$200,000,000
SIXTH AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of October 26, 2000
by and among
COMMERCIAL NET LEASE REALTY, INC.,
NET LEASE REALTY I, INC.,
NET LEASE REALTY II, INC.,
NET LEASE REALTY III, INC.,
NET LEASE REALTY IV, INC., and
NET LEASE FUNDING, INC.
as Borrowers,
The financial institutions party hereto
and their assignees under Section 11.3,
as Banks,
BANK OF AMERICA, N.A.
as Syndication Agent,
First Union Securities, inc.,
as Arranger,
and
First Union National Bank,
as Agent
<PAGE>
TABLE OF CONTENTS
SECTION 1. DEFINITIONS......................................................3
1.1 Defined Terms...................................................3
1.2 Other Definitional Provisions..................................16
SECTION 2. THE CREDIT......................................................17
2.1 The Revolving Credit Facility..................................17
2.2 Advance Requests and Funding Mechanics.........................19
2.3 Bid Rate Loans.................................................20
2.4 Swingline Loans...............................................23
2.5 Letters of Credit..............................................25
2.6 Use of Proceeds................................................27
2.7 Notes..........................................................27
2.8 Interest.......................................................28
2.9 Repayment......................................................29
2.10 Fees...........................................................30
2.11 Extension of Revolving Credit Maturity Date....................31
2.12 Single Loan....................................................32
2.13 Payments and Computations......................................32
2.14 Prepayments....................................................34
2.15 Compensation...................................................34
2.16 Sharing of Payments, Etc.......................................35
2.17 Conversion and Continuation of Advances; Failure to Select
Interest Period................................................36
2.18 Increased Costs, Illegality, Etc...............................37
2.19 Letters of Credit Obligations..................................38
2.20 Amount Limitations.............................................40
SECTION 3. [INTENTIONALLY OMITTED].........................................40
SECTION 4. REPRESENTATIONS AND WARRANTIES...................................40
4.1 Existence of Borrower; Compliance with Law.....................40
4.2 Authorization..................................................41
4.3 Enforceable Obligations........................................41
4.4 Financial Condition of the Borrowers...........................41
4.5 No Litigation..................................................42
4.6 Disclosure and No Untrue Statements............................42
4.7 Title to Assets; Leases in Good Standing.......................42
4.8 Payment of Taxes...............................................42
4.9 Agreement or Contract Restrictions.............................42
4.10 Patents, Trademarks, Etc.......................................43
4.11 Racketeer Influenced and Corrupt Organization(s) Act...........43
4.12 Investment Company Act; Regulation.............................43
4.13 Labor Matters..................................................43
4.14 ERISA Requirement..............................................43
4.15 Compliance With Environmental Requirements.....................44
4.16 Compliance with REIT Requirements..............................44
4.17 Principal Office/Corporate Name................................44
4.18 Use of Credit..................................................45
SECTION 5. CONDITIONS OF LENDING...........................................45
5.1 Request for Borrowing; Information.............................45
5.2 Continuing Accuracy of Representations and Warranties..........45
5.3 No Default.....................................................46
5.4 Loan Documents.................................................46
5.5 Supporting Documents...........................................46
5.6 Opinion of the Borrowers' Counsel..............................47
SECTION 6. AFFIRMATIVE COVENANTS...........................................47
6.1 Financial Reports and Other Data...............................47
6.2 Financial Covenants of the Borrowers...........................49
6.3 Payment and Performance of the Borrowers Obligations...........50
6.4 Depository Account.............................................50
6.5 Conduct of Business; Maintenance of Existence..................50
6.6 Right of Inspection; Discussions...............................50
6.7 Notices........................................................50
6.8 Payment of Taxes; Liens........................................51
6.9 Maintenance of Property, Leases................................51
6.10 ERISA Benefit Plans............................................52
6.11 Insurance of Property..........................................52
6.12 True Books.....................................................52
6.13 Observance of Laws.............................................52
6.14 Further Assurances.............................................52
6.15 Change of Name, Principal Place of Business, Office, or
the Agent......................................................53
6.16 Status.........................................................53
6.17 Syndication of Credit..........................................53
6.18 Exchange Listing...............................................53
6.19 Ownership of RE-Stores.........................................53
6.20 New Borrowers..................................................53
SECTION 7. NEGATIVE COVENANTS..............................................54
7.1 Limitations on Unsecured Debt..................................54
7.2 Limitations on Dividends.......................................55
7.3 Merger, Sale of Assets, Dissolution, Etc.......................55
7.4 Limitations on Loans, Advances, and Investments................56
7.5 Regulation U...................................................56
7.6 Insider Transactions...........................................56
7.7 Changes in Governing Documents, Accounting Methods, Fiscal
Year...........................................................57
7.8 Certain Permitted Investments..................................57
7.9 Ownership of Assets............................................58
SECTION 8. EVENTS OF DEFAULT...............................................58
8.1 Payment of Obligations to the Banks............................58
8.2 Representation or Warranty.....................................58
8.3 Covenants......................................................58
8.4 Any Borrower's Liquidation; Dissolution; Bankruptcy; Etc.......58
8.5 Order of Dissolution...........................................59
8.6 Reports and Certificates.......................................59
8.7 Judgments......................................................59
8.8 Liens Imposed by Law...........................................59
8.9 Corporate Existence............................................59
8.10 ERISA..........................................................59
8.11 Cross-Default..................................................60
8.12 Change of Control..............................................60
SECTION 9. THE AGENT.......................................................61
9.1 Appointment, Authorization, and Action.........................61
9.2 Delegation of Duties...........................................62
9.3 Exculpatory Provisions.........................................62
9.4 Reliance by the Agent..........................................62
9.5 Agent and Affiliates...........................................62
9.6 Notice of Default..............................................63
9.7 Non-Reliance on the Agent and Other Banks......................63
9.8 Enforcement by the Agent.......................................63
9.9 Indemnification................................................64
9.10 Failure to Act.................................................64
9.11 Successor Agent................................................64
SECTION 10. INDEMNIFICATION BY BORROWERS...................................65
SECTION 11. MISCELLANEOUS..................................................65
11.1 Course of Dealing; Amendments..................................65
11.2 Payment of Expenses, Including Attorneys' Fees and Taxes.......66
11.3 Successors and Assigns.........................................66
11.4 Assignments and Participations.................................67
11.5 Confidential Information.......................................69
11.6 Liens; Set-Off.................................................70
11.7 Notices........................................................70
11.8 Waiver of Default..............................................70
11.9 No Waiver; Cumulative Remedies.................................71
11.10 Venue and Jurisdiction.........................................71
11.11 Governing Law..................................................71
11.12 Title and Headings; Table of Contents..........................71
11.13 Complete Agreement.............................................71
11.14 Legal or Governmental Limitations..............................71
11.15 Counterparts...................................................72
11.16 WAIVER OF JURY TRIAL BY BORROWERS..............................72
11.17 BORROWERS JOINTLY AND SEVERALLY LIABLE.........................72
11.18 Contribution...................................................72
EXHIBIT A...Form of Notice of Borrowing
EXHIBIT B...Form of Promissory Note
EXHIBIT C...Form of Assignment and Acceptance
EXHIBIT D...Form of Notice of Prepayment
EXHIBIT E...Form of Notice of Conversion/Continuation
EXHIBIT F...Form of Notice of Swingline Borrowing
EXHIBIT G...Form of Swingline Note
EXHIBIT H...Form of Bid Rate Quote Request
EXHIBIT I...Form of Bid Rate Quote
EXHIBIT J...Form of Acceptance/Nonacceptance of Bid Rate Quote
EXHIBIT K...Form of Joinder Agreement
EXHIBIT L...Form of Quarterly Advance Compliance Certificate
EXHIBIT M...Form of Bid Rate Note
<PAGE>
SIXTH AMENDED AND RESTATED
CREDIT AGREEMENT
THIS SIXTH AMENDED AND RESTATED CREDIT AGREEMENT dated October 26, 2000,
by and among COMMERCIAL NET LEASE REALTY, INC., a Maryland corporation ("CNLR"),
NET LEASE REALTY I, INC., a Maryland corporation ("Net I"), NET LEASE REALTY II,
INC., a Maryland corporation ("Net II"), NET LEASE REALTY III, INC., a Maryland
corporation ("Net III"), NET LEASE REALTY IV, INC., a Maryland corporation ("Net
IV"), and NET LEASE FUNDING, INC., a Maryland corporation ("Funding"); CNLR, Net
I, Net II, Net III, Net IV, and Funding are hereinafter sometimes individually
referred to as a "Borrower" and collectively referred to as the "Borrowers"),
FIRST UNION SECURITIES, INC., as Arranger (the "Arranger"), BANK OF AMERICA,
N.A., as Syndication Agent (the "Syndication Agent"), FIRST UNION NATIONAL BANK,
a national banking association, successor to First Union National Bank of
Florida (individually, "First Union"), as the Agent (the "Agent") and the
financial institutions which are, or may from time to time become, listed on the
signature pages hereof (together with their successors and assigns, individually
a "Bank" and collectively the "Banks").
BACKGROUND
----------
CNLR and First Union entered into a Revolving Line of Credit and Security
Agreement dated as of June 21, 1994 (the "Prior Credit Agreement"), which
provided for a revolving line of credit in the amount of $30,000,000.00 in favor
of CNLR (the "Prior Credit"), evidenced by a promissory note in the principal
amount of $30,000,000.00 (the "Prior Note"), Collateral Assignments of Leases,
Rents, and Profits and Security Agreements, Agreements Not to Encumber or
Transfer Property, and other related instruments (the "Prior Security
Documents").
Subsequently, CNLR, the Agent and certain Banks entered into a Revolving
Line of Credit and Security Agreement dated as of July 25, 1994 (the "1994
Credit Agreement"), which provided for a revolving line of credit in the amount
of $100,000,000.00 in favor of CNLR pursuant to which First Union assigned the
Prior Credit (including but not limited to the Prior Note and the Prior Security
Documents) to the Banks and evidenced by a Promissory Note in the principal
amount of $100,000,000.00 (the "1994 Note"), Collateral Assignments of Leases,
Rents and Profits and Security Agreements, Agreements Not to Encumber or
Transfer Property, and other related instruments (the "1994 Security
Documents"). The 1994 Credit Agreement superseded and replaced the Prior Credit
Agreement and provided for an increased line of credit.
CNLR, the Agent and the Banks subsequently agreed to amend and restate the
1994 Credit Agreement to reflect certain changes in the terms of the Revolving
Credit Facility pursuant to the terms of an Amended and Restated Revolving Line
of Credit and Security Agreement dated as of April 13, 1995 (the "April, 1995
Agreement") which superseded the 1994 Credit Agreement.
Subsequently, CNLR requested certain additional amendments to the April,
1995 Agreement to permit (i) CNLR to incur mortgage loans from Principal Mutual
Life Insurance Company, or an affiliate thereof, in the total amount of not more
than $52,600,000.00 with respect to certain properties identified in the 1994
Security Documents and (ii) to allow it to place certain properties to be
acquired in its Wholly-Owned Subsidiaries, Net I and Net II.
The Agent and the Banks agreed to CNLR's request so long as Net I and Net
II agreed to become co-borrowers under the Revolving Credit Facility and
pursuant to the other terms and conditions of the Second Amended and Restated
Line of Credit and Security Agreement dated as of December 7, 1995 (the
"December, 1995 Agreement") which superseded the April, 1995 Agreement and was
evidenced by a Renewal and Modification Promissory Note (the "Renewal Note") in
the principal amount of $100,000,000.00, which renewed and modified the Original
Note and the 1994 Security Documents. The Borrowers subsequently requested
certain waivers from the terms of the December, 1995 Agreement for certain
transactions to be entered into by the Borrowers which were approved by the
Banks pursuant to a Letter Agreement dated June 12, 1996 (the "Letter
Agreement").
CNLR, Net I and Net II subsequently requested certain additional
amendments to the December, 1995 Agreement and the Renewal Note to (i) increase
the amount of the Revolving Credit Facility to $150,000,000.00 and (ii) extend
the Revolving Credit Maturity Date to June 30, 1998, as well as certain other
revisions.
The Agent and the Banks agreed to Borrowers' request pursuant to the terms
and conditions of the Third Amended and Restated Revolving Line of Credit and
Security Agreement dated as of September 3, 1996 (the "September, 1996
Agreement"), which superseded the December, 1995 Agreement, and was evidenced by
a Second Renewal and Modification Promissory Note (the "Second Renewal Note") in
the principal amount of $150,000,000.00, which renewed and modified the Renewal
Note, and the Existing Security Documents.
CNLR, Net I and Net II, together with Net III and Net IV, as new
co-borrowers, subsequently requested certain additional amendments to the
September, 1996 Agreement and Second Renewal Note to (i) increase the amount of
the Revolving Credit Facility to $200,000,000.00 and (ii) extend the Revolving
Credit Maturity Date to July 30, 1999, as well as certain other revisions. The
Borrowers also requested certain amendments to the Letter Agreement.
The Agent and the Banks agreed to Borrowers' requests pursuant to (i) the
terms and conditions of the Fourth Amended and Restated Revolving Line of Credit
and Security Agreement dated as of August 6, 1997 (as amended and in effect
immediately prior to the date hereof, the "August, 1997 Agreement") which
superseded the September, 1996 Agreement, and which was evidenced by a Third
Renewal and Modification Promissory Note dated as of August 6, 1997 (as amended
and in effect immediately prior to the date hereof, the "Third Renewal Note") in
the principal amount of $200,000,000.00 which renewed and modified the Second
Renewal Note, and the other Loan Documents and (ii) the terms and conditions of
a Letter Agreement dated as of August 6, 1997 (the "August, 1997 Letter
Agreement") by and among the Borrowers, the Agent and the Banks which amended
and restated the Letter Agreement.
CNLR, Net I and Net II, Net III and Net IV, together with Funding, as a
new co-borrower, subsequently requested certain additional amendments to the
August, 1997 Agreement and Third Renewal Note (a) to add Funding as a
co-borrower; (b) to add a new financial institution as a "bank"; (c) to amend
certain of the provisions of the August, 1997 Agreement; (d) to incorporate the
terms of the August, 1997 Letter Agreement into this Agreement; and (e) for the
other purposes provided for herein.
The Agent and the Banks agreed to Borrowers' requests pursuant to the
terms and conditions of the Fifth Amended and Restated Revolving Line of Credit
and Security Agreement dated as of September 23, 1999 (as amended and in effect
immediately prior to the date hereof, the "Existing Agreement") which superseded
the August, 1997 Agreement, and those certain promissory notes each dated as of
September 23, 1999 in the aggregate principal amount of $200,000,000
(collectively, the "Existing Note") which renewed and modified the Third Renewal
Note.
The parties hereto desire to enter into this Agreement to amend and
restate the terms of the Existing Agreement (a) to amend certain of the
provisions of the Existing Agreement; and (b) for the other purposes provided
for herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, covenants, and conditions herein, the Existing Agreement is hereby
amended and restated in its entirety and the Borrowers, the Agent, and the Banks
agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. Except as otherwise expressly provided in this
Agreement, the following capitalized terms shall have the respective meanings
ascribed to them for all purposes of this Agreement:
"1994 Credit Agreement" has the meaning specified in the Background
----------------------
section hereof.
"1994 Note" has the meaning specified in the Background section hereof.
---------
"1994 Security Documents" has the meaning specified in the Background
------------------------
section hereof.
"Advance" means a Revolving Credit Advance, a Bid Rate Loan or a
-------
Swingline Loan.
"Advisor Acquisition Costs" means all costs and other charges directly
---------------------------
associated with the acquisition by CNLR of CNL Realty Advisors, Inc., a Florida
corporation.
"Agent" means First Union National Bank, acting as contractual
-----
representative for the Banks hereunder, together with any successor agent
appointed pursuant to the provisions hereof.
"Agreement" means this Sixth Amended and Restated Credit Agreement (which
---------
supersedes the Existing Agreement), as the same may be amended, supplemented,
restated, replaced, or otherwise modified from time to time.
"Aggregate Revolving Credit Commitment" shall mean the sum of the
----------------------------------------
Revolving Credit Commitment of each of the Banks at any time.
"Amended Letter Agreement" has the meaning specified in the Background
--------------------------
section hereof.
"Applicable Law" means all applicable provisions of constitutions,
---------------
statutes, rules, regulations and orders of all Governmental Authority and all
orders and decrees of all courts, tribunals and arbitrators.
"Applicable Management Fee" means, with respect to a real property asset
--------------------------
leased by a Borrower as lessor and for a given period, the greater of (i) the
actual property management fee paid a Borrower during such period with respect
to such property and (ii) an imputed management fee in the amount of two percent
(2.0%) of the Gross Lease Revenues attributable to such real property asset for
such period.
"April, 1995 Agreement" has the meaning specified in the Background
-----------------------
section hereof.
"Assignment and Acceptance Agreement" means an Assignment and Acceptance
------------------------------------
Agreement among a Bank, an Assignee and the Agent, substantially in the form of
Exhibit "C".
"Bankruptcy Proceeding" means a case, proceeding or condition of any of
----------------------
the types described in Section 8.4.
"Banks" means each financial institution from time to time party hereto as
-----
a "Bank", together with its respective successors and assigns.
"Bid Rate" has the meaning given that term in Section 2.3(c)(ii)(C).
--------
"Bid Rate Borrowing" has the meaning given that term in Section 2.3(b).
------------------
"Bid Rate Loan" means a loan made by a Lender under Section 2.3(b).
-------------
"Bid Rate Notes" has the meaning given that term in Section 2.7(b)
--------------
"Bid Rate Quote" means an offer in accordance with Section 2.3(c) by a
--------------
Bank to make a Bid Rate Loan with one single specified interest rate.
"Bid Rate Quote Request" has the meaning given that term in Section
------------------------
2.3(b).
"Borrower" means each of CNLR, Net I, Net II, Net III, Net IV, Funding,
--------
and each other Person which becomes a "Borrower" hereunder pursuant to Section
6.20.
"Business Day" means (a) for all purposes other than as set forth in
-------------
clause (b) below, any day other than a Saturday, Sunday or legal holiday on
which banks in Charlotte, North Carolina are open for the conduct of their
commercial banking business, and (b) with respect to all notices and interest on
any LIBOR Rate Advance, any day that is a Business Day described in clause (a)
and that is also a day for trading by and between banks in U.S. dollar deposits
in the London interbank market.
"Capital Lease Obligations" means Debt represented by obligations under a
-------------
lease that is required to be capitalized for financial reporting purposes in
accordance with GAAP, and the amount of such Debt is the capitalized amount of
such obligations determined in accordance with GAAP.
"Closing Date" means the date this Agreement is executed by the Borrowers,
------------
the Agent and the Banks.
"CNLR" means Commercial Net Lease Realty, Inc., a Maryland corporation,
----
and its successors.
"CNLRS" means Commercial Net Lease Realty Services, Inc., a Maryland
-----
corporation, and its successors. For purposes of this Agreement, neither
CNLRS nor any Subsidiary of CNLRS (including, but not limited to, RE-Stores,
Inc.) shall be deemed to be a Subsidiary of CNLR.
"Consistent Basis" means, in reference to the application of Generally
-----------------
Accepted Accounting Principles, that the accounting principles observed in the
current period are comparable in all material respects to those applied in the
preceding period.
"Construction Budget" means the fully budgeted costs associated with the
--------------------
acquisition and construction of real property (including, but not limited to,
the cost of acquiring such real property) as reasonably determined by the
Borrowers in good faith.
"Continue," "Continuation," and "Continued" refer to a continuation of
-------- ------------ ---------
Revolving Credit Advances of the same Type from one Interest Period to the next
Interest Period.
"Convert," "Conversion," and "Converted" refer to a conversion of
------- ---------- ---------
Revolving Credit Advances of one Type into Revolving Credit Advances of the
other Type pursuant to Subsection 2.17 or 2.18 hereof.
"Debt" mean, with respect to a Person, at the time of computation
----
thereof, all of the following (without duplication): (a) obligations of such
Person in respect of money borrowed; (b) obligations of such Person (other than
trade debt incurred in the ordinary course of business), whether or not for
money borrowed (i) represented by notes payable, or drafts accepted, in each
case representing extensions of credit, (ii) evidenced by bonds, debentures,
notes or similar instruments, or (iii) constituting purchase money indebtedness,
conditional sales contracts, title retention debt instruments or other similar
instruments, upon which interest charges are customarily paid or that are issued
or assumed as full or partial payment for property; (c) Capital Lease
Obligations of such Person; (d) all reimbursement obligations of such Person
under any letters of credit or acceptances (whether or not the same have been
presented for payment); (e) obligations of such Person with respect to any
equity issuance of such Person which is convertible into or exchangeable for
indebtedness of such Person, valued at the amount of indebtedness resulting from
such conversion or exchange; (f) all obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in respect of any equity
interests in such Person or any other Person (other than obligations of such
Person to make payments in respect of such equity interests in order to maintain
its REIT Status), valued, in the case of redeemable preferred equity issuance,
at the greater of its voluntary or involuntary liquidation preference plus
accrued and unpaid dividends (excluding, (i) in the case of the CNLR and its
Subsidiaries, any obligation to acquire limited partnership interests in any
Subsidiary of CNLR or the Up-REIT Borrower which can be satisfied in full by
exchanging shares of common stock of CNLR for such limited partnership
interests, and (ii) in the case of CNLR, dividends declared and paid to holders
of common shares of CNLR); and (g) all Debt of other Persons which (i) such
Person has guaranteed or is otherwise recourse to such Person or (ii) is secured
by a Lien on any property of such Person.
"December, 1995 Agreement" has the meaning specified in the Background
--------------------------
section hereof.
"Default Rate" means (a) in the case of a LIBOR Rate Advance, at a rate of
------------
interest per annum which shall be four percent (4.0%) above the interest rate
applicable to such LIBOR Rate Advance (including any applicable margin) until
the end of the Interest Period during which such Event of Default occurred, and
thereafter at a rate of interest per annum which shall be four percent (4.0%)
above the Prime Rate, (b) or in the case of a Bid Rate Loan, at a rate of
interest per annum which shall be four percent (4.0%) above the applicable Bid
Rate for such Bid Rate Loan until the end of the Interest Period during which
such Event of Default occurred, and thereafter at a rate of interest per annum
which shall be four percent (4.0%) above the Prime Rate, and (c) in the case of
a Prime Rate Advance, Swingline Loan or any other amount owing hereunder or
under any other Loan Document, at a rate of interest per annum which shall be
four percent (4.0%) above the Prime Rate.
"EBITDA" shall mean, without duplication, the Borrowers' net income for
------
any accounting period plus (i) the amount of the provision for federal, state
and local income taxes for such period, plus (ii) the amount of interest expense
during such period for indebtedness for borrowed money, plus (iii) the amount of
the provision for depreciation and amortization for such period determined in
accordance with Generally Accepted Accounting Principles, plus (iv) Advisor
Acquisition Costs and, in the case of amounts described in clauses (i), (ii),
(iii) and (iv), only to the extent deducted in determining net income for such
period.
"Effective Date" means the later of: (a) the Closing Date; and (b) the
---------------
date on which all of the conditions precedent set forth in Sections 5.4.,
5.5. and 5.6. shall have been fulfilled.
"Eligible Assignee" means any Person who is: (i) currently a Lender; (ii)
------------------
a commercial bank, trust company, insurance company, savings and loan
association, savings bank, investment bank, pension fund or mutual fund
organized under the laws of the United States of America, or any state thereof,
and having total assets in excess of $5,000,000,000; or (iii) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development ("OECD"), or a political
subdivision of any such country, and having total assets in excess of
$10,000,000,000, provided that such bank is acting through a branch or agency
located in the United States of America. If such Person is not currently a
Lender, such Person's senior unsecured long term indebtedness must be rated BBB
or higher by S&P, Baa2 or higher by Moody's, or the equivalent or higher of
either such rating by another rating agency of national reputation and
reasonably acceptable to the Administrative Agent. Notwithstanding the
foregoing, if an Event of Default shall have occurred and be continuing under
Section 8.1, 8.4 or 8.5, the term "Eligible Assignee" shall mean any Person that
is not an individual.
"Eligible Mortgage Income" means, for any given period, the aggregate
--------------------------
income of the Borrowers from Eligible Mortgage Notes Receivable during such
period.
"Eligible Mortgage Note Receivable" means a promissory note which
-------------------------------------
satisfies all of the following requirements: (a) such promissory note is owned
solely by the Borrowers; (b) such promissory note is secured by a Mortgage; (c)
neither such promissory note, nor any interest of any of the Borrowers therein,
is subject to (i) any Lien other than Permitted Liens of the types described in
clauses (a) through (c) of the definition thereof or (ii) any Negative Pledge;
(d) the real property subject to such Mortgage is not subject to any other Lien
other than Permitted Liens of the types described in clauses (a) through (c) of
the definition thereof; (e) the real property subject to such Mortgage is free
of all structural defects, environmental conditions or other adverse matters
except for defects, conditions or matters individually or collectively which are
not material to the profitable operation of such real property; (f) such real
property is occupied and is in operation (or will be in operation after the
completion of construction (which is otherwise permitted hereunder) with respect
to such real property); (g) any required principal, interest or other payment
due under such promissory note is not more than 60 days past due; and (h) there
exists no default or event of default under such promissory note.
"ERISA" means the Employee Retirement Income Security Act of 1974, as the
-----
same may be supplemented or amended from time to time.
"ERISA Group" means the Borrowers, any other Subsidiary of any of the
------------
Borrowers and all members of a controlled group of corporations and all trades
or businesses (whether or not incorporated) under common control which, together
with the Borrowers or any other Subsidiary of any of the Borrowers, are treated
as a single employer under Section 414 of the Internal Revenue Code.
"Event of Default" means any of the events specified in Section 8 hereof.
----------------
"Excluded Asset" means either a lease by any of the Borrowers, as lessor,
--------------
of a real property asset, or a promissory note held by any of the Borrowers
which is secured by a Mortgage on real property, in either case where (a) any
required base rental payment, or principal or interest payment, as the case may
be, is more than 60 days past due or (b) in the case of a lease wherein the
tenant is the subject of a Bankruptcy Proceeding, such lease has been rejected
in bankruptcy; provided that assets with respect to real property subject to a
lease rejected in bankruptcy shall cease to be considered Excluded Assets once
such real property has been re-leased to a third-party which is not otherwise
subject to clause (a) or (b) above.
"Exsting Agreement" has the meaning specified in the Background section
------------------
hereof.
"Existing Note" has the meaning specified in the Background section
--------------
hereof.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
------------------
per annum equal for each day during such period to the weighted average of the
rates per annum, rounded upward to the nearest one-hundredth of one percent
(1/100%), on overnight federal funds transactions with members of the Federal
Reserve System, arranged by federal funds brokers, as published for such day (or
if such day is not a Business Day, for the next preceding Business Day) by the
Board of Governors of the Federal Reserve System in Publication H.15 (519), or,
if such rate is not published for any day which is a Business Day, the average
of the quotations for such day for such transactions received by the Agent from
three (3) federal funds brokers of recognized standing selected by the Agent.
"Finance Lease" means a lease of a real property asset which would be
--------------
categorized as a capital lease under GAAP.
"Fixed Charges" means, for any accounting period, the sum of (a) Interest
-------------
Expense for such period plus (b) regularly scheduled principal payments on Debt
of the Borrowers during such period, including, without limitation, the
principal component of all payments made in respect of Capital Lease
Obligations, but excluding any scheduled balloon, bullet or similar principal
payment which repays such Debt in full plus (c) all Restricted Payments paid or
accrued during such period in respect of any shares of preferred stock or other
equity interest of any Borrower which, in each instance, are entitled to
preference or priority in respect of the payment of dividends or distribution of
assets upon liquidation or both over any other capital stock or other equity
interest in any such Person, excluding, however, from this clause (c) any
dividends, distributions or payments payable to CNLR or any of its Subsidiaries.
"Funding" means Net Lease Funding, Inc., a Maryland corporation, and
-------
its successors.
"Funds Available for Distribution" means, for any accounting period, (a)
--------------------------------
Funds From Operations for such period minus (b) the aggregate amount of capital
expenditures actually incurred by the Borrowers during such period, excluding
(i) any capital expenditures which directly result in an aggregate increase in
the square footage of real property assets owned by the Borrowers which are
available for lease, and (ii) any capital expenditures made in connection with
the acquisition of real property assets, provided that such capital expenditures
are fully reflected in the budget relating to such acquisition, and provided
further that such capital expenditures are made within twelve months following
consummation of such acquisition of real property assets.
"Funds From Operations" means, for a given period, (i) net earnings of the
---------------------
Borrowers (before minority interests, extraordinary and non-recurring items and
all Advisor Acquisition Costs) for such period minus (or plus) (ii) gains (or
losses) from debt restructuring and sales of property during such period plus
(iii) depreciation and amortization of real property assets and the principal
component of all payments in respect of Finance Leases for such period, and
after adjustments for unconsolidated partnerships and joint ventures.
"Generally Accepted Accounting Principles" or "GAAP" means those
----------------------------------------------
principles of accounting set forth in Opinions of the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants or
which have other substantial authoritative support and are applicable in the
circumstances as of the date of any report required herein or as of the date of
an application of such principles as required herein.
"Governmental Acts" shall have the meaning specified in Section 2.19(b)
------------------
hereof.
"Governmental Authority" shall mean, as to any Person, any government (or
-----------------------
any political subdivision or jurisdiction thereof), court, bureau, agency or
other governmental authority having jurisdiction over such Person or any of its
business, operations or properties.
"Gross Lease Revenues" means, for a given period, the aggregate income of
--------------------
the Borrowers from Finance Leases and from leases of real property assets which
are not Finance Leases, excluding (a) with respect to such leases that are not
Finance Leases, straight line rent adjustments (reported in the consolidated
financial statements of the Borrowers for purposes of GAAP) in respect of such
leases for such period, and (b) the principal component of all payments made in
respect of Finance Leases during such period.
"Interest Expense" means, for any period, the total interest expense
-----------------
(including, without limitation, capitalized interest expense and interest
expense attributable to Capital Lease Obligations) of the Borrowers determined
in accordance with Generally Accepted Accounting Principles applied on a
Consistent Basis.
"Interest Period" means:
---------------
(a) with respect to any LIBOR Rate Advance, each period commencing on the
date such LIBOR Rate Advance is made or the last day of the next preceding
Interest Period for such Advance and ending on the numerically corresponding day
in the first, second, third or sixth calendar month thereafter, as the Borrowers
may select, as provided in Subsections 2.2 or 2.17 hereof, except that each
Interest Period that commences on the last Business Day of a calendar month (or
on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month. In addition to such periods, the
Borrowers may request up to two Interest Periods at any time outstanding for
LIBOR Rate Advances having durations of 7 days; and
(b) with respect to any Bid Rate Loan, the period commencing on the date
such Bid Rate Loan is made and ending on any Business Day not less than 7 nor
more than 180 days thereafter, as the Borrowers may select as provided in
Section 2.3(b).
Notwithstanding the foregoing: (i) if any Interest Period would otherwise end
after the Revolving Credit Maturity Date, such Interest Period shall end on the
Revolving Credit Maturity Date; (ii) each Interest Period that would otherwise
end on a day which is not a Business Day shall end on the next succeeding
Business Day (or, if such next succeeding Business Day falls in the next
succeeding calendar month, on the next preceding Business Day); (iii) Interest
Periods commencing on the same date for LIBOR Rate Advances constituting the
same borrowing hereunder shall be of the same duration; and (iv) any Interest
Period that begins on the last 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 end on the last Business Day of a calendar month.
"Investment Grade Rating" shall mean a rating of BBB- or better or the
-------------------------
equivalent thereof from two of the following three debt rating agencies:
Standard & Poor's, Moody's Investors Service or Fitch Investors Service;
provided, however, that at least one such rating shall be from either Standard &
Poor's or Moody's Investor Service.
"Issuing Bank" means First Union National Bank, in its capacity as a Bank
-------------
hereunder, for so long as it remains the Agent hereunder. Upon the appointment
of a successor Agent, the "Issuing Bank" shall be the successor Agent, in its
capacity as a Bank hereunder, for the purposes of all new Letters of Credit
issued hereunder.
"Joinder Agreement" means a Joinder Agreement substantially in the form of
-----------------
Exhibit "K".
"Late Fee" has the meaning specified in Subsection 2.9(c) hereof.
--------
"Lease" means all leases, rents, income, profits, and accounts receivable
-----
arising from any and every lease, rental, or occupancy agreement entered into
with respect to property owned by any Borrower.
"Letter Agreement" has the meaning specified in the Background section
-----------------
hereof.
"Letters of Credit" has the meaning specified in Subsection 2.5 hereof.
-----------------
"Letter of Credit Contingent Obligation" and "Letters of Credit Contingent
--------------------------------------
Obligations" mean the amount available for drawings and remaining undrawn under
the Letter of Credit or Letters of Credit, respectively.
"LIBOR Rate Advance" means a Revolving Credit Advance that bears interest
------------------
at a rate determined by reference to the Reserve Adjusted LIBOR Rate, as
provided in Subsection 2.8(a)(ii) hereof.
"LIBOR Reserve Requirement" means, for any day, the rate at which reserves
-------------------------
(including, without limitation, any marginal, supplemental, or emergency
reserves) are required to be maintained by member banks of the Federal Reserve
System on such day against Eurocurrency liabilities, expressed as a decimal.
"Lien" as applied to the property of any Person means: (a) any security
----
interest, encumbrance, mortgage, deed to secure debt, deed of trust, pledge,
lien, charge, Negative Pledge, conditional sale or other title retention
agreement, or other security title or encumbrance of any kind in respect of any
property of such Person, or upon the income or profits therefrom; (b) any
arrangement, express or implied, under which any property of such Person is
transferred, sequestered or otherwise identified for the purpose of subjecting
the same to the payment of Debt or performance of any other obligation in
priority to the payment of the general, unsecured creditors of such Person; (c)
the filing of any financing statement under the Uniform Commercial Code or its
equivalent in any jurisdiction; and (d) any agreement by such Person to grant,
give or otherwise convey any of the foregoing.
"Loan Documents" means the following documents: (a) this Agreement; (b)
--------------
the Notes; and (c) all other documents executed and delivered by any Borrower in
connection with this Agreement from time to time as contemplated by this
Agreement, including any modifications, amendments, or restatements of the
foregoing.
"Material Plan" means at any time a Plan or Plans having aggregate
--------------
Unfunded Liabilities in excess of $1,000,000.
"Mortgage" shall mean a mortgage, deed of trust, deed to secure debt, or a
--------
similar real property lien instrument including, without limitation, an
assignment of rents and leases.
"Negative Pledge" means a provision of any agreement (other than this
----------------
Agreement or any other Loan Document) that prohibits the creation of any lien on
any assets of a Person; provided, however, that an agreement that establishes a
maximum ratio of unsecured debt to unencumbered assets, or of secured debt to
total assets, or that otherwise conditions a Person's ability to encumber its
assets upon the maintenance of one or more specified ratios that limit such
Person's ability to encumber its assets but that do not generally prohibit the
encumbrance of its assets, or the encumbrance of specific assets, shall not
constitute a "Negative Pledge" for purposes of this Agreement.
"Net I" means Net Lease Realty I, Inc., a Maryland corporation, and its
-----
successors.
"Net II" means Net Lease Realty II, Inc., a Maryland corporation, and
------
its successors.
"Net III" means Net Lease Realty III, Inc., a Maryland corporation, and
-------
its successors.
"Net IV" means Net Lease Realty IV, Inc., a Maryland corporation, and
------
its successors.
"Note" means a Revolving Note, a Bid Rate Note or a Swingline Note.
----
"Notice of Borrowing" means a Notice of Borrowing substantially in the
--------------------
form attached hereto as Exhibit "A".
"Notice of Swingline Borrowing" means a notice in the form of Exhibit "F"
------------------------------
to be delivered to the Swingline Lender pursuant to Section 2.4(b) evidencing
the Borrowers' request for a Swingline Loan.
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
----
agency.
"Permitted Lien" means, as to any Person: (a) Liens securing taxes,
---------------
assessments and other charges or levies imposed by any governmental authority
(excluding any Lien imposed pursuant to any of the provisions of ERISA) or the
claims of materialmen, mechanics, carriers, warehousemen or landlords for labor,
materials, supplies or rentals incurred in the ordinary course of business,
which are not at the time required to be paid or discharged under Section 4.8.
or which are being contested in good faith and in accordance with applicable
law; (b) Liens consisting of deposits or pledges made, in the ordinary course of
business, in connection with, or to secure payment of, obligations under
workmen's compensation, unemployment insurance or similar applicable laws; (c)
zoning restrictions, easements, rights-of-way, covenants, reservations and other
rights, restrictions or encumbrances of record on the use of real property,
which do not materially detract from the value of such property or materially
impair the use thereof in the business of such Person; (d) Liens in existence as
of the Closing Date and set forth in Schedule 4.7; and (e) Liens, if any, in
favor of the Administrative Agent for the benefit of the Banks.
"Person" means any natural person, corporation, unincorporated
------
organization, trust, joint venture, association, company, partnership, or
government, or any agency or political subdivision of any government.
"Plan" means at any time an employee pension benefit plan (other than a
----
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Prime Rate" means, for the purposes hereof, the greater of (i) the rate
----------
of interest announced by the Agent from time to time as its Prime Rate and (ii)
the Federal Funds Rate plus 0.50%. The Agent's Prime Rate is a reference rate
used by the Agent in determining interest rates on certain loans. The Agent
loans at rates both above and below the Agent's Prime Rate, and the Borrowers
acknowledge that the Agent's Prime Rate is not represented or intended to be the
lowest or most favorable rate of interest offered by the Agent.
"Prime Rate Advance" means a Revolving Credit Advance that bears interest
------------------
at a rate determined with reference to the Prime Rate, as provided in Subsection
2.8(a)(i) hereof.
"Prior Credit" has the meaning specified in the Background section hereof.
------------
"Prior Credit Agreement" has the meaning specified in the Background
------------------------
section hereof.
"Prior Note" has the meaning specified in the Background section hereof.
----------
"Prior Security Documents" has the meaning specified in the Background
--------------------------
section hereof.
"Pro Rata Portion" means, with respect to any Bank, the quotient obtained
----------------
by dividing the Revolving Credit Commitment of such Bank by the aggregate
Revolving Credit Commitments of all of the Banks.
"Qualified REIT Subsidiary Status" means Net I's, Net II's, Net III's, Net
--------------------------------
IV's and Funding's status as a qualified REIT subsidiary as defined in ss.856(i)
of the Internal Revenue Code, as amended.
"REIT Status" means CNLR's status as a real estate investment trust as
------------
defined in ss. 856(a) of the Internal Revenue Code, as amended.
"Related Entities" means any "affiliated person" as defined under the
-----------------
provisions of the United States Internal Revenue Code.
"Renewal Note" has the meaning specified in the Background section hereof.
------------
"Required Banks" means at any time, Banks having at least 66-2/3% of the
---------------
aggregate amount of the Revolving Credit Commitments, or, if the Revolving
Credit Commitments have been terminated or reduced to zero, Banks holding at
least 66-2/3% of the principal amount of the Advances; provided that outstanding
principal amount of Advances owing to a Bank which has failed or refused to
perform any of its obligations under this Agreement or any other Loan Document
to which it is a party within the time period specified for performance of such
obligation shall be excluded for purposes hereof in making a determination of
Required Lenders and such Bank's right to participate in the administration of
this Agreement and the other Loan Documents, including without limitation, any
right to vote in respect of, to consent to or to direct any action or inaction
of the Agent, shall be suspended during the pendency of such failure or refusal.
"Reserve Adjusted LIBOR Rate" means, for any Interest Period, an interest
----------------------------
rate per annum obtained by dividing (i) the rate quoted on the Telerate page
3750 as of 11:00 a.m. London time, on the day that is two London banking days
prior to the first day of the Interest Period, in an amount substantially equal
to the LIBOR Rate Advance and with a term substantially equal to such Interest
Period, by (ii) an amount equal to 1 minus the LIBOR Reserve Requirement for
such Interest Period, the result of which shall be rounded up to the nearest
1/100 of one percent (.01%). In the event the rate quoted by Telerate is
discontinued or the rate otherwise cannot be identified, the Agent shall
determine the LIBOR Rate on the basis of quotes by major banks in the London
interbank Eurodollar market for dollar deposits in an amount substantially equal
to the LIBOR Rate Advance for a term substantially equal to the Interest Period
selected.
"Restricted Payment" means: (a) any dividend or other distribution, direct
------------------
or indirect, on account of any shares of any class of stock or other equity
interest of any Borrower or any of their Subsidiaries now or hereafter
outstanding, except a dividend payable solely in shares of that class of stock
to the holders of that class; (b) any redemption, conversion, exchange,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of stock or other equity
interest of any Borrower or any of their Subsidiaries now or hereafter
outstanding; and (c) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares of any class
of stock of any Borrower or any of its respective Subsidiaries now or hereafter
outstanding.
"Revolving Credit Advance" has the meaning specified in Subsection 2.1(a)
-------------------------
hereof.
"Revolving Credit Commitment" means, as to each Bank, such Bank's
-----------------------------
obligation to make Revolving Credit Advances pursuant to Section 2.1. and to
issue (in the case of the Issuing Bank) or participate in (in the case of the
other Banks) Letters of Credit pursuant to Section 2.5, in an amount up to, but
not exceeding (but in the case of the Issuing Bank excluding the aggregate
amount of participations in Letters of Credit held by the other Banks), the
amount set forth for such Bank on its signature page hereto as such Bank's
"Revolving Credit Commitment" or as set forth in the applicable Assignment and
Acceptance Agreement, or as the same may be adjusted from time to time as
appropriate to reflect any assignments to or by such Bank effected in accordance
with Section 11.4.
"Revolving Credit Facility" means the commitments of the Banks to make
---------------------------
Revolving Credit Advances to and issue Letters of Credit in favor of the
Borrowers pursuant to Subsection 2.1 hereof.
"Revolving Credit Maturity Date" shall mean October 31, 2003 (as such date
------------------------------
may be extended pursuant to the provisions hereof) or if such date is not a
Business Day, the next succeeding Business Day, or such earlier date on which
all of the Advances shall be due and payable in full pursuant to the terms
hereof.
"Revolving Note" has the meaning specified in Subsection 2.7 hereof.
--------------
"Second Renewal Note" has the meaning specified in the Background section
-------------------
hereof.
"Secured Debt" means all Debt of the Borrowers which is secured by a
-------------
Mortgage or other Lien.
"September, 1996 Agreement" has the meaning specified in the Background
---------------------------
section hereof.
"Subsidiary" means, for any Person, any corporation, partnership or other
----------
entity of which at least a majority of the securities or other ownership
interests having by the terms thereof ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions of such
corporation, partnership or other entity (without regard to the occurrence of
any contingency) is at the time directly or indirectly owned or controlled by
such Person or one or more Subsidiaries of such Person or by such Person and one
or more Subsidiaries of such Person. "Wholly-Owned Subsidiary" means any such
corporation, partnership or other entity of which all of the equity securities
or other ownership interests (other than, in the case of a corporation,
directors' qualifying shares) are so owned or controlled.
"Swingline Commitment" means the Swingline Lender's obligation to make
---------------------
Swingline Loans pursuant to Section 2.4 in an amount up to, but not exceeding,
$10,000,000, as such amount may be reduced from time to time in accordance with
the terms hereof.
"Swingline Lender" means First Union National Bank and its respective
-----------------
successors and assigns.
"Swingline Loan" means a loan made by the Swingline Lender to the
---------------
Borrowers pursuant to Section 2.4(a).
"Swingline Note" means the promissory note of the Borrowers payable to the
--------------
order of the Swingline Lender in a principal amount equal to the amount of the
Swingline Commitment as originally in effect and otherwise duly completed,
substantially in the form of Exhibit "G".
"Tangible Net Worth" means total stockholder's equity of the Borrowers
-------------------
determined in accordance with GAAP, plus (i) accumulated depreciation and
amortization to the extent reflected in the determination of stockholder's
equity of the Borrowers, plus (ii) the accumulated principal component of all
payments made to the Borrowers in respect of Finance Leases to the extent
reflected in the determination of stockholder's equity of the Borrowers, minus
(iii) the aggregate value of all intangible assets of the Borrowers.
"Total Assets" means the total assets of the Borrowers excluding
-------------
accumulated depreciation, amortization and the principal component of all
payments made to the Borrowers in respect of Finance Leases, all computed in
accordance with Generally Accepted Accounting Principles applied on a Consistent
Basis.
"Total Intangible Assets" of the Borrowers shall be determined in
-------------------------
accordance with Generally Accepted Accounting Principles applied on a Consistent
Basis, but in any event shall be deemed to include the excess of costs over the
assets of acquired businesses, formulae, trademarks, patents, patent rights, and
deferred expenses (including, but not limited to, unamortized debt discount
(offset by any unamortized debt premium) and expense, organization expense,
experimental and developmental expenses, but excluding prepaid expenses).
"Total Liabilities" means the total liabilities of the Borrowers
-------------------
(including, without limitation, all obligations or indebtedness of any other
Person which the Borrowers have assumed, guaranteed, or endorsed or in
connection with which the Borrowers have otherwise become directly or
contingently liable and the amount of any outstanding Letters of Credit)
computed in accordance with Generally Accepted Accounting Principles applied on
a Consistent Basis.
"Type" refers to the distinction among Revolving Credit Advances bearing
----
interest based on the Prime Rate and the Reserve Adjusted LIBOR Rate.
"Unencumbered Assets" means the sum (without duplication) of (a) the
--------------------
aggregate book value of all real property assets of the Borrowers which are not
encumbered by one or more Liens, other than Permitted Liens plus (b) accumulated
depreciation and amortization with respect to such real property assets of the
Borrowers plus (c) all of the Borrowers' cash and cash equivalents (excluding
tenant deposits and other cash and cash equivalents the disposition of which is
restricted in any way); provided, however, that if the aggregate value of cash
and cash equivalents exceeds two percent (2%) of Total Assets, the value of such
cash and cash equivalents in excess of two percent (2%) of Total Assets shall be
excluded in the determination of Unencumbered Assets hereunder, plus (d) the
accumulated principal component of all payments made to the Borrowers in respect
of Finance Leases plus (e) Eligible Mortgage Notes Receivable; provided,
however, that any such Eligible Mortgage Notes Receivable pursuant to which
CNLRS or a Wholly-Owned Subsidiary of CNLRS is the obligor shall cease to be
included in determining Unencumbered Assets if CNLRS or such Wholly-Owned
Subsidiary has not become a Borrower hereunder pursuant to Section 6.20 hereof
on or before March 31, 2001; provided further, however, that if the aggregate
value of Eligible Mortgage Notes Receivable exceeds fifteen percent (15%) of
Total Assets, the value of such Eligible Mortgage Notes Receivable in excess of
fifteen percent (15%) of Total Assets shall be excluded in the determination of
Unencumbered Assets hereunder, all as determined in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
---------------------
amount (if any) by which (a) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (b) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"Unsecured Debt" means all Debt of Borrowers which is not secured by
---------------
Mortgages or any other Liens on one or more properties or assets of any
Borrower.
"Up-REIT Borrower" means a limited partnership which is a Subsidiary of
-----------------
CNLR and which becomes a Borrower hereunder pursuant to Section 6.20 hereof.
1.2 Other Definitional Provisions.
(a) The terms "material" and "materially" shall have the meanings
ascribed to such terms under Generally Accepted Accounting Principles as
such would be applied to the business of the Borrowers, except as the
context shall clearly otherwise require;
(b) all of the terms defined in this Agreement shall have such
defined meanings when used in other documents issued under, or delivered
pursuant to, this Agreement unless the context shall otherwise require;
(c) all terms defined in this Agreement in the singular shall have
comparable meanings when used in the plural, and vice versa;
(d) accounting terms to the extent not otherwise defined shall have
the respective meanings given them under, and shall be construed in
accordance with, Generally Accepted Accounting Principles;
(e) terms defined in, or by reference to, Article 9 of the Uniform
Commercial Code as adopted in Florida to the extent not otherwise defined
herein shall have the respective meanings given to them in Article 9 with
the exception of the word "document" unless the context clearly requires
such meaning;
(f) the words "hereby," "hereto," "hereof," "herein," "hereunder,"
and words of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision of this
Agreement;
(g) the masculine and neuter genders are used herein and
whenever used shall include the masculine, feminine, and neuter as
well; and
(h) wherever in this Agreement any of the parties hereto is referred
to, such reference shall be deemed to include the successors and assigns
of such parties unless the context shall expressly provide otherwise.
SECTION 2. THE CREDIT
2.1 The Revolving Credit Facility.
(a) Subject to the terms and conditions of this Agreement, each Bank
severally and not jointly agrees, that during the period from the Effective Date
to but excluding the Revolving Credit Maturity Date and so long as there exists
no Event of Default or circumstance which with the giving of notice or passage
of time would become an Event of Default, it will make advances to the Borrowers
(all such advances and the Bank's Pro Rata Portion of any unreimbursed amounts
paid under Letters of Credit referred to herein as "Revolving Credit Advances";
the term "Revolving Credit Advances" shall not include any advances which
constitute Bid Rate Loans) in an aggregate amount which, when aggregated with
Advances comprised of such Bank's Pro Rata Portion of unreimbursed amounts paid
under Letters of Credit and with the Bank's Pro Rata Portion of Letter of Credit
Contingent Obligations, does not exceed at any time such Bank's Revolving Credit
Commitment. During the aforesaid period, the Borrowers may borrow, repay, and
reborrow, and request the issuance of Letters of Credit in accordance with the
terms hereof. The Borrowers acknowledge that the amount outstanding at any time
pursuant to this Agreement and the other Loan Documents is as reflected in the
books and records of the Agent and shall be conclusive and binding absent
manifest error. Agent will, upon request, furnish the Borrowers with a statement
of the amount outstanding pursuant to this Agreement and the other Loan
Documents as reflected in the books and records of the Agent at the time of any
such request.
(b) If at any time the principal amounts outstanding under any
Bank's Revolving Credit Advances (including Advances in respect of unreimbursed
amounts paid under Letters of Credit), together with the aggregate amount of the
Bank's Pro Rata Portion of the Letter of Credit Contingent Obligations, exceed
such Bank's Revolving Credit Commitment, the Borrowers shall prepay the Bank's
Revolving Credit Advances so as to cause the aggregate outstanding amounts
thereunder to be equal to or less than such Bank's Revolving Credit Commitment.
(c) Subject to the further terms and limitations of this Agreement,
the Borrowers may designate Advances requested under the Revolving Credit
Facility and Advances made pursuant to draws under Letters of Credit issued
under the Revolving Credit Facility to be LIBOR Rate Advances or Prime Rate
Advances, and the Borrowers may Convert Revolving Credit Advances of one Type
into Revolving Credit Advances of another Type (as provided in, and pursuant to
the terms and conditions set forth in, Subsection 2.17 hereof), or Continue
Revolving Credit Advances of one Type as Revolving Credit Advances of the same
Type (as provided in, and pursuant to the terms and conditions set forth in,
Subsection 2.17 hereof). All Revolving Credit Advances shall be made, Converted,
or Continued by the Banks simultaneously and proportionately to their Pro Rata
Portion of the aggregate Revolving Credit Commitments.
(d) On the Closing Date, the aggregate outstanding principal amount
under the Existing Agreement shall be automatically converted to an equivalent
principal amount of Revolving Credit Advances hereunder (which shall be Prime
Rate Advances unless otherwise specified by the Borrowers in accordance with the
procedures contained in Subsection 2.17 hereof), allocated to the then existing
Banks pro rata in accordance with their Pro Rata Portions, and shall be deemed
to be Revolving Credit Advances and included in the Banks' Revolving Credit
Commitments for all purposes hereof.
(e) The Borrowers shall have the right to request increases in the
aggregate amount of the Revolving Credit Commitments from time to time (provided
that after giving effect to any such increase the aggregate amount of the
Revolving Credit Commitments shall not exceed $250,000,000) by providing written
notice to the Agent, which notice shall be irrevocable once given. The
Borrowers, prior to requesting an increase in the Revolving Credit Commitments
pursuant to this subsection must offer in writing each Bank the right to
increase its Revolving Credit Commitment by an amount so that such Bank's Pro
Rata Portion shall not be decreased as a result of such increase in the
Revolving Credit Commitments. If a Bank does not accept the Borrowers' offer to
increase its Revolving Credit Commitment as provided in the preceding sentence
within 10 Business Days of the receipt of such offer, such offer shall be deemed
rejected by such Bank. No Bank shall be required to increase its Revolving
Credit Commitment. In the event a new Bank or Banks become a party to this
Agreement, or if any existing Bank agrees to increase its Revolving Credit
Commitment, such Bank shall on the date it becomes a Bank hereunder (or
increases its Revolving Credit Commitment, in the case of an existing Bank) (and
as a condition thereto) purchase from the other Banks its Bank's Pro Rata
Portion (as determined after giving effect to the increase of Revolving Credit
Commitments) of any outstanding Revolving Credit Advances, by making available
to the Agent for the account of such other Banks at the Agent's principal
office, in same day funds, an amount equal to the sum of (A) the portion of the
outstanding principal amount of such Revolving Credit Advances to be purchased
by such Bank plus (B) the aggregate amount of payments previously made by such
Bank under Section 2.5.(f) which have not been repaid plus (C) interest accrued
and unpaid to and as of such date on such portion of the outstanding principal
amount of such Revolving Credit Advance. Upon any such assignment, the assigning
Bank shall be deemed to represent and warrant to such other Bank that such
assigning Bank is the legal and beneficial owner of such interest being assigned
by it, but makes no other representation or warranty and assumes no
responsibility with respect to any Revolving Credit Advance being assigned, the
Loan Documents or any party to this Agreement. No increase of the Revolving
Credit Commitments may be effected under this subsection if a default or Event
of Default shall be in existence on the effective date of such increase. In
connection with any increase in the aggregate amount of the Revolving Credit
Commitments pursuant to this subsection, the Borrowers shall make appropriate
arrangements so that each new Bank, and any existing Bank increasing its
Revolving Credit Commitment, receives a new or replacement Revolving Note, as
appropriate, in the amount of such Bank's Revolving Credit Commitment within 2
Business Days of the effectiveness of the applicable increase in the aggregate
amount of Revolving Credit Commitments.
2.2 Advance Requests and Funding Mechanics.
(a) The Revolving Credit Advances (other than Advances made by
honoring a draft drawn under a Letter of Credit) shall be made upon irrevocable
notice from the Borrowers to the Agent (effective upon receipt) no later than
10:00 a.m. (Eastern Time) three (3) Business Days prior to the date of any
proposed LIBOR Rate Advances and no later than 10:00 a.m. (Eastern Time) one (1)
Business Day prior to the date of any proposed Prime Rate Advances. Each such
notice shall be in writing, or shall be by telephone or telecopier, confirmed
immediately in writing, specifying the proposed (i) date of borrowing, (ii)
aggregate amount of borrowing, (iii) Type of Advances, (iv) in the case of LIBOR
Rate Advances, the initial Interest Period for such Advances, and (v) manner of
receipt of the funds, and shall be evidenced by an executed Notice of Borrowing.
Each request for such Advances shall be in the aggregate minimum amount of
$100,000.00 or an integral multiple thereof, provided however, that with respect
to LIBOR Rate Advances, each request shall be in the aggregate minimum amount of
$1,000,000.00 and in integral multiples of $100,000.00.
(b) Notwithstanding the foregoing, the Borrowers may not select any
LIBOR Rate Advances if (i) the obligation of any of the Banks to make LIBOR Rate
Advances is suspended pursuant to Subsections 2.17(b)(iii) or 2.18(c) or (d)
hereof, or (ii) after giving effect to such Advances, the aggregate number of
different Interest Periods for outstanding LIBOR Rate Advances and Bid Rate
Loans is greater than ten (10) (for purposes of this clause, Interest Periods of
the same duration, but commencing on different dates, shall be treated as
different Interest Periods).
(c) Neither the Agent nor any Bank shall incur any liability to the
Borrowers in acting upon any telephonic notice referred to herein that the Agent
believes in good faith to have been given by a duly authorized officer or other
person authorized to borrow on behalf of the Borrowers or for otherwise acting
in good faith under this Subsection, and, upon funding of Advances by the Banks
in accordance with this Agreement pursuant to any telephonic notice, the
Borrowers shall be deemed to have received Advances hereunder.
(d) Each notice of a proposed borrowing of Revolving Credit Advances
shall be irrevocable and binding on the Borrowers. In the case of LIBOR Rate
Advances, the Borrowers shall indemnify each Bank against any loss, costs, or
expense incurred by such Bank as a result of any failure of the Borrowers to
fulfill on or before the date specified for such Advance all conditions for such
borrowing set forth in Section 5 hereof, or as a result of any purported
revocation of such Advance request or any other reason for nonfunding of such
Advance, including, without limitation, any loss (including loss of anticipated
profits), cost, or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by the Bank to fund the Advance, when such
Advance is not made on such date, as more fully described in Subsection 2.15
hereof.
(e) The Agent shall give each Bank notice of each request for
Revolving Credit Advances in writing or by telephone or telecopier promptly
after receipt of such request, provided that if the request was not received
prior to 10:00 a.m. (Eastern Time), the Agent shall give such notice no later
than 9:00 a.m. (Eastern Time) on the following Business Day. Not later than 2:00
p.m. (Eastern Time) on the date specified in such notice, each Bank shall make
available to the Agent, at its Lending Office, in immediately available funds,
the Bank's Pro Rata Portion of such borrowing. After the Agent's receipt of such
funds, the Agent will make such funds available to the Borrowers at the Agent's
office referred to above no later than 2:00 p.m. (Eastern Time) on the date
specified in the notice.
(f) Unless the Agent shall have received notice from a Bank prior to
the date of any proposed borrowing that such Bank will not make available to the
Agent such Bank's Pro Rata Portion of the borrowing, the Agent may assume that
such Bank has made such portion available to the Agent on the date of such
borrowing in accordance with the provisions hereof. The Agent may, in reliance
upon such assumption (but shall not be required to), make available to the
Borrowers a corresponding amount. If and to the extent that a Bank shall not
have so made such Bank's Pro Rata Portion of a borrowing available to the Agent,
such Bank and the Borrowers severally agree to repay to the Agent forthwith upon
demand, to the extent not collected from the other, such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrowers until the date such amount is repaid to the Agent at
(i) in the case of the Borrowers, the interest rate applicable at the time to
the Advances comprising the borrowing, and (ii) in the case of the Bank, the
Federal Funds Rate; provided, however, that the Borrowers shall not be required
------------------
to so repay such amount if and to the extent that the Agent, in its capacity as
a Bank, has availability therefor under its Revolving Credit Commitment. In such
circumstances, the Agent, in its capacity as a Bank, may, but shall not be
required to, make an Advance under its Revolving Credit Commitment in respect of
such amount. If the delinquent Bank shall repay to the Agent (in its capacity as
Agent or Bank, as appropriate) such amount (with interest), the amount so repaid
shall constitute the Bank's Advance as part of such borrowing for purposes of
this Agreement. If the Borrowers shall repay to the Agent such corresponding
amount, or if the Agent, in its capacity as a Bank, makes an Advance therefor,
such payment or Advance shall not relieve the delinquent Bank of its obligations
hereunder.
(g) The failure of any Bank to make an Advance to be made by it as
part of any borrowing, when required to do so by the provisions hereof, shall
not relieve any other Bank of its obligation hereunder to make its Advance on
the date of such borrowing, but no Bank shall be responsible for the failure of
any other Bank to make the Advance to be made by such other Bank. Nothing herein
shall prejudice any rights or remedies that the Borrowers may have against any
Bank as a result of any failure by such Bank to make an Advance hereunder if
such failure is in breach of its obligations hereunder.
2.3 Bid Rate Loans.
(a) Bid Rate Loans. In addition to borrowings of Revolving Credit
----------------
Advances, at any time during the period from the Effective Date to but excluding
the Revolving Credit Maturity Date, and so long as the Borrower has been
assigned and at such time maintains an Investment Grade Rating, the Borrowers
may, as set forth in this Section, request the Banks to make offers to make Bid
Rate Loans to the Borrowers in lawful currency of the United States of America.
The Banks may, but shall have no obligation to, make such offers and the
Borrowers may, but shall have no obligation to, accept any such offers in the
manner set forth in this Section.
(b) Requests for Bid Rate Loans. When the Borrowers wish to request from
---------------------------
the Banks offers to make Bid Rate Loans, they shall give the Agent notice (a
"Bid Rate Quote Request") so as to be received no later than 10:00 a.m. on the
Business Day next preceding the date of borrowing proposed therein (or such
other time and date as the Borrowers and the Agent, with the consent of the
Required Banks, may agree). The Agent shall deliver to each Bank a copy of each
Bid Rate Quote Request promptly upon receipt thereof by the Agent. The Borrowers
may request offers to make Bid Rate Loans for up to [three] different Interest
Periods in each Bid Rate Quote Request (for which purpose Interest Periods in
different lettered clauses of the definition of the term "Interest Period" shall
be deemed to be different Interest Periods even if they are coterminous);
provided that the request for each separate Interest Period shall be deemed to
be a separate Bid Rate Quote Request for a separate borrowing (a "Bid Rate
Borrowing"). Each Bid Rate Quote Request shall be substantially in the form of
Exhibit "H" and shall specify as to each Bid Rate Borrowing:
(i) the proposed date of such borrowing, which shall be a
Business Day;
(ii) the aggregate amount of such Bid Rate Borrowing, which shall be
in the minimum amount of $5,000,000 and integral multiples of $500,000 in
excess thereof and which shall not cause any of the limits specified in
Section 2.20 to be violated; and
(iii) the duration of the Interest Period applicable thereto,
subject to the limitations set forth in the definition of the term
"Interest Period."
Except as otherwise provided in this subsection (b), no Bid Rate Quote Request
shall be given (x) within five Business Days (or such other number of days as
the Borrowers and the Agent, with the consent of the Required Banks, may agree)
of the giving of any other Bid Rate Quote Request or (y) if after the making of
the requested Bid Rate Loan, the aggregate number of different Interest Periods
for outstanding LIBOR Rate Advances and Bid Rate Loans is greater than ten (10)
(for purposes of this clause, Interest Periods of the same duration, but
commencing on different dates, shall be treated as different Interest Periods).
(c) Bid Rate Quotes.
---------------
(i) Each Bank may submit one or more Bid Rate Quotes, each
containing an offer to make a Bid Rate Loan in response to any Bid Rate
Quote Request; provided that, if the Borrowers' request under Section
2.3(b) specified more than one Interest Period, such Bank may make a
single submission containing one or more Bid Rate Quotes for each such
Interest Period. Each Bid Rate Quote must be submitted to the Agent not
later than 12:00 noon on the proposed date of borrowing (or such other
time and date as the Borrowers and the Agent, with the consent of the
Required Banks, may agree; provided that the Bank then acting as Agent may
submit a Bid Rate Quote only if it notifies the Borrowers of the terms of
the offer contained therein not later than 11:30 a.m. on the proposed date
of such borrowing. Subject to Sections 5 and 8, any Bid Rate Quote so made
shall be irrevocable except with the consent of the Agent given at the
request of the Borrowers.
(ii) Each Bid Rate Quote shall be substantially in the form of
Exhibit "I" and shall specify:
(A) the proposed date of borrowing and the Interest
Period therefor;
(B) the principal amount of the Bid Rate Loan for which each
such offer is being made; provided that the aggregate principal
amount of all Bid Rate Loans for which a Bank submits Bid Rate
Quotes (x) may be greater or less than the Revolving Credit
Commitment of such Bank but (y) shall not exceed the principal
amount of the Bid Rate Borrowing for a particular Interest Period
for which offers were requested;
(C) the rate of interest per annum (rounded upwards, if
necessary, to the nearest 1/1,000th of 1%) offered for each such Bid
Rate Loan (the "Bid Rate"); and
(D) the identity of the quoting Bank.
Unless otherwise agreed by the Agent and the Borrowers, no Bid Rate Quote
shall contain qualifying, conditional or similar language or propose terms
other than or in addition to those set forth in the applicable Bid Rate
Quote Request and, in particular, no Bid Rate Quote may be conditioned
upon acceptance by the Borrowers of all (or some specified minimum) of the
principal amount of the Bid Rate Loan for which such Bid Rate Quote is
being made.
(d) Notification by Agent. The Agent shall, as promptly as practicable
----------------------
after the Bid Rate Quotes are submitted (but in any event not later than 12:30
p.m. on the proposed date of borrowing), notify the Borrowers of the terms (i)
of any Bid Rate Quote submitted by a Bank that is in accordance with Section
2.3(c) and (ii) of any Bid Rate Quote that amends, modifies or is otherwise
inconsistent with a previous Bid Rate Quote submitted by such Bank with respect
to the same Bid Rate Quote Request. Any such subsequent Bid Rate Quote shall be
disregarded by the Agent unless such subsequent Bid Rate Quote is submitted
solely to correct a manifest error in such former Bid Rate Quote. The Agent's
notice to the Borrowers shall specify (A) the aggregate principal amount of the
Bid Rate Borrowing for which offers have been received and (B) the principal
amounts and Bid Rates so offered by each Bank (identifying the Bank that made
each Bid Rate Quote).
(e) Acceptance by Borrowers.
-----------------------
(i) Not later than 1:00 p.m. on the proposed date of borrowing (or
such other time and date as the Borrowers and the Agent, with the consent
of the Required Banks, may agree), the Borrowers shall notify the Agent of
its acceptance or nonacceptance of the offers so notified to it pursuant
to Section 2.3(d) which notice shall be in the form of Exhibit "J". In the
case of acceptance, such notice shall specify the aggregate principal
amount of offers for each Interest Period that are accepted. The failure
of the Borrowers to give such notice by such time shall constitute
nonacceptance. The Borrowers may accept any Bid Rate Quote in whole or in
part (provided any acceptance in part shall be in a minimum amount of
$5,000,000 and integral multiples of $500,000 in excess thereof); provided
that:
(A) the aggregate principal amount of each Bid Rate Borrowing
may not exceed the applicable amount set forth in the related Bid
Rate Quote Request;
(B) the aggregate principal amount of each Bid Rate Borrowing
shall comply with the provisions of Section 2.2(a) but shall not
cause the limits specified in Section 2.20 to be violated;
(C) acceptance of offers may be made only in ascending order
of Bid Rates in each case beginning with the lowest rate so offered;
and
(D) the Borrowers may not accept any offer that fails to
comply with Section 2.3(c) or otherwise fails to comply with the
requirements of this Agreement).
(ii) If offers are made by two or more Banks with the same Bid Rates
for a greater aggregate principal amount than the amount in respect of
which offers are accepted for the related Interest Period, the principal
amount of Bid Rate Loans in respect of which such offers are accepted
shall be allocated by the Agent among such Banks in proportion to the
aggregate principal amount of such offers. Determinations by the Agent of
the amounts of Bid Rate Loans shall be conclusive in the absence of
manifest error.
(f) Obligation to Make Bid Rate Loans. The Agent shall promptly (and in
---------------------------------
any event not later than 2:00 p.m. on the proposed date of borrowing) notify
each Bank that submitted a Bid Rate Quote which was accepted as to whose Bid
Rate Quote has been accepted and the amount and rate thereof. No Bank shall be
relieved of its obligation to fund a Bid Rate Loan prior to the time the
applicable Bid Rate Loan is funded. Any Bank whose offer to make any Bid Rate
Loan has been accepted shall, not later than 3:00 p.m. on the date specified for
the making of such Advance, make the amount of such Advance available to the
Agent at its office in immediately available funds, for account of the
Borrowers. The amount so received by the Agent shall, subject to the terms and
conditions of this Agreement, be made available to the Borrowers no later than
4:00 p.m. on such date by depositing the same, in immediately available funds,
in an account of the Borrowers designated by the Borrowers.
(g) No Effect on Commitment. Except as otherwise provided herein, the
-----------------------
amount of any Bid Rate Loan made by any Bank shall not constitute a utilization
of such Bank's Revolving Credit Commitment.
2.4 Swingline Loans.
(a) Swingline Loans. Subject to the terms and conditions hereof, during
--------------
the period from the Effective Date to but excluding the Revolving Credit
Maturity Date, the Swingline Lender agrees to make Swingline Loans to the
Borrowers in an aggregate principal amount at any one time outstanding up to,
but not exceeding, the amount of the Swingline Commitment. If at any time the
aggregate principal amount of the Swingline Loans outstanding at such time
exceeds the Swingline Commitment in effect at such time, the Borrowers shall
immediately pay the Swingline Lender the amount of such excess. Subject to the
terms and conditions of this Agreement, the Borrowers may borrow, repay and
reborrow Swingline Loans hereunder.
(b) Procedure for Borrowing Swingline Loans. The Borrowers shall give the
---------------------------------------
Swingline Lender notice pursuant to a Notice of Swingline Borrowing or
telephonic notice of each borrowing of a Swingline Loan. Each Notice of
Swingline Borrowing shall be delivered to the Swingline Lender no later than
3:00 p.m. on the proposed date of such borrowing. Any such telephonic notice
shall include all information to be specified in a written Notice of Swingline
Borrowing and shall be promptly confirmed in writing by the Borrowers pursuant
to a Notice of Swingline Borrowing sent to the Swingline Lender by telecopy on
the same day of the giving of such telephonic notice. Not later than 4:00 p.m.
on the date of the requested Swingline Loan and subject to satisfaction of the
applicable conditions set forth in Section 5 for such borrowing, the Swingline
Lender will make the proceeds of such Swingline Loan available to the Borrowers
in lawful currency of the United States of America, in immediately available
funds, at the account specified by the Borrowers in the Notice of Swingline
Borrowing.
(c) Interest. Swingline Loans shall bear interest at a per annum rate
--------
equal to the Prime Rate or at such other rate or rates as the Borrowers and the
Swingline Lender may agree from time to time in writing. Interest payable on
Swingline Loans is solely for the account of the Swingline Lender. All accrued
and unpaid interest on Swingline Loans shall be payable on the dates and in the
manner provided in Section 2.9 with respect to interest on Prime Rate Advances
(except as the Swingline Lender and the Borrowers may otherwise agree in
connection with any particular Swingline Loan).
(d) Swingline Loan Amounts, Etc. Each Swingline Loan shall be in the
-----------------------------
minimum amount of $100,000 and integral multiples of $25,000 in excess thereof,
or such other minimum amounts agreed to by the Swingline Lender and the
Borrower. Any voluntary prepayment of a Swingline Loan must be in integral
multiples of $100,000 or the aggregate principal amount of all outstanding
Swingline Loans (or such other minimum amounts upon which the Swingline Lender
and the Borrowers may agree) and in connection with any such prepayment, the
Borrowers must give the Swingline Lender prior written notice thereof no later
than 4:00 p.m. on the date of such prepayment. The Swingline Loans shall, in
addition to this Agreement, be evidenced by the Swingline Note.
(e) Repayment and Participations of Swingline Loans. The Borrowers agree
------------------------------------------------
to repay each Swingline Loan within one Business Day of demand therefor by the
Swingline Lender and in any event, within 5 Business Days after the date such
Swingline Loan was made. Notwithstanding the foregoing, the Borrower shall repay
the entire outstanding principal amount of, and all accrued but unpaid interest
on, the Swingline Loans on the Revolving Credit Maturity Date (or such earlier
date as the Swingline Lender and the Borrower may agree in writing). In lieu of
demanding repayment of any outstanding Swingline Loan from the Borrowers, the
Swingline Lender may, on behalf of the Borrowers (which hereby irrevocably
direct the Swingline Lender to act on their behalf), request a borrowing of
Revolving Credit Advances which are Prime Rate Advances from the Banks in an
amount equal to the principal balance of such Swingline Loan. The amount
limitations of Section 2.2(a) shall not apply to any borrowing of Revolving
Credit Advances made pursuant to this subsection. Each Bank will make available
to the Agent for the account of Swingline Lender, in immediately available
funds, the proceeds of such Prime Rate Advance to be made by such Bank. The
Agent shall pay the proceeds of such LIBOR Rate Advances to the Swingline
Lender, which shall apply such proceeds to repay such Swingline Loan. If the
Banks are prohibited from making Advances required to be made under this
subsection for any reason whatsoever, including without limitation, the
occurrence of any of the Events of Default described in Sections 8.4 or 8.5,
each Bank shall purchase from the Swingline Lender, without recourse or
warranty, an undivided interest and participation to the extent of such Bank's
Pro Rata Portion of such Swingline Loan, by directly purchasing a participation
in such Swingline Loan in such amount (regardless of whether or not the
Borrowers have submitted a Notice of Borrowing and whether or not the Revolving
Credit Commitments are then in effect, any Event of Default exists or all the
Advances have been accelerated) and paying the proceeds thereof to the Agent on
behalf of the Swingline Lender in lawful currency of the United States of
America and in immediately available funds. If such amount is not in fact made
available to the Swingline Lender by any Bank, the Swingline Lender shall be
entitled to recover such amount on demand from such Bank, together with accrued
interest thereon for each day from the date of demand thereof, at the Federal
Funds Rate. If such Bank does not pay such amount forthwith upon the Swingline
Lender's demand therefor, and until such time as such Bank makes the required
payment, the Swingline Lender shall be deemed to continue to have outstanding
Swingline Loans in the amount of such unpaid participation obligation for all
purposes of the Loan Documents (other than those provisions requiring the other
Banks to purchase a participation therein). Further, such Bank shall be deemed
to have assigned any and all payments made of principal and interest on its
Advances, and any other amounts due to it hereunder, to the Swingline Lender to
fund Swingline Loans in the amount of the participation in Swingline Loans that
such Bank failed to purchase pursuant to this Section until such amount has been
purchased (as a result of such assignment or otherwise). A Bank's obligation to
purchase participations in Swingline Loans under this Section shall be absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including without limitation, (i) any claim of setoff, counterclaim, recoupment,
defense or other right which such Bank or any other Person may have or claim
against the Agent, the Swingline Lender or any other Person, (ii) the occurrence
or continuation of an Event of Default (including without limitation, any of the
Defaults or Events of Default described in Sections 8.4 or 8.5) or the
termination of any Bank's Revolving Credit Commitment, (iii) the existence (or
alleged existence) of an event of condition which has had or could have a
materially adverse effect on the business, assets, liabilities, financial
condition, results of operations or business prospects of any Borrower, (iv) any
breach of any Loan Document by the Agent, any Bank or any Borrower or (v) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing.
2.5 Letters of Credit.
(a) Subject to the terms and conditions hereof, including but not
limited to the limitations set forth in Subsection 2.1(a) and 2.6 hereof, the
Revolving Credit Commitments may be utilized, upon the request of the Borrowers,
for the issuance of standby letters of credit by the Issuing Bank ("Letters of
Credit"). Each Letter of Credit issued hereunder shall be in such form, contain
such terms, and support such transactions as shall be satisfactory to the
Issuing Bank in its sole discretion. No Letter of Credit shall have a term
extending beyond the earlier of (i) one year after the date of issuance or (ii)
the Revolving Credit Maturity Date.
(b) Each Letter of Credit shall be requested by the Borrowers by
irrevocable notice (effective upon receipt) from the Borrowers to the Issuing
Bank and the Agent (which shall promptly give notice thereof to the Banks) no
later than 10:00 a.m. (Eastern Time) three (3) Business Days prior to the date
of the proposed issuance of the Letter of Credit. Each such notice from the
Borrowers shall be in writing, or shall be by telephone or telecopier, confirmed
immediately in writing, specifying the proposed (i) date of issuance of such
Letter of Credit, (ii) maximum amount of such Letter of Credit, (iii) expiration
date of such Letter of Credit, (iv) name and address of the beneficiary of such
Letter of Credit, (v) form of such Letter of Credit, and (vi) description of
transaction supported by the Letter of Credit, and shall be evidenced by an
executed Notice of Borrowing. The request shall be accompanied by such other
applications, agreements, information, and documents as the Agent or the Issuing
Bank shall require, and the payment of the fees and commissions described in
Subsection 2.10 hereof.
(c) If the form of the Letter of Credit and transaction supported by
the Letter of Credit is satisfactory to the Issuing Bank in its sole discretion,
and subject to the other terms and conditions of this Agreement, the Issuing
Bank will make such Letter of Credit available to the Borrowers designated in
the Notice of Borrowing at the Issuing Bank's Lending Office described in the
signature pages hereof or as otherwise agreed with the Borrowers in connection
with such issuance.
(d) Upon the issuance of any Letter of Credit by the Issuing Bank,
the Issuing Bank shall be deemed, irrevocably and without further action by any
party hereto, to have sold to each Bank, and each Bank shall be deemed,
irrevocably and without further action by any party hereto, to have purchased
from the Issuing Bank, an undivided interest and participation in, to the extent
of such Bank's Pro Rata Portion, the Letter of Credit and the related Letter of
Credit Contingent Obligation. The Issuing Bank shall notify the Agent of the
issuance of any Letter of Credit, and the Agent shall promptly notify each Bank
of such Bank's Pro Rata Portion of the amount of the Letter of Credit and the
related Letter of Credit Contingent Obligation. Each Bank's Pro Rata Portion of
the Letter of Credit Contingent Obligation shall be deemed to utilize the Bank's
Revolving Credit Commitment and reduce the availability thereunder, until such
time as the Letter of Credit Contingent Obligation terminates by virtue of
expiration of or payment under the Letter of Credit.
(e) The payment by the Issuing Bank of a draft drawn under a Letter
of Credit shall constitute for all purposes hereunder the making by the Issuing
Bank of a Revolving Credit Advance (which shall be a Prime Rate Advance unless
otherwise specified by the Borrowers in accordance with the procedures contained
in Subsection 2.17 hereof), in the amount of such payment (but without any
requirement for compliance with the requirements for the making of a Revolving
Credit Advance contained in Subsections 2.1 and 2.2 and Section 5 hereof).
(f) The Issuing Bank shall give the Agent prompt notice of any
presentation of a draw under a Letter of Credit in writing or by telephone or
telecopier, and the Agent shall give prompt notice thereof to the Banks. Each
Bank shall, on the date of receipt of such notice, either (i) make a Revolving
Credit Advance (which shall be a Prime Rate Advance unless otherwise specified
by the Borrowers in accordance with the procedures contained in Subsection 2.17
hereof) in an amount equal to its Pro Rata Portion of the payment under the
Letter of Credit, subject to the requirements for the making of a Revolving
Credit Advance contained in Subsection 2.1 and 2.2 and Section 5 hereof), and
shall simultaneously make available to the Issuing Bank at its Lending Office
specified in the signature pages hereof, in immediately available funds, the
proceeds of such Revolving Credit Advance, or (ii) if for any reason Borrowers
is not entitled on such day to receive a Revolving Credit Advance each Bank
shall pay to the Issuing Bank such Bank's Pro Rata Portion of such draw,
whereupon such Bank shall acquire a participation, to the extent of such Pro
Rata Portion, in the claim of the Issuing Bank against Borrowers in respect of
such draw.
(g) If and to the extent that any Bank shall not have so made the
proceeds of such a Revolving Credit Advance available to the Issuing Bank, the
Bank and the Borrowers severally agree to repay to the Issuing Bank forthwith
upon demand, to the extent not collected from the other, such corresponding
amount together with interest thereon, for each day from the date of receipt of
notice of the draw until the date the Bank's Pro Rata Portion thereof is paid to
the Issuing Bank at (i) in the case of the Borrowers, the interest rate
applicable at the time to the Advances, and (ii) in the case of the Bank, the
Federal Funds Rate, provided, however, that the Borrowers shall not be required
to so repay such amount if and to the extent that the Agent, in its capacity as
a Bank, has availability therefor under its Revolving Credit Commitment. In such
circumstances, the Agent, in its capacity as a Bank, may, but shall not be
required to, make a Revolving Credit Advance under its Revolving Credit
Commitment in respect of such amount. If the Borrowers shall repay to the Agent
such corresponding amount, or if the Agent, in its capacity as a Bank, makes an
Advance therefor, such payment or Advance shall not relieve the delinquent Bank
of its obligations hereunder.
2.6 Use of Proceeds. The Advances and Letters of Credit shall be used by
the Borrowers for general corporate purposes including, but not limited to, the
acquisition, renovation, and development of real estate properties and for the
repayment of indebtedness; provided, however, that Borrowers may acquire income
producing unsubordinated ground leases which are intended to support income
producing commercial restaurant and retail properties upon completion of
development of such properties, but only if (a) such completion occurs within a
reasonable period of time following acquisition of such ground lease and (b)
after giving effect to any such acquisitions, the aggregate Gross Lease Revenues
from such properties does not at any time exceed five percent (5%) of the Gross
Lease Revenues of all real property assets of the Borrowers'; provided further,
however, that the aggregate amount available for the issuance and funding of
standby Letters of Credit shall be limited to Fifteen Million Dollars
($15,000,000.00). From time to time and upon the Agent's request, the Borrowers
shall furnish to the Agent evidence satisfactory to the Agent that such proceeds
are being used according to the terms of this Subsection.
2.7 Notes.
(a) Revolving Note. The aggregate indebtedness of the Borrowers to each
--------------
Bank resulting from Revolving Credit Advances shall, in addition to this
Agreement, also be evidenced by a promissory note of the Borrowers payable to
such Bank, in a principal amount equal to the amount of such Bank's Revolving
Credit Commitment and in substantially in the form of Exhibit "B" hereto (each a
"Revolving Note"). The Revolving Notes collectively constitute a renewal and
modification of the Existing Note.
(b) Bid Rate Notes. The Bid Rate Loans made by any Bank shall, in addition
-------------
to this Agreement, also be evidenced by a single promissory note of the
Borrowers substantially in the form of Exhibit "M" (each a "Bid Rate Note"),
dated the date hereof, payable to the order of such Bank and otherwise duly
completed.
2.8 Interest.
(a) The Borrowers shall pay interest on the unpaid principal amount
of each Advance from the date of such Advance until such principal amount shall
be paid in full, at the following rates per annum:
(i) during such periods as a Revolving Credit Advance is a
Prime Rate Advance, a rate equivalent to the Prime Rate in effect from time to
time, which rate shall be adjusted daily to reflect changes in the Prime Rate,
with each adjustment to be effective on the day the change occurs;
(ii) during such periods as a Revolving Credit Advance is a
LIBOR Rate Advance, a per annum rate equivalent to the Reserve Adjusted LIBOR
Rate for the Interest Period for such Advance plus the applicable margin
determined in accordance with the following table based on CNLR's credit rating;
provided, however, that such applicable margin shall be adjusted from time to
------------------
time to reflect changes in the ratings of CNLR such adjustments to take effect
on the date of any change in any such rating. CNLR shall give the Agent prompt
written notice of any change in any such rating. If CNLR maintains two or more
credit ratings, the lowest of the two highest ratings received from any two of
the three rating agencies identified in the definition of Investment Grade
Rating shall determine such applicable margin.
Level Rating Received Applicable Margin
----- --------------- -----------------
I A-/A3 0.80%
II BBB+/Baa1 0.90%
III BBB/Baa2 1.00%
IV BBB-/Baa3 1.15%
V Not Investment Grade Rating 1.50%
(iii) if such Advance is a Bid Rate Loan, at the Bid Rate for
such Advance for the Interest Period therefor quoted by the Bank making such
Advance in accordance with Section 2.3.
Notwithstanding the foregoing, during the continuance of an Event of Default,
the Borrowers shall pay to the Agent for the account of each Bank interest at
the Default Rate on the outstanding principal amount of any Advance made by such
Bank and on any other amount payable by the Borrowers hereunder or under the
Notes held by such Bank to or for the account of such Bank (including without
limitation, accrued but unpaid interest to the extent permitted under Applicable
Law). Interest payable at the Post-Default Rate shall be payable from time to
time on demand.
2.9 Repayment.
(a) Interest on the Revolving Credit Advances shall be paid to the
Agent for the account of the Banks as follows:
(i) Accrued interest on each Prime Rate Advance shall be paid
quarterly in arrears on the last Business Day of March, June, September, and
December of each year, and on the Revolving Credit Maturity Date.
(ii) In respect of any LIBOR Rate Advance, accrued interest
shall be payable in arrears on the last Business Day of the applicable Interest
Period, provided that interest on LIBOR Rate Advances shall additionally be
payable on the last day of each three month period of any Interest Period that
exceeds three months in duration, and on the Revolving Credit Maturity Date.
(iii) In respect of any Bid Rate Loan, accrued interest shall
be payable in arrears on the last day of the Interest Period for such Bid Rate
Loan, provided that interest on a Bid Rate Loan shall additionally be payable on
the last day of each three month period of any Interest Period with respect to
such Bid Rate Loan that exceeds three months in duration, and on the Revolving
Credit Maturity Date.
(iv) In addition to the interest due and payable under (i)
through (iii) above, and as provided elsewhere in the Agreement, all accrued
interest on any Advance or other amount owing hereunder or under any Loan
Document shall be due and payable on each date when all of the unpaid principal
balance of such Advance or other obligation shall be due (whether by maturity,
acceleration or otherwise).
(b) Principal of the Revolving Credit Advances, if not sooner paid,
shall be paid to the Agent on the Revolving Credit Maturity Date for the account
of the Banks. Principal of a Bid Rate Loan, if not sooner paid, shall be paid to
the Agent on the last day of the Interest Period for such Bid Rate Loan for the
account of the Bank which made such Bid Rate Loan.
(c) If any payment of principal or interest or both is more than ten
(10) days late, the Borrowers will pay to the Agent, for the account of the
Banks, a late charge equal to five percent (5%) of the payment (the "Late Fee").
The provisions herein for a Late Fee shall not be deemed to extend the time for
any payment or to constitute a "grace period" giving the Borrowers a right to
cure such default.
2.10 Fees.
(a) As consideration for making the Revolving Credit Facility
available, the Borrowers shall pay to the Agent, for the pro rata account of the
Banks based on the amounts of the then existing Revolving Credit Commitments, a
fee from the Effective Date to the Revolving Credit Maturity Date (as may be
extended hereunder) equal to the percentage of the aggregate Revolving Credit
Commitments corresponding to the "Level" in the table below at which the
applicable margin for LIBOR Rate Advances is determined in accordance with the
table set forth in Section 2.8(a)(ii); provided, however, that such percentage
shall be adjusted from time to time to reflect changes in the "Level" at which
such applicable margin is determined in accordance with such Section, such
adjustments to take effect on the date of any change in any such "Level". Such
fee shall be computed on the basis of aggregate amount of the Banks' then
existing Revolving Credit Commitments (regardless of utilization) and shall be
payable quarterly in arrears on the last Business Day of March, June, September
and December of each year and on the Revolving Credit Maturity Date.
Applicable Fee
Level Percentage
----- --------------
I 0.15%
II 0.15%
III 0.20%
IV 0.25%
V 0.25%
(b) The Borrowers shall pay to the Agent, for the account of the
Issuing Bank and the other Banks, a letter of credit fee in an amount equal to
the product of (i) one percent (1%) per annum and (ii) the face amount of each
Letter of Credit on the date such fee is due. Such letter of credit fee shall be
payable quarterly in arrears (i) on the last Business Day of March, June,
September and December of each year, beginning with the first such day to occur
after the Closing Date and (ii) on the later of the Revolving Credit Maturity
Date and the date of termination of the last outstanding Letter of Credit.
One-eighth (0.125) of such fee shall be payable to the Issuing Bank as issuing
bank and the remaining seven-eighths (0.875) of such fee shall be payable to and
shared by the Banks (including the Issuing Bank) based on the Pro Rata Portion
of each. In addition to the foregoing fee, the Borrowers shall pay or reimburse
the Issuing Bank for such normal and customary costs and expenses as are
incurred or charged by the Issuing Bank in issuing, effecting payment under,
amending or otherwise administering any Letter of Credit.
(c) If the Revolving Credit Maturity Date is extended pursuant to
Subsection 2.11 of this Agreement, the Borrowers shall pay to the Agent for the
account of each Bank consenting to such extension an extension fee in an amount
equal to 0.15% of the Revolving Credit Commitment of such Bank. Such fee shall
be due and payable on the date which was the previous Revolving Credit Maturity
Date prior to such extension.
(d) The Borrowers shall also pay to the Agent such agency and other
fees as the Agent and the Borrowers shall separately agree in writing.
2.11 Extension of Revolving Credit Maturity Date.
(a) The Borrowers may request that the Agent and the Banks extend
the current Revolving Credit Maturity Date by one additional year by all of the
Borrowers executing and delivering to the Agent at least 90 days but no more
than 150 days prior to the current Revolving Credit Maturity Date, a written
request in for such extension. The Agent shall forward to each Bank a copy of
such extension request delivered to the Agent promptly upon receipt thereof. If
all of the Banks shall have notified the Agent on or prior to the date which is
30 days subsequent to the date on which the Borrowers have executed and
delivered to the Agent a written request for such extension that they consent to
such extension, then the Revolving Credit Maturity Date shall be extended for
one year. Otherwise, the Revolving Credit Maturity Date shall not be extended
except as otherwise permitted under the immediately following subsection (b).
The Agent shall promptly notify the Borrowers whether a requested extension has
been consented to or rejected as well as which Bank or Banks, if any, rejected
such extension request (each such Bank, a "Rejecting Bank"). The Borrowers
understand and acknowledge that (i) this Section has been included in this
Agreement for the Borrowers' convenience in requesting an extension of the
Revolving Credit Maturity Date; (ii) none of the Banks nor the Agent has
promised (either expressly or impliedly), nor has any obligation or commitment
whatsoever, to extend the Revolving Credit Maturity Date at any time and (iii)
the Banks may condition any such extension on such terms and conditions as the
Banks deem appropriate.
(b) Notwithstanding the preceding subsection (a), if the Borrowers
receive notification from the Agent that an extension request has been rejected
(a "Notice of Rejection"), and provided that the aggregate amount of all
Revolving Credit Commitments of the Rejecting Banks does not exceed 25.0% of the
aggregate amount of Revolving Credit Commitments then outstanding, the Borrowers
may elect, with respect to each such Rejecting Bank, by giving written notice
from all of the Borrowers to the Agent of any such election within 15 days after
receipt by the Borrowers of a Notice of Rejection, to either (i) require such
Rejecting Bank to assign its respective Revolving Credit Commitment to an
Eligible Assignee as contemplated in the immediately following clause (x) or
(ii) pay in full the amount of Loans, interest and fees, together with all
amounts, if any, payable under Section 2.15, owing to such Rejecting Bank and
terminate such Rejecting Bank's Revolving Credit Commitment as contemplated in
the immediately following clause (y). If the Borrowers have made a timely
election as permitted by the preceding sentence, then the Borrowers shall take
either of the following actions as specified in such election: (x) demand that
such Rejecting Bank, and upon such demand such Rejecting Bank shall be obligated
to, assign its respective Revolving Credit Commitment to an Eligible Assignee
designated by the Borrowers subject to and in accordance with the provisions of
Section 11.4(b) for a purchase price equal to the aggregate principal balance of
Advances then outstanding and owing to such Rejecting Bank plus any accrued but
unpaid interest thereon and accrued but unpaid fees owing to such Rejecting
Bank, any such assignment to be effective as of the current Revolving Credit
Maturity Date (without having given effect to the pending extension request) or
(y) effective as of the current Revolving Credit Maturity Date (without having
given effect to the pending extension request), pay to such Rejecting Bank the
aggregate principal balance of Advances then outstanding and owing to such
Rejecting Bank plus any accrued but unpaid interest thereon and accrued but
unpaid fees owing to such Rejecting Bank, together with all amounts, if any,
payable under Section 2.15, whereupon such Rejecting Bank's Revolving Credit
Commitment shall terminate, and such Rejecting Bank shall no longer be a party
hereto or have any rights or obligations hereunder or under any of the other
Loan Documents. None of the Agent, such Rejecting Bank, or any other Bank shall
be obligated in any way whatsoever to initiate any such replacement or to assist
in finding an Eligible Assignee. If the Borrowers have elected to cause all
Rejecting Banks either to assign their Commitments to Eligible Assignees as
contemplated by the preceding clause (x) or to be paid the amounts specified in
the preceding clause (y), then the Borrowers' extension request which was
initially rejected shall be deemed to have been granted and accordingly the
Revolving Credit Maturity Date shall be extended by one year, otherwise the
Revolving Credit Maturity Date shall not be extended. If the aggregate amount of
Commitments of the Rejecting Banks exceeds 25.0% of the aggregate amount of
Commitments then outstanding, the Revolving Credit Maturity Date shall not be
extended.
2.12 Single Loan. The Advances and all other obligations arising
under this Agreement and the other Loan Documents shall constitute one
general obligation of the Borrowers.
2.13 Payments and Computations.
(a) Except as otherwise provided in Section 2.4 hereof, the
Borrowers shall make each payment due under the Notes or otherwise due hereunder
not later than 12:00 p.m. (Eastern Time) on the day when due to the Agent in
immediately available funds. Any such payment received later than 12:00 p.m.
(Eastern Time) shall be deemed received by the Agent on the following Business
Day. In the event any such payment is received by the Agent not later than 12:00
p.m. (Eastern Time), the Agent will thereafter on the date such payment is
received cause to be distributed like funds ratably to the Banks, in each case
to be applied in accordance with the terms of this Agreement. If any such
payment is received by the Agent after 12:00 p.m. (Eastern Time), the Agent will
thereafter on the following Business Day cause to be distributed like funds
ratably to the Banks, in each case to be applied in accordance with the terms of
this Agreement. In the event the Agent does not so distribute such funds to the
Banks, it shall pay interest thereon, for each day from the Business Day
following the date such amount is payable to the Banks to the date the Agent
repays such amount to the Banks, at the Federal Funds Rate.
(b) If the Agent receives funds for application to the Revolving
Credit Advances under circumstances for which the Loan Documents or the
Borrowers (to the extent permitted by the Loan Documents) do not specify the
Revolving Credit Advances to which, or the manner in which, such funds are to be
applied, the Agent shall distribute such funds for application to the Revolving
Credit Advances to each Bank ratably in accordance with such Bank's Pro Rata
Portion, in repayment or prepayment of such of the outstanding Advances of such
Bank, and for application to such principal installments or interest.
(c) Unless the Agent shall have received notice from the Borrowers
prior to the date on which any payment is due to any Banks hereunder that the
Borrowers will not make such payment in full, the Agent may assume that the
Borrowers have made such payment in full to the Agent on such date. The Agent
may, in reliance upon such assumption, cause to be distributed to each Bank on
the Business Day following the date when due an amount equal to the amount then
due to such Bank. If and to the extent the Borrowers shall not have made such
payment in full to the Agent, each such Bank shall repay to the Agent forthwith
on demand such amount distributed to such Bank together with interest thereon,
for each day from the date such amount is distributed to such Bank until the
date such Bank repays such amount to the Agent, at the Federal Funds Rate.
(d) Each payment and prepayment by the Borrowers of principal or
interest shall be made in such coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debt. If any installment of principal or interest becomes due and payable on a
day other than a Business Day, the due date thereof shall be extended to the
next succeeding Business Day (except as otherwise provided with respect to LIBOR
Rate Advances and Bid Rate Loans in the definition of "Interest Period"), and,
in the case of principal, interest shall be payable during the extension at the
applicable interest rate.
(e) Unless otherwise specified herein, or unless otherwise
determined by the Required Banks in their sole discretion, all payments (other
than prepayments) of a particular Revolving Credit Advance shall be applied pro
rata among the Banks first to interest and lawful charges then accrued and then
to principal. The Borrowers shall, at the time of making payments of Advances,
specify to the Agent (which shall so notify the Banks to which such Advances are
owed) of the Advances to be paid. Notwithstanding anything herein to the
contrary, all payments of principal, interest, fees and other amounts in respect
of the Swingline Loans shall be for the account of the Swingline Lender only
(except to the extent any Bank shall have acquired a participating interest in
any such Swingline Loan pursuant to Section 2.4(e)).
(f) Each Borrower hereby authorizes the Agent and each Bank, if and
to the extent that any payments owed hereunder are not made when due, to charge
such payments from time to time against any or all of such Borrower's accounts
with the Agent or the Bank, in which event the Agent or the Bank will give
prompt notice to such Borrower of such charge; provided, however, that the
failure to give such notice shall not affect the validity of such charge. Any
such Bank will give notice to the Agent thereof.
(g) Interest and any fees hereunder shall be computed on the basis
of a year of 360 days, but charged for the actual number of days elapsed. Each
determination by the Agent of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(h) Notwithstanding anything contained herein to the contrary, in no
event shall any interest rate provided for herein exceed the maximum rate of
interest allowed by applicable law, as amended from time to time. Neither the
Banks nor the Agent intend to charge any amount of interest or other fees or
charges in the nature of interest that exceeds the maximum amount allowed by
applicable law. If any payment of interest or in the nature of interest would
cause the foregoing interest rate limitation to be exceeded, then such excess
payment shall be credited as a payment of principal, unless the Borrowers notify
the Agent in writing that the excess payment must be returned to the Borrowers,
together with interest at the rate specified in Section 687.04(2), Florida
Statutes, or any successor statute.
(i) Notwithstanding any other provision in Sections 2.13 or 2.14 to
the contrary, if an Event of Default shall have occurred and be continuing and
the maturity of the Notes has been accelerated, all payments received by the
Agent under any of the Loan Documents, in respect of any principal of or
interest on any Advance or any other amounts payable by a Borrower hereunder or
thereunder, shall be applied by the Agent in the following order and priority:
(i) first, to amounts due to the Agent and the Banks in respect of fees and
expenses due under any of the Loan Documents; (ii) second, to payments of
interest on all Advances, to be applied for the ratable benefit of the Banks;
(iii) third, to payments of principal of all Advances, to be applied for the
ratable benefit of the Banks; (iv) fourth, to amounts due to the Agent and the
Banks pursuant to Sections 9.9 and 10; (v) fifth, to payments of all other
amounts due and owing by any Borrower under any of the Loan Documents, if any,
to be applied for the ratable benefit of the Banks; and (vi) sixth, any amount
remaining after application as provided above, shall be paid to the Borrowers or
whomever else may be legally entitled thereto.
2.14 Prepayments.
(a) The Borrowers shall be entitled to prepay Prime Rate Advances in
whole or in part, at any time, without premium or penalty, upon notice to the
Agent no later than 10:00 a.m. (Eastern Time) at least one Business Day prior to
the proposed date of the prepayment, each notice stating the proposed date,
Advances to be prepaid, and aggregate principal amount of the prepayment in the
form of the Notice of Prepayment attached hereto as Exhibit "D".
(b) The Borrowers shall be entitled to pay LIBOR Rate Advances only
on the last days of the applicable Interest Periods, without premium or penalty,
upon notice to the Agent no later than 10:00 a.m. (Eastern Time) at least three
(3) Business Days prior to the proposed date of the prepayment, each notice
stating the proposed date, Advances to be paid, and aggregate principal amount
of the payment in the form of the Notice of Prepayment attached hereto as
Exhibit "D".
(c) Any prepayment of Prime Rate Advances shall be in the aggregate
principal amount of $100,000.00 or an integral multiple thereof, and any payment
of LIBOR Rate Advances shall be in the full amount of the LIBOR Rate Advances so
paid.
(d) On or prior to the Revolving Credit Maturity Date, any
prepayment of any Advances (whether optional or required, but not including any
payment after default or acceleration) shall be applied first to principal and
then to interest and lawful charges, unless otherwise specified by the
Borrowers. In the event of a prepayment after default or acceleration, any
prepayment of any Advances shall be applied as provided in Section 2.13(i)
hereof. The Borrowers shall, at the time of making prepayments of Advances,
specify to the Agent (which shall so notify the Banks) of the Advances to be
prepaid.
(e) Notwithstanding the provisions of Subsection 2.15(b)
hereof, Bid Rate Loans may not be prepaid.
2.15 Compensation.
(a) Notwithstanding the provisions of Subsection 2.14(b) hereof,
which prohibit prepayment of LIBOR Rate Advances prior to the end of the
applicable Interest Period, in the event that all or any portion of any LIBOR
Rate Advances are repaid, prepaid, or Converted prior to the end of the
applicable Interest Period, regardless of whether such payment or Conversion is
optional or obligatory, or in the event that any LIBOR Rate Advances are not
borrowed or Converted as specified in a notice given pursuant to Subsection 2.2
or 2.17 hereof for any reason, including the failure of any conditions
precedent, the Borrowers shall be required to pay to the Agent, for the account
of the Banks, compensation as follows. The Borrowers shall be required to pay an
amount equal to the excess, if any, of (i) the amount of interest which
otherwise would have accrued on the portion of the LIBOR Rate Advances repaid,
prepaid, Converted, or not borrowed or Converted from and after the date of such
payment, prepayment, Conversion, failure to borrow, or failure to Convert, to
the last day of the applicable Interest Period (or, in the case of a failure to
borrow or Convert, to the last day of the Interest Period which would have
commenced) at the applicable rate of interest for such Advances specified
herein, minus (ii) the amount of interest which would have accrued on such LIBOR
Rate Advances or portion thereof from and after the date of such payment,
prepayment, Conversion, failure to borrow, or failure to Convert, to the last
day of the applicable Interest Period at the applicable rate of interest for
such Advances specified herein, but calculated with respect to a LIBOR Rate
based on an amount substantially equal to the amount paid, prepaid, Converted,
or not borrowed or Converted, and an Interest Period substantially equal to the
number of days remaining in the applicable Interest Period. Whether or not the
foregoing calculation results in a charge to be paid by the Borrowers, the
Borrowers shall also pay all actual out-of-pocket expenses other than those
taken into account in the foregoing calculation incurred by the Banks and the
Agent (excluding any internal expenses) and reasonably attributable to such
payment, prepayment, Conversion, or failure to borrow or Convert. The Borrowers
acknowledge that the Banks are relying in the LIBOR Rate Advances remaining
outstanding or being borrowed or Converted for the entire Interest Periods
selected, and that the foregoing compensation represents reasonable liquidated
damages and is not a penalty. The foregoing compensation shall apply with
respect to all payments, prepayments, and Conversions of LIBOR Rate Advance and
all failures to borrow and failures to Convert into LIBOR Rate Advances, whether
optional or obligatory (including any required principal installments and any
required Conversions pursuant to the provisions of Subsections 2.17 and 2.18
hereof), and shall include any prepayment, repayment, or Conversion after
default or acceleration of the Note.
(b) The Borrowers shall pay to the Agent for the account of each
affected Bank, upon the request of such Bank through the Agent, such amount or
amounts as shall be sufficient (in the reasonable opinion of such Bank) to
compensate it for any loss, cost or expense that such Bank determines is
attributable to (a) any payment or prepayment (whether mandatory or optional) of
a Bid Rate Loan made by such Bank for any reason (including, without limitation,
acceleration) on a date other than the last day of the Interest Period for such
Advance, or (b) any failure by a Borrower for any reason (including, without
limitation, the failure of any of the applicable conditions precedent specified
in Section 5 to be satisfied) to borrow a Bid Rate Loan pursuant to Section 2.3
hereof from such Bank on the date established for such borrowing.
2.16 Sharing of Payments, Etc.
(a) If any Bank shall obtain from any Borrower payment of any
principal of or interest on any Advance owing to it or payment of any other
amount under this Agreement or any other Loan Document through the exercise of
any right of set-off, banker's lien, counterclaim, similar right, or otherwise
(other than from the Agent as provided herein), and, as a result of such
payment, such Bank shall have received a greater percentage of the principal of
or interest on the Advances or other amounts then due hereunder by Borrowers
than the percentage which such Bank is entitled to receive hereunder, it shall
promptly purchase from such other Banks participations in (or, if, and to the
extent specified by such Bank, direct interests in) the Advances or such other
amounts, respectively, owing to such other Banks (or in interest due thereon, as
the case may be) in such amounts, and make such other adjustments from time to
time as shall be equitable, to the end that all the Banks shall share the
benefit of such excess payment (net of any expenses which may be incurred by
such Bank in obtaining or preserving such excess payment) pro rata in accordance
with the unpaid principal of and interest on the Advances or such other amounts,
respectively, owing to each of the Banks. To such end all the Banks shall make
appropriate adjustments among themselves (by the resale of participations sole
or otherwise) if such payment is rescinded or must otherwise be restored.
(b) Nothing contained herein shall require any Bank to exercise any
right referenced in Subsection (a) of this Section 2.16 or affect the right of
any Bank to exercise, and retain the benefits of exercising, any such right with
respect to any other indebtedness or obligation of any Borrower. If, under any
applicable bankruptcy, insolvency, or other similar law, any Bank receives a
secured claim in lieu of a set-off to which this Subsection applies, such Bank
shall, to the extent practicable, exercise its rights in respect of such secured
claim in a matter consistent with the rights of the Banks entitled under this
Subsection to share in the benefits of any recovery on such secured claim.
2.17 Conversion and Continuation of Advances; Failure to Select
Interest Period.
(a) The Borrowers may, upon notice given to the Agent in the form of
the Notice of Conversion/Continuation attached hereto as Exhibit "E" (effective
upon receipt) no later than 10:00 a.m. (Eastern Time) at least three (3)
Business Days prior to the date of a proposed Conversion into or Continuation of
LIBOR Rate Advances and not later than 10:00 a.m. (Eastern Time) at least one
(1) Business Day prior to the date of a proposed Conversion into Prime Rate
Advances, and subject to the provisions hereof, Convert Revolving Credit
Advances of one Type into Revolving Credit Advances of the other Type or
Continue Revolving Credit Advances of one Type as Revolving Credit Advances of
the same Type at any time and from time to time on any Business Day; provided,
--------
however, that (i) any Conversion or Continuation of LIBOR Rate Advances shall be
-------
made on, and only on, the last day of the Interest Period for the LIBOR Rate
Advances being Converted or Continued, (ii) any Conversion or Continuation of
any Revolving Credit Advances into LIBOR Rate Advances shall be in amounts not
less than the minimum aggregate amounts specified in Section 2.2(a), and (iii)
no Conversion or Continuation of Advances shall result in a greater number of
different Interest Periods for LIBOR Rate Advances and Bid Rate Loans than is
permitted under Section 2.2(b). Each such notice of Conversion or Continuation
shall be in writing or shall be by telephone or telecopier, confirmed
immediately in writing, specifying, within the restrictions specified above, the
date of such Conversion or Continuation, the Revolving Credit Advances to be
Converted or Continued, the portion thereof to be Converted or Continued, and
the Type of Revolving Credit Advances into which they will be Converted or
Continued and if such Conversion or Continuation is into LIBOR Rate Advances,
the duration of the Interest Periods for such Advances. Each notice of
Conversion or Continuation shall be irrevocable and binding on the Borrowers.
(b) (i) Whenever the unpaid principal amount of LIBOR Rate Advances
comprising a borrowing shall be reduced, by payment or prepayment or otherwise,
to less than $1,000,000.00, such Advances shall automatically Convert into Prime
Rate Advances on the last day of the then current Interest Period with respect
to such Advances.
(ii) If the Borrowers shall fail to give a notice of
Conversion or Continuation in respect of LIBOR Rate Advances prior to the end of
the Interest Period applicable thereto as provided in paragraph (a) hereof, or
to select the duration of any Interest Period for any LIBOR Rate, such LIBOR
Rate Advances will automatically, on the last day of the then existing Interest
Period therefor, convert into Prime Rate Advances.
(iii) Upon the occurrence and during the continuance of any
Event of Default, (i) all LIBOR Rate Advances will automatically, on the last
days of the then existing Interest Periods therefor, Convert into Prime Rate
Advances and (ii) the obligation of the Banks to make, Continue, or Convert
Revolving Credit Advances into LIBOR Rate Advances shall be suspended.
(iv) LIBOR Rate Advances may be subject to automatic
Conversion into Advances of other Types, as provided in Section 2.18(c) and (d).
2.18 Increased Costs, Illegality, Etc.
(a) If either (i) the introduction of or any change in any law or
regulation or in the interpretation or administration of any law or regulation
by any court or administrative or governmental authority charged with the
interpretation of administration thereof from the date hereof or (ii) the
compliance with any guideline or request from any such governmental authority,
including, without limitation, any central bank (whether or not having the force
of law), (x) subjects any Bank or any corporation controlling any Bank to any
tax of any kind whatsoever with respect to this Agreement or any Advance, or
changes the basis of taxation of payments to such Bank or corporation of
principal, commissions, fees, interest, or any other amount payable hereunder
(except for (A) taxes on or measured by the overall net income of such Bank or
branch, office, or agency through which such Bank is acting for purposes of this
Agreement or (B) changes in the rate of such taxes); (y) imposes, modifies, or
holds applicable any reserve, special deposit, compulsory loan, or similar
requirement against assets held by, or deposits or other liabilities in or for
the account of, advances or loans by, or other credit or commitment therefor
extended by, or any other acquisition of funds by, any office of such Bank which
are not otherwise included in any determination of the Reserve Adjusted LIBOR
Rate or other interest payable hereunder; or (z) imposes on any Bank or the
corporation controlling the Bank any other condition, and as a result there
shall be any increase in the cost to the Bank or the corporation of agreeing to
make or making, funding, or maintaining Advances by an amount deemed by the Bank
to be material, then the Borrowers shall from time to time, upon demand by the
Bank, pay directly to the Bank additional amounts sufficient to compensate the
Bank for such increased cost. A certificate as to the amount of such increased
cost, submitted to the Borrowers by the Bank, shall be conclusive and binding
for all purposes, absent manifest error.
(b) If any Bank determines that compliance with any law or
regulation or with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) concerning
capital adequacy or otherwise has or would have the effect of reducing the rate
of return on the capital of the Bank or the corporation controlling the Bank, as
a consequence of, or with reference to, the facilities hereunder, or its making
or funding or maintaining Advances below the rate which the Bank or such other
corporation could have achieved but for such compliance (taking into account the
policies of the Bank of such corporation with regard to capital) by an amount
deemed by the Bank to be material, the Borrowers shall from time to time, upon
demand by the Bank, pay to the Bank additional amounts sufficient to compensate
the Bank or such other corporation for such reduction. A certificate as to such
amounts, submitted to the Borrowers by the Bank, shall be conclusive and binding
for all purposes, absent manifest error.
(c) If, with respect to any LIBOR Rate Advances, the Required Banks
notify the Agent that the Reserve Adjusted LIBOR Rate for any Interest Period
for such Advances will not adequately reflect the cost to the Banks of making,
funding, or maintaining the LIBOR Rate Advances for such Interest Period, the
Agent shall forthwith so notify the Borrowers whereupon (i) each such LIBOR Rate
Advance will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Prime Rate Advance, and (ii) the obligation of the
Banks to make, Continue, or Convert Advances into LIBOR Rate Advances shall be
suspended until the Agent notifies Borrowers that the Required Banks have
determined that the circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful or any central bank or other governmental
authority shall assert that it is unlawful for any Bank to perform its
obligations hereunder to make LIBOR Rate Advances or to continue to fund or
maintain LIBOR Rate Advances hereunder, then, on notice thereof and demand
therefor by the Bank through the Agent, (i) each LIBOR Rate Advance of the Banks
will automatically, upon such demand, Convert into a Prime Rate Advance and (ii)
the obligation of the Banks to make, Continue, or Convert Advances into LIBOR
Rate Advances shall be suspended until the Agent shall notify the Borrowers that
the Bank has determined that the circumstances causing such suspension no longer
exist.
2.19 Letters of Credit Obligations.
(a) The payment obligations of the Borrowers under this Agreement
with respect to the Letters of Credit shall be unconditional and irrevocable,
and shall be paid strictly in accordance with the terms of this Agreement under
all circumstances, including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of the Letters
of Credit;
(ii) any amendment or waiver of or any consent to
departure from all or any of the Letters of Credit;
(iii) the existence of any claim, set-off, defense or other
right which the Borrowers may have at any time against any beneficiary, or any
transferee, of the Letters of Credit (or any Person for whom any such
beneficiary or transferee may be acting), the Agent, the Issuing Bank, any of
the other Banks, or any other person or entity, whether in connection with this
Agreement, the transactions contemplated herein or in the Letters of Credit, or
any unrelated transaction;
(iv) any statement or any other document presented under the
Letters of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any respect;
(v) payment by the Issuing Bank under the Letters of Credit
against presentation of a draft or certificate which does not comply (other than
on its face) with the terms of the Letters of Credit; or
(vi) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing.
(b) In addition to (but without duplication of) the amounts payable
as elsewhere provided in this Agreement, or any obligation arising out of
Letters of Credit, the Borrowers hereby agree to protect, indemnify, pay, and
save the Agent, the Issuing Bank, and each other Bank harmless from and against
any and all claims, demands, liabilities, damages, losses, costs, charges, and
expenses (including reasonable attorneys' fees) which such party may incur or be
subject to as a consequence, direct or indirect, of (i) the issuance of the
Letters of Credit, or (ii) the failure by the Issuing Bank to honor, or to make
payment on, a drawing under the Letters of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or future de jure or de
facto Governmental Authority (all such acts or omissions herein called
"Governmental Acts").
(c) As among the Borrowers, the Issuing Bank, the other Banks, and
the Agent, the Borrowers assume all risks of the acts and omissions of, or
misuse of the Letters of Credit. In furtherance, and not in limitation of the
foregoing, none of the Agent or the Banks shall be responsible: (A) for the
form, validity, sufficiency, accuracy, genuineness, or legal effect of any
document submitted by any party as beneficiary or transferee or otherwise in
connection with a drawing under the Letters of Credit, even if it should in fact
prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent, or forged; (B) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign the Letters of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason; (C) for
failure of the beneficiary or transferee to comply fully with conditions
required in order to draw upon the Letters of Credit, other than conditions
expressly stated in the Letters of Credit; (D) for errors, omissions,
interruptions, or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex, or otherwise, whether or not they be in cipher; (E) for
errors in interpretation of technical terms; (F) for any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under the Letters of Credit or of the proceeds thereof; (G) for the
misapplication by the beneficiary of the Letters of Credit; and (H) for any
consequences arising from causes beyond the control of the Agent, the Issuing
Bank, or the other Banks including, without limitation, any Governmental Acts.
None of the above shall affect, impair, or prevent the vesting of any of the
Agent's, Issuing Bank's, or any other Bank's rights or powers hereunder.
(d) In furtherance and extension, and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by the
Agent, the Issuing Bank, or any other Bank under or in connection with the
Letters of Credit or the related certificates, if taken or omitted in good
faith, shall not result in any liability of the Agent, the Issuing Bank, or any
other Bank to the Borrowers. The Issuing Bank may accept documents that appear
on their face to be in order, without responsibility for further investigation,
regardless of any notice or any information to the contrary.
(e) Notwithstanding anything to the contrary contained in this
Subsection, the Borrowers shall have no obligation to indemnify the Issuing
Bank, any other Bank, or the Agent in respect of any liability incurred by the
Borrowers arising solely out of the bad faith, gross negligence or willful
misconduct of the Agent, the Issuing Bank, or any other Bank, as determined by a
court of competent jurisdiction.
(f) Without prejudice to the survival of any other obligation of the
Borrowers under this Agreement, the indemnities and obligations of the Borrowers
under this Subsection shall survive the payment in full of all other amounts
payable under this Agreement and the termination of the Letters of Credit.
2.20 Amount Limitations.
Notwithstanding any other term of this Agreement or any other Loan
Document, at no time may (a) the aggregate principal amount of all outstanding
Revolving Credit Advances, together with the aggregate principal amount of all
outstanding Bid Rate Loans and the aggregate principal amount of all outstanding
Swingline Loans exceed the aggregate amount of the Revolving Credit Commitments
at such time, (b) the aggregate principal amount of all outstanding Bid Rate
Loans exceed 50% of the aggregate amount of the Revolving Credit Commitments at
such time or (c) the aggregate principal amount of all outstanding Revolving
Credit Advances owing to a Bank, together with such Bank's Pro Rata Portion of
the aggregate principal amount of all outstanding Swingline Loans exceed the
aggregate amount of such Bank's Revolving Credit Commitment at such time.
SECTION 3. [INTENTIONALLY OMITTED].
SECTION 4. REPRESENTATIONS AND WARRANTIES.
To induce the Agent and the Banks to enter into this Agreement and to
establish the Revolving Credit Facility provided for herein, each Borrower
represents and warrants to the Agent and Banks (which representations and
warranties shall survive the delivery of the documents mentioned herein and the
establishment of the credit facilities contemplated hereby) as follows:
4.1 Existence of Borrowers; Compliance with Law. Each of the Borrowers is
a corporation or limited partnership, duly organized or formed, validly
existing, and in good standing under the laws of its jurisdiction of
incorporation or formation. Each of the Borrowers has the requisite power to own
its properties and assets, and to carry on its business as now being conducted.
Each of the Borrowers is in compliance with all other requirements of law
applicable to it and to its business.
4.2 Authorization. Each of the Borrowers has the power and authority, and
the legal right to execute, deliver, and perform the Loan Documents, and to
borrow thereunder, and has taken all action necessary to authorize the
execution, delivery, and performance of the Loan Documents, and to authorize the
borrowings contemplated thereby. The execution, delivery, and performance of the
Loan Documents by the Borrowers is made by individuals of legal capacity; will
not conflict with, result in the breach of, or constitute a violation of or
default under, any applicable law, rule, regulation, writ, or decree or the
organizational documents of any of the Borrowers, or any agreement or instrument
to which any of the Borrowers is a party; or result in the creation of any Lien
upon any property or assets of any of the Borrowers pursuant to any indenture or
other agreement or instrument to which any of the Borrowers is a party, or by
which any of the Borrowers or their respective properties may be bound or
affected. No consent, license, or authorization of, or filing with, any Person
or entity (including, without limitation, any Governmental Authority), is
required in connection with the execution, delivery, performance, validity, or
enforceability of the Loan Documents and the borrowings as contemplated
thereunder, except for consents, licenses, approvals, and filings referred to or
disclosed in the Loan Documents.
4.3 Enforceable Obligations. The Loan Documents when executed and
delivered to the Agent will constitute legal, valid, and binding agreements
enforceable against the respective parties thereto and any property described
therein in accordance with their respective terms, except (i) as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
or similar laws affecting the enforceability of creditor's rights; and (ii) as
enforceability may be limited or qualified by general principles of equity,
whether raised in a proceeding at law or in equity.
4.4 Financial Condition of the Borrowers.
(a) The consolidated financial statements of the Borrowers as of
June 30, 2000, a copy of which has been furnished to the Agent, are materially
correct, complete, and fairly present the financial condition of the Borrowers
as at the date of the financial statements and fairly present the results of the
operations of the Borrowers for the period covered thereby.
(b) The Borrowers have no material direct or contingent liabilities,
liabilities for taxes, long-term leases, or unusual forward or long-term
commitments as of the date of the Agreement which are not disclosed by, provided
for, or reserved against in the financial statements or referred to in notes
thereto, and at such date there are no material unrealized or anticipated losses
from any unfavorable commitments of the Borrowers. The financial statements
furnished to the Agent have been prepared in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis maintained throughout the
period involved. There has been no material adverse change in the business,
properties or condition, financial or otherwise, of the Borrowers since the date
of such financial statements.
4.5 No Litigation. Except as disclosed in a Form 10-K or Form 10-Q filed
by the Borrowers with the Securities and Exchange Commission, there is no suit
or proceeding at law or in equity (including proceedings, by or before any
court, arbitrator, governmental or administrative commission, board or bureau,
or other administrative agency) pending, or to the knowledge of any of the
Borrowers threatened, by or against or involving any of the Borrowers or against
any of their respective properties, existence, or revenues which, if adversely
determined, would have a material adverse effect on the property, assets, or
business or on the condition, financial or otherwise, of the Borrowers or which
would be required to be disclosed in notes to any balance sheet as of the date
hereof of the Borrowers prepared in reasonable detail in accordance with
Generally Accepted Accounting Principles applied on a Consistent Basis.
4.6 Disclosure and No Untrue Statements. No representation or warranty
made by any of the Borrowers in the Loan Documents or which will be made by the
Borrowers from time to time in connection with the Loan Documents (a) contains
or will contain any misrepresentation or untrue statement of fact; or (b) omits
or will omit to state any material fact necessary to make the statements therein
not misleading, unless otherwise disclosed in writing to the Agent. There is no
fact known to any of the Borrowers or any of their respective executive
financial officers which adversely affects, or which might in the future
adversely affect, the business, assets, properties, or condition, financial or
otherwise, of the Borrowers.
4.7 Title to Assets; Leases in Good Standing. Each of the Borrowers has
good and marketable title to their respective properties and assets, including
the properties and assets reflected in the financial statements and notes
thereto described in Section 4.4 hereof, except for such assets as have been
disposed of in the ordinary course of business, and all such properties and
assets included in the determination of Unencumbered Assets are free and clear
of all Liens of any kind, except for Permitted Liens. Each of the Borrowers
enjoys peaceful and undisturbed possession under all leases under which it is
now operating, none of which contain any unusual provisions which may adversely
affect its operations, and all said leases are valid, subsisting, and in full
force and effect, and one of the Borrowers is in violation of any material term
of any such lease.
4.8 Payment of Taxes. Each of the Borrowers has filed or caused to be
filed all federal, state, and local tax returns which are required to be filed
by it and has paid or caused to be paid all taxes as shown on said returns or on
any assessment received by it, to the extent that such taxes have become due,
except as otherwise permitted by the provisions hereof, and no controversy in
respect of additional income taxes of any of the Borrowers is pending, or, to
the knowledge of any such Borrower, threatened. Each of the Borrowers has set up
reserves which are believed by its officers to be adequate for the payment of
all taxes for which a notice of assessment has been received and for the payment
of such taxes for the years that have not been audited by the respective tax
authorities.
4.9 Agreement or Contract Restrictions. None of the Borrowers is a party
to, nor is any Borrower bound by, any agreement, contract, or instrument or
subject to any charter or other corporate or partnership restriction which
materially adversely affects the business, properties, assets, operations, or
condition, financial or otherwise, of such Borrower except as disclosed in the
financial statements and notes thereto described in Subsection 4.4 hereof. None
of the Borrowers is in default in the performance, observance, or fulfillment of
any obligations, covenants, or conditions contained in any agreement or
instrument to which it is a party, which would have a material adverse affect on
the Borrowers performing hereunder.
4.10 Patents, Trademarks, Etc. Each of the Borrowers owns, possesses, or
has the right to use all necessary patents, patent rights, licenses, trademarks,
trademark rights, trade names, trade name rights, and copyrights to conduct its
business as now conducted, without known conflict with any patent, patent right,
license, trademark, trademark right, trade name, trade name right, or copyright
of any other Person or entity.
4.11 Racketeer Influenced and Corrupt Organization(s) Act. None of the
Borrowers have ever been nor is any now engaged, nor will any of the Borrowers
engage, directly or indirectly, in any pattern of "racketeering activity" or in
any "collection of any unlawful debt," as each of the quoted terms or phrases is
defined or used by the Racketeer Influenced and Corrupt Organization(s) Act of
either the United States or the State of Florida, Title 18, United States Code,
Section 1961 et seq.; Chapter 895, Florida Statues, respectively, as each act
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now exists or is hereafter amended (the "RICO Lien Acts"). No real property of
any of the Borrowers, no interest or interests of any kind, including beneficial
interest or interests, mortgages, and leases, in or on real property of any of
the Borrowers, and no personal property, including money, of any of the
Borrowers, has ever been, is now, or is in any way reasonably anticipated by any
of the Borrowers to become, subject to any Lien, notice, civil investigative
demand, action, suit, or any proceeding pursuant to the RICO Lien Acts.
4.12 Investment Company Act; Regulation.
(a) None of the Borrowers is an "investment company," an "affiliated
person" of any "investment company," or a company "controlled" by an "investment
company," and none of the Borrower is an "investment advisor" or an "affiliated
person" of an "investment advisor" (as each of the quoted terms is defined or
used in the Investment Company Act of 1940, as amended).
(b) None of the Borrowers is not subject to regulation under any
state or local public utilities code or federal, state, or local statute or
regulation limiting the ability of any of the Borrowers to incur indebtedness
for money borrowed or to pledge assets of the type contemplated hereunder.
4.13 Labor Matters. There are no strikes or other labor disputes against
any of the Borrowers pending or, to any of the Borrowers' knowledge, threatened.
Hours worked by and payment made to employees of each of the Borrowers has not
been in violation of the Fair Labor Standards Act or any other applicable law
dealing with such matters. All payments due from any of the Borrowers on account
of employee health and welfare insurance have been paid or accrued as a
liability on such Borrower's books.
4.14 ERISA Requirement. Except as previously disclosed to Agent in
writing, none of the Borrowers has in force any written or oral bonus plan,
stock option plan, employee welfare, pension or profit sharing plan, or any
other employee benefit arrangement or understanding. In addition, no Borrower
nor any predecessor of any of the Borrowers is now or was formerly during the
five year period immediately preceding the effective date of this Agreement a
participating employer in any multi-employer or "multiple employer" plans within
the meaning of Sections 4001(1)(a)(3), 4063, and 4064 of ERISA. Each employee
benefit plan subject to the requirements of ERISA complies with all of the
requirements of ERISA and those plans which are subject to being "qualified"
under Sections 401(a) and 501(a) of the Internal Revenue Code of 1986, as
amended from time to time, have since their adoption been "qualified" and have
received favorable determination letters from the Internal Revenue Service so
holding. There is no matter which would adversely affect the qualified tax
exempt status of any such trust or plan, and except as previously disclosed to
the Agent, there are no deficiencies or liabilities for any such plan or trust.
No employee benefit plan sponsored by any of the Borrowers has engaged in a
non-exempt "prohibited transaction" as defined in ERISA.
4.15 Compliance With Environmental Requirements. Each of the Borrowers
warrants and represents to the Agent and the Banks that to the best of its
knowledge, each of their respective real property assets is now and at all times
hereafter will continue to be in full compliance with all federal, state and
local environmental laws and regulations as they now exist or are hereafter
enacted and/or amended, including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986, the Resource
Conservation and Recovery Act of 1976, as amended by the Used Oil Recycling Act
of 1980, and the Hazardous and Solid Waste Amendments of 1984, as amended. The
Borrowers shall indemnify and hold the Agent and the Banks harmless from and
against any and all damages, penalties, fines, claims, liens, suits,
liabilities, costs (including cleanup costs), judgments and expenses (including
attorneys', consultants' or experts' fees and expenses) of every kind and nature
suffered by or asserted against the Agent or the Banks as a direct or indirect
result of any warranty or representation made by the Borrowers in this paragraph
being false or untrue in any material respect or any requirement under any law,
regulation or ordinance, whether local, state or federal, which requires the
elimination or removal of any hazardous materials, substances, wastes or other
environmentally regulated substances. The Borrowers' obligations hereunder shall
not be limited to any extent by the term of the indebtedness hereunder, and, as
to any act or occurrence prior to payment in full and satisfaction of the
indebtedness which gives rise to liability hereunder, shall continue, survive
and remain in full force and effect notwithstanding payment in full and
satisfaction of the indebtedness hereunder.
4.16 Compliance with REIT Requirements. CNLR is in compliance with all
requirements applicable to a Real Estate Investment Trust imposed by the
Internal Revenue Code of 1986, as amended, and all applicable regulations
thereunder. Net I, Net II, Net III, Net IV and Funding are each in compliance
with all requirements applicable to a Qualified REIT Subsidiary imposed by the
Internal Revenue Code of 1986, as amended, and all applicable regulations
thereunder and each of the Borrowers is not aware of any fact that would
negatively impact such qualifications.
4.17 Principal Office/Corporate Name. The principal office, chief
executive office, and principal place of business of each of the Borrowers is at
450 South Orange Avenue, Suite 900, Orlando, Florida 32801. Each of the
Borrowers maintains its principal records and books at such address.
4.18 Use of Credit. The Advances shall be used exclusively for the
purposes specified in Section 2.6 hereof. None of the Borrowers is engaged in
the business of extending credit for the purpose of purchasing or carrying
"margin stock" (within the meaning of Regulation U or Regulation X of the Board
of Governors of the Federal Reserve System), and no part of the proceeds of any
Advance hereunder will be used to purchase or carry any "margin stock," to
extend credit to others for the purpose of purchasing or carrying any "margin
stock," or for any other purpose which might constitute this transaction a
"purpose credit" within the meaning of Regulation U or Regulation X. Neither the
Borrowers nor any Person acting on behalf of any of the Borrowers has taken or
will take any action which might cause any Note or any other Loan Documents,
including this Agreement, to violate Regulation U or Regulation X or any other
regulation of the Board of Governors of the Federal Reserve system or violate
Section 8 of the Securities Exchange Act of 1934 or any rule or regulation
thereunder, in each case as now in effect as the same may hereinafter be in
effect. None of the Borrowers owns "margin stock" except for that described in
the financial statements referred to in Section 4.4 hereof and, as of the date
hereof, the aggregate value of all "margin stock" owned by each of the Borrowers
does not exceed twenty-five percent (25%) of the value of all of such Borrower's
assets. In connection with this Agreement, the Borrowers will upon request of
the Agent deliver to the Agent a statement in conformity with the requirements
of Federal Reserve Form U-1 referred to in said Regulation.
SECTION 5. CONDITIONS OF LENDING.
The obligation of the Agent, the Swingline Lender and the Banks to
establish the Revolving Credit Facility or to permit any borrowing or issue
Letters of Credit hereunder is conditioned upon the performance of all
agreements by the Borrowers contained herein, as well as satisfaction of the
following conditions precedent:
5.1 Request for Borrowing; Information. Each request for a borrowing or
the issuance of a Letter of Credit hereunder shall be evidenced by (i) in the
case of the borrowing of a Revolving Credit Advance, a Notice of Borrowing in
substantially the form of Exhibit "A" hereto, and (ii) in the case of the
borrowing of a Swingline Loan, a Notice of Swingline Borrowing in substantially
the form of Exhibit "F" hereto. At least five (5) business days prior to
requesting such Advance, the Borrowers must deliver to the Agent all of the
information as may be reasonably requested by the Agent in response to the
Borrowers' request for a borrowing or the issuance of a Letter of Credit. Any
Advance of funds by the Banks without obtaining all such information shall not
constitute a waiver by the Agent or any Bank of its right to receive such
information and a failure of the Borrowers to deliver the same to the Agent upon
demand shall constitute a default hereunder.
5.2 Continuing Accuracy of Representations and Warranties. At the time of
each borrowing of any Advances or the issuance of a Letter of Credit hereunder,
the representations and warranties set forth in this Agreement shall be true,
correct, and complete on and as of the date of such borrowing of such Advances
or Letter of Credit issuance hereunder with the same effect as though the
representations and warranties had been made on and as of the date of such
borrowing of such Advances or Letter of Credit issuance. Accordingly, the
borrowing of Advances and the issuance of a Letter of Credit hereunder shall
constitute a certification by the Borrowers to the effect set forth in the
preceding sentence.
5.3 No Default. At the time of each borrowing or issuance of a Letter of
Credit hereunder, the Borrowers shall be in compliance with all terms and
conditions set forth herein, and no Event of Default, nor any event which upon
notice or lapse of time or both would constitute an Event of Default, shall have
occurred and be continuing at the time of such borrowing or Letter of Credit
issuance. Accordingly, the borrowing of Advances and the issuance of a Letter of
Credit hereunder shall constitute a certification by the Borrowers to the effect
set forth in the preceding sentence
5.4 Loan Documents. On or prior to the Closing Date, the Agent shall have
received, duly executed, this Agreement and the other Loan Documents, all in
form and substance satisfactory to the Agent and counsel for the Agent.
5.5 Supporting Documents. On or prior to the Closing Date, the Agent shall
have received the following documents satisfactory in form and substance to the
Agent and counsel for the Agent and, as requested by the Agent, certified by
appropriate corporate or governmental authorities:
(a) a certificate of good standing of each Borrower certified by the
Secretary of State, or other appropriate governmental authority, of their
respective jurisdictions of incorporation or formation;
(b) a certificate of qualification of each Borrower to transact
business in the State of Florida certified by the Secretary of State of
the State of Florida;
(c) a copy of the articles of incorporation or certificate of
limited partnership, as appropriate, of each Borrower certified by the
Secretary of State, or other appropriate governmental authority, of their
respective jurisdictions of incorporation or formation, accompanied by a
certificate from an appropriate officer of such Borrower that the copy is
complete and that the articles of incorporation or certificate of limited
partnership have not been amended, annulled, rescinded, or revoked since
the date of the certificate of the Secretary of State or other appropriate
governmental authority;
(d) a copy of the bylaws of each Borrower in effect on the date of
this Agreement, accompanied by a certificate from an appropriate officer
of such Borrower that the copy is true and complete, and that the bylaws
have not been amended, annulled, rescinded, or revoked since the date of
the bylaws or the last amendment reflected in the copy, if any;
(e) a copy of resolutions of the Board of Directors of each Borrower
authorizing the execution, delivery, and performance of the Loan Documents
and the borrowing thereunder, and specifying the officer or officers of
such Borrower authorized to execute the Loan Documents, accompanied by a
certificate from an appropriate officer that the resolutions are true and
complete, were duly adopted at a duly called meeting in which a quorum was
present and acting throughout, or were duly adopted by written action, and
have not been amended, annulled, rescinded, or revoked in any respect and
remain in full force and effect on the date of the certificate;
(f) an incumbency certificate containing the names, titles, and
genuine signatures of all duly elected officers and directors of each
Borrower as of the date of this Agreement, accompanied by a certificate
from an appropriate officer of such Borrower that the information is true
and complete;
(g) such additional supporting documents as the Agent may
request.
5.6 Opinion of the Borrowers' Counsel. On or prior to the Closing Date,
and to the extent required by the Agent at the time of any borrowing or Letter
of Credit issuance hereunder, the Agent shall have received the favorable
opinion of counsel for Borrowers, in form and substance satisfactory to the
Agent.
SECTION 6. AFFIRMATIVE COVENANTS.
The Borrowers covenant and agree that, from the date of this Agreement
until payment in full of all Advances and all other obligations owing hereunder
or any other Loan Document and termination of the Revolving Credit Facility and
expiration of all Letters of Credit issued thereunder, unless the Agent shall
otherwise consent in writing, the Borrowers will fully comply with the following
provisions:
6.1 Financial Reports and Other Data.
(a) Quarterly Reports. The Borrowers shall deliver to the Agent and
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the Banks within forty-five (45) days after the end of each of the
Borrowers' fiscal quarters, including without limitation, the fourth
quarter of each fiscal year:
(i) The Borrowers' Profit and Loss Statement and Cash Flow
Statement for such quarter and the Borrower's Balance Sheet as at
the last day of such quarter, all in reasonable detail and
satisfactory in scope to the Agent and certified by each Borrower's
chief financial officer as to the fairness and accuracy of such
financial statements and that the same have been prepared in
accordance with Generally Accepted Accounting Principles applied on
a Consistent Basis; and
(ii) a Quarterly Advance Compliance Certificate in
substantially the form attached hereto as Exhibit "L" including a
listing of each Borrower's properties and information on leases,
stating that each Borrower is in compliance with all covenants made
pursuant to the Loan Documents and including a schedule of
computations in reasonable detail demonstrating compliance with the
financial covenants contained in Subsection 6.2 of this Agreement.
Such certificate shall be executed by the chief financial officer of
each Borrower stating that to the best of the officer's knowledge,
such Borrower has kept, observed, performed, and fulfilled each and
every agreement binding on it contained in the Loan Documents, and
is not at the time, nor was at any time during the period covered by
such Quarterly Advance Compliance Certificate, in default of the
keeping, observance, performance, or fulfillment of any of the
terms, provisions, and conditions thereof, and that none of the
Events of Default or events which upon notice or the lapse of time
or both would constitute Events of Default has occurred (or
specifying all such defaults and events of which officer may have
knowledge and what actions such Borrower is taking or proposes to
take with respect thereto).
(b) Annual Reports. The Borrowers shall annually furnish to the
---------------
Agent and the Banks within ninety (90) days after the end of each fiscal
year financial statements of the Borrowers which must be acceptable to the
Agent in the Agent's sole discretion. Such statements shall include, but
not be limited to, a statement of profit and loss, and reconciliation of
surplus statement for such year, and a balance sheet as of the end of such
year, all in reasonable detail and satisfactory in scope to the Agent. All
financial statements shall be prepared in accordance with Generally
Accepted Accounting Principles, applied on a Consistent Basis, accompanied
by an unqualified opinion of independent certified public accountants of
recognized national standing selected by the Borrowers and satisfactory to
the Agent. Together with each delivery of financial statements as required
by this subsection 6.1(b), the Borrowers shall deliver to the Agent a
certificate of the independent certified accountants stating that in
making the examination necessary to said certification of the financial
statements, they obtained no knowledge of any condition or event
pertaining to financial or accounting matters, of the Borrowers that
constitutes an Event of Default or event which after notice by the Agent
or lapse of time, or both, would constitute an Event of Default; or if the
accountants have obtained knowledge of any Event of Default or other such
event, a statement specifying the nature and period of existence thereof.
In addition, such accountants' certificate shall state that with respect
to the fulfillment of any of the terms, covenants, provisions, or
conditions of the Loan Documents, other than those relating to financial
or accounting matters, they have obtained no knowledge of any default or
Event of Default, or if the accountants have obtained knowledge of any
such default or Event of Default they shall make disclosure thereof, but
the accountants shall not be liable to the Agent or the Banks for any
failure to obtain knowledge of any default or Event of Default referred to
in this sentence.
(c) Additional Data. With reasonable promptness, the Borrowers will
---------------
deliver such additional information respecting the business, operations,
and financial condition of any Borrower as the Agent or any Bank may from
time to time reasonably request, including, without limitation, (i) any
and all correspondence with any auditors and/or regulatory agencies which
request changes in or require alterations in the procedures used in
administering or reporting in any Borrower's operations, (ii) any and all
financial statements, reports, notices, and proxy statements sent or made
available by any Borrower to its security holders, all regular and
periodic reports, and all registration statements and prospectuses filed
by any Borrower with the Securities and Exchange Commission or any
governmental authority succeeding to any of its functions, and (iii) all
press releases and other statements made available generally by any
Borrower to the public concerning material developments in the business of
such Borrower.
(d) Sharing of Financial Information. The Agent and the Banks are
----------------------------------
hereby authorized to deliver a copy of any financial statements or any
other information relating to the business operations or financial
condition of any Borrower which may be furnished to them or come to their
attention pursuant to the Loan Documents or otherwise, to any regulatory
body or agency having jurisdiction over Agent or any Bank or to any Person
which shall, or shall have the right or obligation to, succeed to all or
any part of the Agent's or any Bank's interest in the Loan Documents.
6.2 Financial Covenants of the Borrowers. The Borrowers will maintain the
following financial covenants and such computations shall be made on a
consolidated basis in accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis:
(a) the ratio of Total Liabilities to Tangible Net Worth of the
Borrowers shall at all times not be more than 1 to 1.
(b) the ratio of Secured Debt to Total Assets shall at all times not
be more than .30 to 1.
(c) the ratio of Unencumbered Assets to Unsecured Debt shall at all
times not be less than 1.75 to 1.
(d) the ratio of EBITDA for the fiscal quarter most recently ending
to Interest Expense for such fiscal quarter shall not be less than 1.90 to
1.
(e) the ratio of EBITDA for the fiscal quarter most recently ending
to Fixed Charges for such fiscal quarter shall not be less than 1.60 to 1.
(f) the ratio of (i) Gross Lease Revenues from assets which comprise
Unencumbered Assets for the fiscal quarter most recently ending minus the
Applicable Management Fees for such fiscal quarter plus Eligible Mortgage
Income for such fiscal quarter to (ii) Interest Expense on Unsecured Debt
for such fiscal quarter shall not be less than 2.00 to 1.
(g) Tangible Net Worth shall at any time not be less than (i)
$340,000,000 plus (ii) 85% of the net proceeds of all equity issuances
effected by any of the Borrowers at any time after June 30, 1999.
(h) In addition to the foregoing, at all times during which CNLR has
not received an Investment Grade Rating from either Standard & Poor's or
Moody's Investors Service:
(i) Unencumbered Assets shall not be less than
$350,000,000 at any time; and
(ii) (A) 50% of the value of all Excluded Assets shall be
excluded from the calculation of Unencumbered Assets for purposes of
determining compliance with the financial ratios set forth in this
Section 6.2 (including the immediately preceding clause (i)), and
(B) all income which is attributable to Excluded Assets
shall be excluded from the calculation of Gross Lease Revenues and
Eligible Mortgage Income for purposes of determining compliance with
the financial ratios set forth in this Section 6.2.
6.3 Payment and Performance of the Borrowers Obligations. The Borrowers
will make full and timely payment of the principal of and interest on the
indebtedness owed hereunder. The Borrowers will duly comply with all the terms
and covenants contained in the Loan Documents.
6.4 Depository Account. Until the Notes and the other Loan Documents
are paid in full, each Borrower shall maintain a depository account with the
Agent.
6.5 Conduct of Business; Maintenance of Existence. Each Borrower will do
or cause to be done all things necessary to preserve and to keep in full force
and effect its existence and rights and its franchises, trade names, patents,
trademarks, and permits which are necessary for the continuance of its business;
maintain management satisfactory to Required Banks; and continue to engage
principally in the business currently operated by such Borrower.
6.6 Right of Inspection; Discussions. Each Borrower will permit any person
designated by the Agent or any Bank, at such Borrower's expense, to visit and
inspect any of the property, books, records, papers, and financial reports of
such Borrower, including the making of any copies thereof and abstracts
therefrom, and to discuss its affairs, finances, and accounts with its principal
officers, all at such reasonable times and as often as the Agent or any Bank may
reasonably request. Each Borrower will also permit the Agent or any Bank, or its
designated representative, to audit or appraise any of its assets or financial
and business records. Without limiting the foregoing in any way, each Borrower
also agrees to allow the Agent and any Bank or certified public accountants
satisfactory to the Agent or such Bank to review such Borrower's financial
statements, books, and records regarding depreciation and reserves accounting.
Each Borrower further agrees to permit the Agent and the Banks to review each
registration statement and any other offering documents (including any
amendments thereto) (collectively the "Offering Documents") prepared by such
Borrower or at the direction of such Borrower for the purpose of effecting an
offering of an equity interest in such Borrower. The Agent and each Bank shall
have the right to approve any reference to the Agent or such Bank and to this
Agreement in such Offering Documents.
6.7 Notices. Each Borrower will promptly give notice to the Agent
and the Banks of:
(a) the occurrence of any default or Event of Default (or event
which would constitute a default or Event of Default but for the
requirement that notice be given or time elapse or both) hereunder or
under any other obligation of any Borrower, in which case such notice
shall specify the nature thereof, the period of existence thereof, and the
action that the Borrowers propose to take with respect thereto;
(b) the occurrence of any material casualty to any property of any
Borrower or any other force majeure (including, without limitation, any
strike or other labor disturbance) materially affecting the operation or
value of any Borrower (specifying whether or not such casualty or force
majeure is covered by insurance); and
(c) the occurrence of any material event of default pursuant to any
lease under which any Borrower is a Lessor, or the commencement of any
material litigation, dispute, investigation or proceeding that may involve
a claim for damages, injunctive relief, enforcement of other relief
pending, being instituted, or threatened by, against or involving a lessee
under a lease under which any Borrower is a Lessor, or any filing or
commencement by or against any such lessee of a petition, case, proceeding
or other action seeking reorganization, arrangement or readjustment of its
Debt, or any relief under any existing or future law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or any
adverse change which might impair the conduct of such lessee's business or
might materially affect financially or otherwise its business, operations,
assets, properties, prospects or condition of which any Borrower has
notice or knowledge.
(d) the commencement or any material change in the nature or status
of any litigation, dispute, investigation, or proceeding that may involve
a claim for damages, injunctive relief, enforcement, or other relief
pending, being instituted, or threatened by, against or involving any
Borrower, or any attachment, levy, execution, or other process being
instituted by or against any assets of any Borrower, or any other adverse
change which might impair the conduct of the business of the Borrowers or
might materially affect financially or otherwise the business, operations,
assets, properties, prospects, or condition of the Borrowers.
6.8 Payment of Taxes; Liens. Each Borrower will promptly pay, or cause to
be paid, all taxes, assessments and other governmental charges which may
lawfully be levied or assessed (i) upon the income or profits of such Borrower,
(ii) upon any property, real, personal or mixed, belonging to such Borrower, or
upon any part thereof, or (iii) by reason of employee benefit plans sponsored by
such Borrower, and also any lawful claims for labor, material, and supplies
which, if unpaid, might become a Lien or charge against any such property;
provided, however, no Borrower shall be required to pay any such tax,
assessment, charge, levy, or claim so long as the validity thereof shall be
actively contested in good faith by proper proceedings; but provided further
that any such tax, assessment, charge, levy, or claim shall be paid forthwith
upon the commencement of proceedings to foreclose any Lien securing the same.
6.9 Maintenance of Property, Leases. Each Borrower will maintain its
property in good condition and repair and, from time to time, make all necessary
and proper repairs, renewals, replacements, additions and improvements thereto,
so that any business carried on may be properly and advantageously conducted at
all times in accordance with prudent business management. Each Borrower will
maintain all leases on its property and ground leases to which it is a party in
good standing, will perform all of its obligations thereunder when due.
6.10 ERISA Benefit Plans. Each Borrower will comply with all requirements
of ERISA applicable to it and will not materially increase its liabilities under
or violate the terms of any present or future benefit plans maintained by it
without the prior approval of the Agent. Each Borrower will furnish to the Agent
as soon as possible and in any event within 10 days after the Borrower or a duly
appointed administrator of a plan (as defined in ERISA) knows or has reason to
know that any reportable event, funding deficiency, or prohibited transaction
(as defined in ERISA) with respect to any plan has occurred, a statement of the
chief financial officer of such Borrower describing in reasonable detail such
reportable event, funding deficiency, or prohibited transaction and any action
which such Borrower proposes to take with respect thereof, together with a copy
of the notice of such event given to the Pension Benefit Guaranty Corporation or
the Internal Revenue Service or a statement that said notice will be filed with
the annual report of the United States Department of Labor with respect to such
plan if such filing has been authorized.
6.11 Insurance of Property. Each Borrower will keep its business and its
Unencumbered Assets insured at all times for full replacement value or otherwise
in amounts acceptable to Agent and all of its other assets insured in
commercially reasonable amounts, all by commercially reasonable insurance
companies against the risks for which provision for such insurance is usually
made by other Persons engaged in a similar business similarly situated
(including without limitation insurance for fire and other hazards and insurance
against liability on account of damage to persons or property and insurance
under all applicable workmen's compensation laws) and to the same extent thereto
and carry such other types and amounts of insurance as are usually carried by
Persons engaged in the same or a similar business similarly situated, and upon
request deliver to the Agent, on behalf of the Banks, a certificate from the
insurer setting forth the nature of the risks covered by such insurance, the
amount carried with respect to each risk, and the name of the insurer. Each
Borrower hereby agrees that any proceeds from such insurance coverage shall be
applied to either (i) repair or rebuild the property for which such proceeds are
being received, (ii) acquire a substantially equivalent property with a
substantially equivalent lease stream of similar credit quality or (iii) repay
any borrowings hereunder.
6.12 True Books. Each Borrower will keep proper and true books of record
and account, reasonably satisfactory to the Agent, in which full, true, and
correct entries will be made of all of its dealings and transactions, and
establish on its books such reserves as may be required by Generally Accepted
Accounting Principles with respect to all taxes, assessments, charges, levies,
and claims referred to in Section 6.8 hereof, and with respect to its business
in general, and will include such reserves in any interim as well as year-end
financial statements.
6.13 Observance of Laws. Each Borrower will conform to and duly observe
all laws, regulations, and other valid requirements of any Governmental
Authority with respect to the conduct of its business, including but not limited
to, applicable ERISA, environmental and transportation laws.
6.14 Further Assurances. At its cost and expense, upon request of the
Agent, each Borrower will duly execute and deliver or cause to be duly executed
and delivered to the Agent, such further instruments or documents and do and
cause to be done such further acts as may be reasonably necessary or proper in
the opinion of the Agent to carry out more effectively the provisions and
purposes of this Agreement.
6.15 Change of Name, Principal Place of Business, Office, or the Agent.
Each Borrower will notify the Agent of any change in the name of such Borrower,
the principal place of business of such Borrower, the office where the books and
records of such Borrower are kept, or any change in the registered agent of such
Borrower for the purposes of service of process. No Borrower will change the
chief executive office of such Borrower from Orange County, Florida, without
first notifying the Agent.
6.16 Status. CNLR shall at all times comply with all requirements of
applicable laws and regulations necessary for CNLR to maintain its REIT Status.
Net I, Net II, Net III, Net IV and Funding shall at all times comply with all
requirements of applicable laws and regulations necessary to maintain Qualified
REIT Subsidiary Status.
6.17 Syndication of Credit. Each Borrower agrees to cooperate with the
Agent in connection with its intended further syndication of the Revolving
Credit Facility, such cooperation to include, but not be limited to, attendance
by management personnel of the Borrowers at meetings arranged by the Agent with
representatives of potentially participating commercial lending institutions,
provision of information regarding the Borrower's business operations and
financial condition, and response to questions and inquiries regarding the
Borrowers.
6.18 Exchange Listing. CNLR shall at all times maintain at least one class
of common shares of CNLR having trading privileges on the New York Stock
Exchange or the American Stock Exchange or which is subject to price quotations
on The NASDAQ Stock Market's National Market System.
6.19 Ownership of RE-Stores. The Borrowers and CNLRS, collectively, shall
at all times own 100% of the outstanding equity or other ownership interests in
RE-Stores, Inc.
6.20 New Borrowers. Provided that no default or Event of Default exists
immediately prior thereto and after giving effect thereto, CNLRS, any
Wholly-Owned Subsidiary of CNLRS, any Wholly-Owned Subsidiary of CNLR and/or a
limited partnership which is a Subsidiary of CNLR may become Borrowers hereunder
by executing and delivering to the Agent a Joinder Agreement, together with the
other items required to be delivered as set forth below, each in form and
substance satisfactory to the Agent:
(i) the articles of incorporation, articles of organization,
certificate of limited partnership or other comparable organizational
instrument (if any) of such Person certified as of a recent date by the
Secretary of State of the State of formation of such Person;
(ii) a Certificate of Good Standing or certificate of similar
meaning with respect to such Person issued as of a recent date by the
Secretary of State of the State of formation of such Person and
certificates of qualification to transact business or other comparable
certificates issued by each Secretary of State (and any state department
of taxation, as applicable) of each state in which such Person is required
to be so qualified;
(iii) a certificate of incumbency signed by the Secretary or
Assistant Secretary (or other individual performing similar functions) of
such Person with respect to each of the officers of such Person authorized
to execute and deliver the Loan Documents to which such Person is a party;
(iv) copies certified by the Secretary or Assistant Secretary of
such Person (or other individual performing similar functions) of (1) the
by-laws of such Person, if a corporation, or the partnership agreement, if
a limited partnership, and (2) all corporate or partnership action taken
by such Person to authorize the execution, delivery and performance of the
Loan Documents to which it is a party;
(v) an opinion of counsel for the Borrowers, addressed to the Agent
and the Banks, and regarding, among other things, the authority of such
Person to execute, deliver and perform the Agreement, and such other
matters as the Agent or its counsel may request;
(vi) in the case of CNLRS, a copy of the documentation effectuating
the conversion of CNLRS to a Taxable REIT Subsidiary (as defined in
Section 856(l) of the Internal Revenue Code 1986, as amended); and
(vii) such other documents and instruments as the Agent may
reasonably request.
SECTION 7. NEGATIVE COVENANTS.
The Borrowers covenant and agree that from the date of this Agreement
until payment in full of all Advances and all other obligations owing hereunder
or under any other Loan Document and termination of the Revolving Credit
Facility and expiration of all Letters of Credit issued thereunder, the
Borrowers will fully comply with the following provisions:
7.1 Limitations on Unsecured Debt. No Borrower shall create, incur,
assume, or permit or suffer to exist any Unsecured Debt other than the
following: (a) the Revolving Credit Advances and the other obligations owing
hereunder and under the other Loan Documents; (b) Unsecured Debt which is not
revolving debt and which matures by its terms on a date subsequent to the
Revolving Credit Maturity Date; (c) other Unsecured Debt which was incurred in
connection with an offering of Debt securities (i) made pursuant to an effective
registration statement filed with the Securities and Exchange Commission or (ii)
exempt from the registration requirements of the Securities Act pursuant to Rule
144A thereof so long as such Debt securities are required to be exchanged for
Debt securities referred to in the preceding clause (i); and (d) other Unsecured
Debt not to exceed $15,000,000 in aggregate outstanding principal amount at any
time. Notwithstanding the foregoing, the Borrowers shall not create, incur or
assume any Debt after the date hereof if immediately prior to the creation,
incurring or assumption thereof, or immediately thereafter and after giving
effect thereto, an Event of Default is or would be in existence, including
without limitation, an Event of Default resulting from a violation of any of the
covenants contained in Section 6.2.
7.2 Limitations on Dividends. The Borrowers will not, and will not permit
any of their Subsidiaries to, declare or make any Restricted Payments; provided,
however, that (a) Subsidiaries of CNLR may make Restricted Payments to CNLR or
other Subsidiaries of CNLR; (b) CNLR and the Up-REIT Borrower may declare or
make cash distributions to their shareholders and partners, respectively, during
any period of four consecutive fiscal quarters in an aggregate amount not to
exceed 100% of Funds Available for Distribution for such four quarter period;
(c) CNLR may purchase up to five percent (5%) of its outstanding common stock
during any calendar year (based upon the actual number of shares of common stock
outstanding on January 1 of such calendar year) pursuant to a stock buyback
program instituted by CNLR; and (d) subject to the following sentence, if an
Event of Default (or event with the passage of time, the giving of notice or
both would become an Event of Default) shall have occurred and be continuing,
CNLR and the Up-REIT Borrower may only declare or make cash distributions to
their shareholders and partners, respectively, during any fiscal year in an
aggregate amount not to exceed the lesser of (i) the amount otherwise permitted
to be declared or made under the immediately preceding clause (b) and (ii) the
minimum amount necessary for CNLR to remain in compliance with Section 6.16.
Notwithstanding the foregoing, if an Event of Default (or event with the passage
of time, the giving of notice or both would become an Event of Default)
specified in Section 8.1, Section 8.4 or 8.5 shall have occurred and be
continuing, or if as a result of the occurrence of any other Event of Default
the obligations of the Borrowers hereunder have been accelerated pursuant to
Section 8, no Borrower shall make any Restricted Payments whatsoever.
7.3 Merger, Sale of Assets, Dissolution, Etc. No Borrower will, directly
or indirectly, (a) enter into any transaction of merger or consolidation; or (b)
allow any change in control of any Borrower; or (c) transfer, sell, assign,
lease, or otherwise dispose of all or a substantial part of its properties or
assets; or (d) transfer, sell, assign, lease, convey, or otherwise dispose of
any of its real property, except that a Borrower may, so long as there exists no
Event of Default or circumstance which with the giving of notice or passage of
time would become an Event of Default, (i) transfer real property to another
Borrower, and (ii) sell real property in the ordinary course of business to
third parties, including affiliates of the Borrowers, provided that such sale is
made upon fair and reasonable terms that are no less favorable to the Borrowers
than those which might be obtained in an arm's-length transaction at the time
from Persons which are not affiliates of the Borrowers; or (e) change the nature
of its business; or (f) except as otherwise specifically contemplated by this
Agreement, invest in, transfer any assets to, or do business through any
Subsidiary except the Up-REIT Borrower and Wholly-Owned Subsidiaries engaged in
the same business as the Borrower which agree to become borrowers hereunder upon
formation; or (g) wind up, liquidate, or dissolve itself or its business; or (h)
agree to any of the foregoing. Notwithstanding the foregoing, no consent of
Agent or the Banks shall be required for (i) a merger between CNLR and CNLRS so
long as CNLR is the survivor of such merger and no Event of Default results from
such merger or (ii) a merger between the Up-REIT Borrower and Funding so long as
the Up-REIT Borrower is the survivor of such merger and no Event of Default
results from such merger.
7.4 Limitations on Loans, Advances, and Investments. No Borrower will,
directly or indirectly, make or have outstanding a loan or advance to or an
investment in, all or a substantial part of the assets or properties of, or own
or acquire stock or other securities of, any Person, except (a) stock or other
securities received in settlement of a debt that was created in the ordinary
course of business, (b) travel advances in the ordinary course of business to
its officers and employees, (c) readily marketable securities issued by the
United States of America, and (d) certificates of deposit or repurchase
agreements of a Bank or of any other financial institution of comparable
standing; (e) investments in (i) the Up-REIT Borrower, and (ii) Subsidiaries of
the Borrowers engaged in the same business as the Borrowers which agree to
become Borrowers hereunder upon formation; (f) notes and mortgages in favor of
the Borrower which secure the obligation of seller under a property acquisition
contract to refund an earnest money deposit or portion thereof; (g) for so long
as neither CNLRS nor any Subsidiary of CNLRS is a Borrower hereunder,
investments in, including loans to, CNLRS and Subsidiaries of CNLRS in an
aggregate amount not to exceed $100,000,000, provided that any such investments
in RE-Stores, Inc. shall not exceed at any time $50,000,000 in the aggregate;
(h) investments and loans in Eligible Mortgage Notes Receivable in favor of a
Borrower in connection with the sale of real property assets in the ordinary
course of business; provided, that any purchase money mortgage executed and
delivered in connection with any such Eligible Mortgage Note Receivable is duly
recorded in the appropriate real estate recording office; (i) investments in CNL
Commercial Funding, L.P. in the form of a loan in an amount not to exceed
$7,000,000, or, in the alternative, investments in Commercial Finance, Inc. in
the form of equity in an aggregate amount not to exceed $7,000,000; and (j)
investments to the extent permitted under Section 7.8.
7.5 Regulation U. No Borrower will permit any part of the proceeds of any
Advance or any Letter of Credit to be used to purchase or carry or to reduce or
retire any loan incurred to purchase or carry, any margin stock (within the
meaning of Regulation U of the Board of Governors of the Federal Reserve System)
in violation of Regulation U or to extend credit to others for the purpose of
purchasing or carrying any such margin stock in violation of Regulation U, or to
be used for any other purpose which violates, or which would be inconsistent
with, the provisions of Regulation U or other applicable regulation. Each
Borrower covenants that it is not engaged and will not become engaged as one of
its principal or important activities in extending credit for the purpose of
purchasing or carrying such margin stock. If requested by the Agent, each
Borrower will furnish to the Agent in connection with any loan or loans
hereunder, a statement in conformity with the requirements of Federal Reserve
Form U-1 or G-3, as applicable, referred to in said Regulation. In addition,
each Borrower covenants that no part of the proceeds of any Advance or any
Letter of Credit will be used for the purchase of commodity future contracts (or
margins therefor for short sales) for any commodity not required for the normal
raw material inventory of such Borrower.
7.6 Insider Transactions. No Borrower will, directly or indirectly,
purchase, acquire or lease any property or asset from, or sell, dispose of or
lease any property or assets to, or otherwise deal with, in the ordinary course
of business or otherwise, (i) any stockholder or (ii) any other related entity
(except for any such transaction by and among the Borrowers), except upon terms
and conditions not less favorable to such Borrower than if no such relationship
existed and upon approval thereof by the independent members of such Borrower's
board of directors (or other body of individuals performing a similar function),
or except for transactions of which the Agent has been notified in writing by
such Borrower and Required Banks have consented thereto, which consent will not
be unreasonably withheld.
7.7 Changes in Governing Documents, Accounting Methods, Fiscal Year. No
Borrower will amend in any material respect its organizational documents from
that in existence on the date of this Agreement or make any material changes to
its accounting methods or practices, its depreciation or amortization policy or
rates, or its fiscal year end from that in existence as of the date of the
financial statements provided to the Agent pursuant to Section 6.1 hereof,
except as required to comply with law or with Generally Accepted Accounting
Principles or except as consented to in writing by the Agent, which consent
shall not be unreasonably withheld. Notwithstanding the foregoing, the Up-REIT
Borrower may amend its partnership agreement without the necessity of obtaining
the consent of the Agent for the sole purpose of admitting additional limited
partners to the partnership so long as such amendment does adversely affect the
rights of the Banks hereunder.
7.8 Certain Permitted Investments. Notwithstanding the provisions of
Section 7.4, the Borrowers shall not, and shall not permit any of their
Subsidiaries to, make any investment in or otherwise own the following items
which would cause the aggregate value of such holdings of the Borrowers and
their Subsidiaries to exceed the applicable limits set forth below:
(a) common stock, preferred stock and any other capital stock or
other equity interests in, or loans to, unconsolidated affiliates, such
that the aggregate value of such interests, calculated on the basis of
cost, or loans, exceeds ten percent (10.0%) of Total Assets; provided,
however, that CNLRS and Re-Stores, Inc. shall not be considered
unconsolidated affiliates for purposes of this Section 7.8(a) at all times
prior to March 31, 2001;
(b) investments in, or loans to, general and limited partnerships,
joint ventures and other Persons which are not corporations and which
investments are accounted for on an equity basis in accordance with GAAP,
such that the aggregate book value of such investments, including loans,
exceeds ten percent (10.0%) of Total Assets. The loan from CNLR to
CorpREX, LLC in an amount up to $10,000,000 and the investments described
in Section 7.4(i), shall be considered to be an investment subject to the
limitations of this Section 7.8(b);
(c) unimproved real estate which is not subject to a lease under
which any Borrower is the lessor, such that the aggregate book value of
all such unimproved real estate exceeds five percent (5.0%) of Total
Assets; and
(d) real property under construction such that the aggregate
Construction Budget for all such real property exceeds fifteen percent
(15.0%) of Total Assets; provided, however, the Borrowers shall not make
investments in real property under construction otherwise permitted
hereunder unless (i) at least seventy-five percent (75%) of the total
square footage under construction is the subject of executed leases, (ii)
all necessary permits are in place and (iii) the project relating to such
real property under construction is subject to a guaranteed maximum price
construction contract.
(e) investments in loans and interests in securitized pools of
promissory notes, mortgage loans, chattel paper, leases or similar
financial assets originated by Commercial Finance, Inc., a joint venture
between CNL Commercial Funding, L.P. and BYL BanCorp such that the
aggregate value (determined on the basis of lower of cost or fair value)
of all such loans and investments made pursuant to this clause (e) exceeds
the greater of (x) the lesser of (i) $60,000,000 or (ii) seven and
one-half percent (7.5%) of Total Assets or (y) ten percent (10%) of
Tangible Net Worth;
In addition to the foregoing limitations, the aggregate value of all of the
items subject to the limitations in the preceding clauses (a) through (e) shall
not exceed twenty-five percent (25.0%) of Total Assets.
7.9 Ownership of Assets. No general partner nor any limited partner of the
Up-REIT Borrower, which general partner or limited partner is a Subsidiary of
CNLR, shall own any assets other than their respective ownership interests in
the Up-REIT Borrower.
SECTION 8. EVENTS OF DEFAULT.
It shall be an Event of Default if:
8.1 Payment of Obligations to the Banks. Any Borrower fails to make
payment of any principal, interest, or other amount due on any indebtedness owed
the Agent or the Banks hereunder, or fails to make any other payment to the
Agent or the Banks as contemplated hereunder either by the terms hereof or
otherwise.
8.2 Representation or Warranty. Any representation or warranty made or
deemed made by any Borrower herein or in any writing furnished in connection
with or pursuant to the loan application and loan commitment for the credit
facilities contemplated by this Agreement or in connection with or pursuant to
the Loan Documents shall be false in any material adverse respect on the date
when made or when deemed made.
8.3 Covenants. Any Borrower defaults in the performance or observance of
or breaches any agreement, covenant, term, or condition binding on it contained
in the Loan Documents.
8.4 Any Borrower's Liquidation; Dissolution; Bankruptcy; Etc. Any
liquidation or dissolution of any Borrower, suspension of the business of any
Borrower, or the filing or commencement by any Borrower of a voluntary petition,
case, proceeding, or other action seeking reorganization, arrangement,
readjustment of its debts; or commencement of an involuntary petition, case,
proceeding or other action against Borrowers seeking reorganization, arrangement
or readjustment of its debts, which is not vacated, discharged, stayed, bonded
or dismissed within 60 days of its commencement; or the entry of an order for
relief under any existing or future law of any jurisdiction, domestic or
foreign, state or federal, relating to bankruptcy, insolvency, reorganization or
relief of debtors, or any other action of any Borrower indicating its consent
to, approval of, or acquiescence in, any such petition, case, proceeding, or
other action seeking to have an order for relief entered with respect to it or
its debts; the application by any Borrower for, or the appointment, by consent
or acquiescence of, a receiver, trustee, custodian, or other similar official
for any Borrower or for all or a substantial part of its property; the making by
any Borrower of an assignment for the benefit of creditors; or the inability of
any Borrower or the admission by any Borrower in writing of its inability to pay
its debts as they mature.
8.5 Order of Dissolution. Any order is entered in any proceedings against
any Borrower decreeing the dissolution or split-up of such Borrower, and such
order remains in effect for more than sixty (60) days.
8.6 Reports and Certificates. Any report, certificate, financial
statement, or other instrument delivered to the Agent or the Banks by any
Borrower is at any time false or misleading in any material adverse respect.
8.7 Judgments. The rendition of a final judgment against any Borrower for
the payment of damages or money in excess of Ten Million Dollars ($10,000,000)
if the same is not discharged, bonded off or transferred to other security or if
a writ of execution or similar process is issued with respect thereto and is not
stayed within the time allowed by law for filing notice of appeal of the final
judgment.
8.8 Liens Imposed by Law. The violation of any law or any act or omission
by any Borrower that results in the imposition of a Lien by operation of law on
any of its property, if the Lien is not discharged, bonded off or transferred to
other security within sixty (60) days after it has attached and if the Lien
relates to a claim for the payment of damages or money in excess of Ten Million
Dollars ($10,000,000).
8.9 Corporate Existence. Any act or omission (formal or informal) of any
Borrower or its officers, directors, shareholders, or partners leading to, or
resulting in, the termination, invalidation (partial or total), revocation,
suspension, interruption, or unenforceability of its existence, or the transfer
or disposition (whether by sale, lease, or otherwise) to any Person of all or a
substantial part of its property.
8.10 ERISA. Any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $1,000,000 which it shall have become
liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or to cause a trustee to be appointed to administer any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $1,000,000.
8.11 Cross-Default.
(i) Any Borrower shall fail to pay when due and payable (following
the expiration of any applicable cure periods) the principal of, or
interest on, any Debt (other than the Loans) having an aggregate
outstanding principal amount of $10,000,000 or more ("Material Debt"); or
(ii) The maturity of any material Debt shall have (x) been
accelerated in accordance with the provisions of any indenture, contract
or instrument evidencing, providing for the creation of or otherwise
concerning such Debt or (y) been required to be prepaid prior to the
stated maturity thereof; or
(iii) Any other event shall have occurred and be continuing which
would permit any holder or holders of any Material Debt, any trustee or
agent acting on behalf of such holder or holders or any other Person, to
accelerate the maturity of any such Debt or require any such Debt to be
prepaid prior to its stated maturity.
8.12 Change of Control. Neither CNLR nor a Wholly-Owned Subsidiary of CNLR
shall be the sole general partner of the Up-REIT Borrower having the sole and
exclusive power to exercise all management and control over the Up-REIT
Borrower.
THEN (i) upon the occurrence of any Event of Default described in
the foregoing Subsections 8.4 or 8.5, the unpaid principal amount of and accrued
interest on all Advances and all other obligations under the Loan Documents
shall automatically become immediately due and payable, without presentment,
demand, protest, or other requirement of any kind, all of which are expressly
waived by each Borrower and the commitments of each Bank to make Advances
hereunder and the obligation of the Issuing Bank to issue Letters of Credit
hereunder and the obligation of the Swingline Lender to make Swingline Loans
hereunder shall thereupon terminate; and (ii) upon the occurrence and during the
continuance of any other Event of Default: (a) the Agent shall, upon the written
request or with the written consent of the Required Banks take any one or more
of the following actions: (1) declare all or any portion of the amounts
described in (i) to be, and the same shall forthwith become, immediately due and
payable, without presentment, demand, protest, or other requirement of any kind,
all of which are expressly waived by each Borrower, and (2) declare all
commitments to make Revolving Credit Advances hereunder and the obligation of
the Issuing Bank to issue Letters of Credit hereunder to be terminated, and (b)
any Bank may give notice to the Borrowers and the Agent terminating its
commitment to make further Revolving Credit Advances hereunder. Further, if the
Agent has exercised any of the rights provided under clause (ii) the preceding
sentence, the Swingline Lender shall: (x) declare the principal of, and accrued
interest on, the Swingline Loans and the Swingline Note at the time outstanding,
and all of the other obligations owing to the Swingline Lender, to be forthwith
due and payable, whereupon the same shall immediately become due and payable
without presentment, demand, protest or other notice of any kind, all of which
are expressly waived by the Borrower and (y) terminate the Swingline Commitment
and the obligation of the Swingline Lender to make Swingline Loans. In any case,
the Borrowers shall be required to pay to the Agent a sum equal to the maximum
amount available under any Letters of Credit, which sum the Agent will hold for
reimbursement of any amounts drawn under Letters of Credit and the Issuing Bank
may terminate any Letters of Credit providing for such termination by sending a
notice of termination as provided therein. The Agent may immediately proceed to
do all other things provided for by law or the Loan Documents to enforce the
rights of the Agent, the Issuing Bank, and the Banks hereunder and to collect
all amounts owing to the Agent, the Issuing Bank, the Swingline Lender and the
Banks by the Borrowers. No right, power, or remedy conferred upon the Agent, the
Issuing Bank, the Swingline Lender or the Banks by the Loan Documents shall be
exclusive of any other right, power, or remedy referred to therein or now or
hereafter available at law or in equity. Notwithstanding the foregoing, an Event
of Default under subsection 8.3, 8.6 or 8.7 above shall not be deemed to have
occurred if the matter described therein is cured within thirty (30) days after
written notice thereof has been given by the Agent to the Borrowers, an Event of
Default under subsections 8.1 or 8.2 above shall not be deemed to have occurred
if the matter described therein is cured within five (5) days after written
notice thereof has been given by the Agent to the Borrowers; provided however,
that notwithstanding anything herein to the contrary, in the case of an default
in performance by the Borrowers of Section 7.1., (i) each Bank's Revolving
Credit Commitment and the Swingline Lender's Swingline Commitment shall
automatically terminate immediately upon such default in performance without the
necessity of notice, vote or any other action on the part of the Agent or the
other Banks, (ii) an Event of Default shall be deemed to have occurred if the
Borrowers fail to repay all outstanding Advances within thirty (30) days after
such Debt was incurred, and (iii) if the Borrowers fail to repay all Advances
within such thirty (30) day period, the Borrowers shall pay interest on all
Advances outstanding from and after the incurrence of the Debt which resulted in
a violation of Section 7.1. at the Default Rate.
SECTION 9. THE AGENT
9.1 Appointment, Authorization, and Action.
(a) Each Bank hereby irrevocably appoints and authorizes the Agent
to act as its contractual representative hereunder and take such action on its
behalf and to exercise such powers and discretion under this Agreement and the
other Loan Documents as are delegated to the Agent by the terms hereof, together
with such powers as are reasonably incidental thereto. Nothing herein or in any
of the other Loan Documents shall be construed to constitute the Agent a trustee
for any Bank or to establish a fiduciary relationship with any Bank or impose on
the Agent any duties, responsibilities, or obligations other than those
expressly set forth in this Agreement or the other Loan Documents.
(b) The Agent shall be entitled to use its reasonable discretion
with respect to exercising or refraining from exercising any rights or taking
any actions which may be vested in it or which it may be able to take under or
in respect of this Agreement and the other Loan Documents, unless this Agreement
expressly otherwise provides or unless the Agent shall have been instructed by
the Required Banks to exercise or refrain from exercising such rights or taking
such actions (in which case it shall be required to so act or refrain from
acting pursuant to the directions of the Required Banks); provided, however,
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that the Agent shall not be required to take any action or refrain from acting
in any manner which in its reasonable judgment exposes the Agent to personal
liability or which is contrary to this Agreement or applicable law. The Agent
agrees to give to each Bank prompt notice of each notice given to it by any
Borrower pursuant to the terms of this Agreement.
9.2 Delegation of Duties. The Agent may execute any of its duties under
this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by the
Agent with reasonable care.
9.3 Exculpatory Provisions. Neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact, Subsidiaries or affiliates
shall be (a) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or the other Loan
Documents (except for actions occasioned solely by its or such Person's own bad
faith, gross negligence or willful misconduct), or (b) responsible in any manner
to any of the Banks for any recitals, statements, representations, or warranties
made by any Borrower or any officer thereof contained in this Agreement or the
other Loan Documents or in any certificate, report, statement, or other document
referred to or provided for in, or received by the Agent under or in connection
with, this Agreement or the other Loan Documents or for the value, validity,
effectiveness, genuineness, enforceability, or sufficiency of this Agreement or
the other Loan Documents or for any failure of any Borrower to perform its
obligations hereunder or thereunder. The Agent shall not be under any obligation
to any Bank to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement, or to
inspect the properties, books, or records of any Borrower.
9.4 Reliance by the Agent. The Agent shall be entitled to rely, and shall
be fully protected in relying, upon any note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex,
or teletype message, statement, order or other document or conversation believed
by it to be genuine and correct, and to have been signed, sent, or made by the
proper Person or Persons, and upon advice and statements of legal counsel
(including without limitation, counsel to any Borrower), independent
accountants, and other experts selected by the Agent. The Agent may deem and
treat the payee of any Note as the owner thereof for all purposes unless such
Note shall have been transferred in accordance with Section 11.4 hereof. The
Agent shall be fully justified in failing or refusing to take any action under
this Agreement and the other Loan Documents unless it shall first receive such
advice or concurrence of the Required Banks (or, when expressly required hereby
or by the relevant other Loan Document, all the Banks) as it deems appropriate
and it shall first be indemnified to its satisfaction by the Banks against any
and all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action except for liabilities arising solely from
its own gross negligence or willful misconduct. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement
and the other Loan Documents in accordance with a request of the Required Banks
(or, when expressly required hereby, all the Banks), and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Banks and all future holders of the Note.
9.5 Agent and Affiliates. With respect to its Revolving Credit Commitment
and the Advances made by it, the Agent shall have the same rights and powers
under the Loan Documents as any other Bank and may exercise the same as though
it were not the Agent; and the term "Bank" or "Banks" shall, unless otherwise
indicated, include the Agent in its individual capacity. The Agent and its
affiliates may (without having to account therefor to any Bank) accept deposits
from, lend money to, act as trustee under indentures of, accept investment
banking engagements from, and generally engage in any kind of business with, any
Borrower, and any Person who may do business with or own securities of any
Borrower all as if it were not the Agent. The Agent and its affiliates may
accept fees and other consideration from any Borrower for services in connection
with this Agreement or otherwise without having to account for the same to the
Banks.
9.6 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Event of Default hereunder unless it has
received written notice or telephonic notice confirmed immediately in writing
from a Bank or any Borrower referring to this Agreement, describing such Event
of Default and stating that such notice is a "notice of default". In the event
that the Agent receives such a notice, it shall promptly give notice thereof to
the Banks. The Agent shall take such action with respect to such Event of
Default as shall be reasonably directed by the Required Banks; provided that
unless and until the Agent shall have received such directions, the Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Event of Default as it shall deem advisable in the
best interests of the Banks.
9.7 Non-Reliance on the Agent and Other Banks. Each Bank expressly
acknowledges that neither the Agent nor any of its respective officers,
directors, employees, agents, attorneys-in-fact, Subsidiaries or affiliates has
made any representations or warranties to it and that no act by the Agent
hereinafter taken, including any review of the affairs of any Borrower, shall be
deemed to constitute any representation or warranty by the Agent to any Bank.
Each Bank represents to the Agent that it has, independently and without
reliance upon the Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrowers, and made its own decision to
enter into this Agreement. Each Bank also represents that it will, independently
and without reliance upon the Agent or any other Bank, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals, and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrowers. Except for notices, reports, and other documents expressly required
to be furnished to the Banks by the Agent hereunder or by the other Loan
Documents, the Agent shall not have any duty or responsibility to provide any
bank with any credit or other information concerning the business, operations,
property, financial, and other condition or creditworthiness of the Borrowers
which may come into the possession of the Agent or any of its respective
officers, directors, employees, agents, attorneys-in-fact, Subsidiaries, or
affiliates.
9.8 Enforcement by the Agent. All rights of action under this Agreement
and the other Loan Documents may be enforced by the Agent and any suit or
proceeding instituted by the Agent in furtherance of such enforcement may be
brought in its name as the Agent without the necessity of joining any Banks as
plaintiffs or defendants, and the recovery of any judgment shall be for the
benefit of the Banks, subject to the expenses of the Agent. Unless otherwise
permitted by the Required Banks, no Bank (other than the Agent) shall attempt to
enforce any rights of action under this Agreement and the other Loan Documents.
9.9 Indemnification. The Banks agree to indemnify each of the Agent and
the Arranger in its respective capacity as such and to the extent not promptly
reimbursed by the Borrowers and without limiting the obligations of the
Borrowers to do so, ratably according to their respective Pro Rata Portions,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses, or disbursements or any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against the Agent or the Arranger in any way relating to or arising out of this
Agreement or any other Loan Documents or the transactions contemplated thereby,
or any action taken or omitted by the Agent or the Arranger in connection
therewith (including, without limitation, the costs and expenses payable by the
Borrowers under Subsection 11.2); provided, however, that no Bank shall be
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liable for any of the foregoing to the extent they arise from the Agent's or the
Arranger's gross negligence, bad faith or willful misconduct. Without limiting
the foregoing, each Bank agrees to reimburse the Agent and the Arranger promptly
upon demand for such Bank's ratable share of any costs and expenses payable by
the Borrowers under Section 11.2, to the extent that the Agent or the Arranger
is not promptly reimbursed for such costs and expenses by the Borrowers. The
agreements contained in this Subsection shall survive the repayment of the
Advances and termination of the facilities hereunder.
9.10 Failure to Act. Except for actions expressly required of the Agent
hereunder and under the other Loan Documents, the Agent shall in all cases be
fully justified in failing or refusing to act hereunder and thereunder unless it
shall receive further assurances to its satisfaction from the Banks of their
indemnification obligations hereunder against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action.
9.11 Successor Agent. Subject to the appointment and acceptance of a
successor as provided below, the Agent may resign at any time by giving written
notice thereof to the Banks and the Borrowers. Upon any such resignation and
after consultation with the Borrowers, the Required Banks shall have the right
to appoint a successor Agent. If no successor Agent shall have been so appointed
by the Required Banks and shall have accepted such appointment, within 30 days
after the retiring Agent's giving of notice of resignation, then the retiring
Agent may, on behalf of the Banks, and after consultation with the Borrowers,
appoint a successor Agent, which shall be a commercial bank organized under the
laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least $500,000,000.00. Upon the acceptance of
any appointment as the Agent hereunder by a successor Agent, such successor
Agent shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges, and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under the Loan Documents.
After any retiring Agent's resignation hereunder as the Agent, the provisions of
this Section shall inure to its benefit as to any actions taken or omitted to be
taken by its while it was the Agent under this Agreement.
9.12 Titled Parties Have No Duties. Neither the Arranger nor the
Syndication Agent (each in such capacity, a "Titled Party") assumes any
responsibility or obligation hereunder, including, without limitation, for
servicing, enforcement or collection of any of the Advances, nor any duties as
an agent hereunder for the Banks. The titles of "Arranger" and "Syndication
Agent" are solely honorific and imply no fiduciary responsibility on the part of
the Titled Parties to the Agent, the Borrowers or any Bank and the use of such
titles does not impose on the Titled Parties any duties or obligations greater
than those of any other Lender.
SECTION 10. INDEMNIFICATION BY BORROWERS.
The Borrowers hereby jointly and severally agree to indemnify the Agent,
the Issuing Bank, and each Bank and their respective officers, directors,
employees, and agents (individually an "Indemnified Party" and collectively the
"Indemnified Parties") against and agrees to hold the Indemnified Parties
harmless from, any and all liabilities, losses, claims, damages, and expenses
(including reasonable counsel fees and expenses) of any kind whatsoever arising
out of, or in any way connected with, or as a result of (a) the transactions
contemplated in the Loan Documents, (b) the use of proceeds of any Advance or of
any Letter of Credit, (c) the execution and delivery of any subsequent credit
documentation or other document contemplated hereby or thereby by the parties
hereto or the performance of their respective obligations hereunder or
thereunder or (d) any claim, action, suit, investigation, or proceeding relating
to the foregoing or to any Borrower whether or not the Indemnified Party is a
party thereto; provided that in no event shall any Borrower be liable for
indemnity hereunder by reason of any act or omission caused by the bad faith,
gross negligence, or willful misconduct of any Indemnified Party. The foregoing
indemnity shall be effective regardless of any investigation made by or on
behalf of the Agent, the Issuing Bank, any Bank, or any Borrower.
SECTION 11. MISCELLANEOUS.
11.1 Course of Dealing; Amendments; Waiver. Except as otherwise expressly
provided in this Agreement, any consent or approval required or permitted by
this Agreement or in any Loan Document to be given by the Banks may be given,
and any term of this Agreement or of any other Loan Document may be amended, and
the performance or observance by the Borrowers of any terms of this Agreement or
such other Loan Document or the continuance of any default or Event of Default
may be waived (either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the written consent of the
Required Banks (and, in the case of an amendment to any Loan Document, the
written consent of each Person that is a party to such Loan Document).
Notwithstanding the foregoing, no amendment, waiver or consent shall, unless in
writing, and signed by all of the Banks (or the Agent at the written direction
of all of the Banks), do any of the following: (i) increase the Revolving Credit
Commitments of the Banks (except as permitted under Section 2.1(e)) or subject
the Banks to any additional obligations; (ii) reduce the principal of, or
interest rates that have accrued or that will be charged on the outstanding
principal amount of, any Advances or other obligations; (iii) reduce the amount
of any fees payable hereunder; (iv) postpone any date fixed for any payment of
any principal of, interest on, or fees with respect to, any Advances or any
other obligations; (v) amend this Section or amend the definitions of the terms
used in this Agreement or the other Loan Documents insofar as such definitions
affect the substance of this Section; (vi) modify the definition of the term
"Required Banks" or modify in any other manner the number or percentage of the
Banks required to make any determinations or waive any rights hereunder or to
modify any provision hereof; and (vii) modify the terms of Section 6.2.(c). In
addition, the definitions of Unencumbered Assets and Unsecured Debt (and the
definitions used in such definitions and the percentages and rates used in the
calculation thereof) may not be amended without the written consent of all of
the Banks. Any amendment, waiver or consent relating to Section 2.4 or the
obligations of the Swingline Lender under this Agreement or any other Loan
Document shall, in addition to the Banks required hereinabove to take such
action, require the written consent of the Swingline Lender. Further, no
amendment, waiver or consent unless in writing and signed by the Agent, in
addition to the Banks required hereinabove to take such action, shall affect the
rights or duties of the Agent under this Agreement or any of the other Loan
Documents. No waiver shall extend to or affect any obligation not expressly
waived or impair any right consequent thereon and any amendment, waiver or
consent shall be effective only in the specific instance and for the specific
purpose set forth therein. No course of dealing or delay or omission on the part
of the Agent or any Bank in exercising any right shall operate as a waiver
thereof or otherwise be prejudicial thereto. Except as otherwise explicitly
provided for herein or in any other Loan Document, no notice to or demand upon
the Borrowers shall entitle the Borrowers to other or further notice or demand
in similar or other circumstances.
11.2 Payment of Expenses, Including Attorneys' Fees and Taxes. The
Borrowers agree (a) to pay or reimburse the Agent, the Issuing Bank, and each
Bank for all of their reasonable and customary out-of-pocket costs and expenses
incurred in connection with the preparation, negotiation, execution, and
delivery of, and any amendment, supplement, or modification to, or waiver or
consent under, the Loan Documents, and the consummation of the transactions
contemplated thereby, including, without limitation, the reasonable and
customary fees and disbursements of counsel for the Agent, the Issuing Bank, and
each Bank, taxes, and all recording or filing fees, (b) to pay or reimburse the
Agent, the Issuing Bank, and each Bank for all of their costs and expenses
incurred in connection with the administration, supervision, collection, or
enforcement of, or the preservation of any rights under, the Loan Documents or
the Letters of Credit, including, without limitation, the fees and disbursements
of counsel for the Agent, the Issuing Bank, and the Banks, including attorneys'
fees out of court, in trial, on appeal, in bankruptcy proceedings, or otherwise,
(c) without limiting the generality of provision (a) hereof, to pay or reimburse
the Agent, the Issuing Bank, and the Banks for, and indemnify and hold the
Agent, the Issuing Bank, and the Banks harmless against liability for, any and
all documentary stamp taxes, annual and non-recurring intangible taxes, or other
taxes, together with any interest, penalties, or other liabilities in connection
therewith, that the Agent, the Issuing Bank, or any Bank now or hereafter
determines are payable with respect to the Loan Documents, the obligations
evidenced by the Loan Documents, any Advances, the Letters of Credit, and any
guaranties or mortgages or other security instruments, and (d) to pay,
indemnify, and hold the Agent, the Issuing Bank, and the Banks harmless from and
against any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses, or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement,
performance, and administration of the Loan Documents or the Letters of Credit.
The agreements in this Subsection shall survive repayment of all other amounts
payable hereunder or pursuant hereto, now or in the future.
11.3 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Agent, each Bank, each Borrower, and their
respective successors and permitted assignees or transferees.
11.4 Assignments and Participations.
(a) No Borrower may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each Bank.
(b) Any Bank may with the prior written consent of the Agent and the
Borrowers (which consent, in each case, shall not be unreasonably withheld)
assign to one or more Eligible Assignees (each an "Assignee") all or a portion
of its Revolving Credit Commitment and its other rights and obligations under
this Agreement and the Notes; provided, however, (i) no such consent by the
Borrowers shall be required (x) in the case of any assignment to another Bank or
any affiliate of such Bank or another Bank or (y) if an Event of Default or
default shall then be existing; (ii) any partial assignment shall be in an
amount at least equal to $10,000,000 and after giving effect to such assignment
the assigning Bank retains a Revolving Credit Commitment, or if the Revolving
Credit Commitments have been terminated, holds Notes having an aggregate
outstanding principal balance, of $10,000,000 and integral multiples of
$5,000,000 in excess thereof; and (iii) each such assignment shall be effected
by means of an Assignment and Acceptance Agreement in the form attached hereto
as Exhibit "C". Upon execution and delivery of such instrument and payment by
such Assignee to such transferor Bank of an amount equal to the purchase price
agreed between such transferor Bank and such Assignee, such Assignee shall be
deemed to be a Bank party to this Agreement as of the effective date of the
Assignment and Acceptance Agreement and shall have all the rights and
obligations of a Bank with a Revolving Credit Commitment as set forth in such
Assignment and Acceptance Agreement, 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, the transferor Bank, the Agent and the
Borrowers shall make appropriate arrangements so that new Notes are issued to
the Assignee and such transferor Bank, as appropriate. In connection with any
such assignment (other than any assignment made pursuant to Section 2.11(b)
hereof), the transferor Bank (excluding the Agent in its capacity as a Bank)
shall pay to the Agent an administrative fee for processing such assignment in
the amount of $2,500.
(c) By executing and delivering an Assignment and Acceptance, the
assigning Bank thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows:
(i) other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned thereby free and clear
of any adverse claim, such assigning Bank makes no representation or warranty
and assumes no responsibility with respect to any statements, warranties, or
representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency, or value of this
Agreement or any other instrument or document furnished pursuant hereto;
(ii) such assigning Bank makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Borrowers or the performance or observance by any Borrower of any of its
obligations or any other instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 6.1 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance;
(iv) such assignee will, independently and without reliance
upon the Agent, such assigning Bank or any other Bank, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement;
(v) such assignee appoints and authorizes the Agent to take
such action as the Agent on its behalf and to exercise such powers under this
Agreement and the other Loan Documents as are delegated to the Agent by the
terms hereof and thereof, together with such powers as are reasonably incidental
thereto; and
(vi) such assignee agrees that it will perform in accordance
with their terms all of the obligations which by the terms of this Agreement are
required to be performed by it as a Bank.
(d) Any Bank may at any time grant to one or more banks or other
financial institutions (each a "Participant") participating interests in its
Revolving Credit Commitment or the obligations owing to such Bank; provided,
--------
however, (i) any such participating interest must be for a constant and not a
-------
varying percentage interest, (ii) no Bank may grant a participating interest in
its Revolving Credit Commitment, or if the Revolving Credit Commitments have
been terminated, the aggregate outstanding principal balance of Notes held by
it, in an amount less than $10,000,000 and (iii) after giving effect to any such
participation by a Bank, the amount of its Revolving Credit Commitment, or if
the Revolving Credit Commitments have been terminated, the aggregate outstanding
principal balance of Notes held by it, in which it has not granted any
participating interests must be equal to $10,000,000 and integral multiples of
$5,000,000 in excess thereof. Except as otherwise provided herein, no
Participant shall have any rights or benefits under this Agreement or any other
Loan Document. In the event of any such grant by a Bank of a participating
interest to a Participant, such Bank shall remain responsible for the
performance of its obligations hereunder, and the Borrowers and the Agent shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement. Any agreement pursuant to
which any Bank may grant such a participating interest shall provide that such
Bank shall retain the sole right and responsibility to enforce the obligations
of the Borrowers hereunder including, without limitation, the right to approve
any amendment, modification or waiver of any provision of this Agreement;
provided, however, such Bank may agree with the Participant that it will not,
------------------
without the consent of the Participant, agree to (i) increase the Revolving
Credit Commitments of the Banks (except as permitted under Section 2.1(e)) or
subject the Banks to any additional obligations; (ii) reduce the principal of,
or interest rates that have accrued or that will be charged on the outstanding
principal amount of, any Advances or other obligations; (iii) reduce the amount
of any fees payable hereunder; (iv) postpone any date fixed for any payment of
any principal of, interest on, or fees with respect to, any Advances or any
other obligations;; (v) amend Section 11.1. or amend the definitions of the
terms used in this Agreement or the other Loan Documents insofar as such
definitions affect the substance of Section 11.1.; (vi) modify the definition of
the term "Required Banks" or modify in any other manner the number or percentage
of the Banks required to make any determinations or waive any rights hereunder
or to modify any provision hereof; (vii) modify the terms of Section 6.2.(c);
and (viii) amend the definitions of Unencumbered Asset Value and Unsecured Debt
(and the definitions used in such definitions and the percentages and rates used
in the calculation thereof). An assignment or other transfer which is not
permitted by subsection (b) above shall be given effect for purposes of this
Agreement only to the extent of a participating interest granted in accordance
with this subsection. The selling Bank shall notify the Agent and the Borrowers
of the sale of any participation hereunder and the terms thereof.
(e) Notwithstanding any of the foregoing to the contrary, nothing
herein is intended to prohibit the assigning, discounting, or pledging of all or
any portion of a Bank's interest in the Advances or the Note to any Federal
Reserve Bank as collateral security pursuant to regulations of the Board of
Governors of the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank, and such Advances or interest in the Note shall be
fully transferable as provided therein. No such assignment shall release the
assigning Bank from its obligations hereunder.
(f) The Borrowers agree that any participants shall have the same
rights of set-off against the Borrowers as granted the Banks in Subsection 11.6
hereof. Upon the written request of the Borrowers, the Banks will advise the
Borrowers of the names of any participants and the extent of their interest
herein.
11.5 Confidential Information.
(a) The Agent and the Banks shall exercise their good faith efforts
not to make any public disclosure of confidential information obtained pursuant
to the Loan Documents; provided, that the foregoing shall not be construed to,
now or in the future, apply to any information reflected in any recorded
document, information obtained from sources other than the Borrowers, or
otherwise in the public domain nor shall it be construed to prevent the Agent or
any Bank from (i) making any disclosure of any information (A) if required to do
so by any applicable law or regulation or accepted banking practice, (B) to any
governmental agency or regulatory body having or claiming authority to regulate
or oversee any aspect of the Agent's or such Bank's business or any of its
Subsidiaries or affiliates in connection with the exercise of such authority or
claimed authority, (C) pursuant to subpoena, (D) to the extent the Agent or such
Bank or their respective counsel deems necessary or appropriate to do so to
enforce any remedy provided for in the Loan Documents or otherwise available by
law, (ii) subject to the immediately succeeding sentence, making such
disclosures as such Bank reasonably deems necessary or appropriate to any bank
or financial institution (and/or counsel thereto) which is a prospective
assignee or participant under Subsection 11.4 (each such bank or financial
institution, a "Prospective Bank") or (iii) making, on a confidential basis,
such disclosures as the Agent or such Bank deems necessary or appropriate to the
Agent's or such Bank's counsel or accountants (including outside auditors).
(b) Each Bank agrees that prior to (a) disclosing to any Prospective
Bank any information which the Banks have agreed hereunder to hold as
confidential or (b) entering into an agreement granting to a Prospective Bank an
interest in the Advances, the applicable Bank shall make a good faith effort to
obtain an agreement executed by such Prospective Bank in form and substance
similar to the provisions of this Subsection; provided, that in no event shall
--------
such Bank or the Agent be liable for any breach of such agreement by the
Prospective Bank.
11.6 Liens; Set-Off. Each Borrower hereby grants to the Agent and the
Banks (including any Banks added at a later time) a continuing lien to secure
all indebtedness of the Borrowers to the Agent and the Banks created hereunder
or pursuant to the Loan Documents upon any and all monies, securities, and other
property of such Borrower and the proceeds thereof, now or hereafter held or
received by or in transit to, the Agent or any Bank from or for the Borrowers,
and also upon any and all deposits (general or special) and credits of the
Borrowers, if any, at the Agent or any Bank, at any time existing. Upon the
occurrence of any Event of Default, the Agent, and the Banks are hereby
authorized at any time and from time to time, without notice to such Borrower,
to set off, appropriate, and apply any or all items hereinabove referred to
against indebtedness of the Borrowers owed to the Agent or the Banks under the
Loan Documents, whether now existing or hereafter arising. The Agent or any Bank
shall be deemed to have exercised such right of set-off and to have made a
charge against such items immediately upon the occurrence of such Event of
Default although made or entered on its books subsequent thereof.
Notwithstanding the foregoing, any Bank exercising any right to set-off
hereunder shall promptly thereafter deliver to the Agent and the Borrowers a
written notice thereof, provided that any failure to deliver such notice shall
--------
not, in any event, limit such Bank's or any other Bank's right of set-off
hereunder.
11.7 Notices. Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be in writing
and may be personally served, telecopied, telexed, or sent by United States mail
or courier service and shall be deemed to have been given when delivered in
person, receipt of telecopy or telex or four Business Days after depositing it
in the United States mail, registered or certified, with postage prepaid and
properly addressed. For the purposes hereof, the addresses of the parties hereto
(until notice of a change thereof is delivered as provided in this Subsection
11.6) shall be as set forth under each party's name on the signature pages
hereof, or in the case of any Bank becoming a party hereto after the Closing
Date, in the applicable Assignment and Acceptance Agreement.
11.8 Waiver of Default. The Banks may, in accordance with the provisions
of Subsection 11.1, by written notice to the Borrowers, at any time and from
time to time, waive any Event of Default and its consequences, or any default in
the performance or observance of any condition, covenant, or other term hereof
and its consequences. Any such waiver shall be for such period and subject to
such conditions as shall be specified in any such notice. In the case of any
such waiver, the Borrowers and the Banks shall be restored to their former
positions prior to such Event of Default or default and shall have the same
rights as they had thereto, and any Event of Default or default so waived shall
be deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Event of Default or default, or impair any right consequent
thereto.
11.9 No Waiver; Cumulative Remedies. No omission or failure of the Agent
or the Banks to exercise and no delay in exercising by the Agent or the Banks of
any power, or privilege, shall operate as a waiver thereof or be construed to be
a waiver thereof; nor shall any single or partial exercise of any right, power,
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power, or privilege. The rights and remedies
provided in the Loan Documents are cumulative and not exclusive of any rights or
remedies provided by law, and the warranties, representations, covenants, and
agreements made therein shall be cumulative, except in the case of
irreconcilable inconsistency, in which case the provisions of this Agreement
shall control.
11.10 Venue and Jurisdiction. In any litigation in connection with or to
enforce this Agreement or any of the other Loan Documents, each Borrower
irrevocably consents to and confers personal jurisdiction on the courts of the
State of Florida located in Orange County or the United States courts located
within the Middle District of the State of Florida, expressly waives any
objections as to venue in any of such courts, and agrees that service of process
may be made on such Borrower by mailing a copy of the summons and complaint by
registered or certified mail, return receipt requested, to the address set forth
herein below the name of the Borrower on the signature page hereto (or otherwise
expressly provided in writing). Nothing contained herein shall, however, prevent
the Agent from bringing any action or exercising any rights within any other
state or jurisdiction or from obtaining personal jurisdiction by any other means
available by applicable law.
11.11 Governing Law. The validity, interpretation, and enforcement of this
Agreement, of the rights and obligations of the parties hereto, and of the other
documents delivered in connection herewith shall be governed by, and construed
and interpreted in accordance with, the laws of the State of Florida, excluding
those laws relating to the resolution of conflicts between laws of different
jurisdictions.
11.12 Title and Headings; Table of Contents. The titles and headings
preceding the text of the Sections and Subsections of this Agreement and the
Table of Contents have been inserted and included solely for convenience of
reference and shall neither constitute a part of this Agreement nor affect its
meaning, interpretation, or effect.
11.13 Complete Agreement. The Loan Documents contain the final, complete,
and exclusive expression of the understanding of the Borrowers, the Agent, and
the Banks with respect to the transactions contemplated by the Loan Documents
and supersede any prior or contemporaneous agreement or representation, oral or
written, by or between the parties related to the subject matter hereof.
11.14 Legal or Governmental Limitations. Anything contained in this
Agreement to the contrary notwithstanding, the Banks shall not be obligated to
extend credit or make any loans to the Borrowers in an amount in violation of
any limitations or prohibitions provided by any applicable statute or
regulation.
11.15 Counterparts. This Agreement and any amendment hereof may be
executed in several counterparts and by each party on a separate counterpart,
each of which when so executed and delivered shall be an original, and all of
which together shall constitute one instrument.
11.16 WAIVER OF JURY TRIAL BY BORROWERS. EACH BORROWER HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RESPECTIVE RIGHTS IT MAY HAVE TO A
TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED ON THE LOAN DOCUMENTS OR
ARISING OUT OF, UNDER OR IN CONNECTION THEREWITH, OR ANY AGREEMENT CONTEMPLATED
TO BE EXECUTED IN CONNECTION THEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY WITH
RESPECT HERETO OR THERETO. FURTHERMORE, NO BORROWER SHALL SEEK TO CONSOLIDATE
ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY ACTION IN WHICH A JURY
TRIAL CANNOT BE WAIVED. THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE BANKS
ACCEPTING AND ENTERING INTO THE CREDIT CONTEMPLATED BY THE LOAN DOCUMENTS (OR
ANY AGREEMENT EXECUTED IN CONNECTION WITH THE LOAN DOCUMENTS) FROM, OR WITH, THE
BORROWERS.
11.17 BORROWERS JOINTLY AND SEVERALLY LIABLE. the obligationS of the
borrowers HEREUNDER SHALL BE joint and several, and ACCORDINGLY, each BORROWER
CONFIRMS THAT IT is liable for the full amount of ALL OF THE OBLIGATIONS AND
LIABILITIES OF EACH OF THE OTHER borrowers HEREUNDER; PROVIDED, HOWEVER, THAT
THE MAXIMUM AMOUNT OF LIABILITY OF ANY BORROWER HEREUNDER (after giving
application to Section 11.18 hereof) SHALL BE LIMITED TO THE MAXIMUM AMOUNT OF
OBLIGATIONS AND LIABILITIES WHICH, AFTER GIVING EFFECT THERETO, WOULD NOT CAUSE
SUCH oBLIGATIONS AND LIABILITIES, AS SO REDUCED, TO BE SUBJECT TO AVOIDANCE
UNDER APPLICABLE LAW. THIS SECTION 11.17 IS INTENDED SOLELY TO PRESERVE THE
RIGHTS OF THE BANKS AND THE AGENT HEREUNDER TO THE MAXIMUM EXTENT THAT WOULD NOT
CAUSE THE OBLIGATIONS LIABILITIES OF SUCH BORROWER TO BE SUBJECT TO AVOIDANCE
UNDER APPLICABLE LAW, AND NEITHER SUCH BORROWER NOR ANY OTHER PERSON SHALL HAVE
ANY RIGHT OR CLAIM UNDER THIS SECTION 11.17 AS AGAINST THE BANKS AND THE AGENT
THAT WOULD NOT OTHERWISE BE AVAILABLE TO SUCH PERSON UNDER APPLICABLE LAW.
11.18 Contribution. The Borrowers hereby agree as among themselves that,
if any Borrower shall make an Excess Payment (as defined below), such Borrower
shall have a right of contribution from each other Borrower in an amount equal
to such other Borrower's Contribution Share (as defined below) of such Excess
Payment. The payment obligations of any Borrower under this Section 11.18 shall
be subordinate and subject in right of payment to the prior payment in full to
the Agent and the Banks of the obligations arising under this Agreement, and
none of the Borrowers shall exercise any right or remedy under this Section
11.18 against any other Borrower until payment and satisfaction in full of all
of any obligations arising under this Agreement. For purposes of this Section
11.18, (a) "Excess Payment" shall mean the amount paid by any Borrower in excess
--------------
of its Pro Rata Share of such obligations arising under this Agreement; (c) "Pro
---
Rata Share" shall mean, for any Borrower in respect of any payment of
-----------
obligations arising under this Agreement, the ratio (expressed as a percentage)
as of the date of such payment of such obligations of (i) the amount by which
the aggregate present fair salable value of all of its assets and properties
exceeds the amount of all debts and liabilities of such Borrower (including
contingent, subordinated, unmatured, and unliquidated liabilities, but excluding
the obligations of such Borrower hereunder) to (ii) the amount by which the
aggregate present fair salable value of all assets and other properties of the
Borrowers exceeds the amount of all of the debts and liabilities (including
contingent, subordinated, unmatured, and unliquidated liabilities, but excluding
the obligations of the Borrowers hereunder) of the Borrowers; provided, however,
-----------------
that, for purposes of calculating the Pro Rata Shares of the Borrowers in
respect of any payment of the obligations arising under this Agreement, any
Borrower that became a Borrower subsequent to the date of any such payment shall
be deemed to have been a Borrower on the date of such payment and the financial
information for such Borrower as of the date such Borrower became a Borrower
shall be utilized for such Borrower in connection with such payment; and (d)
"Contribution Share" shall mean, for any Borrower in respect of any Excess
-------------------
Payment made by any other Borrower, the ratio (expressed as a percentage) as of
the date of such Excess Payment of (i) the amount by which the aggregate present
fair salable value of all of its assets and properties exceeds the amount of all
debts and liabilities of such Borrower (including contingent, subordinated,
unmatured, and unliquidated liabilities, but excluding the obligations of such
Borrower hereunder) to (ii) the amount by which the aggregate present fair
salable value of all assets and other properties of the Borrowers other than the
maker of such Excess Payment exceeds the amount of all of the debts and
liabilities (including contingent, subordinated, unmatured, and unliquidated
liabilities, but excluding the obligations of the Borrowers hereunder) of the
Borrowers other than the maker of such Excess Payment; provided, however, that,
------------------
for purposes of calculating the Contribution Shares of the Borrowers in respect
of any Excess Payment, any Borrower that became a Borrower subsequent to the
date of any such Excess Payment shall be deemed to have been a Borrower on the
date of such Excess Payment and the financial information for such Borrower as
of the date such Borrower became a Borrower shall be utilized for such Borrower
in connection with such Excess Payment. This Section 11.18 shall not be deemed
to affect any right of subrogation, indemnity, reimbursement or contribution
that any Borrower may have under applicable law against any of the other
Borrowers in respect of any payment of the obligations arising under this
Agreement.
[Signatures on Next Page]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Sixth Amended and
Restated Credit Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above written.
BORROWERS:
COMMERCIAL NET LEASE REALTY, INC.
NET LEASE REALTY I, INC.
NET LEASE REALTY II, INC.
NET LEASE REALTY III, INC.
NET LEASE REALTY IV, INC.
NET LEASE FUNDING, INC.
By:_____________________________________________
Name: Kevin B. Habicht
Title:Executive Vice President and
Chief Financial Officer of each of
the above-listed entities on behalf
of each such entity
Address for Notices:
450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
Attention: Kevin B. Habicht
TELECOPY NO. 407/650-1044
CONFIRMING TEL. NO. 407/265-7348
<PAGE>
SIGNATURE PAGE
Sixth Amended and Restated Credit Agreement dated as of October 26,
2000 among Commercial Net Lease Realty, Inc., Net Lease Realty I, Inc., Net
Lease Realty II, Inc., Net Lease Realty III, Inc., Net Lease Realty IV, Inc.,
Net Lease Funding, Inc., First Union National Bank, as Agent and the Banks
party thereto from time to time.
FIRST UNION NATIONAL BANK, individually,
as Agent and as Issuing Bank
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
Revolving Credit Commitment:
$70,000,000
Address for Notices:
First Union National Bank
One First Union Center, NC0166
301 South College Street
Charlotte, North Carolina 28288-0166
Attention: Rex Rudy
Telecopy Number: (704) 383-6205
Telephone Number: (704) 383-6506
and
First Union Securities, Inc.
Real Estate Syndications
One First Union Center, NC0608
301 South College Street
Charlotte, North Carolina 28288-0608
Attention: David Blackman
Telecopy Number: (704) 715-1964
Telephone Number: (704) 374-6272
[Signatures Continue on Next Page]
<PAGE>
SIGNATURE PAGE
Sixth Amended and Restated Credit Agreement dated as of October 26,
2000 among Commercial Net Lease Realty, Inc., Net Lease Realty I, Inc., Net
Lease Realty II, Inc., Net Lease Realty III, Inc., Net Lease Realty IV, Inc.,
Net Lease Funding, Inc., First Union National Bank, as Agent and the Banks
party thereto from time to time.
BANK OF AMERICA, N.A.
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
Revolving Credit Commitment:
$40,000,000
Address for Notices:
Bank of America, N.A.
NC1-007-15-08
100 North Tryon Street, 15th Floor
Charlotte, NC 28255-0001
Attention: Mr. Wesley G. Carter, Associate
Telecopy Number: (704) 388-8841
Telephone Number: (704) 386-8411
<PAGE>
SIGNATURE PAGE
Sixth Amended and Restated Credit Agreement dated as of October 26,
2000 among Commercial Net Lease Realty, Inc., Net Lease Realty I, Inc., Net
Lease Realty II, Inc., Net Lease Realty III, Inc., Net Lease Realty IV, Inc.,
Net Lease Funding, Inc., First Union National Bank, as Agent and the Banks
party thereto from time to time.
AMSOUTH BANK
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
Revolving Credit Commitment:
$35,000,000
Address for Notices:
AmSouth Bank
111 North Orange Avenue
Orlando, FL 32858
Attention: John R. Gassie
Telecopy Number: (407) 835-3015
Telephone Number: (407) 246-8944
<PAGE>
SIGNATURE PAGE
Sixth Amended and Restated Credit Agreement dated as of October 26,
2000 among Commercial Net Lease Realty, Inc., Net Lease Realty I, Inc., Net
Lease Realty II, Inc., Net Lease Realty III, Inc., Net Lease Realty IV, Inc.,
Net Lease Funding, Inc., First Union National Bank, as Agent and the Banks
party thereto from time to time.
THE HUNTINGTON NATIONAL BANK
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
Revolving Credit Commitment:
$20,000,000
Address for Notices:
The Huntington National Bank
201 East Pine Street, Suite 1310
Orlando, FL 32801
Attention: Stewart A. Grashoff
Telecopy Number: (407) 245-8422
Telephone Number: (407) 245-8406
<PAGE>
SIGNATURE PAGE
Sixth Amended and Restated Credit Agreement dated as of October 26,
2000 among Commercial Net Lease Realty, Inc., Net Lease Realty I, Inc., Net
Lease Realty II, Inc., Net Lease Realty III, Inc., Net Lease Realty IV, Inc.,
Net Lease Funding, Inc., First Union National Bank, as Agent and the Banks
party thereto from time to time.
COMERICA BANK
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
Revolving Credit Commitment:
$20,000,000
Address for Notices:
Comerica Bank
500 Woodward Avenue
Detroit, MI 48226-3256
Attention: Leslie Vogel
Telecopy Number: (313) 222-9295
Telephone Number: (313) 222-9290
<PAGE>
SIGNATURE PAGE
Sixth Amended and Restated Credit Agreement dated as of October 26,
2000 among Commercial Net Lease Realty, Inc., Net Lease Realty I, Inc., Net
Lease Realty II, Inc., Net Lease Realty III, Inc., Net Lease Realty IV, Inc.,
Net Lease Funding, Inc., First Union National Bank, as Agent and the Banks
party thereto from time to time.
CITIZENS BANK OF RHODE ISLAND
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
Revolving Credit Commitment:
$15,000,000
Address for Notices:
One Citizens Plaza
4th floor-RC0440
Providence, RI 02903
Attention: Craif Schermerhorn
Telecopy Number: (401) 282-4485
Telephone Number: (401) 455-5425
<PAGE>
EXHIBIT "A"
NOTICE OF BORROWING
_____________________
Date
First Union National Bank
One First Union Center, NC0166
301 South College Street
Charlotte, North Carolina 28288-0166
Attention: Syndication Agency Services
Ladies and Gentlemen:
Pursuant to the Sixth Amended and Restated Credit Agreement dated as of
October 26, 2000, as amended, supplemented, restated, replaced, or otherwise
modified from time to time (the "Agreement"; capitalized terms used but not
defined herein shall have the meanings assigned in the Agreement); this
represents the undersigneds' request for a borrowing or the Issuance of a Letter
of Credit under the Revolving Credit Facility as follows:
__ ADVANCES
__________ Proposed Date of Advance
$__________ Aggregate Amount of Advance
__________ Prime Rate Advance or __________ LIBOR Rate Advance
If LIBOR Rate Advance: ____7 day, ____1, ____ 2, ____3 or ____6 month
Interest Period
The proceeds of the Advances are to be deposited in ____________________'s
account at Agent.
__ LETTER OF CREDIT
__________ Proposed Date of Issuance of Letter of Credit
$__________ Maximum Amount of Letter of Credit
__________ Expiration Date of Letter of Credit
The name and address of the, beneficiary and the form of the Letter of
Credit are as stated in the accompanying application for Letter of Credit.
The Letter of Credit is to be made available to
____________________________ at the Lending Office of the Issuing Bank,
unless otherwise specified herein: _________________________________________.
This Notice is given in order to induce the Banks to make the foregoing
Advances or issue the foregoing Letter of Credit. We understand that the Agent
and each of the Banks are relying on the truth and accuracy of the statements
made in this Notice.
1. If Advances are being requested, the proceeds will be used solely
to: ________________________________________________________________________.
2. If a Letter of Credit is being requested, the purpose of the
Letter of Credit or the transaction supported by the Letter of Credit is:
_____________________________________________________________________________.
3. The anticipated takeout source for the requested borrowing is
_____________________________________________________________________________.
4. If a Letter of Credit is being requested, this Notice is accompanied by
an executed application for Letter of Credit and such other agreements,
information, and documents as the Agent or the Issuing Bank requires, and the
payment of fees and commissions described in the Agreement.
5. All of the representations and warranties of the undersigned contained
in the Agreement or in any of the other Loan Documents are true, correct, and
complete on and as of the date of this Notice, with the same effect as though
the representations and warranties had been made on and as of such date.
6. Each of the undersigned is in compliance with all terms and conditions
of the Agreement, and no Event of Default, nor any event which, upon notice or
lapse of time or both, would constitute an Event of Default, has occurred and is
continuing, or would result from the borrowing or the issuance or a draw under
the Letter of Credit.
7. No liens, claims, encumbrances, transfers, or conveyances have been
made, asserted, delivered, filed, or recorded with respect to any property
purchased by the undersigned using loan proceeds, other than as permitted
pursuant to the Agreement.
8. After giving effect to the borrowing or the issuance of the Letter of
Credit requested herein, the aggregate amount of Advances outstanding under the
Revolving Credit Facility plus the aggregate amount of Letter of Credit
Contingent Obligations will not exceed the Banks' Revolving Credit Commitments.
Further, after giving effect to the borrowing or the issuance of the Letter of
Credit requested herein, the aggregate amount of Advances used for funding under
Letters of Credit plus the aggregate amount of Letter of Credit Contingent
Obligations will not exceed $15,000,000.00.
9. The undersigned have no setoffs or defenses under the Agreement or any
other Loan Document. The Agreement, the Notes, and all other Loan Documents are
valid, binding, and enforceable in accordance with their terms.
COMMERCIAL NET LEASE REALTY, INC.
By:_____________________________________________
Its:____________________________________________
NET LEASE REALTY I, INC.
By:_____________________________________________
Its:____________________________________________
NET LEASE REALTY II, INC.
By:_____________________________________________
Its:____________________________________________
NET LEASE REALTY III, INC.
By:_____________________________________________
Its:____________________________________________
NET LEASE REALTY IV, INC.
By:_____________________________________________
Its:____________________________________________
NET LEASE FUNDING, INC.
By:_____________________________________________
Its:____________________________________________
<PAGE>
EXHIBIT "B"
PROMISSORY NOTE
$______________ As of October 26, 2000
Charlotte, North Carolina
FOR VALUE RECEIVED, the undersigned, COMMERCIAL NET LEASE REALTY, INC., a
Maryland corporation ("CNLR"), NET LEASE REALTY I, INC., a Maryland corporation
("NET I"), NET LEASE REALTY II, a Maryland corporation ("NET II"), NET LEASE
REALTY III, INC., a Maryland corporation ("NET III"), NET LEASE REALTY IV, INC.,
a Maryland corporation ("NET IV"), and NET LEASE FUNDING, INC., a Maryland
corporation ("Funding"; CNLR, NET I, NET II, NET III, NET IV and Funding are
collectively referred to herein as the "Borrowers"), jointly and severally
promise to pay to the order of [BANK] (the "Lender"), in care of First Union
National Bank, as Agent (the "Agent") under that certain Sixth Amended and
Restated Credit Agreement of even date herewith as amended and in effect from
time to time (the "Agreement"), by and among the undersigned, the Banks and the
Agent, to First Union National Bank, One First Union Center, Charlotte, North
Carolina 28288, or at such other address as may be specified in writing by the
Agent to the Borrowers, the principal sum of [ ] ($_____________), or so much
thereof as may be advanced, and to pay interest on the principal amount
remaining from time to time outstanding from the date hereof until due at the
rate and at the times specified in the Agreement. Capitalized terms used but not
defined herein shall have the meanings assigned those terms in the Agreement.
In no event shall the interest rate applicable to principal outstanding
under this Note exceed the maximum rate of interest allowed by applicable law,
as amended from time to time. The Agent and the Lender do not intend to charge
any amount of interest or other fees or charges in the nature of interest that
exceeds the maximum rate allowed by applicable law. If any payment of interest
or in the nature of interest hereunder would cause the foregoing interest rate
limitation to be exceeded, then such excess payment shall be credited as a
payment of principal unless the undersigned notifies the Agent in writing that
the undersigned wishes to have such excess sum returned, together with interest
at the rate specified in Section 687.04(2), Florida Statutes, or any successor
statute.
Principal outstanding hereunder shall be due and payable in a single
payment at the Revolving Credit Maturity Date. Interest shall be payable
quarterly and at such other times specified in the Agreement, as long as any
principal amount remains outstanding hereunder, and at the Revolving Credit
Maturity Date.
This Note is issued pursuant to, and is subject to, the provisions of the
Agreement. Reference is made to such Loan Documents for a description of
additional rights and obligations of the undersigned, the Agent and the Lender,
including events of default, rights of prepayment and rights of acceleration of
maturity in the event of default.
The undersigned agree to pay or reimburse the Agent and the Lender for all
of their costs and expenses incurred in connection with administration,
supervision, collection, or enforcement, or preservation of any rights under
this Note and the Loan Documents, including, without limitation, the fees and
disbursements of counsel for the Agent and the Banks, including attorneys' fees
out of court, in trial, on appeal, in bankruptcy proceedings, or otherwise.
All persons now or at any time liable for payment of this Note hereby
waive presentment, protest, notice of protest, and notice of dishonor. The
undersigned expressly consent to any extensions and renewals of this Note, in
whole or in part, and all delays in time of payment or other performance under
this Note which may be granted at any time and from time to time, without
limitation and without any notice or further consent of the undersigned. All
notices, demands, and other communications required or permitted in connection
with this Note shall be given in the manner specified in the Agreement.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note may become, or may be declared to be, due and
payable in the manner, upon the conditions and with the effect provided in the
Agreement.
The remedies of the Agent and the Lender, as provided herein, or in any
other Loan Document are cumulative and concurrent (except as may be provided in
the Agreement) and may be pursued singularly, successively, or together, and may
be exercised as often as the occasion therefor shall arise.
This Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Florida, excluding those laws relating
to the resolution of conflicts between the laws of different jurisdictions.
This Note shall constitute a modification and renewal of that certain
Promissory Note from CNLR, NET I NET II, NET III, NET IV and Funding to the
Lender dated as of September 23, 1999. THIS NOTE IS NOT INTENDED TO BE, AND
SHALL NOT BE CONSTRUED TO BE, PAYMENT OF INDEBTEDNESS OR A NOVATION OF ANY OF
THE OBLIGATIONS OWING UNDER OR IN CONNECTION WITH SUCH OTHER NOTE.
IN WITNESS WHEREOF, the undersigned have caused this Note to be executed
as of the day and year first above written.
COMMERCIAL NET LEASE REALTY, INC.,
a Maryland corporation
By:_______________________________________________
Kevin B. Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE REALTY I, INC.,
a Maryland corporation
By:_______________________________________________
Kevin B. Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE REALTY II, INC.,
a Maryland corporation
By:_______________________________________________
Kevin B. Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE REALTY III, INC.,
a Maryland corporation
By:_______________________________________________
Kevin B. Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE REALTY IV, INC.,
a Maryland corporation
By:_______________________________________________
Kevin B. Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE FUNDING, INC.,
a Maryland corporation
By:_______________________________________________
Kevin B. Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
<PAGE>
EXHIBIT "C"
FORM OF
ASSIGNMENT AND ACCEPTANCE
Dated as of __________, 19__
Reference is made to the SIXTH Amended and Restated Credit Agreement dated
as of October 26, 2000 (as amended and in effect from time to time, the
"Agreement"), by and among Commercial Net Lease Realty, Inc., a Maryland
corporation, Net Lease Realty I, Inc., a Maryland corporation, Net Lease Realty
II, Inc., a Maryland corporation, Net Lease Realty III, Inc., a Maryland
corporation, Net Lease Realty IV, Inc., a Maryland corporation, and Net Lease
Funding, Inc., a Maryland corporation (collectively, the "Borrowers"), the
financial institutions listed from time to time on the signature pages thereof
(individually a "Bank" and collectively the "Banks") and First Union National
Bank, as agent (in such capacity, the "Agent") for the Banks. Terms defined in
the Agreement and used herein without definition shall have the respective
meanings herein assigned to such terms in the Agreement.
[Name of Assigning Lender] (the "Assignor") and [Name of Assignee] (the
"Assignee") hereby agree as follows:
1. The Assignor hereby sells and assigns to the Assignee and the Assignee
hereby purchases and assumes from the Assignor, a __________ percent (_____%)
undivided interest in all of the Assignor's rights and obligations under the
Agreement as of the Assignment Date (as defined in paragraph 4 below),
including, without limitation, (a) the Assignor's obligation to make Advances
thereunder and (b) the Assignor's interest in all unpaid interest and commitment
fees accrued as of the Assignment Date.
2. The Assignor (i) represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance; (ii) represents that as of the
date hereof, before giving effect to the assignment contemplated hereby, its
Revolving Credit Commitment is $__________ and the aggregate outstanding
principal balance of the Advances made by it equals $__________; (iii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the Loan
Documents or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of any Loan Document or any other instrument or document
furnished pursuant thereto, other than that it is the legal and beneficial owner
of the interest being assigned by it hereunder and that such interest is free
and clear of any adverse claim; and (iv) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrowers or the performance or observance by the Borrowers of their obligations
under the other Loan Documents to any Borrower is a party or any other
instrument or document delivered or executed pursuant thereto.
3. The Assignee (a) represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance; (b) confirms that it has received
a copy of the Loan Documents, together with copies of the most recent financial
statements delivered pursuant to Section 6.1 of the Agreement and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (c) agrees
that it will, independently and without reliance upon the Assignor, any other
Bank, or the Agent and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents; (d) appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers as
are reasonably incidental thereto pursuant to the terms of the Loan Documents;
and (e) agrees that it will perform in accordance with their terms all the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Bank.
4. The effective date for this Assignment and Acceptance shall be
__________, 20__ (the "Assignment Date"). Following the execution of this
Assignment and Acceptance, each party hereto and each Person consenting hereto
shall deliver its duly executed counterpart hereof to the Agent for acceptance
by the Agent.
5. Upon such acceptance, from and after the Assignment Date (i) the
Assignee shall be a party to the Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Bank thereunder,
and (ii) the Assignor shall, with respect to that portion of its interest under
the Agreement assigned hereunder, relinquish its rights and be released from its
obligations under the Agreement.
6. Upon such acceptance and after the Assignment Date, the Agent shall
make all payments in respect of the rights and interests assigned hereby
(including payments of principal, interest, fees and other amounts) to the
Assignee. On the Assignment Date, the Assignee will pay to the Agent for the
account of the Assignor an amount equal to the percentage of the Assignor's
interest assumed by the Assignee hereunder, times the aggregate outstanding
principal amount of the Advances made by the Assignor.
7. THIS ASSIGNMENT AND ACCEPTANCE IS INTENDED TO BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA (WITHOUT
REFERENCE TO CONFLICT OF LAWS).
8. This Assignment and Acceptance may be executed in any number of
counterparts which shall together constitute but one and the same agreement.
IN WITNESS WHEREOF, intending to be legally bound, each of the undersigned
has caused this Assignment and Acceptance to be executed on its behalf by its
officer thereunto duly authorized as of the date first above written.
[ASSIGNOR]
By: __________________________________________
Title:________________________________________
[ASSIGNEE]
By:___________________________________________
Title: _______________________________________
CONSENTED TO:
FIRST UNION NATIONAL BANK
as Agent
By:_____________________________
Title:__________________________
COMMERCIAL NET LEASE REALTY, INC.
By:_____________________________
Title:__________________________
NET LEASE REALTY I, INC.
By:_____________________________
Title:__________________________
NET LEASE REALTY II, INC.
By:_____________________________
Title:__________________________
NET LEASE REALTY III, INC.
By:_____________________________
Title:__________________________
NET LEASE REALTY IV, INC.
By:_____________________________
Title:__________________________
NET LEASE FUNDING, INC.
By:_____________________________
Title:__________________________
<PAGE>
EXHIBIT "D"
NOTICE OF PREPAYMENT
First Union National Bank
One First Union Center, NC0166
301 South College Street
Charlotte, North Carolina 28288-0166
Attention: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Prepayment is delivered to you by Commercial
Net Lease Realty, Inc., Net Lease Realty I, Inc., Net Lease Realty II, Inc.,
Net Lease Realty III, Inc., Net Lease Realty IV, Inc., and Net Lease Funding,
Inc., corporations organized under the laws of Maryland (collectively, the
"Borrowers"), under Section 2.14 of the Sixth Amended and Restated Credit
Agreement dated as of October 26, 2000 (together with all amendments and
other modifications, if any, from time to time made thereto, the "Credit
Agreement"), by and among the Borrowers, the Banks listed on the signature
pages thereof, and First Union National Bank, as the Agent.
1. The Borrowers hereby provide notice to the Agent that the Borrowers
shall repay the following Prime Rate Advances, Floating LIBOR Rate Advances
and/or LIBOR Rate Advances. (Complete in accordance with Section 2.2 of the
Credit Agreement.)
2. The Borrowers hereby provide notice that the Borrowers shall repay the
above-referenced Loans on the following Business Day: (Complete in accordance
with Section 2.2 of the Credit Agreement.)
3. All capitalized undefined terms used herein have the meanings
assigned thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Notice of Prepayment
this ____ day of __________, 19__.
COMMERCIAL NET LEASE REALTY, INC.
[CORPORATE SEAL]
By:__________________________________________
Name: _______________________________________
Title: ______________________________________
NET LEASE REALTY I, INC.
[CORPORATE SEAL]
By:__________________________________________
Name: _______________________________________
Title: ______________________________________
NET LEASE REALTY II, INC.
[CORPORATE SEAL]
By:__________________________________________
Name: _______________________________________
Title: ______________________________________-
NET LEASE REALTY III, INC.
(CORPORATE SEAL)
By:__________________________________________
Name: _______________________________________
Title: ______________________________________
NET LEASE REALTY IV, INC.
[CORPORATE SEAL]
By:__________________________________________
Name: _______________________________________
Title: ______________________________________
NET LEASE FUNDING, INC.
[CORPORATE SEAL]
By:__________________________________________
Name: _______________________________________
Title: ______________________________________
<PAGE>
EXHIBIT "E"
NOTICE OF CONVERSION/CONTINUATION
First Union National Bank
One First Union Center, NC0166
301 South College Street
Charlotte, North Carolina 28288-0166
Attention: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Conversion/Continuation (the "Notice") is
delivered to you under Section 2.17 of the Sixth Amended and Restated Credit
Agreement dated as of October 26, 2000 (as amended, restated or otherwise
modified, the "Credit Agreement"), by and among Commercial Net Lease Realty,
Inc., Net Lease Realty I, Inc., Net Lease Realty II, Inc., Net Lease Realty
III, Inc., Net Lease Realty IV, Inc., and Net Lease Funding, Inc.,
corporations organized under the laws of Maryland (collectively, the
"Borrowers"), the Banks listed on the signature pages thereof (the
"Lenders"), and First Union National Bank, as the Agent.
1. This Notice of Conversion/Continuation is submitted for the
purpose of:
(Complete applicable information)
(a) [Converting] [continuing] an ____________________ Advance [into]
[as] an ____________________ Advance.1
(b) The aggregate outstanding principal balance of such Advance
is $__________.
(c) The last day of the current Interest Period for such
Advance is ____________________.2
(d) The principal amount of such Advance to be [converted]
[continued] is $__________.3
(e) The requested effective date of the [conversion]
[continuation] of such Advance is ____________________.4
2. No Default or Event of Default exists, and none will exist upon the
conversion or continuation of the Advance requested herein.
3. All capitalized undefined terms used herein have the meanings
assigned thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Conversion/Continuation this ____ day of __________, 20__.
COMMERCIAL NET LEASE REALTY, INC.
By:__________________________________________
Name: _______________________________________
Title: ______________________________________
NET LEASE REALTY I, INC.
By:__________________________________________
Name: _______________________________________
Title: ______________________________________
NET LEASE REALTY II, INC.
By:__________________________________________
Name: _______________________________________
Title: ______________________________________
NET LEASE REALTY III, INC.
By:__________________________________________
Name: _______________________________________
Title: ______________________________________
NET LEASE REALTY IV, INC.
By:__________________________________________
Name: _______________________________________
Title: ______________________________________
NET LEASE FUNDING, INC.
By:__________________________________________
Name: _______________________________________
Title: ______________________________________
<PAGE>
1. Delete the bracketed language and insert "Prime Rate", or "LIBOR Rate",
as applicable, in each blank.
2. Insert applicable date for any LIBOR Rate Advance being converted or
continued.
3. Complete with an amount in compliance with Section 2.2 of the Credit
Agreement.
4. Complete with a Business Day at least three (3) Business Days after the
date of this Notice.
<PAGE>
EXHIBIT "F"
FORM OF NOTICE OF SWINGLINE BORROWING
______________,_____
First Union National Bank
One First Union Center, NC0166
301 South College Street
Charlotte, North Carolina 28288-0166
Attention: Syndication Agency Services
Ladies and Gentlemen:
Reference is made to that certain Sixth Amended and Restated Credit
Agreement dated as of October 26, 2000 (as amended, restated or otherwise
modified, the "Credit Agreement"), by and among Commercial Net Lease Realty,
Inc., Net Lease Realty I, Inc., Net Lease Realty II, Inc., Net Lease Realty
III, Inc., Net Lease Realty IV, Inc., and Net Lease Funding, Inc.,
corporations organized under the laws of Maryland (collectively, the
"Borrowers"), the Banks listed on the signature pages thereof (the
"Lenders"), and First Union National Bank, as the Agent. Capitalized terms
used herein, and not otherwise defined herein, have their respective meanings
given them in the Credit Agreement.
1. Pursuant to Section 2.4.(b) of the Credit Agreement, the
Borrowers hereby request that the Swingline Lender make a
Swingline Loan to the Borrowers in an amount equal to
$____________________________.
2. The Borrowers request that such Swingline Loan be made available
to the Borrowers on ____________, _____.
3. The proceeds of this Swingline Loan will be used for the
following purpose:________________________________________________
__________________________________________________________________
4. The Borrowers request that the proceeds of such Swingline Loan be
made available to the Borrowers by ______________________________.
The Borrowers hereby certify to the Agent and the Banks that as of the
date hereof and as of the date of the making of the requested Swingline Loan and
after giving effect thereto, (a) no default or Event of Default has or shall
have occurred and be continuing, and (b) the representations and warranties made
or deemed made by the Borrowers in the Loan Documents to which any of them is a
party, are and shall be true and correct, except to the extent that such
representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties were true and accurate on and as
of such earlier date) and except for changes in factual circumstances
specifically and expressly permitted under the Credit Agreement. In addition,
the Borrowers certify to the Agent and the Banks that all conditions to the
making of the requested Swingline Loan contained in Section 5. of the Credit
Agreement will have been satisfied at the time such Swingline Loan is made.
If notice of the requested borrowing of this Swingline Loan was previously
given by telephone, this notice is to be considered the written confirmation of
such telephone notice required by Section 2.4.(b) of the Credit Agreement.
COMMERCIAL NET LEASE REALTY, INC.
By:__________________________________________
Name: _______________________________________
Title: ______________________________________
NET LEASE REALTY I, INC.
By:__________________________________________
Name: _______________________________________
Title: ______________________________________
NET LEASE REALTY II, INC.
By:__________________________________________
Name: _______________________________________
Title: ______________________________________
NET LEASE REALTY III, INC.
By:__________________________________________
Name: _______________________________________
Title: ______________________________________
NET LEASE REALTY IV, INC.
By:__________________________________________
Name: _______________________________________
Title: ______________________________________
NET LEASE FUNDING, INC.
By:__________________________________________
Name: _______________________________________
Title: ______________________________________
<PAGE>
EXHIBIT "G"
FORM OF SWINGLINE NOTE
$10,000,000 As of October 26, 2000
Charlotte, North Carolina
FOR VALUE RECEIVED, the undersigned, COMMERCIAL NET LEASE REALTY, INC., a
Maryland corporation ("CNLR"), NET LEASE REALTY I, INC., a Maryland corporation
("NET I"), NET LEASE REALTY II, a Maryland corporation ("NET II"), NET LEASE
REALTY III, INC., a Maryland corporation ("NET III"), NET LEASE REALTY IV, INC.,
a Maryland corporation ("NET IV"), and NET LEASE FUNDING, INC., a Maryland
corporation ("Funding"; CNLR, NET I, NET II, NET III, NET IV and Funding are
collectively referred to herein as the "Borrowers"), jointly and severally
promise to pay to the order of First Union National Bank (the "Swingline
Lender"), under that certain Sixth Amended and Restated Credit Agreement of even
date herewith as amended and in effect from time to time (the "Agreement"), by
and among the undersigned, the Banks and the Swingline Lender, as Agent, to
First Union National Bank, One First Union Center, Charlotte, North Carolina
28288, or at such other address as may be specified in writing by the Agent to
the Borrowers, the principal sum of TEN MILLION AND 00/100 DOLLARS
($10,000,000), or so much thereof as may be advanced, and to pay interest on the
principal amount remaining from time to time outstanding from the date hereof
until due at the rate and at the times specified in the Agreement. Capitalized
terms used but not defined herein shall have the meanings assigned those terms
in the Agreement.
In no event shall the interest rate applicable to principal outstanding
under this Swingline Note exceed the maximum rate of interest allowed by
applicable law, as amended from time to time. The Swingline Lender does not
intend to charge any amount of interest or other fees or charges in the nature
of interest that exceeds the maximum rate allowed by applicable law. If any
payment of interest or in the nature of interest hereunder would cause the
foregoing interest rate limitation to be exceeded, then such excess payment
shall be credited as a payment of principal unless the undersigned notifies the
Swingline Lender in writing that the undersigned wishes to have such excess sum
returned, together with interest at the rate specified in Section 687.04(2),
Florida Statutes, or any successor statute.
Principal outstanding hereunder shall be due and payable in a single
payment at the Revolving Credit Maturity Date. Interest shall be payable
quarterly and at such other times specified in the Agreement, as long as any
principal amount remains outstanding hereunder, and at the Revolving Credit
Maturity Date.
This Swingline Note is issued pursuant to, and is subject to, the
provisions of the Agreement. Reference is made to such Loan Documents for a
description of additional rights and obligations of the undersigned, the
Swingline Lender, including events of default, rights of prepayment and rights
of acceleration of maturity in the event of default.
The undersigned agree to pay or reimburse the Swingline Lender for all of
their costs and expenses incurred in connection with administration,
supervision, collection, or enforcement, or preservation of any rights under
this Swingline Note and the Loan Documents, including, without limitation, the
fees and disbursements of counsel for the Swingline Lender, including attorneys'
fees out of court, in trial, on appeal, in bankruptcy proceedings, or otherwise.
All persons now or at any time liable for payment of this Note hereby
waive presentment, protest, notice of protest, and notice of dishonor. The
undersigned expressly consent to any extensions and renewals of this swingline
Note, in whole or in part, and all delays in time of payment or other
performance under this swingline Note which may be granted at any time and from
time to time, without limitation and without any notice or further consent of
the undersigned. All notices, demands, and other communications required or
permitted in connection with this swingline Note shall be given in the manner
specified in the Agreement.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Swingline Note may become, or may be declared to be,
due and payable in the manner, upon the conditions and with the effect provided
in the Agreement.
The remedies of the Swingline Lender, as provided herein, or in any other
Loan Document are cumulative and concurrent (except as may be provided in the
Agreement) and may be pursued singularly, successively, or together, and may be
exercised as often as the occasion therefor shall arise.
This Swingline Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Florida, excluding those laws relating
to the resolution of conflicts between the laws of different jurisdictions.
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this Swingline Note to be
executed as of the day and year first above written.
COMMERCIAL NET LEASE REALTY, INC.,
a Maryland corporation
By:__________________________________________
Kevin Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE REALTY I, INC.,
a Maryland corporation
By:__________________________________________
Kevin Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE REALTY II, INC.,
a Maryland corporation
By:__________________________________________
Kevin Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE REALTY III, INC.,
a Maryland corporation
By:__________________________________________
Kevin Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE REALTY IV, INC.,
a Maryland corporation
By:__________________________________________
Kevin Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE FUNDING, INC.,
a Maryland corporation
By:__________________________________________
Kevin Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
<PAGE>
SCHEDULE OF SWINGLINE LOANS
This Swingline Note evidences Swingline Loans made under the
within-described Agreement to the Borrowers, on the dates and in the principal
amounts set forth below, subject to the payments and prepayments of principal
set forth below:
Principal Amount Paid Unpaid Principal Notation
Date of Loan Amount of Loan or Prepaid Amount Made By
------------ -------------- ----------- ---------------- --------
<PAGE>
EXHIBIT "H"
FORM OF BID RATE QUOTE REQUEST
_________________, _____
First Union National Bank
One First Union Center, NC0166
301 South College Street
Charlotte, North Carolina 28288-0166
Attention: Syndication Agency Services
Ladies and Gentlemen:
______Reference is made to that certain Sixth Amended and Restated Credit
Agreement dated as of October 26, 2000 (as amended, restated or otherwise
modified, the "Credit Agreement"), by and among Commercial Net Lease Realty,
Inc., Net Lease Realty I, Inc., Net Lease Realty II, Inc., Net Lease Realty
III, Inc., Net Lease Realty IV, Inc., and Net Lease Funding, Inc.,
corporations organized under the laws of Maryland (collectively, the
"Borrowers"), the Banks listed on the signature pages thereof (the
"Lenders"), and First Union National Bank, as the Agent. Capitalized terms
not otherwise defined herein are used herein with the respective meanings
given them in the Credit Agreement.
______The Borrowers hereby request Bid Rate Quotes for the following proposed
Bid Rate Borrowings:
Borrowing Date Amount1 Interest Period2
-------------- ------- -----------------
___________, ______ $______________ ___________ days
______________________________
1 Minimum amount of $5,000,000 or larger multiple of $500,000.
2. No less than 7 days and up to 180 days after the borrowing date and must end
on a Business Day.
COMMERCIAL NET LEASE REALTY, INC.,
a Maryland corporation
By:________________________________________________
Kevin Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE REALTY I, INC.,
a Maryland corporation
By:________________________________________________
Kevin Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE REALTY II, INC.,
a Maryland corporation
By:________________________________________________
Kevin Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE REALTY III, INC.,
a Maryland corporation
By:________________________________________________
Kevin Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE REALTY IV, INC.,
a Maryland corporation
By:________________________________________________
Kevin Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE FUNDING, INC.,
a Maryland corporation
By:________________________________________________
Kevin Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
<PAGE>
EXHIBIT "I"
FORM OF BID RATE QUOTE
__________________,_____
First Union National Bank
One First Union Center, NC0166
301 South College Street
Charlotte, North Carolina 28288-0166
Attention: Syndication Agency Services
Ladies and Gentlemen:
Reference is made to that certain Sixth Amended and Restated Credit
Agreement dated as of October 26, 2000 (as amended, restated or otherwise
modified, the "Credit Agreement"), by and among Commercial Net Lease Realty,
Inc., Net Lease Realty I, Inc., Net Lease Realty II, Inc., Net Lease Realty
III, Inc., Net Lease Realty IV, Inc., and Net Lease Funding, Inc.,
corporations organized under the laws of Maryland (collectively, the
"Borrowers"), the Banks listed on the signature pages thereof (the
"Lenders"), and First Union National Bank, as the Agent. Capitalized terms
not otherwise defined herein are used herein with the respective meanings
given them in the Credit Agreement.
In response to the Borrowers' Bid Rate Quote Request dated _____________,
19__, the undersigned hereby makes the following Bid Rate Quote(s) on the
following terms:
1. Quoting Lender:____________________________
2. Person to contact at quoting Lender:____________________________
3. The undersigned offers to make Bid Rate Loan(s) in the following
principal amount(s), for the following Interest Period(s) and at the
following Bid Rate(s):
Borrowing Date Amount1 Interest Period Bid Rate
-------------- ------- --------------- --------
__________, 19___ $_____________ _________days __________%
[Signature on Following Page]
_____________________________
1 Minimum amount of $5,000,000 or larger multiple of $500,000.
<PAGE>
The undersigned understands and agrees that the offer(s) set forth above,
subject to satisfaction of the applicable conditions set forth in the Credit
Agreement, irrevocably obligate[s] the undersigned to make the Bid Rate Loan(s)
for which any offer(s) [is/are] accepted, in whole or in part.
By:________________________________________________
Name: _____________________________________________
Title: ____________________________________________
<PAGE>
EXHIBIT "J"
FORM OF BID RATE QUOTE ACCEPTANCE
__________________, 19__
First Union National Bank
One First Union Center, NC0166
301 South College Street
Charlotte, North Carolina 28288-0166
Attention: Syndication Agency Services
Ladies and Gentlemen:
Reference is made to that certain Sixth Amended and Restated Credit
Agreement dated as of October 26, 2000 (as amended, restated or otherwise
modified, the "Credit Agreement"), by and among Commercial Net Lease Realty,
Inc., Net Lease Realty I, Inc., Net Lease Realty II, Inc., Net Lease Realty
III, Inc., Net Lease Realty IV, Inc., and Net Lease Funding, Inc.,
corporations organized under the laws of Maryland (collectively, the
"Borrowers"), the Banks listed on the signature pages thereof (the
"Lenders"), and First Union National Bank, as the Agent. Capitalized terms
not otherwise defined herein are used herein with the respective meanings
given them in the Credit Agreement.
The Borrowers hereby accept the following offer(s) of Bid Rate Quotes:
Quote Date Quoting Lender Amount Accepted1
---------- -------------- ----------------
____________, 19____ __________________ $_______________
____________, 19____ __________________ $_______________
____________, 19____ __________________ $_______________
_________________________________
1 Minimum amount of $5,000,000 or larger multiple of $500,000.
<PAGE>
COMMERCIAL NET LEASE REALTY, INC.,
a Maryland corporation
By:_____________________________________________
Kevin Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE REALTY I, INC.,
a Maryland corporation
By:_____________________________________________
Kevin Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE REALTY II, INC.,
a Maryland corporation
By:_____________________________________________
Kevin Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE REALTY III, INC.,
a Maryland corporation
By:_____________________________________________
Kevin Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE REALTY IV, INC.,
a Maryland corporation
By:_____________________________________________
Kevin Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE FUNDING, INC.,
a Maryland corporation
By:_____________________________________________
Kevin Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
<PAGE>
EXHIBIT "K"
FORM OF JOINDER AGREEMENT
THIS JOINDER AGREEMENT dated as of ____________, ____, executed and
delivered by ______________________, a _____________ (the "New Borrower") in
favor of (a) FIRST union national bank, in its capacity as Agent (the
"Agent") for the Banks under that certain Sixth Amended and Restated Credit
Agreement dated as of October 26, 2000 (as the same may be amended, restated,
supplemented or otherwise modified from time to time in accordance with its
terms, the "Credit Agreement"), by and among Commercial Net Lease realty,
inc., NET LEASE RELTY I, INC., NET LEASE RELTY II, INC., NET LEASE RELTY III,
INC., NET LEASE RELTY IV, INC. and NET LEASE FUNDING, INC. (collectively,
the "Borrowers"), FIRST UNION NATIONAL BANK, as the Agent (the "Agent"), and
the financial institutions which are, or may from time to time become, listed
on the signature pages thereof (together with their successors and assigns,
individually a "Bank" and collectively the "Banks").
WHEREAS, pursuant to the Credit Agreement, the Agent and the Banks have
agreed to make available to the Borrowers certain financial accommodations on
the terms and conditions set forth in the Credit Agreement;
WHEREAS, the Borrowers, the New Borrower and the other Subsidiaries of the
Borrowers, though separate legal entities, are mutually dependent on each other
in the conduct of their respective businesses as an integrated operation and
have determined it to be in their mutual best interests to obtain financing from
the Agent and the Banks through their collective efforts; and
WHEREAS, the New Borrower's execution and delivery of this Agreement is a
condition to the Agent and the Banks making such financial accommodations to the
New Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the New Borrower, the New
Borrower agrees as follows:
Section 1. Accession to Credit Agreement. The New Borrower hereby agrees
that it is a "Borrower" under the Credit Agreement and assumes all obligations
of a "Borrower" thereunder, all as if the New Borrower had been an original
signatory to the Credit Agreement. Without limiting the generality of the
foregoing, the New Borrower hereby:
(a) irrevocably and unconditionally undertakes, upon its becoming a
Borrower, to perform all the obligations expressed to be undertaken under the
Credit Agreement and the other Loan Documents by a Borrower, including without
limitation the due and punctual payment and performance when due, whether at
stated maturity, by acceleration or otherwise, of all obligations of the
Borrowers under the Credit Agreement and the other Loan Documents;
(b) makes to the Agent and the Banks as of the date hereof each of the
representations and warranties contained in Section 4 of the Credit Agreement
and agrees to be bound by each of the covenants contained in Sections 6 and 7 of
the Credit Agreement; and
(c) consents and agrees to each provision set forth in the Credit
Agreement.
SECTION 2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE,
EXCLUDING THOSE LAWS RELATING TO THE RESOLUTION OF CONFLICTS BETWEEN LAWS OF
DIFFERENT JURISDICTIONS.
Section 3. Definitions. Capitalized terms used herein and not
-----------
otherwise defined herein shall have their respective defined meanings given
them in the Credit Agreement.
[Signatures on Next Page]
<PAGE>
IN WITNESS WHEREOF, the New Borrower has caused this Joinder Agreement to
be duly executed and delivered under seal by its duly authorized officers as of
the date first written above.
[NEW BORROWER]
By:______________________________________
Name:____________________________________
Title:___________________________________
ATTEST:
By:______________________________________
Name:____________________________________
Title:___________________________________
(CORPORATE SEAL)
Address for Notices:
Accepted:
FIRST UNION NATIONAL BANK,
as Agent
By:________________________________
Name:______________________________
Title:_____________________________
<PAGE>
EXHIBIT "L"
FORM OF QUARTERLY COMPLIANCE CERTIFICATE
First Union National Bank
One First Union Center, NC0166
301 South College Street
Charlotte, North Carolina 28288-0166
Attention: Syndication Agency Services
Each of the Lenders Party to the
Credit Agreement referred to below
Ladies and Gentlemen:
Reference is made to that certain Sixth Amended and Restated Credit
Agreement dated as of October 26, 2000 (as amended, restated or otherwise
modified, the "Credit Agreement"), by and among Commercial Net Lease Realty,
Inc., Net Lease Realty I, Inc., Net Lease Realty II, Inc., Net Lease Realty
III, Inc., Net Lease Realty IV, Inc., and Net Lease Funding, Inc.,
corporations organized under the laws of Maryland (collectively, the
"Borrowers"), the Banks listed on the signature pages thereof (the
"Lenders"), and First Union National Bank, as the Agent. Capitalized terms
used herein, and not otherwise defined herein, have their respective meanings
given them in the Credit Agreement.
Pursuant to Section 6.1.(a) of the Credit Agreement, the undersigned
hereby certifies to the Agent and the Lenders as follows:
(1) The undersigned is the chief financial officer of each of the
Borrowers.
(2) The undersigned has examined the books and records of the Borrowers
and has conducted such other examinations and investigations as are reasonably
necessary to provide this Quarterly Advance Compliance Certificate.
(3) No Default or Event of Default exists [if such is not the case,
specify such Default or Event of Default and its nature, when it occurred and
whether it is continuing and the steps being taken by the Parent with respect to
such event, condition or failure].
(4) The representations and warranties made or deemed made by the
Borrowers in the Loan Documents are true and correct in all material respects on
and as of the date hereof except to the extent that such representations and
warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and accurate on and as of
such earlier date) and except for changes in factual circumstances specifically
and expressly permitted under the Credit Agreement.
(5) Attached hereto as Schedule 1 are reasonably detailed
calculations establishing whether or not the Borrowers were in compliance
with the covenants contained in Section 6.2. of the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
the date first above written.
_________________________________________
Title: Chief Financial Officer of each of
Commercial Net Lease Realty, Inc.,
Net Lease Realty I, Inc.,
Net Lease Realty II, Inc.,
Net Lease Realty III, Inc.,
Net Lease Realty IV, Inc., and
Net Lease Funding, Inc.
<PAGE>
Schedule 1
[Calculations to be Attached]
<PAGE>
EXHIBIT "M"
FORM OF BID RATE NOTE
As of October 26, 2000
Charlotte, North Carolina
FOR VALUE RECEIVED, the undersigned, COMMERCIAL NET LEASE REALTY, INC., a
Maryland corporation ("CNLR"), NET LEASE REALTY I, INC., a Maryland corporation
("NET I"), NET LEASE REALTY II, a Maryland corporation ("NET II"), NET LEASE
REALTY III, INC., a Maryland corporation ("NET III"), NET LEASE REALTY IV, INC.,
a Maryland corporation ("NET IV"), and NET LEASE FUNDING, INC., a Maryland
corporation ("Funding"; CNLR, NET I, NET II, NET III, NET IV and Funding are
collectively referred to herein as the "Borrowers"), jointly and severally
promise to pay to the order of __________________ (the "Lender"), under that
certain Sixth Amended and Restated Credit Agreement of even date herewith as
amended and in effect from time to time (the "Agreement"), by and among the
undersigned, the Lender and the other Banks, and First Union National Bank, as
Agent (the "Agent"), in care of the Agent, to First Union National Bank, One
First Union Center, Charlotte, North Carolina 28288, or at such other address as
may be specified in writing by the Agent to the Borrowers, the aggregate unpaid
principal amount of Bid Rate Loans made by the Lender to the Borrowers under the
Agreement, and to pay interest on the unpaid principal amount of each such Bid
Rate Loan, at the rate and at the times specified in the Agreement. Capitalized
terms used but not defined herein shall have the meanings assigned those terms
in the Agreement.
In no event shall the interest rate applicable to principal outstanding
under this Bid RateNote exceed the maximum rate of interest allowed by
applicable law, as amended from time to time. The Lender does not intend to
charge any amount of interest or other fees or charges in the nature of interest
that exceeds the maximum rate allowed by applicable law. If any payment of
interest or in the nature of interest hereunder would cause the foregoing
interest rate limitation to be exceeded, then such excess payment shall be
credited as a payment of principal unless the undersigned notifies the Lender in
writing that the undersigned wishes to have such excess sum returned, together
with interest at the rate specified in Section 687.04(2), Florida Statutes, or
any successor statute.
Principal outstanding hereunder shall be due and payable in a single
payment at the Revolving Credit Maturity Date. Interest shall be payable at such
times specified in the Agreement, as long as any principal amount remains
outstanding hereunder, and at the Revolving Credit Maturity Date.
This Bid Rate Note is issued pursuant to, and is subject to, the
provisions of the Agreement. Reference is made to such Loan Documents for a
description of additional rights and obligations of the undersigned, the Lender,
including events of default, rights of prepayment and rights of acceleration of
maturity in the event of default.
The undersigned agree to pay or reimburse the Lender for all of their
costs and expenses incurred in connection with administration, supervision,
collection, or enforcement, or preservation of any rights under this Note and
the Loan Documents, including, without limitation, the fees and disbursements of
counsel for the Lender, including attorneys' fees out of court, in trial, on
appeal, in bankruptcy proceedings, or otherwise.
ALL PERSONS NOW OR AT ANY TIME LIABLE FOR PAYMENT OF THIS NOTE HEREBY
WAIVE PRESENTMENT, PROTEST, NOTICE OF PROTEST, AND NOTICE OF DISHONOR. THE
UNDERSIGNED EXPRESSLY CONSENT TO ANY EXTENSIONS AND RENEWALS OF THIS BID RATE
NOTE, IN WHOLE OR IN PART, AND ALL DELAYS IN TIME OF PAYMENT OR OTHER
PERFORMANCE UNDER THIS BID RATE NOTE WHICH MAY BE GRANTED AT ANY TIME AND FROM
TIME TO TIME, WITHOUT LIMITATION AND WITHOUT ANY NOTICE OR FURTHER CONSENT OF
THE UNDERSIGNED. ALL NOTICES, DEMANDS, AND OTHER COMMUNICATIONS REQUIRED OR
PERMITTED IN CONNECTION WITH THIS BID RATE NOTE SHALL BE GIVEN IN THE MANNER
SPECIFIED IN THE AGREEMENT.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Bid Rate Note may become, or may be declared to be, due
and payable in the manner, upon the conditions and with the effect provided in
the Agreement.
The remedies of the Lender, as provided herein, or in any other Loan
Document are cumulative and concurrent (except as may be provided in the
Agreement) and may be pursued singularly, successively, or together, and may be
exercised as often as the occasion therefor shall arise.
This Bid Rate Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Florida, excluding those laws relating
to the resolution of conflicts between the laws of different jurisdictions.
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this Bid Rate Note to be
executed as of the day and year first above written.
COMMERCIAL NET LEASE REALTY, INC.,
a Maryland corporation
By:______________________________________________-
Kevin Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE REALTY I, INC.,
a Maryland corporation
By:______________________________________________
Kevin Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE REALTY II, INC.,
a Maryland corporation
By:______________________________________________
Kevin Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE REALTY III, INC.,
a Maryland corporation
By:______________________________________________-
Kevin Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE REALTY IV, INC.,
a Maryland corporation
By:______________________________________________-
Kevin Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
NET LEASE FUNDING, INC.,
a Maryland corporation
By:______________________________________________
Kevin Habicht
Executive Vice President and Chief Financial Officer
Address: 450 S. Orange Avenue, Suite 900
Orlando, Florida 32801
<PAGE>
SCHEDULE OF BID RATE LOANS
This Bid Rate Note evidences Bid Rate Loans made under the
within-described Agreement to the Borrowers, on the dates and in the principal
amounts set forth below, subject to the payments and prepayments of principal
set forth below:
Unpaid
Principal Amount Paid Principal Notation
Date of Loan Amount of Loan or Prepaid Amount Made By
------------ -------------- ----------- --------- --------
<PAGE>
