EXHIBIT 10.29
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CREDIT AGREEMENT
among
PMC COMMERCIAL TRUST,
as Borrower
BANK ONE, NA,
as Administrative Agent
and
THE LENDERS NAMED HEREIN,
as Lenders
FEBRUARY 29, 2004
$40,000,000 SENIOR UNSECURED
REVOLVING CREDIT FACILITY
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS AND TERMS..................................................................... 1
1.1 Definitions................................................................................... 1
1.2 Time References............................................................................... 17
1.3 Other References.............................................................................. 17
1.4 Accounting Principles......................................................................... 17
SECTION 2. COMMITMENT................................................................................ 18
2.1 Revolving Facility............................................................................ 18
2.2 Borrowing Procedure........................................................................... 18
2.3 Borrowing Requests............................................................................ 19
2.4 Reduction or Termination of Commitment by Borrower............................................ 19
SECTION 3. TERMS OF PAYMENT.......................................................................... 19
3.1 Notes and Payments............................................................................ 19
3.2 Interest and Principal Payments............................................................... 20
3.3 Interest Options.............................................................................. 21
3.4 Quotation of Rates............................................................................ 21
3.5 Default Rate.................................................................................. 21
3.6 Interest Recapture............................................................................ 21
3.7 Interest Calculations......................................................................... 22
3.8 Maximum Rate.................................................................................. 22
3.9 Interest Periods.............................................................................. 23
3.10 Conversions................................................................................... 23
3.11 Order of Application.......................................................................... 23
3.12 Sharing of Payments, Etc...................................................................... 24
3.13 Offset........................................................................................ 24
3.14 Booking Borrowings............................................................................ 24
3.15 Basis Unavailable or Inadequate for LIBOR Rate................................................ 25
3.16 Additional Costs.............................................................................. 25
3.17 Change in Governmental Requirements........................................................... 26
3.18 Consequential Loss............................................................................ 27
3.19 Foreign Lenders, Participants, and Purchasers................................................. 27
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SECTION 4. FEES...................................................................................... 27
4.1 Treatment of Fees............................................................................. 27
4.2 Fees of Administrative Agent.................................................................. 28
4.3 Upfront Fees.................................................................................. 28
4.4 Commitment Fee................................................................................ 28
4.5 Facility Fee.................................................................................. 28
SECTION 5. CONDITIONS PRECEDENT...................................................................... 28
5.1 Initial Advances.............................................................................. 28
5.2 All Borrowings................................................................................ 29
SECTION 6. REPRESENTATIONS AND WARRANTIES............................................................ 30
6.1 Purpose and Regulation U...................................................................... 30
6.2 Corporate Existence, Good Standing, Authority and Locations................................... 30
6.3 Subsidiaries and Names........................................................................ 31
6.4 Authorization and Contravention............................................................... 31
6.5 Binding Effect................................................................................ 31
6.6 Financials.................................................................................... 31
6.7 Solvency...................................................................................... 31
6.8 Litigation.................................................................................... 32
6.9 Taxes......................................................................................... 32
6.10 Environmental Matters......................................................................... 32
6.11 Employee Plans................................................................................ 32
6.12 Properties; Liens............................................................................. 33
6.13 Government Regulations........................................................................ 33
6.14 Transactions with Affiliates.................................................................. 33
6.15 Debt.......................................................................................... 33
6.16 Leases........................................................................................ 33
6.17 Labor Matters................................................................................. 33
6.18 Intellectual Property......................................................................... 34
6.19 Insurance..................................................................................... 34
6.20 Full Disclosure............................................................................... 34
SECTION 7. AFFIRMATIVE COVENANTS..................................................................... 34
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7.1 Certain Items Furnished....................................................................... 34
7.2 Use of Credit................................................................................. 36
7.3 Books and Records............................................................................. 36
7.4 Inspections................................................................................... 36
7.5 Taxes......................................................................................... 37
7.6 Payment of Obligation......................................................................... 37
7.7 Expenses...................................................................................... 37
7.8 Maintenance of Existence, Assets and Business................................................. 37
7.9 Insurance..................................................................................... 37
7.10 Compliance with Governmental Requirements..................................................... 38
7.11 Indemnification............................................................................... 38
7.12 Mortgage Loan Approval, Collection and Servicing Standards.................................... 40
7.13 Negative Pledge............................................................................... 40
SECTION 8. NEGATIVE COVENANTS........................................................................ 40
8.1 Payroll Taxes................................................................................. 41
8.2 Debt.......................................................................................... 41
8.3 Liens......................................................................................... 42
8.4 Employee Plans................................................................................ 43
8.5 Transactions with Affiliates.................................................................. 43
8.6 Compliance with Governmental Requirements and Documents....................................... 43
8.7 Investments................................................................................... 43
8.8 Qualifying Real Estate........................................................................ 44
8.9 Distributions; Other Payments................................................................. 44
8.10 Disposition of Assets......................................................................... 44
8.11 Mergers, Consolidations and Dissolutions...................................................... 45
8.12 Assignment.................................................................................... 45
8.13 Fiscal Year and Accounting Methods............................................................ 45
8.14 New Businesses................................................................................ 45
8.15 Government Regulations........................................................................ 45
8.16 Financial Contracts........................................................................... 45
8.17 Strict Compliance............................................................................. 45
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SECTION 9. FINANCIAL COVENANTS....................................................................... 45
9.1 Minimum Net Worth............................................................................. 45
9.2 Maximum Leverage Ratio........................................................................ 45
9.3 Maximum Non-Performing Loan Ratio............................................................. 45
9.4 Maximum Charge-Off Ratio...................................................................... 46
9.5 Positive Cash Flow............................................................................ 46
9.6 Non-Hotel/Motel Loans......................................................................... 46
9.7 Minimum Asset Coverage Ratio.................................................................. 46
SECTION 10. EVENT OF DEFAULT.......................................................................... 46
10.1 Payment of Obligation......................................................................... 46
10.2 Covenants..................................................................................... 46
10.3 Debtor Relief................................................................................. 46
10.4 Judgments and Attachments..................................................................... 47
10.5 Government Action............................................................................. 47
10.6 Misrepresentation............................................................................. 47
10.7 Ownership of Other Companies.................................................................. 47
10.8 Change of Control of Borrower................................................................. 47
10.9 Change in Management.......................................................................... 47
10.10 Other Funded Debt............................................................................. 47
10.11 Rate Management Transactions.................................................................. 47
10.12 Validity and Enforceability of Credit Documents............................................... 48
10.13 Material Agreement Default or Cancellation.................................................... 48
10.14 Environmental Matters......................................................................... 48
10.15 Employee Benefit Plans........................................................................ 48
SECTION 11. RIGHTS AND REMEDIES....................................................................... 49
11.1 Remedies Upon Event of Default................................................................ 49
11.2 Company Waivers............................................................................... 50
11.3 Performance by Administrative Agent........................................................... 50
11.4 Not in Control................................................................................ 50
11.5 Course of Dealing............................................................................. 51
11.6 Cumulative Rights............................................................................. 51
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11.7 Application of Proceeds....................................................................... 51
11.8 Certain Proceedings........................................................................... 51
11.9 Expenditures by Administrative Agent or Lenders............................................... 51
SECTION 12. ADMINISTRATIVE AGENT AND LENDERS.......................................................... 52
12.1 Administrative Agent.......................................................................... 52
12.2 Expenses...................................................................................... 53
12.3 Proportionate Absorption of Losses............................................................ 53
12.4 Delegation of Duties; Reliance................................................................ 54
12.5 Limitation of Administrative Agent's Liability................................................ 54
12.6 Event of Default.............................................................................. 55
12.7 Limitation of Liability....................................................................... 55
12.8 Relationship of Lenders....................................................................... 56
12.9 Benefits of Agreement......................................................................... 56
SECTION 13. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS......................................... 56
13.1 Successors and Assigns........................................................................ 56
13.2 Participations................................................................................ 56
13.3 Assignments................................................................................... 57
13.4 Dissemination of Information.................................................................. 58
13.5 Tax Treatment................................................................................. 58
SECTION 14. MISCELLANEOUS............................................................................. 58
14.1 Nonbusiness Days.............................................................................. 58
14.2 Communications................................................................................ 58
14.3 Form and Number of Documents.................................................................. 59
14.4 Exceptions to Covenants....................................................................... 59
14.5 Survival...................................................................................... 59
14.6 Governing Governmental Requirements........................................................... 59
14.7 Invalid Provisions............................................................................ 59
14.8 Conflicts Between Credit Documents............................................................ 59
14.9 Discharge Only Upon Payment in Full; Reinstatement in Certain Circumstances................... 59
14.10 Amendments, Consents, Conflicts, and Waivers.................................................. 60
14.11 Multiple Counterparts......................................................................... 60
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14.12 VENUE, SERVICE OF PROCESS, AND JURY TRIAL..................................................... 61
14.13 Entirety...................................................................................... 62
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SCHEDULES
Schedule 2 - Lenders and Commitments
Schedule 6.3 - Information Regarding Companies
Schedule 6.8 - Litigation
Schedule 8.2 - Existing Debt
Schedule 8.3 - Existing Liens
EXHIBITS
Exhibit A - Revolving Note
Exhibit B - Borrowing Request
Exhibit C - Conversion Notice
Exhibit D - Compliance Certificate
Exhibit E - Assignment Agreement
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is entered into as of February 29, 2004, among
PMC COMMERCIAL TRUST, a real estate investment trust organized under the laws of
the State of Texas ("Borrower"), certain Lenders (defined below) and BANK ONE,
NA, a national banking association with its main office in Chicago, Illinois, as
Administrative Agent (defined below) for itself and the other Lenders.
PRELIMINARY STATEMENT:
A. Borrower is a commercial lender that originates loans to small
business enterprises, primarily collateralized by first liens on the real estate
of the related business. Borrower's lending function consists primarily of
making loans to borrowers who operate in the lodging industry.
B. Borrower and Bank One (defined below) have previously entered into
that certain Revolving Credit Agreement (as renewed, extended or amended, the
"Previous Agreement") dated as of November 29, 1999, whereby Bank One provided a
revolving credit facility to Borrower for the purpose of financing Borrower's
mortgage loan origination business.
C. PMC Capital, Inc., a Florida corporation ("PMC Capital") and Bank
One have previously entered into that certain Revolving Credit Agreement (as
renewed, extended or amended, the "PMC Capital Agreement") dated as of March 22,
2000, whereby Bank One provided a revolving credit facility to Borrower for the
purpose of financing PMC Capital's commercial loan origination business.
D. Pursuant to that certain definitive Agreement and Plan of Merger
dated as of March 27, 2003, Borrower and PMC Capital will be merged and Borrower
will be the surviving entity.
E. Borrower has requested that Bank One extend credit to Borrower not
to exceed a total principal amount of $40,000,000 to be used by the Borrower to
finance Borrower's mortgage and commercial loan origination or for general
corporate purposes.
F. Upon the effectiveness of the merger of the Borrower and PMC Capital
contemplated by the Merger Agreement (the "Merger"), the Previous Agreement and
the PMC Capital Agreement will be terminated and this agreement will become
effective.
ACCORDINGLY, for adequate and sufficient consideration, the receipt of
which is hereby acknowledged, Borrower, Administrative Agent and Lenders agree
as follows:
SECTION 1. DEFINITIONS AND TERMS.
1.1 Definitions. As used in the Credit Documents:
"Administrative Agent" means Bank One, NA (or its successors appointed
under Section 12), acting as administrative, managing and syndication agent for
Lenders under the Credit Documents.
"Affiliate" of a Person means any other Person who directly or
indirectly controls, is controlled by, or is under common control with that
Person. For purposes of this definition (a) "control," "controlled by," and
"under common control with" mean possession, directly or indirectly, of power to
direct or cause the direction of management or policies (whether through
ownership of voting securities or other interests, by contract or otherwise) and
(b) the Companies are "Affiliates" of each other.
"Amerihost Properties" means any of the 30 hotel/motel properties
acquired by Borrower in connection with a sale/leaseback transaction dated May
21, 1998, between Borrower and Amerihost Properties, Inc., which are still owned
by Borrower at the applicable date of determination.
"Applicable Margin" means, for any day, the margin of interest under or
over the Base Rate or the LIBOR Rate, as the case may be, that is applicable
when the Base Rate or LIBOR Rate, as applicable, is determined under this
agreement, which margin of interest shall be as follows:
TYPE OF BORROWING APPLICABLE MARGIN
- -----------------------------------------------------------------
Base Rate - 0.5000%
- -------------------------------------------------------------
LIBOR Rate 1.8750%
- -------------------------------------------------------------
"Asset Coverage Ratio" means, at any time the ratio of (i) the sum of
(A) unencumbered cash and cash equivalents of Borrower and First Western, plus
(B) eighty-five percent (85%) of the aggregate outstanding principal balance of
whole unencumbered Performing Commercial Loans then owned by Borrower or First
Western, plus (C) fifty percent (50%) of the retained interest consisting of
interest only strip and excess collateralized portions only, plus (D) fifty
percent (50%) of the most recent appraised value of the unencumbered Amerihost
Properties to (ii) the outstanding principal amount of all Funded Debt (other
any than Mortgages related to the Amerihost Properties and preferred stock of
PMC Investment Corporation) for which either Borrower or First Western is
obligated.
"Asset Securitization" means any transaction or series of transactions
that may be entered into by any Company pursuant to which such Company or any of
its Subsidiaries may sell, convey or otherwise transfer any of their assets to a
Special Purpose Entity, and pursuant to which the Special Purpose Entity will,
in turn, pay to such Company a portion of the proceeds of a secured loan or debt
offering to public or private investors (with such secured loan or debt offering
being, among other things, non-recourse to Borrower).
"Assignment" means any assignment described in Section 13.3.
"Bank One" means Bank One, NA., in its individual capacity as a Lender,
and its successors and assigns.
"Base Rate" means, for any day, the greater of (a) an annual interest
rate equal from day to day to the floating annual interest rate established by
Administrative Agent from time to time as its base rate of interest, which may
not be the lowest or best interest rate charged by
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Administrative Agent on loans similar to the Borrowings and (b) the sum of the
Federal Funds Rate plus 0.5%.
"Base Rate Borrowing" means a Borrowing bearing interest at the sum of
the Base Rate plus the Applicable Margin for Base Rate Borrowings.
"Borrower" is defined in the preamble to this agreement.
"Borrowing" means any amount disbursed (a) by one or more Lenders to or
on behalf of Borrower under the Credit Documents, either as an original
disbursement of funds or a renewal, extension, modification or continuation of
an amount outstanding, or (b) by any Lender in accordance with, and to satisfy a
Company's obligations under, any Credit Document.
"Borrowing Date" is defined in Section 2.3(a).
"Borrowing Request" means a request, subject to Section 2.3(a),
substantially in the form of Exhibit B and otherwise in form and scope
acceptable to Administrative Agent.
"Business Day" means (a) for purposes of any LIBOR Rate Borrowing, a
day when commercial banks are open for international business in London,
England, and (b) for all other purposes, any day other than Saturday, Sunday and
any other day that most commercial banks in Texas are closed.
"Capital Lease" means any capital lease or sublease which should be
capitalized on a balance sheet in accordance with GAAP.
"Cash Flow" shall mean for the Companies, for the applicable period, an
amount equal to (a) EBITDA, less (b) Distributions, plus (c) principal amounts
repaid to Borrower with respect to Mortgage Loans and Commercial Loans, less (d)
Interest Expense, less (e) payments of principal made by Borrower with respect
to its Debt other than the Obligation; provided that in the case of any Debt
with bullet payments due during such period, Cash Flow shall be calculated based
on payments that would be due during such period pursuant to a hypothetical
15-year amortization of such bullet payments.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. Sections 9601 et seq.
"Change of Control" means the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934, as amended) of 20% or more of the outstanding shares of beneficial
interest of Borrower having voting rights.
"Charge-Off Ratio" means a fraction, expressed as a percentage, the
numerator of which is the sum of the total amounts charged off by Borrower with
respect to its Mortgage Loans (less any such amounts subsequently recovered)
during the applicable period of determination, and the denominator of which is
the aggregate average principal balance of all of Borrower's Mortgage Loans for
such period.
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"Closing Date" means the date upon which this agreement has been
executed by Borrower, Lenders and Administrative Agent and all conditions
precedent specified in Section 5.1 have been satisfied or waived.
"Code" means the Internal Revenue Code of 1986.
"Commercial Loan Obligor" means each Person who is obligated or liable
for the payment or performance of all or any portion of a Commercial Loan.
"Commercial Loans" means loans made by any Company to any Person (other
than an Affiliate of the Companies) for business or commercial purposes and not
for family consumer or household use, which loans are secured by real property
or personal property.
"Commitment" means an amount (subject to reduction or cancellation as
herein provided) equal to $40,000,000.
"Commitment Usage" means, at the time of any determination thereof, the
aggregate Principal Debt.
"Commitment Percentage" means, for any Lender, the proportion (stated
as a percentage) that its Commitment bears to the total Commitments of all
Lenders.
"Committed Sum" means, for any Lender, the amount (subject to reduction
or cancellation as provided in this Agreement) stated beside its name on
Schedule 2, as such amount may be adjusted pursuant to permitted assignments of
such Lender's Rights as reflected from time to time on the most recently amended
Schedule 2, if any, delivered by Administrative Agent pursuant to this
agreement.
"Companies" means at any time, Borrower and each of its subsidiaries
(other than any Special Purpose Entities).
"Compliance Certificate" means a certificate substantially in the form
of Exhibit D, and otherwise in form and scope satisfactory to Administrative
Agent, and signed by a Responsible Officer of Borrower.
"Consequential Loss" means any loss, expense or reduction in yield (but
not any Applicable Margin) that any Lender reasonably incurs because (a)
Borrower fails or refuses (for any reason whatsoever other than a default by
Administrative Agent or a Lender claiming that loss, expense or reduction in
yield) to take any Borrowing that it has requested under this agreement or (b)
Borrower prepays or pays any Borrowing or converts any Borrowing to a Borrowing
of another Type, in each case, other than on the last day of the applicable
Interest Period.
"Consolidated Companies" means, at any time, Borrower and each of its
Subsidiaries (including any Special Purpose Entities that, according to GAAP,
are required to be shown on Borrower's consolidated Financials).
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"Construction Loan" means any Mortgage Loan with respect to which the
loan funds are used to finance the construction, renovation or improvement of
one or more Projects (provided that such Mortgage Loan will no longer constitute
a Construction Loan once the construction, renovation or improvement of such
Project or Projects is completed, if the Mortgage Loan is structured so as to
convert automatically to a permanent loan upon completion of the construction
period).
"Conversion Notice" means a notice and request from Borrower to
Administrative Agent, subject to Section 3.10, substantially in the form of
Exhibit C, and otherwise in form and scope satisfactory to Administrative Agent.
"Credit Documents" means (a) this agreement, certificates and reports
delivered under this agreement, and exhibits and schedules to this agreement,
(b) all agreements, documents, and instruments in favor of Administrative Agent
or Lenders (or Administrative Agent on behalf of Lenders) ever delivered under
this agreement or otherwise delivered in connection with all or any part of the
Obligation (other than Assignments), and (c) all renewals, extensions,
modifications and restatements of, and amendments and supplements to, any of the
foregoing, which are made in accordance with the provisions of the respective
Credit Documents.
"Current Financials," unless otherwise specified:
(a) means either (i) the Companies' consolidated
Financials for the year ended December 31, 2003, or (ii) at any time
after annual Financials are first delivered under Section 7.1(a), the
Companies' annual Financials then most recently delivered to
Administrative Agent under Section 7.1(a), together with the Companies'
quarterly Financials then most recently delivered to Administrative
Agent under Section 7.1(b); but
(b) does not include the results of operation and cash
flows for any Company for the time period before it becomes a member of
Borrower's consolidated group.
"Debt" means, with respect to any Person on any date of determination
(without duplication), (a) all obligations for borrowed money, (b) all
obligations evidenced by bonds, debentures, notes or similar instruments, (c)
all obligations to pay the deferred purchase price of property or services,
except trade accounts payable arising in the ordinary course of business, which
are paid when due in accordance with ordinary-course payment terms or which are
being contested in good faith in appropriate proceedings, (d) all obligations
arising under acceptance facilities or facilities for the discount or sale of
accounts or loans receivable, (e) all direct or contingent obligations in
respect of letters of credit, (f) Capital Lease obligations, (g) liabilities
secured (or for which the holder of any obligations or liabilities has an
existing Right, contingent or otherwise, to be so secured) by any Lien existing
on property owned or acquired by that Person and (h) all guaranties,
endorsements and other contingent obligations for liabilities, obligations or
the maintenance of the financial condition of others, including obligations to
repurchase or purchase properties or to maintain or cause to maintain any
financial condition.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America and all other applicable laws providing for liquidation,
conservatorship, bankruptcy, moratorium,
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rearrangement, receivership, insolvency, reorganization, or suspension of
payments or similar Governmental Requirements affecting creditors' Rights.
"Default Rate" means, for any day, an annual interest rate equal to the
lesser of either (a) the Base Rate on such day plus 3.0% or (b) the Maximum
Rate.
"Delinquent Loans" means, at any time, the sum of (i) the aggregate
unpaid principal amount of Commercial Loans and Mortgage Loans owned by any
Company or Special Purpose Entity which are 31 or more days delinquent (whether
under the initial payment plan or a modified payment plan established pursuant
to a workout), plus (ii) assets acquired in satisfaction of debt, including any
assets acquired through foreclosure, by deed-in-lieu of foreclosure, liquidation
or other similar actions, plus (iii) Commercial Loans and Mortgage Loans then
subject to any legal suit, arbitration proceeding or other similar action or
proceeding.
"Distribution" means, with respect to any shares of any beneficial
interests, capital stock or other equity securities issued by a Person (a) the
retirement, redemption, purchase, repurchase or other acquisition for value of
those securities, (b) the declaration or payment of any dividend on or with
respect to those securities, (c) any loan or advance by that Person to, or other
investment by that Person in, the holder of any of those securities and (d) any
other payment by that Person with respect to those securities.
"EBITDA" means, with respect to any Person and for any period (without
duplication) an amount equal to (a) Net Income, plus (b) to the extent deducted
in calculating Net Income, the sum of (i) Interest Expense, plus (ii) Tax
expense, plus (iii) depreciation and amortization from its continuing
operations, minus (c) to the extent included in calculating Net Income, any
gains that are extraordinary items.
"Employee Plan" means any employee pension benefit plan (a) covered by
Title IV of ERISA and established or maintained by Borrower or any ERISA
Affiliate (other than a Multiemployer Plan) or (b) established or maintained by
Borrower or any ERISA Affiliate or to which Borrower or any ERISA Affiliate
contributes, under the Governmental Requirements of any foreign country.
"Environmental Investigation" means any health, safety or environmental
site assessment, investigation, study, review, audit, compliance audit or
compliance review conducted at any time or from time to time (whether at the
request of Administrative Agent or any Lender, upon the order or request of any
Governmental Authority, or at the voluntary instigation of any Company or
Affiliate of any Company or otherwise) concerning any Real Property or the
business operations or activities of any Company or Affiliate of any Company,
including, without limitation, (a) air, soil, groundwater or surface-water
sampling and monitoring, (b) repair, cleanup, remediation, or detoxification,
(c) preparation and implementation of any closure, remedial, spill, emergency or
other plans, and (d) any health, safety or environmental compliance audit or
review.
"Environmental Law" means any applicable Governmental Requirement that
relates to (a) the condition of air, ground or surface water, soil, or other
environmental media, (b) the environment or natural resources, (c) safety or
health, (d) the regulation of any contaminants,
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wastes, and Hazardous Substances, including, without limitation, CERCLA, OSHA,
the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.), the
Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), the
Clean Water Act (33 U.S.C. Section 1251 et seq.), the Clean Air Act (42 U.S.C.
Section 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. Section 2601
et seq.), the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C.
Section 136 et seq.), the Emergency Planning and Community Right-to-Know Act (42
U.S.C. Section 11001 et seq.), the Safe Drinking Water Act (42 U.S.C. Section
201 and Section 300f et seq.), the Rivers and Harbors Act (33 U.S.C. Section 401
et seq.), the Oil Pollution Act (33 U.S.C. Section 2701 et seq.), state and
local Governmental Requirements, and any future Governmental Requirements which
may be enacted or adopted, in each case, now existing or hereafter adopted,
which are analogous to any of the preceding referenced requirements, or (e) the
Release or threatened Release of Hazardous Substances.
"Environmental Liability" means any liability, loss, fine, penalty,
charge, lien, damage, cost or expense of any kind to the extent that it results
directly or indirectly, in whole or in part, (a) from the violation of any
Environmental Law, (b) from the Release or threatened Release of any Hazardous
Substance, (c) from removal, remediation, or other actions in response to the
Release or threatened Release of any Hazardous Substance, (d) from actual or
threatened damages to natural resources, (e) from the imposition of injunctive
relief or other orders, (f) from personal injury, death, or property damage
which occurs as a result of any Company's use, storage, handling, or Release or
threatened Release of a Hazardous Substance, or (g) from any Environmental
Investigation performed at, on, or for any Real Property.
"Environmental Lien" means any Lien imposed as a result of the
operation of any Environmental Law.
"Environmental Permit" means any permit or license from any Person
defined in clause (a) of the definition of Governmental Authority that is
required under any Environmental Law for the lawful conduct of any business,
process or other activity.
"Equity Issuance" means the issuance by Borrower of any shares of any
class of beneficial interests, stock, warrants, options or other equity
interests, whether pursuant to a public offering or otherwise, but does not
include (a) any present and future shares of beneficial interests, stock,
options or warrants issued to employees or trust managers of Borrower or (b) any
present and future shares of beneficial interests, stock, options or warrants
issued in respect of any dividend reinvestment plan established and maintained
by Borrower.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any Person that, for purposes of Title IV of
ERISA, is a member of Borrower's controlled group or is under common control
with Borrower within the meaning of Section 414 of the Code (which provisions
are deemed by this agreement to apply to Foreign Persons).
"Event of Default" is defined in Section 10.
"Existing Debt" is defined in Section 8.2(a).
"Existing Liens" is defined in Section 8.3(b).
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"Federal Funds Rate" means, for any day, the annual rate (rounded
upwards, if necessary, to the nearest 0.01%) determined by Administrative Agent
(which determination is conclusive and binding, absent manifest error) to be
equal to (a) the weighted average of the rates on overnight federal-funds
transactions with member banks of the Federal Reserve System arranged by
federal-funds brokers on that day, as published by the Federal Reserve Bank of
New York on the next Business Day or (b) if the rates referred to in the
preceding clause (a) are not published for any day, the average of the
quotations at approximately 10:00 a.m. received by Administrative Agent from
three federal-funds brokers of recognized standing selected by Administrative
Agent in its sole discretion.
"Financial Contract" of a Person means (i) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics, or (ii) any Rate Management
Transaction.
"Financials" of a Person means balance sheets, profit and loss
statements, reconciliations of capital and surplus, and statements of cash flow
prepared (a) according to GAAP (subject to year-end audit adjustments with
respect to interim Financials) and (b) except as stated in Section 1.4, in
comparative form to prior year-end figures or corresponding periods of the
preceding fiscal year or other relevant period, as applicable.
"First Western" means First Western SBLC, Inc.
"Foreign" means, in respect of any Person, a Person organized under the
Governmental Requirements of a jurisdiction other than, or domiciled outside of,
the United States of America or one of its states, territories, commonwealths,
or possessions.
"Funded Debt" means, at any time and without duplication, the sum of
(a) the balance of any obligation for borrowed money that is required by GAAP to
be shown as a liability, plus (b) total net rentals (net of any interest, Taxes,
or other expenses included in those rentals) payable under Capital Leases. For
purposes of this agreement, "Funded Debt" shall not include any Debt incurred by
a Special Purpose Entity in connection with an Asset Securitization, so long as
such Debt is non-recourse to Borrower in all respects.
"Funds from Operations" means net income determined in accordance with
GAAP, plus, to the extent deducted in calculating such net income, depreciation
and amortization expense.
"GAAP" means generally accepted accounting principles of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
the Financial Accounting Standards Board that are applicable from time to time.
"Governmental Authority" means any (a) local, state, territorial,
federal or Foreign judicial, executive, regulatory, administrative, legislative
or governmental agency, board, bureau, commission, department or other
instrumentality, (b) private arbitration board or panel or (c) central bank.
"Governmental Requirements" means all applicable statutes, laws,
treaties, ordinances, rules, regulations, orders, writs, injunctions, decrees,
judgments, opinions and interpretations of any Governmental Authority.
8
"Hazardous Substance" means (a) any substance that is reasonably
expected to require removal, remediation, or other response under any
Environmental Law, (b) any substance that is designated, defined or classified
as a hazardous waste, hazardous material, pollutant, contaminant, explosive,
corrosive, flammable, infectious, carcinogenic, mutagenic, radioactive,
dangerous, or toxic or hazardous substance under any Environmental Law,
including, without limitation, any hazardous substance within the meaning of
Section 101(14) of CERCLA, (c) petroleum, oil, gasoline, natural gas, fuel oil,
motor oil, waste oil, diesel fuel, jet fuel, and other petroleum hydrocarbons,
(d) asbestos and asbestos-containing materials in any form, (e) polychlorinated
biphenyls, (f) urea formaldehyde foam, or (g) any substance the presence of
which on any Real Property either (i) poses or threatens to pose a hazard to the
health or safety of persons or to the environment, or (ii) could reasonably be
expected to constitute a health or safety hazard to persons or the environment
if emanated or migrated from the Real Property.
"Interest Expense" means, with respect to any Person and for any period
(without duplication), all interest on that Person's Debts, whether paid in cash
or accrued as a liability and payable in cash during any subsequent period
(including, without limitation, the interest component of Capital Leases), as
determined by GAAP.
"Interest Period" is determined in accordance with Section 3.9.
"Investment" means, in respect of any Person, any loan, advance,
extension of credit or capital contribution to that Person, any investment in
that Person, or any purchase or commitment to purchase any equity securities or
Debt issued by that Person or substantially all of the assets or a division or
other business unit of that Person.
"Lender Lien" means any present or future first-priority Lien securing
the Obligation and assigned, conveyed, or granted to or created in favor of
Administrative Agent for the benefit of Lenders.
"Lenders" means the financial institutions (including, without
limitation, Administrative Agent in respect of its share of Borrowings) named on
Schedule 2 or on the most recently amended Schedule 2, if any, delivered by
Administrative Agent under this agreement, and, subject to this agreement, their
respective successors and assigns (but not any Participant who is not otherwise
a party to this agreement).
"LIBOR Rate" means, for a LIBOR Rate Borrowing and for the relevant
Interest Period, the annual interest rate (rounded upward, if necessary, to the
nearest 0.01%) equal to the quotient obtained by dividing (a) the rate that
deposits in United States dollars are offered to Administrative Agent in the
London interbank market at approximately 11:00 a.m. London, England time two
Business Days before the first day of that Interest Period as shown on the
display designated as "British Bankers Assoc. Interest Settlement Rates" on the
Telerate System ("Telerate"), Page 3750 or Page 3740, or such other page or
pages as may replace such pages on Telerate for the purpose of displaying such
rate (provided that if such rate is not available on Telerate then such offered
rate shall be otherwise independently determined by Administrative Agent from an
alternate, substantially similar independent service available to Administrative
Agent or shall be calculated by Administrative Agent by a substantially similar
methodology as that theretofore used to determine such offered rate in Telerate)
in an amount comparable to that
9
LIBOR Rate Borrowing and having a maturity approximately equal to that Interest
Period by (b) one minus the Reserve Requirement (expressed as a decimal)
applicable to the relevant Interest Period.
"LIBOR Rate Borrowing" means a Borrowing bearing interest at the sum of
the LIBOR Rate plus the Applicable Margin for LIBOR Rate Borrowings.
"Lien" means any lien, mortgage, security interest, pledge, assignment,
charge, title retention agreement or encumbrance of any kind and any other
arrangement for a creditor's claim to be satisfied from assets or proceeds prior
to the claims of other creditors or the owners (other than title of the lessor
under an operating lease).
"Litigation" means any action, proceeding, investigation or hearing by
or before any Governmental Authority.
"Loan Obligor" means any Mortgage Loan Obligor and/or Commercial Loan
Obligor.
"Material Adverse Event" means any circumstance or event that,
individually or collectively, is reasonably expected to result (at any time
before the Commitment is fully canceled or terminated and the Obligation is
fully paid and performed) in any (a) material impairment of (i) the ability of
Borrower or any other Company to perform any of its payment or other material
obligations under any Credit Document or (ii) the ability of Administrative
Agent or any Lender to enforce any of those obligations or Rights under the
Credit Documents, (b) material and adverse effect on the business, management or
financial condition of Borrower or of the Companies as a whole, as represented
to Lenders in the Current Financials, or (c) Event of Default or Potential
Default.
"Maximum Amount" and "Maximum Rate" respectively mean, for a Lender,
the maximum non-usurious amount and the maximum non-usurious rate of interest
that, under applicable Governmental Requirements of the State of Texas or
federal laws of the United States of America (as applicable), that Lender is
permitted to contract for, charge, take, reserve or receive on the Obligation.
"Merger" is defined in the preamble to this agreement.
"Mortgage" means a mortgage, deed of trust or trust deed that grants a
perfected first-priority Lien (or a second- or third-priority Lien in the case
of Second-Lien Loans and Third-Lien Loans, respectively) on a Project.
"Mortgage Loan" means a commercial mortgage loan (i.e. not for family,
consumer or household use) that is evidenced by a valid promissory note and is
secured by a Mortgage.
"Mortgage Loan Documents" means, with respect to each Mortgage Loan,
the documents designated as such on Schedule 5.2.
"Mortgage Loan Obligor" means each Person who is obligated or liable
for the payment or performance of all or any portion of a Mortgage Loan.
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"Mortgage Loans in Liquidation" means those Mortgage Loans with respect
to which the Mortgage Loan Obligor has failed to respond to Borrower's demand
and acceleration letters, and to which Borrower has determined that the best
course of action is to liquidate the Mortgage Loan in order to foreclose on the
collateral securing the same and has commenced such foreclosure action.
"Mortgage Loans in Litigation" means those Mortgage Loans with respect
to which the Mortgage Loan Obligors have ceased making regularly scheduled
payments and are not responding to Borrower's collection efforts, thereby
requiring legal action to collect the Mortgage Loan. If the Mortgage Loan
Obligor brings the loan current in accordance with the original terms thereof,
the Mortgage Loan may be returned to the status of an Eligible Mortgage Loan.
If, however, the terms of such Mortgage Loan are restructured, the Mortgage Loan
will be converted to a Workout Loan (i.e. no longer a Mortgage Loan in
Litigation). Furthermore, should an alternative repayment agreement be
established, the Mortgage Loan in Litigation will be considered a Workout Loan
(i.e. no longer a Mortgage Loan in Litigation).
"Multiemployer Plan" means a multiemployer plan as defined in Sections
3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code (or any similar type
of plan established or regulated under the Governmental Requirements of any
foreign country) to which Borrower or any ERISA Affiliate is making, or has
made, or is accruing, or has accrued, an obligation to make contributions.
"Net Income" of any Person means that Person's profit or loss
determined in accordance with GAAP.
"Net Proceeds" means the net proceeds, whether received in cash or
otherwise, received before, on or after the date of consummation of a subject
transaction, by any Company from such transaction, after payment of (a) all
usual and customary brokerage commissions and all other reasonable fees and
expenses related to such transaction (including, without limitation, reasonable
attorney's fees and closing costs), and (b) any Debt (other than the Obligation)
relating to the assets being sold which must be repaid in connection with such
subject transaction.
"Net Worth" means, for any Person, total beneficiaries' or
stockholders' equity, as applicable, as determined in accordance with GAAP.
"Non-Performing Loans" means (a) all of Borrower's Delinquent Loans,
(b) all of Borrower's Mortgage Loans with respect to which a default has
occurred as to the payment of any installment of principal or interest or
another monetary default has occurred under any Mortgage Loan Document related
thereto and such default has not been cured for more than sixty (60) days or, in
the case of Workout Loans, for more than thirty (30) days, (c) all of Borrower's
Mortgage Loans in Litigation, (d) all of Borrower's Mortgage Loans in
Liquidation, and (e) all of Borrower's Mortgage Loans with respect to which any
Mortgage Loan Obligor has not paid its Debts as they mature or has made a
general assignment for the benefit of creditors or with respect to whom
proceedings in bankruptcy or for reorganization or liquidation under the
bankruptcy code or under any other state or federal law for the relief of
debtors has been commenced by or against such Mortgage Loan Obligor and shall
not have been discharged
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within thirty (30) days of the commencement thereof or for whom (or for whose
assets) a receiver, trustee or custodian shall have been appointed or who may
die, be dissolved or who may involuntarily suspend the transaction of its
business.
"Notes" means, at the time of any determination thereof, all
outstanding and unpaid Revolving Notes.
"Obligation" means (a) all present and future Debts, liabilities and
obligations of any Company to Administrative Agent, or any Lender and related to
any Credit Document, whether principal, interest, fees, costs, attorneys' fees
or otherwise, (b) all present and future Rate Management Obligations, (c) any of
the foregoing amounts that would become due but for the operation of 11 U.S.C.
Section 502 and 503 or any other provision of Title 11 of the United States
Code, (d) all present and future pre- and post-maturity interest on any of the
foregoing, including all post-petition interest if any Company voluntarily or
involuntarily files for protection under any Debtor Relief Law, and (e)
renewals, extensions, rearrangements and modifications of any character
whatsoever of any the foregoing.
"Organizational Documents" means, for any Person, the documents for its
formation and organization, which, for example, (a) for a corporation are its
corporate charter and bylaws, (b) for a partnership are its certificate of
partnership (if applicable) and partnership agreement, (c) for a limited
liability company are its certificate of formation or organization and its
operating agreement, regulations or the like and (d) for a trust is the trust
agreement, declaration of trust, indenture or bylaws under which it is created.
"OSHA" means the Occupational Safety and Health Act of 1970, 29 U.S.C.
Section 651 et seq.
"Participant" is defined in Section 13.2(a).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Performing Commercial Loan" means a Commercial Loan with respect to
which (i) no payment of principal or interest is 31 days or more past due
(whether under the initial payment plan or a modified payment plan established
pursuant to a workout), and (ii) there is no claim of fraud in connection with
the origination of such Commercial Loan.
"Permitted Asset Sale" means (a) any sale of assets which are obsolete
or are no longer in use and which are not significant to the continuation of the
Companies' business, (b) upon prior written notice to Administrative Agent, any
sale and disposition from any Company to any other Company provided, in all
respects, such sale and disposition is in the ordinary course of business on
current market terms, is otherwise subject to Section 8.5, and provided further,
if such sale and disposition is made in connection with an Asset Securitization,
a prepayment on the Obligation is made in accordance with Section 3.2(c), and
(c) any other sales and dispositions approved in advance by Administrative
Agent.
"Permitted Debt" is defined in Section 8.2.
"Permitted Investments" is defined in Section 8.7.
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"Permitted Liens" is defined in Section 8.3.
"Permitted Project Liens" means, with respect to any Project or other
collateral, (a) Liens for Taxes and/or assessments which are being contested by
the applicable Mortgage Loan Obligor, (i) in accordance with the applicable
Mortgage and (ii) by appropriate legal proceedings conducted in good faith and
with due diligence if, but only if, such proceedings suspend the collection of
all amounts secured by such Lien and neither the Project nor any rent or other
income therefrom or collateral securing the Mortgage Loan or any part thereof or
interest therein shall be in any danger of being sold, forfeited, lost or
interfered with, and the Mortgage Loan Obligor provides security satisfactory to
Borrower for the payment of all amounts secured by any such Lien and any and all
losses, costs and expenses that may be incurred in connection therewith, (b)
Liens relating to leased equipment (e.g., signs, vending machines, etc.) located
on the premises of a Project, so long as such Liens cover only such leased
equipment, and (c) Liens which secure Debt that is fully subordinated as to
right of payment and to the payment of the Mortgage Loan, and without limiting
the foregoing, no payments may be made on such other Debt except for regularly
scheduled payments of principal and interest, which may be made if no default or
event which, with the giving of notice or the passage of time or both, would
constitute a default then exists under the Mortgage Loan. If the making of such
principal or interest payments will not result in default or potential default
and such Debt is subject to an agreement by the holder thereof, that if such
holder receives any payment with respect to such other Debt, other than the
principal and interest installments permitted above, such payments will be held
in trust for the benefit of Borrower and will be paid to Borrower for
application upon the Mortgage Loan, such other Debt shall permit the Mortgage
Loan to be renewed, extended and modified without the consent of the holder
thereof and without impairing the subordination of such other Debt to payment of
the Mortgage Loan. The Liens securing such other Debt shall be made expressly
subordinate and inferior to all Liens securing the Mortgage Loan, and such
subordination agreement shall be recorded in the real property records of the
state and county where the Project which secures the Mortgage Loan is located.
"Person" means any individual, entity or Governmental Authority.
"PMC Capital" is defined in the preamble to this Agreement.
"Potential Default" means any event, occurrence or circumstance the
existence of which, upon any required notice, time lapse, or both, could become
an Event of Default.
"Principal Debt" means, at any time, the unpaid principal balance of
all Borrowings.
"Projects" means the commercial real estate projects owned from time to
time by Loan Obligors which are subject to perfected Liens which secure Mortgage
Loans or Commercial Loans owned by Borrower. The term "Project" means and
includes the land and all appurtenances, servitudes, easements, rights,
privileges, prescriptions and advantages belonging or in any way appertaining to
the land and all buildings, fixtures, improvements, equipment and other
property, whether real, personal or mixed, located upon the land or used or
intended to be used in connection with the land or buildings, fixtures or
improvements thereon.
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"Pro Rata" and "Pro Rata Part" mean, at any time and for any Lender,
the proportion (stated as a percentage) that the Principal Debt owed to it bears
to the total Principal Debt owed to all Lenders.
"Purchaser" is defined in Section 13.3.
"Qualifying Real Estate" means any real estate which produces income
from rental of improvements, other than (a) raw land, (b) single tenant retail
properties, or (c) industrial properties.
"Rate Management Obligations" of a Person means any and all obligations
of such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor) under (i) any and all Rate
Management Transactions, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management Transactions.
"Rate Management Transaction" means any transaction (including an
agreement with respect thereto) now existing or hereafter entered into between
Borrower and any Lender or any Affiliate thereof which is a rate swap, basis
swap, forward rate transaction, commodity swap, commodity option, equity or
equity index swap, equity or equity index option, bond option, interest rate
option, foreign exchange transaction, cap transaction, floor transaction, collar
transaction, forward transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions) or any combination
thereof, whether linked to one or more interest rates, foreign currencies,
commodity prices, equity prices or other financial measures.
"REIT" means a "real estate investment trust" as defined in the Code.
"Real Estate Purchase Limitations" means the limitation on the dollar
amount that Borrower may pay for the purchase of Qualifying Real Estate, which
shall be (a) $10,000,000 (inclusive of costs and related improvements) in the
aggregate for all items of Qualifying Real Estate purchased by Borrower on or
after August 16, 1999, and (b) $3,000,000 (inclusive of costs and related
improvements) for any one item of Qualifying Real Estate.
"Real Property" means any land, buildings, fixtures and other
improvements to land now or in the future directly or indirectly owned by any
Company, leased to or otherwise operated by any Company or subleased by any
Company to any other Person.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the
14
purpose of purchasing or carrying margin stocks applicable to member banks of
the Federal Reserve System.
"Release" means any "release" as defined under any Environmental Law.
"Renegotiated Loan" means any Mortgage Loan with respect to which the
applicable Mortgage Loan Obligor has had insufficient cash flow or negative
economic events which have diminished its ability to make timely or complete
payments and Borrower has given its concurrence to an alternative schedule of
repayment.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to an
Employee Plan, excluding, however, such events as to which the PBGC has by
regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event, provided, however, that
a failure to meet the minimum funding standard of Section 412 of the Code and of
Section 302 of ERISA shall be a Reportable Event regardless of any such waiver
of the notice requirement in accordance with either Section 4043(a) of ERISA or
Section 412(d) of the Code.
"Representatives" means, with respect to a Person, its representatives,
officers, directors, employees, accountants, attorneys, insurers, shareholders
and agents.
"Required Lenders" means any combination of one or more Lenders holding
(directly or indirectly) at least either (i) 66 2/3% of the total Commitments
while there is no Principal Debt, or (ii) 66 2/3% of the Principal Debt while
there is any Principal Debt.
"Reserve Requirement" means, for any LIBOR Rate Borrowing and for the
relevant Interest Period, the total reserve requirements (including all basic,
supplemental, emergency, special, marginal and other reserves required by
applicable Governmental Requirements, including, without limitation, Regulation
D) applicable to eurocurrency fundings or liabilities, as of the first day of
that Interest Period, in amount and maturity of such Borrowing.
"Responsible Officer" means Borrower's chairman, president, chief
executive officer, chief financial officer, executive vice president or, with
respect to non-financial matters, its general counsel.
"Revolving Facility" means the revolving line of credit facility
described in Section 2.1.
"Revolving Note" means one of the promissory notes executed by Borrower
in favor of a Lender pursuant to this Agreement, substantially in the form of
Exhibit A and otherwise in form and scope acceptable to Administrative Agent and
that Lender.
"Rights" means rights, remedies, powers, privileges and benefits.
"Second-Lien Loan" means a Mortgage Loan secured by a Mortgage granting
a second-priority Lien on a Project, subject only to the first-priority Lien on
the same project in favor of Borrower.
15
"Segmented Loan" means any Mortgage Loan which has been segmented into
parts for securitization purposes.
"Solvent" means, as to any Person, that (a) the aggregate fair market
value of such Person's assets exceeds its liabilities (whether contingent,
subordinated, unmatured, unliquidated, or otherwise), (b) such Person has
sufficient cash flow to enable it to pay its debts as they mature and (c) such
Person does not have unreasonably small capital to conduct its businesses.
"Special Purpose Entity" means a special purpose Wholly-owned
Subsidiary of Borrower, created in connection with the transactions contemplated
by an Asset Securitization, which engages in no activities, has no material
liabilities, and owns no other assets, other than those incidental to such Asset
Securitization.
"Stated Termination Date" means May 31, 2004.
"Structured Financing" means a financing arrangement whereby (a) the
obligor is a Special Purpose Entity, (b) Borrower has no obligation to pay the
indebtedness or any other obligations arising thereunder, and (c) the obligees
thereunder have no recourse against any of the Companies (other than the Special
Purpose Entity involved in the financing) or their assets.
"Subsidiary" of any Person means any other Person of which (a) more
than 50% (in number of votes) of the stock (or equivalent interests) is owned of
record or beneficially, directly or indirectly, by that Person or (b) such
Person serves as a general partner or in a similar capacity. Unless otherwise
specified or the context otherwise requires, "Subsidiary" refers to a Subsidiary
of Borrower.
"Taxes" means, for any Person, taxes, assessments or other governmental
charges or levies imposed upon it, its income or any of its properties,
franchises or assets.
"Termination Date" means the earlier of (a) the Stated Termination Date
or (b) the effective date that the Lenders' commitments to lend under this
agreement are fully canceled or terminated.
"Third-Lien Loan" means a Mortgage Loan secured by a Mortgage granting
a third-priority Lien on a Project, subject only to the first- and
second-priority Liens on the same project in favor of Borrower.
"Total Liabilities" means, at any time and for the Consolidated
Companies, all liabilities properly reflected on the Consolidated Companies'
consolidated balance sheet in accordance with GAAP.
"Type" means any type of Borrowing determined with respect to the
applicable interest option.
"UCC" means the Uniform Commercial Code as enacted in Texas or other
applicable jurisdictions.
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"Wholly-owned" when used in connection with any Subsidiary shall mean a
Subsidiary of which all of the issued and outstanding shares of stock (or
equivalent interests) are owned by Borrower or one or more of its Wholly-owned
Subsidiaries.
"Workout Loans" means (a) those Mortgage Loans with respect to which
the Mortgage Loan Obligors have had insufficient cash flow and/or negative
economic events which have diminished their ability to make timely and/or
complete payments and Borrower has given its concurrence to an alternative
schedule of repayment, and (b) those Mortgage Loans previously classified as
Loans in Litigation which have been brought current by the Mortgage Loan
Obligors. Workout Loans will be maintained in this category for a minimum of six
(6) months and will be designated as performing (and therefore no longer a
Workout Loan) if, based upon payment history under the revised plan (or existing
payment plan with respect to Mortgage Loans previously classified as Mortgage
Loans in Litigation which have been brought current), financial information when
available, and Borrower's professional opinion of each situation, it appears
that it is no longer a problem loan.
1.2 Time References. Unless otherwise specified, in the Credit
Documents (a) time references (e.g., 10:00 a.m.) are to time in Dallas, Texas,
and (b) in calculating a period from one date to another, the word "from" means
"from and including" and the word "to" or "until" means "to but excluding."
1.3 Other References. Unless otherwise specified, in the Credit
Documents (a) where appropriate, the singular includes the plural and vice
versa, and words of any gender include each other gender, (b) heading and
caption references may not be construed in interpreting provisions, (c) monetary
references are to currency of the United States of America, (d) section,
paragraph, annex, schedule, exhibit and similar references are to the particular
Credit Document in which they are used, (e) references to "telecopy," "telefax,"
"facsimile," "fax" or similar terms are to facsimile or telecopy transmissions,
(f) references to "including" mean including without limiting the generality of
any description preceding that word, (g) the rule of construction that
references to general items, following references to specific items are limited
to the same type or character of those specific items is not applicable in the
Credit Documents, (h) references to any Person include that Person's heirs,
personal representatives, successors, trustees, receivers and permitted assigns,
(i) references to any Governmental Requirement include every amendment or
supplement to it, rule and regulation adopted under it, and successor or
replacement for it and (j) references to any Credit Document or other document
include every renewal and extension of it, amendment, modification and
supplement to it, and replacement or substitution for it, as each is made in
accordance with the applicable provisions of such Credit Document.
1.4 Accounting Principles. Unless otherwise specified, in the Credit
Documents (a) GAAP determines all accounting and financial terms and compliance
with financial covenants, (b) GAAP in effect on the date of this agreement
determines compliance with financial covenants, (c) all accounting principles
applied in a current period must be comparable in all material respects to those
applied during the preceding comparable period and (d) while the Financials for
the Companies are on a consolidated basis, (i) all accounting and financial
terms and compliance with reporting covenants must be on a consolidated basis,
as applicable and (ii) compliance with financial covenants must be on a
consolidated basis.
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SECTION 2. COMMITMENT.
2.1 Revolving Facility. Subject to and in reliance upon the terms,
conditions, representations and warranties in the Credit Documents, each Lender
severally and not jointly agrees to lend to Borrower such Lender's Commitment
Percentage of one or more Borrowings under the Revolving Facility not to exceed
such Lender's Committed Sum, which, subject to the Credit Documents, Borrower
may borrow, repay and reborrow under this agreement, provided that (a) each such
Borrowing must occur on a Business Day and no later than the Business Day
immediately preceding the Termination Date, (b) each such Borrowing shall be in
an amount not less than $500,000 or a greater integral multiple of $100,000, and
(c) on any date of determination, the Commitment Usage shall never exceed the
Commitment.
2.2 Borrowing Procedure. The following procedures apply to all
Borrowings:
(a) Borrowing Request. Borrower may request a Borrowing
only by making or delivering a Borrowing Request to Administrative
Agent, which is irrevocable and binding on Borrower, stating the Type,
amount and, if applicable, Interest Period for each Borrowing and which
must be received by Administrative Agent no later than (i) 10:00 a.m.
on the second Business Day before the date on which funds are requested
(the "Borrowing Date") for any LIBOR Rate Borrowing or (ii) 10:00 a.m.
on the Borrowing Date for any Base Rate Borrowing. Administrative Agent
shall promptly notify each Lender of any Borrowing Request.
(b) Funding. Each Lender shall remit its Commitment
Percentage of each requested Borrowing to Administrative Agent's
principal office in Dallas, Texas, in funds that are available for
immediate use by Administrative Agent by 2:00 p.m. on the applicable
Borrowing Date. Subject to receipt of those funds, Administrative Agent
shall (unless to its actual knowledge any of the applicable conditions
precedent have not been satisfied by Borrower or waived by the
requisite Lenders under Section 14.10) make those funds available to
Borrower by (at Borrower's option) (i) wiring the funds to or for the
account of Borrower at the direction of Borrower or (ii) depositing the
funds in Borrower's account with Administrative Agent.
(c) Funding Assumed. Absent contrary written notice from a
Lender, Administrative Agent may assume that each Lender has made its
Commitment Percentage of the requested Borrowing available to
Administrative Agent on the applicable Borrowing Date, and
Administrative Agent may, in reliance upon such assumption (but shall
not be required to), make available to Borrower a corresponding amount.
If a Lender fails to make its Commitment Percentage of any requested
Borrowing available to Administrative Agent on the applicable Borrowing
Date, Administrative Agent may recover the applicable amount on demand,
(i) from that Lender together with interest, commencing on the
Borrowing Date and ending on (but excluding) the date Administrative
Agent recovers the amount from that Lender, at an annual interest rate
equal to the Federal Funds Rate, or (ii) if that Lender fails to pay
its amount upon demand, then from Borrower. No Lender is responsible
for the failure of any other Lender to make its Commitment Percentage
of any Borrowing; however,
18
failure of any Lender to make its Commitment Percentage of any
Borrowing does not excuse any other Lender from making its Commitment
Percentage of any Borrowing.
2.3 Borrowing Requests. Each Borrowing Request constitutes a
representation and warranty by Borrower that as of the Borrowing Date, all of
the conditions precedent for that Borrowing in Section 6 have been satisfied.
2.4 Reduction or Termination of Commitment by Borrower. Without premium
or penalty, and upon giving not less than three Business Days prior written and
irrevocable notice to Administrative Agent, Borrower may terminate in whole or
in part the unused portion of the Commitment; provided that: (a) each partial
termination shall be in an amount of not less than $5,000,000 or a greater
integral multiple of $2,500,000; (b) the amount of the Commitment may not be
reduced below the Commitment Usage at such time; and (c) each reduction shall be
allocated among the Lenders in accordance with their respective Commitment
Percentages. Promptly after receipt of such notice of termination or reduction,
Administrative Agent shall notify each Lender of the proposed cancellation or
reduction. Such termination or partial reduction of the Commitment shall be
effective on the Business Day specified in Borrower's notice (which date must be
at least three Business Days after Borrower's delivery of such notice). In the
event that the Commitment is reduced to zero at a time when there is no
outstanding Principal Debt, this agreement shall be terminated (except for any
indemnification or expense reimbursement provisions in this Agreement which
survive the termination of this Agreement) and all commitment fees and other
fees then earned and unpaid hereunder and all other amounts constituting part of
the Obligation then due and owing shall be immediately due and payable, without
notice or demand by Administrative Agent or any Lender.
SECTION 3. TERMS OF PAYMENT.
3.1 Notes and Payments.
(a) Notes. The Principal Debt shall be evidenced by the
Revolving Notes, one payable to each Lender in the maximum stated
principal amount of its Committed Sum as of the Closing Date.
(b) Payment. Borrower must make each payment and
prepayment on the Obligation to Administrative Agent's principal office
in Dallas, Texas in immediately available funds by 1:00 p.m. on the day
due; otherwise, but subject to Section 3.8, those funds continue to
accrue interest as if they were received on the next Business Day.
Administrative Agent shall promptly pay to each Lender the part of any
payment or prepayment to which that Lender is entitled under this
agreement on the same day Administrative Agent is deemed to receive the
funds from Borrower.
(c) Payment Assumed. Unless Administrative Agent has
received notice from Borrower prior to the date on which any payment is
due under this agreement, that Borrower will not make that payment in
full, Administrative Agent may assume that Borrower has made the full
payment due and Administrative Agent may, in reliance upon that
assumption, cause to be distributed to each Lender on that date the
amount then due to each Lender. If and to the extent Borrower does not
make the full payment due to
19
Administrative Agent, each Lender shall repay Administrative Agent on
demand the amount distributed to that Lender by Administrative Agent,
together with interest for each day from the date that Lender received
payment from Administrative Agent until the date that Lender repays
Administrative Agent (unless such repayment is made on the same day as
such distribution), at an interest rate equal to the Federal Funds
Rate.
3.2 Interest and Principal Payments.
(a) Interest. Interest on each LIBOR Rate Borrowing
shall be due and payable as it accrues on the last day of its
respective Interest Period and on the Termination Date; provided that
if any Interest Period is a period greater than three months, then
accrued interest shall also be due and payable on the date three months
after the commencement of such Interest Period. Interest on each Base
Rate Borrowing shall be due and payable as it accrues on the last day
of each month (commencing on the first of those dates that follows the
Closing Date), and on the Termination Date.
(b) Principal. The Principal Debt under the Revolving
Facility is due and payable on the Termination Date. After giving
Administrative Agent advance written notice of the intent to prepay,
Borrower may voluntarily prepay all or any part of the Principal Debt
from time to time and at any time, in whole or in part, without premium
or penalty; provided that: (i) such notice must be received by
Administrative Agent by 10:00 a.m. on (A) the third Business Day
preceding the date of prepayment of a LIBOR Rate Borrowing, and (B) one
Business Day preceding the date of prepayment of a Base Rate Borrowing;
(ii) each such partial prepayment must be in a minimum amount of at
least $500,000 or a greater integral multiple of $100,000 thereof (if a
LIBOR Rate Borrowing or a Base Rate Borrowing); (iii) all accrued
interest on the Obligation must also be paid in full, to the date of
such prepayment; and (iv) Borrower shall pay any related Consequential
Loss within ten (10) days after demand therefor. Each notice of
prepayment shall specify the prepayment date, the facility or the
subfacility hereunder being prepaid, the Type of Borrowing(s) and
amount(s) of such Borrowing(s) to be prepaid and shall constitute a
binding obligation of Borrower to make a prepayment on the date stated
therein.
(c) Mandatory Prepayments. Borrower shall make mandatory
prepayments on the Obligation to Administrative Agent in the following
amounts (without duplication):
(i) On any date of determination, if the Commitment
Usage exceeds the Commitment then in effect, then Borrower
shall make a mandatory prepayment of the Principal Debt under
the Revolving Facility in at least the amount of any such
excess, together with (A) all accrued and unpaid interest on
the principal amount so prepaid and (B) any Consequential Loss
arising as a result thereof.
(ii) 100% of the Net Proceeds from any sale (subject
in all respects to Section 8.10) of assets by Borrower, other
than any sale of assets which are obsolete or are no longer in
use and which are not significant to the continuation of
Borrower's business;
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(iii) 100% of the Net Proceeds received by the
Companies in connection with any Structured Financing or Asset
Securitization; and
(iv) 100% of the Net Proceeds from any Debt incurred
as permitted by Section 8.2(a)(iv).
Mandatory prepayments made pursuant to clauses (ii) - (iv) above
(together with any related Consequential Loss) are payable on the same
Business Day on which the proceeds of such sale, securitization or
issuance are received by Borrower, and must be made together with (A)
all accrued and unpaid interest on the principal amount so prepaid and
(B) any Consequential Loss arising as a result thereof. If the amount
of any mandatory prepayment required hereunder is greater than the
then-outstanding Obligation, any such excess may be retained by
Borrower.
3.3 Interest Options. Except that the LIBOR Rate may not be selected
when an Event of Default or Potential Default exists, and except as otherwise
provided in this agreement, Borrowings bear interest at an annual rate equal to
the lesser of (a) the Base Rate plus the Applicable Margin or the LIBOR Rate
plus the Applicable Margin (in each case as designated or deemed designated by
Borrower), as the case may be and (b) the Maximum Rate. Each change in the Base
Rate, LIBOR Rate or Maximum Rate is effective, without notice to Borrower or any
other Person, upon the effective date of change. If Borrower does not designate
the Type for a requested Borrowing, then the requested Borrowing shall be deemed
to be a LIBOR Rate Borrowing with an Interest Period of one month (unless the
LIBOR Rate is unavailable because of the conditions described in Sections 3.15
or 3.17, in which case the requested Borrowing will be deemed a Base Rate
Borrowing).
3.4 Quotation of Rates. Borrower may call Administrative Agent before
delivering a Borrowing Request to receive an indication of the interest rates
then in effect, but the indicated rates do not bind Administrative Agent or
Lenders or affect the interest rate that is actually in effect when Borrower
makes a Borrowing Request or on the Borrowing Date.
3.5 Default Rate. All past-due Principal Debt and, unless prohibited by
applicable Government Requirements, past-due interest accruing on the Principal
Debt shall, at Administrative Agent's option, bear interest on the amount
thereof from time to time outstanding from the date due (stated or by
acceleration) at the Default Rate until paid, regardless of whether payment is
made before or after entry of a judgment.
3.6 Interest Recapture. If the designated interest rate applicable to
any Borrowing exceeds the Maximum Rate, the interest rate on that Borrowing is
limited to the Maximum Rate, but any subsequent reductions in the designated
rate shall not reduce the interest rate thereon below the Maximum Rate until the
total amount of accrued interest equals the amount of interest that would have
accrued if that designated rate had always been in effect. If at maturity
(stated or by acceleration), or at final payment of the Notes, the total
interest paid or accrued is less than the interest that would have accrued if
the designated rates had always been in effect, then, at that time and to the
extent not prohibited by applicable Governmental Requirements, Borrower shall
pay an amount equal to the difference between (a) the lesser of the amount of
interest that would have accrued if the designated rates had always been in
effect and the amount of interest
21
that would have accrued if the Maximum Rate had always been in effect, and (b)
the amount of interest actually paid or accrued on the Notes.
3.7 Interest Calculations. Interest on all Borrowings will be
calculated on the basis of actual number of days (including the first day but
excluding the last day) elapsed but computed as if each calendar year consisted
of (a) 360 days in the case of LIBOR Borrowings or Base Rate Borrowings
calculated with reference to the Federal Funds Rate (unless such calculation
would result in the interest on the Borrowings exceeding the Maximum Rate in
which event such interest shall be calculated on the basis of a year of 365 or
366 days, as the case may be) and (b) 365 or 366 days, as the case may be, in
the case of Base Rate Borrowings calculated with reference to Administrative
Agent's base rate of interest. All interest rate determinations and calculations
by Administrative Agent are conclusive and binding absent manifest error.
3.8 Maximum Rate. It is the intent of Administrative Agent, Lenders and
Borrower in the execution and performance of the Credit Documents to remain in
strict compliance with applicable Governmental Requirements from time to time in
effect, including applicable laws limiting the amount or rate of interest.
Administrative Agent, Lenders and Borrower stipulate and agree that none of the
terms and provisions contained in the Credit Documents shall ever be construed
to create a contract to pay for the use, forbearance or detention of money with
interest at a rate or in an amount in excess of the Maximum Rate or Maximum
Amount. For purposes of the Credit Documents, "interest" shall include the
aggregate of all charges which constitute interest under applicable Governmental
Requirements that are contracted for, charged, reserved, received or paid under
the Credit Documents. Borrower shall never be required to pay unearned interest
and shall never be required to pay interest at a rate or in an amount in excess
of the Maximum Rate or Maximum Amount, and the provisions of this section shall
control over all other provisions of the Credit Documents, and of any other
instrument pertaining to or securing the Obligation, which may be in actual or
apparent conflict herewith. If the Obligation is prepaid, or if the maturity of
the Obligation is accelerated for any reason, or if under any contingency the
effective rate or amount of interest which would otherwise be payable under the
Credit Documents would exceed the Maximum Rate or Maximum Amount, or in the
event any Lender or any holder of the Notes shall charge, contract for, take,
reserve or receive monies that are deemed to constitute interest which would, in
the absence of this provision, increase the effective rate or amount of interest
payable under the Credit Documents to a rate or amount in excess of that
permitted to be charged, contracted for, taken, reserved or received under
applicable Governmental Requirements then in effect, then the principal amount
of the Obligation or the amount of interest which would otherwise be payable
under the Notes or both shall be reduced to the amount allowed under applicable
Governmental Requirements as now or hereinafter construed by the courts having
jurisdiction, and all such moneys so charged, contracted for, taken, reserved or
received that are deemed to constitute interest in excess of the Maximum Rate
shall immediately be returned to or credited to the account of Borrower upon
such determination. Administrative Agent, Lenders and Borrower further stipulate
and agree that, without limitation of the foregoing, all calculations of the
rate or amount of interest contracted for, charged, taken, reserved or received
under the Credit Documents which are made for the purpose of determining whether
such rate or amount exceeds the Maximum Rate or Maximum Amount, shall be made to
the extent not prohibited by applicable Governmental Requirements, by
amortizing, prorating, allocating and spreading during the period of the full
stated term of the Notes, all interest at any time contracted for, charged,
taken, reserved or
22
received from Borrower or otherwise by Lenders or any other holder of the Notes.
If the Governmental Requirements of the State of Texas are applicable for
purposes of determining the "Maximum Rate" or the "Maximum Amount," then those
terms mean the indicated rate ceiling from time to time in effect under Chapter
303 of the Texas Finance Code, as amended.
3.9 Interest Periods. When Borrower requests any LIBOR Rate Borrowing,
Borrower may elect the applicable interest period (each an "Interest Period"),
which may be, at Borrower's option, one, three or six months, subject to the
following conditions: (a) the initial Interest Period for a LIBOR Rate Borrowing
commences on the applicable Borrowing Date or conversion date, and each
subsequent Interest Period applicable to any Borrowing commences on the day when
the next preceding applicable Interest Period expires; (b) if any Interest
Period for a LIBOR Rate Borrowing begins on a day for which no numerically
corresponding Business Day in the calendar month at the end of the Interest
Period exists, then the Interest Period ends on the last Business Day of that
calendar month; (c) if Borrower is required to pay any portion of a LIBOR Rate
Borrowing before the end of its Interest Period in order to comply with the
payment provisions of the Credit Documents, Borrower shall also pay any related
Consequential Loss; (d) no Interest Period for any portion of Principal Debt may
extend beyond the scheduled repayment date for that portion of Principal Debt;
and (e) no more than four Interest Periods may be in effect at one time.
3.10 Conversions. Subject to the dollar limits of Section 2.1 and
provided that Borrower may not convert to or select a new Interest Period for a
LIBOR Rate Borrowing at any time when an Event of Default exists, Borrower may
(a) convert a LIBOR Rate Borrowing on the last day of the applicable Interest
Period to a Base Rate Borrowing, (b) convert a Base Rate Borrowing at any time
to a LIBOR Rate Borrowing and (c) elect a new Interest Period for a LIBOR Rate
Borrowing. That election may be made by telephonic request to Administrative
Agent no later than 10:00 a.m. on the second Business Day before the conversion
date or the last day of the Interest Period, as the case may be (for conversion
to a LIBOR Rate Borrowing or election of a new Interest Period), and no later
than 10:00 a.m. on the last day of the Interest Period (for conversion to a Base
Rate Borrowing). Borrower shall provide a Conversion Notice to Administrative
Agent no later than two days after the date of the conversion or election.
Absent Borrower's telephonic request for conversion or election of a new
Interest Period or if an Event of Default exists, then, a LIBOR Rate Borrowing
shall be deemed converted to a Base Rate Borrowing effective when the applicable
Interest Period expires.
3.11 Order of Application.
(a) No Event of Default. Payments and prepayments of the
Obligation shall be applied in the order and manner specified in this
agreement; provided, however, if no order is otherwise specified in
this agreement and no Event of Default or Potential Default has
occurred and is continuing, payments and prepayments of the Obligation
shall be applied first to fees, second to accrued interest then due and
payable on the Principal Debt, and then to the remaining Obligation in
the order and manner as Borrower may direct.
(b) Event of Default or No Direction. If an Event of
Default or Potential Default has occurred and is continuing (or if
Borrower fails to give direction as permitted
23
under Section 3.11(a)), any payment or prepayment (including proceeds
from the exercise of any Rights) shall be applied in the following
order: (i) to all fees and expenses for which Administrative Agent or
Lenders have not been paid or reimbursed in accordance with the Credit
Documents (and if such payment or prepayment is less than all unpaid or
unreimbursed fees and expenses, then the payment or prepayment shall be
paid against unpaid and unreimbursed fees and expenses in the order of
incurrence or due date); (ii) to accrued interest on the Principal
Debt; (iii) to the remaining Principal Debt in such order as Required
Lenders may elect (provided that Required Lenders will apply such
proceeds in an order that will minimize any Consequential Loss); and
(iv) to the remaining Obligation in the order and manner Required
Lenders deem appropriate.
(c) Pro Rata. Each payment or prepayment shall be
distributed to each Lender in accordance with its Pro Rata Part of that
payment or prepayment.
3.12 Sharing of Payments, Etc. If any Lender obtains any payment or
prepayment with respect to the Obligation (whether voluntary, involuntary, or
otherwise, including, without limitation, as a result of exercising its Rights
under Section 3.13) that exceeds the part of that payment or prepayment that it
is then entitled to receive under the Credit Documents, then that Lender shall
purchase from the other Lenders participations that will cause the purchasing
Lender to share the excess payment or prepayment ratably with each other Lender.
If all or any portion of any excess payment or prepayment is subsequently
recovered from the purchasing Lender, then the purchase shall be rescinded and
the purchase price restored to the extent of the recovery. Borrower agrees that
any Lender purchasing a participation from another Lender under this section
may, to the fullest extent permitted by applicable Governmental Requirements,
exercise all of its Rights of payment (including the Right of offset) with
respect to that participation as fully as if that Lender were the direct
creditor of Borrower in the amount of that participation.
3.13 Offset. If an Event of Default exists, to the extent not
prohibited by applicable Governmental Requirements, each Lender may exercise
(for the benefit of all Lenders in accordance with Section 3.12) the Rights of
offset and banker's lien against each and every account and other property, or
any interest therein, that any Company may now or hereafter have with, or which
is now or hereafter in the possession of, that Lender to the extent of the full
amount of the Obligation owed (directly or participated) to it, provided,
however, no such right of offset or banker's lien may be exercised against any
account of any Special Purpose Entity.
3.14 Booking Borrowings. To the extent permitted by applicable
Governmental Requirements, any Lender may make, carry, or transfer its
Borrowings at, to, or for the account of any of its branch offices or the office
or branch of any of its Affiliates. However, no Affiliate or branch is entitled
to receive any greater payment under Section 3.16 than the transferor Lender
would have been entitled to receive with respect to those Borrowings, and a
transfer may not be made if, as a direct result of it, Section 3.15 or 3.17
would apply to any of the Obligation. If any of the conditions of Sections 3.16
or 3.17 ever apply to a Lender, that Lender shall, to the extent possible, carry
or transfer its Borrowings at, to, or for the account of any of its branch
offices or the office or branch of any of its Affiliates so long as the transfer
is consistent with the other provisions of this section, does not create any
burden or adverse circumstance for that Lender
24
that would not otherwise exist, and eliminates or ameliorates the conditions of
Sections 3.16 or 3.17, as applicable.
3.15 Basis Unavailable or Inadequate for LIBOR Rate. If on or before
any date when a LIBOR Rate is to be determined for a Borrowing, Administrative
Agent or any Lender determines (and Required Lenders agree with that
determination) that the basis for determining the applicable rate is not
available or that the resulting rate does not accurately reflect the cost to
Lenders of making or converting Borrowings at that rate for the applicable
Interest Period, then Administrative Agent shall promptly notify Borrower and
Lenders of that determination (which is conclusive and binding on Borrower
absent manifest error), and the applicable Borrowing shall bear interest at the
sum of the Base Rate plus the Applicable Margin. Until Administrative Agent
notifies Borrower that those circumstances giving rise to such notice no longer
exist, Lenders' commitments under this agreement to make, or to convert to,
LIBOR Rate Borrowings, as the case may be, shall be suspended.
3.16 Additional Costs. Each Lender severally and not jointly agrees to
notify Administrative Agent, the other Lenders, and Borrower within 180 days
after it has actual knowledge that any circumstances exist that would give rise
to any payment obligation by Borrower under clauses (a) through (c) below.
Although no Lender shall have any liability to Administrative Agent, any other
Lender, or any Company for its failure to give that notice, Borrower is not
obligated to pay any amounts under those clauses that arise, accrue or are
imposed more than 180 days before that notice to the extent that notice is
applicable to those amounts. To demand payment under this section, any such
Lender must generally be making similar demand for similar additional costs
under credit agreements to which it is party that contain similar provisions to
this section.
(a) Reserves. With respect to any LIBOR Rate Borrowing (i)
if any change in any present Governmental Requirement, any change in
the interpretation or application of any present Governmental
Requirement, or any future Governmental Requirement imposes, modifies
or deems applicable (or if compliance by any Lender with any
requirement of any Governmental Authority results in) any requirement
that any reserves (including, without limitation, any marginal,
emergency, supplemental, or special reserves) be maintained (other than
any reserve included in the Reserve Requirement) and if (ii) those
reserves reduce any sums receivable by that Lender under this agreement
or increase the costs incurred by Lender in advancing or maintaining
any portion of any LIBOR Rate Borrowing, then (iii) that Lender
(through Administrative Agent) shall deliver to Borrower a certificate
setting forth in reasonable detail the calculation of the amount
necessary to compensate it for its reduction or increase (which
certificate is conclusive and binding absent manifest error), and (iv)
Borrower shall pay that amount to that Lender within five Business Days
after demand. The provisions of and undertakings and indemnifications
in this clause (a) survive the satisfaction and payment of the
Obligation and termination of this agreement.
(b) Capital Adequacy. With respect to any Borrowing, if
any change in any present Governmental Requirement, any change in the
interpretation or application of any present Governmental Requirement,
or any future Governmental Requirement regarding capital adequacy, or
if compliance by Administrative Agent or any Lender with any
25
request, directive or requirement imposed in the future by any
Governmental Authority regarding capital adequacy, or if any change in
its written policies or in the risk category of this transaction, in
any of the foregoing events or circumstances, reduces the rate of
return on its capital as a consequence of its obligations under this
agreement to a level below that which it otherwise could have achieved
(taking into consideration its policies with respect to capital
adequacy) by an amount deemed by it to be material (and it may, in
determining the amount, utilize reasonable assumptions and allocations
of costs and expenses and use any reasonable averaging or attribution
method), then (unless the effect is already reflected in the rate of
interest then applicable under this agreement) Administrative Agent or
that Lender (through Administrative Agent) shall notify Borrower and
deliver to Borrower a certificate setting forth in reasonable detail
the calculation of the amount necessary to compensate it (which
certificate is conclusive and binding absent manifest error), and
Borrower shall pay that amount to Administrative Agent or that Lender
within five Business Days after demand. The provisions of and
undertakings and indemnification in this clause (b) shall survive the
satisfaction and payment of the Obligation and termination of this
agreement.
(c) Taxes. Any Taxes payable by Administrative Agent or
any Lender or ruled by a Governmental Authority to be payable by
Administrative Agent or any Lender in respect of this agreement or any
other Credit Document shall, if permitted by applicable Governmental
Requirements, be paid by Borrower, together with interest and
penalties, if any, except for Taxes payable on or measured by the
overall net income of Administrative Agent or that Lender (or any other
Person with whom Administrative Agent or that Lender files a
consolidated, combined, unitary, or similar Tax return) and except for
interest and penalties incurred as a result of the gross negligence or
willful misconduct of Administrative Agent or that Lender.
Administrative Agent or that Lender (through Administrative Agent)
shall notify Borrower and deliver to Borrower a certificate setting
forth in reasonable detail the calculation of the amount of Taxes
payable, which certificate is conclusive and binding (absent manifest
error), and Borrower shall pay that amount to Administrative Agent for
its account or the account of that Lender, as the case may be, within
ten Business Days after demand. If Administrative Agent or that Lender
subsequently receives a refund of the Taxes paid to it by Borrower,
then the recipient shall promptly pay the refund to Borrower.
3.17 Change in Governmental Requirements. If any Governmental
Requirement makes it unlawful for any Lender to make or maintain LIBOR Rate
Borrowings, then that Lender shall promptly notify Borrower and Administrative
Agent, and (a) as to undisbursed funds, that requested Borrowing shall be made
as a Base Rate Borrowing and (b) as to any outstanding Borrowing (i) if
maintaining the Borrowing until the last day of the applicable Interest Period
is unlawful, the Borrowing shall be converted to a Base Rate Borrowing as of the
date of notice, in which event Borrower will be required to pay any related
Consequential Loss or (ii) if not prohibited by applicable Governmental
Requirements, the Borrowing shall be converted to a Base Rate Borrowing as of
the last day of the applicable Interest Period or (iii) if any conversion will
not resolve the unlawfulness, Borrower shall promptly prepay the Borrowing,
without penalty but with related Consequential Loss.
26
3.18 Consequential Loss. Borrower shall indemnify each Lender against,
and pay to it upon demand, any Consequential Loss of that Lender. When any
Lender demands that Borrower pay any Consequential Loss, that Lender shall
deliver to Borrower and Administrative Agent a certificate setting forth in
reasonable detail the basis for imposing Consequential Loss and the calculation
of the amount, which calculation is conclusive and binding absent manifest
error. The provisions of and undertakings and indemnification in this Section
survive the satisfaction and payment of the Obligation and termination of this
agreement.
3.19 Foreign Lenders, Participants, and Purchasers. Each Lender,
Participant (by accepting a participation interest under this agreement), and
Purchaser (by executing an Assignment) that is not organized under the
Governmental Requirements of the United States of America or one of its states
(a) represents to Administrative Agent and Borrower that (i) no Taxes are
required to be withheld by Administrative Agent or Borrower with respect to any
payments to be made to it in respect of the Obligation and (ii) it has furnished
to Administrative Agent and Borrower two duly completed copies of either U.S.
Internal Revenue Service Form 4224, Form 1001, Form W-8, or any other form
acceptable to Administrative Agent and Borrower that entitles it to a complete
exemption from U.S. federal withholding Tax on all interest or fee payments
under the Credit Documents, and (b) covenants to (i) provide Administrative
Agent and Borrower a new Form 4224, Form 1001, Form W-8, or other form
acceptable to Administrative Agent and Borrower upon the expiration or
obsolescence according to applicable Governmental Requirements of any previously
delivered form, duly executed and completed by it, entitling it to a complete
exemption from U.S. federal withholding Tax on all interest and fee payments
under the Credit Documents, and (ii) comply from time to time with all
applicable Governmental Requirements with regard to the withholding Tax
exemption. If any of the foregoing is not true at any time or the applicable
forms are not provided, then Borrower and Administrative Agent (without
duplication) may deduct and withhold from interest and fee payments under the
Credit Documents any Tax at the maximum rate under the Code or other applicable
Governmental Requirement, and amounts so deducted and withheld shall be treated
as paid to that Lender, Participant, or Purchaser, as the case may be, for all
purposes under the Credit Documents.
SECTION 4. FEES.
4.1 Treatment of Fees. Except as otherwise provided by applicable
Governmental Requirements, the fees described in this Section 4 (a) do not
constitute compensation for the use, detention, or forbearance of money, (b) are
in addition to, and not in lieu of, interest and expenses otherwise described in
this agreement, (c) shall be payable in accordance with Section 3, (d) shall be
non-refundable, (e) shall, to the fullest extent permitted by applicable
Governmental Requirements, bear interest, if not paid when due, at the Default
Rate, and (f) shall be calculated on the basis of actual number of days
(including the first day but excluding the last day) elapsed, but computed as if
each calendar year consisted of 360 days, unless such computation would result
in interest being computed in excess of the Maximum Rate in which event such
computation shall be made on the basis of a year of 365 or 366 days, as the case
may be.
27
4.2 Fees of Administrative Agent. Borrower shall pay to Administrative
Agent, for its own account, fees in such amounts and upon such payment terms as
may be separately agreed upon by Administrative Agent and Borrower in writing.
4.3 Upfront Fees. On the Closing Date, Borrower shall pay to each
initial Lender upfront fees in amounts separately agreed to between Borrower and
each such Lender.
4.4 Commitment Fee. Following the Closing Date, Borrower shall pay to
Administrative Agent, for the ratable account of Lenders, a commitment fee,
payable in installments in arrears, on each March 31, June 30, September 30, and
December 31 and on the Termination Date, commencing March 31, 2004. Each
installment shall be in an amount equal to 0.375% multiplied by the amount by
which (a) the average daily Commitment exceeds (b) the average daily Commitment
Usage, in each case during the period from and including the last payment date
(or from the Closing Date for the payment due March 31, 2004) to and excluding
the payment date for such installment, provided that each such installment shall
be calculated in accordance with Section 4.1(f). Solely for the purposes of this
Section 4.4, "ratable" shall mean, for any period of calculation, with respect
to any Lender, that proportion which (x) the average daily unused Committed Sum
of such Lender during such period bears to (y) the amount of the average daily
unused Commitment during such period.
4.5 Facility Fee. On the Termination Date, the Borrower shall pay to
Administrative Agent a facility fee of Twenty Thousand Dollars ($20,000).
SECTION 5. CONDITIONS PRECEDENT.
5.1 Initial Advances. The obligation of Lenders to make the initial
advances under this agreement is subject to the condition precedent that, on or
before the date of such advance, Administrative Agent and Lenders have received,
there shall have been performed and there shall exist, the documents, actions
and other matters set forth below, each in form, scope and substance, and (as
applicable) dated as of a date, satisfactory to Administrative Agent and
Lenders:
(a) Credit Agreement. This agreement duly executed by
Borrower, Administrative Agent and each initial Lender;
(b) Revolving Notes. The Revolving Notes duly executed and
delivered by Borrower;
(c) Resolutions. Resolutions of Borrower approving the
execution, delivery and performance of this agreement, the Revolving
Notes and the other Credit Documents to which it is a party and the
transactions contemplated herein and therein, duly adopted by
Borrower's Board of Trust Managers and accompanied by a certificate of
the Secretary or Assistant Secretary of Borrower stating that the
resolutions are true and correct, have not been altered or repealed and
are in full force and effect;
(d) Incumbency Certificates. Signed certificates of the
Secretary or Assistant Secretary of Borrower certifying the names of
the officers of Borrower authorized to sign each of the Credit
Documents to which it is a party and the other documents or
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certificates to be delivered pursuant to the Credit Documents by
Borrower, together with the true signatures of each such officer.
Administrative Agent and Lenders may conclusively rely on each such
certificate until they receive, and have had a reasonable opportunity
to act upon, a further certificate of the Secretary or Assistant
Secretary of Borrower canceling or amending the prior certificate and
submitting the signatures of the officers named in the further
certificate;
(e) Declaration of Trust. A copy of the Declaration of
Trust of Borrower, and all amendments thereto, certified by the
Secretary or Assistant Secretary of Borrower as being true, correct and
complete as of the date of such certification;
(f) Bylaws. A copy of the Bylaws of Borrower, and all
amendments thereto, certified by the Secretary or Assistant Secretary
of Borrower as being true, correct and complete as of the date of such
certification;
(g) Payments to Administrative Agent. The payment to
Administrative Agent of: (i) all fees to be received by Administrative
Agent pursuant to this agreement or any other Credit Document, and (ii)
all third-party costs incurred in connection with this agreement,
including all reasonable attorneys' fees, costs and out-of-pocket
expenses of Administrative Agent's counsel incurred or estimated to
have been incurred through the Closing Date in connection with the
preparation, execution and delivery of the Credit Documents and the
consummation of the transactions contemplated thereby;
(h) Opinion of Counsel. A favorable opinion addressed to
Administrative Agent and Lenders, in form and substance satisfactory to
Administrative Agent, from outside legal counsel to Borrower;
(i) Merger Completed. Administrative Agent shall have (i)
received and reviewed copies of all of the documentation related to the
Merger and such other information related to the Merger as it may
request and (ii) received evidence, in form and substance satisfactory
to it, that the Merger has been consummated; and
(j) Additional Information. Such other documents,
instruments, reports, opinions and information as reasonably required
by Administrative Agent, any Lender and their respective counsel.
5.2 All Borrowings. The obligation of Lenders to extend Borrowings
under this agreement (including the initial advances) is subject to the
following conditions precedent:
(a) No Default or Potential Default. As of the date of the
making of the Borrowing, there exists no Event of Default or Potential
Default;
(b) Compliance with Credit Agreement. Each Company has
performed and complied with all agreements and conditions contained in
this agreement and each other Credit Document that are required to be
performed or complied with by it before or at the date of the
Borrowing;
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(c) No Material Adverse Event. As of the date of making
the Borrowing, no Material Adverse Event has occurred and is
continuing;
(d) Representations and Warranties. The representations
and warranties contained in Section 6 and the other Credit Documents
are true in all respects on the date of, and after giving effect to,
the Borrowing, with the same force and effect as though made on and as
of that date;
(e) Borrowing Request. Administrative Agent has timely
received from Borrower a properly completed Borrowing Request, executed
by a Responsible Officer of Borrower; and
SECTION 6. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to
Administrative Agent and Lenders as follows:
6.1 Purpose and Regulation U.
(a) Subject to the other provisions in the Credit
Documents, including, without limitation, clause (b) below, the
proceeds of all Borrowings will be used either (i) to refinance any
amounts outstanding under the Previous Agreement, (ii) to finance
Borrower's Mortgage Loan origination, (iii) to finance Borrower's
Commercial Loan origination or (iv) for general corporate purposes.
(b) The proceeds of the Revolving Facility will be used by
Borrower solely for the purposes specified in Section 6.1(a). None of
such proceeds will be used for the purpose of purchasing or carrying
any "margin stock" as defined in Regulation U, or for the purpose of
reducing or retiring any indebtedness which was originally incurred to
purchase or carry a margin stock or for any other purpose which might
constitute this transaction a "purpose credit" within the meaning of
such Regulation U. No Company is engaged in the business of extending
credit for the purpose of purchasing or carrying margin stocks. No
Company, nor any Person acting on behalf of any Company, has taken or
will take any action that might cause the Notes or any of the other
Credit Documents, including this Credit Agreement, to violate
Regulation U or any other regulations of the Board of Governors of the
Federal Reserve System or to violate Section 7 of the Securities
Exchange Act of 1934, as amended, or any rule or regulation thereunder,
in each case as now in effect or as the same may hereinafter be in
effect.
(c) No portion of any advance or loan made hereunder shall
be used directly or indirectly to purchase ineligible securities, as
defined by applicable regulations of the Federal Reserve Board,
underwritten by any affiliate of Banc One Corporation or any affiliate
of any other Lender during the underwriting period and for 30 days
thereafter.
6.2 Corporate Existence, Good Standing, Authority and Locations.
Borrower is a real estate investment trust duly organized, validly existing and
in good standing under the laws of the State of Texas. Except where the failure
to qualify would not result in a Material Adverse Event, Borrower is duly
qualified to transact business and is in good standing in each jurisdiction
where the nature and extent of its business and properties require due
qualification and good standing (and each of such jurisdictions is identified in
Schedule 6.3). Borrower possesses all
30
requisite authority and power to conduct its business as is now being conducted
and as proposed to be conducted (including under the Credit Documents) and to
own and operate its assets as now owned and operated and as proposed to be owned
and operated (including under the Credit Documents). Borrower's chief executive
office and other principal offices are described on Schedule 6.3. The present
location of Borrower's books and records concerning accounts and accounts
receivable is at its chief executive office.
6.3 Subsidiaries and Names. Schedule 6.3 describes (a) each Company,
(b) every name or trade name used by each Company during the four-month period
before the date of this agreement (or during the period such Company has been a
Subsidiary, if shorter) and (c) every change of each Company's name during the
four-month period before the date of this agreement. All of the outstanding
shares of beneficial interests, capital stock or similar voting interests of
each Company are (i) duly authorized, validly issued, fully paid and
nonassessable, (ii) owned of record and beneficially as described in Schedule
6.3, free and clear of any Liens, and (iii) not subject to any warrant, option
or other acquisition Right of any Person or subject to any voting, ownership or
transfer restriction except (1) restrictions imposed by securities laws and
general corporate laws and (2) restrictions expressly noted in the certificates
evidencing such shares.
6.4 Authorization and Contravention. The execution and delivery by
Borrower of each Credit Document to which it is a party and the performance by
it of its obligations under those Credit Documents (a) are within its trust
power, (b) have been duly authorized by all necessary trust action, (c) require
no consent of, action by, or filing with, any Governmental Authority (except any
action or filing that has been taken or made or consent that has been received,
and is completed and in final form and full force and effect, on or before the
Closing Date), (d) do not violate any provision of its Organizational Documents,
(e) do not violate any provision of any Governmental Requirement applicable to
it or result in any breach of, or default under, any material agreement of the
Companies, or (f) result in, or requires the imposition of, any Liens on any
property of any Company, other than in favor of Administrative Agent for
Lenders.
6.5 Binding Effect. Upon execution by Borrower of each Credit Document
to which it is a party, each such Credit Document will constitute a legal and
binding obligation of Borrower, enforceable against Borrower in accordance with
that Credit Document's terms, except as that enforceability may be limited by
Debtor Relief Laws and general principles of equity.
6.6 Financials. The Current Financials were prepared in accordance with
GAAP and present fairly, in all material respects, the Companies' consolidated
(if applicable) financial condition, results of operations and cash flows as of,
and for the portion of the fiscal year ending on, their dates (subject only to
normal year-end adjustments for interim statements). Except for transactions
directly related to, or specifically contemplated or expressly permitted by, the
Credit Documents, no material adverse changes have occurred in the Companies'
consolidated (if applicable) financial condition from that shown in the Current
Financials.
6.7 Solvency. On each Borrowing Date, Borrower is, and after giving
effect to the requested Borrowing will be, Solvent.
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6.8 Litigation.
(a) Except as shown on Schedule 6.8, no Company is subject
to, or aware of the threat of, any Litigation involving any Company, or
any of their respective properties, which if adversely determined
against any of them, reasonably could be expected to result in a
Material Adverse Event, and
(b) No outstanding and unpaid judgments against any
Company exist that reasonably could be expected to result in a Material
Adverse Event.
6.9 Taxes.
(a) Except where the non-compliance of any of the
following reasonably could not be expected to result in a Material
Adverse Event, (i) all returns, reports and other information of each
Company required to be filed in respect to a present or future
liability for any Taxes have been prepared in compliance with all
requisite Governmental Requirements, and as so prepared, have been
properly filed (or extensions have been granted) and (ii) all Taxes
imposed upon each Company that are due and payable have been timely and
fully paid except as are being contested as permitted by Section 7.5.
(b) Borrower qualifies as a "real estate investment trust"
for all purposes under the Code.
6.10 Environmental Matters.
(a) No Company has received notice from any Governmental
Authority that it has any actual or potential Environmental Liability,
and no Company has knowledge that it has any Environmental Liability,
which actual or potential Environmental Liability in either case
reasonably could be expected to constitute a Material Adverse Event.
(b) No Company has received notice from any Governmental
Authority that any Real Property is affected by, and no Company has
knowledge that any Real Property is affected by, any Release of any
Hazardous Substance which reasonably could be expected to constitute a
Material Adverse Event.
(c) No Company knows of any environmental conditions or
circumstances adversely affecting any material portion of the
collateral securing any of the Commercial Loans or Mortgage Loans. The
Companies have taken all steps required under applicable Governmental
Requirements to determine that all of the Projects securing the
Mortgage Loans are in compliance with all applicable Governmental
Requirements.
6.11 Employee Plans. Except where not a Material Adverse Event (a) no
Employee Plan subject to ERISA has incurred an "accumulated funding deficiency"
(as defined in Section 302 of ERISA or Section 512 of the Code), (b) neither any
Company nor any ERISA Affiliate has incurred liability (except for liabilities
for premiums that have been paid or that are not past due) under ERISA to the
PBGC in connection with any Employee Plan, (c) neither any Company nor any ERISA
Affiliate has withdrawn in whole or in part from participation in a
Multiemployer Plan in a manner that has given rise to a withdrawal liability
under Title IV of
32
ERISA, (d) neither any Company nor any ERISA Affiliate has engaged in any
"prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of
the Code), (e) no "reportable event" (as defined in Section 4043 of ERISA) has
occurred excluding events for which the notice requirement is waived under
applicable PBGC regulations, (f) neither any Company nor any ERISA Affiliate has
any liability, or is subject to any Lien, under ERISA or the Code to or on
account of any Employee Plan, (g) each Employee Plan subject to ERISA and the
Code complies in all material respects, both in form and operation, with ERISA
and the Code and (h) no Multiemployer Plan subject to the Code is in
reorganization within the meaning of Section 418 of the Code.
6.12 Properties; Liens. Each Company has good and marketable title to
all its property reflected on the Current Financials except for property that is
obsolete or that has been disposed of in the ordinary course of business between
the date of the Current Financials and the date of this agreement or, after the
date of this agreement, as permitted by Section 8.10. No Lien exists on any
property of any Company except Permitted Liens and Permitted Project Liens.
Except for the Credit Documents, no Company is party or subject to any
agreement, instrument or order which in any way restricts any Company's ability
to allow Liens to exist upon any of its assets.
6.13 Government Regulations.
(a) No Company is subject to regulation under the
Investment Company Act of 1940, as amended, or the Public Utility
Holding Company Act of 1935, as amended.
(b) Each of the Companies has complied with all applicable
Governmental Requirements of any Governmental Authority having
jurisdiction over the conduct of their respective businesses or the
ownership of their respective property.
6.14 Transactions with Affiliates. Except for transactions with other
Companies as permitted by Section 8.5, no Company is a party to a transaction
(other than of an inconsequential nature) with any of its Affiliates.
6.15 Debt. No Company has any Debt except Permitted Debt.
6.16 Leases. Except where it could not reasonably be expected to result
in a Material Adverse Event, (a) each Company enjoys peaceful and undisturbed
possession under all leases necessary or desirable for the operation of its
properties and assets and (b) all material leases under which any Company is a
lessee are in full force and effect.
6.17 Labor Matters. Except where it could not reasonably be expected to
result in a Material Adverse Event (a) no actual or threatened strikes, labor
disputes, slow downs, walkouts, work stoppages or other concerted interruptions
of operations that involve any employees employed at any time in connection with
the business activities or operations at any Real Property exist, (b) hours
worked by and payment made to the employees of any Company have not been in
violation of the Fair Labor Standards Act or any other applicable Governmental
Requirements pertaining to labor matters, (c) all payments due from any Company
for employee health and welfare insurance, including, without limitation,
workers compensation insurance, have been paid or accrued as a liability on its
books and (d) the business activities and operations
33
of each Company are in compliance with OSHA and other applicable health and
safety Governmental Requirements.
6.18 Intellectual Property. Except where it could not reasonably be
expected to result in a Material Adverse Event, (a) each Company owns or has the
right to use all material licenses, patents, patent applications, copyrights,
service marks, trademarks, trademark applications, trade names, trade secrets
and other intellectual property rights necessary or desirable to continue to
conduct its businesses as presently conducted by it and proposed to be conducted
by it immediately after the date of this agreement, (b) each Company is
conducting its business without infringement or claim of infringement of any
license, patent, copyright, service mark, trademark, trade name, trade secret or
other intellectual property right of others and (c) no infringement or claim of
infringement by others of any material license, patent, copyright, service mark,
trademark, trade name, trade secret or other intellectual property of any
Company exists.
6.19 Insurance. Each Company maintains the insurance required by
Section 7.9.
6.20 Full Disclosure. All information furnished to Administrative Agent
or Lenders by or on behalf of any Company in connection with the Credit
Documents was, and all information furnished to Administrative Agent or Lenders
in the future by or on behalf of any Company will be, in each case, when so
furnished, true, complete and accurate in all material respects or where
estimates or projections were or will be therein made and so designated, based
on good faith, reasonable estimates or projections on the date the information
is stated or certified.
SECTION 7. AFFIRMATIVE COVENANTS.
7.1 Certain Items Furnished. Borrower shall furnish the following to
Administrative Agent (with sufficient copies for each Lender):
(a) Annual Financials, Etc. Promptly after preparation but
no later than 90 days after the last day of each fiscal year of
Borrower, audited Financials showing the Companies' consolidated and
consolidating financial condition and results of operations as of, and
for the year ended on, that last day, accompanied by (i) the opinion,
without qualification, of a nationally-recognized firm of independent
certified public accountants acceptable to Required Lenders, based on
an audit using generally accepted auditing standards, that the
consolidated portion of those Financials were prepared in accordance
with GAAP and present fairly, in all material respects, the Companies'
consolidated financial condition and results of operations and (ii)
with respect to the period covered by such Financials, a Compliance
Certificate.
(b) Quarterly Financials, Etc. Promptly after preparation
but no later than 60 days after the last day of each fiscal quarter of
Borrower, Financials showing the Companies' consolidated financial
condition and results of operations for that fiscal quarter and for the
period from the beginning of the current fiscal year to the last day of
that fiscal quarter, accompanied by a Compliance Certificate with
respect to the period covered by such Financials.
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(c) SEC Filings. Promptly after preparation, but in any
event (i) within 60 days after the end of each of the first three
fiscal quarters of Borrower, an accurate and complete copy of
Borrower's Form 10-Q as filed with the Securities and Exchange
Commission, (ii) within 90 days after the end of each fiscal year of
Borrower, an accurate and complete copy of Borrower's Form 10-K as
filed with the Securities and Exchange Commission, and (iii) promptly
upon their becoming available, accurate and complete copies of all
registration statements, other periodic reports and statements and
schedules filed by Borrower with any securities exchange, the
Securities and Exchange Commission or any other similar Governmental
Authority.
(d) Quarterly Mortgage Loan Reports. Promptly after
preparation, but no later than 30 days after the last day of each
fiscal quarter, a schedule of all of Borrower's Mortgage Loans, each
such report to be in form and scope acceptable to Administrative Agent,
including, without limitation, setting forth information identifying
(i) all Mortgage Loans with respect to which a default has occurred as
to the payment of any installment of principal or interest or other
monetary default has occurred under any Mortgage Loan Document related
thereto and such default has not been cured for more than 60 days, or,
in the case of Workout Loans, for more than 30 days, (ii) Mortgage
Loans in Liquidation, (iii) Mortgage Loans in Litigation, (iv) any
other Non-Performing Loans, (v) Renegotiated Loans, (vi) Construction
Loans, and (vii) Segmented Loans.
(e) Annual Financial Projections. Promptly after
preparation but no later than 45 days after the last day of each fiscal
year of Borrower, annual financial projections for the Companies
prepared by Borrower, in form and substance reasonably acceptable to
Administrative Agent, setting forth management's projections for the
next succeeding fiscal year.
(f) Other Reports. Promptly after preparation and
distribution, accurate and complete copies of all reports and other
communications about material financial matters or material corporate
plans or projections by or for any Company for distribution to any
Governmental Authority or any existing or potential creditor including,
without limitation, each interim or special audit report and management
letter issued by the Companies' accountants with respect to the
Companies or their financial records, but excluding (x) credit, trade
and other reports prepared and distributed in the ordinary course of
business and (y) information otherwise furnished to Administrative
Agent and Lenders under this agreement.
(g) Employee Plans. As soon as possible and within 20
days after Borrower knows that a Reportable Event has occurred, or that
the PBGC has instituted or will institute proceedings under ERISA to
terminate that Employee Plan, deliver a certificate of a Responsible
Officer of Borrower setting forth details as to that Reportable Event
and the action which Borrower or an ERISA Affiliate, as the case may
be, proposes to take with respect to it, together with a copy of any
notice of that Reportable Event which may be required to be filed with
the PBGC, or any notice delivered by the PBGC evidencing its intent to
institute those proceedings or any notice to the PBGC that the Employee
Plan is to be terminated, as the case may be. For all purposes of this
section, Borrower is
35
deemed to have all knowledge of all facts attributable to the plan
administrator under ERISA.
(h) Project Lease Information. Promptly when requested by
Administrative Agent or any Lender, correct and complete copies of all
leases covering all or any portion of any Project, together with a rent
roll covering such leases in form and substance reasonably required by
Administrative Agent and certified to by the applicable Mortgage Loan
Obligor as being true, correct and complete in all material respects.
(i) Other Notices. Promptly after Borrower knows or
receives any notification thereof (whichever shall first occur), notice
of (a) the existence and status of any Litigation or Environmental
Liability that if determined adversely to any Company, could reasonably
be expected to result in a Material Adverse Event, (b) any material
Litigation that questions the validity of any Lien which secures or
purports or is intended to secure any Mortgage Loan Document relating
to any Mortgage Loan, any Lien which secures or purports or is intended
to secure any Mortgage Loan or any Project Document relating to any
Mortgage Loan, (c) any change in any fact or circumstance (other than
of an inconsequential nature) represented or warranted by any Company
in any Credit Document, (d) any challenge by the Internal Revenue
Service with respect to Borrower's status as a REIT, (e) an Event of
Default, Potential Default or Material Adverse Event, specifying the
nature thereof and what action the Companies have taken, are taking and
propose to take and (f) any notice of a "default," "event of default"
or "potential default" from any other creditor of the Companies, with a
copy thereof immediately delivered to Administrative Agent, together
with an explanation from Borrower, in detail satisfactory to
Administrative Agent, regarding the notice and effect of such notice.
(j) Other Information. Promptly when reasonably requested
by Administrative Agent or any Lender, such additional information (not
otherwise required to be furnished under this agreement) regarding (a)
any Company's business affairs, assets, liabilities, results of
operation and financial condition, (b) any Mortgage Loan, or (c) any
Mortgage Loan Document, any Project Document or any Project which
secures a Mortgage Loan as Administrative Agent or any Lender may
request (all in form and substance satisfactory to Administrative Agent
or that Lender).
7.2 Use of Credit. Borrower shall use the proceeds of Borrowings only
for the purposes represented in this agreement.
7.3 Books and Records. Each Company shall maintain books, records and
accounts necessary to prepare Financials in accordance with GAAP.
7.4 Inspections. Upon reasonable request and advance notice (but during
the pendency of an Event of Default, no advance notice is required), each
Company shall allow Administrative Agent or any Lender (or their respective
Representatives) to inspect any of that Company's properties, to review reports,
files and other records and to make and take away copies, to conduct tests or
investigations and to discuss any of its affairs, conditions and finances with
its other creditors, directors, officers, employees, outside accountants or
representatives from time to time, during reasonable business hours (but during
the pendency of an Event of
36
Default, at any time). Without limiting the foregoing, the Companies shall allow
Administrative Agent to perform field examinations to test such systems and
controls of the Companies as it deems appropriate. Borrower shall promptly
reimburse Administrative Agent and Lenders for the reasonable expenses of such
inspections and field examinations.
7.5 Taxes. Each Company shall promptly pay when due any and all Taxes,
except Taxes that are being contested in good faith by lawful proceedings
diligently conducted, against which reserve or other provision required by GAAP
has been made and in respect of which levy and execution of any Lien sufficient
to be enforced has been and continues to be stayed.
7.6 Payment of Obligation. Each Company shall promptly pay (or renew
and extend) all of its obligations as they become due (unless the obligations,
other than the Obligation or any part thereof, are being contested in good faith
by appropriate proceedings).
7.7 Expenses. Within ten Business Days after demand accompanied by an
invoice describing the costs, fees and expenses in reasonable detail, Borrower
shall pay (a) all costs, fees and expenses paid or incurred by or on behalf of
Administrative Agent incident to any Credit Document (including, without
limitation, the reasonable fees and expenses of Administrative Agent's counsel
in connection with the negotiation, preparation, delivery and execution of the
Credit Documents and any related amendment, waiver or consent) and (b) all
reasonable costs and expenses incurred by Administrative Agent in connection
with the enforcement of the obligations of any Company under the Credit
Documents or the exercise of any Rights under the Credit Documents (including,
without limitation, reasonable allocated costs of in-house counsel, other
reasonable attorneys' fees and court costs), all of which are part of the
Obligation, bearing interest (if not paid within ten Business Days after demand
accompanied by an invoice describing the costs, fees and expenses in reasonable
detail) on the portion thereof from time to time unpaid at the Default Rate
until paid.
7.8 Maintenance of Existence, Assets and Business. Each Company
shall (a) maintain its trust, corporate or partnership (as applicable) existence
and good standing in its state of incorporation or formation (as applicable) and
(b) except where the failure to perform any of the following could not
reasonably be expected to result in a Material Adverse Event (i) maintain its
authority to transact business and good standing in all other states, (ii)
maintain all licenses, permits and franchises necessary or desirable for its
business and (iii) keep all of its assets that are useful in and necessary to
its business in good working order and condition (ordinary wear and tear
excepted) and make all necessary repairs and replacements.
7.9 Insurance. Each Company shall, at its cost and expense, maintain
with financially sound, responsible and reputable insurance companies or
associations, or as to workers' compensation or similar insurance, with an
insurance fund or by self-insurance authorized by the jurisdictions in which it
operates, insurance concerning its properties and businesses against casualties
and contingencies and of types and in amounts (and with co-insurance and
deductibles) as is customary in the case of similar businesses. In addition,
Borrower shall and shall cause each other Company to, (a) name Administrative
Agent as additional insured on all general and comprehensive liability
insurance, (b) deliver copies of the policies and endorsements for the insurance
required by this Section 7.9 to Administrative Agent promptly after issuance and
renewal of each and (c) cause each policy of insurance to provide that it will
37
not be cancelled or modified (as to term, coverage, scope, property or risks
covered, change or addition of loss payee or additional insured or otherwise)
without 30 days prior written notice to Administrative Agent.
7.10 Compliance with Governmental Requirements. Each Company shall (a)
operate and manage its businesses and otherwise conduct its affairs in
compliance with all Governmental Requirements (including without limitation, all
Environmental Laws and Environmental Permits) except to the extent noncompliance
reasonably could be expected not to constitute a Material Adverse Event, (b)
promptly deliver to Administrative Agent a copy of any notice received from any
Governmental Authority alleging that any Company is not in compliance with any
Governmental Requirements (including any Environmental Laws or Environmental
Permits) if the allegation reasonably could constitute a Material Adverse Event
and (c) promptly deliver to Administrative Agent a copy of any notice received
from any Governmental Authority alleging that any Company has any potential
Environmental Liability if the allegation reasonably could constitute a Material
Adverse Event.
7.11 Indemnification.
(a) AS USED IN THIS SECTION: (I) "INDEMNITOR" MEANS
BORROWER AND EACH OTHER COMPANY; (II) "INDEMNITEE" MEANS ADMINISTRATIVE
AGENT, EACH LENDER, EACH PRESENT AND FUTURE AFFILIATE OF ADMINISTRATIVE
AGENT AND EACH LENDER, EACH PRESENT AND FUTURE REPRESENTATIVE OF
ADMINISTRATIVE AGENT AND EACH LENDER OR ANY OF THOSE AFFILIATES AND
EACH PRESENT AND FUTURE SUCCESSOR AND ASSIGN OF ADMINISTRATIVE AGENT
AND EACH LENDER OR ANY OF THOSE AFFILIATES OR REPRESENTATIVES; AND
(III) "INDEMNIFIED LIABILITIES" MEANS ALL PRESENT AND FUTURE, KNOWN AND
UNKNOWN, FIXED AND CONTINGENT, ADMINISTRATIVE, INVESTIGATIVE, JUDICIAL
AND OTHER CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, INVESTIGATIONS,
SUITS, PROCEEDINGS, AMOUNTS PAID IN SETTLEMENT, DAMAGES, JUDGMENTS,
PENALTIES, COURT COSTS, LIABILITIES AND OBLIGATIONS, AND ALL PRESENT
AND FUTURE COSTS, EXPENSES AND DISBURSEMENTS (INCLUDING ALL REASONABLE
ATTORNEYS' FEES AND EXPENSES WHETHER OR NOT SUIT OR OTHER PROCEEDING
EXISTS OR ANY INDEMNITEE IS PARTY TO ANY SUIT OR OTHER PROCEEDING) IN
ANY WAY RELATED TO ANY OF THE FOREGOING, THAT MAY AT ANY TIME BE
IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST, ANY INDEMNITEE AND IN ANY
WAY RELATING TO OR ARISING OUT OF ANY (1) CREDIT DOCUMENT OR
TRANSACTION CONTEMPLATED BY ANY CREDIT DOCUMENT, (2) ENVIRONMENTAL
LIABILITY IN ANY WAY RELATED TO ANY COMPANY, OR ACT, OMISSION, STATUS,
OWNERSHIP, OR OTHER RELATIONSHIP, CONDITION, OR CIRCUMSTANCE
CONTEMPLATED BY, CREATED UNDER, OR ARISING PURSUANT TO OR IN CONNECTION
WITH ANY CREDIT DOCUMENT, OR (3) INDEMNITEE'S SOLE OR CONCURRENT
ORDINARY NEGLIGENCE.
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(b) EACH INDEMNITOR AGREES, JOINTLY AND SEVERALLY, TO
INDEMNIFY PROTECT AND DEFEND EACH INDEMNITEE FROM AND AGAINST, HOLD
EACH INDEMNITEE HARMLESS FROM AND AGAINST, AND ON DEMAND PAY OR
REIMBURSE EACH INDEMNITEE FOR, ALL INDEMNIFIED LIABILITIES.
(c) THE FOREGOING PROVISIONS (I) ARE NOT LIMITED IN AMOUNT
EVEN IF THAT AMOUNT EXCEEDS THE OBLIGATION, (II) INCLUDE, WITHOUT
LIMITATION, REASONABLE FEES AND EXPENSES OF ATTORNEYS AND OTHER COSTS
AND EXPENSES OF LITIGATION OR PREPARING FOR LITIGATION AND DAMAGES OR
INJURY TO PERSONS, PROPERTY, OR NATURAL RESOURCES ARISING UNDER ANY
STATUTORY OR COMMON LAW GOVERNMENTAL REQUIREMENT, PUNITIVE DAMAGES,
FINES, AND OTHER PENALTIES, AND (III) ARE NOT AFFECTED BY THE SOURCE OR
ORIGIN OF ANY HAZARDOUS SUBSTANCE, AND (IV) ARE NOT AFFECTED BY ANY
INDEMNITEE'S INVESTIGATION, ACTUAL OR CONSTRUCTIVE KNOWLEDGE, COURSE OF
DEALING, OR WAIVER.
(d) HOWEVER, NO INDEMNITEE IS ENTITLED TO BE INDEMNIFIED
UNDER THE CREDIT DOCUMENTS FOR ITS OWN FRAUD, GROSS NEGLIGENCE, OR
WILLFUL MISCONDUCT.
(e) ALTHOUGH FAILURE TO DO SO DOES NOT REDUCE OR IMPAIR
ANY INDEMNITOR'S OBLIGATIONS UNDER THIS SECTION, EACH INDEMNITEE SHALL
PROMPTLY NOTIFY BORROWER OF ANY EVENT ABOUT WHICH THE INDEMNITEE HAS
RECEIVED WRITTEN NOTICE AND THAT IS REASONABLY LIKELY TO RESULT IN ANY
INDEMNIFIED LIABILITY. EACH INDEMNITOR MAY, AT ITS OWN COST AND
EXPENSE, PARTICIPATE IN THE DEFENSE IN ANY PROCEEDING INVOLVING ANY
INDEMNIFIED LIABILITY. IF NO EVENT OF DEFAULT OR POTENTIAL DEFAULT
EXISTS, INDEMNITORS MAY ASSUME THE DEFENSE IN THAT PROCEEDING ON BEHALF
OF THE APPLICABLE INDEMNITEES, INCLUDING THE EMPLOYMENT OF COUNSEL IF
FIRST APPROVED (WHICH APPROVAL MAY NOT BE UNREASONABLY WITHHELD) BY THE
APPLICABLE INDEMNITEES. IF INDEMNITORS ASSUME ANY DEFENSE, THEY SHALL
KEEP THE APPLICABLE INDEMNITEES FULLY ADVISED OF THE STATUS OF, AND
SHALL CONSULT WITH, AND RECEIVE THE CONCURRENCE OF, THOSE INDEMNITEES
BEFORE TAKING ANY MATERIAL POSITION IN RESPECT OF, THAT PROCEEDING. IF
INDEMNITORS CONSENT, IF AN EVENT OF DEFAULT, POTENTIAL DEFAULT OR
MATERIAL ADVERSE EVENT EXISTS OR IF ANY INDEMNITEE REASONABLY
DETERMINES THAT AN ACTUAL CONFLICT OF INTERESTS EXISTS BETWEEN
INDEMNITORS AND THAT INDEMNITEE WITH RESPECT TO THE SUBJECT MATTER OF
THE PROCEEDING OR THAT INDEMNITORS ARE NOT DILIGENTLY PURSUING THE
DEFENSE, THEN (I) THAT INDEMNITEE MAY, AT
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INDEMNITORS' JOINT AND SEVERAL EXPENSE, EMPLOY COUNSEL TO REPRESENT
THAT INDEMNITEE THAT IS SEPARATE FROM COUNSEL FOR INDEMNITORS OR ANY
OTHER PERSON IN THAT PROCEEDING AND (II) INDEMNITORS ARE NO LONGER
ENTITLED TO ASSUME THE DEFENSE ON BEHALF OF THAT INDEMNITEE. NO
INDEMNITOR MAY AGREE TO THE SETTLEMENT OF ANY INDEMNIFIED LIABILITY, OR
ANY MATTERS OR ISSUES MATERIAL TO OR NECESSARY FOR THE RESOLUTION OF
ANY SUCH LIABILITY, WITHOUT THE PRIOR WRITTEN CONSENT OF THE APPLICABLE
INDEMNITEES UNLESS, AS AGREED TO IN WRITING BY AN INDEMNITEE, THAT
SETTLEMENT FULLY RELIEVES THOSE INDEMNITEES OF ANY LIABILITY WHATSOEVER
FOR THAT INDEMNIFIED LIABILITY. IF AN INDEMNITEE AGREES TO THE
SETTLEMENT OF ANY INDEMNIFIED LIABILITY WITHOUT THE PRIOR WRITTEN
CONSENT OF INDEMNITORS (WHICH CONSENT MAY NOT BE UNREASONABLY
WITHHELD), THEN INDEMNITORS ARE NO LONGER OBLIGATED FOR THAT
INDEMNIFIED LIABILITY IN RESPECT OF THAT INDEMNITEE.
7.12 Mortgage Loan Approval, Collection and Servicing Standards.
Borrower shall follow the loan approval, collection and servicing policies and
standards in effect as of the Closing Date, except for immaterial changes in
such policies and standards or changes in such policies and standards disclosed
to and approved in writing by Administrative Agent and Lenders.
7.13 Negative Pledge. Borrower hereby covenants and agrees (and agrees
to cause each other Company) not to directly or indirectly create, incur, grant,
suffer, or permit to be created or incurred any Lien on any of the respective
assets of such Companies, other than Permitted Liens and Permitted Project
Liens. Furthermore, in the event that, notwithstanding the foregoing, any such
Liens (other than Permitted Liens and Permitted Project Liens) are granted,
incurred, or created, then, in addition to the other Rights granted to
Administrative Agent and Lenders hereunder or under applicable Governmental
Requirements, (a) the Companies hereby grant to Administrative Agent and Lenders
an equal and ratable Lien in and to the property so encumbered, (b) any Person
receiving the benefit of any such additional Liens shall be deemed to receive
any such grant or conveyance of Liens for the ratable and pari passu benefit of
Lenders and Administrative Agent and shall be deemed the bailee and agent for
such Lenders for the sole purpose of holding any such collateral and Liens and
perfecting Liens in favor of Administrative Agent and Lenders with respect
thereto, and (c) upon the request of Administrative Agent, each Company shall
execute, and shall request the other Person to execute, all such documents and
take all actions requested by Required Lenders to more fully evidence and create
such ratable, pari passu Liens in favor of Lenders and Administrative Agent.
SECTION 8. NEGATIVE COVENANTS.
For so long as any Lender is committed to lend under this agreement and
until the Obligation has been fully paid and performed, Borrower covenants and
agrees with Administrative Agent and Lenders as follows:
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8.1 Payroll Taxes. No Company may directly or indirectly use any
proceeds of any Borrowing (a) for any purpose other than as represented in this
agreement, or (b) for the payment of wages of employees unless a timely payment
to or deposit with the United States of America of all amounts of Tax required
to be deducted and withheld with respect to such wages is also made.
8.2 Debt. No Company may:
(a) Create, incur or suffer to exist (directly or
indirectly) any direct, indirect, fixed or contingent liability for any
Debt except the following (the "Permitted Debt"):
(i) the Obligation;
(ii) Debt existing on the Closing Date, as more
particularly described on Schedule 8.2 (the "Existing Debt");
(iii) Debt arising under or in connection with any
Structured Financing that is entered into as a result of an
Asset Securitization;
(iv) Debt of up to $15,000,000 at any one time
outstanding (including any such Debt existing on the Closing
Date and described on Schedule 8.2), incurred by any Company,
but in any case having recourse to Borrower, having the
following general attributes: (A) such indebtedness is secured
solely by liens on specified Amerihost Properties or parcels of
Qualifying Real Estate; (B) the loan documents evidencing such
indebtedness do not contain covenants or other agreements that
are more restrictive than those found in the Credit Documents,
do not cross-default to the Credit Documents, and are otherwise
in form and substance acceptable to Administrative Agent and
Required Lenders; and (C) no Event of Default or Potential
Default has occurred and is continuing when any such Debt is to
be incurred, and no Event of Default or Potential Default would
be created by such incurrence. Prior to the incurrence of any
Debt permitted by this clause (iv), Borrower shall deliver a
written notice to Administrative Agent of its intent to incur
such Debt, the proposed obligor, proposed obligee, amount, rate
and scheduled amortization of such proposed Debt. Borrower
shall also provide any other information requested by
Administrative Agent and Lenders with respect to such proposed
financing, including, without limitation, copies of the loan
documents evidencing the proposed financing; and
(v) indebtedness and other obligations arising
under Rate Management Transactions contemplated by this
agreement.
(b) Prepay, purchase, repurchase, defease or redeem, or
cause to be prepaid, purchased, repurchased, defeased or redeemed, any
principal of, or any premium (if any) or interest on, any of its Debt,
or fund or cause to be funded any sinking or similar fund for any such
Debt, except for (i) the Obligation, (ii) any Debt permitted under
Section 8.2(a)(iv) above in connection with the sale of the underlying
real property to a third party in an arm's-length transaction, so long
as all prepayments required by Section 3.2(c) are made simultaneously
therewith, and (iii) any Debt owed by a Special Purpose
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Entity incurred in connection with an Asset Securitization, so long as
(A) such Debt has been reduced to 15% or less of its original principal
amount, (B) such prepayment fully extinguishes such Debt, (C) no
Default, Event of Default then exists or would be created by such
prepayment, and (D) all remaining Mortgage Loans and related assets of
such Special Purpose Entity are immediately transferred to Borrower.
8.3 Liens. No Company may (a) create, incur or suffer or permit to be
created or incurred or to exist any Lien upon any of its properties except a
Permitted Lien or (b) enter into or permit to exist any arrangement or agreement
that directly or indirectly prohibits any Company from creating or incurring any
Lien on any of its assets or properties except (i) the Credit Documents, (ii)
any lease that places a Lien prohibition on only the property subject to that
lease, and (iii) arrangements and agreements that apply only to property subject
to Permitted Liens. The following are "Permitted Liens":
(a) Lender Liens;
(b) Liens existing on the Closing Date, as more
particularly described on Schedule 8.3 (the "Existing Liens");
(c) Liens on the assets owned by any Special Purpose
Entity, which Liens are created under or in connection with a
Structured Financing permitted by this agreement;
(d) Liens on individual Amerihost Properties or parcels of
Qualifying Real Estate securing Debt permitted by Section 8.2(a)(iv);
(e) Any interest or title of a lessor in property being
leased under an operating lease that does not constitute Debt;
(f) Liens arising under Rate Management Transactions
permitted by this agreement;
(g) Banker's Liens and Rights of setoff or recoupment;
(h) Pledges or deposits made to secure any Company's
payment of workers' compensation, unemployment insurance or other forms
of governmental insurance or benefits or to participate in any fund in
connection with workers' compensation, unemployment insurance, pensions
or other social security programs;
(i) Zoning and similar restrictions on the use of, and
easements, restrictions, covenants, title defects and similar
encumbrances on, Real Property that do not impair the use of such Real
Property (other than of an inconsequential nature) and that are not
violated by existing or proposed structures or land use; and
(j) If no Lien has been filed in any jurisdiction or
agreed to (i) claims and Liens for Taxes not yet due and payable, (ii)
statutory mechanic's Liens and materialman's Liens for services or
materials and similar statutory Liens incident to construction and
maintenance of Real Property, in each case for which payment is not yet
due and payable, (iii) statutory landlord's Liens for rental not yet
due and payable and
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(iv) statutory Liens of warehousemen and carriers and similar statutory
Liens securing obligations that are not yet due and payable.
8.4 Employee Plans. No Company may permit any of the events or
circumstances described in Section 6.11 to exist or occur except where the
failure to perform the foregoing could not reasonably be expected to result in a
Material Adverse Event.
8.5 Transactions with Affiliates. No Company may enter into any
transaction with any of its Affiliates except (a) Asset Securitizations, but
only so long as (i) no Event of Default or Potential Default has occurred and is
continuing at the time of such Asset Securitization, and (ii) all mandatory
prepayments on the Obligation required by Section 3.2(c) are made in connection
therewith and (b) transactions (other than Investments) in the ordinary course
of business and upon fair and reasonable terms not materially less favorable
than it could obtain or could become entitled to in an arm's-length transaction
with a Person that was not its Affiliate.
8.6 Compliance with Governmental Requirements and Documents. No Company
shall (a) violate the provisions of any Governmental Requirements (including,
without limitation, OSHA and Environmental Laws) applicable to it or of any
material agreement to which it is a party or by which any of its property is
subject or bound if that violation alone, or when aggregated with all other
violations, reasonably could be expected to result in a Material Adverse Event,
(b) violate any provision of its Organizational Documents or (c) repeal, replace
or amend any provision of its Organizational Documents if that action reasonably
could be expected to result in a Material Adverse Event.
8.7 Investments. No Company may make any Investments except the
following (the "Permitted Investments"):
(a) (i) Readily marketable, direct, full faith and credit
obligations of the United States of America or obligations guaranteed
by the full faith and credit of the United States of America and (ii)
readily marketable obligations of an agency or instrumentality of, or
corporation owned, controlled or sponsored by, the United States of
America that are generally considered in the securities industry to be
implicit obligations of the United States of America, in each case, due
within one year after the acquisition of it (collectively, "Government
Securities");
(b) Readily marketable direct obligations of any state of
the United States of America given on the date of such investment a
credit rating of at least Aa by Moody's Investors Service, Inc. or AA
by Standard & Poor's Corporation, in each case due within one year from
the making of the investment;
(c) Certificates of deposit issued by, bank deposits in,
eurodollar deposits through, bankers' acceptances of, and repurchase
agreements covering Government Securities executed by, (i) any Lender
or (ii) any bank incorporated under the Governmental Requirements of
the United States of America or any of its states and given on the date
of the investment a short-term certificate of deposit credit rating of
at least P-2 by Moody's Investors Service, Inc., or A-2 by Standard &
Poor's Corporation, in each case due within one year after the date of
the making of the investment;
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(d) Certificates of deposit issued by, bank deposits in,
eurodollar deposits through, bankers' acceptances of, and repurchase
agreements covering Government Securities executed by, any branch or
office located in the United States of America of a bank incorporated
under the Governmental Requirements of any jurisdiction outside the
United States of America having on the date of the investment a
short-term certificate of deposit credit rating of a least P-2 by
Moody's Investors Service, Inc., or A-2 by Standard & Poor's
Corporation, in each case due within one year after the date of the
making of the investment;
(e) Commercial paper maturing in 270 days or less from the
date of issuance and rated P-1 or better by Moody's Investors Service,
Inc., or A-1 or better by Standard & Poors Corporation;
(f) Money market instruments and mutual funds rated AAA by
Standard & Poors Corporation or given one of the two highest credit
rankings for such investments by any other nationally-recognized rating
service;
(g) Investments by Borrower in any financial assets which
are generated or outstanding as a result of an Asset Securitization
involving a Special Purpose Entity; and
(h) Customary capital contributions or similar investments
relating to the formation of any Subsidiary of that Company.
8.8 Qualifying Real Estate. Borrower may not purchase any real property
or any hotel/motel project other than Qualifying Real Estate, provided that no
Qualifying Real Estate shall be acquired in excess of any applicable Real Estate
Purchase Limitation.
8.9 Distributions; Other Payments. No Company shall enter into or
permit to exist any arrangement or agreement which directly or indirectly
prohibits any such Company from declaring, making or paying, directly or
indirectly, any Distribution to Borrower. No Company shall, directly or
indirectly, declare, make or pay any Distributions except for:
(a) Distributions to Borrower from any other Company; and
(b) if no Event of Default or Potential Default exists or
would exist after giving effect to the Distribution, and so long as any
such Distributions are made in the ordinary course of business
consistent with sound business practices, the following Distributions
by Borrower: (i) Distributions declared or paid during any fiscal year
which do not exceed the sum of (A) 100% of Funds from Operations for
that fiscal year, plus (B) if paid by May 30 during that year, the
portion of the then-preceding fiscal year's Distributions that would
have been permitted under clause (A) above that did not represent any
carryover from earlier years and was not declared and paid during that
preceding fiscal year, and (ii) up to an aggregate of $2,000,000 of
other Distributions made or declared during the term of this agreement;
8.10 Disposition of Assets. No Company may sell, assign, lease,
transfer or otherwise dispose of any of its assets (including, without
limitation, equity interests in any other Company) other than pursuant to a
Permitted Asset Sale.
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8.11 Mergers, Consolidations and Dissolutions. No Company may merge or
consolidate with any other Person, or acquire, in one or a series of related
transactions, all or substantially all of the equity or assets of any Person;
provided that, notwithstanding the foregoing, so long as no Event of Default
then exists or would be created by such transaction, Borrower may from time to
time acquire substantially all of the assets of any of the Special Purpose
Entities that have repaid in full all of the indebtedness and other obligations
incurred by them in connection with an Asset Securitization. In addition, no
Company may dissolve or convert to any other form of entity.
8.12 Assignment. No Company may assign or transfer any of its Rights,
duties or obligations under any of the Credit Documents.
8.13 Fiscal Year and Accounting Methods. No Company may change either
its fiscal year for accounting purposes or any material aspect of its method of
accounting.
8.14 New Businesses. No Company may engage in any business except the
businesses in which it is presently engaged and any other reasonably related
business.
8.15 Government Regulations. No Company may conduct its business in a
way that it becomes regulated under the Investment Company Act of 1940, as
amended, or the Public Utility Holding Company Act of 1935, as amended.
8.16 Financial Contracts. No Company will enter into or remain liable
upon any Financial Contract, except the Rate Management Transactions
contemplated by this agreement.
8.17 Strict Compliance. No Company may indirectly do anything that it
may not directly do under any covenant in any Credit Document.
SECTION 9. FINANCIAL COVENANTS.
For so long as any Lender is committed to lend under this agreement,
and until the Obligation has been fully paid and performed, Borrower covenants
and agrees with Administrative Agent and Lenders as follows:
9.1 Minimum Net Worth. The Companies' consolidated Net Worth shall not
at any time be less than the sum of (a) 90% of Net Worth as of the Closing Date,
plus (b) 100% of the Net Proceeds from any Equity Issuances by Borrower after
the Closing Date.
9.2 Maximum Leverage Ratio. The ratio of the Consolidated Companies'
consolidated Total Liabilities to the Consolidated Companies' consolidated Net
Worth shall not at any time exceed 1.5 to 1.00.
9.3 Maximum Non-Performing Loan Ratio. The ratio of the outstanding
principal balance of the Companies' consolidated Non-Performing Loans to the
Companies' consolidated Net Worth shall at all times be less than 0.10 to 1.00;
provided that Borrower's compliance with this covenant will only be required on
days on which there is outstanding Principal Debt.
45
9.4 Maximum Charge-Off Ratio. The Companies' consolidated Charge-Off
Ratio shall at all times be less than 2.0%, to be determined for compliance
reporting purposes as of the last day of each fiscal quarter of the Companies
for the four quarters then ended.
9.5 Positive Cash Flow. The Companies, on a consolidated basis, shall
maintain Cash Flow in an amount greater than $0, to be determined for compliance
reporting purposes as of the last day of each fiscal quarter of the Companies
for the four fiscal quarters then ended.
9.6 Non-Hotel/Motel Loans. Borrower will not, at any time, permit the
aggregate principal balance of its Mortgage Loans which are secured by Projects
which are not hotels or motels to exceed an amount equal to (a) 25% of the
aggregate principal balance of all of its Mortgage Loans less (b) the aggregate
loan loss reserve established by Borrower with respect to its Mortgage Loans.
9.7 Minimum Asset Coverage Ratio. The Asset Coverage Ratio shall at all
times (but calculated for compliance reporting purposes as of the last day of
each fiscal quarter of the Borrower) be greater than or equal to 1.25 to 1.00
for the Borrower and First Western.
SECTION 10. EVENT OF DEFAULT.
The term "Event of Default" means the occurrence of any one or more of
the following:
10.1 Payment of Obligation. Borrower's failure or refusal to pay (a)
principal of any Note, or any part thereof, on or before the date when due
(including any required mandatory prepayment when due), (b) any other part of
the Obligation on or before 5 days after the date due, or (c) any final amounts
due and payable under the Previous Agreement or the PMC Capital Agreement when
due.
10.2 Covenants. Any Company's failure or refusal to punctually and
properly perform, observe and comply with any of the covenants in Sections 8 and
9. It shall also constitute an Event of Default if any Company fails or refuses
to punctually and properly perform, observe and comply with any covenant or
agreement in any Credit Document (other than covenants to pay the Obligation and
covenants set forth in Sections 8 and 9) applicable to it, and that failure or
refusal continues for 15 days after that Company has, or with the exercise of
reasonable diligence should have had, notice of that failure or refusal;
provided, however, that with respect to the failure or refusal to perform any
such covenant or agreement, Borrower shall not be entitled to an opportunity to
cure any such failure or refusal if such failure or refusal is either not
capable of being cured by Borrower or if the same covenant has already been
breached more than two times during the twelve months preceding such breach.
10.3 Debtor Relief. Any Company (a) is not Solvent, (b) fails to pay
its debts generally as they become due, (c) voluntarily seeks, consents to or
acquiesces in the benefit of any Debtor Relief Law, other than as a creditor or
claimant, or (d) becomes a party to or is made the subject of any proceeding
provided for by any Debtor Relief Law, other than as a creditor or claimant,
that could suspend or otherwise adversely affect the Rights of Administrative
Agent or any Lender under the Credit Documents (unless, in the event such
proceeding is involuntary, the petition instituting same is dismissed within 60
days after its filing).
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10.4 Judgments and Attachments. Any Company fails, within 10 days after
entry, to pay, bond, or otherwise discharge any one or more judgments or orders
for the payment of money (not paid or fully covered by insurance) in excess of
$1,000,000 (individually or collectively) or the equivalent thereof in another
currency or currencies, or any warrant of attachment, sequestration, or similar
proceeding against any Company's assets having a value (individually or
collectively) of $1,000,000 or the equivalent thereof in another currency or
currencies, which is not either (a) stayed on appeals; (b) being diligently
contested in good faith by appropriate proceedings with adequate reserves having
been set aside on the books of such Company in accordance with GAAP, or (c)
dismissed by a court of competent jurisdiction.
10.5 Government Action. Unless otherwise covered by any event described
in Section 10.4, (a) the entry or issuance of an order by any Governmental
Authority (including the United States Justice Department) seeking to cause any
Company to divest a significant portion of its assets under any antitrust,
restraint of trade, unfair competition, industry regulation or similar
Governmental Requirements, or (b) the commencement of any action or proceeding
by any Governmental Authority (i) for the purpose of condemning, seizing or
otherwise appropriating, or taking custody or control of all or any substantial
portion of, any Company's assets or (ii) which asserts any material violation
by, or material liability against, any Company based on any Environmental Law.
10.6 Misrepresentation. Any representation or warranty made by any
Company in any Credit Document, or any financial data or other information now
or hereafter furnished to Administrative Agent or Lenders by or on behalf of
Borrower, at any time proves to have been false, incorrect or misleading in any
material respect when made.
10.7 Ownership of Other Companies. Except as a result of transactions
permitted by this agreement, any Company (other than Borrower) fails to
constitute the direct or indirect wholly owned Subsidiary of Borrower.
10.8 Change of Control of Borrower. Any Change of Control shall occur.
10.9 Change in Management. Any material change in the management of
Borrower or the Companies as a whole, including, without limitation, any two or
more of the following are no longer employed by Borrower in the same or similar
capacities as they are on the Closing Date: Lance Rosemore, Andrew Rosemore, Jan
Salit or Barry Berlin.
10.10 Other Funded Debt. In respect of any Funded Debt of any Company
(other than the Obligation) (a) any Company fails to make any payment when due,
(b) any default or other event or condition occurs or exists beyond the
applicable grace or cure period, the effect of which is to permit any holder of
that Funded Debt to cause (whether or not it elects to cause) any of such Funded
Debt to become due before its stated maturity or regularly scheduled payment
dates, or (c) any of that Funded Debt is declared to be due and payable or
required to be prepaid by any Company before its stated maturity.
10.11 Rate Management Transactions. Nonpayment by Borrower of any Rate
Management Obligation when due or the breach by Borrower of any term, provision
or condition contained in any Rate Management Transaction.
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10.12 Validity and Enforceability of Credit Documents. Any Credit
Document ceases to be in full force and effect or is declared to be null and
void, or the validity or enforceability of any Credit Document or any Lender
Lien is contested by any Company or any other Person, or any Company or any
other Person asserts the absence of, or denies that it has, any liability or
obligations under any Credit Document to which it is a party except in
accordance with that document's express provisions, or any Lender Lien shall
fail to constitute a valid, perfected-first priority lien in favor of
Administrative Agent for Lenders, except in accordance with the express
provisions of any applicable Credit Document.
10.13 Material Agreement Default or Cancellation. The default under, or
breach or cancellation of, any agreement or other contractual arrangement to
which any Company is a party or beneficiary or by which any of its property is
bound or subject, which reasonably could be expected to result in any (a)
significant impairment of (i) the ability of Borrower or any other Company to
perform any of its payment or other material obligations under any Credit
Document or (ii) the ability of Administrative Agent or Lenders to enforce any
of those obligations or any of their respective Rights under the Credit
Documents, (b) significant and adverse effect on the business, management or
financial condition of the Borrower or of the Companies as a whole, as
represented to Lenders in the Financials then most recently received by them or
(c) event or circumstance that could result in an Event of Default or Potential
Default pursuant to Sections 10.1 through 10.15 (inclusive).
10.14 Environmental Matters. Any of the following shall occur and
Required Lenders determine, in good faith, that (a) such occurrence could
materially and adversely affect the business or operations of Borrower or its
ability to pay its debts as they come due or to pay or perform any of the
Obligation, and (b) the aggregate liability of Borrower resulting from such
occurrences could exceed $1,000,000: (i) the failure of any Loan Obligor or
other owner of any Project which secures a Mortgage Loan or Commercial Loan to
obtain and maintain any environmental permit, certificate, license approval,
registration, or authorization required under any Environmental Law; (ii) any
Loan Obligor or other owner of a Project which secures a Mortgage Loan or
Commercial Loan is or may be potentially responsible or liable with respect to
any investigation or clean up of any threatened or actual release of any
Hazardous Substance with respect to such Project; (iii) a Release of any
Hazardous Substance has occurred at, on or under any Project which secures any
Mortgage Loan or Commercial Loan; (iv) any oral or written notification of a
Release of Hazardous Substance has been filed by or on behalf of Borrower or any
Loan Obligor or in relation to any Project which secures any Mortgage Loan or
Commercial Loan; (v) any Project which secures any Mortgage Loan or Commercial
Loan is or will be listed or is proposed for listing on the National Priority
List promulgated pursuant to CERCLA, any related Governmental Requirement or on
any federal or state list of sites requiring investigation or clean up; (vi) any
Environmental Lien shall exist on any Project which secures any Mortgage Loan or
Commercial Loan; or (vii) any governmental action shall have been taken or be in
process or pending which could subject any Project which secures any Mortgage
Loan or Commercial Loan to any Environmental Lien.
10.15 Employee Benefit Plans. (a) A Reportable Event or Reportable
Events, or a failure to make a required installment or other payment (within the
meaning of Section 412(n)(1) of the Code), shall have occurred with respect to
any Employee Plan or Plans that is expected to result in liability of Borrower
to the PBGC or to an Employee Plan in an aggregate amount
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exceeding $1,000,000 and, within 30 days after the reporting of any such
Reportable Event to Administrative Agent or after the receipt by Administrative
Agent of a statement required pursuant to Section 7.1(g), Administrative Agent
shall have notified Borrower in writing that (i) Required Lenders have made a
reasonable determination that, on the basis of such Reportable Event or
Reportable Events or the failure to make a required payment, there are grounds
under Title IV of ERISA for the termination of such Employee Plan or Plans by
the PBGC, or the appointment by the appropriate United States district court of
a trustee to administer such Employee Plan or Plans or the imposition of a Lien
pursuant to section 412(n) of the Code in favor of an Employee Plan and (ii) as
a result thereof, an Event of Default exists hereunder; or (b) Borrower or any
ERISA Affiliate has provided to any affected party a 60-day notice of intent to
terminate an Employee Plan pursuant to a distress termination in accordance with
section 4041(c) of ERISA if the liability expected to be incurred as a result of
such termination will exceed $1,000,000; or (c) a trustee shall be appointed by
a United States district court to administer any such Employee Plan; or (d) the
PBGC shall institute proceedings (including giving notice of intent thereof) to
terminate any such Employee Plan; or (e) (i) Borrower or any ERISA Affiliate
shall have been notified by the sponsor of a Multiemployer Plan that is has
incurred withdrawal liability (within the meaning of section 4201 of ERISA to
such Multiemployer Plan), (ii) Borrower or such ERISA Affiliate does not have
reasonable grounds for contesting such withdrawal liability or is not contesting
such withdrawal liability in a timely and appropriate manner and (iii) the
amount of such withdrawal liability specified in such notice, when aggregated
with all other amounts required to be paid to Multiemployer Plans in connection
with withdrawal liabilities (determined as of the date or dates of such
notification), exceeds $1,000,000; or (f) Borrower or any ERISA Affiliate shall
have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if solely as a result of such reorganization or
termination the aggregate annual contributions of Borrower and its ERISA
Affiliates to all Multiemployer Plans that are then in reorganization or have
been or are being terminated have been or will be increased over the amounts
required to be contributed to such Multiemployer Plans for their most recently
completed plan years by an amount exceeding $1,000,000.
SECTION 11. RIGHTS AND REMEDIES.
11.1 Remedies Upon Event of Default.
(a) Debtor Relief. If an Event of Default exists under
Section 10.3, the commitment to extend credit under this agreement
automatically terminates and the entire unpaid principal balance of the
Obligation, together with all interest accrued thereon, and all other
amounts then accrued and unpaid, automatically become and shall be due
and payable without any action of any kind whatsoever.
(b) Other Events of Default. If any Event of Default
exists, Administrative Agent may (with the consent of, and must, upon
the request of Required Lenders), do any one or more of the following:
(i) If the maturity of the Obligation has not already been accelerated
under Section 11.1(a), declare the entire unpaid principal balance of
all or any part of the Obligation, together with all interest accrued
thereon, and all other amounts then accrued and unpaid, immediately due
and payable, whereupon it is due and payable; (ii) terminate the
commitments of Lenders to extend credit under this agreement; (iii)
49
reduce any claim to judgment; (iv) require the Companies to open and
maintain a secured lockbox account for the receipt of the Companies'
accounts receivables; notes receivable and other receivables; and (v)
exercise any and all other legal or equitable Rights afforded by the
Credit Documents, by applicable Governmental Requirements or otherwise
at law or in equity.
(c) Offset. If an Event of Default exists, to the extent
not prohibited by applicable Governmental Requirements, each Lender may
exercise the Rights of offset and banker's lien against each and every
account and other property, or any interest therein, which any Company
may now or hereafter have with, or which is now or hereafter in the
possession of, that Lender to the extent of the full amount of the
Obligation owed to that Lender, provided, however, no such right of
offset or banker's lien may be exercised against any account of a
Special Purpose Entity.
11.2 Company Waivers. To the extent not prohibited by applicable
Governmental Requirements, Borrower and each other Company waives, in respect to
any action taken by Administrative Agent or Lenders at any time and from time to
time pursuant to Section 11.1, presentment, demand for payment, protest,
acceleration, notice of protest and nonpayment, NOTICE OF INTENTION TO
ACCELERATE, NOTICE OF ACCELERATION, and all other notices and acts, and agrees
that its liability with respect to all or any part of the Obligation is not
affected by any renewal or extension in the time of payment of all or any part
of the Obligation, by any indulgence, increase or other modification to, or by
any release or change in any security for the payment of, all or any part of the
Obligation.
11.3 Performance by Administrative Agent. If any Company's covenant,
duty or agreement is not performed in accordance with the terms of the Credit
Documents, Administrative Agent may at its option (but subject to the approval
of Required Lenders), perform or attempt to perform that covenant, duty or
agreement on behalf of that Company, and any amount expended by or on behalf of
Administrative Agent in its performance or attempted performance is payable by
the Companies, jointly and severally, to Administrative Agent on demand, becomes
part of the Obligation, and bears interest on the portion thereof from time to
time unpaid at the Default Rate from the date of Administrative Agent's
expenditure until paid. However, Administrative Agent does not assume and shall
never have, except by its express written consent, any liability or
responsibility for the performance of any Company's covenants, duties or
agreements. Notwithstanding the forgoing, unless an Event of Default then
exists, Administrative Agent shall not take any such action without requesting
that Borrower take such action on its own behalf.
11.4 Not in Control. Nothing in any Credit Document gives or may be
deemed to give to Administrative Agent or any Lender the Right to exercise
control over any Company's Real Property, other assets, affairs or management or
to preclude or interfere with any Company's compliance with any Governmental
Requirement or require any act or omission by any Company that may be harmful to
Persons or property. Any "Material Adverse Event" or other materiality or
substantiality qualifier of any representation, warranty, covenant, agreement or
other provision of any Credit Document is included for credit documentation
purposes only and does not imply and should not be deemed to mean that
Administrative Agent or any Lender acquiesces in any non-compliance by any
Company with any applicable Governmental
50
Requirement, document, or otherwise or does not expect the Companies to
promptly, diligently and continuously carry out all appropriate removal,
remediation, compliance, closure or other activities required or appropriate in
accordance with all Environmental Laws. Administrative Agent's and Lenders'
power is limited to the Rights provided in, or referred to by, the Credit
Documents. All of those Rights exist solely to assure payment and performance of
the Obligation in accordance with the terms of the Credit Documents, and may be
exercised in a manner determined to be appropriate by Administrative Agent or
Lenders in their sole business judgment.
11.5 Course of Dealing. The acceptance by Administrative Agent or
Lenders of any partial payment on the Obligation is not a waiver of any Event of
Default then existing. No waiver by Administrative Agent, Required Lenders or
Lenders of any Event of Default is a waiver of any other then-existing or
subsequent Event of Default. No delay or omission by Administrative Agent,
Required Lenders or Lenders in exercising any Right under the Credit Documents
impairs that Right or is a waiver thereof or any acquiescence therein, nor will
any single or partial exercise of any Right preclude other or further exercise
thereof or the exercise of any other Right under the Credit Documents or
otherwise.
11.6 Cumulative Rights. All Rights available to Administrative Agent,
Required Lenders and Lenders under the Credit Documents are cumulative of and in
addition to all other Rights granted to Administrative Agent, Required Lenders
and Lenders at law or in equity, whether or not the Obligation is due and
payable and whether or not Administrative Agent, Required Lenders or Lenders
have instituted any suit for collection, foreclosure, or other action in
connection with the Credit Documents.
11.7 Application of Proceeds. Any and all proceeds ever received by
Administrative Agent or Lenders from the exercise of any Rights pertaining to
the Obligation shall be applied to the Obligation according to Section 3.
11.8 Certain Proceedings. Borrower shall promptly execute and deliver,
or cause the execution and delivery of, all applications, certificates,
instruments, registration statements, and all other documents and papers
Administrative Agent or Required Lenders reasonably request in connection with
the obtaining of any consent, approval, registration (other than securities law
registrations), qualification, permit, license or authorization of any
Governmental Authority or other Person necessary or appropriate for the
effective exercise of any Rights under the Credit Documents. Because Borrower
agrees that Administrative Agent's and Required Lenders' remedies under
applicable Governmental Requirements for failure of Borrower to comply with the
provisions of this section would be inadequate and that failure would not be
adequately compensable in damages, Borrower agrees that the covenants of this
section may be specifically enforced.
11.9 Expenditures by Administrative Agent or Lenders. Any sums spent by
Administrative Agent or any Lender in the exercise of any Right under any Credit
Document is payable by the Companies to Administrative Agent within 10 days of
written demand, becomes part of the Obligation, and bears interest on the
portion thereof from time to time unpaid at the Default Rate from the date spent
until the date repaid.
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SECTION 12. ADMINISTRATIVE AGENT AND LENDERS.
12.1 Administrative Agent.
(a) Appointment. Each Lender appoints Administrative Agent
(including, without limitation, each successor Administrative Agent in
accordance with this Section 12) as its nominee and agent to act in its
name and on its behalf (and Administrative Agent and each such
successor accepts that appointment): (i) To act as its nominee and on
its behalf in and under all Credit Documents; (ii) to arrange the means
whereby its funds are to be made available to Borrower under the Credit
Documents; (iii) to take any action that it properly requests under the
Credit Documents (subject to the concurrence of other Lenders as may be
required under the Credit Documents); (iv) to receive all documents and
items to be furnished to it under the Credit Documents; (v) to promptly
distribute to it all material information, requests, documents, and
items received from Borrower under the Credit Documents; (vi) to
promptly distribute to it its ratable part of each payment or
prepayment (whether voluntary, as proceeds of collateral upon or after
foreclosure, as proceeds of insurance thereon, or otherwise) in
accordance with the terms of the Credit Documents; and (vii) to deliver
to the appropriate Persons requests, demands, approvals, and consents
received from it. However, Administrative Agent may not be required to
take any action that exposes it to personal liability or that is
contrary to any Credit Document or applicable Governmental
Requirements.
(b) Successor. Administrative Agent may assign all of its
Rights and obligations as Administrative Agent under the Credit
Documents to any of its Affiliates, which Affiliate shall then be the
successor Administrative Agent under the Credit Documents.
Administrative Agent may also voluntarily resign and shall resign upon
the request of Required Lenders for cause (i.e., Administrative Agent
is continuing to fail to perform its responsibilities as Administrative
Agent under the Credit Documents). If the initial or any successor
Administrative Agent ever ceases to be a party to this agreement or if
the initial or any successor Administrative Agent ever resigns (whether
voluntarily or at the request of Required Lenders), then Required
Lenders shall (which, if no Event of Default or Potential Default
exists, is subject to Borrower's approval that may not be unreasonably
withheld) appoint the successor Administrative Agent from among Lenders
(other than the resigning Administrative Agent). If Required Lenders
fail to appoint a successor Administrative Agent within 30 days after
the resigning Administrative Agent has given notice of resignation or
Required Lenders have removed the resigning Administrative Agent, then
the resigning Administrative Agent may, on behalf of Lenders, appoint a
successor Administrative Agent, which must be a commercial bank having
a combined capital and surplus of at least $1,000,000,000 (as shown on
its most recently published statement of condition). Upon its
acceptance of appointment as successor Administrative Agent, the
successor Administrative Agent succeeds to and becomes vested with all
of the Rights of the prior Administrative Agent, and the prior
Administrative Agent is discharged from its duties and obligations of
Administrative Agent under the Credit Documents, and each Lender shall
execute the documents that any Lender, the resigning or removed
Administrative Agent, or the successor Administrative Agent reasonably
request to reflect the change. After any Administrative Agent's
resignation or removal as Administrative Agent under the Credit
Documents, the
52
provisions of this section inure to its benefit as to any actions taken
or not taken by it while it was Administrative Agent under the Credit
Documents.
(c) Rights as Lender. Administrative Agent, in its
capacity as a Lender, has the same Rights under the Credit Documents as
any other Lender and may exercise those Rights as if it were not acting
as Administrative Agent. The term "Lender", unless the context
otherwise indicates, includes Administrative Agent. Administrative
Agent's resignation or removal does not impair or otherwise affect any
Rights that it has or may have in its capacity as an individual Lender.
Each Lender and Borrower agree that Administrative Agent is not a
fiduciary for Lenders or for Borrower but is simply acting in the
capacity described in this agreement to alleviate administrative
burdens for Borrower and Lenders, that Administrative Agent has no
duties or responsibilities to Lenders or Borrower except those
expressly set forth in the Credit Documents, and that Administrative
Agent in its capacity as a Lender has the same Rights as any other
Lender.
(d) Other Activities. Administrative Agent or any Lender
may now or in the future be engaged in one or more loan, letter of
credit, leasing, or other financing transactions with Borrower, act as
trustee or depositary for Borrower, or otherwise be engaged in other
transactions with Borrower (collectively, the "other activities") not
the subject of the Credit Documents. Without limiting the Rights of
Lenders specifically set forth in the Credit Documents, neither
Administrative Agent nor any Lender is responsible to account to the
other Lenders for those other activities, and no Lender shall have any
interest in any other Lender's activities, any present or future
guaranties by or for the account of Borrower that are not contemplated
by or included in the Credit Documents, any present or future offset
exercised by Administrative Agent or any Lender in respect of those
other activities, any present or future property taken as security for
any of those other activities, or any property now or hereafter in
Administrative Agent's or any other Lender's possession or control that
may be or become security for the obligations of Borrower arising under
the Credit Documents by reason of the general description of
indebtedness secured or of property contained in any other agreements,
documents, or instruments related to any of those other activities
(but, if any payments in respect of those guaranties or that property
or the proceeds thereof is applied by Administrative Agent or any
Lender to reduce the Obligation, then each Lender is entitled to share
ratably in the application as provided in the Credit Documents).
12.2 Expenses. Each Lender shall pay its Pro Rata Part of any
reasonable expenses (including, without limitation, court costs, reasonable
attorneys' fees and other costs of collection) incurred by Administrative Agent
(while acting in such capacity) in connection with any of the Credit Documents
if Administrative Agent is not reimbursed from other sources within 30 days
after incurrence. Each Lender is entitled to receive its Pro Rata Part of any
reimbursement that it makes to Administrative Agent if Administrative Agent is
subsequently reimbursed from other sources.
12.3 Proportionate Absorption of Losses. Except as otherwise provided
in the Credit Documents, nothing in the Credit Documents gives any Lender any
advantage over any other Lender insofar as the Obligation is concerned or
relieves any Lender from ratably absorbing any losses sustained with respect to
the Obligation (except to the extent unilateral actions or inactions
53
by any Lender result in Borrower or any other obliger on the Obligation having
any credit, allowance, setoff, defense, or counterclaim solely with respect to
all or any part of that Lender's Pro Rata Part of the Obligation).
12.4 Delegation of Duties; Reliance. Lenders may perform any of their
duties or exercise any of their Rights under the Credit Documents by or through
Administrative Agent, and Lenders and Administrative Agent may perform any of
their duties or exercise any of their Rights under the Credit Documents by or
through their respective Representatives. Administrative Agent, Lenders, and
their respective Representatives (a) are entitled to rely upon (and shall be
protected in relying upon) any written or oral statement believed by it or them
to be genuine and correct and to have been signed or made by the proper Person
and, with respect to legal matters, upon opinion of counsel selected by
Administrative Agent or that Lender (but nothing in this clause (a) permits
Administrative Agent to rely on (i) oral statements if a writing is required by
this agreement or (ii) any other writing if a specific writing is required by
this agreement), (b) are entitled to deem and treat each Lender as the owner and
holder of its portion of the Obligation for all purposes until, written notice
of the assignment or transfer is given to and received by Administrative Agent
(and any request, authorization, consent, or approval of any Lender is
conclusive and binding on each subsequent holder, assignee, or transferee of or
Participant in that Lender's portion of the Obligation until that notice is
given and received), (c) are not deemed to have notice of the occurrence of an
Event of Default unless a responsible officer of Administrative Agent, who
handles matters associated with the Credit Documents and transactions
thereunder, has actual knowledge or Administrative Agent has been notified by a
Lender or Borrower, and (d) are entitled to consult with legal counsel
(including counsel for Borrower), independent accountants, and other experts
selected by Administrative Agent and are not liable for any action taken or not
taken in good faith by it in accordance with the advice of counsel, accountants,
or experts.
12.5 Limitation of Administrative Agent's Liability.
(a) Exculpation. Neither Administrative Agent nor any of
its Affiliates or Representatives will be liable for any action taken
or omitted to be taken by it or them under the Credit Documents in good
faith and believed by it or them to be within the discretion or power
conferred upon it or them by the Credit Documents or be responsible for
the consequences of any error of judgment (except for fraud, gross
negligence, or willful misconduct), and neither Administrative Agent
nor any of its Affiliates or Representatives has a fiduciary
relationship with any Lender by virtue of the Credit Documents (but
nothing in this agreement negates the obligation of Administrative
Agent to account for funds received by it for the account of any
Lender).
(b) Indemnity. Unless indemnified to its satisfaction
against loss, cost, liability, and expense, Administrative Agent may
not be compelled to do any act under the Credit Documents or to take
any action toward the execution or enforcement of the powers thereby
created or to prosecute or defend any suit in respect of the Credit
Documents. If Administrative Agent requests instructions from Lenders,
or Required Lenders, as the case may be, with respect to any act or
action in connection with any Credit Document, Administrative Agent is
entitled to refrain (without incurring any liability to any Person by
so refraining) from that act or action unless and until it has
54
received instructions. In no event, however, may Administrative Agent
or any of its Representatives be required to take any action that it or
they determine could incur for it or them criminal or onerous civil
liability. Without limiting the generality of the foregoing, no Lender
has any right of action against Administrative Agent as a result of
Administrative Agent's acting or refraining from acting under this
agreement in accordance with instructions of Required Lenders.
(c) Reliance. Administrative Agent is not responsible to
any Lender or any Participant for, and each Lender represents and
warrants that it has not relied upon Administrative Agent in respect
of, (i) the creditworthiness of any Company and the risks involved to
that Lender, (ii) the effectiveness, enforceability, genuineness,
validity, or the due execution of any Credit Document (except by
Administrative Agent), (iii) any representation, warranty, document,
certificate, report, or statement made therein (except by
Administrative Agent) or furnished thereunder or in connection
therewith, (iv) the adequacy of any collateral now or hereafter
securing the Obligation or the existence, priority, or perfection of
any Lien now or hereafter granted or purported to be granted on the
collateral under any Credit Document, or (v) observation of or
compliance with any of the terms, covenants, or conditions of any
Credit Document on the part of any Company. EACH LENDER AGREES TO
INDEMNIFY ADMINISTRATIVE AGENT AND ITS REPRESENTATIVES AND HOLD THEM
HARMLESS FROM AND AGAINST (BUT LIMITED TO SUCH LENDER'S COMMITMENT
PERCENTAGE OF) ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES,
PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, REASONABLE EXPENSES, AND
REASONABLE DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER THAT MAY BE
IMPOSED ON, ASSERTED AGAINST, OR INCURRED BY THEM IN ANY WAY RELATING
TO OR ARISING OUT OF THE CREDIT DOCUMENTS OR ANY ACTION TAKEN OR
OMITTED BY THEM UNDER THE CREDIT DOCUMENTS IF ADMINISTRATIVE AGENT AND
ITS REPRESENTATIVES ARE NOT REIMBURSED FOR SUCH AMOUNTS BY ANY COMPANY.
ALTHOUGH ADMINISTRATIVE AGENT AND ITS REPRESENTATIVES HAVE THE RIGHT TO
BE INDEMNIFIED UNDER THIS AGREEMENT FOR ITS OR THEIR OWN ORDINARY
NEGLIGENCE, ADMINISTRATIVE AGENT AND ITS REPRESENTATIVES DO NOT HAVE
THE RIGHT TO BE INDEMNIFIED UNDER THIS AGREEMENT FOR ITS OR THEIR OWN
FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.
12.6 Event of Default. While an Event of Default exists, Lenders agree
to promptly confer in order that Required Lenders or Lenders, as the case may
be, may agree upon a course of action for the enforcement of the Rights of
Lenders. Administrative Agent is entitled to act or refrain from taking any
action (without incurring any liability to any Person for so acting or
refraining) unless and until it has received instructions from Required Lenders.
In actions with respect to any Company's property, Administrative Agent is
acting for the ratable benefit of each Lender.
12.7 Limitation of Liability. No Lender or any Participant will incur
any liability to any other Lender or Participant except for acts or omissions in
bad faith, and neither Administrative Agent nor any Lender or Participant will
incur any liability to any other Person for any act or omission of any other
Lender or any Participant.
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12.8 Relationship of Lenders. The Credit Documents do not create a
partnership or joint venture among Administrative Agent and Lenders or among
Lenders.
12.9 Benefits of Agreement. None of the provisions of this section
inure to the benefit of any Company or any other Person except Administrative
Agent and Lenders. Therefore, no Company or any other Person is entitled to rely
upon, or entitled to raise as a defense, in any manner whatsoever, the failure
of Administrative Agent or any Lender to comply with these provisions.
SECTION 13. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS.
13.1 Successors and Assigns. The terms and provisions of the Credit
Documents shall be binding upon and inure to the benefit of Borrower and the
Lenders and their respective successors and assigns, except that (i) Borrower
shall not have the right to assign its rights or obligations under the Credit
Documents and (ii) any assignment by any Lender must be made in compliance with
Section 13.3. The parties to this agreement acknowledge that clause (ii) of this
Section 13.1 relates only to absolute assignments and does not prohibit
assignments creating security interests, including, without limitation, any
pledge or assignment by any Lender of all or any portion of its rights under
this agreement and any Note to a Federal Reserve Bank; provided, however, that
no such pledge or assignment creating a security interest shall release the
transferor Lender from its obligations hereunder unless and until the parties
thereto have complied with the provisions of Section 13.3. The Administrative
Agent may treat the Person which made any loan or which holds any Note as the
owner thereof for all purposes hereof unless and until such Person complies with
Section 13.3; provided, however, that the Administrative Agent may in its
discretion (but shall not be required to) follow instructions from the Person
which made any loan or which holds any Note to direct payments relating to such
loan or Note to another Person. Any assignee of the rights to any loan or any
Note agrees by acceptance of such assignment to be bound by all the terms and
provisions of the Credit Documents. Any request, authority or consent of any
Person, who at the time of making such request or giving such authority or
consent is the owner of the rights to any loan (whether or not a Note has been
issued in evidence thereof), shall be conclusive and binding on any subsequent
holder or assignee of the rights to such loan.
13.2 Participations.
(a) Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time sell to one or more banks or other entities
("Participants") participating interests in any loan owing to such
Lender, any Note held by such Lender, any Commitment of such Lender or
any other interest of such Lender under the Credit Documents. In the
event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under the Credit Documents shall
remain unchanged, such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, such
Lender shall remain the owner of its loans and the holder of any Note
issued to it in evidence thereof for all purposes under the Credit
Documents, all amounts payable by Borrower under this agreement shall
be determined as if such Lender had not sold such participating
interests, and Borrower and Administrative Agent shall continue to deal
solely and directly with
56
such Lender in connection with such Lender's rights and obligations
under the Credit Documents.
(b) Voting Rights. Each Lender shall retain the sole right
to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Credit Documents other
than any amendment, modification or waiver with respect to any loan or
Commitment in which such Participant has an interest which forgives
principal, interest or fees or reduces the interest rate or fees
payable with respect to any such loan or Commitment, extends the Stated
Termination Date, postpones any date fixed for any regularly-scheduled
payment of principal of, or interest or fees on, any such loan or
Commitment, releases any guarantor of any such loan or releases all or
substantially all of the collateral, if any, securing any such loan.
(c) Benefit of Setoff. Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in
Section 11.1 in respect of its participating interest in amounts owing
under the Credit Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the
Credit Documents, provided that each Lender shall retain the right of
setoff provided in Section 11.1 with respect to the amount of
participating interests sold to each Participant. The Lenders agree to
share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with each
Lender, any amount received pursuant to the exercise of its right of
setoff, such amounts to be shared in accordance with Section 11.1 as if
each Participant were a Lender.
13.3 Assignments.
(a) Permitted Assignments. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any
time assign to one or more banks or other entities ("Purchasers") all
or any part of its rights and obligations under the Credit Documents.
Such assignment shall be substantially in the form of Exhibit E or in
such other form as may be agreed to by the parties thereto. The consent
of Borrower and Administrative Agent shall be required prior to an
assignment becoming effective with respect to a Purchaser which is not
a Lender or an Affiliate thereof; provided, however, that if an Event
of Default has occurred and is continuing, the consent of Borrower
shall not be required. Such consent shall not be unreasonably withheld
or delayed. Each such assignment with respect to a Purchaser which is
not a Lender or an Affiliate thereof shall (unless each of Borrower and
Administrative Agent otherwise consents) be in an amount not less than
the lesser of (i) $5,000,000 or (ii) the remaining amount of the
assigning Lender's Commitment (calculated as at the date of such
assignment) or outstanding loans (if the applicable Commitment has been
terminated).
(b) Effect; Effective Date. Upon (i) delivery to
Administrative Agent of an assignment, together with any consents
required by Section 13.3(a), and (ii) payment of a $4,000 fee from the
Purchaser or the assigning Lender to Administrative Agent for
processing such assignment (unless such fee is waived by Administrative
Agent), such assignment shall become effective on the effective date
specified in such assignment. The assignment shall contain a
representation by the Purchaser to the effect that none of
57
the consideration used to make the purchase of the Commitment and loans
under the applicable assignment agreement constitutes "plan assets" as
defined under ERISA and that the rights and interests of the Purchaser
in and under the Credit Documents will not be "plan assets" under
ERISA. On and after the effective date of such assignment, such
Purchaser shall for all purposes be a Lender party to this agreement
and any other Credit Document executed by or on behalf of the Lenders
and shall have all the rights and obligations of a Lender under the
Credit Documents, to the same extent as if it were an original party
hereto, and no further consent or action by Borrower, the Lenders or
Administrative Agent shall be required to release the transferor Lender
with respect to the percentage of the Commitment and loans assigned to
such Purchaser. Upon the consummation of any assignment to a Purchaser
pursuant to this Section 13.3(b), the transferor Lender, Administrative
Agent and Borrower shall, if the transferor Lender or the Purchaser
desires that its loans be evidenced by Notes, make appropriate
arrangements so that new Notes or, as appropriate, replacement Notes
are issued to such transferor Lender and new Notes or, as appropriate,
replacement Notes, are issued to such Purchaser, in each case in
principal amounts reflecting their respective Commitments, as adjusted
pursuant to such assignment.
13.4 Dissemination of Information. Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Credit Documents by operation of law (each a "Transferee") and
any prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of Borrower and its Subsidiaries, so long as
such Transferee or prospective Transferee agrees in writing to keep such
information confidential.
13.5 Tax Treatment. If any interest in any Credit Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 3.19.
SECTION 14. MISCELLANEOUS.
14.1 Nonbusiness Days. Any payment or action that is due under any
Credit Document on a non-Business Day may be delayed until the next-succeeding
Business Day (but interest shall continue to accrue on any applicable payment
until payment is in fact made) unless the payment concerns a LIBOR Rate
Borrowing, in which case if the next-succeeding Business Day is in the next
calendar month, then such payment shall be made on the next-preceding Business
Day.
14.2 Communications. Unless otherwise specifically provided, whenever
any Credit Document requires or permits any consent, approval, notice, request
or demand from one party to another, communication must be in writing (which may
be by telex or fax) to be effective and shall be deemed to have been given (i)
if by telex, when transmitted to the appropriate telex number and the
appropriate answer back is received, (ii) if by fax, when transmitted to the
appropriate fax number and machine confirmation of receipt is received (and all
communications sent by fax must be confirmed promptly thereafter by telephone;
but any requirement in this parenthetical shall not affect the date when the fax
shall be deemed to have been delivered),
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(iii) if by mail, on the third Business Day after it is enclosed in an envelope
and properly addressed, stamped, sealed and deposited in the appropriate
official postal service, (iv) if by e-mail, when transmitted to the appropriate
e-mail address of the receiving party ( and all communications sent by e-mail
must be followed by a facsimile of that e-mail sent to the receiving party), or
(v) if by any other means, when actually delivered. Until changed by notice
pursuant to this agreement, the addresses (and fax numbers) for Borrower and
Administrative Agent are stated beside their respective signatures to this
agreement. The address (and fax number) for each Lender who becomes party to
this agreement shall be stated beside its name on the then most recently amended
Schedule 2.
14.3 Form and Number of Documents. The form, substance and number of
counterparts of each writing to be furnished under this agreement must be
satisfactory to Administrative Agent and its counsel.
14.4 Exceptions to Covenants. No Company may take or fail to take any
action that is permitted as an exception to any of the covenants contained in
any Credit Document if that action or omission would result in the breach of any
other covenant contained in any Credit Document.
14.5 Survival. All covenants, agreements, undertakings,
representations, and warranties made in any of the Credit Documents survive all
closings under the Credit Documents and, except as otherwise indicated, are not
affected by any investigation made by any party.
14.6 Governing Governmental Requirements. Unless otherwise stated in
any Credit Document, the Governmental Requirements of the State of Texas and of
the United States of America govern the Rights and duties of the parties to the
Credit Documents and the validity, construction, enforcement, and interpretation
of the Credit Documents.
14.7 Invalid Provisions. Any provision in any Credit Document held to
be illegal, invalid or unenforceable is fully severable; the appropriate Credit
Document shall be construed and enforced as if that provision had never been
included; and the remaining provisions shall remain in full force and effect and
shall not be affected by the severed provision. Administrative Agent, Lenders
and each Company party to the affected Credit Document agree to negotiate, in
good faith, the terms of a replacement provision as similar to the severed
provision as may be possible and be legal, valid and enforceable.
14.8 Conflicts Between Credit Documents. The provisions of this
agreement control if in conflict (i.e., the provisions contradict each other as
opposed to a Credit Document containing additional provisions not in conflict)
with the provisions of any other Credit Document.
14.9 Discharge Only Upon Payment in Full; Reinstatement in Certain
Circumstances. Each Company's obligations under the Credit Documents shall
remain in full force and effect until termination of the Commitment and payment
in full of the Principal Debt and of all interest, fees, and other amounts of
the Obligation then due and owing, except that Sections 3.16, 3.18, Section 11,
and Section 13, and any other provisions under the Credit Documents expressly
intended to survive by the terms hereof or by the terms of the applicable Credit
Documents, shall survive such termination. If at any time any payment of the
principal of or interest on any Note
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or any other amount payable by Borrower under any Credit Document is rescinded
or must be otherwise restored or returned upon the insolvency, bankruptcy, or
reorganization of Borrower or otherwise, the obligations of each Company under
the Credit Documents with respect to such payment shall be reinstated as though
such payment had been due but not made at such time.
14.10 Amendments, Consents, Conflicts, and Waivers.
(a) Required Lenders. Unless otherwise specifically
provided (i) the provisions of this agreement may be amended, modified,
or waived, only by an instrument in writing executed by Borrower,
Administrative Agent, and Required Lenders and supplemented only by
documents delivered or to be delivered in accordance with the express
terms of this agreement, and (ii) the other Credit Documents may only
be the subject of an amendment, modification, or waiver that has been
approved by Required Lenders and Borrower.
(b) All Lenders. Any amendment to or consent or waiver
under this agreement or any Credit Document that purports to accomplish
any of the following must be by an instrument in writing executed by
Borrower and Administrative Agent and executed (or approved, as the
case may be) by each Lender: (i) Extends the due date or decreases the
amount of any scheduled payment or amortization of the Obligation
beyond the date specified in the Credit Documents; (ii) decreases any
rate or amount of interest, fees, or other sums payable to
Administrative Agent or Lenders under this agreement (except such
reductions as are contemplated by this agreement); (iii) changes the
definition of "Commitment," "Commitment Percentage," "Required
Lenders," or "Pro Rata Part;" (iv) increases any one or more Lenders'
Commitment; or (v) changes this clause (b) or any other matter
specifically requiring the consent of all Lenders under this agreement.
(c) Conflicts. Any conflict or ambiguity between the terms
and provisions of this agreement and terms and provisions in any other
Credit Document is controlled by the terms and provisions of this
agreement.
(d) Waivers. No course of dealing or any failure or delay
by Administrative Agent, any Lender, or any of their respective
Representatives with respect to exercising any Right of Administrative
Agent or any Lender under this agreement operates as a waiver thereof.
A waiver must be in writing and signed by Administrative Agent and
Lenders (or Required Lenders, if permitted under this agreement) to be
effective, and a waiver will be effective only in the specific instance
and for the specific purpose for which it is given.
14.11 Multiple Counterparts. Any Credit Document may be executed in a
number of identical counterparts, and by each party thereto on separate
counterparts (including, at Administrative Agent's discretion, counterparts or
signature pages executed and transmitted by fax) with the same effect as if all
signatories had signed the same document. All counterparts must be construed
together to constitute one and the same instrument.
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14.12 VENUE, SERVICE OF PROCESS, AND JURY TRIAL.
(a) VENUE AND SERVICE OF PROCESS. BORROWER, FOR ITSELF
AND ITS SUCCESSORS AND ASSIGNS, IRREVOCABLY (I) SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS IN TEXAS,
(II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE GOVERNMENTAL
REQUIREMENTS, ANY OBJECTION THAT IT MAY NOW OR IN THE FUTURE HAVE TO
THE LAYING OF VENUE OF ANY LITIGATION ARISING OUT OF OR IN CONNECTION
WITH ANY CREDIT DOCUMENT AND THE OBLIGATION BROUGHT IN THE DISTRICT
COURTS OF DALLAS COUNTY, TEXAS, OR IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION, (III) WAIVES ANY
CLAIMS THAT ANY LITIGATION BROUGHT IN ANY OF THE FOREGOING COURTS HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM, (IV) CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THOSE COURTS IN ANY LITIGATION BY THE MAILING OF
COPIES OF THAT PROCESS BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED,
POSTAGE PREPAID, BY HAND DELIVERY, OR BY DELIVERY BY A NATIONALLY
RECOGNIZED COURIER SERVICE, AND SERVICE SHALL BE DEEMED COMPLETE UPON
DELIVERY OF THE LEGAL PROCESS AT ITS ADDRESS FOR PURPOSES OF THIS
AGREEMENT, AND (V) AGREES THAT ANY LEGAL PROCEEDING AGAINST ANY PARTY
TO ANY CREDIT DOCUMENT ARISING OUT OF OR IN CONNECTION WITH THE CREDIT
DOCUMENTS OR THE OBLIGATION MAY BE BROUGHT IN ONE OF THE FOREGOING
COURTS.
(b) JURY WAIVER. EACH OF BORROWER, ADMINISTRATIVE AGENT
AND EACH LENDER HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE)
BETWEEN OR AMONG SUCH PARTIES ARISING OUT OF OR IN ANY WAY RELATED TO
THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT. THIS PROVISION IS A
MATERIAL INDUCEMENT TO LENDERS TO PROVIDE THE FINANCING DESCRIBED
HEREIN OR IN THE OTHER CREDIT DOCUMENTS.
(c) General. The scope of each of the foregoing waivers is
intended to be all encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of this
transaction, including, without limitation, contract claims, tort
claims, breach of duty claims, and all other common law and statutory
claims. BORROWER ACKNOWLEDGES THAT THESE WAIVERS ARE A MATERIAL
INDUCEMENT TO ADMINISTRATIVE AGENT'S AND EACH LENDER'S AGREEMENT TO
ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH OF ADMINISTRATIVE AGENT
AND EACH LENDER HAVE ALREADY RELIED ON THESE WAIVERS IN ENTERING INTO
THIS AGREEMENT, AND THAT ADMINISTRATIVE AGENT AND EACH LENDER WILL
CONTINUE TO RELY ON EACH OF THESE WAIVERS IN RELATED FUTURE DEALINGS.
BORROWER FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THESE
WAIVERS WITH ITS LEGAL COUNSEL,
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AND THAT IT KNOWINGLY AND VOLUNTARILY AGREES TO EACH WAIVER FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. The waivers in this section are
irrevocable, meaning that they may not be modified either orally or in
writing, and these waivers apply to any future renewals, extensions,
amendments, modifications, or replacements in respect of the applicable
Credit Document. In connection with any Litigation, this agreement may
be filed as a written consent to a trial by the court.
14.13 Entirety. the credit documents represent the final agreement
between borrower, the other companies, lenders, and administrative agent and may
not be contradicted by evidence of prior, contemporaneous, or subsequent oral
agreements of the parties. There are no unwritten oral agreements between the
parties.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGE FOLLOWS]
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DULY EXECUTED AND DELIVERED by each of the signatories hereto as of the
date first stated in this agreement.
Address for Notice PMC COMMERCIAL TRUST, as Borrower
PMC Commercial Trust
18111 Preston Road, Suite 600 By: /s/ Barry N. Berlin
Dallas, Texas 75252 -------------------
Attn: Chief Financial Officer Name: Barry N. Berlin
Fax No.: 972/349-3265 Title: Chief Financial Officer
Address for Notice BANK ONE, NA, as Administrative Agent,
Bank One, and a Lender
Bank One, NA
1717 Main Street, 3rd Floor By:/s/ Alan L. Miller
Dallas, Texas 75201 ------------------
Attn: Alan L. Miller Alan L. Miller, First Vice President
Fax No.: 214/290-2305
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