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M&VA Draft
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Date: 7/21/00
$300,000,000
AMENDED AND RESTATED CREDIT AND REIMBURSEMENT AGREEMENT
Dated as of June 15, 2000
by and among
CNL APF Partners, LP
as Borrower,
CNL APF LP CORP.
as a Parent and Guarantor,
CNL APF GP CORP.
as a Parent and Guarantor,
each of the Guarantors,
as such term is defined herein,
BANK OF AMERICA, N.A.,
as Administrative Agent
and
as Issuing Lender,
BANK OF AMERICA SECURITIES LLC,
as Sole Lead Arranger
and
as Book Manager,
and
THE FINANCIAL INSTITUTIONS PARTY HERETO
AND THEIR ASSIGNEES UNDER SECTION 12.5,
as Lenders and/or Bridge Lenders, as applicable
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE I DEFINITIONS 1
<S> <C>
Section 1.1 Definitions....................................................1
Section 1.2 General; References to Times..................................29
ARTICLE II CREDIT FACILITY.................................................29
Section 2.1 Revolving Loans...............................................29
Section 2.2 Bridge Loans..................................................31
Section 2.3 Letter of Credit Subfacility..................................33
Section 2.4 Swingline Loan Subfacility....................................37
ARTICLE III GENERAL CREDIT PROVISIONS......................................39
Section 3.1 Default Rate..................................................39
Section 3.2 Prepayments...................................................39
Section 3.3 Continuation..................................................41
Section 3.4 Conversion....................................................42
Section 3.5 Swingline Extension/Conversion................................42
Section 3.6 Termination and Reduction of Revolving
Committed Amount/Total Committed Amount.......................42
Section 3.7 Expiration or Maturity Date of Letters
of Credit Past Maturity Date..................................43
Section 3.8 Fees..........................................................43
Section 3.9 Capital Adequacy..............................................44
Section 3.10 Limitation on Eurodollar Loans...............................44
Section 3.11 Illegality...................................................44
Section 3.12 Requirements of Law..........................................45
Section 3.13 Treatment of Affected Loans..................................45
Section 3.14 Taxes........................................................46
Section 3.15 Compensation.................................................47
Section 3.16 Pro Rata Treatment...........................................47
Section 3.17 Sharing of Payments..........................................48
Section 3.18 Payments, Computations, Etc..................................48
Section 3.19 Evidence of Indebtedness.....................................50
Section 3.20 Usury........................................................50
Section 3.21 Agreement Regarding Interest and Charges.....................51
Section 3.22 Statements of Account........................................51
Section 3.23 Defaulting Lenders...........................................51
Section 3.24 Assumptions Concerning Funding of Eurodollar Loans...........52
ARTICLE IV GUARANTY AND PLEDGE AGREEMENTS..................................52
Section 4.1 Execution and Delivery........................................52
Section 4.2 Rights of Contribution........................................52
Section 4.3 Termination and Release.......................................53
ARTICLE V CONDITIONS 54
Section 5.1 Closing Conditions............................................54
Section 5.2 Conditions to all Extensions of Credit........................58
Section 5.3 Conditions as Covenants.......................................58
ARTICLE VI REPRESENTATIONS AND WARRANTIES..................................59
Section 6.1 Financial Condition...........................................59
Section 6.2 No Material Change............................................59
Section 6.3 Organization and Good Standing................................59
Section 6.4 Power; Authorization; Enforceable Obligations.................59
Section 6.5 No Conflicts..................................................60
Section 6.6 No Default....................................................60
Section 6.7 Ownership.....................................................60
Section 6.8 Environmental Condition of Underlying Assets..................60
Section 6.9 Litigation....................................................61
Section 6.10 Taxes........................................................61
Section 6.11 Compliance with Law..........................................61
Section 6.12 ERISA........................................................62
Section 6.13 Corporate Structure; Capital Stock, Etc......................63
Section 6.14 Governmental Regulations, Etc................................63
Section 6.15 Activities in the State of California........................63
Section 6.16 Existing Permitted Liens.....................................63
Section 6.17 Intellectual Property........................................64
Section 6.18 Solvency.....................................................64
Section 6.19 Investments..................................................64
Section 6.20 Title to Properties; Liens...................................64
Section 6.21 Payment of Corporate and Franchise Taxes.....................64
Section 6.22 Existing Secured and Unsecured Indebtedness..................64
Section 6.23 Material Contracts...........................................65
Section 6.24 Collateral/Business Locations................................65
Section 6.25 Full Disclosure..............................................65
Section 6.26 No Burdensome Restrictions...................................65
Section 6.27 Brokers' Fees................................................65
Section 6.28 Labor Matters................................................65
Section 6.29 Affiliate Transactions, Restrictions on Dividend, Etc........65
Section 6.30 Status of Combined Parties...................................65
Section 6.31 Nature of Business...........................................66
Section 6.32 Rabo Facility................................................66
Section 6.33 Real Property Interests......................................66
Section 6.34 Accuracy and Completeness of Information.....................66
Section 6.35 Survival of Representations and Warranties, Etc..............67
ARTICLE VII AFFIRMATIVE COVENANTS..........................................67
Section 7.1 Information Covenants.........................................67
Section 7.2 Preservation of Existence and Franchises......................71
Section 7.3 Books and Records.............................................71
Section 7.4 Compliance with Law...........................................71
Section 7.5 Payment of Taxes and Other Indebtedness.......................71
Section 7.6 Insurance.....................................................71
Section 7.7 Maintenance of Property.......................................72
Section 7.8 Performance of Obligations....................................72
Section 7.9 Visits and Inspections........................................72
Section 7.10 Use of Proceeds/Purpose of Loans and Letters of Credit.......73
Section 7.11 Financial Covenants..........................................73
Section 7.12 Distributions of Income to the Borrower......................74
Section 7.13 Environmental Matters........................................74
Section 7.14 REIT Status..................................................74
Section 7.15 ERISA Exemptions.............................................75
Section 7.16 New Subsidiaries; Joint Ventures.............................75
Section 7.17 Pledged Assets...............................................75
Section 7.18 Interest Rate Protection.....................................75
Section 7.19 Borrower's Deposits..........................................75
Section 7.20 Recording of Mortgage Instruments and Other Real Property
Interests....................................................76
Section 7.21 Further Assurances...........................................77
Section 7.22 Management of Entities.......................................77
Section 7.23 Included Asset Pool..........................................78
Section 7.24 Borrower Subsidiaries........................................78
Section 7.25 Lockbox Accounts.............................................78
ARTICLE VIII NEGATIVE COVENANTS............................................79
Section 8.1 Indebtedness..................................................79
Section 8.2 Contingent Obligations........................................80
Section 8.3 Certain Permitted Investments.................................81
Section 8.4 Investments Generally.........................................82
Section 8.5 Liens; Agreements Regarding Liens; Other Matters..............83
Section 8.6 Restricted Payments...........................................83
Section 8.7 Limit on Concepts/Tenants.....................................84
Section 8.8 Ground Leases.................................................84
Section 8.9 Merger, Consolidation, Sales of Assets and Other Arrangements;
Sale-Lease Back Transactions/Change of Control................84
Section 8.10 Asset Dispositions...........................................85
Section 8.11 Fiscal Year..................................................86
Section 8.12 Modifications to Material Contracts..........................86
Section 8.13 Transactions with Affiliates.................................86
Section 8.14 Limitation on International Leases...........................86
Section 8.15 Hedge Agreements.............................................86
Section 8.16 No Further Negative Pledges..................................87
Section 8.17 Limitation on Restricted Actions.............................87
Section 8.18 Creation of Subsidiaries.....................................87
ARTICLE IX DEFAULT 88
Section 9.1 Events of Default.............................................88
Section 9.2 Remedies Upon Event of Default................................91
Section 9.3 Allocation of Proceeds........................................92
Section 9.4 Performance by Administrative Agent...........................92
Section 9.5 Rights Cumulative.............................................92
Section 9.6 Rescission of Acceleration by Required Lenders................92
Section 9.7 Collateral Account............................................93
ARTICLE X THE ADMINISTRATIVE AGENT........................................93
Section 10.1 Authorization and Action.....................................93
Section 10.2 Administrative Agent's Reliance, Etc.........................94
Section 10.3 Notice of Defaults...........................................94
Section 10.4 Rights as Lender.............................................94
Section 10.5 Approvals of Lenders.........................................95
Section 10.6 Lender Credit Decision, Etc..................................95
Section 10.7 Indemnification of Administrative Agent and Sole Lead
Arranger.....................................................96
Section 10.8 Successor Administrative Agent...............................96
Section 10.9 Sole Lead Arranger Has No Duties.............................97
ARTICLE XI MISCELLANEOUS 97
Section 11.1 Notices......................................................97
Section 11.2 Expenses.....................................................98
Section 11.3 Setoff.......................................................98
Section 11.4 Successors and Assigns.......................................99
Section 11.5 Amendments, Waivers and Consents............................100
Section 11.6 Nonliability of Administrative Agent and Lender.............102
Section 11.7 Confidentiality.............................................102
Section 11.8 Indemnification.............................................102
Section 11.9 No Waiver; Remedies Cumulative..............................104
Section 11.10 Termination; Survival......................................104
Section 11.11 Severability of Provisions.................................104
Section 11.12 Binding Effect; Termination................................104
Section 11.13 GOVERNING LAW..............................................104
Section 11.14 WAIVER OF JURY TRIAL.......................................104
Section 11.15 Consent to Jurisdiction....................................105
Section 11.16 Counterparts...............................................105
Section 11.17 Limitation of Liability....................................105
Section 11.18 Obligations with Respect to Credit Parties.................105
Section 11.19 Regulation D...............................................106
Section 11.20 Entire Agreement...........................................106
Section 11.21 Construction...............................................106
Section 11.22 Limitation of Liability of Officers, Directors, Etc........106
Section 11.23 No Novation................................................106
</TABLE>
THIS AMENDED AND RESTATED CREDIT AND REIMBURSEMENT AGREEMENT dated as
of June 15, 2000 by and among CNL APF PARTNERS, LP, a limited partnership formed
under the laws of the State of Delaware (the "Borrower"), CNL APF GP CORP.
Delaware corporation ("GP"), CNL APF LP CORP. a Delaware corporation ("LP");
(collectively, GP and LP shall be referred to as the "Parents"), the Guarantors
existing as of the date hereof, as defined herein, BANK OF AMERICA, N.A. ("Bank
of America"), as contractual representative of the Lender Parties (as defined
herein) to the extent and in the manner provided in Article XI below (in such
capacity, the "Agent" or "Administrative Agent"), as Administrative Agent, and
as Issuing Lender in connection with the Letters of Credit outlined herein (the
"Issuing Lender"), BANC OF AMERICA SECURITIES LLC, as Sole Lead Arranger and
Book Manager (the "Sole Lead Arranger"), and each of the financial institutions
initially a signatory hereto (either as a Lender or as a Bridge Lender) together
with their assignees pursuant to Section 11.4(d).
WHEREAS, the Bank of America and certain other lenders have made
available to the Borrower a revolving/bridge credit facility in an amount up to
$300,000,000, which includes a $10,000,000 letter of credit subfacility, on the
terms and conditions contained in that certain Amended and Restated Credit
Agreement dated as of June 9, 1999, as amended as of December 31, 1999 (the
"Existing Credit Agreement") by and among the Borrower, the Parent, the
Administrative Agent named therein, the Sole Lead Arranger, the Documentation
Agent, the Syndication Agent and the Lenders (each as identified therein); and
WHEREAS, the Borrower has requested that Bank of America, the Lenders
named herein and the Bridge Lenders named herein provide credit facilities in an
aggregate initial amount of $300,000,000.00 for the purpose of amending and
restating the Existing Credit Agreement and the other purposes hereinafter set
forth; and
WHEREAS, the Lender Parties have agreed to make the requested Credit
Facilities available to the Borrower on the terms and conditions set forth
herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
In addition to terms defined elsewhere herein, the following terms
shall have the following meanings for the purposes of this Credit Agreement:
"Actual Termination Date" means the date on which all of the Revolving
Commitments and Bridge Loan Commitments are terminated (whether voluntarily, by
reason of the occurrence of an Event of Default or otherwise).
"Adjusted Base Rate" means the Base Rate plus the Applicable Margin
with respect thereto.
"Adjusted EBITDA" means, for any period, EBITDA for such period
excluding the following: (a) EBITDA attributable to income from any Excluded
Asset, (b) depreciation with respect to any Real Property Asset which is the
subject of a lease that is an Excluded Asset and (c) EBITDA attributable to
income from any equipment leases where (i) any required rental payment,
principal or interest payment, or other payment due under such lease is more
than 60 days past due or (ii) the tenant under such lease is the subject of a
Bankruptcy Event (except to the extent that (A) such Person has been subject to
a proceeding under Chapter 11 of the Federal Bankruptcy Code, (B) the applicable
bankruptcy court has approved and confirmed such Person's plan for
reorganization, (C) all statutory appeal periods with respect to such proposed
plan have been exhausted or expired without objection, (D) the approved plan
requires such Person to continue to perform its obligations with respect to the
applicable lease/franchise agreement and (E) such Person is performing its
obligations under such approved plan and under the applicable lease/franchise
agreement).
"Adjusted Eurodollar Rate" means the Eurodollar Rate plus the
Applicable Margin with respect thereto.
"Adjusted Net Capitalization" means, with respect to the Combined
Parties: (a) Total Assets, minus (b) the aggregate amount of all Intangible
Assets, minus (c) 100% of the Value of all leases that are Excluded Assets, and
100% of the book value of all promissory notes that are Excluded Assets, minus
(d) 100% of the Value of all equipment leases, minus (e) the Value of all ground
leases in excess of 50% of the Value of all Qualified Ground Lease Assets, minus
(f) all depreciation with respect to those ground leases excluded pursuant to
the immediately preceding clause (e), plus (g) the aggregate amount of
accumulated depreciation and amortization, minus (h) 100% of the aggregate
amount of accumulated depreciation and amortization with respect to the Real
Properties which are leased under Operating Leases that are Excluded Assets,
minus (i) the aggregate amount by which the book value of all Subordinated
Interests (excluding those issued in connection with Permitted On Balance Sheet
Warehouse Financings and Nonrecourse SPE Financings) held by the Parents and
their Consolidated Subsidiaries exceeds the respective Value of such
Subordinated Interests. For purposes of determining Adjusted Net Capitalization,
the following limitations shall apply: (i) to the extent that the aggregate
Value of Subordinated Interests (excluding those issued in connection with
Permitted On Balance Sheet Warehouse Financings and Nonrecourse SPE Financings)
would exceed 10% of Adjusted Net Capitalization (determined without giving
effect to this clause (ii)), such excess shall be excluded in determining
Adjusted Net Capitalization; and (ii) the Value of Subordinated Interests shall
be redetermined as of the last day of each calendar quarter of each of the
Parents.
"Administrative Agent" or "Agent" means Bank of America, as contractual
representative for the Lenders under the terms of this Credit Agreement, and any
of its successors.
"Affiliate" means any Person (other than the Administrative Agent or
any Lender): (a) directly or indirectly controlling, controlled by, or under
common control with, either of the Parents or both Parents collectively; (b)
directly or indirectly owning or holding ten percent (10.0%) or more of any
equity interest in either of the Parents; or (c) ten percent (10.0%) or more of
whose Voting Stock or other equity interest is directly or indirectly owned or
held by either of the Parents or both Parents collectively. For purposes of this
definition, "control" (including with correlative meanings, the terms
"controlling", "controlled by" and "under common control with") means the
possession directly or indirectly of the power to direct or cause the direction
of the management and policies of a Person, whether through the ownership of
voting securities or by contract or otherwise. The Affiliates of a Person shall
include any officer or director of such Person.
"AffiliateCo" means CNL Restaurant Net Lease Holdings, LP.
"Agent's Fee Letters" means a collective reference to that certain
Revolving Fee Letter and that certain Bridge Fee Letter entered into by the
Borrower and the Administrative Agent as of the date hereof.
"Agreement Date" means the date as of which this Credit Agreement is
dated.
"APF" means CNL American Properties Fund, Inc..
"APF Agreement" means that certain Negative Pledge Agreement executed
by APF in favor of the Borrower and the Secured Parties dated as of the date
hereof and substantially in the form of Exhibit V attached hereto.
"Applicable Law" means all applicable provisions of constitutions,
statutes, rules, regulations and orders of all governmental bodies and all
orders and decrees of all courts, tribunals and arbitrators.
"Applicable Margin" means, (a) from the Closing Date until the date of
the occurrence of the Significant Capital Event (i) with respect to Eurodollar
Loans, two and one quarter percent (2.25%) and (ii) fifteen hundredths of one
percent (0.15%) with respect to Base Rate Loans, and (b) beginning on the date
immediately following the date of the occurrence of the Significant Capital
Event until the Maturity Date, shall be determined with regard to the following
chart based on the Unencumbered Asset Leverage Ratio:
<TABLE>
<CAPTION>
Unencumbered Asset Leverage Basis Points over Basis Points over
Ratio Eurodollar Rate Base Rate
<S> <C>
-------------------------------- ----------------------------- ------------------------------
> 35% 215 25
-
> 25% and < 35% 195 10
-
< 25% 175 0
</TABLE>
"Approved Debt Issuance" means any Debt Issuance of any Combined Party
approved by the Administrative Agent and 100% of the Lenders in writing.
"Approved Investments" means any Investment of any Combined Party
approved by the Administrative Agent and 100% of the Lenders in writing.
"Asset Disposition" means any disposition of any or all of the Property
of any of the Combined Parties whether by sale, lease, transfer or otherwise,
but other than pursuant to an Involuntary Disposition.
"Assignee" has the meaning given that term in Section 11.4(d).
"Assignment and Acceptance Agreement" means an Assignment and
Acceptance Agreement among a Lender, an Assignee and the Administrative Agent,
substantially in the form of Exhibit A.
"Assignment of Hedge Agreement" means a conditional Assignment of Hedge
Agreement substantially in the form of Exhibit O-1 and a corresponding Consent
to Hedge Agreement from a hedge counterparty in the form of Exhibit O-2.
"Assignment of Leases" means an assignment of leases, rents and/or
profits to the Administrative Agent with respect to Borrower's interests in any
parcel of Real Property; provided that each such Assignment of Leases shall,
subject to the terms of the applicable underlying lease, directly assign to the
Administrative Agent the following: (a) all leases, subleases, tenancies,
licenses, occupancy agreements or agreements to lease all or any portion of the
subject property, together with any extensions, renewals, amendments,
modifications or replacements thereof, and any options, rights of first refusal
or guarantees of any tenant's obligations under any lease now or hereafter in
effect with respect to its respective Mortgaged Property (individually, for the
purposes of this definition, a "Lease" and collectively, the "Leases"); (b) all
rents, income, receipts, revenues, reserves, issues and profits arising under
any Lease including, without limitation, minimum rents, additional rents,
percentage rents, parking, maintenance and deficiency rents with respect to its
respective Mortgaged Property; (c) all awards and payments of any kind derived
from or relating to any Lease including, without limitation, (i) claims for the
recovery of damages to the Property by proceeds of any policy of insurance or
otherwise, or for the abatement of any nuisance existing thereon, (ii) claims
for damages resulting from acts of insolvency or bankruptcy or otherwise, (iii)
lump sum payments for the cancellation or termination of any Lease, the waiver
of any term thereof, or the exercise of any right of first refusal or option to
purchase and (iv) the return of any insurance premiums or ad valorem tax
payments made in advance and subsequently refunded; (d) the proceeds of any
rental or loss of rents insurance carried by Borrower or any holder of a fee
interest or leasehold interest on the Mortgaged Properties; and (e) all security
deposits and escrow accounts made by any tenant or subtenant under any Lease.
Such Assignments of Leases, when considered collectively with the Assignments of
Assignments of Leases, shall assign to the Administrative Agent any and all of
the Borrower's rights to collect or receive any payments with respect to the
Mortgaged Properties; and "Assignments of Leases" means a collective reference
to each such Assignment of Leases.
"Assignment of Assignment of Leases" means an assignment by the
Borrower to the Administrative Agent of all of Borrower's interests in an
assignment of leases, rents and/or profits with respect to the Borrower's
interests in any parcel of Real Property as a lender; and "Assignments of
Assignments of Leases" means a collective reference to each such Assignment of
Assignment of Leases.
"Assignment of Mortgage" means an assignment of mortgage, assignment of
deed of trust or assignment of deed to secure debt, to the Administrative Agent
with respect to Borrower's interests in any parcel of Real Property; and
"Assignments of Mortgages" means a collective reference to each Assignment of
Mortgage.
"Bank of America" means Bank of America, N.A. and its successors and
assigns.
"Bankruptcy Event" means, with respect to any Person, the occurrence of
any of the following: (i) the entry of a decree or order for relief by a court
or governmental agency in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or the appointment
by a court or governmental agency of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or the ordering of the winding up or
liquidation of its affairs by a court or governmental agency; or (ii) the
commencement against such Person of an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or of
any case, proceeding or other action for the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of
such Person or for any substantial part of its Property or for the winding up or
liquidation of its affairs, and such involuntary case or other case, proceeding
or other action shall remain undismissed for a period of sixty (60) consecutive
days, or the repossession or seizure by a creditor of such Person of a
substantial part of its Property; or (iii) such Person shall commence a
voluntary case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment of or the
taking possession by a receiver, liquidator, assignee, creditor in possession,
custodian, trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or make any general assignment for the benefit
of creditors; or (iv) the filing of a petition by such Person seeking to take
advantage of any other Applicable Laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment
of debts, or (v) such Person shall consent to, or fail to contest in a timely
and appropriate manner, any petition filed against it in an involuntary case
under such bankruptcy laws or other Applicable Laws or consent to any proceeding
or action relating to any bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts with respect to its assets or existence, or
(vi) such Person shall admit in writing, or such Person's financial statements
shall reflect, an inability to pay its debts generally as they become due.
"Base Rate" means the per annum rate of interest equal to the greater
of (a) the Prime Rate or (b) the Federal Funds Rate plus one-half of one percent
(0.5%). Any change in the Base Rate resulting from a change in the Prime Rate or
the Federal Funds Rate shall become effective on the effective date of such
change in the Federal Funds Rate or Prime Rate. The Base Rate is a reference
rate used by the Administrative Agent in determining interest rates on certain
loans and is not intended to be the lowest rate of interest charged by the
Administrative Agent or any Lender on any extension of credit to any debtor.
"Base Rate Loan" means a Loan bearing interest at a rate based on the
Base Rate.
"Borrower" has the meaning set forth in the introductory paragraph
hereof and shall include the Borrower's successors and assigns.
"Borrowing Base Amount" means for any date:
(a) prior to the Significant Capital Event an amount equal to the
lesser of:
(i) (A) fifty percent (50%) of the Unencumbered Asset Value less
(B) the sum of (without duplication): (1) Unsecured
Indebtedness of the Borrower (other than Indebtedness created
by the Credit Documents) plus (2) the aggregate amount of all
outstanding Bridge Loans; and
(ii) the Value of the Included Asset Pool; and
(b) from and after the Significant Capital Event an amount equal to the
lesser of:
(i) (A) forty percent (40%) of the Unencumbered Asset Value less
(B) the sum of (without duplication): (1) Unsecured
Indebtedness of the Borrower (other than Indebtedness created
under the Credit Documents) plus (2) the aggregate amount of
all outstanding Bridge Loans; and
(ii) fifty percent (50%) of the Value of the Included Asset Pool.
Notwithstanding the foregoing, if the Significant Capital Event has not occurred
as of October 31, 2000, the Borrowing Base Amount shall not, thereafter, exceed
fifty percent (50%) of the Value of the Included Asset Pool.
"B-Piece Subsidiary" means CNL Restaurant Bond Holdings, LP, a Special
Purpose Entity Supermajority Subsidiary of the Borrower created for the purpose
of holding Securitization Securities that are debt securities.
"Bridge Lender" means each financial institution from time to time a
party hereto as a "Bridge Lender", together with its respective successors and
assigns.
"Bridge Loan" has the meaning given to such term in Section 2.2(a)(i).
"Bridge Loan Commitment" means, as to each Bridge Lender, such Bridge
Lender's obligation to make Bridge Loans pursuant to Section 2.2 in an amount up
to, but not exceeding, the amount set forth for such Bridge Lender on its
signature page hereto as such Lender's "Bridge Loan Committed Amount" or as set
forth in the applicable Assignment and Acceptance Agreement; as the same may be
reduced from time to time pursuant to the terms hereof.
"Bridge Loan Committed Amount" means $175,000,000, as such amount may
be reduced pursuant to the terms hereof.
"Bridge Loan Commitment Percentage" means, with respect to each Bridge
Lender as of any calculation date, the ratio, expressed as a percentage, of (a)
the amount of such Bridge Lender's Bridge Loan Commitment to (b) the aggregate
amount of the Bridge Loan Commitments of all Bridge Lenders hereunder; provided,
however, that if at the time of determination the Bridge Loan Commitments have
terminated or been reduced to zero, the "Bridge Loan Commitment Percentage" of
each Bridge Lender shall be the Bridge Loan Commitment Percentage of such Bridge
Lender in effect immediately prior to such termination or reduction.
"Bridge Loan Termination Date" means the earlier of (a) the occurrence
of a Significant Capital Event and (b) December 31, 2000.
"Bridge Note" or "Bridge Notes" has the meaning given to such term in
Section 2.2(e).
"Business Day" means (a) any day other than a Saturday, Sunday or other
day on which banks in Charlotte, North Carolina or New York City, New York are
authorized or required to close and (b) with reference to a Eurodollar Loan, any
such day that is also a day on which dealings in Dollar deposits are carried out
in the London interbank market.
"Businesses" means, at any time, a collective reference to the
businesses operated by the Combined Parties at such time.
"Calculation Period" means (a) for the calendar quarter ending
September 30, 2000, the immediately preceding calendar quarter (ending on such
date), annualized, (b) for the calendar quarter ending December 31, 2000, the
immediately preceding two (2) calendar quarters (including the calendar quarter
ending on such date), annualized, (c) for the calendar quarter ending March 31,
2001, the immediately preceding three (3) calendar quarters (including the
calendar quarter ending on such date) annualized, and (d) for the calendar
quarter ending on June 30, 2001 and each calendar quarter thereafter, the
immediately preceding four (4) calendar quarters (including the calendar quarter
ending on the date of such calculation).
"Capital Expenditures" means, with respect to any Person, all
expenditures made and liabilities incurred for the acquisition of assets which
are not, in accordance with GAAP, treated as expense items for such Person in
the year made or incurred or as a prepaid expense applicable to a future year or
years.
"Capitalized Lease Obligation" means Indebtedness 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 Indebtedness
is the capitalized amount of such obligations determined in accordance with
GAAP.
"Capital Stock" means (i) in the case of a corporation, capital stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (iii) in the case of a partnership, partnership interests
(whether general or limited), (iv) in the case of a limited liability company,
membership interests and (v) any other interest or participation that confers on
a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"Cash Equivalents" means: (a) securities issued, guaranteed or insured
by the United States of America or any of its agencies with maturities of not
more than one (1) year from the date acquired; (b) certificates of deposit with
maturities of not more than one (1) year from the date acquired issued by a
United States federal or state chartered commercial bank of recognized standing,
which has capital and unimpaired surplus in excess of $500,000,000.00 and which
bank or its holding company has a short-term commercial paper rating of at least
A-2 or the equivalent by S&P, at least P-2 or the equivalent by Moody's or an
equivalent rating by another nationally recognized rating agency; (c) reverse
repurchase agreements with terms of not more than seven (7) days from the date
acquired, for securities of the type described in clause (a) above and entered
into only with commercial banks having the qualifications described in clause
(b) above; (d) commercial paper issued by any Person incorporated under the laws
of the United States of America or any state thereof or the District of Columbia
and rated at least A-2-or the equivalent thereof by S&P or at least P-2 or the
equivalent thereof by Moody's or another nationally recognized rating agency, in
each case with maturities of not more than one (1) year from the date acquired;
and (e) investments in money market funds registered under the Investment
Company Act of 1940, which have net assets of at least $500,000,000.00 and at
least 85% of whose assets consist of securities and other obligations of the
type described in clauses (a) through (d) above.
"CERCLA" means the Federal Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42U.S.C.ss.9601, et seq.
-- ---
"Claims and Expenses" has the meaning given to such term in
Section 11.8(a).
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute thereto, as interpreted by the rules and regulations issued
thereunder, in each case as in effect from time to time. References to sections
of the Code shall be construed also to refer to any successor sections.
"Collateral" means a collective reference to all real and personal
Property (other than Excluded Property) with respect to which Liens in favor of
the Agent are either executed, identified or purported to be granted pursuant to
and in accordance with the terms of the Collateral Documents.
"Collateral Account" means a special deposit account maintained by the
Administrative Agent and under its sole dominion and control.
"Collateral Agent" means Bank of America, in such capacity under the
Credit Documents, or its successors and assigns.
"Collateral Documents" means a collective reference to the Pledge
Agreements, the APF Agreement, the Guaranty Agreements, the Security Agreement,
each Assignment of Hedge Agreement and the Mortgage Instruments, Assignments of
Mortgages, Assignments of Leases, Assignments of Assignments of Leases, any UCC
financing statements securing payment hereunder, or any other documents securing
the Obligations under this Credit Agreement or any other Credit Document.
"Combined Parties" means a collective reference to the Parents and
their Consolidated Subsidiaries; and "Combined Party" means any one of them.
"Compliance Certificate" has the meaning given such term in Section 7.1
(d).
"Concept" refers to any distinctive system for establishing and
operating restaurants which is the subject of a license or franchise from a
Person. Not in limitation of the foregoing, and by way of example only, such
systems would include "Jack in the Box," "Golden Corral" and "IHOP."
"Consolidated Subsidiary" means, with respect to a Person, any
Subsidiary of such Person the accounts of which are required to be consolidated
with those of such Person in its consolidated financial statements in accordance
with GAAP.
"Contingent Obligation" means, with respect to any Person, any
obligation of such Person to guarantee or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, (a) the direct or indirect guaranty,
endorsement (other than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale with recourse by such
Person of the obligation of a primary obligor, (b) the obligation to make
take-or-pay or similar payments, if required, regardless of nonperformance by
any other party or parties to an agreement, (c) any obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (A) for the purchase or payment of any such primary obligation or
(B) to maintain working capital, equity capital, net worth or other balance
sheet condition or any income statement condition of the primary obligor or
otherwise to maintain the solvency of the primary obligor, (iii) to purchase,
lease or otherwise acquire property, assets, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the holder of such primary obligation
against loss in respect thereof, (d) any residual obligation or liability of
such Person under any Synthetic Lease or any other off-balance sheet financing,
(e) any guaranty or letter of credit entered into to credit enhance or otherwise
with respect to the F-VI Facility or (f) any obligation of such Person in
connection with any derivative transaction, hedging transaction (including,
without limitation, any Hedge Agreement), takeout commitment or forward equity
commitment. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made (or, if less, the maximum
amount of such primary obligation for which such Person may be liable pursuant
to the terms of the agreement, instrument or other document evidencing such
Contingent Obligation) or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder), as determined by such Person in good faith. Contingent
Obligations shall not include the following obligations or liabilities of the
Parents, the Borrower or any other Subsidiaries thereof (including any Special
Purpose Entity) to the extent incurred in connection with a Structured
Financing: reasonable and customary obligations of the Parents, the Borrower or
any other Subsidiaries thereof with respect to (i) the servicing of any assets
which are the subject of such Structured Financing, (ii) administrative and
ministerial matters relating to any applicable Special Purpose Entity and
related Excluded Subsidiaries, (iii) maintenance of the corporate separateness
of any such Special Purpose Entity and related Excluded Subsidiaries from that
of the Parents and their other Subsidiaries and (iv) the guaranty of payment of
fees of any Person acting as a trustee in connection with such Structured
Financing and indemnification obligations owing to any such Person. In addition,
the ownership of a Subordinated Interest shall not be deemed to give rise to any
Contingent Obligation on the part of the owner thereof. Further, Contingent
Obligations shall not include liabilities of either of the Parents or any
Consolidated Subsidiary thereof (i) which result solely from either of the
Parents or such Consolidated Subsidiary being a general partner of a Special
Purpose Entity that is a limited partnership and is not a Consolidated
Subsidiary, (ii) which liabilities are attributable to customary and reasonable
non-recourse exceptions, representations and warranties involved with
securitization transactions and not related to the creditworthiness of the
obligors involved in such transactions (including, without limitation,
exceptions for fraud, environmental indemnities and misapplication of proceeds)
and (iii) on any date prior to the earlier of (A) the Significant Capital Event,
(B) October 31, 2000 and (C) the maturity date of the F-VI Facility, any
guaranty or letter of credit entered into to credit enhance or otherwise with
respect to the F-VI Facility to the extent such guaranty and/or letters of
credit are for an aggregate amount of less than or equal to $15,000,000.
"Continue", "Continuation" and "Continued" each refers to the
continuation of a Eurodollar Loan from one Interest Period to another Interest
Period pursuant to Section 3.3.
"Contribution Share" has the meaning given to such term in Section 4.2.
"Convert", "Conversion" and "Converted" each refers to the conversion
of a Loan of one Type into a Loan of another Type pursuant to Section 3.4.
"Credit Agreement" means this Amended and Restated Credit and
Reimbursement Agreement, as modified, amended, restated or supplemented from
time to time.
"Credit Documents" means a collective reference to this Credit
Agreement, each Note, each Bridge Note, each Letter of Credit Document, the
Agent's Fee Letters, the Collateral Documents, the Assignments of Hedge
Agreements, the Environmental Indemnity and each other document or instrument
now or hereafter executed and delivered by any Credit Party in connection with,
pursuant to or relating to this Credit Agreement (in each case as the same may
be amended, modified, restated, supplemented, extended, renewed or replaced from
time to time), and "Credit Document" means any one of them.
"Credit Event" means any of the following: (a) the making (or deemed
making) of any Loan, (b) the Conversion of a Loan and (c) the issuance of a
Letter of Credit.
"Credit Parties" means a collective reference to the Borrower and the
Guarantors, and "Credit Party" means any one of them.
"Credit Party Obligations" means, without duplication, all of the
obligations of the Credit Parties to the Lenders, the Issuing Lender, the Bridge
Lenders and the Agent, whenever arising, under this Credit Agreement, the Notes,
the Bridge Notes, the Collateral Documents or any of the other Credit Documents
(including, but not limited to, any interest accruing after the occurrence of a
Bankruptcy Event with respect to any Credit Party, regardless of whether such
interest is an allowed claim under the Bankruptcy Code).
"Debt Issuance" means the issuance of any Indebtedness for borrowed
money by any Combined Party.
"Default" means any of the events specified in Section 9.1 (except as
set forth in Section 9.1(n)(v)), whether or not there has been satisfied any
requirement for the giving of notice, the lapse of time, or both.
"Default Rate" means in respect of any principal of any Loan or any
other Obligation that is not paid when due (whether at stated maturity, by
acceleration, by optional or mandatory prepayment or otherwise), a rate per
annum equal to four percent (4.0%) plus the Base Rate as in effect from time to
time.
"Defaulting Lender" has the meaning set forth in Section 3.23(a).
"Dollars" or "$" means the lawful currency of the United States of
America.
"EBITDA" means, for any Person over any period, net earnings (loss) of
such Person for such period plus the sum of the following (but only to the
extent taken into account in determining net earnings (loss) for such period):
(a) depreciation and amortization expense for such period; plus (b) Interest
Expense for such period; plus (c) income tax expense in respect of such period;
minus (or plus, as appropriate) (d) extraordinary gains (losses) and gains
(losses) from sales of assets for such period, including in any event, gains
(losses) from the sale of assets in connection with Permitted Financial Asset
Sales; plus (e) the principal component of all payments made in respect of
Capitalized Lease Obligations during such period; plus (or minus, as
appropriate) (f) all straight line rent leveling adjustments (reported in the
consolidated financial statements of such Person for purposes of GAAP); and plus
(or minus, as appropriate) (g) equity in net earnings (or net loss) of
Unconsolidated Affiliates of such Person (if any).
"Effective Date" means the later of (a) the Agreement Date; and (b) the
date on which all of the conditions precedent set forth in Section 5.1 shall
have been fulfilled.
"Eligible Assignee" means any Person who is: (i) currently a Lender
Party or an Affiliate of a Lender Party; (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; (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; or
(iv) approved by the Agent and, if an Event of Default has not occurred,
approved by the Borrower.
"Eligible Mortgage Assets" means, at any given time, the sum of the
outstanding principal amounts of the Eligible Mortgage Notes Receivable held by
the Borrower at such time.
"Eligible Mortgage Income" means, for any given period, the aggregate
income of the Borrower from Eligible Mortgage Notes Receivable during such
period.
"Eligible Mortgage Note Receivable" means a promissory note held which
satisfies all of the following requirements: (a) such promissory note is owned
solely by the Borrower or any of the Borrower's Subsidiaries at any time prior
to a Structured Financing with respect to each such Subsidiary; (b) such
promissory note is secured by a Mortgage Instrument; (c) neither such promissory
note, nor any interest of the Borrower or either of the Parents 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 Instrument 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 Instrument is free of all structural defects, environmental conditions
or other adverse matters except for defects, conditions or matters individually
or collectively which are not material to the profitable operation of such real
property; (f) such real property has been fully developed for use as a
restaurant; (g) such real property is occupied and is in operation; and (h) such
promissory note is not an Excluded Asset; and "Eligible Mortgage Notes
Receivable" means a collective reference to each Eligible Mortgage Note
Receivable held by the Borrower at any given time.
"Eligible Net Lease Asset" means a lease of a Real Property (exclusive
of furniture, fixtures and equipment) which satisfies all of the following
requirements: (a) such Real Property is owned in fee simple (or leased as lessee
pursuant to a ground lease) by only the Borrower or any of the Borrower's
Subsidiaries at any time prior to a Structured Financing with respect to each
such Subsidiary, provided that in the case of a ground lease such ground lease
is a Qualified Ground Lease Asset; (b) neither such Real Property nor any
interest of the Borrower or either of the Parents therein (including the lease
thereof), is subject to (i) any Lien other than Permitted Liens of the types
described in clauses (a) through (c) of the definition thereof or (ii) any
Negative Pledge; (c) such Real Property 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; (d) such Real Property has been fully developed
for use as a restaurant; (e) such Real Property is leased to a tenant on a
triple-net basis, is occupied by such tenant and is in operation; and (f) such
lease is not an Excluded Asset; and "Eligible Net Lease Assets" means a
collective reference to all Eligible Net Lease Assets in existence at any given
time.
"Eligible Net Lease Income" means, for any given period, the aggregate
income of the Borrower from Eligible Net Lease Assets excluding straight line
rent leveling adjustments (reported in the consolidated financial statements of
the Parents and their Consolidated Subsidiaries for purposes of GAAP) in respect
of such Eligible Net Lease Assets for such period.
"Environmental Indemnity" means that certain Environmental Indemnity
Agreement entered into by the Borrower as of the date hereof with respect to the
Underlying Assets substantially in the form of Exhibit U.
"Environmental Laws" means any and all lawful and applicable Federal,
state, local and foreign statutes, laws (including, without limitation, CERCLA,
the Toxic Substances Control Act, the Water Pollution Control Act, the Clean Air
Act and the Hazardous Materials Transportation Act), regulations, ordinances,
rules, judgments, orders, decrees, permits, concessions, grants, franchises,
licenses, agreements or other governmental restrictions relating to the
environment or to emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes into the environment including, without limitation, ambient
air, surface water, ground water, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes.
"Equity Interests" means, with respect to any Person, shares of capital
stock of (or other ownership or profit interests in) such Person, warrants,
options or other rights for the purchase or other acquisition from such Person
of shares of capital stock of (or other ownership or profit interests in) such
Person, securities convertible into or exchangeable for shares of capital stock
of (or other ownership or profit interests in) such Person or warrants, rights
or options for the purchase or other acquisition from such Person of such shares
(or such other interests), and other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are authorized or otherwise existing on any
date of determination. Debt securities convertible into other Equity Interests
shall not constitute Equity Interests.
"Equity Issuance" means any issuance or sale by a Person of any Equity
Interest in such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
in effect from time to time.
"ERISA Group" means the Parents, the Borrower, any other Subsidiaries
thereof 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 Parents, the Borrower or any other Subsidiaries thereof, are treated as
a single employer under Section 414 of the Code.
"Eurodollar Loans" means Loans bearing interest at a rate based on the
Eurodollar Rate.
"Eurodollar Rate" means, for any Eurodollar Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) determined by the Administrative Agent to be equal to the
quotient obtained by dividing (a) the Interbank Offered Rate for such Eurodollar
Loan for such Interest Period by (b) 1 minus the Eurodollar Reserve Requirement
for such Eurodollar Loan for such Interest Period.
"Eurodollar Reserve Requirement" means, at any time, the maximum rate
at which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) by member banks of the Federal Reserve System
against "Eurocurrency liabilities" (as such term is used in Regulation D).
Without limiting the effect of the foregoing, the Eurodollar Reserve Requirement
shall reflect any other reserves required to be maintained by such member banks
with respect to (i) any category of liabilities which includes deposits by
reference to which the Adjusted Eurodollar Rate is to be determined, or (ii) any
category of extensions of credit or other assets which include Eurodollar Loans.
The Adjusted Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Eurodollar Reserve Requirement.
"Event of Default" means any of the events specified in Section 9.1
(except as set forth in Section 9.1(n)(v)), provided that any requirement for
notice or lapse of time or any other condition has been satisfied.
"Excess Payment" has the meaning given to such term in Section 4.2.
"Excess Proceeds" has the meaning given to such term in Section 7.6(b).
"Excluded Asset" means either a lease by one of the Parents or any
Subsidiary thereof, as lessor, of a parcel of Real Property, or a promissory
note held by one of the Parents or any Subsidiary thereof which is secured by a
Mortgage Instrument, in either case where (a) any required rental payment,
principal or interest payment, or other payment due under such lease or
promissory note, as the case may be, is more than 60 days past due, (b) the
tenant under such lease, the maker of such promissory note, or any Person that
is the franchisor or licensor of any Concept (if any) applicable to such real
property, is the subject of a Bankruptcy Event (except to the extent that (i)
such Person has been subject to a proceeding under Chapter 11 of the Federal
Bankruptcy Code, (ii) the applicable bankruptcy court has approved and confirmed
such Person's plan for reorganization, (iii) all statutory appeal periods with
respect to such proposed plan have been exhausted or expired without objection,
(iv) the approved plan requires such Person to continue to perform its
obligations with respect to the applicable lease/franchise agreement and (v)
such Person is performing its obligations under such approved plan and under the
applicable lease/franchise agreement) or (c) condemnation proceedings have been
instituted or condemnation has occurred with respect to a material portion of
the applicable parcel of Real Property.
"Excluded Equity Issuance" means any Equity Issuance by any Combined
Party to any Credit Party.
"Excluded Property" means, with respect to any Credit Party, including
any Person that becomes a Credit Party after the Closing Date as contemplated by
Section 7.16, (i) any owned or leased real or personal Property of such Credit
Party which is located outside of the United States, (ii) any owned Real
Property of such Credit Party which has a net book value of less than $50,000,
provided that the aggregate net book value of all real Property of all of the
Credit Parties excluded pursuant to this clause (ii) shall not exceed
$1,000,000, and (iii) any leased Real Property of such Credit Party which, at
the written request of the Borrower, the Agent has agreed in writing in its sole
discretion is not material.
"Excluded Subsidiary" means (a) those Subsidiaries listed in Schedule 1
hereto (as amended from time to time), (b) any Subsidiary of either of the
Parents (other than the Borrower) (i) which is a Special Purpose Entity and (ii)
which satisfies all of the following requirements: (A) such Subsidiary has no
assets other than (1) Equity Interests in other Excluded Subsidiaries, (2)
assets which such Subsidiary is to (and does in fact) dispose of promptly, and
in any event within two Business Days, following such Subsidiary's acquisition
of such assets and (3) cash distributed to such Subsidiary in connection with a
Structured Financing and cash contributed to such-Subsidiary to permit it to
satisfy its obligations under a Structured Financing, so long as the amount of
such cash held by such Subsidiary does not exceed $50,000 in the aggregate at
any time; (B) such Subsidiary engages in no business activities other than the
ownership of such Equity Interests and its other assets, and activities
incidental to Structured Financings; (C) such Subsidiary has no Indebtedness,
liabilities or other obligations other than those directly incurred in
connection with (1) Structured Financings and (2) if such Subsidiary is a
general partner of another Excluded Subsidiary, such Subsidiary's ownership
interest as a general partner and (D) has been in existence since after the
close of the immediately prior calendar quarter or has entered into a Structured
Financing; and "Excluded Subsidiaries" means a collective reference to each
Excluded Subsidiary, and (c) CNL/Lee Vista Joint Venture and CNL/Chevys
Annapolis Joint Venture, so long as such entities (i) remain single-asset
Subsidiaries of the Borrower and own no other material assets other than those
owned as of the date hereof, and (ii) do not incur any additional Indebtedness
other than Indebtedness in existence as of the date hereof.
"Executive Officer" of any Person means any of the chief executive
officer, chief operating officer, president, senior vice president, chief
financial officer or treasurer of such Person.
"Existing Credit Agreement" has the meaning given that term in the
recitals hereof.
"F-VI Facility" means the Note Purchase Facility provided to CNL
Financial VI, LP by Variable Funding Capital Corporation and Beethoven Funding
Corporation, as commercial paper purchasers, and First Union Securities, Inc.,
as Administrative Agent pursuant to that certain Amended and Restated Note
Purchase Agreement dated as of October 1, 1999 (as amended, restated,
supplemented or otherwise modified from time to time).
"Fair Value" means, with respect to an I/O Strip, the fair value of
such I/O Strip as disclosed in the footnotes to the Parents' financial
statements most recently delivered to the Lenders hereunder. If the Parents no
longer disclose such fair values in their financial statements, then the fair
value of an I/O Strip shall be determined in accordance with a valuation
methodology reasonably acceptable to the Administrative Agent.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward to the nearest 1/100th of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day,
provided that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate quoted to the
Administrative Agent by federal funds dealers selected by the Administrative
Agent on such day on such transaction as determined by the Administrative Agent.
"Fees" means the fees and commissions provided for or referred to in
Section 3.8 and any other fees payable by the Borrower hereunder or under any
other Credit Document, or otherwise payable by the Borrower to the
Administrative Agent, the Sole Lead Arranger, or any Lender in connection with
the transactions relating to this Credit Agreement.
"Finance Lease" means a lease of a parcel of Real Property which would
be categorized as a capital lease under GAAP.
"Financing Statements" means the UCC financing statements signed by the
Borrower and to be recorded in connection with this Credit Agreement as security
for the Borrower's Obligations hereunder.
"FINCo" means CNL Franchise Network, L.P., a Delaware limited
partnership.
"Fixed Charge Coverage Ratio" means, for any Person, the ratio of (a)
Adjusted EBITDA of such Person for the applicable Calculation Period to (b) the
Fixed Charges incurred by such Person for such Calculation Period.
"Fixed Charges" means, for any Person over any period, the sum of
(without duplication) (a) Interest Expense for such period plus (b) regularly
scheduled principal payments on Indebtedness of such Person during such period,
including, without limitation, the principal component of all payments made in
respect of Capitalized Lease Obligations, but excluding any scheduled balloon,
bullet or similar principal payment which repays such Indebtedness in full plus
(c) all Restricted Payments paid or accrued during such period in respect of any
Preferred Stock issued by such Person plus (d) with respect to any calculation
involving all of the Combined Parties, the Combined Parties' pro rata share of
the Fixed Charges (as defined without regard to this clause (d)) of all of such
Combined Parties' Unconsolidated Affiliates (excluding any issuer of a
Subordinated Interest acquired in connection with a Permitted Financial Asset
Sale).
"Flood Hazard Property" has the meaning set forth for such term in
Section 5.1(e)(v).
"Foreign Lender" means any Lender organized under the laws of a
jurisdiction other than the United States of America.
"Fully Satisfied" means, with respect to the Credit Party Obligations
as of any date, that, as of such date, (a) all principal of and interest accrued
to such date which constitute Credit Party Obligations shall have been paid in
full in cash, (b) all fees, expenses and other amounts then due and payable
which constitute Credit Party Obligations shall have been paid in cash, (c) all
outstanding Letters of Credit shall have been (i) terminated, (ii) fully cash
collateralized or (iii) secured by one or more letters of credit on terms and
conditions, and with one or more financial institutions, reasonably satisfactory
to the Issuing Lender and (d) the Revolving Commitments and Bridge Loan
Commitments shall have expired or been terminated in full.
"Funds From Operations" means, for a given period, (a) net earnings of
the Parent and its Subsidiaries (before minority interests and before
extraordinary and non recurring items) for such period minus (or plus) (b) gains
(or losses) from debt restructuring and sales of property during such period
plus (c) depreciation and amortization of real property assets for such period,
and after adjustments for unconsolidated partnerships and joint ventures.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board (including, without limitation FASB 133
and FASB 137, regardless of whether or not implemented) or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession.
"Government Acts" shall have the meaning set forth for such term in
Section 2.3(i)(i).
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any national, state or local government
(whether domestic or foreign), any political subdivision thereof or any other
governmental, quasi-governmental, judicial, public or statutory instrumentality,
authority, body, agency, bureau or entity (including, without limitation, the
Federal Deposit Insurance Corporation, the Comptroller of the Currency or the
Federal Reserve Board, any central bank or any comparable authority) or any
arbitrator with authority to bind a party at law.
"Guarantors" means a collective reference to (a) the Parents, (b) each
Subsidiary thereof that is not an Excluded Subsidiary and (c) each Subsidiary of
the Borrower that is not an Excluded Subsidiary as each may, from time to time,
exist, together with their successors and permitted assigns, and "Guarantor"
means any one of them.
"Guaranteed Obligations" means, without duplication, all of the
obligations of the Borrower and any Person guaranteeing the obligations of the
Borrower or any Credit Party to the Secured Parties, whenever arising, under the
Credit Agreement, the Notes, the Bridge Notes or any of the other Credit
Documents (including, but not limited to, any interest accruing after the
occurrence of a Bankruptcy Event with respect to the Borrower, regardless of
whether such interest is an allowed claim under the Bankruptcy Code), whether
now existing or hereafter arising, due or to become due, direct or indirect,
absolute or contingent, howsoever evidenced, held or acquired, as such
Guaranteed Obligations may be modified, extended, renewed or replaced from time
to time.
"Guaranty Agreements" means a collective reference to the Parent
Guaranty Agreements and the Subsidiary Guaranty Agreements executed or to be
executed in connection with Section 4 hereof and any New Guarantor Guaranty
Agreements executed pursuant to the terms hereof.
"Hazardous Materials" means all or any of the following: (a) substances
that are defined or listed in, or otherwise classified pursuant to, any
applicable Environmental Laws. as "hazardous substances", "hazardous materials",
"hazardous wastes", "toxic substances" or any other formulation intended to
define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity or
"TLCP" toxicity, "EP toxicity"; (b) oil, petroleum or petroleum derived
substances, natural gas, natural gas liquids or synthetic gas and drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources; (c)
any flammable substances or explosives or any radioactive materials; and (d)
asbestos in any form or (e) electrical equipment which contains any oil or
dielectric fluid containing levels of polychlorinated biphenyls in excess of
fifty parts per million; in each case excluding de minimus amounts of such
substances resulting from customary lawful usage thereof.
"Hedge Agreements" means, collectively, any rate swap transaction,
basis swap, forward rate transaction, commodity swap, commodity option, equity
or equity index option, bond option, interest rate option, foreign exchange
transaction, short sale transaction, cap transaction, floor transaction, collar
transaction, currency swap transaction, cross currency rate swap transaction,
currency option, any other similar transaction (including any option with
respect to any of these transactions) and any combination of the foregoing which
directly hedges or offsets interest rate risk or other market risk with respect
to any of the obligations of the Credit Parties under the Credit Documents or
any underlying asset or position held or owned by the Parents, the Borrower or
any of their Subsidiaries at the time such transaction is entered into.
"Included Asset Pool" means a collective reference to each of the
Mortgage Instruments, Assignments of Mortgage, Assignments of Leases and
Assignments of Assignment of Leases executed by the Borrower in favor of the
Secured Parties pursuant to the terms hereof and the Real Property interests
associated therewith, as such interests are set forth on Part I of Schedule
6.33; provided, that for purposes of calculating the Borrowing Base Amount and
other financial covenants, the Included Asset Pool shall not at any time include
any Excluded Asset.
"Included Asset Pool Proceeds" means the net proceeds derived from the
disposition (whether through a foreclosure sale or otherwise) of any of the
items constituting the Included Asset Pool by the Administrative Agent or
Collateral Agent in connection with this Credit Agreement or the other Credit
Documents.
"Indebtedness" means, with respect to a Person, at the time of
computation thereof, all of the following determined on a consolidated basis
(without duplication): (a) all indebtedness of such Person for borrowed money;
(b) all obligations of such Person for the deferred purchase price of property
and assets or services (other than trade payables or other accounts payable
incurred in the ordinary course of such Person's business and not past due for
more than ninety (90) days after the date on which each such trade payable or
account payable was created); (c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, or upon which interest
payments are customarily made; (d) all Capitalized Lease Obligations of such
Person; (e) all obligations, contingent or otherwise, of such Person under
acceptance, letter of credit or similar facilities; (f) all obligations of such
Person created or arising under any conditional sale or other title retention
agreement with respect to property or assets acquired by such Person (even
though the rights and remedies of the seller or the lender under such agreement
in the event of default are limited to repossession or sale of such property or
assets); (g) all Contingent Obligations of such Person; (h) all Off Balance
Sheet Liabilities of such Person; (i) all obligations of such Person to
purchase, redeem, retire, defease or otherwise make any payment in respect of
any Equity Interests in such Person or any other Person, valued, in the case of
redeemable Preferred Stock, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends (excluding, in the case
of the Parents and their Subsidiaries, any obligation to acquire limited
partnership interests in the Borrower which can be satisfied in full by
exchanging shares of common stock of the Parents for such limited partnership
interests); (j) all obligations of such Person in respect of any take-out
commitment or forward equity commitment; (k) all obligations of such Person
under any Hedge Agreement; (l) the maximum amount of all performance and standby
letters of credit issued or bankers' acceptances facilities created for the
account of such Person and , without duplication, all drafts drawn thereunder
(to the extent unreimbursed); (m) the aggregate amount of uncollected accounts
receivable of such Person subject at such time to a sale of receivables (or
similar transaction) to the extent such transaction is effected with recourse to
such Person (whether or not such transaction would be reflected on the balance
sheet of such Person in accordance with GAAP); (n) all obligations of such
Person to repurchase any securities issued by such Person at any time prior to
the Maturity Date which repurchase obligations are related to the issuance
thereof, including, without limitation, obligations commonly known as residual
equity appreciation potential shares; (o) obligations of such Person under any
repurchase financing facility or similar financing arrangement under which such
Person is obligated to repurchase mortgage instruments or other real property
interests; (p) all indebtedness referred to in clauses (a) through (o) above and
other payment obligations of another Person secured by (or for which the holder
of such indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on property or assets owned by such Person, even though
such Person has not assumed or become liable for the payment of such
indebtedness or other payment obligation, valued, in the case of any such
indebtedness or other payment obligation as to which recourse for the payment
thereof is expressly limited to the property or assets on which such Lien is
granted, at the lesser of (i) the stated or determinable amount of the
indebtedness or other payment obligation that is so secured or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) and (ii) the fair
market value of such property or assets; (q) all other obligations of such
Person considered as debt by nationally recognized securities rating agencies
and (r) such Person's pro rata share of the indebtedness of any Unconsolidated
Affiliate (excluding any issuer of a Subordinated Interest acquired in
connection with a Permitted Financial Asset Sale).
"Indemnifiable Amounts" has the meaning given to such term in
Section 10.7.
"Indemnified Party" has the meaning given to such term in
Section 11.8(a).
"Indemnity Proceeding" has the meaning given to such term in
Section 11.8(a).
"Independent Director" means a natural person who: (a) is not a
director, officer, employee or shareholder of both (i) any of the Combined
Parties, APF, the New REIT or any of their Affiliates, and (ii) FINCo or any of
its affiliates; (b) is not an owner of more than 1% of the outstanding stock of
any of the Combined Parties, APF, the New REIT or FINCo or of any stock or
membership interest in any affiliate of any of the Combined Parties, APF, the
New REIT or FINCo; (c) is not a blood or marital relative of any employee,
officer, director or owner of any interest in Borrower or any affiliate of any
of the Combined Parties, APF, the New REIT or FINCo; and (d) was not a member or
employee of a firm or other business that has received, from any of the Combined
Parties, APF, the New REIT or FINCo or any of their affiliates in any year
within one (1) year preceding his or her appointment as a director and during
his or her incumbency as a director, fees or other income in excess of one
percent of the gross income, for any applicable year, of such person, firm or
business.
"Insolvent" means, with respect to any Person as of a particular date,
that on such date (i) such Person is unable to pay its debts and other
liabilities, contingent obligations and other commitments as they mature in the
normal course of business, (ii) such Person intends to, or believes that it
will, incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature in their ordinary course, (iii) such Person is
engaged in a business or a transaction, or is about to engage in a business or a
transaction, for which such Person's Property would constitute unreasonably
small capital after giving due consideration to the prevailing practice in the
industry in which such Person is engaged or is to engage, (iv) the fair market
value of the Property of such Person is less than the total amount of
liabilities, including, without limitation, contingent liabilities, of such
Person or (v) the present fair salable value of the assets of such Person is
less than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured. In computing the amount
of contingent liabilities at any time, it is intended that such liabilities will
be computed at the amount which, in light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
"Intangible Assets" means all assets which would be properly classified
as intangible assets under GAAP.
"Intellectual Property" has the meaning given such term in Section 6.17
"Interbank Offered Rate" means, for any Eurodollar Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor page)
as the London interbank offered rate for deposits in Dollars at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period. If for any reason such rate is not available, the term "LIBOR"
shall mean, for any Eurodollar Loan for any Interest Period therefor, the rate
per annum (`rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Reuters Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Reuters Screen LIBO
Page, the applicable rate shall be the arithmetic mean of all such rates.
"Interest Expense" means, for any Person with respect to any given
period, the total consolidated interest expense (including, without limitation,
construction period interest, whether or not an interest reserve exists,
capitalized interest expense and interest expense attributable to Capitalized
Lease Obligations) of such Person and its Consolidated Subsidiaries. "Interest
Expense" shall also include the net payment, if any, paid or payable in
connection with Hedge Agreements less the net credit, if any, received in
connection with Hedge Agreements.
"Interest Payment Date" means (a) in the case of a Base Rate Loan,
monthly on the first Business Day of each calendar month, (b) in the case of a
Eurodollar Loan, on the last day of each Interest Period therefor and, if such
Interest Period is longer than three months, then also the date three months
from the beginning of the Interest Period and each three months thereafter, and
(c) in the case of any Loan, upon the payment, prepayment or Continuation
thereof or the Conversion of such Loan to a Loan of another Type (but only on
the principal amount so paid, prepaid or Converted).
"Interest Period" means,
(i) with respect to any Eurodollar Loan, each period commencing
on the date such Eurodollar Loan is made or the last day of
the next preceding Interest Period for such Loan and ending
on the numerically corresponding day in the first, second,
third or sixth calendar month thereafter, as the Borrower may
select in a Notice of Borrowing, Notice of Continuation or
Notice of Conversion, as the case may be, except that each
Interest Period that commences on the last Business Day of a
calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent
calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month; provided, however,
that (a) each Interest Period with respect to a Eurodollar
Loan 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); (b) the Borrower may request Interest Periods having
durations of less than one month for the sole purpose of
managing the number of outstanding Interest Periods; and (c)
if as a result of the application of either of the
immediately preceding clauses (a) or (b) an Interest Period
for any Eurodollar Loan would have a duration of less than
one month, such Interest Period shall be available only at
the sole discretion of the Administrative Agent; or
(ii)with respect to any Swingline Loan, a period commencing in
each case on the date of the borrowing and ending on the date
agreed to by the Borrower and the Swingline Lender in
accordance with the provisions of Section 2.4(b)(i) (such
ending date in any event to be not more than three (3)
Business Days from the date of borrowing), provided, however,
that each Interest Period with respect to a Swingline Loan
that would otherwise end on a day which is not a Business Day
shall end on the next succeeding Business Day.
Notwithstanding anything to the contrary contained in subsections (i) and (ii)
hereof, no Interest Period shall end after the Maturity Date and no Interest
Period in connection with any Loan which is a Bridge Loan shall end after the
Bridge Loan Termination Date.
"International Lease" means a lease by either of the Parents or any
Subsidiary thereof, as lessor, or a parcel of Real Property not located in a
state of the United States of America or the District of Columbia.
"Investment" means, with respect to any Person and whether or not such
investment constitutes a controlling interest in such Person: (a) the purchase
or other acquisition of any share of capital stock, evidence of Indebtedness or
other security issued by any other Person; (b) any loan, advance or extension of
credit (other than trade payables or other accounts payable incurred in the
ordinary course of business) to, or contribution (in the form of money or goods)
to the capital of, any other Person; and (c) any commitment to make an
Investment in any other Person.
"Involuntary Disposition" shall have the meaning for such term set
forth in Section 7.6(b).
"I/O Strip" means an interest in a pool of promissory notes, mortgage
loans, or other similar financial assets, issued in connection with a Permitted
Financial Asset Sale or otherwise, which entitles the holder to receive a
portion of the interest paid on, but not principal repaid in respect of, such
financial assets.
"ISP98" shall have the meaning for such term set forth in Section 2.3(h).
"Issuing Lender" means Bank of America, as the Issuing Lender
hereunder, and any of its successors or any successor Issuing Lender pursuant to
the terms hereof.
"Joinder Agreement" means a Joinder Agreement substantially in the form
of Exhibit B to be executed by each new Subsidiary of either of the Parents or
of the Borrower in accordance with Section 7.16.
"Joint Ventures" means those entities in which the Borrower or any
Combined Party has an interest, as set forth on Part III of Schedule 6.13, as
modified and updated from time to time by the Borrower.
"Lender" means each financial institution from time to time party
hereto as a "Lender", together with its respective successors and assigns.
"Lender Party" means any of the Lenders, the Bridge Lenders or the
Issuing Lender, as applicable, and "Lender Parties" means a collective reference
to each Lender Party.
"Lending Office" means, for each Lender and for each Type of Loan, the
office of such Lender specified as such on its signature page hereto or in the
applicable Assignment and Acceptance Agreement, or such other office of such
Lender as such Lender may notify the Administrative Agent in writing from time
to time.
"Letter of Credit" means any letter of credit issued by the Issuing
Lender for the account of the Borrower in accordance with the terms of Section
2.3; and "Letters of Credit" means any number thereof, as applicable.
"Letter of Credit Documents" means, with respect to any Letter of
Credit, collectively, any application therefor, any certificate or other
document presented in connection with a drawing under such Letter of Credit and
any other agreement, instrument or other document governing or providing for (a)
the rights and obligations of the parties concerned or at risk with respect to
such Letter of Credit or (b) any collateral security for any of such
obligations.
"Leverage Ratio" means, for any Person as of the end of each calendar
quarter, the ratio of (a) Indebtedness of such Person as of such date to (b)
Adjusted Net Capitalization of such Person as of such date.
"Lien" as applied to the property of any Person means: (a) any security
interest, encumbrance, mortgage, deed to secure debt, deed of trust, pledge,
lien, charge, ground lease or lease constituting a Capitalized Lease Obligation,
conditional sale or other title retention agreement, or other security title or
encumbrance of any kind in respect of any property of such Person, or upon the
income or profits therefrom; (b) any arrangement, express or implied, under
which any property of such Person is transferred, sequestered or otherwise
identified for the purpose of subjecting the same to the payment of Indebtedness
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.
"Liquidity Amount" means, for the Borrower, at any given time, an
amount equal to the sum of (a) the amount of cash held by the Borrower, plus (b)
the fair market value of Cash Equivalents held by the Borrower, plus (c) the
fair market value of marketable securities held by or for the account of the
Borrower, plus (d) the difference of (i) the Borrowing Base Amount at such time,
less (ii) the sum of (A) the aggregate amount of outstanding Revolving Loans at
such time, plus (B) the aggregate amount of outstanding Swingline Loans at such
time, plus (C) the LOC Obligations at such time, plus (D) the aggregate amount
of all other obligations of the Borrower and the Combined Parties under this
Credit Agreement and the Credit Documents (except the aggregate amount of the
outstanding Bridge Loans at such time), plus (E) the Recording Amount at such
time.
"Loan" or "Loans" means the Revolving Loans (or a portion of any
Revolving Loan bearing interest at the Adjusted Base Rate or the Adjusted
Eurodollar Rate and referred to as a Base Rate Loan or a Eurodollar Loan), the
Bridge Loans (or a portion of any Bridge Loan bearing interest at the Adjusted
Base Rate or the Adjusted Eurodollar Rate and referred to as a Base Rate Loan or
a Eurodollar Loan) and/or the Swingline Loans, individually or collectively, as
appropriate.
"LOC Committed Amount" means, at any given time, the lesser of
(i) $20,000,000 and (ii) ten percent (10%) of the Revolving Committed Amount.
"LOC Obligations" shall mean, without duplication, at any time and in
respect of all Letters of Credit, the sum of (a) the Stated Amount of such
Letters of Credit plus (b) the aggregate unpaid principal amount of all
Reimbursement Obligations of the Borrower at such time due and payable in
respect of all drawings made under such Letters of Credit. For purposes of this
Credit Agreement, a Lender (other than the Administrative Agent in its capacity
as such) shall be deemed to hold an LOC Obligation in an amount equal to its
participation interest in the Letters of Credit under Section 2.3(c), and the
Administrative Agent shall be deemed to hold an LOC Obligation in an amount
equal to its retained interest in the Letters of Credit after giving effect to
the acquisition by the Lenders other than the Administrative Agent of their
participation interests under such Section.
"Lockbox Account" means, with respect to any Person, an account of such
Person established pursuant to a Lockbox Agreement.
"Lockbox Agreement" means, with respect to any Person, an agreement in
the form set forth on Exhibit P establishing a Lockbox Account in favor of the
Administrative Agent.
"Material Adverse Effect" means a materially adverse effect on (a) the
business, properties, condition (financial or otherwise), results of operations
or performance of (i) the Borrower or (ii) the Parents and their Consolidated
Subsidiaries taken as a whole, so as to either (x) materially impair the overall
financial condition of such party or parties on either a current or forecast
economic or financial accounting basis or (y) materially and adversely impact
the solvency of such party or the liquidity of such party as required hereunder;
(b) the ability of any Credit Party to perform its obligations under any Credit
Document to which it is a party; (c) the validity or enforceability of any of
the Credit Documents; or (d) the rights and remedies of the Lenders and the
Administrative Agent under any of such Credit Documents.
"Material Contract" means any contract or other arrangement (other than
Credit Documents), whether written or oral, to which the Borrower, either of the
Parents or any other Subsidiary thereof is a party as to which the breach,
nonperformance, cancellation or failure to renew by any party thereto could
reasonably be expected to have a Material Adverse Effect.
"Maturity Date" means June 15, 2002.
"Moody's" means Moody's Investors Service, Inc., and any successor in
interest thereto.
"Mortgage Instrument" means a first lien priority mortgage, deed of
trust or deed to secure debt with respect to a parcel of Real Property.
"Mortgage Policies" shall have the meaning assigned to such term in
Section 5.1(e)(iv).
"Mortgaged Properties" means any Real Property set forth on Part I of
Schedule 6.33, as such Schedule is amended, modified, supplemented or restated
from time to time in accordance with the terms hereof.
"Multiemployer Plan" means a Plan which is a "multiemployer plan" as
defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan (other than a Multiemployer Plan)
which any Combined Party or any ERISA Affiliate and at least one employer other
than the Combined Parties or any ERISA Affiliate are contributing sponsors.
"Negative Pledge" means a provision of any agreement (other than this
Credit Agreement or any other Credit 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 Credit Agreement.
"Net Cash Proceeds" means, with respect to any Person, the aggregate
proceeds paid in cash or Cash Equivalents received by such Person in respect of
any Asset Disposition, Approved Debt Issuance or Equity Issuance net of (a)
direct costs (including, without limitation, legal, accounting and investment
banking fees, and sales commissions), (b) the value or amount of any existing
Lien on such proceeds, except to the extent such Lien is held by one or more of
the Secured Parties pursuant to the terms of this Credit Agreement or a Credit
Document and (c) taxes paid or payable as a result thereof; it being understood
that "Net Cash Proceeds" shall include, without limitation, any cash or Cash
Equivalents received upon the sale or other disposition of any non-cash
consideration received by any such Person in any Asset Disposition, Approved
Debt Issuance, Equity Issuance or Excluded Asset.
"Net Lease Subsidiary" means CNL Funding 2000-A, LP, a Special Purpose
Entity which is a Supermajority Subsidiary of the Borrower created for the
purpose of holding Real Property subject to net leases.
"New Guarantor Guaranty Agreement" means a guaranty agreement executed
by a Person substantially in the form of Exhibit T.
"New REIT" shall have the meaning set forth in definition of the term
"Reorganization".
"Nonrecourse Indebtedness" means, with respect to any Person, Secured
Indebtedness of such Person (i) in respect of which (a) the holder of such
Indebtedness has expressly limited its recourse for repayment to specifically
identified assets of such Person and (b) such Person has no general recourse
liability (except for exceptions to nonrecourse indebtedness that are
customarily employed in connection with securitization transactions, including
exceptions for fraud, environmental matters, and which are acceptable the
Administrative Agent).
"Nonrecourse SPE Financing" means a transaction that is not otherwise a
Permitted On Balance Sheet Warehouse Financing and that consists of one or more
transfers by the Borrower or any other Subsidiary of the Parents or Borrower, to
a Special Purpose Entity of promissory notes, mortgage loans, net leased Real
Property interests, Securitization Securities, chattel paper, leases or other
similar financial assets originated by either or the Parents, the Borrower or
any other Subsidiary thereof, together with any related title or other insurance
policies, Hedge Agreements and other assets directly related to such financial
assets, which transfers may not be accounted for on the consolidated balance
sheet of either of the Parents as a sale in conformity with Financial Accounting
Standards Board Statement of Financial Accounting Standard No. 125, and the
subsequent incurrence by such Special Purpose Entity of Indebtedness secured by
a Lien encumbering only the assets of such Special Purpose Entity; provided that
(a) all of the Indebtedness, liabilities and other obligations of such Special
purpose Entity incurred in connection with such transaction are nonrecourse for
the payment or performance thereof to the Parents, the Borrower or any other
Subsidiary thereof (excluding such Special Purpose Entity or any other Excluded
Subsidiary which directly owns Equity Interests in such Special Purpose Entity)
other than reasonable and customary obligations of the Parents, the Borrower or
any other Subsidiary thereof with respect to (i) the servicing of any assets
which are the subject of such transaction, (ii) administrative and ministerial
matters relating to such Special Purpose Entity and related Excluded
Subsidiaries, (iii) maintenance of the corporate separateness of such Special
Purpose Entity and related Excluded Subsidiaries from that of each of the
Parents and their other Subsidiaries, (iv) the guaranty of payment of fees of
any Person acting as a trustee in connection with such transaction and
indemnification obligations owing to any such Person and (v) liabilities which
are attributable to customary and reasonable non-recourse exceptions,
representations or warranties involved with securitization transactions and not
related to the creditworthiness of the obligors involved in such transactions
(including, without limitation, exceptions for fraud, environmental indemnities
and misapplication of proceeds); and (b) the stated maturity date of such
Indebtedness is after the Maturity Date and is also at least one year after the
date such Indebtedness was incurred.
"Note" or "Notes" means the Revolving Notes and/or the Swingline Note,
individually or collectively, as appropriate.
"Notice of Borrowing" means a notice in the form of Exhibit C to be
delivered to the Administrative Agent pursuant to Section 2.1(b) or Section
2.2(b) evidencing the Borrower's request for a borrowing of Revolving Loans or
Bridge Loans, as applicable.
"Notice of Continuation" means a notice in the form of Exhibit D to be
delivered to the Administrative Agent pursuant to Section 3.3 evidencing the
Borrower's request for the Continuation of a Eurodollar Loan.
"Notice of Conversion" means a notice in the form of Exhibit E to be
delivered to the Administrative Agent pursuant to Section 3.4 evidencing the
Borrower's request for the Conversion of a Loan from one Type to another Type.
"Obligations" means, with respect to any Person, such Person's
obligations with respect to (a) the aggregate principal balance of, and all
accrued and unpaid interest on, all Loans, (b) all Reimbursement Obligations and
all other LOC Obligations, and (c) all other Indebtedness, liabilities,
obligations, covenants and duties of such Person owing to the Administrative
Agent, any Lender, the Issuing Lender or any Bridge Lender of every kind, nature
and description, under or in respect of this Credit Agreement or any of the
other Credit Documents, including, without limitation, the Fees and
indemnification obligations, whether direct or indirect, absolute or contingent,
due or not due, contractual or tortious, liquidated or unliquidated, and whether
or not evidenced by any promissory note.
"Off Balance Sheet Liabilities" means, with respect to any Person, (a)
any repurchase obligation or liability, contingent or otherwise, of such Person
with respect to any accounts or notes receivable sold, transferred or otherwise
disposed of by such Person, (b) any repurchase obligation or liability,
contingent or otherwise, of such Person with respect to property or assets
leased by such Person as lessee and (c) all obligations, contingent or
otherwise, of such Person under any Synthetic Lease, tax retention operating
lease, off balance sheet loan or similar off balance sheet financing if the
transaction giving rise to such obligation (i) is considered Indebtedness for
borrowed money for tax purposes but is classified as an operating lease, (ii)
does not (and is not required pursuant to GAAP to) appear as a liability on the
balance sheet of such Person, (iii) a transaction pursuant to which a tenant
does not take possession of the leased property, or (iv) any leases treated as a
financing for GAAP or tax purposes, but excluding from the forgoing provisions
of this definition any obligations or liabilities of any such Person as lessee
under any operating lease so long as the terms of such operating lease do not
require any payment by or on behalf of such Person at the scheduled termination
date of such operating lease, pursuant to a required purchase by or on behalf of
such Person of the property or assets subject to such operating lease, or under
any arrangements pursuant to which such Person guarantees or otherwise assures
any other Person of the value of the property or assets subject to such
operating lease. Off Balance Sheet Liabilities shall not include obligations and
liabilities of the Parents, the Borrower or any other Subsidiary thereof
(including any Special Purpose Entity) referred to in clause (b) of the
definition of the term Permitted Financial Asset Sale.
"Operating Lease" means a lease of a parcel of Real Property which is
not a Finance Lease.
"Parent Guaranty Agreements" means a collective reference to those
certain Guaranty Agreements entered into by each of the Parents in favor of the
Secured Parties in accordance with Section 4 hereof and substantially in the
form set forth on Exhibit M hereof.
"Parents" has the meaning given to such term in the introductory
paragraph hereof.
"Participant" has the meaning given that term in Section 11.4(c).
"Participation Interest" means a purchase by a Lender of a
participation in Letters of Credit or LOC Obligations as provided in Section 2.3
or in any Loans as provided in Section 3.17.
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
agency.
"Permitted Financial Asset Sale" means a transaction consisting of one
or more limited recourse or nonrecourse transfers by the Borrower or any other
Subsidiary, to a Special Purpose Entity of promissory notes, mortgage loans, net
leased Real Property interests, Securitization Securities, chattel paper, leases
or other similar financial assets originated by a Parent, the Borrower or any
other Subsidiary thereof, together with any related title or other insurance
policies, Hedge Agreements and other assets directly related to such financial
assets, which transfers may properly be, and is, accounted for on the
consolidated balance sheet of one of the Parents as a sale in conformity with
Financial Accounting Standards Board Statement of Financial Accounting Standard
No. 125 followed by either (x) limited recourse or nonrecourse sales of such
financial assets (or interests therein) by such Special Purpose Entity to one or
more Persons the accounts of which would not be required to be consolidated with
those of either of the Parents in their consolidated financial statements in
accordance with GAAP (provided that Subordinated Interests in such financial
assets and I/O Strips may be issued or sold to any Person) or (y) the incurrence
by such Special Purpose Entity of Indebtedness secured by a Lien encumbering
only the assets of such Special Purpose Entity; provided that all of the
Indebtedness, liabilities and other obligations of such Special Purpose Entity
incurred in connection with such transactions are nonrecourse for the payment or
performance thereof to the Parents, the Borrower or any other Subsidiary
(excluding such Special Purpose Entity or any other Excluded Subsidiary which
directly owns Equity Interests in such Special Purpose Entity) other than the
following: (a) reasonable and customary obligations of the Parents, the Borrower
or any other Subsidiary with respect to (i) the servicing of any assets which
are the subject of such transaction, (ii) administrative and ministerial matters
relating to such Special Purpose Entity and related Excluded Subsidiaries, (iii)
maintenance of the corporate separateness of such Special Purpose Entity and
related Excluded Subsidiaries from that of the Parents and their other
Subsidiaries, and (iv) the guaranty of payment of fees of any Person acting as a
trustee in connection with such transaction and indemnification obligations
owing to any such Person; (b) reasonable and customary repurchase obligations
and other liabilities resulting from the breach of representations, warranties
and covenants that are not related to creditworthiness of the obligors on the
financial assets the subject of such transactions and (c) limited recourse
provisions giving rise to Indebtedness solely to the extent permitted under
Section 8.1(d). For purposes of this definition, whether an obligation or
liability is "reasonable and customary" shall be determined with reference to
terms of similar transactions prevailing as of the date hereof.
"Permitted Investments" means those investments that Borrower may make
pursuant to Sections 8.3 and 8.4.
"Permitted Liens" means, as to any Person: (a) Liens securing taxes,
assessments and other charges or levies imposed by any Governmental Authority
(excluding any Lien imposed pursuant to any of the provisions of ERISA) or the
claims of materialmen, mechanics, carders, warehousemen or landlords for labor,
materials, supplies or rentals incurred in the ordinary course of business,
which are not at the time required to be paid or discharged under Section 7.5;
(b) Liens consisting of deposits or pledges made, in the ordinary course of
business, in connection with, or to secure payment of, obligations under
workmen's compensation, unemployment insurance or similar Applicable Laws; (c)
zoning restrictions, easements, rights-of-way, covenants, reservations and other
rights, restrictions or encumbrances of record on the use of real property,
which do not materially detract from the value of such property or materially
impair the use thereof in the business of such Person; (d) Liens in existence as
of the Agreement Date and, with respect to the Underlying Assets, as set forth
on the title policies (or updates thereto) delivered in connection herewith; and
(e) Liens, if any, in favor of the Administrative Agent for the benefit of the
Lenders.
"Permitted On Balance Sheet Warehouse Financing" means a transaction
consisting of one or more transfers by the Borrower or any other Subsidiary, to
a Special Purpose Entity of promissory notes, mortgage loans, net leased Real
Property interests, Securitization Securities, chattel paper, leases or other
similar financial assets originated by a Parent, the Borrower or any other
Subsidiary thereof, together with any related title or other insurance policies,
Hedge Agreements and other assets directly related to such financial assets,
which transfers may not be accounted for on the consolidated balance sheet of
either of the Parents as a sale in conformity with Financial Accounting
Standards Board Statement of Financial Accounting Standard No. 125, and the
subsequent incurrence by such Special Purpose Entity of Indebtedness secured by
a Lien encumbering only the assets of such Special Purpose Entity; provided that
(a) except as otherwise permitted under the immediately following clause (b) all
of the Indebtedness, liabilities and other obligations of such Special Purpose
Entity incurred in connection with such transaction are nonrecourse for the
payment or performance thereof to the Parents, the Borrower or any other
Subsidiary (excluding such Special Purpose Entity or any other
Excluded-Subsidiary which directly owns Equity Interests in such Special Purpose
Entity) other than reasonable and customary obligations of the Parents, the
Borrower or any other Subsidiary with respect to (i) the servicing of any assets
which are the subject of such transaction, (ii) administrative and ministerial
matters relating to such Special Purpose Entity and related Excluded
Subsidiaries, (iii) maintenance of the corporate separateness of such Special
Purpose Entity and related Excluded Subsidiaries from that of the Parents and
their other Subsidiaries, (iv) the guaranty of payment of fees of any Person
acting as a trustee in connection with such transaction and indemnification
obligations owing to any such Person and (v) non-recourse exceptions,
representations and warranties involved with securitization transactions and not
related to the creditworthiness of the obligors involved in such transactions
(including, without limitation, exceptions for fraud, environmental indemnities
and misapplication of proceeds); (b) all of the provisions of such Indebtedness
regarding the liability of, or recourse to, the Parents, the Borrower or any
other Subsidiary (excluding such Special Purpose Entity or any other Excluded
Subsidiary which directly owns Equity Interests in such Special Purpose Entity)
other than liabilities and obligations referred to in subclauses (i) through
(iv) of the immediately preceding clause (a), have been approved of by the
Administrative Agent in writing in its sole discretion and (c) all of the other
terms and conditions of such Debt have been approved of by the Administrative
Agent in writing in its reasonable judgment. For purposes of this definition,
whether an obligation is reasonable and customary shall be determined with
reference to terms of similar transactions prevailing as of the date hereof.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or unincorporated organization, or a
government or any agency or political subdivision thereof.
"Plan" means any employee benefit plan (as defined in Section 3(3) of
ERISA) which is covered by ERISA and with respect to which any Combined Party or
any ERISA Affiliate is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" within the meaning of
Section 3(5) of ERISA.
"Pledge Agreements" means a collective reference to (i) those certain
pledge agreements executed individually by each of the Parents, CNL Funding
2000-A, Inc. and CNL Restaurant Bond Holdings, Inc. in connection herewith
substantially in the form of Exhibit F-1, (ii) that certain pledge agreement
executed by the Borrower in connection herewith in the form of Exhibit F-2 and
(iii) any other pledge agreements entered into from time to time by any Person
as security for the Borrower's Obligations contained herein.
"Pledgors" means a collective reference to the Parents, the Borrower,
CNL Funding 2000-A, Inc. and CNL Restaurant Bond Holdings, Inc. in their
capacities as Pledgors under their respective Pledge Agreements and any other
Person who enters into a Pledge Agreement securing the Borrower's Obligations
contained herein.
"Preferred Stock" means, with respect to any Person, shares of Equity
Interests in such Person which are entitled to preference or priority over any
other Equity Interest in such Person in respect of the payment of dividends or
distribution of assets upon liquidation or both.
"Preferred Stock Entity" means any Person (other than a Subsidiary) in
whom the Borrower or either of the Parents owns, directly or indirectly,
Preferred Stock or other Equity Interests which are not Voting Stock and which
Preferred Stock or other Equity Interests entitle the Borrower or either of the
Parents, as the case may be, to receive the majority of all economic benefits
associated with ownership of all Equity Interests issued by such Person.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Prime Rate" means the rate of interest per annum announced publicly by
the Administrative Agent as its prime rate from time to time. The Prime Rate is
not necessarily the best or the lowest rate of interest offered by the
Administrative Agent or any Lender.
"Principal Office" means the office of the Administrative Agent located
at the first address given for notice to the Administrative Agent in Section
11.1, or such other office of the Administrative Agent as the Administrative
Agent may designate from time to time.
"Pro Rata Share" has the meaning given to such term in Section 4.2.
"Qualified Ground Lease Asset" means, at any time, a ground lease (i)
under which the Borrower is the lessee or holds equivalent rights, (ii) that has
a remaining term of no less than ten (10) years, (iii) under which any required
rental payment, principal or interest payment or other payment due under such
lease from the Borrower to the ground lessor is not more than sixty (60) days
past due and any required rental payment, principal or interest payment or other
payment due to the Borrower under any sublease of the applicable Real Property
lessor is not more than sixty (60) days past due, (iv) where no party to such
lease is the subject of a Bankruptcy Event (except to the extent that (A) such
Person has been subject to a proceeding under Chapter 11 of the Federal
Bankruptcy Code, (B) the applicable bankruptcy court has approved and confirmed
such Person's plan for reorganization, (C) all statutory appeal periods with
respect to such proposed plan have been exhausted without objection and (D) such
Person is performing its obligations under such approved plan), (v) where no
condemnation proceedings have been instituted or condemnation has occurred with
respect to a material portion of the applicable parcel of Real Property, (vi)
where such ground lease is permitted pursuant to Section 8.8 hereof, (vii) where
the Borrower's interest in the Real Property or the lease is not subject to (A)
any Lien other than Permitted Liens of the types described in clauses (a)
through (c) of the definitions thereof, (B) any Negative Pledge, and (viii)
where the applicable Real Property has been fully developed for use as a
restaurant and 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; and "Qualified Ground Lease Assets" means a collective reference to
each Qualified Ground Lease Asset.
"Qualified REIT Subsidiary" shall have the meaning given to such term
in the Code.
"Rabo Facility" means that certain Franchise Receivable Facility
entered into among the Borrower, as the borrower, Neptune Funding Corporation,
as the lender, CNL Financial Services, LP, as servicer and Cooperative Centrale
Riaffeisen-Boernenleenbank, B.A., New York Branch, as collateral agent and deal
agent as of October 14, 1999 (as amended, restated, supplemented or otherwise
modified from time to time).
"Real Property" means a parcel of real property, together with all
improvements (if any) thereon, owned (or leased pursuant to a ground lease) by
any Person, as applicable; "Real Properties" means a collective reference to
each parcel of Real Property.
"Recording Amount" means, as of the date hereof, an amount equal to
approximately $750,000, as certified by the Borrower (and approved by the
Administrative Agent) pursuant to Section 5.1(g) and as from time to time
adjusted pursuant to Section 7.1(d)(vii), as a good faith estimate of (i) the
total projected costs, fees and expenses (including, without limitation,
attorney's fees and expenses) associated with the proper recordation of all
Mortgage Instruments, Assignments of Mortgages, Assignments of Leases and
Assignments of Assignments of Leases held by the Administrative Agent in
connection with this Credit Agreement at such time and (ii) the total projected
costs, fees and expenses (including, without limitation, attorney's fees and
expenses) associated with the procurement and issuance of title insurance
policies with respect to the Real Property encumbered by such instruments.
"Register" has the meaning given such term in Section 11.4(e).
"Regulation D, T, U, or X" means Regulation D, T, U or X, respectively,
of the Board of Governors of the Federal Reserve System as from time to time in
effect and any successor to all or a portion thereof.
"Regulatory Change" means, with respect to any Lender, any change
effective after the Agreement Date in Applicable Law (including without
limitation, Regulation D) or the adoption or making after such date of any
interpretation, directive or request applying to a class of banks, including
such Lender, of or under any Applicable Law (whether or not having the force of
law and whether or not failure to comply therewith would be unlawful) by any
Governmental Authority or monetary authority charged with the interpretation or
administration thereof or compliance by any Lender with any request or directive
regarding capital adequacy.
"Reimbursement Obligation" means the absolute, unconditional and
irrevocable obligation of the Borrower to reimburse the Issuing Lender for any
drawing honored by the Issuing Lender under a Letter of Credit.
"REIT" means a Person qualifying for treatment as a "real estate
investment trust" under the Code.
"Reorganization" means a transaction or series of transactions
involving each of: (a) APF's creation or purchase of a new Subsidiary, (b) the
merging of such Subsidiary with an existing entity qualifying as a REIT (the
"New REIT"), and (c) the transfer of APF's ownership interests in the Parents or
the entity or entities then owning the Parents to the New REIT.
"Replaced Indebtedness" shall have the meaning set forth for such term
in Section 8.1(e).
"Replacement Indebtedness" shall have the meaning set forth for such
term in Section 8.1(e).
"Required Lenders" means,
(a) except as provided in clauses (b) and (c) below, (i) (A)
non-Defaulting Lenders having greater than 75% of the
aggregate amount of the Revolving Commitments held by all
non-Defaulting Lenders, or, if the Revolving Commitments have
been terminated or reduced to zero, non-Defaulting Lenders
holding greater than 75% of the principal amount of the
Revolving Loans, Swingline Loans and LOC Obligations held by
non-Defaulting Lenders and (B) 60% by number (but in any
event no less than four (4)) of the total number of
non-Defaulting Lenders and (ii) to the extent there is any
amount outstanding under any Bridge Loan or with respect to
any Bridge Loan, non-Defaulting Bridge Lenders having greater
than 50% of the aggregate amount of the outstanding Bridge
Loans held by non-Defaulting Bridge Lenders;
(b) as used in Section 7.20(d) and as related to the exercise of
remedies of the Lenders under the Mortgage Instruments,
Assignments of Mortgages, Assignments of Leases and
Assignments of Assignments of Leases (i) non-Defaulting
Lenders having greater than 66 2/3% of the aggregate amount
of the Revolving Commitments held by all non-Defaulting
Lenders, (ii) if the Revolving Commitments have been
terminated or reduced to zero, non-Defaulting Lenders holding
greater than 66 2/3% of the principal amount of the Revolving
Loans, Swingline Loans and LOC Obligations held by
non-Defaulting Lenders, or (iii) to the extent there are at
lease three (3) non-Defaulting Lenders, all of the
non-Defaulting Lenders except Bank of America; and
(c) as used in Section 8.19, (i) (A) non-Defaulting Lenders
having greater than 66 2/3% of the aggregate amount of the
Revolving Commitments held by all non-Defaulting Lenders, or
(B) if the Revolving Commitments have been terminated or
reduced to zero, non-Defaulting Lenders holding greater than
66 2/3% of the principal amount of the Revolving Loans,
Swingline Loans and LOC Obligations held by non-Defaulting
Lenders and (ii) and 60% by number (but in any event no less
than four (4)) of the total number of non-Defaulting Lenders.
"Requirement of Law" means, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or to which any of its material property is
subject.
"Restricted Payment" means: (a) any dividend or other distribution,
direct or indirect, on account of any shares of any Equity Interest of the
Parents, the Borrower or any other Subsidiaries thereof now or hereafter
outstanding, except a dividend or distribution payable solely in shares of that
class of Equity Interest to the holders of that class; (b) any redemption,
conversion, exchange, retirement, sinking fund or similar payment, purchase or
other acquisition for value, direct or indirect, of any shares of any Equity
Interest of the Parents, the Borrower or any other Subsidiaries thereof now or
hereafter outstanding; (c) any payment or prepayment of principal of, premium,
if any, or interest on, redemption, conversion, exchange, purchase, retirement,
defeasance, sinking fund or similar payment with respect to, any Indebtedness
which is subordinate in right of repayment to any of the Obligations; and (d)
any payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any Equity Interest of
the Parents, the Borrower or any other Subsidiaries thereof now or hereafter
outstanding.
"Revolving Committed Amount" means $125,000,000, as such amount may be
reduced or increased in accordance with Section 3.6.
"Revolving Commitment" means, as to each Lender, such Lender's
obligation to (i) make Revolving Loans pursuant to Section 2.1, (ii) to make (in
the case of the Swingline Lender) or participate in (in the case of the other
Lenders) the Swingline Loans pursuant to Section 2.4, and (iii) to issue (in the
case of the Issuing Lender) or participate in (in the case of the other Lenders)
Letters of Credit pursuant to Section 2.3, in an amount up to, but not exceeding
(but in the case of the Issuing Bank excluding the aggregate amount of
participations in the Letters of Credit held by other Lenders, and in the case
of the Swingline Lender, excluding the aggregate amount of participations in
Swingline Loans purchased by other Lenders), the amount set forth for such
Lender on its signature page hereto as such Lender's "Commitment Amount" or as
set forth in the applicable Assignment and Acceptance Agreement, as the same may
be reduced from time to time pursuant to the terms hereof.
"Revolving Commitment Percentage" means, for any Lender, the percentage
determined by dividing (a) an amount equal to the sum of such Lender's
outstanding Revolving Loans plus such Lender's current exposure under the
Letters of Credit by (b) an amount equal to the sum of the total outstanding
Revolving Loans, plus the total Letter of Credit exposure, each with respect to
all of the Lenders, and as initially set forth on Schedule 2.1(a) as such
Lender's Revolving Commitment Percentage; provided, however, that if at the time
of determination the Revolving Commitments have terminated or been reduced to
zero, the "Revolving Commitment Percentage" of each Lender shall be the
Revolving Commitment Percentage of such Lender in effect immediately prior to
such termination or reduction. Such percentage may, from time to time, be (i)
modified in connection with any assignment made in accordance with the
provisions of Section 11.4, (ii) modified pursuant to a non-pro rata reduction
of the Loans as contemplated in Sections 3.2 (b)(ii) and (v) or 3.16(b) and (c)
or (iii) reduced in accordance with Section 3.6.
"Revolving Loan" has the meaning given to such term in Section 2.1(a).
"Revolving Note" has the meaning given that term in Section 2.1(e).
"Secured Indebtedness" means, with respect to any Person, any
Indebtedness (other than Indebtedness incurred hereunder) that is (a) secured in
any manner by any Lien or (b) entitled to the benefit of a Negative Pledge.
Indebtedness in respect of Capitalized Lease Obligations shall not be deemed to
be Secured Indebtedness. For clarification purposes, (i) any unsecured guaranty
given by any Credit Party of secured indebtedness of a Person who is not a
Credit Party constitutes Unsecured Indebtedness of such Credit Party giving the
guaranty, (ii) any unsecured guaranty given by any Credit Party of the secured
indebtedness of another Credit Party constitutes the Secured Indebtedness of the
Credit Party directly incurring the secured indebtedness and shall not be
calculated as part of the Indebtedness (either Secured or Unsecured) of such
Credit Party giving the guaranty (except to the extent that the relevant
calculation does not otherwise account for the Indebtedness of the Credit Party
directly incurring the underlying secured indebtedness, in which case it shall
constitute the Unsecured Indebtedness of the Credit Party giving the guaranty),
(iii) any unsecured guaranty given by any Credit Party of the unsecured
indebtedness of a Person who is not a Credit Party constitutes the Unsecured
Indebtedness of such Credit Party giving the guaranty, (iv) any unsecured
guaranty given by any Credit Party of the unsecured Indebtedness of another
Credit Party constitutes the Unsecured Indebtedness of the Credit Party directly
incurring such Indebtedness and shall not be calculated as part of the
Indebtedness (either Secured or Unsecured) of such Credit Party giving the
guaranty (except to the extent that the relevant calculation does not otherwise
account for the Indebtedness of the Credit Party directly incurring the
underlying unsecured indebtedness, in which case it shall constitute the
Unsecured Indebtedness of the Credit Party giving the guaranty), (v) any secured
guaranty given by any Credit Party of secured indebtedness of a Person who is
not a Credit Party constitutes Secured Indebtedness of such Credit Party giving
the guaranty, (vi) any secured guaranty given by any Credit Party of the secured
indebtedness of another Credit Party constitutes the Secured Indebtedness of the
Credit Party directly incurring the secured indebtedness and shall not be
calculated as part of the Indebtedness (either Secured or Unsecured) of such
Credit Party giving the guaranty (except to the extent that the relevant
calculation does not otherwise account for the Indebtedness of the Credit Party
directly incurring the underlying secured indebtedness, in which case it shall
constitute the Secured Indebtedness of the Credit Party giving the guaranty),
(vii) any secured guaranty given by any Credit Party of the unsecured
indebtedness of a Person who is not a Credit Party constitutes the Secured
Indebtedness of such Credit Party giving the guaranty, and (viii) any secured
guaranty given by any Credit Party of the unsecured Indebtedness of another
Credit Party constitutes the Secured Indebtedness of such Credit Party giving
the guaranty and shall not be calculated as part of the Indebtedness (either
Secured or Unsecured) of the Credit Party directly incurring such Indebtedness
(except to the extent that the relevant calculation does not otherwise account
for the Indebtedness of such Credit Party giving the guaranty, in which case it
shall constitute the Unsecured Indebtedness of the Credit Party directly
incurring the underlying unsecured indebtedness).
"Secured Party" means any Lender, any Bridge Lender, the Issuing Bank,
the Collateral Agent or the Administrative Agent; and "Secured Parties" means a
collective reference to each Secured Party.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, together with all rules and regulations issued thereunder.
"Securitization Securities" means a collective reference to any
investment securities that represent an interest in, or are secured by, one or
more debt or equity tranches of investment securities (including, without
limitation, tranches of commercial mortgage loans, residual interests in triple
net leases and/or synthetic mortgages).
"Security Agreement" means a Security Agreement executed by the
Borrower and Credit Parties in the form of Exhibit L attached hereto.
"Significant Asset Disposition" means (a) any single Asset Disposition
following the date hereof generating $25,000,000 or more in Net Cash Proceeds or
(b) to the extent that the aggregate Net Cash Proceeds generated from Asset
Dispositions entered into following the date hereof equals or exceeds
$50,000,000, all Asset Dispositions entered into following the date hereof to
the extent of Net Cash Proceeds therefrom in excess of $50,000,000.
"Significant Capital Event" means the date on which (a) either (i) the
Dollar amount of the Net Cash Proceeds resulting from Significant Asset
Dispositions equals or exceeds $200,000,000 (net of any proceeds obtained as a
result of the securitization of assets secured by the Rabo Facility) or (ii) the
Dollar amount of Net Cash Proceeds resulting from Equity Issuances of the
Borrower taking place after the date hereof equals or exceeds $285,000,000, and
(b) the Net Cash Proceeds obtained as a result of such Asset Disposition or
Equity Issuance have been applied as mandatory prepayments on the Borrower's
Obligations pursuant to Sections 3.2(b)(ii) and (v).
"Single Employer Plan" means any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan or a Multiple Employer Plan.
"Sole Lead Arranger" has the meaning set forth in the introductory
paragraph hereof, includes both the title "Sole Lead Arranger" and "Sole Book
Manager" and shall include the Sole Lead Arranger's successors and assigns.
"Solvent" or "Solvency" means, with respect to any Person as of a
particular date, that on such date (i) such Person is able to pay its debts and
other liabilities, contingent obligations and other commitments as they mature
in the normal course of business, (ii) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature in their ordinary course,
(iii) such Person is not engaged in a business or a transaction, and is not
about to engage in a business or a transaction, for which such Person's Property
would constitute unreasonably small capital after giving due consideration to
the prevailing practice in the industry in which such Person is engaged or is to
engage, (iv) the fair market value of the Property of such Person is greater
than the total amount of liabilities, including, without limitation, contingent
liabilities, of such Person and (v) the present fair salable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured. In computing the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount which, in light of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.
"Special Purpose Entity" means any Person (a) which has a legal
structure and capitalization intended to make such entity a "bankruptcy remote"
entity and which legal structure and capitalization have been approved in
writing by the Administrative Agent; (b) which has been organized for the sole
purpose of effecting a Structured Financing; (c) which has no assets other than
(i) the financial assets directly acquired in connection with, and which are the
subject of, such Structured Financing, and any related title or other insurance
policies, Hedge Agreements and other assets directly related to such financial
assets, (ii) cash and other assets contributed or distributed to such Person, or
otherwise acquired by it, in connection with such Structured Financing, and
which assets are retained by such Person either pursuant to the requirements of
such Structured Financing or to permit it to fulfill its obligations under the
terms of such Structured Financing, (iii) assets which such Person is to (and
does in fact) dispose of promptly, and in any event within two Business Days,
following such Person's acquisition of such assets, and (iv) in the case of a
Permitted Financial Asset Sale, Subordinated Interests acquired in connection
with such Permitted Financial Asset Sale; (d) which has no Indebtedness,
liabilities or other obligations other than (i) those directly incurred in
connection with such Structured Financing and (ii) any liabilities resulting
from representations and warranties made by such Person with respect to any such
financial assets or other assets being transferred by it to another Person so
long as such representations and warranties (A) are customary or (B) are
substantially similar to those made to such Person when such assets were
initially transferred to it; and (e) which none of the Parents, the Borrower or
any other Subsidiaries thereof have any direct obligation to maintain or
preserve such Person's financial condition or to cause such Person to achieve
any specified levels of operating results except as otherwise permitted in
connection with such Structured Financing.
"S&P" means Standard & Poor's Rating Services, a division of
McGraw-Hill Companies, Inc., and any successor in interest thereto.
"Standby Letter of Credit Fee" has the meaning given to such term in
Section 3.8(b)(i).
"Stated Amount" means the amount available to be drawn by a beneficiary
under a Letter of Credit from time to time, as such amount may be increased or
reduced from time to time in accordance with the terms of such Letter of Credit.
"Structured Financing" means a Permitted Financial Asset Sale or a
Nonrecourse SPE Financing.
"Subordinated Interest" means a subordinate interest (whether
characterized as debt or equity, and including without limitation, general and
limited partnership interests, participation certificates and trust
certificates) in a pool of promissory notes, mortgage loans, chattel paper,
leases or other similar financial assets, issued in connection with a Permitted
Financial Asset Sale or otherwise.
"Subsidiary" means, for any Person, any corporation, partnership or
other entity of which at least a majority of the Voting Stock is at the time
directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person.
"Subsidiary Guaranty Agreements" means a collective reference to those
certain Guaranty Agreements entered into by each of the Subsidiaries of the
Borrower in favor of the Secured Parties in accordance with Section 4 hereof and
substantially in the form set forth on Exhibit N hereof.
"Supermajority Subsidiary" means, with respect to any Credit Party, any
Subsidiary of such Person 80% or more of the equity interests (other than, in
the case of a corporation, directors' qualifying shares) of which are at the
time directly or indirectly owned or controlled by such Person and one or more
Subsidiaries of such Credit Party, provided that the remaining equity interests
in such Subsidiary must be directly or indirectly owned or controlled by another
Credit Party.
"Swingline Commitment" means the commitment of the Swingline Lender to
make Swingline Loans in an aggregate principal amount at any time outstanding of
up to the Swingline Committed Amount.
"Swingline Committed Amount" shall have the meaning assigned to such
term in Section 2.4(a).
"Swingline Lender" means Bank of America.
"Swingline Loan" has the meaning given to such term in Section 2.4(a).
"Swingline Note" means the promissory note of the Borrower in favor of
the Swingline Lender evidencing the Swingline Loans provided pursuant to Section
2.4(d), as such promissory note may be amended, modified, restated,
supplemented, extended, renewed or replaced from time to time.
"Synthetic Lease" means any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing product
where such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an Operating Lease under GAAP.
"Tangible Net Worth" means, for any Person as of a given date, total
stockholder's (or equivalent owner's) equity of such Person, excluding (to the
extent reflected in determining stockholders' (or equivalent owner's) equity of
such Person) (a) accumulated depreciation and amortization and (b) the aggregate
amount of Intangible Assets of the such Person.
"Taxes" has the meaning given that term in Section 3.14.
"Tenant" means any Person who is a lessee with respect to any lease
held by the Borrower as lessor or as an assignee of the
lessor thereunder.
"Term Securitization" means a Permitted Financial Asset Sale (a)
involving only a single transfer (or series of related and substantially
contemporaneous transfers) to a Special Purpose Entity of financial assets, and
any related title or other insurance policies, Hedge Agreements and other assets
directly related to such financial assets, by either of the Parents, the
Borrower or any other Subsidiary thereof other than any transfer of such assets
(i) being substituted for any asset previously transferred pursuant to customary
and reasonable repurchase and substitution obligations resulting from the breach
of representations, warranties and covenants that are not related to the
creditworthiness of the obligor on the financial assets or (ii) being
substituted for cash collateral or a cash deposit (including in connection with
reasonable and customary "pre-funding" arrangements), and (b) under which the
Persons acquiring such financial assets (or interests therein) from the
applicable Special Purpose Entity or making advances to such Special Purpose
Entity secured directly or indirectly by such financial assets, are neither
required nor permitted to acquire additional financial assets (or interests
therein) from, or otherwise make additional advances to, such Special Purpose
Entity, except as otherwise permitted under the immediately preceding clause
(a).
"Total Assets" means, as to any Person, the total assets of such Person
"Total Committed Amount" means an amount of up to $300,000,000, as
reduced from time to time in accordance with Section 3.6.
"Trade Letter of Credit Fee" has the meaning given to such term in
Section 3.8(b)(ii).
"Type" with respect to any Loan, refers to whether such Loan is a
Eurodollar Loan or Base Rate Loan.
"UCP" has the meaning given to such term in Section 2.3(h).
"Unconsolidated Affiliate" shall mean, with respect to any Person, any
other Person in whom such Person holds an Investment, which Investment is
accounted for in the financial statements of such Person on an equity basis of
accounting and whose financial results would not be consolidated under GAAP with
the financial results of such Person on the consolidated financial statements of
such Person.
"Underlying Asset" means any Real Property encumbered by any of the
interests comprising the Included Asset Pool; and "Underlying Assets" means a
collective reference to each Underlying Asset.
"Unencumbered Asset Leverage Ratio means, for any given date, the ratio
of (a) the sum of (without duplication) (i) Unsecured Indebtedness of the
Borrower as of such date to (b) the Unencumbered Asset Value as of such date.
"Unencumbered Asset Value" means, with respect to the Borrower and for
any given calculation date and without duplication, the sum of (a) the Value of
the Borrower's Eligible Net Lease Assets other than Qualified Ground Lease
Assets of the Borrower plus (b) subject to the proviso below, fifty percent
(50%) of the Value of Qualified Ground Lease Assets of the Borrower plus (c) all
accumulated depreciation with respect to the real property assets of the
Borrower leased under any such Eligible Net Lease Assets that are Operating
Leases plus (d) the Value of the Borrower's Eligible Mortgage Assets plus (e)
from the date hereof until December 31, 2000, the cost to the Borrower of the
Borrower's interest in Real Property assets on which construction is taking
place; provided, however, that the Value of Qualified Ground Lease Assets shall
constitute no more than ten percent (10%) of the total Unencumbered Asset Value.
"Unencumbered Interest Coverage Ratio" means, as of the end of each
calendar quarter, the ratio of (a) the sum of (i) Eligible Net Lease Income of
the Borrower for the applicable Calculation Period and (ii) Eligible Mortgage
Income of the Borrower for such Calculation Period, to (b) that portion of
Interest Expense of the Borrower for the Calculation Period in respect of
Unsecured Indebtedness.
"Unsecured Indebtedness" means, with respect to any Person and for any
given calculation date, all Indebtedness of such Person that is not Secured
Indebtedness, including all Indebtedness in respect of Capitalized Lease
Obligations. For clarification purposes, (i) any unsecured guaranty given by any
Credit Party of secured indebtedness of a Person who is not a Credit Party
constitutes Unsecured Indebtedness of such Credit Party giving the guaranty,
(ii) any unsecured guaranty given by any Credit Party of the secured
indebtedness of another Credit Party constitutes the Secured Indebtedness of the
Credit Party directly incurring the secured indebtedness and shall not be
calculated as part of the Indebtedness (either Secured or Unsecured) of such
Credit Party giving the guaranty (except to the extent that the relevant
calculation does not otherwise account for the Indebtedness of the Credit Party
directly incurring the underlying secured indebtedness, in which case it shall
constitute the Unsecured Indebtedness of the Credit Party giving the guaranty),
(iii) any unsecured guaranty given by any Credit Party of the unsecured
indebtedness of a Person who is not a Credit Party constitutes the Unsecured
Indebtedness of such Credit Party giving the guaranty, (iv) any unsecured
guaranty given by any Credit Party of the unsecured Indebtedness of another
Credit Party constitutes the Unsecured Indebtedness of the Credit Party directly
incurring such Indebtedness and shall not be calculated as part of the
Indebtedness (either Secured or Unsecured) of such Credit Party giving the
guaranty (except to the extent that the relevant calculation does not otherwise
account for the Indebtedness of the Credit Party directly incurring the
underlying unsecured indebtedness, in which case it shall constitute the
Unsecured Indebtedness of the Credit Party giving the guaranty), (v) any secured
guaranty given by any Credit Party of secured indebtedness of a Person who is
not a Credit Party constitutes Secured Indebtedness of such Credit Party giving
the guaranty, (vi) any secured guaranty given by any Credit Party of the secured
indebtedness of another Credit Party constitutes the Secured Indebtedness of the
Credit Party directly incurring the secured indebtedness and shall not be
calculated as part of the Indebtedness (either Secured or Unsecured) of such
Credit Party giving the guaranty (except to the extent that the relevant
calculation does not otherwise account for the Indebtedness of the Credit Party
directly incurring the underlying secured indebtedness, in which case it shall
constitute the Secured Indebtedness of the Credit Party giving the guaranty),
(vii) any secured guaranty given by any Credit Party of the unsecured
indebtedness of a Person who is not a Credit Party constitutes the Secured
Indebtedness of such Credit Party giving the guaranty, and (viii) any secured
guaranty given by any Credit Party of the unsecured Indebtedness of another
Credit Party constitutes the Secured Indebtedness of such Credit Party giving
the guaranty and shall not be calculated as part of the Indebtedness (either
Secured or Unsecured) of the Credit Party directly incurring such Indebtedness
(except to the extent that the relevant calculation does not otherwise account
for the Indebtedness of such Credit Party giving the guaranty, in which case it
shall constitute the Unsecured Indebtedness of the Credit Party directly
incurring the underlying unsecured indebtedness). For purposes of calculating
the financial covenants contained herein and the Borrowing Base Amount, the
Obligations of the Credit Parties hereunder shall be deemed Unsecured
Indebtedness.
"Unused Fee" has the meaning given to such term is Section 3.8(a).
"Unused Fee Calculation Period" has the meaning given to such term in
Section 3.8(a).
"Unused Revolving Committed Amount" means, for any given Unused Fee
Calculation Period, the average amount (if any), as calculated on a daily basis,
by which the Revolving Committed Amount exceeds the sum of the aggregate
outstanding principal amount of the Revolving Loans, plus the aggregate
outstanding principal amount of the Swingline Loans, plus the aggregate
outstanding LOC Obligations of the Borrower under this Credit Agreement.
"Value" means (a) with respect to a Finance Lease, the book value of
such Finance Lease (excluding any portion of such lease relating to furniture;
fixtures and equipment) as determined in accordance with GAAP, (b) with respect
to an Operating Lease, the book value of the Operating Lease as determined in
accordance with GAAP, (c) with respect to any Subordinated Interest, the lesser
of (i) the adjusted book value of such Subordinated Interest and (ii) the mark
to market value of such Subordinated Interest, (d) with respect to Real Property
interests, the book value of such Real Property interests plus accumulated
depreciation with respect thereto and (e) with respect to all other assets, the
value of such assets calculated in accordance with GAAP.
"Voting Stock" means capital stock issued by a corporation, or
equivalent Equity Interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election
of directors (or persons performing similar functions) of such Person, even if
the right so to vote has been suspended by the happening of such a contingency.
"Wholly Owned Subsidiary" means, with respect to a Person, any
Subsidiary of such Person all of the equity securities or other ownership
interests (other than, in the case of a corporation, directors' qualifying
shares) of which are at the time directly or indirectly owned or controlled by
such Person or one or more Subsidiaries of such Person.
Section 1.2 General; References to Times.
Unless otherwise indicated, all accounting terms, ratios and
measurements shall be interpreted, or determined on a consolidated basis, in
accordance with GAAP, consistently applied. References in this Credit Agreement
to "Sections", "Articles", "Exhibits" and "Schedules" are to sections, articles,
exhibits and schedules herein and hereto unless otherwise indicated. References
in this Credit Agreement to any document, instrument or agreement (a) shall
include all exhibits, schedules and other attachments thereto, (b) shall include
all documents, instruments or agreements issued or executed in replacement
thereof, to the extent permitted hereby and (c) shall mean such document,
instrument or agreement, or replacement or predecessor thereto, as amended,
supplemented, restated or otherwise modified from time to time to the extent
permitted hereby and in effect at any given time. Wherever from the context it
appears appropriate, each term stated in either the singular or plural shall
include the singular and plural, and pronouns stated in the masculine, feminine
or neuter gender shall include the masculine, the feminine and the neuter.
Unless explicitly set forth to the contrary, a reference to "Subsidiary" means a
Subsidiary of either Parent or a Subsidiary of such Subsidiary and a reference
to an "Affiliate" means a reference to an Affiliate of either Parent. Titles and
captions of Articles, Sections, subsections and clauses in this Credit Agreement
are for convenience only, and neither limit nor amplify the provisions of this
Credit Agreement. Unless otherwise indicated, all references to time are
references to Charlotte, North Carolina time.
ARTICLE II
CREDIT FACILITY
Section 2.1 Revolving Loans.
(a) Revolving Commitment.
(i) Loans. Subject to the terms and conditions hereof and in
reliance upon the representations and warranties set forth
herein, each Lender severally (and not jointly) agrees to
make available to the Borrower such Lender's Revolving
Commitment Percentage (as set forth in Schedule 2.1(a)) of
revolving credit loans requested by the Borrower in Dollars
("Revolving Loans") from time to time from the Closing Date
until the Maturity Date, or such earlier date as the
Revolving Commitments shall have been terminated as provided
herein; provided, however, that (A) the sum of the aggregate
outstanding principal amount of Revolving Loans shall not at
any date during the duration of this Credit Agreement exceed
the Revolving Committed Amount or the Borrowing Base Amount
with respect to such date, (B) the sum of the aggregate
outstanding principal amount of Revolving Loans, plus the
aggregate principal amount of the outstanding Swingline
Loans, plus the LOC Obligations shall not exceed the
Revolving Committed Amount or the Borrowing Base Amount for
such date, (C) with regard to each Lender individually, such
Lender's outstanding Revolving Loans, plus such Lender's
Swingline Loans, plus such Lender's exposure under any
outstanding Letters of Credit shall not exceed such Lender's
Revolving Commitment Percentage of the Revolving Committed
Amount and (D) the sum of the aggregate outstanding principal
amount of Revolving Loans, plus the aggregate principal
amount of the outstanding Bridge Loans, plus the aggregate
principal amount of the outstanding Swingline Loans, plus the
LOC Obligations shall not exceed the Total Committed Amount.
Revolving Loans may consist of Base Rate Loans or Eurodollar
Loans, or a combination thereof, as the Borrower may request;
provided, however, that there may be no more than six (6)
Eurodollar Loans which are Revolving Loans outstanding
hereunder at any given time (it being understood that, for
purposes hereof, Eurodollar Loans with different Interest
Periods shall be considered as separate Eurodollar Loans,
even if they begin on the same date, although borrowings,
extensions and conversions may, in accordance with the
provisions hereof, be combined at the end of existing
Interest Periods to constitute a new Eurodollar Loan with a
single Interest Period).
(ii)Reborrowing. Subject to the terms and conditions of this
Credit Agreement, during the period from the Effective Date
to but excluding the Maturity Date, the Borrower may borrow,
repay and reborrow Revolving Loans hereunder.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall give the
Administrative Agent notice pursuant to a Notice of Borrowing
or telephonic notice of each borrowing of Revolving Loans.
Each Notice of Borrowing shall be delivered to the
Administrative Agent before 12:00 P.M. on the Business Day
prior to the date of the requested borrowing in the case of
Base Rate Loans, and on the third Business Day prior to the
date of the requested borrowing in the case of Eurodollar
Loans. Each such request for borrowing shall be irrevocable,
shall contain certifications of the Borrower with respect to
the conditions set forth in Section 5.2 clauses (b) through
(f) in the form of Exhibit C, and shall specify (A) that a
Revolving Loan is requested, (B) the date of the requested
borrowing (which shall be a Business Day), (C) the aggregate
principal amount to be borrowed, and (D) whether the
borrowing shall be comprised of Base Rate Loans, Eurodollar
Loans or a combination thereof, and if Eurodollar Loans are
requested, the Interest Period(s) therefor. If the Borrower
shall fail to specify in any such Notice of Borrowing (I) an
applicable Interest Period in the case of a Eurodollar Loan,
then such notice shall be deemed to be a request for an
Interest Period of one month, or (II) the type of Revolving
Loan requested, then such notice shall be deemed to be a
request for a Base Rate Loan hereunder. Any such telephonic
notice shall include all information to be specified in a
written Notice of Borrowing and shall be promptly confirmed
in writing by the Borrower pursuant to a Notice of Borrowing
sent to the Administrative Agent by telecopy on the same day
of the giving of such telephonic notice. The Administrative
Agent will transmit by telecopy the Notice of Borrowing (or
the information contained in such Notice of Borrowing) to
each Lender promptly upon receipt by the Administrative
Agent. Each Notice of Borrowing or telephonic notice of each
borrowing shall be irrevocable once given and binding on the
Borrower.
(ii)Minimum Amounts. Each Eurodollar Loan or Base Rate Loan that
is a Revolving Loan shall be in a minimum aggregate principal
amount of (A) $2,000,000 in the case of Eurodollar Loans and
(B) $1,000,000 in the case of Base Rate Loans, in each case
in integral multiples of $500,000 in excess thereof (or (1)
the remaining amount of the Revolving Committed Amount, or
(2) the remaining amount of the Borrowing Base Amount, in
each case if such amount is less than the amounts set forth
in clauses (A) and (B)).
(iii) Advances. Each Lender will make its Revolving Commitment
Percentage of each Revolving Loan borrowing available to the
Agent for the account of the Borrower as specified in Section
3.18(a), or in such other manner as the Agent may specify in
writing, by 1:00 P.M. on the date specified in the applicable
Notice of Borrowing in Dollars and in funds immediately
available to the Agent. With respect to Revolving Loans to be
made after the Effective Date, unless the Administrative
Agent shall have been notified by any Lender prior to the
specified date of borrowing that such Lender does not intend
to make available to the Administrative Agent the Revolving
Loan to be made by such Lender on such date, the
Administrative Agent may assume that such Lender will make
the proceeds of such Revolving Loan available to the
Administrative Agent on the date of the requested borrowing
as set forth in the Notice of Borrowing and the
Administrative Agent may (but shall not be obligated to), in
reliance upon such assumption, make available to the Borrower
the amount of such Revolving Loan to be provided by such
Lender. The Administrative Agent shall, no later than 2:00
P.M. on the date specified on the applicable Notice of
Borrowing and subject to the conditions set forth in Article
V, make such borrowing available to the Borrower by crediting
the account of the Borrower with the aggregate of the amounts
made available to the Agent by the Lenders and in like funds
as received by the Agent.
(c) Repayment. The principal amount of all Revolving Loans shall be due
and payable in full on the Maturity Date, unless accelerated sooner
pursuant to Section 9.2.
(d) Interest. Subject to the provisions of Section 3.1, the Borrower
promises to pay to the Administrative Agent for account of each
Lender on the unpaid principal amount of each Loan made by such
Lender for the period from and including the making of such Loan to
but excluding the date such Loan shall be paid in full, as follows:
(i) Base Rate Loans. During such periods as Revolving Loans shall
be comprised in whole or in part of Base Rate Loans, such
Base Rate Loans shall bear interest at a per annum rate equal
to the Adjusted Base Rate.
(ii)Eurodollar Loans. During such periods as Revolving Loans
shall be comprised in whole or in part of Eurodollar Loans,
such Eurodollar Loans shall bear interest at a per annum rate
equal to the Adjusted Eurodollar Rate.
Accrued interest on each Loan shall be payable in arrears on each
applicable Interest Payment Date (or at such other times as may be specified
herein). Promptly after the determination of any interest rate provided for
herein or any change therein, the Administrative Agent shall give notice thereof
to the Lenders and to the Borrower. All determinations by the Administrative
Agent of an interest rate hereunder shall be conclusive and binding on the
Lenders and the Borrower for all purposes, absent manifest error.
(e) Notes.
(i) Revolving Notes. The Revolving Loans made by each Lender
shall, in addition to this Credit Agreement, also be
evidenced by a promissory note of the Borrower substantially
in the form of Exhibit G (each a "Revolving Note"), payable
to the order of such Lender in a principal amount equal to
the amount of its Revolving Commitment as originally in
effect and otherwise duly completed.
(ii)Records; Endorsement on Transfer. The date, amount of each
Loan made by each Lender to the Borrower, and each payment
made on account of the principal thereof, shall be recorded
by such Lender on its books and such entries shall be binding
on the Borrower absent manifest error. Prior to the transfer
of any Revolving Note, the Lender shall endorse such items on
such Revolving Note or any allonge thereof; provided that the
failure of such Lender to make any such recordation or
endorsement shall not affect the obligations of the Borrower
to make a payment when due of any amount owing hereunder or
under such Revolving Note in respect of the Loans evidenced
by such Revolving Note.
Section 2.2 Bridge Loans.
(a) Bridge Loan Commitment.
(i) Loans. Subject to the terms and conditions hereof and in
reliance upon the representations and warranties set forth
herein, each Bridge Lender severally (and not jointly) agrees
to make available to the Borrower such Bridge Lender's Bridge
Loan Commitment Percentage (as set forth in Schedule
2.2(a))of bridge loans requested by the Borrower in Dollars
("Bridge Loans") from time to time from the Closing Date
until the Bridge Loan Termination Date, or such earlier date
as the Bridge Loan Commitments shall have been terminated as
provided herein; provided, however, that (A) the sum of the
aggregate outstanding principal amount of the Bridge Loans
shall not at any date during the duration of this Credit
Agreement exceed the Bridge Loan Committed Amount with
respect to such date, (B) with regard to each Bridge Lender
individually, such Bridge Lender's outstanding Bridge Loans
shall not exceed such Lender's Bridge Loan Commitment
Percentage of the Bridge Loan Committed Amount and (C) the
sum of the aggregate outstanding principal amount of the
Bridge Loans, plus the aggregate outstanding principal amount
of the Revolving Loans, plus the aggregate principal amount
of the outstanding Swingline Loans, plus the LOC Obligations
shall not exceed the (1) Total Committed Amount or (2) the
Borrowing Base Amount plus the Bridge Loan Committed Amount.
Bridge Loans may consist of Base Rate Loans or Eurodollar
Loans, or a combination thereof, as the Borrower may request;
provided, however, that there may be no more than one (1)
Eurodollar Loan which is a Bridge Loan outstanding hereunder
at any given time (it being understood that, for purposes
hereof, Eurodollar Loans with different Interest Periods
shall be considered as separate Eurodollar Loans, even if
they begin on the same date, although borrowings, extensions
and conversions may, in accordance with the provisions
hereof, be combined at the end of existing Interest Periods
to constitute a new Eurodollar Loan with a single Interest
Period).
(ii)Reborrowing Prohibition. Amounts borrowed as Bridge Loans
hereunder and repaid or prepaid by the Borrower may not be
reborrowed or readvanced and all amounts applied toward the
Bridge Loans shall permanently reduce the Bridge Loan
Committed Amount.
(b) Bridge Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall give the
Administrative Agent notice pursuant to a Notice of Borrowing
or telephonic notice of each borrowing of Bridge Loans. Each
Notice of Borrowing shall be delivered to the Administrative
Agent before 12:00 P.M. on the Business Day prior to the date
of the requested borrowing in the case of Base Rate Loans,
and on the third Business Day prior to the date of the
requested borrowing in the case of Eurodollar Loans. Each
such request for borrowing shall be irrevocable, shall
contain certifications of the Borrower with respect to the
conditions set forth in Section 5.2 clauses (b) through (f)
in the form of Exhibit C, and shall specify (A) that a Bridge
Loan is requested, (B) the date of the requested borrowing
(which shall be a Business Day), (C) the aggregate principal
amount to be borrowed, and (D) whether the borrowing shall be
comprised of Base Rate Loans, Eurodollar Loans or a
combination thereof, and if Eurodollar Loans are requested,
the Interest Period(s) therefor. If the Borrower shall fail
to specify in any such Notice of Borrowing (I) an applicable
Interest Period in the case of a Eurodollar Loan, then such
notice shall be deemed to be a request for an Interest Period
of one month, or (II) the type of Bridge Loan requested, then
such notice shall be deemed to be a request for a Base Rate
Loan hereunder. Any such telephonic notice shall include all
information to be specified in a written Notice of Borrowing
and shall be promptly confirmed in writing by the Borrower
pursuant to a Notice of Borrowing sent to the Administrative
Agent by telecopy on the same day of the giving of such
telephonic notice. The Administrative Agent will transmit by
telecopy the Notice of Borrowing (or the information
contained in such Notice of Borrowing) to each Bridge Lender
promptly upon receipt by the Administrative Agent. Each
Notice of Borrowing or telephonic notice of each borrowing
shall be irrevocable once given and binding on the Borrower.
(ii)Minimum Amounts. Each Eurodollar Loan or Base Rate Loan that
is a Bridge Loan shall be in a minimum aggregate principal
amount of (A) $2,000,000 in the case of Eurodollar Loans and
(B) $1,000,000 in the case of Base Rate Loans, in each case
in integral multiples of $500,000 in excess thereof (or the
remaining amount of the Bridge Loan Committed Amount, if
less).
(iii) Advances. Each Bridge Lender will make its Bridge Loan
Commitment Percentage of each Bridge Loan borrowing available
to the Agent for the account of the Borrower as specified in
Section 3.18(a), or in such other manner as the Agent may
specify in writing, by 1:00 P.M. on the date specified in the
applicable Notice of Borrowing in Dollars and in funds
immediately available to the Agent. With respect to Bridge
Loans to be made after the Effective Date, unless the
Administrative Agent shall have been notified by any Bridge
Lender prior to the specified date of borrowing that such
Bridge Lender does not intend to make available to the
Administrative Agent the Bridge Loan to be made by such
Bridge Lender on such date, the Administrative Agent may
assume that such Bridge Lender will make the proceeds of such
Bridge Loan available to the Administrative Agent on the date
of the requested borrowing as set forth in the Notice of
Borrowing and the Administrative Agent may (but shall not be
obligated to), in reliance upon such assumption, make
available to the Borrower the amount of such Bridge Loan to
be provided by such Bridge Lender. The Administrative Agent
shall, no later than 2:00 P.M. on the date specified on the
applicable Notice of Borrowing and subject to the conditions
set forth in Article V, make such borrowing available to the
Borrower by crediting the account of the Borrower with the
aggregate of the amounts made available to the Agent by the
Bridge Lenders and in like funds as received by the Agent.
(c) Repayment. The principal amount of all Bridge Loans shall be due and
payable in full on the Bridge Loan Termination Date, unless
accelerated sooner pursuant to Section 9.2.
(d) Interest. Subject to the provisions of Section 3.1, the Borrower
promises to pay to the Administrative Agent for account of each
Bridge Lender on the unpaid principal amount of each Loan made by
such Bridge Lender for the period from and including the making of
such Bridge Loan to but excluding the date such Bridge Loan shall be
paid in full, as follows:
(i) Base Rate Loans. During such periods as Bridge Loans shall be
comprised in whole or in part of Base Rate Loans, such Base
Rate Loans shall bear interest at a per annum rate equal to
the Adjusted Base Rate.
(ii)Eurodollar Loans. During such periods as Bridge Loans shall
be comprised in whole or in part of Eurodollar Loans, such
Eurodollar Loans shall bear interest at a per annum rate
equal to the Adjusted Eurodollar Rate.
Accrued interest on each Loan shall be payable in arrears on each
applicable Interest Payment Date (or at such other times as may be specified
herein). Promptly after the determination of any interest rate provided for
herein or any change therein, the Administrative Agent shall give notice thereof
to the Bridge Lenders and to the Borrower. All determinations by the
Administrative Agent of an interest rate hereunder shall be conclusive and
binding on the Bridge Lenders and the Borrower for all purposes, absent manifest
error.
(e) Notes.
(i) Bridge Notes. The Bridge Loans made by each Bridge Lender
shall, in addition to this Credit Agreement, also be
evidenced by a promissory note of the Borrower substantially
in the form of Exhibit H (each a "Bridge Note"), payable to
the order of such Bridge Lender in a principal amount equal
to the amount of its Bridge Loan Commitment as originally in
effect and otherwise duly completed.
(ii)Records; Endorsement on Transfer. The date, amount of each
Bridge Loan made by each Bridge Lender to the Borrower, and
each payment made on account of the principal thereof, shall
be recorded by such Bridge Lender on its books and such
entries shall be binding on the Borrower absent manifest
error. Prior to the transfer of any Bridge Note, the Bridge
Lender shall endorse such items on such Bridge Note or any
allonge thereof; provided that the failure of such Bridge
Lender to make any such recordation or endorsement shall not
affect the obligations of the Borrower to make a payment when
due of any amount owing hereunder or under such Bridge Note
in respect of the Bridge Loans evidenced by such Bridge Note.
Section 2.3 Letter of Credit Subfacility.
(a) Issuance. Subject to the terms and conditions hereof and in reliance
upon the representations and warranties set forth herein, the Issuing
Lender agrees to issue, and each Lender severally agrees to
participate in the issuance by the Issuing Lender of, standby and
trade Letters of Credit in Dollars from time to time from the Closing
Date until the date thirty (30) days prior to the Maturity Date as
the Borrower may request, in a form acceptable to the Issuing Lender;
provided, however, that (i) the LOC Obligations outstanding shall not
at any time exceed the LOC Committed Amount, (ii) the sum of the
aggregate outstanding principal amount of Revolving Loans plus the
aggregate principal amount of outstanding Swingline Loans plus the
LOC Obligations shall not at any time exceed the Revolving Committed
Amount or the Borrowing Base Amount for such date, (iii) the sum of
the aggregate principal amount of the outstanding Revolving Loans,
plus the aggregate principal amount of the outstanding Bridge Loans,
plus the aggregate principal amount of the outstanding Swingline
Loans, plus the LOC Obligations shall not exceed the Total Committed
Amount and (iv) there may be no more than five (5) Letters of Credit
outstanding at any one time. No Letter of Credit shall (x) have an
original expiry date more than one year from the date of issuance or
(y) as originally issued or as extended, have an expiry date
extending beyond the date thirty (30) days prior to the Maturity
Date. Each Letter of Credit shall comply with the related LOC
Documents. The issuance and expiry dates of each Letter of Credit
shall be a Business Day.
(b) Notice and Reports. The request for the issuance of a Letter of
Credit shall be submitted by the Borrower to the Issuing Lender not
later than 9:00 A.M. at least three (3) Business Days prior to the
requested date of issuance, such notice to describe in reasonable
detail the proposed terms of such Letter of Credit and the nature of
the transactions or obligations proposed to be supported by such
Letter of Credit, and in any event shall set forth with respect to
such Letter of Credit (i) the proposed initial Stated Amount, (ii)
the beneficiary or beneficiaries, (iii) whether such Letter of Credit
is a commercial or standby letter of credit and (iv) the proposed
expiration date. The Borrower shall also, in connection with the
issuance of any Letter of Credit, provide written certifications with
respect to the conditions set forth in Section 5.2 clauses (b)
through (f) in the form of Exhibit Q, and shall execute and deliver
such customary letter of credit application forms as requested from
time to time by the Administrative Agent. Provided the Borrower has
given the notice prescribed by this subsection and subject the amount
limitations set forth in Section 2.3(a) and to the other terms and
conditions of this Credit Agreement, including the satisfaction of
any applicable conditions precedent set forth in Article V, the
Administrative Agent shall issue the requested Letter of Credit on
the requested date of issuance. The Administrative Agent shall
promptly provide notice to the Lenders of the issuance of any Letter
of Credit issued hereunder which notice shall set forth each Lender's
pro rata share of (1) such Letter of Credit and (2) all Letters of
Credit then outstanding. Upon the written request of the Borrower,
the Administrative Agent (x) shall make reasonable efforts to deliver
to the Borrower a copy of any Letter of Credit proposed to be issued
hereunder prior to the issuance thereof and (y) shall deliver to the
Borrower a copy of each issued Letter of Credit within a reasonable
time after the date of issuance thereof. To the extent any term of a
Letter of Credit Document is inconsistent with a term of any Credit
Document, the term of such Credit Document shall control. The Issuing
Lender will, at least quarterly and more frequently in its
discretion, disseminate to each of the Lenders a detailed report
specifying the Letters of Credit which are then issued and
outstanding and any activity with respect thereto which may have
occurred since the date of the prior report, and including therein,
among other things, the beneficiary, the face amount and the expiry
date, as well as any payment or expirations which may have occurred.
(c) Participation. Each Lender, upon issuance of a Letter of Credit,
shall be deemed to have purchased without recourse a Participation
Interest from the Issuing Lender in such Letter of Credit and the
obligations arising thereunder and any collateral relating thereto,
in each case in an amount equal to its pro rata share of the
obligations under such Letter of Credit (based on the respective
Revolving Commitment Percentages of the Lenders) and shall
absolutely, unconditionally and irrevocably assume and be obligated
to pay to the Issuing Lender and discharge when due, its pro rata
share of the obligations arising under such Letter of Credit. Without
limiting the scope and nature of each Lender's Participation Interest
in any Letter of Credit, to the extent that the Issuing Lender has
not been reimbursed as required hereunder or under any such Letter of
Credit, each such Lender shall pay to the Issuing Lender its pro rata
share of such unreimbursed drawing in same day funds on the day of
notification by the Issuing Lender of an unreimbursed drawing
pursuant to the provisions of subsection (d) below. The obligation of
each Lender to so reimburse the Issuing Lender shall be absolute and
unconditional and shall not be affected by the occurrence of a
Default, an Event of Default or any other occurrence or event. Any
such reimbursement shall not relieve or otherwise impair the
obligation of the Borrower to reimburse the Issuing Lender under any
Letter of Credit, together with interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any Letter of
Credit, the Issuing Lender will promptly notify the Borrower. Unless
the Borrower shall immediately notify the Issuing Lender that the
Borrower intends to otherwise reimburse the Issuing Lender for such
drawing, the Borrower shall be deemed to have requested that the
Lenders make a Revolving Loan as provided in subsection (e) below in
the amount of the drawing on the related Letter of Credit, the
proceeds of which will be used to satisfy the related reimbursement
obligations (which deemed request for a Revolving Loan borrowing
shall constitute a representation and warranty by the Credit Parties
of the correctness of the matters specified in subsections (b), (c),
(d), (e) and (f) of Section 5.2). The Borrower promises to reimburse
the Issuing Lender on the day of drawing under any Letter of Credit
(either with the proceeds of a Revolving Loan obtained hereunder or
otherwise) in same day funds. If the Borrower shall fail to reimburse
the Issuing Lender as provided hereinabove, the unreimbursed amount
of such drawing shall bear interest at the Default Rate. The
Borrower's reimbursement obligations hereunder shall be absolute and
unconditional under all circumstances irrespective of any rights of
setoff, counterclaim or defense to payment the Borrower may claim or
have against the Issuing Lender, the Agent, the Lenders, the
beneficiary of the Letter of Credit drawn upon or any other Person,
including without limitation any defense based on any failure of the
Borrower or any other Credit Party to receive consideration or the
legality, validity, regularity or unenforceability of the Letter of
Credit. The Issuing Lender will promptly notify the other Lenders of
the amount of any unreimbursed drawing and each Lender shall promptly
pay to the Agent for the account of the Issuing Lender in Dollars and
in immediately available funds, the amount of such Lender's pro rata
share of such unreimbursed drawing. Such payment shall be made on the
day such notice is received by such Lender from the Issuing Lender if
such notice is received at or before 2:00 P.M., and otherwise such
payment shall be made at or before 12:00 Noon on the Business Day
next succeeding the day such notice is received. If such Lender does
not pay such amount to the Issuing Lender in full upon such request,
such Lender shall, on demand, pay to the Agent for the account of the
Issuing Lender interest on the unpaid amount during the period from
the date of such drawing until such Lender pays such amount to the
Issuing Lender in full at a rate per annum equal to, if paid within
two (2) Business Days of the date that such Lender is required to
make payments of such amount pursuant to the preceding sentence, the
Federal Funds Rate and thereafter at a rate equal to the Base Rate.
Each Lender's obligation to make such payment to the Issuing Lender,
and the right of the Issuing Lender to receive the same, shall be
absolute and unconditional, shall not be affected by any circumstance
whatsoever and without regard to the termination of this Credit
Agreement or the Revolving Commitments hereunder, the existence of a
Default or Event of Default or the acceleration of the obligations of
the Borrower hereunder and shall be made without any offset,
abatement, withholding or reduction whatsoever. Simultaneously with
the making of each such payment by a Lender to the Issuing Lender,
such Lender shall, automatically and without any further action on
the part of the Issuing Lender or such Lender, acquire a
Participation Interest in an amount equal to such payment (excluding
the portion of such payment constituting interest owing to the
Issuing Lender) in the related unreimbursed drawing portion of the
LOC Obligation and in the interest thereon and in the related LOC
Documents, and shall have a claim against the Borrower with respect
thereto.
(e) Repayment with Revolving Loans. On any day on which the Borrower
shall have requested, or been deemed to have requested, a Revolving
Loan advance to reimburse a drawing under a Letter of Credit, the
Agent shall give notice to the Lenders that a Revolving Loan has been
requested or deemed requested by the Borrower to be made in
connection with a drawing under a Letter of Credit, in which case a
Revolving Loan advance comprised of Base Rate Loans (or Eurodollar
Loans to the extent the Borrower has complied with the procedures of
Section 2.1 with respect thereto) shall be immediately made to the
Borrower by all Lenders (notwithstanding any termination of the
Revolving Commitments pursuant to Section 9.2) pro rata based on the
respective Revolving Commitment Percentages of the Lenders
(determined before giving effect to any termination of the Revolving
Commitments pursuant to Section 9.2) and the proceeds thereof shall
be paid directly to the Issuing Lender for application to the
respective LOC Obligations. Each such Lender hereby irrevocably
agrees to make its pro rata share of each such Revolving Loan
immediately upon any such request or deemed request in the amount, in
the manner and on the date specified in the preceding sentence
notwithstanding (i) the amount of such borrowing may not comply with
the minimum amount for advances of Revolving Loans otherwise required
hereunder, (ii) whether any conditions specified in Section 5.2 are
then satisfied, (iii) whether a Default or an Event of Default then
exists, (iv) failure for any such request or deemed request for
Revolving Loan to be made by the time otherwise required hereunder,
(v) whether the date of such borrowing is a date on which Revolving
Loans are otherwise permitted to be made hereunder or (vi) any
termination of the Revolving Commitments relating thereto immediately
prior to or contemporaneously with such borrowing. In the event that
any Revolving Loan cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result
of the commencement of a proceeding under the Bankruptcy Code with
respect to the Borrower or any other Credit Party), then each such
Lender hereby agrees that it shall forthwith purchase (as of the date
such borrowing would otherwise have occurred, but adjusted for any
payments received from the Borrower on or after such date and prior
to such purchase) from the Issuing Lender such Participation
Interests in the outstanding LOC Obligations as shall be necessary to
cause each such Lender to share in such LOC Obligations ratably
(based upon the respective Revolving Commitment Percentages of the
Lenders as determined before giving effect to any termination of the
Revolving Commitments pursuant to Section 9.2), provided that at the
time any purchase of Participation Interests pursuant to this
sentence is actually made, the purchasing Lender shall be required to
pay to the Issuing Lender, to the extent not paid to the Issuing
Lender by the Borrower in accordance with the terms of subsection (d)
above, interest on the principal amount of Participation Interests
purchased for each day from and including the day upon which such
borrowing would otherwise have occurred to but excluding the date of
payment for such Participation Interests, at the rate equal to, if
paid within two (2) Business Days of the date of the Revolving Loan
advance, the Federal Funds Rate, and thereafter at a rate equal to
the Base Rate.
(f) Designation of Combined Parties as Account Parties. Notwithstanding
anything to the contrary set forth in this Credit Agreement,
including without limitation Section 2.3(a), a Letter of Credit
issued hereunder may contain a statement to the effect that such
Letter of Credit is issued for the account of any Subsidiary of the
Borrower, provided that notwithstanding such statement, the Borrower
shall be the actual account party for all purposes of this Credit
Agreement for such Letter of Credit and such statement shall not
affect the Borrower's reimbursement obligations hereunder with
respect to such Letter of Credit.
(g) Renewal, Extension. The renewal or extension of any Letter of Credit
shall, for purposes hereof, be treated in all respects the same as
the issuance of a new Letter of Credit hereunder.
(h) Uniform Customs and Practices. The Issuing Lender may have the
Letters of Credit be subject to The Uniform Customs and Practice for
Documentary Credits (the "UCP") or the International Standby
Practices 1998 (the "ISP98"), in either case as published as of the
date of issue by the International Chamber of Commerce, in which case
the UCP or the ISP98, as applicable, may be incorporated therein and
deemed in all respects to be a part thereof.
(i) Indemnification; Nature of Issuing Lender's Duties.
(i) In addition to its other obligations under this Section 2.3,
the Borrower hereby agrees to pay, and protect, indemnify and
save each Lender harmless from and against, any and all
claims, demands, liabilities, damages, losses, costs, charges
and expenses (including reasonable attorneys' fees) that such
Lender may incur or be subject to as a consequence, direct or
indirect, of (A) the issuance of any Letter of Credit or (B)
the failure of such Lender to honor a drawing under a Letter
of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de
facto government or Governmental Authority (all such acts or
omissions, herein called "Government Acts").
(ii)As between the Borrower and the Lenders (including the
Issuing Lender), the Borrower shall assume all risks of the
acts, omissions or misuse of any Letter of Credit by the
beneficiary thereof. No Lender (including the Issuing Lender)
shall be responsible: (A) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the
application for and issuance of any Letter 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 any Letter of
Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, that may prove to be invalid or
ineffective for any reason; (C) failure of the beneficiary of
any Letter of Credit to comply fully with conditions required
in order to draw upon such Letter 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) 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 a Letter of Credit or of the
proceeds thereof; and (G) for any consequences arising from
causes beyond the control of such Lender, including, without
limitation, any Government Acts. None of the above shall
affect, impair, or prevent the vesting of the Issuing
Lender's rights or powers hereunder.
(iii) The obligation of the Borrower to reimburse the Issuing
Lender for any drawing made under any Letter of Credit shall
be absolute, unconditional and irrevocable and shall be paid
strictly in accordance with the terms of this Credit
Agreement under all circumstances whatsoever, including
without limitation, the following circumstances: (A) any lack
of validity or enforceability of any Letter of Credit
Document or any term or provisions therein; (B) any amendment
or waiver of or any consent to departure from all or any of
the Letter of Credit Documents; (C) the existence of any
claim, setoff, defense or other right which the Borrower may
have at any time against the Issuing Lender, the
Administrative Agent, any Lender, any-beneficiary of a Letter
of Credit or any other Person, whether in connection with
this Credit Agreement, the transactions contemplated hereby
or in the Letter of Credit Documents or any unrelated
transaction; (D)any breach of contract or dispute between the
Borrower, the Issuing Lender, Administrative Agent, any
Lender or any other Person; (E) any demand, statement or any
other document presented under a Letter of Credit proving to
be forged, fraudulent, invalid or insufficient in any respect
or any statement therein or made in connection therewith
being untrue or inaccurate in any respect whatsoever; (F)any
non-application or misapplication by the beneficiary of a
Letter of Credit of the proceeds of any drawing under such
Letter of Credit; (G) payment by the Issuing Lender under the
Letter of Credit against presentation of a draft or
certificate which does not strictly comply with the terms of
the Letter of Credit; and (H) any other act, omission to act,
delay or circumstance whatsoever that might, but for the
provisions of this Section 2.3, constitute a legal or
equitable defense to or discharge of the Borrower's
Reimbursement Obligations.
(iv)In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken
or omitted by any Lender (including the Issuing Lender),
under or in connection with any Letter of Credit or the
related certificates, if taken or omitted in good faith,
shall not put such Lender under any resulting liability to
the Borrower or any other Credit Party. It is the intention
of the parties that this Credit Agreement shall be construed
and applied to protect and indemnify each Lender (including
the Issuing Lender) against any and all risks involved in the
issuance of the Letters of Credit, all of which risks are
hereby assumed by the Borrower (on behalf of itself and each
of the other Credit Parties), including, without limitation,
any and all Government Acts. No Lender (including the Issuing
Lender) shall, in any way, be liable for any failure by such
Lender or anyone else to pay any drawing under any Letter of
Credit as a result of any Government Acts or any other cause
beyond the control of such Lender.
(v) Nothing in this subsection (i) is intended to limit the
reimbursement obligations of the Borrower contained in
subsection (d) above. The obligations of the Borrower under
this subsection (i) shall survive the termination of this
Credit Agreement. No act or omission of any current or prior
beneficiary of a Letter of Credit shall in any way affect or
impair the rights of the Lenders (including the Issuing
Lender) to enforce any right, power or benefit under this
Credit Agreement.
(vi)Notwithstanding anything to the contrary contained in this
subsection (i), the Borrower shall have no obligation to
indemnify any Lender (including the Issuing Lender) in
respect of any liability incurred by such Lender (A) arising
solely out of the gross negligence or willful misconduct of
such Lender, as determined by a court of competent
jurisdiction, or (B) caused by such Lender's failure to pay
under any Letter of Credit after presentation to it of a
request strictly complying with the terms and conditions of
such Letter of Credit, as determined by a court of competent
jurisdiction, unless such payment is prohibited by any law,
regulation, court order or decree.
(j) Responsibility of Issuing Lender. It is expressly understood and
agreed that the obligations of the Issuing Lender hereunder to the
Lenders are only those expressly set forth in this Credit Agreement
and that the Issuing Lender shall be entitled to assume that the
conditions precedent set forth in Section 5.2 have been satisfied
unless it shall have acquired actual knowledge that any such
condition precedent has not been satisfied; provided, however, that
nothing set forth in this Section 2.3 shall be deemed to prejudice
the right of any Lender to recover from the Issuing Lender any
amounts made available by such Lender to the Issuing Lender pursuant
to this Section 2.3 in the event that it is determined by a court of
competent jurisdiction that the payment with respect to a Letter of
Credit constituted gross negligence or willful misconduct on the part
of the Issuing Lender.
(k) Conflict with LOC Documents. In the event of any conflict between
this Credit Agreement and any LOC Document (including any letter of
credit application), this Credit Agreement shall control.
Section 2.4 Swingline Loan Subfacility.
(a) Swingline Commitment. Subject to the terms and conditions hereof and
in reliance upon the representations and warranties set forth herein,
the Swingline Lender, in its individual capacity, agrees to make
certain revolving credit loans requested by the Borrower in Dollars
to the Borrower (each a "Swingline Loan" and, collectively, the
"Swingline Loans") from time to time from the Closing Date until the
Maturity Date for the purposes hereinafter set forth; provided,
however, (i) the aggregate principal amount of Swingline Loans
outstanding at any time shall not exceed TEN MILLION DOLLARS
($10,000,000) (the "Swingline Committed Amount"), (ii) the aggregate
principal amount of outstanding Revolving Loans plus the aggregate
principal amount of outstanding Swingline Loans plus LOC Obligations
outstanding shall not exceed the Revolving Committed Amount or the
Borrowing Base Amount for such date and (iii) the sum of the
aggregate outstanding principal amount of Revolving Loans, plus the
aggregate principal amount of the outstanding Bridge Loans, plus the
aggregate principal amount of the outstanding Swingline Loans, plus
the LOC Obligations shall not exceed the Total Committed Amount.
Swingline Loans hereunder shall be made as Base Rate Loans and may be
repaid and reborrowed in accordance with the provisions hereof.
(b) Swingline Loan Advances.
(i) Notices; Disbursement. Whenever the Borrower desires a
Swingline Loan advance hereunder it shall give written notice
in the form of a Notice of Borrowing, or telephonic notice
promptly confirmed in writing by way of a Notice of
Borrowing, to the Swingline Lender not later than 11:00 A.M.
on the Business Day of the requested Swingline Loan advance.
Each such Notice of Borrowing shall be irrevocable, shall
contain certifications of the Borrower with respect to the
conditions set forth in Section 5.2 clauses (b) through (f)
in the form provided in Exhibit C, and shall specify (A) that
a Swingline Loan advance is requested, (B) the date of the
requested Swingline Loan advance (which shall be a Business
Day), (C) the principal amount of the Swingline Loan advance
requested and (D) the purpose for which the requested
Swingline Loan will be used by the Borrower. Each Swingline
Loan shall be made as a Base Rate Loan and shall have such
maturity date (which maturity date shall not be a date more
than three (3) Business Days from the date of advance
thereof) as the Swingline Lender and the Borrower shall agree
upon receipt by the Swingline Lender of any such notice from
the Borrower. The Swingline Lender shall initiate the
transfer of funds representing the Swingline Loan advance to
the Borrower by 3:00 P.M. on the Business Day of the
requested borrowing.
(ii)Minimum Amounts. Each Swingline Loan advance shall be in a
minimum principal amount of $500,000 and in integral
multiples of $250,000 in excess thereof (or the remaining
amount of the Swingline Committed Amount, if less).
(iii) Repayment of Swingline Loans. The principal amount of all
Swingline Loans shall be due and payable on the earlier of
(A) the maturity date agreed to by the Swingline Lender and
the Borrower with respect to such Loan (which maturity date
shall not be a date more than three (3) Business Days from
the date of advance thereof) and (B) the Maturity Date, at
which time the Borrower shall be deemed to have requested a
Revolving Loan borrowing (which deemed request for a
Revolving Loan borrowing shall constitute a representation
and warranty by the Credit Parties of the correctness of the
matters specified in subsections (b), (c), (d), (e) and (f)
of Section 5.2) in the amount of the maturing Swingline Loan,
the proceeds of which will be used to repay such Swingline
Loan. The Swingline Lender may, at any time, in its sole
discretion, by written notice to the Borrower and the
Lenders, demand repayment of its Swingline Loans by way of a
Revolving Loan advance, in which case the Borrower shall be
deemed to have requested a Revolving Loan advance (which
deemed request for a Revolving Loan borrowing shall
constitute a representation and warranty by the Credit
Parties of the correctness of the matters specified in
subsections (b), (c), (d), (e) and (f) of Section 5.2)
comprised solely of Base Rate Loans in the amount of such
Swingline Loans; provided, however, that any such demand
shall be deemed to have been given one Business Day prior to
the Maturity Date and on the date of the occurrence of any
Event of Default described in Section 9.1 and upon
acceleration of the Indebtedness hereunder and the exercise
of remedies in accordance with the provisions of Section 9.2.
Each Lender hereby irrevocably agrees to make its pro rata
share of each such Revolving Loan in the amount, in the
manner and on the date specified in the preceding sentence
notwithstanding (I) the amount of such borrowing may not
comply with the minimum amount for advances of Revolving
Loans otherwise required hereunder, (II) whether any
conditions specified in Section 5.2 are then satisfied, (III)
whether a Default or an Event of Default then exists, (IV)
failure of any such request or deemed request for Revolving
Loan to be made by the time otherwise required hereunder, (V)
whether the date of such borrowing is a date on which
Revolving Loans are otherwise permitted to be made hereunder
or (VI) any termination of the Commitments relating thereto
immediately prior to or contemporaneously with such
borrowing. Notwithstanding the preceding sentence, in the
event that the Swingline Lender funds a Swingline Loan
hereunder when the officers of the Swingline Lender directly
involved with the credit facilities available to the Borrower
under this Credit Agreement have actual knowledge that a
monetary Event of Default or material Event of Default
(which, without limitation and for the avoidance of doubt
shall include any violation of any provisions of Sections
7.11, 8.1, 8.3, 8.2, 8.4, 8.7, 8.8 and 8.13) has occurred and
is continuing, the Lenders shall have the option but not the
obligation to make Revolving Loans to fund their ratable
shares of such Swingline Loan as contemplated herein. In the
event that any Revolving Loan cannot for any reason be made
on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding
under the Bankruptcy Code with respect to the Borrower or any
other Credit Party), then each Lender hereby agrees that it
shall (except to the extent it would not be required to fund
its ratable share of a Swingline Loan pursuant to the
preceding two sentences) forthwith purchase (as of the date
such borrowing would otherwise have occurred, but adjusted
for any payments received from the Borrower on or after such
date and prior to such purchase) from the Swingline Lender
such Participations Interest in the outstanding Swingline
Loans as shall be necessary to cause each such Lender to
share in such Swingline Loans ratably based upon its
Commitment Percentage of the Revolving Committed Amount
(determined before giving effect to any termination of the
Commitments pursuant to Section 9.2), provided that (A) all
interest payable on the Swingline Loans shall be for the
account of the Swingline Lender until the date as of which
the respective Participation Interest is purchased and (B) at
the time any purchase of Participation Interests pursuant to
this sentence is actually made, the purchasing Lender shall
be required to pay to the Swingline Lender, to the extent not
paid to the Swingline Lender by the Borrower in accordance
with the terms of subsection (c)(ii) below, interest on the
principal amount of Participation Interests purchased for
each day from and including the day upon which such borrowing
would otherwise have occurred to but excluding the date of
payment for such Participation Interests, at the rate equal
to the Federal Funds Rate.
(c) Interest on Swingline Loans.
(i) Interest. Subject to the provisions of Section 3.1, each
Swingline Loan shall bear interest at a per annum rate
(computed on the basis of the actual number of days elapsed
over a year of 365/366 days, as appropriate) equal to the
Adjusted Base Rate.
(ii)Payment of Interest. Interest on Swingline Loans shall be
payable in arrears on each applicable Interest Payment Date
(or at such other times as may be specified herein), unless
accelerated sooner pursuant to Section 9.2.
(d) Swingline Note. The Swingline Loans shall be evidenced by a duly
executed promissory note of the Borrower to the Swingline Lender in
an original principal amount equal to the Swingline Committed Amount
substantially in the form of Exhibit I.
ARTICLE III
GENERAL CREDIT PROVISIONS
Section 3.1 Default Rate.
Upon the occurrence, and during the continuance, of an Event of
Default, (i) the principal of and, to the extent permitted by law, interest on
the Loans (once past due) and any other amounts owing hereunder or under the
other Credit Documents shall bear interest, payable on demand, at a per annum
rate 4% greater than the rate which would otherwise be applicable (or if no rate
is applicable, whether in respect of interest, fees or other amounts, then the
Default Rate) and (ii) the Standby Letter of Credit Fee and the Trade Letter of
Credit Fee shall accrue at a per annum rate 4% greater than the rate which would
otherwise be applicable.
Section 3.2 Prepayments.
(a) Voluntary.
(i) Subject to Section 3.15 and the mandatory prepayment
provisions set forth in Section 3.2(b), the Borrower may
prepay any Revolving Loans and Bridge Loans (but not
Swingline Loans) at any time without premium or penalty. The
Borrower shall give the Administrative Agent at least 3
Business Days prior written notice of the prepayment of any
Eurodollar Loan and at least 1 Business Day prior written
notice of the prepayment of any Base Rate Loan, provided,
however, that (A) each partial prepayment of Loans shall be
in a minimum principal amount of $1,000,000 and integral
multiples of $500,000 in excess thereof (or, if less, the
then remaining principal balance of the Revolving Loans or
Bridge Loans, as applicable) and (B) Borrower may not prepay
any Revolving Loan or any Bridge Loan until all amounts due
pursuant to any Swingline Loan have been paid in full.
(ii)Notwithstanding any direction from the Borrower to the
contrary, prepayments made by the Borrower pursuant to
Section 3.2(a)(i) shall be applied as follows: (A) prior to
the Significant Capital Event, first, to the Revolving Loans
and LOC Obligations pro rata and second, to the Bridge Loans
pro rata and (B) following the Significant Capital Event,
after allocation between the outstanding Revolving Loans in
the aggregate and outstanding Bridge Loans in the aggregate,
on a pro rata basis, to the Lenders' Revolving Loans on a pro
rata basis and to the Bridge Loans on a pro rata basis.
(b) Mandatory Prepayments.
(i) (A) Revolving Committed Amount. If, at any time, the sum of
the aggregate outstanding principal amount of Revolving Loans
plus the aggregate principal amount of outstanding Swingline
Loans plus LOC Obligations shall exceed the Revolving
Committed Amount or the Borrowing Base Amount for such date,
the Borrower shall immediately make payment on the Loans
and/or to the Collateral Account, in an amount equal to such
excess.
(B) Bridge Loan Committed Amount. If, at any time,
the sum of the outstanding principal amount of Bridge Loans exceeds the
Bridge Loan Committed Amount, the Borrower shall immediately make
payment on the Bridge Loans in an amount equal to such excess.
(C) LOC Committed Amount. If, at any time, the sum of
the aggregate principal amount of LOC Obligations shall exceed the LOC
Committed Amount, the Borrower immediately shall cash collateralize the
LOC Obligations in an amount equal to such excess.
(ii) Prepayments From Certain Events.
(A) Included Asset Pool Dispositions. Immediately
upon the occurrence of any Asset Disposition with respect to any assets
constituting any portion of the Included Asset Pool, the Borrower shall
prepay the Obligations in an aggregate amount equal to 100% of the Net
Cash Proceeds of such Asset Disposition if, after giving effect to such
Asset Disposition and the addition or replacement of any assets as
contemplated in Sections 7.20 and 8.19, the Borrower is not in
compliance with the covenants set forth herein (including, without
limitation, Section 7.23) . Amounts prepaid pursuant to this Section
3.2(b)(ii)(A) shall be applied first, to the Revolving Loans (and after
all Revolving Loans have been paid), second, to Swingline Loans (and
after all Swingline Loans have been paid), third, to the Collateral
Account in an amount equal to the then outstanding Letters of Credit
and fourth, to the Bridge Loans.
(B) Significant Asset Dispositions. Immediately upon
the occurrence of any Significant Asset Disposition occurring prior to
or on the date of the repayment in full of the Bridge Loans, the
Borrower shall prepay the Obligations in an aggregate amount equal to
100% of the Net Cash Proceeds of such Significant Asset Disposition.
Amounts prepaid pursuant to this Section 3.2(b)(ii)(B) shall, (1) to
the extent such proceeds result from the sale of any assets
constituting any portion of the Included Asset Pool, be applied first,
to the Revolving Loans (and after all Revolving Loans have been paid),
second, to Swingline Loans (and after all Swingline Loans have been
paid), third, to the Collateral Account in an amount equal to the then
outstanding Letters of Credit and fourth, to the Bridge Loans and (2)
to the extent such proceeds do not result from the sale of any assets
constituting any portion the Included Asset Pool, be applied first, to
Bridge Loans (and after all Bridge Loans have been paid), second, if
the Significant Capital Event has not occurred, to Revolving Loans (and
after all Revolving Loans have been paid), third, if the Significant
Capital Event has not occurred, to Swingline Loans, and fourth, if the
Significant Capital Event has not occurred, to the Collateral Account.
(C) Equity Issuances. Immediately upon receipt by any
Combined Party of proceeds from any Equity Issuance of such Combined
Party occurring prior to or on the date of the repayment in full of the
Bridge Loans (other than an Excluded Equity Issuance), the Borrower
shall prepay the Obligations in an aggregate amount equal to 100% of
the Net Cash Proceeds of such Equity Issuance. Amounts prepaid pursuant
to this Section 3.2(b)(ii)(C) shall be applied first, to Bridge Loans
(and after all Bridge Loans have been paid), second, if the Significant
Capital Event has not occurred, to Revolving Loans (and after all
Revolving Loans have been paid), third, if the Significant Capital
Event has not occurred, to the Swingline Loans, and fourth, if the
Significant Capital Event has not occurred, to the Collateral Account.
(D) Debt Issuances. Immediately upon receipt by any
Combined Party of proceeds from any Debt Issuance of such Combined
Party occurring prior to or on the date of the repayment in full of the
Bridge Loans, the Borrower shall prepay the Obligations in an aggregate
amount equal to 100% of the Net Cash Proceeds of such Debt Issuance.
Amounts prepaid pursuant to this Section 3.2(b)(ii)(D) shall be applied
first, to Bridge Loans (and after all Bridge Loans have been paid),
second, if the Significant Capital Event has not occurred, to Revolving
Loans (and after all Revolving Loans have been paid), third, if the
Significant Capital Event has not occurred, to the Swingline Loans, and
fourth, if the Significant Capital Event has not occurred, to the
Collateral Account.
(E) Casualty and Condemnation Events. Subject to the
rights of tenants under any applicable lease, immediately upon the
occurrence of any event requiring application of any insurance proceeds
to the prepayment of the Obligations pursuant to Section 7.6(b), the
Borrower shall prepay the Loans in the amount required by such Section
7.6(b). Amounts prepaid pursuant to this Section 3.2(b)(ii)(E) shall be
applied first, to the Revolving Loans (and after all Revolving Loans
have been paid), second to the Swingline Loans (and after all Swingline
Loans have been paid), third to the Collateral Account in an amount
equal to the then outstanding Letters of Credit and fourth to the
Bridge Loans.
(iii) Post-Significant Capital Event and Bridge Loan Payoff
Prepayments. Immediately upon the receipt by the Borrower or
any other Combined Party of any proceeds from any Significant
Asset Disposition, Equity Issuance or Debt Issuance from any
such transaction occurring after both the Significant Capital
Event and the payment of the Bridge Loans in full, the
Borrower shall prepay the Obligations in an aggregate amount
equal to 100% of the Net Cash Proceeds generated by such
Significant Asset Disposition, Equity Issuance or Debt
Issuance. Prepayments made pursuant to this Section
3.2(b)(iii) shall be applied first, to the Revolving Loans
(and after all Revolving Loans have been paid), second, to
the Swingline Loans (and after all Swingline Loans have been
paid), third, to the Collateral Account in an amount equal to
the then outstanding Letters of Credit and fourth, to all
other amounts due and owing from the Borrower or any Credit
Party to any Secured Party under this Credit Agreement or the
other Credit Document.
(c) Terms of Prepayments. Within the parameters of the applications set
forth above, all prepayments shall be applied first to Base Rate
Loans and then to Eurodollar Loans in direct order of Interest Period
maturities. All prepayments made with respect to any grouping of
Loans shall be made on a pro rata basis among the Lender Parties
participating in such Loans. All prepayments under this Section
3.2(b) shall be subject to Section 3.15. All prepayments made
pursuant to this Section 3.2 shall include any interest due with
respect to any amount of the Obligations being prepaid. Promptly upon
receipt of any notice of prepayment pursuant to this Section 3.2, the
Administrative Agent shall give notice thereof to each Lender Party.
Section 3.3 Continuation.
So long as no Event of Default shall have occurred and be continuing
and to the extent permitted in the definition of the term "Interest Period", the
Borrower may on any Business Day, with respect to any Eurodollar Loan, elect to
maintain such Eurodollar Loan or any portion thereof as a Eurodollar Loan by
selecting a new Interest Period for such Eurodollar Loan. Each new Interest
Period selected under this Section 3.3 shall commence on the last day of the
immediately preceding Interest Period. Each selection of a new Interest Period
shall be made by the Borrower giving to the Administrative Agent a Notice of
Continuation not later than 11:00 A.M. on the third Business Day prior to the
date of any such Continuation. Such notice by the Borrower of a Continuation
shall be by telephone or telecopy, confirmed immediately in writing if by
telephone, in the form of a Notice of Continuation, (a) specifying (i) the
proposed date of such Continuation, (ii) the Eurodollar Loan and portion thereof
subject to such Continuation and (iii) the duration of the selected Interest
Period, all of which shall be specified in such manner as is necessary to comply
with all limitations on Loans outstanding hereunder and (b) containing
certifications of the Borrower with respect to the conditions set forth in
Section 5.2 clauses (b) through (f) as set forth in Exhibit D. Each Notice of
Continuation shall be irrevocable by and binding on the Borrower once given.
Promptly after receipt of a Notice of Continuation, the Administrative Agent
shall notify each Lender Party by telecopy or other similar form of transmission
of the proposed Continuation. If the Borrower shall fail to select in a timely
manner a new Interest Period for any Eurodollar Loan in accordance with this
Section 3.3, such Loan will automatically, on the last day of the current
Interest Period therefor, Convert into a Base Rate Loan notwithstanding failure
of the Borrower to comply with Section 3.4.
Section 3.4 Conversion.
So long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may on any Business Day, upon the Borrower's giving of
a Notice of Conversion to the Administrative Agent, Convert all or a portion of
a Loan of one Type into a Loan of another Type. Any Conversion of a Eurodollar
Loan into a Base Rate Loan shall be made on, and only on, the last day of an
Interest Period for such Eurodollar Loan and, upon Conversion of a Base Rate
Loan into a Eurodollar Loan, the Borrower shall pay accrued interest to the date
of Conversion on the principal amount so Converted. Each such Notice of
Conversion shall be given not later than 12:00 noon on the Business Day prior to
the date of any proposed Conversion into Base Rate Loans and on the third
Business Day prior to the date of any proposed Conversion into Eurodollar Loans.
Promptly after receipt of a Notice of Conversion, the Administrative Agent shall
notify each Lender Party by telecopy or other similar form of transmission of
the proposed Conversion. Subject to the restrictions specified above, each
Notice of Conversion shall be by telephone (confirmed immediately in writing) or
telecopy in the form of a Notice of Conversion (a) specifying (i) the requested
date of such Conversion, (ii) the Type of Loan to be Converted, (iii) the
portion of such Type of Loan to be Converted, (iv) the Type of Loan such Loan is
to be Converted into and (v) if such Conversion is into a Eurodollar Loan, the
requested duration of the Interest Period of such Loan, and (b) containing
certifications of the Borrower with respect to the conditions set forth in
Section 5.2 clauses (b) through (f) as set forth in Exhibit E. Each Notice of
Conversion shall be irrevocable by and binding on the Borrower once given.
Section 3.5 Swingline Extension/Conversion.
Notwithstanding any language to the contrary contained in Sections 3.3
and/or 3.4 hereof, any Loans that are Swingline Loans may not be Continued or
Converted.
Section 3.6 Termination and Reduction of Revolving Committed Amount/Total
Committed Amount.
(a) Voluntary Reductions. Following the Significant Capital Event, the
Borrower may from time to time permanently reduce or terminate the
Revolving Committed Amount and Total Committed Amount in whole or in
part (in minimum aggregate amounts of $10,000,000 or in integral
multiples of $1,000,000 in excess thereof (or, if less, the full
remaining amount of the then applicable Revolving Committed Amount))
upon five Business Days' prior written notice to the Agent; provided,
however, no such termination or reduction shall be made which would
cause (i) the sum of the aggregate outstanding principal amount of
Revolving Loans plus the aggregate principal amount of outstanding
Swingline Loans plus LOC Obligations to exceed the Revolving
Committed Amount or the Borrowing Base Amount or (ii) the sum of the
aggregate outstanding principal amount of Revolving Loans plus the
aggregate principal amount of the outstanding Bridge Loans plus the
aggregate principal amount of outstanding Swingline Loans plus LOC
Obligations to exceed the Total Committed Amount, unless (in both
cases), concurrently with such termination or reduction, the
Revolving Loans are repaid to the extent necessary to eliminate such
excess. The Agent shall promptly notify each affected Lender of
receipt by the Agent of any notice from the Borrower pursuant to this
Section 3.6(a). Any notices provided by the Borrower pursuant to this
Section 3.6(a) shall be irrevocable once given and shall be effective
only upon receipt of the same by the Administrative Agent.
(b) Increases in Revolving Committed Amount. Following the Significant
Capital Event, the Revolving Committed Amount may be increased to an
amount of up to $175,000,000 if (i) the Borrower requests such
increase in writing to the Administrative Agent, (ii) the
Administrative Agent is able to syndicate the amount of such increase
to a financial institution qualifying as an Eligible Assignee, (iii)
such increase does not increase the amount of the Revolving
Commitment of any Lender without the written consent of such Lender,
(iv) the Borrower executes new promissory notes reflecting the
increase in the Revolving Committed Amount and executes such other
amendments to the Credit Documents as are deemed necessary by the
Administrative Agent, (v) no Default or Event of Default exists at
such time and (vi) the Borrower pays all fees required by the Agent
Fee Letters in connection with such increase in the Revolving
Committed Amount. All of the terms and conditions of the Credit
Documents shall apply to such increased Revolving Committed Amount as
if such amount were in effect as of the date hereof.
(c) Maturity Date. Unless terminated sooner pursuant to Sections 9.2 or
3.6, the Revolving Commitments of the Lenders and the LOC Commitment
of the Issuing Lender shall automatically terminate on the Maturity
Date.
(d) General. The Borrower shall pay to the Agent for the account of the
Lenders in accordance with the terms of Section 3.8(a), on the date
of each termination or reduction of the Revolving Committed Amount,
the Unused Fee accrued through the date of such termination or
reduction on the amount of the Revolving Committed Amount so
terminated or reduced. The Revolving Commitments, once terminated or
reduced may not be increased or reinstated. Any reduction in the
aggregate amount of the Revolving Commitments shall result in a
proportionate reduction (rounded to the next lowest integral multiple
of $100,000) in the LOC Committed Amount; provided, however, the LOC
Committed Amount shall not be reduced by operation of this sentence
to an amount less than the LOC Obligations at such time.
Section 3.7 Expiration or Maturity Date of Letters of Credit Past Maturity
Date.
If on the Actual Termination Date there are any Letters of Credit
outstanding hereunder, the Borrower shall, on the Actual Termination Date, pay
to the Administrative Agent for the benefit of the Issuing Lender an amount of
money equal to the Stated Amount of such Letter(s) of Credit for deposit into
the Collateral Account. If a drawing pursuant to any such Letter of Credit
occurs on or prior to the expiration date of such Letter of Credit, the Borrower
authorizes the Issuing Lender and the Administrative Agent to use the monies
deposited in the Collateral Account to make payment to the beneficiary with
respect to such drawing or the payee with respect to such presentment. If no
drawing occurs on or prior to the expiration date of such Letter of Credit, the
Administrative Agent shall pay to the Borrower (or to whomever else may be
legally entitled thereto) the monies deposited in the Collateral Account with
respect to such outstanding Letter of Credit on or before the date ten (10)
Business Days after (a) the expiration date of such Letter of Credit or, (b) if
later, the written request of the Borrower.
Section 3.8 Fees.
(a) Unused Fee. In consideration of the Revolving Commitments of the
Lenders hereunder, the Borrower promises to pay to the Agent for the
account of each Lender a fee (the "Unused Fee") equal to one-quarter
of one percent (0.25%) per annum times the Unused Revolving Committed
Amount. The Unused Fee shall commence to accrue on the Closing Date
and shall be due and payable in arrears on the last Business Day of
each March, June, September and December (and on any date that the
Revolving Committed Amount is reduced and on the Maturity Date) for
the immediately preceding quarter (or portion thereof) (each such
quarter or portion thereof for which the Unused Fee is payable
hereunder being herein referred to as an "Unused Fee Calculation
Period"), beginning with the first of such dates to occur after the
Closing Date.
(b) Letter of Credit Fees.
(i) Standby Letter of Credit Fee. In consideration of the
issuance of standby Letters of Credit hereunder, the Borrower
promises to pay to the Agent for the account of each Lender a
fee (the "Standby Letter of Credit Fee") equal to the
Applicable Margin in effect at such time multiplied by each
Lender's Revolving Commitment Percentage of the average daily
maximum amount available to be drawn under each such standby
Letter of Credit computed at a per annum rate for each day
from the date of issuance to the date of expiration. The
Standby Letter of Credit Fee will be payable quarterly in
arrears on the last Business Day of each March, June,
September and December for the immediately preceding quarter
(or a portion thereof).
(ii)Trade Letter of Credit Drawing Fee. In consideration of the
issuance of trade Letters of Credit hereunder, the Borrower
promises to pay to the Agent for the account of each Lender a
fee (the "Trade Letter of Credit Fee") equal to the
Applicable Margin in effect at such time multiplied by each
Lender's Revolving Commitment Percentage of the average daily
maximum amount available to be drawn under each such trade
Letter of Credit computed at a per annum rate for each day
from the date of issuance to the date of expiration. The
Trade Letter of Credit Fee will be payable quarterly in
arrears on the last Business Day of each March, June,
September and December for the immediately preceding quarter
(or a portion thereof).
(iii) Issuing Lender Fees. In addition to the Standby Letter of
Credit Fee payable pursuant to clause (i) above and the Trade
Letter of Credit Fee payable pursuant to clause (ii) above,
the Borrower promises to pay to the Agent for the account of
the Issuing Lender without sharing by the other Lenders (i) a
letter of credit fronting fee of one-eighth of one percent
(0.125%) on the average daily maximum amount available to be
drawn under each Letter of Credit computed at a per annum
rate for each day from the date of issuance to the date of
expiration (which fronting fee shall be payable quarterly in
arrears on the last Business Day of each March, June,
September and December for the immediately preceding quarter
(or a portion thereof)) and (ii) the customary charges from
time to time of the Issuing Lender with respect to the
issuance, amendment, transfer, administration, cancellation
and conversion of, and drawings under, such Letters of
Credit.
(c) Agent's Fees. The Borrower promises to pay to the Agent, for its own
account, for the account of the Issuing Lender and for the account of
Banc of America Securities LLC, as applicable, the fees referred to
in the Agent's Fee Letters.
Section 3.9 Capital Adequacy.
If any Lender Party has determined, after the date hereof, that the
adoption or the becoming effective of, or any change in, or any change by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof in the interpretation or administration
of, any applicable law, rule or regulation regarding capital adequacy, or
compliance by such Lender Party with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender Party's capital or assets as a consequence of its
commitments or obligations hereunder to a level below that which such Lender
Party could have achieved but for such adoption, effectiveness, change or
compliance (taking into consideration such Lender Party's policies with respect
to capital adequacy), then, upon notice from such Lender Party to the Borrower,
the Borrower shall be obligated to pay to such Lender Party such additional
amount or amounts as will compensate such Lender Party for such reduction. Each
determination by any such Lender Party of amounts owing under this Section
shall, absent manifest error, be conclusive and binding on the parties hereto.
Section 3.10 Limitation on Eurodollar Loans.
If on or prior to the first day of any Interest Period for any
Eurodollar Loan:
(a) the Agent determines (which determination shall be conclusive) that
by reason of circumstances affecting the relevant market, adequate
and reasonable means do not exist for ascertaining the Eurodollar
Rate for such Interest Period; or
(b) the Required Lenders determine (which determination shall be
conclusive) and notify the Agent that the Eurodollar Rate will not
adequately and fairly reflect the cost to any of the Lender Parties
of funding Eurodollar Loans for such Interest Period;
then the Agent shall give the Borrower prompt notice thereof, and so long as
such condition remains in effect, the Lender Parties shall be under no
obligation to make additional Eurodollar Loans, Continue Eurodollar Loans, or to
Convert Base Rate Loans into Eurodollar Loans and the Borrower shall, on the
last day(s) of the then current Interest Period(s) for the outstanding
Eurodollar Loans, either prepay such Eurodollar Loans or Convert such Eurodollar
Loans into Base Rate Loans in accordance with the terms of this Credit
Agreement.
Section 3.11 Illegality.
Notwithstanding any other provision of this Credit Agreement, in the
event that it becomes unlawful for any Lender Party or its Applicable Lending
Office(s) to make, maintain, or fund Eurodollar Loans hereunder, then such
Lender Party shall promptly notify the Borrower thereof and such Lender Party's
obligation to make or Continue Eurodollar Loans and to Convert Base Rate Loans
into Eurodollar Loans shall be suspended until such time as such Lender Party
may again make, maintain, and fund Eurodollar Loans (in which case the
provisions of Section 3.13 shall be applicable).
Section 3.12 Requirements of Law.
If, after the date hereof, the adoption of any applicable law, rule, or
regulation, or any change in any applicable law, rule, or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender Party (or their Applicable
Lending Office(s)) with any request or directive (whether or not having the
force of law) of any such Governmental Authority, central bank, or comparable
agency:
(i) shall subject such Lender Party (or its Applicable Lending
Office) to any tax, duty, or other charge with respect to any
Eurodollar Loans, its Notes, Bridge Notes, or its obligation
to make Eurodollar Loans, or change the basis of taxation of
any amounts payable to such Lender Party (or its Applicable
Lending Office) under this Credit Agreement or its Notes or
Bridge Notes in respect of any Eurodollar Loans (other than
taxes imposed on the overall net income of such Lender Party
by the jurisdiction in which such Lender Party has its
principal office or such Applicable Lending Office);
(ii)shall impose, modify, or deem applicable any reserve,
special deposit, assessment, or similar requirement (other
than the Eurodollar Reserve Requirement utilized in the
determination of the Adjusted Eurodollar Rate) relating to
any extensions of credit or other assets of, or any deposits
with or other liabilities or commitments of, such Lender
Party (or its Applicable Lending Office), including the
Revolving Commitment or Bridge Loan Commitment, as
applicable, of such Lender Party hereunder; or
(iii) shall impose on such Lender Party (or its Applicable
Lending Office) or the London interbank market any other
condition affecting this Credit Agreement or its Notes or
Bridge Notes or any of such extensions of credit or
liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
Party (or its Applicable Lending Office) of making, Converting into, Continuing,
or maintaining any Eurodollar Loans or to reduce any sum received or receivable
by such Lender Party (or its Applicable Lending Office) under this Credit
Agreement or its Notes or Bridge Notes with respect to any Eurodollar Loans,
then the Borrower shall pay to such Lender Party on demand such amount or
amounts as will compensate such Lender Party for such increased cost or
reduction. If any Lender Party requests compensation by the Borrower under this
Section 3.12, the Borrower may, by notice to such Lender Party (with a copy to
the Agent), suspend the obligation of such Lender Party to make or Continue
Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar Loans, until the
event or condition giving rise to such request ceases to be in effect (in which
case the provisions of Section 3.13 shall be applicable); provided that such
suspension shall not affect the right of such Lender Party to receive the
compensation so requested. Each Lender Party shall promptly notify the Borrower
and the Agent of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Lender Party to compensation pursuant to this
Section 3.12 and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the judgment of such Lender Party, be otherwise disadvantageous
to it. Any Lender Party claiming compensation under this Section 3.12 shall
furnish to the Borrower and the Agent a statement setting forth the additional
amount or amounts to be paid to it hereunder which shall be conclusive in the
absence of manifest error. In determining such amount, such Lender Party may use
any reasonable averaging and attribution methods.
Section 3.13 Treatment of Affected Loans.
If the obligation of any Lender Party to make any Eurodollar Loan or to
Continue, or to Convert Base Rate Loans into, Eurodollar Loans shall be
suspended pursuant to Section 3.10, 3.11 or 3.12 hereof, such Lender Party's
Eurodollar Loans shall be automatically Converted into Base Rate Loans on the
last day(s) of the then current Interest Period(s) for such Eurodollar Loans
(or, in the case of a Conversion, on such earlier date as such Lender may
specify to the Borrower with a copy to the Agent) and, unless and until such
Lender Party gives notice as provided below that the circumstances specified in
Section 3.10, 3.11 or 3.12 hereof that gave rise to such Conversion no longer
exist:
(a) to the extent that such Lender Party's Eurodollar Loans have been so
Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender Party's Eurodollar Loans shall be
applied instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such Lender
Party as Eurodollar Loans shall be made or Continued instead as Base
Rate Loans, and all Base Rate Loans of such Lender Party that would
otherwise be Converted into Eurodollar Loans shall remain as Base
Rate Loans.
If such Lender Party gives notice to the Borrower (with a copy to the Agent)
that the circumstances specified in Section 3.10, 3.11 or 3.12 hereof that gave
rise to the Conversion of such Lender Party's Eurodollar Loans pursuant to this
Section 3.13 no longer exist (which such Lender Party agrees to do promptly upon
such circumstances ceasing to exist) at a time when Eurodollar Loans made by
other Lender Parties are outstanding, such Lender Party's Base Rate Loans shall
be automatically Converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Eurodollar Loans, to the extent necessary so
that, after giving effect thereto, all Loans held by the Lenders Parties holding
Eurodollar Loans and by such Lender Party are held pro rata (as to principal
amounts, interest rate basis, and Interest Periods) in accordance with their
respective Revolving Commitments or Bridge Loan Commitments, as applicable.
Section 3.14 Taxes.
(a) Any and all payments by any Credit Party to or for the account of any
Lender Party or the Agent hereunder or under any other Credit
Document shall be made free and clear of and without deduction for
any and all present or future taxes, duties, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender Party and the Agent,
taxes imposed on its income, and franchise taxes imposed on it (all
such non-excluded taxes, duties, levies, imposts, deductions,
charges, withholdings, and liabilities being hereinafter referred to
as "Taxes"). If any Credit Party shall be required by law to deduct
any Taxes from or in respect of any sum payable under this Credit
Agreement or any other Credit Document to any Lender or the Agent,
(i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to
additional sums payable under this Section 3.14) such Lender or the
Agent receives an amount equal to the sum it would have received had
no such deductions been made, (ii) such Credit Party shall make such
deductions, (iii) such Credit Party shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable law, and (iv) such Credit Party shall
furnish to the Agent, at its address referred to in Section 11.1, the
original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or future
stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under
this Credit Agreement or any other Credit Document or from the
execution or delivery of, or otherwise with respect to, this Credit
Agreement or any other Credit Document (hereinafter referred to as
"Other Taxes").
(c) The Borrower agrees to indemnify each Lender Party and the Agent for
the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section 3.14) paid by such
Lender Party or the Agent (as the case may be) and any liability
(including penalties, interest, and expenses) arising therefrom or
with respect thereto.
(d) Each Lender Party that is not a United States person under Section
7701(a)(30) of the Code, on or prior to the date of its execution and
delivery of this Credit Agreement in the case of each Lender Party
listed on the signature pages hereof and on or prior to the date on
which it becomes a Lender Party in the case of each other Lender
Party, and from time to time thereafter if requested in writing by
the Borrower or the Agent (but only so long as such Lender remains
lawfully able to do so), shall provide the Borrower and the Agent
with (i) Internal Revenue Service Form W-8 BEN or W-8 ECI, as
appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying that such Lender Party is entitled to benefits
under an income tax treaty to which the United States is a party
which reduces to zero the rate of withholding tax on payments of
interest or certifying that the income receivable pursuant to this
Credit Agreement is effectively connected with the conduct of a trade
or business in the United States, (ii) Internal Revenue Service Form
W-8 or W-9, as appropriate, or any successor form prescribed by the
Internal Revenue Service, and/or (iii) any other form or certificate
required by any taxing authority (including any certificate required
by Sections 871(h) and 881(c) of the Code), certifying that such
Lender Party is entitled to an exemption from tax on payments
pursuant to this Credit Agreement or any of the other Credit
Documents.
(e) For any period with respect to which a Lender Party has failed to
provide the Borrower and the Agent with the appropriate form pursuant
to Section 3.14(d) (unless such failure is due to a change in treaty,
law, or regulation occurring subsequent to the date on which a form
originally was required to be provided), such Lender Party shall not
be entitled to indemnification under Section 3.14(a) or 3.14(b) with
respect to Taxes imposed by the United States; provided, however,
that should a Lender Party, which is otherwise exempt from
withholding tax, become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps
as such Lender shall reasonably request to assist such Lender Party
to recover such Taxes.
(f) If any Credit Party is required to pay additional amounts to or for
the account of any Lender Party pursuant to this Section 3.14, then
such Lender Party will agree to use reasonable efforts to change the
jurisdiction of its Applicable Lending Office so as to eliminate or
reduce any such additional payment which may thereafter accrue if
such change, in the judgment of such Lender Party, is not otherwise
disadvantageous to such Lender Party, as applicable.
(g) Without prejudice to the survival of any other agreement of the
Credit Parties hereunder, the agreements and obligations of the
Credit Parties contained in this Section 3.14 shall survive the
repayment of the Loans, LOC Obligations and other obligations under
the Credit Documents and the termination of the Revolving Commitments
and Bridge Loan Commitments hereunder.
Section 3.15 Compensation.
Upon the request of any Lender Party, the Borrower shall pay to such
Lender Party such amount or amounts as shall be sufficient (in the reasonable
opinion of such Lender) to compensate it for any loss, cost, or expense
(excluding loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar Loan for any
reason on a date other than the last day of the Interest Period for
such Loan; or
(b) any failure by the Borrower for any reason (including, without
limitation, the failure of any condition precedent specified in
Article V to be satisfied) to borrow, Convert, Continue, or prepay a
Eurodollar Loan on the date for such borrowing, Conversion,
Continuation, or prepayment specified in the relevant Notice of
Borrowing, prepayment, Notice of Continuation, or Notice of
Conversion under this Credit Agreement.
With respect to Eurodollar Loans, such indemnification may include an amount
equal to the excess, if any, of (a) the amount of interest which would have
accrued on the amount so prepaid, or not so borrowed, Converted or Continued,
for the period from the date of such prepayment or of such failure to borrow,
Convert or Continue to the last day of the applicable Interest Period (or, in
the case of a failure to borrow, Convert or Continue, the Interest Period that
would have commenced on the date of such failure) in each case at the applicable
rate of interest for such Eurodollar Loans provided for herein (excluding,
however, the Applicable Margin included therein, if any) over (b) the amount of
interest (as reasonably determined by such Lender) which would have accrued to
such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank Eurodollar market. The covenants of
the Borrower set forth in this Section 3.15 shall survive the repayment of the
Loans, LOC Obligations and other obligations under the Credit Documents and the
termination of the Revolving Commitments and Bridge Loan Commitments hereunder.
Section 3.16 Pro Rata Treatment.
Except to the extent otherwise provided herein:
(a) Loans. Each Revolving Loan, as between the Lenders, each Bridge Loan,
as between the Bridge Lenders, each payment or (subject to the terms
of Section 3.2) prepayment of principal of any Revolving Loan, as
between the Lenders, each Bridge Loan, as between the Bridge Lenders
or reimbursement obligations arising from drawings under Letters of
Credit, each payment of interest on the Revolving Loan, as between
the Lenders, each Bridge Loan, as between the Bridge Lenders or
reimbursement obligations arising from drawings under Letters of
Credit, each payment of Unused Fees, each payment of the Standby
Letter of Credit Fee, each payment of the Trade Letter of Credit Fee,
each reduction of the Revolving Committed Amount and each conversion
or extension of any Loan, shall be allocated pro rata among the
Lenders in accordance with the respective principal amounts of their
outstanding Loans of the applicable type and Participation Interests
in Loans of the applicable type and Letters of Credit.
(b) Advances. No Lender Party shall be responsible for the failure or
delay by any other Lender Party in its obligation to make its ratable
share of a borrowing hereunder; provided, however, that the failure
of any Lender Party to fulfill its obligations hereunder shall not
relieve any other Lender Party of its obligations hereunder. Unless
the Agent shall have been notified by any Lender Party prior to the
date of any requested borrowing that such Lender Party does not
intend to make available to the Agent its ratable share of such
borrowing to be made on such date, the Agent may assume that such
Lender Party has made such amount available to the Agent on the date
of such borrowing, and the Agent in reliance upon such assumption,
may (in its sole discretion but without any obligation to do so) make
available to the Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Agent, the
Agent shall be able to recover such corresponding amount from such
Lender Party. If such Lender Party does not pay such corresponding
amount forthwith upon the Agent's demand therefor, the Agent will
promptly notify the Borrower, and the Borrower shall immediately pay
such corresponding amount to the Agent. The Agent shall also be
entitled to recover from the Lender Party or the Borrower, as the
case may be, interest on such corresponding amount in respect of each
day from the date such corresponding amount was made available by the
Agent to the Borrower to the date such corresponding amount is
recovered by the Agent at a per annum rate equal to (i) from the
Borrower at the applicable rate for the applicable borrowing pursuant
to the Notice of Borrowing and (ii) from a Lender Party at the
Federal Funds Rate.
Section 3.17 Sharing of Payments.
The Lenders agree among themselves that, in the event that any Lender
shall obtain payment in respect of any Loan, LOC Obligations or any other
obligation owing to such Lender under this Credit Agreement through the exercise
of a right of setoff, banker's lien or counterclaim, or pursuant to a secured
claim under Section 506 of Title 11 of the United States Code or other security
or interest arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, in excess of its pro rata share of such
payment as provided for in this Credit Agreement, such Lender shall promptly
purchase from the other Lenders a Participation Interest in such Loans, LOC
Obligations and other obligations in such amounts, and make such other
adjustments from time to time, as shall be equitable to the end that all Lenders
share such payment in accordance with their respective ratable shares as
provided for in this Credit Agreement. The Lenders further agree among
themselves that if payment to a Lender obtained by such Lender through the
exercise of a right of setoff, banker's lien, counterclaim or other event as
aforesaid shall be rescinded or must otherwise be restored, each Lender which
shall have shared the benefit of such payment shall, by repurchase of a
Participation Interest theretofore sold, return its share of that benefit
(together with its share of any accrued interest payable with respect thereto)
to each Lender whose payment shall have been rescinded or otherwise restored.
The Borrower agrees that any Lender so purchasing such a Participation Interest
may, to the fullest extent permitted by law, exercise all rights of payment,
including setoff, banker's lien or counterclaim, with respect to such
Participation Interest as fully as if such Lender were a holder of such Loan,
LOC Obligations or other obligation in the amount of such Participation
Interest. Except as otherwise expressly provided in this Credit Agreement, if
any Lender shall fail to remit to the Agent or any other Lender an amount
payable by such Lender to the Agent or such other Lender pursuant to this Credit
Agreement on the date when such amount is due, such payments shall be made
together with interest thereon for each date from the date such amount is due
until the date such amount is paid to the Agent or such other Lender at a rate
per annum equal to the Federal Funds Rate. If under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured claim in lieu of
a setoff to which this Section 3.17 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders under this Section 3.17 to share in
the benefits of any recovery on such secured claim.
Section 3.18 Payments, Computations, Etc.
(a) Generally. Except as otherwise specifically provided herein, all
payments hereunder shall be made to the Agent in Dollars in
immediately available funds, without setoff, deduction, counterclaim
or withholding of any kind, at the Agent's office specified in
Schedule 3.18(a) not later than 2:00 P.M. on the date when due.
Payments received after such time shall be deemed to have been
received on the next succeeding Business Day. The Agent may (but
shall not be obligated to) debit the amount of any such payment which
is not made by such time to any ordinary deposit account of the
Borrower or any other Credit Party maintained with the Agent (with
notice to the Borrower or such other Credit Party). The Borrower
shall, at the time it makes any payment under this Credit Agreement,
specify to the Agent the Loans, LOC Obligations, Fees, interest or
other amounts payable by the Borrower hereunder to which such payment
is to be applied (and in the event that it fails so to specify, or if
such application would be inconsistent with the terms hereof, the
Agent shall distribute such payment to the Lender Parties in such
manner as the Agent may determine to be appropriate in respect of
obligations owing by the Borrower hereunder, subject to the terms of
Section 3.16(a)). The Agent will distribute such payments to such
Lender Parties, if any such payment is received prior to 2:00 P.M. on
a Business Day in like funds as received prior to the end of such
Business Day and otherwise the Agent will distribute such payment to
such Lender Parties on the next succeeding Business Day. Whenever any
payment hereunder shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next
succeeding Business Day (subject to accrual of interest and Fees for
the period of such extension), except that in the case of Eurodollar
Loans, if the extension would cause the payment to be made in the
next following calendar month, then such payment shall instead be
made on the next preceding Business Day. Except as expressly provided
otherwise herein, all computations of interest and fees shall be made
on the basis of actual number of days elapsed over a year of 360
days, except with respect to computation of interest on Base Rate
Loans which shall be calculated based on a year of 365 or 366 days,
as appropriate. Interest shall accrue from and include the date of
borrowing, but exclude the date of payment.
(b) Allocation of Payments After Event of Default. Notwithstanding any
other provisions of this Credit Agreement to the contrary, after the
occurrence and during the continuance of an Event of Default, subject
to clause (c) of this Section 3.18, all amounts collected or received
by the Administrative Agent or any Lender Party on account of the
Credit Party Obligations or any other amounts outstanding under any
of the Credit Documents shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys' fees)
of the Administrative Agent in connection with enforcing the rights of
the Lender Parties under the Credit Documents;
SECOND, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation, reasonable attorneys' fees)
of each of the Lender Parties in connection with enforcing its rights
under the Credit Documents or otherwise with respect to the Credit
Party Obligations owing to each such Lender Party;
THIRD, to payment of any fees owed solely to the
Administrative Agent for its own account;
FOURTH, to the extent such collected amount is Included Asset
Pool Proceeds or proceeds derived from the assignment of any Hedge
Agreement entered into in connection with any Revolving Loan then to
the payment of (1) the outstanding accrued fees and interest due in
connection with the Swingline Loans, (2) the outstanding principal due
in connection with the Swingline Loans, (3) the outstanding accrued
fees and interest due in connection with the Revolving Loans and LOC
Obligations until such amounts are paid in full, (4) the outstanding
principal due in connection with the Revolving Loans and LOC
Obligations (in inverse order of maturity) until such amounts are paid
in full (including the payment or cash collateralization of the
outstanding LOC Obligations), (5) the outstanding accrued interest due
in connection with the Bridge Loans until such amount is paid in full
and (6) the outstanding principal due in connection with the Bridge
Loans (in inverse order of maturity) until such amounts are paid in
full;
FIFTH, to the extent such collected amount is not disbursed
pursuant to the above, to the payment of (1) the outstanding accrued
fees and interest due in connection with all Credit Party Obligations
until such amounts are paid in full and (2) the outstanding principal
due in connection with all Credit Party Obligations until such amounts
are paid in full (including the payment or cash collateralization of
the outstanding LOC Obligations);
SIXTH, to all other Credit Party Obligations and other
obligations which shall have become due and payable under the Credit
Documents or otherwise and not repaid pursuant to clauses "FIRST"
through "FIFTH" above; and
SEVENTH, the payment of the surplus, if any, to whoever may be
lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in
the numerical order provided until exhausted prior to application to the next
succeeding category; (ii) each of the Lender Parties, as applicable, shall
receive an amount equal to its pro rata share (based on the proportion that the
then outstanding Revolving Loans, Swingline Loans, Bridge Loans and/or LOC
Obligations, as applicable, held by such Lender Party bears to the aggregate
then outstanding Revolving Loans, Swingline Loans, Bridge Loans and/or LOC
Obligations) of amounts available to be applied pursuant to clauses "THIRD",
"FOURTH", "FIFTH" and "SIXTH" above (such pro rata share to be determined
individually for each clause (1) through (6) of clause "FOURTH"); and (iii) to
the extent that any amounts available for distribution pursuant to clause
"SIXTH" above are attributable to the issued but undrawn amount of outstanding
Letters of Credit, such amounts shall be held by the Administrative Agent in the
Collateral Account and applied in accordance with Section 9.7.
(c) Notwithstanding anything to the contrary contained in clause (b) of
this Section 3.18, to the extent the Administrative Agent or any
Lender Party collects or receives amounts on account of the Credit
Party Obligations or any other amounts outstanding under the Credit
Documents and such amounts are collected or received in connection
with any Significant Asset Dispositions (other than from the
disposition of assets comprising the Included Asset Pool), Equity
Issuances and Debt Issuances prior to the repayment in full of the
Bridge Loans, such amounts shall be applied, FIRST, to the
outstanding accrued interest due in connection with the Bridge Loans
until such amount is paid in full, SECOND, to the outstanding
principal due in connection with the Bridge Loans (in inverse order
of maturity) until such amounts are paid in full and THIRD in the
order of priority otherwise set forth in Section 3.18(b). Such
application shall otherwise and on all dates following the repayment
in full of the Bridge Loans be made in the manner set forth in
Section 3.18(b).
Section 3.19 Evidence of Indebtedness.
(a) Each Lender Party shall maintain an account or accounts evidencing
each Loan made by such Lender Party to the Borrower from time to
time, including the amounts of principal and interest payable and
paid to such Lender from time to time under this Credit Agreement.
Each Lender Party will make reasonable efforts to maintain the
accuracy of its account or accounts and to promptly update its
account or accounts from time to time, as necessary.
(b) The Agent shall maintain the Register pursuant to Section 11.4(e),
and a subaccount for each Lender Party, in which Register and
subaccounts (taken together) shall be recorded (i) the amount, type
and Interest Period of each such Loan hereunder, (ii) the amount of
any principal or interest due and payable or to become due and
payable to each Lender Party hereunder and (iii) the amount of any
sum received by the Agent hereunder from or for the account of any
Credit Party and each Lender Party's share thereof. The Agent will
make reasonable efforts to maintain the accuracy of the subaccounts
referred to in the preceding sentence and to promptly update such
subaccounts from time to time, as necessary.
(c) The entries made in the accounts, Register and subaccounts maintained
pursuant to clause (b) of this Section 3.19 (and, if consistent with
the entries of the Agent, clause (a)) shall be prima facie evidence
of the existence and amounts of the obligations of the Credit Parties
therein recorded; provided, however, that the failure of any Lender
or the Agent to maintain any such account, such Register or such
subaccount, as applicable, or any error therein, shall not in any
manner affect the obligation of the Credit Parties to repay the
Credit Party Obligations owing to such Lender Party.
Section 3.20. Usury.
In no event shall the amount of interest due or payable on the Loans or
other Obligations exceed the maximum rate of interest allowed by Applicable Law
and, if any such payment is paid by the Borrower or received by any Lender
Party, then such excess sum shall be credited as a payment of principal, unless
the Borrower shall notify the respective Lender Party in writing that the
Borrower elects to have such excess sum returned to it forthwith. It is the
express intent of the parties hereto that the Borrower not pay and the Lender
Parties not receive, directly or indirectly, in any manner whatsoever, interest
in excess of that which may be lawfully paid by the Borrower under Applicable
Law.
Section 3.21. Agreement Regarding Interest and Charges.
The parties hereto hereby agree and stipulate that the only charge
imposed upon the Borrower for the use of money in connection with this Credit
Agreement is and shall be the interest specifically described in Section 2.1(d),
2.2(d) and 2.4(c). Notwithstanding the foregoing, the parties hereto further
agree and stipulate that all agency fees, syndication fees, facility fees,
letter of credit fees, underwriting fees, default charges, late charges, funding
or "breakage" charges, increased cost charges, attorneys' fees and reimbursement
for costs and expenses paid by the Administrative Agent or any Lender Party to
third parties or for damages incurred by the Administrative Agent or any Lender
Party, are charges made to compensate the Administrative Agent or any such
Lender Party for underwriting or administrative services and costs or losses
performed or incurred, and to be performed or incurred, by the Administrative
Agent and the Lender Parties in connection with this Credit Agreement and shall
under no circumstances be deemed to be charges for the use of money. Except as
expressly agreed otherwise in writing, all charges other than charges for the
use of money shall be fully earned and nonrefundable when due.
Section 3.22. Statements of Account.
The Administrative Agent will account to the Borrower monthly with a
statement of Loans, Letter of Credit, accrued interest and Fees, charges and
payments made pursuant to this Credit Agreement and the other Credit Documents,
and such account rendered by the Administrative Agent shall be prima facie
evidence of the amounts and other matters set forth therein. The failure of the
Administrative Agent to deliver such a statement of accounts shall not relieve
or discharge the Borrower from any of its obligations hereunder.
Section 3.23. Defaulting Lenders.
(a) Generally. If for any reason any Lender Party (a "Defaulting Lender")
shall fail or refuse to perform any of its obligations under this
Credit Agreement or any other Credit Document to which it is a party
within the time period specified for performance of such obligation
or, if no time period is specified, if such failure or refusal
continues for a period of two (2) Business Days after notice from the
Administrative Agent, then, in addition to the rights and remedies
that may be available to the Administrative Agent or the Borrower
under this Credit Agreement or Applicable Law, such Defaulting
Lender's right to participate in the administration of the Loans,
this Credit Agreement and the other Credit Documents, including
without limitation, any right to vote in respect of, to consent to or
to direct any action or inaction of the Administrative Agent or to be
taken into account in the calculation of the Required Lenders, shall
be suspended during the pendency of such failure or refusal. Upon a
Lender Party becoming a Defaulting Lender, the Administrative Agent
shall give prompt notice to each other Lender thereof. If a Lender
Party is a Defaulting Lender because it has failed to make timely
payment to the Administrative Agent of any amount required to be paid
to the Administrative Agent hereunder (without giving effect to any
notice or cure periods), in addition to other rights and remedies
which the Administrative Agent or the Borrower may have under the
immediately preceding provisions or otherwise, the Administrative
Agent shall be entitled (i) to collect interest from such Defaulting
Lender on such delinquent payment for the period from the date on
which the payment was due until the date on which the payment is made
at the Federal Funds Rate, (ii) to withhold or setoff and to apply in
satisfaction of the defaulted payment and any related interest, any
amounts otherwise payable to such Defaulting Lender under this Credit
Agreement or any other Credit Document and (iii) to bring an action
or suit against such Defaulting Lender in a court of competent
jurisdiction to recover the defaulted amount and any related
interest. Any amounts received by the Administrative Agent in respect
of a Defaulting Lender's Loans shall not be paid to such Defaulting
Lender and shall be held uninvested by the Administrative Agent and
either applied against the purchase price of such Loans under the
following subsection (b) or paid to such Defaulting Lender upon the
Defaulting Lender's curing of its default.
(b) Purchase of Defaulting Lender's Commitment. Any Lender Party who is
not a Defaulting Lender shall have the right, but not the obligation,
in its sole discretion, to acquire all of a Defaulting Lender's
Revolving Commitment or Bridge Loan Commitment, as applicable. Any
Lender Party desiring to exercise such right shall give written
notice thereof to the Administrative Agent no sooner than two (2)
Business Days and not later than ten (10) Business Days after such
Defaulting Lender became a Defaulting Lender. If more than one Lender
Party exercises such right, each such Lender Party shall have the
right to acquire an amount of such Defaulting Lender's Revolving
Commitment or Bridge Loan Commitment in proportion to the Revolving
Commitments or Bridge Loan Commitments (as applicable) of the other
Lender Parties exercising such right. If after such 10th Business
Day, the Lender Parties have not elected to purchase all of the
Revolving Commitment or Bridge Loan Commitment of such Defaulting
Lender, then any Eligible Assignee may purchase such Revolving
Commitment or Bridge Loan Commitment. None of the Administrative
Agent, the Sole Lead Arranger or any of the Lender Parties shall have
any obligation whatsoever to initiate any such replacement or to
assist in finding an Eligible Assignee. Upon any such purchase, the
Defaulting Lender's interest in the Loans and its rights hereunder
(but not its liability in respect thereof or under the Credit
Documents or this Credit Agreement to the extent the same relate to
the period prior to the effective date of the purchase) shall
terminate on the date of purchase, and the Defaulting Lender shall
promptly execute all documents reasonably requested to surrender and
transfer such interest to the purchaser thereof, including an
appropriate Assignment and Acceptance Agreement and, notwithstanding
Section 11.4(d), shall pay to the Administrative Agent an assignment
fee in the amount of $5,000. The purchase price for the Revolving
Commitment or Bridge Loan Commitment of a Defaulting Lender shall be
equal to the amount of the principal balance of the Loans outstanding
and owed by the Borrower to the Defaulting Lender. Prior to payment
of such purchase price to a Defaulting Lender, the Administrative
Agent shall apply against such purchase price any amounts retained by
the Administrative Agent pursuant to the last sentence of the
immediately preceding subsection (a). The Defaulting Lender shall be
entitled to receive amounts owed to it by the Borrower under the
Credit Documents which accrued prior to the date of the default by
the Defaulting Lender, to the extent the same are received by the
Administrative Agent from or on behalf of the Borrower. There shall
be no recourse against any Lender Party or the Administrative Agent
for the payment of such sums except to the extent of the receipt of
payments from any other party or in respect of the Loans. If, prior
to a Lender Party's acquisition of a Defaulting Lender's Revolving
Commitment or Bridge Loan Commitment pursuant to this subsection,
such Defaulting Lender shall cure the event or condition which caused
it to become a Defaulting Lender and shall have paid all amounts
owing by it hereunder as a result thereof, then such Lender Party
shall no longer have the right to acquire such Defaulting Lender's
Revolving Commitment or Bridge Loan Commitment.
Section 3.24 Assumptions Concerning Funding of Eurodollar Loans.
Calculation of all amounts payable to a Lender Party under this Article
III shall be made as though such Lender Party had actually funded Eurodollar
Loans through the purchase of deposits in the relevant market bearing interest
at the rate applicable to such Eurodollar Loans in an amount equal to the amount
of the Eurodollar Loans and having a maturity comparable to the relevant
Interest Period; provided, however, that each Lender Party may fund each of its
Eurodollar Loans in any manner it sees fit and the foregoing assumption shall be
used only for calculation of amounts payable under this Article III.
ARTICLE IV
GUARANTY AND PLEDGE AGREEMENTS
Section 4.1 Execution and Delivery.
Contemporaneously with the execution hereof, (a) each of the Guarantors
shall execute a Parent Guaranty or Subsidiary Guaranty, as applicable; (b) each
of the Parents shall execute and deliver a Pledge Agreement pledging their
respective interests in the Borrower and the other entities set forth therein
for the benefit of the Secured Parties; and (c) the Borrower shall execute and
deliver a Pledge Agreement pledging its interest in each of its Subsidiaries and
any other entities set forth therein for the benefit of the Secured Parties.
Section 4.2 Rights of Contribution.
The Guarantors hereby agree as among themselves that, if any Guarantor
shall make an Excess Payment (as defined below), such Guarantor shall have a
right of contribution from each other Guarantor in an amount equal to such other
Guarantor's Contribution Share (as defined below) of such Excess Payment. The
payment obligations of any Guarantor under this Section 4.2 shall be subordinate
and subject in right of payment to the Credit Party Obligations until such time
as the Credit Party Obligations have been Fully Satisfied, and none of the
Guarantors shall exercise any right or remedy under this Section 4.2 against any
other Guarantor until such Credit Party Obligations have been Fully Satisfied.
For purposes of this Section 4.2, (a) "Excess Payment" shall mean the amount
paid by any Guarantor in excess of its Pro Rata Share of any Guaranteed
Obligations; (b) "Pro Rata Share" shall mean, for any Guarantor in respect of
any payment of Credit Party Obligations, the ratio (expressed as a percentage)
as of the date of such payment of Guaranteed 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 Guarantor
(including contingent, subordinated, unmatured, and unliquidated liabilities,
but excluding the obligations of such Guarantor hereunder) to (ii) the amount by
which the aggregate present fair salable value of all assets and other
properties of all of the Credit Parties exceeds the amount of all of the debts
and liabilities (including contingent, subordinated, unmatured, and unliquidated
liabilities, but excluding the obligations of the Credit Parties hereunder) of
the Credit Parties; provided, however, that, for purposes of calculating the Pro
Rata Shares of the Guarantors in respect of any payment of Credit Party
Obligations, any Guarantor that became a Guarantor subsequent to the date of any
such payment shall be deemed to have been a Guarantor on the date of such
payment and the financial information for such Guarantor as of the date such
Guarantor became a Guarantor shall be utilized for such Guarantor in connection
with such payment; and (c) "Contribution Share" shall mean, for any Guarantor in
respect of any Excess Payment made by any other Guarantor, 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 Guarantor
(including contingent, subordinated, unmatured, and unliquidated liabilities,
but excluding the obligations of such Guarantor hereunder) to (ii) the amount by
which the aggregate present fair salable value of all assets and other
properties of the Credit Parties 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 Credit Parties) of the Credit Parties other than the maker of
such Excess Payment; provided, however, that, for purposes of calculating the
Contribution Shares of the Guarantors in respect of any Excess Payment, any
Guarantor that became a Guarantor subsequent to the date of any such Excess
Payment shall be deemed to have been a Guarantor on the date of such Excess
Payment and the financial information for such Guarantor as of the date such
Guarantor became a Guarantor shall be utilized for such Guarantor in connection
with such Excess Payment. Notwithstanding the foregoing, all rights of
contribution against any Guarantor shall terminate from and after such time, if
ever, that such Guarantor shall be relieved of its obligations (i) by virtue of
the satisfaction of all of the Credit Party Obligations or (ii) by ceasing to be
defined as a Guarantor hereunder.
Section 4.3 Termination and Release.
The Guaranty Agreements and the Pledge Agreements shall remain in full
force and effect pursuant to the respective terms thereof, except to the extent
that:
(a) the Guaranty Agreements executed by the Net Lease Subsidiary and CNL
Funding 2000-A, Inc. and the Pledge Agreement executed by CNL Funding
2000-A, Inc. shall be immediately released by the Collateral Agent
upon the completion of a Term Securitization with respect to the
assets of such Subsidiary generating Net Proceeds equal to or
exceeding $175,000,000; provided, that such Subsidiary shall
immediately transfer the Net Proceeds generated from the Term
Securitization to the Borrower in the form of a dividend,
distribution or other transfer from such Subsidiary;
(b) any Subsidiary Guaranty executed by any other Subsidiary of the
Borrower shall be released by the Collateral Agent upon the
completion of any Term Securitization with respect to the assets of
such Subsidiary if the Borrower provides the Collateral Agent with
evidence satisfactory to the Collateral Agent that the Borrower and,
to the extent required hereunder, the Combined Parties will,
following such release, be in pro forma compliance with the covenants
set forth herein; or
(c) the Collateral Agent delivers to any Guarantor written confirmation
of the release of such Guarantor from its obligations under its
respective Guaranty Agreement.
ARTICLE V
CONDITIONS
Section 5.1 Closing Conditions.
The obligation of the Lender Parties to enter into this Credit
Agreement and to effect or permit the occurrence of the first Credit Event
hereunder (including the refinancing of the Indebtedness of the Borrower under
the Existing Credit Agreement), shall be subject to satisfaction of the
following conditions (each in manner and substance satisfactory to the
Administrative Agent):
(a) Executed Credit Documents. Receipt by the Agent of duly executed
copies of: (i) this Credit Agreement, (ii) the Notes and Bridge Notes,
(iii) the Collateral Documents, and (iv) all other Credit Documents.
(b) Corporate Documents. Receipt by the Agent of the following (each in
form and substance acceptable to the Administrative Agent):
(i) Charter Documents. Copies of the articles or certificates of
incorporation, certificate of limited partnership,
partnership or limited partnership agreements, articles of
organization or other charter documents of each Credit Party
certified to be true and complete as of a recent date by the
appropriate Governmental Authority of the state or other
jurisdiction of its incorporation and certified by a
secretary or assistant secretary of such Credit Party to be
true and correct as of the Closing Date.
(ii)Bylaws. A copy of the bylaws or corresponding organizational
documents of each Credit Party certified by a secretary or
assistant secretary of such Credit Party to be true and
correct as of the Closing Date.
(iii) Resolutions. Copies of resolutions of the board of
directors, general partner(s), managing partner(s), managing
member(s) or similar governing entity/body of each Credit
Party approving and adopting the Credit Documents to which it
is a party, the transactions contemplated therein and
authorizing execution and delivery thereof, certified by a
secretary or assistant secretary of such Credit Party to be
true and correct and in force and effect as of the Closing
Date.
(iv)Good Standing. Copies of certificates of good standing,
existence or its equivalent with respect to each Credit Party
certified as of a recent date by the appropriate Governmental
Authorities of the state or other jurisdiction of
incorporation.
(v) Incumbency. Incumbency certificates of (i) the general
partner of the Borrower signed by the Secretary or Assistant
Secretary of the general partner of the Borrower with respect
to each of the officers of the general partner of the
Borrower authorized to execute and deliver the Credit
Documents to which the Borrower is a party and the officers
of the general partner of the Borrower then authorized to
deliver Notices of Borrowing, Notices of Continuation and
Notices of Conversion and to request the issuance of Letters
of Credit; and (ii) each other Credit Party as to each of the
officers of such Credit Party authorized to execute and
deliver the Credit Documents to which such Credit Party is a
party and certified by a secretary or assistant secretary to
be true and correct as of the Closing Date.
(c) Opinions of Counsel. The Agent shall have received, in each case dated
as of the Closing Date and in form and substance reasonably
satisfactory to the Agent:
(i) a legal opinion of Lowndes, Drosdick, Doster, Kantor & Reed,
P.A., as lead facility general counsel for the Credit Parties
addressed to the Administrative Agent, the Issuing Lender,
the Sole Lead Arranger and the Lenders, substantially in the
form set forth in Exhibit R; and
(ii)a legal opinion of special local counsel for the Credit
Parties for each State listed on Schedule 5.1(c)(ii) and
addressed to the Administrative Agent, the Issuing Lender,
the Sole Lead Arranger and the Lenders, substantially in the
form set forth in Exhibit T.
(d) Personal Property Collateral. The Agent shall have received:
(i) searches of Uniform Commercial Code filings in the
jurisdiction of the chief executive office of each Credit
Party owning any portion of the tangible personal property
Collateral and each jurisdiction where any tangible personal
property Collateral is located or where a filing would need
to be made in order to perfect the Agent's security interest
in the tangible personal property Collateral, copies of the
financing statements on file in such jurisdictions and
evidence that no Liens exist other than Permitted Liens;
(ii)duly executed UCC financing statements for each appropriate
jurisdiction as is necessary, in the Agent's sole discretion,
to perfect the Agent's security interest in the Collateral;
(iii) all certificates evidencing any certificated Capital Stock
pledged to the Agent pursuant to any Pledge Agreement,
together with duly executed in blank, undated stock powers
attached thereto;
(iv)duly executed notices of grant of security interest as are
necessary, in the Agent's sole discretion, to perfect the
Agent's security interest in the Collateral;
(v) all instruments and chattel paper in the possession of any of
the Credit Parties, together with allonges or assignments as
may be necessary or appropriate to perfect the Agent's
security interest in the Collateral;
(vi)duly executed consents as are necessary, in the Agent's sole
discretion, to perfect the Agent's security interest in the
Collateral;
(vii) in the case of any tangible personal property Collateral
located at a premises leased by a Credit Party, such estoppel
letters, consents and waivers from the landlords on such real
property as may be required by the Agent; and
(viii) A copy of (x) each of the documents, instruments and
agreements evidencing any of the Indebtedness described on
Schedule 6.33; (y) each Material Contract and (z) each of the
documents, instruments and agreements evidencing any of the
transactions described on Schedule 8.13, in each case
certified as true, correct and complete by the chief
executive officer or chief financial officer of each of the
Parents.
(e) Real Property Collateral. The Agent shall have received, in form and
substance reasonably satisfactory to the Agent:
(i) with respect to each of the Real Properties designated in
Part I of Schedule 6.33, fully executed and notarized (A)
Mortgage Instruments or Assignments of Mortgages, as
applicable, and (B) Assignments of Leases or Assignments of
Assignments of Leases, in each case in recordable form and
encumbering any interest of any Credit Party in such Real
Properties;
(ii)in the case of each real property leasehold interest of any
Credit Party constituting Mortgaged Property evidence that
the applicable lease, a memorandum of lease with respect
thereto, or other evidence of such lease in form and
substance reasonably satisfactory to the Agent, can, upon the
request of the Lenders pursuant to Section 7.20, be properly
recorded in all places to the extent necessary or desirable,
in the reasonable judgment of the Agent, so as to enable the
Mortgage Instrument encumbering such leasehold interest to
effectively create a valid and enforceable first priority
lien (subject to Permitted Liens and required landlord
consents) on such leasehold interest in favor of the Agent
(or such other Person as may be required or desired under
local law) for the benefit of Lenders;
(iii) maps or plats of an as-built survey of the sites of the
real property covered by the Mortgage Instruments;
(iv)evidence of title insurance policies issued with respect to
each of the Mortgaged Properties (the "Mortgage Policies"),
along with title update letters for each policy dated as of a
date later than thirty (30) days prior to the date hereof,
such policies to be in amounts not less than the respective
amounts designated in Part I of Schedule 6.33 with respect to
any particular Mortgaged Property; and
(v) evidence as to (A) whether any Mortgaged Property is in an
area designated by the Federal Emergency Management Agency as
having special flood or mud slide hazards (a "Flood Hazard
Property") and (B) if any Mortgaged Property is a Flood
Hazard Property, (1) whether the community in which such
Mortgaged Property is located is participating in the
National Flood Insurance Program, (2) the applicable Credit
Party's written acknowledgment of receipt of written
notification from the Agent (a) as to the fact that such
Mortgaged Property is a Flood Hazard Property and (b) as to
whether the community in which each such Flood Hazard
Property is located is participating in the National Flood
Insurance Program and (3) copies of insurance policies or
certificates of insurance of the Combined Parties evidencing
flood insurance satisfactory to the Agent and naming the
Agent as sole loss payee on behalf of the Lenders under a
standard mortgagee endorsement.
(f) Umbrella Insurance. The Agent shall have received copies of all
"umbrella" insurance policies held by the Combined Parties with
respect to the Underlying Assets, and each such policy shall name the
Administrative Agent (on behalf of the Lender Parties) as an
additional insured or sole loss payee under a standard mortgagee
endorsement, as applicable.
(g) Officer's Certificates. The Agent shall have received a certificate or
certificates executed by an Executive Officer of the Borrower as of
the Closing Date, in the form of Exhibit J and otherwise satisfactory
to the Agent, (i) stating that (A) each Credit Party is in compliance
with all existing financial obligations (whether pursuant to the terms
and conditions of this Credit Agreement or otherwise), (B) all
governmental, shareholder and third party consents and approvals, if
any, with respect to the Credit Documents and the transactions
contemplated thereby have been obtained, (C) no action, suit,
investigation or proceeding is pending or threatened in any court or
before any arbitrator or governmental instrumentality that purports to
affect any Credit Party or any transaction contemplated by the Credit
Documents, if such action, suit, investigation or proceeding could
have a Material Adverse Effect, (D) all Mortgage Instruments,
Assignments of Mortgages, Assignments of Leases and Assignments of
Assignments of Leases set forth in Part I of Schedule 6.33 and have
been properly executed and notarized as required herein, (E) the
Borrower and the Combined Parties have obtained all insurance required
by Section 7.6 hereof, (F) immediately prior to and following the
transactions contemplated herein, each of the Credit Parties shall be
Solvent, and (G) immediately after the execution of this Credit
Agreement and the other Credit Documents, (1) no Default or Event of
Default exists and (2) all representations and warranties contained
herein and in the other Credit Documents are true and correct in all
material respects, (ii) certifying the amount estimated in good faith
to be the Recording Amount as of such date, (iii) certifying that both
(a) the value of the Included Asset Pool and (B) the Adjusted Net
Capitalization exceeds $175,000,000, (iv) certifying that each parcel
of Real Property listed on Part I of Schedule 6.33 is subject to an
Eligible Net Lease Asset that is not in default, (v) certifying the
value of each of the Real Properties set forth on Schedule 6.33, (vi)
certifying that each Credit Party is qualified and in good standing in
each jurisdiction in which the failure to so qualify and be in good
standing could have a Material Adverse Effect and (vii) certifying
that the Combined Parties have paid all corporate or franchise taxes
due and owing as of the date hereof.
(h) Fees and Expenses. Payment by the Credit Parties to the Agent of all
fees and expenses relating to the preparation, execution and delivery
of this Credit Agreement and the other Credit Documents which are due
and payable on the Closing Date, including, without limitation,
payment to the Agent of the fees set forth in the Agent's Fee Letters,
attorneys' fees, consultants' fees, travel expenses and all fees and
expenses associated with the due diligence done in connection with and
the preparation of documentation with respect to the Mortgaged
Properties or other Collateral.
(i) Financial Statements. Receipt by the Administrative Agent and the
Lender Parties of (i) the consolidated financial statements of APF
(including balance sheets and income and cash flow statements) for the
calendar quarter ended March 31, 2000, (ii) a pro forma covenant
compliance certification stating that, on the basis of income
statement items and Capital Expenditures for the 12-month period
ending on the last day of the calendar quarter ending as of June 30,
2000 and after giving effect to the Credit Documents, the Credit
Parties will be in compliance during such quarter with each of the
covenants set forth in Sections 7.11, 7.18, 7.24, 8.1, 8.3, 8.4, 8.7,
8.8, 8.10 and 8.14, and (iii) such other information relating to the
Borrower and/or Combined Parties as the Administrative Agent may
reasonably require in connection with the structuring and syndication
of credit facilities of the type described herein.
(j) Consents/Approvals. The Borrower, the Parents and the other
Subsidiaries shall have received all approvals, consents and waivers,
and shall have made or given all necessary filings and notices as
shall be required to consummate the transactions contemplated hereby
without the occurrence of any default under, conflict with or
violation of (1) any Applicable Law or (2) any agreement, document or
instrument to which any Credit Party is a party or by which any of
them or their respective properties is bound, except for such
approvals, consents, waivers, filings and notices the receipt, making
or giving of which would not reasonably be likely to (A) have a
Material Adverse Effect, or (B) restrain or enjoin, impose materially
burdensome conditions on, or otherwise materially and adversely affect
the ability of the Borrower or any other Credit Party to fulfill its
respective obligations under the Credit Documents to which it is a
party.
(k) Material Adverse Effect. No material adverse change shall have
occurred since December 31, 1999 in the condition (financial or
otherwise), business, assets, operations, management or prospects of
(i) the Borrower or (ii) the Parents and their Combined Parties taken
as a whole.
(l) Litigation. There shall not exist any pending or threatened action,
suit, investigation or proceeding against a Combined Party that could
reasonably be expected to have a Material Adverse Effect.
(m) Indebtedness Under Existing Credit Agreement. Receipt by the
Administrative Agent of evidence that (i) the Existing Credit
Agreement shall have been terminated in connection with its
restatement herein, (ii) all obligations under the Existing Credit
Agreement have been paid in full or purchased by Lenders under this
Credit Agreement in connection with the restatement of the Existing
Credit Agreement and (iii) evidence of the release of all guaranties
given in connection with the Existing Credit Agreement.
(n) Interest Rate Protection. Receipt by the Agent of copies of (i) one or
more Hedge Agreements meeting the requirements set forth in Section
7.18 and (ii) an executed Assignment of Hedge Agreement with respect
to each Hedge Agreement entered into the Borrower in connection with
the Borrower's Indebtedness hereunder.
(o) Environmental Reports. Receipt by the Agent of copies of the most
recent environmental reports or assessments in the possession of the
Borrower or any other Combined Party with respect to the environmental
condition of each of the Underlying Assets and any other earlier or
supplemental reports or assessments in the possession of the Borrower
or any other Combined Party requested by the Administrative Agent in
connection therewith.
(p) Corporate Organization; Borrower's Subsidiaries. Receipt by the
Administrative Agent of evidence, satisfactory to the Administrative
Agent, (i) that the Parents are both Wholly Owned Subsidiaries of APF
and that FINCo has been separated from the Parents and the other
Combined Parties in a manner satisfactory to the Agent, (ii) that each
of APF and the Combined Parties are properly organized and existing in
the proper form and in accordance with the laws of their respective
states of organization and that APF qualifies as a REIT, and that each
of the Combined Parties are established as Qualified REIT Subsidiaries
and shall continue to maintain such status following the execution of
the Credit Documents, (iii) of (A) the creation of a B-Piece
Subsidiary required to "upstream" all cash flow to the Borrower and to
refrain from incurring liabilities, obligations or indebtedness on
more than 35% of the Value of the assets held in such B-Piece
Subsidiary, (B) the execution and delivery of a Subsidiary Guaranty
Agreement by such B-Piece Subsidiary, (C) the execution and delivery
by Borrower of a Pledge Agreement with respect to such B-Piece
Subsidiary, (D) the creation of a Net Lease Subsidiary required to
"upstream" all cash flow to the Borrower, (E) the transfer of
approximately $47,000,000 of triple net leased assets from APF to the
Net Lease Subsidiary, (F) the execution and delivery of a Subsidiary
Guaranty Agreement by such Net Lease Subsidiary, (G) the execution and
delivery by Borrower of a Pledge Agreement with respect to such Net
Lease Subsidiary and (H) the placement of any available Securitization
Securities of APF, each of the Parents and the Borrower into the
B-Piece Subsidiary and/or the Net Lease Subsidiary in an amount
satisfactory to the Administrative Agent and (v) that each of the
Borrower, the B-Piece Subsidiary, the Net Lease Subsidiary, the
Parents and AffiliateCo are or, within thirty (30) days of the date
hereof, shall be managed independently of FINCo, including lacking
common identity of boards of directors, managers or equivalent
managing bodies other than through common control through APF;
provided that, the Administrative Agent shall have the right, in its
sole discretion, to determine whether such independent management
structure has been established.
(q) Other. Receipt by the Lender Parties or the Administrative Agent of
such other documents, instruments, agreements or information as
reasonably requested by any Lender Party or the Administrative Agent,
including, but not limited to, additional legal opinions, contribution
agreements, corporate resolutions, indemnifications, information
regarding litigation, tax, accounting, labor, insurance, pension
liabilities (actual or contingent), real estate leases, material
contracts, debt agreements, property ownership and contingent
liabilities of the Combined Parties.
Section 5.2 Conditions to all Extensions of Credit.
The obligations of each Lender Party to make, convert or extend any
Loan and of the Issuing Lender to issue or extend any Letter of Credit
(including the initial Loans and the initial Letter of Credit) are subject to
satisfaction of the following conditions in addition to satisfaction on the
Closing Date of the conditions set forth in Section 5.1:
(a) The Borrower shall have delivered (i) in the case of any Revolving
Loan or Bridge Loan, an appropriate Notice of Borrowing or Notice of
Extension/Conversion, (ii) in the case of any Letter of Credit, the
Issuing Lender shall have received an appropriate request for issuance
in accordance with the provisions of Section 2.3(b) and (iii) in the
case of any Swingline Loan, the Administrative Agent shall have
received appropriate notice in accordance with Section 2.4(b);
(b) The representations and warranties set forth in Article VI shall,
subject to the limitations set forth therein, be true and correct in
all material respects as of such date (except for those which
expressly relate to an earlier date) and Part I of Schedule 6.33 shall
be updated as of such date;
(c) There shall not have been commenced against any Combined Party an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or any case, proceeding or
other action for the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person
or for any substantial part of its Property or for the winding up or
liquidation of its affairs, and such involuntary case or other case,
proceeding or other action shall remain undismissed;
(d) No development or event which has had or could reasonably be expected
to have a Material Adverse Effect shall have occurred since December
31, 1999; and
(e) No Default or Event of Default shall exist and be continuing either
prior to or after giving effect thereto; and
(f) Immediately after giving effect to the making of such Loan (and the
application of the proceeds thereof) or to the issuance of such Letter
of Credit, as the case may be, (i) the sum of the aggregate
outstanding principal amount of Revolving Loans plus the aggregate
principal amount of the outstanding Swingline Loans plus LOC
Obligations shall not exceed the Revolving Committed Amount or the
Borrowing Base Amount, (ii) the sum of the aggregate outstanding
principal amount of Revolving Loans plus the aggregate principal
amount of the outstanding Bridge Loans plus the aggregate principal
amount of the outstanding Swingline Loans plus LOC Obligations shall
not exceed the Total Committed Amount, (iii) the sum of the aggregate
outstanding Bridge Loans shall not exceed the Bridge Loan Committed
Amount; (iv) the LOC Obligations shall not exceed the LOC Committed
Amount; and (v) the aggregate amount of the outstanding Swingline
Loans shall not exceed the Swingline Committed Amount.
The delivery of each Notice of Borrowing, each Notice of Extension,
each Notice of Conversion and each request for a Letter of Credit
shall constitute a representation and warranty by the Credit Parties
of the correctness of the matters specified in subsections (b), (c),
(d) and (e) above.
Section 5.3 Conditions as Covenants.
If the Lender Parties effect or permit the occurrence of the first
Credit Event hereunder prior to the satisfaction of all conditions precedent set
forth in Sections 5.1 and 5.2, the Borrower shall nevertheless cause such
condition or conditions to be satisfied within five (5) Business Days after the
occurrence of such Credit Event. Unless set forth in writing to the contrary
prior to the making of its initial Loan hereunder, the making of its initial
Loan by a Lender Party shall constitute a certification by such Lender Party to
the Administrative Agent and the other Lender Parties that the Borrower has
satisfied the conditions precedent for the occurrence of the initial Credit
Event set forth in Sections 5.1 and 5.2.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Credit Parties hereby represent to the Agent and each Lender Party
that:
Section 6.1 Financial Condition.
(a) The audited consolidated and consolidating balance sheets and income
statements of APF for the calendar years ended December 31, 1998 and
December 31, 1999 (including the notes thereto) (i) have been audited
by Pricewaterhouse Coopers, (ii) have been prepared in accordance with
GAAP consistently applied throughout the periods covered thereby and
(iii) present fairly (on the basis disclosed in the footnotes to such
financial statements) the consolidated financial condition, results of
operations and cash flows of APF as of such date and for such periods.
The unaudited interim balance sheets of APF as at the end of, and the
related unaudited interim statements of earnings and of cash flows
for, each calendar month and quarterly period ended after December 31,
1999 and prior to the Closing Date (i) have been prepared in
accordance with GAAP consistently applied throughout the periods
covered thereby and (ii) present fairly (on the basis disclosed in the
footnotes to such financial statements) the consolidated and
consolidating financial condition, results of operations and cash
flows of the APF as of such date and for such periods. During the
period from December 31, 1999 to and including the Closing Date, there
has been no sale, transfer or other disposition by any of APF or the
Combined Parties of any material part of the business or property of
the Combined Parties, taken as a whole, and no purchase or other
acquisition by any of them of any business or property (including any
Capital Stock of any other Person) material in relation to the
consolidated financial condition of the Combined Parties taken as a
whole, in each case, which is not reflected in the foregoing financial
statements or in the notes thereto and has not otherwise been
disclosed in writing to the Lenders on or prior to the Closing Date.
As of the Closing Date, the Borrower and its Subsidiaries have no
material liabilities (contingent or otherwise) that are not reflected
in the foregoing financial statements or in the notes thereto.
(b) The financial statements delivered pursuant to Section 5.1(i) have
been prepared in accordance with GAAP (except as may otherwise be
permitted under Section 5.1(i)) and present fairly (on the basis
disclosed in the footnotes to such financial statements) the
consolidated and consolidating financial condition, results of
operations and cash flows of APF (or, if applicable, the New REIT) as
of such date and for such periods.
Section 6.2 No Material Change.
Since December 31, 1999, there has been no development or event
relating to or affecting a Combined Party which has had or could have a Material
Adverse Effect.
Section 6.3 Organization and Good Standing.
Each of the Combined Parties (a) is duly organized, validly existing
and is in good standing under the laws of the jurisdiction of its incorporation
or organization, (b) has the corporate or other necessary power and authority,
and the legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged
and (c) is duly qualified as a foreign entity and in good standing under the
laws of each jurisdiction where its ownership, lease or operation of property or
the conduct of its business requires such qualification, other than in such
jurisdictions where the failure to be so qualified and in good standing would
not have a Material Adverse Effect.
Section 6.4 Power; Authorization; Enforceable Obligations.
Each of the Credit Parties has the corporate or other necessary power
and authority, and the legal right, to make, deliver and perform the Credit
Documents to which it is a party, and in the case of the Borrower, to obtain
extensions of credit hereunder, and has taken all necessary corporate or other
necessary action to authorize the borrowings and other extensions of credit on
the terms and conditions of this Credit Agreement and to authorize the
execution, delivery and performance of the Credit Documents to which it is a
party. No consent or authorization of, filing with, notice to or other similar
act by or in respect of, any Governmental Authority or any other Person is
required to be obtained or made by or on behalf of any Credit Party in
connection with the borrowings or other extensions of credit hereunder or with
the execution, delivery, performance, validity or enforceability of the Credit
Documents to which such Credit Party is a party, except for (i) consents,
authorizations, notices and filings described in Schedule 6.4, all of which have
been obtained or made or have the status described in such Schedule 6.4 and (ii)
filings to perfect the Liens created by the Collateral Documents. This Credit
Agreement has been, and each other Credit Document to which any Credit Party is
a party will be, duly executed and delivered on behalf of the Credit Parties.
This Credit Agreement constitutes, and each other Credit Document to which any
Credit Party is a party when executed and delivered will constitute, a legal,
valid and binding obligation of such Credit Party enforceable against such party
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
Section 6.5 No Conflicts.
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated therein, nor performance of and
compliance with the terms and provisions thereof by such Credit Party will (a)
violate or conflict with any provision of its articles or certificate of
incorporation or bylaws or other organizational or governing documents of such
Person, (b) violate, contravene or materially conflict with any Requirement of
Law or any other law, regulation (including, without limitation, Regulation U or
Regulation X), order, writ, judgment, injunction, decree or permit applicable to
it, (c) violate, contravene or conflict with contractual provisions of, or cause
an event of default under, any indenture, loan agreement, mortgage, deed of
trust, contract or other agreement or instrument to which it is a party or by
which it may be bound, the violation of which could have a Material Adverse
Effect, or (d) result in or require the creation of any Lien (other than those
contemplated in or created in connection with the Credit Documents) upon or with
respect to its properties.
Section 6.6 No Default.
None of the Borrower, the Parents nor any other Subsidiary is in
default under its articles or certificate of incorporation, bylaws, partnership
agreement or other similar organizational documents, and no event has occurred,
which has not been remedied, cured or waived: (i) which constitutes a Default or
an Event of Default; or (ii) which constitutes, or which with the passage of
time, the giving of notice, a determination of materiality, the satisfaction of
any condition, or any combination of the foregoing, would constitute, a default
or event of default by the Borrower, the Parents or any other Subsidiary under
any agreement (excluding the Credit Documents) or judgment, decree or order to
which the Borrower, the Parents or any other Subsidiary is a party or by which
the Borrower, the Parents or any other Subsidiary or any of their respective
properties may be bound where such default or event of default could,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
Section 6.7 Ownership.
Each Combined Party is the owner of, and has good and marketable title
to, all of its respective assets and none of such assets is subject to any Lien
other than Permitted Liens.
Section 6.8 Environmental Condition of Underlying Assets.
Except as disclosed and described in those reports, assessments or
notices provided by the Borrower or any Combined Party in connection with
Section 5.1(o), pursuant to Sections 7.1(j) or 7.13, or on Schedule 6.8 attached
hereto, to the Borrower's best knowledge:
(a) Each of the Underlying Assets and all operations at such Underlying
Assets are in compliance with all applicable Environmental Laws, there
is no violation of Environmental Law, or other condition, requiring
Borrower to take any action, including, without limitation,
investigation, cleanup, remediation or removal of such violation or
condition, under applicable Environmental Laws, and there are no
conditions relating to such Underlying Assets or the Businesses that
could give rise to liability (including, without limitation, liability
to conduct any investigation, removal or remediation of any Hazardous
Materials) under any applicable Environmental Laws.
(b) None of the Underlying Assets contains, or has previously contained,
any Hazardous Materials at, on or under such Real Properties in
amounts or concentrations that constitute or constituted a violation
of, or could give rise to liability under, Environmental Laws.
(c) No Combined Party has received any written or oral notice of, or
inquiry from any Governmental Authority regarding, any violation,
alleged violation, non-compliance, liability or potential liability
regarding environmental matters or compliance with Environmental Laws
with regard to any of the Underlying Assets or the businesses
conducted thereon, nor does any Executive Officer of any Credit Party
have knowledge or reason to believe that any such notice will be
received or is being threatened.
(d) Hazardous Materials have not been transported or disposed of from the
Underlying Assets, or generated, treated, stored or disposed of at, on
or under any of such Underlying Assets or any other location, in each
case by or on behalf of any Combined Party in violation of, or in a
manner that could give rise to liability under, any applicable
Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the best knowledge of the Executive Officers of the
Credit Parties, threatened, under any Environmental Law or relating to
any Hazardous Material to which any Combined Party is or will be named
as a party, nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any
Environmental Law with respect to the Combined Parties, the Underlying
Assets or the Businesses.
(f) There has been no release (as such term is defined for purposes of
CERCLA), or threat of release, of Materials of Environmental Concern
at or from the Underlying Assets or arising from or related to the
operations (including, without limitation, disposal) of any Combined
Party in connection with such Underlying Assets or otherwise in
connection with the businesses conducted thereon, in violation of or
in amounts or in a manner that could give rise to liability under
Environmental Laws.
Section 6.9 Litigation.
Except as set forth on Schedule 6.9, there are no actions, suits or
proceedings pending (nor, to the knowledge of either of the Parents, are there
any actions, suits or proceedings threatened, nor is there any basis therefor)
against or in any other way relating adversely to or affecting the Borrower, the
Parents or any other Subsidiary or any of its respective property in any court
or before any arbitrator of any kind or before or by any other Governmental
Authority which could reasonably be expected to have a Material Adverse Effect.
There are no strikes, slow downs, work stoppages or walkouts or other labor
disputes in progress or threatened relating to the Borrower, the Parents or any
other Subsidiary which could reasonably be expected to have a Material Adverse
Effect.
Section 6.10 Taxes.
Each Combined Party has filed, or caused to be filed, all tax returns
(Federal, state, local and foreign) required to be filed and paid (a) all
amounts of taxes shown thereon to be due (including interest and penalties) and
(b) all other taxes, fees, assessments and other governmental charges (including
mortgage recording taxes, documentary stamp taxes and intangibles taxes) owing
by it, except for such taxes (i) which are not yet delinquent or (ii) that are
being contested in good faith and by proper proceedings, and against which
adequate reserves are being maintained in accordance with GAAP. No Credit Party
is aware as of the Closing Date of any proposed tax assessments against it or
any other Combined Party.
Section 6.11 Compliance with Law.
Each Combined Party is in compliance with all Requirements of Law and
all other laws, rules, regulations, orders and decrees (including without
limitation Environmental Laws) applicable to it, or to its properties, unless
such failure to comply could not have a Material Adverse Effect. No Requirement
of Law could cause a Material Adverse Effect. To the best of Borrower's
knowledge after due inquiry of each applicable tenant and inspection of the
premises by a representative of the Borrower or as warranted by the tenant, each
of the Mortgaged Properties, and the uses of the Mortgaged Properties, are in
compliance in all material respects with all applicable laws, regulations and
ordinances including without limitation health and environmental protection
laws, erosion control ordinances, storm drainage control laws, doing business
and/or licensing laws, zoning laws and laws regarding access and facilities for
disabled persons including, but not limited to, the Federal Architectural
Barriers Act, the Fair Housing Amendments Act of 1988, the Rehabilitation Act of
1973 and the Americans with Disabilities Act of 1990.
Section 6.12 ERISA.
Except as disclosed and described in Schedule 6.12 attached hereto:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no ERISA Event has
occurred, and, to the best knowledge of the Executive Officers of the
Credit Parties, no event or condition has occurred or exists as a
result of which any ERISA Event could reasonably be expected to occur,
with respect to any Plan; (ii) no "accumulated funding deficiency," as
such term is defined in Section 302 of ERISA and Section 412 of the
Code, whether or not waived, has occurred with respect to any Plan;
(iii) each Plan has been maintained, operated, and funded in
compliance with its own terms and in material compliance with the
provisions of ERISA, the Code, and any other applicable Federal or
state laws; and (iv) no lien in favor of the PBGC or a Plan has arisen
or is reasonably likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit liabilities" (as defined
in Section 4001(a)(16) of ERISA), whether or not vested, under each
Single Employer Plan, as of the last annual valuation date prior to
the date on which this representation is made or deemed made
(determined, in each case, in accordance with Financial Accounting
Standards Board Statement 87, utilizing the actuarial assumptions used
in such Plan's most recent actuarial valuation report), did not exceed
as of such valuation date the fair market value of the assets of such
Plan.
(c) Neither any Combined Party nor any ERISA Affiliate has incurred, or,
to the best knowledge of the Executive Officers of the Credit Parties,
could be reasonably expected to incur, any withdrawal liability under
ERISA to any Multiemployer Plan or Multiple Employer Plan. Neither any
Combined Party nor any ERISA Affiliate would become subject to any
withdrawal liability under ERISA if any Combined Party or any ERISA
Affiliate were to withdraw completely from all Multiemployer Plans and
Multiple Employer Plans as of the valuation date most closely
preceding the date on which this representation is made or deemed
made. Neither any Combined Party nor any ERISA Affiliate has received
any notification that any Multiemployer Plan is in reorganization
(within the meaning of Section 4241 of ERISA), is insolvent (within
the meaning of Section 4245 of ERISA), or has been terminated (within
the meaning of Title IV of ERISA), and no Multiemployer Plan is, to
the best of the Executive Officers' of the Credit Parties knowledge,
reasonably expected to be in reorganization, insolvent, or terminated.
(d) No prohibited transaction (within the meaning of Section 406 of ERISA
or Section 4975 of the Code) or breach of fiduciary responsibility has
occurred with respect to a Plan which has subjected or may subject any
Combined Party or any ERISA Affiliate to any liability under Sections
406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or
under any agreement or other instrument pursuant to which any Combined
Party or any ERISA Affiliate has agreed or is required to indemnify
any Person against any such liability.
(e) Neither any Combined Party nor any ERISA Affiliates has any material
liability with respect to "expected post-retirement benefit
obligations" within the meaning of the Financial Accounting Standards
Board Statement 106. Each Plan which is a welfare plan (as defined in
Section 3(1) of ERISA) to which Sections 601-609 of ERISA and Section
4980B of the Code apply has been administered in compliance in all
material respects of such sections.
(f) Neither the execution and delivery of this Credit Agreement nor the
consummation of the financing transactions contemplated thereunder
will involve any transaction which is subject to the prohibitions of
Sections 404, 406 or 407 of ERISA or in connection with which a tax
could be imposed pursuant to Section 4975 of the Code. The
representation by the Credit Parties in the preceding sentence is made
in reliance upon and subject to the accuracy of the Lenders'
representation in Section 11.19 with respect to their source of funds
and is subject, in the event that the source of the funds used by the
Lenders in connection with this transaction is an insurance company's
general asset account, to the application of Prohibited Transaction
Class Exemption 95-60, 60 Fed. Reg. 35,925 (1995), compliance with the
regulations issued under Section 401(c)(1)(A) of ERISA, or the
issuance of any other prohibited transaction exemption or similar
relief, to the effect that assets in an insurance company's general
asset account do not constitute assets of an "employee benefit plan"
within the meaning of Section 3(3) of ERISA or a "plan" within the
meaning of Section 4975(e)(1) of the Code.
Section 6.13 Corporate Structure; Capital Stock, Etc.
As of the Agreement Date, Part I of Schedule 6.13 correctly sets forth
the corporate structure and ownership interests of the Parents and their
Subsidiaries, including the correct legal name of each Subsidiary of the
Parents, the Borrower and each Credit Party, such Subsidiary's jurisdiction of
formation, the number of shares of each class of Capital Stock outstanding, the
Persons holding equity interests in such Subsidiary, their percentage equity or
voting interest in such Subsidiary and the number and effect, if exercised, of
all outstanding options, warrants, rights of conversion or purchase and all
other similar rights with respect thereto. Except as set forth in such Schedule,
as of the Agreement Date: (i) no Subsidiary has issued to any third party any
securities convertible into any equity interest in such Subsidiary, or any
options, warrants or other rights to acquire any securities convertible into any
such equity interest, and (ii) the outstanding Capital Stock of each Combined
Party are owned by the Persons indicated on Schedule 6.13 is validly issued,
fully paid and non-assessable, and is free and clear of all Liens, warrants,
options and rights of others of any kind whatsoever. Neither the Borrower nor
the Parents have any foreign Subsidiaries as of the date hereof. As of the
Agreement Date, Part II of Schedule 6.13 correctly sets forth all Unconsolidated
Affiliates and Preferred Stock Entities of each of the Parents, including the
correct legal name of such Person, the type of legal entity which each such
Person is, and all ownership interests in such Person held directly or
indirectly by either Parent. Other than as set forth in Schedule 6.13 neither
the Borrower nor any of its Subsidiaries has outstanding any securities
convertible into or exchangeable for its Capital Stock nor does any such Person
have outstanding any rights to subscribe for or to purchase or any options for
the purchase of, or any agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating to
its Capital Stock. As of the Agreement Date, Part III of Schedule 6.13 correctly
sets forth all Joint Ventures participated in by the Borrower or any Combined
Party.
Section 6.14 Governmental Regulations, Etc.
(a) None of the transactions contemplated by this Credit Agreement
(including, without limitation, the direct or indirect use of the
proceeds of the Loans) will violate or result in a violation of the
Securities Act, the Securities Exchange Act or any of Regulations U
and X. If requested by any Lender or the Agent, the Borrower will
furnish to the Agent and each Lender a statement, in conformity with
the requirements of FR Form U-1 referred to in Regulation U, that no
part of the Letters of Credit or proceeds of the Loans will be used,
directly or indirectly, for the purpose of "buying" or "carrying" any
"margin stock" within the meaning of Regulations U and X, or for the
purpose of purchasing or carrying or trading in any securities.
(b) None of the Combined Parties is (i) an "investment company", or a
company "controlled" by "investment company", within the meaning of
the Investment Company Act of 1940, as amended, (ii) a "holding
company" as defined in, or otherwise subject to regulation under, the
Public Utility Holding Company Act of 1935, as amended or (iii)
subject to regulation under any other Federal or state statute or
regulation which limits its ability to incur Indebtedness.
Section 6.15 Activities in the State of California.
The Combined Parties do not currently have any business or corporate
operations or activities in the State of California except in connection with
business activities concerning the leasing, owning, developing or mortgage
financing of Real Property and leasehold interests in Real Property.
Section 6.16 Existing Permitted Liens.
As of the date hereof, there exist no Liens on any of the Underlying
Assets except Permitted Liens.
Section 6.17 Intellectual Property.
Each Combined Party owns, or has the legal right to use, all
trademarks, tradenames, patents, copyrights, technology, know-how and processes
(the "Intellectual Property") necessary for each of them to conduct its business
as currently conducted except for those the failure to own or have such legal
right to use could not have a Material Adverse Effect. Set forth on Schedule
6.17 is a list of all Intellectual Property registered with the United States
Copyright Office or the United States Patent and Trademark Office and owned by
each Combined Party or that any Combined Party has the right to use. Except as
provided on Schedule 6.17, no claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property, nor does any
Credit Party know of any such claim, and, to the knowledge of the Executive
Officers of the Credit Parties, the use of such Intellectual Property by any
Combined Party does not infringe on the rights of any Person, except for such
claims and infringements that, in the aggregate, could not have a Material
Adverse Effect.
Section 6.18 Solvency.
Each Credit Party is Solvent and the execution of this Credit Agreement
and the other Credit Documents will not render any of the Credit Parties
Insolvent.
Section 6.19 Investments.
All Investments of each Combined Party are Permitted Investments.
Section 6.20 Title to Properties; Liens.
(a) Part I of Schedule 6.20 properly sets forth the names and addresses of
all Tenants with respect to the Included Asset Pool or under other net
leases paying rent by virtue of rent loss insurance and the property
with respect to which such payments are being made.
(b) Part II of Schedule 6.20 properly sets forth, to the Borrower's best
knowledge, the names and addresses of all Tenants with respect to the
Included Asset Pool or under other net leases who are more than sixty
(60) days delinquent in paying any real estate taxes due in connection
with the lease(s) in which Borrower holds an interest as lessor or
assignee of the lessor and the property with respect to which such
payments are delinquent.
(c) Part III of Schedule 6.20 properly sets forth, to the Borrower's
knowledge, the names and addresses of all Tenants with respect to the
Included Asset Pool or under other net leases who are more than sixty
(60) days delinquent in paying any franchise, business, intangible, or
personal property taxes and the property with respect to which such
payments are delinquent.
(d) Part IV of Schedule 6.20 properly identifies all leases in which
Borrower holds an interest as lessor or assignee of the lessor that
have been amended, modified, restated or supplemented within the
previous twelve (12) calendar months to prevent or cure any
delinquency of the lessee thereunder.
Section 6.21 Payment of Corporate and Franchise Taxes.
Each of the Combined Parties has paid all corporate and franchise taxes
due as of the date hereof.
Section 6.22 Existing Secured and Unsecured Indebtedness.
Part I of Schedule 6.22 is, as of the Agreement Date, a complete and
correct listing of all Indebtedness of each of the Parents, the Borrower and the
other Subsidiaries, including all guaranties and all letters of credit and
acceptance facilities extended to any such Person, and indicating whether such
Indebtedness is Secured Indebtedness or Unsecured Indebtedness. As of the
Agreement Date, no default or event of default, or event or condition which with
the giving of notice, the lapse of time, or both, would constitute such a
default or event of default, exists with respect to any such Indebtedness. Part
II of Schedule 6.22 is, as of the Agreement Date, a complete and correct listing
of all Contingent Obligations of the Borrower and the other Subsidiaries.
Section 6.23 Material Contracts.
Schedule 6.23 is a true, correct and complete listing of all Material
Contracts as of the Agreement Date. No default or event of default, or event or
condition which with the giving of notice, the lapse of time, a determination of
materiality, the satisfaction of any other condition or any combination of the
foregoing, would constitute such a default or event of default, exists with
respect to any such Material Contract.
Section 6.24 Collateral/Business Locations.
Set forth on Part I of Schedule 6.24 is a list of all locations where
any tangible personal property of a Combined Party is located as of the Closing
Date. Set forth on Part II of Schedule 6.24 is the chief executive office and
principal place of business of each Combined Party as of the Closing Date.
Section 6.25 Full Disclosure.
Neither this Credit Agreement nor any financial statements delivered to
the Lender Parties nor any other document, certificate or statement furnished to
the Lenders by or on behalf of any Combined Party in connection with the
negotiation, preparation or execution of this Credit Agreement or any of the
other Credit Documents contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements contained
therein or herein not misleading.
Section 6.26 No Burdensome Restrictions.
No Combined Party is a party to any agreement or instrument or subject
to any other obligation or any charter or corporate restriction or any provision
of any applicable law, rule or regulation which, individually or in the
aggregate, could have a Material Adverse Effect.
Section 6.27 Brokers' Fees.
No Combined Party has any obligation to any Person in respect of any
finder's, broker's, investment banking or other similar fee in connection with
any of the transactions contemplated under the Credit Documents.
Section 6.28 Labor Matters.
There are no collective bargaining agreements or Multiemployer Plans
covering the employees of a Combined Party as of the Closing Date and none of
the Combined Parties has suffered any strikes, walkouts, work stoppages or other
material labor difficulty within the last five years.
Section 6.29 Affiliate Transactions, Restrictions on Dividend, Etc.
Except as permitted by Section 8.13, none of the Borrower, the Parents
or any other Subsidiary is a party to or bound by any agreement or arrangement
(whether oral or written) to which any Affiliate of the Borrower, the Parents or
any other Subsidiary is a party. None of the Parents, the Borrower or any other
Subsidiary is a party to any agreement or arrangement which contains or imposes
encumbrances or restrictions prohibited by Section 8.5(c).
Section 6.30 Status of Combined Parties.
(a) Each of the B-Piece Subsidiary and the Net Lease Subsidiary (i) are
"bankruptcy remote" entities, (ii) are Qualified REIT Subsidiaries and
(iii) are required by their respective operating agreements, bylaws or
other organizational documents to distribute to the Borrower in the
form of dividends or otherwise all cash flow generated by such entity
to the extent permitted by the terms and conditions of any present or
future Term Securitization entered into by such entity.
(b) The Borrower, the Parents and each of the other Combined Parties are
Qualified REIT Subsidiaries and APF is qualified as a REIT. Any
affirmation of this representation following the date hereof shall be
with respect to APF until the date of the Reorganization and the New
REIT following the date of the Reorganization.
Section 6.31 Nature of Business.
As of the Agreement Date, each Parent, the Borrower and the
Subsidiaries thereof are engaged (i) principally in the business of (A) owning,
developing, managing and providing secured financing for Real Property assets
and similar interests in leasehold property which are owned by or net leased to
restaurant operators, (B) ancillary businesses that are incidental to the
foregoing and (ii) in activities and businesses that do not violate any
agreements, contracts or other arrangements (including, without limitation,
non-compete agreements) to which such Person is a party.
Section 6.32 Rabo Facility.
There has occurred no default or event of default under the Rabo
Facility, and the current maturity date of the Borrower's obligations thereunder
is October 14, 2002.
Section 6.33 Real Property Interests.
(a) Part I of Schedule 6.33 properly sets forth all of the Real Property
interests (and the Values thereof) held by the Borrower that
constitute, as of the date hereof, the Underlying Assets. The
Administrative Agent has approved the contents of the Included Asset
Pool as of the date hereof. As of the Agreement Date, the appropriate
Credit Parties have good and insurable fee simple title (or leasehold
title if so designated on such Schedule) to the applicable Real
Properties. As of the date hereof, there are no mortgages, deeds of
trust, indentures, debt instruments or other agreements creating a
Lien against any of such Credit Party's right, title or interest in
any such real property or any other property or assets of either
Parent, the Borrower or any other Subsidiary except for Permitted
Liens.
(b) The Borrower has executed (i) a Mortgage Instrument or Assignment of
Mortgage, as applicable, and (ii) an Assignment of Leases or
Assignment of Assignment of Leases, as applicable, with respect to
each of the Real Properties set forth in Part I of Schedule 6.33;
provided, that, such Assignments of Leases or Assignments of
Assignment of Leases may be included in any applicable Mortgage
Instrument or Assignment of Mortgage and need not be located in a
separate document.
(c) Part II of Schedule 6.33 sets forth each of the Real Properties in
which the Borrower has an ownership interest that is not listed in
Part I of Schedule 6.33 and each of the Real Properties in which each
Credit Party has an ownership interest.
(d) Part III of Schedule 6.33 properly sets forth (i) all Excluded Assets
of the Borrower as of the date hereof and (ii) a current statement of
accounts receivable of the Borrower that are more than thirty (30)
days past due.
Section 6.34 Accuracy and Completeness of Information.
All written information, reports and other papers and data (excluding
financial projections) furnished to the Administrative Agent, the Sole Lead
Arranger or any Lender Party by, on behalf of, or at the direction of, the
Borrower, either Parent or any other Subsidiary were, at the time the same were
so furnished, complete and correct in all material respects, or, in the case of
financial statements, present fairly, in all material respects and in accordance
with GAAP consistently applied throughout the periods involved, the financial
position of the Persons involved as at the date thereof and the results of
operations for such periods. All financial projections prepared by or on behalf
of either Parent, the Borrower or any other Subsidiary that have been or may
hereafter be made available to the Administrative Agent or any Lender Party were
or will be prepared in good faith based on reasonable assumptions. No fact is
known to either Parent which has had, or may in the future have (so far as such
Parent can reasonably foresee), a Material Adverse Effect which has not been set
forth in the financial statements delivered in connection with Section 5.1) or
in such information, reports or other papers or data or otherwise disclosed in
writing to the Administrative Agent and the Lenders prior to the Effective Date.
Section 6.35 Survival of Representations and Warranties, Etc.
All statements contained in any certificate, financial statement or
other instrument delivered by or on behalf of the Borrower, either Parent or any
other Subsidiary to the Administrative Agent, the Issuing Agent, the Sole Lead
Arranger or any Lender Party pursuant to or in connection with this Credit
Agreement or any of the other Credit Documents (including, but not limited to,
any such statement made in or in connection with any amendment thereto or any
statement contained in any certificate, financial statement or other instrument
delivered by or on behalf of the Borrower prior to the Agreement Date and
delivered to the Administrative Agent, the Issuing Agent, the Sole Lead Arranger
or any Lender Party in connection with closing the transactions contemplated
hereby) shall constitute representations and warranties made by the Borrower
under this Credit Agreement. All representations and warranties made under this
Credit Agreement and the other Credit Documents shall be deemed to be made at
and as of the Agreement Date, the Effective Date and at and as of the date of
the occurrence of any Credit Event, except to the extent that such
representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have been true and accurate
on and as of such earlier date) and except for changes in factual circumstances
specifically permitted hereunder. All such representations and warranties shall
survive the effectiveness of this Credit Agreement, the execution and delivery
of the Credit Documents and the making of the Loans and issuance of Letters of
Credit.
ARTICLE VII
AFFIRMATIVE COVENANTS
For so long as this Credit Agreement is in effect, unless the Required
Lenders (or, if required pursuant to Section 11.5, all of the Lender Parties)
shall otherwise consent in the manner set forth in Section 11.5, the Credit
Parties shall comply with the following covenants:
Section 7.1 Information Covenants.
The Credit Parties will furnish, or cause to be furnished, to the Agent
and each of the Lender Parties:
(a) Annual Financial Statements. As soon as available, and in any event
within 120 days after the close of each calendar year, (i) a
consolidated and consolidating balance sheet and income statement for
the Combined Parties, (ii) a balance sheet and income statement for
the Borrower and its Subsidiaries and (iii) a consolidated and
consolidating balance sheet and income statement for, prior to the
Reorganization, APF and, following the Reorganization, the New REIT,
each as of the end of such calendar year, together with related
consolidated and consolidating statements, as applicable, of retained
earnings and cash flows for such calendar year, in each case setting
forth in comparative form consolidated and consolidating figures for
the preceding calendar year, all such financial information described
above to be in reasonable form and detail and audited by independent
certified public accountants of recognized national standing
reasonably acceptable to the Agent and whose opinion shall be to the
effect that such financial statements have been prepared in accordance
with GAAP (except for changes with which such accountants concur) and
shall not be limited as to the scope of the audit or qualified as to
the status of APF (or, if applicable, the New REIT), the Combined
Parties or the Borrower as going concerns or any other material
qualifications or exceptions.
(b) Quarterly Financial Statements. Commencing with the calendar quarter
ending September 30, 2000, as soon as available, and in any event
within 75 days after the close of each calendar quarter for each
calendar quarter up to and including the calendar quarter ending March
31, 2001 and within 60 days after the close of each calendar quarter
for each calendar quarter thereafter, (i) a consolidated and
consolidating balance sheet and income statement for the Combined
Parties, (ii) a balance sheet and income statement for the Borrower
and its Subsidiaries and (iii) a consolidated and consolidating
balance sheet and income statement for, prior to the Reorganization,
APF and, following the Reorganization, the New REIT, each as of the
end of such calendar quarter, together with related consolidated and
consolidating statements of retained earnings and cash flows for such
calendar quarter, in each case setting forth in comparative form
consolidated and consolidating figures for the corresponding period of
the preceding calendar year, all such financial information described
above to be in reasonable form and detail and reasonably acceptable to
the Agent, and accompanied by a certificate of an Executive Officer of
the Borrower to the effect that such quarterly financial statements
fairly present in all material respects the financial condition of APF
(or, if applicable, the New REIT), the Combined Parties and/or the
Borrower, as applicable, and have been prepared in accordance with
GAAP, subject to changes resulting from audit and normal year-end
audit adjustments.
(c) Excluded Assets/Past Due Account Receivable. As soon as available, and
in any event within ten (10) days after the last day of each calendar
quarter, (i) an update of Part III of Schedule 6.33, and (ii) a
complete list of all past due accounts receivable of the Parents, the
Borrower and their Consolidated Subsidiaries.
(d) Officer's Certificate. At the time the quarterly or annual financial
statements are furnished pursuant to Sections 7.1(a) and (b), and
within 5 Business Days of the Administrative Agent's request with
respect to any other fiscal period, a certificate substantially in the
form of Exhibit K (a "Compliance Certificate") executed by the chief
financial officer of each Parent:
(i) setting forth in reasonable detail as at the end of such
quarterly accounting period (and based on the financial statements
delivered for such period), calendar year, or other period, as the case
may be, the calculations required to establish whether or not the
Parents and the Borrower were in compliance with the covenants or
requirements contained in Sections 7.11, 7.12, 7.24, 8.1(c), 8.1(g),
8.3, 8.4(g), 8.4(j), 8.7, 8.8, 8.10, 8.13 (regarding amount of
consideration) and 8.14, and the thresholds established in Section
7.20(d) with respect to the covenants contained in Section 7.11,
clauses (a), (e) and (f);
(ii) stating that, to the best of his or her knowledge,
information and belief, no Default or Event of Default exists, or, if
such is not the case, specifying such Default or Event of Default and
its nature, when it occurred, whether it is continuing and the steps
being taken by the Parents with respect to such event, condition or
failure;
(iii) updating the Borrower's status with respect to the Rabo
Facility, including the outstanding principal balance thereof and
interest due thereunder;
(iv) updating each part of Schedule 6.33 and restating the
representations made in Section 6.33 as of the date of the issuance of
such certification; provided that Part I of Schedule 6.33 shall not be
altered to delete any Properties listed thereon except to the extent
permitted in Section 7.20;
(v) updating Schedule 6.13 to accurately reflect the corporate
structure, Subsidiaries and the Joint Ventures the Combined Parties are
currently involved in and attaching all Joinder Agreements executed
pursuant to Section 7.16 during the immediately preceding calendar
quarter;
(vi) certifying the Borrower's compliance with the covenants
contained herein (including, without limitation, those covenants set
forth in Sections 7.5, 7.18 and 7.21); and
(vii) if there has occurred a material change in the Recording
Amount or if there is any material change in the Underlying Assets,
updating and re-certifying its good faith estimate of the Recording
Amount; provided that any decrease in the Recording Amount reflected in
such quarterly certification must be approved, in writing, by the
Administrative Agent (such approval not to be unreasonably withheld).
(e) Updated Budgets/Pro Forma Financial Statements. Not later than March
31 of each calendar year, pro forma financial statements and operating
budgets for the Combined Parties.
(f) Auditor's Reports. Promptly upon receipt thereof, a copy of any other
report or "management letter" submitted by independent accountants to
any Combined Party in connection with any annual, interim or special
audit of the books of such Person.
(g) Reports/Other Information. Within five (5) days of the transmission,
receipt, execution or approval thereof, (i) copies of any filings and
registrations with, and reports to or from, the Securities and
Exchange Commission, or any successor agency, and copies of all
financial statements, proxy statements, notices and reports as any
Combined Party shall send to its shareholders or to a holder of any
Indebtedness owed by any Combined Party in its capacity as such a
holder, (ii) upon the request of the Agent, all reports and written
information to and from the United States Environmental Protection
Agency, or any state or local agency responsible for environmental
matters, the United States Occupational Health and Safety
Administration, or any state or local agency responsible for health
and safety matters, or any successor agencies or authorities
concerning environmental, health or safety matters, (iii) copies of
all press releases issued by either Parent or any Subsidiary, (iv) a
copy of any amendment to the articles of incorporation, bylaws,
partnership agreement, limited partnership agreement, operating
agreement or other similar organizational documents of either Parent,
the Borrower or any Subsidiary, (v) copies of any Material Contracts
entered into by any Credit Party, and (vi) upon request of the
Administrative Agent, evidence reasonably satisfactory to the
Administrative Agent that (A) either (1) if the Reorganization has not
occurred, APF continues to qualify as a REIT or (2) if the
Reorganization has occurred, that the New REIT continues to qualify as
a REIT and (B) that the Parents, the Borrower and the other
Consolidated Subsidiaries continue to maintain their status as
Qualified REIT Subsidiaries.
(h) Notices. Upon any Executive Officer of a Credit Party obtaining
knowledge thereof, the Credit Parties will give written notice to the
Agent:
(i) immediately of the occurrence of an event or condition
consisting of a Default or Event of Default, specifying the nature and
existence thereof and what action the Credit Parties propose to take
with respect thereto;
(ii) immediately of any event which constitutes or which with
the passage of time, the giving of notice, or otherwise, would
constitute a default or event of default by either Parent, the Borrower
or any other Subsidiary under any Material Contract to which any such
Person is a party or by which any such Person or any of its respective
properties may be bound;
(iii) immediately of any default or event of default, or event
or condition which with the giving of notice, the lapse of time, or
both, would constitute such a default or event of default, with respect
to any Indebtedness of either Parent, the Borrower or any other
Subsidiary having an aggregate outstanding principal amount of
$1,000,000 or more;
(iv) promptly in the event any Credit Party discovers or
determines that the Year 2000 Problem has resulted in, or is reasonably
expected to result in, a Material Adverse Effect.;
(v) within ten (10) days of any change in the chief operating
officer, chief executive officer or chief financial officer of any
Combined Party;
(vi) immediately of any change in the business, properties,
condition (financial or otherwise), results of operations, performance
or prospects of any Combined Party which has had or could reasonably be
expected to have a Material Adverse Effect;
(vii) within five (5) days of the filing of any order,
judgment or decree in excess of $500,000 against any Combined Party or
any of their respective properties or assets;
(viii) as soon as practicable and in any event within ten (10)
days after any Person becomes a direct or indirect Subsidiary of either
Parent, notice of such event setting forth information in reasonable
detail describing all of the assets of such Person;
(ix) on a quarterly basis of all material insurance claims and
proceeds (including those generated from business interruption
insurance) with respect to or in connection with any assets included in
the calculation of the Unencumbered Asset Value;
(x) immediately in the event that any Underlying Asset and/or
listed on Part I of Schedule 6.33 to the Borrower's best knowledge
becomes an Excluded Asset;
(xi) promptly of the proposed Significant Asset Disposition of
a Combined Party to any other Combined Party or other Person; and
(xii) immediately of the occurrence of any of the following
with respect to any Combined Party (X) the pendency or commencement of
any litigation, arbitral or governmental proceeding against such Person
which if adversely determined is likely to have a Material Adverse
Effect or (Y) the institution of any proceedings against such Person
with respect to, or the receipt of notice by such Person of potential
liability or responsibility for violation, or alleged violation of any
Federal, state or local law, rule or regulation, including but not
limited to, Environmental Laws, the violation of which could have a
Material Adverse Effect.
(i) ERISA. Upon any Executive Officer of a Credit Party obtaining
knowledge thereof, the Credit Parties will give written notice to the
Agent promptly (and in any event within five Business Days) of: (i)
any event or condition, including, but not limited to, any Reportable
Event, that constitutes, or might reasonably lead to, an ERISA Event;
(ii) with respect to any Multiemployer Plan, the receipt of notice as
prescribed in ERISA or otherwise of any withdrawal liability assessed
against the Credit Parties or any ERISA Affiliates, or of a
determination that any Multiemployer Plan is in reorganization or
insolvent (both within the meaning of Title IV of ERISA); (iii) the
failure to make full payment on or before the due date (including
extensions) thereof of all amounts which any Combined Party or any
ERISA Affiliate is required to contribute to each Plan pursuant to its
terms and as required to meet the minimum funding standard set forth
in ERISA and the Code with respect thereto; or (iv) any change in the
funding status of any Plan that could have a Material Adverse Effect,
together with a description of any such event or condition or a copy
of any such notice and a statement by an Executive Officer of the
Borrower briefly setting forth the details regarding such event,
condition, or notice, and the action, if any, which has been or is
being taken or is proposed to be taken by the Credit Parties with
respect thereto. Promptly upon request, the Credit Parties shall
furnish the Agent and the Lender Parties with such additional
information concerning any Plan as may be reasonably requested,
including, but not limited to, copies of each annual report/return
(Form 5500 series), as well as all schedules and attachments thereto
required to be filed with the Department of Labor and/or the Internal
Revenue Service pursuant to ERISA and the Code, respectively, for each
"plan year" (within the meaning of Section 3(39) of ERISA).
(j) Environmental.
(i) Upon the reasonable written request of the Agent based on
the Agent's reasonable concern regarding the environmental conditions
with respect to any Underlying Asset, the Credit Parties will furnish
or cause to be furnished to the Agent, at the Credit Parties' expense,
a report of an environmental assessment of reasonable scope, form and
depth, (including, where appropriate, invasive soil or groundwater
sampling) by a consultant reasonably acceptable to the Agent as to the
nature and extent of the presence of any Materials of Environmental
Concern on such Real Properties and as to the compliance by any
Combined Party with Environmental Laws at such Real Properties. If the
Credit Parties fail to deliver such an environmental report within
seventy-five (75) days after receipt of such written request then the
Agent may arrange for same, and the Combined Parties hereby grant to
the Agent and their representatives access to the Real Properties to
reasonably undertake such an assessment (including, where appropriate,
invasive soil or groundwater sampling). The reasonable cost of any
assessment arranged for by the Agent pursuant to this provision will be
payable by the Credit Parties on demand and added to the obligations
secured by the Collateral Documents.
(ii) Within thirty (30) days of the addition of any Underlying
Asset to the Included Asset Pool, copies of the most recent
environmental reports or assessments in the possession of the Borrower
or any Combined Party and any other earlier or supplemental reports or
assessments in the possession of the Borrower or any other Combined
Party requested by the Administrative Agent in connection therewith.
(k) Requested Additional Information. From time to time and promptly upon
each request, such data, certificates, reports, statements, documents
or further information regarding the business, properties, condition
(financial or otherwise), results of operations or performance of the
Parents, the Borrower, any other Subsidiary (including any Special
Purpose Entity or any other Excluded Subsidiary), or any
Unconsolidated Affiliate, corporate resolutions of any Credit Party,
contribution agreements, indemnifications (including environmental),
legal opinions and information regarding the Reorganization as the
Administrative Agent (or any Lender Party through the Administrative
Agent) may reasonably request.
This Section 7.1 and the reporting requirements contained herein shall not be
construed so as to allow the Borrower or any other Combined Party to (i) perform
or fail to perform any actions required, (ii) maintain or fail to maintain any
status required, or (iii) in any way avoid any of their respective obligations
under this Credit Agreement or the other Credit Documents.
In the event that any Lender Party requests any documents, reports or other
information provided by the Combined Parties to the Collateral Agent or the
Administrative Agent pursuant to Articles V, VI, VII and VIII hereof, the
Collateral Agent or Administrative Agent, as applicable, shall deliver or
otherwise provide such materials to such requesting Lender Party within thirty
(30) days of such request.
Section 7.2 Preservation of Existence and Franchises.
Except as a result of or in connection with a dissolution, merger or
disposition of a Subsidiary not prohibited by Section 8.9 or Section 8.10, each
Credit Party will, and will cause each of its Subsidiaries to, do all things
necessary to preserve and keep in full force and effect its existence, rights,
franchises and authority. Each Combined Party shall remain qualified and in good
standing in each jurisdiction in which the failure to so qualify and be in good
standing could have a Material Adverse Effect
Section 7.3 Books and Records.
Each Credit Party will, and will cause each of its Subsidiaries to,
keep complete and accurate books and records of its transactions in accordance
with good accounting practices on the basis of GAAP.
Section 7.4 Compliance with Law.
Each Credit Party will, and will cause each of its Subsidiaries to,
comply with (i) all laws, rules, regulations and orders, and all applicable
restrictions imposed by all Governmental Authorities, applicable to it and its
Property if noncompliance with any such law, rule, regulation, order or
restriction could have a Material Adverse Effect and (ii) all terms and
conditions of all Material Contracts to which it is a party.
Section 7.5 Payment of Taxes and Other Indebtedness.
Each of the Parents and the Borrower will, and will cause each of their
respective Subsidiaries to, pay and discharge (a) all taxes (including, without
limitation, any corporate or franchise taxes), assessments and governmental
charges or levies imposed upon it, or upon its income or profits, or upon any of
its properties, before they shall become delinquent, (b) all lawful claims
(including claims for labor, materials and supplies) which, if unpaid, might
give rise to a Lien upon any of its properties, and (c) except as prohibited
hereunder, all of its other Indebtedness as it shall become due; provided,
however, that none of the Parents, the Borrower or their respective Subsidiaries
shall be required to pay any such tax, assessment, charge, levy, claim or
Indebtedness which is being contested in good faith by appropriate proceedings
and as to which adequate reserves therefor have been established in accordance
with GAAP, unless the failure to make any such payment (i) could give rise to an
immediate right to foreclose on a Lien securing such amounts or (ii) could have
a Material Adverse Effect.
Section 7.6 Insurance.
(a) In addition to the requirements of any of the other Credit Documents,
the Parents and the Borrower shall maintain, and cause each of their
respective Subsidiaries, or with respect to any Real Property leased
by the Borrower to a lessee, use its best efforts to cause such
lessee, to maintain, insurance with financially sound and reputable
insurance companies against such risks and in such amounts as is
customarily maintained by Persons engaged in similar businesses or as
may be required by Applicable Law, and the Borrower will from time to
time deliver to the Administrative Agent upon its request, or to any
Lender Party upon request through the Administrative Agent, a detailed
list, together with copies of all policies of the insurance then in
effect, stating the names of the insurance companies, the amounts and
rates of the insurance, the dates of the expiration thereof and the
properties and risks covered thereby. Not in limitation of the
foregoing, each the Parents and the Borrower shall, and shall cause
its respective Subsidiaries to, or with respect to any Real Property
leased by the Borrower to a lessee, use its best efforts to cause such
lessee to, maintain builder's risk insurance during any period of
construction and, upon completion, "all risk" insurance in an amount
equal to (A) 100% of the replacement cost of the improvements, if any,
on at least 85% (determined by number of parcels) of its Real Property
assets and (B) 90% of such replacement cost on no more than 15%
(determined by number of parcels) of its Real Property assets, in all
cases with insurers having an A.M. Best policyholder's rating of not
less than A- and financial size category of not less than X (except
where any failure to obtain such insurance coverage would not, on a
cumulative basis, be likely have or cause a Material Adverse Effect),
which insurance shall in any event not provide for materially less
coverage than the insurance in effect on the date hereof. The Borrower
will deliver to the Lender Parties (i) upon request of any Lender
Party through the Administrative Agent from time to time full
information as to the insurance carried (ii) within 10 days of receipt
of notice from any insurer a copy of any notice of cancellation or
material change in coverage from that existing on the date hereof and
(iii) promptly upon receipt, notice of any cancellation or nonrenewal
of coverage by either Parent, the Borrower or any other Subsidiary
thereof.
(b) In the event that the Combined Parties receive Net Cash Proceeds in
excess of $25,000,000 in aggregate amount during any calendar year of
the Combined Parties ("Excess Proceeds") on account of any loss of,
damage to or destruction of, or any condemnation or other taking for
public use of, any Property of the Combined Parties (with respect to
any Combined Party, an "Involuntary Disposition"), the Credit Parties
shall, within the period of 180 days following the date of receipt of
such Excess Proceeds if so required, apply (or cause to be applied) an
amount equal to such Excess Proceeds to prepay the Loans (and cash
collateralize LOC Obligations) in accordance with the terms of Section
3.2(b); provided, however, that such Person shall not undertake
replacement or restoration of such Property unless, after giving pro
forma effect to any Indebtedness to be incurred in connection with
such replacement or restoration, the Credit Parties would be in
compliance with the financial covenants set forth in Sections 7.11,
7.12, 7.20, 7.24, 8.1(c), 8.1(g), 8.3, 8.4(g), 8.4(j), 8.7, 8.8, 8.10,
8.13 (regarding amount of consideration), and 8.14 as of the most
recent calendar quarter end preceding the date of determination with
respect to which the Administrative Agent has received the Required
Financial Information (assuming, for purposes hereof, that such
Indebtedness was incurred as of the first day of the four
calendar-quarter period ending as of such calendar quarter end). All
insurance proceeds shall be subject to the security interest of the
Collateral Agent (for the benefit of the Lender Parties) under the
Collateral Documents. Pending final application of any Excess
Proceeds, the Credit Parties may apply such Excess Proceeds to
temporarily reduce the Revolving Loans or to make Permitted
Investments.
Section 7.7 Maintenance of Property.
In addition to the requirements of any of the other Loan Documents, the
Borrower and the Parent shall (a) protect and preserve, and cause each other
Subsidiary, or with respect to any material Real Property Asset leased by the
Borrower, any Subsidiary or the Parent to a lessee, use its best efforts to
cause such lessee, to protect and preserve, all of its material properties (or
any such Real Property Asset in the case of any such lessee), and maintain, or
use its best efforts to cause such lessee to maintain, in good repair, working
order and condition all tangible properties necessary to their respective
operations (or any such Real Property Asset if the case of any such lessee),
ordinary wear and tear excepted, and (b) from time to time make, or use its best
efforts to cause to be made, all needed and appropriate repairs, renewals,
replacements and additions to such properties (or any such Real Property Asset
in the case of any such lessee), so that the business carried on in connection
therewith may be properly and advantageously conducted at all times.
Section 7.8 Performance of Obligations.
Each Credit Party will, and will cause each of its Subsidiaries to,
perform in all material respects all of its obligations under the terms of all
material agreements, indentures, mortgages, security agreements or other debt
instruments to which it is a party or by which it is bound.
Section 7.9 Visits and Inspections.
Each Parent and the Borrower shall permit, and cause each other
Subsidiary to permit, representatives or agents of any Lender Party or the
Administrative Agent, from time to time after reasonable prior notice if no
Event of Default shall be in continuance, as often as may be reasonably
requested, but only during normal business hours, and at the expense of such
Lender Party or the Administrative Agent (unless an Event of Default shall be
continuing in which case the exercise by the Administrative Agent of its rights
under this Section shall be at the expense of the Borrower), as the case may be,
to: (a) visit and inspect all properties of the Parents, the Borrower or such
other Subsidiary to the extent any such right to visit or inspect is within the
control of such Person; (b) inspect and make extracts from their respective
books and records, including but not limited to management letters prepared by
independent accountants; and (c) discuss with its principal officers, and its
independent accountants, its business, properties, condition (financial or
otherwise), results of operations and performance. If requested by the
Administrative Agent, the Borrower or either Parent, as appropriate, shall
execute an authorization letter addressed to its accountants authorizing the
Administrative Agent or any Lender Party to discuss the financial affairs of
such Parent, the Borrower and any other Subsidiary with its accountants.
Section 7.10 Use of Proceeds/Purpose of Loans and Letters of Credit.
The Borrower shall use the proceeds of all Loans and use Letters of
Credit only for general corporate purposes, including without limitation, (a) to
finance the repayment of Indebtedness (both principal and interest) of the
Borrower or the Indebtedness of the B-Piece Subsidiary, (b) to fund dividends to
either Parent for the purpose of (directly or indirectly through their
subsidiaries) purchasing equity residual interests associated with triple net
lease securitizations or Special Purpose Entity Subsidiaries created for the
purpose of holding such residual interests, (c) providing financing (i) to its
Special Purpose Entity Subsidiaries for the acquisition of Securitization
Securities rated BB or lower by S&P (or given an equivalent rating by another
nationally recognized rating agency) and as issued by FINCo or its Consolidated
Subsidiaries and for the acquisition of residual interests in net leased Real
Property and the lessor's interest in triple net leases or (ii) for the
acquisition of the equity interests of any Consolidated Subsidiary of FINCo
whose sole purpose is to hold Securitization Securities, (d) to issue letters of
credit to credit enhance and/or provide a guaranty, each for the purpose of
credit supporting the F-VI Facility, provided that such letters of credit and/or
guaranty shall not exceed an aggregate amount of up to $15,000,000 in exposure,
(e) for general working capital or other corporate purposes of the Borrower (to
the extent not inconsistent with the Borrower's covenants and obligations under
this Credit Agreement and the other Credit Documents) and (f) to finance the
acquisition of the New REIT in connection with the Reorganization and according
to the terms and conditions set forth herein. The Borrower shall not, directly
or indirectly, use any part of such proceeds or any Letter of Credit (i) to
purchase or carry, or to reduce or retire or refinance any credit incurred to
purchase or carry, any margin stock (within the meaning of Regulation U of the
Board of Governors of the Federal Reserve System) or to extend credit to others
for the purpose of purchasing or carrying any such margin stock, (ii) to repay
Indebtedness unless such Indebtedness is (A) the result of the Rabo Facility,
(B) Indebtedness evidenced by the Existing Credit Agreement or (C) Indebtedness
otherwise permitted hereunder (except to the extent incurred in accordance with
Section 8.1(m)), or (iii) purchase its own Capital Stock.
Section 7.11 Financial Covenants.
(a) Combined Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio
of the Combined Parties shall (i) at all times through and including
December 31, 2000, be greater than or equal to 1.75 to 1.00 and (ii)
at all times after December 31, 2000, be greater than or equal to 1.25
to 1.00.
(b) Combined Minimum Tangible Net Worth. At all times the Tangible Net
Worth of the Combined Parties shall equal or exceed the sum of
$500,000,000, increased on a cumulative basis as of the end of each
calendar quarter of the Combined Parties, commencing with the calendar
quarter ending June 30, 2000 by an amount equal to eighty-five percent
(85%) of the aggregate Net Cash Proceeds of all Equity Issuances
effected by any Combined Party after the date hereof to any Person
other than a Combined Party during such calendar quarter.
(c) Maximum Combined Leverage Ratio. The Leverage Ratio of the Combined
Parties shall (i) through and including the earlier of (A) December
31, 2000 or (B) a Significant Capital Event, be less than or equal to
0.55 to 1.00 and (ii) at all times thereafter, be less than or equal
to 0.75 to 1.00.
(d) Combined Distribution Limitation. The Combined Parties may declare or
make cash distributions to their shareholders (excluding any
shareholders which are Combined Parties) in an aggregate amount not to
exceed the sum of (i) $10,000,000 plus Funds From Operations during
the period beginning as of the date hereof and ending on June 30,
2001, and (ii) $5,000,000 plus Funds From Operations during the period
beginning June 30, 2001 and ending June 30, 2002.
(e) Borrower Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio
of the Borrower shall, at all times, be greater than or equal to 2.00
to 1.0.
(f) Borrower Minimum Unencumbered Interest Coverage Ratio. The Borrower's
Unencumbered Interest Coverage Ratio shall equal or exceed (i) 2.75 to
1.00 at all times when the Borrower's total Secured Indebtedness is
less than or equal to $85,000,000 and (ii) 3.00 to 1.00 at all times
when the Borrower's total Secured Indebtedness is greater than
$85,000,000.
(g) Maximum Borrower Leverage Ratio. The Leverage Ratio of the Borrower
and its Consolidated Subsidiaries shall at all times during the term
of this Agreement be less than or equal to 0.55 to 1.00.
(h) Borrower Liquidity. The Borrower shall at all times maintain a
Liquidity Amount equal to or greater than $10,000,000.
(i) Unencumbered Asset Leverage Ratio. The Unencumbered Asset Leverage
Ratio shall (i) through and including the earlier of (A) December 31,
2000 or (B) a Significant Capital Event, be less than or equal to 0.50
to 1.00 and (ii) at all times thereafter, be less than or equal to
0.40 to 1.00.
Section 7.12 Distributions of Income to the Borrower.
Subject to any encumbrances or restrictions permitted under Section
8.5(c), the Parents and the Borrower shall cause all of the Subsidiaries of the
Borrower to distribute (directly or indirectly through any intermediate
Subsidiaries) to the Borrower and pro rata to holders of Equity Interests in
such Subsidiaries, not less frequently than once each calendar quarter of the
Borrower and whether in the form of dividends, distributions or otherwise, all
profits, proceeds or other income relating to or arising from its Subsidiaries'
use, operation, financing, refinancing, sale or other disposition of their
respective assets and properties after (a) the payment by each Subsidiary of its
applicable portion of total Indebtedness service and operating expenses for such
quarter and (b) the establishment of reasonable reserves for the payment of
operating expenses not paid on at least a quarterly basis and capital
improvements to be made to such Subsidiary's assets and properties approved by
such Subsidiary in the ordinary course of business consistent with its past
practices.
Section 7.13 Environmental Matters.
Each of the Parents and the Borrower shall comply, and cause each of
their Subsidiaries to comply, with all Environmental Laws the failure with which
to comply could reasonably be expected to have a Material Adverse Effect. If
either of the Parents, the Borrower or any of their Subsidiaries shall (a)
receive notice that any violation of any Environmental Law may have been
committed or is about to be committed by such Person, (b) receive notice that
any administrative or judicial complaint or order has been filed or is about to
be filed against either of the Parents, the Borrower or any other Subsidiary
thereof alleging violations of any Environmental Law or requiring any such
Person to take any action in connection with the release of Hazardous Materials
or (c) receive any notice from a Governmental Authority or private party
alleging that any such Person may be liable or responsible for costs associated
with a response to or cleanup of a release of a Hazardous Materials or any
damages caused thereby, and such notices or events to which they relate,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, the Borrower shall provide the Administrative Agent
with a copy of such notice within 10 days after the receipt thereof by either
Parent, the Borrower or any Subsidiary thereof. The Parents and the Borrower
shall, and shall cause each of their Subsidiaries to, take promptly all actions
necessary to prevent the imposition of any Liens on any of their respective
properties arising out of or related to any Environmental Laws.
Section 7.14 REIT Status.
(a) The Borrower, the Parents and each of the other Combined Parties
shall, for the entire term of this Credit Agreement, retain their
Qualified REIT Subsidiary status.
(b) APF shall, at all times up to and including the date of the
Reorganization, maintain its status as a REIT.
(c) The New REIT shall, at all times following the Reorganization,
maintain its status as a REIT.
Section 7.15 ERISA Exemptions.
Each Parent and the Borrower shall not, and shall not permit any other
Subsidiary to, permit any of its respective assets to become or be deemed to be
"plan assets" within the meaning of ERISA, the Code and the respective
regulations promulgated thereunder.
Section 7.16 New Subsidiaries; Joint Ventures.
Upon the acquisition, incorporation or other creation of any Subsidiary
of any Credit Party (other than an Excluded Subsidiary) after the date hereof,
the applicable Parent(s) of such Subsidiary shall cause such Subsidiary to
execute and deliver to the Administrative Agent a Joinder Agreement and a New
Guarantor Guaranty Agreement on or before the deadline for the delivery of the
next Officer's Certificate pursuant to Section 7.1(d) and shall cause such
Subsidiary to deliver such other documentation as the Administrative Agent may
reasonably request in connection with the foregoing, including, without
limitation, certified resolutions and other organizational and authorizing
documents of such Subsidiary, favorable opinions of counsel to such Subsidiary
(which shall cover, among other things, the legality, validity, binding effect
and enforceability of the documentation referred to above), all in form, content
and scope reasonably satisfactory to the Administrative Agent. Within 10
Business Days of the date on which a Joint Venture that is a Subsidiary shall
own more than a single parcel of real property (and the improvements thereon),
the applicable Parent(s) shall cause such Joint Venture to execute and deliver
to the Administrative Agent a Joinder Agreement, a New Guarantor Guaranty
Agreement and the other items required to be delivered by a Subsidiary under the
preceding sentence. The Borrower shall, following the creation or acquisition of
any new Subsidiaries or Affiliates by any of the Combined Parties, report such
creation or acquisition to the Administrative Agent on or before the deadline
for the delivery of the next Officer's Certificate pursuant to Section 7.1(d)
(and may do so by amending Schedule 6.13). The provisions of this Section 7.16
shall not limit the effect of any other provision contained herein and shall not
be deemed to permit the creation of Subsidiaries in contravention of any
provision contained herein, including Section 8.18.
Section 7.17 Pledged Assets.
Borrower at all times will or will cause each Credit Party to subject
all Underlying Assets (as set forth in Part I of Schedule 6.33) to first
priority Liens in favor of the Collateral Agent to secure the Credit Party
Obligations pursuant to the terms and conditions of the Collateral Documents or,
with respect to any such Real Property acquired subsequent to the Closing Date,
such other additional security documents as the Agent shall reasonably request,
subject in any case to Permitted Liens and (ii) deliver such other documentation
as the Agent may reasonably request in connection with the foregoing, including,
without limitation, appropriate UCC-1 financing statements, real estate title
insurance policies, surveys, environmental reports, landlord's waivers,
certified resolutions and other organizational and authorizing documents of such
Person, favorable opinions of counsel to such Person (which shall cover, among
other things, the legality, validity, binding effect and enforceability of the
documentation referred to above and the perfection of the Agent's liens
thereunder) and other items of the types required to be delivered pursuant to
Section 5.1(d) and (e), all in form, content and scope reasonably satisfactory
to the Agent.
Section 7.18 Interest Rate Protection.
The Credit Parties shall cause the Borrower to maintain protection
against fluctuations in interest rates pursuant to one or more Hedge Agreements
reasonably satisfactory to the Agent (i) on a minimum of $60,000,000 of the
outstanding principal amount of the Loans prior to the occurrence of the
Significant Capital Event and (ii) with respect to a minimum of fifty percent
(50%) of the outstanding principal amount of the Obligations from and after the
Significant Capital Event. All Hedge Agreements from time to time in effect with
respect to the Indebtedness hereunder shall be listed on Schedule 7.18 and
Borrower shall have executed and delivered an Assignment of Hedge Agreement in
favor of the Secured Parties with respect to each such Hedge Agreement. The
Hedge Agreements listed on Schedule 7.18 as of the date hereof are acceptable to
the Administrative Agent.
Section 7.19 Borrower's Deposits
From and after October 31, 2000, the Administrative Agent shall be the
sole and exclusive depository agent of the Borrower and each Parent; provided,
however, that the Borrower shall be permitted to maintain a single disbursement
account with another institution in the State of Florida. Notwithstanding the
foregoing, all revenues and other proceeds received or controlled by the
Borrower or the Combined Parties from and after July 15, 2000 will be deposited
into accounts with the Administrative Agent.
Section 7.20 Recording of Mortgage Instruments and Other Real Property
Interests.
(a) Subject to the provisions of Section 8.19, the Borrower shall not (i)
take, approve of or consent to any action (including, without
limitation, any sale or other disposition of any interest of the
Borrower) that in any manner interferes with or could interfere with,
the interests, rights and remedies of the Secured Parties created by
any Mortgage Instruments, Assignments of Mortgages, Assignments of
Leases or Assignments of Assignments of Leases, as applicable, in the
Included Asset Pool or (ii) remove any item from Part I of Schedule
6.33, in each case unless (A) the Borrower first (1) identifies
replacement properties acceptable to the Administrative Agent
("Replacement Properties") to replace those Real Property interests
being affected pursuant to clauses (i) and/or (ii) above, (2) delivers
fully executed and notarized (x) Mortgage Instruments or Assignments
of Mortgages, as applicable and (y) Assignments of Leases or
Assignments of Assignments of Leases, as applicable, with respect to
each Replacement Property and (3) obtains the written consent of the
Administrative Agent, not to be unreasonably withheld, to such
replacement and acknowledgement of the sufficiency of the Replacement
Properties or (B) the Borrower and the Combined Parties, to the extent
applicable, remain in compliance with all covenants and conditions
hereunder after giving effect to the removal of such item from Part I
of Schedule 6.33. The Administrative Agent shall execute appropriate
release documents for any item properly removed from Part I of
Schedule 6.33 in accordance with this Section 7.20(a).
(b) No Underlying Asset referenced in Part I Schedule 6.33 shall be (i) an
Excluded Asset or (ii) Flood Hazard Property (except to the extent the
Borrower has provided the Administrative Agent with evidence,
satisfactory to the Administrative Agent, that it has obtained, or
caused to be obtained, proper flood insurance coverage with respect to
such Real Property). In the event that any Underlying Asset referenced
in Part I Schedule 6.33 becomes an Excluded Asset or a Flood Hazard
Property meeting the requirements of clause (ii) above, either (A) the
Borrower shall, within thirty (30) days of such event, identify
Replacement Properties with respect to such Real Property, deliver
fully executed and notarized (1) Mortgage Instruments or Assignments
of Mortgages, as applicable and (2) Assignments of Leases or
Assignments of Assignments of Leases, as applicable, with respect to
each Replacement Property and (3) obtain the written consent of the
Administrative Agent to such replacement and acknowledgement of the
sufficiency of the Replacement Properties or (B) the Borrower and the
Combined Parties, to the extent applicable, shall remain in compliance
with all covenants and conditions hereunder after giving effect to the
exclusion of such Underlying Asset.
(c) The Borrower, at all times, shall have delivered to the Administrative
Agent fully executed and notarized (i) Mortgage Instruments or
Assignments of Mortgages, as applicable and (ii) Assignments of Leases
or Assignments of Assignments of Leases, as applicable, with respect
to each Underlying Asset. The Borrower shall update Part I of Schedule
6.33 immediately upon any change in the assets comprising the
Underlying Assets to accurately reflect the contents of the Included
Asset Pool and shall (subject to the requirements set forth in Section
7.20(a) for the execution of documents with respect to Replacement
Properties), promptly following the addition of any Real Properties to
Part I of Schedule 6.33 (and in any event, within 30 days of such
addition), deliver to the Administrative Agent fully executed and
notarized (i) Mortgage Instruments or Assignments of Mortgages, as
applicable and (ii) Assignments of Leases or Assignments of
Assignments of Leases, as applicable, with respect to each such parcel
of Real Property. The Borrower shall update Parts II, III and IV of
Schedule 6.33 quarterly pursuant to Section 7.1(d) to accurately
reflect the Real Property and personal property holdings of the
Borrower.
(d) The Mortgage Instruments, Assignments of Mortgages, Assignments of
Leases and Assignments of Assignments of Leases delivered by the
Borrower to the Administrative Agent in connection with the Real
Property set forth on Part I of Schedule 6.33 shall not be recorded by
the Administrative Agent or any Lender Party unless: (i) one of the
following conditions is met: (A) the Borrower breaches the financial
covenants set forth in Sections 7.11 (a), (e), and (f) by an amount
that is five percent (5%) greater (or less, as applicable) than is
otherwise required by such Sections, (B) the Borrower fails to meet
the covenants set forth in Section 8.10, (C) a Default or Event of
Default exists under this Credit Agreement or (D) the Administrative
Agent, in its sole discretion, determines that Schedule 6.33 contains
a material misrepresentation regarding the Real Property holdings of
the Borrower/Credit Parties and (ii) the Required Lenders vote to
record or cause to be recorded such Mortgage Instruments, Assignments
of Mortgages, Assignments of Leases and Assignments of Assignments of
Leases. Upon the satisfaction of the conditions set forth in clauses
(i) and (ii) above, the Administrative Agent shall record, shall
direct the Borrower to record, or shall otherwise cause to be recorded
each of the Mortgage Instruments, Assignments of Mortgages,
Assignments of Leases and Assignments of Assignments of Leases held as
part of the Included Asset Pool and may obtain or cause to be obtained
any title policies, updates or endorsements it deems necessary.
(e) The Borrower shall immediately (i) pay to the Administrative Agent, in
addition to all other amounts due hereunder, all filing/recording fees
and expenses and all fees and expenses associated with the procurement
of title policies or endorsements (including, without limitation and
with respect to each, any administrative expenses or attorneys' fees)
incurred by the Administrative Agent or any Lender Party at any time
in connection with any filing and/or recording of any Collateral
Document (including, without limitation, the filing/recording of any
Mortgage Instruments, Assignments of Mortgages, Assignments of Leases
or Assignments of Assignments of Leases) and (ii) obtain all landlord
consents necessary for the recordation of such Mortgage Instruments,
Assignments of Mortgages, Assignments of Leases and Assignments of
Assignments of Leases.
The Borrower hereby acknowledges and agrees that in the event the Administrative
Agent files and/or records any Mortgage Instruments pursuant to Section 7.20 (c)
and (d) above, such fees and expenses may be substantial in nature and that its
obligations pursuant to Section 7.20(d) and (e) shall endure regardless of the
amount of such fees and expenses. Notwithstanding anything to the contrary
contained herein, the Assignments of Leases or Assignments of Assignment of
Leases executed by the Borrower with respect to the Underlying Assets may be
included in any applicable Mortgage Instrument or Assignment of Mortgage with
respect to such Underlying Assets and need not be located in a separate
document.
Section 7.21 Further Assurances.
The Borrower shall, from time to time, at the expense of the Borrower,
promptly execute, deliver, file and/or record all further instruments and
documents, and take all further action, that may be necessary or desirable, or
that the Administrative Agent or Collateral Agent may reasonably request
(including, without limitation, the procurement of landlord consents with
respect to the assignment of the Borrower's interests in each of the Underlying
Assets if the Mortgage Instruments, Assignments of Mortgages, Assignments of
Leases or Assignments of Assignments of Leases are recorded in accordance with
Section 7.20(d)), in order to (a) properly evidence the Borrower's Indebtedness
hereunder or under any Credit Document or (b) perfect, continue and protect the
assignment and security interest granted or purported to be granted hereby or
pursuant to any Credit Document and to enable the Administrative Agent and/or
Collateral Agent to exercise and enforce their rights and remedies hereunder and
under any other Credit Document with respect to any Collateral. The Borrower
shall promptly deliver to the Collateral Agent a copy of each such instrument
and evidence of its proper filing or recording, as necessary.
Section 7.22 Management of Entities.
Each of APF's (or, if the Reorganization has occurred, the New REIT's),
the Parents', the B-Piece Subsidiary's and each Net Lease Subsidiary's
respective businesses and affairs will be managed by or under the sole direction
of such entity's board of directors, managing or general partner(s) (whether
corporate or otherwise) or similar governing body. The board of directors of APF
(or, if the Reorganization has occurred, the New REIT), and of each Special
Purpose Entity that is a Subsidiary of either of the Parents or the Borrower
must at all times have at least one Independent Director. All such entities
which are required to have an Independent Director shall not, without the
consent of (each) of its respective Independent Director(s), do any of the
following: (i) file, on its own behalf, a voluntary petition seeking relief
under the provisions of title 11 of the United States Code, (ii) authorize,
cause or consent to the filing, in respect of any subsidiary, a voluntary
petition seeking relief under the provisions of title 11 of the United States
Code; (iii) consent to an involuntary petition that has been filed in respect of
itself or any subsidiary under the provisions of title 11 of the United States
Code; (iv) cause or permit any subsidiary to consent to an involuntary petition
that has been filed in respect of such subsidiary under the provisions of title
11 of the United States Code; (v) file or otherwise commence, or consent to the
filing or commencement of, any action or proceeding under the laws of any State
or under federal law seeking (a) the adjustment of its debts, (b) the adjustment
of the debts of any subsidiary, or (c) the appointment for itself or any
subsidiary, or for a substantial portion of the assets of itself or any
subsidiary, of a trustee, receiver or other person having similar powers and
responsibilities; (vi) assign a substantial portion or all of its assets to a
trustee or other person possessing similar powers for the benefit of its
creditors; (vii) authorize, cause or consent to the assignment of a substantial
portion or all of a subsidiary's assets to a trustee or other person possessing
similar powers for the benefit of its subsidiary's creditors; (viii) admit in
writing its inability to pay its obligations as when such obligations become due
and payable, whether by acceleration or otherwise; or (ix) authorize or cause
any subsidiary to admit in writing its inability to pay its obligations as and
when such obligations become due and payable, whether by acceleration or
otherwise.
Section 7.23 Included Asset Pool.
The Value of the Underlying Assets shall, at all times, be equal to or
greater than $175,000,000; provided, that if a Significant Capital Event has not
occurred as of October 31, 2000, the Value of such assets must, from and after
October 31, 2000, be equal to or greater than the greater of (a) $175,000,000
and (b) two (2) times the sum of the aggregate outstanding principal amount of
the Bridge Loans, plus the aggregate outstanding principal amount of the
Revolving Loans, plus the aggregate principal amount of the outstanding
Swingline Loans, plus the LOC Obligations, plus all other amounts outstanding
pursuant to the terms hereof. Notwithstanding the definition of "Value" as set
forth herein or any other provision herein, in calculating the Value of the
Underlying Assets for purposes of this Section 7.23 only, only 50% of the value
of Qualified Ground Lease Assets included as Underlying Assets shall be included
in determining the Value of the Underlying Assets.
Section 7.24 Borrower Subsidiaries.
(a) The B-Piece Subsidiary shall, at all times during the term hereof, be
required to (i) "upstream" all cash flow to the Borrower and to (ii)
refrain from incurring liabilities, obligations or Indebtedness on
more than 35% of the Value of the assets held in such B-Piece
Subsidiary,
(b) The Net Lease Subsidiary shall, at all times during the term hereof,
be required to "upstream" all cash flow to the Borrower to the extent
permissible under any securitization loan documents executed by the
Net Lease Subsidiary.
Section 7.25 Lockbox Accounts.
(a) The Borrower shall, at all times during the term of this Credit
Agreement maintain a Lockbox Account in favor of the Administrative
Agent pursuant to a Lockbox Agreement with respect to the cash flows
received by the Borrower from the Net Lease Subsidiary and the B-Piece
Subsidiary.
(b) GP shall, at all times during the term of this Credit Agreement
maintain a Lockbox Account in favor of the Administrative Agent
pursuant to a Lockbox Agreement with respect to the cash flows
received by GP from the Borrower, AffiliateCo, CNL Funding 2000-A,
Inc. and CNL Restaurant Bond Holdings, Inc..
(c) LP shall, at all times during the term of this Credit Agreement
maintain a Lockbox Account in favor of the Administrative Agent
pursuant to a Lockbox Agreement with respect to the cash flows
received by LP from the Borrower and AffiliateCo..
(d) Each of the Borrower, the Parents, the B-Piece Subsidiary and the Net
Lease Subsidiary shall deposit all operating revenues into the Lockbox
Accounts created pursuant hereto; provided, that the Administrative
Agent shall not exercise its right to offset and apply any amounts
held in such Lockbox Accounts unless and until a Default or Event of
Default specified in Section 9.1(a) resulting from the Borrower's
failure to pay when due the principal of, or interest on, any of the
Loans or any Fees or under Section 9.1(f) shall have occurred and be
continuing, or if as a result of the occurrence of any other Event of
Default the Obligations have been accelerated pursuant to Section
9.2(a).
Section 7.26 Future Activity in the State of California.
So long as any Underlying Asset is located in the State of California,
the Combined Parties shall not conduct any business or corporate operations or
activities in the State of California except to the extent that (i) such
activity is consistent with the business activities described in Sections 6.15
or 7.10 hereof, (ii) such activity consists solely of the purchase by Special
Purpose Entity Subsidiaries of the Borrower of Real Property-related assets from
FINCo or its Subsidiaries or (iii) the Borrower or any of its Subsidiaries, as
applicable, prior to the commencement of such operations or activities, (A)
delivers to the Administrative Agent an opinion of local counsel in the State of
California stating that such activities and/or operations will not impair the
Collateral Agent's or Secured Parties' ability to exercise their rights and
remedies under the Credit Documents in other states without jeopardizing their
Liens and remedies with respect to collateral located within the State of
California, and (B) obtains the written consent of the Administrative Agent.
Section 7.27 New Guarantors.
In the event that any Subsidiary of the Parents or Borrower that is an
Excluded Subsidiary ceases to be an Excluded Subsidiary and is not, on such
date, listed on Schedule 1, the Borrower and Parents shall cause such
Subsidiary, as soon as possible, and in any event no later than the date of the
delivery of the immediately following Compliance Certificate, to execute and
deliver to the Administrative Agent a Joinder Agreement and a New Guarantor
Agreement with respect to such Subsidiary.
ARTICLE VIII
NEGATIVE COVENANTS
For so long as this Credit Agreement is in effect, unless the Required
Lenders (or, if required pursuant to Section 11.5, all of the Lender Parties)
shall otherwise consent in the manner set forth in Section 11.5, each Parent and
the Borrower shall comply with the following covenants:
Section 8.1 Indebtedness.
Neither the Parents nor the Borrower shall create, incur, assume, or
permit or suffer to exist, or permit any other Subsidiary to create, incur,
assume, or permit or suffer to exist, any Indebtedness other than the following:
(a) the Obligations;
(b) Indebtedness incurred pursuant to any Approved Debt Issuance;
(c) Secured Indebtedness that is Nonrecourse Indebtedness; provided,
however, that (i) following the date hereof and prior to the
Significant Capital Event, none of the Combined Parties shall incur
any additional Secured Indebtedness that is Nonrecourse Indebtedness,
and (ii) following the Significant Capital Event, such Nonrecourse
Indebtedness (A) shall not secure an amount (including and together
with the Rabo Facility) greater than twelve percent (12%) of the Total
Assets of the Borrower and its Consolidated Subsidiaries, (B) shall
have a maturity date no earlier than October 1, 2002, and (C) shall
have an advance rate of at least sixty-five percent (65%).
(d) Indebtedness in the form of trade payables incurred in the ordinary
course of business;
(e) Indebtedness resulting from purchase money financing for furniture,
fixtures and/or equipment not used in connection with restaurant
properties;
(f) Indebtedness resulting from customary recourse carve-outs associated
with securitization transactions (including, by way of example, those
for fraud, misapplication of proceeds and environmental indemnities)
and not involving the creditworthiness of the applicable obligors.
(g) unsecured recourse Indebtedness incurred after the occurrence of the
Significant Capital Event and in an amount less than or equal to
$10,000,000.
(h) Indebtedness in existence as of the Agreement Date and described on
Schedule 6.22 and any Indebtedness (the "Replacement Indebtedness")
extending the maturity of, or refunding, refinancing or replacing, in
whole or in part, any such existing Indebtedness (the "Replaced
Indebtedness") so long as (i) the direct and contingent obligors with
respect to the Replaced Indebtedness and the Replacement Indebtedness
shall be the same, (ii) the Replacement Indebtedness shall not mature
prior to the stated maturity date or mandatory redemption date of the
Replaced Indebtedness, (iii) if the Replaced Indebtedness is
subordinated in right of payment or otherwise to the Obligations of
the Borrower, or the obligations of either Parent or any of their
other Subsidiaries under and in respect of the Credit Documents to
which any of them is a party, then the Replacement Indebtedness must
be subordinated to such obligations to at least the same extent and
(iv) the Replacement Indebtedness otherwise complies with all other
terms and conditions contained in any other Section of this Credit
Agreement;
(i) intercompany Indebtedness (excluding Subordinated Interests) among the
Parents, the Borrower and their other Subsidiaries; provided, however,
that the obligations of each obligor of such Indebtedness shall: (i)
be subordinated to the Obligations on terms acceptable to the Required
Lenders in their sole discretion and (ii) have such other terms and
provisions as the Administrative Agent may reasonably require;
(j) Indebtedness arising as a result of Contingent Obligations permitted
under Section 8.2;
(k) obligations of the Borrower in respect of Hedge Agreements entered
into in order to manage existing or anticipated interest rate or
exchange rate risks and not for speculative purposes;
(l) Indebtedness incurred (i) in connection with the purchase of
Securitization Securities from FINCo or its Consolidated Subsidiaries,
(ii) in connection with the acquisition of residual interests in net
leased Real Property and the lessor's interest in triple net leases
from FINCo or its Consolidated Subsidiaries or (iii) in connection
with the acquisition of equity interests in Consolidated Subsidiaries
of FINCo if such Consolidated Subsidiaries' sole purpose is to hold
Securitization Securities;
(m) Indebtedness incurred in connection with Nonrecourse SPE Financings;
(n) Indebtedness arising as a result of the Borrower's, either of the
Parents' or any of their respective Subsidiaries' obligations under
that certain CNL Building Lease;
(o) prior to the earlier of (i) October 31, 2000, and (ii) the maturity
date of the F-VI Facility, Indebtedness incurred in connection with
(A) the issuance of letters of credit for the purpose of credit
enhancing the F-VI Facility and/or (B) with the Borrower's guaranty of
the Indebtedness created by the F-VI Facility, provided, that the
total Indebtedness incurred with respect to clauses (A) and (B) of
this Section 8.1(n) shall not exceed $15,000,000 in the aggregate;
(p) Indebtedness incurred by the B-Piece Subsidiary, to the extent the
amount of such Indebtedness is less than or equal to the amount that
is equal to 35% of the lesser of (i) the B-Piece Subsidiary's cost
basis in its assets and (ii) the marked to market fair market value of
the assets held by the B-Piece Subsidiary; and
(q) Indebtedness resulting from any guaranty of, or other Contingent
Obligation or Off Balance Sheet Liability relating to, other
Indebtedness of either Parent, the Borrower or any other Consolidated
Subsidiary which other Indebtedness is permitted to be incurred
pursuant to this Section.
Notwithstanding the foregoing, the Parents and the Borrower shall not, and shall
not permit any other Subsidiary to, create, incur or assume any Indebtedness
after the Agreement Date if immediately prior to the creation, incurring or
assumption thereof, or immediately thereafter and after giving effect thereto, a
Default or Event of Default is or would be in existence, including without
limitation, a Default or Event of Default resulting from a violation of any of
the covenants contained in this Section 8.1.
Section 8.2 Contingent Obligations.
Neither the Parents nor the Borrower shall become or remain liable, or
permit any other Subsidiary to become or remain liable, on or under any
Contingent Obligation other than the following:
(a) Contingent Obligations arising under any of the Credit Documents;
(b) Contingent Obligations in existence as of the Agreement Date and set
forth in Part II of Schedule 6.22, and any Contingent Obligation
incurred in replacement, in whole or in part, of any such existing
Contingent Obligations so long as (i) the amount of such replacement
Contingent Obligation shall not be increased, (ii) such replacement
Contingent Obligation shall not mature or otherwise be required to be
performed prior to the corresponding maturity or performance date of
the Contingent Obligation being so replaced, and (iii) if the
Contingent Obligation being so replaced is subordinated to the
Obligations of the Borrower, or the obligations of either Parent or
any of their other Subsidiaries under and in respect of the Credit
Documents to which any of them is a party, such replacement Contingent
Obligation shall be subordinated to such obligations to at least the
same extent;
(c) Contingent Obligations resulting from endorsement of negotiable
instruments for collection or deposit in the ordinary course of
business;
(d) Contingent Obligations incurred in the ordinary course of business
with respect to surety and appeal bonds, performance and
return-of-money bonds and other similar obligations; and
(e) Contingent Obligations to the extent constituting Indebtedness
permitted under Section 8.1.
Section 8.3 Certain Permitted Investments.
The Parents and the Borrower shall not, and shall not permit any other
Consolidated Subsidiary to, make any Investment in or otherwise own:
(a) any common stock, preferred stock and any other Equity Interests in
any Person except (A) Investments subject to the limitations of
Section 8.3(d), and (B) any interest in those entities set forth on
Schedule 8.3(a) hereto.
(b) any subordinated securities or Subordinate Interests, excluding any
Subordinate Interest issued in connection with a Term Securitization
or a Nonrecourse SPE Financing and except as set forth in Section
8.3(d).
(c) Real Property under construction such that the aggregate Construction
Budget for all such Real Property exceeds five percent (5.0%) of the
Total Assets of the Combined Parties; provided, that, (A) this clause
(a) shall not prohibit the rebuilding or replacement of Property
through the proper application of insurance proceeds, (B) to the
extent the subject Real Property is owned by the Borrower or one of
its Consolidated Subsidiaries or any Combined Party has any monetary
interest in the subject Real Property, business or other affairs
associated with such Real Property, such Real Property must be 100%
pre-leased. For purposes of this subsection "Construction Budget"
means the fully-budgeted costs for the acquisition and construction of
a given piece of real property (including, without limitation,
construction interest carrying, financing and other soft costs and the
cost of acquiring such piece of Real Property) as reasonably
determined by the Borrower in good faith.
(d) Investments in (i) Subordinated Interests issued in connection with
Term Securitizations, (ii) I/O Strips, (iii) Securitization Securities
purchased from FINCo or its Consolidated Subsidiaries and/or (iv)
equity interests in Consolidated Subsidiaries of FINCo if such
Consolidated Subsidiaries' sole purpose is to hold Securitization
Securities such that the sum of (A) the Value of all such Subordinated
Interests plus (B) the Fair Value of all such I/O Strips plus (C) the
Value of all such Securitization Securities exceeds (1) five percent
(5.0%) of Total Assets of the Combined Parties prior to the date of
the Significant Capital Event or (2) ten percent (10%) from and after
the date of the Significant Capital Event.
(e) Investments in non-wholly owned general and limited partnerships,
joint ventures and other Persons which are not corporations (excluding
Investments subject to the limitations of Section 8.3(d) and the Joint
Ventures in existence as of the date hereof) and which Investments are
accounted for on an equity basis in accordance with GAAP, such that
the aggregate book value of such Investments exceeds ten percent
(10.0%) of Total Assets of the Combined Parties.
(f) unimproved real estate, such that the aggregate book value of all such
unimproved real estate exceeds five percent (5.0%) of Total Assets of
the Combined Parties.
(g) (A) Leases of equipment and Investments in promissory notes secured by
a Lien in equipment, such that the aggregate amount of such leases and
Investments (determined in accordance with GAAP) exceeds seven and one
half percent (7.50%) of the Total Assets of the Combined Parties and
(B) commitments to lease equipment and make Investments of the types
described in the immediately preceding clause (A) which, when combined
with the Investments described in such clause (A) do not in the
aggregate exceed seven and one half percent (7.50%) of the Total
Assets of the Combined Parties.
(h) In addition to the foregoing limitations, the aggregate value of all
of the items subject to the limitations in the preceding clauses (d)
through (g) shall not exceed thirty percent (30%) of the Total Assets
of the Combined Parties.
Notwithstanding the foregoing, this Section 8.3 shall not prohibit (i) the
Borrower from forming Wholly Owned Subsidiaries or Supermajority Subsidiaries so
long as (A) such Subsidiary executes and delivers a Subsidiary Guaranty in
accordance with the terms hereof and (B) prior to the formation of such Wholly
Owned Subsidiary or Supermajority Subsidiary, the Borrower provides evidence,
satisfactory to the Administrative Agent, that it and each of the Combined
Parties, to the extent applicable, will remain in compliance with the covenants
and conditions set forth herein immediately following the creation of such
Wholly Owned Subsidiary or Supermajority Subsidiary or (ii) AffiliateCo from
forming Wholly Owned Subsidiaries or Supermajority Subsidiaries for the sole
purpose of holding Securitization Securities and facilitating Term
Securitizations with respect to such Securitization Securities.
Section 8.4 Investments Generally.
The Parents and the Borrower shall not acquire, make or purchase, or
permit any other Consolidated Subsidiary to acquire, make or purchase, after the
Agreement Date, any Investment, or permit any Investment of either Parent, the
Borrower or any other Consolidated Subsidiary to be outstanding on and after the
Agreement Date, other than the following:
(a) Investments in Subsidiaries in existence on the Agreement Date and
disclosed on Part I of Schedule 6.13 or on ------------- Schedule
8.13; -------------
(b) Investments permitted under Section 8.3;
(c) Investments in Excluded Assets and Eligible Net Lease Assets in
accordance with the other terms and conditions set forth in this
Credit Agreement;
(d) Investments in Cash Equivalents and Approved Investments;
(e) intercompany Indebtedness among the Parents, the Borrower and the
other Subsidiaries provided that such Indebtedness is permitted by the
terms of Section 8.1;
(f) loans and advances to employees for moving, entertainment, travel and
other similar expenses in the ordinary course of business consistent
with past practices;
(g) Investments in promissory notes secured by Mortgage Instruments, so
long as the aggregate amount of such Investments (determined in
accordance with GAAP) does not exceed 7.50% of Adjusted Net
Capitalization at any time, and Investments in the form of commitments
to make loans to be evidenced by promissory notes secured by Mortgage
Instruments; provided, however, that the temporary ownership or
acquisition by the Borrower or other Subsidiary of promissory notes
secured by Mortgage Instruments which were, immediately prior to such
ownership or acquisition, the subject of a Permitted Financial Asset
Sale (other than a Term Securitization), shall not be considered an
Investment for purposes of this subsection, so long as (A) a Person
has issued a valid and binding commitment to acquire such promissory
notes (or interests therein) pursuant to a Permitted Financial Asset
Sale, the terms of such commitment to be reasonably satisfactory to
the Administrative Agent, or the Borrower has made other arrangements
reasonably satisfactory to the Administrative Agent to dispose of such
promissory notes and (B) such promissory notes are in fact so disposed
of on the same date acquired by the Borrower or other Subsidiary, as
the case may be;
(h) either Parent or any Subsidiary, in either case, acting in its
capacity as servicer of the financial assets the subject of a
Structured Financing, may make short-term advances to or on behalf of
the applicable Special Purpose Entity or other Person involved in such
Structured Financing for the purpose of maintaining a stable cash flow
with respect to such financial assets, so long as such Parent or such
Subsidiary, as the case may be, reasonably expects that such advance
is recoverable;
(i) Investments to acquire Equity Interests of a Subsidiary or any other
Person who after giving effect to such acquisition would be a
Subsidiary and a Guarantor, and Investments in the form of additional
capital contributions to existing Subsidiaries, so long as in each
case (i) immediately prior to such acquisition, Investment or
contribution, and after giving effect thereto, no Default or Event of
Default is or would be in existence and (ii) such acquisition,
Investment or contribution could not reasonably be expected to have a
Material Adverse Effect; and
(j) other Investments in an aggregate amount not to exceed 0.10% of Total
Assets of the Borrower at any time and other Investments owned as of
the date hereof.
Section 8.5 Liens; Agreements Regarding Liens; Other Matters.
The Parents and the Borrower shall not:
(a) Create, assume, or incur, or permit any other Consolidated Subsidiary
to create, assume, or incur, any Lien (other than Permitted Liens and
Liens otherwise permitted hereunder) upon (i) any Eligible Net Lease
Asset (or the Real Property which is the subject of such Eligible Net
Lease Asset), (ii) any assets included in the calculation of
Unencumbered Asset Value or (iii) any of its other properties, assets,
income or profits of any character whether now owned or hereafter
acquired if, in the case of this clause (iii) only, immediately prior
to the creation, assumption or incurring of such Lien, or immediately
thereafter, a Default or Event of Default is or would be in existence;
(b) Enter into, assume or otherwise be bound by, or permit any other
Subsidiary to enter into, assume or otherwise be bound by, any
agreement (other than any Credit Document) prohibiting the creation or
assumption of any Lien on any Eligible Net Lease Asset (or the Real
Property which is the subject of such Eligible Net Lease Asset); or
(c) Create or otherwise cause or suffer to exist or become effective, or
permit any Subsidiary to create or otherwise cause or suffer to exist
or become effective, any consensual encumbrance or restriction of any
kind on the ability of any Subsidiary to: (i) pay dividends or make
any other distribution on any of such Subsidiary's capital stock or
other equity interests owned by either Parent, the Borrower or any
other Subsidiary; (ii) pay any Indebtedness owed to either Parent, the
Borrower or any other Subsidiary; (iii) make loans or advances to the
Borrower or any other Subsidiary; or (iv) transfer any of its
respective property or assets to either Parent, the Borrower or any
other Subsidiary, except (x) as may be contained in any Credit
Document and (y) for such encumbrances and restrictions imposed on
Special Purpose Entities (and with respect to encumbrances and
restrictions described in the immediately preceding clauses (iii) and
(iv), on other Excluded Subsidiaries) in connection with Structured
Financings which encumbrances and restrictions are reasonable and
customary for such types of transactions.
Section 8.6 Restricted Payments.
Neither the Parents nor the Borrower will declare or make, or permit
any other Subsidiary thereof to declare or make, any Restricted Payment;
provided, however, that:
(a) such parties may pay Restricted Payments to the extent permitted (or
required) to do so under Section 7.11(d) and/or 7.12;
(b) subject to the following sentence, the Parents may cause the Borrower
(directly or indirectly through any intermediate Subsidiaries) to make
cash distributions to either Parent and to other limited partners of
the Borrower, and the Parents may, as applicable, cause their other
Subsidiaries to make cash distributions to the Parent(s) and to other
holders of Equity Interests in such Subsidiaries, in each case (i) in
an aggregate amount not to exceed the amount of cash distributions
that the Parents are permitted to declare or distribute under the
following clause (d) and (ii) on a pro rata basis, such that the
aggregate amount distributed to the Parents does not exceed the amount
that the Parents are permitted to declare or distribute under the
following clause (e);
(c) the Parents and their Subsidiaries may acquire limited partnership
interests in the Borrower solely in exchange for common stock of
either Parent;
(d) the Borrower, Parents and their respective Subsidiaries collectively,
may, subject to clause (f) and Section 7.11(d) hereof and to the
proviso set forth at the bottom of this Section 8.6, declare or make
cash distributions to their shareholders, partners or members (as
applicable);
(e) Special Purpose Entities and related Excluded Subsidiaries may
(directly or indirectly through any intermediate Subsidiaries) (i)
make Restricted Payments to the extent required to do so under the
terms of a Structured Financing and (ii) distribute I/0 Strips and
other assets to the Parents, the Borrower or any other Guarantor;
(f) subject to the preceding clause (e), if a Default or Event of Default
shall have occurred and be continuing, the Parents, collectively,
shall only declare or make cash distributions to their shareholders in
amounts necessary for each Parent and APF (or the New REIT, as
applicable) to remain in compliance with Section 7.14.
Notwithstanding the foregoing, if a Default or Event of Default specified in
Section 9.1(a) resulting from the Borrower's failure to pay when due the
principal of, or interest on, any of the Loans or any Fees or under Section
9.1(f) shall have occurred and be continuing, or if as a result of the
occurrence of any other Event of Default the Obligations have been accelerated
pursuant to Section 9.2(a), the Parents and the Borrower shall not, and shall
not permit any other Subsidiary to, make any Restricted Payments whatsoever.
Section 8.7 Limit on Concepts/Tenants.
(a) The Borrower shall not permit at any time more than fifteen percent
(15%) of the total revenues of the Borrower and its Consolidated
Subsidiaries for any calendar quarter to be attributable to (i) any
one Concept (except the "Golden Corral" Concept) or (ii) any one
tenant (or group of affiliated tenants).
(b) The Borrower shall not permit at any time more than twenty percent
(20%) of the total revenues of the Borrower and its Consolidated
Subsidiaries for any calendar quarter to be attributable to the
"Golden Corral" Concept.
Section 8.8 Ground Leases.
The Parents and the Borrower shall not, and shall not permit any other
Subsidiary to, lease as lessee any real property pursuant to a ground lease
unless (a) such ground lease contains customary provisions protective of any
lender to the lessee which provisions do not vary in any material respect from
those required under the Borrower's standard underwriting procedures and
policies and (b) the aggregate value (determined in accordance with GAAP) of all
ground leases of the Parents, the Borrower and the other Subsidiaries does not
exceed 10% of Adjusted Net Capitalization.
Section 8.9 Merger, Consolidation, Sales of Assets and Other Arrangements;
Sale-Lease Back Transactions/Change of Control.
(a) Merger, Consolidation, Sales of Assets. Subject to the provisions of
Section 9.1(n), the Parents and the Borrower shall not (i) enter into,
or permit any other Subsidiary to enter into, any transaction of
merger or consolidation; (ii) liquidate, wind-up or dissolve itself
(or suffer any liquidation or dissolution) or permit any other
Subsidiary to do any of the foregoing; or (iii) convey, sell, lease,
sublease, transfer or otherwise dispose of, in one transaction or a
series of transactions, all or any substantial part of its business or
assets (including the capital stock of or other equity interests in
any of its Subsidiaries), whether now owned or hereafter acquired, or
permit any Subsidiary to do any of the foregoing; provided, however,
that:
(A) Subsidiaries of either Parent may merge or consolidate
with any Wholly Owned Subsidiary (other than the Borrower, any Special
Purpose Entity or other Excluded Subsidiary);
(B) each Parent and each Subsidiary (other than the Borrower)
may sell, transfer or dispose of its assets to either Parent, the
Borrower or any Wholly Owned Subsidiary;
(C) a Wholly Owned Subsidiary may liquidate provided that
immediately prior to such liquidation and immediately thereafter and
after giving effect thereto, no Default or Event of Default is or would
be in existence;
(D) any Subsidiary that is not a Wholly Owned Subsidiary and
that is no longer actively engaged in any business or activities and
does not have property and assets with an aggregate book value or fair
market value in excess of $1,000,000 may be wound up, liquidated or
dissolved so long as such winding up, liquidation or dissolution is
determined in good faith by management of either Parent to be in the
best interests of such Parent and its Subsidiaries;
(E) a Wholly Owned Subsidiary may merge with any other Person
so long as (x) immediately after giving effect to such merger the
survivor of such merger would be a Wholly Owned Subsidiary and (y)
immediately prior to such merger, and immediately thereafter and after
giving effect thereto, no Default or Event of Default is or would be in
existence;
(F) a Person may merge into the Borrower so long as (x) the
Borrower is the survivor of such merger, (y) immediately prior to such
merger, and immediately thereafter and after giving effect thereto, no
Default or Event of Default is or would be in existence, and (z) there
would be no adverse effect on the Borrower's Tangible Net Worth;
(G) the Borrower's interests in CNL RP Services, LLC and CNL
Restaurant Property Services, Inc. and its ownership interests in the
four (4) Ruby Tuesday Properties currently owned by Borrower, under
construction and with a fair market value of approximately $4,000,000
may be transferred outside the Combined Parties, provided, that (i) CNL
RP Services, LLC and CNL Restaurant Property Services, Inc. shall not
be permitted to incur any Indebtedness or to purchase or otherwise
acquire any additional assets and (ii) the Credit Parties shall not
transfer any assets to either entity prior to such transfer.
(H) each Parent, the Borrower and the other Subsidiaries may
sell and assign assets to a Special Purpose Entity, directly or
indirectly through either Parent or other Subsidiary, in connection
with a Structured Financing, and Special Purpose Entities may sell and
assign assets (or interests therein) pursuant to Permitted Financial
Asset Sales; and
(I) each Parent, the Borrower and any other Subsidiary may
lease and sublease its assets, as lessor or sublessor (as the case may
be), in the ordinary course of their business.
(b) Sale-Lease Back Transactions. None of the Parents, the Borrower or any
other Subsidiary shall enter into any sale-leaseback transactions or
other transaction by which such Person shall remain liable as lessee
(or the economic equivalent thereof) of any real or personal property
that it has sold or leased to another Person.
Section 8.10 Asset Dispositions.
The Borrower shall not sell, lease, transfer or otherwise dispose of,
and shall not permit any of its Subsidiaries to sell, lease transfer or
otherwise dispose of, assets (including, without limitation, capital stock or
similar ownership interests) (a) if an Event of Default has occurred and is
continuing or (b) otherwise to the extent that such sale, lease, transfer or
other disposition of assets would result in the aggregate book value of the
Borrower's and, if prior to the Significant Capital Event, its Consolidated
Subsidiaries' (to the extent such Subsidiaries are Guarantors hereunder):
(i) unencumbered Eligible Net Lease Assets, plus Underlying Assets (to
the extent such Underlying Assets would otherwise qualify as Eligible Net Lease
Assets), plus accumulated depreciation with respect to such assets to equal less
than $450,000,000 during the period from and after the date hereof until the
earlier of (i) December 31, 2000 and (ii) the Significant Capital Event; and
(ii) unencumbered Eligible Net Lease Assets, plus Underlying Assets (to
the extent such Underlying Assets would otherwise qualify as Eligible Net Lease
Assets), plus accumulated depreciation with respect to such assets to equal less
than $225,000,000 during the period beginning the day after the date which is
the earlier of (i) December 31, 2000 and (ii) the Significant Capital Event and
ending on the Actual Termination Date.
Section 8.11 Fiscal Year.
Neither the Parents nor the Borrower shall change their respective
fiscal years from that in effect as of the Agreement Date.
Section 8.12 Modifications to Material Contracts.
Neither the Parents nor the Borrower shall enter into, or permit any
other Subsidiary to enter into, without the prior written consent of the
Required Lenders, any amendment or modification to any Material Contract or
default in the performance of any of its respective obligations under any
Material Contract or cancel or terminate any Material Contract prior to its
stated maturity; provided, however, that this provision shall not be construed
to require the consent of the Required Lenders for the amendment, modification
or supplementation from time to time of the Combined Parties' currently existing
lease or leases of office space with the CNL City Center at City Commons
Building in Orlando, Flordia (the "CNL Building Lease"), except to the extent
such amendment, modification or supplementation could be reasonably expected to
cause (either directly or indirectly) a Material Adverse Effect.
Section 8.13 Transactions with Affiliates.
The Parents and the Borrower shall not permit to exist or enter into,
and will not permit any other Subsidiary to permit to exist or enter into, any
transaction with any Affiliate except (a) transactions in the ordinary course of
and pursuant to the reasonable requirements of the business of either Parent,
the Borrower or such other Subsidiary, as the case may be, and upon fair and
reasonable terms which are no less favorable to the Parent(s), the Borrower or
such other Subsidiary, as the case may be, than would be obtained in a
comparable arm's length transaction with a Person that is not an Affiliate, and
in the case of any such transaction with a Special Purpose Entity or other
Excluded Subsidiary involving consideration in excess of $25,000,000, which
terms are fully disclosed to the Administrative Agent and the Lender Parties;
(b) the transactions described in Schedule 8.13; and (c) transactions among
either or both of the Parents, the Borrower and any Wholly Owned Subsidiary that
is a Guarantor.
Section 8.14 Limitation on International Leases.
The Borrower shall not enter into any International Leases.
Section 8.15 Hedge Agreements.
Neither the Parents nor the Borrower shall create, incur, assume, or
permit or suffer to exist, or permit any other Subsidiary to create, incur,
assume, or permit or suffer to exist, any obligations, contingent or otherwise,
in respect of Hedge Agreements other than in respect of interest rate Hedge
Agreements (a) existing on the date hereof and described in Schedule 7.18 and
(b) entered into from time to time after the Agreement Date pursuant to and as
contemplated by Section 8.15 hereof with counterparties that are nationally
recognized, investment grade financial institutions; provided that, no Hedge
Agreement otherwise permitted hereunder may be speculative in nature.
Section 8.16 No Further Negative Pledges.
The Credit Parties will not permit any Combined Party to enter into,
assume or become subject to any Negative Pledges or agreement prohibiting or
otherwise restricting the existence of any Lien upon any of its Property in
favor of the Agent (for the benefit of the Lender Parties) for the purpose of
securing the Credit Party Obligations, whether now owned or hereafter acquired,
or requiring the grant of any security for any obligation if such Property is
given as security for the Credit Party Obligations, except (a) in connection
with any Permitted Lien or any document or instrument governing any Permitted
Lien, provided that any such restriction contained therein relates only to the
asset or assets subject to such Permitted Lien, (b) in connection with any
Permitted Lien or any document or instrument governing any Permitted Lien,
provided that any such restriction contained therein relates only to the asset
or assets subject to such Permitted Lien and (c) pursuant to customary
restrictions and conditions contained in any agreement relating to the sale of
any Property permitted under Section 8.10, pending the consummation of such
sale.
Section 8.17 Limitation on Restricted Actions.
The Credit Parties will not permit any Combined Party to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such Person to (a) pay
dividends or make any other distributions to any Credit Party on its Capital
Stock or with respect to any other interest or participation in, or measured by,
its profits, (b) pay any Indebtedness or other obligation owed to any Credit
Party, (c) make loans or advances to any Credit Party, (d) sell, lease or
transfer any of its properties or assets to any Credit Party, or (e) act as a
Credit Party and pledge its assets pursuant to the Credit Documents or any
renewals, refinancings, exchanges, refundings or extension thereof, except (in
respect of any of the matters referred to in clauses (a)-(d) above) for such
encumbrances or restrictions existing under or by reason of (i) this Credit
Agreement and the other Credit Documents, (ii) applicable law, (iii) any
document or instrument governing Indebtedness incurred pursuant to Section
8.1(c), provided that any such restriction contained therein relates only to the
asset or assets constructed or acquired in connection therewith, (iv) any
Permitted Lien or any document or instrument governing any Permitted Lien,
provided that any such restriction contained therein relates only to the asset
or assets subject to such Permitted Lien or (v) customary restrictions and
conditions contained in any agreement relating to the sale of any Property
permitted under Section 8.10 pending the consummation of such sale.
Section 8.18 Creation of Subsidiaries.
None of the Combined Parties shall create any Subsidiary or acquire or
otherwise obtain any interest in any entity that would qualify as a Subsidiary
of such Combined Party, except (a) to the extent approved by the Administrative
Agent in writing prior to such creation, acquisition or other action or (b) as
contemplated on Schedule 6.13 or otherwise permitted hereunder.
Section 8.19 Addition/Replacement of Included Asset Pool Assets.
(a) The Borrower shall not replace and/or add to the assets constituting
the Included Asset Pool (including replacements with respect to
Section 7.20) except as set forth in clauses (b) and (c) of this
Section 8.19.
(b) (i) the Borrower may, from the date hereof until June 15, 2001,
replace and/or add assets with an aggregate value equal to or less
than ten percent (10%) of the total value of the Included Asset Pool
as of the date hereof and (ii) from June 16, 2001 until June 15, 2002,
replace and/or add assets with an aggregate value equal to or less
than ten percent (10%) of the total value of the Included Asset Pool
as of June 16, 2001, in each case, provided, that (A) each such
replaced or added asset (1) is not (x) an Excluded Asset, (y) a Flood
Hazard Property lacking proper and sufficient flood insurance or (z)
subject to any Liens that are not Permitted Liens, (2) is of similar
credit quality to the other assets constituting the Included Asset
Pool, as determined by the Administrative Agent, and (3) is otherwise
satisfactory to the Administrative Agent, in its reasonable
discretion, (B) the replacement/addition of such assets does not
significantly increase the tenant concentration of the five largest
tenants of the properties in the Included Asset Pool, (C) such assets
may be added and/or replaced (except to the extent required by Section
7.20) only (1) on any date on which the Borrower provides the
Administrative Agent with a Compliance Certificate in accordance with
Section 7.1(d) or (2) with the written consent of the Collateral
Agent, in each case with no less than ten (10) Business Days advance
notice to the Collateral Agent and the Administrative Agent and (D)
Borrower execute and deliver to the Administrative Agent fully
executed and notarized (1) Mortgage Instruments or Assignments of
Mortgages, as applicable and (2) Assignments of Leases or Assignments
of Assignments of Leases, as applicable, with respect to each such
added or replaced asset.
(c) To the extent the Borrower seeks to replace and/or add assets in
excess of the amounts set forth in clauses (i) or (ii) of Section
8.19(b) or to alter the tenant concentration requirement set forth in
such section, the Borrower shall, prior to replacing and/or adding
such assets, obtain the written consent of the Required Lenders.
ARTICLE IX
DEFAULT
Section 9.1 Events of Default.
An Event of Default shall exist upon the occurrence and during the
continuance of any of the following specified events whatever the reason for
such event and whether it shall be voluntary or involuntary or be effected by
operation of Applicable Law or pursuant to any judgment or order of any
Governmental Authority (each an "Event of Default"):
(a) Payment. Any Credit Party shall
(i) default in the payment when due of any principal of any of
the Loans or of any reimbursement obligations arising from drawings
under Letters of Credit, or
(ii) default, and such default shall continue for five (5) or
more days, in the payment when due of any interest on the Loans or on
any reimbursement obligations arising from drawings under Letters of
Credit, or
(iii) default, and such default shall continue for five (5) or
more days after the date upon which the Borrower has received written
notice of such failure from the Administrative Agent, of any Fees or
other amounts owing hereunder, under any of the other Credit Documents
or in connection herewith or therewith; or
(b) Representations. Any representation, warranty or statement made or
deemed to be made by any Credit Party herein, in any of the other
Credit Documents, or in any statement or certificate delivered or
required to be delivered pursuant hereto or thereto shall prove untrue
in any material respect on the date as of which it was deemed to have
been made; or
(c) Covenants. Any Credit Party shall
(i) default in the due performance or observance of any term,
covenant or agreement contained in Sections 7.2, 7.4, 7.10, 7.11, 7.17,
7.18, 7.23 or Article VIII (except Section 8.10);
(ii) default in the due performance or observance by it of any
term, covenant or agreement (other than those referred to in
subsections (a), (b) or (c)(i) of this Section 9.1 and except for the
covenant(s) contained in Section 8.10) contained in this Credit
Agreement or any other Credit Document and such default shall continue
unremedied for a period of at least 30 days after the earlier of an
Executive Officer of a Credit Party becoming aware of such default or
notice thereof by the Agent; or
(d) Other Credit Documents. Except as a result of or in connection with a
dissolution, merger or disposition of a Subsidiary not prohibited
herein, any Credit Document shall fail to be in full force and effect
or to give the Agent and/or the Lender Parties the Liens, rights,
powers and privileges purported to be created thereby, or any Credit
Party shall so state in writing (except to the extent provided for in
Section 4.3); or
(e) Guaranties. Except as the result of or in connection with a
dissolution, merger or disposition of a Subsidiary not prohibited
herein, or in accordance with Section 4 hereof, the Guaranty Agreement
entered into by any Guarantor or any provision thereof shall cease to
be in full force and effect, or any Guarantor hereunder or any Person
acting by or on behalf of such Guarantor shall deny or disaffirm such
Guarantor's obligations under such guaranty, or any Guarantor shall
default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to any
guaranty; or
(f) Pledges. Except in accordance with Section 4 hereof, any Pledge
Agreement entered into by a Pledgor hereunder shall cease to be in
full force and effect, or any Pledgor hereunder or any Person acting
by or on behalf of such Pledgor shall deny or disaffirm such Pledgor's
obligations under such Pledge Agreement, or any Pledgor shall default
in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to any
Pledge Agreement; or
(g) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect to any
Combined Party; or
(h) Challenge of Loan Documents. The Borrower, any Pledgor or any
Guarantor shall disavow, revoke or terminate or attempt to do any of
the foregoing with respect to any Loan Document to which it is a party
or shall otherwise challenge or contest in any action, suit or
proceeding in any court or before any Governmental Authority the
validity or enforceability of this Agreement, any Note, any Bridge
Note or any other Loan Document; or
(i) Defaults under Other Agreements.
(i) The Borrower, any Pledgor any Guarantor, any Special
Purpose Entity or any other Excluded Subsidiary shall fail to pay when
due and payable (following the expiration of any applicable cure
periods) the principal of, or interest on, any Indebtedness (other than
the Loans) having an aggregate outstanding principal amount (or, in the
case of any Hedge Agreement, having an Agreement Value) of $10,000,000
or more ("Material Indebtedness"); or
(ii) the maturity of any Material Debt shall have (A) 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 (B) 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 (provided,
that, for purposes of subsections (i), (ii) and (iii) only, an
obligation of a Special Purpose Entity to repay Debt incurred by it
under a Permitted Financial Asset Sale shall not be considered a
Default or Event of Default under this subsection so long as at the
time of the enforcement of such obligation either (A) a Person has
issued a valid and binding commitment to acquire the financial assets
(or interests therein) the subject of such Permitted Financial Asset
Sale pursuant to another Permitted Financial Asset Sale, the terms of
such commitment to be reasonably satisfactory to the Administrative
Agent or (B) the Borrower has made other arrangements reasonably
satisfactory to the Administrative Agent to cause such Debt to be
repaid); or
(iv) any Combined Party shall default in the performance or
observance (beyond the applicable grace period with respect thereto, if
any) of any material obligation or condition of any contract or lease
material to the Combined Parties taken as a whole if such default could
reasonably be expected to have a Material Adverse Effect; or
(j) Defaults Under Other Facilities. Notwithstanding anything to the
contrary contained in Section 9.1(h), there shall occur and be
continuing (i) for thirty (30) days or more, a default or (ii) an
"Event of Default" (as defined therein) under the Rabo Facility or
there shall occur and be continuing a failure to make a payment when
due under any letter of credit issued or guaranty entered into by any
of the Combined Parties to credit enhance or otherwise with respect to
the F-VI Facility; or
(k) Judgments. One or more judgments or decrees shall be entered against
one or more of the Combined Parties involving a liability of
$1,000,000 or more in the aggregate (to the extent not paid or fully
covered by insurance provided by a carrier who has acknowledged
coverage and has the ability to perform) and any such judgments or
decrees shall not have been vacated, discharged or stayed or bonded
pending appeal within 30 days from the entry thereof; or
(l) Attachment. A warrant, writ of attachment, execution or similar
process shall be issued against any property of the Borrower, any
Pledgor, any Guarantor, any Special Purpose Entity or any other
Excluded Subsidiary which exceeds, individually or together with all
other such warrants, writs, executions and processes, $1,000,000 in
amount and such warrant, writ, execution or process shall not be
discharged, vacated, stayed or bonded for a period of 30 days.
(m) ERISA. Any of the following events or conditions, if such event or
condition could involve possible taxes, penalties, and other
liabilities in an aggregate amount in excess of $1,000,000: (i) any
"accumulated funding deficiency," as such term is defined in Section
302 of ERISA and Section 412 of the Code, whether or not waived, shall
exist with respect to any Plan, or any lien shall arise on the assets
of any Combined Party or any ERISA Affiliate in favor of the PBGC or a
Plan; (ii) an ERISA Event shall occur with respect to a Single
Employer Plan, which is, in the reasonable opinion of the Agent,
likely to result in the termination of such Plan for purposes of Title
IV of ERISA; (iii) an ERISA Event shall occur with respect to a
Multiemployer Plan or Multiple Employer Plan, which is, in the
reasonable opinion of the Agent, likely to result in (A) the
termination of such Plan for purposes of Title IV of ERISA, or (B) any
Combined Party or any ERISA Affiliate incurring any liability in
connection with a withdrawal from, reorganization of (within the
meaning of Section 4241 of ERISA), or insolvency (within the meaning
of Section 4245 of ERISA) of such Plan; or (iv) any prohibited
transaction (within the meaning of Section 406 of ERISA or Section
4975 of the Code) or breach of fiduciary responsibility shall occur
which may subject any Combined Party or any ERISA Affiliate to any
liability under Sections 406, 409, 502(i), or 502(l) of ERISA or
Section 4975 of the Code, or under any agreement or other instrument
pursuant to which any Combined Party or any ERISA Affiliate has agreed
or is required to indemnify any person against any such liability; or
(n) Change of Control/Change in Management.
(i) Except as provided in subsection (v) below, any "person"
or "group" (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) is or
becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, except that a Person will be deemed to have
"beneficial ownership" of all securities that such Person has the right
to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than 25.0% of the
total voting power of the then outstanding Voting Stock of (A) at any
time prior to the Reorganization, APF and (B) at any time following the
Reorganization, the New REIT;
(ii) During any twelve-month period (commencing either before
or after the Agreement Date), a majority of the Board of
Directors/Managing Partners of APF shall no longer be composed of
individuals (x) who were members of such Board of Directors/Managing
Partners on the first date of such period, (y) whose election or
nomination to such Board of Directors was approved by individuals
referred to in clause (x) above constituting at the time of such
election or nomination at least a majority of such Board of Directors
or (z) whose election or nomination to such Board of Directors was
approved by individuals referred to in clauses (x) and (y) above
constituting at the time of such election or nomination at least a
majority of such Board of Directors;
(iii) If either (A) James M. Seneff, Jr. shall cease for any
reason (including death or disability) to occupy and discharge the
responsibilities of the positions of Chairman of the Board or Chief
Executive Officer or (B) both of Robert A. Bourne and Michael Wood
shall cease for any reason (including death or disability) to occupy
and discharge the responsibilities of the positions of Vice Chairman of
the Board, or Specified Executive Officer (as hereinafter defined),
respectively, of (X) at any time prior to the Reorganization, APF or of
both the Parents as to Michael Wood only and (Y) at any time following
the Reorganization, the New REIT (for purposes hereof "Specified
Executive Officer" shall mean Senior Vice President prior to the
Reorganization and Chief Operating Officer following the
Reorganization); or
(iv) The general partner of the Borrower shall cease to be one
of the Parents or a Wholly Owned Subsidiary of one of the Parents.
(v) Notwithstanding anything contained herein to the contrary,
the Reorganization shall not, solely by virtue of the structure of such
transaction and the resultant change in the ownership and control of
the Parents, constitute a Default or Event of Default pursuant to the
terms hereof if (A) prior to the consummation of such transaction the
Borrower or Parents deliver or cause to be delivered to the
Administrative Agent an opinion of counsel of the New REIT and the
Parents satisfactory to the Administrative Agent stating, among other
things, that the transaction shall result in no adverse tax
consequences to any Combined Party, (B) all applicable parties remain
in compliance with clauses (i) and (iii) above, (C) the aggregate asset
value of the assets held by the New REIT immediately prior to the
Reorganization is less than $100,000,000, (D) the Borrower and, as
applicable, Combined Parties remain in pro forma compliance with the
covenants set forth in this Credit Agreement and the other Credit
Documents following the Reorganization and the Borrower provides to the
Administrative Agent, prior to the reorganization, a pro forma covenant
compliance report and certification in form and substance satisfactory
to the Administrative Agent, (E) the primary business of the New REIT
and the Combined Parties will be substantially the same as that of the
Combined Parties immediately preceding the Reorganization and (F) the
manner of payment for the acquisition of the New REIT is reasonably
satisfactory to the Administrative Agent. This Section 9.1(n)(v) shall
not be construed to prevent a Default or Event of Default that does not
result directly from a transaction substantially similar to that
described above.
Section 9.2 Remedies Upon Event of Default.
Upon the occurrence and during the continuance of an Event of Default,
the Agent may or, upon the request and direction of the Required Lenders, shall,
by written notice to the Credit Parties take any of the following actions:
(a) Termination of Commitments. Declare the Revolving Commitments and
Bridge Loan Commitments terminated whereupon the Revolving Commitments
and Bridge Loan Commitments shall be immediately terminated.
(b) Acceleration. Declare the unpaid principal of and any accrued interest
in respect of all Loans, any reimbursement obligations arising from
drawings under Letters of Credit and any and all other indebtedness or
obligations of any and every kind owing by the Credit Parties to the
Agent and/or any of the Lender Parties hereunder to be due whereupon
(i) the same shall be immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby
waived by the Credit Parties and (ii) the Borrower, Parents and their
respective Subsidiaries shall be prevented from making any Restricted
Payments pursuant to Section 8.6.
(c) Cash Collateral. Direct the Borrower to pay (and the Borrower hereby
promises to pay, upon receipt of such notice) to the Agent additional
cash, to be held by the Agent, for the benefit of the Lender Parties,
in a cash collateral account as additional security for the LOC
Obligations in respect of subsequent drawings under all then
outstanding Letters of Credit in an amount equal to the maximum
aggregate amount which may be drawn under all Letters of Credits then
outstanding.
(d) Enforcement of Rights. Enforce any and all rights and interests
created and existing under this Credit Agreement (including, without
limitation, the right to require the Borrower to record or to record
the Mortgage Instruments, Assignments of Mortgages, Assignments of
Leases and Assignments of Assignment of Leases and to require the
Borrower to pay all expenses associated with such recordation in
accordance with Section 7.20(d) and (e)) and the Credit Documents, all
rights and remedies existing under the Collateral Documents, all
rights and remedies against any Pledgor or Guarantor and all rights of
set-off.
(e) Appointment of Receiver. To the extent permitted by Applicable Law,
the Administrative Agent and the Lender Parties shall be entitled to
the appointment of a receiver for the assets and properties of the
Borrower and its Subsidiaries, without notice of any kind whatsoever
and without regard to the adequacy of any security for the Obligations
or the solvency of any party bound for its payment, to take possession
of all or any portion of the business operations of the Borrower and
its Subsidiaries and to exercise such power as the court shall confer
upon such receiver.
Notwithstanding the foregoing, (i) if an Event of Default specified in
Section 9.1(g) shall occur with respect to the Combined Parties, then, without
the giving of any notice or other action by the Agent or the Lender Parties, (A)
the Revolving Commitments and Bridge Loan Commitments shall automatically
terminate, (B) all of the outstanding Credit Obligations automatically shall
immediately become due and payable and (C) the Borrower automatically shall be
obligated (and hereby promises) to pay to the Agent additional cash, to be held
by the Agent, for the benefit of the Lender Parties, in a cash collateral
account as additional security for the LOC Obligations in respect of subsequent
drawings under all then outstanding Letters of Credit in an amount equal to the
maximum aggregate amount which may be drawn under all Letters of Credits then
outstanding and (ii) so long as any of the Underlying Assets are located in the
State of California, no Lender Party may exercise any of its rights or remedies
under this Credit Agreement, any other Credit Document or otherwise available
with respect to the obligations of the Credit Parties under this Credit
Agreement and the other Credit Documents (including, without limitation, any
right to set off) without the prior written consent of the Administrative Agent.
Section 9.3 Allocation of Proceeds.
If an Event of Default shall have occurred and be continuing and
maturity of any of the Obligations has been accelerated, all payments received
by the Administrative Agent under any of the Credit Documents, in respect of any
principal of or interest on the Obligations or any other amounts payable by the
Borrower hereunder or thereunder, shall be applied in accordance with Section
3.18(b).
Section 9.4 Performance by Administrative Agent.
If the Borrower or either Parent shall fail to perform any covenant,
duty or agreement contained in any of the Credit Documents, the Administrative
Agent may, upon notice to the Borrower or such Parent, as the case may be,
perform or attempt to perform such covenant, duty or agreement on behalf of the
Borrower or such Parent, as the case may be, after the expiration of any cure or
grace periods set forth herein; provided, however, the Administrative Agent's
failure to give any such notice shall not affect the validity of any action
taken by the Administrative Agent. In such event, the Borrower shall, at the
request of the Administrative Agent, promptly pay any amount reasonably expended
by the Administrative Agent in such performance or attempted performance to the
Administrative Agent, together with interest thereon at the Default Rate from
the date of such expenditure until paid. Notwithstanding the foregoing, neither
the Administrative Agent nor any Lender Party shall have any liability or
responsibility whatsoever for the performance of any obligation of the Borrower
or either Parent under this Credit Agreement or any other Credit Document.
Section 9.5 Rights Cumulative.
The rights and remedies of the Administrative Agent and the Lender
Parties under this Credit Agreement and each of the other Credit Documents shall
be cumulative and not exclusive of any rights or remedies which any of them may
otherwise have under Applicable Law. In exercising their respective fights and
remedies the Administrative Agent and the Lender Parties may be selective and no
failure or delay by the Administrative Agent or any of the Lender Parties in
exercising any right shall operate as a waiver of it, nor shall any single or
partial exercise of any power or right preclude its other or further exercise or
the exercise of any other power or fight.
Section 9.6 Rescission of Acceleration by Required Lenders.
If at any time after acceleration of the maturity of the Obligations,
the Borrower shall pay all arrears of interest and all payments on account of
principal of the Obligations which shall have become due otherwise than by
acceleration (with interest on principal and, to the extent permitted by
Applicable Law, on overdue interest, at the rates specified in this Credit
Agreement) and all Events of Default and Defaults (other than nonpayment of
principal of and accrued interest on the Obligations due and payable solely by
virtue of acceleration) shall be remedied or waived to the satisfaction of the
Required Lenders, then by written notice to the Borrower, the Required Lenders
may elect, in the sole discretion of such Required Lenders, to rescind and annul
the acceleration and its consequences; but such action shall not affect any
subsequent Default or Event of Default or impair any right or remedy consequent
thereon. The provisions of the preceding sentence are intended merely to bind
the Lender Parties to a decision which may be made at the election of the
Required Lenders; they are not intended to benefit the Borrower and do not give
the Borrower the right to require the Lender Parties to rescind or annul any
acceleration hereunder, even if the conditions set forth herein are satisfied.
Section 9.7 Collateral Account.
(a) As collateral security for the prompt payment in full when due of all
LOC Obligations, the Borrower hereby pledges and grants to the
Administrative Agent, for the benefit of the Administrative Agent and
the Lenders as provided herein, a security interest in all of its
right, title and interest in and to the Collateral Account and the
balances from time to time in the Collateral Account (including the
investments and reinvestments therein provided for below). The
balances from time to time in the Collateral Account shall not
constitute payment of any LOC Obligations until applied by the
Administrative Agent as provided herein. Anything in this Credit
Agreement to the contrary notwithstanding, funds held in the
Collateral Account shall be subject to withdrawal only as provided in
this Section and in Section 3.2(b).
(b) Amounts on deposit in the Collateral Account shall be invested and
reinvested by the Administrative Agent in such Cash Equivalents as the
Administrative Agent shall determine in its sole discretion. The
Collateral Account, all funds on deposit held in the Collateral
Account and all such investments and reinvestments shall be held in
the name of and be under the sole dominion and control of the
Administrative Agent. The Administrative Agent shall exercise
reasonable care in the custody and preservation of any funds held in
the Collateral Account and shall be deemed to have exercised such care
if such funds are accorded treatment substantially equivalent to that
which the Administrative Agent accords other funds deposited with the
Administrative Agent, it being understood that the Administrative
Agent shall not have any responsibility for taking any necessary steps
to preserve rights against any parties with respect to any funds held
in the Collateral Account.
(c) If an Event of Default shall have occurred and be continuing, the
Administrative Agent may (and, if instructed by the Required Lenders,
shall) in its (or their) discretion at any time and from time to time
elect to liquidate any such investments and reinvestments and credit
the proceeds thereof to the Collateral Account and apply or cause to
be applied such proceeds and any other balances in the Collateral
Account to the payment of any of the LOC Obligations due and payable.
(d) If (i) no Default or Event of Default is then in existence and (ii)
all of the LOC Obligations have been indefeasibly paid in full, the
Administrative Agent shall, from time to time, at the request of the
Borrower, deliver to the Borrower, against receipt but without any
recourse, warranty or representation whatsoever, such of the balances
in the Collateral Account as exceed the aggregate amount of LOC
Obligations at such time. When all of the Obligations shall have been
indefeasibly paid in full and no Letters of Credit remain outstanding,
the Administrative Agent shall promptly deliver to the Borrower,
against receipt but without any recourse, warranty or representation
whatsoever, the balances remaining in the Collateral Account.
(e) The Borrower shall pay to the Administrative Agent from time to time
such reasonable fees as the Administrative Agent customarily charges
for similar services in connection with the Administrative Agent's
administration of the Collateral Account and investments and
reinvestments of funds therein.
ARTICLE X
THE ADMINISTRATIVE AGENT
Section 10.1 Authorization and Action.
Each Lender Party hereby irrevocably appoints and authorizes the Agent
to act as its agent under this Credit Agreement and the other Credit Documents
with such powers and discretion as are specifically delegated to the Agent by
the terms of this Credit Agreement and the other Credit Documents, together with
such other powers as are reasonably incidental thereto. The Agent (which term as
used in this sentence and in shall include its Affiliates and its own and its
Affiliates' officers, directors, employees, and agents): (a) shall not have any
duties or responsibilities except those expressly set forth in this Credit
Agreement and shall not be a trustee or fiduciary for any Lender Party; (b)
shall not be responsible to the Lender Parties for any recital, statement,
representation, or warranty (whether written or oral) made in or in connection
with any Credit Document or any certificate or other document referred to or
provided for in, or received by any of them under, any Credit Document, or for
the value, validity, effectiveness, genuineness, enforceability, or sufficiency
of any Credit Document, or any other document referred to or provided for
therein or for any failure by any Credit Party or any other Person to perform
any of its obligations thereunder; (c) shall not be responsible for or have any
duty to ascertain, inquire into, or verify the performance or observance of any
covenants or agreements by any Credit Party or the satisfaction of any condition
or to inspect the property (including the books and records) of any Credit Party
or any of its Subsidiaries or Affiliates; and (d) shall not be responsible for
any action taken or omitted to be taken by it under or in connection with any
Credit Document, except for its own gross negligence or willful misconduct. The
Agent may employ agents and attorneys-in-fact and shall not be responsible for
the negligence or misconduct of any such agents or attorneys-in-fact selected by
it with reasonable care.
Section 10.2 Administrative Agent's Reliance, Etc.
Notwithstanding any other provisions of this Credit Agreement or any
other Credit Documents, neither the Administrative Agent nor any of its
directors, officers, agents, employees or counsel shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Credit Agreement, except to the extent found in a final, non-appealable judgment
by a court of competent jurisdiction to have resulted from its or their own
gross negligence or willful misconduct. Without limiting the generality of the
foregoing, the Administrative Agent: (a) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives written notice of the
assignment or transfer thereof signed by such payee and in form satisfactory to
the Administrative Agent; (b) may consult with legal counsel (including its own
counsel or counsel for either Parent, the Borrower or any other Subsidiary),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Lender Party or any other Person and shall not
be responsible to any Lender Party or any other Person for any statements,
warranties or representations made by any Person in or in connection with this
Credit Agreement or any other Credit Document; (d) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of any of this Credit Agreement or any other Credit
Document or the satisfaction of any conditions precedent under this Credit
Agreement or any Credit Document on the part of either of the Parents, the
Borrower or other Persons or inspect the property, books or records of either
Parent, the Borrower or any other Person; (e) shall not be responsible to any
Lender Party for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Credit Agreement or any other Credit
Document, any other instrument or document furnished pursuant thereto or any
collateral covered thereby or the perfection or priority of any Lien in favor of
the Administrative Agent on behalf of the Lender Parties in any such collateral;
and (f) shall incur no liability under or in respect of this Credit Agreement or
any other Credit Document by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telephone or telecopy) believed by
it to be genuine and signed, sent or given by the proper party or parties.
Section 10.3 Notice of Defaults.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of a Default or Event of Default unless the Agent has received
written notice from a Lender Party or another Credit Party specifying such
Default or Event of Default and stating that such notice is a "Notice of
Default". In the event that the Agent receives such a notice of the occurrence
of a Default or Event of Default, the Agent shall give prompt notice thereof to
the Lender Parties. The Agent shall (subject to Section 10.2 hereof) take such
action with respect to such Default or Event of Default as shall reasonably be
directed by the Required Lenders (or such other Lender Parties as required by
Section 11.5), 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 Default or Event of
Default as it shall deem advisable in the best interest of the Lender Parties.
Section 10.4 Rights as Lender.
With respect to its Revolving Commitment and Bridge Loan Commitment and
the Loans made by it, Bank of America (and any successor acting as Agent) in its
capacity as a Lender and Bridge Lender hereunder shall have the same rights and
powers hereunder as any other Lender or Bridge Lender and may exercise the same
as though it were not acting as the Agent, and the terms "Lender", "Lenders",
"Bridge Lender", "Bridge Lenders", "Lender Party" and "Lender Parties" shall,
unless the context otherwise indicates, include the Agent in its individual
capacity. Bank of America (and any successor acting as Agent) and its Affiliates
may (without having to account therefor to any Lender Party) accept deposits
from, lend money to, make investments in, provide services to, and generally
engage in any kind of lending, trust, or other business with any Credit Party or
any of its Subsidiaries or Affiliates as if it were not acting as Agent, and
Bank of America (and any successor acting as Agent) and its Affiliates may
accept fees and other consideration from any Credit Party or any of its
Subsidiaries or Affiliates for services in connection with this Credit Agreement
or otherwise without having to account for the same to the Lender Parties.
Section 10.5 Approvals of Lenders.
All communications from the Administrative Agent to any Lender Party
requesting such Lender Party's determination, consent, approval or disapproval
(a) shall be given in the form of a written notice to such Lender Party, (b)
shall be accompanied by a description of the matter or issue as to which such
determination, approval, consent or disapproval is requested, or shall advise
such Lender Party where information, if any, regarding such matter or issue may
be inspected, or shall otherwise describe the matter or issue to be resolved,
(c) shall include, if reasonably requested by such Lender Party and to the
extent not previously provided to such Lender Party, written materials provided
to the Administrative Agent by either Parent or the Borrower in respect of the
matter or issue to be resolved, and (d) shall include the Administrative Agent's
recommended course of action or determination in respect thereof. Each Lender
Party shall reply promptly, but in any event within 10 Business Days (or such
lesser period as may be required under the Credit Documents for the
Administrative Agent to respond). Unless a Lender Party shall give written
notice to the Administrative Agent that it objects to the recommendation or
determination of the Administrative Agent (together with a written explanation
of the reasons behind such objection) within the applicable time period for
reply, such Lender Party shall be deemed to have conclusively approved of or
consented to such recommendation or determination.
Section 10.6 Lender Credit Decision, Etc.
Each Lender Party expressly acknowledges and agrees that none of the
Administrative Agent, the Sole Lead Arranger, or any of their respective
officers, directors, employees, agents, counsel, attorneys-in-fact or other
affiliates has made any representations or warranties as to the financial
condition, operations, creditworthiness, solvency or other information
concerning the business or affairs of either Parent, the Borrower, any other
Subsidiary or other no act by the Administrative Agent or of the Sole Lead
Arranger hereinafter taken, including any review of the affairs of such Parent,
the Borrower or any other Subsidiary, shall be deemed to constitute any such
representation or warranty by the Administrative Agent or the Sole Lead Arranger
to any Lender Party. Each Lender Party acknowledges that it has, independently
and without reliance upon the Administrative Agent, the Sole Lead Arranger, any
other Lender Party or counsel to the Administrative Agent, or any of their
respective officers, directors, employees and agents, and based on the financial
statements of each Parent, the Borrower, the other Subsidiaries or any other
Affiliate thereof, and inquiries of such Persons, its independent due diligence
of the business and affairs of each Parent, the Borrower, the other Subsidiaries
and other Persons, its review of the Credit Documents, the legal opinions
required to be delivered to it hereunder, the advice of its own counsel and such
other documents and information as it has deemed appropriate, made its own
credit and legal analysis and decision to enter into this Credit Agreement and
the transactions contemplated hereby. Each Lender Party also acknowledges that
it will, independently and without reliance upon the Administrative Agent, the
Sole Lead Arranger, any other Lender Party or counsel to the Administrative
Agent or any of their respective officers, directors, employees and agents, and
based on such review, advice, documents and information as it shall deem
appropriate at the time, continue to make its own decisions in taking or not
taking action under the Credit Documents. Except for notices, reports and other
documents and information expressly required to be furnished to the Lender
Parties by the Administrative Agent or the Sole Lead Arranger under this Credit
Agreement or any of the other Credit Documents, neither the Administrative Agent
nor the Sole Lead Arranger shall have any duty or responsibility to provide any
Lender Party with any credit or other information concerning the business,
operations, property, financial and other condition or creditworthiness of the
Parents, the Borrower, any other Subsidiary or any other Affiliate thereof which
may come into possession of the Administrative Agent, the Sole Lead Arranger or
any of their respective officers, directors, employees, agents,
attorneys-in-fact or other affiliates. Each Lender Party acknowledges that the
Administrative Agent's legal counsel in connection with the transactions
contemplated by this Credit Agreement is only acting as counsel to the
Administrative Agent and is not acting as counsel to such Lender Party.
Section 10.7 Indemnification of Administrative Agent and Sole Lead Arranger
Each Lender Party agrees to indemnify each of the Administrative Agent
(which term as used in this sentence and in shall include its Affiliates and its
own and its Affiliates' officers, directors, employees, and agents) and the Sole
Lead Arranger (to the extent not reimbursed by the Borrower and without limiting
the obligation of the Borrower to do so) pro rata in accordance with such Lender
Party's respective Revolving Commitment Percentage or Bridge Loan Commitment
Percentage (as applicable), from and against any and all liabilities, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may at any time be imposed on, incurred
by, or asserted against the Administrative Agent or the Sole Lead Arranger (in
its respective capacity as "Administrative Agent" or "Sole Lead Arranger" but
not as a "Lender", "Bridge Lender" or "Lender Party") in any way relating to or
arising out of the Credit Documents, any transaction contemplated hereby or
thereby or any action taken or omitted by the Administrative Agent or the Sole
Lead Arranger under the Credit Documents (collectively, "Indemnifiable
Amounts"); provided, however, that no Lender Party shall be liable to the
Administrative Agent or the Sole Lead Arranger for any portion of such
Indemnifiable Amounts to the extent found in a final non-appealable judgment by
a court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the Administrative Agent or the Sole Lead Arranger, as the
case may be. Without limiting the generality of the foregoing, each Lender Party
agrees to reimburse the Administrative Agent and the Sole Lead Arranger promptly
upon demand for its ratable share of any reasonable out-of-pocket expenses
(including counsel fees of the counsel(s) of the Administrative Agent's own
choosing) incurred by the Administrative Agent in connection with the
preparation, execution, administration, or enforcement of, or legal advice with
respect to the rights or responsibilities of the parties under, the Credit
Documents, any suit or action brought by the Administrative Agent to enforce the
terms of the Credit Documents and/or collect any Obligations, any "lender
liability" suit or claim brought against the Administrative Agent, the Sole Lead
Arranger and/or the Lender Parties, and any claim or suit brought against the
Administrative Agent, the Sole Lead Arranger and/or the Lender Parties arising
under any Environmental Laws, to the extent that the Administrative Agent or the
Sole Lead Arranger is not reimbursed for such expenses by the Borrower. Such
out-of-pocket expenses (including counsel fees) shall be advanced by the Lender
Parties on the request of the Administrative Agent notwithstanding any claim or
assertion that the Administrative Agent is not entitled to indemnification
hereunder upon receipt of an undertaking by the Administrative Agent that the
Administrative Agent will reimburse the Lender Parties if it is actually and
finally determined by a court of competent jurisdiction that the Administrative
Agent is not so entitled to indemnification. The agreements in this Section
shall survive the payment of the Loans and all other amounts payable hereunder
or under the other Credit Documents, the expiration of all Letters of Credit and
the termination of this Credit Agreement. If the Borrower shall reimburse the
Administrative Agent or the Sole Lead Arranger for any Indemnifiable Amount
following payment by any Lender Party to the Administrative Agent or the Sole
Lead Arranger in respect of such Indemnifiable Amount pursuant to this Section,
the Administrative Agent or the Sole Lead Arranger, as the case may be, shall
share such reimbursement on a ratable basis with each Lender Party making any
such payment.
Section 10.8 Successor Administrative Agent.
The Administrative Agent may resign at any time as Administrative Agent
under the Credit Documents by giving written notice thereof to the Lender
Parties and the Borrower. In the event of a material breach of its duties
hereunder, the Administrative Agent may be removed as Administrative Agent under
the Credit Documents at any time by (a) the Required Lenders upon 30-day's prior
notice and (b) all of the Lender Parties (excluding the Administrative Agent in
its capacity as a Lender or Bridge Lender) upon 10-day's prior notice. Upon any
such resignation or removal, the Required Lenders shall have the right to
appoint a successor Administrative Agent which appointment shall, provided no
Default or Event of Default shall have occurred and be continuing, be subject to
the Borrower's approval, which approval shall not be unreasonably withheld or
delayed (except that Borrower shall, in all events, be deemed to have approved
each Lender Party as a successor Administrative Agent). If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the resigning
Administrative Agent's giving of notice of resignation or the Required Lenders'
removal of the resigning Administrative Agent, then the resigning or removed
Administrative Agent may, on behalf of the Lender Parties, appoint a successor
Administrative Agent, which shall be a Lender Party, if any Lender Party shall
be willing to serve, and otherwise shall be a commercial bank having total
combined assets of at least $50,000,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the resigning
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under the Credit Documents. After any resigning
Administrative Agent's resignation or removal hereunder as Administrative Agent,
the provisions of this Article X shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under the
Credit Documents.
Section 10.9 Sole Lead Arranger Has No Duties.
The assumes no responsibility, obligation or duties hereunder,
including, without limitation, any responsibility or obligation for servicing,
enforcement or collection of any of the Loans or any duty to act as the agent of
the Lender Parties. The title of "Sole Lead Arranger" is solely honorary and
implies no fiduciary responsibility on the part of the Sole Lead Arranger to the
Administrative Agent, the Borrower or any Lender Party and the use of such title
does not impose on the Sole Lead Arranger any duties or obligations greater than
those of any other Lender Party.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Notices.
Unless otherwise provided herein, communications provided for hereunder
shall be in writing and shall be mailed, sent via overnight courier,
hand-delivered, telecopied or delivered as follows:
If to the Borrower:
CNL APF Partners, LP
CNL Center at City Commons
450 South Orange Avenue
Orlando, Florida 32801
Attention: Michael Wood
Telecopy Number: (407) 540-2210
Telephone Number: (407) 540-2200
If to the Administrative Agent:
Bank of America, N.A.
NC 1-007-09-11
100 N. Tryon Street
Charlotte, North Carolina 28255
Attn: Terence J. Hatton
Telecopy Number: (704) 388-8841
Telephone Number: (704) 386-8034
and to:
Bank of America, N.A.
6610 Rockledge Drive
Bethesda, MD 20817
Attn: Denise D. Harris
Telecopy Number: (301) 571-9093
Telephone Number: (301) 571-9668
If to a Lender Party:
To such Lender Party's address or telecopy number, as
applicable, set forth on its signature page hereto or in the
applicable Assignment and Acceptance Agreement.
or, as to each party at such other address as shall be designated by such party
in a written notice to the other parties delivered in compliance with this
Section. All such notices and other communications shall be effective (i) if
delivered by a reputable national overnight air courier service, the day
following the day on which the same has been delivered prepaid or pursuant to an
invoice arrangement with such courier; (ii) if telecopied, when transmitted;
(iii) if hand delivered, when delivered; or (iv) if sent by certified or
registered mail, postage prepaid, upon delivery or attempted delivery.
Notwithstanding the immediately preceding sentence, all notices or
communications to the Administrative Agent or any Lender Party under Article II
shall be effective only when actually received. Neither the Administrative Agent
nor any Lender Party shall incur any liability to the Borrower (nor shall the
Administrative Agent incur any liability to the Lender Parties) for acting upon
any telephonic notice referred to in this Credit Agreement which the
Administrative Agent or such Lender Party, as the case may be, believes in good
faith to have been given by a Person authorized to deliver such notice or for
otherwise acting in good faith under hereunder.
Section 11.2 Expenses.
The Borrower agrees (a) to pay or reimburse each of the Administrative
Agent and the Sole Lead Arranger for all of their reasonable out-of-pocket costs
and expenses incurred in connection with the preparation, negotiation, execution
and syndication of, and any amendment, supplement or modification to, any of the
Credit Documents (including without limitation, reasonable due diligence
expenses, and travel expenses relating to closing), and the consummation of the
transactions contemplated thereby, including the reasonable fees and
disbursements of counsel to the Administrative Agent, (b) to pay or reimburse
the Administrative Agent and the Lender Parties for all their costs and expenses
incurred in connection with the enforcement or preservation of any rights under
the Credit Documents, including the reasonable fees and disbursements of their
respective counsel (including the allocated fees and expenses of in-house
counsel) and any payments in indemnification or otherwise payable by the Lender
Parties to the Administrative Agent pursuant to the Credit Documents, (c) to
pay, indemnify and hold the Administrative Agent and the Lender Parties harmless
from any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any failure to pay or delay in paying,
documentary, stamp, excise and other similar taxes, if any, which may be payable
or determined to be payable in connection with the execution and delivery of any
of the Credit Documents, or consummation of any amendment, supplement or
modification of, or any waiver or consent under or in respect of, any Credit
Document and (d) to the extent not already covered by any of the preceding
subsections, to pay or reimburse the Administrative Agent and the Lender Parties
for all their costs and expenses incurred in connection with any bankruptcy or
other proceeding of the type referred to in Section 9.1(g), including the
reasonable fees and disbursements of counsel to the Administrative Agent and any
Lender Party, whether such fees and expenses are incurred prior to, during or
after the commencement of such proceeding or the confirmation or conclusion of
any such proceeding.
Section 11.3 Setoff.
Subject to Sections 3.17, 7.25(d) and the final paragraph of Section
9.2, and in addition to any rights now or hereafter granted under Applicable Law
and not by way of limitation of any such rights, the Administrative Agent, each
Lender Party and each Participant is hereby authorized by the Borrower, at any
time or from time to time during the continuance of an Event of Default, without
prior notice to the Borrower or to any other Person, any such prior notice being
hereby expressly waived, but subject to receipt of the Administrative Agent's
prior written consent, to set-off and to appropriate and to apply any and all
deposits (general or special, including, but not limited to, Indebtedness
evidenced by certificates of deposit, whether matured or unmatured) and any
other Indebtedness at any time held or owing by the Administrative Agent, such
Lender Party or any affiliate of the Administrative Agent or such Lender, to or
for the credit or the account of the Borrower against and on account of any of
the Obligations, irrespective of whether or not any or all of the Loans and all
other Obligations have been declared to be, or have otherwise become, due and
payable as permitted by Section 9.2, and although such obligations shall be
contingent or unmatured. If any Lender Party or Participant shall exercise the
right of set-off referred to above, such Lender Party or Participant shall
promptly notify the Borrower, all other Lender Parties and the Administrative
Agent thereof; provided, however, failure by such Lender Party or Participant to
give such notice shall not affect the validity of such set-off.
Section 11.4 Successors and Assigns.
(a) The provisions of this Credit Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Borrower may not assign or
otherwise transfer any of its rights under this Credit Agreement
without the prior written consent of all Lender Parties.
(b) Any Lender Party may make, carry or transfer Loans at, to or for the
account of, any of its branch offices or the office of an affiliate of
such Lender Party except to the extent such transfer would result in
increased costs to the Borrower.
(c) Any Lender Party may at any time grant to one or more banks or other
financial institutions (each a "Participant") participating interests
in its Revolving Commitment, Bridge Loan Commitment or other
Obligations owing to such Lender Party; provided, however, (i) any
such participating interest must be for a constant and not a varying
percentage interest, (ii) no Lender Party may grant a participating
interest in its Revolving Commitment or Bridge Loan Commitment, or if
the Revolving Commitments or Bridge Loan Commitments, as applicable,
have been terminated, the aggregate outstanding principal balance of
Notes or Bridge Notes held by it, in an amount less than $10,000,000
and (iii) after giving effect to any such participation by a Lender
Party, the amount of its Revolving Commitment or Bridge Loan
Commitment, or if the Revolving Commitments or Bridge Loan
Commitments, as applicable, have been terminated, the aggregate
outstanding principal balance of Notes of Bridge Notes held by it, in
which it has not granted any participating interests must be equal to
$10,000,000 and integral multiples of $5,000,000 in excess thereof.
Except as otherwise provided in Section 11.3, no Participant shall
have any rights or benefits under this Credit Agreement or any other
Credit Document. In the event of any such grant by a Lender Party of a
participating interest to a Participant, such Lender Party shall
remain responsible for the performance of its obligations hereunder,
and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender Party in connection with such
Lender's rights and obligations under this Credit Agreement. Any
agreement pursuant to which any Lender Party may grant such a
participating interest shall provide that such Lender Party shall
retain the sole right and responsibility to enforce the obligations of
the Borrower hereunder including, without limitation, the right to
approve any amendment, modification or waiver of any provision of this
Credit Agreement; provided, however, such Lender Party may agree with
the Participant that it will not, without the consent of the
Participant, agree to (i) increase, or extend the term or extend the
time or waive any requirement for the reduction or termination of,
such Lender Party's Revolving Commitment or Bridge Loan Commitment,
(ii)extend the date fixed for the payment of principal of or interest
on the Loans or portions thereof owing to such Lender Party, (iii)
reduce the amount of any such payment of principal, or (iv) reduce the
rate at which interest is payable thereon. An assignment or other
transfer which is not permitted by subsection (d) below shall be given
effect for purposes of this Credit Agreement only to the extent of a
participating interest granted in accordance with this subsection. The
selling Lender Party shall notify the Administrative Agent and the
Borrower of the sale of any participation hereunder and the terms
thereof.
(d) Any Lender Party may with the prior written consent of the
Administrative Agent and the Borrower (which consent, in each case,
shall not be unreasonably withheld) assign to one or more Eligible
Assignees (each an "Assignee") all or a portion of its Revolving
Commitment or Bridge Loan Commitment and its other rights and
obligations under this Credit Agreement and the Notes or Bridge Notes,
as applicable; provided, however, (i) no such consent by the Borrower
shall be required (x) in the case of any assignment to another Lender
Party or any affiliate of such Lender Party or another Lender Party or
(y) if an Event of Default or Default shall then be existing; (ii) any
partial assignment shall be in an amount at least equal to $10,000,000
and after giving effect to such assignment the assigning Lender Party
retains a Revolving Commitment or Bridge Loan Commitment, or if the
Revolving Commitments or Bridge Loan Commitments, as applicable, have
been terminated, holds Notes or Bridge Notes having an aggregate
outstanding principal balance, of $10,000,000 and integral multiples
of $5,000,000 in excess thereof; and (iii) each such assignment shall
be effected by means of an Assignment and Acceptance Agreement. Upon
execution and delivery of such instrument and payment by such Assignee
to such transferor Lender Party of an amount equal to the purchase
price agreed between such transferor Lender Party and such Assignee,
such Assignee shall be deemed to be a "Lender Party" under this Credit
Agreement as of the effective date of the Assignment and Acceptance
Agreement mid shall have all the rights and obligations of a Lender
Party with a Revolving Commitment or Bridge Loan Commitment as set
forth in such Assignment and Acceptance Agreement, and the transferor
Lender Party shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party
shall be required. Upon the consummation of any assignment pursuant to
this subsection, the transferor Lender Party, the Administrative Agent
and the Borrower shall make appropriate arrangements so that new Notes
or Bridge Notes are issued to the Assignee and such transferor Lender
Party, as appropriate. In connection with any such assignment, the
transferor Lender Party (excluding the Administrative Agent or the
Sole Lead Arranger in their respective capacities as Lenders) shall
pay to the Administrative Agent an administrative fee for processing
such assignment in the amount of $2,500.
(e) The Administrative Agent shall maintain at the Principal Office a copy
of each Assignment and Acceptance Agreement delivered to and accepted
by it and a register for the recordation of the names and addresses of
the Lender Parties and the Revolving Commitment and/or Bridge Loan
Commitment of each Lender Party from time to time (the "Register").
The Administrative Agent shall give each Lender Party and the Borrower
notice of the assignment by any Lender Party of its rights as
contemplated by this Section. The Borrower, the Administrative Agent
and the Lender Parties may treat each Person whose name is recorded in
the Register as a Lender Party hereunder for all purposes of this
Credit Agreement. The Register and copies of each Assignment and
Acceptance Agreement shall be available for inspection by the Borrower
or any Lender Party at any reasonable time and from time to time upon
reasonable prior notice to the Administrative Agent. Upon its receipt
of an Assignment and Acceptance Agreement executed by an assigning
Lender Party, together with each Note subject to such assignment, the
Administrative Agent shall, if such Assignment and Acceptance
Agreement has been-completed and if the Administrative Agent receives
the processing and recording fee described in subsection (d) above,
(i) accept such Assignment and Acceptance Agreement, (ii) record the
information contained therein in the Register and (iii) give prompt
notice thereof to the Borrower.
(f) In addition to the assignments and participations permitted under the
foregoing provisions of this Section, any Lender Party may assign and
pledge all or any portion of its Loans and its Notes or Bridge Notes
to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such Federal Reserve
Bank, and such Loans and Notes or Bridge Notes shall be fully
transferable as provided therein. No such assignment shall release the
assigning Lender Party from its obligations hereunder.
(g) A Lender Party may furnish any information concerning the Borrower or
any Subsidiary in the possession of such Lender Party from time to
time to Assignees and Participants (including prospective Assignees
and Participants) subject to compliance with Section 11.7.
(h) Anything in this Section to the contrary notwithstanding, no Lender
Party may assign or participate any interest in any Loan held by it
hereunder to the Borrower, any Subsidiary or any of their respective
Affiliates.
(i) Each Lender Party agrees that, without the prior written consent of
the Borrower and the Administrative Agent, it will not make any
assignment hereunder in any manner or under any circumstances that
would require registration or qualification of, or filings in respect
of, any Loan, Note or Bridge Note under the Securities Act or any
other securities laws United States of America or of any other
jurisdiction.
Section 11.5 Amendments, Waivers and Consents.
Neither this Credit Agreement nor any other Credit Document nor any of
the terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing entered into by, or approved in writing by, each of the Credit Parties
party thereto and the Required Lenders, provided, however, that:
(a) without the consent of each Lender Party, neither this Credit
Agreement nor any other Credit Document may be amended, changed,
waived, discharged or terminated so as to
(i) extend the final maturity of any Loan or of any
reimbursement obligation, or any portion thereof, arising from drawings
under Letters of Credit, or extend or waive any principal payment of
any Loan, or any portion thereof,
(ii) reduce the rate or extend the time of payment of interest
on any Loan or of any reimbursement obligation, or any portion thereof,
arising from drawings under Letters of Credit (other than as a result
of waiving the applicability of any post-default increase in interest
rates) or of any Fees,
(iii) reduce or waive the principal amount of any Loan or of
any reimbursement obligation, or any portion thereof, arising from
drawings under Letters of Credit,
(iv) except as contemplated in Section 7.20(a) or as the
result of or in connection with an Asset Disposition not prohibited by
Section 8.10, release all or substantially all of the Collateral,
(v) except as the result of or in connection with a
dissolution, merger or disposition of a Combined Party not prohibited
by Section 8.9 or Section 8.10, release the Borrower or any of the
other Credit Parties from its or their obligations under the Credit
Documents except as otherwise provided for herein (including, without
limitation, in Section 4.3),
(vi) amend, modify or waive any provision of this Section
11.5, of any Section contained in Sections 3.2, 3.9, 3.10, 3.11, 3.12,
3.13, 3.14, 3.15, 3.16, 3.17, 3.18, 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.9,
8.10, 8.14, 8.16, 8.19, 9.1(a), 9.1(n), 11.2, 11.3, 11.4, or 11.11,
(vii) amend, modify or waive any provision of Sections 7.11(f)
or 7.11(g) except to the extent (A) the required Unencumbered Interest
Coverage Ratio set forth in Section 7.11(f) is increased or (B) the
required Leverage Ratio set forth in Section 7.11(g) is decreased,
(viii) amend, modify or waive the "October 31, 2000" date
restrictions contained in Section 3.2,
(ix) amend or modify the definition of "Borrowing Base Amount"
as set forth herein or the manner of calculation with respect to such
definition,
(x) amend, modify or waive any provision of any covenant
contained herein to make such covenant more restrictive with respect to
the Bridge Loans than to the Revolving Loans, Swingline Loans or LOC
Obligations,
(xi) increase the Revolving Commitment or the Bridge Loan
Commitment of any Lender Party without the consent of such Lender Party
over the amount thereof in effect (it being understood and agreed that
(A) a waiver of any Default or Event of Default, (B) any mandatory
reduction in the Commitments or (C) the assignment of any Loans from
one Lender Party to another Lender or Eligible Assignee in accordance
with the terms hereof shall not constitute a change in the terms of any
Revolving Commitment or Bridge Loan Commitment of any Lender Party);
(xii) reduce any percentage specified in, or otherwise modify,
the definition of Required Lenders, or
(xiii) consent to the assignment or transfer by the Borrower
or all or substantially all of the other Credit Parties of any of its
or their rights and obligations under (or in respect of) the Credit
Documents except as permitted thereby;
(b) without the consent of the Required Lenders, no Default or Event of
Default may be waived for purposes of Section 5.2(d);
(c) without the consent of the Administrative Agent, no provision of
Section 10 may be amended, changed, waived, discharged or terminated;
and
(d) without the consent of the Issuing Lender, no provision of Section 2.3
may be amended, changed, waived, discharged or terminated.
Notwithstanding (i) the fact that the consent of all the Lender Parties
is required in certain circumstances as set forth above, (x) each Lender Party
is entitled to vote as such Lender Party may unilaterally decide on any
bankruptcy reorganization plan that affects the Loans, and each Lender Party
acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code
supersedes the unanimous consent provisions set forth herein and (y) the
Required Lenders shall determine whether or not to allow a Credit Party to use
cash collateral in the context of a bankruptcy or insolvency proceeding and such
determination shall be binding on all of the Lender Parties and (ii) anything
contained herein to the contrary, any contemplated amendments, waivers,
modifications, changes, discharges or terminations in connection with the future
transfer of the Borrower's or any other Credit Party's interests in the Net
Lease Subsidiary to AffiliateCo or any Affiliate thereof shall require the
consent of only the Required Lenders and shall not be subject to this Section
11.5.
Section 11.6 Nonliability of Administrative Agent and Lenders.
The relationship between the Borrower, on the one hand, and the Lender
Parties and the Administrative Agent, on the other hand, shall be solely that of
borrower and lender. Neither the Administrative Agent nor any Lender Party shall
have any fiduciary responsibilities to the Borrower and no provision in this
Credit Agreement or in any of the other Credit Documents, and no course of
dealing between or among any of the parties hereto, shall be deemed to create
any fiduciary duty owing by the Administrative Agent or any other Lender Party
to any other Lender Party, the Parents, the Borrower or any other Subsidiary.
Neither the Administrative Agent nor any Lender Party undertakes any
responsibility to the Borrower or any other Credit Party to review or inform the
Borrower or any other Credit Party of any matter in connection with any phase of
the Borrower's business or operations.
Section 11.7 Confidentiality.
Except as otherwise provided by Applicable Law, the Administrative
Agent and each Lender Party shall utilize all non-public information obtained
pursuant to the requirements of this Credit Agreement which has been identified
as confidential or proprietary by the Borrower in accordance with the customary
procedure of the Administrative Agent or such Lender Party, as the case may be,
for handling confidential information of this nature and in accordance with safe
and sound banking practices but in any event may make disclosure: (a) to any of
their respective affiliates (,provided they shall agree to keep such information
confidential in accordance with the terms of this Section); (b) as reasonably
required by any bona fide Assignee, Participant or other transferee in
connection with the contemplated transfer of any Revolving Commitment, Bridge
Loan Commitment or participations therein as permitted hereunder (provided they
shall agree to keep such information confidential in accordance with the terms
of this Section); (c) as required by any Governmental Authority or
representative thereof or pursuant to legal process; (d)to the Administrative
Agent's or such Lender Party's independent auditors and other professional
advisors (provided they shall be notified of the confidential nature of the
information); (e) after the happening and. during the continuance of an Event of
Default, to any other Person, in connection with the exercise by the
Administrative Agent or the Lender Parties of rights hereunder or under any of
the other Credit Documents and (f) as necessary or appropriate in any Lender
Party's reasonable judgment.
Section 11.8 Indemnification.
(a) The Borrower shall and hereby agrees to indemnify, defend and hold
harmless the Administrative Agent, the Sole Lead Arranger, each
affiliate of the Administrative Agent or the Sole Lead Arranger, and
each of the Lender Parties and their respective directors, officers,
shareholders, agents, employees and counsel (each referred to herein
as an "Indemnified Party") from and against any and all losses, costs,
claims, damages, liabilities, deficiencies, judgments or expenses of
every kind and nature (including, without limitation, amounts paid in
settlement, court costs and the fees and disbursements of counsel
incurred in connection with any litigation, investigation, claim or
proceeding or any advice rendered in connection therewith) (the
foregoing items referred to herein as "Claims and Expenses") incurred
by an Indemnified Party in connection with, arising out of, or by
reason of, any suit, cause of action, claim, arbitration,
investigation or settlement, consent decree or other proceeding (the
foregoing referred to herein as an "Indemnity Proceeding") which is in
any way related directly or indirectly to: (i) this Credit Agreement
or any other Credit Document or the transactions contemplated thereby;
(ii) the making of any Loans and the issuance of any Letters of Credit
hereunder; (iii) any actual or proposed use by the Borrower of the
proceeds of the Loans or the Letters of Credit; (iv) the
Administrative Agent's, the Sole Lead Arranger or any Lender Party's
entering into this Credit Agreement; (v) the fact that the
Administrative Agent and the Lender Parties have established the
credit facility evidenced hereby in favor of the Borrower; (vi) the
fact that the Administrative Agent and the Lender Parties are
creditors of the Borrower and have or are alleged to have information
regarding the financial condition, strategic plans or business
operations of the Parents, the Borrower and the other Subsidiaries;
(vii) the fact that the Administrative Agent and the Lender Parties
are material creditors of the Borrower and are alleged to influence
directly or indirectly the business decisions or affairs of either
Parent, the Borrower and the other Subsidiaries or their financial
condition; (viii) the exercise of any right or remedy the
Administrative Agent, the Sole Lead Arranger or the Lender Parties may
have under this Credit Agreement or the other Credit Documents; (ix)
any violation or non-compliance by either Parent, the Borrower or any
other Subsidiary of any Applicable Law (including any Environmental
Law) including, but not limited to, any Indemnity Proceeding commenced
by (A) the Internal Revenue Service or state taxing authority or (B)
any Governmental Authority or other Person under any Environmental
Law, including any Indemnity Proceeding commenced by a Governmental
Authority or other Person seeking remedial or other action to cause
either Parent, the Borrower or the other Subsidiaries (or its
respective properties) (or the Administrative Agent and/or the Lender
Parties as successors to any such Credit Party) to be in compliance
with such Environmental Laws; provided, however, that the Borrower
shall not be obligated to indemnify any Indemnified Party for any
Claims and Expenses in connection with, arising out of, or by reason
of any acts or omissions of such Indemnified Party in connection with
matters described in the immediately preceding clause (i) or (viii) to
the extent such acts or omissions have been found in a final
non-appealable judgment by a court of competent jurisdiction to
constitute gross negligence or willful misconduct.
(b) The Borrower's indemnification obligations under this Section shall
apply to all Indemnity Proceedings arising out of, or related to, the
foregoing whether or not an Indemnified Party is a named party in such
Indemnity Proceeding. In this connection, this indemnification shall
cover all reasonable costs and expenses of any Indemnified Party in
connection with any deposition of any Indemnified Party or compliance
with any subpoena (including any subpoena requesting the production of
documents). This indemnification shall, among other things, apply to
any Indemnity Proceeding commenced by other creditors of either
Parent, the Borrower or any other Subsidiary, any shareholder of
either of the Parents, the Borrower or any other Subsidiary (whether
such shareholder(s) are prosecuting such Indemnity Proceeding in their
individual capacity or derivatively on behalf of the Borrower or the
Parent), any account debtor of either of the Parents, the Borrower or
any other Subsidiary or by any Governmental Authority. This
indemnification shall apply to any Indemnity Proceeding arising during
the pendency of any bankruptcy proceeding filed by or against either
of the Parents, the Borrower and/or any other Subsidiary.
(c) All out-of-pocket fees and expenses of, and all amounts paid to
third-persons by, an Indemnified Party shall be advanced by the
Borrower at the request of such Indemnified Party notwithstanding any
claim or assertion by the Borrower that such Indemnified Party is not
entitled to indemnification hereunder upon receipt of an undertaking
by such Indemnified Party that such Indemnified Party will reimburse
the Borrower if it is actually and finally determined by a court of
competent jurisdiction that such Indemnified Party is not so entitled
to indemnification hereunder.
(d) An Indemnified Party may conduct its own investigation and defense of,
and may formulate its own strategy with respect to, any Indemnified
Proceeding covered by this Section and, as provided above, all costs
and expenses incurred by the Indemnified Party shall be reimbursed by
the Borrower. No action taken by legal counsel chosen by an
Indemnified Party in investigating or defending against any such
Indemnified Proceeding shall vitiate or in any way impair the
obligations and duties of the Borrower hereunder to indemnify and hold
harmless each such Indemnified Party; provided, however, that (i) if
the Borrower is required to indemnify an Indemnified Party pursuant
hereto and (ii) the Borrower has provided evidence reasonably
satisfactory to such Indemnified Party that the Borrower has the
financial wherewithal to reimburse such Indemnified Party for any
amount paid by such Indemnified Party with respect to such Indemnified
Proceeding, such Indemnified Party shall not settle or compromise any
such Indemnified Proceeding without the prior written consent of the
Borrower (which consent shall not be unreasonably withheld or
delayed).
(e) If and to the extent that the obligations of the Borrower hereunder
are unenforceable for any reason, the Borrower hereby agrees to make
the maximum contribution to the payment and satisfaction of such
obligations which is permissible under Applicable Law. The Borrower's
obligations hereunder shall survive any termination of this Credit
Agreement and the other Credit Documents and the payment in full of
the Obligations, and are in addition to, and not in substitution of,
any other of its obligations set forth in this Credit Agreement or any
other Credit Document to which it is a party.
Section 11.9 No Waiver; Remedies Cumulative.
No failure or delay on the part of the Administrative Agent or any
Lender Party in exercising any right, power or privilege hereunder or under any
other Credit Document and no course of dealing between the Agent or any Lender
Party and any of the Credit Parties shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, power or privilege hereunder or
under any other Credit Document preclude any other or further exercise thereof
or the exercise of any other right, power or privilege hereunder or thereunder.
The rights and remedies provided herein are cumulative and not exclusive of any
rights or remedies which the Agent or any Lender Party would otherwise have. No
notice to or demand on any Credit Party in any case shall entitle the Credit
Parties to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Agent or the Lender
Parties to any other or further action in any circumstances without notice or
demand.
Section 11.10 Termination; Survival.
At such time as (a) all of the Revolving Commitments and Bridge Loan
Commitments have been terminated, (b) none of the Lender Parties is obligated
any longer under this Credit Agreement to make any Loans, (c) the Administrative
Agent is no longer obligated under this Credit Agreement to issue any Letters of
Credit, (d) no Letters of Credit remain outstanding, - and (e) all Obligations
(other than obligations which survive as provided in the following sentence)
have been paid and satisfied in full, this Credit Agreement shall terminate.
Notwithstanding any termination of this Credit Agreement, or of the other Credit
Documents, the indemnities to which the Administrative Agent, the Sole Lead
Arranger and the Lender Parties are entitled under the provisions of Sections
2.3(i), 10.7, 11.2 and 11.8 and any other provision of this Credit Agreement and
the other Credit Documents, and the waivers of jury trial and submission to
jurisdictions contained in Sections 11.14 and 11.15, shall continue in full
force and effect and shall protect the Administrative Agent, the Sole Lead
Arranger and the Lender Parties against events arising after such termination as
well as before.
Section 11.11 Severability of Provisions.
Any provision of this Credit Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability without invalidating
the remainder of such provision or the remaining provisions or affecting the
validity or enforceability of such provision in any other jurisdiction.
Section 11.12 Binding Effect; Termination.
(a) This Credit Agreement shall become effective at such time on or after
the Closing Date when it shall have been executed by each Credit Party
and the Agent, and the Agent shall have received copies hereof
(telefaxed or otherwise) which, when taken together, bear the
signatures of each Lender Party, and thereafter this Credit Agreement
shall be binding upon and inure to the benefit of each Credit Party,
the Agent and each Lender Party and their respective successors and
assigns.
(b) The term of this Credit Agreement shall be until the Credit Party
Obligations are Fully Satisfied.
Section 11.13 GOVERNING LAW.
THIS CREDIT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NORTH CAROLINA, WITHOUT REGARD TO
CONFLICT OF LAW PROVISIONS THEREOF.
Section 11.14 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES TO THE FULLEST
EXTENT PERMITTED UNDER APPLICABLE LAW ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED THEREBY AND TO THE FULLEST EXTENT PERMITTED BY LAW
WAIVES ANY RIGHTS THAT IT MAY HAVE TO CLAIM OR RECEIVE CONSEQUENTIAL OR SPECIAL
DAMAGES IN CONNECTION WITH ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS CREDIT AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.
Section 11.15 Consent to Jurisdiction.
(a) Any legal action or proceeding with respect to this Credit Agreement
may be brought in the courts of the State of North Carolina in
Mecklenberg County, or of the United States for the Western District
of North Carolina, and, by execution and delivery of this Credit
Agreement, each of the Credit Parties hereby irrevocably accepts for
itself and in respect of its property, generally and unconditionally,
the nonexclusive jurisdiction of such courts. Each of the Credit
Parties further irrevocably consents to the service of process out of
any of the aforementioned courts in any such action or proceeding by
any manner permitted by applicable law.
(b) Each of Credit Parties hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this
Credit Agreement in the courts referred to in Section 11.15(a). Each
of the parties hereto hereby further irrevocably waives and agrees not
to plead or claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient forum.
(c) Each party to this Credit Agreement irrevocably consents to service of
process in the manner provided for notices being sent by overnight
courier as described in Section 11.1. Nothing in this Credit Agreement
will affect the right of any party to this Credit Agreement to serve
process in any other manner permitted by law.
Section 11.16 Counterparts.
This Credit Agreement and any amendments, waivers, consents or
supplements may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all of which counterparts together
shall constitute but one and the same instrument.
Section 11.17 Limitation of Liability.
To the maximum extent permitted by Applicable Law, none of the
Administrative Agent, the Sole Lead Arranger, any Lender Party, or any
affiliate, officer, director, employee, attorney, or agent of the Administrative
Agent, the Sole Lead Arranger or any Lender Party, shall have any liability with
respect to, and each of the Parents and the Borrower hereby waives, releases,
and agrees not to sue any of them upon, any claim for any special, indirect,
incidental, or consequential damages suffered or incurred by the Borrower or
such Parent in connection with, arising out of, or in any way related to, this
Credit Agreement or any of the other Credit Documents, or any of the
transactions contemplated by this Credit Agreement or any of the other Credit
Documents. Each of the Parents and the Borrower hereby waives, releases, and
agrees not to sue the Administrative Agent, the Sole Lead Arranger or any Lender
Party or any of their respective affiliates, officers, directors, employees,
attorneys, or agents for punitive damages in respect of any claim in connection
with, arising out of, or in any way related to, this Credit Agreement or any of
the other Credit Documents, or any of the transactions contemplated by this
Credit Agreement or financed hereby.
Section 11.18 Obligations with Respect to Credit Parties.
The obligations of the Parents or the Borrower to direct or prohibit
the taking of certain actions by the any other Credit Party as specified herein
shall be absolute and not subject to any defense to the effect that such Parent
or the Borrower, as the case may be, does not control such Credit Party.
Section 11.19 Regulation D.
Each of the Lender Parties hereby represents and warrants to the
Borrower that it is a commercial lender, other financial institution or other
"accredited" investor (as defined in SEC Regulation D) which makes or acquires
or loans on the ordinary course of business and that it will make or acquire
Loans for its own account in the ordinary course of business.
Section 11.20 Entire Agreement.
This Credit Agreement, the Notes, and the other Credit Documents
referred to herein embody the final, entire agreement among the parties hereto
and supersede any and all prior commitments, agreements, representations, and
understandings, whether written or oral, relating to the subject matter hereof
and may not be contradicted or varied by evidence of prior, contemporaneous, or
subsequent oral agreements or discussions of the parties hereto.
Section 11.21 Construction.
The Administrative Agent, each Parent, the Borrower and each Lender
Party acknowledge that each of them has had the benefit of legal counsel of its
own choice and has been afforded an opportunity to review this Credit Agreement
and the other Credit Documents with its legal counsel and that this Credit
Agreement and the other Credit Documents shall be construed as if jointly
drafted by the Administrative Agent, the Borrower and each Lender Party.
Section 11.22 Limitation of Liability of Officers, Directors, Etc.
THE ADMINISTRATIVE AGENT AND THE LENDER PARTIES SHALL LOOK SOLELY TO
THE BORROWER, THE PLEDGORS AND THE GUARANTORS FOR THE ENFORCEMENT OF ANY CLAIM
AGAINST THE BORROWER AND ACCORDINGLY NONE OF THE OFFICERS, DIRECTORS, EMPLOYEES
OR SHAREHOLDERS OF THE BORROWER OR EITHER PARENT SHALL HAVE ANY PERSONAL
LIABILITY FOR OBLIGATIONS ENTERED INTO BY OR ON BEHALF OF THE BORROWER EXCEPT AS
ANY SUCH PERSON MAY AGREE OTHERWISE 1N WRITING.
Section 11.23 No Novation.
THE PARTIES HERETO HAVE ENTERED INTO THIS CREDIT AGREEMENT SOLELY TO
AMEND AND RESTATE THE TERMS OF THE EXISTING CREDIT AGREEMENT. THE PARTIES DO NOT
INTEND THIS CREDIT AGREEMENT NOR THE TRANSACTIONS CONTEMPLATED HEREBY TO BE, AND
THIS CREDIT AGREEMENT AND THE TRANSACTION CONTEMPLATED HEREBY SHALL NOT BE
CONSTRUED TO BE, A NOVATION OF ANY OF THE OBLIGATIONS OWING BY THE BORROWER
UNDER OR IN CONNECTION WITH THE EXISTING CREDIT AGREEMENT OR ANY OF THE OTHER
CREDIT DOCUMENTS (AS DEFINED IN THE EXISTING CREDIT AGREEMENT).
[Signatures on Following Pages]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be executed by their authorized officers all as of
the day and year first above written.
BORROWER:
CNL APF PARTNERS, LP
By: CNL APF GP CORP., its general partner
By:______________________________________
Name: Steven D. Shackelford
Title: Senior Vice President
PARENTS:
CNL APF GP CORP.
By:_______________________________________
Name: Steven D. Shackelford
Title: Senior Vice President
CNL APF LP CORP.
By:________________________________________
Name: Steven D. Shackelford
Title: Senior Vice President
SUBSIDIARY GUARANTORS:
CNL RESTAURANT BOND HOLDINGS, LP
By: CNL RESTAURANT BOND HOLDINGS, INC., its
general partner
By:_______________________________________
Name: Steven D. Shackelford
Title: Senior Vice President
CNL FUNDING 2000-A, LP
By: CNL FUNDING 2000-A, INC., its general partner
By:_______________________________________
Name: Steven D. Shackelford
Title: Senior Vice President
CNL RESTAURANT BOND HOLDINGS, INC.
By:_______________________________________
Name: Steven D. Shackelford
Title: Senior Vice President
CNL FUNDING 2000-A, INC.
By:_______________________________________
Name: Steven D. Shackelford
Title: Senior Vice President
CNL RESTAURANT NET LEASE HOLDINGS, LP
By: CNL Restaurant Net Lease Holdings, Inc., its general
partner
By:_______________________________________
Name: Steven D. Shackelford
Title: Senior Vice President
