SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
----------
FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
United Dominion Realty Trust, Inc.
(Exact name of registrant as specified in its charter)
Virginia 54-085752
(State of incorporation or organization) (IRS employer
identification no.)
10 South Sixth Street, Suite 203, Richmond Virginia 23219-3802
(Address of principal executive offices) (Zip code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Common Stock, $1 par value New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of class)
(Title of class)
Item 2. Exhibits.
The following additional exhibit is filed herewith and with
the copy hereof filed with the New York Stock Exchange:
6(c)(6) Credit Agreement dated as of December 15, 1994,
between the Trust and First Union National Bank of
Virginia
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this amendment to be signed
on its behalf by the undersigned, thereunto duly authorized.
UNITED DOMINION REALTY TRUST, INC.
(Registrant)
By s/James Dolphin
James Dolphin
Senior Vice President
Dated: March 23, 1994
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Exhibit 6(c)(6)
[CONFORMED COPY]
$25,000,000
CREDIT AGREEMENT
dated as of December 15, 1994
between
UNITED DOMINION REALTY TRUST, INC.,
and
FIRST UNION NATIONAL BANK OF VIRGINIA
TABLE OF CONTENTS*
Page
ARTICLE I
DEFINITIONS
Section 1.1. Definitions . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Accounting Terms and Determinations . . . . . . . 12
ARTICLE II
THE CREDITS
Section 2.1. Commitment to Make Loans . . . . . . . . . . . . . 13
Section 2.2. Method of Borrowing . . . . . . . . . . . . . . . 13
Section 2.3. Notes . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.4. Maturity of Loans . . . . . . . . . . . . . . . . 14
Section 2.5. Interest Rates . . . . . . . . . . . . . . . . . . 14
Section 2.6. Commitment Fee . . . . . . . . . . . . . . . . . . 19
Section 2.7. Closing Fee . . . . . . . . . . . . . . . . . . . 19
Section 2.8. Mandatory Termination of the Commitment . . . . . 19
Section 2.9. Optional Prepayments . . . . . . . . . . . . . . . 19
Section 2.10. General Provisions as to Payments . . . . . . . . 19
Section 2.11. Funding Losses . . . . . . . . . . . . . . . . . . 20
Section 2.12. Computation of Interest and Commitment
Fee . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.13. Extensions of the Revolving Credit
Period . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE III
CONDITIONS TO LOANS
Section 3.1. All Loans . . . . . . . . . . . . . . . . . . . . 21
Section 3.2. First Loan . . . . . . . . . . . . . . . . . . . . 21
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1. Corporate Existence and Power . . . . . . . . . . 22
Section 4.2. Corporate and Governmental Authorization;
Contravention . . . . . . . . . . . . . . . . . 23
Section 4.3. Binding Effect . . . . . . . . . . . . . . . . . . 23
Section 4.4. Financial Information . . . . . . . . . . . . . . 23
Section 4.5. Litigation . . . . . . . . . . . . . . . . . . . . 24
Section 4.6. Marketable Title . . . . . . . . . . . . . . . . . 24
Section 4.7. Regulation U . . . . . . . . . . . . . . . . . . . 25
Section 4.8. Taxes . . . . . . . . . . . . . . . . . . . . . . 25
Section 4.9. Conflicting Agreements and Other Matters . . . . . 25
*The Table of Contents is not a part of the Credit Agreement.
-i-
Section 4.10. ERISA . . . . . . . . . . . . . . . . . . . . . . 26
Section 4.11. Governmental Consent . . . . . . . . . . . . . . . 26
Section 4.12. Disclosure . . . . . . . . . . . . . . . . . . . . 26
Section 4.13. Environmental Compliance . . . . . . . . . . . . . 26
Section 4.14. Mortgage Loans . . . . . . . . . . . . . . . . . . 27
Section 4.15. Compliance with Covenants . . . . . . . . . . . . 27
ARTICLE V
AFFIRMATIVE COVENANTS
Section 5.1. Information . . . . . . . . . . . . . . . . . . . 28
Section 5.2. Notice of Certain Events . . . . . . . . . . . . . 31
Section 5.3. Payment of Obligations . . . . . . . . . . . . . . 31
Section 5.4. Maintenance of Property; Insurance . . . . . . . . 32
Section 5.5. Conduct of Business and Maintenance of
Existence . . . . . . . . . . . . . . . . . . . 32
Section 5.6. Compliance with Laws/Qualification as
REIT . . . . . . . . . . . . . . . . . . . . . . 32
Section 5.7. Accounting; Inspection of Property, Books
and Records . . . . . . . . . . . . . . . . . . 32
Section 5.8. Environmental Matters . . . . . . . . . . . . . . 33
ARTICLE VI
NEGATIVE COVENANTS
Section 6.1. Minimum Consolidated Adjusted Tangible
Net Worth . . . . . . . . . . . . . . . . . . . 33
Section 6.2. Consolidated Senior Funded Debt . . . . . . . . . 33
Section 6.3. Consolidated Priority Claims . . . . . . . . . . . 33
Section 6.4. Funds From Operations . . . . . . . . . . . . . . 34
Section 6.5. Restriction on Liens . . . . . . . . . . . . . . . 34
Section 6.6. Consolidations, Mergers and Sales of
Assets . . . . . . . . . . . . . . . . . . . . . 35
Section 6.7. Transactions with Affiliates/
Shareholders . . . . . . . . . . . . . . . . . . 36
Section 6.8. Loans; Investments . . . . . . . . . . . . . . . . 37
Section 6.9. Restricted Payments . . . . . . . . . . . . . . . 37
Section 6.10. Transactions With Other Persons . . . . . . . . . 38
Section 6.11. Contracts . . . . . . . . . . . . . . . . . . . . 38
Section 6.12. Limitation on Certain Restrictions on
Restricted Subsidiaries . . . . . . . . . . . . 38
Section 6.13. Limitation on Certain Debt of Restricted
Subsidiaries . . . . . . . . . . . . . . . . . . 39
ARTICLE VII
DEFAULTS
Section 7.1. Events of Default . . . . . . . . . . . . . . . . 39
Section 7.2. Other Remedies . . . . . . . . . . . . . . . . . . 42
Section 7.3. Inspection of Properties . . . . . . . . . . . . . 43
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ARTICLE VIII
CHANGE IN CIRCUMSTANCES
Section 8.1. Basis for Determining Interest Rate
Inadequate or Unfair . . . . . . . . . . . . . . 43
Section 8.2. Illegality . . . . . . . . . . . . . . . . . . . . 43
Section 8.3. Increased Costs . . . . . . . . . . . . . . . . . 44
Section 8.4. Election to Terminate . . . . . . . . . . . . . . 46
ARTICLE IX
MISCELLANEOUS
Section 9.1. Notices . . . . . . . . . . . . . . . . . . . . . 46
Section 9.2. No Waivers . . . . . . . . . . . . . . . . . . . . 46
Section 9.3. Expenses . . . . . . . . . . . . . . . . . . . . . 46
Section 9.4. Indemnification . . . . . . . . . . . . . . . . . 47
Section 9.5. Right of Set-Off . . . . . . . . . . . . . . . . . 48
Section 9.6. Amendments and Waivers . . . . . . . . . . . . . . 49
Section 9.7. Successors and Assigns . . . . . . . . . . . . . . 49
Section 9.8. Virginia Law . . . . . . . . . . . . . . . . . . . 51
Section 9.9. Counterparts; Effectiveness . . . . . . . . . . . 51
Section 9.10. Waiver of Jury Trial; Submission to
Jurisdiction . . . . . . . . . . . . . . . . . . 51
Section 9.11. Entire Agreement . . . . . . . . . . . . . . . . . 51
Exhibit A - Form of Domestic Note
Exhibit B - Form of Euro-Dollar Note
Exhibit C - Form of Opinion of Counsel for the Borrower
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CREDIT AGREEMENT
This CREDIT AGREEMENT (this "Agreement") is dated as of
December 15, 1994 and is between UNITED DOMINION REALTY TRUST, INC., a
Virginia corporation (the "Borrower"), and FIRST UNION NATIONAL BANK OF
VIRGINIA, a national banking association ("the Bank").
The parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. The following terms, as
used herein, have the following meanings:
"Adjusted CD Rate" has the meaning set forth in Section
2.5(b).
"Adjusted London Interbank Offered Rate" has the meaning
set forth in Section 2.5(c).
"Affiliate" means (i) any Person that directly, or
indirectly through one or more intermediaries, controls the Borrower (a
"Controlling Person") or (ii) any Person (other than the Borrower and a
Restricted Subsidiary) which is controlled by or is under common control
with a Controlling Person. As used herein, the term "control" means
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract, or otherwise.
"Applicable CD Margin" has the meaning set forth in
Section 2.5(b).
"Applicable Federal Funds Margin" has the meaning set
forth in Section 2.5(e).
"Applicable Euro-Dollar Margin" has the meaning set forth
in Section 2.5(c).
"Applicable Prime Margin" has the meaning set forth in
Section 2.5(a).
"Assessment Rate" has the meaning set forth in Section
2.5(b).
"Attributable Debt" means, in connection with any
Sale-Leaseback Transaction occurring subsequent to the date of this
Agreement, the lesser of (i) the present value, discounted according to
GAAP at the debt rate implicit in the related lease, of the obligation
of the lessee for rental payments over the remaining term of such lease
(including any period for which such lease has been extended or may, at
the option of the lessor be extended) and (ii) the fair market value of
the assets subject to such Sale-Leaseback Transaction.
"Bank" means First Union National Bank of Virginia, a
national banking association, and its successors and assigns.
"Borrower" means United Dominion Realty Trust, Inc., a
Virginia corporation, and its successors.
"CD Base Rate" has the meaning set forth in Section 2.5(b).
"CD Loan" means a Loan to be made as a CD Loan pursuant to
the applicable Notice of Borrowing.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), as
amended by the Superfund Amendment and Reauthorization Act of 1986 and
as otherwise amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response
Compensation Liability Information Systems List.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commitment" means the agreement of the Bank to make Loans
to the Borrower in an aggregate principal amount not exceeding
$25,000,000 at any one time outstanding.
"Consolidated Adjusted Capitalization" means at any date
the sum of (i) Consolidated Funded Debt plus (ii) Consolidated Adjusted
Tangible Net Worth.
"Consolidated Adjusted Tangible Net Worth" means at any
date (i) the sum of (A) the consolidated shareholders' equity of the
Borrower and its Restricted Subsidiaries plus (B) accumulated
depreciation of real estate owned to the extent reflected in the then
book value of the consolidated assets of the Borrower and its Restricted
Subsidiaries, minus, without duplication, (ii) the sum of (A) the
consolidated Intangible Assets of the Borrower and its Restricted
Subsidiaries plus (B) all Restricted Investments (valued at the then
book value thereof) plus (C) Minority Interests in Restricted
Subsidiaries.
"Consolidated Attributable Debt" means at any date the
Attributable Debt of the Borrower and its Restricted Subsidiaries,
determined on a consolidated basis as of such date.
"Consolidated Cash Flow" means for any period (i) the
consolidated net income (or net loss) of the Borrower and its Restricted
Subsidiaries for such period before gains on sales of investments and
extraordinary items plus (ii) the aggregate amount deducted in
determining such net income (or net loss) for such period in respect of
depreciation of real estate owned, in each case determined after
excluding (A) amounts accrued prior to the date a Person became a
Restricted Subsidiary, (B) amounts attributable to Minority Interests in
Restricted Subsidiaries and (C) amounts attributable to Subsidiaries and
Affiliates of the Borrower or any Restricted Subsidiary which for any
reason are unavailable for payment of distributions to the Borrower or a
Restricted Subsidiary.
"Consolidated Funded Debt" means at any date the Funded
Debt of the Borrower and its Restricted Subsidiaries, determined on a
consolidated basis as of such date.
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"Consolidated Funds from Operations" means for any period
the sum of (i) Consolidated Cash Flow plus (ii) Consolidated Interest
Expense.
"Consolidated Interest Expense" means for any period the
total consolidated interest expense (including, without limitation,
the portion of any obligation under capital leases allocable to interest
expense in accordance with GAAP) of the Borrower and its Restricted
Subsidiaries for such period (calculated without regard to any
limitation on the payment thereof).
"Consolidated Mortgage Debt" means at any date the
Mortgage Debt of the Borrower and its Restricted Subsidiaries,
determined on a consolidated basis as of such date.
"Consolidated Priority Claims" means at any date the sum
(without duplication) of (i) Consolidated Mortgage Debt plus (ii)
Consolidated Attributable Debt plus (iii) Consolidated Restricted
Subsidiary Debt plus (iv) all preferred stock of Restricted Subsidiaries
not owned by the Borrower and/or one or more Wholly-Owned Restricted
Subsidiaries, valued at the higher of the voluntary or involuntary
liquidation preference thereof.
"Consolidated Restricted Subsidiary Debt" means at any
date all Debt of Restricted Subsidiaries (excluding Debt owed to the
Borrower), determined on a consolidated basis as of such date.
"Consolidated Senior Funded Debt" means Consolidated
Funded Debt (determined without including Subordinated Funded Debt).
"Controlled Group" means all members of a controlled group
of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower,
are treated as a single employer under Section 414(b) or 414(c) of the
Code.
"Debt" of any Person means at any date, without
duplication, (i) all obligations of such Person for borrowed money, (ii)
all obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments, (iii) all obligations of such Person to pay
the deferred purchase price of property or services (other than trade
accounts payable arising in the ordinary course of business), (iv) all
obligations of such Person as lessee under capital leases, (v) all
obligations of such Person to purchase securities or other property
which arise out of or in connection with the sale of the same or
substantially similar securities or property, (vi) all non-contingent
obligations of such Person to reimburse any bank or other person in
respect of amounts paid under a letter of credit or similar instrument,
(vii) all obligations of others secured by a Lien on any asset of such
Person, whether or not such obligation is assumed by such Person, (viii)
all obligations of others Guaranteed by such Person and (ix) all
obligations which in accordance with GAAP would be shown as liabilities
on a balance sheet of such Person.
"Default" means any condition or event which constitutes
an Event of Default under this Agreement or which with the giving of
notice or lapse of time or both would, unless cured or waived, become an
Event of Default.
-3-
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in Richmond, Virginia are
authorized by law to close.
"Domestic Lending Office" means the Bank's office located
at its address set forth on the signature pages hereof (or identified on
the signature pages hereof as its Domestic Lending Office) or such other
office as the Bank may hereafter designate as its Domestic Lending
Office by notice to the Borrower; provided that the Bank may from time
to time by notice to the Borrower designate separate Domestic Lending
Offices for its Prime Loans, on the one hand, and its CD Loans, on the
other hand, in which case all references herein to the Domestic Lending
Office of the Bank shall be deemed to refer to either or both of such
offices, as the context may require.
"Domestic Loans" means CD Loans, Prime Loans or Federal
Funds Loans or all such loans.
"Domestic Note" means a promissory note of the Borrower,
substantially in the form of Exhibit A hereto, evidencing the obligation
of the Borrower to repay the Domestic Loans.
"Domestic Reserve Percentage" has the meaning set forth in
Section 2.5(b).
"Effective Date" means the date on which the Agreement
becomes effective in accordance with Section 9.9.
"Environmental Requirement" means all federal, state and
local environmental laws (including but not limited to CERCLA), rules,
regulations and orders regulating, relating to or imposing liability or
standards of conduct concerning any Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act
of 1974, as amended.
"Euro-Dollar Business Day" means any Domestic Business Day
on which commercial banks are open for international business (including
dealings in dollar deposits) in London.
"Euro-Dollar Lending Office" means the Bank's office,
branch or affiliate located at its address set forth on the signature
pages hereof (or identified on the signature pages hereof as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of
the Bank as it may hereafter designate as its Euro-Dollar Lending
Office by notice to the Borrower.
"Euro-Dollar Loan" means a Loan to be made as a Euro-Dollar Loan
pursuant to the applicable Notice of Borrowing.
"Euro-Dollar Note" means a promissory note of the
Borrower, substantially in the form of Exhibit B hereto, evidencing
the obligation of the Borrower to repay the Euro-Dollar Loans.
-4-
"Event of Default" has the meaning set forth in Section 7.1.
"Extension Date" means June 30, 1995 and each anniversary
of June 30, 1995.
"Federal Funds Loan" means a Loan to be made as a Federal
Funds Loan pursuant to the applicable Notice of Borrowing.
"Federal Funds Rate" has the meaning set forth in Section
2.5(e).
"Fiscal Quarter" means a period of three months consisting
of (i) January, February and March, (ii) April, May and June, (iii)
July, August and September and (iv) October, November and December.
"Fixed CD Rate" has the meaning set forth in Section
2.5(b).
"Fixed Rate Loans" means CD Loans or Euro-Dollar Loans or
both.
"Funded Debt" means at any date, with respect to any
Person, all Debt of such Person which is not a current liability under
GAAP as of such date. For purposes of complying with the covenants
contained in this Agreement, notes payable, including lines of credit
with banks or other financial institutions, shall be considered Funded
Debt to the extent that funds are drawn, even if the terms are for one
year or less.
"GAAP" means generally accepted accounting principles in
the United States.
"Guarantee" by any Person means any obligation, contingent
or otherwise, of such Person directly or indirectly guaranteeing any
Debt or other obligation of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or
other obligation (whether arising by virtue of partnership arrangements,
by agreement to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement conditions
or otherwise) or (ii) entered into for the purpose of assuring in any
other manner the obligee of such Debt or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in
whole or in part); provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding
meaning.
"Hazardous Material" means (i) "hazardous wastes," as
defined by the Resource Conservation and Recovery Act of 1976, as
amended from time to time, (ii) "hazardous substances," as defined by
CERCLA, (iii) "toxic substances," as defined by the Toxic Substances
Control Act, as amended from time to time, (iv) "hazardous materials,"
as defined by the Hazardous Materials Transportation Act, as amended
from time to time, (v) asbestos, oil or other petroleum products,
radioactive materials, urea formaldehyde foam insulation, radon gas and
transformers or other equipment that contain dielectric fluid containing
polychlorinated biphenyls and (vi) any substance whose presence is
detrimental or hazardous to health or the environment.
-5-
"Intangible Assets" of any Person means at any date the
amount of (i) all write-ups (other than write-ups resulting from
write-ups of assets of a going concern business made within twelve
months after the acquisition of such business) subsequent to June 30,
1994 in the book value of any asset owned by such Person and (ii) all
unamortized debt discount and expense, unamortized deferred charges,
capitalized start-up costs, goodwill, patents, licenses, trademarks,
trade names, copyrights, organization or developmental expenses,
covenants not to compete and other intangible items.
"Interest Period" means: (1) with respect to each
Euro-Dollar Loan, the period commencing on the date of such Loan and
ending one, two, three or six months thereafter, as the Borrower may
elect in the applicable Notice of Borrowing; provided that:
(i) any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day unless
such Euro-Dollar Business Day falls in another calendar month,
in which case such Interest Period shall end on the next
preceding Euro-Dollar Business Day;
(ii) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall, subject to
clause (iii) below, end on the last Euro-Dollar Business Day of
a calendar month; and
(iii) any Interest Period which begins before the
Maturity Date and would otherwise end after the Maturity Date
shall end on the Maturity Date.
(2) with respect to each CD Loan, the period commencing
on the date of such Loan and ending 30, 60 or 90 days thereafter, as the
Borrower may elect in the applicable Notice of Borrowing; provided that:
(i) any Interest Period (other than an Interest
Period determined pursuant to clause (ii) below) which would
otherwise end on a day which is not a Euro-Dollar Business Day
shall be extended to the next succeeding Euro-Dollar Business
Day; and
(ii) any Interest Period which begins before the
Maturity Date and would otherwise end after the Maturity Date
shall end on the Maturity Date.
(3) with respect to each Prime Loan, the period
commencing on the date of such Loan and ending on the last day of the
calendar month in which such Interest Period commences; provided that:
(i) any Interest Period (other than an Interest
Period determined pursuant to clause (ii) below) which would
otherwise end
-6-
on a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day; and
(ii) any Interest Period which begins before the
Maturity Date and would otherwise end after the Maturity Date
shall end on the Maturity Date.
(4) with respect to each Federal Funds Loan, the period
commencing on the date of such Loan and ending 1, 7, 14 or 30 days
thereafter as the Borrower may elect in the applicable Notice of
Borrowing; provided that:
(i) any Interest Period (other than an Interest
Period determined pursuant to clause (ii) below) which would
otherwise end on a day which is not a Euro-Dollar Business Day
shall be extended to the next succeeding Euro-Dollar Business
Day; and
(ii) any Interest Period which begins before the
Maturity Date and would otherwise end after the Maturity Date
shall end on the Maturity Date.
"Investment"means any investment in any Person, whether by
meas of share purchase, capital contribution, loan, time deposit or
otherwise.
"Lending Office" means the Bank's Domestic Lending Office
or its Euro-Dollar Lending Office, as the context may require.
"Leverage Ratio" means, at any date, the ratio of
Consolidated Senior Funded Debt to Consolidated Adjusted Capitalization,
each determined as of such date.
"Lien" means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest, or encumbrance of any kind in
respect of such asset, including any agreement to give any of the
foregoing. For the purposes of this Agreement, a Person shall be deemed
to own subject to a Lien any asset which it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to
such asset or with respect to which a financing statement under the
Uniform Commercial Code of any jurisdiction has been filed or an
agreement to give such a financing statement has been entered into.
"Loan" means a Domestic Loan or a Euro-Dollar Loan and
"Loans" means Domestic Loans or Euro-Dollar Loans or both.
"London Interbank Offered Rate" has the meaning set forth
in Section 2.5(c).
"Maturity Date" means the later of (i) June 30, 1995 and
(ii) the date to which the Revolving Credit Period has been extended
pursuant to Section 2.13.
"Minority Interests" means any shares of stock of any
class of a Restricted Subsidiary (other than directors' qualifying
shares as required by law) that are not owned by the Borrower and/or one
or more Wholly-Owned Restricted
-7-
Subsidiaries. Minority Interests constituting preferred stock shall be
valued at the voluntary or involuntary liquidation value of such
preferred stock, whichever is greater, and by valuing common stock at
the book value of the capitalized surplus applicable thereto adjusted if
necessary, to reflect any changes from the book value of such common
stock required by the foregoing method of valuing Minority Interests in
preferred stock.
"Mortgage Debt" of any Person means at any date the
aggregate principal amount of all Debt of such Person secured by a Lien
on any real estate owned or leased by it.
"Note" means the Domestic Note or the Euro-Dollar Note,
and "Notes" means both of them.
"Notice of Borrowing" has the meaning set forth in Section
2.2.
"Officer's Certificate" means a certificate signed in the
name of the Borrower by its President, one of its Vice Presidents or its
Treasurer.
"Other Agreements" means the separate Credit Agreements
dated as of December 15, 1994 between the Borrower and each of the Other
Banks, as they may be amended, modified or supplemented from time to
time.
"Other Banks" means Crestar Bank, NationsBank of Virginia,
N.A. and Signet Bank/Virginia and each other bank that hereafter becomes
a party to a credit agreement with the Borrower substantially in the
form of the Other Agreements as in effect on the date hereof.
"Permitted Liens" means the Liens referred to in clauses
(i) through (vi) of Section 6.6.
"Person" means an individual, a corporation, a limited
liability company, a partnership, an association, a trust or any other
entity or organization, including a government or political subdivision
or an agency or instrumentality thereof.
"PBGC" means the Pension Benefit Guaranty Corporation or
any entity succeeding to any or all of its functions under ERISA.
"Plan" means at any time an employee pension benefit plan
which is covered by Title IV of ERISA or is subject to the minimum
funding standards under Section 412 of the Code and is either (i)
maintained by a member of the Controlled Group for employees of a member
of the Controlled Group or (ii) maintained pursuant to a collective
bargaining agreement or any other arrangement under which more than one
employer makes contributions under which a member of the Controlled
Group is then making or accruing an obligation to make contributions or
has within the preceding five Plan years made contributions.
"Prime Loan" means a Loan to be made as a Prime Loan
pursuant to the applicable Notice of Borrowing or Article VIII.
-8-
"Prime Rate" means the rate of interest established from
time to time by the Bank as its Prime Rate. The Prime Rate is a
reference used by the Bank in determining interest rates on certain
loans and is not intended to be the lowest rate of interest charged on
any extension of credit to any debtor.
"Reference Date" means, with respect to any Interest
Period, (i) the Fiscal Quarter ending on the immediately preceding
September 30 if the first day of such Interest Period occurs prior to
March 31 of any calendar year, (ii) the Fiscal Quarter ending on the
immediately preceding December 31 if the first day of such Interest
Period occurs on any date from and including April 1 to and including
May 31 of any calendar year, (iii) the Fiscal Quarter ended on the
immediately preceding March 31 if the first day of such Interest Period
occurs on any date from and including June 1 to and including August 31
of any calendar year, (iv) the Fiscal Quarter ended on the immediately
preceding June 30 if the first day of such Interest Period occurs on any
date from and including September 1 to and including November 30 of any
calendar year and (v) the Fiscal Quarter ended on the immediately
preceding September 30 if the first day of such Interest Period occurs
on or after December 1 of any calendar year.
"Refunding Loan" means a Loan which, after application of
the proceeds thereof, results in no net increase in the outstanding
principal amount of the Loans.
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System, as in effect from time to time.
"Release" means any disposing of, discharging, injecting,
spilling, leaking, pumping, pouring, leaching, dumping, emitting,
escaping, emptying, seeping, placing or the like onto or upon any land,
water or air or otherwise entering the environment.
"Restricted Investment" means at any date the sum of (i)
all Investments by the Borrower or any Restricted Subsidiary in
Unrestricted Subsidiaries, (ii) all Investments by the Borrower or any
Restricted Subsidiary in Affiliates other than Unrestricted Subsidiaries
and (iii) all extensions of credit of the type described in the proviso
to Section 6.7 of this Agreement.
"Restricted Subsidiary" means any Subsidiary other than an
Unrestricted Subsidiary. A Restricted Subsidiary is "Wholly-Owned" if
all securities or other ownership interests of such Restricted
Subsidiary having an ordinary voting power to vote on election of the
board of directors or other persons performing similar functions are at
the time owned by the Borrower, by the Borrower and one or more
Wholly-Owned Restricted Subsidiaries or by one or more Wholly-Owned
Restricted Subsidiaries.
"Revolving Credit Period" means the period from and
including the Effective Date to and including the later of (i) June 30,
1995 and (ii) the date to which the Revolving Credit Period has been
extended pursuant to Section 2.13.
"Sale-Leaseback Transaction" means any arrangement (a
"Sale-Leaseback Transaction") with any Person (other than the Borrower
or a Wholly-Owned Restricted Subsidiary) providing for the leasing by
the Borrower or any Restricted Subsidiary (as
-9-
tenant) of real or personal property which has been or is to be sold or
transferred by the Borrower or such Restricted Subsidiary to such Person
or to any Person to whom funds have been or are to be advanced by such
Person on the security of such property or rental obligations of the
Borrower or such Restricted Subsidiary.
"Subordinated Funded Debt" means at any date all unsecured
Funded Debt of the Borrower (i) no part of the principal of which is
required to be paid (whether by way of mandatory sinking fund, mandatory
redemption or otherwise) prior to the payment in full of the Notes and
(ii) the payment of the principal of and interest on which, and any
other obligations of the Borrower to the holder of such Debt, is
subordinated to the prior payment in full of the principal of and
interest (including interest accruing after the date of the commencement
of any proceeding under any bankruptcy, insolvency, or similar law in
which the Borrower is a debtor) on the Notes.
"Subsidiary" means any Person of which securities or other
ownership interests having an ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by the Borrower.
"Unfunded Vested Liabilities" means, with respect to any
Plan at any time, the amount (if any) by which (i) the present value of
all vested nonforfeitable benefits under such Plan exceeds (ii) the fair
market value of all Plan assets allocable to such benefits, all
determined as of the then most recent valuation date for such Plan, but
only to the extent that such excess represents a potential liability of
a member of the Controlled Group to the PBGC or the Plan under Title IV
of ERISA.
"Unrestricted Subsidiary" means any Subsidiary which has
been designated by the Borrower as an Unrestricted Subsidiary, if (A) at
the time of such designation, the Subsidiary so designated neither (i)
owns directly or indirectly (a) any capital stock or other ownership
interests in the Borrower or any Restricted Subsidiary, (b) any Debt of
the Borrower or any Restricted Subsidiary or (c) any interest in,
including any Lien on, any asset of the Borrower or any Restricted
Subsidiary nor (ii) has outstanding any obligation directly or
indirectly guaranteed by the Borrower or any Restricted Subsidiary, and
(B) at the time of such designation and after giving effect thereto, the
Borrower would not be in violation of Article VI.
Section 1.2. Accounting Terms and Determinations.
Unless otherwise specified herein, all accounting terms used herein
shall be interpreted, all accounting determinations hereunder shall be
made and all financial statements required to be delivered hereunder
shall be prepared in accordance with GAAP as in effect from time to
time, applied on a basis consistent (except for changes concurred in by
the Borrower's independent public accountants) with the most recent
audited financial statements of the Borrower delivered to the Bank.
Wherever reference is made in any provision of this Agreement to a
consolidated balance sheet or other consolidated financial statement
with respect to the Borrower and its Subsidiaries, if at the time that
such provision is applicable the Borrower shall have no Subsidiaries
with which, according to GAAP, financial reporting on a consolidated
basis is required, such reference shall connote a balance sheet or other
financial statement, as the case may be, with respect to the Borrower
only.
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ARTICLE II
THE CREDITS
Section 2.1. Commitment to Make Loans. During the
Revolving Credit Period the Bank agrees, on the terms and conditions set
forth in this Agreement, to make loans to the Borrower from time to time
in amounts not to exceed in the aggregate at any one time outstanding
the amount of the Commitment. Each Loan under this Section 2.1 shall be
in an aggregate principal amount of $1,000,000 or any larger multiple of
$500,000 (except that any such Loan may be in the amount of the unused
Commitment). Within the foregoing limits, the Borrower may borrow under
this Section 2.1, repay, or to the extent permitted by Section 2.10,
prepay Loans and reborrow at any time during the Revolving Credit Period
under this Section 2.1.
Section 2.2. Method of Borrowing. (a) The Borrower
shall give the Bank notice (which may be oral if promptly confirmed in
writing) (a "Notice of Borrowing") by 10:30 A.M. (local time in
Richmond, Virginia) on the date of each Domestic Loan and by 11:00 A.M.
(local time in Richmond, Virginia) at least two Euro-Dollar Business
Days before each Euro-Dollar Loan, specifying:
(i) the date of such Loan, which shall be a
Domestic Business Day in the case of a Domestic Loan or a
Euro-Dollar Business Day in the case of a Euro-Dollar Loan;
(ii) the amount of such Loan;
(iii) whether the Loan is to be a CD Loan, Prime
Loan, Euro-Dollar Loan or a Federal Funds Loan; and
(iv) in the case of a Federal Funds Loan or a Fixed
Rate Loan, the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of Interest
Period.
(b) Not later than 11:00 A.M. (local time in Richmond,
Virginia) on the date of each Loan, the Bank shall (except as provided
in paragraph (c) of this Section and unless the Bank determines that any
applicable condition specified in this Agreement has not been satisfied)
make available the amount of such Loan, in Federal or other funds
immediately available in Richmond, Virginia, to the Borrower at the
Bank's address specified in or pursuant to Section 9.1.
(c) If the Bank makes a new Loan hereunder on a day on
which the Borrower is to repay all or any part of an outstanding Loan,
the Bank shall apply the proceeds of the new Loan to make such repayment
and only an amount equal to the difference (if any) between the amount
being borrowed and the amount being repaid shall be made available by
the Bank to the Borrower as provided in paragraph (b) of this Section,
or remitted by the Borrower to the Bank as provided in Section 2.11, as
the case may be.
Section 2.3. Notes.
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(a) The Domestic Loans shall be evidenced by a single
Domestic Note payable to the order of the Bank for the account of its
Domestic Lending Office in an amount equal to the aggregate unpaid
principal amount of the Domestic Loans.
(b) The Euro-Dollar Loans shall be evidenced by a single
Euro-Dollar Note payable to the order of the Bank for the account of its
Euro-Dollar Lending Office in an amount equal to the aggregate unpaid
principal amount of the Euro-Dollar Loans.
(c) The Bank shall record, and prior to any transfer of
the Notes shall endorse on the schedules forming a part thereof
appropriate notations to evidence, the date, amount and maturity of each
Loan and the date and amount of each payment of principal made by the
Borrower with respect thereto. The Bank is hereby irrevocably
authorized by the Borrower so to endorse the Notes and to attach to and
make a part of either Note a continuation of any such schedule as and
when required.
Section 2.4. Maturity of Loans. Each Loan shall
mature, and the principal amount thereof shall become due and payable,
on the last day of the Interest Period applicable to such Loan.
Section 2.5. Interest Rates.
(a) Prime-Based Rates. Each Prime Loan shall bear
interest on the outstanding principal amount thereof, for each day from
the date such Loan is made until it becomes due, at a rate per annum
equal to the sum of the Prime Rate for such day plus the Applicable
Prime Margin. Such interest shall be payable for each Interest Period
on the last day thereof. Any overdue principal of and, to the extent
permitted by law, overdue interest on any Prime Loan shall bear
interest, payable on demand, for each day until paid at a rate per annum
equal to the sum of 2% plus the otherwise applicable rate for such day.
The "Applicable Prime Margin" applicable to any Prime Loan
for any Interest Period means a rate per annum equal to (i) zero % if
the Leverage Ratio computed as of the applicable Reference Date for such
Interest Period is less than or equal to .50 to 1.0 and (ii) .25% if the
Leverage Ratio computed as of the applicable Reference Date for such
Interest Period is greater than .50 to 1.0.
(b) Fixed CD Rates. Each CD Loan shall bear interest on
the outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the applicable Fixed CD
Rate; provided that if any CD Loan or any portion thereof shall, as a
result of clause (2)(ii) of the definition of Interest Period, have an
Interest Period of less than 30 days, such portion shall bear interest
during such Interest Period at the rate applicable to Prime Loans during
such period. Such interest shall be payable for each Interest Period on
the last day thereof. Any overdue principal of and, to the extent
permitted by law, overdue interest on any CD Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to
the sum of 2% plus the higher of (i) the Fixed CD Rate for the preceding
Interest Period and (ii) the rate applicable to Prime Loans for such
day.
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The "Fixed CD Rate" applicable to any CD Loan for any
Interest Period means a rate per annum equal to the sum of the
Applicable CD Margin plus the applicable Adjusted CD Rate.
The "Applicable CD Margin" applicable to any CD Loan for
any Interest Period means a rate per annum equal to (i) .75% if the
Leverage Ratio computed as of the applicable Reference Date for such
Interest Period is less than or equal to .40 to 1.0, (ii) .875% if the
Leverage Ratio computed as of the applicable Reference Date for such
Interest Period is greater than .40 to 1.0 and less than or equal to .50
to 1.0 and (iii) 1.125% if the Leverage Ratio computed as of the
applicable Reference Date for such Interest Period is greater than .50
to 1.0.
The "Adjusted CD Rate" applicable to any Interest Period
means a rate per annum determined pursuant to the following formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
___________
* The amount in brackets being rounded upwards, if
necessary, to the next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest Period is
the rate of interest determined by the Bank to be the arithmetic average
(rounded upwards, if necessary, to the next higher 1/100 of 1%) of the
prevailing rates per annum bid at 10:00 A.M. (New York City time) (or as
soon thereafter as practicable) on the first day of such Interest Period
by two or more New York certificate of deposit dealers of recognized
standing for the purchase at face value from the Bank of its
certificates of deposit in an amount comparable to the unpaid principal
amount of the CD Loan to which such Interest Period applies and having a
maturity comparable to such Interest Period.
"Domestic Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or
any successor), for determining the maximum reserve requirement
(including without limitation any basic, supplemental or emergency
reserves) for a member bank of the Federal Reserve System in New York
City with deposits exceeding five billion dollars in respect of new
non-personal time deposits in dollars in New York City having a maturity
comparable to the related Interest Period and in an amount of $100,000
or more. The Fixed CD Rate shall be adjusted automatically on and as of
the effective date of any change in the Domestic Reserve Percentage.
"Assessment Rate" means for any Interest Period the net
annual assessment rate (rounded upwards, if necessary, to the next
higher 1/100 of 1%) actually incurred by the Bank to the Federal Deposit
Insurance Corporation (or any successor) for such Corporation's (or such
successor's) insuring time deposits at offices of the
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Bank in the United States during the most recent period for which such
rate has been determined prior to the commencement of such Interest
Period.
(c) Euro-Dollar Rates. Each Euro-Dollar Loan shall bear
interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the sum of the
Applicable Euro-Dollar Margin plus the applicable Adjusted London
Interbank Offered Rate. Such interest shall be payable for each
Interest Period on the last day thereof and, if such Interest Period is
longer than three months, at intervals of three months after the first
day thereof.
The "Applicable Euro-Dollar Margin" applicable to any
Euro-Dollar Loan for any Interest Period means a rate per annum equal to
(i) .625% if the Leverage Ratio computed as of the applicable Reference
Date for such Interest Period is less than or equal to .40 to 1.0, (ii)
.75% if the Leverage Ratio computed as of the applicable Reference Date
for such Interest Period is greater than .40 to 1.0 and less than or
equal to .50 to 1.0 and (iii) 1% if the Leverage Ratio computed as of
the applicable Reference Date for such Interest Period is greater than
.50 to 1.0.
The "Adjusted London Interbank Offered Rate" applicable to
any Interest Period means a rate per annum equal to the quotient
obtained (rounded upwards, if necessary, to the next higher 1/100 of 1%)
by dividing (i) the applicable London Interbank Offered Rate by (ii)
1.00 minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any
Interest Period means the rate per annum designated as the British
Banker's Association settlement rate as of 11:00 A.M. (London time) two
Euro-Dollar Business Days prior to the first day of such Interest Period
as the rate per annum for deposits in dollars in the London interbank
market for a period of time comparable to the Interest Period specified
by the Borrower in the related Notice of Borrowing that appears on the
display on page 3750 (under the caption "USD" of the Telerate Services,
Incorporated screen (the "Telerate Screen") (or on such other display as
may replace such page on the Telerate Screen) at such time); provided
that if no offered quotations appear on the Telerate Screen or if
quotations are not given on the Telerate Screen for periods of time
comparable to the Interest Period selected by the Borrower in the
related Notice of Borrowing, then the London Interbank Offered Rate
applicable to such Interest Period shall mean the average (rounded
upwards, if necessary, to the next higher 1/16 of 1%) of the respective
rates per annum at which deposits in dollars are offered to the Bank in
the London interbank market at approximately 11:00 A.M. (London time)
two Euro-Dollar Business Days before the first day of such Interest
Period in an amount approximately equal to the principal amount of the
Euro-Dollar Loan to which such Interest Period is to apply and for a
period of time comparable to such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or
any successor), for determining the maximum reserve requirement for a
member bank of the Federal Reserve System in New York, New York with
deposits exceeding five billion dollars in respect of "Eurocurrency
liabilities" (or in respect of any other category of liabilities which
consists of or includes deposits by reference to which the interest rate
on Euro-Dollar Loans is determined or any category of extensions of
credit or other assets which consists of
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or includes loans by a non-United States office of such bank to United
States residents). The Adjusted London Interbank Offered Rate shall
be adjusted automatically on and as of the effective date of any change
in the Euro-Dollar Reserve Percentage.
(d) Overdue Euro-Dollar Loans. Any overdue principal of
and, to the extent permitted by law, overdue interest on any Euro-Dollar
Loan shall bear interest, payable on demand, for each day from and
including the date payment thereof was due to but excluding the date of
actual payment, at a rate per annum equal to the sum of 2% plus the
Applicable Euro-Dollar Margin plus the quotient obtained (rounded
upward, if necessary, to the next higher 1/100 of 1%) by dividing (i)
the average (rounded upward, if necessary, to the next higher 1/16 of
1%) of the respective rates per annum at which one day (or, if such
amount remains unpaid for more than three Euro-Dollar Business Days,
then for such other period not longer than three months as the Bank may
elect) deposits in dollars in an amount approximately equal to such
overdue payment are offered to the Bank in the London interbank market
for the applicable period determined as provided above by (ii) 1.00
minus the Euro-Dollar Reserve Percentage (or, if the circumstances
described in clause (i) or (ii) of Section 8.1 shall exist, at a rate
per annum equal to the sum of 2% plus the rate applicable to Prime Loans
for such day).
(e) Federal Funds Rates. Each Federal Funds Loan shall
bear interest on the outstanding principal amount thereof, for each
Interest Period applicable thereto, at a rate per annum equal to the sum
of the applicable Federal Funds Rate for such Interest Period plus the
Applicable Federal Funds Margin. Such interest shall be payable for
each Interest Period on the last day thereof. Any overdue principal of
and, to the extent permitted by law, overdue interest on any Federal
Funds Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 2% plus the rate applicable
to Prime Loans for such day.
The "Federal Funds Rate" applicable to any Interest Period
means the average (rounded upwards, if necessary, to the next higher
1/100 of 1%) of the respective rates quoted at approximately 10:00 a.m.
(local time in Richmond, Virginia) on the first day of such Interest
Period by the Federal Funds brokers of recognized standing selected by
the Bank as the rate per annum applicable to Federal Funds transactions
for a period comparable to such Interest Period with members of the
Federal Reserve System arranged by Federal Funds brokers.
The "Applicable Federal Funds Margin" applicable to any
Federal Funds Loan for any Interest Period means a rate per annum equal
to (i) .625% if the Leverage Ratio computed as of the applicable
Reference Date for such Interest Period is less than or equal to .40 to
1.0, (ii) .75% if the Leverage Ratio computed as of the applicable
Reference Date for such Interest Period is greater than .40 to 1.0 and
less than or equal to .50 to 1.0 and (iii) 1% if the Leverage Ratio
computed as of the applicable Reference Date for such Interest Period is
greater than .50 to 1.0.
Section 2.6. Commitment Fee. During the Revolving
Credit Period, the Borrower shall pay to the Bank a commitment fee at
the rate of 1/4 of 1% per annum on the unused portion of the Commitment.
Such commitment fee shall accrue from and including the Effective Date
to but excluding the last day of the Revolving Credit Period and shall
be payable quarterly on March 31, June 30, September 30 and December 31
of each year, commencing December 31, 1994.
-15-
Section 2.7. Closing Fee. The Borrower shall pay the
Bank a closing fee on the Effective Date in an amount equal to 1/8 of 1%
of the Bank's Commitment.
Section 2.8. Mandatory Termination of the Commitment.
The Commitment shall terminate on the Maturity Date and any Loans then
outstanding (together with accrued interest thereon) shall be due and
payable on such date.
Section 2.9. Optional Prepayments.
(a) Prime and Federal Funds Loans. The Borrower may
prepay the Prime Loans and/or the Federal Funds Loans in whole at any
time or from time to time in part in amounts aggregating $1,000,000 or
any larger multiple of $500,000 by paying the principal amount to be
prepaid together with accrued interest thereon to the date of
prepayment.
(b) Fixed Rate Loans. Except as provided in Section
8.2, the Borrower may not prepay all or any portion of the principal
amount of any Fixed Rate Loan prior to the maturity thereof.
Section 2.10. General Provisions as to Payments. The
Borrower shall make each payment of principal of and interest on, the
Loans and of the commitment, activation and closing fees hereunder, not
later than 11:00 A.M. (Richmond, Virginia time) on the date when due, in
Federal or other funds immediately available in Richmond, Virginia, to
the Bank at its address referred to in Section 9.1. Whenever any
payment of principal of, or interest on, the Domestic Loans or of the
commitment, activation or closing fees shall be due on a day which is
not a Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. Whenever any
payment of principal of, or interest on, the Euro-Dollar Loans shall be
due on a day which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding Euro-Dollar
Business Day. If the date for any payment of principal of is extended
by operation of law or otherwise, interest thereon shall be payable for
such extended time.
Section 2.11. Funding Losses. If the Borrower makes
any payment of principal with respect to any Federal Funds Loan or Fixed
Rate Loan (pursuant to Article VII or VIII or otherwise) on any day
other than the last day of an Interest Period applicable thereto, or the
end of an applicable period fixed pursuant to Section 2.5(d), or if the
Borrower fails to borrow any Federal Funds Loan or Fixed Rate Loan after
notice has been given in accordance with Section 2.2, the Borrower shall
reimburse the Bank on demand for any resulting loss or expense incurred
by it, including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding loss
of margin for the period after any such payment; provided that the Bank
shall have delivered to the Borrower a certificate as to the amount of
such loss or expense, which certificate shall be conclusive in the
absence of manifest error. Calculations of all amounts payable to the
Bank under this Section 2.11 shall be made as though the Bank had
actually funded its Federal Funds Loans with federal funds transactions
arranged by Federal Funds brokers with members of the Federal Reserve
System or its Fixed Rate Loans through the purchase of a Euro-Dollar
deposit bearing interest at the London Interbank Offered Rate or through
the issuance of a certificate of a deposit bearing interest at the CD
-16-
Base Rate, as applicable, in an amount equal to the amount of the
Federal Funds Loan or Fixed Rate Loan, as applicable, so prepaid or not
borrowed, as the case may be, having a maturity comparable to the
Interest Period for such Loan and, in the case of a Euro-Dollar Loan,
through the transfer of such Euro-Dollar deposit from an off-shore
office of the Bank to a domestic office of the Bank in the United States
of America; provided, however, that the Bank may fund any Federal Funds
Loan or Fixed Rate Loan in any manner it sees fit, and the foregoing
assumption shall be utilized only for calculation for amounts payable
under this Section 2.11.
Section 2.12. Computation of Interest and Commitment
Fee. Interest on Domestic Loans based on the Prime Rate and the
commitment fee hereunder shall be computed on the basis of a year of 365
days (or 366 days in a leap year) and paid for the actual number of days
elapsed. Interest on Domestic Loans based on the Adjusted CD Rate and
the Federal Funds Rate and interest on Euro-Dollar Loans shall be
computed on the basis of a year of 360 days and paid for the actual
number of days elapsed, calculated as to each Interest Period or period
fixed pursuant to Section 2.5(d) from and including the first day
thereof to be but excluding the last day thereof.
Section 2.13. Extensions of the Revolving Credit
Period. If the Borrower shall request by notice to the Bank not less
than 60 days and not more than 90 days prior to any Extension Date, that
the Revolving Credit Period be extended until the second anniversary of
such Extension Date, then the Bank shall notify the Borrower not less
than 30 days prior to such Extension Date of the Bank's election so to
extend or not extend the Revolving Credit Period. If the Bank shall not
timely notify the Borrower of such election, it shall be deemed to have
elected not to extend the Revolving Credit Period.
ARTICLE III
CONDITIONS TO LOANS
The obligation of the Bank to make each Loan is subject to
the satisfaction of the following conditions:
Section 3.1. All Loans. In the case of each Loan:
(i) receipt by the Bank of a Notice of Borrowing
as required by Section 2.2;
(ii) the fact that, immediately after such Loan and
after giving effect thereto, no Default shall have occurred and
be continuing; and
(iii) the fact that the representations and warranties
of the Borrower contained in this Agreement (except, in the case
of a Refunding Loan, the representations and warranties set
forth in Section 4.4(c) and 4.5 as to any material adverse
change or litigation which has theretofore been disclosed in
writing by the Borrower to the Bank) shall be true on and as of
the date of such Loan.
-17-
Each Loan shall be deemed to be a representation and warranty by the
Borrower on the date of such Loan as to the facts specified in clauses
(ii) and (iii) of this Section.
Section 3.2. First Loan. In the case of the first
Loan:
(i) receipt by the Bank of a duly executed
Domestic Note and Euro-Dollar Note, each dated on or before the
date of such Loan and complying with the provisions of Section
2.3;
(ii) receipt by the Bank of an opinion of Hunton &
Williams, counsel for the Borrower, substantially in the form of
Exhibit C hereto and covering such additional matters relating
to the transactions contemplated hereby as the Bank may
reasonably request;
(iii) receipt by the Bank of a certificate signed by
the Senior Vice President of the Borrower to the effect set
forth in clauses (ii) and (iii) of Section 3.1;
(iv) receipt by the Borrower of amendments to the
Other Agreements existing on the date hereof, satisfactory in
form and substance to McGuire, Woods, Battle & Boothe, pursuant
to which such Other Agreements shall be so amended as to be
substantially similar in all material respects to this
Agreement; and
(v) receipt by the Bank of the documents and
instruments listed in the Closing Agenda supplied by the
Bank's counsel to the Borrower prior to the date of such
Borrowing and all other documents the Bank may reasonably
request relating to the existence of the Borrower and its
corporate authority for and the validity of this Agreement and
the Notes, and any other matters relevant hereto and thereto,
all in form and substance satisfactory to the Bank and its
counsel.
The documents and opinions referred to in this Section shall be
delivered to the Bank no later than the date of the first Loan. The
certificate and opinions referred to above shall be dated no more than
three Euro-Dollar Business Days before the date of the first Loan.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
Section 4.1. Corporate Existence and Power. Each of
the Borrower and its Restricted Subsidiaries is a corporation or a
limited liability company duly incorporated or organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or organization, and has all corporate powers and all
material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted. Each of the
Borrower and its Restricted Subsidiaries is duly qualified as a foreign
corporation, licensed and in good standing
-18-
in each jurisdiction where qualification or licensing is required by the
nature of its business or the character and location of its property,
business or customers and in which the failure to so qualify or be
licensed, as the case may be, in the aggregate, could have a material
adverse effect on the business, financial position, results of
operations, properties or prospects of the Borrower and its Restricted
Subsidiaries, taken as a whole. Neither the Borrower nor any of its
Restricted Subsidiaries is a "foreign person" within the meaning of
Section 1445 and 7701 of the Code.
Section 4.2. Corporate and Governmental
Authorization; Contravention. The execution, delivery and performance
by the Borrower of this Agreement and the Notes are within its corporate
power, have been duly authorized by all necessary corporate action,
require no action by or in respect of, or filing with, any govern-
mental body, agency or official and do not contravene, or constitute
(with or without the giving of notice or lapse of time or both) a
default under, any provision of applicable law or of the articles of
incorporation or organization or by-laws of the Borrower or any
Restricted Subsidiary or of any agreement, judgment, injunction, order,
decree or other instrument binding upon or affecting the Borrower or any
Restricted Subsidiary or result in the creation or imposition of any
Lien on any of the assets of the Borrower or any Restricted Subsidiary.
Section 4.3. Binding Effect. This Agreement
constitutes a valid and binding agreement of the Borrower and the Notes,
when executed and delivered in accordance with this Agreement, will
constitute valid and binding obligations of the Borrower, in each case
enforceable against the Borrower in accordance with its terms, except as
(i) the enforceability hereof and thereof may be limited by bankruptcy,
insolvency or similar laws affecting the enforceability of creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
Section 4.4. Financial Information.
(a) The balance sheets of the Borrower as of December 31,
1992 and December 31, 1993 and the related statements of operations,
cash flows and shareholders' equity, reported on by Ernst & Young LLP
and as set forth in the Borrower's Annual Report Form 10-K for the
fiscal years ended December 31, 1992 and 1993, as filed with the
Securities and Exchange Commission pursuant to the Securities Exchange
Act of 1934, a copy of which has been delivered to the Bank, fairly
present, in conformity with GAAP, the financial position of the Borrower
as of such dates and its results of operations and cash flows for such
fiscal years. As of the date of such financial statements, the Borrower
did not have any material contingent obligation, contingent liability or
liability for taxes, long-term lease or unusual forward or long-term
commitment, which is not reflected in any of such financial statements
or notes thereto.
(b) The unaudited balance sheet of the Borrower as of
September 30, 1994 and the related unaudited statements of operations,
cash flows and shareholders' equity for the nine months then ended,
copies of which have been delivered to the Bank, fairly present, in
conformity with GAAP applied on a basis consistent with the financial
statements referred to in subparagraph (a) of this Section, the
financial position of the Borrower as of such date and its results of
operations and cash flows for such nine-month period (subject to normal
year-end adjustments).
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(c) Since September 30, 1994 there has been no material
adverse change in the business, financial position, results of
operations or prospects of the Borrower and its Restricted Subsidiaries,
taken as a whole.
Section 4.5. Litigation. There is no action, suit or
proceeding pending against, or to the knowledge of the Borrower
threatened against or affecting, the Borrower or any Restricted
Subsidiary before any court or governmental body, agency or official in
which there is a reasonable possibility of a decision which could
materially adversely affect the business, financial position or results
of operations of the Borrower and its Restricted Subsidiaries, taken as
a whole, or which in any manner draws into question the validity of this
Agreement or the Notes, and there is no basis known to the Borrower for
any such action, suit or proceeding. There is no case, voluntary or
involuntary, or other proceeding pending against, or to the knowledge of
the Borrower threatened against or affecting, the Borrower or any
Restricted Subsidiary seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property.
Section 4.6. Marketable Title. The Borrower and its
Restricted Subsidiaries have good and marketable title to all their
respective properties and assets, including the properties and assets
reflected in the balance sheet of the Borrower as of December 31, 1993
referred to in Section 4.4 (other than properties and assets disposed of
in the ordinary course of business), subject to no Lien, except
Permitted Liens. All leases necessary in any material respect for the
conduct of the business of the Borrower and its Restricted Subsidiaries
are valid and subsisting and are in full force and effect.
Section 4.7. Regulation U. The Borrower does not own
or have any present intention of acquiring any "margin stock" as such
term is defined in Regulation U of the Board of Governors of the
Federal Reserve System. None of the Loan proceeds 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 the Loans a "purpose credit"
within the meaning of Regulation U or Regulation G, T, U or X of the
Board of Governors of the Federal Reserve System or to violate the
Securities Exchange Act of 1934, as amended, in each case as in effect
now or as the same may hereafter be in effect. Neither the Borrower nor
any agent acting on its behalf has taken or will knowingly take any
action which, at the time the action is taken, might cause this
Agreement or the Notes to violate Regulation U, Regulation T, G 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, as amended, in
each case as in effect now or as the same may hereafter be in effect.
Section 4.8. Taxes. The Borrower and its Restricted
Subsidiaries have filed all United States Federal income tax returns and
all other material tax returns which are required to be filed by them,
respectively, and have paid all taxes due pursuant to such returns or
pursuant to any assessment received by the Borrower or any Restricted
Subsidiary. The charges, accruals and reserves on the books of the
Borrower in respect of taxes or other governmental charges have been
established in accordance with GAAP.
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Section 4.9. Conflicting Agreements and Other
Matters. Neither the Borrower nor any Restricted Subsidiary is a party
to any contract or agreement or subject to any charter or other
corporate restriction which materially and adversely affects the
business, property or assets or the financial condition of the Borrower
and its Restricted Subsidiaries, taken as a whole. Neither the
execution nor delivery of this Agreement or the Notes, nor fulfillment
of nor compliance with the terms and provisions hereof or of the Notes
will conflict with, or result in a breach of the terms, conditions or
provisions of, or constitute a default under, or result in any violation
of, or result in the creation of any Lien upon any of the properties or
assets of the Borrower or any Restricted Subsidiary pursuant to the
articles of incorporation or organization or by-laws of the Borrower or
any Restricted Subsidiary, any award of any arbitrator or any other
agreement (including any agreement with stockholders), instrument,
order, judgment, decree, statute, law, rule or regulation to which the
Borrower or any Restricted Subsidiary is subject.
Section 4.10. ERISA. Each member of the Controlled
Group has fulfilled its obligations under the minimum funding standards
of ERISA and the Code with respect to each Plan and is in compliance in
all material respect with the presently applicable provisions of ERISA
and the Code, and has not incurred or does not reasonably expect to
incur any liability to the PBGC or a Plan under Title IV of ERISA. The
execution and delivery of this Agreement and the issuance of the Notes
will not involve any transaction which is subject to the prohibitions of
Section 406 of ERISA or in connection with which a tax would be imposed
pursuant to Section 4975 of the Code.
Section 4.11. Governmental Consent. Neither the
nature of the Borrower or any Restricted Subsidiary, nor any of the
business or properties of the Borrower or any Restricted Subsidiary, nor
any relationship between the Borrower or any Restricted Subsidiary and
any other Person, nor any circumstance in connection with the issuance
or delivery of this Agreement or the Notes is such as to require any
authorization, consent, approval, exemption or other action by or notice
to or filing with any court or administrative or governmental body
(other than routine filings after the date of closing with the
Securities and Exchange Commission and/or state Blue Sky authorities) in
connection with the execution and delivery of this Agreement, the
issuance and delivery of the Notes or fulfillment of or compliance with
the terms and provisions hereof or of the Notes.
Section 4.12. Disclosure. Neither this Agreement nor
any other document, certificate or statement furnished to the Bank by or
on behalf of the Borrower in connection herewith contains any untrue
statement of a material fact or omits to state a material fact necessary
in order to make the statements contained herein and therein not
misleading. There is no fact peculiar to the Borrower or any Restricted
Subsidiary which materially adversely affects or in the future may (so
far as the Borrower can now foresee) materially adversely affect the
business, property or assets, or the financial condition of the Borrower
and its Restricted Subsidiaries, taken as a whole, and which has not
been set forth in this Agreement or in the other documents, certificates
and statements furnished to the Bank by or on behalf of the Borrower
prior to the date hereof in connection with the transactions
contemplated hereby.
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Section 4.13. Environmental Compliance.
(a) To the best of the Borrower's knowledge, the
Borrower and its Restricted Subsidiaries have complied with all
Environmental Requirements. The Borrower has no knowledge that any
occupants of its properties or the properties of any Restricted
Subsidiary have violated any Environmental Requirements.
(b) The Borrower has no knowledge that Hazardous
Materials are present in or on its properties or the properties of any
Restricted Subsidiary or have been Released from any such properties,
other than as set forth in Schedule 4.13 hereto.
(c) Neither the Borrower nor any Restricted Subsidiary
has used, and to the best of the Borrower's knowledge, no occupant or
former owner of the properties of the Borrower and its Restricted
Subsidiaries has used the properties to generate, manufacture, produce,
store, handle, dispose of, transfer, process or transport Hazardous
Materials.
(d) Neither the Borrower nor any Restricted Subsidiary
has received any notice of nor has actual knowledge of (i) any violation
of any Environmental Requirements, (ii) any environmental claim or (iii)
any condition that gives rise to any environmental claim.
(e) Neither the Borrower nor any Restricted Subsidiary
is subject to or has been identified in any judicial or administrative
proceeding, suit or claim alleging the violation of or asserting
liability under any Environmental Requirements.
(f) To the best of the Borrower's knowledge, neither the
Borrower nor any Subsidiary has any contingent liabilities in connection
with any use, Release, removal or disposal of any Hazardous Materials.
(g) No Lien in connection with any Environmental
Requirements has been filed against any of the properties of the
Borrower or any Restricted Subsidiary.
Section 4.14. Mortgage Loans. Neither the Borrower
nor any Restricted Subsidiary has any mortgage loans secured by
properties which are delinquent in their payments or which are or
after proper notice would be in foreclosure.
Section 4.15. Compliance with Covenants. The Borrower
is, as of the date of this Agreement and as of the date of the first
Loan, in compliance with all affirmative and negative covenants of the
Borrower set forth in this Agreement, including, without limitation, the
financial covenants set forth in Sections 6.1 through 6.4, inclusive.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower agrees that so long as any amount payable
hereunder or under the Notes remain unpaid:
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Section 5.1. Information. The Borrower will deliver
or cause to be delivered to the Bank:
(i) as soon as available and in any event within
90 days after the end of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its
consolidated Subsidiaries and of the Borrower and its Restricted
Subsidiaries as of the end of such fiscal year and the related
consolidated statements of operations, cash flows and
shareholders' equity of the Borrower and its consolidated
Subsidiaries and of the Borrower and its Restricted Subsidiaries
for such fiscal year, setting forth in each case in comparative
form the figures for the previous fiscal year, all in reasonable
detail and satisfactory in scope to the Bank and, in the case of
the financial statements for the Borrower and its consolidated
Subsidiaries, accompanied by an opinion thereon by Ernst & Young
LLP or other nationally recognized independent public
accountants reasonably satisfactory to the Bank, which opinion
shall be in scope and substance satisfactory to the Bank, all
certified as complete and correct by the chief financial officer
or chief accounting officer of the Borrower;
(ii) as soon as available and in any event within
60 days after the end of each of the first three quarters of
each fiscal year of the Borrower, a consolidated balance sheet
of the Borrower and its consolidated Subsidiaries and of the
Borrower and its Restricted Subsidiaries and the related
consolidated statements of operations, cash flows and
shareholders' equity of the Borrower and its consolidated
Subsidiaries and of the Borrower and its Restricted Subsidiaries
for such quarter and for the portion of the Borrower's fiscal
year ended at the end of such quarter, setting forth in each
case in comparative form the figures for the corresponding
quarter and the corresponding portion of the Borrower's previous
fiscal year, all certified (subject to normal year-end audit
adjustments) as complete and correct by the chief financial
officer or chief accounting officer of the Borrower;
(iii) simultaneously with the delivery of each set
of financial statements referred to in clauses (i) and (ii)
above, an Officer's Certificate (A) setting forth in reasonable
detail the calculations required to establish whether the
Borrower was in compliance with the requirements of Sections 6.1
through 6.3, inclusive, (and, simultaneously with the delivery
of the financial statements referred to in clause (i) above,
an Officer's Certificate setting forth the calculations required
to establish whether the Borrower was in compliance with the
requirement of Section 6.4) on the date of such financial
statements, (B) stating whether there exists on the date of such
certificate any Default and, if any Default then exists, setting
forth the details thereof and the action which the Borrower is
taking or proposes to take with respect thereto, (C) stating
whether, since the date of the most recent previous delivery of
financial statements pursuant to clause (i) or (ii) of
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this Section, there has been any material adverse change in the
business, financial position, results of operations or prospects
of the Borrower and its Subsidiaries, taken as a whole, and, if
so, the nature of such material adverse change and (D) stating
that the representations and warranties of the Borrower
contained herein are true and correct on and as of the date of
such certificate;
(iv) simultaneously with the delivery of each set
of financial statements referred to in clause (i) above, a
statement of the firm of independent public accountants that
reported on such statements (A) stating that their audit
examination has included a review of this Agreement and the
Notes as they relate to financial or accounting matters, (B)
whether anything has come to their attention to cause them to
believe that there existed on the date of such statements any
Default and (C) confirming the mathematical accuracy of the
calculations set forth in the officer's certificate delivered
simultaneously therewith pursuant to clause (iii) above;
(v) as soon as reasonably practicable after
obtaining knowledge of the commencement of, or a material threat
of the commencement of, an action, suit or proceeding against
the Borrower or any Restricted Subsidiary which could materially
adversely affect the business, properties, financial position,
results of operations or prospects of the Borrower and its
Restricted Subsidiaries, taken as a whole, or which in any
manner questions the validity of this Agreement or the Notes
or any of the other transactions contemplated hereby or thereby,
the nature of such pending or threatened action, suit or
proceeding and such additional information as may be reason-
ably requested by the Bank;
(vi) promptly upon transmission thereof, copies of
all press releases and other statements made available generally
by the Borrower to the public concerning material developments
in the results of operations, financial condition, business or
prospects of the Borrower and its Restricted Subsidiaries;
(vii) promptly upon receipt thereof, copies of each
report submitted to the Borrower by independent public
accountants in connection with any annual, interim or special
audit made by them of the books of the Borrower including,
without limitation, each report submitted to the Borrower
concerning its accounting practices and systems and any final
comment letter submitted by such accountants to management in
connection with the annual audit of the Borrower;
(viii) if and when any member of the Controlled Group
(i) gives or is required to give notice to the PBGC of any
"reportable event" (as defined in Section 4043 of ERISA) with
respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that
the plan administrator of any Plan has given or is required to
give notice of any such reportable event, a copy of the notice
of such reportable event given or required to be
-24-
given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA, a copy of such
notice; or (iii) receives notice from the PBGC under Title IV of
ERISA of an intent to terminate or appoint a trustee to
administer any Plan, a copy of such notice;
(ix) from time to time such additional information
regarding the financial position, results of operations or
business of the Borrower and its Restricted Subsidiaries as the
Bank may reasonably request;
(x) promptly upon transmission thereof, copies of
all financial statements, proxy statements, notices and reports
as the Borrower shall send to its public stockholders and copies
of all registration statements and all reports which it files
with the Securities and Exchange Commission or any governmental
body or agency succeeding to the function of the Securities and
Exchange Commission; and
(xi) for any period for which financial statements
referred to in clauses (i) and (ii) above during which the
Borrower had one or more Unrestricted Subsidiaries and/or
Restricted Subsidiaries that are not Wholly-Owned Restricted
Subsidiaries, not later than the date such financial statements
are required to be delivered to the Bank, consolidating
financial statements for the Borrower and its consolidated
Subsidiaries and for the Borrower and its Restricted
Subsidiaries of the types referred to in, and for the periods
covered by, clauses (i) and (ii) above.
The Bank is authorized to submit a copy of any financial
statement delivered to it pursuant to this Section 5.1 to any regulatory
body having jurisdiction over the Bank.
Section 5.2. Notice of Certain Events. Forthwith
upon the occurrence of any Default, and not later than five days after
such fact becomes known to the Borrower, the chief financial officer of
the Borrower or the chief accounting officer of the Borrower will
deliver or cause to be delivered to the Bank notice of such Default
setting forth the details thereof, the period of existence thereof and
the action which the Borrower is taking or proposes to take with respect
thereto. Whether or not a notice to the Bank pursuant to the foregoing
sentence has been delivered, forthwith upon (i) the refusal of any Other
Bank to make a loan pursuant to any Other Agreement, or (ii) the
termination of the Commitment of any Other Bank, or (iii) the
acceleration of any indebtedness outstanding pursuant to any Other
Agreement, the Borrower will immediately deliver or cause to be
delivered to the Bank notice of such occurrence.
Section 5.3. Payment of Obligations. The Borrower
and its Restricted Subsidiaries will pay and discharge, as the same
shall become due and payable, (i) all their obligations and liabilities,
including all claims or demands of materialmen, mechanics, carriers,
warehousemen, landlords and other like persons which, in any such case,
if unpaid, might by law give rise to a Lien upon any of the
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property or assets of the Borrower or any Restricted Subsidiary, and
(ii) all lawful taxes, assessments and charges or levies made upon the
Borrower and its Restricted Subsidiaries or the property or assets of
the Borrower or any Restricted Subsidiary, by any governmental body,
agency or official, except obligations, liabilities, taxes, assessments,
charges and levies being diligently contested in good faith by appropri-
ate proceedings and reserved against in accordance with GAAP.
Section 5.4. Maintenance of Property; Insurance.
(a) The Borrower and its Restricted Subsidiaries will
keep all properties and assets useful and necessary in their business in
good working order and condition, subject to ordinary wear and tear, and
from time to time make or cause to be made all repairs, renewals,
replacements, extensions, additions and improvements to such properties
and assets as are necessary and proper.
(b) The Borrower and its Restricted Subsidiaries will
maintain with financially sound and reputable insurance companies,
insurance on all their properties in at least such amounts and against
at least such risks (and with such risk retentions) as are usually
insured against by companies of similar size engaged in the same or a
similar business and will furnish to the Bank upon request full
information as to the insurance carried.
Section 5.5. Conduct of Business and Maintenance of
Existence. The Borrower and its Restricted Subsidiaries will continue
to engage in business of the same general type as now conducted by them,
and will preserve, renew and keep in full force and effect their
corporate existence and all rights, privileges and franchises necessary
or desirable in the normal conduct of business; provided, that this
Section 5.5 shall not be construed to prohibit a merger which would not
violate Section 6.7.
Section 5.6. Compliance with Laws/Qualification as
REIT. The Borrower and its Restricted Subsidiaries will comply with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation, ERISA and the
rules and regulations thereunder and all Environmental Requirements)
except where the necessity of compliance therewith is contested in good
faith by appropriate proceedings. The Borrower will at all times cause
to be done those things which are necessary to maintain, preserve and
renew its qualification as a real estate investment trust under the Code
and any regulations thereunder.
Section 5.7. Accounting; Inspection of Property,
Books and Records. The Borrower and its Restricted Subsidiaries will
keep proper books of record and account in which full, true and correct
entries in conformity with GAAP shall be made of all dealings and
transactions in relation to the business and activities of the Borrower
and its Restricted Subsidiaries and will permit representatives of the
Bank to visit and inspect any of their properties, to examine and make
abstracts from any of their books and records and to discuss their
affairs, finances and accounts with their officers, employees and
independent public accountants, all at such reasonable times and as
often as may reasonably be desired. The Borrower will maintain its
fiscal reporting periods on the present basis.
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Section 5.8. Environmental Matters.
(a) The Borrower and its Restricted Subsidiaries will
comply, at their sole cost and expense, and will ensure compliance by
all occupants with every Environmental Requirement in respect of
properties owned or leased by the Borrower and its Restricted
Subsidiaries.
(b) The Borrower and its Restricted Subsidiaries will
keep their properties free and clear of any Liens imposed as a result of
the presence or the cost of removal of any Hazardous Material or in
connection with any other Environmental Requirement. Accordingly, to
the extent necessary to ensure compliance with the preceding sentence,
the Borrower and its Restricted Subsidiaries will promptly pay when due
any fine, penalty, judgment or assessment arising under any
Environmental Requirement against the Borrower, its Restricted
Subsidiaries or the Bank, except to the extent that any such fine,
penalty, judgment or assessment has been contested in good faith by
appropriate proceedings if the pendency of such proceedings is not
likely to interfere in any material respect with the operations of the
Borrower or its Restricted Subsidiaries and adequate reserves in the
reasonable judgment of the Bank have been set aside with respect thereto
to satisfy any adverse determination.
(c) The Borrower will indemnify the Bank for
environmental matters as set forth in Section 9.4.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower agrees that so long as any amount payable
hereunder or under the Notes remain unpaid:
Section 6.1. Minimum Consolidated Adjusted Tangible
Net Worth. Consolidated Adjusted Tangible Net Worth will not at any time
be less than the sum of (i) $400,000,000 plus (ii) 100% of the net
proceeds to the Borrower (after customary underwriting discounts and
commissions and reasonable offering expenses) from all sales of its
capital stock from and after June 30, 1994.
Section 6.2. Consolidated Senior Funded Debt.
Consolidated Senior Funded Debt will not at any time exceed 60% of
Consolidated Adjusted Capitalization.
Section 6.3. Consolidated Priority Claims.
Consolidated Priority Claims will not at any time exceed 35% of
Consolidated Adjusted Capitalization. Notwithstanding this restriction,
the Borrower and its Restricted Subsidiaries may incur Mortgage Debt,
provided that the Mortgage Debt otherwise prohibited by the preceding
sentence results from the acquisition of new property on which there is
either (i) existing mortgage debt which the Borrower or a Restricted
Subsidiary will assume or (ii) seller financing which the Borrower or a
Restricted Subsidiary will accept, either of which must be at rates
below market financing. In no event shall such permitted additional
Mortgage Debt result in Consolidated Priority Claims exceeding 40% of
Consolidated Adjusted Capitalization.
Section 6.4. Funds From Operations. The Borrower
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will not allow Consolidated Funds From Operations for any fiscal year to
be less than (i) 1.4 times the following year's projected payments of
principal and interest (excluding any balloon payments) on Consolidated
Senior Funded Debt and (ii) 1.2 times the following year's projected
payments of principal and interest (excluding balloon payments) on
Consolidated Funded Debt. For purposes of this Section 6.4, (x)
projected interest payments for any future period in respect of floating
rate Debt shall be determined by using the interest rate in effect with
respect to such Debt on the date of determination, (y) Funds From
Operations from newly acquired properties shall be included in an amount
equal to the lesser of (A) the following year's projected Funds From
Operations for such properties or, if available, (B) the current year's
actual Funds From Operations for such properties determined on an
annualized basis and (z) the calculation of coverage for any Funded Debt
involving accruing interest shall be based on the accrual rate, not the
pay rate.
Section 6.5. Restriction on Liens. Neither the
Borrower nor any Restricted Subsidiary will at any time create, assume,
incur or suffer to exist any Lien on any property or asset of any kind,
real or personal, tangible or intangible, now owned or hereafter
acquired by it or assign or subordinate any present or future right to
receive assets except:
(i) Liens securing Funded Debt the incurrence of
which would not violate Section 6.2, 6.3 or 6.4 or Liens
securing Debt of Restricted Subsidiaries not prohibited by
Section 6.13;
(ii) Liens securing taxes, assessments or
governmental charges or levies or the claims or demands of
materialmen, mechanics, carriers, warehousemen, landlords and
other like persons; provided (A) with respect to Liens securing
state and local taxes, such taxes are not yet payable, (B) with
respect to Liens securing claims or demands of materialmen,
mechanics, carriers, warehousemen, landlords and the like, such
Liens are unfiled and no other action has been taken to enforce
the same, or (C) with respect to taxes, assessments or
governmental charges or levies or claims or demands secured by
such Liens, payment is not at the time required by Section 5.3;
(iii) Liens not securing Debt which are incurred in
the ordinary course of business in connection with workmen's
compensation, unemployment insurance, social security and
other like laws;
(iv) any Lien arising pursuant to any order of
attachment, distraint or similar legal process arising in
connection with court proceedings so long as the execution or
other enforcement thereof is effectively stayed and the claims
secured thereby are being contested in good faith by appropriate
proceedings;
(v) zoning restrictions, easements, licenses,
reservations, covenants, conditions, waivers, restrictions on
the use of property or other minor encumbrances or
irregularities of title which do not materially impair the use
of any property in the operation or business of the Borrower or
such Restricted Subsidiary or the value of such property for the
purpose of such business; and
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(vi) Liens on property or assets of such Restricted
Subsidiary to secure obligations of such Restricted Subsidiary
solely to the Borrower or a Wholly-Owned Restricted Subsidiary.
Section 6.6. Consolidations, Mergers and Sales of
Assets.
(a) Neither the Borrower nor any Restricted Subsidiary
will sell, lease, transfer or otherwise dispose of all, or substantially
all, of its property or assets to any other person or consolidate with
or merge into any other corporation or permit any corporation to merge
into the Borrower or such Restricted Subsidiary unless the Borrower or
such Restricted Subsidiary is the surviving entity; provided, however,
that (i) no such consolidation, merger or sale of assets shall be
permitted if such transaction would cause the Bank to be in violation of
ERISA and (ii) a merger (other than a merger of a Restricted Subsidiary
into the Borrower) shall not be permitted if a Default or Event of
Default exists at the time of the proposed merger.
(b) Neither the Borrower nor any Restricted Subsidiary
will during any fiscal year sell, lease, transfer or otherwise dispose
of (except to the Borrower or a Wholly-Owned Restricted Subsidiary) any
of its property or assets which individually or cumulatively constitute
more than 15% of the consolidated assets of the Borrower and its
Restricted Subsidiaries at such time or assets which individually or
cumulatively had contributed more than 15% of the consolidated net
income of the Borrower and its Restricted Subsidiaries prior to
depreciation for any of the three preceding fiscal years.
(c) Neither the Borrower nor any Restricted Subsidiary
will engage in any business other than substantially the same line of
business as conducted by the Borrower on the date of this Agreement.
(d) The Borrower will not liquidate, wind-up or
dissolve, whether voluntarily or involuntarily (or suffer any such
liquidation or dissolution) or make any material change in its capital
structure or any of its business objectives, purposes and operations
which might adversely affect repayment of the Loan.
(e) The restrictions on leases set forth in the foregoing
subparagraphs of this Section 6.6 shall not apply to leases by the
Borrower or any Restricted Subsidiary of its property or assets to
individual tenants in the ordinary course of its business.
Section 6.7. Transactions with Affiliates/
Shareholders. Neither the Borrower nor any Restricted Subsidiary will
directly or indirectly enter into any transaction, including, without
limitation, the purchase, sale or exchange of property or the rendering
of any service to, any Affiliate or shareholder of the Borrower except
in the ordinary course of business pursuant to the reasonable
requirements of the business of the Borrower or such Restricted
Subsidiary and upon fair and reasonable terms no less favorable to the
Borrower or such Restricted Subsidiary than would be obtained in a
comparable arms-length transaction with a person not an Affiliate or
shareholder of the Borrower or such Restricted Subsidiary; provided,
that the foregoing restrictions shall not apply to extensions of credit
by the Borrower to its officers and directors in an aggregate amount not
exceeding $12,500,000 to enable such officers and directors to purchase
from the Borrower collectively not more than
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800,000 newly issued common shares of the Borrower if (i) all such loans
are secured by perfected first priority security interests in the
acquired shares, (ii) none of the proceeds of the Loan are used,
directly or indirectly, for the purpose of making or carrying such loans
and (iii) the Borrower is otherwise in compliance with Section 4.7 of
this Agreement.
Section 6.8. Loans; Investments.
(a) The Borrower will not make loans to, advances to, or
otherwise enter into contingent liabilities to or investments in the
stock or obligations of any Person (other than a Wholly-Owned Restricted
Subsidiary) where such loans or liabilities at any time exceed 5% of
the consolidated assets of the Borrower and its Restricted Subsidiaries
at such time.
(b) Neither the Borrower nor any Restricted Subsidiary
will invest in or acquire unimproved real property and/or purchase
mortgages where the aggregate cost to the Borrower and all Restricted
Subsidiaries of such property and/or mortgages is greater than 10% of
the consolidated assets of the Borrower and its Restricted Subsidiaries
at such time.
Section 6.9. Restricted Payments. Neither the
Borrower nor any Restricted Subsidiary will:
(i) declare or pay any dividends, either in cash
or property, on any shares of its capital stock of any class
(except dividends or other distributions payable solely in
shares of capital stock of the Borrower or a Restricted
Subsidiary and, in the case of a Restricted Subsidiary,
dividends or other distributions exclusively in respect of
capital stock owned by the Borrower or a Wholly-Owned Restricted
Subsidiary);
(ii) directly or indirectly purchase, redeem or
retire any shares of any class of capital stock of the Borrower
or shares of any class of capital stock of a Restricted
Subsidiary not owned by the Borrower or any warrants, rights or
options to purchase or acquire any such shares of capital stock;
or
(iii) directly or indirectly make any other payment
or distribution in respect of the capital stock of the Borrower
or the capital stock of a Restricted Subsidiary not owned by the
Borrower;
(such declarations or payments of dividends, purchases, redemptions or
retirements of capital stock and warrants, rights or options and all
such other payments and distributions being herein collectively called
"Restricted Payments"), if after giving effect thereto (i) an Event of
Default shall have occurred and be continuing, (ii) the Borrower would
not be permitted to incur at least $1.00 of additional Senior Funded
Debt and Mortgage Debt under the provisions of Sections 6.2 and 6.3 and
(iii) the aggregate amount of Restricted Payments made during the period
from and after July 1, 1991 to and including the date of the making of
the Restricted Payment in question (exclusive of the dividend of
$3,895,000 paid by the Borrower on July 31, 1991 in respect of the
quarter ended June 30, 1991) would exceed the sum of (A) $10,000,000
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plus (B) 100% of Consolidated Cash Flow for the period from and after
July 1, 1991 to and including the last day of the completed fiscal
quarter immediately preceding the date of such Restricted Payment,
computed on a cumulative basis for such entire period, (or if such
Consolidated Cash Flow is a deficit figure, then minus 100% of such
deficit) plus (C) the net cash proceeds received by the Borrower from
the issuance or sale on or after July 1, 1991 of any capital stock of
the Borrower.
The Borrower will not declare any dividend which
constitutes a Restricted Payment payable more than 60 days after the
date of declaration thereof.
For the purpose of this Section 6.9, the amount of any
Restricted Payment declared, paid or distributed in property shall be
deemed to be the greater of the book value or fair market value (as
determined in good faith by the Board of Directors (or its Executive
Committee) of the Borrower) of such property at the time of the making
of the Restricted Payment in question.
Notwithstanding the foregoing, the Borrower shall be
permitted to make any Restricted Payments necessary to maintain its
qualification as a real estate investment trust.
Section 6.10. Transactions With Other Persons. The
Borrower will not enter into any agreement with any Person whereby any
of them shall agree to any restriction on the Borrower's right with the
Bank's consent to amend or waive any of the provisions of this
Agreement.
Section 6.11. Contracts. Neither the Borrower nor any
Restricted Subsidiary will enter into contracts where payment or
performance is due regardless of whether or not the goods or services
are ever provided or with terms more onerous than those normally found
in business situations.
Section 6.12. Limitation on Certain Restrictions on
Restricted Subsidiaries. The Borrower will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance
or restriction on the ability of any Restricted Subsidiary to (i) pay
dividends or make any other distributions on its capital stock or any
other interest or participation in its profits owned by the Borrower or
any Restricted Subsidiary, (ii) make loans or advances to the Borrower
or any Restricted Subsidiaries or (iii) transfer any of its properties
or assets to the Borrower or to any Restricted Subsidiary, except for
such encumbrances or restrictions existing under or by reason of (A)
applicable law or (B) this Agreement.
Section 6.13. Limitation on Certain Debt of Restricted
Subsidiaries. The Borrower will not permit any Restricted Subsidiary to
create, incur, assume or suffer to exist any Debt, except:
(i) liabilities constituting Debt solely by virtue
of clause (ix) of the definition thereof (and not constituting
Debt by virtue of any other clause of the definition thereof)
which is not prohibited by Sections 6.1, 6.2 or 6.3;
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(ii) Debt owing to the Borrower or a Wholly-Owned
Restricted Subsidiary;
(iii) (A) Debt representing the purchase price of
capital assets acquired by a Restricted Subsidiary after the
Effective Date and (B) Debt representing the financing of the
purchase price of capital assets acquired by a Restricted
Subsidiary after the Effective Date if (1) such Debt is
incurred substantially simultaneously with the acquisition of
such assets or (2) such Debt is evidenced by tax exempt bonds
which are issued not later than 180 days after the latest of (x)
the date such asset is acquired, (y) the date of the adoption of
an "official intent" (as defined in Treasury Regulations Section
1.150-2(c)) with respect to such Debt or (z) the date of
allocation of such Debt of "volume cap" (within the meaning of
Section 146 of the Code); provided, in the case of all such Debt
permitted under clauses (A) or (B) of this subparagraph (iii)
that (A) such assets are not acquired directly or indirectly
from the Borrower or any Restricted Subsidiary, (B) such Debt is
secured by one or more purchase money Liens attaching only to
the assets so acquired, (C) such Debt does not exceed 100% of
the lesser of the fair market value or the purchase price of the
assets so acquired and (D) such Debt is not prohibited by
Sections 6.1, 6.2 or 6.3;
(iv) Debt secured by a Lien existing on an asset
prior to the acquisition thereof by a Restricted Subsidiary and
not created in contemplation of such acquisition;
(v) Debt secured by a Lien existing on any asset
of a Person at the time such Person becomes a Restricted
Subsidiary and not created in contemplation of such event; and
(vi) Debt arising out of the refinancing,
extension, renewal or refunding of Debt permitted by any of the
foregoing clauses of this Section; provided that (A) such Debt
is not increased and (B) any such Debt which is secured by a
Lien is not secured by additional assets.
ARTICLE VII
DEFAULTS
Section 7.1. Events of Default. If one or more of
the following events ("Events of Default") shall have occurred and be
continuing, whether such occurrence shall be voluntary or involuntary or
comes about or is affected by operation of law or otherwise:
(i) the Borrower shall fail to pay when due any
principal of the Loan, or shall fail to pay within ten days of
the due date thereof any interest, fee or other amount payable
hereunder or under the Notes;
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(ii) the Borrower shall fail to observe or perform,
or shall fail to cause to be observed or performed, any
covenant, term or condition contained in this Agreement (other
than those covered by clause (i) above) and such failure shall
not be remedied within fifteen days after any officer of
Borrower obtains actual knowledge thereof or, in situations
where a remedy cannot be accomplished within fifteen days,
Borrower fails to begin to remedy such default or fails to
diligently pursue such remedy to completion within a reasonable
time;
(iii) any representation, warranty, certification or
statement made by the Borrower in this Agreement or in any
certificate, financial statement or other document delivered
pursuant hereto or thereto shall prove to have been incorrect in
any material respect when made;
(iv) any payment in respect of any Debt of the
Borrower or its Restricted Subsidiaries (other than the Notes)
exceeding $1,000,000 individually or in the aggregate for all
such Debt shall not be made when due or within any applicable
grace period;
(v) a default shall occur in the performance or
observance of any other agreement, term or condition contained
in any agreement under which any obligation is created, which
default results in the acceleration of the maturity of any Debt
of the Borrower or its Restricted Subsidiaries (other than the
Notes) exceeding $1,000,000 individually or in the aggregate for
all such Debt or enables (or, with the giving of notice or lapse
of time or both, would enable) the holder of such Debt or any
Person acting on such holder's behalf to accelerate the maturity
thereof;
(vi) the Borrower or any Restricted Subsidiary
shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its
property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it, or
shall make a general assignment for the benefit of creditors, or
shall fail generally to pay its debts as they become due, or
shall take any corporate action to authorize any of the
foregoing;
(vii) an involuntary case or other proceeding shall
be commenced against the Borrower or any Restricted Subsidiary
seeking liquidation, reorganization or other relief with respect
to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its
property, and such involuntary case or other
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proceeding shall remain undismissed and unstayed for a period of
60 days; or an order for relief shall be entered against the
Borrower or any Restricted Subsidiary under the federal
bankruptcy laws as now or hereafter in effect;
(viii) the failure of any representation or warranty
made by the Borrower under Section 4.10 to be true and correct
in all respects;
(ix) the consummation by the Borrower of a
transaction that would cause the Loan or the Notes or any
exercise of the Bank's rights hereunder or thereunder to
constitute a non-exempt prohibited transaction under ERISA or a
violation of a state statute regulating governmental plans,
subjecting the Bank to liability for violation of ERISA or such
state statute;
(x) any member of the Controlled Group shall fail
to pay when due an amount or amounts aggregating in excess of
$2,900,000 which it shall have become liable to pay to the PBGC,
any Plan or any Plan trustee under Title IV of ERISA or Section 412 of
the Code; or notice of intent to terminate a Plan or Plans
having aggregate Unfunded Vested Liabilities in excess of
$5,800,000 (collectively, a "Material Plan") shall be provided
under Title IV of ERISA by any member of the Controlled Group,
any plan administrator or any combination of the foregoing; or
the PBGC shall institute proceedings under Title IV of ERISA to
terminate or to cause a trustee to be appointed to administer
any Material Plan or a proceeding instituted by a fiduciary of
any Material Plan against any member of the Controlled Group to
enforce Section 515 of ERISA and such proceeding shall not have
been dismissed within 30 days thereafter; or a condition shall
exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated;
(xi) one or more judgments or orders for the
payment of money in excess of $1,000,000 shall be rendered
against the Borrower or any Restricted Subsidiary (excluding
judgments or orders paid, or to the extent covered by insurance
if the carrier has acknowledged coverage) and such judgment or
order shall continue unsatisfied for a period of thirty days
during which execution shall not be effectively stayed; or
(xii) a final determination is made by the Internal
Revenue Service that the Borrower has failed to maintain its
qualification as a real estate investment trust or a
preliminary determination is made which the Borrower fails
promptly to contest or to remedy by appropriate proceedings;
then, and in every such event, the Bank, at its option, may by notice to
the Borrower terminate the Commitment and it shall thereupon terminate
and may, by notice to the Borrower, declare the Notes (together with
accrued interest thereon) to be, and the Notes shall thereupon become,
immediately due and payable without presentment, demand,
-34-
protest or other notice of any kind, all of which are hereby waived by
the Borrower; provided that in the case of any of the Events of Default
specified in paragraph (vi) or (vii) above, without any notice to the
Borrower or any other act by the Bank, the Commitment shall terminate
and the Notes (together with accrued interest thereon) shall become
immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the
Borrower.
Section 7.2. Other Remedies. If an Event of Default
or Default shall occur and be continuing, the Bank may proceed to
protect and enforce its rights under this Agreement and the Notes by
exercising such remedies as are available to the Bank in respect thereof
under applicable law, either by suit in equity or by action at law or
both, for specific performance of any covenant or other agreement
contained in this Agreement or in aid of the exercise of any power
granted in this Agreement. No failure or delay by the Bank in
exercising any right, power or privilege hereunder or under the Notes
shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section 7.3. Inspection of Properties. The Bank,
upon obtaining any judgment against the Borrower, in order to enforce
such judgment, shall have the right to enter upon and the Borrower
hereby specifically grants to the Bank a license (effective only upon
the entry of a judgment) to enter upon the properties of the Borrower
and its Restricted Subsidiaries for the purpose of inspecting, testing
and assessing the properties for the presence of Hazardous Materials.
The Borrower shall reimburse the Bank upon demand for all costs and
expenses of any and all inspections, testing and assessing. If the
Borrower fails to reimburse the Bank upon demand for such costs, then
the Bank may pursue all its legal remedies to recover such costs, at its
option.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
Section 8.1. Basis for Determining Interest Rate
Inadequate or Unfair. If on or prior to the first day of any Interest
Period:
(i) the Bank advises the Borrower that deposits in
dollars (in the applicable amounts) are not being offered to the
Bank in the relevant market for such Interest Period, or
(ii) the Bank advises the Borrower that the
Adjusted CD Rate or the Adjusted London Interbank Offered Rate,
as the case may be, will not adequately and fairly reflect the
cost of the Bank of funding the Fixed Rate Loans for such
Interest Period,
then, until the Bank notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligations of the Bank to
make CD Loans or Euro-Dollar Loans, as the case may be, shall be
suspended. Unless the Borrower notifies the Bank at least two Domestic
Business Days before the date of any Fixed Rate Loan
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for which a Notice of Borrowing has previously been given that it elects
not to borrow on such date, such Loan shall be instead be made as a
Prime Loan.
Section 8.2. Illegality. If, after the date of this
Agreement, the adoption of any applicable law, rule or regulation, or
any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by the Bank (or its Euro-Dollar Lending Office)
with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it
unlawful or impossible for the Bank (or its Euro-Dollar Lending Office)
to make, maintain or fund its Euro-Dollar Loans and the Bank shall so
notify the Borrower, the Borrower shall forthwith give notice thereof to
the Bank, then, until the Bank notifies the Borrower that the
circumstances giving rise to such suspension no longer exist, the
obligation of the Bank to make Euro-Dollar Loans shall be suspended.
Before giving any notice to the Borrower pursuant to this Section, the
Bank will designate a different Euro-Dollar Lending Office if such
designation will avoid the need for giving such notice and will not, in
the judgment of the Bank, be otherwise disadvantageous to it. If the
Bank shall determine that it may not lawfully continue to maintain and
fund any outstanding Euro-Dollar Loans to maturity and so specify in
such notice, the Borrower shall immediately prepay in full the then
outstanding principal amount of each such Euro-Dollar Loan, together
with accrued interest thereon. Concurrently with prepaying each such
Euro-Dollar Loan, the Borrower shall borrow a Prime Loan in an equal
principal amount from the Bank and the Bank shall make such a Prime
Loan.
Section 8.3. Increased Costs. (a) If, after the
date hereof, the adoption of any applicable law, rule or regulation, or
any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by the Bank (or its Lending Office) with any
request or directive (whether or not having the force of law) of any
such authority, central bank or comparable agency:
(i) shall subject the Bank (or its Lending Office)
to any tax, duty or other charge with respect to its Fixed Rate
Loans, its Notes or its obligation to make Fixed Rate Loans, or
shall change the basis of taxation of payments to the Bank (or
its Lending Office) of the principal of or interest on its Fixed
Rate Loans or any other amounts due under this Agreement in
respect of its Fixed Rate Loans or its obligation to make Fixed
Rate Loans (except for changes in the rate of tax on the overall
net income of the Bank or its Lending Office imposed by the
jurisdiction in which the Bank's principal executive office or
its Lending Office is located); or
(ii) shall impose, modify or deem applicable any
reserve, special deposit or similar requirement (including,
without limitation, any such requirement imposed by the Board of
Governors of the Federal Reserve System, but excluding (i) with
respect to any CD Loan any such requirement in an applicable
Domestic Reserve Percentage and (ii) with respect to any
Euro-Dollar Loan any such requirement in an applicable
Euro-Dollar Reserve Percentage) against assets
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of, deposits with or for the account of, or credit extended by,
the Bank's Lending Office or shall impose on the Bank or its
Lending Office or on the United States market for certificates
of deposit or the London interbank market any other condition
affecting its Fixed Rate Loans, its Notes or its obligation to
make Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to the
Bank (or its Lending Office) of making or maintaining any Fixed Rate
Loan, or to reduce the amount of any sum received or receivable by the
Bank (or its Lending Office) under this Agreement or under the Notes
with respect thereto, by an amount deemed by the Bank to be material,
then, within 15 days after demand by the Bank, the Borrower shall pay to
the Bank such additional amount or amounts as will compensate the Bank
for such increased cost or reduction. The Bank will promptly notify the
Borrower of any event of which it has knowledge, occurring after the
date hereof, which will entitle the Bank to compensation pursuant to
this Section. A certificate of the Bank claiming compensation under
this Section and setting forth the additional amount or amounts to be
paid to it hereunder shall be conclusive in the absence of manifest
error. In determining such amount, the Bank may use any reasonable
averaging and attribution methods.
(b) If the Bank shall determine that the adoption after
the date hereof of any law, rule, regulation or guideline regarding
capital adequacy (excluding, however, any law or regulation which was
adopted prior to the Effective Date to effect the frame-work described
by the Basle Committee on Banking Regulations and Supervisory Practices
in its paper entitled "International Conversions of Capital
Measurement", July 1988, but compliance with which is not required until
after the Effective Date), or any change in any of the foregoing or in
the interpretation or administration of any of the foregoing by any
governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, compliance by the Bank (or
its Lending Office) with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of
reducing the rate of return on the Bank's capital or the capital of any
Person controlling the Bank as a consequence of the Bank's obligations
hereunder to a level below that which the Bank or such controlling
Person could have achieved but for such law, adoption, change or
compliance (taking into consideration the Bank's policies with respect
to capital adequacy) by an amount deemed by the Bank to be material,
then from time to time, within ten days after demand by the Bank, the
Borrower shall pay to the Bank such additional amount or amounts as will
compensate the Bank for such reduction. A certificate of the Bank
claiming compensation under this Section and setting forth the
additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error. In determining any such
amount, the Bank may use any reasonable averaging and attribution
methods.
Section 8.4. Election to Terminate. If the
obligation of the Bank to make Euro-Dollar Loans has been suspended
pursuant to Section 8.2, the Borrower may elect to terminate this
Agreement, and in connection therewith not to borrow any Prime Loan
provided for in Section 8.2; provided that the Borrower (i) notifies the
Bank at least two Euro-Dollar Business Days before any date fixed for
such a borrowing and (ii) repays all of the outstanding Loans at the end
of the respective Interest Periods
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applicable thereto or as otherwise required by Section 8.2. Upon
receipt of such notice, the Commitment of the Bank shall terminate.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Notices. All notices, requests and
other communications to a party hereunder shall be in writing and
shall be given to such party at its address set forth on the signature
pages hereof or such other address as such party may hereafter specify
for the purpose by notice to the other. Each such notice, request or
other communication shall be effective (i) if given by mail, 48 hours
after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (ii) if given by any other
means, when delivered at the address specified in this Section; provided
that notices to the Bank under Article II shall not be effective until
received.
Section 9.2. No Waivers. No failure or delay by the
Bank in exercising any right, power or privilege hereunder or under the
Notes shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
Section 9.3. Expenses. The Borrower shall pay (i)
all out-of-pocket expenses of the Bank, including the reasonable fees
and disbursements of special counsel for the Bank, in connection with
the preparation and administration of this Agreement, any waiver or
consent hereunder or any amendment hereof or any Default or alleged
Default hereunder and (ii) if an Event of Default occurs, all
out-of-pocket expenses incurred by the Bank, including reasonable fees
and disbursements of its counsel, in connection with such Event of
Default and collection and other enforcement proceedings resulting
therefrom. The Borrower shall indemnify the Bank against any transfer
taxes, documentary taxes, assessments or charges (excluding income,
gross receipts and other taxes based in whole or in part on the revenues
of the Bank) made by any governmental authority by reason of the
execution and delivery of this Agreement or the Notes.
Section 9.4. Indemnification. In consideration of
the execution and delivery of this Agreement by the Bank, the Borrower
hereby indemnifies, exonerates and holds the Bank and its Affiliates,
officers, directors, employees and agents (collectively, the
"Indemnified Parties") free and harmless from and against any and all
actions, causes of action, suits, losses, costs, liabilities,
obligations, penalties, fines, demands, defenses, damages (including
consequential damages), disbursements or expenses of any kind or nature
whatsoever (including attorneys' fees and costs and experts' fees and
disbursements and expenses incurred in investigating, settling,
defending against or prosecuting any litigation, claim or proceeding)
which may at any time be imposed upon, incurred by or asserted or
awarded against any Indemnified Party (irrespective of whether any such
Indemnified Party is a party to the action of which indemnification
hereunder is sought), whether incurred in connection with actions
between or among the parties hereto or the parties hereto and
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third parties (collectively, the "Indemnified Liabilities"), incurred by
the Indemnified Parties or any of them as a result of, or arising out
of, or relating to:
(i) the actual or alleged presence of any
hazardous material on, in, under or affecting, the
transportation of any Hazardous Material to or from, or the
Release of any Hazardous Material from or in connection with,
all or any portion of any property, owned, leased or operated by
the Borrower, the ground water or any surrounding areas;
(ii) any misrepresentation, inaccuracy or breach of
any warranty contained in or referred to in Section 4.13;
(iii) the failure of the Borrower to comply with any
Environmental Requirement during or after the term of this
Agreement;
(iv) the imposition of any Lien for damages caused
by or the recovery of any costs for the clean-up, Release or
threatened Release of Hazardous Material by the Borrower, or in
connection with any property owned or formerly owned by the
Borrower; or
(v) any actual or alleged prohibited transaction
or any actual or alleged sale of a prohibited loan under ERISA
or under any state statute regulating investments of, and
fiduciary obligations with respect to, governmental plans
relating to Section 3(32) of ERISA, and in obtaining any
individual prohibited transaction exemption under ERISA or any
administrative exemption under any state statute that may be
required (in the Bank's sole discretion) that the Bank or any of
the Bank's Affiliates or Indemnified Parties may incur, directly
or indirectly, as a result of an Event of Default described in
Section 7.1(viii).
The obligations of the Borrower in respect of Indemnified Liabilities
shall survive repayment of the Notes or any transfer of the Borrower's
property by foreclosure or by a deed in lieu of foreclosure, regardless
of whether caused by or within the control of, the Borrower.
Notwithstanding any of the foregoing, the Borrower shall not be
responsible, or otherwise liable for, any Indemnified Liabilities
arising for the account of a particular Indemnified Party by reason of
the relevant Indemnified Party's gross negligence or willful misconduct.
The Borrower and its successors and assigns hereby waive, release and
agree not to make any claim or bring any cause recovery action against
the Bank or other Indemnified Party in respect of claims arising under
clauses (i) through (iv) above (collectively, "Environmental Require-
ments"). It is expressly understood and agreed that to the extent that
any such Person is strictly liable under any Environmental Requirement,
the Borrower's obligations to such Person under this Section 9.4 shall
likewise be without regard to fault on the part of the Borrower with
respect to the violation or condition which results in liability of such
Person. If and to the extent that the foregoing undertaking may be
unenforceable for any reason, the Borrower hereby agrees to make the
maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law.
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Section 9.5. Right of Set-Off. Upon the occurrence
and during the continuance of any Event of Default, the Bank is hereby
authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by the Bank to or for the credit or
the account of the Borrower against any and all of the obligations now
or hereafter existing under this Agreement or the Notes, irrespective of
whether or not the Bank shall have made any demand hereunder or under
the Notes and although such obligation may be unmatured. The rights of
the Bank under this Section 9.5 are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which
the Bank may have. The Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a
participation in any Note may exercise rights of set-off or counterclaim
or other rights with respect to such participation as fully as if such
holder of a participation were a direct creditor of the Borrower in the
amount of such participation. The Bank agrees to notify the Borrower
promptly after it exercises any such right of set-off.
Section 9.6. Amendments and Waivers. Any provision
of this Agreement or of the Notes may be amended or waived if, but only
if, such amendment or waiver is in writing and is signed by the Borrower
and the Bank. The Borrower shall promptly notify the Bank of any
request to amend or waive any provision of any Other Agreement and of
the action taken by any Other Bank with respect to any such request. If
the Bank refuses to grant an amendment or waiver requested by the
Borrower and agreed to by the Other Banks within five days of its
receipt of any counterparts of such amendment or waiver signed by the
Borrower and the Other Banks, then the Bank agrees that no Event of
Default shall occur by virtue of the event or condition which has been
so waived by the Other Banks until the earlier of (i) 11:00 A.M. on the
first Domestic Business Day which is at least 15 days after the date of
the Bank's receipt of such counterparts and (ii) the date on which such
event or condition would otherwise give rise to an Event of Default
under this Agreement.
Section 9.7. Successors and Assigns.
(a) The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Borrower may not assign or
otherwise transfer any of its rights under this Agreement without the
prior written consent of the Bank.
(b) The Bank may at any time grant to one or more banks
or other institutions (each a "Participant") participating interests in
the Commitment or in any or all of the Loans or the Notes. In the event
of any such grant by the Bank of a participating interest to a
Participant, whether or not upon notice to the Borrower, the Bank
selling such participation shall remain responsible for the performance
of its obligations hereunder, and the Bank shall continue to deal solely
and directly with the Borrower in connection with the Bank's rights and
obligations under this Agreement. Any agreement pursuant to which the
Bank may grant such a participating interest shall provide that the Bank
shall retain the sole right and responsibility to enforce the
obligations of the Borrower hereunder including, without limitation, the
right to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such participation agreement may
provide that the Bank selling such participation will not agree to any
modification, amendment or waiver of
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this Agreement which would have the effect of (i) increasing, decreasing
or extending the Commitment or subjecting the Bank to any additional
obligation, (ii) reducing the principal of or rate of interest on any
Loan, (iii) postponing the date fixed for any payment of principal of or
interest on any Loan or fees hereunder or under the Notes or (iv)
extending the Revolving Credit Period without the consent of the
Participant. An assignment or other transfer which is not permitted by
subsection (c) or (d) below shall be given effect for purposes of this
Agreement only to the extent of a participating interest granted in
accordance with this subsection (b).
(c) The Bank may at any time assign to one or more banks
or other institutions (each an "Assignee") all, or a proportionate part
of all, of its rights and obligations under this Agreement and the
Notes, and such Assignee shall assume such rights and obligations,
pursuant to an instrument executed by such Assignee and the Bank making
such assignment, with (and subject to) the consent of the Borrower;
provided that if an Assignee is an affiliate of the Bank making such
assignment, no such consent shall be required. Upon execution and
delivery of such an instrument and payment by such Assignee to the Bank
making such assignment of an amount equal to the purchase price agreed
between the Bank and such Assignee, such Assignee shall become a Bank
party to this Agreement and shall have all the rights and obligations of
a Bank with a Commitment or Commitments as set forth in such instrument
of assumption, and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no further
consent or action by any party shall be required. Upon the consummation
of any assignment pursuant to this subsection (c), the transferor Bank
and the Borrower shall make appropriate arrangements so that, if
required, a new Note or Notes is issued to the Assignee. If the
Assignee is not incorporated under the laws of the United States of
America or a state thereof, it shall, prior to the first date on which
interest or fees are payable hereunder for its account deliver to the
Borrower certification as to exemption from deduction or withholding of
any United States federal income taxes.
(d) The Bank may at any time assign all or any portion
of its rights under this Agreement and the Notes to a Federal Reserve
Bank. No such assignment shall release the Bank from its obligations
hereunder.
(e) The Bank may furnish any information concerning the
Borrower in its possession from time to time to Assignees and
Participants (including prospective Assignees and Participants) and may
furnish such information in response to credit inquiries consistent with
general banking practice.
Section 9.8. Virginia Law. This Agreement and the
Notes shall be governed by and construed in accordance with the laws of
the Commonwealth of Virginia.
Section 9.9. Counterparts; Effectiveness. This
Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement shall become
effective when the Bank shall have received counterparts hereof signed
by itself and the Borrower.
Section 9.10. Waiver of Jury Trial; Submission to
Jurisdiction. The Borrower hereby irrevocably and unconditionally
waives all right to trial by jury in any action, proceeding, or
counterclaim arising out of or related to this Agreement or
-41-
the Notes or any of the transactions contemplated hereby or thereby.
Any legal action or proceeding with respect to this Agreement or the
Notes or any document related hereto or thereto shall be brought in the
courts of the Commonwealth of Virginia in Richmond, Virginia or of the
United States of America for the Eastern District of Virginia and by
execution and delivery of this Agreement the Borrower hereby accepts for
itself and in respect of its property, generally and unconditionally,
the jurisdiction of the aforesaid courts. The Borrower hereby
irrevocably and unconditionally waives any objection, including
without limitation, any objection to the laying of venue or based on the
grounds of the forum non conveniens which it now or hereafter may have
to the bringing of any action or proceeding in such respective
jurisdictions.
Section 9.11. Entire Agreement. This Agreement and the
Notes and the Supplemental Agreement dated as of December 15, 1994
between the Borrower and the Bank set forth the entire agreement of the
parties with respect to the subject matter hereof and thereof and
supersede all previous understandings, written or oral, in respect
thereof.
IN WITNESS WHEREOF, this Agreement has been duly executed
by the Borrower and the Bank as of the day and year specified at the
beginning hereof.
UNITED DOMINION REALTY TRUST, INC.
By: /s/ James Dolphin
Title: Senior Vice President
10 South Sixth Street
Suite 203
Richmond, Virginia 23219
Attn: Chief Financial Officer
Telecopier No. (804) 343-1917
with a copy (which shall not
constitute notice) to:
James W. Featherstone, Esq.
Hunton & Williams
901 East Byrd Street
Richmond, Virginia 23219
Telecopier No. (804) 788-8218
Commitment:
$25,000,000 FIRST UNION NATIONAL BANK OF
VIRGINIA
By: /s/ R. Willis Yarberry
Title: Vice President
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Domestic and Euro-Dollar Lending
Offices:
901 East Cary Street
One James Center
Richmond, Virginia 23219
Attn: Willis Yarberry
Telecopier No. (804) 697-5439
with a copy (which shall not
constitute notice) to:
Brian D. Murphy, Esq.
McGuire, Woods, Battle & Boothe
901 East Cary Street
Richmond, Virginia 23219
Telecopier No. (804) 775-1061
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EXHIBIT A
DOMESTIC NOTE
Richmond, Virginia
December 15, 1994
For value received, UNITED DOMINION REALTY TRUST, INC., a
Virginia corporation (the "Borrower"), promises to pay to the order of
FIRST UNION NATIONAL BANK OF VIRGINIA (the "Bank"), for the account of
its Domestic Lending Office, the aggregate unpaid principal amount of
each Domestic Loan made by the Bank to the Borrower pursuant to the
Credit Agreement referred to below on the last day of the Interest
Period relating to such Loan. The Borrower promises to pay interest on
the aggregate unpaid principal amount of such Domestic Loans on the
dates and at the rate or rates provided for in the Credit Agreement.
All such payments of principal and interest shall be made in lawful
money of the United States in Federal or other immediately available
funds at the office of First Union National Bank of Virginia, 901 East
Cary Street, Richmond, Virginia 23219.
All Domestic Loans made by the Bank, the respective
maturities thereof and all repayments of the principal thereof shall be
recorded by the Bank and, prior to any transfer hereof, endorsed by the
Bank on the schedule attached hereto, or on a continuation of such
schedule attached to and made a part hereof.
This note is the Domestic Note referred to in the Credit
Agreement dated as of December 15, 1994 between the Borrower and the
Bank (as the same may be amended from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with
the same meanings. Reference is made to the Credit Agreement for
provisions for the prepayment hereof and the acceleration of the
maturity hereof.
UNITED DOMINION REALTY TRUST, INC.
By _______________________________
Title:
LOANS AND PAYMENTS OF PRINCIPAL
Amount of
Prime or Amount of Principal Re- Maturity Notation
Date CD Loan Loan paid Date Made By
EXHIBIT B
EURO-DOLLAR NOTE
Richmond, Virginia
December 15, 1994
For value received, UNITED DOMINION REALTY TRUST, INC., a
Virginia corporation (the "Borrower"), promises to pay to the order of
FIRST UNION NATIONAL BANK OF VIRGINIA (the "Bank"), for the account of
its Euro-Dollar Lending Office, the aggregate unpaid principal amount of
each Euro-Dollar Loan made by the Bank to the Borrower pursuant to the
Credit Agreement referred to below on the last day of the Interest
Period relating to such Loan. The Borrower promises to pay interest on
the aggregate unpaid principal amount of such Euro-Dollar Loans on the
dates and at the rate or rates provided for in the Credit Agreement.
All such payment of principal and interest shall be made in lawful money
of the United States in Federal or other immediately available funds at
the office of First Union National Bank of Virginia, 901 East Cary
Street, Richmond, Virginia 23219.
All Euro-Dollar Loans made by the Bank, the respective
maturities thereof and all repayments of the principal shall be recorded
by the Bank and, prior to any transfer hereof, endorsed by the Bank on
the schedule attached hereto, or on a continuation of such schedule
attached to and made a part hereof.
This note is the Euro-Dollar Note referred to in the
Credit Agreement dated as of December 15, 1994 between the Borrower and
the Bank (as the same may be amended from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with
the same meanings. Reference is made to the Credit Agreement for
provisions for the prepayment hereof and the acceleration of the
maturity hereof.
UNITED DOMINION REALTY TRUST, INC.
By _______________________________
Title:
LOANS AND PAYMENTS OF PRINCIPAL
Amount of
Amount of Loan Principal Maturity Date Notation Made
Date Repaid By
EXHIBIT C
December 15, 1994
First Union National Bank of Virginia
901 East Cary Street
Richmond, Virginia 23219
Gentlemen:
We are general counsel to United Dominion Realty Trust,
Inc. (the "Borrower"), and have represented it in connection with the
Credit Agreement dated as of December 15, 1994 (the "Credit Agreement")
between the Borrower and [Name of Bank]. Terms defined in the Credit
Agreement are used herein as therein defined.
In this connection, we have examined (i) an executed
counterpart of the Credit Agreement, (ii) the Notes of the Borrower
dated December 15, 1994, executed by the Borrower and delivered to the
Bank pursuant to the Credit Agreement, (iii) the certificates and
instruments (the "Loan Documents") executed by or on behalf of the
Borrower and delivered to the Bank pursuant to Article III of the Credit
Agreement and (iv) the originals (or copies identified to our
satisfaction) of such documents and records of the Borrower,
certificates of public officials and officers of the Borrower, and other
documents, certificates, records and papers as we have deemed necessary
for purposes of the opinions hereinafter expressed. For the purposes of
such opinions, we have assumed the genuineness of signatures on records,
certificates, instruments, agreements and other documents submitted to
us as originals, the authenticity thereof and the conformity with the
originals of any such documents submitted to us as copies or specimens.
On the basis of the foregoing, we advise you as follows:
1. The Borrower has been duly organized and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Virginia, with corporate power and authority to enter
into and deliver the Credit Agreement, the Notes and the Loan Documents
and to own its properties and conduct its business.
2. Each Restricted Subsidiary is a corporation or a
limited liability company duly incorporated or organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or organization, with corporate power and authority to
own its properties and conduct its business.
3. Each of the Borrower and its Restricted Subsidiaries
is duly qualified to transact business in each jurisdictions in which
the conduct of its business requires such qualification, or in which the
failure to qualify would have a materially adverse effect upon the
business of the Borrower and its Restricted Subsidiaries, taken as a
whole.
4. The officers signing on behalf of the Borrower have
full power and authority to execute and deliver the Credit Agreement,
the Notes and the Loan Documents and are incumbent in office. The
Credit Agreement, the Notes and the Loan Documents executed by the
Borrower have been duly authorized, executed and delivered by the
Borrower. The Credit Agreement, the Notes and such of the Loan
Documents as purport to be agreements or obligations of the Borrower are
enforceable in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency and
other laws and governmental authority relating to or affecting
creditors' rights generally, by equitable principles of general
applicability (whether considered at law or in equity) and by the
rights of taxing authorities which may by law have priority over the
rights of the Bank.
5. The Borrower may not avail itself of any provision
of the Code of Virginia of 1950, as amended, or Virginia case law
relating to usury to avoid or defeat the payment of any interest or any
other sum it has agreed to pay under the Credit Agreement or the Notes.
6. To the best of our knowledge after due
investigation, there is no action, proceeding or investigation pending
or threatened against the Borrower or any of its property which
questions the validity of the Credit Agreement, the Notes or any of the
Loan Documents or any action taken or to be taken by the Borrower
pursuant thereto. To the best of our knowledge after due investigation,
except as described below, there is no action, proceeding or
investigation pending or threatened against the Borrower or any
Restricted Subsidiary or any of the property of the Borrower or any
Restricted Subsidiary which, individually or aggregated with any other
action or actions, proceeding or proceedings or investigation or
investigations, might materially adversely affect the Borrower and its
Restricted Subsidiaries or their properties, taken as a whole (it being
understood that for purposes of the opinion expressed in this paragraph,
actions, proceedings or investigations in which the interests of the
Borrower or any Restricted Subsidiary are represented by counsel
selected by a liability insurer or insurers are excluded).
7. The execution and delivery by the Borrower of the
Credit Agreement, the Notes and the Loan Documents and the
consummation by the Borrower of the transactions therein contemplated do
not and will not conflict with or result in a breach of any of the terms
or provisions of, or constitute a default under, the articles of
incorporation, articles of organization or bylaws of the Borrower or any
Restricted Subsidiary, or any agreement or instrument known to us to
which the Borrower or any Restricted Subsidiary is a party or by which
the Borrower or any Restricted Subsidiary may be bound.
8. No approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body is necessary in connection
with the execution and delivery by the Borrower of the Credit Agreement,
the Notes or the Loan Documents or the consummation by the Borrower of
the transactions therein contemplated.
9. As general counsel to the Borrower, we are called
upon by the Borrower from time to time to render legal advice regarding
the provisions of the Internal Revenue Code of 1986, as amended, and
applicable Treasury Regulations and revenue rulings promulgated
thereunder applicable to qualification as a real estate investment trust
(collectively, the "REIT Provisions"). During the course of rendering
that advice, nothing has come to our attention that has caused us to
believe that the Borrower is not in compliance with any of the REIT
Provisions so that the Borrower would not qualify as a real estate
investment trust thereunder. However, we have not been requested by the
Borrower to monitor, and therefore have not monitored,
-2-
the continuing qualification of the Borrower as a real estate investment
trust under the REIT Provisions, nor have we made an independent inquiry
or examination of the Borrower's current qualification as a real estate
investment trust.
10. Although we have made no independent investigation
(except to the extent necessary to enable us to express the opinions in
paragraphs 1 through 9 above), nothing has come to our attention that
would cause us to believe that any of the representations or warranties
of the Borrower in the Credit Agreement or any of the Loan Documents is
false. We express no opinion, however, as to any representation or
warranty of the Borrower relating to financial statements or financial
or statistical data.
Very truly yours,
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SCHEDULE TO EXHIBIT 6(c)(6)
1. This document is substantially identical in all material
respects, except as to the parties thereto and the maximum borrowings
permitted thereunder, to the following documents:
Amended and Restated Credit Agreement dated
as of December 15, 1994, between the Trust
and NationsBank of Virginia, N.A.
Amended and Restated Credit Agreement dated
as of December 15, 1994, between the Trust
and Crestar Bank
Amended and Restated Credit Agreement dated
as of December 15, 1994, between the Trust
and Signet Bank/Virginia
Copies of the documents referred to in this schedule are omitted in
reliance on Rule 12b-31.
2. This document supersedes Exhibit 6(c)(4).
