith deposit in
an interest bearing account with the Administrative Agent, as cash
collateral for the Obligations, an amount equal to the maximum amount
currently or at any time thereafter available to be drawn on all
outstanding Letters of Credit, all without presentment, demand,
protest or other notice of any kind, all of which are expressly waived,
anything in this Agreement or in the Notes to the contrary notwithstand-
ing, and the Borrower hereby pledges to the Administrative Agent, the
Banks and the Issuing Bank, and grants to the Administrative Agent, the
Banks and the Issuing Bank a security interest in, all such cash as
security for the Obligations.
(c) The Administrative Agent, with the concurrence of the
Majority Banks, shall exercise all of the post-default rights granted to
it and to them under the Loan Documents or under Applicable Law.
(d) The rights and remedies of the Administrative Agent, the
Issuing Banks and the Banks hereunder shall be cumulative, and not exclusive.
(e) In the event that the Administrative Agent establishes a cash
collateral account as contemplated by this Section 8.2, the Administrative
Agent shall invest all funds in such account in such Investments as the
Administrative Agent in its sole and absolute discretion deems appropriate.
The Borrower hereby acknowledges and agrees that any interest earned on
such funds shall be retained by the Administrative Agent as additional
collateral for the Obligations. Upon satisfaction in full of all
Obligations, the Administrative Agent shall pay any amounts then held in
such account to the Borrower.
ARTICLE 9 - The Administrative Agent.
Section 9.1Appointment and Authorization. Each Bank hereby irrevocably
appoints and authorizes, and hereby agrees that it will require any
transferee of any of its interest in its Loans and in its Notes irrevocably
to appoint and authorize, the Administrative Agent to take such actions as
its agent on its behalf and to exercise such powers hereunder as are
delegated by the terms hereof, together with such powers as are
reasonably incidental thereto. Neither the Administrative Agent nor
any of its directors, officers, employees, or agents shall be liable to
any Bank (or any transferee thereof) for any action taken or omitted
to be taken by it or them hereunder or in connection herewith, except for
its or their own gross negligence or willful misconduct.
Section 9.2Delegation of Duties. The Administrative Agent may execute
any of its duties under the Loan Documents by or through agents or
attorneys selected by it using reasonable care and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible to any Bank for the
negligence or misconduct of any agents or attorneys selected by it
with reasonable care.
Section 9.3Interest Holders. The Administrative Agent may treat each
Bank, or the Person designated in the last notice filed with the
Administrative Agent under this Section 9.3, as the holder of all of
the interests of such Bank in its Loans and in its Notes until
written notice of transfer, signed by such Bank (or the Person
designated in the last notice filed with the Administrative Agent)
and by the Person designated in such writtennotice of transfer,
in form and substance satisfactory to the Administrative
Agent, shall have been filed with the Administrative Agent.
Section 9.4Consultation with Counsel. The Administrative Agent may
consult with legal counsel selected by it and shall not be liable to any
Bank (or transferee thereof) for any action taken or suffered by it in
good faith in reliance thereon.
Section 9.5Documents. The Administrative Agent shall be under no
duty toexamine, inquire into, or pass upon the validity, effectiveness, or
genuineness of this Agreement, any Note, or any instrument, document,
or communication furnished pursuant hereto or in connection herewith, and
the Administrative Agent shall be entitled to assume that they are valid,
effective, and genuine, have been signed or sent by the proper parties, and
are what they purport to be.
Section 9.6Administrative Agent and Affiliates. The Administrative
Agent and its affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any Affiliates
of, or Persons doing business with, the Borrower, as if it were not
affiliated with the Administrative Agent and without any obligation
to account to any Bank (or any transferee thereof) therefor.
Section 9.7Responsibility of the Administrative Agent. The duties and
obligations of the Administrative Agent under this Agreement are only those
expressly set forth in this Agreement. The Administrative Agent shall be
entitled to assume that no Default or Event of Default has occurred and is
continuing unless it has actual knowledge, or has been notified by the
Borrower, of such fact, or has been notified by a Bank that such Bank
considers that a Default or an Event of Default has occurred and is
continuing, and such Bank shall specify in detail the nature thereof in
writing. The Administrative Agent shall not be liable hereunder
to any Bank (or any transferee thereof) for any action taken or omitted to
be taken except for its own gross negligence or willful misconduct.
The Administrative Agent shall provide each Bank with copies of such
documents received from the Borrower as such Bank may reasonably request.
Section 9.8Action by Administrative Agent.
(a) Except for action requiring the approval of the Majority
Banks, the Administrative Agent shall be entitled to use its discretion
with respect to exercising or refraining from exercising any rights which
may be vested in it by, and with respect to taking or refraining from
taking any action or actions which it may be able to take under or in
respect of, this Agreement, unless the Administrative Agent shall have
been instructed by the Majority Banks to exercise or refrain from
exercising such rights or to take or refrain from taking such
action, provided that the Administrative Agent shall not exercise any
rights under Section 8.2(a) of this Agreement without the request of
the Majority Banks. The Administrative Agent shall incur no
liability to any Bank (or any transferee thereof) under or in respect
of this Agreement with respect to anything which it may do or refrain
from doing in the reasonable exercise of its judgment or which may seem
to it to be necessary or desirable in the circumstances, except for its
gross negligence or willful misconduct.
(b) The Administrative Agent shall not be liable to the Banks
or to any Bank in acting or refraining from acting under this Agreement
in accordance with the instructions of the Majority Banks, and any action
taken or failure to act pursuant to such instructions shall be binding on
all Banks.
Section 9.9Notice of Default or Event of Default. In the event that
the administrative Agent or any Bank shall acquire actual knowledge, or
shall have been notified in writing, of any Default or Event of Default, the
Administrative Agent or such Bank shall promptly notify the Banks and the
Administrative Agent, and the Administrative Agent shall take such action
and assert such rights under this Agreement as the Majority Banks
shall request in writing, and the Administrative Agent shall not be
subject to any liability by reason of its acting pursuant to any such
request. If the Majority Banks shall fail to request the Administrative
Agent to take action or to assert rights under this Agreement in respect of
any Default or Event of Default within ten (10) days (or shorter period
as set forth in such notice) after their receipt of the notice of
any Default or Event of Default from the Administrative Agent,
or shall request inconsistent action with respect to such Default or
Event of Default, the Administrative Agent may, but shall not be
required to, take such action and assert such rights (other than rights
under Article 8 hereof) as it deems in its discretion to be advisable for
the protection of the Banks, except that, if the Majority Banks have
instructed the Administrative Agent not to take such action or
assert such right, in no event shall theAdministrative Agent
act contrary to such instructions.
Section 9.10Responsibility Disclaimed. The Administrative Agent shall
be under no liability or responsibility whatsoever as Administrative Agent:
(a) To the Borrower or any other Person or entity as a
consequence of any failure or delay in performance by or any breach by, any
Bank or Banks of any of its or their obligations under this Agreement;
(b) To any Bank or Banks, as a consequence of any failure or
delay in performance by, or any breach by, the Borrower or any other
obligor of any of its obligations under this Agreement or the Notes
or any other Loan Document; or
(c) To any Bank or Banks for any statements, representations, or
warranties in this Agreement, or any other document contemplated by this
Agreement or any information provided pursuant to this Agreement, any other
Loan Document, or any other document contemplated by this Agreement, or for
the validity, effectiveness, enforceability, or sufficiency of this
Agreement, the Notes, any other Loan Document, or any other document
contemplated by this Agreement.
Section 9.11Indemnification. The Banks agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower) pro rata
according to their respective Commitment Ratios, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including fees and expenses of experts, agents,
consultants, and counsel), or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by, or asserted against the Administrative
Agent in any way relating to or arising out of this Agreement, any other
Loan Document, or any other document contemplated by this Agreement or any
action taken or omitted by the Administrative Agent under this Agreement,
any other Loan Document, or any other document contemplated by this
Agreement, except that no Bank shall be liable to the Administrative Agent
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses, or disbursements resulting from
the gross negligence or willful misconduct of the Administrative Agent.
The provisions of this Section 9.11 shall survive the termination of
this Agreement.
Section 9.12Credit Decision. Each Bank represents and warrants to each
other and to the Administrative Agent that:
(a) In making its decision to enter into this Agreement and to
make Advances it has independently taken whatever steps it considers
necessary to evaluate the financial condition and affairs of the Borrower
and that it has made an independent credit judgment, and that it has not
relied upon information provided by the Administrative Agent; and
(b) So long as any portion of the Loans or Letter of Credit
Obligations remains outstanding, it will continue to make its own independent
evaluation of the financial condition and affairs of the Borrower.
Section 9.13Successor Administrative Agent. Subject to the appointment
and acceptance of a successor Administrative Agent (which shall be any Bank
or a commercial Issuing Bank organized under the laws of the United States
of America or any political subdivision thereof which has a combined capital
and reserves in excess of $250,000,000) as provided below, the Administrative
Agent may resign at any time by giving written notice thereof to the
Banks and the Borrower and may be removed at any time for cause by the
Majority Banks. Upon any such resignation or removal, the Majority Banks
shall have the right to appoint a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Majority
Banks, and shall have accepted such appointment within thirty (30) days
after the retiring Administrative Agent's giving of notice of resignation
or the Majority Banks' removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of the Banks, appoint a
successor Administrative Agent which shall be any Issuing Bank or a
commercial bank organized under the laws of the United States of
America or any political subdivision thereof which has combined capital
and reserves in excess of $250,000,000. 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, duties, and obligations of the retiring
Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative
Agent, the provisions of this Section 9.13 shall continue in effect for
its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as the Administrative Agent.
ARTICLE 10 - Miscellaneous.
Section 10.1Notices.
(a) All notices and other communications under this Agreement
shall be in writing and shall be deemed to have been given three (3) days
after deposit in the mail, designated as certified mail, return receipt
requested, post-prepaid, or one (1) Business Day after being entrusted
to a reputable commercial overnight delivery service, or telecopy addressed
to the party to which such notice is directed at its address
determined as provided in this Section 10.1 All notices and other
communications under this Agreement shall be given to the parties
hereto at the following addresses:
(i) If to the Borrower, to it at:
Prior to August 2, 1994:
Cousins Properties Incorporated
2500 Windy Ridge Parkway
Suite 1600
Marietta, Georgia 30067
Attn: Chief Financial Officer
Telecopy No.: (404) 955-0030
After August 2, 1994:
Cousins Properties Incorporated
2500 Windy Ridge Parkway
Suite 1600
Atlanta, Georgia 30339
Attn: Chief Financial Officer
Telecopy No.: (404) 955-0030
with a copy to:
John W. Griffin, Esq.
Troutman Sanders
600 Peachtree Street, N.E.
Suite 5200
Atlanta, Georgia 30308-2216
Telecopy No.: (404) 885-3900
(ii) If to the Administrative Agent, to it at:
NationsBank of Georgia, N.A.
600 Peachtree Street, N.E.
Suite 600
Atlanta, Georgia 30308
Attn: Gregory J. Wolkom
Telecopy No.: (404) 607-4145
with a copy to:
Powell, Goldstein, Frazer & Murphy
191 Peachtree Street, N.E.
Suite 1600
Atlanta, Georgia 30303
Attn:
Telecopy No.: (404) 572-6999
(iii) If to the Banks, to them at:
NationsBank of Georgia, N.A.
600 Peachtree Street, N.E.
Suite 600
Atlanta, Georgia 30308
Attn: Gregory J. Wolkom
Telecopy No.: (404) 607-4145
Wachovia Bank of Georgia, N.A.
191 Peachtree Street, N.E.
30th Floor, Mail Code MCGA-1810
Atlanta, Georgia 30303
Attn: Steven B. Wood
Telecopy No.: (404) 332-4066
Copies shall be provided to persons other than parties hereto only in the
case of notices under Article 8 hereof.
(b) Any party hereto may change the address to which notices
shall be directed under this Section 10.1 by giving ten (10) days' written
notice of such change to the other parties. The Administrative
Agent may rely on the authority of any document delivered to it
by any Bank and shall have no obligation to make a determination
as to authenticity or authorization with respect to any Bank.
Section 10.2Expenses. The Borrower agrees to promptly pay:
(a) All reasonable costs and out-of-pocket expenses of the
Administrative Agent on the Agreement Date in connection with the
preparation, negotiation, execution, and delivery of this Agreement and
the other Loan Documents executed on the Agreement Date, the
transactions contemplated hereunder and thereunder, and the making of the
initial Advance hereunder, including, but not limited to, the fees and
disbursements of counsel for the Administrative Agent;
(b) All reasonable costs and out-of-pocket expenses of the
Administrative Agent in connection with the preparation, negotiation of any
waiver, amendment, or consent by the Banks relating to this Agreement or
the other Loan Documents whether or not executed, including, but not
limited to, the fees and disbursements of counsel for the Administrative
Agent; and
(c) All reasonable costs and out-of-pocket costs and expenses of
collection if default is made in the payment of the Notes, which in each case
shall include fees and out-of-pocket expenses of counsel for the
Administrative Agent and the Banks, and the fees and out-of-pocket expenses
of counsel and of any experts, agents, or consultants of the Administrative
Agent and the Banks.
Section 10.3Waivers. The rights and remedies of the Administrative
Agent and the Banks under this Agreement and the other Loan Documents
shall be cumulative and not exclusive of any rights or remedies which
they would otherwise have. No failure or delay by the Administrative
Agent, the Majority Banks, or the Banks in exercising any right shall
operate as a waiver of such right. The Administrative Agent and the
Banks expressly reserve the right to require strict compliance with
the terms of this Agreement in connection with any funding of a
request for an Advance. In the event the Banks decide to fund a request
for an Advance at a time when the Borrower is not in strict compliance
with the terms of this Agreement, such decision by the Banks shall
not be deemed to constitute an undertaking by the Banks to fund any
further requests for Advances or preclude the Banks from exercising any
rights available to the Banks under the Loan Documents or at
law or equity. Any waiver or indulgence granted by the Banks or
by the Majority Banks shall not constitute a modification of this
Agreement, except to the extent expressly provided in such waiver or
indulgence, or constitute a course of dealing by the Banks at variance
with the terms of the Agreement such as to require further notice by
the Banks of the Banks' intent to require strict adherence to the terms
of the Agreement in the future.
Section 10.4Set-Off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such
rights, after the Maturity Date (whether by acceleration or otherwise),
the Banks and any subsequent holder or holders of the Notes are
hereby authorized by the Borrower at any time or from time to time,
without notice to the Borrower or to any other Person, any such notice
being hereby expressly waived, toset-off and to appropriate and
apply any and all deposits (general or special, time or demand,
including, but not limited to, Indebtedness evidenced by certificates
of deposit, in each case whether matured or unmatured) and any
other Indebtedness at any time held or owing by the Banks or such
holder to or for the credit or the account of the Borrower, against
and on account of the obligations and liabilities of the Borrower, to the
Banks or such holder under this Agreement, the Notes, and any other Loan
Document, including, but not limited to, all claims of any nature or
description arising out of or connected with this Agreement, the Notes, or
any other Loan Document, irrespective of whether or not (a) the
Banks or the holder of the Notes shall have made any demand
hereunder or (b) the Banks shall have declared the principal of
and interest on the Loans and Notes and other amounts due hereunder
to be due and payable as permitted by Section 8.2 hereof and although
said obligations and liabilities, or any of them, shall be contingent or
unmatured. Any sums obtained by any Bank or by any subsequent holder of
the Notes shall be subject to the application of payments provisions of
Article 2 hereof. Upon direction by the Administrative Agent, with the
consent of the Majority Banks, after the Maturity Date (whether by
reason of acceleration or otherwise) each Bank holding deposits
of the Borrower shall exercise its set-off rights as so directed.
Section 10.5Assignment.
(a) The Borrower may not assign or transfer any of its rights or
obligations hereunder or under the Notes without the prior written consent
of each Bank. Except as provided in Section 10.5(b) hereof, no Bank may
assign or transfer any of its rights or obligations hereunder or under
the Notes without the prior written consent of the Borrower, the
Administrative Agent and the other Banks.
(b) Each of the Banks may at any time (i) sell assignments of
up to one hundred percent (100%) of its interest hereunder to only (A) one
or more affiliates of suchBank, or (B) any Federal Reserve Bank as
collateral security prsuant to Regulation A of the Board of Governors of
the Federal Reserve System and any Operating Circular issued by such
Federal Reserve Bank (no such assignment shall relieve such
Bank from its obligations hereunder), and (ii) enter into participations
with respect to its interest hereunder and under the Loan Documents with
one or more other banks or other Persons; provided, that the aggregate
amount of all participations of such Bank hereunder shall be for not
more than $25,000,000 and shall be subject to the following additional
terms and conditions:
(A) Any Person purchasing a participation of the Loans from
any Bank shall be required to represent and warrant that its
purchase shall not constitute a "prohibited transaction"
(as defined in Section 4.1(n) hereof).
(B) No participation agreement shall confer any rights under this
Agreement or any other Loan Document to any purchaser thereof, or
relieve any Bank from any of its obligations under this Agreement, and
all actions hereunder shall be conducted as if no such participation
had been granted; provided, however, that any participation agreement
may confer on the participant the right to approve or disapprove changes
in the interest rate and principal amount, fees and the Maturity Date
for the Loans.
(C) Each Bank agrees to provide the Administrative Agent and the
Borrower with prompt written notice of any issuance of participations of
its interests hereunder.
(D) No participation hereunder or under the Notes shall be
effected that would result in any interest requiring registration
under the Securities Act of 1933, as amended, or qualification
under any state
securities law.
(E) No such participation may be made to any bank or other
financial institution (x) with respect to which a receiver or
conservator (including, without limitation, the Federal Deposit
Insurance Corporation, the Resolution Trust Company or the Office
of Thrift Supervision) has been appointed or (y) that has less than
$10 billion in assets.
(F) If applicable, each Bank shall, and shall cause each of its
assignees to provide to the Administrative Agent on or prior to the
Agreement Date or effective date of any assignment, as the case may be,
an appropriate Internal Revenue Service form as required by Applicable
Law supporting such Bank's position that no withholding by the Borrower
or the Administrative Agent for U.S. income tax payable by the Bank in
respect of amounts received by it hereunder is required. For purposes
of this Agreement, an appropriate Internal Revenue Service form shall
mean Form 1001 (Ownership Exemption or Reduced Rate Certificate of
the U.S. Department of Treasury), or Form 4224 (Exemption from
Withholding of Tax on Income Effectively Connected with the Conduct
of a Trade or Business in the United States), or any successor
or related forms adopted by the relevant U.S. taxing authorities.
(c) Except specifically set forth in Section 11.5(b) hereof,
nothing in this Agreement or the Notes, expressed or implied, is intended
to or shall confer on any Person other than the respective parties
hereto and thereto and their successors and assignees permitted hereunder
and thereunder any benefit or any legal or equitable right, remedy
or other claim under thisAgreement or the Notes.
Section 10.6Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original,
but all such separate counterparts shall together constitute but one and
the same instrument.
Section 10.7Governing Law. This Agreement and the Notes shall be
construed in accordance with and governed by the internal laws of the
State of Georgia.
Section 10.8Severability. Any provision of this Agreement which is
prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 10.9Headings. Headings used in this Agreement are for
convenience only and shall not be used in connection with the
interpretation of any provision hereof.
Section 10.10Interest. In no event shall the amount of interest due
or payable hereunder or under the Notes exceed the maximum rate of interest
allowed by Applicable Law, and in the event any such payment is inadvertently
made by the Borrower or is inadvertently received by any Bank, then such
excess sum shall be credited as a payment of principal, unless the Borrower
shall notify such Bank in writing that it elects to have such excess sum
returned forthwith. It is the express intent hereof that the Borrower not
pay and the Banks not receive, directly or indirectly in any manner
whatsoever, interest in excess of that which may legally be paid by the
Borrower under Applicable Law.
Section 10.11Entire Agreement. Except as otherwise expressly provided
herein, this Agreement the Notes, and the Loan Documents to which the
Borrower is a party embody the entire Agreement and understanding among the
parties hereto and thereto and supersede all prior agreements,
understandings, and conversations relating to the subject matter hereof
and thereof.
Section 10.12Amendment and Waiver. Neither this Agreement nor any term
hereof may be amended orally, nor may any provision hereof be waived orally
but only by an instrument in writing signed by the Majority Banks and, in the
case of an amendment, also by the Borrower, except that in the event of
(a) any increase in the amount of such Bank's Commitment, (b) any decrease
(other than pro rata) in the amount of the Commitment, (c) any change in the
timing of, or reduction of the amount of, payments of principal, interest,
and fees due hereunder, (d) any release or impairment of any collateral or
any guaranty issued in favor of the Administrative Agent and the Banks with
respect to the Agreement and the Loans, (e) any waiver of any Event of
Default due to the failure by the Borrower to pay any sum due hereunder, or
(f) any amendment of this Section 10.12 or of the definition of Majority
Banks, any amendment or waiver may be made only by an instrument in
writing signed by each of the Banks and, in the case of an amendment,
also by the Borrower.
Section 10.13Other Relationships. No relationship created hereunder or
under any other Loan Document shall in any way affect the ability of the
Administrative Agent and each Bank to enter into or maintain business
relationships with the Borrower, or any of its Affiliates, beyond the
relationships specifically contemplated by this Agreement and the other
Loan Documents.
Section 10.14Confidentiality. The parties hereto shall preserve in a
confidential manner all information received from any other party pursuant
to the Loan Documents and the transactions contemplated thereunder, and
shall not disclose such information except to those Persons with which a
confidential relationship is maintained (including designated agents, legal
counsel, accountants and regulators), or where required by law.
ARTICLE 11 - ARBITRATION.
Section 11.1Mandatory Arbitration. Any controversy or claim between or
among the parties hereto, including, but not limited to, those arising out
of or relating to this Agreement, any Loan Document or any related agreements
or instruments, including any claim based on or arising from an alleged
tort, shall be determined by binding arbitration in accordance with the
Federal Arbitration Act (or if not applicable, the applicable state law), the
Rules of Practice and Procedure for the Arbitration of Commercial Disputes of
Judicial Arbitration and Mediation Services, Inc. (J.A.M.S.), and the
"Special Rules" set forth below. In the event of any inconsistency, the
Special Rules shall control. Judgment upon any arbitration award may be
entered in any court having jurisdiction. Any party to this Agreement
may bring an action, including a summary or expedited proceeding, to
compel arbitration of any controversy or claim to which this Agreement
applies in any court having jurisdiction over such action.
(a) Special Rules. The arbitration shall be conducted in the
city of the Borrower's domicile on the Agreement Date and administered
by J.A.M.S. who will appoint an arbitrator; if J.A.M.S. is unable or
legally precluded from administering the arbitration, then the
American Arbitration Association will serve. All arbitration hearings
will be commenced within ninety (90) days of the demand for arbitration;
further, the arbitrator shall only, upon a showing of cause, be permitted
to extend the commencement of such hearing for up to an additional
sixty (60) days.
(b) Reservations of Rights. Nothing in this Agreement shall be
deemed to (i) limit the applicability of any otherwise applicable statutes of
limitation or repose and any waivers contained in this Agreement or any other
Loan Document; or (ii) be a waiver by the Administrative Agent, the Issuing
Bank, the Banks, or any of them of the protection afforded to it by 12 U.S.C.
Sec. 91 or any substantially equivalent state law; or (iii) limit the right
of the Administrative Agent, the Issuing Bank and the Banks or the Borrower
(A) to exercise self help remedies such as (but not limited to) setoff, or
(B) to foreclose against any real or personal property collateral, or (C)
to obtain from a court provisional or ancillary remedies such as (but not
limited to) injunctive relief or the appointment of a receiver. The
Administrative Agent on behalf of itself, the Issuing Bank and the Banks may
exercise such self help rights, foreclose upon such property, or obtain such
provisional or ancillary remedies before, during or after the pendency of any
arbitration proceeding brought pursuant to this Agreement. At the
Administrative Agent's option, foreclosure under a deed to secure debt or
mortgage may be accomplished by any of the following: the exercise of a
power of sale under the deed to secure debt or mortgage, or by judicial sale
under the deed to secure debt or mortgage, or by judicial foreclosure.
Neither the exercise of self help remedies nor the institution or
maintenance of an action for foreclosure or provisional or ancillary remedies
shall constitute a waiver of the right of any party, including the claimant
in any such action, to arbitrate the merits of the controversy or claim
occasioning resort to such remedies.
No provision in the Loan Documents regarding submission to jurisdiction
and/or venue in any court is intended or shall be construed to be in
derogation of the provisions in any Loan Document for arbitration of any
controversy or claim.
[THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused it to be executed under seal by their duly authorized officers, all
as of the day and year first above written.
BORROWER: COUSINS PROPERTIES INCORPORATED, a
Georgia corporation
By: /s/ Peter A. Tartikoff
Title: Senior Vice President
Attest: /s/ Jack A. LaHue
Title: Assistant Secretary
ADMINISTRATIVE
AGENT: NATIONSBANK OF GEORGIA, N.A.
By: /s/ Gregory J Wolkom
Its: Senior Vice President
BANKS: NATIONSBANK OF GEORGIA, N.A.
By: /s/ Gregory J. Wolkom
Its: Senior Vice President
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ Steven B. Wood
Its: Vice President
ISSUING BANK: NATIONSBANK OF GEORGIA, N.A.
By: /s/ Gregory J. Wolkom
Its: Senior Vice President
