EXHIBIT 10.1
--------------------------------------------------------------------------------
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF AUGUST 6, 2004
AMONG
RECKSON OPERATING PARTNERSHIP, L.P.
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS LENDERS
AND
JPMORGAN CHASE BANK,
AS ADMINISTRATIVE AGENT
WITH
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS SYNDICATION AGENT
CITICORP NORTH AMERICA, INC.,
WACHOVIA BANK, NATIONAL ASSOCIATION,
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS, INC.,
AS CO-DOCUMENTATION AGENTS
KEYBANK, NATIONAL ASSOCIATION,
THE BANK OF NEW YORK,
THE BANK OF NOVA SCOTIA,
ING REAL ESTATE FINANCE (USA) LLC,
AND
PNC BANK, NATIONAL ASSOCIATION,
AS CO-AGENTS
AND
X.X. XXXXXX SECURITIES INC.
AND
CITIGROUP GLOBAL MARKETS INC.,
AS CO-LEAD ARRANGERS AND JOINT BOOKRUNNERS
--------------------------------------------------------------------------------
ARTICLE I. DEFINITIONS..............................................1
1.1. Certain Defined Terms........................................1
1.2. Computation of Time Periods.................................29
1.3. Accounting Terms............................................29
1.4. Other Terms.................................................29
1.5. Rules of Interpretation.....................................29
ARTICLE II. AMOUNTS AND TERMS OF LOANS..............................29
2.1. Committed Loans.............................................29
2.2. Competitive Bid Loans.......................................32
2.3. Use of Proceeds of Loans and Letters of Credit..............35
2.4. Revolving Credit Termination Date; Maturity of
Competitive Bid Loans.......................................36
2.5. Maximum Credit Facility.....................................36
2.6. Authorized Agents...........................................36
ARTICLE III. LETTERS OF CREDIT.......................................36
3.1. Letters of Credit...........................................36
3.2. Obligations Several.........................................42
ARTICLE IV. PAYMENTS AND PREPAYMENTS................................42
4.1. Prepayments; Reductions in Revolving Credit Commitments.....42
4.2. Payments....................................................44
4.3. Promise to Repay; Evidence of Indebtedness..................47
ARTICLE V. INTEREST AND FEES.......................................48
5.1. Interest on the Loans and other Obligations.................48
5.2. Special Provisions Governing Eurodollar Rate Loans and
Competitive Bid Loans.......................................50
5.3. Fees........................................................53
ARTICLE VI. CONDITIONS TO LOANS AND LETTERS OF CREDIT...............55
6.1. Conditions Precedent to the Initial Loans and
Letters of Credit...........................................55
6.2. Conditions Precedent to All Subsequent Loans and
Letters of Credit...........................................56
ARTICLE VII. REPRESENTATIONS AND WARRANTIES..........................57
7.1. Representations and Warranties of the Borrower..............57
ARTICLE VIII. REPORTING COVENANTS.....................................65
8.1. Borrower Accounting Practices...............................65
8.2. Financial Reports...........................................65
8.3. Events of Default...........................................68
8.4. Lawsuits....................................................68
8.5. Insurance...................................................68
8.6. ERISA Notices...............................................69
8.7. Environmental Notices.......................................70
8.8. Labor Matters...............................................71
8.9. Notices of Asset Sales and/or Acquisitions..................71
8.10. Notices of Joint Ventures...................................71
8.11. Tenant Notifications........................................72
8.12. Other Reports...............................................72
8.13. Other Information...........................................72
ARTICLE IX. AFFIRMATIVE COVENANTS...................................72
9.1. Existence. Etc..............................................72
9.2. Powers; Conduct of Business.................................72
9.3. Compliance with Laws. Etc...................................73
9.4. Payment of Taxes and Claims.................................73
9.5. Insurance...................................................73
9.6. Inspection of Property, Books and Records Discussions.......73
9.7. ERISA Compliance............................................73
9.8. Maintenance of Property.....................................74
9.9. Company Status..............................................74
9.10. Ownership of Projects, Joint Ventures and Property..........74
9.11. Maintenance of Operating Accounts...........................74
9.12. Additional Guarantors; Solvency of Guarantors...............74
9.13. Further Assurances..........................................75
9.14. Distributions in the Ordinary Course........................75
ARTICLE X. NEGATIVE COVENANTS......................................75
10.1. Intentionally Omitted.......................................75
10.2. Liens.......................................................75
-ii-
10.3. Intentionally Omitted.......................................75
10.4. Conduct of Business.........................................75
10.5. Transactions with Partners and Affiliates...................76
10.6. Restriction on Fundamental Changes..........................76
10.7. Margin Regulations; Securities Laws.........................76
10.8. ERISA.......................................................76
10.9. Organizational Documents....................................77
10.10. Fiscal Year.................................................77
10.11. Financial Covenants.........................................77
10.12. Negative Covenants with respect to the Company..............79
ARTICLE XI. EVENTS OF DEFAULT; RIGHTS AND REMEDIES..................79
11.1. Events of Default...........................................79
11.2. Rights and Remedies.........................................82
ARTICLE XII. THE AGENTS..............................................83
12.1. Appointment.................................................83
12.2. Nature of Duties............................................84
12.3. Right to Request Instructions...............................84
12.4. Reliance....................................................84
12.5. Indemnification.............................................85
12.6. Agents Individually.........................................85
12.7. Successor Agents............................................85
12.8. Relations Among the Lenders.................................86
12.9. Standard of Care............................................86
ARTICLE XIII. YIELD PROTECTION........................................86
13.1. Taxes.......................................................86
13.2. Increased Capital...........................................88
13.3. Changes; Legal Restrictions.................................89
13.4. Replacement of Certain Lenders..............................89
13.5. Mitigation..................................................90
ARTICLE XIV. MISCELLANEOUS...........................................90
14.1. Assignments and Participations..............................90
14.2. Expenses....................................................93
-iii-
14.3. Indemnity...................................................94
14.4. Change in Accounting Principles.............................94
14.5. Intentionally Omitted.......................................95
14.6. Ratable Sharing.............................................95
14.7. Amendments and Waivers......................................95
14.8. Notices.....................................................97
14.9. Survival of Warranties and Agreements.......................97
14.10. Failure or Indulgence Not Waiver; Remedies Cumulative.......98
14.11. Payments Set Aside..........................................98
14.12. Severability................................................98
14.13. Headings....................................................98
14.14. Governing Law...............................................98
14.15. Limitation of Liability.....................................98
14.16. Successors and Assigns......................................99
14.17. Certain Consents and Waivers of the Borrower................99
14.18. Counterparts; Effectiveness; Inconsistencies...............100
14.19. Limitation on Agreements...................................100
14.20. Disclaimers................................................100
14.21. Entire Agreement...........................................101
14.22. Confidentiality............................................101
14.23. No Bankruptcy Proceedings..................................101
14.24. USA Patriot Act............................................101
14.25. Transitional Arrangements..................................101
iv
LIST OF EXHIBITS AND SCHEDULES
Exhibit A Form of Assignment and Acceptance
Exhibit B-1 Form of Note
Exhibit B-2 Form of Designated Bank Note
Exhibit C Form of Notice of Committed Borrowing
Exhibit D Form of Notice of Conversion /Continuation
Exhibit E List of Closing Documents
Exhibit F Form of Compliance Certificate to Accompany Reports
Exhibit G Sample of Calculations of Financial Covenants
Exhibit H Form of Competitive Bid Quote Request
Exhibit I Form of Invitation for Competitive Bid Quote
Exhibit J Form of Competitive Bid Quote
Exhibit K Form of Designation Agreement
Exhibit L Form of Guaranty
Schedule EEP Eligible Encumbered Properties
Schedule EG Eligible Ground Lease
Schedule LC Lenders' Commitments and Notice Addresses
Schedule 1.1.1 Existing Permitted Liens
Schedule 1.1.2 Permitted Securities Options
Schedule 6.1(d) Equity Changes
Schedule 7.1-A Organizational Documents
Schedule 7.1-C Corporate Structure; Outstanding Capital Stock and
Partnership Interests; Partnership Agreement
Schedule 7.1-H Indebtedness for Borrowed Money; Contingent Obligations
Schedule 7.1-I Pending Actions
Schedule 7.1-P Environmental Matters
Schedule 7.1-Q ERISA Matters
Schedule 7.1-R Securities Activities
Schedule 7.1-T Insurance Policies
-v-
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This Third Amended and Restated Credit Agreement dated as of August 6,
2004 (as amended, supplemented or modified from time to time, the "AGREEMENT")
is entered into among RECKSON OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership ("RECKSON"), the institutions from time to time a party hereto as
Lenders, whether by execution of this Agreement or an Assignment and Acceptance,
JPMORGAN CHASE BANK, as Administrative Agent, XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Syndication Agent, CITICORP NORTH AMERICA, INC., WACHOVIA BANK,
NATIONAL ASSOCIATION, and DEUTSCHE BANK TRUST COMPANY AMERICAS, INC., as
Co-Documentation Agents, KEYBANK, NATIONAL ASSOCIATION, THE BANK OF NEW YORK,
THE BANK OF NOVA SCOTIA, ING REAL ESTATE FINANCE (USA) LLC, and PNC BANK,
NATIONAL ASSOCIATION, as Co-Agents (the "CO-AGENTS"), and X.X. XXXXXX SECURITIES
INC. and CITIGROUP GLOBAL MARKETS INC. as Co-Lead Arrangers and Joint
Bookrunners.
RECITALS
WHEREAS, Reckson, an affiliate of Reckson, JPMorgan and certain of the
Lenders entered into that certain Credit Agreement dated as of July 23, 1998, as
amended by First Amendment to Credit Agreement dated as of August 31, 1999 and
as amended by Second Amendment to Credit Agreement dated as of September 27,
1999, (as so amended, the "ORIGINAL REVOLVING CREDIT AGREEMENT");
WHEREAS, Reckson, an affiliate of Reckson, JPMorgan, and certain of the
Lenders entered into that certain Amended and Restated Credit Agreement dated as
of January 12, 1999, as amended by First Amendment to Amended and Restated
Credit Agreement dated as of September 27, 1999 and as amended by Second Amended
and Restated Credit Agreement dated as of December 17, 1999 (as so amended, the
"ORIGINAL TERM LOAN AGREEMENT");
WHEREAS, Reckson, JPMorgan and certain other parties entered into that
certain Amended and Restated Credit Agreement dated as of September 7, 2000 (the
"2000 CREDIT AGREEMENT") pursuant to which they amended and restated the
Original Revolving Credit Agreement in its entirety and terminated the Original
Term Loan Agreement;
WHEREAS, Reckson, JPMorgan and certain other parties entered into that
certain Second Amended and Restated Credit Agreement dated as of December 30,
2002 (the "2002 CREDIT AGREEMENT") pursuant to which they amended and restated
the 2000 Credit Agreement in its entirety; and
WHEREAS, Reckson, JPMorgan and the other parties hereto wish to extend,
amend and restate the 2002 Credit Agreement in its entirety in accordance with
the terms and provisions contained herein.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
1.1. CERTAIN DEFINED TERMS. The following terms used in this
Agreement shall have the following meanings, applicable both to the singular and
the plural forms of the terms defined:
"ADJUSTED UNENCUMBERED NOI" means, for the prior calendar quarter, the
sum of (i) NOI from the Consolidated Businesses attributable to Unencumbered
Projects and Unencumbered New York City Assets which are wholly-owned or
ground-leased by a Consolidated Business; plus (ii) the Borrower's pro rata
share of NOI from Joint Ventures attributable to Unencumbered Projects and
Unencumbered New York City Assets in which the Borrower's beneficial economic
interest in such Joint Ventures is 51% or greater, provided the sale or
financing of any Property owned or ground-leased by such Joint Venture is
substantially controlled by the Borrower, subject to customary provisions set
forth in the organizational documents of such Joint Venture with respect to
financings, sales or rights of first refusal granted to other members of such
Joint Venture; plus (iii) the Borrower's pro rata share of NOI from Joint
Ventures attributable to Unencumbered Projects and Unencumbered New York City
Assets in which the Borrower's beneficial economic interest is less than 51%,
provided that a majority of the beneficial economic interests in such Joint
Ventures that is not owned by the Consolidated Businesses is owned or controlled
by Qualified Joint Venture Partners; plus (iv) the Borrower's pro rata share of
Net Income attributable to other Unencumbered assets including Performing Notes
(exclusive of Investment Funds, land and development, and service company
income); plus (v) NOI from Eligible Encumbered Properties; LESS (vi) the
quotient of Capital Expenditure Coverage Reserve Amounts for such period
relating to such Unencumbered assets and Eligible Encumbered Properties, divided
by four (4);
PROVIDED, clause (ii) above shall not exceed twenty percent (20%) of Adjusted
Unencumbered NOI; clause (iii) above shall not exceed five percent (5%) of
Adjusted Unencumbered NOI; and clause (iv) above shall not exceed fifteen
percent (15%) of Adjusted Unencumbered NOI.
"ADMINISTRATIVE AGENT" means JPMorgan, in its capacity as administrative
agent for the Lenders.
"AFFILIATE", as applied to any Person, means any other Person that
directly or indirectly controls, is controlled by, or is under common control
with, that Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to vote ten percent (10%) or more of the equity
Securities having voting power for the election of directors of such Person or
otherwise to direct or cause the direction of the management and policies of
that Person, whether through the ownership of voting equity Securities or by
contract or otherwise.
"AGENTS" means, collectively, JPMorgan in its capacity as Administrative
Agent, Xxxxx Fargo Bank, National Association, in its capacity as Syndication
Agent, Citicorp North America, Inc., Wachovia Bank, National Association and
Deutsche Bank Trust Company Americas, Inc., in their capacities as
Co-Documentation Agents, KeyBank, National Association, The Bank of New York,
The Bank of Nova Scotia, ING Real Estate Finance (USA) LLC, and PNC Bank,
National Association, in their capacities as Co-Agents, the Arrangers, and each
successor agent appointed pursuant to the terms of Article XII of this
Agreement.
-2-
"AGREEMENT" has the meaning set forth in the preamble hereto.
"APPLICABLE LENDING OFFICE" means, with respect to a particular Lender,
(i) its Eurodollar Lending Office in respect of provisions relating to
Eurodollar Rate Loans, (ii) its Domestic Lending Office in respect of provisions
relating to Base Rate Loans, and (iii) its Competitive Bid Lending Office in
respect of provisions relating to Competitive Bid Loans.
"APPLICABLE MARGIN" means, with respect to each Loan, the respective
percentages per annum determined based on the range into which the Borrower's
Credit Rating then falls, in accordance with the following table. Any change in
the Borrower's Credit Rating causing it to move to a different range on the
table shall to the extent set forth below effect an immediate change in the
Applicable Margin. The Borrower shall notify the Administrative Agent in writing
promptly after becoming aware of any change in any of its Credit Ratings. The
Borrower shall maintain Credit Ratings from at least two (2) Rating Agencies,
one of which must be Xxxxx'x or S&P so long as such Persons are in the business
of providing debt ratings for the REIT industry; provided that if the Borrower
fails to maintain at least two Credit Ratings, the Applicable Margin shall be
based upon an S&P rating of less than BBB- in the table below. In the event that
the Borrower receives two (2) Credit Ratings that are not equivalent, the
Applicable Margin shall be determined by the lower of such two (2) Credit
Ratings, at least one of which shall be an Investment Grade Rating. In the event
the Borrower receives more than two (2) Credit Ratings and such Credit Ratings
are not equivalent, the Applicable Margin shall be determined by the lower of
the two highest ratings; provided that each of said two (2) highest ratings
shall be Investment Grade Ratings and at least one of which shall be an
Investment Grade Rating from S&P or Xxxxx'x.
Range of Applicable
the Borrower's Applicable Margin for
Credit Rating Margin for Euro Base Rate
(S&P/Xxxxx'x Dollar Loans Loans
or other Ratings) (% per annum) (% per annum)
----------------- ------------- -------------
A-/A3 or their equivalent or higher 0.60 0
BBB+/Baa1 or their equivalent 0.625 0
BBB/Baa2 or their equivalent 0.70 0
BBB-/Baa3 or their equivalent 0.90 0
Below BBB-/Baa3 or their
equivalent or unrated 1.20 0
The Administrative Agent shall notify the Banks in writing promptly after it
obtains knowledge of any change in the Borrower's Credit Rating which shall
effect a change in the Applicable Margin.
"ARRANGERS" means X.X. Xxxxxx Securities Inc. and Citigroup Global
Markets Inc., each appointed pursuant to the terms of Article XII of this
Agreement.
-3-
"ASSIGNMENT AND ACCEPTANCE" means an Assignment and Acceptance in
substantially the form of Exhibit A attached hereto and made a part hereof (with
blanks appropriately completed) delivered to the Administrative Agent in
connection with an assignment of a Lender's interest under this Agreement in
accordance with the provisions of Section 14.1.
"AUTHORIZED FINANCIAL OFFICER" means a chief executive officer,
president, chief financial officer, treasurer or other qualified senior officer
acceptable to the Administrative Agent.
"BASE RATE" means, for any period, a fluctuating interest rate per annum
as shall be in effect from time to time, which rate per annum shall at all times
be equal to the higher of:
(i) the rate of interest announced publicly by JPMorgan in
New York, New York from time to time, as JPMorgan's prime rate; and
(ii) the sum of (A) one-half of one percent (0.50%) per annum
PLUS (B) the Federal Funds Rate in effect from time to time during
such period.
Any change in the Base Rate shall result in a corresponding change on the same
day in the rate of interest accruing from and after such day on the unpaid
balance of any Base Rate Loan.
"BASE RATE LOAN" means (i) a Committed Loan which bears interest at a
rate determined by reference to the Base Rate and the Applicable Margin as
provided in Section 5.1(a), (ii) an overdue amount which was a Base Rate Loan
immediately before it became due or (iii) for purposes of Section 5.2, any Loan
which bears interest at a rate determined by reference to the Base Rate.
"BENEFIT PLAN" means an employee benefit plan defined in Section 3(3) of
ERISA in respect of which the Borrower or any ERISA Affiliate (i) is, or within
the immediately preceding six (6) years was, an "employer" as defined in Section
3(5) of ERISA or (ii) has assumed or is otherwise subject to any liability.
"BORROWER" means Reckson.
"BORROWER NOTES" has the meaning set forth in Section 4.3(a).
"BORROWER PARTNERSHIP AGREEMENT" means the Reckson Partnership Agreement
as such agreement may be amended, restated, modified or supplemented from time
to time with the consent of the Agents or as permitted under Section 10.9.
"BORROWING" means a borrowing consisting of Loans of the same type made,
continued or converted on the same day.
"BUDGETED CONSTRUCTION COST" means, with respect to Property on which
vertical construction of Improvements (including redevelopments consisting of or
described as vacant buildings, but excluding TI Work and excluding work prior to
erection of the structure of the building) has commenced and is proceeding to
completion in the ordinary course but has not yet been completed (as such
completion shall be evidenced by a temporary or permanent certificate of
occupancy permitting use of such Property by the general public), the aggregate
full-budgeted costs of construction of such Improvements (including land
acquisition costs and other soft costs
-4-
and TI Work relating to such Property, in accordance with GAAP); provided that
Budgeted Construction Cost shall exclude build-to-suit Projects that are
seventy-five percent (75%) pre-leased or Projects which are less than
seventy-five percent (75%) pre-leased but have a pro-forma yield of ten percent
(10%) or more, based upon executed leases and the cost of acquisition plus the
estimated cost to complete the same, which estimated cost to complete shall be
determined in a manner reasonably acceptable to the Administrative Agent and the
Syndication Agent.
"BUSINESS DAY" means a day, in the applicable local time, which is not a
Saturday or Sunday or a legal holiday and on which banks are not required or
permitted by law or other governmental action to close (i) in New York, New York
and (ii) in the case of Eurodollar Rate Loans, in London, England and (iii) in
the case of Letter of Credit transactions for a particular Lender, in the place
where its office for issuance or administration of the pertinent Letter of
Credit is located.
"CAPITAL EXPENDITURE VALUATION RESERVE AMOUNTS" means the sum of (a) an
amount per annum equal to $0.40 multiplied by the number of square feet for
office properties (other than New York City Assets) owned or ground leased,
directly or indirectly, by any of the Consolidated Businesses or Joint Ventures;
(b) an amount per annum equal to $0.15 multiplied by the number of square feet
for industrial properties owned or ground leased, directly or indirectly, by any
of the Consolidated Businesses or Joint Ventures; and (c) an amount per annum
equal to $0.50 multiplied by the number of square feet for New York City Assets.
"CAPITAL EXPENDITURE COVERAGE RESERVE AMOUNTS" means the sum of (a) an
amount per annum equal to $1.25 multiplied by the number of square feet for
office properties (other than New York City Assets) owned or ground leased,
directly or indirectly, by any of the Consolidated Businesses or Joint Ventures;
(b) an amount per annum equal to $0.40 multiplied by the number of square feet
for industrial properties owned or ground leased, directly or indirectly, by any
of the Consolidated Businesses or Joint Ventures; and (c) an amount per annum
equal to $1.75 multiplied by the number of square feet for New York City Assets.
"CAPITAL LEASE" means any lease of any property (whether real, personal
or mixed) by a Person as lessee which, in conformity with GAAP, is accounted for
as a capital lease on the balance sheet of that Person.
"CAPITAL STOCK" means, with respect to any Person, any capital stock of
such Person, regardless of class or designation, and all warrants, options,
purchase rights, conversion or exchange rights, voting rights, calls or claims
of any character with respect thereto.
"CASH AND CASH EQUIVALENTS" means unrestricted (i) cash, (ii) marketable
direct obligations issued or unconditionally guaranteed by the United States
government and backed by the full faith and credit of the United States
government; and (iii) domestic and Eurodollar certificates of deposit and time
deposits, bankers' acceptances and floating rate certificates of deposit issued
by any commercial bank organized under the laws of the United States, any state
thereof, the District of Columbia, any foreign bank, or its branches or agencies
(fully protected against currency fluctuations), which, at the time of
acquisition, are rated A-1 (or better) by S&P or P-1 (or better) by Xxxxx'x
provided that the maturities of such Cash and Cash Equivalents shall not exceed
one year.
-5-
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. xx.xx. 9601 et seq., any amendments
thereto, any successor statutes, and any regulations or guidelines promulgated
thereunder.
"CLAIM" means any claim or demand, by any Person, of whatsoever kind or
nature for any alleged Liabilities and Costs, whether based in contract, tort,
implied or express warranty, strict liability, criminal or civil statute,
Permit, ordinance or regulation, common law or otherwise.
"CLOSING DATE" means August 6, 2004.
"COMBINED EQUITY VALUE" means Total Value, less Total Outstanding
Indebtedness.
"COMMERCIAL LETTER OF CREDIT" means any documentary letter of credit
issued by an Issuing Bank pursuant to Section 3.1 for the account of the
Borrower which is drawable upon presentation of documents evidencing the sale or
shipment of goods purchased by the Borrower in the ordinary course of its
business.
"COMMISSION" means the Securities and Exchange Commission and any Person
succeeding to the functions thereof.
"COMMITTED LOAN" means a loan made by a Lender pursuant to Section 2.1;
provided, that if any such loan or loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Conversion/Continuation, the term "Committed
Loan" shall refer to the combined principal amount resulting from such
combination or to each of the separate principal amounts resulting from such
subdivision, as the case may be.
"COMPANY" means Reckson Associates Realty Corp., a Maryland corporation.
"COMPETITIVE BID LENDER" means, as to each Competitive Bid Loan, the
Lender funding such Competitive Bid Loan.
"COMPETITIVE BID LENDING OFFICE" means, as to each Lender, its Domestic
Lending Office or such other office, branch or affiliate of such Lender as it
may hereafter designate as its Competitive Bid Lending Office by notice to the
Borrower and the Agent.
"COMPETITIVE BID LOAN" means a loan made or to be made by a Lender
pursuant to a LIBOR Auction (including such a loan bearing interest at the Base
Rate pursuant to Section 5.2).
"COMPETITIVE BID MARGIN" has the meaning set forth in Section
2.2(d)(ii)(C).
"COMPETITIVE BID QUOTE" means an offer by a Lender to make a Competitive
Bid Loan in accordance with Section 2.2(d).
"COMPETITIVE BID QUOTE REQUEST" has the meaning set forth in Section
2.2(a).
"COMPLIANCE CERTIFICATE" has the meaning set forth in Section 8.2(b).
"CONSOLIDATED" means consolidated, in accordance with GAAP, but
excluding the effects of consolidation under Interpretation No. 46 of the
Financial Accounting Standards Board.
-6-
"CONSOLIDATED BUSINESSES" means the Company, the Borrower, Reckson FS
Limited Partnership, Metropolitan, MOP and their wholly-owned Subsidiaries.
"CONSTRUCTION ASSET COST" means, with respect to Property on which
vertical construction of Improvements (including redevelopments consisting of or
described as vacant buildings, but excluding TI Work and excluding work prior to
erection of the structure of the building) has commenced and is proceeding to
completion in the ordinary course but has not yet been completed (as such
completion shall be evidenced by a temporary or permanent certificate of
occupancy permitting use of such Property by the general public), the aggregate
sums incurred and paid on the construction of such Improvements (including land
acquisition costs and other soft costs and TI Work relating to such Property, in
accordance with GAAP). Any such Property shall continue to be valued (for
financial covenant compliance purposes) at its Construction Asset Cost until the
end of four (4) consecutive quarters following such completion (as such
completion shall be evidenced by a temporary or permanent certificate of
occupancy permitting use of such Property by the general public).
"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, radioactive materials, asbestos containing materials (in any
form or condition), polychlorinated biphenyls (PCBs), or any constituent of any
such substance or waste, and includes, but is not limited to, these terms as
defined in federal, state or local laws or regulations.
"CONTINGENT OBLIGATION" as to any Person means, without duplication, (i)
any contingent obligation of such Person required to be shown on such Person's
balance sheet in accordance with GAAP, and (ii) any obligation required to be
disclosed in the footnotes to such Person's financial statements in accordance
with GAAP, which obligation guarantees partially or in whole any non-recourse
Indebtedness, lease, dividend or other obligation, exclusive of contractual
indemnities (including, without limitation, any Non-Recourse Carve-Outs, any
indemnity or price-adjustment provision relating to the purchase or sale of
securities or other assets) and guarantees of non-monetary obligations (other
than guarantees of completion) which have not yet been called on or quantified,
of such Person or of any other Person. Notwithstanding the foregoing, any
litigation required to be disclosed in the footnotes to such Person's financial
statements in accordance with GAAP shall not be included as a "Contingent
Obligation" unless the same shall have been reserved for in accordance with
GAAP. The amount of any Contingent Obligation described in clause (ii) shall be
deemed to be (a) with respect to a guaranty of interest or interest and
principal, or operating income guaranty, the sum of all payments required to be
made thereunder (which in the case of an operating income guaranty shall be
deemed to be equal to the debt service for the note secured thereby), calculated
at the interest rate applicable to such Indebtedness, through (i) in the case of
an interest or interest and principal guaranty, the stated date of maturity of
the obligation (and commencing on the date interest could first be payable
thereunder), or (ii) in the case of an operating income guaranty, the date
through which such guaranty will remain in effect, and (b) with respect to all
guarantees not covered by the preceding clause (a) an amount equal to the stated
or determinable amount of the primary obligation in respect of which such
guaranty is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as recorded on the balance sheet and on the footnotes to the
most recent financial statements of the Borrower required to be delivered
pursuant hereto; PROVIDED THAT in no event shall the amount of Contingent
Obligations with respect to any guaranties relating to a loan exceed the
principal amount of such loan. Notwithstanding anything contained herein to the
contrary, guarantees of completion shall not be deemed to be Contingent
Obligations unless and until a claim for
-7-
payment has been made thereunder, at which time any such guaranty of completion
shall be deemed to be a Contingent Obligation in an amount equal to any such
claim. Subject to the preceding sentence, (i) in the case of a joint and several
guaranty given by such Person and another Person (but only to the extent such
guaranty is recourse, directly or indirectly to the Borrower), the amount of the
guaranty shall be deemed to be 100% thereof unless and only to the extent that
(X) such other Person has delivered Cash or Cash Equivalents to secure all or
any part of such Person's guaranteed obligations or (Y) such other Person holds
an Investment Grade Rating from either Xxxxx'x or S&P, and (ii) in the case of a
guaranty (whether or not joint and several) of an obligation otherwise
constituting Debt of such Person, the amount of such guaranty shall be deemed to
be only that amount in excess of the amount of the obligation constituting
Indebtedness of such Person. Notwithstanding anything contained herein to the
contrary, "Contingent Obligations" shall not be deemed to include guarantees of
loan commitments or of construction loans to the extent the same have not been
drawn.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any provision
of any Securities issued by that Person or any indenture, mortgage, deed of
trust, security agreement, pledge agreement, guaranty, contract, undertaking,
agreement or instrument to which that Person is a party or by which it or any of
its properties is bound, or to which it or any of its properties is subject.
"CREDIT RATING" means the ratings assigned by not less than two of the
Rating Agencies (at least one of which shall be S&P or Xxxxx'x) to the
Borrower's senior long-term unsecured indebtedness. The decision on which two,
or in certain cases three, Rating Agencies to use shall be made by the Borrower
so long as one of such Rating Agencies shall be Xxxxx'x or S&P.
"CURE LOANS" has the meaning set forth in Section 4.2(b)(v)(C).
"CUSTOMARY PERMITTED LIENS" means
(i) Liens (other than Environmental Liens and Liens in favor
of the PBGC) with respect to the payment of taxes, assessments or
governmental charges or levies in all cases which are not yet due or
which are being contested in good faith by appropriate proceedings in
accordance with Section 9.4, and with respect to which adequate reserves
or other appropriate provisions are being maintained in accordance with
GAAP;
(ii) statutory and common law Liens of landlords against any
Property of the Borrower or any of its Subsidiaries;
(iii) Liens against any Property of the Borrower or any of its
Subsidiaries in favor of suppliers, mechanics, carriers, materialmen,
warehousemen or workmen and other Liens against any Property of the
Borrower or any of its Subsidiaries imposed by law created in the
ordinary course of business for amounts which could not reasonably be
expected to result in a Material Adverse Effect;
(iv) Liens (other than any Lien in favor of the PBGC)
incurred or deposits made in the ordinary course of business in
connection with worker's compensation, unemployment insurance or other
types of social security benefits or to secure the performance of bids,
tenders, sales, contracts (other than for the repayment of borrowed
money), surety, appeal and performance bonds; PROVIDED that (A) all such
Liens do not in the aggregate materially detract from the value of the
Borrower's or such Subsidiary's
-8-
assets or Property or materially impair the use thereof in the operation
of their respective businesses, and (B) all Liens of attachment or
judgment and Liens securing bonds to stay judgments or in connection
with appeals which do not secure at any time an aggregate amount of
recourse Indebtedness exceeding $10,000,000;
(v) Liens against any Property of the Borrower or any
Subsidiary of the Borrower arising with respect to zoning restrictions,
easements, licenses, reservations, covenants, rights-of-way, utility
easements, building restrictions and other similar charges or
encumbrances on the use of Real Property which do not materially
interfere with the ordinary conduct of the business of the Borrower or
any of its Subsidiaries;
(vi) leases or subleases granted to other Persons not
materially interfering with the conduct of the business of the Borrower
and its Subsidiaries taken as a whole;
(vii) Liens placed upon equipment or machinery used in the
ordinary course of business of the Borrower or any of its Subsidiaries
at the time of acquisition thereof by the Borrower or any such
Subsidiary or within 180 days thereafter to secure Indebtedness incurred
to pay all or a portion of the purchase price thereof, provided that the
Lien encumbering the equipment or machinery so acquired does not
encumber any other asset of the Borrower or such Subsidiary;
(viii) customary restrictions imposed by licensors of software
or trademarks on users thereof;
(ix) interests of licensees and sublicensees in any
trademarks or other intellectual property license or sublicense by the
Borrower or any of its Subsidiaries; and
(x) Environmental Liens less than $5,000,000, which are
being contested in good faith by appropriate proceedings.
"DESIGNATED BANK" means a special purpose corporation that (i) shall
have become a party to this Agreement pursuant to Section 14.1(f), and (ii) is
not otherwise a Lender.
"DESIGNATED BANK NOTES" means promissory notes of the Borrower,
substantially in the form of Exhibit B-2 hereto, evidencing the obligation of
the Borrower to repay Competitive Bid Loans made by Designated Banks, as the
same may be amended, supplemented, modified or restated from time to time, and
"Designated Bank Note" means any one of such promissory notes issued under
Section 14.1(f).
"DESIGNATED LENDER" has the meaning set forth in Section 13.4.
"DESIGNATING LENDER" shall have the meaning set forth in Section 14.1(f)
hereof.
"DESIGNATION AGREEMENT" means a designation agreement in substantially
the form of Exhibit K attached hereto, entered into by a Lender and a Designated
Bank and accepted by the Agent.
"DOCUMENTATION AGENTS" means Citicorp North America, Inc., Wachovia
Bank, National Association and Deutsche Bank Trust Company Americas, Inc., in
their capacities as co-documentation agents for the Lenders.
-9-
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"DOLLARS" AND "$" mean the lawful money of the United States.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, such
Lender's office, located in the United States, specified as the "Domestic
Lending Office" under its name on SCHEDULE LC hereto or as set forth in the
Assignment and Acceptance by which it became a Lender or such other United
States office of such Lender as it may from time to time specify by written
notice to the Borrower and the Administrative Agent.
"ELIGIBLE ASSIGNEE" means (i) a Lender or a Lender Affiliate; (ii) a
commercial bank having total assets in excess of $5,000,000,000; (iii) the
central bank of any country which is a member of the organization for Economic
Cooperation and Development having total assets in excess of $10,000,000,000; or
(iv) a finance company or other financial institution reasonably acceptable to
the Administrative Agent, which is regularly engaged in making, purchasing or
investing in loans and having total assets in excess of $1,000,000,000 or is
otherwise reasonably acceptable to the Administrative Agent.
"ELIGIBLE CASH 1031 PROCEEDS" means the cash proceeds held by a
"qualified intermediary" from the sale of Real Property, which proceeds are
intended to be used by such qualified intermediary to acquire one or more
"replacement properties" that are of "like-kind" to such Real Property in an
exchange that qualifies as a tax-free exchange under Section 1031 of the
Internal Revenue Code, and no portion of which proceeds the Borrower, the
Company or any Affiliate has the right to receive, pledge, borrow or otherwise
obtain the benefits of until such time as provided under the applicable
"exchange agreement" (as such terms in quotations are defined in Treasury
Regulations Section 1.1031(k)-1(g)(4) (the "REGULATIONS")) or until such
exchange is terminated. Upon the cash proceeds no longer being held by such
qualified intermediary pursuant to the Regulations or otherwise no longer
qualifying under the Regulations for like-kind exchange treatment, such proceeds
shall cease being Eligible Cash 1031 Proceeds.
"ELIGIBLE ENCUMBERED PROPERTIES" means the Projects and New York City
Assets listed on SCHEDULE EEP, so long as (a) such Projects and New York City
Assets are owned or ground-leased by the Borrower or a Guarantor and would
otherwise satisfy the requirements of an Unencumbered Project or an Unencumbered
New York City Asset, except that such Project or New York City Asset is subject
to a lien which is not a Customary Permitted Lien, (b) the Indebtedness secured
by the Lien on such Project or New York City Asset that exists on the Closing
Date is not (x) amended or modified in any manner that would increase the
principal amount or postpone the maturity date thereof or (y) refinanced or
replaced with new Indebtedness having a principal amount greater than or a
maturity date later than the Indebtedness being refinanced or replaced, (c) the
Indebtedness secured by the Lien on such Project or New York City Asset has not
been accelerated, unless such acceleration is rescinded and (d) no default or
event of default under any mortgage or other loan document relating to the
Indebtedness secured by the Lien on such Project or New York City Asset has
occurred and is continuing, which default or event of default then subjects such
Indebtedness to acceleration or then permits such Indebtedness to be accelerated
under any such mortgage or other loan document, unless such default or event of
default is cured or waived.
-10-
"ELIGIBLE GROUND LEASE" means a ground lease that (a) has a minimum
remaining term of twenty-five (25) years, including tenant controlled options,
as of any date of determination, (b) has customary notice rights, default cure
rights, new lease rights in the event of bankruptcy of the tenant and other
customary provisions for the benefit of a leasehold mortgagee or has equivalent
protection for a leasehold permanent mortgagee by a subordination to such
leasehold permanent mortgagee of the landlord's fee interest, and (c) is
otherwise acceptable for non-recourse leasehold mortgage financing under
customary lending requirements. The Eligible Ground Leases as of the date of
this Agreement are listed on SCHEDULE EG.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to any federal, state or local law,
ordinance, rule, regulation, Permit, license or other binding determination of
any Governmental Authority relating to, imposing liability or standards
concerning, or otherwise addressing the environment, health and/or safety,
including, but not limited to the Clean Air Act, the Clean Water Act, CERCLA,
RCRA, any so-called "Superfund" or "Superlien" law, the Toxic Substances Control
Act and OSHA, and public health codes, each as from time to time in effect.
"ENVIRONMENTAL LIEN" means a Lien in favor of any Governmental Authority
for any (i) liabilities under any Environmental, Health or Safety Requirement of
Law, or (ii) damages arising from, or costs incurred by such Governmental
Authority in response to, a Release or threatened Release of a Contaminant into
the environment.
"ENVIRONMENTAL PROPERTY TRANSFER ACT" means any applicable Requirement
of Law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the transfer, sale, lease or closure of any Property or
deed or title for any Property for environmental reasons, including, but not
limited to, any so-called "Environmental Cleanup Responsibility Act" or
"Responsible Property Transfer Act".
"EQUIPMENT" means equipment used in connection with the maintenance of
Projects and Properties.
"ERISA" means the Employee Retirement Income Security Act of 1974, 29
U.S.C. xx.xx. 1000 ET SEQ., any amendments thereto, any successor statutes, and
any regulations or guidelines promulgated thereunder.
"ERISA AFFILIATE" means (i) any corporation which is a member of the
same controlled group of corporations (within the meaning of Section 414 (b) of
the Internal Revenue Code) as the Borrower; (ii) a partnership or other trade or
business (whether or not incorporated) which is under common control (within the
meaning of Section 414 (c) of the Internal Revenue Code) with the Borrower; and
(iii) a member of the same affiliated service group (within the meaning of
Section 414 (m) of the Internal Revenue Code) as the Borrower, any corporation
described in clause (i) above or any partnership or trade or business described
in clause (ii) above.
"ERISA TERMINATION EVENT" means (i) a Reportable Event with respect to
any Benefit Plan or Multiemployer Plan; (ii) the withdrawal of the Borrower or
any ERISA Affiliate from a Benefit Plan during a plan year in which the Borrower
or such ERISA Affiliate was a "substantial employer" as defined in Section
4001(a)(2) of ERISA or the cessation of operations which results in the
termination of employment of 20% of Benefit Plan participants who are employees
of the Borrower or any ERISA Affiliate; (iii) the imposition of an obligation on
the Borrower or any ERISA Affiliate under Section 4041 of ERISA to provide
affected parties written notice of intent
-11-
to terminate a Benefit Plan in a distress termination described in Section
4041(c) of ERISA; (iv) the institution by the PBGC of proceedings to terminate a
Benefit Plan; (v) any event or condition which might constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Benefit Plan; or (vi) the partial or complete withdrawal of the
Borrower or any ERISA Affiliate from a Multiemployer Plan.
"EURODOLLAR AFFILIATE" means, with respect to each Lender, the Affiliate
of such Lender (if any) set forth below such Lender's name under the heading
"Eurodollar Affiliate" on SCHEDULE LC hereto or as set forth in the Assignment
and Acceptance by which it became a Lender or such Lender Affiliate as it may
from time to time specify by written notice to the Borrower and the
Administrative Agent.
"EURODOLLAR INTEREST PERIOD" has the meaning set forth in Section
5.2(b).
"EURODOLLAR INTEREST RATE DETERMINATION DATE" has the meaning set forth
in Section 5.2(c).
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender, such
Lender's office (if any) specified as the "Eurodollar Lending Office" under its
name on SCHEDULE LC hereto or as set forth in the Assignment and Acceptance by
which it became a Lender or such other office or offices of such Lender as it
may from time to time specify by written notice to the Borrower and the
Administrative Agent.
"EURODOLLAR RATE" means, for any Eurodollar Interest Period with respect
to any Eurodollar Rate Loan or a Competitive Bid Loan, an interest rate per
annum equal to the rate per annum obtained by multiplying (a) a rate per annum
equal to the rate for Dollar deposits with maturities comparable to such
Eurodollar Interest Period which appears on Telerate Page 3750 as of 11:00 a.m.,
London time, two (2) Business Days prior to the commencement of such Eurodollar
Interest Period, PROVIDED, HOWEVER, that if such rate does not appear on
Telerate Page 3750, the "Eurodollar Rate" applicable to a particular Eurodollar
Interest Period shall mean a rate per annum equal to the rate at which Dollar
deposits in an amount approximately equal to the principal balance (or the
portion thereof which will bear interest at a rate determined by reference to
the Eurodollar Rate during the Eurodollar Interest Period to which such
Eurodollar Rate is applicable in accordance with the provisions hereof), and
with maturities comparable to the last day of the Eurodollar Interest Period
with respect to which such Eurodollar Rate is applicable, are offered in
immediately available funds in the London Interbank Market to the London office
of JPMorgan by leading banks in the Eurodollar market at 11:00 a.m., London
time, two (2) Business Days prior to the commencement of the Eurodollar Interest
Period to which such Eurodollar Rate is applicable, by (b) a fraction (expressed
as a decimal) the numerator of which shall be the number one and the denominator
of which shall be the number one MINUS the Eurodollar Reserve Percentage for
each day during such Eurodollar Interest Period.
"EURODOLLAR RATE LOAN" means (i) a Committed Loan which bears interest
at a rate determined by reference to the Eurodollar Rate and the Applicable
Margin for Eurodollar Rate Loans, as provided in Section 5.1(a) or (ii) an
overdue amount which was a Eurodollar Rate Loan immediately before it became due
or (iii) for purpose of Section 5.2, any Loan which bears interest at a rate
determined by reference to the Eurodollar Rate.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day, that percentage
which is in effect on such day, as prescribed by the Federal Reserve Board for
determining the maximum reserve
-12-
requirement (including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve System in
New York, New York with deposits exceeding five billion Dollars in respect of
"Eurocurrency Liabilities" (or in respect of any other category of liabilities
which includes deposits by reference to which the interest rate on Eurodollar
Rate Loans is determined or any category of extensions of credit or other assets
which includes loans by a non United States office of any bank to United States
residents).
"EVENT OF DEFAULT" means any of the occurrences set forth in Section
11.1 after the expiration of any applicable grace period and the giving of any
applicable notice, in each case as expressly provided in Section 11.1.
"EXISTING PERMITTED LIENS" means each of the Liens set forth on SCHEDULE
1.1.1.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day in New York, New York, for the next preceding
Business Day) in New York, New York by the Federal Reserve Bank of New York, or
if such rate is not so published for any day which is a Business Day in New
York, New York, the average of the quotations for such day on such transactions
by the Reference Bank, as determined by the Administrative Agent.
"FEDERAL RESERVE BOARD" means the Board of Governors of the Federal
Reserve System or any Governmental Authority succeeding to its functions.
"FFO" means "funds from operations" as defined in accordance with
resolutions adopted by the Board of Governors of the National Association of
Real Estate Investment Trusts as in effect from time to time; provided that FFO
shall (i) be based on net income after payment of distributions to holders of
preferred partnership units in the Borrower and distributions necessary to pay
holders of preferred stock of the Company and (ii) at all times exclude (a)
charges for impairment losses from property sales and (b) non-recurring charges.
"FINANCIAL STATEMENTS" means (i) quarterly and annual consolidated
statements of income and retained earnings, statements of cash flow, and balance
sheets, prepared in accordance with GAAP, consistently applied, and (ii) such
other financial statements of the Borrower, the Company and the other
Consolidated Businesses or Joint Ventures that the Company shall routinely and
regularly prepare and that the Arrangers or the Requisite Lenders may from time
to time reasonably request.
"FISCAL YEAR" means the fiscal year of the Company and the Borrower for
accounting and tax purposes, which shall be the 12-month period ending on
December 31 of each calendar year.
"FITCH" means Fitch Ratings, a division of Fitch, Inc. or any successor
thereto.
"FIXED CHARGES" means, with respect to any fiscal period, the sum of (a)
Total Interest Expense, (b) the aggregate of all scheduled principal payments on
Total Outstanding Indebtedness according to GAAP made or required to be made
during such fiscal period for the Consolidated Businesses and Joint Ventures
(but excluding balloon payments of principal due upon the stated maturity of an
Indebtedness), PROVIDED that only the Consolidated Businesses' pro
-13-
rata share of the Joint Ventures' scheduled principal payments are to be
included, and (c) the aggregate of all dividends or distributions payable
(whether paid or accrued) on all preferred stock and other preferred securities
or preferential arrangements of the Consolidated Businesses, including, without
limitation, preferred distributions payable to holders of preferred OP Units. As
used herein, "OP Units" means limited partnership interests in Reckson.
"FUNDING DATE" means, with respect to any Loan, the date of funding of
such Loan.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the American Institute of Certified Public
Accountants' Accounting Principles Board and Financial Accounting Standards
Board or in such other statements by such other entity as may be in general use
by significant segments of the accounting profession as in effect on the Closing
Date (unless otherwise specified herein as in effect on another date or dates).
"GENERAL PARTNER" means the Company and any successor general partner(s)
of the Borrower.
"GOVERNMENTAL APPROVAL" means all right, title and interest in any
existing or future certificates, licenses, permits, variances, authorizations
and approvals issued by any Governmental Authority having jurisdiction with
respect to any Project.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GUARANTIES" means, collectively, the Unconditional Guaranties of
Payment, made by each of the Company, Reckson FS Limited Partnership and the
other Guarantors for the benefit of the Lenders, in substantially the form of
Exhibit L hereto.
"GUARANTORS" means, collectively, the Company, Reckson FS Limited
Partnership, 000 Xxxxxxxx Xxxxx XXX, Xxxxxxxxxxxx, XXX, 275 Broadhollow LLC,
0000 Xxxxxxxxxx Xxxxxxxxx LLC, and any other Affiliate of the Borrower executing
a Guaranty. Any Guarantor that is the owner or ground lessor of an Unencumbered
Project or Unencumbered New York City Asset shall be a wholly-owned Subsidiary
of the Borrower.
"IMPROVEMENTS" means all buildings, fixtures, structures, parking areas,
landscaping and all other improvements whether existing now or hereafter
constructed, together with all machinery and mechanical, electrical, HVAC and
plumbing systems presently located thereon and used in the operation thereof,
excluding (a) any such items owned by utility service providers, (b) any such
items owned by tenants or other third-parties unaffiliated with the Borrower and
(c) any items of personal property.
"INDEBTEDNESS", as applied to any Person, means, at any time, without
duplication, (a) all indebtedness, obligations or other liabilities of such
Person (whether consolidated or representing the proportionate interest in any
other Person) (i) for borrowed money (including construction loans) or evidenced
by debt securities, debentures, acceptances, notes or other similar instruments,
and any accrued interest and fees relating thereto, (ii) under profit payment
agreements or in respect of obligations to redeem, repurchase or exchange any
Securities of such Person or to pay dividends in respect of any preferred stock
(but only to the extent that such Person shall be contractually obligated to pay
the same), (iii) with respect to letters of credit,
-14-
bankers' acceptances or similar facilities issued for such Person's account or
for which such Person otherwise has reimbursement obligations, (iv) to pay the
deferred purchase price of property or services, except accounts payable and
accrued expenses arising in the ordinary course of business, (v) in respect of
Capital Leases or so-called synthetic leases, (vi) which are Contingent
Obligations or (vii) under indemnities but only at such time as a claim shall
have been made thereunder; (b) all indebtedness, obligations or other
liabilities of such Person or others secured by a Lien on any property of such
Person, whether or not such indebtedness, obligations or liabilities are assumed
by such Person, all as of such time, but in a case of obligations of others not
assumed by such Person an amount not in excess of the value of such property;
(c) all indebtedness, obligations or other liabilities of such Person in respect
of interest rate contracts, derivatives contracts and foreign exchange
contracts, net of liabilities owed to such Person by the counterparties thereon;
(d) all preferred stock and preferred equity interests subject (upon the
occurrence of any contingency or otherwise) to mandatory redemption in cash by
the holder of such preferred stock or equity interest; (e) all preferred stock
and preferred equity interests in any Consolidated Business (other than the
Company and the Borrower) which has not provided a Guaranty of the Obligations;
and (f) all Contractual Obligations with respect to any of the foregoing.
"INDEMNIFIED MATTERS" has the meaning set forth in Section 14.3.
"INDEMNITEES" has the meaning set forth in Section 14.3.
"INITIAL FUNDING DATE" means the date on or after the Closing Date on
which all of the conditions described in Section 6.1 have been satisfied (or
waived) in a manner satisfactory to the Administrative Agent and the Lenders and
on which the initial Loans under this Agreement are made by the Lenders to the
Borrower.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, any successor
statute and any regulations or guidelines promulgated thereunder.
"INVESTMENT" means, with respect to any Person, (i) any purchase or
other acquisition by that Person of Securities, or of a beneficial interest in
Securities, issued by any other Person, (ii) any purchase by that Person of all
or substantially all of the assets of a business conducted by another Person,
(iii) any loan, advance (other than deposits with financial institutions
available for withdrawal on demand, prepaid expenses, accounts receivable,
advances to employees and similar items made or incurred in the ordinary course
of business) or capital contribution by that Person to any other Person,
including all Indebtedness to such Person arising from a sale of property by
such Person other than in the ordinary course of its business, and (iv) any
purchase or other acquisition by that Person of Real Property, whether directly
or indirectly. The amount of any Investment shall be the original cost of such
Investment (together with all capital improvement costs thereafter paid or
incurred with respect to such Investment in accordance with GAAP), without any
adjustments for increases or decreases in value or write-ups, write-downs or
write-offs with respect to such Investment.
"INVESTMENT FUNDS" means (i) Reckson Strategic Venture Partners LLC, and
(ii) a Person in which FrontLine Capital Group or a Subsidiary thereof is a
general partner or a managing member, in the case of a partnership or limited
liability company, and which, in the case of a corporation, has the right to
elect a majority of the board of directors.
-15-
"INVESTMENT GRADE RATING" means a rating for a Person's senior long-term
unsecured debt of BBB- or better from S&P, and a rating of Baa3 or better from
Moody's or a rating equivalent to the foregoing from Fitch or another Rating
Agency.
"INVITATION FOR COMPETITIVE BID QUOTES" means an Invitation for
Competitive Bid Quotes substantially in the form of EXHIBIT I hereto.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"ISSUING BANK" means JPMorgan, or with the consent of the Arrangers (not
to be unreasonably withheld) and the Borrower, another Lender.
"JOINT VENTURES" means any interests in partnerships, joint ventures,
limited liability companies, trusts, associations and corporations held or owned
directly or indirectly by the Borrower and/or the Company which are not
wholly-owned by the Borrower and/or the Company (other than Investment Funds or
any affiliated or unaffiliated operating company that the Borrower includes
under clause (vii) of the definition of Total Value, subject to the limitation
of $100,000,000 investments (valued at the lower of cost or market in accordance
with GAAP)).
"JOINT VENTURE UNENCUMBERED VALUE" means the portion of Total
Unencumbered Value from Joint Ventures attributable to Unencumbered Projects and
Unencumbered New York City Assets.
"JPMORGAN" means JPMorgan Chase Bank.
"KNOWLEDGE" with reference to the Company, the Borrower or any
Subsidiary of any of them, means the actual knowledge of such Person after
reasonable inquiry (which reasonable inquiry shall include, without limitation,
interviewing and questioning such other Persons as the Company, the Borrower or
such Subsidiary, as applicable, deems reasonably necessary).
"LAND/DEVELOPMENT UNENCUMBERED VALUE" means the portion of Total
Unencumbered Value which is attributable to Unencumbered assets consisting of
land and Projects under development.
"LEASE" means a lease, license, concession agreement or other agreement
providing for the use or occupancy of any portion of any Project, including all
amendments, supplements, modifications and assignments thereof and all side
letters or side agreements relating thereto.
"LENDER" means (i) each financial institution a signatory hereto as a
Lender as of the Closing Date and, at any other given time, each financial
institution which is a party hereto as Lender, whether as a signatory hereto or
pursuant to an Assignment and Acceptance, and (ii) each Designated Bank;
PROVIDED, HOWEVER, that the term "Lender" shall exclude each Designated Bank
when used in reference to a Committed Loan, the Revolving Credit Commitments or
terms relating to the Committed Loans and the Revolving Credit Commitments and
shall further exclude each Designated Bank for all other purposes hereunder
except that any Designated Bank which funds a Competitive Bid Loan shall,
subject to Section 14.1(f), have the rights (including, without limitation, the
rights given to a Lender contained in Section 14.2 and otherwise in Article XIV)
and obligations of a Lender associated with holding such Competitive Bid Loan.
-16-
"LENDER AFFILIATE" means with respect to any Lender an Affiliate of such
Lender.
"LETTER OF CREDIT" means any Commercial Letter of Credit or Standby
Letter of Credit.
"LETTER OF CREDIT FEE" has the meaning set forth in Section 5.3(a).
"LETTER OF CREDIT OBLIGATIONS" means, at any particular time, the sum of
(i) all outstanding Reimbursement Obligations, and (ii) the aggregate undrawn
face amount of all outstanding Letters of Credit, and (iii) the aggregate face
amount of all Letters of Credit requested by the Borrower but not yet issued.
"LETTER OF CREDIT REIMBURSEMENT AGREEMENT" means, with respect to a
Letter of Credit, such form of application therefor and form of reimbursement
agreement therefor (whether in a single or several documents, taken together) as
an Issuing Bank may employ in the ordinary course of business for its own
account, with such modifications thereto as may be agreed upon by such Issuing
Bank and the Borrower and as are not materially adverse (in the judgment of such
Issuing Bank and the Administrative Agent) to the interests of the Lenders;
PROVIDED, HOWEVER, in the event of any conflict between the terms of any Letter
of Credit Reimbursement Agreement and this Agreement, the terms of this
Agreement shall control.
"LIABILITIES AND COSTS" means all liabilities, obligations,
responsibilities, losses, damages, personal injury, death, punitive damages,
economic damages, consequential damages, treble damages, intentional, willful or
wanton injury, damage or threat to the environment, natural resources or public
health or welfare, costs and expenses (including, without limitation, attorney,
expert and consulting fees and costs of investigation, feasibility or Remedial
Action studies), fines, penalties and monetary sanctions, interest, direct or
indirect, known or unknown, absolute or contingent, past, present or future.
"LIBOR AUCTION" means a solicitation of Competitive Bid Quotes setting
forth Competitive Bid Margins based on the Eurodollar Rate pursuant to Section
2.2.
"LIEN" means any mortgage, deed of trust, pledge, hypothecation,
assignment, conditional sale agreement, deposit arrangement, security interest,
encumbrance, lien (statutory or other and including, without limitation, any
Environmental Lien), preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever in respect of any
property of a Person, whether granted voluntarily or imposed by law, and
includes the interest of a lessor under a Capital Lease or under any financing
lease having substantially the same economic effect as any of the foregoing.
"LIMITED PARTNERS" means those Persons who from time to time are limited
partners of the Borrower; and "LIMITED PARTNER" means each of the Limited
Partners, individually.
"LOAN ACCOUNT" has the meaning set forth in Section 4.3(b).
"LOAN DOCUMENTS" means this Agreement, the Notes and the Guaranties.
"LOANS" means Committed Loans and Competitive Bid Loans.
"MANAGEMENT COMPANY" means, collectively (i) Reckson Management Group,
Inc., a Delaware corporation, RANY Management Group, Inc. and their respective
wholly-owned or
-17-
controlled Subsidiaries and (ii) such other property management companies
controlled (directly or indirectly) by the Company or the Borrower and which
property management companies manage properties owned by the Company, the
Borrower and its Subsidiaries and for which the Borrower has previously provided
the Administrative Agent with: (1) notice of such property management company,
(2) evidence reasonably satisfactory to the Administrative Agent that such
property management company is controlled (directly or indirectly) by the
Company or the Borrower, and (3) evidence reasonably satisfactory to the
Administrative Agent that such property management company manages properties
owned, in whole or in part by the Company or the Borrower or its Subsidiaries.
"MARGIN STOCK" means "margin stock" or "margin security" as such terms
are defined in Regulation U and Regulation X.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (i) the
financial condition or assets of the Company, the Borrower and their
Subsidiaries taken as a whole, (ii) the ability of the Borrower to perform its
material obligations under the Loan Documents, (iii) the ability of the
Guarantors to perform their material obligations under the Guaranties, or (iv)
the ability of the Lenders or the Administrative Agent to enforce any of the
Loan Documents.
"MAXIMUM REVOLVING CREDIT AMOUNT" means, at any particular time, the
Revolving Credit Commitments at such time.
"METROPOLITAN" means Metropolitan Partners, LLC, a Delaware limited
liability company, in which the Borrower currently owns 100% of the common
equity interests.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MOP" means Metropolitan Operating Partnership, L.P., a Delaware limited
partnership, and a Subsidiary of Metropolitan.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years
was, contributed to by either the Borrower or any ERISA Affiliate or in respect
of which the Borrower or any ERISA Affiliate has assumed any liability.
"NET CASH PROCEEDS" means all cash when and as received in connection
with the sale or refinancing of any asset, less reasonable costs and expenses,
repayment of secured indebtedness with respect to the applicable asset, and net
of an amount equal to taxable capital gains and real estate transfer taxes
payable in connection with any asset sale.
"NET INCOME" means, with respect to any Person, the net income of such
Person determined in accordance with GAAP.
"NET OFFERING PROCEEDS" means all cash or other assets received by the
Company or the Borrower as a result of the sale of common shares, preferred
shares, partnership interests, limited liability company interests, convertible
securities or other ownership or equity interests in the Company or the
Borrower, less customary costs, expenses and discounts of issuance paid by the
Company or the Borrower, as the case may be.
-00-
"XXX XXXX XXXX ASSET" means Real Property which is Class A office
property located in the borough of Manhattan, New York, New York and which is
owned or ground-leased by one of the Consolidated Businesses or Joint Ventures.
"NOI" means (x) net operating income determined in accordance with GAAP,
before gains or losses from extraordinary items relating to any Real Property,
plus (y) (i) any interest expense relating to such Real Property, (ii)
depreciation and amortization relating to such Real Property, and (iii) Property
Level G&A to the extent included in the calculation of net operating income,
less (z) (i) free rent and accrued rent with respect to tenants that are more
than 90 days in arrears in the payment of rent, and further adjusted to omit the
straight line treatment of rent, so as to account for rent on an accrual basis,
(ii) any interest income relating to such Real Property, and (iii) the greater
of Property Level G&A to the extent included in the calculation of net operating
income and an amount equal to 2% of gross revenues with respect to such Real
Property.
"NON PRO RATA LOAN" has the meaning set forth in Section 4.2(b)(v).
"NON-RECOURSE CARVE-OUTS" means exceptions to non-recourse obligations,
such as fraud, misappropriation, waste, environmental liabilities, improper
transfer and breach of restrictions on further financing and breach of single
purpose entity covenants, which are usual and customary in secured transactions
involving institutional lenders or securitized financings and recourse to single
purpose entities that are Consolidated Businesses which have no material assets
other than the Real Property or Properties which are the subject of the Secured
Indebtedness.
"NOTE" means the Borrower Notes and the Designated Lender Notes; "Notes"
means, collectively, all of such Notes outstanding at any given time.
"NOTICE OF BORROWING" means a Notice of Committed Borrowing or a Notice
of Competitive Bid Borrowing.
"NOTICE OF COMMITTED BORROWING" means a notice substantially in the form
of Exhibit C attached hereto and made a part hereof.
"NOTICE OF COMPETITIVE BID BORROWING" has the meaning set forth in
Section 2.2(f).
"NOTICE OF CONVERSION/CONTINUATION" means a notice substantially in the
form of EXHIBIT D attached hereto and made a part hereof with respect to a
proposed conversion or continuation of a Loan pursuant to Section 5.1(c).
"OBLIGATIONS" means all Loans, advances, debts, liabilities and monetary
obligations owing by the Borrower to the Administrative Agent, the Syndication
Agent, each Documentation Agent, any Lender, or any Person entitled to
indemnification pursuant to Section 14.3 of this Agreement, of any kind or
nature, arising under this Agreement, the Notes or any other Loan Document. The
term includes, without limitation, all interest, charges, reasonable expenses,
fees, reasonable attorneys' fees and disbursements and any other sum chargeable
to the Borrower under this Agreement or any other Loan Document.
"OFFICER'S CERTIFICATE" means, as to a corporation, a certificate
executed on behalf of such corporation by the chairman of its board of directors
(if an officer of such corporation) or its chief executive officer, president,
any of its vice-presidents, its chief financial officer, or its treasurer and,
as to a partnership, a certificate executed on behalf of such partnership by the
-19-
chairman of the board of directors (if an officer of such corporation) or chief
executive officer, president, any vice-president, or treasurer of the general
partner of such partnership.
"OPERATING ACCOUNT" has the meaning set forth in Section 9.11 hereof.
"OPERATING LEASE" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee which is not
a Capital Lease.
"ORGANIZATIONAL DOCUMENTS" means, with respect to any corporation,
limited liability company, or partnership (i) the articles/certificate of
incorporation (or the equivalent organizational documents) of such corporation
or limited liability company, (ii) the partnership agreement executed by the
partners in such partnership, (iii) the by-laws (or the equivalent governing
documents) of such corporation, limited liability company or partnership, and
(iv) any document setting forth the designation, amount and/or relative rights,
limitations and preferences of any class or series of such corporation's Capital
Stock or such limited liability company's or partnership's equity or ownership
interests.
"ORIGINAL REVOLVING CREDIT AGREEMENT" has the meaning set forth in the
recitals.
"ORIGINAL TERM LOAN AGREEMENT" has the meaning set forth in the
recitals.
"OSHA" means the Occupational Safety and Health Act of 1970, 29 U.S.C.
xx.xx. 651 et seq., any amendments thereto, any successor statutes and any
regulations or guidelines promulgated thereunder.
"OTHER MANAGEMENT COMPANY" means property management companies
controlled (directly or indirectly) by the Company or the Borrower which may
manage properties owned by third parties.
"PBGC" means the Pension Benefit Guaranty Corporation and any Person
succeeding to the functions thereof.
"PERFORMING NOTES" means mortgage notes, notes receivable and other
investments in Real Property (other than investments in or loans to, directly or
indirectly, an Investment Fund, or joint venture arrangements with an Investment
Fund, or an affiliated or unaffiliated operating company in which such
Investment Fund or joint venture arrangements with an Investment Fund owns an
equity interest), valued at the lower of cost or market in accordance with GAAP
and which are not more than 30 days past due or otherwise in default; provided,
that, in the case of mortgage notes, notes receivable and other investments in
Real Property that generate cash and non-cash payments, such mortgage notes,
notes receivable and other investments in Real Property shall be treated as
Performing Notes whose value is determined solely by reference to the cash
payments and references to the income generated by the Performing Notes shall
include only the cash payments which have current payments payable in cash.
"PERMITS" means any permit, consent, approval, authorization license,
variance, or permission required from any Person, including any Governmental
Approvals.
"PERMITTED SECURITIES OPTIONS" means the subscriptions, options,
warrants, rights, convertible Securities and other agreements or commitments
relating to the issuance of the Borrower's Securities or the Company's Capital
Stock identified as such on SCHEDULE 1.1.2.
-20-
"PERSON" means any natural person, corporation, limited liability
company, limited partnership, general partnership, joint stock company, joint
venture, association, company, trust, bank, trust company, land trust, business
trust or other organization, whether or not a legal entity, and any Governmental
Authority.
"PLAN" means a Benefit Plan or a Multiemployer Plan.
"POTENTIAL EVENT OF DEFAULT" means an event which, with the giving of
notice or the lapse of time, or both, would constitute an Event of Default.
"PREPAYMENT DATE" has the meaning set forth in Section 4.1(d).
"PROJECT" means any office or industrial properties owned or
ground-leased, directly or indirectly, by any of the Consolidated Businesses or
Joint Ventures.
"PROPERTY" means any Real Property or personal property, plant,
building, facility, structure, equipment, general intangible, receivable, or
other asset owned or leased by any Consolidated Business or any Joint Venture.
The definition of "Property" shall specifically exclude items of Real Property
or personal property owned or leased by members of the Rechler family.
"PROPERTY LEVEL G&A" means general and administrative expenses allocated
to the Properties.
"PRO RATA SHARE" means, with respect to any Lender, the percentage
obtained by dividing (i) such Lender's Revolving Credit Commitment (in each
case, as adjusted from time to time in accordance with the provisions of this
Agreement or any Assignment and Acceptance to which such Lender is a party) by
(ii) the aggregate amount of all of the Revolving Credit Commitments. The Pro
Rata Share of each Lender is set forth opposite such Lender's name on SCHEDULE
LC hereto or in the Assignment and Acceptance by which it became a Lender, and
shall be modified from time to time pursuant to this Agreement.
"QUALIFIED JOINT VENTURE PARTNERS" means (a) pension funds, insurance
companies, banks, investment banks or similar institutional entities, each with
significant experience in making investments in commercial real estate and (b)
commercial real estate companies of similar quality and experience.
"RATING AGENCY" means Xxxxx'x, S&P, Fitch or another
nationally-recognized rating agency reasonably satisfactory to the
Administrative Agent.
"RCRA" means the Resource Conservation and Recovery Act of 1976, 42
U.S.C. xx.xx. 6901 ET SEQ., any amendments thereto, any successor statutes, and
any regulations or guidelines promulgated thereunder.
"REAL PROPERTY" means all of the Borrower's and the Consolidated
Businesses' present and future right, title and interest (including, without
limitation, any leasehold estate) in (i) any plots, pieces or parcels of land,
(ii) any Improvements of every nature whatsoever (the rights and interests
described in clauses (i) and (ii) above being the "PREMISES"), (iii) all
easements, rights of way, gores of land or any lands occupied by streets, ways,
alleys, passages, sewer rights, water courses, water rights and powers, and
public places adjoining such land, and any other interests in
-21-
property constituting appurtenances to the Premises, or which hereafter shall in
any way belong, relate or be appurtenant thereto, and (iv) all other rights and
privileges thereunto belonging or appertaining and all extensions, additions,
improvements, betterments, renewals, substitutions and replacements to or of any
of the rights and interests described in clause (iii) above.
"RECKSON" means Reckson Operating Partnership, L.P., a Delaware limited
partnership.
"REFERENCE BANK" means JPMorgan.
"REGISTER" has the meaning set forth in Section 14.1(c).
"REGULATION A" means Regulation A of the Federal Reserve Board as in
effect from time to time.
"REGULATION T" means Regulation T of the Federal Reserve Board as in
effect from time to time.
"REGULATION U" means Regulation U of the Federal Reserve Board as in
effect from time to time.
"REGULATION X" means Regulation X of the Federal Reserve Board as in
effect from time to time.
"REIMBURSEMENT DATE" has the meaning set forth in Section 3.1(d)(i)(A).
"REIMBURSEMENT OBLIGATIONS" means the aggregate non-contingent
reimbursement or repayment obligations of the Borrower with respect to amounts
drawn under Letters of Credit.
"REIT" means a domestic trust or corporation that qualifies as a real
estate investment trust under the provisions of Sections 856, ET SEQ., of the
Internal Revenue Code.
"RELEASE" means any release, spill, emission, leaking, pumping, pouring,
dumping, injection, deposit, disposal, abandonment, or discarding of barrels,
containers or other receptacles, discharge, emptying, escape, dispersal,
leaching or migration into the indoor or outdoor environment or into or out of
any Property, including the movement of Contaminants through or in the air,
soil, surface water, groundwater or Property.
"REMEDIAL ACTION" means actions required to (i) clean up, remove, treat
or in any other way address Contaminants in the indoor or outdoor environment;
(ii) prevent the Release or threat of Release or minimize the further Release of
Contaminants; or (iii) investigate and determine if a remedial response is
needed and to design such a response and post-remedial investigation,
monitoring, operation and maintenance and care.
"REPORTABLE EVENT" means any of the events described in Section 4043(c)
of ERISA and the regulations promulgated thereunder as in effect from time to
time but not including any such event as to which the thirty (30) day notice
requirement has been waived by applicable PBGC regulations.
"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-laws
or other organizational or governing documents of such Person, and any law, rule
or regulation, or
-22-
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject including, without
limitation, the Securities Act, the Securities Exchange Act, Regulations T, U
and X, ERISA, the Fair Labor Standards Act, the Worker Adjustment and Retraining
Notification Act, Americans with Disabilities Act of 1990, and any certificate
of occupancy, zoning ordinance, building, environmental or land use requirement
or Permit and Environmental, Health or Safety Requirement of Law.
"REQUISITE LENDERS" means Lenders whose Pro Rata Shares, in the
aggregate, are equal to or greater than sixty-six and two-thirds percent
(66.67%); provided, however, that, in the event any of the Lenders shall have
failed to fund its Pro Rata Share of any Loan requested by the Borrower which
such Lenders are obligated to fund under the terms of this Agreement and any
such failure has not been cured as provided in Section 4.2(b)(v)(B), then for so
long as such failure continues, "Requisite Lenders" means Lenders (excluding all
Lenders whose failure to fund their respective Pro Rata Shares of such Loans
have not been so cured) whose Pro Rata Shares represent sixty-six and two-thirds
percent (66.67%) or more of the aggregate Pro Rata Shares of such Lenders;
PROVIDED, FURTHER, HOWEVER, that, in the event that the Revolving Credit
Commitments have been terminated pursuant to the terms of this Agreement,
"Requisite Lenders" means Lenders (without regard to such Lenders' performance
of their respective obligations hereunder) whose aggregate ratable shares
(stated as a percentage) of the aggregate outstanding principal balance of all
Loans are sixty-six and two-thirds percent (66.67%) or more.
"RESTRICTED PAYMENT" has the meaning set forth in Section 10.11(h).
"REVOLVING CREDIT AVAILABILITY" means, at any particular time, the
amount by which the Maximum Revolving Credit Amount at such time exceeds the
Revolving Credit Obligations at such time.
"REVOLVING CREDIT COMMITMENT" means, with respect to any Lender, the
obligation of such Lender to make Committed Loans and to participate in Letters
of Credit pursuant to the terms and conditions of this Agreement, and which
shall not exceed the principal amount set forth opposite such Lender's name on
SCHEDULE LC hereto or in the Assignment and Acceptance by which it became a
Lender, as modified from time to time pursuant to the terms of this Agreement or
to give effect to any applicable Assignment and Acceptance, and "REVOLVING
CREDIT COMMITMENTS" means the aggregate principal amount of the Revolving Credit
Commitments of all the Lenders, the maximum amount of which shall be
$500,000,000 as such amount may be increased or reduced from time to time
pursuant to Sections 2.1(b) and 4.1.
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the sum of
(i) the outstanding principal amount of the Committed Loans at such time, PLUS
(ii) the Letter of Credit Obligations at such time, plus (iii) the outstanding
principal amount of the Competitive Bid Loans at such time.
"REVOLVING CREDIT PERIOD" means the period from the Initial Funding Date
to the Business Day next preceding the Revolving Credit Termination Date.
"REVOLVING CREDIT TERMINATION DATE" means the earlier to occur of (i)
August 6, 2007 (or, if not a Business Day, the next preceding Business Day), as
such date may extended as described below in this definition, and (ii) the date
of termination of the Revolving Credit Commitments pursuant to the terms of this
Agreement. The Borrower may, by written notice to
-23-
the Administrative Agent (which shall promptly notify each of the Lenders) given
at least sixty (60) days prior to the Revolving Credit Termination Date, extend
the Revolving Credit Termination Date for one (1) year, PROVIDED that no
Potential Event of Default or Event of Default shall have occurred and be
continuing on the date of such written notice and on the effective date of such
extension and that the Borrower pays an aggregate extension fee equal to 0.25%
of the then existing Revolving Credit Commitments (to the Administrative Agent
for the ratable benefit of the Lenders).
"S&P" means Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc.
"SECURED INDEBTEDNESS" means any Indebtedness secured by a Lien.
"SECURITIES" means any stock, shares, voting trust certificates,
partnership interests, bonds, debentures, notes or other evidences of
indebtedness, secured or unsecured, convertible, subordinated or otherwise, or
in general any instruments commonly known as "securities", including, without
limitation, any "security" as such term is defined in Section 8-102 of the
Uniform Commercial Code, or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing, but shall not include the Notes or any other evidence of the
obligations.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time
to time, and any successor statute.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"SERVICING EBITDA" means, with respect to the Management Company or any
other service company owned by the Borrower or the Company, as of the first day
of each fiscal quarter for the immediately preceding fiscal quarter, an amount,
determined in accordance with GAAP, equal to (i) total earnings relating to such
companies' operations adjusted to exclude amounts that are more than 90 days
delinquent, LESS (ii) total operating expenses relating to such operations,
including corporate marketing, general and administrative expenses.
"SOLVENT", when used with respect to any Person, means that at the time
of determination:
(i) the fair saleable value of its assets is in excess of
the total amount of its liabilities (including, without limitation,
contingent liabilities); and
(ii) the present fair saleable value of its assets is greater
than its probable liability on its existing debts as such debts become
absolute and matured; and
(iii) it is then able and expects to be able to pay its debts
(including, without limitation, contingent debts and other commitments)
as they mature; and
(iv) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
-24-
"STANDBY LETTER OF CREDIT" means any letter of credit issued by an
Issuing Bank pursuant to Section 3.1 for the account of the Borrower, which is
not a Commercial Letter of Credit.
"SUBSIDIARY" of a Person means any corporation, limited liability
company, general or limited partnership, or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned or controlled by such Person, one or more of
the other subsidiaries of such Person or any combination thereof.
"SYNDICATION AGENT" means Xxxxx Fargo Bank, National Association, in its
capacity as syndication agent for the Lenders.
"TAXES" has the meaning set forth in Section 13.1(a).
"TELERATE PAGE 3750" means the display known as "Telerate Page 3750" (or
such other page as may replace Telerate Page 3750 as the display of such service
(other than Telerate Service) as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying British
Bankers' Association interest settlement rates for U.S. Dollar deposits).
"TENANT ALLOWANCE" means a cash allowance paid to a tenant by the
landlord pursuant to a Lease.
"TI WORK" means any construction or other "build out" of tenant
leasehold improvement to the space demised to the applicable tenant under a
Lease (excluding such tenant's furniture, fixtures and equipment) performed
pursuant to the terms of such Lease, whether or not such tenant improvement work
is performed by or on behalf of the landlord or as part of a Tenant Allowance.
"TOTAL ADJUSTED EBITDA" means, for any quarterly period, (i) net income
determined in accordance with GAAP, PLUS (ii) Total Interest Expense,
depreciation and amortization deducted in the calculation of such net income,
PLUS (iii) taxes on income deducted in the calculation of such net income, LESS
(iv) the gains (and plus the losses) from extraordinary items, asset sales,
write-ups, debt forgiveness, asset impairments, xxxx to market adjustments for
marketable securities or fair market valuation adjustments for derivatives
included in the calculation of such net income, LESS (v) the Capital Expenditure
Coverage Reserve Amounts divided by four.
"TOTAL INTEREST EXPENSE" means the sum of (i) interest expense of the
Consolidated Businesses paid during such period and (ii) interest expense of the
Consolidated Businesses accrued and/or capitalized for such period and (iii) the
pro-rata portion of the interest expense of Joint Ventures allocable to the
Borrower and paid during such period and (iv) the pro-rata portion of the
interest expense of Joint Ventures allocable to the Borrower accrued and/or
capitalized for such period, in each case including participating interest
expense but excluding extraordinary interest expense, and net of amortization of
deferred costs associated with new financings or refinancings of existing
Indebtedness.
"TOTAL OUTSTANDING INDEBTEDNESS" means, for any period, the sum of (i)
the amount of Indebtedness of the Consolidated Businesses set forth on the then
most recent quarterly financial statements of the Borrower, prepared in
accordance with GAAP, PLUS any additional Indebtedness incurred by the
Consolidated Businesses since the time of such statements, LESS any Indebtedness
-25-
repaid by the Consolidated Businesses since the time of such statements, and
(ii) the outstanding amount of Joint Venture Indebtedness set forth on the then
most recent quarterly financial statements of the Borrower or the applicable
Joint Venture, prepared in accordance with GAAP, PLUS any additional Joint
Venture Indebtedness incurred by the Joint Ventures since the time of such
statements, LESS any Indebtedness repaid by the Joint Ventures since the time of
such statements; PROVIDED that all of the foregoing shall only include the
Consolidated Businesses' pro rata share of the outstanding and additional
Indebtedness, as the case may be, with respect to any Joint Venture, and (iii)
the Contingent Obligations of the Consolidated Businesses and the pro-rata
portion of Contingent Obligations of the Joint Ventures allocable to the
Consolidated Businesses.
"TOTAL RECOURSE SECURED OUTSTANDING INDEBTEDNESS" means Total Secured
Outstanding Indebtedness under the terms of which any of the Consolidated
Businesses guarantees or is directly obligated for any portion of such
Indebtedness or interest payments thereon (other than Non-Recourse Carve-Outs),
including, without limitation, the pro rata share of such recourse Indebtedness
of Joint Ventures allocable to any of the Consolidated Businesses.
"TOTAL SECURED OUTSTANDING INDEBTEDNESS" means the sum of (i) that
portion of Total Outstanding Indebtedness that is secured by a Lien, including,
without duplication, the pro rata share of such Indebtedness that is Joint
Venture Indebtedness allocable to any of the Consolidated Businesses, PLUS (ii)
that portion of Total Outstanding Indebtedness attributable to Consolidated
Subsidiaries of the Borrower (or the Joint Ventures) which is recourse to the
Borrower or any of the Consolidated Subsidiaries (other than Non-Recourse
Carve-Outs), regardless of whether it is secured by a Lien (it being understood
that this definition shall not include the Loans hereunder).
"TOTAL UNENCUMBERED VALUE" means the portion of Total Value attributable
to (x) Unencumbered assets (including, without limitation, the Unencumbered New
York City Assets and the other Unencumbered Projects, but excluding Investment
Funds and service company income) owned or ground-leased under an Eligible
Ground Lease by the Consolidated Businesses and the Joint Ventures and (y) the
Eligible Encumbered Properties, subject to the limitations set forth in the next
paragraph and the following conditions and limitations: (i) only the amount of
unrestricted Cash and Cash Equivalents in excess of $40,000,000 shall be
included; (ii) Joint Venture Unencumbered Value for Joint Ventures in which the
Borrower's beneficial economic interest is fifty-one percent (51%) or greater
shall be included, PROVIDED the sale or financing of any Property owned or
ground-leased by such Joint Venture is substantially controlled by the Borrower,
subject to customary provisions set forth in the organizational documents of
such Joint Venture with respect to financings, sales or rights of first refusal
granted to other members of such Joint Venture; (iii) Joint Venture Unencumbered
Value for Joint Ventures in which the Borrower's beneficial economic interest is
less than fifty-one percent (51%) shall be included, provided that a majority of
the beneficial economic interests in such Joint Ventures that are not owned by
the Consolidated Businesses is owned or controlled by Qualified Joint Venture
Partners; (iv) the portion of Total Unencumbered Value attributable to
Performing Notes shall be included; (v) Land/Development Unencumbered Value
shall be included; and (vi) the portion of Total Unencumbered Value attributable
to Unencumbered office and industrial Projects owned or ground-leased under an
Eligible Ground Lease by the Consolidated Businesses for less than four (4)
fiscal quarters and which have received a certificate of occupancy shall be
included.
Clause (ii) above shall not exceed twenty percent (20%) of Total
Unencumbered Value. Clause (iii) shall not exceed five percent (5%) of Total
Unencumbered Value. Clause (iv) above
-26-
shall not exceed fifteen percent (15%) of Total Unencumbered Value. Clause (v)
above shall not exceed ten percent (10%) of Total Unencumbered Value. The sum of
clauses (iii), (iv) and (v) above shall not exceed twenty percent (20%) of Total
Unencumbered Value.
"TOTAL UNSECURED OUTSTANDING INDEBTEDNESS" means the sum of (a) that
portion of Total Outstanding Indebtedness that is not secured by a Lien plus (b)
that portion of Total Outstanding Indebtedness that is secured by a Lien on an
Eligible Encumbered Property. Without limiting the foregoing, Total Unsecured
Outstanding Indebtedness shall include, without double counting, (i) all amounts
outstanding under this Agreement, (ii) all Indebtedness of the Consolidated
Businesses, including the Consolidated Businesses' pro rata share of
Indebtedness of Joint Ventures, which is not secured by a Lien, (iii) all
outstanding undrawn letters of credit of the Consolidated Businesses (and the
pro rata share of such letters of credit allocable to any of the Consolidated
Businesses) LESS those outstanding undrawn letters of credit for the benefit of
any tenant, prospective tenant or lender at any Real Property to secure the
Consolidated Businesses' leasing obligations relating to tenant improvement work
or third party leasing commissions which have previously been paid, as evidenced
by a schedule provided by the Borrower to the Administrative Agent upon the
request of the Administrative Agent.
"TOTAL VALUE" means (a) the sum of (i) Valuation NOI divided by (A)
eight and one-half percent (8.50%) for all New York City Assets, (B) nine
percent (9.00%) for all other office Real Property, and (C) nine and one-half
percent (9.50%) for industrial Real Property; (ii) the Investment in office and
industrial Projects owned or ground-leased by the Consolidated Businesses for
less than four fiscal quarters; (iii) unrestricted Cash and Cash Equivalents;
(iv) land cost (at book value) and Construction Asset Cost, which credit will be
limited to fifteen percent (15%) of Total Value (exclusive of build-to-suit
Projects that are seventy-five percent (75%) pre-leased or Projects which are
less than seventy-five percent (75%) pre-leased but have a pro-forma yield of
ten percent (10%) or more, based upon executed leases and the cost of
acquisition plus the estimated cost to complete the same, which estimated cost
to complete shall be determined in a manner reasonably acceptable to the
Administrative Agent and the Syndication Agent); (v) NOI from all other Real
Property not otherwise set forth in this definition, divided by twelve percent
(12%); (vi) Servicing EBITDA of the Management Company or other such service
companies for the immediately preceding four (4) consecutive quarters, divided
by twenty percent (20%); (vii) any investment in or loan to (based on the actual
cash investment in or loan to), directly or indirectly, an affiliated or
unaffiliated operating company and investments in or loans to Investment Funds
either directly or indirectly or joint venture arrangements with Investment
Funds, which credit will be limited to $100,000,000 (valued at the lower of cost
or market in accordance with GAAP), other than (x) investments in, loans to, or
joint venture arrangements with Joint Ventures and (y) Performing Notes; (viii)
Performing Notes, which credit will be limited in the aggregate to fifteen
percent (15%) of Total Value; and (ix) Eligible Cash 1031 Proceeds;
LESS (b) the quotient of the Capital Expenditure Valuation Reserve Amounts for
such period, divided by (A) eight and one-half percent (8.50%) for all New York
City Assets, (B) nine percent (9.00%) for all other office Property, and (C)
nine and one-half percent (9.50%) for industrial Property; and
PROVIDED, the sum of items (a) (iv), (vii) and (viii) above shall not exceed
twenty-five percent (25%) of Total Value.
"2000 CREDIT AGREEMENT" has the meaning set forth in the recitals.
-27-
"2002 CREDIT AGREEMENT" has the meaning set forth in the recitals.
"UNENCUMBERED" means, with respect to any asset (other than a Project or
a New York City Asset) as of any date of determination, that such asset, the
equity interests in such asset and the revenues generated by such asset are not
subject to any Liens (excluding Customary Permitted Liens) or preferred equity
interests.
"UNENCUMBERED NEW YORK CITY ASSET" means any Unencumbered Project that
is a New York City Asset.
"UNENCUMBERED PROJECT" means any Project located in the United States
that on any date of determination: (a) is owned or ground-leased under an
Eligible Ground Lease, (b) is not subject (nor are any equity interests therein
subject) to any Liens (excluding Customary Permitted Liens) or preferred equity
interests, (c) has been improved with Improvements which (except for any
portions of the Project being restored or renovated) (1) have been issued a
certificate of occupancy (where available) or is otherwise lawfully occupied for
its intended use, and (2) are fully operational, including in each case, an
Unencumbered Project that is being renovated or restored and such renovation is
proceeding to completion without undue delay from Permit denial, construction
delays or otherwise, (d) has not been the subject of an event or occurrence that
has had a Material Adverse Effect, and (e) if owned or ground leased by a
wholly-owned Subsidiary of the Borrower, such Subsidiary has executed and
delivered a Guaranty.
"UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code as enacted
in the State of New York, as it may be amended from time to time.
"UNSECURED INTEREST EXPENSE" means the interest expense paid, accrued or
capitalized on the Total Unsecured Outstanding Indebtedness for the applicable
period.
"VALUATION NOI" means, with respect to any office or industrial Project
or any office or industrial Joint Venture (exclusive of projects under
development) which has been owned or ground-leased by the Borrower for not less
than four consecutive quarters, as of the first day of each fiscal quarter, an
amount equal to the NOI relating to such Project or the Borrower's pro rata
share of such Joint Venture for the immediately preceding consecutive four
fiscal quarters.
"WHOLLY-OWNED" means, with respect to the ownership of any asset by any
Person, that such Person owns 100% of the voting and economic interests in such
asset; PROVIDED that, with the written approval of the Administrative Agent,
such Person may be deemed to wholly-own an asset if it owns less than 100% of
the voting and economic interests in such asset so long as such Person owns 100%
of the interests generally having the right to vote with respect to such asset
and at least 90% of the economic interests in such asset.
1.2. COMPUTATION OF TIME PERIODS. In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the word "FROM" means "from and including" and the words "TO" and "UNTIL" each
mean "to but excluding". Periods of days referred to in this Agreement shall be
counted in calendar days unless Business Days are expressly prescribed. Any
period determined hereunder by reference to a month or months or year or years
shall end on the day in the relevant calendar month in the relevant year, if
applicable, immediately preceding the date numerically corresponding to the
first day of such period, provided that if such period commences on the last day
of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month during which such
-28-
period is to end), such period shall, unless otherwise expressly required by the
other provisions of this Agreement, end on the last day of the calendar month.
1.3. ACCOUNTING TERMS. Subject to Section 14.4, for purposes of this
Agreement, all accounting terms not otherwise defined herein shall have the
meanings assigned to them in conformity with GAAP.
1.4. OTHER TERMS. All other terms contained in this Agreement shall,
unless the context indicates otherwise, have the meanings assigned to such terms
by the Uniform Commercial Code to the extent the same are defined therein.
1.5. RULES OF INTERPRETATION. (a) A reference to any document or
agreement shall include such document or agreement as amended, modified or
supplemented from time to time in accordance with its terms and the terms of
this Agreement.
(a) The singular includes the plural and the plural includes
the singular.
(b) A reference to any law includes any amendment or
modification to such law.
(c) A reference to any Person includes its permitted
successors and permitted assigns.
(d) The words "include", "includes" and "including" are not
limiting.
(e) Reference to a particular "Section" refers to that
section of this Agreement unless otherwise indicated, and reference to a
particular "Exhibit" or "Schedule" refers to that exhibit or schedule to this
Agreement unless otherwise indicated.
ARTICLE II.
AMOUNTS AND TERMS OF LOANS
2.1. COMMITTED LOANS.
(a) AVAILABILITY. Subject to the terms and conditions set
forth in this Agreement, each Lender hereby severally and not jointly agrees to
make revolving loans, in Dollars (each individually, a "COMMITTED LOAN" and,
collectively, the "COMMITTED LOANS") to the Borrower from time to time during
the Revolving Credit Period, in an amount not to exceed such Lender's Pro Rata
Share of the Revolving Credit Availability at such time. Subject to the
provisions of Section 2.1(b) below, the aggregate amount of Loans to be made
hereunder together with the Letter of Credit Obligations with respect to the
Borrower, shall not exceed Five Hundred Million Dollars ($500,000,000). All
Committed Loans comprising the same Borrowing under this Agreement shall be made
by the Lenders simultaneously and proportionately to their then respective Pro
Rata Shares, it being understood that no Lender shall be responsible for any
failure by any other Lender to perform its obligation to make a Committed Loan
hereunder nor shall the Revolving Credit Commitment of any Lender be increased
or decreased as a result of any such failure. Subject to the provisions of this
Agreement, the Borrower may repay any outstanding Committed Loan on any day
which is a Business Day and any amounts so repaid may be reborrowed, up to the
amount available under this Section 2.1(a) at the time of such Borrowing, until
the Business Day next preceding the Revolving Credit Termination Date. Each
requested
-29-
Borrowing of Committed Loans funded on any Funding Date shall be in a principal
amount of at least $3,000,000 and with integral multiples of $500,000; PROVIDED,
HOWEVER, that if the aggregate Revolving Credit Availability outstanding at the
time of such requested Borrowing is less than $3,000,000, then the requested
Borrowing shall be for the total amount of such outstanding aggregate Revolving
Credit Availability.
(b) INCREASE IN COMMITMENT. Unless a Potential Event of
Default or an Event of Default has occurred and is continuing, the Borrower, by
written notice to the Administrative Agent (which shall promptly notify each of
the Lenders), may request on up to five (5) occasions during the term of this
Agreement that the Revolving Credit Commitment be increased by an amount not
less than $25,000,000 per request and not more than $250,000,000 in the
aggregate (such that the Revolving Credit Commitment after such increase(s)
shall never exceed $750,000,000); PROVIDED that for any such request (i) the
Borrower shall not have requested the one-year extension of the Revolving Credit
Termination Date pursuant to the definition thereof, (ii) any Lender that is a
party to this Agreement prior to such request for an increase, at its sole
discretion, may elect to increase its Revolving Credit Commitment but shall not
have any obligation to so increase its Revolving Credit Commitment, and (iii) in
the event that each Lender does not elect to increase its Revolving Credit
Commitment, the Arrangers shall use commercially reasonable efforts to locate
additional lenders willing to hold commitments for the requested increase,
subject to the approval of any such proposed lender by the Borrower, and the
Borrower may also identify additional lenders willing to hold commitments for
the requested increase, PROVIDED that the Administrative Agent shall have the
right to approve any such additional lender, which approval will not be
unreasonably withheld or delayed. In the event that lenders commit to any such
increase, the Revolving Credit Commitments of the committed Lenders shall be
increased, the Pro Rata Shares of the Lenders shall be adjusted, new Notes shall
be issued, the Borrower shall make such borrowings and repayments as shall be
necessary to effect the reallocation of the Revolving Credit Loans, and other
changes shall be made to the Loan Documents as may be necessary to reflect the
aggregate amount, if any, by which Lenders have agreed to increase their
respective Revolving Credit Commitments or make new Revolving Credit Commitments
pursuant to this Section 2.1(b), in each case without requiring the consent of
the Lenders other than those Lenders increasing their Revolving Credit
Commitments. The fees payable by the Borrower upon any such increase in the
Revolving Credit Commitments shall be agreed upon by the Arrangers and the
Borrower at the time of such increase.
Notwithstanding the foregoing, nothing in this Section 2.1(b) shall
constitute or be deemed to constitute an agreement or commitment by any Lender
to increase its Revolving Credit Commitment hereunder.
(c) NOTICE OF BORROWING. When the Borrower desires to borrow
under this Section 2.1, the Borrower shall deliver to the Administrative Agent a
Notice of Borrowing, signed by it (x) no later than 12:00 noon (New York time)
on the Business Day immediately preceding the proposed Funding Date, in the case
of a Borrowing of Base Rate Loans and (y) no later than 11:00 a.m. (New York
time) at least three (3) Business Days in advance of the proposed Funding Date,
in the case of a Borrowing of Eurodollar Rate Loans; PROVIDED, HOWEVER, that no
more than two (2) Borrowings may be made within any five (5) Business Day
period. Such Notice of Borrowing shall specify (i) the proposed Funding Date
(which shall be a Business Day), (ii) the amount of the proposed Borrowing,
(iii) the Revolving Credit Availability as of the date of such Notice of
Borrowing, (iv), whether the proposed Borrowing will be of Base Rate Loans or
Eurodollar Rate Loans, (v) in the case of Eurodollar Rate Loans, the requested
Eurodollar Interest Period, (vi) instructions for the disbursement of the
proceeds of the proposed Borrowing, (vii) an
-30-
Officer's Certificate of the Borrower with respect to compliance with (including
calculation thereof) Sections 10.11(a) and 10.11(e), and (viii) that no
Potential Event of Default or Event of Default shall have occurred and be
continuing or would result therefrom. Any Notice of Borrowing (or telephonic
notice in lieu thereof) given pursuant to this Section 2.1(c) shall be
irrevocable.
(d) MAKING OF LOANS. (i) Promptly after receipt of a Notice
of Borrowing under Section 2.1(c), the Administrative Agent shall notify each
Lender by facsimile transmission, or other similar written form of transmission,
of the proposed Borrowing (which notice to the Lenders, in the case of a
Borrowing of Eurodollar Rate Loans, shall be at least three (3) Business Days in
advance of the proposed Funding Date for such Loans). Each Lender shall deposit
an amount equal to its Pro Rata Share of the Borrowing requested by the Borrower
with the Administrative Agent at its office in New York, New York, in
immediately available funds, not later than 12:00 noon (New York time) on the
respective Funding Date therefor. Subject to the fulfillment of the conditions
precedent set forth in Section 6.1 or Section 6.2, as applicable, the
Administrative Agent shall make the proceeds of such amounts received by it
available to the Borrower at the Administrative Agent's office in New York, New
York on such Funding Date (or on the date received if later than such Funding
Date) and shall disburse such proceeds in accordance with the Borrower's
disbursement instructions set forth in the applicable Notice of Borrowing. The
failure of any Lender to deposit the amount described above with the
Administrative Agent on the applicable Funding Date shall not relieve any other
Lender of its obligations hereunder to make its Loan on such Funding Date. In
the event the conditions precedent set forth in Section 6.1 or 6.2 are not
fulfilled as of the proposed Funding Date for any Borrowing, the Administrative
Agent shall promptly return, by wire transfer of immediately available funds,
the amount deposited by each Lender to such Lender.
(ii) Unless the Administrative Agent shall have been notified
by any Lender on the Business Day immediately preceding the applicable Funding
Date in respect of any Borrowing that such Lender does not intend to fund its
Loan requested to be made on such Funding Date, the Administrative Agent may
assume that such Lender has funded its Loan and is depositing the proceeds
thereof with the Administrative Agent on the Funding Date therefor, and the
Administrative Agent in its sole discretion may, but shall not be obligated to,
disburse a corresponding amount to the Borrower on the applicable Funding Date.
If the Loan proceeds corresponding to that amount are advanced to the Borrower
by the Administrative Agent but are not in fact deposited with the
Administrative Agent by such Lender on or prior to the applicable Funding Date,
such Lender agrees to pay, and in addition the Borrower, agrees to repay, to the
Administrative Agent forthwith on demand such corresponding amount, together
with interest thereon, for each day from the date such amount is disbursed to or
for the benefit of the Borrower until the date such amount is paid or repaid to
the Administrative Agent, at the average Federal Funds Rate for such period. If
such Lender shall pay to the Administrative Agent the corresponding amount, the
amount so paid shall constitute such Lender's Loan as of the Funding Date
thereof, and if both such Lender and the Borrower shall pay and repay such
corresponding amount, the Administrative Agent shall promptly pay to the
Borrower such corresponding amount. This Section 2.1(d)(ii) does not relieve any
Lender of its obligation to make its Loan on any applicable Funding Date.
2.2. COMPETITIVE BID LOANS.
(a) THE COMPETITIVE BID OPTION. For so long as the Borrower
shall maintain an Investment Grade Rating from at least two (2) Rating Agencies,
one (1) of which shall be
-31-
Xxxxx'x or S&P, from time to time during the Revolving Credit Period, the
Borrower may, as set forth in this Section 2.2, request the Lenders during the
Revolving Credit Period to make offers to make Competitive Bid Loans to the
Borrower (a "COMPETITIVE BID QUOTE REQUEST"), such Competitive Bid Loan not to
exceed, at such time (i) together with all Competitive Bid Loans then
outstanding, fifty percent (50%) of the Maximum Revolving Credit Amount, or (ii)
the Revolving Credit Availability. Subject to the provisions of this Agreement,
the Borrower may repay any outstanding Competitive Bid Loan on any day which is
a Business Day and any amounts so repaid may be reborrowed, up to the amount
available under this Section 2.2(a) at the time of such Borrowing, until the
Business Day next preceding the Revolving Credit Termination Date. The Lenders
may, but shall have no obligation to, make such offers and the Borrower may, but
shall have no obligation to, accept any such offers in the manner set forth in
this Section 2.2.
(b) COMPETITIVE BID QUOTE REQUEST. When the Borrower wishes
to request offers to make Competitive Bid Loans under this Section, the Borrower
shall transmit to the Administrative Agent by telex or facsimile transmission a
Competitive Bid Quote Request substantially in the form of EXHIBIT H hereto so
as to be received not later than 10:30 A.M. (New York City time) on the fourth
(4th) Business Day prior to the date of Borrowing proposed therein (or such
other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Lenders not later than the date
of the Competitive Bid Quote Request for the first LIBOR Auction for which such
change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a
Business Day;
(ii) the aggregate amount of such Borrowing, which shall be
$20,000,000 or a larger multiple of $1,000,000 (which shall not exceed
the Revolving Credit Availability);
(iii) the duration of the Eurodollar Interest Period
applicable thereto, subject to the provisions of Section 5.2(b); and
(iv) the amount of all Competitive Bid Loans then outstanding
(which, together with the requested Borrowing shall not exceed, in the
aggregate, fifty percent (50%) of the Maximum Revolving Credit Amount).
The Borrower may request offers to make Competitive Bid Loans for one, two or
three Eurodollar Interest Periods in a single Competitive Bid Quote Request.
Borrower may not make more than two (2) Competitive Bid Quote Requests in any
thirty (30) day period.
(c) INVITATION FOR COMPETITIVE BID QUOTES. Promptly upon
receipt of a Competitive Bid Quote Request, the Administrative Agent shall send
to the Lenders by telex or facsimile transmission an Invitation for Competitive
Bid Quotes substantially in the form of EXHIBIT I hereto, which shall constitute
an invitation by the Borrower to each Lender to submit Competitive Bid Quotes
offering to make the Competitive Bid Loans to which such competitive Bid Quote
Request relates in accordance with this Section.
(d) SUBMISSION AND CONTENTS OF COMPETITIVE BID QUOTES. (i)
Each Lender may submit a Competitive Bid Quote containing an offer or offers to
make Competitive Bid Loans in response to any Invitation for Competitive Bid
Quotes. Each Competitive Bid Quote must comply with the requirements of this
subsection (d) and must be submitted to the Administrative Agent by telex or
facsimile transmission not later than 9:30 A.M. (New York City
-32-
time) on the third (3rd) Business Day prior to the proposed date of Borrowing
(or such other time or date as the Borrower and the Administrative Agent shall
have mutually agreed and shall have notified the Lenders not later than the date
of the Competitive Bid Quote Request for the first LIBOR Auction for which such
change is to be effective); PROVIDED that Competitive Bid Quotes submitted by
the Person serving as the Administrative Agent (or any affiliate of the Person
serving as the Administrative Agent) in the capacity of a Lender may be
submitted, and may only be submitted, if the Person serving as the
Administrative Agent or such affiliate notifies the Borrower of the terms of the
offer or offers contained therein not later than one-quarter (1/4) hour prior to
the deadline for the other Lenders. Any Competitive Bid Quote so made shall be
irrevocable. Competitive Bid Loans to be funded pursuant to a Competitive Bid
Quote may, as provided in Section 14.1(f), be funded by a Lender's Designated
Bank. A Lender making a Competitive Bid Quote may, but shall not be required to,
specify in its Competitive Bid Quote whether the related Competitive Bid Loans
are intended to be funded by such Lender's Designated Bank, as provided in
Section 14.1(f).
(ii) Each Competitive Bid Quote shall be in substantially the
form of EXHIBIT J hereto and shall in any case specify:
(A) the proposed date of Borrowing;
(B) the principal amount of the Competitive Bid Loan
for which each such offer is being made, which principal amount
(w) may be greater than or less than the Revolving Credit
Commitment of the quoting Lender, (x) must be $5,000,000 or a
larger multiple of $1,000,000 (or, if the Revolving Credit
Availability then is less than $5,000,000, such lesser amount),
(y) may not exceed the principal amount of Competitive Bid Loans
for which offers were requested and (z) may be subject to an
aggregate limitation as to the principal amount of Competitive
Bid Loans for which offers being made by such quoting Lender may
be accepted;
(C) the margin above or below the applicable
Eurodollar Rate (the "COMPETITIVE BID MARGIN") offered for each
such Competitive Bid Loan, expressed as a percentage (specified
to the nearest 1/10,000th of 1%) to be added to or subtracted
from such base rate offered for each Competitive Bid Loan; and
(D) the identity of the quoting Lender.
(iii) Any Competitive Bid Quote shall be disregarded if it:
(A) is not substantially in conformity with EXHIBIT
J hereto or does not specify all of the information required by
subsection (d)(ii) above;
(B) except as provided in subsection (d)(ii)(B)(z)
above, proposes terms other than or in addition to those set
forth in the applicable Invitation for Competitive Bid Quotes;
or
(C) arrives after the time set forth in subsection
(d)(i) above.
(e) NOTICE TO BORROWER. The Administrative Agent shall
promptly notify the Borrower, of the terms (x) of any Competitive Bid Quote
submitted by a Lender that is in
-33-
accordance with subsection (d) of this Section and (y) of any Competitive Bid
Quote that amends, modifies or is otherwise inconsistent with a previous
Competitive Bid Quote submitted by such Lender with respect to the same
Competitive Bid Quote Request. Any such subsequent Competitive Bid Quote shall
be disregarded by the Administrative Agent unless such subsequent Competitive
Bid Quote is submitted solely to correct a manifest error in such former
Competitive Bid Quote. The Administrative Agent's notice to the Borrower shall
specify (A) the aggregate principal amount of Competitive Bid Loans for which
offers have been received for each Eurodollar Interest Period specified in the
related Competitive Bid Quote Request, (B) the principal amounts and Competitive
Bid Margins so offered and (C) if applicable, limitations on the aggregate
principal amount of Competitive Bid Loans for which offers in any single
Competitive Bid Quote may be accepted.
(f) ACCEPTANCE AND NOTICE BY BORROWER. Not later than 11:00
A.M. (New York City time) on the third (3rd) Business Day prior to the proposed
date of Borrowing (or such other time or date as the Borrower and the
Administrative Agent shall have mutually agreed and shall have notified the
Lenders not later than the date of the Competitive Bid Quote Request for the
first LIBOR Auction for which such change is to be effective), the Borrower
shall telephonically notify the Administrative Agent of its acceptance or
non-acceptance of the offers so notified to it pursuant to subsection (e) of
this Section, and the Borrower shall confirm such telephonic notification in
writing not later than the third (3rd) Business Day prior to the proposed date
of Borrowing. In the case of acceptance, such notice (a "NOTICE OF COMPETITIVE
BID BORROWING"), whether telephonic or in writing, shall specify the aggregate
principal amount of offers for each Eurodollar Interest Period that are accepted
and shall be accompanied by an Officer's Certificate of the Borrower with
respect to compliance with (including calculation of) Sections 10.11(a) and (e).
The Borrower may accept any Competitive Bid Quote in whole or in part; PROVIDED
that:
(i) the aggregate principal amount of each Competitive Bid
Loan Borrowing may not exceed the applicable amount set forth in the
related Competitive Bid Quote Request;
(ii) the principal amount of each Competitive Bid Loan
Borrowing must be $20,000,000 or a larger multiple of $1,000,000 (or, if
the Revolving Credit Availability then is less than $20,000,000, such
lesser amount);
(iii) acceptance of offers may only be made in ascending order
from those subject to the lowest Competitive Bid Margin to those subject
to the highest Competitive Bid Margin, as applicable to provide to the
Borrower the lowest effective cost based on offers accepted; and
(iv) the Borrower may not accept any offer that is described
in subsection (d)(iii) of this Section or that otherwise fails to comply
with the requirements of this Agreement.
(g) ALLOCATION BY ADMINISTRATIVE AGENT. If offers are made
by two or more Lenders with the same Competitive Bid Margins for a greater
aggregate principal amount than the amount in respect of which such offers are
permitted to be accepted for the related Eurodollar Interest Period, the
principal amount of Competitive Bid Loans in respect of which such offers are
accepted shall be allocated by the Administrative Agent among such Lenders as
nearly as possible (in multiples of $1,000,000, as the Administrative Agent may
deem appropriate) in
-34-
proportion to the aggregate principal amounts of such offers. Determinations by
the Administrative Agent of the amounts of Competitive Bid Loans shall be
conclusive in the absence of manifest error. The Administrative Agent shall
notify the Borrower of all offers.
(h) NOTIFICATION BY ADMINISTRATIVE AGENT. Upon receipt of
the Borrower's Notice of Competitive Bid Borrowing in accordance with Section
2.2(f) hereof, the Administrative Agent shall, on the date such Notice of
Competitive Bid Borrowing is received by the Administrative Agent, notify each
Lender of the principal amount of the Competitive Bid Loan Borrowing accepted by
the Borrower and of such Lender's share (if any) of such Competitive Bid Loan
Borrowing and such Notice of Competitive Bid Borrowing shall not thereafter be
revocable by the Borrower. A Lender who is notified that it has been selected to
make a Competitive Bid Loan may designate its Designated Bank (if any) to fund
such Competitive Bid Loan on its behalf, as described in Section 14.1(f). Any
Designated Bank which funds a Competitive Bid Loan shall on and after the time
of such funding become the obligee under such Competitive Bid Loan and be
entitled to receive payment thereof when due. No Lender shall be relieved of its
obligation to fund a Competitive Bid Loan, and no Designated Bank shall assume
such obligation, prior to the time the applicable Competitive Bid Loan is
funded.
2.3. USE OF PROCEEDS OF LOANS AND LETTERS OF CREDIT. The proceeds of
the Loans and the Letters of Credit issued for the account of the Borrower
hereunder may be used for the purposes of general working capital needs of the
Borrower and other general corporate purposes.
2.4. REVOLVING CREDIT TERMINATION DATE; MATURITY OF COMPETITIVE BID
LOANS. (a) The Revolving Credit Commitments shall terminate, and all outstanding
Revolving Credit Obligations shall be paid in full (or, in the case of unmatured
Letter of Credit Obligations, provision for payment in cash shall be made to the
satisfaction of the Issuing Banks actually issuing Letters of Credit and the
Requisite Lenders), on the Revolving Credit Termination Date. Each Lender's
obligation to make Loans shall terminate on the Business Day next preceding the
Revolving Credit Termination Date.
(a) Each Competitive Bid Loan included in any Competitive
Bid Loan Borrowing shall mature, and the principal
amount thereof shall be due and payable, together with the accrued interest
thereon, on the last day of the Eurodollar Interest Period applicable to such
Borrowing.
2.5. MAXIMUM CREDIT FACILITY. Notwithstanding anything in this
Agreement to the contrary, in no event shall the aggregate principal amount of
Revolving Credit Obligations exceed the Maximum Revolving Credit Amount.
2.6. AUTHORIZED AGENTS. On the Closing Date and from time to time
thereafter, the Borrower shall deliver to the Administrative Agent an Officer's
Certificate setting forth the names of the employees and agents authorized to
request Loans and Letters of Credit and to request a conversion/continuation of
any Loan and containing a specimen signature of each such employee or agent. The
employees and agents so authorized shall also be authorized to act for the
Borrower in respect of all other matters relating to the Loan Documents. The
Administrative Agent, each Documentation Agent, the Syndication Agent, the
Arrangers, the Lenders and any Issuing Bank shall be entitled to rely
conclusively on such employee's or agent's authority to request such Loan or
Letter of Credit or such conversion/continuation until the Administrative Agent
and the Arrangers receive written notice to the contrary. Neither the
Administrative Agent nor the
-35-
Arrangers shall have any duty to verify the authenticity of the signature
appearing on any written Notice of Borrowing or Notice of
Conversion/Continuation or any other document, and, with respect to an oral
request for such a Loan or Letter of Credit or such conversion/continuation, the
Administrative Agent and the Arrangers shall have no duty to verify the identity
of any person representing himself or herself as one of the employees or agents
authorized to make such request or otherwise to act on behalf of the Borrower.
None of the Administrative Agent, the Arrangers or the Lenders shall incur any
liability to the Borrower or any other Person in acting upon any telephonic or
facsimile notice referred to above which the Administrative Agent or the
Arrangers believe to have been given by a person duly authorized to act on
behalf of the Borrower and the Borrower hereby indemnifies and holds harmless
the Administrative Agent, the Arrangers and each Lender from any loss or expense
the Administrative Agent, the Arrangers or the Lenders might incur in acting in
good faith as provided in this Section 2.6; provided, however, that Borrower
shall not indemnify the applicable party for acts resulting from its own gross
negligence or willful misconduct.
ARTICLE III.
LETTERS OF CREDIT
3.1. LETTERS OF CREDIT. Subject to the terms and conditions set forth
in this Agreement, including, without limitation, Section 3.1(c)(ii), each
Issuing Bank hereby severally agrees to issue for the account of the Borrower
one or more Letters of Credit, subject to the following provisions:
(a) TYPES AND AMOUNTS. An Issuing Bank shall not have any
obligation to issue, amend or extend, and shall not issue, amend or extend, any
Letter of Credit at any time:
(i) if the aggregate Letter of Credit Obligations with
respect to such Issuing Bank, after giving effect to the issuance,
amendment or extension of the Letter of Credit requested hereunder,
shall exceed any limit imposed by law or regulation upon such Issuing
Bank;
(ii) if, immediately after giving effect to the issuance,
amendment or extension of such Letter of Credit, (1) the Letter of
Credit Obligations at such time would exceed $100,000,000 or (2) the
Revolving Credit Obligations at such time would exceed the Maximum
Revolving Credit Amount at such time, or (3) one or more of the
conditions precedent contained in Sections 6.1 or 6.2, as applicable,
would not on such date be satisfied, unless such conditions are
thereafter satisfied and written notice of such satisfaction is given to
such Issuing Bank by the Administrative Agent (and such Issuing Bank
shall not otherwise be required to determine that, or take notice
whether, the conditions precedent set forth in Sections 6.1 or 6.2, as
applicable, have been satisfied);
(iii) which has an expiration date later than the earlier of
(A) the date one (1) year after the date of issuance (without regard to
any automatic renewal provisions thereof) or (B) ten Business Days
preceding the scheduled Revolving Credit Termination Date; or
(iv) which is in a currency other than Dollars.
(b) CONDITIONS. In addition to being subject to the
satisfaction of the conditions precedent contained in Sections 6.1 and 6.2, as
applicable, the obligation of an Issuing
-36-
Bank to issue, amend or extend any Letter of Credit is subject to the
satisfaction in full of the following conditions:
(i) if the Issuing Bank so requests, the Borrower shall have
executed and delivered to such Issuing Bank and the Administrative Agent
a Letter of Credit Reimbursement Agreement and such other documents and
materials as may be required pursuant to the terms thereof; and
(ii) the terms of the proposed Letter of Credit shall be
satisfactory to the Issuing Bank in its sole discretion.
(c) ISSUANCE OF LETTERS OF CREDIT. (i) The Borrower shall
give the Administrative Agent written notice that it requires the issuance a
Letter of Credit not later than 11:00 a.m. (New York time) on the third (3rd)
Business Day preceding the requested date for issuance thereof under this
Agreement. Such notice shall be irrevocable unless and until such request is
denied by the Issuing Bank and such request shall specify (A) that the requested
Letter of Credit is either a Commercial Letter of Credit or a Standby Letter of
Credit, (B) the stated amount of the Letter of Credit requested, (C) the
effective date (which shall be a Business Day) of issuance of such Letter of
Credit, (D) the date on which such Letter of Credit is to expire (which shall be
a Business Day and no later than ten (10) Business Days preceding the scheduled
Revolving Credit Termination Date), (E) the Person for whose benefit such Letter
of Credit is to be issued, (F) other relevant terms of such Letter of Credit,
(G) the Revolving Credit Availability at such time, and (H) the amount of the
then outstanding Letter of Credit Obligations. Such request shall be accompanied
by an Officer's Certificate of the Borrower with respect to compliance with (and
calculation of) Sections 10.11(a) and (e).
(i) The Issuing Bank shall give the Administrative Agent
written notice, or telephonic notice confirmed promptly thereafter in
writing, of the issuance, amendment or extension of a Letter of Credit
(which notice the Administrative Agent shall promptly transmit by
telegram, facsimile transmission, or similar transmission to the
Borrower and each Lender).
(d) Reimbursement Obligations; Duties of Issuing Bank and
other Lenders; Funding of a Loan.
(i) Notwithstanding any provisions to the contrary in any
Letter of Credit Reimbursement Agreement:
(A) the Borrower shall reimburse each Issuing Bank
for amounts drawn under its Letter of Credit, in Dollars, no
later than the date (the "REIMBURSEMENT DATE") which is the
earlier of (I) the time specified in the applicable Letter of
Credit Reimbursement Agreement and (II) the date that payment
has been made under such Letter of Credit by such Issuing Bank;
and
(B) all Reimbursement Obligations with respect to
any Letter of Credit shall bear interest at the rate applicable
to Base Rate Loans in accordance with Section 5.1(a) from the
date of the relevant drawing under such Letter of Credit until
the Reimbursement Date and thereafter at the rate applicable to
Base Rate Loans in accordance with Section 5.1(d).
-37-
(ii) Each Issuing Bank shall give the Administrative Agent
written notice, or telephonic notice confirmed promptly thereafter in
writing, of all drawings under a Letter of Credit and the payment (or
the failure to pay when due) by the Borrower on account of a
Reimbursement Obligation (which notice the Administrative Agent shall
promptly transmit by telegram, facsimile transmission or similar
transmission to each Lender).
(iii) Solely as between the applicable Issuing Bank and the
other Lenders, in determining whether to pay under any Letter of Credit,
such Issuing Bank shall have no obligation to the other Lenders other
than to confirm that any documents required to be delivered under a
respective Letter of Credit appear to have been delivered and that they
appear on their face to comply with the requirements of such Letter of
Credit.
(iv) If any draft shall be presented or other demand for
payment shall be made under any Letter of Credit, the applicable Issuing
Bank shall notify the Administrative Agent (and the Administrative Agent
shall notify the Borrower and the Lenders) of the date and amount of the
draft presented or demand for payment and of the date and time when it
expects to pay such draft or honor such demand for payment, and, except
as provided in this Section 3.1(d)(iv), the Borrower shall reimburse
such Issuing Bank, as set forth in Section 3.1(d)(i) above.
Notwithstanding anything contained in Section 3.1(d)(i) above or this
Section 3.1(d)(iv) to the contrary, however, unless the Borrower shall
have notified the Administrative Agent and the applicable Issuing Bank
prior to 11:00 a.m. (New York time) on the Business Day immediately
prior to the date of such drawing that the Borrower intends to reimburse
such Issuing Bank for the amount of such drawing with funds other than
the proceeds of Committed Loans, the Borrower shall be deemed to have
timely given a Notice of Borrowing pursuant to Section 2.1(c) to the
Administrative Agent, requesting a Base Rate Loan on the date on which
such drawing is honored and in an amount equal to the amount of such
drawing. The Borrower may thereafter convert any such Base Rate Loan in
accordance with Section 5.1(c). Each Lender shall, in accordance with
Section 2.1(d), make available such Lender's Pro Rata Share of such
Borrowing to the Administrative Agent, the proceeds of which shall be
applied directly by the Administrative Agent to reimburse the Issuing
Bank for the amount of such draw. In the event that any Lender fails to
make available to the Administrative Agent the amount of such Lender's
Pro Rata Share of such Borrowing on the date of the drawing, the
Administrative Agent shall be entitled to recover such amount on demand
from such Lender plus any additional amounts payable under Section
2.1(d)(ii) in the event of a late funding by a Lender.
(e) PARTICIPATIONS. (i) Immediately upon issuance by an
Issuing Bank of any Letter of Credit in accordance with the procedures set forth
in this Section 3.1, each Lender shall be deemed to have irrevocably and
unconditionally purchased and received from that Issuing Bank, without recourse
or warranty, an undivided interest and participation in such Letter of Credit to
the extent of such Lender's Pro Rata Share, including, without limitation, all
obligations of the Borrower with respect thereto (other than amounts owing to
that Issuing Bank under Section 3.1) and any security therefor and guaranty
pertaining thereto.
(ii) If any Issuing Bank makes any payment under any Letter
of Credit and the Borrower does not repay such amount to that Issuing Bank on
the Reimbursement Date and a Base Rate Loan has not been made with respect to
such payment pursuant to Section 3.1(d)(iv), that Issuing Bank shall promptly
notify the Administrative Agent, which shall promptly notify each other Lender,
and each Lender shall promptly and unconditionally pay to the Administrative
-38-
Agent for the account of such Issuing Bank, in immediately available funds, the
amount of such Lender's Pro Rata Share of such payment (net of that portion of
such payment, if any, made by such Issuing Bank in its capacity as an issuer of
a Letter of Credit), and the Administrative Agent shall promptly pay to such
Issuing Bank such amounts received by it, and any other amounts received by the
Administrative Agent for such Issuing Bank's account, pursuant to this Section
3.1(e). If a Lender does not make its Pro Rata Share of the amount of such
payment available to the Administrative Agent, such Lender agrees to pay to the
Administrative Agent for the account of the Issuing Bank, forthwith on demand,
such amount together with interest thereon at the interest rate then applicable
to Base Rate Loans in accordance with Section 5.1(a). The failure of any Lender
to make available to the Administrative Agent for the account of an Issuing Bank
its Pro Rata Share of any such payment shall neither relieve any other Lender of
its obligation hereunder to make available to the Administrative Agent for the
account of such Issuing Bank such other Lender's Pro Rata Share of any payment
on the date such payment is to be made nor increase the obligation of any other
Lender to make such payment to the Administrative Agent. Notwithstanding
anything to the contrary set forth herein, the aggregate amount to be paid by
any Lender with respect to any drawing under a Letter of Credit (whether as a
payment pursuant to this Section 3.1(e) or as a Loan pursuant to Section
3.1(d)(iv)) shall not exceed its Pro Rata Share of such drawing.
(iii) Whenever an Issuing Bank receives a payment on account
of a Reimbursement Obligation, including any interest thereon, as to which the
Administrative Agent has previously received payments from any other Lender for
the account of such Issuing Bank pursuant to this Section 3.1(e), such Issuing
Bank shall promptly pay to the Administrative Agent and the Administrative Agent
shall promptly pay to each other Lender an amount equal to such other Lender's
Pro Rata Share thereof. Each such payment shall be made by such reimbursed
Issuing Bank or the Administrative Agent, as the case may be, on the Business
Day on which such Person receives the funds paid to such Person pursuant to the
preceding sentence, if received prior to 11:00 a.m. (New York time) on such
Business Day, and otherwise on the next succeeding Business Day.
(iv) The Issuing Banks shall promptly furnish the Lenders
copies of any Letter of Credit, Letter of Credit Reimbursement Agreement, and
related amendment to which such Issuing Bank is party and such other
documentation as may be deemed reasonable.
(v) The obligations of a Lender to make payments to the
Administrative Agent for the account of any Issuing Bank with respect to a
Letter of Credit shall be irrevocable, shall not be subject to any qualification
or exception whatsoever except willful misconduct or gross negligence of such
Issuing Bank, and shall be honored in accordance with this Article III
(irrespective of the satisfaction of the conditions described in Sections 6.1
and 6.2, as applicable) under all circumstances, including, without limitation,
any of the following circumstances:
(A) any lack of validity or enforceability of this
Agreement or any of the other Loan Documents;
(B) the existence of any claim, setoff, defense or
other right which the Borrower may have at any time against a
beneficiary named in a Letter of Credit or any transferee of a
beneficiary named in a Letter of Credit (or any Person for whom
any such transferee may be acting), any Lender, or any other
Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or any unrelated
transactions (including any
-39-
underlying transactions between the account party and
beneficiary named in any Letter of Credit);
(C) any draft, certificate or any other document
presented under any Letter of Credit having been determined to
be forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect;
(D) the surrender or impairment of any security for
the performance or observance of any of the terms of any of the
Loan Documents;
(E) any failure by that Issuing Bank to make any
reports required pursuant to Section 3.1(h) or the inaccuracy of
any such report; or
(F) the occurrence of any Event of Default or
Potential Event of Default.
(f) PAYMENT OF REIMBURSEMENT OBLIGATIONS. (i) The Borrower
unconditionally agrees to pay to each Issuing Bank, in Dollars, the amount of
all Reimbursement Obligations, interest and other amounts payable to such
Issuing Bank under or in connection with the Letters of Credit when such amounts
are due and payable, irrespective of any claim, setoff, defense or other right
which the Borrower may have at any time against any Issuing Bank or any other
Person.
(ii) In the event any payment by the Borrower received by an
Issuing Bank with respect to a Letter of Credit and distributed by the
Administrative Agent to the Lenders on account of their participations is
thereafter set aside, avoided or recovered from such Issuing Bank in connection
with any receivership, liquidation or bankruptcy proceeding, each Lender which
received such distribution shall, upon demand by such Issuing Bank, contribute
such Lender's Pro Rata Share of the amount set aside, avoided or recovered
together with interest at the rate required to be paid by such Issuing Bank upon
the amount required to be repaid by it.
(g) LETTER OF CREDIT FEE CHARGES. In connection with each
Letter of Credit, Borrower hereby covenants to pay to the Administrative Agent
the following fees each payable quarterly in arrears (on the first Business Day
of each calendar quarter following the issuance of each Letter of Credit): (1) a
fee for the account of the Lenders, computed daily on the amount of such Letter
of Credit issued and outstanding at a rate per annum equal to the "BANKS' L/C
FEE RATE" (as hereinafter defined) and (2) a fee, for the Issuing Bank's own
account, computed daily on the amount of such Letter of Credit issued and
outstanding at a rate per annum equal to 0.125%. For purposes of this Agreement,
the "Banks' L/C Fee Rate" shall mean, at any time, a rate per annum equal to the
Applicable Margin for Eurodollar Rate Loans then in effect. In addition, the
Borrower shall pay to each Issuing Bank, solely for its own account, the
standard charges assessed by such Issuing Bank in connection with the issuance,
administration, amendment and payment or cancellation of Letters of Credit and
such compensation in respect of such Letters of Credit for the Borrower's
account as may be agreed upon by the Borrower and such Issuing Bank in writing
from time to time.
(h) LETTER OF CREDIT REPORTING REQUIREMENT. Each Issuing
Bank shall, no later than the tenth (10th) Business Day following the last day
of each calendar quarter, provide to the Administrative Agent (who shall
promptly provide to the Borrower and each other Lender)
-40-
separate schedules for Commercial Letters of Credit and Standby Letters of
Credit issued as Letters of Credit, in form and substance reasonably
satisfactory to the Administrative Agent, setting forth the aggregate Letter of
Credit Obligations outstanding to it at the end of each month and, to the extent
not otherwise provided in accordance with the provisions of Section 3.1(c), any
information requested by the Administrative Agent or the Borrower relating to
the date of issue, account party, amount, expiration date and reference number
of each Letter of Credit issued by it.
(i) INDEMNIFICATION; EXONERATION. (i) In addition to all
other amounts payable to an Issuing Bank, the Borrower hereby agrees to defend,
indemnify, and save harmless the Administrative Agent, each Issuing Bank, and
each other Lender from and against any and all claims, demands, liabilities,
penalties, damages, losses (other than loss of profits), reasonable costs,
reasonable charges and reasonable expenses (including reasonable attorneys' fees
but excluding taxes) which the Administrative Agent, the Issuing Banks, or such
other Lender may incur or be subject to as a consequence, direct or indirect, of
(A) the issuance of any Letter of Credit other than as a result of the gross
negligence or willful misconduct of the applicable Issuing Bank, as determined
by a court of competent jurisdiction, or (B) the failure of the applicable
Issuing Bank to honor a drawing under such Letter of Credit as a result of any
act or omission, whether rightful or wrongful, of any present or future DE JURE
or DE FACTO government or Governmental Authority.
(ii) As between the Borrower on the one hand and the Lenders
on the other hand, the Borrower assumes all risks of the acts and omissions of,
or misuse of Letters of Credit by, the respective beneficiaries of the Letters
of Credit. In furtherance and not in limitation of the foregoing, subject to the
provisions of the Letter of Credit Reimbursement Agreements, the Administrative
Agent, the applicable Issuing Bank and the other Lenders shall not be
responsible for: (A) the form, validity, legality, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in connection
with the application for and issuance of the Letters of Credit, even if it
should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (B) the validity, legality or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason;
(C) failure of the beneficiary of a Letter of Credit to duly comply with
conditions required in order to draw upon such Letter of Credit; (D) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(E) errors in interpretation of technical terms; (F) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit or of the proceeds thereof; (G) the misapplication by
the beneficiary of a Letter of Credit of the proceeds of any drawing under such
Letter of Credit; and (H) any consequences arising from causes beyond the
control of the Administrative Agent, the Issuing Banks or the other Lenders,
other than any of the foregoing resulting from the gross negligence or willful
misconduct of the Issuing Bank.
3.2. OBLIGATIONS SEVERAL. The obligations of the Administrative
Agent, each Issuing Bank, and each other Lender under this Article III are
several and not joint, and no Issuing Bank or other Lender shall be responsible
for the obligation to issue Letters of Credit or participation obligations
hereunder, respectively, of any other Issuing Bank or other Lender.
-41-
ARTICLE IV.
PAYMENTS AND PREPAYMENTS
4.1. PREPAYMENTS; REDUCTIONS IN REVOLVING CREDIT COMMITMENTS.
(a) VOLUNTARY PREPAYMENTS. The Borrower may, at any time and
from time to time, prepay the Loans, other than Competitive Bid Loans, in part
or in their entirety, subject to the following limitations. The Borrower shall
give at least three (3) Business Days prior written notice to the Administrative
Agent (which the Administrative Agent shall promptly transmit to each Lender) of
any prepayment in the entirety to be made prior to the occurrence of an Event of
Default, which notice of prepayment shall specify the date (which shall be a
Business Day) of prepayment. When notice of prepayment is delivered as provided
herein, the outstanding principal amount of the Loans on the prepayment date
specified in such notice shall become due and payable on such prepayment date.
Each voluntary partial prepayment of the Loans shall be in a minimum amount of
$1,000,000 and in integral multiples of $500,000 in excess of that amount (or
such lesser amount in the event the unpaid principal amount of any Loan is less
than such minimum prepayment amount). Eurodollar Rate Loans may be prepaid in
part or in their entirety only upon payment of the amounts described in Section
5.2(f). Notwithstanding anything contained in this Agreement to the contrary,
Competitive Bid Loans may not be voluntarily prepaid without the consent of the
Lender(s) making such Competitive Bid Loans.
(b) VOLUNTARY REDUCTIONS IN REVOLVING CREDIT COMMITMENTS.
The Borrower may, upon at least three (3) Business Days' prior written notice to
the Administrative Agent (which the Administrative Agent shall promptly transmit
to each Lender), at any time and from time to time, terminate in whole or
permanently reduce in part the Revolving Credit Commitments, PROVIDED that (i)
the Borrower shall have made whatever payment may be required to reduce the
Revolving Credit Obligations to an amount less than or equal to the Revolving
Credit Commitments as reduced, which amount shall become due and payable on the
date specified in such notice and (ii) in the case of a reduction, the minimum
Revolving Credit Commitments that shall remain outstanding shall be $100,000,000
unless the Revolving Credit Commitments have been terminated and reduced to
zero. Any partial reduction of the Revolving Credit Commitments shall be in an
aggregate minimum amount of $1,000,000 and integral multiples of $1,000,000 in
excess of that amount, and shall reduce the Revolving Credit Commitment of each
Lender proportionately in accordance with its Pro Rata Share. Any notice of
termination or reduction given to the Administrative Agent under this Section
4.l(b) shall specify the date (which shall be a Business Day) of such
termination or reduction and, with respect to a partial reduction, the aggregate
principal amount thereof.
(c) NO PENALTY. The prepayments and payments in respect of
reductions and terminations described in clauses (a) and (b) of this Section 4.1
may be made without premium or penalty (except as provided in Section 5.2(f)).
(d) MANDATORY PREPAYMENT. If at any time from and after the
Closing Date: (i) the Company or the Borrower merges or consolidates with
another Person and the Company or Borrower, as the case may be, is not the
surviving entity and does not control the management of such surviving entity,
or (ii) the Company, the Borrower, any of its Affiliates or Consolidated
Subsidiaries or the Management Company ceases to provide property management and
leasing services to at least 80% of the total number of Projects in which the
Borrower has a direct ownership interest (the date any such event shall occur
being the "PREPAYMENT DATE"), the Borrower shall be required to prepay the Loans
in their entirety as if the Prepayment Date were
-42-
the Revolving Credit Termination Date and, the Revolving Credit Commitments
thereupon shall be terminated. The Borrower shall immediately make such
prepayment together with interest accrued to the date of the prepayment on the
principal amount prepaid and shall return or cause to be returned all Letters of
Credit to the applicable Issuing Bank. In connection with the prepayment of any
Loan prior to the maturity thereof, the Borrower shall also pay any applicable
expenses pursuant to Section 5.2(f). Each such prepayment shall be applied to
prepay ratably the Loans of the Lenders. Amounts prepaid pursuant to this
Section 4.1(d) (other than amounts prepaid pursuant to the first sentence of
this Section 4.1(d)) may not be reborrowed. As used in this Section 4.1(d) only,
the phrase "sale, transfer, assignment or conveyance" shall not include (i)
sales or conveyances among Borrower and any of its Consolidated Subsidiaries, or
(ii) mortgages or other security interests secured by Real Property or other
Property which are permitted under this Agreement. Such prepayment shall not
affect any rights and remedies that the Agents and Lenders may otherwise have
hereunder.
4.2. PAYMENTS.
(a) MANNER AND TIME OF PAYMENT. All payments of principal of
and interest on the Loans and Reimbursement Obligations and other Obligations
(including, without limitation, fees and expenses) which are payable to the
Administrative Agent, the Arrangers or any Lender shall be made without
condition or reservation of right, in immediately available funds, delivered to
the Administrative Agent not later than 12:00 noon (New York time) on the date
and at the place due, to such account of the Administrative Agent (or an
Arranger) as it may designate, for the account of the Administrative Agent, the
Arrangers, or such Lender, as the case may be; and funds received by the
Administrative Agent (or an Arranger), including, without limitation, funds in
respect of any Loans to be made on that date, not later than 12:00 noon (New
York time) on any given Business Day shall be credited against payment to be
made that day and funds received by the Administrative Agent (or an Arranger)
after that time shall be deemed to have been paid on the next succeeding
Business Day. Payments actually received by the Administrative Agent for the
account of a Documentation Agent, the Syndication Agent and the Lenders, or any
of them, shall be paid to them by the Administrative Agent promptly after
receipt thereof.
(b) APPORTIONMENT OF PAYMENTS. (i) Subject to the provisions
of Section 4.2(b)(v), all payments of principal and interest in respect of
outstanding Loans, all payments in respect of Reimbursement Obligations, all
payments of fees and all other payments in respect of any other Obligations,
shall be allocated among such of the Lenders as are entitled thereto, in
proportion to their respective Pro Rata Shares or otherwise as provided herein.
Subject to the provisions of Section 4.2(b)(ii), all such payments and any other
amounts received by the Administrative Agent from or for the benefit of the
Borrower shall be applied in the following order:
(A) to pay principal of and interest on any portion
of the Loans which the Administrative Agent may have advanced on
behalf of any Lender other than JPMorgan for which the
Administrative Agent has not then been reimbursed by such Lender
or the Borrower;
(B) to pay all other Obligations then due and
payable, and
(C) as the Borrower so designates.
-43-
Unless otherwise designated by the Borrower, all principal payments in respect
of its Committed Loans shall be applied first, to repay its outstanding Base
Rate Loans, and then to repay its outstanding Eurodollar Rate Loans with those
Eurodollar Rate Loans which have earlier expiring Eurodollar Interest Periods
being repaid prior to those which have later expiring Eurodollar Interest
Periods.
(ii) After the occurrence of an Event of Default and while
the same is continuing which results in an acceleration of the
Obligations in accordance with Section 11.2, the Administrative Agent
shall apply all payments in respect of any Obligations in the following
order:
(A) first, to pay principal of and interest on any
portion of the Loans which the Administrative Agent may have
advanced on behalf of any Lender other than JPMorgan for which
the Administrative Agent has not then been reimbursed by such
Lender or the Borrower;
(B) second, to pay Obligations in respect of any
fees, expense reimbursements or indemnities then due to the
Administrative Agent;
(C) third, to pay principal of and interest on
Letter of Credit Obligations (or, to the extent such Obligations
are contingent, deposited with the Administrative Agent to
provide cash collateral in respect of such Obligations);
(D) fourth, to pay Obligations in respect of any
fees, expense reimbursements or indemnities then due to the
Lenders;
(E) fifth, to pay interest due in respect of Loans;
(F) sixth, to the ratable payment or prepayment of
principal outstanding on Loans; and
(G) seventh, to the ratable payment of all other
Obligations.
The order of priority set forth in this Section 4.2(b)(ii) and the related
provisions of this Agreement are set forth solely to determine the rights and
priorities of the Administrative Agent and the Lenders as among themselves. The
order of priority set forth in clauses (A) and (B) of this Section 4.2(b)(ii)
may be changed only with the prior written consent of the Administrative Agent.
(iii) The Administrative Agent, in its sole discretion subject
only to the terms of this Section 4.2(b)(iii), may pay from the proceeds
of Loans made to the Borrower hereunder, whether made following a
request by the Borrower pursuant to Section 2.1 or a deemed request as
provided in this Section 4.2(b)(iii), all amounts payable by the
Borrower hereunder, including, without limitation, amounts payable with
respect to payments of principal, interest, Reimbursement Obligations
and fees. The Borrower hereby irrevocably authorizes the Lenders to make
Loans, which Loans shall be Base Rate Loans, in each case, upon notice
from the Administrative Agent as described in the following sentence for
the purpose of paying principal, interest, Reimbursement Obligations and
fees due from the Borrower, and agrees that all such Loans so made shall
be deemed to have been requested by it pursuant to Section 2.1 as of the
date of the
-44-
aforementioned notice. The Administrative Agent shall request Loans on
behalf of the Borrower as described in the preceding sentence by
notifying the Lenders by facsimile transmission or other similar written
form of transmission (which notice the Administrative Agent shall
thereafter promptly transmit to the Borrower), of the amount and Funding
Date of the proposed Borrowing and that such Borrowing is being
requested on the Borrower's behalf pursuant to this Section 4.2(b)(iii).
On the proposed Funding Date, the Lenders shall make the requested Loans
in accordance with the procedures and subject to the conditions
specified in Section 2.1.
(iv) Subject to Section 4.2(b)(v), the Administrative Agent
shall promptly distribute to the Arrangers and each Lender at its
primary address set forth on SCHEDULE LC hereto or as set forth in the
Assignment and Acceptance by which it became a Lender, or at such other
address as a Lender may request in writing, such funds as such Person
may be entitled to receive, subject to the provisions of Article XII;
provided that the Administrative Agent shall under no circumstances be
bound to inquire into or determine the validity, scope or priority of
any interest or entitlement of any Lender and may suspend all payments
or seek appropriate relief (including, without limitation, instructions
from the Requisite Lenders or an action in the nature of interpleader)
in the event of any doubt or dispute as to any apportionment or
distribution contemplated hereby.
(v) In the event that any Lender fails to fund its Pro Rata
Share of any Loan requested by the Borrower which such Lender is
obligated to fund under the terms of this Agreement (the funded portion
of such Loan being hereinafter referred to as a "NON PRO RATA LOAN"),
until the earlier of such Lender's cure of such failure and the
termination of the Revolving Credit Commitments, the proceeds of all
amounts thereafter repaid to the Administrative Agent by the Borrower
and otherwise required to be applied to such Lender's share of all other
Obligations pursuant to the terms of this Agreement shall be advanced to
the Borrower by the Administrative Agent on behalf of such Lender to
cure, in full or in part, such failure by such Lender, but shall
nevertheless be deemed to have been paid to such Lender in satisfaction
of such other Obligations. Notwithstanding anything in this Agreement to
the contrary:
(A) the foregoing provisions of this Section
4.2(b)(v) shall apply only with respect to the proceeds of
payments of Obligations and shall not affect the conversion or
continuation of Loans pursuant to Section 5.1(c);
(B) a Lender shall be deemed to have cured its
failure to fund its Pro Rata Share of any Loan at such time as
an amount equal to such Lender's original Pro Rata Share of the
requested principal portion of such Loan is fully funded to the
Borrower, whether made by such Lender itself or by operation of
the terms of this Section 4.2(b)(v), and whether or not the Non
Pro Rata Loan with respect thereto has been repaid, converted or
continued;
(C) amounts advanced to the Borrower to cure, in
full or in part, any such Lender's failure to fund its Pro Rata
Share of any Loan ("CURE LOANS") shall bear interest at the Base
Rate in effect from time to time, and for all other purposes of
this Agreement shall be treated as if they were Base Rate Loans;
and
-45-
(D) regardless of whether or not an Event of Default
has occurred or is continuing, and notwithstanding the
instructions of the Borrower as to its desired application, all
repayments of principal which, in accordance with the other
terms of this Section 4.2, would be applied to its outstanding
Base Rate Loans shall be applied first, ratably to its Base Rate
Loans constituting Non Pro Rata Loans, second, ratably to its
Base Rate Loans other than those constituting Non Pro Rata Loans
or Cure Loans and, third, ratably to its Base Rate Loans
constituting Cure Loans.
(c) PAYMENTS ON NON-BUSINESS DAYS. Whenever any payment to
be made by the Borrower hereunder or under the Notes is stated to be due on a
day which is not a Business Day, the payment shall instead be due on the next
succeeding Business Day (or, as set forth in Section 5.2(b)(iv), the next
preceding Business Day).
4.3. PROMISE TO REPAY; EVIDENCE OF INDEBTEDNESS.
(a) PROMISE TO REPAY. The Borrower hereby agrees to pay when
due, without setoff or counterclaim, the principal amount of each Loan which is
made to it, and further agrees to pay all unpaid interest accrued thereon, in
accordance with the terms of this Agreement and the Notes. The Borrower shall
execute and deliver to each Lender on the Closing Date, a promissory note, in
the form of EXHIBIT B-1 attached hereto with blanks appropriately completed,
evidencing the Loans and thereafter shall execute and deliver such other
promissory notes as are necessary to evidence the Loans made to it owing to the
Lenders after giving effect to any assignment thereof pursuant to Section 14.1,
all in the form of EXHIBIT B-1 attached hereto with blanks appropriately
completed (all such promissory notes and all amendments thereto, replacements
thereof and substitutions therefor being collectively referred to as the
"BORROWER NOTES"; and "BORROWER NOTE" means any one of the Borrower Notes).
(b) LOAN ACCOUNT. Each Lender shall maintain in accordance
with its usual practice an account or accounts (a "LOAN ACCOUNT") evidencing the
Indebtedness of the Borrower to such Lender resulting from each Loan owing to
such Lender from time to time, including the amount of principal and interest
payable and paid to such Lender from time to time hereunder and under the Notes.
(c) CONTROL ACCOUNT. The Register maintained by the
Administrative Agent pursuant to Section 14.1(c) shall include a control
account, and a subsidiary account for each Lender, in which accounts (taken
together) shall be recorded (i) the date and amount of each Borrowing made
hereunder, the type of Loan comprising such Borrowing and any Eurodollar
Interest Period applicable thereto, (ii) the effective date and amount of each
Assignment and Acceptance delivered to and accepted by it and the parties
thereto, (iii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder or under the
Notes and (iv) the amount of any sum received by the Administrative Agent from
the Borrower hereunder and each Lender's share thereof.
(d) ENTRIES BINDING. The entries made in the Register and
each Loan Account shall be conclusive and binding for all purposes, absent
manifest error.
-46-
(e) NO RECOURSE. Notwithstanding anything contained in this
Agreement, any Note, or the Guaranties to the contrary, it is expressly
understood and agreed that nothing herein or therein shall be construed as
creating any liability on any Limited Partner, or any partner, officer,
shareholder or director of any Limited Partner or any officer, trustee, member,
director, or employee of the Borrower or any Guarantor, to pay any of the
Obligations other than liability arising under applicable law from or in
connection with (i) its own fraud or (ii) the misappropriation or misapplication
by it of proceeds of the Loans; but nothing contained in this Section 4.3(e)
shall be construed to prevent the exercise of any remedy allowed to the
Administrative Agent, the Arrangers or the Lenders by law or by the terms of
this Agreement or the other Loan Documents which does not relate to or result in
such an obligation by any Limited Partner or such other Persons to pay money.
ARTICLE V.
INTEREST AND FEES
5.1. INTEREST ON THE LOANS AND OTHER OBLIGATIONS.
(a) RATE OF INTEREST. All Loans and the outstanding
principal balance of all other Obligations shall bear interest on the unpaid
principal amount thereof from the date such Loans are made and such other
Obligations are due and payable until paid in full, except as otherwise provided
in Section 5.1(d), as follows:
(i) If a Base Rate Loan or such other Obligation, at a rate
per annum equal to the sum of (A) the Base Rate, as in effect from time
to time as interest accrues, PLUS (B) the then Applicable Margin for
Base Rate Loans;
(ii) If a Eurodollar Rate Loan, at a rate per annum equal to
the sum of (A) the Eurodollar Rate determined for the applicable
Eurodollar Interest Period, PLUS (B) the then Applicable Margin for
Eurodollar Loans; and
(iii) If a Competitive Bid Loan, at a rate per annum equal to
the sum of (A) the Eurodollar Rate determined for the applicable
Eurodollar Interest Period (determined as if the related Competitive Bid
Loan were a Committed Loan which is Eurodollar Rate Loan) PLUS (B) the
Competitive Bid Margin quoted by the Lender making such Competitive Bid
Loan in accordance with Section 2.2.
The applicable basis for determining the rate of interest on the Loans shall be
selected by the Borrower at the time a Notice of Borrowing or a Notice of
Conversion/Continuation is delivered by the Borrower to the Administrative
Agent; PROVIDED, HOWEVER, the Borrower may not select the Eurodollar Rate as the
applicable basis for determining the rate of interest on such a Loan if at the
time of such selection an Event of Default has occurred and is continuing or if
Eurodollar Rate Loans are not available pursuant to Section 5.2(d) or (e). If on
any day any Loan is outstanding with respect to which notice has not been timely
delivered to the Administrative Agent in accordance with the terms of this
Agreement specifying the basis for determining the rate of interest on that day,
then for that day interest on that Loan shall be determined by reference to the
Base Rate.
(b) INTEREST PAYMENTS. (i) Interest accrued on each Loan,
whether a Base Rate Loan, a Eurodollar Loan or a Competitive Bid Loan shall be
calculated on the last day of each calendar month and shall be payable in
arrears (A) on the first day of each calendar month,
-47-
commencing on the first such day following the making of such Loan, and on the
last day of the applicable Eurodollar Interest Period with respect to a
Competitive Bid Loan, (B) upon the payment or prepayment thereof in full or in
part, and (C) if not theretofore paid in full, at maturity (whether by
acceleration or otherwise) of such Loan.
(ii) Interest accrued on the principal balance of all other
Obligations shall be calculated on the last day of each calendar month and shall
be payable in arrears (A) on the first (1st) Business Day of each calendar
month, commencing on the first such day following the incurrence of such
Obligation, (B) upon repayment thereof in full or in part, and (C) if not
theretofore paid in full, at the time such other Obligation becomes due and
payable (whether by acceleration or otherwise).
(c) CONVERSION OR CONTINUATION. (i) The Borrower shall have
the option (A) to convert at any time all or any part of outstanding Base Rate
Loans to Eurodollar Rate Loans; (B) to convert all or any part of outstanding
Eurodollar Rate Loans having Eurodollar Interest Periods which expire on the
same date to Base Rate Loans on such expiration date; or (C) to continue all or
any part of outstanding Eurodollar Rate Loans having Eurodollar Interest Periods
which expire on the same date as Eurodollar Rate Loans, and the succeeding
Eurodollar Interest Period of such continued Loans shall commence on such
expiration date; PROVIDED, HOWEVER, no such outstanding Loan may be continued
as, or be converted into, a Eurodollar Rate Loan (i) if the continuation of, or
the conversion into, would violate any of the provisions of Section 5.2 or (ii)
if an Event of Default has occurred and is continuing. Any conversion into or
continuation of Eurodollar Rate Loans under this Section 5.1(c) shall be in a
minimum amount of $3,000,000 and in integral multiples of $500,000 in excess of
that amount, except in the case of a conversion into or a continuation of an
entire Borrowing of Non Pro Rata Loans.
(ii) To convert or continue a Committed Loan under Section
5.1(c)(i), the Borrower shall deliver a Notice of Conversion/Continuation to the
Administrative Agent no later than 11:00 a.m. (New York time) at least three (3)
Business Days in advance of the proposed conversion/continuation date. A Notice
of Conversion/ Continuation shall specify (A) the proposed
conversion/continuation date (which shall be a Business Day), (B) the principal
amount of the Committed Loan to be converted/continued, (C) whether such Loan
shall be converted and/or continued, and (D) in the case of a conversion to, or
continuation of, a Eurodollar Rate Loan, the requested Eurodollar Interest
Period. Promptly after receipt of a Notice of Conversion/Continuation under this
Section 5.1(c)(ii), the Administrative Agent shall notify each Lender by
facsimile transmission, or other similar written form of transmission, of the
proposed conversion/continuation. Any Notice of Conversion/Continuation for
conversion to, or continuation of, a Loan (or telephonic notice in lieu thereof)
given pursuant to this Section 5.1(c)(ii) shall be irrevocable, and the Borrower
shall be bound to convert or continue in accordance therewith. In the event no
Notice of Conversion/Continuation is delivered as and when specified in this
Section 5.1(c)(ii) with respect to outstanding Eurodollar Rate Loans, upon the
expiration of the Eurodollar Interest Period applicable thereto, such Loans
shall automatically be converted to a Base Rate Loan.
(d) DEFAULT INTEREST. Notwithstanding the rates of interest
specified in Section 5.1(a) or elsewhere in this Agreement, effective
immediately upon the occurrence of an Event of Default, and for as long
thereafter as such Event of Default shall be continuing, the principal balance
of all Loans and other Obligations shall bear interest at a rate equal to (A) in
the case of any Eurodollar Rate Loans outstanding as of the date of occurrence
of any Event of Default, the sum of (x) the applicable Eurodollar Rate, PLUS (y)
six percent (6.0%) per annum, and
-48-
(B) in the case of any Base Rate Loan (including any Eurodollar Loan that is
converted to a Base Rate Loan at maturity) the sum of (x) the Base Rate, as in
effect from time to time as interest accrues, PLUS (y) five percent (5.0%) per
annum.
(e) COMPUTATION OF INTEREST. Interest on all obligations
shall be computed on the basis of the actual number of days elapsed in the
period during which interest accrues and a year of 360 days. In computing
interest on any Loan, the date of the making of such Loan or the first day of a
Eurodollar Interest Period, as the case may be, shall be included and the date
of payment or the expiration date of a Eurodollar Interest Period, as the case
may be, shall be excluded.
(f) EURODOLLAR RATE INFORMATION. Upon the request of the
Borrower, the Administrative Agent shall promptly provide to the Borrower such
information with respect to the applicable Eurodollar Rate as may be so
requested.
5.2. SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS AND
COMPETITIVE BID LOANS.
(a) AMOUNT OF EURODOLLAR RATE LOANS. Each Eurodollar Rate
Loan shall be in a minimum principal amount of $3,000,000 and in integral
multiples of $500,000 in excess of that amount.
(b) DETERMINATION OF EURODOLLAR INTEREST PERIOD. By giving
notice as set forth in Section 2.1(c) (with respect to a Borrowing of Eurodollar
Rate Loans), Section 2.2 (with respect to a Borrowing of Competitive Bid Loans)
or Section 5.1(c) (with respect to a conversion into or continuation of
Eurodollar Rate Loans), the Borrower shall have the option, subject to the other
provisions of this Section 5.2, to select an interest period (each, a
"EURODOLLAR INTEREST PERIOD") to apply to the Loans described in such notice,
subject to the following provisions:
(i) The Borrower may only select, as to a particular
Borrowing of Eurodollar Rate Loans, a Eurodollar Interest Period of one,
two, three or six months in duration;
(ii) The Borrower may only select, as to a particular
Borrowing of Competitive Bid Loans, a Eurodollar Interest Period of one,
two, or three months in duration;
(iii) In the case of immediately successive Eurodollar
Interest Periods applicable to a Borrowing of Eurodollar Rate Loans,
each successive Eurodollar Interest Period shall commence on the day on
which the next preceding Eurodollar Interest Period expires;
(iv) If any Eurodollar Interest Period would otherwise expire
on a day which is not a Business Day, such Eurodollar Interest Period
shall be extended to expire on the next succeeding Business Day if the
next succeeding Business Day occurs in the same calendar month, and if
there will be no succeeding Business Day in such calendar month, such
Eurodollar Interest Period shall expire on the immediately preceding
Business Day;
-49-
(v) The Borrower may not select a Eurodollar Interest Period
as to any Loan if such Eurodollar Interest Period terminates later than
the Revolving Credit Termination Date;
(vi) The Borrower may not select a Eurodollar Interest Period
with respect to any portion of principal of a Loan which extends beyond
a date on which the Borrower is required to make a scheduled payment of
such portion of principal of which the Borrower is aware on the date of
such request, in the case of a payment pursuant to Section 4.1(d)
hereof; and
(vii) There shall be no more than ten (10) Eurodollar Interest
Periods in effect at any one time with respect to Eurodollar Rate Loans.
(c) DETERMINATION OF EURODOLLAR INTEREST RATE. As soon as
practicable on the second Business Day prior to the first day of each Eurodollar
Interest Period (the "EURODOLLAR INTEREST RATE DETERMINATION DATE"), the
Administrative Agent shall determine (pursuant to the procedures set forth in
the definition of "Eurodollar Rate") the interest rate which shall apply to the
Eurodollar Rate Loans or Competitive Bid Loans for which an interest rate is
then being determined for the applicable Eurodollar Interest Period and shall
promptly give notice thereof (in writing or by telephone or by facsimile
confirmed in writing) to the Borrower and to each Lender. The Administrative
Agent's determination shall be presumed to be correct, absent manifest error,
and shall be binding upon the Borrower.
(d) INTEREST RATE UNASCERTAINABLE, INADEQUATE OR UNFAIR. In
the event that at least one (1) Business Day before any Eurodollar Interest Rate
Determination Date:
(i) the Administrative Agent is advised by the Reference
Bank that deposits in Dollars (in the applicable amounts) are not being
offered by the Reference Bank in the London interbank market for such
Eurodollar Interest Period; or
(ii) the Administrative Agent determines that adequate and
fair means do not exist for ascertaining the applicable interest rates
by reference to which the Eurodollar Rate then being determined is to be
fixed;
(iii) the Requisite Lenders advise the Administrative Agent
that the Eurodollar Rate for Eurodollar Rate Loans comprising such
Borrowing will not adequately reflect the cost to such Requisite Lenders
of obtaining funds in Dollars in the London interbank market in an
amount substantially equal to such Lenders' Eurodollar Rate Loans in
Dollars and for a period equal to such Eurodollar Interest Period; or
(iv) the applicable Lender(s) advise the Administrative Agent
that the Eurodollar Rate for Competitive Bid Loans comprising such
Borrowing will not adequately reflect the cost to such Lender(s) of
obtaining funds in Dollars in the London interbank market in an amount
substantially equal to such Lender(s)' Competitive Bid Loans in Dollars
and for a period equal to such Eurodollar Interest Period;
then the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Lenders, whereupon (until the Administrative Agent notifies the
Borrower that the circumstances giving rise to such suspension no longer exist)
the right of the Borrower to elect to have Loans bear interest based upon the
Eurodollar Rate shall be suspended and each outstanding Eurodollar
-50-
Rate Loan and Competitive Bid Loan shall be converted into a Base Rate Loan on
the last day of the then current Eurodollar Interest Period therefor,
notwithstanding any prior election by the Borrower to the contrary.
(e) ILLEGALITY. (i) If at any time any Lender determines
(which determination shall, absent manifest error, be final and conclusive and
binding upon all parties) that the making or continuation of any Eurodollar Rate
Loan or Competitive Bid Loan has become unlawful or impermissible by compliance
by that Lender with any law, governmental rule, regulation or order of any
Governmental Authority (whether or not having the force of law and whether or
not failure to comply therewith would be unlawful or would result in costs or
penalties), then, and in any such event, such Lender may give notice of that
determination, in writing, to the Borrower and the Administrative Agent, and the
Administrative Agent shall promptly transmit the notice to each other Lender.
(ii) When notice is given by a Lender under Section
5.2(e)(i), (A) the Borrower's right to request from such Lender and such
Lender's obligation, if any, to make Eurodollar Rate Loans to the
Borrower shall be immediately suspended, and such Lender shall make a
Base Rate Loan as part of any requested Borrowing of Eurodollar Rate
Loans and (B) if the affected Eurodollar Rate Loan or Loans or
Competitive Bid Loans are then outstanding, the Borrower shall
immediately, or if permitted by applicable law, no later than the date
permitted thereby, upon at least one (1) Business Day's prior written
notice to the Administrative Agent and the affected Lender, convert each
such Loan into a Base Rate Loan.
(iii) If at any time after a Lender gives notice under Section
5.2(e)(i) such Lender determines that it may lawfully make Eurodollar
Rate Loans, such Lender shall promptly give notice of that
determination, in writing, to the Borrower and the Administrative Agent,
and the Administrative Agent shall promptly transmit the notice to each
other Lender. The Borrower's right to request, and such Lender's
obligation, if any, to make Eurodollar Rate Loans to the Borrower shall
thereupon be restored.
(f) COMPENSATION. In addition to all amounts required to be
paid by the Borrower pursuant to Section 5.1 and Article XIII, the Borrower
shall compensate each Lender, upon demand, for all losses, expenses and
liabilities (including, without limitation, any loss or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Lender to fund or maintain such Lender's Eurodollar Rate Loans or
Competitive Bid Loans to the Borrower, but excluding any loss of Applicable
Margin on the relevant Loans) which that Lender may sustain (i) if for any
reason a Borrowing, conversion into or continuation of Eurodollar Rate Loans
and/or Competitive Bid Loans does not occur on a date specified therefor in a
Notice of Borrowing or a Notice of Conversion/Continuation given by the Borrower
or in a telephonic request by it for borrowing or conversion/ continuation or a
successive Eurodollar Interest Period does not commence after notice therefor is
given pursuant to Section 5.1(c), other than pursuant to Sections 5.2(d) or (e),
or (ii) if for any reason any Eurodollar Rate Loan is prepaid (other than
pursuant to Section 5.2(d) or (e)) or converted on a date which is not the last
day of the applicable Eurodollar Interest Period or (iii) as a consequence of
any failure by the Borrower to repay a Eurodollar Rate Loan or Competitive Bid
Loan when required by the terms of this Agreement. The Lender making demand for
such compensation shall deliver to the Borrower concurrently with such demand a
written statement in reasonable detail as to such
-51-
losses, expenses and liabilities, and this statement shall be conclusive as to
the amount of compensation due to that Lender, absent manifest error.
(g) BOOKING OF EURODOLLAR RATE LOANS AND COMPETITIVE BID
LOANS. Any Lender may make, carry or transfer Eurodollar Rate Loans and
Competitive Bid Loans at, to, or for the account of, its Eurodollar Lending
Office or Eurodollar Affiliate or its other offices or Affiliates. No Lender
shall be entitled, however, to receive any greater amount under Sections 4.2 or
5.2(f) or Article XIII as a result of the transfer of any such Eurodollar Rate
Loan or Competitive Bid Loan to any office (other than such Eurodollar Lending
Office) or any Affiliate (other than such Eurodollar Affiliate) than such Lender
would have been entitled to receive immediately prior thereto, unless (i) the
transfer occurred at a time when circumstances giving rise to the claim for such
greater amount did not exist and (ii) such claim would have arisen even if such
transfer had not occurred.
(h) AFFILIATES NOT OBLIGATED. No Eurodollar Affiliate or
other Affiliate of any Lender shall be deemed a party to this Agreement or shall
have any liability or obligation under this Agreement.
(i) ADJUSTED EURODOLLAR RATE. Any failure by any Lender to
take into account the Eurodollar Reserve Percentage when calculating interest
due on Eurodollar Rate Loans or Competitive Bid Loans shall not constitute,
whether by course of dealing or otherwise, a waiver by such Lender of its right
to collect such amount for any future period.
(j) APPLICATION OF MANDATORY PREPAYMENTS. The principal
amount of any mandatory prepayment pursuant to Section 4.1(d) hereof, shall be
applied, first, to the outstanding Base Rate Loans and then, to the outstanding
Eurodollar Rate Loans. Unless the Borrower otherwise pays breakage costs in
accordance with Section 5.2(f), the Administrative Agent shall hold such
principal amounts allocated for prepayment of Eurodollar Rate Loans until the
end of the applicable Eurodollar Interest Periods) and, during the interim
period, shall invest said sums in Cash Equivalents. Interest earned thereon
shall be forwarded to the Borrower upon the payment of the Eurodollar Rate Loans
at the end of said Eurodollar Interest Period. Interest shall continue to accrue
on the principal amount of such Eurodollar Rate Loans until so paid.
5.3. FEES.
(a) LETTER OF CREDIT FEE. The Borrower shall pay to the
Administrative Agent, for the account of the Lenders in proportion to their
interests in respective undrawn Letters of Credit, a Letter of Credit Fee as
more particularly set forth in Section 3.1(g) hereof.
(b) FACILITY FEE. The Borrower shall pay to the
Administrative Agent for the account of the Lenders based on their respective
Pro Rata Shares, a facility fee on the Revolving Credit Commitments at the
respective percentages per annum based upon the Borrower's Credit Rating in
accordance with the following table:
-52-
Range of
the Borrower's
Credit Rating
(S&P/Xxxxx'x Facility Fee
Ratings) (% per annum)
-------- -------------
A-/A3 or higher 0.15
BBB+/Baa1 0.175
BBB/Baa2 0.20
BBB-/Baa3 0.20
Below BBB-/Baa3 or unrated 0.30
The facility fee shall be payable quarterly, in arrears, on the first Business
Day of each January, April, July and October, commencing on the first such day
after the Closing Date. Any change in the Borrower's Credit Rating causing it to
move into a different range on the table shall effect an immediate change in the
applicable percentage per annum. The Borrower shall maintain Credit Ratings from
at least two (2) Rating Agencies, one of which must be Xxxxx'x or S&P so long as
such Persons are in the business of providing debt ratings for the REIT
industry; PROVIDED that if the Borrower fails to maintain at least two Credit
Ratings, the applicable percentage shall be based upon an S&P rating of less
than BBB- in the table above. In the event that the Borrower's Credit Rating is
such that the Rating Agencies' ratings are split between a higher and a lower
rating, the applicable percentage per annum shall be based upon the lower of
such two (2) Credit Ratings. In the event that the Borrower receives more than
two (2) Credit Ratings and such Credit Ratings are not equivalent, the
applicable fee shall be determined by the lower of the two (2) highest ratings,
provided that each of said two (2) highest ratings shall be Investment Grade
Ratings and at least one of which shall be an Investment Grade Rating from S&P
or Xxxxx'x.
Notwithstanding the foregoing, in the event that any Lender fails to
fund its Pro Rata Share of any Loan requested by the Borrower which such Lender
is obligated to fund under the terms of this Agreement, (A) such Lender shall
not be entitled to any portion of the facility fee with respect to its Revolving
Credit Commitment until such failure has been cured in accordance with Section
4.2(b)(v)(B) and (B) until such time, the facility fee shall accrue in favor of
the Lenders which have funded their respective Pro Rata Shares of such requested
Loan, and shall be allocated among such performing Lenders ratably based upon
their relative Revolving Credit Commitments.
(c) COMPETITIVE BID FEE. Simultaneously with the delivery of
each Notice of Competitive Bid Borrowing, the Borrower shall pay to the
Administrative Agent for its own account, a fee equal to $2,500.
(d) CALCULATION AND PAYMENT OF FEES. All fees shall be
calculated on the basis of the actual number of days elapsed in a 360-day year.
All fees shall be payable in addition to, and not in lieu of, interest,
compensation, expense reimbursements, indemnification and other Obligations.
Fees shall be payable to the Administrative Agent at its office in New York, New
York in immediately available funds unless otherwise set forth herein. All fees
shall be fully earned and nonrefundable when paid. All fees due to any Arranger
or any Lender, including, without limitation, those referred to in this Section
5.3, shall bear interest, if not paid when due, at the interest rate specified
in Section 5.1(d) and shall constitute Obligations.
-53-
ARTICLE VI.
CONDITIONS TO LOANS AND LETTERS OF CREDIT
6.1. CONDITIONS PRECEDENT TO THE INITIAL LOANS AND LETTERS OF CREDIT.
The obligation of each Lender on the Initial Funding Date to make any Loan
requested to be made by it, and to issue Letters of Credit, shall be subject to
the satisfaction of all of the following conditions precedent:
(a) DOCUMENTS. The Administrative Agent shall have received
on or before the Initial Funding Date all of the following:
(i) this Agreement, the Notes, and, to the extent not
otherwise specifically referenced in this Section 6.1(a), all other Loan
Documents and agreements, documents and instruments described in the
List of Closing Documents attached hereto as EXHIBIT E and made a part
hereof, each duly executed, and in form and substance satisfactory to
the Agents; without limiting the foregoing, the Borrower hereby directs
its counsel, Fried Xxxxx Xxxxxx Xxxxxxx & Xxxxxxxx LLP to prepare and
deliver to the Agents, the Lenders, and Xxxxxxx XxXxxxxxx LLP the legal
opinions referred to in such List of Closing Documents; and
(ii) such additional documentation as the Agents may
reasonably request.
(b) NO LEGAL IMPEDIMENTS. No law, regulation, order,
judgment or decree of any Governmental Authority shall, and the Administrative
Agent shall not have received any notice that litigation is pending or
threatened which is likely to (i) enjoin, prohibit or restrain the making of the
Loans and/or the issuance of Letters of Credit on the Initial Funding Date or
(ii) impose or result in the imposition of a Material Adverse Effect.
(c) NO CHANGE IN CONDITION. No change in the business,
assets, management, operations, financial condition or prospects of the Borrower
or any of its Properties shall have occurred since March 31, 2004 which change,
in the judgment of the Administrative Agent and the Syndication Agent, will have
a Material Adverse Effect.
(d) INTERIM LIABILITIES AND EQUITY. Except as disclosed to
the Arrangers and the Lenders, since March 31, 2004, neither the Borrower nor
the Company shall have (i) entered into any (as determined in good faith by the
Administrative Agent and the Syndication Agent) commitment or transaction,
including, without limitation, transactions for borrowings and capital
expenditures, which are not in the ordinary course of the Borrower's business,
(ii) declared or paid any dividends or other distributions other than in the
ordinary course of business, (iii) established compensation or employee benefit
plans, or (iv) redeemed or issued any equity Securities, in each case other than
those described on SCHEDULE 6.1(d) hereto.
(e) NO LOSS OF MATERIAL AGREEMENTS AND LICENSES. Since March
31, 2004, no agreement or license relating to the business, operations or
employee relations of the Borrower or any of its Real Properties shall have been
terminated, modified, revoked, breached or declared to be in default, the
termination, modification, revocation, breach or default under which, in the
reasonable judgment of the Administrative Agent and the Syndication Agent, would
result in a Material Adverse Effect.
-54-
(f) NO MARKET CHANGES. Since the Closing Date no material
adverse change shall have occurred in the conditions in the capital markets.
(g) NO DEFAULT. No Event of Default or Potential Event of
Default shall have occurred and be continuing or would result from the making of
the Loans or the issuance of any Letter of Credit.
(h) REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties contained in Sections 7.1, 9.12(b) and 9.14 and
in any of the other Loan Documents shall be true and correct in all material
respects on and as of the Initial Funding Date.
(i) FEES AND EXPENSES PAID. There shall have been paid to
the Administrative Agent, for the accounts of the Agents and the Lenders, as
applicable, all fees due and payable on or before the Initial Funding Date and
all expenses due and payable on or before the Initial Funding Date, including,
without limitation, reasonable attorneys' fees and expenses, and other costs and
expenses incurred in connection with the Loan Documents.
6.2. CONDITIONS PRECEDENT TO ALL SUBSEQUENT LOANS AND LETTERS OF
CREDIT. The obligation of each Lender to make any Loan requested to be made by
it on any date after the Initial Funding Date and the agreement of each Lender
to issue any Letter of Credit on any date after the Initial Funding Date shall
be subject to the following conditions precedent as of each such date:
(a) REPRESENTATIONS AND WARRANTIES. As of such date, both
before and after giving effect to the Loans to be made or the Letter of Credit
to be issued on such date, all of the representations and warranties of the
Borrower contained in Sections 7.1, 9.12(b) and 9.14 and all of the
representations of the Borrower and the parties to the Guaranties in any other
Loan Document (other than representations and warranties which expressly speak
as of a different date) shall be true and correct in all material respects.
(b) NO DEFAULTS. No Event of Default or Potential Event of
Default shall have occurred and be continuing or would result from the making of
the requested Loan or issuance of the requested Letter of Credit. Each of the
Lenders shall have received the Officer's Certificate as provided in Section
2.1(c)(vii), 2.2(f) or 3.1(c).
(c) NO LEGAL IMPEDIMENTS. No law, regulation, order,
judgment or decree of any Governmental Authority shall, and the Administrative
Agent shall not have received from such Lender notice that, in the reasonable
judgment of such Lender, litigation is pending or threatened which is likely to,
enjoin, prohibit or restrain such Lender's making of the requested Loan or
participation in or issuance of the requested Letter of Credit.
(d) NO MATERIAL ADVERSE EFFECT. The Borrower shall not have
received written notice from the Requisite Lenders that an event has occurred
since the date of this Agreement which has had and continues to have, or is
reasonably likely to have, a Material Adverse Effect.
Each submission by the Borrower to the Administrative Agent of a Notice of
Borrowing with respect to a Loan, each acceptance by the Borrower of the
proceeds of each Loan made hereunder, each submission by the Borrower to a
Lender of a request for issuance of a Letter of Credit and the issuance of such
Letter of Credit, shall constitute a representation and warranty by
-55-
the Borrower as of the Funding Date in respect of such Loan and the date of
issuance of such Letter of Credit, that all the conditions contained in this
Section 6.2 have been satisfied or waived in accordance with Section 14.7 (it
being understood that with respect to the condition set forth in Section 6.2(c),
the same shall constitute a representation and warranty by the Borrower only to
the extent that the Borrower shall have knowledge of any of the events set forth
therein).
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
7.1. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. In order to
induce the Lenders to enter into this Agreement and to make the Loans and the
other financial accommodations to the Borrower and to issue the Letters of
Credit described herein, the Borrower hereby represents and warrants to each
Lender that the following statements are true, correct and complete:
(a) ORGANIZATION; POWERS. (i) The Borrower (A) is a limited
partnership duly organized, validly existing and in good standing under the laws
of the State of Delaware, (B) is duly qualified to do business and is in good
standing under the laws of each jurisdiction in which failure to be so qualified
and in good standing will have a Material Adverse Effect, (C) has all requisite
power and authority to own, operate and encumber its Property and to conduct its
business as presently conducted and as proposed to be conducted in connection
with and following the consummation of the transactions contemplated by this
Agreement, and (D) is a partnership for federal income tax purposes.
(ii) The Company (A) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland, (B) is
duly authorized and qualified to do business and is in good standing under the
laws of each jurisdiction in which failure to be so qualified and in good
standing will have a Material Adverse Effect, and (C) has all requisite
corporate power and authority to own, operate and encumber its Property and to
conduct its business as presently conducted.
(iii) True, correct and complete copies of the Organizational
Documents of the Borrower and the Company identified on SCHEDULE 7.1-A have been
delivered to Administrative Agent, each of which is in full force and effect,
has not been modified or amended except to the extent set forth or indicated
therein or as otherwise permitted hereby and, to the best of the Borrower's
knowledge, there are no defaults under such Organizational Documents and no
events which, with the passage of time or giving of notice or both, would
constitute a default under such Organizational Documents. Borrower shall update
SCHEDULE 7.1-A from time to time in order to keep said Schedule true and
correct.
(iv) Neither the Borrower nor the Company is a "foreign
person" within the meaning of Section 1445 of the Internal Revenue Code.
(b) AUTHORITY. (i) The Company has the requisite power and
authority to execute and deliver this Agreement on behalf of the Borrower and
each of the other Loan Documents which are required to be executed on behalf of
the Borrower as required by this Agreement. The Company is the Person who has
executed this Agreement and such other Loan Documents on behalf of the Borrower
and is the sole general partner of the Borrower.
-56-
(ii) The execution, delivery and performance of each of the
Loan Documents which must be executed in connection with this Agreement by the
Borrower and to which the Borrower is a party and the consummation of the
transactions contemplated thereby are within the Borrower's partnership powers,
have been duly authorized by all necessary partnership action (and, in the case
of the Company acting on behalf of the Borrower in connection therewith, all
necessary corporate action of the Company) and such authorization has not been
rescinded. No other partnership or corporate action or proceedings on the part
of the Borrower or the Company is necessary to consummate such transactions.
(iii) Each of the Loan Documents to which the Borrower is a
party has been duly executed and delivered on behalf of the Borrower and
constitutes the Borrower's legal, valid and binding obligation, enforceable
against the Borrower in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally or by general principles of equity
regardless of whether enforcement is considered in a proceeding at law or in
equity. Each of the Loan Documents to which Borrower is a party is in full force
and effect and all the terms, provisions, agreements and conditions set forth
therein and required to be performed or complied with by the Company, the
Borrower and the Borrower's Subsidiaries on or before the Initial Funding Date
have been performed or complied with, and no Potential Event of Default or Event
of Default exists.
(c) SUBSIDIARIES; OWNERSHIP OF CAPITAL STOCK AND PARTNERSHIP
INTERESTS. (i) SCHEDULE 7.1-C (A) contains a diagram indicating the corporate
structure of the Company, the Borrower and any other Person in which the Company
or the Borrower holds a direct or indirect partnership, joint venture or other
equity interest indicating the nature of such interest with respect to each
Person included in such diagram; and (B) accurately sets forth (1) the correct
legal name of such Person, the jurisdiction of its incorporation or organization
and the jurisdictions in which it is qualified to transact business as a foreign
corporation, or otherwise, and (2) the authorized, issued and outstanding shares
or interests of each class of equity Securities of the Company, the Borrower and
the Subsidiaries of the Borrower, and (3) the ownership interest of the
Borrower, the Company and the Subsidiaries of the Borrower in all Joint
Ventures. None of such issued and outstanding Securities is subject to any
vesting, redemption, or repurchase agreement, and there are no warrants or
options (other than Permitted Securities options) outstanding with respect to
such Securities, except as noted on SCHEDULE 7.1-C. The outstanding Capital
Stock of the Company is duly authorized, validly issued, fully paid and
nonassessable and the outstanding Securities of the Borrower and its
Subsidiaries are duly authorized and validly issued. Attached hereto as part of
SCHEDULE 7.1-C is a true, accurate and complete copy of the Borrower Partnership
Agreement as in effect on the Closing Date and the Borrower Partnership
Agreement has not been amended, supplemented, replaced, restated or otherwise
modified in any respect since the Closing Date, except as otherwise permitted
hereby. Borrower shall update SCHEDULE 7.1-C as of the first day of each fiscal
quarter, and shall deliver the same together with the Quarterly Compliance
Certificates, to the extent required, in order to keep said Schedule true and
correct.
(ii) Except where failure would not have a Material Adverse
Effect, each of the Subsidiaries of the Borrower: (A) is a corporation, limited
liability company or partnership, as indicated on SCHEDULE 7.1-C, duly organized
or formed, validly existing and, if applicable, in good standing under the laws
of the jurisdiction of its organization, (B) is duly qualified to do business
and, if applicable, is in good standing under the laws of each jurisdiction in
which failure to be so qualified and in good standing would have a Material
Adverse Effect, and (C) has all
-57-
requisite power and authority to own, operate and encumber its Property and to
conduct its business as presently conducted and as proposed to be conducted
hereafter.
(iii) As to each Guarantor, a provision similar, as applicable
to (a), (b) and (c) above shall be included in each such Subsidiary's Guaranty,
and the Borrower shall be deemed to make for itself and on behalf of such
Subsidiary a representation as to such provisions.
(d) NO CONFLICT. The execution, delivery and performance of
each of the Loan Documents to which the Borrower, the Company or any Guarantor
is a party, and the consummation of the transactions expressly contemplated
thereby respectively, do not and will not (i) conflict with the Organizational
Documents of the Borrower, the Company or any Guarantor, (ii) conflict with,
result in a breach of or constitute (with or without notice or lapse of time or
both) a default under any Requirement of Law or material Contractual Obligation
of the Borrower, the Company or any Guarantor, or require termination of any
such material Contractual Obligation which would subject the Administrative
Agent or any of the other Lenders to any liability, (iii) result in or require
the creation or imposition of any Lien whatsoever upon any of the Property or
assets of the Borrower, the Company or any Guarantor, or (iv) require any
approval of shareholders of the Company (other than such approvals that have
been obtained and are in full force and effect).
(e) GOVERNMENTAL CONSENTS. The execution, delivery and
performance of each of the Loan Documents to which the Borrower, the Company or
any Guarantor is a party and the consummation of the transactions expressly
contemplated thereby do not and will not require any registration with, consent
or approval of, or notice to, or other action to, with or by any Governmental
Authority, except filings, consents or notices which have been made, obtained or
given.
(f) GOVERNMENTAL REGULATION. None of the Borrower, the
Company or the Guarantors is subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the Interstate Commerce Act,
or the Investment Company Act of 1940, or any other federal or state statute or
regulation which limits its ability to incur indebtedness as contemplated by
this Agreement.
(g) FINANCIAL POSITION. Complete and accurate copies of the
following financial statements and materials have been delivered to the
Administrative Agent: annual unaudited financial statements of the Borrower,
annual audited financial statements of the Company for the fiscal year ended
December 31, 2003 and unaudited financial statements of the Company for the
fiscal quarter ended March 31, 2004. All annual financial statements of the
Borrower shall be accompanied by an Officer's Certificate of the Borrower, and
shall be certified by the Chief Financial Officer of the Borrower as fairly
presenting in all material respects the financial position of the Borrower. All
financial statements included in such materials were prepared in all material
respects in conformity with GAAP, except as otherwise noted therein, and fairly
present in all material respects the respective consolidated financial positions
as of the date referred to therein, and the consolidated results of operations
and cash flows for each of the periods covered thereby of the Borrower and the
Company. Neither the Borrower nor the Company has any Contingent Obligation,
contingent liability or liability for any taxes, long-term leases or commitments
not reflected in its financial statements delivered to the Administrative Agent
on or prior to the Closing Date or otherwise disclosed to the Administrative
Agent and the Lenders in writing on or prior to the Closing Date, which will
have a Material Adverse Effect.
-58-
(h) INDEBTEDNESS. SCHEDULE 7.1-H sets forth, as of March 31,
2004, all Indebtedness for borrowed money of each of the Borrower, the Company
and their respective Subsidiaries and, except as set forth on SCHEDULE 7.1-H,
there are no defaults in the payment of principal of or interest on any such
Indebtedness and no payments thereunder have been deferred or extended beyond
their stated maturity and there has been no material change in the type or
amount of such Indebtedness (except for the repayment of certain Indebtedness)
since March 31, 2004.
(i) LITIGATION; ADVERSE EFFECTS. Except as set forth in
SCHEDULE 7.1-I, as of the Closing Date, there is no action, suit, proceeding,
investigation or arbitration before or by any Governmental Authority or private
arbitrator pending or, to the knowledge of the Borrower, threatened against the
Company, the Borrower or any of their respective Subsidiaries, or any Property
of any of them (i) challenging the validity or the enforceability of any of the
Loan Documents, (ii) which is reasonably likely to result in any Material
Adverse Effect, or (iii) under the Racketeering Influenced and Corrupt
Organizations Act or any similar federal or state statute where such Person is a
defendant in a criminal indictment that provides for the forfeiture of assets to
any Governmental Authority as a potential criminal penalty. There is no material
loss contingency within the meaning of GAAP which has not been reflected in the
consolidated financial statements of the Company and the Borrower. None of the
Company, the Borrower or any Subsidiary of the Borrower is (A) in violation of
any applicable Requirements of Law which violation will have or is reasonably
likely to have a Material Adverse Effect, or (B) in default with respect to any
final judgment, writ, injunction, restraining order or order of any nature,
decree, rule or regulation of any court or Governmental Authority which will
have a Material Adverse Effect.
(j) NO MATERIAL ADVERSE EFFECT. Since March 31, 2004, there
has occurred no event which has had a Material Adverse Effect.
(k) Intentionally Omitted.
(l) PAYMENT OF TAXES. All material tax returns, reports and
similar statements or filings of the Company, the Borrower and their respective
Subsidiaries required to be filed have been timely filed (or extensions to file
have been obtained), and, except for Customary Permitted Liens, all material
taxes, assessments, fees and other charges of Governmental Authorities thereupon
and upon or relating to their respective Properties, assets, receipts, sales,
use, payroll, employment, income, licenses and franchises which are shown in
such returns or reports to be due and payable have been paid, except to the
extent (i) such taxes, assessments, fees and other charges of Governmental
Authorities are being contested in good faith by an appropriate proceeding
diligently pursued as permitted by the terms of Section 9.4 and (ii) such taxes,
assessments, fees and other charges of Governmental Authorities pertain to
Property of the Borrower or any of its Subsidiaries and the non-payment of the
amounts thereof would not, individually or in the aggregate, result in a
Material Adverse Effect. All other material taxes (including, without
limitation, real estate taxes), assessments, fees and other governmental charges
upon or relating to the respective Properties of the Borrower and its
Subsidiaries which are due and payable have been paid, except for Customary
Permitted Liens and except to the extent described in clauses (i) and (ii)
hereinabove. The Borrower has no knowledge of any proposed tax assessment
against the Borrower, any of its Subsidiaries, or any of the Projects that will
have or is reasonably likely to have a Material Adverse Effect.
-59-
(m) PERFORMANCE. To the knowledge of the Borrower, neither
the Company, the Borrower nor any of their Subsidiaries has received any written
notice or citation, nor has actual knowledge, that (i) it is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any Contractual Obligation applicable to it, or (ii) any
condition exists which, with the giving of notice or the lapse of time or both,
would constitute a default with respect to any such Contractual Obligation; in
each case, except where such default or defaults, if any, will not have a
Material Adverse Effect.
(n) DISCLOSURE. The representations and warranties of the
Borrower and the Guarantors contained in the Loan Documents, and all
certificates and other documents delivered to the Administrative Agent or any
Lender pursuant to the terms thereof, do not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements contained herein or therein, in light of the circumstances under
which they were made, taken as a whole, not misleading. Notwithstanding the
foregoing, the Lenders acknowledge that the Borrower shall not have liability
under this clause (n) with respect to its projections of future events or for
any financial projections.
(o) REQUIREMENTS OF LAW. Each of the Borrower and each of
its Subsidiaries is in compliance with all Requirements of Law applicable to it
and its respective businesses and Properties, in each case where the failure to
so comply individually or in the aggregate will have a Material Adverse Effect.
(p) ENVIRONMENTAL MATTERS.
(i) Except as disclosed on SCHEDULE 7.1-P (the Borrower
shall update SCHEDULE 7.1-P as of the first day of each fiscal quarter, and
deliver the same together with the Quarterly Compliance Certificates, to the
extent required, in order to keep said Schedule true and correct):
(A) the operations of the Borrower, each of its
Subsidiaries, and their respective Properties comply with all
applicable Environmental, Health or Safety Requirements of Law,
except to the extent any failure to do so would not have a
Material Adverse Effect;
(B) the Borrower and each of its Subsidiaries have
obtained all material environmental, health and safety Permits
necessary for their respective operations, and all such Permits
are in good standing and the holder of each such Permit is
currently in compliance with all terms and conditions of such
Permits, except to the extent any failure to do so would not
have a Material Adverse Effect;
(C) to the knowledge of the Borrower, none of the
Borrower, its Subsidiaries or any of their respective present or
past Properties or operations are subject to or are the subject
of any investigation of any Governmental Authority, judicial or
administrative proceeding, order, judgment or decree,
negotiations, agreement or settlement respecting (I) any
Remedial Action, (II) any Claims or Liabilities and Costs
arising from the Release or threatened Release of a Contaminant
into the environment, or (III) any violation of or liability
under any Environmental, Health or Safety Requirement of Law,
except to the extent none of the foregoing would have a Material
Adverse Effect;
-60-
(D) none of Borrower or any of its Subsidiaries has
filed any notice under any applicable Requirement of Law (I)
reporting a Release of a Contaminant; (II) indicating past or
present treatment, storage or disposal of a hazardous waste, as
that term is defined under 40 C.F.R. Part 261 or any state
equivalent; or (III) reporting a violation of any applicable
Environmental, Health or Safety Requirement of Law with respect
to any of the foregoing, the substance of which would have a
Material Adverse Effect;
(E) none of the Borrower's or any of its
Subsidiaries' present or past Property is listed or, to the
knowledge of the Borrower, proposed for listing on the National
Priorities List ("NPL") pursuant to CERCLA or on the
Comprehensive Environmental Response Compensation Liability
Information System List ("CERCLIS") or any similar state list of
sites requiring Remedial Action;
(F) to the knowledge of the Borrower, none of the
Borrower or any of its Subsidiaries has sent or directly
arranged for the transport of any waste to any site listed or
proposed for listing on the NPL, CERCLIS or any similar state
list;
(G) to the best of the Borrower's knowledge, there
is not now, and to the Borrower's knowledge there has never
been, on or in any Project (I) any treatment, recycling, storage
away from the site of generation or disposal of any hazardous
waste, as that term is defined under 40 C.F.R. Part 261 or any
state equivalent, (II) any solid waste management facility,
(III) any underground storage tanks the presence or use of which
is in violation of applicable Environmental, Health or Safety
Requirements of Law, (IV) any asbestos-containing material
which, in its present state, such Person has any reason to
believe could subject such Person or its Property to Liabilities
and Costs arising out of or relating to environmental, health or
safety matters that would result in a Material Adverse Effect;
or (V) any polychlorinated biphenyls (PCB) used in hydraulic
oils, electrical transformers or other Equipment, which, in any
such case, would subject the Borrower or its Subsidiaries or
their respective Properties to Liabilities and Costs arising out
of or relating to environmental, health or safety matters that
would result in a Material Adverse Effect;
(H) to the knowledge of the Borrower, none of the
Borrower or any of its Subsidiaries has received any notice or
Claim to the effect that any of such Persons is or may be liable
to any Person as a result of the Release or threatened Release
of a Contaminant into the environment which would result in a
Material Adverse Effect;
(I) none of the Borrower or any of its Subsidiaries
has any contingent liability in connection with any Release or
threatened Release of any Contaminants into the environment
which will result in a Material Adverse Effect;
-61-
(J) no Environmental Lien has attached to any
Property of the Borrower or any of its Subsidiaries (other than
those otherwise permitted hereunder) or which do not constitute
an Event of Default; and
(K) no Property of the Borrower or any of its
Subsidiaries is subject to any Environmental Property Transfer
Act, or to the extent such acts are applicable to any such
Property, the Borrower and/or such Subsidiary whose Property is
subject thereto has complied in all material respects with the
requirements of such acts.
(q) ERISA. As of the date hereof, neither the Borrower nor
any ERISA Affiliate maintains or contributes to any Benefit Plan or
Multiemployer Plan other than those listed on SCHEDULE 7.1-Q hereto. Each Plan
which is intended to be qualified under Section 401(a) of the Internal Revenue
Code as currently in effect has been determined by the IRS to be so qualified,
and each trust related to any such Plan has been determined to be exempt from
federal income tax under Section 501(a) of the Internal Revenue Code as
currently in effect. Except as disclosed in SCHEDULE 7.1-Q, neither the Borrower
nor any of its Subsidiaries maintains or contributes to any employee welfare
benefit plan within the meaning of Section 3(1) of ERISA that provides benefits
to employees after termination of employment other than as required by Section
601 of ERISA. The Borrower and each of its Subsidiaries is in compliance in all
material respects with the responsibilities, obligations and duties imposed on
it by ERISA, the Internal Revenue Code and regulations promulgated thereunder
with respect to all Plans. No Benefit Plan has incurred any accumulated funding
deficiency (as defined in Sections 302(a)(2) of ERISA and 412 (a) of the
Internal Revenue Code) whether or not waived. Neither the Borrower nor any ERISA
Affiliate nor any fiduciary of any Plan which is not a Multiemployer Plan (i)
has engaged in a nonexempt prohibited transaction described in Sections 406 of
ERISA or 4975 of the Internal Revenue Code or (ii) has taken or failed to take
any action which would constitute or result in an ERISA Termination Event.
Neither the Borrower nor any ERISA Affiliate is subject to any liability under
Sections 4063, 4064, or 4204 of ERISA which would have a Material Adverse
Effect. Neither the Borrower nor any ERISA Affiliate is subject to any liability
under Sections 4069 or 4212 (c) of ERISA or has incurred any liability to the
PBGC which remains outstanding other than the payment of premiums, and there are
no premium payments which have become due which are unpaid. Schedule B to the
most recent annual report filed with the IRS with respect to each Benefit Plan
has been furnished to the Administrative Agent and is complete and accurate in
all material respects. Since the date of each such Schedule B, there has been no
material adverse change in the funding status or financial condition of the
Benefit Plan relating to such Schedule B. Neither the Borrower nor any ERISA
Affiliate has (i) failed to make a required contribution or payment to a
Multiemployer Plan or (ii) made a complete or partial withdrawal under Sections
4203 or 4205 of ERISA from a Multiemployer Plan which would have a Material
Adverse Effect. Neither the Borrower, nor any ERISA Affiliate has failed to make
a required installment or any other required payment under Section 412 of the
Internal Revenue Code on or before the due date for such installment or other
payment. Neither the Borrower nor any ERISA Affiliate is required to provide
security to a Benefit Plan under Section 401(a)(29) of the Internal Revenue Code
due to a Benefit Plan amendment that results in an increase in current liability
for the plan year. Except as disclosed on SCHEDULE 7.1-Q, which shall be updated
by Borrower as of the first day of each fiscal quarter, to the extent required,
neither the Borrower nor any of its Subsidiaries has, by reason of the
transactions contemplated hereby, any obligation to make any payment to any
employee pursuant to any Plan or existing contract or arrangement.
-62-
(r) SECURITIES ACTIVITIES. The Borrower is not engaged in
the business of extending credit for the purpose of purchasing or carrying
Margin Stock except as described on SCHEDULE 7.L-R.
(s) SOLVENCY. After giving effect to the Loans to be made on
the Initial Funding Date or such other date as Loans requested hereunder are
made, and the disbursement of the proceeds of such Loans pursuant to the
Borrower's instructions, each of the Borrower and each Guarantor is Solvent.
(t) INSURANCE. SCHEDULE 7.1-T accurately sets forth as of
the Closing Date all insurance policies and programs currently in effect with
respect to the respective Property and assets and business of the Borrower and
its Subsidiaries, specifying for each such policy and program, (i) the amount
thereof, (ii) the risks insured against thereby, (iii) the name of the insurer
and each insured party thereunder, (iv) the policy or other identification
number thereof, and (v) the expiration date thereof. The Borrower has delivered
to the Administrative Agent certificates of insurance or other satisfactory
evidence of all insurance policies set forth on SCHEDULE 7.1-T. Such insurance
policies and programs or their replacements obtained in compliance with Section
9.5 are currently in full force and effect, in compliance with the requirements
of Section 9.5 hereof and provide coverage against such casualties and
contingencies as are commercially reasonable and in accordance with the
customary and general practices of businesses having similar operations and real
estate portfolios in similar geographic areas and are in amounts, containing
such terms, in such forms and for such periods as are reasonable and prudent for
such businesses. Borrower shall update SCHEDULE 7.1-T, which shall be updated by
Borrower annually, to the extent required, in order to keep said Schedule true
and correct (or more frequently if an insurance policy or program shall be
terminated and/or replaced).
(u) REIT STATUS. The Company qualifies as a REIT under the
Internal Revenue Code.
(v) OWNERSHIP OF PROJECTS, JOINT VENTURES AND PROPERTY.
Ownership of all wholly owned Projects, Joint Ventures and other Property of the
Consolidated Businesses is held by the Borrower and its Subsidiaries and is not
held directly by the Company.
(w) TITLE TO PROPERTIES. The Borrower, the Guarantors and
their respective Subsidiaries that own Real Property each has good title to all
of its respective Real Property purported to be owned by it, including, without
limitation, that:
(a) Either (i) the Borrower or (ii) a Guarantor is the owner
of or the holder of a fee or ground leasehold interest (under an Eligible Ground
Lease) in the Unencumbered Projects and Unencumbered New York City Assets which
are wholly-owned or ground-leased by the Borrower and the Consolidated
Businesses, free from any Lien, except for Customary Permitted Liens, or
preferred equity interest.
(b) The Company, the Borrower and their Consolidated
Subsidiaries will, as of the Closing Date, own all of the assets as reflected in
the financial statements of the Borrower and the Company described in Section
7.1(g) or acquired since the date of such financial statements (except property
and assets sold or otherwise disposed of in the ordinary course of business
since that date).
-63-
ARTICLE VIII.
REPORTING COVENANTS
The Borrower covenants and agrees that so long as any Revolving Credit
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than indemnities pursuant to Section 14.3 not yet due),
unless the Requisite Lenders shall otherwise give prior written consent thereto:
8.1. BORROWER ACCOUNTING PRACTICES. The Borrower shall maintain, and
cause each of its consolidated Subsidiaries to maintain, a system of accounting
established and administered in accordance with sound business practices to
permit preparation of consolidated financial statements in conformity with GAAP.
8.2. FINANCIAL REPORTS. The Borrower shall deliver or cause to be
delivered to the Administrative Agent (with copies for each of the Lenders):
(a) QUARTERLY REPORTS.
(i) BORROWER QUARTERLY FINANCIAL REPORTS. As soon as
practicable, and in any event within forty-five (45) days after the end
of each fiscal quarter in each Fiscal Year (other than the last fiscal
quarter in each Fiscal Year), a consolidated balance sheet of the
Borrower and the related consolidated statements of income and cash flow
of the Borrower (to be prepared and delivered quarterly in conjunction
with the other reports delivered hereunder at the end of each fiscal
quarter) for each such fiscal quarter, and, in comparative form, the
corresponding figures for the corresponding dates and periods of the
previous Fiscal Year, certified by an Authorized Financial Officer of
the Borrower as fairly presenting in all material respects the
consolidated financial position of the Borrower as of the dates
indicated and the consolidated results of its operations and cash flow
for the months indicated in accordance with GAAP, subject to normal
adjustments.
(ii) COMPANY QUARTERLY FINANCIAL REPORTS. As soon as
practicable, and in any event within forty-five (45) days after the end
of each fiscal quarter in each Fiscal Year (other than the last fiscal
quarter in each Fiscal Year), the Financial Statements of the Company
and its consolidated Subsidiaries on Form 10-Q as at the end of such
period and a report setting forth in comparative form the corresponding
figures for the corresponding dates and period of the previous Fiscal
Year, certified by an Authorized Financial Officer of the Company as
fairly presenting in all material respects the consolidated financial
position of the Company and its consolidated Subsidiaries as at the date
indicated and the consolidated results of their operations and cash flow
for the period indicated in accordance with GAAP, subject to normal
adjustments.
(iii) QUARTERLY COMPLIANCE CERTIFICATES. Together with each
delivery of any quarterly report pursuant to paragraph (a)(i) of this
Section 8.2, Officer's Certificates of the Borrower and the Company in
the form of EXHIBIT F hereto (the "QUARTERLY COMPLIANCE CERTIFICATES"),
signed by the Borrower's and the Company's respective Authorized
Financial Officers representing and certifying (1) that the Authorized
Financial Officer signatory thereto has reviewed the terms of the Loan
Documents, and has made, or caused to be made under his/her supervision,
a review in reasonable detail of the consolidated financial condition of
the Company and its Consolidated Subsidiaries, for the fiscal quarter
covered by such reports, that such review has not disclosed the
-64-
existence during or at the end of such fiscal quarter, and that such
officer does not have knowledge of the existence as at the date of such
Officer's Certificate, of an Event of Default or Potential Event of
Default or mandatory prepayment event, or, if any such condition or
event existed or exists, the nature and period of existence thereof and
what action the Company and/or the Borrower or any of their Subsidiaries
has taken, is taking and proposes to take with respect thereto; (2) the
calculations in the form of EXHIBIT G hereto for the period then ended
which demonstrate whether there has been compliance with the covenants
and financial ratios set forth in Sections 9.9, 9.11, 10.2, 10.6, 10.7,
10.11, and 10.12 hereof and, when applicable, that no Event of Default
described in Section 11.1 exists, (3) a schedule of the Borrower's
outstanding Indebtedness, including the amount, maturity, interest rate
and amortization requirements, as well as such other information
regarding such Indebtedness as may be reasonably requested by the
Administrative Agent, (4) a schedule of Total Adjusted EBITDA, and (5) a
schedule of Adjusted Unencumbered NOI.
(b) ANNUAL REPORTS.
(i) BORROWER FINANCIAL STATEMENTS. As soon as practicable,
and in any event within ninety (90) days after the end of each Fiscal
Year, the Financial Statements of the Borrower and its Subsidiaries as
at the end of such Fiscal Year, accompanied by an Officer's Certificate
of the Borrower, signed by the Chief Financial Officer of the Borrower,
that such Financial Statements fairly present in all material respects
the consolidated financial position of the Borrower and its Subsidiaries
as of the dates indicated and the results of their operations and cash
flow for the periods indicated in conformity with GAAP consistently
applied, and which Officer's Certificate shall explain any
inconsistencies between the Financial Statements of the Borrower and the
Financial Statements of the Company.
(ii) COMPANY FINANCIAL STATEMENTS. As soon as practicable,
and in any event within ninety (90) days after the end of each Fiscal
Year, (i) the Financial Statements of the Company and its consolidated
Subsidiaries on Form 10-K as at the end of such Fiscal Year and a report
setting forth in comparative form the corresponding figures from the
consolidated Financial Statements of the Company and its Subsidiaries as
of the end of and for the prior Fiscal Year; (ii) a report with respect
thereto of Ernst & Young LLP or other independent certified public
accountants acceptable to the Administrative Agent (it being understood
that any "Big Four" certified public accountants are acceptable to the
Administrative Agent), which report shall be unqualified and shall state
that such financial statements fairly present the consolidated financial
position of the Company and its consolidated Subsidiaries as at the
dates indicated and the results of their operations and cash flow for
the periods indicated in conformity with GAAP (except for changes with
which Ernst & Young LLP or any such other independent certified public
accountants, if applicable, shall concur and which shall have been
disclosed in the notes to the financial statements) (which report shall
be subject to the confidentiality limitations set forth herein); and
(iii) in the event that the report referred to in clause (ii) above is
qualified, a copy of the management letter or any similar report
delivered to the Company or to any officer or employee thereof by such
independent certified public accountants in connection with such
financial statements. The Administrative Agent and each Lender (through
the Administrative Agent) may, with the consent of the Company (which
consent shall not be unreasonably withheld), communicate directly with
such accountants, with any such communication to occur together with a
representative of the
-65-
Company, at the expense of the Administrative Agent (or the Lender
requesting such communication), upon reasonable notice and at reasonable
times during normal business hours.
(iii) ANNUAL COMPLIANCE CERTIFICATES. Together with each
delivery of any annual report pursuant to clauses (i) and (ii) of this
Section 8.2(b), Officer's Certificates of the Borrower and the Company
in the form of EXHIBIT F hereto (the "ANNUAL COMPLIANCE CERTIFICATES"
and, collectively with the Quarterly Compliance Certificates, the
"COMPLIANCE CERTIFICATES"), signed by the Borrower's and the Company's
respective Authorized Financial Officers, representing and certifying
(1) that the officer signatory thereto has reviewed the terms of the
Loan Documents, and has made, or caused to be made under his/her
supervision, a review in reasonable detail of the consolidated financial
condition of the Company and its consolidated Subsidiaries, for the
accounting period covered by such reports, that such review has not
disclosed the existence at the end of such accounting period, and that
such officer does not have knowledge of the existence as at the date of
such Officer's Certificate, of an Event of Default or Potential Event of
Default or mandatory prepayment event, or, if any such condition or
event existed or exists, the nature and period of existence thereof and
what action the Company and/or the Borrower or any of their Subsidiaries
has taken, is taking and proposes to take with respect thereto; (2) the
calculations in the form of EXHIBIT G hereto for the period then ended
which demonstrate whether there has been compliance with the covenants
and financial ratios set forth in Sections 9.9, 9.11, 10.2, 10.6, 10.7,
10.11, and 10.12 hereof and, when applicable, that no Event of Default
described in Section 11.1 exists, (3) a schedule of the Borrower's
outstanding Indebtedness including the amount, maturity, interest rate
and amortization requirements, as well as such other information
regarding such Indebtedness as may be reasonably requested by the
Administrative Agent, (4) a schedule of Total Adjusted EBITDA and (5) a
schedule of Adjusted Unencumbered NOI.
(iv) TENANT BANKRUPTCY REPORTS. As soon as practicable, and
in any event within ninety (90) days after the end of each Fiscal Year,
a written report, in form reasonably satisfactory to the Administrative
Agent, of all bankruptcy proceedings filed by or against any tenant of
any of the Projects, which tenant occupies three and one half percent
(3.5%) or more of the gross leasable area in the Projects in the
aggregate. The Borrower shall deliver to the Administrative Agent and
the Lenders, immediately upon the Borrower's learning thereof, of any
bankruptcy proceedings filed by or against, or the cessation of business
or operations of, any tenant of any of the Projects which tenant
occupies three and one half percent (3.5%) or more of the gross leasable
area in the Projects in the aggregate.
(v) UPDATE OF SCHEDULE 7.1-C. As soon as practicable, and in
any event within ninety (90) days after the end of each Fiscal Year, the
Borrower shall deliver an update of Schedule 7.1-C.
8.3. EVENTS OF DEFAULT. Promptly upon the Borrower obtaining
knowledge (a) of any condition or event which constitutes an Event of Default or
Potential Event of Default; (b) that any Person has given any notice to the
Borrower or any Subsidiary of the Borrower or taken any other action with
respect to a claimed default or event or condition of the type referred to in
Section 11.1(e); or (c) of any condition or event which has a Material Adverse
Effect, the Borrower shall deliver to the Administrative Agent (with copies for
each of the Lenders) an Officer's Certificate specifying (i) the nature and
period of existence of any such claimed default,
-66-
Event of Default, Potential Event of Default, condition or event, (ii) the
notice given or action taken by such Person in connection therewith, and (iii)
what action the Borrower has taken, is taking and proposes to take with respect
thereto.
8.4. LAWSUITS. (i) Promptly upon the Borrower's obtaining knowledge
of the institution of, or written threat of, any action, suit, proceeding,
governmental investigation or arbitration against or affecting the Borrower or
any of its Subsidiaries not previously disclosed pursuant to Section 7.1(i),
which action, suit, proceeding, governmental investigation or arbitration
exposes, or in the case of multiple actions, suits, proceedings, governmental
investigations or arbitrations arising out of the same general allegations or
circumstances which expose, in the Borrower's reasonable judgment, the Borrower
or any of its Subsidiaries to liability in an amount aggregating $1,000,000 or
more and is not covered by the Borrower's or such Subsidiary's insurance, the
Borrower shall give written notice thereof to the Administrative Agent (with
copies for each of the Lenders) and provide such other information as may be
reasonably available to enable each Lender and the Administrative Agent and its
counsel to evaluate such matters; (ii) as soon as practicable and in any event
within forty-five (45) days after the end of each fiscal quarter of the
Borrower, the Borrower shall provide a written quarterly report to the
Administrative Agent and the Lenders covering the institution of, or written
threat of, any action, suit, proceeding, governmental investigation or
arbitration in an amount equal to or in excess of $50,000,000 (to the extent not
previously reported) against or affecting the Borrower or any of its
Subsidiaries or any Property of the Borrower or any of its Subsidiaries not
previously disclosed by the Borrower to the Administrative Agent and the
Lenders, and shall provide such other information at such time as may be
reasonably available to enable each Lender and the Administrative Agent and its
counsel to evaluate such matters; and (iii) in addition to the requirements set
forth in clauses (i) and (ii) of this Section 8.4, the Borrower upon request of
the Administrative Agent or the Requisite Lenders shall promptly give written
notice of the status of any action, suit, proceeding, governmental investigation
or arbitration covered by a report delivered pursuant to clause (i) or (ii)
above and provide such other information as may be reasonably requested and
available to it to enable each Lender and the Administrative Agent and its
counsel to evaluate such matters. Notwithstanding the foregoing, the Borrower
shall not be required to disclose any information which is subject to the
attorney-client privilege.
8.5. INSURANCE. As soon as practicable and in any event by January
31st of each calendar year, the Borrower shall deliver to the Administrative
Agent (with copies for each of the Lenders) (i) a report in form and substance
reasonably satisfactory to the Administrative Agent, outlining all insurance
coverage maintained as of the date of such report by the Borrower and its
Subsidiaries and the duration of such coverage and (ii) an Officer's Certificate
signed by an Authorized Financial Officer of the Borrower certifying that all
premiums with respect to such coverage have been paid when due.
8.6. ERISA NOTICES. The Borrower shall deliver or cause to be
delivered to the Administrative Agent (with copies for each of the Lenders), at
the Borrower's expense, the following information and notices as soon as
reasonably possible, and in any event:
(a) within fifteen (15) Business Days after the Borrower or
any ERISA Affiliate knows or has reason to know that an ERISA Termination Event
has occurred, a written statement of an Authorized Financial Officer of the
Borrower describing such ERISA Termination Event and the action, if any, which
the Borrower or any ERISA Affiliate has taken, is taking or proposes to take
with respect thereto, and when known, any action taken or threatened by the IRS,
DOL or PBGC with respect thereto;
-67-
(b) within fifteen (15) Business Days after the Borrower
knows or has reason to know that a non-exempt prohibited transaction (as defined
in Sections 406 of ERISA and Section 4975 of the Internal Revenue Code) has
occurred with respect to the Borrower, any ERISA Affiliate or any Plan, a
statement of an Authorized Financial Officer of the Borrower describing such
transaction with respect to the Borrower, any ERISA Affiliate or any Plan and
the action which the Borrower or any ERISA Affiliate has taken, is taking or
proposes to take with respect thereto;
(c) within fifteen (15) Business Days after the filing of
the same with the DOL, IRS or PBGC, copies of each annual report (Form 5500
series), including Schedule B thereto, filed with respect to each Benefit Plan;
(d) within fifteen (15) Business Days after receipt by the
Borrower or any ERISA Affiliate of each actuarial report for any Benefit Plan or
Multiemployer Plan and each annual report for any Multiemployer Plan, copies of
each such report;
(e) within fifteen (15) Business Days after the filing of
the same with the IRS, a copy of each funding waiver request filed with respect
to any Benefit Plan and all written communications received by the Borrower or
any ERISA Affiliate with respect to such request;
(f) within fifteen (15) Business Days after the occurrence
of any material increase in the benefits of any existing Benefit Plan or
Multiemployer Plan or the establishment of any new Benefit Plan or the
commencement of contributions to any Benefit Plan or Multiemployer Plan to which
the Borrower or any ERISA Affiliate to which the Borrower or any ERISA Affiliate
was not previously contributing, notification of such increase, establishment or
commencement;
(g) within fifteen (15) Business Days after the Borrower or
any ERISA Affiliate receives notice of the PBGC's intention to terminate a
Benefit Plan or to have a trustee appointed to administer a Benefit Plan, copies
of each such notice;
(h) within fifteen (15) Business Days after the Borrower or
any of its Subsidiaries receives notice of any unfavorable determination letter
from the IRS regarding the qualification of a Plan under Section 401(a) of the
Internal Revenue Code, copies of each such letter to the extent any of the
foregoing would have a Material Adverse Effect;
(i) within fifteen (15) Business Days after the Borrower or
any ERISA Affiliate receives notice from a Multiemployer Plan regarding the
imposition of withdrawal liability, copies of each such notice;
(j) within fifteen (15) Business Days after the Borrower or
any ERISA Affiliate fails to make a required installment or any other required
payment under Section 412 of the Internal Revenue Code on or before the due date
for such installment or payment which failure has not been cured, a notification
of such failure; and
(k) within fifteen (15) Business Days after the Borrower or
any ERISA Affiliate knows or has reason to know (i) a Multiemployer Plan has
been terminated, (ii) the administrator or plan sponsor of a Multiemployer Plan
intends to terminate a Multiemployer Plan, or (iii) the PBGC has instituted or
has given written notice that it will institute proceedings under
-68-
Section 4042 of ERISA to terminate a Multiemployer Plan, notification of such
termination, intention to terminate, or institution of proceedings.
For purposes of this Section 8.6, the Borrower and any ERISA Affiliate
shall be deemed to know all facts known by the "Administrator" of any Plan of
which the Borrower or any ERISA Affiliate is the plan sponsor.
8.7. ENVIRONMENTAL NOTICES. The Borrower shall notify the
Administrative Agent (with copies for each of the Lenders) in writing, promptly
upon any officer of the Borrower responsible for the environmental matters at
any Property of the Borrower learning thereof, of any of the following (together
with any material documents and correspondence received or sent in connection
therewith):
(a) notice or claim to the effect that the Borrower or any
of its Subsidiaries is or may be liable to any Person as a result of the Release
or threatened Release of any Contaminant into the environment, if such liability
would result in a Material Adverse Effect;
(b) notice that the Borrower or any of its Subsidiaries is
subject to investigation by any Governmental Authority evaluating whether any
Remedial Action is needed to respond to the Release or threatened Release of any
Contaminant into the environment which would have a Material Adverse Effect;
(c) notice that any Property of the Borrower or any of its
Subsidiaries is subject to an Environmental Lien if the claim to which such
Environmental Lien relates would result in a Material Adverse Effect;
(d) notice of violation by the Borrower or any of its
Subsidiaries of any Environmental, Health or Safety Requirement of Law which
violation would have a Material Adverse Effect;
(e) commencement or written threat of any judicial or
administrative proceeding alleging a violation by the Borrower or any of its
Subsidiaries of any Environmental, Health or Safety Requirement of Law, which
would result in a Material Adverse Effect; or
(f) any proposed acquisition of stock, assets, real estate,
or leasing of Property by the Borrower or any of its Subsidiaries that would
subject the Borrower or any of its Subsidiaries to environmental, health or
safety Liabilities and Costs which would result in a Material Adverse Effect.
8.8. LABOR MATTERS. The Borrower shall notify the Administrative
Agent (with copies for each of the Lenders) in writing, promptly upon the
Borrower's learning thereof, of any labor dispute to which the Borrower or any
of its Subsidiaries is reasonably expected to become a party (including, without
limitation, any strikes, lockouts or other disputes relating to any Property of
such Persons and other facilities) which would result in a Material Adverse
Effect.
8.9. NOTICES OF ASSET SALES AND/OR ACQUISITIONS. The Borrower shall
deliver to the Administrative Agent and the Lenders written notice of each of
the following events affecting the Company, the Borrower or their respective
Subsidiaries not less than five (5) Business Days prior to the occurrence
thereof: (a) a sale, transfer or other disposition of (i) an Unencumbered
Project or Unencumbered New York City Asset or (ii) other assets, in a single
transaction or series of
-69-
related transactions within the two preceding calendar quarter periods, for
consideration in excess of $50,000,000, (b) an acquisition of assets, in a
single transaction or series of related transactions within the two preceding
calendar quarter period, for consideration in excess of $50,000,000, (c) the
grant of a Lien with respect to (i) an Unencumbered Project or Unencumbered New
York City Asset or (ii) other assets, in a single transaction or series of
related transactions within the two preceding calendar quarter periods, for
consideration in excess of $50,000,000 and (d) a release from an escrow account
of the proceeds of a qualified, deferred exchange under ss.1031 of the Internal
Revenue Code. In addition, simultaneously with delivery of any such notice, the
Borrower shall deliver to the Administrative Agent a certificate of an
Authorized Officer certifying that Borrower is in compliance with this Agreement
and the other Loan Documents both on a historical basis and on a pro forma
basis, exclusive of the property sold, transferred and/or encumbered and
inclusive of the property to be acquired or the indebtedness to be incurred.
To the extent such proposed transaction would result in a failure to comply with
the covenants set forth herein, the Borrower shall (i) apply the proceeds of
such transaction (together with such additional amounts as may be required), to
prepay the Obligations in an amount, as determined by the Administrative Agent,
equal to that which would be required to reduce the Obligations so that Borrower
will be in compliance with the covenants set forth herein upon the consummation
of the contemplated transaction, to the extent such proceeds are not applied
pursuant to clauses (ii) or (iii); (ii) to the extent applicable, segregate the
net proceeds of such transaction in an escrow account with the Administrative
Agent or with a financial institution reasonably acceptable to the
Administrative Agent and apply such net proceeds solely to a qualified, deferred
exchange under ss.1031 of the Internal Revenue Code that results in compliance
with the covenants set forth herein upon the consummation of the contemplated
transaction, or with the prior written approval of the Requisite Lenders to
another use, to the extent such proceeds are not applied pursuant to clauses (i)
or (iii); or (iii) to the extent applicable, complete an exchange of such assets
for other real property of equivalent value under ss.1031 of the Internal
Revenue Code that results in compliance with the covenants set forth herein upon
the consummation of the contemplated transaction, to the extent such proceeds
are not applied pursuant to clauses (i) or (ii).
8.10. NOTICES OF JOINT VENTURES. The Borrower shall deliver to the
Administrative Agent and the Lenders written notice of each of the following not
less than two (2) Business Days prior to the occurrence thereof: (a) the
acquisition of an interest in a Joint Venture in excess of $5,000,000, (b) the
investment of an amount in excess of $5,000,000 in a Joint Venture of which the
Administrative Agent and the Lenders have not previously received notice, and
(c) the sale of an interest in a Subsidiary that results in the same becoming a
Joint Venture. Simultaneously with the delivery of the Compliance Certificates,
the Borrower shall deliver to the Administrative Agent and the Lenders written
notice of the formation of any other Joint Venture.
8.11. TENANT NOTIFICATIONS. The Borrower shall promptly notify the
Administrative Agent upon obtaining knowledge of the bankruptcy or cessation of
operations of any tenant to which greater than three and one half percent (3.5%)
of the Borrower's share of annual base rent (as reported in the Borrower's most
recent quarterly financial statements) is attributable to such tenant.
8.12. OTHER REPORTS. The Borrower shall deliver or cause to be
delivered to the Administrative Agent (with copies for each of the Lenders)
copies of all financial statements and reports, if any, sent or made available
generally by the Company and/or the Borrower to its respective Securities
holders, including, without limitation, supplemental quarterly forms, or (to
-70-
the extent not otherwise provided hereunder), all press releases made available
generally by the Company and/or the Borrower or any of its Subsidiaries to the
public concerning material adverse developments in the business of the Company,
the Borrower or any such Subsidiary and all material notifications received by
the Company, the Borrower or their Subsidiaries pursuant to the Securities
Exchange Act and the rules promulgated thereunder.
8.13. OTHER INFORMATION. Promptly upon receiving a request therefor
from the Administrative Agent or any Arranger, the Borrower shall prepare and
deliver to the Administrative Agent (with copies for each of the Lenders) such
other information with respect to the Company, the Borrower, or any of their
Subsidiaries, as from time to time may be reasonably requested by the
Administrative Agent or any Arranger, including without limitation, rent rolls,
title reports, environmental site assessments, and tax returns.
ARTICLE IX.
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that so long as any Revolving Credit
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than indemnities pursuant to Section 14.3 not yet due),
unless the Requisite Lenders shall otherwise give prior written consent:
9.1. EXISTENCE. ETC. The Borrower shall, and shall cause each of its
Subsidiaries and the Company to, at all times maintain its corporate existence
or existence as a limited partnership, limited liability company or joint
venture, as applicable, and preserve and keep, or cause to be preserved and
kept, in full force and effect its rights and franchises material to its
businesses, except where the loss or termination of such rights and franchises
will not have a Material Adverse Effect.
9.2. POWERS; CONDUCT OF BUSINESS. The Borrower shall remain
qualified, and shall cause each of its Subsidiaries and the Company to qualify
and remain qualified, to do business and maintain its good standing in each
jurisdiction in which the nature of its business and the ownership of its
Property requires it to be so qualified and in good standing if the failure to
do so will have a Material Adverse Effect.
9.3. COMPLIANCE WITH LAWS. ETC. The Borrower shall, and shall cause
each of its Subsidiaries and the Company to, (a) comply with all Requirements of
Law and all restrictive covenants affecting such Person or the business,
Property or operations of such Person, and (b) obtain and maintain as needed all
Permits necessary for its operations (including, without limitation, the
operation of the Projects) and maintain such Permits in good standing, except
where noncompliance with either clause (a) or (b) above will not have a Material
Adverse Effect.
9.4. PAYMENT OF TAXES AND CLAIMS. (a) The Borrower shall pay, and
cause each of its Subsidiaries and the Company to pay, (i) all material taxes,
assessments and other governmental charges imposed upon it or on any of its
Property or assets or in respect of any of its franchises, licenses, receipts,
sales, use, payroll, employment, business, income or Property before any penalty
or interest accrues thereon, and (ii) all material Claims (including, without
limitation, claims for labor, services, materials and supplies) for sums which
have become due and payable and which by law have or may become a Lien (other
than a Lien permitted by Section 10.2 or a Customary Permitted Lien for property
taxes and assessments not yet due upon any of the Borrower's, the Company's or
any of the Borrower's Subsidiaries' Property, prior to the
-71-
time when any penalty or fine shall be incurred with respect thereto; PROVIDED,
HOWEVER, that no such taxes, assessments, fees and governmental charges referred
to in clause (i) above or Claims referred to in clause (ii) above need be paid
if being contested in good faith by appropriate proceedings diligently
instituted and conducted and if such reserve or other appropriate provision, if
any, as shall be required in conformity with GAAP shall have been made therefor.
9.5. INSURANCE. The Borrower shall maintain for itself and its
Subsidiaries, or shall cause each of its Subsidiaries to maintain in full force
and effect the insurance policies and programs listed on SCHEDULE 7.1-T or
substantially similar policies and programs or other policies and programs as
are reasonably acceptable to the Administrative Agent. All such policies and
programs shall be maintained with insurers having an Xxxxxx X. Best Company,
Inc. rating of "A" or better (or if approved by the Administrative Agent, a
rating of "A-") and a financial size category of not less than VIII.
9.6. INSPECTION OF PROPERTY, BOOKS AND RECORDS DISCUSSIONS. The
Borrower shall permit, and cause each of its Subsidiaries and the Company to
permit, any authorized representative(s) designated by the Administrative Agent
or any Arranger or Lender (coordinated through the Administrative Agent) to
visit and inspect any of the Projects, to examine, audit, and check their
respective financial and accounting records, books, journals, orders, receipts
and any correspondence and other data relating to their respective businesses or
the transactions contemplated hereby (including, without limitation, in
connection with environmental compliance, hazard or liability), and to discuss
their affairs, finances and accounts with their officers and independent
certified public accountants, upon reasonable notice and at such reasonable
times during normal business hours, as often as may be reasonably requested.
Each such visitation and inspection shall be at such visitor's expense. The
Borrower shall keep and maintain, and cause its Subsidiaries to keep and
maintain, in all material respects proper books of record and account in which
entries are made in conformity with GAAP.
9.7. ERISA COMPLIANCE. The Borrower shall, and shall cause each of
its Subsidiaries and ERISA Affiliates to, establish, maintain and operate all
Benefit Plans to comply in all material respects with the provisions of ERISA,
the Internal Revenue Code, all other applicable laws, and the regulations and
interpretations thereunder and the respective requirements of the governing
documents for such Plans.
9.8. MAINTENANCE OF PROPERTY. The Borrower shall, and shall cause
each of its Subsidiaries to, maintain in all material respects all of their
respective owned and leased Property in good, safe and insurable condition and
repair (ordinary wear and tear excepted), and not permit, commit or suffer any
waste or abandonment of any such Property and from time to time shall make or
cause to be made all material repairs, renewals and replacements thereof,
including, without limitation, any capital improvements which may be required to
maintain the same; PROVIDED, HOWEVER, that such Property may be altered or
renovated in the ordinary course of business of the Borrower or such applicable
Subsidiary. Without any limitation on the foregoing, the Borrower shall maintain
each Project that is an office or industrial Project as an office or industrial
Project.
9.9. COMPANY STATUS. The Borrower shall cause the Company to, and the
Company shall, at all times (1) remain a publicly traded company listed on the
New York Stock Exchange; (2) maintain its status as a REIT under the Internal
Revenue Code, and (3) retain direct or indirect management and control of the
Borrower.
-72-
9.10. OWNERSHIP OF PROJECTS, JOINT VENTURES AND PROPERTY. The
ownership of substantially all wholly owned Projects, Joint Ventures and other
Property of the Consolidated Businesses shall be held by the Borrower and its
Subsidiaries and shall not be held directly by the Company.
9.11. MAINTENANCE OF OPERATING ACCOUNTS. The Borrower shall at all
times during the Revolving Credit Period maintain a demand deposit account held
by Administrative Agent (the "OPERATING ACCOUNT") and shall cause funds to be
deposited therein in an amount sufficient to permit the Administrative Agent to
automatically deduct therefrom the respective interest payments on the
obligations at 12:00 p.m. on the first Business Day of each month.
9.12. ADDITIONAL GUARANTORS; SOLVENCY OF GUARANTORS.
(a) If, after the Closing Date, a Subsidiary of the Borrower
that is not a Guarantor acquires any Real Property that then or thereafter
qualifies under the definition of Unencumbered Project or Unencumbered New York
City Asset or any other Unencumbered asset and such Property or asset is
directly or indirectly wholly-owned or ground leased by the Borrower, the
Borrower shall cause such Person (which Person must be or become a wholly-owned
Subsidiary of the Borrower) to execute and deliver a Guaranty to the
Administrative Agent and the Lenders in substantially the form of EXHIBIT L
hereto. Such Guaranty shall evidence consideration and equivalent value.
(b) The Borrower, the Company, and each other Guarantor are
Solvent. The Borrower and the Company each acknowledge that, subject to the
indefeasible payment and performance in full of the Obligations, the rights of
contribution among each of them and the other Guarantors are in accordance with
applicable laws and in accordance with each such Person's benefits under the
Loans and this Agreement. The Borrower further acknowledges that, subject to the
indefeasible payment and performance in full of the Obligations, the rights of
subrogation of the Guarantors as against the Borrower and the Company are in
accordance with applicable laws.
(c) Other than during the continuance of a Potential Event
of Default or Event of Default, at the request of the Borrower following the
delivery of the certificate of an Authorized Officer in accordance with Section
8.9 hereof, the Guaranty of any Guarantor shall be released by the
Administrative Agent if and when all of the Real Property owned or ground-leased
by such Guarantor shall cease (not thereby creating a Potential Event of Default
or Event of Default) to be an Unencumbered Project or Unencumbered New York City
Asset which is wholly-owned by a Consolidated Business, PROVIDED the foregoing
shall never permit the release of the Company.
9.13. FURTHER ASSURANCES. The Borrower will, and will cause each
Guarantor to, cooperate with, and to cause each of its Subsidiaries to cooperate
with, the Administrative Agent and the Lenders and execute such further
instruments and documents as the Lenders or the Administrative Agent shall
reasonably request to carry out to their reasonable satisfaction the
transactions contemplated by this Agreement and the other Loan Documents.
9.14. DISTRIBUTIONS IN THE ORDINARY COURSE. In the ordinary course of
business the Borrower causes all of its Subsidiaries to make net transfers of
cash and cash equivalents upstream to the Borrower and the Company, and shall
continue to follow such ordinary course of
-73-
business. The Borrower shall not make net transfers of cash and cash equivalents
downstream to its Subsidiaries except in the ordinary course of business
consistent with past practice.
ARTICLE X.
NEGATIVE COVENANTS
Borrower covenants and agrees that it shall comply with the following
covenants so long as any Revolving Credit Commitments are outstanding and
thereafter until payment in full of all of the Obligations (other than
indemnities pursuant to Section 14.3 not yet due), unless the Requisite Lenders
shall otherwise give prior written consent:
10.1. INTENTIONALLY OMITTED.
10.2. LIENS. Neither the Borrower nor any of its Subsidiaries shall
directly or indirectly create, incur, assume or permit to exist any Lien on or
with respect to any Property, except:
(a) Liens with respect to Capital Leases of Equipment
entered into in the ordinary course of business of the Borrower or its
Subsidiaries pursuant to which the aggregate Indebtedness under such Capital
Leases does not exceed $1,000,000 for any Project;
(b) Existing Permitted Liens;
(c) Liens securing permitted Secured Indebtedness; provided
that the incurrence of such Liens shall be subject to compliance with Section
4.1(d) and Section 8.9 hereof; and
(d) Customary Permitted Liens.
10.3. INTENTIONALLY OMITTED.
10.4. CONDUCT OF BUSINESS. Neither the Borrower nor any of its
Subsidiaries shall engage in any business, enterprise or activity other than (a)
the businesses of acquiring, developing, re-developing, financing, leasing and
managing predominantly office and industrial Projects and portfolios of like
Projects, (b) any business or activities which are substantially similar,
related or incidental thereto, (c) investments in and loans to Investment Funds,
FrontLine Capital Group, Subsidiaries, Affiliates and Joint Ventures and
unaffiliated entities (to the extent permitted hereunder) and (d) other
activities referred to in Section 2.3 hereof.
10.5. TRANSACTIONS WITH PARTNERS AND AFFILIATES. Neither the Borrower
nor any of its Subsidiaries shall directly or indirectly enter into or permit to
exist any transaction (including, without limitation, the purchase, sale, lease
or exchange of any property or the rendering of any service) with any holder or
holders of more than five percent (5%) of any class of equity Securities of the
Borrower, or with any Affiliate of the Borrower which is not its Subsidiary or
the Company, unless such transaction is determined by the Board of Directors of
the Company to be no less favorable to the Borrower or any of its Subsidiaries,
as applicable, than those that might be obtained in an arm's length transaction
at the time from Persons who are not such a holder or Affiliate (other than
transactions referred to in Section 2.3). Nothing contained in this Section 10.5
shall prohibit (a) increases in compensation and benefits for officers and
employees of the Company, the Borrower or any of its Subsidiaries; (b) payment
of officers', managers',
-74-
trustees', directors', partners' and other similar indemnities; (c) performance
of any obligations arising under the Loan Documents; or (d) loans to Persons in
connection with such Person's contribution of Real Property to the Consolidated
Businesses or Joint Ventures.
10.6. RESTRICTION ON FUNDAMENTAL CHANGES. The Borrower shall not, and
shall not permit any of the Guarantors to, enter into any merger, consolidation
or amalgamation, or liquidate, wind-up or dissolve (or suffer any liquidation or
dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one
transaction or series of transactions, all or substantially all of the
Borrower's or such Guarantor's business or Property, whether now or hereafter
acquired, except in connection with issuance, transfer, conversion or repurchase
of limited partnership interests in the Borrower. Notwithstanding the foregoing,
(a) the Borrower or a Guarantor shall be permitted to merge, consolidate or
amalgamate with another Person so long as the Borrower or such Guarantor, as the
case may be, is the surviving Person following such merger, consolidation or
amalgamation, (b) a Guarantor (other than the Company) shall be permitted to
merge, consolidate or amalgamate with or into the Borrower or another Guarantor,
and (c) so long as no Potential Event of Default or Event of Default has
occurred and is continuing and following the delivery by the Borrower to the
Administrative Agent of a certificate of an Authorized Officer certifying that
Borrower is in compliance with this Agreement and the other Loan Documents on a
pro forma basis, exclusive of the properties owned by a Guarantor, such
Guarantor (other than the Company) shall be permitted to merge, consolidate or
amalgamate with or into another Person.
10.7. MARGIN REGULATIONS; SECURITIES LAWS. Neither the Borrower nor
any of its Subsidiaries shall use all or any portion of the proceeds of any
credit extended under this Agreement to purchase or carry Margin Stock.
10.8. ERISA. The Borrower shall not and shall not permit any of its
Subsidiaries or ERISA Affiliates to:
(a) engage in any prohibited transaction described in
Sections 406 of ERISA or 4975 of the Internal Revenue Code for which a statutory
or class exemption is not available or a private exemption has not been
previously obtained from the DOL, except to the extent engaging in such
transaction would not have a Material Adverse Effect;
(b) permit to exist any accumulated funding deficiency (as
defined in Sections 302 of ERISA and 412 of the Internal Revenue Code), with
respect to any Benefit Plan, whether or not waived;
(c) fail to pay timely required contributions or annual
installments due with respect to any waived funding deficiency to any Benefit
Plan;
(d) terminate any Benefit Plan which would result in any
liability of Borrower or any ERISA Affiliate under Title IV of ERISA;
(e) fail to make any contribution or payment to any
Multiemployer Plan which Borrower or any ERISA Affiliate may be required to make
under any agreement relating to such Multiemployer Plan, or any law pertaining
thereto, except to the extent such failure would not have a Material Adverse
Effect;
-75-
(f) fail to pay any required installment or any other
payment required under Section 412 of the Internal Revenue Code on or before the
due date for such installment or other payment; or
(g) amend a Benefit Plan resulting in an increase in current
liability for the plan year such that the Borrower or any ERISA Affiliate is
required to provide security to such Plan under Section 401(a)(29) of the
Internal Revenue Code.
10.9. ORGANIZATIONAL DOCUMENTS. Neither the Company nor the Borrower
shall, and the Borrower shall not permit any Guarantor to, amend, modify or
otherwise change any of the terms or provisions in any of their respective
Organizational Documents as in effect on the Closing Date, except amendments to
effect (a) a change of name of the Borrower or such Guarantor, PROVIDED that the
Borrower shall have provided the Administrative Agent with thirty (30) days
prior written notice of any such name change, or (b) changes that would not
affect such Organizational Documents in any material manner not otherwise
prohibited under this Agreement.
10.10. FISCAL YEAR. Neither the Company, the Borrower nor any of their
Subsidiaries shall change its Fiscal Year for accounting or tax purposes from a
period consisting of the 12-month period ending on December 31 of each calendar
year.
10.11. FINANCIAL COVENANTS.
(a) INDEBTEDNESS. Neither the Borrower nor any of its
Subsidiaries shall directly or indirectly create, incur, assume or otherwise
become or remain directly or indirectly liable with respect to any Indebtedness,
except (i) Total Outstanding Indebtedness which would not exceed fifty-five
percent (55%) of Total Value as of the date of incurrence, (ii) Total Secured
Outstanding Indebtedness which would not exceed forty percent (40%) of Total
Value as of the date of incurrence or (iii) Total Recourse Secured Outstanding
Indebtedness which would not exceed ten percent (10%) of Total Value as of the
date of incurrence.
(b) MINIMUM COMBINED EQUITY VALUE. The Combined Equity Value
shall at no time be less than $1,250,000,000, plus an amount equal to seventy
percent (70%) of all Net Offering Proceeds received by the Company after the
date hereof.
(c) INTENTIONALLY OMITTED.
(d) MINIMUM UNSECURED INTEREST COVERAGE RATIO. As of the
first day of each calendar quarter for the immediately preceding calendar
quarter, the ratio of (i) Adjusted Unencumbered NOI to (ii) Unsecured Interest
Expense shall not be less than 2.0 to 1.0.
(e) LIMITATION ON TOTAL UNSECURED OUTSTANDING INDEBTEDNESS.
As of the first day of each calendar quarter for the immediately preceding
calendar quarter, the ratio of (i) Total Unsecured Outstanding Indebtedness to
(ii) Total Unencumbered Value (including Eligible Cash 1031 Proceeds, to the
extent not already included) shall not exceed 0.60 to 1.0.
(f) MINIMUM TOTAL INTEREST COVERAGE RATIO. As of the first
day of each calendar quarter for the immediately preceding calendar quarter, the
ratio of (i) Total Adjusted EBITDA to (ii) Total Interest Expense shall not be
less than 2.0 to 1.0.
-76-
(g) MINIMUM FIXED CHARGE COVERAGE RATIO. As of the first day
of each calendar quarter for the immediately preceding calendar quarter, the
ratio of (i) Total Adjusted EBITDA to (ii) Fixed Charges shall not be less than
1.60 to 1.0.
(h) MAXIMUM DIVIDEND PAYOUT RATIO. The Borrower shall not
make any Restricted Payment during any of its fiscal quarters, which, when added
to all Restricted Payments made during the three immediately preceding fiscal
quarters, exceeds the greater of (i) 90% of FFO of the Borrower, and (ii) the
amounts required to maintain the Company's status as a REIT under the Internal
Revenue Code, and, provided an Event of Default shall not have occurred and be
continuing, to avoid federal income and excise tax liability. For purposes of
this provision, "RESTRICTED PAYMENT" means any cash dividend or other cash
distribution on any interest in the Borrower's common operating partnership
units or on any of the Borrower's common partnership interests or other common
equity interests (except dividends or distributions payable solely in interests
in operating partnership units, partnership interests, or other equity interests
or in rights to subscribe for or purchase interests in its operating partnership
units, partnership interests, or other equity interests and except dividends or
distributions which are necessary to pay dividends or distributions on preferred
stock or other preferred equity interests of the Company).
(i) DEVELOPMENT ACTIVITIES. As of the first day of each
calendar quarter for the immediately preceding calendar quarter, the ratio of
(i) Budgeted Construction Cost to (ii) Total Value shall not exceed 0.20 to 1.0.
(j) NEGATIVE PLEDGE. From and after the date hereof, neither
the Borrower nor the Company will, and will not permit any of their respective
Subsidiaries, to enter into any agreement containing any provision prohibiting
the creation or assumption of any Lien upon its properties, revenues or assets
(other than with respect to (i) prohibitions on subordinate liens or
prohibitions on pledges of direct or indirect ownership interests (other than
pledges of direct ownership interests in the Borrower or any Subsidiary that
owns an Unencumbered Project or Unencumbered New York City Asset) set forth in a
mortgage on a particular property, (ii) customary restrictions contained in the
Organizational Documents of a Joint Venture, or (iii) restrictions contained in
the Organizational Documents of the Borrower on the ability of its general
partner and limited partner to pledge and transfer partnership interests in the
Borrower), whether now owned or hereafter acquired, or restricting the ability
of the Borrower to amend or modify this Agreement or any other Loan Document.
(k) PRO FORMA CALCULATIONS. The Borrower shall comply with
the financial ratios set forth in this Section 10.11 as of the date of each
Borrowing. The Borrower shall recalculate the financial ratios in Sections
10.11(a) and 10.11(e) by adding the deemed amount equal to the applicable
Borrowing to the Indebtedness reflected on the most recently available financial
statements, and adding thereto any Indebtedness incurred since the date of such
financial statement and adding, without duplication, the cash from such
Borrowing and the value of any assets (determined at cost) acquired with such
Indebtedness to Total Value.
10.12. NEGATIVE COVENANTS WITH RESPECT TO THE COMPANY.
(a) From and after the date hereof, the Company will not
acquire any assets of any nature whatsoever other than additional units in the
Borrower, Cash or Cash Equivalents in the ordinary course of business or in
connection with the payment of dividends.
-77-
(b) From and after the date hereof, the Company will not
incur any Indebtedness or any other obligations or liabilities except (i) as
imposed by operation of law on the Company in its capacity as the general
partner of the Borrower, (ii) Indebtedness, the net proceeds of which are
contributed to the Borrower simultaneously with the incurrence thereof by the
Company, (iii) guarantees of Indebtedness which are recourse to the Borrower,
(iv) in connection with the payment of a declared dividend and (v) otherwise as
imposed by law.
(c) From and after the date hereof, the Company will not
retain any Net Offering Proceeds, and the same will be contributed by the
Company to the Borrower simultaneously with receipt thereof by the Company.
(d) The Company shall not enter into any merger or
consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or
dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one
transaction or series of transactions, any of its business or assets, including
its interests in the Borrower. Notwithstanding the foregoing, the Company shall
be permitted to merge with another Person so long as the Company is the
surviving Person following such merger.
ARTICLE XI.
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.1. EVENTS OF DEFAULT. Each of the following occurrences shall
constitute an Event of Default under this Agreement:
(a) FAILURE TO MAKE PAYMENTS WHEN DUE. The Borrower shall
fail to pay (i) when due any principal payment on the Obligations which is due
on the Revolving Credit Termination Date or pursuant to the terms of Section
2.1(a), Section 2.4, Section 4.1(a), or Section 4.1(d) or (ii) when due, any
interest payment on the obligations, provided, however, that the Borrower shall
be entitled to a five (5) day grace period with respect to any interest payment
but not more than one time in any twelve (12) month period during the term
hereof, or (iii) when due, any principal payment on the Obligations not
referenced in clauses (i) or (ii) hereinabove or (iv) when due, any fees due
pursuant to the terms of Section 5.3 and such default shall continue for five
(5) days.
(b) BREACH OF CERTAIN COVENANTS. The Borrower shall fail
duly and punctually to perform or observe any agreement, covenant or obligation
binding on such Person under Sections 9.1, 9.4, 9.5, 9.10, 9.11 or Article X.
(c) BREACH OF REPRESENTATION OR WARRANTY. Any representation
or warranty made or deemed made by the Borrower or any of the parties to the
Guaranties to the Administrative Agent, any Arranger or any Lender herein or by
the Borrower or any of the parties to the Guaranties or any of their
Subsidiaries in any of the other Loan Documents or in any statement or
certificate at any time given by any such Person pursuant to any of the Loan
Documents shall be false or misleading in any material respect on the date as of
which made or deemed made or given.
(d) OTHER DEFAULTS. The Borrower shall default in the
performance of or compliance with any terms contained in this Agreement (other
than as identified in paragraphs (a), (b) or (c) of this Section 11.1), or any
default or event of default shall occur under any of the
-78-
other Loan Documents, and such default or event of default shall continue for
thirty (30) days after receipt of written notice from the Administrative Agent
thereof.
(e) ACCELERATION OF OTHER INDEBTEDNESS. Any breach, default
or event of default shall occur and be continuing, or
any other condition shall exist under any instrument, agreement or indenture
pertaining to any recourse Indebtedness (other than the Obligations) of the
Company, the Borrower or their Subsidiaries aggregating more than $10,000,000,
and the effect thereof is to cause an acceleration, mandatory redemption or
other required repurchase of such Indebtedness, or permit the holder(s) of such
Indebtedness to accelerate the maturity of any such Indebtedness or require a
redemption or other repurchase of such Indebtedness; or any such Indebtedness
shall be otherwise declared to be due and payable (by acceleration or otherwise)
or required to be prepaid, redeemed or otherwise repurchased by the Borrower or
any of its Subsidiaries (other than by a regularly scheduled required
prepayment) prior to the stated maturity thereof; or any such Indebtedness shall
not be repaid at maturity (after taking into account grace and cure periods).
(f) INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) An involuntary case shall be commenced against the
Company, the Borrower or any of its Subsidiaries to which $25,000,000 or
more of the Combined Equity Value is attributable, and the petition
shall not be dismissed, stayed, bonded or discharged within sixty (60)
days after commencement of the case; or a court having jurisdiction in
the premises shall enter a decree or order for relief in respect of the
Company, the Borrower or any such Subsidiaries of the Borrower in an
involuntary case, under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect; or any other similar relief
shall be granted under any applicable federal, state, local or foreign
law; or the respective board of directors of the Company, or General
Partner or Limited Partners of the Borrower or the board of directors or
partners of any such Subsidiaries of the Borrower (or any committee
thereof) adopts any resolution or otherwise authorizes any action to
approve any of the foregoing.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over the
Company, the Borrower or any of their Subsidiaries to which $25,000,000
or more of the Combined Equity Value is attributable, or over all or a
substantial part of the Property of the Company, the Borrower or any of
such Subsidiaries, shall be entered; or an interim receiver, trustee or
other custodian of the Company, the Borrower or any of such Subsidiaries
or of all or a substantial part of the Property of the Company, the
Borrower or any of such Subsidiaries shall be appointed or a warrant of
attachment, execution or similar process against any substantial part of
the Property of any of the Company, the Borrower, or any of such
Subsidiaries shall be issued and any such event shall not be stayed,
dismissed, bonded or discharged within sixty (60) days after entry,
appointment or issuance; or the respective board of directors of any of
the Company or General Partners or Limited Partners of the Borrower or
the board of directors or partners of any of Borrower's Subsidiaries (or
any committee thereof) adopts any resolution or otherwise authorizes any
action to approve any of the foregoing.
(g) VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER. ETC. The
Company, the Borrower or any of their Subsidiaries to which $25,000,000 or more
of the Combined Equity
-79-
Value is attributable, shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or shall
consent to the entry of an order for relief in an involuntary case, or to the
conversion of an involuntary case to a voluntary case, under any such law, or
shall consent to the appointment of or taking possession by a receiver, trustee
or other custodian for all or a substantial part of its Property; or the
Company, the Borrower or any of such Subsidiaries shall make any assignment for
the benefit of creditors or shall be unable or fail, or admit in writing its
inability, to pay its debts as such debts become due.
(h) JUDGMENTS AND UNPERMITTED LIENS.
(i) Any money judgment (other than a money judgment covered
by insurance as to which the insurance company has acknowledged
coverage), writ or warrant of attachment, or similar process against the
Borrower or any of its Subsidiaries or any of their respective assets
involving in any case an amount in excess of $5,000,000 (other than with
respect to Claims arising out of non-recourse Indebtedness) is entered
and shall remain undischarged, unvacated, unbonded or unstayed for a
period of sixty (60) days or in any event later than five (5) days prior
to the date of any proposed sale thereunder.
(ii) A federal, state, local or foreign tax Lien is filed
against the Borrower which is not discharged of record, bonded over or
otherwise secured to the satisfaction of the Administrative Agent within
sixty (60) days after the filing thereof or the date upon which the
Administrative Agent receives actual knowledge of the filing thereof for
an amount which, either separately or when aggregated with the amount of
any judgments described in clause (i) above, equals or exceeds
$5,000,000.
(iii) An Environmental Lien is filed against any Project with
respect to Claims in an amount which, either separately or when
aggregated with the amount of all other such Environmental Liens, equals
or exceeds $5,000,000.
(i) DISSOLUTION. Any order, judgment or decree shall be
entered against the Borrower or any Guarantor decreeing its involuntary
dissolution or split up; or the Borrower or any Guarantor shall otherwise
dissolve or cease to exist except as specifically permitted by this Agreement.
(j) LOAN DOCUMENTS. At any time, for any reason, any Loan
Document ceases to be in full force and effect or the Borrower or any Guarantor
seeks to repudiate its obligations thereunder.
(k) ERISA TERMINATION EVENT. Any ERISA Termination Event
occurs which the Administrative Agent believes could subject any of the Borrower
or any ERISA Affiliate to liability in excess of $500,000.
(l) WAIVER APPLICATION. The plan administrator of any
Benefit Plan applies under Section 412 (d) of the Internal Revenue Code for a
waiver of the minimum funding standards of Section 412 (a) of the Internal
Revenue Code and the Administrative Agent believes that the substantial business
hardship upon which the application for the waiver is based could subject either
the Borrower or any ERISA Affiliate to liability in excess of $500,000.
-80-
(m) MATERIAL ADVERSE EFFECT. An event shall occur which has
a Material Adverse Effect.
(n) CERTAIN DEFAULTS PERTAINING TO THE COMPANY. The Company
shall fail to comply with Section 9.9, or any representation or warranty
contained in Section 7.1(a)(ii), (b), (d), (l), or (o) shall be false or
misleading in any material respect on the date as of which made.
(o) MERGER OR LIQUIDATION OF THE COMPANY, THE BORROWER. The
Company shall merge or liquidate with or into any other Person and, as a result
thereof and after giving effect thereto, (i) the Company is not the surviving
Person or (ii) such merger or liquidation would effect an acquisition of or
Investment in any Person which is prohibited or results in a Potential Event of
Default or an Event of Default under the terms of this Agreement. The Borrower
shall merge or liquidate with or into any other Person and, as a result thereof
and after giving effect thereto, (i) the Borrower is not the surviving Person or
(ii) such merger or liquidation would effect an acquisition of or Investment in
any Person which is prohibited or results in a Potential Event of Default or an
Event of Default under the terms of this Agreement.
An Event of Default shall be deemed "continuing" until cured or waived in
writing in accordance with Section 14.7.
11.2. RIGHTS AND REMEDIES.
(a) ACCELERATION AND TERMINATION. Upon the occurrence of any
Event of Default described in Sections 11.1(f) or 11.1(g), the Revolving Credit
Commitments shall automatically and immediately terminate and the unpaid
principal amount of, and any and all accrued interest on, the Obligations and
all accrued fees and other Obligations shall automatically become immediately
due and payable, without presentment, demand, or protest or other requirements
of any kind (including, without limitation, valuation and appraisement,
diligence, presentment, notice of intent to demand or accelerate and of
acceleration), all of which are hereby expressly waived by the Borrower, and,
upon the occurrence and during the continuance of any other Event of Default,
the Administrative Agent shall at the request, or may with the consent, of the
Lenders whose Pro Rata Shares, in the aggregate, are greater than fifty-one
percent (51%), by written notice to the Borrower, (i) declare that the Revolving
Credit Commitments are terminated, whereupon the Revolving Credit Commitments
and the obligation of each Lender to make any Loan hereunder and of each Lender
to issue or participate in any Letter of Credit not then issued shall
immediately terminate, and/or (ii) declare the unpaid principal amount of and
any and all accrued and unpaid interest on the Obligations and all other
Obligations to be, and the same shall thereupon be, immediately due and payable,
without presentment, demand, or protest or other requirements of any kind
(including, without limitation, valuation and appraisement, diligence,
presentment, notice of intent to demand or accelerate and of acceleration), all
of which are hereby expressly waived by the Borrower and/or (iii) require the
Borrower to provide cash collateral in an amount equal to the sum of (A) all
outstanding Reimbursement Obligations plus (B) the aggregate undrawn face amount
of all outstanding Letters of Credit.
(b) RESCISSION. If within ninety (90) days after termination
of the Revolving Credit Commitments and/or acceleration of the maturity of the
Loans, the Borrower shall pay all arrears of interest and all payments on
account of principal of the Loans and Reimbursement Obligations which shall have
become due otherwise than by acceleration (with interest on principal and, to
the extent permitted by law, on overdue interest, at the rates specified in this
Agreement) and all Events of Default and Potential Events of Default (other than
nonpayment of
-81-
principal of and accrued interest on the Loans due and payable solely by virtue
of acceleration) shall be remedied or waived pursuant to Section 14.7, then upon
the written consent of the Requisite Lenders and written notice to the Borrower,
the termination of the Revolving Credit Commitments and/or the acceleration and
their consequences may be rescinded and annulled; but such action shall not
affect any subsequent Event of Default or Potential Event of Default or impair
any right or remedy consequent thereon. The provisions of the preceding sentence
are intended merely to bind the Lenders to a decision which may be made at the
election of the Requisite Lenders; they are not intended to benefit the Borrower
and do not give the Borrower the right to require the Lenders to rescind or
annul any acceleration hereunder, even if the conditions set forth herein are
met.
(c) ENFORCEMENT. The Borrower acknowledges that in the event
the Borrower, the Guarantors or any of their Subsidiaries fails to perform,
observe or discharge any of their respective obligations or liabilities under
this Agreement or any other Loan Document, any remedy of law may prove to be
inadequate relief to the Administrative Agent, the Arrangers and the Lenders;
therefore, the Borrower agrees that the Administrative Agent, the Arrangers and
the Lenders shall be entitled to temporary and permanent injunctive relief in
any such case without the necessity of proving actual damages.
ARTICLE XII.
THE AGENTS
12.1. APPOINTMENT. (a) Each Lender hereby designates and appoints
JPMorgan as the Administrative Agent, Xxxxx Fargo Bank, National Association, as
the Syndication Agent, Citicorp North America, Inc., Wachovia Bank, National
Association and Deutsche Bank Trust Company Americas, Inc., as Co-Documentation
Agents, KeyBank, National Association, The Bank of New York, The Bank of Nova
Scotia, ING Real Estate Finance (USA) LLC, and PNC Bank, National Association,
as the Co-Agents, and the Arrangers as the arrangers of such Lender under this
Agreement, and each Lender hereby irrevocably authorizes the Administrative
Agent, the other Agents and the Arrangers to take such actions on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers in each case only as are set forth herein or therein
together with such other powers as are reasonably incidental thereto. The
Administrative Agent, the other Agents and the Arrangers each agrees to act as
such on the express conditions contained in this Article XII.
(b) The provisions of this Article XII are solely for the
benefit of the Administrative Agent, the Syndication Agent, the Documentation
Agents, the Co-Agents, the Arrangers and the Lenders, and neither the Borrower,
the Company nor any Subsidiary of the Borrower shall have any rights to rely on
or enforce any of the provisions hereof (other than as expressly set forth in
Section 12.7). In performing its respective functions and duties under this
Agreement, the Administrative Agent, the Documentation Agents, the Co-Agents,
the Syndication Agent, and the Arrangers shall act solely as agents of the
Lenders and do not assume and shall not be deemed to have assumed any obligation
or relationship of agency, trustee or fiduciary with or for the Company, the
Borrower or any Subsidiary of the Borrower. The Administrative Agent, the
Documentation Agents, the Co-Agents, the Syndication Agent and the Arrangers may
perform any of their respective duties hereunder, or under the other Loan
Documents, by or through their respective agents or employees.
12.2. NATURE OF DUTIES. The Administrative Agent, the Documentation
Agents, the Co-Agents, the Syndication Agent and the Arrangers shall not have
any duties or responsibilities
-82-
except those expressly set forth in this Agreement or in the other Loan
Documents. The duties of the Administrative Agent, the Documentation Agents, the
Co-Agents, the Syndication Agent and the Arrangers shall be mechanical and
administrative in nature. None of the Administrative Agent, a Documentation
Agent, a Co-Agent, the Syndication Agent or any Arranger shall have by reason of
this Agreement a fiduciary relationship in respect of any Lender. Nothing in
this Agreement or any of the other Loan Documents, expressed or implied, is
intended to or shall be construed to impose upon the Administrative Agent, a
Documentation Agent, a Co-Agent, the Syndication Agent or any Arranger any
obligations in respect of this Agreement or any of the other Loan Documents
except as expressly set forth herein or therein. The Administrative Agent, the
Documentation Agents, the Co-Agents, the Syndication Agent and the Arrangers
each hereby agrees that its duties shall include providing copies of documents
received by such Agent from the Borrower which are reasonably requested by any
Lender, furnishing copies of documents to each Lender, upon request, of
documents sent by such Agent to the Borrower and promptly notifying each Lender
upon its obtaining actual knowledge of the occurrence of any Event of Default
hereunder. In addition, the Administrative Agent shall deliver to each Lender,
promptly after receipt thereof, copies of those documents and reports received
by it pursuant to Sections 8.2 (other than clause (b)(iv)), 8.3, 8.4, 8.7 and
8.12.
12.3. RIGHT TO REQUEST INSTRUCTIONS. The Administrative Agent, the
Documentation Agents, the Co-Agents, the Syndication Agent and the Arrangers may
at any time request instructions from the Lenders with respect to any actions or
approvals which by the terms of any of the Loan Documents such Agent is
permitted or required to take or to grant, and such Agent shall be absolutely
entitled to refrain from taking any action or to withhold any approval and shall
not be under any liability whatsoever to any Person for refraining from any
action or withholding any approval under any of the Loan Documents until it
shall have received such instructions from those Lenders from whom such Agent is
required to obtain such instructions for the pertinent matter in accordance with
the Loan Documents. Without limiting the generality of the foregoing, such Agent
shall take any action, or refrain from taking any action, which is permitted by
the terms of the Loan Documents upon receipt of instructions from those Lenders
from whom such Agent is required to obtain such instructions for the pertinent
matter in accordance with the Loan Documents, PROVIDED, that no Lender shall
have any right of action whatsoever against the Administrative Agent, a
Documentation Agent, a Co-Agent. the Syndication Agent or any Arranger as a
result of such Agent acting or refraining from acting under the Loan Documents
in accordance with the instructions of the Requisite Lenders or, where required
by the express terms of this Agreement, a greater proportion of the Lenders.
12.4. RELIANCE. The Administrative Agent, the Documentation Agents,
the Co-Agents, the Syndication Agent and the Arrangers shall each be entitled to
rely upon any written notices, statements, certificates, orders or other
documents believed by it in good faith to be genuine and correct and to have
been signed, sent or made by the proper Person, and with respect to all matters
pertaining to this Agreement or any of the other Loan Documents and its duties
hereunder or thereunder, upon advice of legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it.
12.5. INDEMNIFICATION. To the extent that the Administrative Agent, a
Documentation Agent, a Co-Agent, the Syndication Agent or any Arranger is not
reimbursed and indemnified by the Borrower, the Lenders will reimburse and
indemnify such Agent for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, and reasonable costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against it in any way relating to or arising out of
the Loan Documents or any
-83-
action taken or omitted by such Agent under the Loan Documents, in proportion to
each Lender's Pro Rata Share. Notwithstanding anything to the contrary contained
herein, the Administrative Agent, a Documentation Agent, a Co-Agent, the
Syndication Agent or any Arranger shall not be indemnified to the extent such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs and expenses result from such Person's gross negligence, willful
misconduct or breach of this Article XII. Such Agent agrees to refund to the
Lenders any of the foregoing amounts paid to it by the Lenders which amounts are
subsequently recovered by such Agent from the Borrower or any other Person on
behalf of the Borrower. The obligations of the Lenders under this Section 12.5
shall survive the payment in full of the Loans, the Reimbursement Obligations
and all other Obligations and the termination of this Agreement.
12.6. AGENTS INDIVIDUALLY. With respect to their respective Pro Rata
Share of the Revolving Credit Commitments hereunder, if any, and the Loans made
by them, if any, the Persons serving as the Administrative Agent, the
Documentation Agents, the Co-Agents, the Syndication Agent and the Arrangers
shall have and may exercise the same rights and powers hereunder and are subject
to the same obligations and liabilities as and to the extent set forth herein
for any Lender. The terms "LENDERS" or "REQUISITE LENDERS" or any similar terms
shall, unless the context clearly otherwise indicates or such Lender has
assigned its interest hereunder, include JPMorgan, Citicorp North America, Inc.,
Xxxxx Fargo Bank, National Association, Wachovia Bank, National Association,
Deutsche Bank Trust Company Americas, Inc., KeyBank, National Association, The
Bank of New York, The Bank of Nova Scotia, ING Real Estate Finance (USA) LLC,
and PNC Bank, National Association, each in its respective individual capacity
as a Lender or as one of the Requisite Lenders. JPMorgan, X.X. Xxxxxx Securities
Inc. and each other Arranger and each of their respective Affiliates may accept
deposits from, lend money to, and generally engage in any kind of banking, trust
or other business with the Borrower or any of its Subsidiaries as if JPMorgan
and X.X. Xxxxxx Securities Inc. were not acting as an Agent or Arranger pursuant
hereto.
12.7. SUCCESSOR AGENTS.
(a) RESIGNATION. Any Agent may resign from the performance
of all its functions and duties hereunder at any time by giving at least thirty
(30) Business Days' prior written notice to the Borrower and the Lenders, unless
applicable law requires a shorter notice period or that there be no notice
period, in which instance such applicable law shall control. Such resignation
shall take effect upon the acceptance by a successor Agent of appointment
pursuant to this Section 12.7.
(b) APPOINTMENT BY REQUISITE LENDERS. Upon any such
resignation becoming effective, (i) if an Arranger shall then be acting with
respect to this Agreement, such Arranger shall become the Administrative Agent
or (ii) if no Arranger shall then be acting with respect to this Agreement, the
Requisite Lenders shall have the right to appoint a successor Administrative
Agent selected from among the Lenders with the prior written consent of the
Borrower (so long as no Event of Default then exists), which consent shall not
be unreasonably withheld.
(c) APPOINTMENT BY RETIRING AGENT. If a successor
Administrative Agent shall not have been appointed within the thirty (30)
Business Day or shorter period provided in paragraph (a) of this Section 12.7,
the retiring Agent shall then appoint a successor Agent who shall serve as
Administrative Agent until such time, if any, as the Requisite Lenders appoint a
successor Agent as provided above with the prior written consent of the Borrower
(so long as no
-84-
Event of Default then exists) which shall not be unreasonably withheld,
PROVIDED, HOWEVER, that such successor Administrative Agent shall have total
assets of not less than $10,000,000,000.
(d) RIGHTS OF THE SUCCESSOR AND RETIRING AGENTS. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Agent, such successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article XII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Agent under this Agreement.
12.8. RELATIONS AMONG THE LENDERS. Each Lender agrees that it will not
take any legal action, or institute any actions or proceedings, against the
Borrower or any other obligor hereunder with respect to any of the Obligations,
without the prior written consent of the Lenders. Without limiting the
generality of the foregoing, no Lender may accelerate or otherwise enforce its
portion of the obligations, or unilaterally terminate its Revolving Credit
Commitment except in accordance with Section 11.2(a).
12.9. STANDARD OF CARE. The Administrative Agent, the Documentation
Agents, the Co-Agents, the Syndication Agent and the Arrangers shall administer
the Loans in the same manner that such Agent administers loans made for its own
account.
ARTICLE XIII.
YIELD PROTECTION
13.1. TAXES.
(a) PAYMENT OF TAXES. Any and all payments by the Borrower
hereunder or under the Notes or other documents evidencing any Obligations of
such Person shall be made, in accordance with Section 4.2, free and clear of and
without reduction for any and all present or future taxes, levies, imposts,
deductions, charges, withholdings, and all stamp or documentary taxes, excise
taxes, ad valorem taxes and other taxes which arise from the execution, delivery
or registration, or from payment or performance under, or otherwise with respect
to, any of the Loan Documents or the Revolving Credit Commitments and all other
liabilities with respect thereto excluding, in the case of each Lender, taxes
imposed on or measured by net income or overall gross receipts and capital and
franchise taxes imposed on it by (i) the United States, (ii) the Governmental
Authority of the jurisdiction in which such Lender's Applicable Lending Office
is located or any political subdivision thereof or (iii) the Governmental
Authority in which such Person is organized, managed and controlled or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges and withholdings being hereinafter referred to as "TAXES").
Except as otherwise provided herein, if the Borrower shall be required by law to
withhold or deduct any Taxes from or in respect of any sum payable hereunder or
under any such Note or document to any Lender, (x) the sum payable to such
Lender shall be increased as may be necessary so that after making all required
withholding or deductions (including withholding or deductions applicable to
additional sums payable under this Section 13.1) such Lender receives an amount
equal to the sum it would have received had no such withholding or deductions
been made, (y) the Borrower shall make such withholding or deductions, and (z)
the Borrower shall pay the full amount withheld or deducted to the relevant
taxation authority or other authority in accordance with applicable law.
-85-
(b) INDEMNIFICATION. Except as otherwise provided herein,
the Borrower will indemnify each Lender against, and reimburse each Lender
within ten (10) Business Days after written demand for, the full amount of all
Taxes (including, without limitation, any Taxes imposed by any Governmental
Authority on amounts payable under this Section 13.1 and any additional income
or franchise taxes resulting therefrom) incurred or paid by such Lender and any
liability (including penalties, interest, and out-of-pocket expenses paid to
third parties) arising therefrom or with respect thereto, whether or not such
Taxes were lawfully payable, to the extent not paid by the Borrower pursuant to
this Section 13.1. A certificate as to any additional amount payable to any
Person under this Section 13.1 submitted by it to the Borrower shall, absent
manifest error, be final, conclusive and binding upon all parties hereto. Each
Lender agrees, within a reasonable time after receiving a written request from
the Borrower, to provide the Borrower and the Administrative Agent with such
certificates and other documents as are reasonably required, and take such other
actions as are reasonably necessary to claim such exemptions as such Lender may
be entitled to claim in respect of all or a portion of any Taxes which are
otherwise required to be paid or deducted or withheld pursuant to this Section
13.1 in respect of any payments under this Agreement or under the other Loan
Documents. If any Lender receives any refund with respect to any Taxes, such
Lender shall promptly remit such refund to the Borrower.
(c) RECEIPTS. Within thirty (30) days after the date of any
payment of Taxes by the Borrower, the Borrower will furnish to the
Administrative Agent, at its address referred to in Section 14.8, the original
or a certified copy of a receipt evidencing payment thereof.
(d) FOREIGN BANK CERTIFICATIONS. (i) Each Lender that is not
created or organized under the laws of the United States or a political
subdivision thereof shall deliver to each of the Borrower and the Administrative
Agent on the Closing Date or the date on which such Lender becomes a Lender
pursuant to Section 14.1 hereof a true and accurate certificate executed in
duplicate by a duly authorized officer of such Lender to the effect that such
Lender is eligible to receive payments hereunder and under the Notes without
deduction or withholding of United States federal income tax (I) under the
provisions of an applicable tax treaty concluded by the United States (in which
case the certificate shall be accompanied by two duly completed copies of IRS
Form W-8BEN (or any successor or substitute form or forms)) or (II) under
Sections 1441(c)(1) and 1442(a) of the Internal Revenue Code (in which case the
certificate shall be accompanied by two duly completed copies of IRS Form W-8ECI
(or any successor or substitute form or forms)).
(ii) Each Lender referred to in Section 13.1(d)(i) further
agrees to deliver to each of the Borrower and the Administrative Agent from time
to time, a true and accurate certificate executed in duplicate by a duly
authorized officer of such Lender before or promptly upon the occurrence of any
event requiring a change in the most recent certificate previously delivered by
it to the Borrower and the Administrative Agent pursuant to this Section
13.1(d). Each certificate required to be delivered pursuant to this Section
13.1(d)(ii) shall certify as to one of the following:
(A) that such Lender can continue to receive
payments hereunder and under the Notes without deduction or
withholding of United States federal income tax;
(B) that such Lender cannot continue to receive
payments hereunder and under the Notes without deduction or
withholding of United States federal
-86-
income tax as specified therein but does not require additional
payments pursuant to Section 13.1(a) because it is entitled to
recover the full amount of any such deduction or withholding
from a source other than the Borrower; or
(C) that such Lender is no longer capable of
receiving payments hereunder and under the Notes without
deduction or withholding of United States federal income tax as
specified therein and that it is not capable of recovering the
full amount of the same from a source other than the Borrower.
Each such Lender agrees to deliver to each of the Borrower and the
Administrative Agent further duly completed copies of the above-mentioned IRS
forms on or before the earlier of (x) the date that any such form expires or
becomes obsolete or otherwise is required to be resubmitted as a condition to
obtaining an exemption from withholding from United States federal income tax
and (y) fifteen (15) days after the occurrence of any event requiring a change
in the most recent form previously delivered by such Lender to the Borrower and
Administrative Agent, unless any change in treaty, law, regulation, or official
interpretation thereof which would render such form inapplicable or which would
prevent such Lender from duly completing and delivering such form has occurred
prior to the date on which any such delivery would otherwise be required and
such Lender promptly advises the Borrower that it is not capable of receiving
payments hereunder and under the Notes without any deduction or withholding of
United States federal income tax.
(iii) Notwithstanding anything to the contrary contained in
this Section 13.1, the Borrower will not be required to make any additional
payment to or for the account of any Lender under Section 13.1(a) or (b) by
reason of (x) a breach by such Lender of any certification or representation set
forth in any form furnished to the Borrower under this Section 13.1(d), or (y)
such Lender's failure or inability to furnish, if required to do so, under this
Section 13.1(d) an original or renewal of a Form W-8ECI or Form W-8BEN (or
successor form), as applicable, unless such failure or inability results from a
change (after the date such Lender became a Lender party hereto) in any
applicable law or regulation or in the interpretation thereof by any regulatory
authority (including without limitation any change in any applicable tax
treaty).
13.2. INCREASED CAPITAL. If after the date hereof any Lender
determines that (i) the adoption or implementation of or any change in or in the
interpretation or administration of any law or regulation or any guideline or
request from any central bank or other Governmental Authority or
quasi-governmental authority exercising jurisdiction, power or control over any
Lender or banks or financial institutions generally (whether or not having the
force of law), compliance with which affects the amount of capital required or
expected to be maintained by such Lender or any corporation controlling such
Lender and (ii) the amount of such capital is increased by or based upon (A) the
making or maintenance by any Lender of its Loans, any Lender's participation in
or obligation to participate in the Loans, Letters of Credit or other advances
made hereunder or the existence of any Lender's obligation to make Loans or (B)
the issuance or maintenance by any Lender of, or the existence of any Lender's
obligation to issue, Letters of Credit, then, in any such case, within ten (10)
Business Days after written demand by such Lender (with a copy of such demand to
the Administrative Agent), the Borrower shall immediately pay to the
Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender or such corporation therefor. Such demand shall be accompanied by a
statement as to the amount of such compensation and include a brief summary of
the basis for such demand. Such statement shall be conclusive and binding for
all purposes, absent manifest error.
-87-
13.3. CHANGES; LEGAL RESTRICTIONS. If after the date hereof any Lender
determines that the adoption or implementation of or any change in or in the
interpretation or administration of any law or regulation or any guideline or
request from any central bank or other Governmental Authority or
quasi-governmental authority exercising jurisdiction, power or control over any
Lender, or over banks or financial institutions generally (whether or not having
the force of law), compliance with which:
(a) subjects a Lender (or its Applicable Lending Office or
Eurodollar Affiliate) to charges (other than taxes) of any kind which such
Lender reasonably determines to be applicable to the Revolving Credit
Commitments of the Lenders to make Eurodollar Rate Loans or issue and/or
participate in Letters of Credit or change the basis of taxation of payments to
that Lender of principal, fees, interest, or any other amount payable hereunder
with respect to Eurodollar Rate Loans, Competitive Bid Loans or Letters of
Credit (other than taxes covered by Section 13.1(a) hereof and taxes excluded in
Section 13.1(a) hereof); or
(b) imposes, modifies, or holds applicable, in the
determination of a Lender, any reserve, special deposit, compulsory loan, FDIC
insurance or similar requirement against assets held by, or deposits or other
liabilities (including those pertaining to Letters of Credit) in or for the
account of, advances or loans by, commitments made, or other credit extended by,
or any other acquisition of funds by, a Lender or any Applicable Lending Office
or Eurodollar Affiliate of that Lender in respect of Eurodollar Loans or Letters
of Credit;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining the Loans or its Revolving Credit Commitment or
issuing or participating in the Letters of Credit or to reduce any amount
receivable thereunder; then, in any such case, within ten (10) Business Days
after written demand by such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall immediately pay to the Administrative
Agent for the account of such Lender, from time to time as specified by such
Lender, such amount or amounts as may be necessary to compensate such Lender or
its Eurodollar Affiliate for any such additional cost incurred or reduced amount
received. Such demand shall be accompanied by a statement as to the amount of
such compensation and include a brief summary of the basis for such demand. Such
statement shall be conclusive and binding for all purposes, absent manifest
error.
13.4. REPLACEMENT OF CERTAIN LENDERS. In the event a Lender (a
"DESIGNATED LENDER") shall have (i) requested additional compensation from the
Borrower under Section 13.1 or under Section 13.2 or under Section 13.3, (ii)
failed to make its Pro Rata Share of any Loan requested to be made hereby or
(iii) failed to make any Loan at the Eurodollar Rate, the Borrower may, at its
sole election, make written demand on such Designated Lender (with a copy to the
Administrative Agent) for the Designated Lender to assign, and such Designated
Lender shall assign pursuant to one or more duly executed Assignment and
Acceptances to one or more Eligible Assignees which the Borrower or the
Administrative Agent shall have identified for such purpose, all of such
Designated Lender's right and obligations under this Agreement, the Notes and
the other Loan Documents (including, without limitation, its Revolving Credit
Commitment, all Loans owing to it, and all of its participation interests in
Letters of Credit and all other Obligations owing to it) in accordance with
Section 14.1. All out-of-pocket expenses incurred by the Administrative Agent in
connection with the foregoing shall be for the sole account of the Borrower and
shall constitute Obligations hereunder. In no event shall Borrower's election
under the provisions of this Section 13.4 affect its obligation to pay the
additional compensation required under either Section 13.1, Section 13.2 or
Section 13.3.
-88-
13.5. MITIGATION. Each Lender shall notify the Borrower of any event
occurring after the date of this Agreement entitling such Lender to compensation
under Sections 13.1, 13.2 or 13.3 as promptly as practicable, but in any event,
within 45 days, after such Lender obtains actual knowledge thereof; provided
that (i) if any Lender fails to give such notice within 45 days after it obtains
actual knowledge of such an event, such Lender shall, with respect to
compensation payable pursuant to Sections 13.1, 13.2 or 13.3 in respect of any
costs resulting from such event, only be entitled to payment under Sections
13.1, 13.2 or 13.3 for costs incurred from and after the date 45 days prior to
the date that such Lender does give such notice and (ii) each Lender will
designate a different Applicable Lending Office for the Loans of such Lender
affected by such event if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the reasonable judgment of
such Lender, be disadvantageous to such Lender.
ARTICLE XIV.
MISCELLANEOUS
14.1. ASSIGNMENTS AND PARTICIPATIONS.
(a) ASSIGNMENTS. No assignments or participations of any
Lender's rights or obligations under this Agreement shall be made except in
accordance with this Section 14.1. Each Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this
Agreement (including all of its rights and obligations with respect to the Loans
and the Letters of Credit) in accordance with the provisions of this Section
14.1.
(b) LIMITATIONS ON ASSIGNMENTS. Each assignment shall be
subject to the following conditions: (i) each assignment shall be of a constant,
and not a varying, ratable percentage of all of the assigning Lender's rights
and obligations under this Agreement and, in the case of a partial assignment to
an assignee which is not a Lender or a Lender Affiliate, shall be in a minimum
principal amount of $5,000,000 (and the assignor shall maintain a minimum amount
of $5,000,000 for its own account unless the assignor shall assign or
participate its entire interest), (ii) each such assignment shall be to an
Eligible Assignee, (iii) (A) so long as no Event of Default has occurred and is
continuing, each assignment shall be subject to the approval of the Issuing Bank
and the Administrative Agent (which approval shall not be unreasonably
withheld); provided that, no such consent of the Administrative Agent or the
Issuing Bank shall be required for an assignment by any Lender to any of its
Lender Affiliates, so long as such Lender Affiliate is an Eligible Assignee, and
(B) so long as no Event of Default has occurred and is continuing, each
assignment to an assignee which is not a Lender or a Lender Affiliate shall be
subject to the approval of the Borrower (which approval shall not be
unreasonably withheld and shall be deemed to have been given if the Borrower
fails to object to such proposed assignment within five (5) Business Days of its
receipt of a request for approval), and (iv) the parties to each such assignment
shall execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance. Upon such execution,
delivery, acceptance and recording in the Register, from and after the effective
date specified in each Assignment and Acceptance and agreed to by the
Administrative Agent, (A) the assignee thereunder shall, in addition to any
rights and obligations hereunder held by it immediately prior to such effective
date, if any, have the rights and obligations hereunder that have been assigned
to it pursuant to such Assignment and Acceptance and shall, to the fullest
extent permitted by law, have the same rights and benefits hereunder as if it
were an original Lender hereunder, (B) the assigning Lender shall, to the extent
that rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights (except as otherwise provided
in Section 14.9) and be released from its obligations under this Agreement (and,
in the
-89-
case of an Assignment and Acceptance covering all or the remaining portion of
such assigning Lender's rights and obligations under this Agreement, the
assigning Lender shall cease to be a party hereto, except as otherwise provided
in Section 14.9) and (C) the Borrower shall execute and deliver to the assignee
thereunder a Note evidencing its obligations to such assignee with respect to
the Loans.
(c) THE REGISTER. The Administrative Agent shall maintain at
its address referred to in Section 14.8 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register (the "REGISTER") for the
recordation of the names and addresses of the Lenders, the Revolving Credit
Commitment of, and the principal amount of the Loans under the Revolving Credit
Commitments owing to, each Lender from time to time and whether such Lender is
an original Lender or the assignee of another Lender pursuant to an Assignment
and Acceptance. The entries in the Register shall be conclusive and binding for
all purposes, absent manifest error, and the Borrower, the Administrative Agent
and the other Lenders and each other party to a Loan Document may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(d) FEE. Upon its receipt of an Assignment and Acceptance
executed by the assigning Lender and an Assignee and a processing and
recordation fee of $3,500 (payable by the assignee to the Administrative Agent),
the Administrative Agent shall, if such Assignment and Acceptance has been
completed and is in compliance with this Agreement and in substantially the form
of EXHIBIT A hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower.
(e) PARTICIPATIONS. Each Lender may sell participations to
one or more other financial institutions or other Persons in or to all or a
portion of its rights and obligations under and in respect of any and all
facilities under this Agreement (including, without limitation, all or a portion
of its Revolving Credit Commitment hereunder and the Committed Loans owing to it
and its undivided interest in the Letters of Credit); PROVIDED, HOWEVER, that
(i) such Lender's obligations under this Agreement (including, without
limitation, its Revolving Credit Commitment hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) the Borrower, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, (iv) each participation (other than a participation to an Affiliate)
shall be in a minimum amount of $5,000,000, and (v) such participant's rights to
agree or to restrict such Lender's ability to agree to the modification, waiver
or release of any of the terms of the Loan Documents, to consent to any action
or failure to act by any party to any of the Loan Documents or any of their
respective Affiliates, or to exercise or refrain from exercising any powers or
rights which any Lender may have under or in respect of the Loan Documents,
shall be limited to the right to consent to any (A) increase in the Revolving
Credit Commitment of the Lender from whom such participant purchased a
participation, (B) reduction of the principal of, or rate or amount of interest
on the Loans subject to such participation (other than by the payment or
prepayment thereof), (C) postponement of any date fixed for any payment of
principal of, or interest on, the Loans) subject to such participation and (D)
release of any guarantor of the Obligations. Participations by a Person in a
Competitive Bid Loan of any Lender shall not be deemed "participations" for
purposes of this Section 14.1(e) and shall not be subject to the restrictions on
"participations" contained herein.
-90-
(f) DESIGNATED BANK. Any Lender (each, a "DESIGNATING
LENDER") may at any time designate one Designated Bank to fund Competitive Bid
Loans on behalf of such Designating Lender subject to the terms of this Section
14.1(f) and the provisions in Section 14.1(b) and (e) shall not apply to such
designation. No Lender may designate more than one (1) Designated Bank. The
parties to each such designation shall execute and deliver to the Administrative
Agent for its acceptance a Designation Agreement. Upon such receipt of an
appropriately completed Designation Agreement executed by a Designating Lender
and a designee representing that it is a Designated Bank, the Administrative
Agent will accept such Designation Agreement and will give prompt notice thereof
to the Borrower, whereupon, (i) the Borrower shall execute and deliver to the
Designating Bank a Designated Bank Note payable to the order of the Designated
Bank, (ii) from and after the effective date specified in the Designation
Agreement, the Designated Bank shall become a party to this Agreement with a
right to make Competitive Bid Loans on behalf of its Designating Lender pursuant
to Section 2.2 after the Borrower has accepted a Competitive Bid Loan (or
portion thereof) of the Designating Lender, and (iii) the Designated Bank shall
not be required to make payments with respect to any obligations in this
Agreement except to the extent of excess cash flow of such Designated Bank which
is not otherwise required to repay obligations of such Designated Bank which are
then due and payable; PROVIDED, HOWEVER, that regardless of such designation and
assumption by the Designated Bank, the Designating Lender shall be and remain
obligated to the Borrower, the Administrative Agent, the Syndication Agent, the
Documentation Agents, the Co-Agents, and the other Lenders for each and every of
the obligations of the Designating Lender and its related Designated Bank with
respect to this Agreement, including, without limitation, any indemnification
obligations under Section 12.5 hereof and any sums otherwise payable to the
Borrower by the Designated Bank. Each Designating Lender shall serve as the
administrative agent of the Designated Bank and shall on behalf of, and to the
exclusion of, the Designated Bank: (i) receive any and all payments made for the
benefit of the Designated Bank and (ii) give and receive all communications and
notices and take all actions hereunder, including, without limitation, votes,
approvals, waivers, consents and amendments under or relating to this Agreement
and the other Loan Documents. Any such notice, communication, vote, approval,
waiver, consent or amendment shall be signed by the Designating Lender as
administrative agent for the Designated Bank and shall not be signed by the
Designated Bank on its own behalf but shall be binding on the Designated Bank to
the same extent as if actually signed by the Designated Bank. The Borrower, the
Administrative Agent, the Documentation Agents, the Co-Agents, the Syndication
Agent and Lenders may rely thereon without any requirement that the Designated
Bank sign or acknowledge the same. No Designated Bank may assign or transfer all
or any portion of its interest hereunder or under any other Loan Document, other
than assignments to the Designating Lender which originally designated such
Designated Bank.
(g) INFORMATION REGARDING THE BORROWER. Any Lender may,
subject to the provisions of Section 14.22, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
14.1, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower or its Subsidiaries
furnished to such Lender by the Administrative Agent or by or on behalf of the
Borrower.
(h) PAYMENT TO PARTICIPANTS. Anything in this Agreement to
the contrary notwithstanding, in the case of any participation, all amounts
payable by the Borrower under the Loan Documents shall be calculated and made in
the manner and to the parties required hereby as if no such participation had
been sold.
-91-
(i) LENDERS' CREATION OF SECURITY INTERESTS. Notwithstanding
any other provision set forth in this Agreement, any Lender may at any time
create a security interest in all or any portion of its rights under this
Agreement (including, without limitation, Obligations owing to it and any Note
held by it) in favor of any Person.
14.2. EXPENSES.
(a) GENERALLY. The Borrower agrees promptly upon demand to
pay, or reimburse the Administrative Agent for the reasonable fees, expenses and
disbursements of counsel to the Administrative Agent (but not of other legal
counsel) and for all other reasonable out-of-pocket costs and expenses incurred
by the Administrative Agent, the Syndication Agent or the Arrangers in
connection with (i) the preparation, negotiation, and execution of the Loan
Documents; (ii) the preparation, negotiation, execution, syndication and
interpretation of this Agreement (including, without limitation, the
satisfaction or attempted satisfaction of any of the conditions set forth in
Article VI), the Loan Documents, and the making of the Loans and other
extensions of credit hereunder; (iii) any amendments, consents, waivers,
assignments, restatements, or supplements to any of the Loan Documents and the
preparation, negotiation, and execution of the same; and (iv) any other
amendments, modifications, agreements, assignments, restatements or supplements
to any of the Loan Documents requested by Borrower and the preparation,
negotiation, and execution of the same.
(b) AFTER DEFAULT. The Borrower further agrees to pay or
reimburse the Administrative Agent, the Arrangers and each of the Lenders upon
demand for all reasonable out-of-pocket costs and expenses, including, without
limitation, reasonable attorneys' fees (including allocated costs of internal
counsel and costs of settlement) incurred by the such entity after the
occurrence and during the continuance of an Event of Default (i) in enforcing
any Loan Document or Obligation, the collection of any Obligation or exercising
or enforcing any other right or remedy available by reason of such Event of
Default; or (ii) in connection with any refinancing or restructuring of the
credit arrangements provided under this Agreement in the nature of a "work-out"
or in any insolvency or bankruptcy proceeding; (iii) in commencing, defending or
intervening in any litigation or in filing a petition, complaint, answer, motion
or other pleadings in any legal proceeding relating to the Obligations, a
Project, or any of the Consolidated Businesses and related to or arising out of
the transactions contemplated hereby or by any of the other Loan Documents; and
(iv) in taking any other action in or with respect to any suit or proceeding
(bankruptcy or otherwise) described in clauses (i) through (iii) above.
14.3. INDEMNITY. The Borrower further agrees (a) to defend, protect,
indemnify, and hold harmless the Administrative Agent, the Arrangers and each
and all of the Lenders 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, reasonable
costs, reasonable expenses and reasonable disbursements (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, the making of the Loans and the issuance of and participation in
Letters of Credit hereunder, the use or intended use of the proceeds of the
Loans or Letters of Credit hereunder, or any of the other transactions
contemplated by the Loan Documents, or (ii) any Liabilities and Costs relating
to violation of any Environmental, Health or Safety Requirements of Law, the
past, present or future
-92-
operations of the Borrower, any of its Subsidiaries or any of their respective
predecessors in interest, or, the past, present or future environmental, health
or safety condition of any respective Property of the Borrower or any of its
Subsidiaries, the presence of asbestos-containing materials at any respective
Property of the Borrower or any of its Subsidiaries, or the Release or
threatened Release of any Contaminant into the environment (collectively, the
"INDEMNIFIED MATTERS"); PROVIDED, HOWEVER, the Borrower shall have no obligation
to an Indemnitee hereunder with respect to Indemnified Matters caused by or
resulting from the willful misconduct or gross negligence of such Indemnitee, as
determined by a court of competent jurisdiction in a non-appealable final
judgment; and PROVIDED FURTHER that payment of the costs of preparation of the
Loan Documents shall be governed by Section 14.2(a) hereof; and (b) not to
assert any claim against any of the Indemnitees, on any theory of liability, for
consequential or punitive damages arising out of, or in any way in connection
with, the Revolving Credit Commitments, 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 the preceding
sentence may be unenforceable because it is violative of any law or public
policy, the 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.
14.4. CHANGE IN ACCOUNTING PRINCIPLES. If any change in the accounting
principles used in the preparation of the most recent financial statements
referred to in Sections 8.1 or 8.2 are hereafter required or permitted by the
rules, regulations, pronouncements and opinions of the Financial Accounting
Standards Board or the American Institute of Certified Public Accountants (or
successors thereto or agencies with similar functions) and are adopted by the
Company or the Borrower as applicable, with the agreement of its independent
certified public accountants and such changes result in a change in the method
of calculation of any of the covenants, standards or terms found in Article X,
the parties hereto agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating compliance with such covenants, standards and terms
by the Borrower shall be the same after such changes as if such changes had not
been made; PROVIDED, HOWEVER, no change in GAAP that would affect the method of
calculation of any of the covenants, standards or terms shall be given effect in
such calculations until such provisions are amended, in a manner satisfactory to
the Administrative Agent and the Borrower, to so reflect such change in
accounting principles.
14.5. INTENTIONALLY OMITTED.
14.6. RATABLE SHARING. The Lenders agree among themselves that (i)
with respect to all amounts received by them which are applicable to the payment
of the Obligations (excluding the repayment of Competitive Bid Loans to a
particular Competitive Bid Lender and the costs, fees and other payments
described in Sections 3.1(g), 5.2(f), and 5.3, Article XIII and Section 14.1)
equitable adjustment will be made so that, in effect, all such amounts will be
shared among them ratably in accordance with their Pro Rata Shares, whether
received by voluntary payment, by the exercise of the right of setoff or
banker's lien, by counterclaim or cross-action or by the enforcement of any or
all of the Obligations (excluding the repayment of Competitive Bid Loans to a
particular Competitive Bid Lender and the costs, fees and other payments
described in Sections 3.1(g), 5.2(f), and 5.3, Article XIII and Section 14.1),
(ii) if any of them shall by voluntary payment or by the exercise of any right
of counterclaim, setoff, banker's lien or otherwise, receive payment of a
proportion of the aggregate amount of the Obligations held by it, which is
greater than the amount which such Lender is entitled to receive hereunder, the
Lender receiving such excess payment shall purchase, without recourse or
warranty, an undivided interest
-93-
and participation (which it shall be deemed to have done simultaneously upon the
receipt of such payment) in such Obligations owed to the others so that all such
recoveries with respect to such obligations shall be applied ratably in
accordance with their Pro Rata Shares; PROVIDED, HOWEVER, that if all or part of
such excess payment received by the purchasing party is thereafter recovered
from it, those purchases shall be rescinded and the purchase prices paid for
such participations shall be returned to such party to the extent necessary to
adjust for such recovery, but without interest except to the extent the
purchasing party is required to pay interest in connection with such recovery.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 14.6 may, to the fullest extent permitted by
law, exercise all its rights of payment with respect to such participation as
fully as if such Lender were the direct creditor of the Borrower in the amount
of such participation.
14.7. AMENDMENTS AND WAIVERS.
(a) GENERAL PROVISIONS. Unless otherwise provided for or
required in this Agreement, no amendment or modification of any provision of
this Agreement or any of the other Loan Documents shall be effective without the
written agreement of the Requisite Lenders (which the Requisite Lenders shall
have the right to grant or withhold in their sole discretion) and the Borrower;
PROVIDED, HOWEVER, that the Borrower's agreement shall not be required for any
amendment or modification of Sections 12.1 through 12.8 (other than Section
12.7). In the event that the Administrative Agent shall request the agreement of
the Lenders to any amendment, modification or waiver, if any Lender shall fail
to respond to any such request within fifteen (15) days after receipt of such
request, such Lender's approval thereto shall be deemed to have been given;
PROVIDED, HOWEVER, that such request shall state, in capital letters that
"FAILURE TO RESPOND TO THIS REQUEST WITHIN FIFTEEN (15) DAYS AFTER RECEIPT,
SHALL BE DEEMED CONSENT TO THE ENCLOSED REQUEST". No termination or waiver of
any provision of this Agreement or any of the other Loan Documents, or consent
to any departure by the Borrower therefrom, shall be effective without the
written or deemed concurrence of the Requisite Lenders, which the Requisite
Lenders shall have the right to grant or withhold in their sole discretion. All
amendments, waivers and consents not specifically reserved to the Administrative
Agent, the Arrangers or the Lenders in Section 14.7(b), 14.7(c), and in other
provisions of this Agreement shall require only the approval of the Requisite
Lenders. Any waiver or consent shall be effective only in the specific instance
and for the specific purpose for which it was given. No notice to or demand on
the Borrower in any case shall entitle the Borrower to any other or further
notice or demand in similar or other circumstances. Notwithstanding the
foregoing, no amendment, waiver or consent shall, unless in writing and signed
by the Designating Lender on behalf of its Designated Bank affected thereby, (a)
subject such Designated Bank to any additional obligations, (b) reduce the
principal of, interest on, or other amounts due with respect to, the Designated
Bank Note made payable to such Designated Bank, or (c) postpone any date fixed
for any payment of principal of, or interest on, or other amounts due with
respect to the Designated Bank Note made payable to the Designated Bank.
(b) AMENDMENTS, CONSENTS AND WAIVERS BY AFFECTED LENDERS.
Any amendment, modification, termination, waiver or consent with respect to any
of the following provisions of this Agreement shall be effective only by a
written agreement, signed by each Lender affected thereby as described below:
(i) waiver of any of the conditions specified in Sections 6.1 and
6.2 (except with respect to a condition based upon another provision of
this Agreement, the waiver of which requires only the concurrence of the
Requisite Lenders),
-94-
(ii) change the amount of such Lender's Revolving Credit Commitment
(other than pursuant to an assignment permitted under Section 14.1 or a
reduction of the Revolving Credit Commitments by the Borrower under
Section 4.1(b)),
(iii) reduction of the principal of, or the rate or amount of interest
on, the Loans or the Reimbursement Obligations, or any fees or other
amounts payable to such Lender (other than by the payment or prepayment
thereof), and
(iv) postponement or extension of any date (other than the Revolving
Credit Termination Date postponement or extension of which is governed
by Section 14.7(c)(i)) fixed for any payment of principal of, or
interest on, the Loans or the Reimbursement Obligations or any fees or
other amounts payable to such Lender (except with respect to any
modifications of the application provisions relating to prepayments of
Loans and other Obligations which are governed by Section 4.2(b)).
(c) AMENDMENTS, CONSENTS AND WAIVERS BY ALL LENDERS. Any
amendment, modification, termination, waiver or consent with respect to any of
the following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender:
(i) postponement of the Revolving Credit Termination Date (except
for the one-year extension thereof as provided in the second sentence of
the definition thereof), or increase in the Maximum Revolving Credit
Amount to any amount in excess of $500,000,000, except for the increases
thereof to an amount not to exceed $750,000,000 as provided in Section
2.1(b);
(ii) change in the definition of Requisite Lenders or in the
aggregate Pro Rata Share of the Lenders which shall be required for the
Lenders or any of them to take action hereunder or under the other Loan
Documents,
(iii) amendment of Section 14.6 or this Section 14.7,
(iv) assignment of any right or interest in or under this Agreement
or any of the other Loan Documents by the Borrower,
(v) waiver of any Event of Default under Section 11.1(a), Section
11.1(f) or Section 11.1(g), and
(vi) amendment or release of the Guaranties, except in connection
with the permitted sale of an Unencumbered Project or Unencumbered New
York City Asset by a Guarantor.
(d) ADMINISTRATIVE AGENT AUTHORITY. Subject to the second
succeeding sentence of this subsection (d), the Administrative Agent may, but
shall have no obligation to, with the written concurrence of any Lender, execute
amendments, modifications, waivers or consents on behalf of that Lender.
Notwithstanding anything to the contrary contained in this Section 14.7, no
amendment, modification, waiver or consent shall affect the rights or duties of
the Administrative Agent under this Agreement and the other Loan Documents,
unless made in writing and signed by the Administrative Agent in addition to the
Lenders required above to take such action. Notwithstanding anything herein to
the contrary, in the event that the Borrower shall
-95-
have requested, in writing, that any Lender agree to an amendment, modification,
waiver or consent with respect to any particular provision or provisions of this
Agreement or the other Loan Documents, and such Lender shall have failed to
state, in writing, that it either agrees or disagrees (in full or in part) with
all such requests (in the case of its statement of agreement, subject to
satisfactory documentation and such other conditions it may specify) within
fifteen (15) days after such request, then such Lender hereby irrevocably
authorizes the Administrative Agent to agree or disagree, in full or in part,
and in the Administrative Agent's sole discretion, to such requests on behalf of
such Lender as such Lender's attorney-in-fact and to execute and deliver any
writing approved by the Administrative Agent which evidences such agreement as
such Lender's duly authorized agent for such purposes; PROVIDED, HOWEVER, that
such request shall state, in capital letters that "FAILURE TO RESPOND TO THIS
REQUEST WITHIN FIFTEEN (15) DAYS AFTER RECEIPT, SHALL BE DEEMED AUTHORIZATION TO
THE ADMINISTRATIVE AGENT WITH RESPECT TO THE ENCLOSED REQUEST".
14.8. NOTICES. Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted to be given shall be
in writing and may be personally served, sent by facsimile transmission or by
courier service or United States certified mail and shall be deemed to have been
given when delivered in person or by courier service, upon receipt of a
facsimile transmission, or four (4) Business Days after deposit in the United
States mail with postage prepaid and properly addressed. Notices to the
Administrative Agent pursuant to Articles II, IV or XII shall not be effective
until received by the Administrative Agent. For the purposes hereof, the
addresses of the parties hereto (until notice of a change thereof is delivered
as provided in this Section 14.8) shall be (i) for the Borrower, as set forth on
its signature page to this Agreement, and (ii) for the Lenders, as set forth on
SCHEDULE LC hereto or on the applicable Assignment and Acceptance by which such
party became a Lender hereunder, or, as to each party, at such other address as
may be designated by such party in a written notice to all of the other parties
to this Agreement.
14.9. SURVIVAL OF WARRANTIES AND AGREEMENTS. All representations and
warranties made herein and all obligations of the Borrower in respect of taxes,
indemnification and expense reimbursement shall survive the execution and
delivery of this Agreement and the other Loan Documents, the making and
repayment of the Loans, the issuance and discharge of Letters of Credit
hereunder and, in the case of any Lender that may assign any interest in its
Revolving Credit Commitment, Loans or participation interests in Letters of
Credit hereunder, shall survive the making of such assignment, notwithstanding
that such assigning Lender may cease to be a "Lender" hereunder, and, except for
the representations and warranties, the termination of this Agreement other than
any of the foregoing set forth in Section 13.1 or Section 13.2 or Section 13.3
or Section 5.2(f), which shall survive for thirty (30) days after termination of
this Agreement.
14.10. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No
failure or delay on the part of the Administrative Agent or any Lender in the
exercise of any power, right or privilege under any of the Loan Documents shall
impair such power, right or privilege or be construed to be a waiver of any
default or acquiescence therein, nor shall any single or partial exercise of any
such power, right or privilege preclude any other or further exercise thereof or
of any other right, power or privilege. All rights and remedies existing under
the Loan Documents are cumulative to and not exclusive of any rights or remedies
otherwise available.
14.11. PAYMENTS SET ASIDE. To the extent that the Borrower makes a
payment or payments to the Administrative Agent, any Arranger or any Lender or
any such Person exercises
-96-
its rights of setoff, and such payment or payments or the proceeds of such
enforcement or setoff or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside or required to be repaid to a
trustee, receiver or any other party, then to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all right
and remedies therefor, shall be revived and continued in full force and effect
as if such payment had not been made or such enforcement or setoff had not
occurred.
14.12. SEVERABILITY. In case any provision in or obligation under this
Agreement or the other Loan Documents shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
14.13. HEADINGS. Section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement or be given any substantive effect.
14.14. GOVERNING LAW. THIS AGREEMENT SHALL BE INTERPRETED, AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAWS
PRINCIPLES.
14.15. LIMITATION OF LIABILITY. No claim may be made by any Lender, any
Arranger, the Administrative Agent, or any other Person against any Lender
(acting in any capacity hereunder) or the Affiliates, directors, officers,
employees, attorneys or agents of any of them for any consequential or punitive
damages in respect of any claim for breach of contract or any other theory of
liability arising out of or related to the transactions contemplated by this
Agreement, or any act, omission or event occurring in connection therewith; and
each Lender, the Arrangers and the Administrative Agent hereby waives, releases
and agrees not to xxx upon any such claim for any such damages, whether or not
accrued and whether or not known or suspected to exist in its favor.
14.16. SUCCESSORS AND ASSIGNS. This Agreement and the other Loan
Documents shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of the parties hereto and
the successors and permitted assigns of the Lenders. Except as otherwise
provided in Section 10.6, the rights and obligations hereunder of the Borrower,
or any interest therein, may not be assigned without the written consent of all
Lenders (and any such attempted assignment without such consent shall be null
and void).
14.17. CERTAIN CONSENTS AND WAIVERS OF THE BORROWER.
(a) Personal Jurisdiction. (i) EACH OF THE AGENTS, THE
LENDERS, AND THE BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF
AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT
OR FEDERAL COURT SITTING IN NEW YORK, NEW YORK, AND ANY COURT HAVING
JURISDICTION OVER APPEALS OF MATTERS HEARD IN SUCH COURTS, IN ANY ACTION OR
PROCEEDING ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT, WHETHER
ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
-97-
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT OR, TO THE
EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE AGENTS, THE LENDERS
AND THE BORROWER AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. EACH OF THE AGENTS, THE
LENDERS, AND THE BORROWER WAIVES IN ALL DISPUTES ANY OBJECTION THAT IT MAY HAVE
TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(ii) THE BORROWER AGREES THAT THE ADMINISTRATIVE AGENT SHALL
HAVE THE RIGHT TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A COURT IN ANY
LOCATION NECESSARY OR APPROPRIATE TO ENABLE THE ADMINISTRATIVE AGENT AND THE
LENDERS TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE
ADMINISTRATIVE AGENT OR ANY LENDER. THE BORROWER WAIVES ANY OBJECTION THAT IT
MAY HAVE TO THE LOCATION OF THE COURT IN WHICH THE ADMINISTRATIVE AGENT OR ANY
LENDER MAY COMMENCE A PROCEEDING DESCRIBED IN THIS SECTION.
(b) SERVICE OF PROCESS. THE BORROWER IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE BORROWER'S PROCESS AGENT OR THE BORROWER'S NOTICE
ADDRESS SPECIFIED IN SECTION 14.8 HEREOF, SUCH SERVICE TO BECOME EFFECTIVE UPON
RECEIPT. THE BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN SHALL AFFECT THE
RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT OF THE ADMINISTRATIVE AGENT OR THE LENDERS TO BRING PROCEEDINGS AGAINST
THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
(c) WAIVER OF JURY TRIAL. EACH OF THE AGENTS AND THE LENDERS
AND THE BORROWER IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
14.18. COUNTERPARTS; EFFECTIVENESS; INCONSISTENCIES. This Agreement and
any amendments, waivers, consents, or supplements hereto may be executed in
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. This Agreement shall become effective against the Borrower and
each Agent and Lender on the Closing Date. This Agreement and each of the other
Loan Documents shall be construed to the extent reasonable to be consistent one
with the other, but to the extent that the terms and conditions of this
Agreement are actually
-98-
inconsistent with the terms and conditions of any other Loan Document, this
Agreement shall govern.
14.19. LIMITATION ON AGREEMENTS. All agreements between the Borrower,
the Administrative Agent, the Arrangers and each Lender in the Loan Documents
are hereby expressly limited so that in no event shall any of the Loans or other
amounts payable by the Borrower under any of the Loan Documents be directly or
indirectly secured (within the meaning of Regulation U) by Margin Stock.
14.20. DISCLAIMERS. The Administrative Agent, the Arrangers and the
Lenders shall not be liable to any contractor, subcontractor, supplier, laborer,
architect, engineer, tenant or other party for services performed or materials
supplied in connection with any work performed on the Projects, including any TI
Work. The Administrative Agent, the Arrangers and the Lenders shall not be
liable for any debts or claims accruing in favor of any such parties against the
Borrower or others or against any of the Projects. The Borrower is not and shall
not be an agent of any Agent, the Arrangers or the Lenders for any purposes and
none of the Lenders, the Arrangers, or the Agents shall be deemed partners or
joint venturers with Borrower. None of the Administrative Agent, the Arrangers
or the Lenders shall be deemed to be in privity of contract with any contractor
or provider of services to any Project, nor shall any payment of funds directly
to a contractor or subcontractor or provider of services be deemed to create any
third party beneficiary status or recognition of same by any of the
Administrative Agent, the Arrangers or the Lenders and the Borrower agrees to
hold the Administrative Agent, the Arrangers and the Lenders harmless from any
of the damages and expenses resulting from such a construction of the
relationship of the parties or any assertion thereof.
14.21. ENTIRE AGREEMENT. This Agreement, taken together with all of the
other Loan Documents, embodies the entire agreement and understanding among the
parties hereto and supersedes all prior agreements and understandings, written
and oral, relating to the subject matter hereof.
14.22. CONFIDENTIALITY. Each of the Agents, the Arrangers and the
Lenders agrees to keep confidential all non-public information provided to it by
the Borrower pursuant to this Agreement that is designated by the Borrower as
confidential; PROVIDED that nothing herein shall prevent the Agents or the
Lenders from disclosing any such information (a) to the Agents, any other Lender
or any Lender Affiliate (PROVIDED such Lender Affiliate is made aware of the
confidentiality of such information and agrees to keep such information
confidential), (b) to any Assignee, Participant or prospective Assignee or
Participant or any actual or prospective counterparty (or its advisors) to any
swap or derivative transactions relating to the Borrower and its Obligations
(PROVIDED such Person is made aware of the confidentiality of such information
and agrees to keep such information confidential), (c) to the employees,
directors, agents, attorneys, accountants and other professional advisors of any
Lender, Assignee, Participant, prospective Assignee or Participant who are
advised of the provisions of this Section, (d) upon the request or demand of any
Governmental Authority having or asserting jurisdiction over either Agent or any
Lender, (e) in response to any order of any court or other Governmental
Authority or as may otherwise be required pursuant to any Requirement of Law,
(f) if requested or required to do so in connection with the exercise of any
remedy hereunder or under any other Loan Document, (g) upon the advice of
counsel that such disclosure is required by law, (h) with the consent of the
Borrower, (i) in connection with any litigation to which any Agent, Arranger or
Lender is a party, or (j) to the extent such information becomes publicly
available other than as a
-99-
result of a breach of this Section 14.22 or becomes available to any Agent,
Arranger or Lender on a nonconfidential basis from a source other than the
Borrower.
14.23. NO BANKRUPTCY PROCEEDINGS. Each of the Borrower the
Administrative Agent, the Documentation Agents, the Co-Agents, the Syndication
Agent and the Lenders hereby agrees that it will not institute against any
Designated Bank or join any other Person in instituting against any Designated
Bank any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding under any federal or state bankruptcy or similar law, until the later
to occur of (i) one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Designated Bank and (ii) the
Revolving Credit Termination Date.
14.24. USA PATRIOT ACT. Each of the Lenders hereby notifies Borrower
that pursuant to the requirements of the USA Patriot Act (Title III of
Pub.L.107-56 (signed into law October 26, 2001)) (the "ACT"), it is required to
obtain, verify and record information that identifies Borrower, which
information includes the name and address of Borrower and other information that
will allow such Bank to identify Borrower in accordance with the Act. Neither
the execution and delivery of the Notes and the other Loan Documents by the
Borrower nor the use of the proceeds of the Loans, will violate the Trading with
the Enemy Act, as amended, or any of the foreign assets control regulations of
the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended) or the Anti-Terrorism Order or any enabling legislation or executive
order relating to any of the same. Without limiting the generality of the
foregoing, none of the Borrower, the Company, nor any of their respective
Subsidiaries (a) is or will become a blocked person described in Section 1 of
the Anti-Terrorism Order or (b) engages or will engage in any dealings or
transactions or be otherwise associated with any such blocked person in any
manner which violates applicable law or regulation.
14.25. TRANSITIONAL ARRANGEMENTS.
(a) 2002 CREDIT AGREEMENT SUPERSEDED. This Agreement shall
supersede the 2002 Credit Agreement in its entirety, except as provided in this
Section 14.25. On the Closing Date, the rights and obligations of the parties
under the 2002 Credit Agreement and the "Notes" defined therein shall be
subsumed within and be governed by this Agreement and the Notes; PROVIDED
HOWEVER, that any of the "Revolving Credit Obligations" (as defined in the 2002
Credit Agreement) outstanding under the 2002 Credit Agreement shall, for
purposes of this Agreement, be Revolving Credit Obligations hereunder. The
Lenders' interests in such Revolving Credit Obligations, and participations in
such Letters of Credit shall be reallocated on the Closing Date in accordance
with each Lender's applicable Pro Rata Share.
(b) RETURN AND CANCELLATION OF NOTES. Upon its receipt of
the Revolving Credit Notes to be delivered hereunder on the Closing Date, each
Lender will promptly return to the Borrower, marked "Cancelled" or "Replaced",
the notes of the Borrower held by such Lender pursuant to the 2002 Credit
Agreement.
(c) INTEREST AND FEES UNDER ORIGINAL AGREEMENT. All interest
and all commitment, facility and other fees and expenses owing or accruing under
or in respect of the 2002 Credit Agreement shall be calculated as of the Closing
Date (prorated in the case of any fractional periods), and shall be paid on the
Closing Date in accordance with the method specified in the 2002 Credit
Agreement as if such agreement were still in effect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK--SIGNATURE PAGES TO FOLLOW]
-100-
IN WITNESS WHEREOF the undersigned have duly executed this Agreement as
a sealed instrument as of the date first set forth above.
BORROWER:
---------
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Executive Vice President and CFO
Address for Notices:
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
Taxpayer Identification Number: 00-0000000
LENDERS:
--------
[SIGNATURE PAGES OF LENDERS]
