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Exhibit 10(k)(1)
U.S. $50,000,000
REVOLVING CREDIT LOAN AGREEMENT
Dated as of April 7 , 1997
between
XXXXX EQUITY, INC.
as Borrower
and
FIRST UNION NATIONAL BANK OF FLORIDA
and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
as Lender
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS....................................................................................1
SECTION 1.1. Certain Defined Terms.................................................................................1
SECTION 1.2. Accounting Terms......................................................................................8
ARTICLE II
AMOUNT AND TERMS OF ADVANCES........................................................................................8
SECTION 2.1. Advances..............................................................................................8
SECTION 2.2. Making Advances.......................................................................................8
SECTION 2.3. Loan Term Extension; Extension Fee...................................................................10
SECTION 2.4. Unused Fee...........................................................................................11
SECTION 2.5. Repayment of Advances; Prepayments...................................................................11
SECTION 2.6. Interest Rate; Default Rate..........................................................................11
SECTION 2.7. Payments and Computations............................................................................12
SECTION 2.8. Evidence of Indebtedness.............................................................................12
ARTICLE III
CONDITIONS OF LENDING..............................................................................................12
SECTION 3.1. Conditions Precedent to Advances.....................................................................12
SECTION 3.2. Conditions Precedent to Certain Advances.............................................................14
ARTICLE IV
ADDITION, SUBSTITUTION AND RELEASE OF COLLATERAL...................................................................15
SECTION 4.1. General Right to Add, Substitute or Release Collateral...............................................15
SECTION 4.2. Requirements for Release of Collateral...............................................................16
SECTION 4.3. Requirements for Addition or Substitution of Collateral..............................................16
ARTICLE V
CERTAIN MATTERS CONCERNING THE COLLATERAL..........................................................................20
SECTION 5.1. Inspections..........................................................................................20
SECTION 5.2. Appraisals...........................................................................................20
SECTION 5.3. Insurance............................................................................................20
SECTION 5.4. Taxes and Assessments................................................................................21
SECTION 5.5. Tax and Insurance Deposits...........................................................................21
SECTION 5.6. Tax Service Contract; Annual Tax Searches............................................................22
SECTION 5.7. Due on Sale..........................................................................................22
SECTION 5.8. Loss and Restoration following Casualty or
Condemnation.....................................................................................22
ARTICLE VI
REPRESENTATIONS AND WARRANTIES.....................................................................................23
SECTION 6.1. Representations and Warranties of Borrower...........................................................23
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ARTICLE VII
COVENANTS OF BORROWER..............................................................................................26
SECTION 7.1. Affirmative Covenants................................................................................26
(a) Costs and Expenses....................................................................................26
(b) Rent Roll.............................................................................................26
(c) Compliance with Governmental Requirements.............................................................26
(d) Preservation of Corporate Existence...................................................................27
(e) Preservation and Maintenance of Collateral............................................................27
(f) Reporting Requirements................................................................................27
(g) Notice of Failure to Perform..........................................................................28
SECTION 7.2. Negative Covenants...................................................................................28
(a) Use of Loan Proceeds..................................................................................28
(b) Structural Alterations................................................................................28
(c) Change in Nature of Business..........................................................................28
(d) Transactions with Subsidiaries........................................................................28
ARTICLE VIII
DEFAULT............................................................................................................28
SECTION 8.1. Events of Default....................................................................................28
SECTION 8.2. Remedies following an Event of Default...............................................................30
SECTION 8.3. Default Interest.....................................................................................30
ARTICLE IX
MISCELLANEOUS......................................................................................................30
SECTION 9.1. Amendments, Etc......................................................................................30
SECTION 9.2. Indemnification and Limitation of Claims.............................................................30
SECTION 9.3. Notices..............................................................................................31
SECTION 9.4. No Waiver; Remedies..................................................................................32
SECTION 9.5. Binding Effect; Assignment...........................................................................32
SECTION 9.6. Governing Law; Jurisdiction and Venue................................................................32
SECTION 9.7. Severability.........................................................................................33
SECTION 9.8. Headings.............................................................................................33
SECTION 9.9. Counterparts.........................................................................................33
SECTION 9.10. WAIVER OF TRIAL BY JURY.............................................................................33
SIGNATURE PAGE; SCHEDULE OF EXHIBITS........................................................................................35
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REVOLVING CREDIT LOAN AGREEMENT
THIS REVOLVING CREDIT LOAN AGREEMENT dated as of April 7 , 1997, by
and between XXXXX EQUITY, INC., a Florida corporation, and FIRST UNION NATIONAL
BANK OF FLORIDA, a national banking association, and XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, a New York banking corporation.
IN CONSIDERATION of the mutual covenants herein contained, Borrower
and Lender agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Advance" means any disbursement of principal out of the
available undisbursed Loan Amount by Lender to Borrower.
"Assignment of Contracts" means each Assignment of Contracts,
Licenses and Permits dated the Closing Date or on any Collateral Change Date
given by Borrower to and in favor of Lender, assigning to Lender all of
Borrower's interest in all contracts, licenses, permits, approvals, warranties,
guaranties, service contracts, equipment leases, deposits and water and sewer
rights relating to the Collateral located in each State.
"Borrower" means Xxxxx Equity, Inc., a Florida corporation.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and Jacksonville, Florida,
and, if the applicable Business Day relates to any LIBOR Advances, on which
dealings are carried on in the London interbank market and banks are open for
business in London, England.
"Closing Date" means April 7 , 1997.
"Code" means the Internal Revenue Code, as amended, and
Regulations promulgated thereunder.
"Collateral" means the real property described on attached
Exhibit A, and all easements and appurtenances thereto, and all improvements,
furniture, fixtures and equipment, and related tangible and intangible personal
property owned or leased by Borrower located thereon or used and useful in
connection therewith, and such other real property and easements and
appurtenances thereto, and improvements, furniture,
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fixtures and equipment, and related tangible and intangible personal property
owned or leased by Borrower located thereon or used and useful in connection
therewith, now or hereafter mortgaged, assigned, granted or conveyed by
Borrower to Lender or a trustee for the benefit of Lender as security for the
payment and performance of the Obligations, pursuant to the terms, covenants
and conditions of this Agreement and the other Loan Documents.
"Collateral Change Date" means the effective date of any (i)
release of property from the Collateral, or (ii) addition of property to the
Collateral as additional Collateral or in substitution of property released or
to be released from the Collateral, as the case may be, pursuant to Article IV.
"Debt" means, at any time, without duplication, (A) as shown
on Borrower's balance sheet (i) all indebtedness of Borrower or any Subsidiary
for borrowed money or for the deferred purchase price of property or services
and (ii) all indebtedness of Borrower or any Subsidiary evidenced by a note,
bond, debenture or similar instrument (whether or not disbursed in full in the
case of a construction loan); (B) the face amount of all letters of credit
issued for the account of Borrower or any Subsidiary and all unreimbursed
amounts drawn thereunder; (C) all contingent obligations, including direct or
indirect guaranties and completion guaranties, of Borrower or any Subsidiary;
(D) all payment obligations of Borrower or any Subsidiary under any interest
rate protection agreement (including, without limitation, any interest rate
swaps, caps, floors, collars and similar agreements) and currency swaps and
similar agreements which were not entered specifically in connection with the
Debt referred to in clauses (A), (B) or (C) above; (E) obligations of Borrower
or any Subsidiary as lessee under leases which have been or should be, in
accordance with GAAP, recorded as capital or financing leases; and (F)
liabilities of Borrower or any Subsidiary in respect of unfunded vested
benefits under plans covered by Title IV of ERISA.
"Default" has the meaning set forth in Section 8.1.
"Default Rate" means a rate of interest equivalent to the
LIBOR Interest Rate (using LIBOR based on a 6-month Interest Period) plus
7.00%, calculated on the basis of a 360 day year.
"EBITDA" means, for any period and without duplication, net
earnings (loss) of Borrower for such period (excluding equity net earnings or
net loss of Subsidiaries) plus the sum of the following amounts (but only to
the extent included in determining net income (loss) for such period): (a)
depreciation and amortization expense and other non-cash charges of Borrower
for such period plus (b) interest expense of Borrower for such period plus (c)
income tax expense of Borrower in respect of such period plus (d) extraordinary
losses of Borrower, losses from sales of assets of Borrower and losses
resulting from forgiveness of debt by Borrower, all for such period minus (e)
extraordinary gains of Borrower and gains from sales of assets
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of Borrower for such period plus (f) distributions of cash received by Borrower
during such period from any of its Subsidiaries.
"ERISA" means the Employment Retirement Income Security Act
of 1974, as amended from time to time, and rules and regulations promulgated
thereunder.
"Event of Default" has the meaning set forth in Section 8.1.
"Extension Fee" means a non-refundable fee equivalent to
0.125% of the Loan Amount.
"Financial Covenants" has the meaning set forth in Section
3.1(a).
"FUNB" means First Union National Bank of Florida, a national
banking association.
"Funding Date" means each date on which Lender makes an
Advance, or, in the case of the continuation of an outstanding LIBOR Advance,
the next Business Day following the last day of the Interest Period applicable
to such outstanding LIBOR Advance.
"GAAP" means generally accepted accounting principles
consistently applied.
"Governmental Requirements" means the requirements and
mandates of all governmental laws, statutes, rules, regulations, ordinances or
requirements, including, without limitation, regulations relating to protection
of the environment, building and construction, highway access, disability
access, asbestos, lead-based paint, zoning, land use and concurrency, and other
regulations, applicable to the ownership, development, use or operation of the
Collateral.
"Indemnification Agreement" means each Environmental
Indemnification Agreement dated the Closing Date or any Collateral Change Date
given by Borrower to and in favor of Lender with respect to the Collateral
located in each State.
"Insurer" means American and Foreign Insurance Company, or
such other insurer selected by Borrower and approved by Lender and otherwise
authorized to transact business in each State and having an A.M. Best rating of
"A-" or better and an asset size rating of "IX" or better.
"Interest Period" means the 1-month, 2-month, 3-month or
6-month period, as elected by Borrower pursuant to Section 2.2(a), for any
LIBOR Advance, commencing on the Funding Date of such LIBOR Advance, and ending
on the last date of such period elected by Borrower; provided, that the
duration of any Interest Period
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that begins prior to the Maturity Date but otherwise would end after the
Maturity Date shall end on the Maturity Date, and further provided, that if the
last day of such Interest Period would otherwise occur on a day that is not a
Business Day, then such last day shall be extended to the next succeeding
Business Day.
"Xxxxx Net Square Foot" means the floor area unit measurement
utilized by Borrower in the ordinary course of its business in measuring the
floor area of an office building owned by Borrower for which Borrower
ordinarily would receive rent, as follows: (A) measurement is made from
centerline of corridor partitions and partitions separating tenants, (B)
measurement is made from centerline of glass or 3" into wall where no glass is
present, for exterior and permanent walls, and (C) no reduction in floor area
is made for columns or other projections .
"Late Charge" means an amount equivalent to the lesser of
5.00% of any scheduled payment amount or the maximum late charge permitted
under applicable laws of any State if the laws of such State are determined to
govern the Notes or this Loan Agreement.
"Leases" means any tenant leases now or hereafter in
existence in connection with the Collateral.
"Lease Assignment" means each Assignment of Leases and Rents,
whether incorporated into any Security Deed or set forth in a separate
document, dated the Closing Date or any Collateral Change Date given by
Borrower to and in favor of Lender, assigning to Lender all of Borrower's
interest in the Leases and Rents relating to the Collateral located in each
State.
"Lender" means together FUNB and MGT.
"Lender's Counsel" means legal counsel engaged by Lender from
time to time in connection with the closing, administration, enforcement or
collection of the Loan.
"LIBOR" means the interest rate at which 1-month, 2-month,
3-month or 6-month deposits (as elected by Borrower) in United States dollars
are offered to prime banks in the London interbank market as reported on
Telerate page 3750 as of 11:00 A.M. (London time), 2 Business Days before the
Funding Date of any LIBOR Advance (or if not so reported, then as determined by
FUNB from another recognized source or interbank quotation) in an amount
approximately equal or comparable to such LIBOR Advance with a maturity equal
to such Interest Period, as adjusted for reserves by dividing that rate by 1.00
minus the Reserve Requirement, if any.
"LIBOR Advance" means any Advance bearing interest at a LIBOR
Interest Rate pursuant to Article II.
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"LIBOR Interest Rate" means an annual rate of interest
equivalent to LIBOR (as elected by Borrower) plus 2.00%, calculated on the
basis of 360 day year.
"Loan" means the revolving credit facility in an aggregate
amount up to the Loan Amount made available by Lender to Borrower in accordance
with the terms, covenants and conditions of this Agreement and the Loan
Commitment.
"Loan Amount" means $50,000,000.00 United States Dollars.
"Loan Commitment" means Lender's written commitment letter to
Borrower dated November 20, 1996, and accepted by Borrower December 6, 1996,
pursuant to which Lender has committed to make the Loan to Borrower.
"Loan Documents" means this Agreement, the Loan Commitment,
the Notes, the Security Deeds, the Lease Assignments, the Assignments of
Contracts, the Indemnification Agreements, and any other instruments,
documents, affidavits or certificates given by Borrower to Lender or any
trustee for the benefit of Lender in support of, or evidencing or securing, the
Loan.
"Loan Term" means the term of the Loan, which shall commence
on the Closing Date and shall expire on the Maturity Date.
"Maturity Date" means April 6 , 1999, or such later date as
may be established by an extension made pursuant to Section 2.3.
"MGT" means Xxxxxx Guaranty Trust Company of New York, a New
York banking corporation.
"Net Income" means, for any period, Borrower's net income
determined in accordance with GAAP, adjusted to omit the straight line
treatment of rent.
"Notice of Borrowing" means any written notice given by
Borrower to Lender from time to time requesting an Advance or continuing any
outstanding Advance for an additional Interest Period, if applicable,
specifying the requested Funding Date, the requested Interest Period, the
requested amount of such Advance, and the interest rate elected by Borrower for
such Advance.
"Note" means the Revolving Promissory Note dated the Closing
Date made by Borrower payable to the order of FUNB in the original principal
amount of $35,000,000, or the Revolving Promissory Note dated the Closing Date
made by Borrower payable to the order of MGT in the original principal amount
of $15,000,000, and any renewals, modifications or extensions thereof, and
"Notes" means both of the Notes together.
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"Obligations" means each and every payment and performance
covenant, condition or agreement of Borrower to or in favor of Lender or any
trustee for the benefit of Lender under the Loan Documents, including, without
limitation, Borrower's obligation to repay the Advances, together with interest
accrued thereon, in accordance with this Agreement and the other Loan
Documents.
"Plan" means any plan defined in Section 4021(a) of ERISA in
respect of which Borrower or any Subsidiary is an "employer" or a "substantial
employer" as said terms are defined in Section 3(5) and 40041(a)(2),
respectively, of ERISA.
"Prime Advance" means any Advance bearing interest at the
Prime Interest Rate pursuant to Article II.
"Prime Interest Rate" means an annual rate of interest
equivalent to the interest rate (but not necessarily the best or lowest rate
charged borrowing customers of FUNB) published or announced by FUNB from time
to time as its prime rate, calculated on the basis of a 365 (or 366, if
applicable) day year.
"REIT" means a Real Estate Investment Trust under Section
856-860 of the Code.
"Rents" means all rents, profits, issues, income and
royalties received from the Leases or otherwise in connection with the
Collateral.
"Rent Roll" means a document, certified by Borrower to be
complete and correct, identifying all leases on any property that is or will
become Collateral, the identity of the tenants thereunder, the location and
floor area (both Xxxxx Net Square Feet and actual floor area) of the leased
premises thereunder, and the rent for the leased premises thereunder, all other
information pertaining to such leases as Lender shall require.
"Reportable Event" means any of the events set forth in
Section 4043(b) of ERISA.
"Reserve Requirement" means the maximum percentage reserve
requirement, if any, applicable to FUNB (rounded to the next higher 1/100 of 1%
and expressed as a decimal) in effect for any day during the Interest Period
under the Federal Reserve Board's Regulation D for Eurocurrency Liabilities as
defined therein.
"SEC" means the federal Securities Exchange Commission.
"Security Agreement" means each Security Agreement, whether
incorporated into any Security Deed or set forth in a separate document, dated
the Closing Date or any Collateral Change Date given by Borrower to and in
favor of Lender, granting to Lender a first lien and security interest in that
portion of the
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Collateral located in each State that constitutes tangible and intangible
personal property.
"Security Deed" means each Deed to Secure Debt, Deed of Trust
or Mortgage dated the Closing Date or any Collateral Change Date given by
Borrower to and in favor of Lender or a trustee for the benefit of Lender,
granting to Lender or such trustee a first lien and security interest or
absolute title interest in that portion of the Collateral located in each State
that constitutes real property, easements and appurtenances thereto, and
improvements and fixtures, and sometimes incorporating a Security Agreement
and/or Lease Assignment.
"Shareholders' Equity" means at any date Borrower's
stockholders' equity (determined on a book basis), less its Intangible Assets,
as determined as of such date. For purposes of this definition, "Intangible
Assets" means with respect to any such intangible assets, (i) the amount (to
the extent reflected in determining such stockholders' equity) of all write-ups
(other than write-ups resulting from foreign currency translations and
write-ups of assets of a going concern business made within 12 months after the
acquisition of such business) subsequent to December 31, 1996, in the book
value of any asset (other than Real Property Assets) owned by Borrower, and
(ii) goodwill, patents, trademarks, service marks, trade names, anticipated
future benefit of tax loss carry forwards, copyrights, organization or
developmental expenses and other intangible assets.
"State" means each state in which the Collateral is located.
"Subsidiary" means the corporations described on attached
Exhibit G, which corporations are wholly-owned subsidiaries of Borrower,
together with any other direct or indirect subsidiary of Borrower which falls
within the meaning of "significant subsidiary" for federal securities law
purposes.
"Summary Requirements" means the Summary Requirements for
Additions to Collateral Pool Properties attached as Exhibit B.
"Title Commitment" has the meaning set forth in Section
4.3(b).
"Total Debt Service" means, for any period, an amount equal
to the sum of (i) interest (whether paid, accrued or capitalized) actually
payable by Borrower on its Debt, and (ii) scheduled payments of principal on
such Debt, whether or not paid by Borrower (excluding balloon payments).
"Title Insurer" means Lawyers Title Insurance Company, and
its authorized title agents in each State.
"Total Liabilities" means, at any date, total liabilities of
Borrower determined in accordance with GAAP, relating to all wholly-owned
properties of
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Borrower and Borrower's prorata share of liabilities from consolidated and
unconsolidated joint ventures, including Debt, and prorata share of any joint
venture obligations and contingent liabilities
"Unused Fee" means a non-refundable fee equivalent to 0.25%
per annum of the weighted average available but undisbursed proceeds under the
Loan during the immediately preceding calendar quarter, based on the difference
between (a) the Loan Amount (or weighted average thereof during such calendar
quarter if the Loan Amount changes during such calendar quarter), and (b) the
weighted average outstanding principal balance of the Loan during such calendar
quarter.
SECTION 1.2. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP, except
as otherwise stated herein.
ARTICLE II
AMOUNT AND TERMS OF ADVANCES
SECTION 2.1. Advances. Lender agrees, on the terms and
conditions set forth in this Agreement, to make Advances to Borrower from time
to time during the Loan Term in an aggregate amount not to exceed the Loan
Amount. Each Advance shall be in an amount not less than $1,000,000 (except
that an Advance may be in a lesser amount if such amount constitutes the entire
undisbursed principal of the Loan Amount). Subject to the terms and conditions
of this Agreement, Borrower may borrow under this Section 2.1, repay under
Section 2.5, and reborrow under this Section 2.1, the Loan Amount.
SECTION 2.2. Making Advances. (a) Each Advance shall be made
(or continued for an additional Interest Period, if applicable), following a
Notice of Borrowing received by FUNB not later than 2:00 P.M. (Eastern Standard
Time) on (i) in the case of a LIBOR Advance, the 4th Business Day prior to, or
(ii) in the case of a Prime Advance, the 2nd Business Day prior to, the
requested Funding Date (which requested Funding Date must be a Business Day);
provided, however, that:
(1) if Borrower fails to elect any particular interest
rate, or if the requested Funding Date is less than 4 Business Days
following such Notice of Borrowing, Borrower shall be deemed to have
elected the Prime Interest Rate; and
(2) Borrower shall have delivered to FUNB the statements
referred to in Section 3.1(c) and Section 3.1(d) prior to or
concurrently with the applicable Notice of Borrowing described above.
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(b) Each Notice of Borrowing shall be irrevocable and binding
on Borrower. Following any Notice of Borrowing, Borrower indemnifies and agrees
to hold harmless Lender from and against any loss, cost or expense incurred by
Lender as a result of any failure by Borrower to complete the borrowing
specified in such Notice of Borrowing (whether or not due to a failure to
fulfill on or before the date specified in such Notice of Borrowing the
applicable conditions set forth in Article III), such losses, costs and
expenses to include, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by Lender to fund the Advance,
when such Advance, as a result of such failure, is not made on the date
requested for such Advance.
(c) Subject to fulfillment of the applicable conditions set
forth in this Article II and Article III below, Lender will make the Advance
not later than 2:00 P.M. (Eastern Standard Time) in the amount and on the date
requested for such Advance in same-day funds at FUNB's office at 000 Xxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx, by wire transfer of such Advance on behalf of
Borrower to Borrower's account maintained at FUNB, or to such other account as
Borrower shall so direct by written notice to FUNB.
(d) LIBOR Advances shall be subject to the following
additional conditions:
(1) if, at any time, (A) Lender shall determine that, by
reasons of circumstances affecting foreign exchange and interbank
markets generally, LIBOR deposits in the applicable amounts are not
being offered to Lender, or (B) the introduction of or any change in
or in the interpretation (including reversals) of any law or
regulation makes it unlawful, or any central bank or governmental
authority asserts that it is unlawful, for Lender to obtain funds in
the London interbank market to fund or maintain a LIBOR Advance or
otherwise to perform its obligations hereunder with respect to any
such Advance, Lender's obligation to make or maintain any LIBOR
Advance, and the right of Borrower to select any LIBOR Interest Rate,
shall be suspended until the circumstances causing such suspension no
longer exist, and the applicable LIBOR Interest Rate for any
outstanding LIBOR Advance shall immediately be converted to the Prime
Interest Rate for such LIBOR Advance for the remainder of the Interest
Period;
(2) LIBOR Advances may be repaid or prepaid only on the
last Business Day of the Interest Period applicable to such Advance.
Borrower may elect to maintain any outstanding LIBOR Advance for an
additional Interest Period by delivering a Notice of Borrowing making
such election within the time period required for such notices as set
forth in Section 2.2 above. If any LIBOR Advance is not repaid or
prepaid on the last Business Day of the Interest Period, and Borrower
has not otherwise timely delivered a Notice of Borrowing electing to
continue such LIBOR Advance for an additional Interest Period elected
by Borrower in such Notice of Borrowing, Borrower will be deemed to
have elected
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to maintain such Advance outstanding as a Prime Advance. If, as a
result of a payment made by Borrower due to acceleration of the
maturity of the Notes pursuant to Section 8.2 or due to any other
reason, Lender receives payment of any principal amount of any LIBOR
Advance on a day other than the last day of the Interest Period for
such LIBOR Advance, or Borrower fails to make any payment of principal
outstanding under any LIBOR Advance when due under the Notes, Borrower
shall pay to Lender on demand that amount, if any, required to
compensate Lender for additional losses, costs or expenses which
Lender may incur as a result of such payment or nonpayment, including,
without limitation, any loss (including loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by Lender to fund or maintain such
LIBOR Advance.
SECTION 2.3. Loan Term Extension; Extension Fee. At the end
of the first year of the Loan Term, and at the end of each year of the Loan
Term thereafter, if applicable, the Loan shall be subject to review by Lender
for the purposes of determining the adequacy of the financial condition of
Borrower and the condition of the lending relationship between Borrower and
Lender. Based on such review and provided that no Event of Default exists,
Lender may, in its discretion, elect to extend the Maturity Date for additional
periods of 1 year each, provided, that upon Lender's approval, and Borrower's
acceptance, of each 1-year extension of the Maturity Date, Borrower shall pay
to FUNB as agent for Lender an Extension Fee as consideration for Lender's
extension of the Loan Term. If Lender declines to extend the Maturity Date, or
if Borrower declines to accept Lender's extension of the Maturity Date, then no
Extension Fee will be payable by Borrower.
SECTION 2.4. Unused Fee. After the Closing Date, in
consideration for Lender's reservation of funds for availability for borrowing
under the Loan, Borrower shall pay the Unused Fee to FUNB as agent for Lender
in arrears at the end of each calendar quarter.
SECTION 2.5. Repayment of Advances; Prepayments. (a) Interest
only, computed daily on the outstanding principal balance of the Loan, shall be
due monthly on the 10th day of each calendar month for the preceding calendar
month, and shall be paid to FUNB as agent for Lender. On the Maturity Date, the
entire outstanding principal balance of the Loan, together with accrued and
unpaid interest thereon, and late fees and other charges, if any, payable by
Borrower under the Loan Documents, shall be due and payable in full, and shall
be paid to FUNB as agent for Lender. Any payment of interest which is not made
within 10 days following its due date or such longer period as may be required
under applicable laws of any State if the laws of such State are determined to
govern this Agreement, shall be subject to a Late Charge, which shall be due
and payable contemporaneously with such payment of interest.
(b) During the Loan Term, the Loan Amount may be borrowed,
repaid and reborrowed on a revolving basis, provided, that prior to the
Maturity Date, the
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outstanding principal balance of the Loan shall never be less than $1,000.00
nor greater than the maximum principal amount permitted to be borrowed under
the Loan pursuant to the Financial Covenants. Repayments of the outstanding
principal amount of any Advance may be made on any Business Day, provided, that
repayments received after 2:00 P.M. (Eastern Standard Time) shall not be
credited to Borrower's account until the next Business Day, and further
provided, unless Borrower prior to or contemporaneously with such repayment
designates in writing to FUNB the Advance that should be credited with such
repayment, such repayment shall be applied to repayment of Advances on a
"first-borrowed first-repaid" basis. Repayment of any LIBOR Advance on any day
other than the maturity of the Interest Period applicable to such LIBOR Advance
may be subject to a charge pursuant to Section 2.2(d), payable by Borrower to
FUNB as agent for Lender at the time of such repayment. Repayment of any Prime
Advance may be repaid without penalty or premium.
SECTION 2.6. Interest Rate; Default Rate. (a) The amount of
each Advance shall accrue interest, at Borrower's election, at a LIBOR Interest
Rate or the Prime Interest Rate. Borrower shall be entitled to elect any of the
LIBOR Interest Rates (based on Interest Period selection) or the Prime Interest
Rate for any Advance under and subject to the conditions set forth in Section
2.2, provided that not more than 3 separate LIBOR Interest Rates (based on
Interest Period selection) and the Prime Interest Rate shall be applicable to
Advances at any one time that such Advances are outstanding.
(b) Following an Event of Default, the amount of each Advance
shall, at Lender's option, accrue interest from the date of Default at the
Default Rate.
SECTION 2.7. Payments and Computations. Borrower shall make
each payment under any Loan Document not later than 11:00 A.M. (Eastern
Standard Time) on the day when due in lawful money of the United States of
America to FUNB, as agent for Lender, at 000 Xxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxx 00000 in immediately available funds. All computations of interest
under the Notes and hereunder, other than the computation of interest at the
Prime Interest Rate, shall be made by Lender on the basis of a year of 360
days, and all computations of interest at the Prime Interest Rate shall be made
by Lender on the basis of a year of 365 or 366 days, as the case may be, for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest is payable. Whenever any
payment to be made hereunder or under the Notes shall be stated to be due on a
day other than a Business Day, such payment may be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest.
SECTION 2.8. Evidence of Indebtedness. The indebtedness of
Borrower resulting from all Advances made from time to time shall be evidenced
by the Notes.
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ARTICLE III
CONDITIONS OF LENDING
SECTION 3.1. Conditions Precedent to Advances. The obligation
of Lender to make each Advance shall be subject to the conditions precedent
that on the date of any Notice of Borrowing requesting an Advance and on the
Funding Date:
(a) Borrower shall be in compliance with the following
financial covenants (the "Financial Covenants"):
(i) Total Liabilities (including all Debt) of Borrower
shall not exceed Shareholders' Equity.
(ii) As of the end of each fiscal quarter, distributions
or dividends to shareholders shall not exceed Net Income plus
Depreciation and Amortization and other non-cash items, less
non-expensed capital expenditures (excluding new building, major
renovation or rehabilitation and building acquisitions, if funded from
non-operational sources) and debt amortization, as determined in
accordance with GAAP, for the preceding four fiscal quarters;
provided, however, that Borrower may pay distributions or dividends to
shareholders in excess of such level solely in the event that
Borrower's failure to pay such distributions or dividends would
directly cause Borrower to fail to qualify as a REIT. Borrower
promptly shall notify FUNB in writing of any such permitted payment of
distributions or dividends in excess of such level, setting forth with
specificity the reason for such payment.
(iii) As of the end of each fiscal quarter, Borrower's
EBITDA, less the greater of Borrower's actual capital expenditures
(excluding new building, major renovation or rehabilitation and
building acquisitions, if funded from non-operational sources) or
$l.50 per Xxxxx Net Square Foot owned by Borrower, for the preceding
four fiscal quarters shall be at least 1.40 times Total Debt Service.
(iv) Borrower's status as a REIT shall be continuing, and
Borrower shall continue to be listed as a publicly traded company on a
nationally recognized stock exchange.
(v) The outstanding principal balance of the Loan shall
not exceed 60.00% of the aggregate value of the Collateral as
initially determined by appraisals reviewed and approved by Lender.
Thereafter, the value of the Collateral, and the related limitation on
the outstanding principal balance of the Loan, shall be recalculated
by Borrower not less frequently than quarterly (calculated on a
historical rolling 4-quarter basis) using the actual Net Operating
Income generated from the Collateral and the capitalization rates
reasonably acceptable to Lender to determine borrowing availability of
the Loan Amount
16
using the format attached as Exhibit C. All changes to capitalization
rates shall be subject to Lender's approval. Borrower may cause any
portion of the Collateral to be reappraised at any time at Borrower's
sole cost and expense using an appraiser reasonably acceptable to
Lender. Lender agrees to refer to such new appraisals in its
determination whether to approve or disapprove any change in
capitalization rates for purposes of determining borrowing
availability of the Loan Amount.
(vi) As of the end of each fiscal quarter, Net Operating
Income for such quarter derived from the Collateral (after deducting
therefrom appropriate management costs relating to the Collateral),
less the greater of Borrower's actual capital expenditures (excluding
new building, major renovation or rehabilitation and building
acquisitions, if funded from non-operational sources) for such quarter
relating to the Collateral or $0.375 per Xxxxx Net Square Foot
constituting the Collateral, shall be at least 1.50 times Borrower's
interest expense for such quarter attributable to the Loan (including
capitalized interest), as determined in accordance with GAAP.
(b) As of the requested Funding Date, Borrower shall have
satisfied, and shall be in continuing compliance with, all of the terms,
covenants and conditions required to be satisfied as a condition precedent to
any Advance, and shall be in continuing compliance with all of the terms,
covenants and conditions of the Loan Documents, and no Default or Event of
Default shall then exist or be continuing.
(c) the following statements shall be true and FUNB shall
have received a certificate, substantially in the form attached as Exhibit J,
signed by a duly authorized officer of Borrower, dated the Funding Date,
stating that:
(i) The representations and warranties contained in
Section 6.1 are correct on and as of the Funding Date, before and
after giving effect to such Advance and to the application of proceeds
therefrom, as though made on and as of such date, and
(ii) No event or condition has occurred or is continuing,
or would result from such Advance or from the application of proceeds
therefrom, which constitutes a Default or Event of Default.
(d) Concurrently with delivery of the Notice of Borrowing for
such Advance, FUNB shall have received a certificate of the chief financial
officer or chief accounting officer of Borrower, substantially in the form
attached as Exhibit J, stating that Borrower is in compliance with the
Financial Covenants before and after giving effect to such Advance and to the
application of proceeds therefrom.
SECTION 3.2. Conditions Precedent to Certain Advances. The
obligation of Lender to make any Advance that, but for the addition of
Collateral pursuant to
17
Section 4.3, would cause the principal balance of the Loan to exceed the
maximum borrowing limits determined in accordance with the Financial Covenants,
shall be subject to the further conditions precedent that on the date of the
Notice of Borrowing requesting such Advance and on the Funding Date, Borrower
shall have executed and delivered the Loan Documents, or modifications thereof,
relating to the addition of such Collateral, as Lender reasonably may request
to carry out the provisions and intent of the Loan Commitment and this
Agreement, all in form and content acceptable to Lender in its sole discretion,
and shall have satisfied the conditions and requirements set forth in Article
IV.
ARTICLE IV
ADDITION, SUBSTITUTION AND RELEASE OF COLLATERAL
SECTION 4.1. General Right to Add, Substitute or Release
Collateral. Borrower may elect, at any time during the Loan Term, to cause the
addition, substitution or release of Collateral, subject, however, to
Borrower's continuing compliance with the Financial Covenants and with the
requirements of this Article IV; provided, that Lender reserves the right to
exclude from the Collateral any particular office building or property that
Borrower requests for addition to Collateral based on sub-standard occupancy,
location, operating history, age, condition, or environmental concerns, in
Lender's sole discretion, and further provided, that Borrower shall not have
the right to cause the addition, substitution or release of Collateral if a
Default or Event of Default exists and is continuing. In support of any request
for release, substitution or addition of Collateral, Borrower shall submit to
Lender:
(i) a certification, in form and content acceptable to Lender in its
sole discretion, prepared by management and certified by the chief
financial officer or chief accounting officer of Borrower, certifying
to Lender that, after such proposed release, substitution or addition
of office buildings, Borrower will be in compliance with the Financial
Covenants;
(ii) the information or documentation required to be executed and/or
delivered to Lender as set forth in this Agreement, including, without
limitation, modifications or partial releases of the Loan Documents
(or delivery of additional Loan Documents consistent with the
requirements of the Loan Commitment and this Agreement to the extent
that any property to be added to the Collateral is located in a
jurisdiction different from the jurisdictions in which the existing
Collateral is located) as necessary or appropriate to properly reflect
the release, substitution or addition of Collateral in the discretion
of Lender and Lender's Counsel, and the documentation as set forth in
the Summary Requirements as to the office buildings proposed to be
substituted for or added to the Collateral, as applicable; and
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(iii) evidence satisfactory to Lender that such additional
Collateral, or the remaining Collateral after substitution or
release of other Collateral, has adequate and legal rights of
ingress and egress, drainage and utilities, and, if necessary
or appropriate, Borrower shall deliver to and in favor of
Lender, its successors and assigns, such perpetual
non-exclusive easements as Lender may reasonably request to
create such adequate and legal rights of ingress and egress,
drainage or utilities. With respect to easements for ingress
and egress, drainage or utilities that reasonably may be
required over, under or across the released Collateral as a
result of the release of such Collateral, Lender may
establish such easement or easements at the time of such
release pursuant to a Quit Claim Deed with Reservations and
Grants of Easements in substantially the form attached as
Exhibit I (the "Release Deed"), with modifications as
appropriate for the particular circumstances of such release
and the nature of the easement or easements required.
Similarly, if as a result of any such release, the released
Collateral reasonably may require easements for ingress and
egress, drainage or utilities over, under or across any
portion of the remaining Collateral, then at Borrower's
request, Lender shall, subject to the remaining provisions of
this Article IV below, cause such release to be made using
the form of Release Deed, with modifications as appropriate
for the particular circumstances of such release and the
nature of the easement or easements required.
Lender's decision whether to accept Borrower's request for
substitution, addition or release of Collateral shall be based on Borrower's
satisfaction of the foregoing requirements, on the documentation and
information delivered to Lender in compliance with this Agreement and the
Summary Requirements, and on a determination by Lender, in its sole and
absolute discretion, that there has been no material adverse change in the
financial condition of Borrower, and that all other aspects of the property to
be added or substituted, as applicable, including without limitation, the
general condition of such property and vacancy rates of the local commercial
leasing market, are substantially similar to the existing Collateral, or, if
applicable, to the Collateral to be released for substitution by new property,
subject to Lender's discretion.
SECTION 4.2. Requirements for Release of Collateral. In
addition to the general conditions and requirements for release of Collateral
as set forth in Section 4.1, the following conditions and requirements shall be
satisfied prior to the release of any Collateral:
(a) If the property proposed for release from the Collateral
is not the exclusive subject matter of a boundary survey on file with Lender
showing the Collateral, then, not later than 15 days prior to the Collateral
Change Date for such release, Borrower shall deliver to Lender a current
boundary survey of the property proposed for release from the Collateral, and a
current boundary survey of the remaining Collateral if the existing boundary
survey of the Collateral is affected by the
19
release of such property from the Collateral. Each such survey shall meet or
exceed the Minimum Standards and Supplementary Requirements set forth on
attached Exhibit D. Each survey shall be subject to review and approval by
Lender, Lender's Counsel, and Title Insurer.
SECTION 4.3. Requirements for Addition or Substitution of
Collateral. In addition to the general conditions and requirements for addition
or substitution of Collateral as set forth in Section 4.1, the following
conditions and requirements shall be satisfied prior to the addition or
substitution of any Collateral:
(a) Prior to any Collateral Change Date, Lender shall have
ordered and received a current appraisal of the property to be added to the
Collateral as additional Collateral or in substitution of existing Collateral.
Following Lender's receipt of such appraisal satisfactory to Lender, Lender
will provide a copy of such appraisal to Borrower. Such appraisals shall be
utilized by Lender for informational purposes, and shall be subject to review
and approval by Lender.
(b) Not later than 30 days prior to any Collateral Change
Date, Borrower shall deliver to Lender and Lender's Counsel a commitment or
binder for an endorsement to the existing title insurance policy (if the
property to be added to the Collateral is located in the same State as the
existing Collateral) or for a new title insurance policy (if the property to be
added to the Collateral is not located in the same State as the existing
Collateral) issued by Title Insurer, committing to insure Lender's first
security or title interest in the property to be added to the Collateral as
additional Collateral or in substitution of existing Collateral (as legally
described to include any easements benefitting such real property), meeting or
exceeding the Minimum Title Standards set forth on attached Exhibit E (the
"Title Commitment"). The Title Commitment shall contain only those matters
expressly approved by Lender, and shall include complete copies of all listed
title exceptions. All title exceptions are subject to Lender's review and
approval, and any liens of prior mortgagees or creditors shall be satisfied or
released on or before the Collateral Change Date. On the Collateral Change
Date, Borrower shall cause Title Insurer to deliver its marked original Title
Commitment indicating the proper satisfaction of all conditions to issuance of
a title insurance policy or endorsement thereof, as the case may be, insuring
Lender, its successors and assigns as their interests may appear, based on such
Title Commitment subject only to those matters and exceptions to coverage as
set forth in the Title Commitment as previously may have been approved by
Lender.
(c) Not later than 30 days prior to any Collateral Change
Date, Borrower shall deliver to Lender and Lender's Counsel a current boundary
survey (or recertified boundary survey, provided that the same is, in the
discretion of Title Insurer, sufficient to permit Title Insurer to remove the
standard survey exceptions) for the property to be added to the Collateral,
meeting or exceeding the Minimum Standards and Supplementary Requirements set
forth on attached Exhibit D. Each survey shall be subject to review and
approval by Lender, Lender's Counsel, and Title Insurer. Surveys
20
for buildings within a single office parks shall be accompanied by a site map
showing the relative location of each building within such office park.
(d) Not later than 30 days prior to any Collateral Change
Date, Borrower shall deliver to Lender a current UCC-11 search for Florida and
each State or local jurisdiction (if applicable) in which the property to be
added to the Collateral is located, evidencing to Lender's satisfaction that
such additional property is free and clear of any liens or perfected security
interests prior to Lender's security interest therein. On or before the
Collateral Change Date, Borrower shall deliver to Lender UCC-1 Financing
Statements for filing in Florida and each State or local jurisdiction (if
applicable) in which the property to be added to the Collateral is located,
perfecting Lender's first lien and security interest in the additional property
as Collateral.
(e) Not later than 30 days prior to any Collateral Change
Date, Borrower shall deliver to Lender a current environmental assessment of
each property to be added to the Collateral, meeting ASTM standards for "Phase
I" assessments, and including an asbestos evaluation for all buildings
constructed prior to 1980, prepared by Law Engineering or other environmental
engineer acceptable to Lender. Such assessments shall be utilized by Lender for
informational purposes, and shall be subject to review and approval by Lender.
Additionally, not later than 30 days prior to any Collateral Change Date,
Borrower shall deliver to Lender a certification in compliance with applicable
federal law relating to asbestos records and asbestos materials affecting any
buildings constructed before 1980 that are to be added to the Collateral.
(f) Not later than 30 days prior to any Collateral Change
Date, and on the Collateral Change Date, Borrower shall deliver to Lender a
current Rent Roll for the property to be added to the Collateral.
(g) On or before any Collateral Change Date, Borrower shall
deliver the following materials to Lender and Lender's Counsel, in form and
content acceptable to Lender and Lender's Counsel:
(i) Evidence of the current corporate status of Borrower
in Florida, and the current authority of Borrower to transact business
in each other State in which the property to be added as Collateral is
located.
(ii) A certificate of the Secretary of Borrower
certifying to Lender: (i) the completeness, accuracy and continuing
effectiveness of Articles of Incorporation and Bylaws of Borrower as
attached to such certificate, (ii) the names and signatures of all
executive officers of Borrower, and (iii) the completeness, accuracy
and continuing effectiveness of an executed resolution of the Board of
Directors of Borrower, as attached to such certificate, authorizing
Borrower's execution and delivery of the Loan Documents.
21
(h) On or before any Collateral Change Date, Borrower shall
deliver to Lender evidence satisfactory to Lender and Lender's Counsel that the
property to be added to the Collateral is in compliance with the insurance
requirements set forth in Section 5.3, and in compliance with the tax
requirements set forth in Section 5.4.
(i) On or before any Collateral Change Date, Borrower shall
deliver to Lender a certification substantially in the form attached as Exhibit
F, executed and dated as of a date not more than 30 days prior to such
Collateral Change Date, relating to the level of compliance of the property to
be added to the Collateral with Governmental Requirements.
(j) On a Collateral Change Date, Borrower shall furnish
Lender with an opinion addressed to Lender provided by an attorney licensed in
each State in which the property to be added to the Collateral is located,
retained by Borrower and acceptable to Lender. Said opinions shall be subject
to approval by Lender and shall address such matters as Lender reasonably may
require, including, without limitation, the following:
(A) the due organization and valid legal existence of
Borrower as a Florida corporation, and the current
authority of Borrower to transact business in the
State.
(B) the due authorization, execution, validity, binding
effect and enforceability of the Loan Documents in
accordance with their terms.
(C) the Collateral and its use by Borrower comply with
applicable zoning, building, land use and
environmental requirements of all governmental
authorities having jurisdiction over the Collateral
(the foregoing opinion may be given to the actual
knowledge of opining counsel and based on a
certification of such matters given by Borrower to
opining counsel) .
(D) all amounts paid and to be paid by Borrower as
interest under the Loan Documents constitute lawful
interest under the laws of the State.
(E) the existence of, or the non-existence of, any
requirement for any consent of any governmental
authority in connection with the execution, delivery
or performance of the Loan Documents by Borrower.
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ARTICLE V
CERTAIN MATTERS CONCERNING THE COLLATERAL
SECTION 5.1. Inspections. Lender reserves the right to
require an engineering/structural inspection of any property constituting the
Collateral or property to be added to the Collateral if Lender has reasonable
cause to believe that the physical condition, safety features, or disabled
persons access features of such building are not maintained to standards
consistent with good management practices or in compliance with Governmental
Requirements. Any such inspection shall be conducted at the expense of
Borrower. Unless such inspection is made pursuant to the foregoing, Lender
otherwise shall have the right to inspect the Collateral at any reasonable time
throughout the Loan Term, at the expense of Lender.
SECTION 5.2. Appraisals. During the Loan Term, Lender may
obtain an appraisal of the Collateral when required by the regulations of the
Federal Reserve Board or at such other times as Lender reasonably may require.
All appraisals required under this Section 5.2, or required under any other
provision of this Agreement, shall be performed by an independent third party
appraiser selected by Lender, and shall be addressed to Lender with a copy
certified to Borrower. Following Lender's receipt of such appraisals
satisfactory to Lender, Lender shall provide a copy of such appraisals to
Borrower. The cost of such appraisals shall be borne by Borrower. The terms of
engagement of any appraiser shall include a clause obligating the appraiser to
maintain confidentiality of such appraisal and information obtained in
connection therewith. Borrower's failure or refusal to sign such an engagement
letter, however, shall not impair Lender's right to obtain such appraisals.
Borrower agrees to pay the cost of such appraisal within 10 days after
receiving an invoice for such appraisal.
SECTION 5.3. Insurance. Borrower shall procure and maintain
during the Loan Term an insurance policy issued by Insurer or other insurer
acceptable to Lender in its discretion, covering the improved real property and
personal property comprising the Collateral, with standards, terms and
coverages meeting or exceeding those of Borrower's existing Policy No. A
TL-441545 0000, issued by the Insurer, as in effect as of August 1, 1996. Such
policy shall recite Lender's interest as mortgagee in standard non-contributory
mortgagee clauses effective as of the Closing Date, or any Funding Date as to
any property added to the Collateral as of such Funding Date, and shall contain
a provision for 30 days prior written notice to Lender of cancellation of or
any change in the risk or coverages insured. Borrower shall promptly pay all
premiums for such policy as the same become due, and shall maintain such policy
throughout the Loan Term without cost to Lender.
If any such policy or part thereof shall expire or be
withdrawn, or become void or subject to cancellation by reason of the breach of
any condition thereof, or become void by reason of the failure or impairment of
the capital of any company in which the insurance shall be carried, or if for
any reason whatsoever the insurance shall be unsatisfactory to Lender, Lender
may procure such insurance as it deems
23
necessary to protect its sole interest. Borrower shall promptly upon demand pay
direct or reimburse Lender for all premiums and other costs incurred in
procuring such insurance.
SECTION 5.4. Taxes and Assessments. Borrower shall pay all
taxes and assessments relating to the Collateral prior to delinquency thereof,
and shall deliver to Lender receipted bills for taxes and assessments promptly
upon Borrower's receipt thereof.
Notwithstanding the foregoing, Borrower shall not be required
to pay any taxes or assessments as long as Borrower shall contest, in good
faith and at its expense, the existence, the amount or the validity thereof by
appropriate proceedings; provided that such proceedings shall operate during
the pendency thereof to prevent (A) the collection of, or other realization
upon, such taxes or assessments so contested, (B) the sale, forfeiture or loss
of the Collateral to satisfy the same, (C) any interference with the use or
occupancy of the Collateral, and (D) any interference with the payment of
Borrower's obligations under the Loan. Borrower agrees that each such contest
shall be promptly and diligently prosecuted to a final conclusion, except that
Borrower shall, as long as the conditions of the first sentence of this
paragraph are at all times complied with, have the right to attempt to settle
or compromise such contest through negotiations. Borrower shall pay and save
Lender harmless against any and all losses, judgments, decrees and costs
(including all reasonable attorneys' fees and expenses) in connection with any
such contest and shall, promptly after the final determination of such contest,
fully pay and discharge the amounts which shall be levied, assessed, charged or
imposed or be determined to be payable therein or in connection therewith,
together with all penalties, fines, interest, costs and expenses thereof or in
connection therewith, and perform all acts the performance of which shall be
ordered or decreed as a result thereof. No such contest shall subject Lender to
the risk of any material civil liability or any criminal liability. If Lender
reasonably believes that such contest is not in compliance with the
requirements of this paragraph, then, upon written demand by Lender, Borrower
promptly shall pay the amount of such taxes or assessments so contested, which
payment may be made under protest.
SECTION 5.5. Tax and Insurance Deposits. Upon Lender's
request, or if an Event of Default has occurred, Borrower shall deposit with
Lender a sum equivalent to 1 year's insurance premium on the casualty insurance
policy insuring the Collateral, and shall pay to Lender on a monthly basis an
amount equivalent to 1/12 of all annual ad valorem real and personal property
taxes and assessments levied against the Collateral as estimated by Lender, in
order to accumulate with Lender sufficient funds to pay such taxes and
assessments and a full year's insurance premiums 30 days prior to their due
date. Lender shall maintain any funds so deposited in an interest bearing
account (money market rates), and interest accrued on such account will be
reinvested in such account but shall be considered income to Borrower for state
and federal income tax and capital gains tax purposes. To the extent that funds
are available for disbursement out of such account, Lender shall pay
24
annual ad valorem real and personal property taxes and assessments levied
against the Collateral at such time as will result in the greatest discount, if
any, for early payment.
SECTION 5.6. Tax Service Contract; Annual Tax Searches.
Lender shall have the right to engage Transamerica Real Estate Tax Service
(TRETS) for the Loan Term, for the purpose of providing Lender annual tax
information concerning the Collateral; provided, however, that Lender will
notify Borrower in writing before Lender engages TRETS. The cost of the TRETS
service, if applicable, shall be paid by Borrower. Borrower shall engage or
employ the services of a tax specialist (who may be an employee of Borrower)
for the purpose of monitoring and complying with all impositions of ad valorem
real and personal property taxes and assessments against the Collateral. If
Lender requires Borrower to make tax deposits pursuant to Section 5.5 above,
then Lender will not engage TRETS. Borrower agrees to permit Lender to consult
with Borrower's tax specialist from time to time for the purpose of determining
the status of Borrower's tax compliance.
SECTION 5.7. Due on Sale. The entire balance of the Loan and
all other sums owing to Lender under the Loan Documents shall be and become
immediately due and payable, at the option of Lender, if there shall occur
without Lender's prior written consent any sale, conveyance, further
encumbrance, or other transfer of title to the Collateral, or any interest
therein (whether voluntarily or by operation of law). Any consent by Lender
permitting a transaction otherwise prohibited under this paragraph shall not
constitute a consent to or waiver of any right, remedy or power of Lender to
withhold its consent on a subsequent occasion to a transaction not otherwise
permitted by the provisions of this paragraph. No such consent shall be
considered by Lender unless the appropriate service fees and legal fees are
paid in advance and no such consent shall be given unless Borrower agrees,
inter alia, that immediately upon closing of the subject sale or transfer,
Borrower shall provide Lender with a copy of the deed or other instrument
conveying title to the Collateral to transferee.
SECTION 5.8. Loss and Restoration following Casualty or
Condemnation. (a) In the event of any casualty or condemnation affecting all or
any portion of the Collateral, Borrower shall give immediate written and oral
notice thereof to Lender. All loss proceeds of any insurance policies following
any casualty, and all awards derived from any condemnation, shall be applied
(i) to restoration of the Collateral suffering such loss if such loss is less
than 50% of the full replacement cost of such Collateral, or (ii) at Lender's
option, to restoration of the Collateral suffering such loss or to the payment
of principal (whether or not then due and payable), interest and other sums
secured by the Loan Documents (in the order and in the amounts that Lender in
its sole discretion elects), on such terms as Lender may specify, if such loss
is 50% or more of the full replacement cost of such Collateral. If Lender
elects, pursuant to clause (ii) above, to apply the proceeds of casualty or
awards of condemnation, to payment of principal, then Lender will exercise a
good faith effort to apply such proceeds or
25
awards in a manner that will seek to minimize the application of charges or
penalties for prepayment or repayment of LIBOR Advances.
(b) Promptly following any loss resulting from a casualty or
condemnation, Borrower shall commence and diligently continue to restore the
Collateral affected thereby as nearly as possible to its value, condition and
character immediately prior to such loss, whether or not any insurance proceeds
or award derived from condemnation, as applicable, is sufficient to cover the
cost of restoration. Provided that no Event of Default exists, Lender shall
make available to Borrower any proceeds of such loss received by Lender,
subject to the terms and conditions set forth in this Section 5.8. Borrower
shall be entitled to receive from Lender periodic disbursements of the proceeds
payable in connection with such loss, but only on the basis of certificates of
Borrower delivered to Lender from time to time as such rebuilding, restoration
and repair progresses or is completed. Each such certificate shall describe the
work for which Borrower is requesting payment, the cost incurred by Borrower in
connection therewith, and shall state that such work has been performed in
conformity with all Governmental Requirements and in compliance with plans and
specifications therefor, the estimated cost of completing such work, and that
Borrower has not theretofore received payment for such work. Upon completion of
such work, if any proceeds of such loss remain after the final payment has been
made for such work, such remaining proceeds shall be paid to Borrower. If the
cost of any such work shall exceed the amount of such proceeds, the deficiency
shall be paid by Borrower. In no event shall Lender have any obligation to turn
over proceeds to Borrower if any Default or Event of Default exists and is
continuing, unless and until such Default or Event of Default shall have been
cured or removed.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.1. Representations and Warranties of Borrower.
Borrower represents and warrants to Lender as follows:
(a) Borrower is a corporation organized under the Florida
Business Corporation Act, and its status is active. Borrower is authorized to
transact business in each State.
(b) Borrower has the corporate power to conduct its business
and to execute and deliver this Agreement and the other Loan Documents and to
perform the Obligations.
(c) Borrower has authorized the execution and delivery of the
Loan Documents and the performance of the Obligations by all necessary
corporate action.
26
(d) The execution and delivery of the Loan Documents and the
performance of the Obligations by Borrower do not (i) violate Borrower's
articles of incorporation or bylaws; (ii) constitute a breach of or a default
under any agreement or instrument to which Borrower or any Subsidiary is a
party or by which Borrower, its Subsidiaries or their respective assets are
bound; (iii) violate a judgment, decree or order of any court or administrative
tribunal, which judgment, decree or order is binding on Borrower or any
Subsidiary or the Collateral; or (iv) violate any federal, Florida or State
law, rule or regulation.
(e) No consents, authorizations or approvals or other action
by, and no notice to or filing with, any governmental authority, regulatory
body or any creditor is required for the execution and delivery of the Loan
Documents or the performance of the Obligations by Borrower.
(f) The Loan Documents are the legal, valid and binding
obligations of Borrower enforceable against Borrower in accordance with their
respective terms.
(g) Borrower is a REIT, and is listed as a publicly traded
company on a nationally recognized stock exchange; and Borrower has no
Subsidiaries other than the Subsidiaries described on attached Exhibit G, and
such other Subsidiaries as may be formed subsequent to the date hereof and
disclosed to Lender in writing.
(h) No Subsidiary is the holder or obligee of any Debt.
(i) No judicial or administrative proceedings are pending or
threatened, including any bankruptcy proceeding, against Borrower or any
Subsidiary which might adversely affect Borrower's ability to pay or perform
the Obligations, Borrower's obligations under any Leases, or Borrower's
contracts and agreements entered or to be entered for the performance of the
Obligations, or which might adversely affect Borrower's ownership, management,
leasing and operation of the Collateral.
(j) All financial information supplied by Borrower to Lender
in support of Borrower's application for the Loan fairly presents the financial
condition of Borrower as at the effective dates thereof and the results of the
operations of Borrower for the period ended on such dates, all in accordance
with GAAP; and since December 31, 1996, there has been no material adverse
change in such condition, operations or properties.
(k) Neither Borrower nor any Subsidiary is engaged in the
business of extending credit for the purpose of purchasing or carrying "margin
stock" (within the meaning of Regulation U issued by the Board of Governors of
the Federal Reserve System), and no proceeds of the Loan will be used, directly
or indirectly, by Borrower or any Subsidiary to purchase or carry any margin
stock or to extend credit to others for the purpose of purchasing or carrying
any margin stock.
27
(l) Borrower is in compliance in all material respects with
all applicable provisions of ERISA, no Reportable Event has occurred and is
continuing with respect to any Plan, and Borrower has not incurred any
liability to the Pension Benefit Guaranty Corporation under Section 4062 of
ERISA.
(m) Borrower is not in default under any material agreement,
lease, contract or other instrument relating to the ownership, management,
leasing and operation of the Collateral, and no event of default by Borrower,
or event which with the giving of notice or the passage of time would become an
event of default by Borrower, has occurred or is continuing with respect to any
such agreement, contract or other instrument.
(n) Borrower has good and marketable title to the Collateral,
free and clear of any liens, encumbrances or mortgages other than those created
or imposed by the Loan Documents, Borrower is in exclusive possession of the
Collateral subject only to rights of parties in possession as tenants under
recorded or unrecorded Leases, as tenants only, Borrower is the landlord under
the Leases, and no Subsidiary has any interest in the Collateral, including the
Leases, except as described on attached Exhibit H.
(o) There are no pending or, to the best of Borrower's
knowledge, threatened actions or proceedings for condemnation or eminent domain
affecting the Collateral, except as disclosed to Lender in the title commitment
delivered to Lender at Closing and except such actions or proceedings as may be
threatened or become pending subsequent to the date hereof and disclosed to
Lender in writing.
The foregoing representations and warranties shall survive
the execution and delivery of this Agreement.
ARTICLE VII
COVENANTS OF BORROWER
SECTION 7.1. Affirmative Covenants. So long as the Note shall
remain unpaid or Lender shall have any obligation to make any Advance
hereunder, and in addition to all other covenants and agreements of Borrower
set forth in this Agreement, Borrower shall comply with the affirmative
covenants set forth in this Section 7.1, unless Lender shall otherwise consent
in writing.
(a) Costs and Expenses. Borrower shall pay all reasonable
costs, fees, commissions, charges, taxes and other expenses incident to the
evaluation, preparation and closing of the Loan, any subsequent modification or
partial release affecting the Loan Documents, subsequent funding of Advances,
or otherwise incurred in protecting and preserving the lien of the Loan
Documents or in enforcing Lender's rights under the Loan Documents, or in
enforcing, sustaining, protecting, or defending
28
the lien or priority of the Loan Documents against any and all persons,
including, but not limited to, lien claimants or the exercise of the power of
eminent domain or other governmental power of any kind, including, without
limitation, reasonable fees and expenses of Lender's Counsel, examination of
title to the Collateral and loan title insurance thereon, boundary surveys,
appraisals, environmental assessments, asbestos evaluations,
engineering/structural inspections, note and mortgage taxes, transfer taxes,
tax search service fees, and all recording fees and charges. Additionally, to
the extent that applicable state law requires that any note or mortgage tax is
payable in connection with any Advance, Borrower shall be obligated to pay the
same to Lender upon demand therefor. Every such payment made by or on behalf of
Lender will be immediately due and payable by Borrower to Lender and will bear
interest from the date of disbursement thereof by Lender at the then applicable
Prime Interest Rate until reimbursed to Lender by Borrower (provided, however,
that if Borrower fails to reimburse Lender for such payments within 5 days
following Lender's written notice and demand therefor, such payments made by
Lender will bear interest from the date of disbursement at the Default Rate),
and the same, together with such interest, will be secured by the lien of the
Loan Documents. Nothing contained in this paragraph will be construed as
requiring Lender to advance or spend money for any of the purposes mentioned in
this paragraph.
(b) Rent Roll. Borrower shall deliver to Lender on a
quarterly basis an updated Rent Roll reflecting information concerning the
Leases as of the end of the preceding quarter, and upon Lender's request,
deliver to Lender a certified report of prepaid rentals and security deposits
relating to such Leases.
(c) Compliance with Governmental Requirements. Borrower shall
comply with all Governmental Requirements, including, without limitation,
ERISA, regulations relating to protection of the environment, building and
construction, highway access, disability access, asbestos, lead-based paint,
zoning, land use and concurrency, and other regulations relating to the
ownership, leasing, development, use or operation of the Collateral.
(d) Preservation of Corporate Existence. Borrower shall
preserve and maintain its corporate existence and status as a REIT, and its
rights (charter and statutory), and remain qualified to transact business in
each State.
(e) Preservation and Maintenance of Collateral. Borrower
shall maintain the Collateral in a condition consistent with good management
practices, and in good repair (which shall include structural or non-structural
and foreseen or unforeseen repairs), without structural alteration in any
material respect (except interior tenant improvements), without Lender's prior
written approval, which will not be unreasonably withheld or delayed.
(f) Reporting Requirements.
29
(i) Not later than 45 days after the end of the first
three calendar quarters of each fiscal year of Borrower, Borrower
shall submit to Lender a certification, in form and content acceptable
to Lender in its sole discretion, prepared by management and certified
as true and correct by the chief financial officer or chief
accounting officer of Borrower, confirming Borrower's compliance with
the Financial Covenants and setting forth in summary form the
financial information and numerical calculations supporting such
conclusions.
(ii) Not later than 45 days after the end of the first
three calendar quarters of each fiscal year of Borrower, Borrower
shall submit to Lender a copy of Borrower's Form 10Q as filed with the
SEC, and not later than 90 days after the end of Borrower's fiscal
year, Borrower shall submit to Lender a copy of Borrower's Form 10K as
filed with the SEC.
(iii) Borrower shall submit to Lender copies of all
special filings made by Borrower to the SEC within 15 days following
the date of such filing, including, without limitation, any filings
seeking approval of transactions with any Subsidiaries.
(iv) Borrower shall keep books and records reflecting its
financial condition in accordance with GAAP. Lender shall have the
right, from time to time, at all times during normal business hours,
to examine such books, records and accounts at the corporate offices
of Borrower at 0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx,
Xxxxxxx, and to make such copies or extracts thereof as Lender deems
necessary.
(g) Notice of Failure to Perform. Promptly (and in any event
within 5 days after the occurrence thereof) notify Lender of any failure by
Borrower to perform or observe any Obligation.
SECTION 7.2. Negative Covenants. So long as the Note shall
remain unpaid or Lender shall have any obligation to make any Advance
hereunder, and in addition to all other covenants and agreements of Borrower
set forth in this Agreement, Borrower shall comply with the negative covenants
set forth in this Section 7.2, unless Lender shall otherwise consent in
writing.
(a) Use of Loan Proceeds. Borrower shall not use Loan
proceeds for purposes of paying dividends or distributions to shareholders, or
for funding operating expenses, it being understood that proceeds of the Loan
shall be used by Borrower for general corporate purposes of Borrower including
Borrower's acquisition of existing office buildings, and construction and
development of new office buildings owned by Borrower located primarily in
existing Xxxxx office parks.
(b) Structural Alterations. Borrower shall not erect or
construct any new structures of any kind or additions or material alterations
to existing buildings or
30
other structures on the Collateral (except interior tenant improvements),
without Lender's prior written approval, which will not be unreasonably
withheld or delayed.
(c) Change in Nature of Business. Borrower shall not make any
material change in the nature of its business as carried on as of the Closing
Date.
(d) Transactions with Subsidiaries. Borrower shall not enter
into any transaction (including, without limitation, any purchase, sale, lease
or exchange of property or the rendering of any service) with any Subsidiary
except in the ordinary course of Borrower's business and upon fair and
reasonable terms that are no less favorable to it than would obtain in a
comparable arm's length transaction with any third person. Borrower shall not
use proceeds of the Loan for the purpose of capitalizing or of funding the
operating or capital expenses of any Subsidiary.
ARTICLE VIII
DEFAULT
SECTION 8.1. Events of Default. Any of the following events
(each a "Default") shall, following the passage of any grace or cure period as
provided below, constitute an Event of Default ("Event of Default"):
(a) Borrower shall fail to make any payment of principal
under either Note on or before the same becomes due and payable on maturity
thereof; or Borrower shall fail to make any payment of interest under either
Note, or any fees, costs or expenses due hereunder or thereunder, within 5 days
after the same becomes due and payable.
(b) Any representation or warranty made by Borrower (or any
of its officers) under or in connection with any Loan Document shall be or
become incorrect or untrue, or shall prove to have been incorrect or misleading
in any material respect when made.
(c) Borrower shall fail to perform or observe any term,
covenant or agreement (other than a covenant of payment) contained in any Loan
Document on its part to be performed or observed, and such failure shall remain
uncured for 10 days after written notice thereof shall have been given by
Lender to Borrower, or if such failure cannot by its nature be cured within
such 10 day period, Borrower shall fail to commence and diligently pursue such
cure within 10 days after written notice thereof shall have been given by
Lender to Borrower and shall fail to complete such cure within 60 days after
Lender's initial written notice of such failure.
(d) An involuntary case or proceeding under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect shall be
commenced against Borrower, and such case or proceeding shall not be dismissed
in 60 days; or a court
31
shall enter a decree, or a court or regulatory authority having jurisdiction
over Borrower shall enter an order, appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator, conservator, supervisor,
rehabilitator (or similar official) of Borrower or for any substantial part of
its property, or ordering the winding-up, supervision or liquidation of its
affairs.
(e) Borrower shall commence a voluntary case or proceeding
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief in an
involuntary case or proceeding under any such law, or shall consent to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator, conservator, supervisor, rehabilitator (or
other similar official) of Borrower or for any substantial part of its
property, or shall make any general assignment for the benefit of creditors, or
shall fail generally to pay its indebtedness generally as the same becomes due,
or shall take any corporate action in furtherance of any of the foregoing.
(f) A judgment or order for the payment of money in excess of
$2,500,000 shall be rendered against Borrower and either (A) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (B) there shall be any period of 10 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect.
(g) A default has occurred and is continuing beyond any
applicable grace or cure period under any Debt (other than the Loan) in excess
of $2,500,000.
(h) Any material provision of the Loan Documents relating to
Lender's ability to realize on the Collateral following an Event of Default
shall for any reason cease to be valid and binding on Borrower, or Borrower
shall so state in writing.
(i) The Security Agreement shall, as a result of Borrower's
acts or omissions, for any reason, except to the extent permitted by the terms
thereof, cease to create a valid and, upon filing of UCC-1 financing
statement(s), UCC-2 Notice Filings, or UCC-3 continuation statements, as
applicable, perfected first priority security interest in any of the Collateral
purported to be covered.
SECTION 8.2. Remedies following an Event of Default. If an
Event of Default shall occur, then, at Lender's option, in addition to Lender's
remedies set forth in any other Loan Documents or as may be available to Lender
at law or in equity, Lender may by written notice to Borrower, (A) declare
Lender's obligation to make Advances to be terminated, whereupon the same shall
forthwith terminate, and (B) declare the Note, all accrued and unpaid interest
thereon and all other amounts payable under the Loan Documents to be, and the
same shall thereupon forthwith become, due and payable without presentment,
demand, protest or other notice or formality of any kind, all of which are
hereby expressly waived by Borrower.
32
SECTION 8.3. Default Interest. In addition to Lender's
remedies set forth in Section 8.2, if an Event of Default occurs, then, at
Lender's option, all unpaid Obligations shall accrue interest from the date of
Default at the Default Rate.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Amendments, Etc. No amendment, modification,
release, termination or waiver of any provision of this Agreement or the other
Loan Documents shall be effective unless the same shall be in writing and
signed by Lender and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
SECTION 9.2. Indemnification and Limitation of Claims.
Borrower hereby indemnifies and agrees to defend, protect and hold harmless
Lender and each of their respective officers, directors, employees, attorneys
and agents (collectively, the "Indemnitees") from and against any and all
liabilities, obligations, losses (other than loss of profits), damages,
penalties, actions, judgments, suits, claims, costs, reasonable expenses and
disbursements of any kind or nature whatsoever (excluding any taxes and
including, without limitation, the reasonable fees and disbursements of counsel
for such Indemnitees in connection with any investigative, administrative or
judicial proceeding, whether or not such Indemnitees shall be designated a
party thereto), imposed on, incurred by, or asserted against such Indemnitees
in any manner relating to or arising out of (i) this Agreement or the other
Loan Documents, or any act, event or transaction related or attendant thereto,
the making and administration of the Loan, the use or intended use of the
proceeds of the Loan, or any of the other transactions contemplated by the Loan
Documents, or (ii) any liabilities and costs relating to violation of any
Governmental Requirements (including without limitation the Americans with
Disabilities Act, regulations and guidelines promulgated thereunder, and
similar state laws and regulations), the past, present or future operations of
Borrower or any Subsidiary or any of their respective predecessors in interest,
or the past, present or future physical condition of the Collateral
(collectively, the "Indemnified Matters"); provided, however, Borrower shall
have no obligation to an Indemnitee hereunder with respect to (i) Indemnified
Matters caused by or resulting from the negligent acts or omissions of such
Indemnitee, as determined by a court of competent jurisdiction in a
non-appealable final judgment, or (ii) any loss, cost, damage, claim or expense
relating to any portion of the Collateral that accrues after title to such
portion of the Collateral is transferred to Lender, or its successors and
assigns, by foreclosure, power of sale, deed in lieu of foreclosure or
otherwise. Furthermore, Borrower agrees not to assert any claim against any of
the Indemnitees, on any theory of liability, for punitive damages arising out
of, or in any way in connection with, the Loan Commitment, the Obligations, or
the other matters governed by this Agreement and the other Loan Documents. To
the extent that the undertaking to indemnify, pay and hold harmless set forth
in this paragraph may be unenforceable
33
because it is violative of any law or public policy, Borrower shall contribute
the maximum portion which it is permitted to pay and satisfy under applicable
law, to the payment and satisfaction of all Indemnified Matters incurred by the
Indemnitees.
SECTION 9.3. Notices. All notices, demands, requests for
consents, consents and other communications required or permitted hereunder
shall be in writing (including telefax transmission) and shall be given by (a)
Prepaid United States Certified Mail, Return Receipt Requested, (b) hand
delivery, (c) overnight delivery service using a reputable national or regional
carrier such as United Parcel Service or Federal Express, or (d) telefax
transmission with electronic receipt confirmation, to such party, addressed to
it, at its address or telefax number set forth below, or at such other address
or telefax number as such party may hereafter specify for the purpose of notice
to the other party. Each such notice, request or communication shall be
effective (a) if sent by United States Certified Mail, Return Receipt
Requested, 3 Business Days following the postmark, (b) if sent by hand
delivery, upon receipt thereof, (c) if sent by overnight delivery service, on
the next Business Day, or (d) if sent by telefax transmission, on the same
Business Day, to the address of the parties specified below.
If to Borrower:
Xxxxx Equity, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. X.X. Xxxxxx
Telefax No. 000-000-0000
If to Lender:
First Union National Bank of Florida
000 X. Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Real Estate Portfolio Management
Telefax No. 000-000-0000
and
Xxxxxx Guaranty Trust Company of New York
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X'Xxxxxxx
Telefax No. 000-000-0000
SECTION 9.4. No Waiver; Remedies. No failure on the part of
Lender to exercise, and no delay in exercising, any right under any Loan
Document shall operate
34
as a waiver thereof; nor shall any single or partial exercise of any right
under any Loan Document preclude any other or further exercise thereof or the
exercise of any other right. The remedies provided in the Loan Documents are
cumulative and not exclusive of any remedies provided at law or in equity.
SECTION 9.5. Binding Effect; Assignment. This Agreement shall
be binding upon and inure to the benefit of Borrower and Lender and their
respective successors and assigns, except Borrower shall not have the right to
assign its rights hereunder or any interest herein without the prior written
consent of Lender.
SECTION 9.6. Governing Law; Jurisdiction and Venue. The
rights and obligations of Borrower and Lender with respect to this Agreement
and the Notes shall be governed by, and construed in accordance with, the laws
of the State of Florida, and the rights and obligations of Borrower and Lender
with respect to any other Loan Documents shall be governed by, and construed in
accordance with, the laws of the State in which the Collateral is located. Any
suit, action or proceeding may be brought against Borrower under the Loan
Documents in the courts of the State in which the Collateral is located or in
the courts of the County of Xxxxx, State of Florida, or the United States
District Court for the Northern District of Florida, as Lender in its sole
discretion may elect, and Borrower hereby accepts the nonexclusive jurisdiction
of those courts for the purpose of any suit, action, or proceeding. In
addition, Borrower hereby irrevocably waives, to the fullest extent permitted
by law, any objection which Borrower may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to the Loan
Documents or any judgment entered by any court in respect of any part thereof,
and hereby further irrevocably waives any claim that any suit, action or
proceeding brought in the jurisdiction selected by Lender has been brought in
an inconvenient forum. Borrower irrevocably agrees that any pleadings or
service of process may be had on Borrower by mailing to Borrower at the address
set forth in Section 9.3 by certified or registered mail and such mailing shall
be effective for all purposes, including the establishment of personal
jurisdiction of the court in any such action.
SECTION 9.7. Severability. Any provision of this Agreement or
the other Loan Documents which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remainder of such
provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 9.8. Headings. Section headings used in this
Agreement are for convenience only and shall not affect the construction of
this Agreement.
SECTION 9.9. Counterparts. This Agreement may be executed in
two or more counterparts, and by the different parties on separate
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute
35
one and the same instrument, and it shall not be necessary in making proof of
this Agreement to produce or account for more than one such counterpart.
SECTION 9.10. WAIVER OF TRIAL BY JURY. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, BORROWER AND LENDER, THEIR RESPECTIVE SUCCESSORS
AND ASSIGNS (ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE "PARTIES") EACH
ACKNOWLEDGE AND AGREE THAT NONE OF THEM SHALL SEEK A JURY TRIAL IN ANY LAWSUIT,
PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION OR PROCEDURE BASED UPON OR
ARISING OUT OF THE LOAN OR THE LOAN DOCUMENTS, ANY COLLATERAL OR THE DEALINGS
OR THE RELATIONSHIP BETWEEN THE PARTIES RELATED THERETO. NONE OF THE PARTIES
SHALL SEEK TO CONSOLIDATE ANY SUCH ACTION INTO ANY OTHER ACTION IN WHICH A JURY
TRIAL HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY
NEGOTIATED BY THE PARTIES, ARE MADE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY,
AND CONSTITUTE A MATERIAL INDUCEMENT FOR LENDER TO MAKE THE LOAN TO BORROWER,
AND SHALL BE SUBJECT TO NO EXCEPTIONS.
[This space intentionally left blank]
36
IN WITNESS WHEREOF, Borrower and Lender have caused this Agreement to
be executed as of the date first above written.
BORROWER:
XXXXX EQUITY, INC., a Florida corporation
By: /s/ G. Xxxxx Xxxxxxx
-------------------------------
Name: G. Xxxxx Xxxxxxx
-------------------------------
Title: Treasurer
LENDER:
FIRST UNION NATIONAL BANK OF FLORIDA, a
national banking association
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
-------------------------------
Title: Senior Vice President
XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, a New York banking corporation
By: /s/ Xxxxxxx X. X'Xxxxxxx
-------------------------------
Name: Xxxxxxx X. X'Xxxxxxx
-------------------------------
Title: Vice President
SCHEDULE OF EXHIBITS:
Exhibit A - Description of Real Property
Exhibit B - Summary Requirements for Additions to Collateral Pool Properties
Exhibit C - Format for Determination of Borrowing Availability
Exhibit D - Minimum Standards and Supplementary Requirements for Surveys
Exhibit E - Minimum Title Standards
Exhibit F - Form of Certificate of Compliance with Use and Occupancy Laws
Exhibit G - Schedule of Borrower's Subsidiaries
Exhibit H - Schedule of Subsidiaries' Interest in Collateral
Exhibit I - Form of Quit Claim Deed with Reservations and Grants of Easements
37
EXHIBIT A - DESCRIPTION OF REAL PROPERTY
[LEGAL DESCRIPTIONS OF REAL PROPERTY NOT INCLUDED IN FORM 8-K FILING WITH
SECURITIES AND EXCHANGE COMMISSION]
38
EXHIBIT B
XXXXX EQUITY, INC.
Summary Requirements
For Additions to Collateral Pool Properties
Property Name: Date:
REQUIREMENT
1) Description of Property including location, age and occupancy
2) Certified operating statements and operating budget
3) 3 Year Occupancy History
4) Current Rent Roll (Leases upon request)
5) Copies of Material Contracts
6) Building Condition Report
7) Phase I Environmental Assessment
8) Title Commitment
9) Insurance Binder
10) Appraisal (to be ordered by Lenders)
11) ADA Compliance Report
39
EXHIBIT C
XXXXX EQUITY, INC.
Collateral Pool Value, Maximum Loan Availability and Occupancy Schedule as of
12/31/96.
Pool Assets Net Rentable Previous 4 Less Cap Annualized Cap Rate
Square Feet Quarters' NOI Ex p @ $1.50 Pool NOI
--------------------------------------------------------------------------------------------------
Oglethorpe 35,770 $ 262,726 $ 53,655 $ 209,071 10.0%
Cornell 27,930 202,814 41,895 160,919 10.0%
Dartmouth 34,030 218,913 51,045 167,868 10.0%
Yale 28,200 195,701 42,300 153,401 10.0%
Vanderbilt 28,200 176,649 42,300 134,34 10.0%
Harvard 37,650 330,833 56,475 274,358 10.0%
Columbia 9,990 31,788 14,985 16,803 10.0%
Stetson 30,200 229,091 45,300 183,791 10.0%
Xxxxxxx 31,830 289,009 47,745 241,264 10.0%
Stanford 33,120 236,516 49,680 186,836 10.0%
Drake 39,490 353,68 59,235 294,450 10.0%
Xxxxxxxx 107,650 988,942 161,475 827,467 10.0%
Rutgers 59,000 138,767 88,500 50,267 10.0%
Xxxxxx 96,400 1,230,021 144,60 1,085,421 10.0%
Wilmington 24,500 166,606 36,750 129,856 10.0%
Kinston 49,800 459,347 74,700 384,647 10.0%
Xxxxxxxxx 30,270 172,978 45,405 127,573 10.0%
Xxxxx 43,380 310,739 65,070 245,669 10.0%
Salem 97,260 729,303 145,890 583,413 10.0%
Wrightsville 32,750 218,852 49,125 169,727 10.0%
Lenoir 32,430 206,198 48,645 157,553 10.0%
Hickory 44,070 295,956 66,105 229,851 10.0%
Rockingham 39,250 300,841 58,875 241,966 10.0%
Asheville 118,600 1,249,682 177,900 1,071,782 10.0%
Xxxxxxxx 32,750 235,577 49,125 186,452 10.0%
Xxxxx 21,340 97,573 32,010 65,563 10.0%
Pinehurst 44,070 357,269 66,105 291,164 10.0%
--------------------------------------------------------------------------------------------------
Pool Value 1,209,930 $9,686,376 $1,814,895 $7,871,481
40
Pool Assets Pool Value Avg. Period Period End
Occupancy Occupancy
-------------------------------------------------------------------------------
Oglethorpe $ 2,090,710 86% 79%
Cornell 1,609,190 91% 79%
Dartmouth 1,678,680 82% 100%
Yale 1,534,010 100% 100%
Vanderbilt 1,343,490 100% 100%
Harvard 2,743,580 100% 100%
Columbia 168,030 93% 83%
Stetson 1,837,910 99% 100%
Hollins 2,412,640 91% 92%
Stanford 1,868,360 100% 100%
Drake 2,944,500 100% 100%
Xxxxxxxx 8,274,670 94% 96%
Rutgers 502,670 77% 100%
Rhodes 10,854,210 100% 99%
Wilmington 1,298,560 88% 89%
Kinston 3,846,470 99% 99%
Xxxxxxxxx 1,275,730 82% 85%
Xxxxx 2,456,690 92% 94%
Salem 5,834,130 90% 97%
Wrightsville 1,697,270 82% 88%
Lenoir 1,575,530 99% 99%
Hickory 2,298,510 100% 100%
Rockingham 2,419,660 87% 83%
Asheville 10,717,820 96% 100%
Xxxxxxxx 1,864,520 84% 84%
Xxxxx 655,630 75% 79%
Pinehurst 2,911,640 92% 100%
-------------------------------------------------------------------------------
Pool Value $78,714,810 92% 94%
Pool Value Times 60% Equals Maximum Loan Availability of $47,228.886
41
EXHIBIT D - MINIMUM STANDARDS AND SUPPLEMENTARY REQUIREMENTS FOR SURVEYS
[NOT INCLUDED IN FORM 8-K FILING WITH SECURITIES AND EXCHANGE COMMISSION]
42
EXHIBIT E - MINIMUM TITLE STANDARDS
[NOT INCLUDED IN FORM 8-K FILING WITH SECURITIES AND EXCHANGE COMMISSION]
43
EXHIBIT F - FORM OF CERTIFICATE OF COMPLIANCE WITH USE AND OCCUPANCY LAWS
CERTIFICATE OF COMPLIANCE WITH USE AND OCCUPANCY LAWS
The undersigned, being the of XXXXX EQUITY, INC., a Florida
corporation ("Xxxxx") does hereby, on behalf of Xxxxx and by authority duly
given, certify to FIRST UNION NATIONAL BANK OF FLORIDA, a national banking
association ("First Union"), and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, a
New York banking corporation ("Xxxxxx Guaranty"), the following as of the date
hereof:
1. Xxxxx understands that First Union and Xxxxxx Guaranty are relying
upon this Certificate, and will continue to rely upon this Certificate, in
connection with the transactions contemplated in that certain Revolving Credit
Loan Agreement dated as of , 1997, by and among Xxxxx, First Union and Xxxxxx
Guaranty (the "Loan Agreement"). All capitalized terms used herein and not
defined herein shall have the meanings given to them in the Loan Agreement.
2. To the best of Xxxxx'x knowledge and except as disclosed on Exhibit
A attached hereto, the Collateral encumbered by the Loan Documents and the use
thereof by Xxxxx, is in material compliance with all laws, ordinances, rules
and regulations of all governmental authorities having jurisdiction over the
Collateral, including, but not limited to, all applicable zoning, building,
occupancy, land use and environmental requirements of all governmental
authorities having jurisdiction over the Collateral, except state and federal
laws and regulations governing facilities accessibility for disabled persons
(such as the Americans with Disabilities Act Accessibility Guidelines) (the
laws, ordinances, rules and regulations referred to above being collectively
referred to as the "Use and Occupancy Laws").
3. Certificates of compliance with the Use and Occupancy Laws, if
issued in the ordinary course of business by the applicable governmental
authority, have been issued with respect to the Collateral and those
certificates have not been revoked.
4. Xxxxx has received no notice from any governmental body, agency or
department or from any other source that the Collateral, or Xxxxx'x use
thereof, is in violation of or conflict with any of the Use and Occupancy Laws.
5. Xxxxx understands and agrees that it has an affirmative duty to
promptly notify First Union and Xxxxxx Guaranty upon its becoming aware of, or
upon its receipt of notice regarding, any assertion by a governmental
authority, or any action or proceeding commenced by any person, seeking damages
relating to, or seeking to cause or enforce compliance with, the Use and
Occupancy Laws. Such notice shall be in writing and shall specifically identify
the nature of such assertion, action or proceeding, and the Collateral affected
thereby.
6. Xxxxx understands and agrees that it has an affirmative duty to
promptly remedy any noncompliance with the Use and Occupancy Laws upon written
request therefor by First Union and/or Xxxxxx Guaranty following any assertion
by a governmental authority, or any action or proceeding commenced by any
person, seeking damages relating to, or seeking to cause or enforce compliance
with, the Use and Occupancy Laws. Xxxxx hereby indemnifies and agrees to hold
harmless First Union and Xxxxxx Guaranty from and against all claims, demands
and expenses related to such claims and demands, including reasonable
attorneys' fees and paralegals' fees, arising from any noncompliance with the
Use and Occupancy Laws; provided, however, this indemnity will not extend to
any damage, liability or loss resulting from the negligence, recklessness or
wilful misconduct of First Union or Xxxxxx Guaranty (it being understood,
however, that neither First Union nor Xxxxxx Guaranty will be deemed to have,
or to have assumed, any duty to confirm, cause, guaranty or underwrite,
compliance of the Collateral with the Use and Occupancy Laws).
44
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Certificate as of the day of , 1997.
XXXXX EQUITY, INC.,
a Florida corporation
By:
-------------------------------
Name:
-------------------------------
Its
-------------------------------
STATE OF )
---------------
COUNTY OF )
-------------
The foregoing instrument was acknowledged before me this day of ,
1997, by , the of XXXXX EQUITY, INC., a Florida corporation, on behalf of the
corporation, who either ____ is personally known to me or has produced
identification in the form of driver's license.
-------------------------------------
Print Name:
--------------------------
Notary Public, State of
--------------
Commission No.
-----------------------
My Commission Expires:
---------------
[NOTARIAL SEAL]
EXHIBIT G - SCHEDULE OF BORROWER'S SUBSIDIARIES
SOUTHEAST PROPERTIES HOLDING CORPORATION
Southeast Properties Holding Corporation ("Southeast"), is a Florida
Corporation wholly-owned by Xxxxx Equity, Inc. Pursuant to the Merger of KPI
into Xxxxx Equity, Southeast became the managing general partner of The Xxxxx
Partnership, Ltd. Southeast was responsible for handling the liquidation of The
Xxxxx Partnership, Ltd. (See Footnote #4 to Xxxxx Equity's December 31, 1995
Annual Report for a more detailed discussion of Southeast).
XXXXX REAL ESTATE SERVICES, INC.
45
Xxxxx Real Estate Services, Inc., a Florida corporation, manages 21 office
buildings owned by Centoff Realty Company, Inc., a subsidiary of Xxxxxx
Guaranty Trust Company of New York.
46
EXHIBIT H - SCHEDULE OF SUBSIDIARIES' INTEREST IN COLLATERAL
NONE
47
EXHIBIT 1 - FORM OF RELEASE DEED
QUIT CLAIM DEED WITH RESERVATIONS
AND GRANTS OF EASEMENTS
WHEREAS, ________________________
__________________________________________, a national banking association (the
"Trustee"), is the trustee under that certain Deed of Trust from XXXXX EQUITY,
INC., a Florida corporation ("KEI"), recorded in ____________ Book _____, page
_____, of the public records of __________ County, _______________, an
Assignment of Leases and Rents recorded in _____________ Book ______, page
_____, and a financing statement recorded in _______ Book _____, page _____, of
said records (collectively, the "Security Instrument"); and
WHEREAS, the Trustee has been requested to release the premises
hereinafter described, from the lien and operation of the Security Instrument
and to quit claim Trustee's interest therein to KEI; and
WHEREAS, the Trustee will retain an interest in certain properties
adjacent to the property conveyed hereby.
NOW, THEREFORE, for valuable consideration, the Trustee does hereby
grant, convey, transfer and quit claim to KEI all of Trustee's interest in that
parcel of land more particularly described on Exhibit A attached hereto (the
"Property"), reserving to Trustee the following described easements over the
Property and granting to KEI easements over the lands retained by Trustee, all
such easements being subject to the terms and conditions contained herein.
1. Reservation of Access Easements. Trustee hereby reserves unto
Trustee a non-exclusive, perpetual easement over, across and upon the parcel of
land described in Exhibit B attached hereto ("Parcel 1") for vehicular and
pedestrian ingress and egress.
2. Grant of Access Easement. Trustee hereby grants to KEI, and
subordinates the lien of the Security Instrument to, a non-exclusive, perpetual
easement over, across and upon the parcel of land described in Exhibit C
attached hereto ("Parcel 2") for vehicular and pedestrian ingress and egress.
3. Reservation of Water/Sewer Utility Easements. Trustee hereby
reserves a non-exclusive, perpetual easement over, under, across and upon the
48
parcel of land described in Exhibit D attached hereto ("Parcel 3") for the
construction, operation, repair and maintenance of [water/sanitary sewer]
utility lines.
4. Grant of Water/Sewer Utility Easement. Trustee hereby grants to
KEI, and subordinates the lien of the Security Instrument to a non-exclusive,
perpetual easement over, under, across and upon the parcel of land described in
Exhibit E attached hereto ("Parcel 4") for the construction, operation, repair
and maintenance of [water/sanitary sewer] utility lines.
5. Reservation of Drainage Easement. Trustee hereby reserves a
non-exclusive, perpetual easement under and through the parcel of land
described in Exhibit F attached hereto ("Parcel 5") for the construction,
operation, repair and maintenance of storm water drainage. The easement
reserved pursuant to this paragraph 5 for storm water drainage is strictly for
the placement and use of underground improvements and lines, and nothing herein
shall permit the placement of improvements or structures at or above surface
level.
6. Reservation of Drainage Easement. Trustee hereby grants to KEI, and
subordinates the lien of the Security Instrument to a non-exclusive, perpetual
easement under and through the parcel of land described in Exhibit C attached
hereto ("Parcel 3") for the construction, operation, repair and maintenance of
storm water drainage. The easement granted pursuant to this paragraph 6 for
storm water drainage is strictly for the placement and use of underground
improvements and lines, and nothing herein shall permit the placement of
improvements or structures at or above surface level.
7. Each party shall have the right to have landscaping, roadways,
parking and other paving and related improvements over and upon such of Xxxxxx
0, Xxxxxx 0, Xxxxxx 5, and Parcel 6 as are owned by such party; provided,
however, that the fee owner shall have no right to construct or place any
buildings or other improvements over and upon such Parcels which would
materially impair or interfere with the intended purpose of such easement or
violate the terms of any permit required for the operation of the facilities
therein. Without limiting the foregoing, all parties hereto consent to the
existing improvements within such Parcels.
8. Maintenance and Repair of Access Easement Areas. The owner owning
fee title thereto shall repair and maintain Parcel 1 and Parcel 2 (including,
but not limited to the paving, striping, landscaping and lighting thereon) in
such a condition so as to permit the reasonably unobstructed use and enjoyment
of the easements herein granted.
9. Maintenance and Repair of Easement Areas other than Access Easement
Areas. Each party shall maintain and repair all storm water drainage, water and
sanitary sewer facilities and lines used exclusively by it, and shall
49
also maintain and repair all other storm water drainage, water and sanitary
sewer facilities and lines located on lands owned in fee by such party which
are used by Trustee and KEI. All maintenance and repair work performed by KEI
and Trustee shall be done only with reasonable prior written notice to the
other and at such times and in such manner so as to reasonably avoid
interference with the other's use of its lands and the business conducted
thereon. All maintenance and repair work performed by KEI and Trustee shall be
completed in a timely and first class manner, and the premises shall be
restored to substantially the same condition as existed prior to the need for
the maintenance or repair (including any repaving, resurfacing or relandscaping
of the surface necessitated by the maintenance or repair). The party performing
or having performed the maintenance or repair shall indemnify and hold harmless
the fee owner of the parcel for any cost, loss, damage or expense arising from
said maintenance or repair.
10. Cost Sharing. Each owner shall bear the total cost of maintaining
any storm water drainage and water and sanitary sewer utility facilities and
lines serving only such owner's lands. The cost to maintain any storm water
drainage, or water or sanitary sewer utility facilities or lines, the use of
which is shared by more than one owner, shall be apportioned among the owners
based upon the following parameters. For storm water drainage and retention,
and ingress and egress easements, the cost of maintenance shall be apportioned
based upon the respective land area of the lands served by such facilities.
With respect to water and sanitary sewer lines, the cost of maintenance shall
be apportioned based upon the number of enclosed, heated square feet within the
improvements located on the respective lands served by such facilities.
11. Taxes. Each owner of land on which a Parcel is located shall pay,
prior to delinquency, all taxes assessed against its respective land, and upon
request, furnish proof of payment to the other owner.
12. Exercise of Easement Rights. The exercise of the easement rights
granted herein shall be conducted so as not to unreasonably interfere with the
use and enjoyment of the other persons entitled to use or enjoy the respective
parcels affected by this Agreement. The owner of the servient estate of any
easement granted hereunder shall have the right to use the relevant easement
area for any purpose which does not unreasonably interfere with or impair the
reasonable use and benefit of such easement for its intended purposes.
13. Indemnity. No fee owner of any Parcel under this Agreement shall
be responsible to any other owner, or to any of the other owner's agents,
employees, tenants, invitees or licensees for any loss, expense or damage other
than such loss, expense or damage as is caused by the negligence or other fault
of any such fee owner, its agents, contractors or employees. Each owner agrees
to indemnify and hold the other owner harmless from any and all liability,
loss, expense, damage (including attorneys' fees and paralegals' fees) and
50
claims arising from or alleged to arise from use of the easements granted under
this Agreement by such first owner's agents, contractors, employees, tenants,
invitees or licensees.
14. Default and Remedies.
a. In General. In the event of a breach by any party under
this Agreement of any obligation set forth under this Agreement, the
non-breaching party shall be entitled to injunctive relief mandating compliance
with this Agreement and to obtain a decree specifically enforcing the
performance of the obligation; the parties acknowledge and stipulate the
inadequacy of legal remedies and the irreparable harm which would be caused by
any such breach. Notwithstanding the foregoing, each non-breaching party shall
also be entitled to relief by any and all other available, legal and equitable
remedies from the consequences of such breach. Any costs and expenses of such
proceeding including reasonable attorneys' and paralegals' fees, shall be paid
by the breaching party. No breach of the provisions of this Agreement shall
entitle any owner or any third party to cancel, rescind and/or otherwise
terminate this Agreement, but such limitation shall not affect in any manner
any of the other rights and remedies which such party may have under this
Agreement by reason of any breach of the provisions of this Agreement. No
breach of the provisions of this Agreement shall defeat or render invalid the
lien of any mortgage made in good faith for value covering any part of the
Parcels under this Agreement or any improvements thereon.
b. Self Help. In addition to those remedies provided above,
if any party (the "Defaulting Party") shall default in the performance of an
obligation of such Defaulting Party under this Agreement, which default
adversely affects any other owner (the "Affected Party"), the Affected Party,
after 30 days' prior written notice to the Defaulting Party and any Mortgagee
(as hereinafter defined) having a lien on the parcel held by the Defaulting
Party (providing that such Mortgagee, as the case may be, shall have given
written notice to the Affected Party of the name and address of such
Mortgagee), or, in the event of any emergency, after such notice as is
practical under the circumstances, shall have the right to perform such
obligation on behalf of the Defaulting Party. In such event, if the Affected
Party does, in fact, perform such obligation on behalf of the Defaulting Party,
the Defaulting Party shall promptly, after being given written notice of the
fact and amount of such expenditure by the Affected Party, reimburse the
Affected Party for the Defaulting Party's share of the reasonable cost thereof
(not exceeding prevailing rates for like or similar work and materials, as
applicable), together with interest thereon from the date of the Affected
Party's outlay at a rate (the "Default Rate") equal to twelve percent (12.0%)
per annum, plus reasonable collection fees.
15. Mortgagee Rights. The owner and holder of any mortgage lien, deed
of trust, or similar instrument encumbering lands benefitted by a Parcel,
51
or part thereof (a "Mortgagee") shall have the same rights as its respective
mortgagor hereunder, including the right to cure defaults of its mortgagor and
to seek curative actions and exercise enforcement rights under this Agreement.
16. Notices and Communications. All notices, requests, demands and
other communications hereunder shall be in writing and transmitted to the other
party or parties by either (i) hand or courier delivery; (ii) Federal Express
or similar overnight courier delivery; or (iii) U.S. certified mail, return
receipt requested, postage prepaid. All notices are to be hand delivered or
mailed to the addresses indicated on the address of the party as shown by the
tax rolls or to such other address as shall be furnished in writing by any
party to the other parties.
17. Duration of Easements. The easements herein granted (a) are
perpetual; (b) are non-exclusive; (c) run with the land; and (d) are binding
upon all and inure to the benefit or, as the case may be, burden of all the
assigns and successors of the respective owners.
18. No Dedication. Nothing contained herein shall create any easement
or other rights in the respective parcels in the general public; provided,
however, that this provision shall not restrict the intended use by the
grantees (and their respective successors, assigns, tenants, invitees, guests
and customers) of the easements herein granted.
IN WITNESS WHEREOF, the parties have executed this instrument on the
____ day of ______________, 1997.
[APPROPRIATE SIGNATURE BLOCKS AND ACKNOWLEDGMENTS TO BE INSERTED]
52
EXHIBIT J - FORM OF BORROWING COMPLIANCE CERTIFICATE
BORROWING COMPLIANCE CERTIFICATE
The undersigned, _______________________________________, the
___________________________ of Xxxxx Equity, Inc. ("Borrower") hereby certifies
to First Union National Bank of Florida and Xxxxxx Guaranty Trust Company of
New York ("Lender"), the following pursuant to Section 3.1(c) and 3.1(d) of
Revolving Credit Loan Agreement dated as of April ___, 1997 between Borrower
and Lender (as amended, supplemented or restated from time to time, the "Loan
Agreement") (capitalized terms not otherwise defined in this Certificate will
have the meanings assigned to such terms in the Loan Agreement):
1. Pursuant to Article III of the Loan Agreement, Borrower has
requested an Advance in the amount of $_________________ for disbursement on
______________, 199___ (the "Funding Date");
2. After giving effect to such Advance, the outstanding principal
balance of the Loan as of the Funding Date will be $___________________. The
undersigned has reviewed and is familiar with the terms of the Loan Agreement
and has made a review of the transactions, financial condition and other
affairs of Borrower for the relevant accounting period ending on
_________________, 19 __ (the "Current Accounting Period") and, on the basis
thereof:
(a) Schedule 1 attached hereto accurately and completely sets
forth the calculations required to establish Borrower's compliance
with the Financial Covenants set forth in Section 3.1(a) of the Loan
Agreement as of the date of the financial statements for the Current
Accounting Period; and
(b) The aggregate outstanding principal amount of the Loan, after
giving effect to such Advance does not exceed the maximum borrowing
availability as calculated on Exhibit C of the Loan Agreement.
3. As of the date hereof and as of the Funding Date:
(a) Borrower is in material compliance with the Financial
Covenants set forth in Section 3.1(a) of the Loan Agreement, both
before and after giving effect to such Advance and to the application
of proceeds therefrom;
(b) Borrower is in material compliance with all of the terms,
covenants and conditions of the Loan Documents, no Default or Event of
Default presently exists or is continuing, and no event or condition
has occurred or is continuing, or would result from such Advance or
from the application of proceeds therefrom, which would constitute a
Default or Event of Default;
(c) Borrower's representations and warranties set forth in
Section 6.1 of the Loan Agreement remain true and correct in all
material respects, both before and after giving effect to such Advance
and to the application of proceeds therefrom, except to the extent
such representations and warranties specifically relate to an earlier
date or such representations or warranties have become untrue by
reason of events or conditions otherwise permitted under the Loan
Agreement or the other Loan Documents.
IN WITNESS WHEREOF, the undersigned has signed this Borrowing
Compliance Certificate on behalf of Borrower on and as of _________________,
199___.
------------------------------
Name:
------------------------
Title:
------------------------
[this document must be signed by Borrower's Chief Financial Officer or Chief
Accounting Officer]
[this document must include attached Schedule 1 Financial Covenant compliance
calculations]
