EXECUTION COPY
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REVOLVING CREDIT AGREEMENT
dated as of March 31, 1998
among
PRICE ENTERPRISES, INC.,
as Borrower,
UNION BANK OF SWITZERLAND
(New York Branch),
as Bank,
and
UNION BANK OF SWITZERLAND
(New York Branch),
as Administrative Agent
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REVOLVING CREDIT AGREEMENT dated as of March 31, 1998 among PRICE
ENTERPRISES, INC., a corporation organized and existing under the laws of the
State of Maryland ("Borrower "), UNION BANK OF SWITZERLAND (New York Branch), as
agent for the Banks (in such capacity, together with its successors in such
capacity, "Administrative Agent") and UNION BANK OF SWITZERLAND (New York
Branch) (in its individual capacity and not as Administrative Agent, "UBS"; UBS
and the lenders who from time to time become Banks pursuant to Section 3.07 or
Section 12.05, and, if applicable, any of the foregoing lenders' Designated
Lender, each a "Bank" and collectively, the "Banks").
Borrower desires that the Banks extend credit as provided herein, and the
Banks are prepared to extend such credit. Accordingly, Borrower, each Bank and
Administrative Agent agree as follows:
ARTICLE I.
DEFINITIONS, ETC.
Section 1.01 Definitions. As used in this Agreement the following terms
have the following meanings (except as otherwise provided, terms defined in the
singular to have a correlative meaning when used in the plural and vice versa):
"Additional Costs" has the meaning specified in Section 3.01.
"Administrative Agent" has the meaning specified in the preamble.
"Administrative Agent's Office" means Administrative Agent's address
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other address in the
United States as Administrative Agent may designate by written notice to
Borrower and the Banks.
"Affiliate" means, with respect to any Person (the "first Person"), any
other Person: (1) which directly or indirectly controls, or is controlled by, or
is under common control with the first Person; or (2) ten percent (10%) or more
of the beneficial interest in which is directly or indirectly owned or held by
the first Person. The term "control" means the possession, directly or
indirectly, of the power, alone, to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract, or otherwise.
"Agreement" means this Revolving Credit Agreement.
"Applicable Lending Office" means, for each Bank and for its LIBOR Loan,
Bid Rate Loan(s) or Base Rate Loan, as applicable, the lending office of such
Bank (or of an Affiliate of such Bank) designated as such on its signature page
hereof or in the
applicable Assignment and Assumption Agreement, or such other office of such
Bank (or of an Affiliate of such Bank) as such Bank may from time to time
specify to Administrative Agent and Borrower as the office by which its LIBOR
Loan, Bid Rate Loan(s) or Base Rate Loan, as applicable, is to be made and
maintained.
"Applicable Margin" means, with respect to Base Rate Loans and LIBOR Loans,
the respective rates per annum determined, at any time, based on Borrower's
Credit Rating (or, if Borrower's Credit Rating is below the indicated level or
unrated, on the Leverage Ratio) at the time, in accordance with the following
table, subject to possible adjustment in accordance with the definition of
"Borrower's Credit Rating" set forth in this Section 1.01. Any change in
Borrower's Credit Rating or the Leverage Ratio, as the case may be, causing them
to move to a different range on the table shall effect an immediate change in
the Applicable Margin.
====================================================================================================================================
Borrower's Credit Rating Applicable Margin Applicable Margin
(S&P/▇▇▇▇▇'▇/▇▇▇▇ & for Base Rate Loans for LIBOR Loans
▇▇▇▇▇▇/Fitch Ratings) (% per annum) (% per annum)
--------------------- ------------- -------------
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A-/A3/A-/A- or higher 0.00 0.70
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BBB+/Baal/BBB+/BBB+ 0.00 0.80
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BBB/Baa2/BBB/BBB 0.00 0.90
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BBB-/Baa3/BBB-/BBB- 0.00 1.00
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Below BBB-/Baa3/BBB-/BBB- or unrated with Leverage Ratio:
------------------------------------------------------------------------------------------------------------------------------------
less than 20% 0.00 .80
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greater than or equal to 20% but less than 30% 0.00 .90
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greater than or equal to 30% but less than 34% 0.00 1.00
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greater than or equal to 34% but less than 44% 0.00 1.10
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greater than or equal to 44% 0.00 1.20
====================================================================================================================================
"Assignee" has the meaning specified in Section 12.05.
"Assignment and Assumption Agreement" means an Assignment and Assumption
Agreement, substantially in the form of EXHIBIT E, pursuant to which a Bank
assigns and an Assignee assumes rights and obligations in accordance with
Section 12.05.
"Authorization Letter" means a letter agreement executed by Borrower in the
form of EXHIBIT A.
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"Available Total Loan Commitment" has the meaning specified in Section
2.01(b).
"Bank" and "Banks" have the respective meanings specified in the preamble;
provided, however, that the term "Bank" shall exclude each Designated Lender
when used in reference to a Ratable Loan, the Loan Commitments or terms relating
to the Ratable Loans and the Loan Commitments.
"Bank Parties" means Administrative Agent and the Banks.
"Banking Day" means (1) any day on which commercial banks are not
authorized or required to close in New York City and (2) whenever such day
relates to a LIBOR Loan, a Bid Rate Loan, an Interest Period with respect to a
LIBOR Loan or a Bid Rate Loan, or notice with respect to a LIBOR Loan or Bid
Rate Loan, a day on which dealings in Dollar deposits are also carried out in
the London interbank market and banks are open for business in London.
"Base Rate" means, for any day, the higher of (1) the Federal Funds Rate
for such day plus one-half percent (.50%), or (2) the Prime Rate for such day.
"Base Rate Loan" means all or any portion (as the context requires) of a
Bank's Ratable Loan which shall accrue interest at a rate determined in relation
to the Base Rate.
"Bid Borrowing Limit" means 50% of the Total Loan Commitment.
"Bid Rate Loan" has the meaning specified in Section 2.01(c).
"Bid Rate Loan Note" has the meaning specified in Section 2.08.
"Bid Rate Quote" means an offer by a Bank to make a Bid Rate Loan in
accordance with Section 2.02.
"Bid Rate Quote Request" has the meaning specified in Section 2.02(a).
"Borrower" has the meaning specified in the preamble.
"Borrower's Accountants" means an accounting firm selected by Borrower and
reasonably acceptable to Administrative Agent.
"Borrower's Consolidated Financial Statements" means, collectively, the
consolidated balance sheet and related consolidated statement of operations,
statement of shareholder equity and statement of cash flows, and footnotes
thereto, of Borrower, prepared in accordance with GAAP.
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"Borrower's Share of UJV Outstanding Indebtedness" means the sum of the
indebtedness of each of the UJVs contributing to UJV Outstanding Indebtedness
multiplied by Borrower's respective beneficial fractional interests in each such
UJV.
"Borrower's Credit Rating" means the lower of the S&P and Moody's ratings,
if these are the only two (2) ratings (provided, however, that in the event the
ratings by S&P and Moody's are greater than one-half (1/2) step apart, the
Applicable Margin shall be the average of the Applicable Margins corresponding
to such S&P and Moody's ratings) or the lower of the two (2) highest ratings if
one (1) of these two (2) highest ratings is from either S&P or Moody's and if,
in addition to S&P and Moody's, there exist ratings by either or both of Duff &
▇▇▇▇▇▇ and Fitch (provided, however, if Duff & ▇▇▇▇▇▇ and Fitch are the two (2)
highest ratings, then "Borrower's Credit Rating" shall be the higher of the S&P
and Moody's ratings) assigned from time to time by, respectively, S&P, Moody's,
▇▇▇▇ & ▇▇▇▇▇▇ and Fitch to Borrower's unsecured and unsubordinated long term
indebtedness. Unless such indebtedness of Borrower is and continues to be rated
by both S&P and Moody's, "Borrower's Credit Rating" shall be considered unrated
for purposes of determining both the Applicable Margin and the
commitment/facility fee required by Section 2.07.
"Borrower's Principals" means the officers and directors of Borrower at any
applicable time.
"Capitalization Value" means, as of the end of any calendar quarter, the
sum of (1) Combined EBITDA for such quarter annualized (except that for purposes
of this definition, the aggregate contribution to Combined EBITDA from leasing
commissions and management and development fees shall not exceed 5% of Combined
EBITDA), capitalized at a rate of 9.25% per annum, (2) Borrower's beneficial
share of unrestricted cash and marketable securities of Borrower and its
Consolidated Businesses and UJVs, as of the end of such quarter, as reflected in
Borrower's Consolidated Financial Statements, and (3) without duplication, the
cost basis of properties of Borrower under construction as certified by
Borrower, such certificate to be accompanied by all appropriate documentation
(such as job cost summaries) supporting such figure.
"Capital Lease" means any lease which has been or should be capitalized on
the books of the lessee in accordance with GAAP.
"Closing Date" means the date this Agreement has been executed by all
parties.
"Code" means the Internal Revenue Code of 1986.
"Combined EBITDA" means, for any period of time, (1) revenues less
operating costs (to include general and administrative expenses) before Interest
Expense, income taxes, depreciation and amortization and extraordinary items
(including, without
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limitation, non-recurring items such as gains or losses from asset sales) and
adjusted for non-cash revenue attributable to straight lining of rents for
Borrower and its beneficial interest in its Consolidated Businesses, plus (2)
Borrower's beneficial interest in revenues less operating costs before Interest
Expense, income taxes, depreciation and amortization and extraordinary items
(including, without limitation, non-recurring items such as gains or losses from
asset sales) and adjusted for non-cash revenue attributable to straight lining
of rents (after eliminating appropriate intercompany amounts) applicable to each
of the UJVs (to the extent not included above) in all cases as reflected in
Borrower's Consolidated Financial Statements.
"Commitment Fee Rate" and "Facility Fee Rate" mean the rate per annum
determined, at any time, based on Borrower's Credit Rating (or, if Borrower's
Credit Rating is below the indicated level or unrated, on the Leverage Ratio),
in accordance with the following table. Any change in Borrower's Credit Rating
or the Leverage Ratio, as the case may be, which causes them to move into a
different range on the table shall effect an immediate change in the Commitment
Fee Rate or Facility Fee Rate, as the case may be.
Borrower's Credit Rating Commitment/Facility Fee
(S&P/Moody's/▇▇▇▇ & ▇▇▇▇▇▇/▇▇▇▇▇ Ratings) Rate (% per annum)
----------------------------------------- ------------------
A-/A3/A-/A- or higher 0.15
BBB+/Baa1/BBB+/BBB+ 0.15
BBB/Baa2/BBB/BBB 0.20
BBB-/Baa3/BBB-/BBB- 0.20
Below BBB-/Baa3/BBB-/BBB- or unrated
with Leverage Ratio:
--------------------
less than 50% 0.125
greater than or equal to 50% 0.20
"Consolidated Businesses" means, collectively, each Affiliate of Borrower
who is or should be included in Borrower's Consolidated Financial Statements in
accordance with GAAP.
"Consolidated Outstanding Indebtedness" means, as of any time, all
indebtedness and liability for borrowed money, secured or unsecured, of Borrower
and all indebtedness and liability for borrowed money, secured or unsecured,
attributable to Borrower's beneficial interest in its Consolidated Businesses,
including mortgage and other notes payable but excluding any indebtedness which
is margin indebtedness secured
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100% by cash and cash equivalent securities, all as reflected in Borrower's
Consolidated Financial Statements.
"Construction in Progress" means construction of improvements has begun (as
evidenced by foundation excavation) but has not yet been completed (as such
completion shall be evidenced by the issuance of a certificate of occupancy or
its equivalent for the improvements and all budgeted amenities) and shall
include that portion of a new construction project that is unleased until said
project has 85% of its net leasable square footage actually occupied by tenants
paying rent pursuant to binding leases.
"Contingent Liabilities" means the sum of (1) those liabilities, as
determined in accordance with GAAP, set forth and quantified as contingent
liabilities in the notes to Borrower's Consolidated Financial Statements and (2)
contingent liabilities, other than those described in the foregoing clause (1),
which represent direct payment guaranties of Borrower; provided, however, that
Contingent Liabilities shall exclude contingent liabilities which represent the
"Other Party's Share" of "Duplicated Obligations" (as such quoted terms are
hereinafter defined). "Duplicated Obligations" means, collectively, all those
payment guaranties in respect of Debt of UJVs for which Borrower and another
party are jointly and severally liable, where such other party's unsecured and
unsubordinated long-term indebtedness has been assigned an investment grade
credit rating by either S&P or ▇▇▇▇▇'▇ (i.e., a rating of BBB- or better by S&P
or Baa3 or better by Moody's). "Other Party's Share" means such other party's
fractional share of the obligation under the UJV in question.
"Continue", "Continuation" and "Continued" refer to the continuation
pursuant to Section 2.11 of a LIBOR Loan as a LIBOR Loan from one Interest
Period to the next Interest Period.
"Convert", "Conversion" and "Converted" refer to a conversion pursuant to
Section 2.11 of a Base Rate Loan into a LIBOR Loan or a LIBOR Loan into a Base
Rate Loan, each of which may be accompanied by the transfer by a Bank (at its
sole discretion) of all or a portion of its Ratable Loan from one Applicable
Lending Office to another.
"Debt" means: (1) indebtedness or liability for borrowed money, or for the
deferred purchase price of property or services (including trade obligations);
(2) obligations as lessee under Capital Leases; (3) current liabilities in
respect of unfunded vested benefits under any Plan; (4) obligations under
letters of credit issued for the account of any Person; (5) all obligations
arising under bankers' or trade acceptance facilities; (6) all guarantees,
endorsements (other than for collection or deposit in the ordinary course of
business), and other contingent obligations to purchase any of the items
included in this definition, to provide funds for payment, to supply funds to
invest in any Person, or otherwise to assure a creditor against loss; (7) all
obligations secured by any Lien on property owned by the Person whose Debt is
being measured, whether or not
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the obligations have been assumed; and (8) all obligations under any agreement
providing for contingent participation or other hedging mechanisms with respect
to interest payable on any of the items described above in this definition.
"Default" means any event which with the giving of notice or lapse of time,
or both, would become an Event of Default.
"Default Rate" means a rate per annum equal to: (1) with respect to Base
Rate Loans, a variable rate four percent (4%) above the rate of interest then in
effect thereon (including the Applicable Margin); and (2) with respect to LIBOR
Loans and Bid Rate Loans, a fixed rate four percent (4%) above the rate(s) of
interest in effect thereon (including the Applicable Margin or the LIBOR Bid
Margin, as the case may be) at the time of Default until the end of the then
current Interest Period therefor and, thereafter, a variable rate four percent
(4%) above the rate of interest for a Base Rate Loan (including the Applicable
Margin).
"Delinquency Amount", "Delinquency Notice" and "Delinquent Bank" have the
respective meanings specified in Section 10.18.
"Designated Lender" means a special purpose corporation that (i) shall have
become a party to this Agreement pursuant to Section 12.16 and (ii) is not
otherwise a Bank.
"Designating Lender" has the meaning specified in Section 12.16.
"Designation Agreement" means an agreement in substantially the form of
EXHIBIT H, entered into by a Bank and a Designated Lender and accepted by
Administrative Agent.
"Disposition" means a sale (whether by assignment, transfer or Capital
Lease) of an asset.
"Dollars" and the sign "$" mean lawful money of the United States of
America.
"Duff & ▇▇▇▇▇▇" means Duff & ▇▇▇▇▇▇ Credit Rating Company.
"Elect", "Election" and "Elected" refer to elections, if any, by Borrower
pursuant to Section 2.11 to have all or a portion of an advance of the Ratable
Loans be outstanding as LIBOR Loans.
"Electing Bank", "Election Notice" and "Election Period" have the
respective meanings specified in Section 10.18.
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"Environmental Discharge" means any material discharge or release of any
Hazardous Materials in violation of any applicable Environmental Law.
"Environmental Law" means any applicable Law relating to pollution or the
environment, including Laws relating to noise or to emissions, discharges,
releases or threatened releases of Hazardous Materials into the work place, the
community or the environment, or otherwise relating to the generation,
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials.
"Environmental Notice" means any written complaint, order, citation,
letter, inquiry, notice or other written communication from any Person (1)
affecting or relating to Borrower's compliance with any Environmental Law in
connection with any activity or operations at any time conducted by Borrower,
(2) relating to the occurrence or presence of or exposure to or possible or
threatened or alleged occurrence or presence of or exposure to Environmental
Discharges or Hazardous Materials at any of Borrower's locations or facilities,
including, without limitation: (a) the existence of any contamination or
possible or threatened contamination at any such location or facility and (b)
remediation of any Environmental Discharge or Hazardous Materials at any such
location or facility or any part thereof; and (3) any violation or alleged
violation of any relevant Environmental Law.
"Equity Value" means, at any time, Capitalization Value less Total
Outstanding Indebtedness.
"ERISA" means the Employee Retirement Income Security Act of 1974,
including the rules and regulations promulgated thereunder.
"ERISA Affiliate" means any corporation or trade or business which is a
member of the same controlled group of organizations (within the meaning of
Section 414(b) of the Code) as Borrower or is under common control (within the
meaning of Section 414(c) of the Code) with Borrower or is required to be
treated as a single employer with Borrower under Section 414(m) or 414(o) of the
Code.
"Event of Default" has the meaning specified in Section 9.01.
"Federal Funds Rate" means, for any day, the rate per annum (expressed on a
360-day basis of calculation) equal to the weighted average of the rates on
overnight federal funds transactions as published by the Federal Reserve Bank of
New York for such day provided that (1) if such day is not a Banking Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
immediately preceding Banking Day as so published on the next succeeding Banking
Day, and (2) if no such rate is so published on any Banking Day, the Federal
Funds Rate for such day shall be the average of the rates quoted by three (3)
Federal Funds brokers to Administrative Agent on such day on such transactions.
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"Fiscal Year" means each period from January 1 to December 31.
"Fitch" means Fitch Investors Service, L.P.
"Fixed Charges" means, for any period of time, (1) Interest Expense, plus
(2) preferred dividend expense and regularly scheduled principal amortization of
Borrower and that attributable to Borrower's beneficial interest in its
Consolidated Businesses and UJVs.
"Funds From Operations" means, for any period of time, net income (computed
in accordance with GAAP), excluding gains (or losses) from debt restructuring
and sales of property and without taking into account straight-lining of rents,
plus depreciation and amortization (other than depreciation of property,
furniture and equipment and the amortization of deferred financing costs), and
after adjustments for unconsolidated partnerships and joint ventures.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect from time to time, applied on a basis consistent with
those used in the preparation of the Borrower's Consolidated Financial
Statements referred to in Section 5.15.
"Good Faith Contest" means the contest of an item if: (1) the item is
diligently contested in good faith, and, if appropriate, by proceedings timely
instituted; (2) adequate reserves are established with respect to the contested
item; (3) during the period of such contest, the enforcement of any contested
item is effectively stayed; and (4) the failure to pay or comply with the
contested item during the period of the contest is not likely to result in a
Material Adverse Change.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Hazardous Materials" means any pollutant, effluents, emissions,
contaminants, toxic or hazardous wastes or substances, as any of those terms are
defined from time to time in or for the purposes of any relevant Environmental
Law, including asbestos fibers and friable asbestos, polychlorinated biphenyls,
and any petroleum or hydrocarbon-based products or derivatives.
"Initial Advance" means the first advance of proceeds of the Loans.
"Interest Expense" means, for any period of time, the consolidated interest
expense, whether paid, accrued or capitalized (without deduction of consolidated
interest income) of Borrower and that attributable to Borrower's beneficial
interest in its Consolidated Businesses, including, without limitation or
duplication (or, to the extent
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not so included, with the addition of), (1) the portion of any rental obligation
in respect of any Capital Lease obligation allocable to interest expense in
accordance with GAAP; (2) the amortization of Debt discounts; (3) any payments
or fees (other than up-front fees) with respect to interest rate swap or similar
agreements; and (4) the interest expense and items listed in clauses (1) through
(3) above applicable to each of the UJVs (to the extent not included above)
multiplied by Borrower's respective beneficial interests in the UJVs, in all
cases as reflected in the applicable Borrower's Consolidated Financial
Statements.
"Interest Period" means, (1) with respect to any LIBOR Loan, the period
commencing on the date the same is advanced, converted from a Base Rate Loan or
Continued, as the case may be, and ending, as Borrower may select pursuant to
Section 2.05, on the numerically corresponding day in the first, second or third
calendar month thereafter, provided that each such Interest Period which
commences on the last Banking Day of a calendar month (or on any day for which
there is no numerically corresponding day in the appropriate subsequent calendar
month) shall end on the last Banking Day of the appropriate calendar month; and
(2) with respect to any Bid Rate Loan, the period commencing on the date the
same is advanced and ending, as Borrower may select pursuant to Section 2.02, on
the numerically corresponding day in the first, second or third calendar month
thereafter, provided that each such Interest Period which commences on the last
Banking Day of a calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end on the
last Banking Day of the appropriate calendar month.
"Invitation for Bid Rate Quotes" has the meaning specified in Section
2.02(b).
"Law" means any federal, state or local statute, law, rule, regulation,
ordinance, order, code, or rule of common law, now or hereafter in effect, and
in each case as amended, and any judicial or administrative interpretation
thereof by a Governmental Authority or otherwise, including any judicial or
administrative order, consent decree or judgment.
"Letter of Credit" has the meaning specified in Section 2.16(a).
"Leverage Ratio" means the ratio, expressed as a percentage, of Total
Outstanding Indebtedness to Capitalization Value.
"LIBOR Base Rate" means, with respect to any Interest Period therefor, the
rate per annum (rounded upwards if necessary to the nearest 1/16 of 1%) quoted
at approximately 11:00 a.m., New York time, by the principal New York branch of
UBS two (2) Banking Days prior to the first day of such Interest Period for the
offering to leading banks in the London interbank market of Dollar deposits in
immediately available funds, for a period, and in an amount, comparable to such
Interest Period and principal amount of the LIBOR Loan or Bid Rate Loan, as the
case may be, in question outstanding during such Interest Period.
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"LIBOR Bid Margin" has the meaning specified in Section 2.02(c)(2).
"LIBOR Bid Rate" means the rate per annum equal to the sum of (1) the LIBOR
Interest Rate for the Bid Rate Loan and Interest Period in question and (2) the
LIBOR Bid Margin.
"LIBOR Interest Rate" means, for any LIBOR Loan or Bid Rate Loan, a rate
per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined
by Administrative Agent to be equal to the quotient of (1) the LIBOR Base Rate
for such LIBOR Loan or Bid Rate Loan, as the case may be, for the Interest
Period therefor divided by (2) one minus the LIBOR Reserve Requirement for such
LIBOR Loan or Bid Rate Loan, as the case may be, for such Interest Period.
"LIBOR Loan" means all or any portion (as the context requires) of any
Bank's Ratable Loan which shall accrue interest at rate(s) determined in
relation to LIBOR Interest Rate(s).
"LIBOR Reserve Requirement" means, for any LIBOR Loan or Bid Rate Loan, the
average maximum rate at which reserves (including any marginal, supplemental or
emergency reserves) are required to be maintained during the Interest Period for
such LIBOR Loan or Bid Rate Loan under Regulation D by member banks of the
Federal Reserve System in New York City with deposits exceeding One Billion
Dollars ($1,000,000,000) against "Eurocurrency liabilities" (as such term is
used in Regulation D). Without limiting the effect of the foregoing, the LIBOR
Reserve Requirement shall also reflect any other reserves required to be
maintained by such member banks by reason of any Regulatory Change against (1)
any category of liabilities which includes deposits by reference to which the
LIBOR Base Rate is to be determined as provided in the definition of "LIBOR Base
Rate" in this Section 1.01 or (2) any category of extensions of credit or other
assets which include loans the interest rate on which is determined on the basis
of rates referred to in said definition of "LIBOR Base Rate".
"Lien" means any mortgage, deed of trust, pledge, security interest,
hypothecation, assignment for collateral purposes, deposit arrangement, lien
(statutory or other), or other security agreement or charge of any kind or
nature whatsoever of any third party (excluding any right of setoff but
including, without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement under the
Uniform Commercial Code or comparable law of any jurisdiction to evidence any of
the foregoing).
"Loan" means, with respect to each Bank, its Ratable Loan and Bid Rate
Loan(s), collectively.
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"Loan Commitment" means, with respect to each Bank, the obligation to make
a Ratable Loan in the principal amount set forth below, as such amount may be
reduced from time to time in accordance with the provisions of Section 2.15
(upon the execution of an Assignment and Assumption Agreement, this definition
shall be revised to reflect the assignment being effected pursuant to such
Assignment and Assumption Agreement):
Loan
Bank Commitment
---- ----------
UBS $75,000,000
Total $75,000,000
===========
"Loan Documents" means this Agreement, the Notes, the Authorization Letter
and the Solvency Certificate.
"Material Adverse Change" means either (1) a material adverse change in the
status of the business, results of operations, financial condition or property
of Borrower or (2) any event or occurrence of whatever nature which is likely to
have a material adverse effect on the ability of Borrower to perform its
obligations under the Loan Documents.
"Material Affiliates" means the Affiliates of Borrower listed on EXHIBIT F,
together with (or excluding) any Affiliates of Borrower which are hereafter from
time to time reasonably determined by Administrative Agent to be material (or no
longer material), upon notice to Borrower, based on the most recent Borrower's
Consolidated Financial Statements.
"Maturity Date" means March 30, 2001.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a Plan defined as such in Section 3(37) of ERISA
to which contributions have been made by Borrower or any ERISA Affiliate and
which is covered by Title IV of ERISA.
"Non-Delinquent Banks" means each Bank other than the Delinquent Bank(s).
"Note" and "Notes" have the respective meanings specified in Section 2.08.
"Obligations" means each and every obligation, covenant and agreement of
Borrower, now or hereafter existing, contained in this Agreement, and any of the
other
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Loan Documents, whether for principal, reimbursement obligations, interest,
fees, expenses, indemnities or otherwise, and any amendments or supplements
thereto, extensions or renewals thereof or replacements therefor, including but
not limited to all indebtedness, obligations and liabilities of Borrower to
Administrative Agent and any Bank now existing or hereafter incurred under or
arising out of or in connection with the Notes, this Agreement, the other Loan
Documents, and any documents or instruments executed in connection therewith; in
each case whether direct or indirect, joint or several, absolute or contingent,
liquidated or unliquidated, now or hereafter existing, renewed or restructured,
whether or not from time to time decreased or extinguished and later increased,
created or incurred, and including all indebtedness of Borrower, under any
instrument now or hereafter evidencing or securing any of the foregoing.
"Parent" means, with respect to any Bank, any Person controlling such Bank.
"Participation" and "Participant" have the respective meanings specified in
Section 12.05.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture, limited
liability company, Governmental Authority or other entity of whatever nature.
"Plan" means any employee benefit or other plan established or maintained,
or to which contributions have been made, by Borrower or any ERISA Affiliate and
which is covered by Title IV of ERISA or to which Section 412 of the Code
applies.
"presence", when used in connection with any Environmental Discharge or
Hazardous Materials, means and includes presence, generation, manufacture,
installation, treatment, use, storage, handling, repair, encapsulation,
disposal, transportation, spill, discharge and release.
"Prime Rate" means that rate of interest from time to time announced by UBS
at its Principal Office as its prime commercial lending rate.
"Principal Office" means the principal office of UBS in the United States,
presently located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Pro Rata Share" means, for purposes of this Agreement and with respect to
each Bank, a fraction, the numerator of which is the amount of such Bank's Loan
Commitment and the denominator of which is the Total Loan Commitment.
13
"Prohibited Transaction" means any transaction proscribed by Section 406 of
ERISA or Section 4975 of the Code and as to which no statutory or administrative
exemption applies.
"Ratable Loan" has the meaning specified in Section 2.01(b).
"Ratable Loan Note" has the meaning specified in Section 2.08.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System, as the same may be amended or supplemented from time to time, or
any similar Law from time to time in effect.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as the same may be amended or supplemented from time to time, or
any similar Law from time to time in effect.
"Regulatory Change" means, with respect to any Bank, any change after the
date of this Agreement in United States federal, state, municipal or foreign
laws or regulations (including Regulation D) or the adoption or making after
such date of any interpretations, directives or requests applying to a class of
banks including such Bank of or under any United States, federal, state,
municipal or foreign laws or regulations (whether or not having the force of
law) by any court or governmental or monetary authority charged with the
interpretation or administration thereof.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty (30) day notice period is
waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. ss.2615.
"Replacement Bank" has the meaning specified in Section 10.22.
"Required Banks" means at any time those Non-Delinquent Banks having Pro
Rata Shares aggregating at least 66 2/3%; provided, however, that during the
existence of an Event of Default, the "Required Banks" shall be those
Non-Delinquent Banks holding at least 66 2/3% of the then aggregate unpaid
principal amount of the Notes held by the Non-Delinquent Banks.
"SEC Reports" means the reports required to be delivered to the Securities
and Exchange Commission pursuant to the Securities Exchange Act of 1934, as
amended.
"Secured Indebtedness" means that portion of Total Outstanding Indebtedness
that is secured.
"Solvency Certificate" means a certificate in the form of EXHIBIT D, to be
delivered by Borrower pursuant to the terms of this Agreement.
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"Solvent" means, when used with respect to any Person, that (1) the fair
value of the property of such Person, on a going concern basis, is greater than
the total amount of liabilities (including, without limitation, contingent
liabilities) of such Person; (2) the present fair saleable value of the assets
of such Person, on a going concern basis, is not less than the amount that will
be required to pay the probable liabilities of such Person on its debts as they
become absolute and matured; (3) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay as such debts and liabilities mature; (4) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute unreasonably
small capital after giving due consideration to the prevailing practice in the
industry in which such Person is engaged; and (5) such Person has sufficient
resources, provided that such resources are prudently utilized, to satisfy all
of such Person's obligations. Contingent liabilities will be computed at the
amount that, in light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability.
"S&P" means Standard & Poor's Ratings Services, a division of ▇▇▇▇▇▇-▇▇▇▇
Companies.
"Total Loan Commitment" means an amount equal to the aggregate amount of
all Loan Commitments.
"Total Outstanding Indebtedness" means the sum, without duplication, of (1)
Consolidated Outstanding Indebtedness, (2) Borrower's Share of UJV Outstanding
Indebtedness and (3) Contingent Liabilities.
"UBS" has the meaning specified in the preamble.
"UJV Outstanding Indebtedness" means, as of any time, all indebtedness and
liability for borrowed money, secured or unsecured, of the UJV's, including
mortgage and other notes payable but excluding any indebtedness which is margin
indebtedness secured 100% by cash and cash equivalent securities, all as
reflected in the balance sheets of each of the UJVs, prepared in accordance with
GAAP.
"UJVs" means the unconsolidated joint ventures in which Borrower owns a
beneficial interest and which are accounted for under the equity method in
Borrower's Consolidated Financial Statements.
"Unencumbered Assets" means, collectively, assets, reflected on Borrower's
Consolidated Financial Statements, wholly owned, directly or indirectly, by
Borrower and not subject to any Lien to secure all or any portion of Secured
Indebtedness and assets of UJVs which are not subject to any Lien to secure all
or any portion of Secured Indebtedness.
15
"Unencumbered Combined EBITDA" means that portion of Combined EBITDA
attributable to Unencumbered Assets.
"Unfunded Current Liability" of any Plan means the amount, if any, by which
the actuarial present value of accumulated plan benefits as of the close of its
most recent plan year, based upon the actuarial assumptions used by the Plan's
actuary in the most recent annual valuation of the Plan, exceeds the fair market
value of the assets allocable thereto, determined in accordance with Section 412
of the Code.
"Unsecured Debt Yield" means, for any calendar quarter, the ratio,
expressed as a percentage, of (1) Unencumbered Combined EBITDA for such quarter
annualized to (2) Unsecured Indebtedness as of the end of such calendar quarter.
"Unsecured Indebtedness" means that portion of Total Outstanding
Indebtedness that is unsecured.
"Unsecured Interest Expense" means that portion of Interest Expense
attributable to Unsecured Indebtedness.
Section 1.02 Accounting Terms. The use of the term "annualized" shall mean
to multiply the applicable amount by four (4). All accounting terms not
specifically defined herein shall be construed in accordance with GAAP, and all
financial data required to be delivered hereunder shall be prepared in
accordance with GAAP.
Section 1.03 Computation of Time Periods. Except as otherwise provided
herein, 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 words "to" and "until" each means "to but excluding".
Section 1.04 Rules of Construction. Except as provided otherwise, when used
in this Agreement: (1) "or" is not exclusive; (2) a reference to a Law includes
any amendment or modification to such Law; (3) a reference to a Person includes
its permitted successors and permitted assigns; (4) all references to the
singular shall include the plural and vice versa; (5) a reference to an
agreement, instrument or document shall include such agreement, instrument or
document as the same may be amended, modified or supplemented from time to time
in accordance with its terms and as permitted by the Loan Documents; (6) all
references to Articles, Sections or Exhibits shall be to Articles, Sections and
Exhibits of this Agreement unless otherwise indicated; and (7) all Exhibits to
this Agreement shall be incorporated into this Agreement.
16
ARTICLE II.
THE LOANS
Section 2.01 Ratable Loans; Bid Rate Loans; Purpose. (a) Subject to the
terms and conditions of this Agreement, the Banks agree to make loans to
Borrower as provided in this Article II.
(b) Each of the Banks severally agrees to make a loan to Borrower (each
such loan by a Bank, a "Ratable Loan") in an amount up to its Loan Commitment
pursuant to which the Bank shall from time to time advance and re-advance to
Borrower an amount equal to its Pro Rata Share of the excess (the "Available
Total Loan Commitment") of the Total Loan Commitment over the sum of (1) all
previous advances (including Bid Rate Loans) made by the Banks which remain
unpaid and (2) the outstanding amount of all Letters of Credit. Within the
limits set forth herein, Borrower may borrow from time to time under this
paragraph (b) and prepay from time to time pursuant to Section 2.09 (subject,
however, to the restrictions on prepayment set forth in said Section), and
thereafter re-borrow pursuant to this paragraph (b). The Ratable Loans may be
outstanding as: (1) Base Rate Loans; (2) LIBOR Loans; or (3) a combination of
the foregoing, as Borrower shall elect and notify Administrative Agent in
accordance with Section 2.13. The LIBOR Loan, Bid Rate Loan and Base Rate Loan
of each Bank shall be maintained at such Bank's Applicable Lending Office.
(c) In addition to Ratable Loans pursuant to paragraph (b) above, so long
as Borrower's unsecured and unsubordinated long term indebtedness has been
assigned a credit rating of BBB- or better by S&P and Baa3 or better by Moody's,
one or more Banks may, at Borrower's request and in their sole discretion, make
non-ratable loans which shall bear interest at the LIBOR Bid Rate in accordance
with Section 2.02 (such loans being referred to in this Agreement as "Bid Rate
Loans"). Borrower may borrow Bid Rate Loans from time to time pursuant to this
paragraph (c) in an amount up to the Available Total Loan Commitment at the time
of the borrowing (taking into account any repayments of the Loans made
simultaneously therewith) and shall repay such Bid Rate Loans as required by
Section 2.08, and it may thereafter re-borrow pursuant to this paragraph (c) or
paragraph (b) above; provided, however, that the aggregate outstanding principal
amount of Bid Rate Loans at any particular time shall not exceed the Bid
Borrowing Limit.
(d) The obligations of the Banks under this Agreement are several, and no
Bank shall be responsible for the failure of any other Bank to make any advance
of a Loan to be made by such other Bank. However, the failure of any Bank to
make any advance of the Loan to be made by it hereunder on the date specified
therefor shall not relieve any other Bank of its obligation to make any advance
of its Loan specified hereby to be made on such date.
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(e) Borrower shall use the proceeds of the Loans for general capital
requirements and working capital purposes of Borrower and its Consolidated
Businesses and UJVs, including costs incurred in connection with real estate
acquisitions and/or developments. In no event shall proceeds of the Loans be
used for any illegal purpose or for the purpose, whether immediate, incidental
or ultimate, of buying or carrying "margin stock" within the meaning of
Regulation U, or in connection with any hostile acquisition.
Section 2.02 Bid Rate Loans. (a) When Borrower's unsecured and
unsubordinated long term indebtedness has the credit rating required by Section
2.01(c) and Borrower wishes to request offers from the Banks to make Bid Rate
Loans, it shall transmit to Administrative Agent by facsimile a request (a "Bid
Rate Quote Request") substantially in the form of EXHIBIT G-1 so as to be
received not later than 11:30 a.m. (New York time) on the fifth Banking Day
prior to the date for funding of the Bid Rate Loan(s) proposed therein,
specifying:
(1) the proposed date of funding of the Bid Rate Loan(s), which shall
be a Banking Day;
(2) the aggregate amount of the Bid Rate Loans requested, which shall
be Ten Million Dollars ($10,000,000) or a larger integral multiple of One
Million Dollars ($1,000,000); and
(3) the duration of the Interest Period(s) applicable thereto, subject
to the provisions of the definition of "Interest Period" in Section 1.01.
Borrower may request offers to make Bid Rate Loans for more than one (1)
Interest Period in a single Bid Rate Quote Request. No Bid Rate Quote Request
may be submitted by Borrower sooner than fifteen (15) days after the submission
of any other Bid Rate Quote Request.
(b) Promptly upon receipt of a Bid Rate Quote Request, Administrative Agent
shall send to the Banks by facsimile an invitation (an "Invitation for Bid Rate
Quotes") substantially in the form of EXHIBIT G-2, which shall constitute an
invitation by Borrower to the Banks to submit Bid Rate Quotes offering to make
Bid Rate Loans to which such Bid Rate Quote Request relates in accordance with
this Section.
(c) (1) Each Bank may, but shall not be obligated to, submit a Bid Rate
Quote containing an offer or offers to make Bid Rate Loans in response to any
Invitation for Bid Rate Quotes. Each Bid Rate Quote must comply with the
requirements of this paragraph (c) and must be submitted to Administrative Agent
by facsimile not later than 2:00 p.m. (New York time) on the fourth Banking Day
prior to the proposed date of the Bid Rate Loan(s); provided that Bid Rate
Quotes submitted by UBS (or any Affiliate of Administrative Agent) in its
capacity as a Bank may be submitted, and may
18
only be submitted, if UBS or such Affiliate notifies Borrower of the terms of
the offer or offers contained therein not later than one (1) hour prior to the
deadline for the other Banks. Any Bid Rate Quote so made shall (subject to
Borrower's satisfaction of the conditions precedent set forth in this Agreement
to its entitlement to an advance) be irrevocable except with the written consent
of Administrative Agent given on the instructions of Borrower. Bid Rate Loans to
be funded pursuant to a Bid Rate Quote may, as provided in Section 12.16, be
funded by a Bank's Designated Lender. A Bank making a Bid Rate Quote may, but
shall not be required to, specify in its Bid Rate Quote whether the related Bid
Rate Loans are intended to be funded by such Bank's Designated Lender, as
provided in Section 12.16.
(2) Each Bid Rate Quote shall be in substantially the form of EXHIBIT G-3
and shall in any case specify:
(i) the proposed date of funding of the Bid Rate Loan(s);
(ii) the principal amount of the Bid Rate Loan(s) for which each such
offer is being made, which principal amount (w) may be greater than or less
than the Loan Commitment of the quoting Bank, (x) must be in the aggregate
Ten Million Dollars ($10,000,000) or a larger integral multiple of One
Million Dollars ($1,000,000), (y) may not exceed the principal amount of
Bid Rate Loans for which offers were requested and (z) may be subject to an
aggregate limitation as to the principal amount of Bid Rate Loans for which
offers being made by such quoting Bank may be accepted;
(iii) the margin above or below the applicable LIBOR Interest Rate
(the "LIBOR Bid Margin") offered for each such Bid Rate Loan, expressed as
a percentage per annum (specified to the nearest 1/1,000th of 1%) to be
added to (or subtracted from) the applicable LIBOR Interest Rate;
(iv) the applicable Interest Period; and
(v) the identity of the quoting Bank.
A Bid Rate Quote may set forth up to three (3) separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Bid Rate Quotes.
(3) Any Bid Rate Quote shall be disregarded if it:
(i) is not substantially in conformity with EXHIBIT G-3 or does not
specify all of the information required by sub-paragraph (c)(2) above;
19
(ii) contains qualifying, conditional or similar language (except for
an aggregate limitation as provided in sub-paragraph (c)(2)(ii) above);
(iii) proposes terms other than or in addition to those set forth in
the applicable Invitation for Bid Rate Quotes; or
(iv) arrives after the time set forth in sub-paragraph (c)(1) above.
(d) Administrative Agent shall on the Banking Day of receipt thereof notify
Borrower in writing of the terms of (x) any Bid Rate Quote submitted by a Bank
that is in accordance with paragraph (c) and (y) any Bid Rate Quote that amends,
modifies or is otherwise inconsistent with a previous Bid Rate Quote submitted
by such Bank with respect to the same Bid Rate Quote Request. Any such
subsequent Bid Rate Quote shall be disregarded by Administrative Agent unless
such subsequent Bid Rate Quote is submitted solely to correct a manifest error
in such former Bid Rate Quote. Administrative Agent's notice to Borrower shall
specify (A) the aggregate principal amount of Bid Rate Loans for which offers
have been received for each Interest Period specified in the related Bid Rate
Quote Request, (B) the respective principal amounts and LIBOR Bid Margins so
offered and (C) if applicable, limitations on the aggregate principal amount of
Bid Rate Loans for which offers in any single Bid Rate Quote may be accepted.
(e) Not later than 5:00 p.m. (New York time) on the fourth Banking Day
prior to the proposed date of funding of the Bid Rate Loan, Borrower shall
notify Administrative Agent of its acceptance or non-acceptance of the offers so
notified to it pursuant to paragraph (d). A notice of acceptance shall be
substantially in the form of EXHIBIT G-4 and shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. Borrower
may accept any Bid Rate Quote in whole or in part; provided that:
(i) the principal amount of each Bid Rate Loan may not exceed the
applicable amount set forth in the related Bid Rate Quote Request or be
less than One Million Dollars ($1,000,000) and shall be an integral
multiple of One Hundred Thousand Dollars ($100,000);
(ii) acceptance of offers with respect to a particular Interest Period
may only be made on the basis of ascending LIBOR Bid Margins offered for
such Interest Period from the lowest effective cost; and
(iii) Borrower may not accept any offer that is described in
sub-paragraph (c)(3) or that otherwise fails to comply with the
requirements of this Agreement.
20
(f) If offers are made by two (2) or more Banks with the same LIBOR Bid
Margins, for a greater aggregate principal amount than the amount in respect of
which such offers are accepted for the related Interest Period, the principal
amount of Bid Rate Loans in respect of which such offers are accepted shall be
allocated by Administrative Agent among such Banks as nearly as possible (in
multiples of One Hundred Thousand Dollars ($100,000), as Administrative Agent
may deem appropriate) in proportion to the aggregate principal amounts of such
offers. Administrative Agent shall promptly (and in any event within one (1)
Banking Day after such offers are accepted) notify Borrower and each such Bank
in writing of any such allocation of Bid Rate Loans. Determinations by
Administrative Agent of the allocation of Bid Rate Loans shall be conclusive in
the absence of manifest error.
(g) In the event that Borrower accepts the offer(s) contained in one (1) or
more Bid Rate Quotes in accordance with paragraph (e), the Bank(s) making such
offer(s) shall make a Bid Rate Loan in the accepted amount (as allocated, if
necessary, pursuant to paragraph (f)) on the date specified therefor, in
accordance with the procedures specified in Section 2.04.
(h) Notwithstanding anything to the contrary contained herein, each Bank
shall be required to fund its Pro Rata Share of the Available Total Loan
Commitment in accordance with Section 2.01(b) despite the fact that any Bank's
Loan Commitment may have been or may be exceeded as a result of such Bank's
making Bid Rate Loans.
(i) A Bank who is notified that it has been selected to make a Bid Rate
Loan as provided above may designate its Designated Lender (if any) to fund such
Bid Rate Loan on its behalf, as described in Section 12.16. Any Designated
Lender which funds a Bid Rate Loan shall on and after the time of such funding
become the obligee under such Bid Rate Loan and be entitled to receive payment
thereof when due. No Bank shall be relieved of its obligation to fund a Bid Rate
Loan, and no Designated Lender shall assume such obligation, prior to the time
the applicable Bid Rate Loan is funded.
Section 2.03 Advances, Generally. The Initial Advance shall be in the
minimum amount of One Million Dollars ($1,000,000) and in integral multiples of
One Hundred Thousand Dollars ($100,000) above such amount and shall be made upon
satisfaction of the conditions set forth in Section 4.01. Subsequent advances
shall be made no more frequently than weekly thereafter, upon satisfaction of
the conditions set forth in Section 4.02. The amount of each advance subsequent
to the Initial Advance shall be in the minimum amount of One Million Dollars
($1,000,000) (unless less than One Million Dollars ($1,000,000) is available for
disbursement pursuant to the terms hereof at the time of any subsequent advance,
in which case the amount of such subsequent advance shall be equal to such
remaining availability) and in integral multiples of One Hundred Thousand
Dollars ($100,000) above such amount. Additional restrictions on the amounts and
timing of, and conditions to the making of, advances of Bid Rate Loans are set
forth in Section 2.02.
21
Each advance shall be subject, in addition to the limitations and
conditions applicable to advances of the Loans generally, to Administrative
Agent's receipt, on or immediately prior to the date the request for such
advance is made, of (1) a certificate, of the sort required by paragraph (3)(b)
of Section 6.09, containing covenant compliance calculations that include the
pro-forma adjustments described below, which calculations shall demonstrate
Borrower's compliance (and shall include the computations and details of the
items referred to in paragraph (3)(c) of Section 6.09 confirming such
compliance), on a pro-forma basis, as of the end of the most recently ended
calendar quarter for which financial results are required hereunder to have been
reported by Borrower, with all covenants enumerated in said paragraph (3)(b) and
(2) a certificate by the same officer of Borrower setting forth the use of the
advance, the income projected to be generated from such advance for purposes of
determining Combined EBITDA and the type of income so generated. An advance
shall not be made to the extent that the pro forma adjustments, after the
reasonable review and approval of the Administrative Agent, would cause any
covenant to no longer be in compliance.
In connection with each advance of Loan proceeds, the following pro-forma
adjustments shall be made to the covenant compliance calculations required as of
the end of the most recently ended calendar quarter for which financial results
are required hereunder to have been reported by Borrower:
(i) Total Outstanding Indebtedness and Unsecured Indebtedness shall be
adjusted by adding thereto, respectively, all indebtedness and unsecured
indebtedness that is incurred by Borrower in connection with the advance;
(ii) Combined EBITDA, for any period, shall be adjusted by adding the
income to be included as provided in Borrower's certificate; and
(iii) Interest Expense for any period, shall be adjusted by adding
thereto interest expense to be incurred by Borrower in connection with the
advance.
Section 2.04 Procedures for Advances. In the case of advances of Ratable
Loans, Borrower shall submit to Administrative Agent a request for each advance,
stating the amount requested and the expected purpose for which such advance is
to be used, no later than 11:00 a.m. (New York time) on the date, in the case of
advances of Base Rate Loans, which is one (1) Banking Day, and, in the case of
advances of LIBOR Loans, which is three (3) Banking Days prior to the date the
advance is to be made. In the case of advances of Bid Rate Loans, Borrower shall
submit a Bid Rate Quote Request at the time specified in Section 2.02,
accompanied by a statement, in general terms, of the expected purpose for which
such advance is to be used. Administrative Agent, upon its receipt and approval
of the request for advance, will so
22
notify the Banks either by telephone or by facsimile. Not later than 10:00 a.m.
(New York time) on the date of each advance, each Bank (in the case of Ratable
Loans) or the applicable Bank(s) (in the case of Bid Rate Loans) shall, through
its Applicable Lending Office and subject to the conditions of this Agreement,
make the amount to be advanced by it on such day available to Administrative
Agent, at Administrative Agent's Office and in immediately available funds for
the account of Borrower. The amount so received by Administrative Agent shall,
subject to the conditions of this Agreement, be made available to Borrower by
Administrative Agent by federal funds transfer to such bank account of Borrower
as Borrower may designate in writing to Administrative Agent.
Section 2.05 Interest Periods; Renewals. In the case of the LIBOR Loans,
Borrower shall select an Interest Period of any duration in accordance with the
definition of Interest Period in Section 1.01, subject to the following
limitations: (1) no Interest Period may extend beyond the Maturity Date; (2) if
an Interest Period would end on a day which is not a Banking Day, such Interest
Period shall be extended to the next Banking Day, unless such Banking Day would
fall in the next calendar month, in which event such Interest Period shall end
on the immediately preceding Banking Day; and (3) only eight (8) discrete
segments of a Bank's Ratable Loan bearing interest at a LIBOR Interest Rate for
a designated Interest Period pursuant to a particular Election, Conversion or
Continuation, may be outstanding at any one time (each such segment of each
Bank's Ratable Loan corresponding to a proportionate segment of each of the
other Banks' Ratable Loans, barring a conversion or suspension of the LIBOR
Interest Rate by one or more, but not all, Banks, or the failure of one or more,
but not all, Banks to make an advance).
Upon notice to Administrative Agent as provided in Section 2.13, Borrower
may Continue any LIBOR Loan on the last day of the Interest Period for such
LIBOR Loan for the same or different duration in accordance with the limitations
provided above.
Section 2.06 Interest. Borrower shall pay interest to Administrative Agent
for the account of the applicable Bank on the outstanding and unpaid principal
amount of the Loans, at a rate per annum as follows: (1) for Base Rate Loans at
a rate equal to the Base Rate plus the Applicable Margin; (2) for LIBOR Loans at
a rate equal to the applicable LIBOR Interest Rate plus the Applicable Margin;
and (3) for Bid Rate Loans at a rate equal to the applicable LIBOR Bid Rate. Any
principal amount not paid when due (when scheduled, at acceleration or
otherwise) shall bear interest thereafter, payable on demand, at the Default
Rate.
The interest rate on Base Rate Loans shall change when the Base Rate
changes. Interest on Base Rate Loans, LIBOR Loans and Bid Rate Loans shall not
exceed the maximum amount permitted under applicable law. Interest shall be
calculated for the actual number of days elapsed on the basis of, in the case of
Base Rate Loans, LIBOR Loans and Bid Rate Loans, three hundred sixty (360) days.
23
Accrued interest shall be due and payable in arrears (x) in the case of
both Base Rate Loans and LIBOR Loans, on the first Banking Day of each calendar
month and (y) in the case of Bid Rate Loans, at the expiration of the Interest
Period applicable thereto; provided, however, that interest accruing at the
Default Rate shall be due and payable on demand.
Section 2.07 Fees. (a) During periods when Borrower's unsecured and
unsubordinated long term indebtedness is rated below BBB- by S&P or below Baa3
by ▇▇▇▇▇'▇ or unrated, Borrower shall pay to Administrative Agent for the
account of each Bank a commitment fee computed on the daily unused Loan
Commitment of such Bank at a rate per annum equal to the daily Commitment Fee
Rate, calculated on the basis of a year of three hundred sixty (360) days for
the actual number of days elapsed. The accrued commitment fee shall be due and
payable in arrears on the first day of January, April, July and October of each
year, commencing on the first such date after the Closing Date, and upon the
Maturity Date (as the same may be accelerated) or earlier termination of the
Loan Commitments;
(b) During periods when Borrower's unsecured and unsubordinated long term
indebtedness is rated BBB- or higher by S&P and Baa3 or higher by ▇▇▇▇▇'▇,
Borrower shall pay to Administrative Agent for the account of each Bank a
facility fee computed on the daily Loan Commitment of such Bank (irrespective of
usage) at a rate per annum equal to the daily Facility Fee Rate, calculated on
the basis of a year of three hundred sixty (360) days for the actual number of
days elapsed. The accrued facility fee shall be due and payable in arrears on
the first day of January, April, July and October of each year, commencing on
the first such date after the Closing Date, and upon the Maturity Date (as the
same may be accelerated) or earlier termination of the Loan Commitments.
Section 2.08 Notes. The Ratable Loan made by each Bank under this Agreement
shall be evidenced by, and repaid with interest in accordance with, a promissory
note of Borrower in the form of EXHIBIT B duly completed and executed by
Borrower, in the principal amount equal to such Bank's Loan Commitment, payable
to such Bank for the account of its Applicable Lending Office (each such note,
as the same may hereafter be amended, modified, extended, severed, assigned,
substituted, renewed or restated from time to time, including any substitute
note pursuant to Section 3.07, 10.18 or 12.05, a "Ratable Loan Note"). The Bid
Rate Loans of the Banks shall be evidenced by a single global promissory note of
Borrower in the form of EXHIBIT C, duly completed and executed by Borrower, in
the principal amount of Thirty Seven Million Five Hundred Thousand Dollars
($37,500,000), payable to Administrative Agent for the account of the respective
Banks making Bid Rate Loans (such note, as the same may hereafter be amended,
modified, extended, severed, assigned, substituted, renewed or restated from
time to time, the "Bid Rate Loan Note"). A particular Bank's Ratable Loan Note,
together with its interest, if any, in the Bid Rate Loan Note, are referred to
collectively in this Agreement as such Bank's "Note"; all such Ratable Loan
Notes and interests are referred to collectively in this Agreement as the
"Notes". The Ratable Loan
24
Notes shall mature, and all outstanding principal and accrued interest and other
sums thereunder shall be paid in full, on the Maturity Date, as the same may be
accelerated. The outstanding principal amount of each Bid Rate Loan evidenced by
the Bid Rate Loan Note, and all accrued interest and other sums with respect
thereto, shall become due and payable to the Bank making such Bid Rate Loan at
the earlier of the expiration of the Interest Period applicable thereto or the
Maturity Date, as the same may be accelerated.
Each Bank is hereby authorized by Borrower to endorse on the schedule
attached to the Ratable Loan Note held by it, the amount of each advance, and
each payment of principal received by such Bank for the account of its
Applicable Lending Office(s) on account of its Ratable Loan, which endorsement
shall be conclusive so long as made on a reasonable basis as to the outstanding
balance of the Ratable Loan made by such Bank. Administrative Agent is hereby
authorized by Borrower to endorse on the schedule attached to the Bid Rate Loan
Note the amount of each Bid Rate Loan, the name of the Bank making the same, the
date of the advance thereof, the interest rate applicable thereto and the
expiration of the Interest Period applicable thereto (i.e., the maturity date
thereof). The failure by Administrative Agent or any Bank to make such notations
with respect to the Loans or each advance or payment shall not limit or
otherwise affect the obligations of Borrower under this Agreement or the Notes.
Section 2.09 Prepayments. Without prepayment premium or penalty but subject
to Section 3.05, Borrower may, upon at least one (1) Banking Day's notice to
Administrative Agent in the case of Base Rate Loans, and at least three (3)
Banking Days' notice to Administrative Agent in the case of LIBOR Loans, prepay
the Ratable Loans in whole or, with respect to Base Rate Loans only, in part,
provided that (1) any partial prepayment under this Section shall be in integral
multiples of One Million Dollars ($1,000,000); and (2) each prepayment under
this Section shall include all interest accrued on the amount of principal
prepaid to (but excluding) the date of prepayment, provided, however, that, in
the case of partial prepayments, payment of the interest on the principal amount
prepaid may, at Administrative Agent's option, be deferred until the next
regularly scheduled interest payment date.
Section 2.10 Method of Payment; Certain Consequences of Delinquent Bank
Status. Borrower shall make each payment under this Agreement and under the
Notes not later than 12:00 Noon (New York time) on the date when due in Dollars
to Administrative Agent at Administrative Agent's Office in immediately
available funds. Administrative Agent will thereafter, on the day of its receipt
of each such payment, cause to be distributed to each Bank (1) such Bank's
appropriate share (based upon the respective outstanding principal amounts and
interest due under the Notes of the Banks) of the payments of principal and
interest in like funds for the account of such Bank's Applicable Lending Office;
and (2) fees payable to such Bank in accordance with the terms of this
Agreement. Borrower hereby authorizes Administrative Agent and the Banks, if and
to the extent payment by Borrower is not made when due under this Agreement or
under the Notes, to charge from time to time
25
against any account Borrower maintains with Administrative Agent or any Bank any
amount so due to Administrative Agent and/or the Banks.
Except to the extent provided in this Agreement, whenever any payment to be
made under this Agreement or under the Notes is due on any day other than a
Banking Day, such payment shall be made on the next succeeding Banking Day, and
such extension of time shall in such case be included in the computation of the
payment of interest and other fees, as the case may be.
Notwithstanding the foregoing provisions of this Section, (i)
Administrative Agent shall make no payment to a Delinquent Bank until the
Non-Delinquent Banks have been paid in full all outstanding principal, accrued
and unpaid interest and any other sums due and owing to them under the Loan
Documents, it being understood that payments of interest on account of the
outstanding principal amount of the Note held by the Delinquent Bank shall be
held by Administrative Agent in a non-interest bearing account and not
distributed to the Delinquent Bank until such time as all principal, interest
and other sums due to the Non-Delinquent Banks have been paid in full; (ii) any
payments (other than interest, as provided in clause (i) above) which would
otherwise be due a Delinquent Bank shall be distributed to the Non-Delinquent
Banks until such time as all principal, interest and other sums due to the
Non-Delinquent Banks have been paid in full (except that any such amounts
otherwise due a Delinquent Bank received by Administrative Agent during an
Election Period shall be retained by Administrative Agent until the expiration
of the Election Period and either paid to the Delinquent Bank, if the
delinquency is cured, or paid to the Non-Delinquent Banks, if the delinquency is
not cured); and (iii) Administrative Agent shall deduct, from amounts due (or,
in the case of a Delinquent Bank, amounts that would otherwise be payable to
such Delinquent Bank being held by Administrative Agent pursuant to clause (i)
above) a Bank in default under its obligations under Section 10.05, the amount
owing by such Bank pursuant to said Section 10.05 and pay the amount so deducted
to itself, the other Banks, or such other party as is entitled to such amount,
as applicable.
Section 2.11 Elections, Conversions or Continuation of Loans. Subject to
the provisions of Article III and Sections 2.05 and 2.12, Borrower shall have
the right to Elect to have all or a portion of any advance of the Ratable Loans
be LIBOR Loans, to Convert Base Rate Loans into LIBOR Loans, to Convert LIBOR
Loans into Base Rate Loans, or to Continue LIBOR Loans as LIBOR Loans, at any
time or from time to time, provided that: (1) Borrower shall give Administrative
Agent notice of each such Election, Conversion or Continuation as provided in
Section 2.13; and (2) a LIBOR Loan may be Continued only on the last day of the
applicable Interest Period for such LIBOR Loan. Except as otherwise provided in
this Agreement, each Election, Continuation and Conversion shall be applicable
to each Bank's Ratable Loan in accordance with its Pro Rata Share.
Section 2.12 Minimum Amounts. With respect to the Ratable Loans as a whole,
each Election and each Conversion shall be in an amount at least equal to One
26
Million Dollars ($1,000,000) and in integral multiples of One Hundred Thousand
Dollars ($100,000).
Section 2.13 Certain Notices Regarding Elections, Conversions and
Continuations of Loans. Notices by Borrower to Administrative Agent of
Elections, Conversions and Continuations of LIBOR Loans shall be irrevocable and
shall be effective only if received by Administrative Agent not later than 11:00
a.m. (New York time) on the number of Banking Days prior to the date of the
relevant Election, Conversion or Continuation specified below:
Number of
Notice Banking Days Prior
------ ------------------
Conversions into Base Rate Loans one (1)
Elections of, Conversions into or
Continuations as, LIBOR Loans three (3)
Promptly following its receipt of any such notice, Administrative Agent shall so
advise the Banks either by telephone or by facsimile. Each such notice of
Election shall specify the portion of the amount of the advance that is to be
LIBOR Loans (subject to Section 2.12) and the duration of the Interest Period
applicable thereto (subject to Section 2.05); each such notice of Conversion
shall specify the LIBOR Loans or Base Rate Loans to be Converted; and each such
notice of Conversion or Continuation shall specify the date of Conversion or
Continuation (which shall be a Banking Day), the amount thereof (subject to
Section 2.12) and the duration of the Interest Period applicable thereto
(subject to Section 2.05). In the event that Borrower fails to Elect to have any
portion of an advance of the Ratable Loans be LIBOR Loans, the entire amount of
such advance shall constitute Base Rate Loans. So long as there exists no Event
of Default, in the event that Borrower fails to Continue LIBOR Loans within the
time period and as otherwise provided in this Section, such LIBOR Loans will
automatically become LIBOR Loans with an Interest Period of one (1) month on the
last day of the then current applicable Interest Period for such LIBOR Loans.
Notwithstanding anything to the contrary contained herein, upon the occurrence
of an Event of Default Borrower shall no longer be entitled to Convert Base Rate
Loans into LIBOR Loans or to Continue LIBOR Loans as LIBOR Loans and all then
existing LIBOR Loans shall be automatically Converted into Base Rate Loans on
the last day of the then current applicable Interest Period(s) for such LIBOR
Loans.
Section 2.14 Late Payment Premium. Borrower shall pay to Administrative
Agent for the account of the Banks a late payment premium in the amount of 4% of
any payments of principal or interest under the Loans made more than ten (10)
days after the due date thereof, which shall be due with any such late payment.
Section 2.15 Changes of Commitments. (a) At any time, Borrower shall have
the right, without premium or penalty, to terminate any unused Loan
27
Commitments existing as of the date of such termination, in whole or in part,
from time to time, provided that: (1) Borrower shall give notice of each such
termination to Administrative Agent no later then 10:00 a.m. (New York time) on
the date which is fifteen (15) Banking Days prior to the effectiveness of such
termination; (2) the Loan Commitments of each of the Banks must be terminated
ratably and simultaneously with those of the other Banks; and (3) each partial
termination of the Loan Commitments as a whole (and corresponding reduction of
the Total Loan Commitment) shall be in an integral multiple of One Million
Dollars ($1,000,000).
(b) The Loan Commitments, to the extent terminated, may not be reinstated.
Section 2.16 Letters of Credit. (a) Borrower, by notice to Administrative
Agent, may request, in lieu of advances of proceeds of the Ratable Loans, that
Administrative Agent issue unconditional, irrevocable standby letters of credit
(each, a "Letter of Credit") for the account of Borrower, payable by sight
drafts, for such beneficiaries and with such other terms as Borrower shall
specify. Promptly upon issuance of a Letter of Credit, Administrative Agent
shall notify each of the Banks by telephone or by facsimile.
(b) The amount of any such Letter of Credit shall be limited to the lesser
of (1) Twenty-Five Million Dollars ($25,000,000) less the amount of all other
Letters of Credit then issued and outstanding or (2) the Available Total Loan
Commitment, it being understood that the amount of each Letter of Credit issued
and outstanding shall effect a reduction, by an equal amount, of the Available
Total Loan Commitment as provided in Section 2.01(b) (such reduction to be
allocated to each Bank's Ratable Loan ratably in accordance with the Banks'
respective Pro Rata Shares).
(c) The amount of each Letter of Credit shall be further subject to the
conditions and limitations applicable to amounts of advances set forth in
Section 2.03 and the procedures for the issuance of each Letter of Credit shall
be the same as the procedures applicable to the making of advances as set forth
in the first sentence of Section 2.04.
(d) Administrative Agent's issuance of each Letter of Credit shall be
subject to Borrower's satisfaction of all conditions precedent to its
entitlement to an advance of proceeds of the Loans.
(e) Each Letter of Credit shall expire no later than the earlier of (x) one
(1) month prior to the Maturity Date or (y) one (1) year after the date of its
issuance.
(f) In connection with, and as a further condition to the issuance of, each
Letter of Credit, Borrower shall execute and deliver to Administrative Agent an
application for the Letter of Credit on Administrative Agent's standard form
therefor,
28
together with such other documents, opinions and assurances as Administrative
Agent shall reasonably require.
(g) In connection with each Letter of Credit, Borrower hereby covenants to
pay to Administrative Agent the following fees, each payable quarterly in
arrears (on the first Banking Day of each calendar quarter following the
issuance of the Letter of Credit): (i) a fee, payable to Administrative Agent
for the account of the Banks, computed daily on the amount of the Letter of
Credit issued and outstanding at a rate per annum equal to the "Banks' L/C Fee
Rate" (as hereinafter defined) and (ii) a fee, payable to Administrative Agent
for its own account, computed daily on the amount of the Letter of Credit issued
and outstanding at a rate per annum of 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 LIBOR Loans less 0.125% per annum. It is understood and
agreed that the last installment of the fees provided for in this paragraph (g)
with respect to any particular Letter of Credit shall be due and payable on the
first day of the calendar quarter following the return, undrawn, or
cancellation, of such Letter of Credit.
(h) The parties hereto acknowledge and agree that, immediately upon notice
from Administrative Agent of any drawing under a Letter of Credit, each Bank
shall, notwithstanding the existence of a Default or Event of Default or the
non-satisfaction of any conditions precedent to the making of an advance of the
Loans, advance proceeds of its Ratable Loan, in an amount equal to its Pro Rata
Share of such drawing, which advance shall be made to Administrative Agent to
reimburse Administrative Agent, for its own account, for such drawing. Each of
the Banks further acknowledges that its obligation to fund its Pro Rata Share of
drawings under Letters of Credit as aforesaid shall survive the Banks'
termination of this Agreement or enforcement of remedies hereunder or under the
other Loan Documents.
(i) Borrower agrees, upon the occurrence of an Event of Default and at the
request of Administrative Agent, (x) to deposit with Administrative Agent cash
collateral in the amount of all the outstanding Letters of Credit, which cash
collateral shall be held by Administrative Agent as security for Borrower's
obligations in connection with the Letters of Credit and (y) to execute and
deliver to Administrative Agent such documents as Administrative Agent requests
to confirm and perfect the assignment of such cash collateral to Administrative
Agent.
ARTICLE III.
YIELD PROTECTION; ILLEGALITY; ETC.
Section 3.01 Additional Costs. Borrower shall pay to Administrative Agent
(for the account of the applicable Bank(s)) from time to time on demand such
amounts as any Bank may reasonably determine to be necessary to compensate it
for any increased costs which such Bank determines are attributable to its
making or maintaining a LIBOR Loan or a Bid Rate Loan, or its obligation to make
or
29
maintain a LIBOR Loan or a Bid Rate Loan, or its obligation to Convert a Base
Rate Loan to a LIBOR Loan hereunder, or any reduction in any amount receivable
by such Bank hereunder in respect of its LIBOR Loan or Bid Rate Loan(s) or such
obligations (such increases in costs and reductions in amounts receivable being
herein called "Additional Costs"), in each case resulting from any Regulatory
Change which:
(1) changes the basis of taxation of any amounts payable to such Bank
under this Agreement or the Notes in respect of any such LIBOR Loan or Bid
Rate Loan (other than (i) changes in the rate of general corporate,
franchise, branch profit, net income or other income tax imposed on such
Bank or its Applicable Lending Office or (ii) a tax described in Section
10.13); or
(2) (other than to the extent the LIBOR Reserve Requirement is taken
into account in determining the LIBOR Rate at the commencement of the
applicable Interest Period) imposes or modifies any reserve, special
deposit, deposit insurance or assessment, minimum capital, capital ratio or
similar requirements relating to any extensions of credit or other assets
of, or any deposits with or other liabilities of, such Bank (including any
LIBOR Loan or Bid Rate Loan or any deposits referred to in the definition
of "LIBOR Interest Rate" in Section 1.01), or any commitment of such Bank
(including such Bank's Loan Commitment hereunder); or
(3) imposes any other condition (unrelated to the basis of taxation
referred to in paragraph (1) above) affecting this Agreement or the Notes
(or any of such extensions of credit or liabilities).
Without limiting the effect of the provisions of the first paragraph of
this Section, in the event that, by reason of any Regulatory Change, any Bank
either (1) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits of other liabilities of
such Bank which includes deposits by reference to which the LIBOR Interest Rate
is determined as provided in this Agreement or a category of extensions of
credit or other assets of such Bank which includes loans based on the LIBOR
Interest Rate or (2) becomes subject to restrictions on the amount of such a
category of liabilities or assets which it may hold, then, if such Bank so
elects by notice to Borrower (with a copy to Administrative Agent), the
obligation of such Bank to permit Elections of, to Continue, or to Convert Base
Rate Loans into, LIBOR Loans shall be suspended (in which case the provisions of
Section 3.04 shall be applicable) until such Regulatory Change ceases to be in
effect.
Determinations and allocations by a Bank for purposes of this Section of
the effect of any Regulatory Change pursuant to the first or second paragraph of
this Section, on its costs or rate of return of making or maintaining its Loan
or portions thereof or on amounts receivable by it in respect of its Loan or
portions thereof, and the amounts required to compensate such Bank under this
Section, shall be included in a
30
calculation of such amounts given to Borrower and shall be conclusive so long as
made on a reasonable basis.
Section 3.02 Limitation on Types of Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of the LIBOR Interest Rate
for any Interest Period:
(1) Administrative Agent reasonably determines (which determination
shall be conclusive) that quotations of interest rates for the relevant
deposits referred to in the definition of "LIBOR Interest Rate" in Section
1.01 are not being provided in the relevant amounts or for the relevant
maturities for purposes of determining rates of interest for the LIBOR
Loans or Bid Rate Loans as provided in this Agreement; or
(2) a Bank reasonably determines (which determination shall be
conclusive) and promptly notifies Administrative Agent that the relevant
rates of interest referred to in the definition of "LIBOR Interest Rate" in
Section 1.01 upon the basis of which the rate of interest for LIBOR Loans
or Bid Rate Loans for such Interest Period is to be determined do not
adequately cover the cost to such Bank of making or maintaining such LIBOR
Loan or Bid Rate Loan for such Interest Period;
then Administrative Agent shall give Borrower prompt notice thereof, and so long
as such condition remains in effect, the Banks (or, in the case of the
circumstances described in clause (2) above, the affected Bank) shall be under
no obligation to permit Elections of LIBOR Loans, to Convert Base Rate Loans
into LIBOR Loans or to Continue LIBOR Loans and Borrower shall, on the last
day(s) of the then current Interest Period(s) for the affected outstanding LIBOR
Loans or Bid Rate Loans, either (x) prepay the affected LIBOR Loans or Bid Rate
Loans or (y) Convert the affected LIBOR Loans into Base Rate Loans in accordance
with Section 2.11 or convert the rate of interest under the affected Bid Rate
Loans to the rate applicable to Base Rate Loans by following the same procedures
as are applicable for Conversions into Base Rate Loans set forth in Section
2.11.
Section 3.03 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Bank or its Applicable
Lending Office to honor its obligation to make or maintain a LIBOR Loan or Bid
Rate Loan hereunder, to allow Elections of a LIBOR Loan or to Convert a Base
Rate Loan into a LIBOR Loan, then such Bank shall promptly notify Administrative
Agent and Borrower thereof and such Bank's obligation to make or maintain a
LIBOR Loan or Bid Rate Loan, or to permit Elections of, to Continue, or to
Convert its Base Rate Loan into, a LIBOR Loan shall be suspended (in which case
the provisions of Section 3.04 shall be applicable) until such time as such Bank
may again make and maintain a LIBOR Loan or Bid Rate Loan.
31
Section 3.04 Treatment of Affected Loans. If the obligations of any Bank to
make or maintain a LIBOR Loan or a Bid Rate Loan, or to permit an Election of a
LIBOR Loan, to Continue its LIBOR Loan, or to Convert its Base Rate Loan into a
LIBOR Loan, are suspended pursuant to Sections 3.01 or 3.03 (each LIBOR Loan or
Bid Rate Loan so affected being herein called an "Affected Loan"), such Bank's
Affected Loan shall be automatically Converted into a Base Rate Loan (or, in the
case of an Affected Loan that is a Bid Rate Loan, the interest rate thereon
shall be converted to the rate applicable to Base Rate Loans) on the last day of
the then current Interest Period for the Affected Loan (or, in the case of a
Conversion or conversion required by Sections 3.01 or 3.03, on such earlier date
as such Bank may specify to Borrower).
To the extent that such Bank's Affected Loan has been so Converted (or the
interest rate thereon so converted), all payments and prepayments of principal
which would otherwise be applied to such Bank's Affected Loan shall be applied
instead to its Base Rate Loan (or to its Bid Rate Loan bearing interest at the
converted rate) and such Bank shall have no obligation to Convert its Base Rate
Loan into a LIBOR Loan.
Section 3.05 Certain Compensation. Borrower shall pay to Administrative
Agent for the account of the applicable Bank, upon the request of such Bank
through Administrative Agent, (which request shall include a calculation of the
amount(s) due) such amount or amounts as shall be sufficient (in the reasonable
opinion of such Bank) to compensate it for any loss, cost or expense actually
incurred which such Bank reasonably determines is attributable to:
(1) any payment or prepayment of a LIBOR Loan or Bid Rate Loan made by
such Bank, or any Conversion of a LIBOR Loan (or conversion of the rate of
interest on a Bid Rate Loan) made by such Bank, in any such case on a date
other than the last day of an applicable Interest Period, whether by reason
of acceleration or otherwise; or
(2) any failure by Borrower for any reason to Convert or Continue a
LIBOR Loan to be Converted or Continued by such Bank on the date specified
therefor in the relevant notice under Section 2.13; or
(3) any failure by Borrower to borrow (or to qualify for a borrowing
of) a LIBOR Loan or Bid Rate Loan which would otherwise be made hereunder
on the date specified in the relevant Election notice under Section 2.13 or
Bid Rate Quote acceptance under Section 2.02(e) given or submitted by
Borrower.
Without limiting the foregoing, such compensation shall include an amount
equal to the present value (using as the discount rate an interest rate equal to
the rate determined under (2) below) of the excess, if any, of (1) the amount of
interest which otherwise would have accrued on the principal amount so paid,
prepaid, Converted or Continued (or not Converted, Continued or borrowed) for
the period from the date of
32
such payment, prepayment, Conversion or Continuation (or failure to Convert,
Continue or borrow) to the last day of the then current applicable Interest
Period (or, in the case of a failure to Convert, Continue or borrow, to the last
day of the applicable Interest Period which would have commenced on the date
specified therefor in the relevant notice) at the applicable rate of interest
for the LIBOR Loan or Bid Rate Loan provided for herein, over (2) the amount of
interest (as reasonably determined by such Bank) based upon the interest rate
which such Bank would have bid in the London interbank market for Dollar
deposits, for amounts comparable to such principal amount and maturities
comparable to such period. A determination of any Bank as to the amounts payable
pursuant to this Section shall be conclusive so long as made on a reasonable
basis.
Section 3.06 Capital Adequacy. If any Bank shall have reasonably determined
that, after the date hereof, the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or any change in
the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such Governmental Authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on capital of such Bank (or its Parent) as a consequence of such
Bank's obligations hereunder to a level below that which such Bank (or its
Parent) could have achieved but for such adoption, change, request or directive
(taking into consideration its policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time, within
fifteen (15) days after demand by such Bank (with a copy to Administrative
Agent), Borrower shall pay to such Bank such additional amount or amounts as
will compensate such Bank (or its Parent) for such reduction. A certificate of
any Bank claiming compensation under this Section, setting forth in reasonable
detail the basis therefor, shall be conclusive so long as made on a reasonable
basis.
Section 3.07 Substitution of Banks. If any Bank (an "Affected Bank") (i)
makes demand upon Borrower for (or if Borrower is otherwise required to pay)
Additional Costs pursuant to Section 3.01 or (ii) is unable to make or maintain
a LIBOR Loan or Bid Rate Loan as a result of a condition described in Section
3.03 or clause (2) of Section 3.02, Borrower may, within ninety (90) days of
receipt of such demand or notice (or the occurrence of such other event causing
Borrower to be required to pay Additional Costs or causing said Section 3.03 or
clause (2) of Section 3.02 to be applicable), as the case may be, give written
notice (a "Replacement Notice") to Administrative Agent and to each Bank of
Borrower's intention either (x) to prepay in full the affected Bank's Note and
to terminate the Affected Bank's entire Loan Commitment or (y) to replace the
Affected Bank with another financial institution (the "Replacement Bank")
designated in such Replacement Notice.
In the event Borrower opts to give the notice provided for in clause (x)
above, and if the Affected Bank shall not agree within thirty (30) days of its
receipt thereof to waive the payment of the Additional Costs in question or the
effect of the
33
circumstances described in Section 3.03 or clause (2) of Section 3.02, then, so
long as no Default or Event of Default shall exist, Borrower may
(notwithstanding the provisions of clause (2) of Section 2.15(a)) terminate the
Affected Bank's entire Loan Commitment, provided that in connection therewith it
pays to the Affected Bank all outstanding principal and accrued and unpaid
interest under the Affected Bank's Note, together with all other amounts, if
any, due from Borrower to the Affected Bank, including all amounts properly
demanded and unreimbursed under Sections 3.01 and 3.05.
In the event Borrower opts to give the notice provided for in clause (y)
above, and if (i) Administrative Agent shall, within thirty (30) days of its
receipt of the Replacement Notice, notify Borrower and each Bank in writing that
the Replacement Bank is reasonably satisfactory to Administrative Agent and (ii)
the Affected Bank shall not, prior to the end of such thirty (30)-day period,
agree to waive the payment of the Additional Costs in question or the effect of
the circumstances described in Section 3.03 or clause (2) of Section 3.02, then
the Affected Bank shall, so long as no Default or Event of Default shall exist,
assign its Note and all of its rights and obligations under this Agreement to
the Replacement Bank, and the Replacement Bank shall assume all of the Affected
Bank's rights and obligations, pursuant to an agreement, substantially in the
form of an Assignment and Assumption Agreement, executed by the Affected Bank
and the Replacement Bank. In connection with such assignment and assumption, the
Replacement Bank shall pay to the Affected Bank an amount equal to the
outstanding principal amount under the Affected Bank's Note plus all interest
accrued thereon, plus all other amounts, if any (other than the Additional Costs
in question), then due and payable to the Affected Bank; provided, however, that
prior to or simultaneously with any such assignment and assumption, Borrower
shall have paid to such Affected Bank all amounts properly demanded and
unreimbursed under Sections 3.01 and 3.05. Upon the effective date of such
assignment and assumption, the Replacement Bank shall become a Bank Party to
this Agreement and shall have all the rights and obligations of a Bank as set
forth in such Assignment and Assumption Agreement, and the Affected Bank shall
be released from its obligations hereunder, and no further consent or action by
any party shall be required. Upon the consummation of any assignment pursuant to
this Section, a substitute Ratable Loan Note shall be issued to the Replacement
Bank by Borrower, in exchange for the return of the Affected Bank's Ratable Loan
Note. The obligations evidenced by such substitute note shall constitute
"Obligations" for all purposes of this Agreement and the other Loan Documents.
If the Replacement Bank is not incorporated under the laws of the United States
of America or a state thereof, it shall, prior to the first date on which
interest or fees are payable hereunder for its account, deliver to Borrower and
Administrative Agent certification as to exemption from deduction or withholding
of any United States federal income taxes in accordance with Section 10.13. Each
Replacement Bank shall be deemed to have made the representations contained in,
and shall be bound by the provisions of, Section 10.13.
Borrower, Administrative Agent and the Banks shall execute such
modifications to the Loan Documents as shall be reasonably required in
connection with and to effectuate the foregoing.
34
Section 3.08 "Bank" to Include Participants. For purposes of Sections 3.01
through 3.06 and of the definition of "Additional Costs" in Section 1.01, the
term "Bank" shall, at each Bank's option, be deemed to include such Bank's
present and future Participants in its Loan to the extent of each such
Participant's actual Additional Costs or other losses, costs or expenses payable
pursuant to this Article III.
ARTICLE IV.
CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to the Loans. The obligations of the
Banks hereunder and the obligation of each Bank to make the Initial Advance are
subject to the condition precedent that Administrative Agent shall have received
on or before the Closing Date (other than with respect to paragraph 13 below,
which shall be required prior to the Initial Advance) each of the following
documents, and each of the following requirements shall have been fulfilled:
(1) Fees and Expenses. The payment of all fees and expenses incurred
by Administrative Agent (including, without limitation, the reasonable fees
and expenses of legal counsel not to exceed $50,000);
(2) Notes. The Ratable Loan Note for UBS and the Bid Rate Loan Note
for Administrative Agent, each duly executed by Borrower;
(3) Financial Statements. Audited Borrower's Consolidated Financial
Statements as of and for the four month stub period ended December 31,
1997;
(4) Certificates of Incorporation. A copy of the articles of
incorporation of Borrower, certified by the appropriate Secretary of State
or equivalent state official;
(5) Bylaws. A copy of the by-laws of Borrower, including all
amendments thereto, certified by the Secretary or an Assistant Secretary of
Borrower as being in full force and effect on the Closing Date;
(6) Good Standing Certificates. A certified copy of a certificate from
the Secretary of State or equivalent state official of the state where
Borrower is organized, dated as of the most recent practicable date,
showing the good standing of Borrower;
(7) Foreign Qualification Certificate. A certified copy of a
certificate from the Secretary of State or equivalent state official of the
35
state where Borrower maintains its principal place of business, dated as of
the most recent practicable date, showing the qualification to transact
business in such state as a foreign corporation for Borrower;
(8) Resolutions. A copy of a resolution or resolutions adopted by the
Board of Directors of Borrower, certified by the Secretary or an Assistant
Secretary of Borrower as being in full force and effect on the Closing
Date, authorizing the Loans provided for herein and the execution, delivery
and performance of the Loan Documents to be executed and delivered by
Borrower hereunder;
(9) Incumbency Certificate. A certificate, signed by the Secretary or
an Assistant Secretary of Borrower and dated the Closing Date, as to the
incumbency, and containing the specimen signature or signatures, of the
Persons authorized to execute and deliver the Loan Documents to be executed
and delivered by Borrower hereunder;
(10) Solvency Certificate. A Solvency Certificate, duly executed, from
Borrower;
(11) Opinion of Counsel for Borrower. A favorable opinion, dated the
Closing Date, from counsel for Borrower, as to such matters as
Administrative Agent may reasonably request;
(12) Authorization Letter. The Authorization Letter, duly executed by
Borrower;
(13) Request for Advance. A request for an advance in accordance with
Section 2.04;
(14) Certificate. The following statements shall be true and
Administrative Agent shall have received a certificate dated the Closing
Date signed by a duly authorized signatory of Borrower stating, to the best
of the certifying party's knowledge, the following:
(a) All representations and warranties contained in this
Agreement and in each of the other Loan Documents are true and correct
on and as of the Closing Date as though made on and as of such date,
and
(b) No Default or Event of Default has occurred and is
continuing, or could result from the transactions contemplated by this
Agreement and the other Loan Documents;
36
(1) Compliance Certificate. A certificate of the sort
required by paragraph (3) of Section 6.09;
(2) Insurance. Evidence of the insurance referred to in
Section 5.17; and
(3) Additional Materials. Such other approvals, documents,
instruments or opinions as the Banks may reasonably request.
Section 4.02 Conditions Precedent to Advances After the Initial Advance.
The obligation of each Bank to make advances of the Loans subsequent to the
Initial Advance shall be subject to satisfaction of the following conditions
precedent:
(1) All conditions of Section 4.01 to the extent not satisfied at the
Initial Advance, shall have been satisfied as of the date of the advance;
(2) No Default or Event of Default shall have occurred and be
continuing as of the date of the advance;
(3) Each of the representations and warranties contained in this
Agreement and in each of the other Loan Documents shall be true and correct
as of the date of the advance; and
(4) Administrative Agent shall have received a request for an advance
in accordance with Sections 2.03 and 2.04.
Section 4.03 Deemed Representations. Each request by Borrower for, and
acceptance by Borrower of, an advance of proceeds of the Loans shall constitute
a representation and warranty by Borrower that, as of both the date of such
request and the date of the advance (1) no Default or Event of Default has
occurred and is continuing, and (2) each representation or warranty contained in
this Agreement or the other Loan Documents is true and correct.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Administrative Agent and each Bank as
follows:
Section 5.01 Existence. Borrower is a corporation duly organized and
existing under the laws of the State of Maryland which has elected status as a
real estate investment trust under the Code, with its principal place of
business in the State of
37
California, is duly qualified as a foreign corporation and properly licensed and
in good standing in each jurisdiction (other than the jurisdictions set forth in
EXHIBIT H-1 in which Borrower is diligently pursuing such qualification and good
standing) where the failure to qualify or be licensed would constitute a
Material Adverse Change. The capital stock of Borrower is listed on the Nasdaq
National Market. Each of its Consolidated Businesses is duly organized, validly
existing and in good standing under the laws of its jurisdiction of organization
and has all requisite authority to conduct its business in each jurisdiction in
which it owns property or conducts business, except where the failure to be so
qualified or to obtain such authority would not constitute a Material Adverse
Change.
Section 5.02 Corporate Powers. The execution, delivery and performance of
the Loan Documents required to be delivered by Borrower hereunder are within its
corporate power, have been duly authorized by all requisite action, and are not
in conflict with the terms of any organizational instruments of such entity, or
any instrument or agreement to which Borrower is a party or by which Borrower or
any of its assets may be bound or affected.
Section 5.03 Power of Officers. The officers of Borrower executing the Loan
Documents required to be delivered by it hereunder have been duly elected or
appointed and were fully authorized to execute the same at the time each such
Loan Document was executed.
Section 5.04 Power and Authority; No Conflicts; Compliance With Laws. The
execution and delivery of, and the performance of the obligations required to be
performed by Borrower under, the Loan Documents do not and will not (a) violate
any provision of, or require any filing, registration, consent or approval
under, any Law (including, without limitation, Regulation U), order, writ,
judgment, injunction, decree, determination or award presently in effect having
applicability to it, (b) result in a breach of or constitute a default under or
require any consent under any indenture or loan or credit agreement or any other
agreement, lease or instrument to which it may be a party or by which it or its
properties may be bound or affected except for consents which have been
obtained, (c) result in, or require, the creation or imposition of any Lien,
upon or with respect to any of its properties now owned or hereafter acquired,
or (d) cause it to be in default under any such Law, order, writ, judgment,
injunction, decree, determination or award or any such indenture, agreement,
lease or instrument; to the best of its knowledge, Borrower is in material
compliance with all Laws applicable to it and its properties.
Section 5.05 Legally Enforceable Agreements. Each Loan Document is a legal,
valid and binding obligation of Borrower, enforceable in accordance with its
terms, except to the extent that such enforcement may be limited by applicable
bankruptcy, insolvency and other similar laws affecting creditors' rights
generally.
Section 5.06 Litigation. Except as disclosed on EXHIBIT I, there are no
actions, suits or proceedings pending or, to its knowledge, threatened against
Borrower or any of its Affiliates before any court or arbitrator or any
Governmental
38
Authority except actions, suits or proceedings which would, if adversely
determined, not substantially impair the ability of Borrower to pay when due any
amounts which may become payable under the Notes or to otherwise pay and perform
its obligations in connection with the Loans.
Section 5.07 Good Title to Properties. To the best of Borrower's knowledge,
Borrower and each of its Affiliates have good, marketable and legal title to all
of the properties and assets each of them purports to own (including, without
limitation, those reflected in the December 31, 1997 financial statements
referred to in Section 5.15) and only with exceptions which do not materially
detract from the value of such property or assets or the use thereof in
Borrower's and such Affiliate's business, and except to the extent that any such
properties and assets have been encumbered or disposed of since the date of such
financial statements without violating any of the covenants contained in Article
VII or elsewhere in this Agreement. Borrower and its Material Affiliates enjoy
peaceful and undisturbed possession of all leased property necessary in any
material respect in the conduct of their respective businesses. All such leases
are valid and subsisting and are in full force and effect.
Section 5.08 Taxes. To the best of Borrower's knowledge, Borrower has filed
all tax returns (federal, state and local) required to be filed and have paid
all taxes, assessments and governmental charges and levies due and payable
without the imposition of a penalty, including interest and penalties, except to
the extent they are the subject of a Good Faith Contest.
Section 5.09 ERISA. Borrower is in compliance in all material respects with
all applicable provisions of ERISA. Neither a Reportable Event nor a Prohibited
Transaction has occurred with respect to any Plan; no notice of intent to
terminate a Plan has been filed nor has any Plan been terminated within the past
five (5) years; no circumstance exists which constitutes grounds under Section
4042 of ERISA entitling the PBGC to institute proceedings to terminate, or
appoint a trustee to administer, a Plan, nor has the PBGC instituted any such
proceedings; Borrower and the ERISA Affiliates have not completely or partially
withdrawn under Sections 4201 or 4204 of ERISA from a Multiemployer Plan;
Borrower and the ERISA Affiliates have met the minimum funding requirements of
Section 412 of the Code and Section 302 of ERISA of each with respect to the
Plans of each and there is no Unfunded Current Liability with respect to any
Plan established or maintained by each; and Borrower and the ERISA Affiliates
have not incurred any liability to the PBGC under ERISA (other than for the
payment of premiums under Section 4007 of ERISA). No part of the funds to be
used by Borrower in satisfaction of its obligations under this Agreement
constitute "plan assets" of any "employee benefit plan" within the meaning of
ERISA or of any "plan" within the meaning of Section 4975(e)(1) of the Code, as
interpreted by the Internal Revenue Service and the U.S. Department of Labor in
rules, regulations, releases, bulletins or as interpreted under applicable case
law.
39
Section 5.10 No Default on Outstanding Judgments or Orders. Borrower has
satisfied all judgments which are not being appealed and are not in default with
respect to any judgment, order, writ, injunction, decree, rule or regulation of
any court, arbitrator or federal, state, municipal or other Governmental
Authority, commission, board, bureau, agency or instrumentality, domestic or
foreign.
Section 5.11 No Defaults on Other Agreements. Except as disclosed to the
Bank Parties in writing or as disclosed on EXHIBIT J, Borrower, to the best of
its knowledge, is not a party to any indenture, loan or credit agreement or any
lease or other agreement or instrument or subject to any partnership, trust or
other restriction which is likely to result in a Material Adverse Change. To the
best of its knowledge, Borrower is not in default in any respect in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any agreement or instrument which is likely to result in
a Material Adverse Change.
Section 5.12 Government Regulation. Borrower is not subject to regulation
under the Investment Company Act of 1940 or any statute or regulation limiting
Borrower's ability to incur indebtedness for money borrowed as contemplated
hereby.
Section 5.13 Environmental Protection. To the best of Borrower's knowledge
except as disclosed on EXHIBIT K, none of Borrower's or its Affiliates'
properties contains any Hazardous Materials that, under any Environmental Law
currently in effect, (1) would impose liability on Borrower that is likely to
result in a Material Adverse Change, or (2) is likely to result in the
imposition of a Lien on any assets of Borrower or any Material Affiliates that
is likely to result in a Material Adverse Change. To the best of Borrower's
knowledge, neither it nor any Material Affiliates are in violation of, or
subject to any existing, pending or threatened investigation or proceeding by
any Governmental Authority under any Environmental Law that is likely to result
in a Material Adverse Change.
Section 5.14 Solvency. Borrower is, and upon consummation of the
transactions contemplated by this Agreement, the other Loan Documents and any
other documents, instruments or agreements relating thereto will be, Solvent.
Section 5.15 Financial Statements. Borrower's Consolidated Financial
Statements most recently delivered to the Banks pursuant to Sections 4.01(3) or
6.09(1) and (2) of this Agreement are in all material respects complete and
correct and fairly present the financial condition of the subjects thereof as of
the dates of and for the periods covered by such statements, all in accordance
with GAAP. There has been no Material Adverse Change since the date of such most
recently delivered Borrower's Consolidated Financial Statements.
Section 5.16 Valid Existence of Affiliates. At the Closing Date, the only
material Affiliates of Borrower are the Material Affiliates listed on EXHIBIT F.
40
Each Material Affiliate is an entity duly organized and existing in good
standing under the laws of the jurisdiction of its formation. As to each
Material Affiliate, its correct name, the jurisdiction of its formation,
Borrower's direct or indirect percentage of beneficial interest therein, and the
type of business in which it is primarily engaged, are set forth on said EXHIBIT
F. Borrower and each of its Material Affiliates have the power to own their
respective properties and to carry on their respective businesses now being
conducted. Each Material Affiliate is duly qualified as a foreign corporation to
do business and is in good standing in every jurisdiction in which the nature of
the respective businesses conducted by it or its respective properties, owned or
held under lease, make such qualification necessary and where the failure to be
so qualified would cause a Material Adverse Change.
Section 5.17 Insurance. Borrower and each of its Affiliates has in force
paid insurance with financially sound and reputable insurance companies or
associations in such amounts and covering such risks as are usually carried by
companies engaged in the same or a similar business and similarly situated,
which insurance is reasonably acceptable to Administrative Agent.
Section 5.18 Accuracy of Information; Full Disclosure. Neither this
Agreement nor any documents, financial statements, reports, notices, schedules,
certificates, statements or other writings furnished by or on behalf of Borrower
to Administrative Agent or any Bank in connection with the negotiation of this
Agreement or the consummation of the transactions contemplated hereby, or
required herein to be furnished by or on behalf of Borrower (other than
projections which are made by Borrower in good faith), contains any untrue or
misleading statement of a material fact or omits a material fact necessary to
make the statements herein or therein not misleading. There is no fact which
Borrower has not disclosed to Administrative Agent and the Banks in writing or
which is not included in Borrower's SEC Reports which materially affects
adversely nor, so far as Borrower can now foresee, will materially affect
adversely the business or financial condition of Borrower or the ability of
Borrower to perform this Agreement and the other Loan Documents.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any of the Notes shall remain unpaid or the Loan Commitments
remain in effect, or any other amount is owing by Borrower to any Bank hereunder
or under any other Loan Document, Borrower shall:
Section 6.01 Maintenance of Existence. Preserve and maintain its legal
existence and, if applicable, good standing in the jurisdiction of organization
and, if applicable, qualify and remain qualified as a foreign entity in each
jurisdiction in which
41
such qualification is required, except to the extent that failure to so qualify
is not likely to result in a Material Adverse Change.
Section 6.02 Maintenance of Records. Keep adequate records and books of
account, in which complete entries will be made in accordance with GAAP,
reflecting all of its financial transactions.
Section 6.03 Maintenance of Insurance. At all times, maintain and keep in
force, and cause each of its Material Affiliates to maintain and keep in force,
insurance with financially sound and reputable insurance companies or
associations in such amounts and covering such risks as are usually carried by
companies engaged in the same or a similar business and similarly situated,
which insurance may provide for reasonable deductibility from coverage thereof.
Section 6.04 Compliance with Laws; Payment of Taxes. Comply in all material
respects with all Laws applicable to it or to any of its properties or any part
thereof, such compliance to include, without limitation, paying before the same
become delinquent all taxes, assessments and governmental charges imposed upon
it or upon any of its property, except to the extent they are the subject of a
Good Faith Contest.
Section 6.05 Right of Inspection. At any reasonable time and from time to
time upon reasonable notice, permit Administrative Agent or any Bank or any
agent or representative thereof (provided that, at Borrower's request,
Administrative Agent or such Bank, agent or representative must be accompanied
by a representative of Borrower), to examine and make copies and abstracts from
the records and books of account of, and visit the properties of, Borrower and
to discuss the affairs, finances and accounts of Borrower with the financial
officers of Borrower and, following the occurrence of an Event of Default or the
issuance of a qualified auditor's letter, with the independent accountants of
Borrower.
Section 6.06 Compliance With Environmental Laws. Comply in all material
respects with all applicable Environmental Laws and immediately pay or cause to
be paid all costs and expenses incurred in connection with such compliance,
except to the extent there is a Good Faith Contest.
Section 6.07 Payment of Costs. Pay all costs and expenses required for the
satisfaction of the conditions of this Agreement.
Section 6.08 Maintenance of Properties. Do all things reasonably necessary
to maintain, preserve, protect and keep its and its Affiliates' properties in
good repair, working order and condition.
42
Section 6.09 Reporting and Miscellaneous Document Requirements. Furnish to
Administrative Agent, who shall deliver copies to each of the Banks:
(1) Annual Financial Statements. As soon as available and in any event
within ninety (90) days after the end of each Fiscal Year, Borrower's
Consolidated Financial Statements as of the end of and for such Fiscal Year, in
reasonable detail and stating in comparative form the respective figures for the
corresponding date and period in the prior Fiscal Year and audited by Borrower's
Accountants;
(2) Quarterly Financial Statements. As soon as available and in any event
within forty-five (45) days after the end of each calendar quarter (other than
the last quarter of the Fiscal Year), unaudited Borrower's Consolidated
Financial Statements certified by Borrower's chief financial officer as of the
end of and for such calendar quarter, in reasonable detail and stating in
comparative form the respective figures for the corresponding date and period in
the prior Fiscal Year;
(3) Certificate of No Default and Financial Compliance. Within fifty (50)
days after the end of each of the first three quarters of each Fiscal Year and
within ninety-five (95) days after the end of each Fiscal Year, a certificate of
the chief financial officer or treasurer of Borrower (a) stating that, to the
best of his or her knowledge, no Default or Event of Default has occurred and is
continuing at the end of such period, or if a Default or Event of Default has
occurred and is continuing at the end of such period, specifying the nature
thereof and the action which is proposed to be taken with respect thereto; (b)
stating that the covenants contained in Sections 7.02, 7.03 and 7.04 and in
Article VIII have been complied with (or specifying those that have not been
complied with) and including computations demonstrating such compliance (or
non-compliance); (c) setting forth the details by property of all items
comprising Capitalization Value, Total Outstanding Indebtedness (including
amount, maturity, interest rate and amortization requirements), Secured
Indebtedness, Combined EBITDA, Unencumbered Combined EBITDA, Interest Expense,
Unsecured Interest Expense and Unsecured Indebtedness and all regularly
scheduled amortization payments and preferred dividend payments; and (d) only at
the end of each Fiscal Year stating Borrower's taxable income;
(4) Certificate of Borrower's Accountants. Simultaneously with the delivery
of the annual financial statements required by paragraph (1) of this Section,
(a) a statement of Borrower's Accountants who audited such financial statements
comparing the computations set forth in the financial compliance certificate
required by paragraphs (3)(b) and (d) of this Section to the audited financial
statements required by paragraph (1) of this Section and (b) when the audited
financial statements required by paragraph (1) of this Section have a qualified
auditor's opinion, a statement of Borrower's Accountants who audited such
financial statements of whether any Default or Event of Default has occurred and
is continuing;
43
(5) Notice of Litigation. Promptly after the commencement and knowledge
thereof, notice of all actions, suits, and proceedings before any court or
arbitrator, affecting Borrower which, if determined adversely to Borrower is
likely to result in a Material Adverse Change and which would be required to be
reported in Borrower's SEC Reports;
(6) Notices of Defaults and Events of Default. As soon as possible and in
any event within ten (10) days after Borrower becomes aware of the occurrence of
a material Default or any Event of Default, a written notice setting forth the
details of such Default or Event of Default and the action which is proposed to
be taken with respect thereto;
(7) Sales or Acquisitions of Assets. Promptly after the filing thereof,
copies of all 8-Ks and other documents regarding the Disposition or acquisition
of assets which Borrower files with the Securities and Exchange Commission or
any Governmental Authority which may be substituted therefor, or with any
national securities exchange;
(8) Material Adverse Change. As soon as is practicable and in any event
within five (5) days after knowledge of the occurrence of any event or
circumstance which is likely to result in or has resulted in a Material Adverse
Change and which would be required to be reported in Borrower's SEC Reports,
written notice thereof;
(9) Bankruptcy of Tenants. Promptly after becoming aware of the same,
written notice of the bankruptcy, insolvency or cessation of operations of any
tenant in any property of Borrower or in which Borrower has an interest to which
four percent (4%) or more of aggregate minimum rent payable to Borrower directly
or through its Consolidated Businesses or UJVs is attributable;
(10) Offices. Thirty (30) days' prior written notice of any change in the
chief executive office or principal place of business of Borrower;
(11) Environmental and Other Notices. As soon as possible and in any event
within thirty (30) days after receipt, copies of all Environmental Notices
received by Borrower which are not received in the ordinary course of business
and which relate to a previously undisclosed situation which is likely to result
in a Material Adverse Change;
(12) Insurance Coverage. Promptly, such information concerning Borrower's
insurance coverage as Administrative Agent may reasonably request;
(13) Proxy Statements, Etc. Promptly after the sending or filing thereof,
copies of all proxy statements, financial statements and reports
44
which Borrower or its Material Affiliates sends to its shareholders, and copies
of all regular, periodic and special reports, and all registration statements
which Borrower or its Material Affiliates files with the Securities and Exchange
Commission or any Governmental Authority which may be substituted therefor, or
with any national securities exchange;
(14) Rent Rolls. As soon as available and in any event within forty-five
(45) days after the end of each calendar quarter, a rent roll, tenant sales
report and operating statement for each property directly or indirectly owned in
whole or in part by Borrower;
(15) Capital Expenditures. As soon as available and in any event within
ninety (90) days after the end of each Fiscal Year, a schedule of such Fiscal
Year's capital expenditures and a budget for the next Fiscal Year's planned
capital expenditures for each property directly or indirectly owned in whole or
in part by Borrower;
(16) Change in Borrower's Credit Rating. Within two (2) Banking Days after
any change in Borrower's Credit Rating, written notice of such change;
(17) Sales or Acquisitions of Assets. Promptly after the occurrence
thereof, written notice of any Disposition or acquisition of assets (other than
acquisitions or Dispositions of investments such as certificates of deposit,
Treasury securities and money market deposits in the ordinary course of
Borrower's cash management) in excess of Fifty Million Dollars ($50,000,000)
together with, in the case of any acquisition of such an asset, copies of all
material agreements governing the acquisition and historical financial
information and Borrower's projections with respect to the property acquired;
and
(18) General Information. Promptly, such other information respecting the
condition or operations, financial or otherwise, of Borrower or any properties
of Borrower as Administrative Agent may from time to time reasonably request.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any of the Notes shall remain unpaid, or the Loan Commitments
remain in effect, or any other amount is owing by Borrower to Administrative
Agent or any Bank hereunder or under any other Loan Document, Borrower shall not
do any or all of the following:
45
Section 7.01 Mergers Etc. Merge or consolidate (except where Borrower is
the surviving entity), or sell, assign, lease or otherwise dispose of (whether
in one transaction or in a series of transactions), all or substantially all of
its assets (whether now owned or hereafter acquired) or enter into any agreement
to do any of the foregoing.
Section 7.02 Investments. Make any loan or advance to any Person or
purchase or otherwise acquire any capital stock, assets, obligations or other
securities of, make any capital contribution to, or otherwise invest in, or
acquire any interest in, any Person (any such transaction, an "Investment") if
such Investment constitutes the acquisition of a minority interest in a Person
(a "Minority Interest") and the amount of such Investment, together with the
value of all other Minority Interests acquired after the Closing Date, would
exceed 15% of Capitalization Value, determined as of the end of the most recent
calendar quarter for which Borrower is required to have reported financial
results pursuant to Section 6.09. A 50% beneficial interest in a Person, in
connection with which the holder thereof exercises joint control over such
Person with the holder(s) of the other 50% beneficial interest, shall constitute
a "Minority Interest" for purposes of this Section.
Section 7.03 Sale of Assets. Effect a Disposition of any of its now owned
or hereafter acquired assets, including assets in which Borrower owns a
beneficial interest through its ownership of interests in joint ventures,
aggregating more than twenty five percent (25%) of Capitalization Value in any
twelve month period.
Section 7.04 Management. At any time, fail to provide, or fail to cause its
Affiliates to provide, property management and leasing services for at least
seventy-five percent (75%) of the total square footage of the properties then
owned, directly or indirectly, in whole or in part by Borrower.
ARTICLE VIII.
FINANCIAL COVENANTS
So long as any of the Notes shall remain unpaid, or the Loan Commitments
remain in effect, or any other amount is owing by Borrower to Administrative
Agent or any Bank under this Agreement or under any other Loan Document,
Borrower shall not permit or suffer:
Section 8.01 Equity Value. At any time, Equity Value to be less than Three
Hundred Million Dollars ($300,000,000); or
Section 8.02 Leverage Ratio. At any time, Leverage Ratio to exceed fifty
five percent (55%); or
46
Section 8.03 Relationship of Secured Indebtedness to Capitalization Value.
At any time, Secured Indebtedness to exceed thirty-five percent (35%) of
Capitalization Value; or
Section 8.04 Relationship of Combined EBITDA to Interest Expense. For any
calendar quarter, the ratio of (1) Combined EBITDA to (2) Interest Expense to be
less than 2.00 to 1.00; or
Section 8.05 Relationship of Combined EBITDA to Total Outstanding
Indebtedness. For any calendar quarter, the ratio (expressed as a percentage) of
(1) Combined EBITDA for such calendar quarter annualized, to (2) Total
Outstanding Indebtedness as of the end of such calendar quarter, to be less than
fifteen percent (15%); or
Section 8.06 Unsecured Debt Yield. For any calendar quarter, Unsecured Debt
Yield for such calendar quarter to be less than thirteen percent (13%); or
Section 8.07 Relationship of Combined EBITDA to Fixed Charges. For any
calendar quarter, the ratio of Combined EBITDA to Fixed Charges to be less than
1.80 to 1.00; or
Section 8.08 Relationship of Unencumbered Combined EBITDA to Unsecured
Interest Expense. For any calendar quarter, the ratio of Unencumbered Combined
EBITDA to Unsecured Interest Expense to be less than 1.60 to 1.00; or
Section 8.09 Dividend Payment Ratio. Borrower to pay dividends to its
shareholders during any calendar year in an aggregate amount in excess of
ninety-five percent (95%) of Funds From Operations for such year; or
Section 8.10 Construction in Progress. At any time, more than 20% of the
aggregate gross leasable area owned directly or indirectly, in whole or in part
by Borrower or UJV's to be unleased Construction in Progress.
ARTICLE IX.
EVENTS OF DEFAULT
Section 9.01 Events of Default. Any of the following events shall be an
"Event of Default":
(1) If Borrower shall: fail to pay the principal of any Notes as and when
due; or fail to pay interest accruing on any Notes as and when due and such
failure to pay shall continue unremedied for five (5) days after the due date of
such amount; or fail to pay any installment of the administration fee which
Borrower has
47
separately agreed to pay to Administrative Agent, or any fee or any other amount
due under this Agreement or any other Loan Document as and when due, and such
failure to pay shall continue unremedied for five (5) days after notice by
Administrative Agent of such failure to pay; or
(2) If any representation or warranty made by Borrower in this Agreement or
in any other Loan Document or which is contained in any certificate, document,
opinion, financial or other statement furnished at any time under or in
connection with a Loan Document shall prove to have been incorrect in any
material respect on or as of the date made; or
(3) If Borrower shall fail (a) to perform or observe any term, covenant or
agreement contained in Article VII or Article VIII; or (b) to perform or observe
any term, covenant or agreement contained in this Agreement (other than
obligations specifically referred to elsewhere in this Section 9.01) and such
failure shall remain unremedied for thirty (30) consecutive calendar days after
notice thereof; provided, however, that if any such default under clause (b)
above cannot by its nature be cured within such thirty (30) day grace period and
so long as Borrower shall have commenced cure within such thirty (30) day grace
period and shall, at all times thereafter, diligently prosecute the same to
completion, Borrower shall, have an additional period to cure such default; in
no event, however, is the foregoing intended to effect an extension of the
Maturity Date; or
(4) If Borrower shall fail (a) to pay any Debt (other than the payment
obligations described in paragraph (1) of this Section) in an amount equal to or
greater than Ten Million Dollars ($10,000,000) when due (whether by scheduled
maturity, required prepayment, acceleration, demand, or otherwise) after the
expiration of any applicable grace period, or (b) to perform or observe any
material term, covenant, or condition under any agreement or instrument relating
to any such Debt, when required to be performed or observed, if the effect of
such failure to perform or observe is to accelerate, or to permit the
acceleration of, after the giving of notice or the lapse of time, or both (other
than in cases where, in the judgment of the Required Banks, meaningful
discussions likely to result in (i) a waiver or cure of the failure to perform
or observe, or (ii) otherwise averting such acceleration are in progress between
Borrower and the obligee of such Debt), the maturity of such Debt, or any such
Debt shall be declared to be due and payable, or required to be prepaid (other
than by a regularly scheduled or otherwise required prepayment), prior to the
stated maturity thereof; or
(5) If Borrower or any Affiliate of Borrower to which One Hundred Million
Dollars ($100,000,000) or more of Capitalization Value is attributable, shall:
(a) generally not, or be unable to, or shall admit in writing its inability to,
pay its debts as such debts become due; or (b) make an assignment for the
benefit of creditors, petition or apply to any tribunal for the appointment of a
custodian, receiver or trustee for it or a substantial part of its assets; or
(c) commence any proceeding under any bankruptcy, reorganization, arrangement,
readjustment of debt, dissolution or liquidation
48
law or statute of any jurisdiction, whether now or hereafter in effect; or (d)
have had any such petition or application filed or any such proceeding shall
have been commenced, against it, in which an adjudication or appointment is made
or order for relief is entered, or which petition, application or proceeding
remains undismissed or unstayed for a period of sixty (60) days or more; or (e)
be the subject of any proceeding under which all or a substantial part of its
assets may be subject to seizure, forfeiture or divestiture; or (f) by any act
or omission indicate its consent to, approval of or acquiescence in any such
petition, application or proceeding or order for relief or the appointment of a
custodian, receiver or trustee for all or any substantial part of its property;
or (g) suffer any such custodianship, receivership or trusteeship for all or any
substantial part of its property, to continue undischarged for a period of sixty
(60) days or more; or
(6) If one or more judgments, decrees or orders for the payment of money in
excess of Ten Million Dollars ($10,000,000) in the aggregate shall be rendered
against Borrower, and any such judgments, decrees or orders shall continue
unsatisfied and in effect for a period of thirty (30) consecutive days without
being vacated, discharged, satisfied or stayed or bonded pending appeal; or
(7) If any of the following events shall occur or exist with respect to
Borrower or any ERISA Affiliate: (a) any Prohibited Transaction involving any
Plan; (b) any Reportable Event with respect to any Plan: (c) the filing under
Section 4041 of ERISA of a notice of intent to terminate any Plan or the
termination of any Plan; (d) any event or circumstance which might constitute
grounds entitling the PBGC to institute proceedings under Section 4042 of ERISA
for the termination of, or for the appointment of a trustee to administer, any
Plan, or the institution by the PBGC of any such proceedings; or (e) complete or
partial withdrawal under Section 4201 or 4204 of ERISA from a Multiemployer Plan
or the reorganization, insolvency, or termination of any Multiemployer Plan; and
in each case above, if such event or conditions, if any, could in the reasonable
opinion of Administrative Agent subject Borrower or any ERISA Affiliate to any
tax, penalty, or other liability to a Plan, Multiemployer Plan, the PBGC or
otherwise (or any combination thereof) which in the aggregate exceeds or may
exceed Fifty Thousand Dollars ($50,000); or
(8) If at any time Borrower is not a qualified real estate investment trust
under Sections 856 through 860 of the Code or is not listed on the Nasdaq
National Market or the New York Stock Exchange; or
(9) If at any time Borrower constitutes plan assets for ERISA purposes
(within the meaning of C.F.R.ss.2510.3-101).
Section 9.02 Remedies. If any Event of Default shall occur and be
continuing, Administrative Agent shall, upon request of the Required Banks, by
notice to Borrower, (1) declare the unpaid balance of the Notes, all interest
thereon, and all other amounts payable under this Agreement to be forthwith due
and payable, whereupon such balance, all such interest, and all such amounts due
under this Agreement shall become
49
and be forthwith due and payable, without presentment, demand, protest, or
further notice of any kind, all of which are hereby expressly waived by
Borrower; and/or (2) exercise any remedies provided in any of the Loan Documents
or by law. Notwithstanding the fact that certain enforcement powers reside with
Administrative Agent, each Bank has, to the extent permitted by law, a separate
right of payment and shall be considered a separate "creditor" holding a
separate claim within the meaning of Section 101(5) of the U.S. Bankruptcy Code
or any similar solvency statute.
ARTICLE X.
ADMINISTRATIVE AGENT; RELATIONS AMONG BANKS
Section 10.01 Appointment, Powers and Immunities of Administrative Agent.
Each Bank hereby irrevocably appoints and authorizes Administrative Agent to act
as its agent hereunder and under any other Loan Document with such powers as are
specifically delegated to Administrative Agent by the terms of this Agreement
and any other Loan Document, together with such other powers as are reasonably
incidental thereto. Administrative Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement and any
other Loan Document or required by law, and shall not by reason of this
Agreement be a fiduciary or trustee for any Bank except to the extent that
Administrative Agent acts as an agent with respect to the receipt or payment of
funds (nor shall Administrative Agent have any fiduciary duty to Borrower nor
shall any Bank have any fiduciary duty to Borrower or to any other Bank).
Administrative Agent shall not be responsible to the Banks for any recitals,
statements, representations or warranties made by Borrower or any officer,
partner or official of Borrower or any other Person contained in this Agreement
or any other Loan Document, or in any certificate or other document or
instrument referred to or provided for in, or received by any of them under,
this Agreement or any other Loan Document, or for the value, legality, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or any other document or instrument referred to or
provided for herein or therein, for the perfection or priority of any Lien
securing the Obligations or for any failure by Borrower to perform any of its
obligations hereunder or thereunder. Administrative Agent may employ agents and
attorneys-in-fact and shall not be responsible, except as to money or securities
received by it or its authorized agents, for the negligence or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care. Neither
Administrative Agent nor any of its directors, officers, employees or agents
shall be liable or responsible for any action taken or omitted to be taken by it
or them hereunder or under any other Loan Document or in connection herewith or
therewith, except for its or their own gross negligence or willful misconduct.
Borrower shall pay any fee agreed to by Borrower and Administrative Agent with
respect to Administrative Agent's services hereunder.
Section 10.02 Reliance by Administrative Agent. Administrative Agent shall
be entitled to rely upon any certification, notice or other communication
50
(including any thereof by telephone, telex, telegram or cable) believed by it to
be genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by Administrative Agent.
Administrative Agent may deem and treat each Bank as the holder of the Loan made
by it for all purposes hereof and shall not be required to deal with any Person
who has acquired a participation in any Loan or participation from a Bank. As to
any matters not expressly provided for by this Agreement or any other Loan
Document, Administrative Agent shall in all cases be fully protected in acting,
or in refraining from acting, hereunder in accordance with instructions signed
by the Required Banks, and such instructions of the Required Banks and any
action taken or failure to act pursuant thereto shall be binding on all of the
Banks and any other holder of all or any portion of any Loan or participation.
Section 10.03 Defaults. Administrative Agent shall not be deemed to have
knowledge of the occurrence of a Default or Event of Default unless
Administrative Agent has received notice from a Bank or Borrower specifying such
Default or Event of Default and stating that such notice is a "Notice of
Default." In the event that Administrative Agent receives such a notice of the
occurrence of a Default or Event of Default, Administrative Agent shall give
prompt notice thereof to the Banks. Administrative Agent, following consultation
with the Banks, shall (subject to Section 10.07) take such action with respect
to such Default or Event of Default which is continuing as shall be directed by
the Required Banks; provided that, unless and until Administrative Agent shall
have received such directions, Administrative Agent may take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interest of the Banks. In no
event shall Administrative Agent be required to take any such action which it
determines to be contrary to law.
Section 10.04 Rights of Administrative Agent as a Bank. With respect to its
Loan Commitment and the Loan provided by it, Administrative Agent in its
capacity as a Bank hereunder shall have the same rights and powers hereunder as
any other Bank and may exercise the same as though it were not acting as
Administrative Agent, and the term "Bank" or "Banks" shall include
Administrative Agent in its capacity as a Bank. Administrative Agent and its
Affiliates may (without having to account therefor to any Bank) accept deposits
from, lend money to (on a secured or unsecured basis), and generally engage in
any kind of banking, trust or other business with Borrower (and any Affiliates
of Borrower) as if it were not acting as Administrative Agent.
Section 10.05 Indemnification of Administrative Agent. Each Bank agrees to
indemnify Administrative Agent (to the extent not reimbursed under Section 12.04
or under the applicable provisions of any other Loan Document, but without
limiting the obligations of Borrower under Section 12.04 or such provisions),
for its Pro Rata Share of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against Administrative Agent in any
51
way relating to or arising out of this Agreement, any other Loan Document or any
other documents contemplated by or referred to herein or the transactions
contemplated hereby or thereby (including, without limitation, the costs and
expenses which Borrower is obligated to pay under Section 12.04) or under the
applicable provisions of any other Loan Document or the enforcement of any of
the terms hereof or thereof or of any such other documents or instruments;
provided that no Bank shall be liable for (1) any of the foregoing to the extent
they arise from the gross negligence or willful misconduct of the party to be
indemnified, (2) any loss of principal or interest with respect to
Administrative Agent's Loan or (3) any loss suffered by Administrative Agent in
connection with a swap or other interest rate hedging arrangement entered into
with Borrower.
Section 10.06 Non-Reliance on Administrative Agent and Other Banks. Each
Bank agrees that it has, independently and without reliance on Administrative
Agent or any other Bank, and based on such documents and information as it has
deemed appropriate, made its own credit analysis of Borrower and the decision to
enter into this Agreement and that it will, independently and without reliance
upon Administrative Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under this Agreement or
any other Loan Document. Administrative Agent shall not be required to keep
itself informed as to the performance or observance by Borrower of this
Agreement or any other Loan Document or any other document referred to or
provided for herein or therein or to inspect the properties or books of
Borrower. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by Administrative Agent
hereunder, Administrative Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the affairs,
financial condition or business of Borrower (or any Affiliate of Borrower) which
may come into the possession of Administrative Agent or any of its Affiliates.
Administrative Agent shall not be required to file this Agreement, any other
Loan Document or any document or instrument referred to herein or therein, for
record or give notice of this Agreement, any other Loan Document or any document
or instrument referred to herein or therein, to anyone.
Section 10.07 Failure of Administrative Agent to Act. Except for action
expressly required of Administrative Agent hereunder, Administrative Agent shall
in all cases be fully justified in failing or refusing to act hereunder unless
it shall have received further assurances (which may include cash collateral) of
the indemnification obligations of the Banks under Section 10.05 in respect of
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action.
Section 10.08 Resignation or Removal of Administrative Agent.
Administrative Agent shall have the right to resign at any time. Administrative
Agent may be removed at any time with cause by the Required Banks, provided that
Borrower and the other Banks shall be promptly notified thereof. Upon any such
removal or
52
resignation, the Required Banks shall have the right to appoint a successor
Administrative Agent which successor Administrative Agent, so long as it is
reasonably acceptable to the Required Banks and, provided there exists no Event
of Default, to Borrower, shall be that Bank then having the greatest Loan
Commitment. If no successor Administrative Agent shall have been so appointed by
the Required Banks and shall have accepted such appointment within thirty (30)
days after the Required Banks' removal of the retiring Administrative Agent,
then the retiring Administrative Agent may, on behalf of the Banks, appoint a
successor Administrative Agent, which shall be one of the Banks. The Required
Banks or the retiring Administrative Agent, as the case may be, shall upon the
appointment of a successor Administrative Agent promptly so notify Borrower and
the other Banks. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's removal hereunder as
Administrative Agent, the provisions of this Article X shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as Administrative Agent.
Section 10.09 Amendments Concerning Agency Function. Notwithstanding
anything to the contrary contained in this Agreement, Administrative Agent shall
not be bound by any waiver, amendment, supplement or modification of this
Agreement or any other Loan Document which affects its duties, rights, and/or
function hereunder or thereunder unless it shall have given its prior written
consent thereto.
Section 10.10 Liability of Administrative Agent. Administrative Agent shall
not have any liabilities or responsibilities to Borrower on account of the
failure of any Bank to perform its obligations hereunder or to any Bank on
account of the failure of Borrower to perform its obligations hereunder or under
any other Loan Document.
Section 10.11 Transfer of Agency Function. Without the consent of Borrower
or any Bank, Administrative Agent may at any time or from time to time transfer
its functions as Administrative Agent hereunder to any of its offices wherever
located in the United States, provided that Administrative Agent shall promptly
notify Borrower and the Banks thereof.
Section 10.12 Non-Receipt of Funds by Administrative Agent. Unless
Administrative Agent shall have received notice from a Bank or Borrower (either
one as appropriate being the "Payor") prior to the date on which such Bank is to
make payment hereunder to Administrative Agent of the proceeds of a Loan or
Borrower is to make payment to Administrative Agent, as the case may be (either
such payment being a "Required Payment"), which notice shall be effective upon
receipt, that the Payor will not make the Required Payment in full to
Administrative Agent, Administrative Agent may assume that the Required Payment
has been made in full to Administrative Agent on such
53
date, and Administrative Agent in its sole discretion may, but shall not be
obligated to, in reliance upon such assumption, make the amount thereof
available to the intended recipient on such date. If and to the extent the Payor
shall not have in fact so made the Required Payment in full to Administrative
Agent, the recipient of such payment shall repay to Administrative Agent
forthwith on demand such amount made available to it together with interest
thereon, for each day from the date such amount was so made available by
Administrative Agent until the date Administrative Agent recovers such amount,
at the customary rate set by Administrative Agent for the correction of errors
among Banks for three (3) Banking Days and thereafter at the Base Rate.
Section 10.13 Withholding Taxes. Each Bank represents at all times during
the term of this Agreement that it is entitled to receive any payments to be
made to it hereunder without the withholding of any tax and will furnish to
Administrative Agent and Borrower such forms, certifications, statements and
other documents as Administrative Agent or Borrower may request from time to
time to evidence such Bank's exemption from the withholding of any tax imposed
by any jurisdiction or to enable Administrative Agent or Borrower to comply with
any applicable Laws or regulations relating thereto. Without limiting the effect
of the foregoing, if any Bank is not created or organized under the laws of the
United States of America or any state thereof, such Bank will furnish to
Administrative Agent and Borrower a United States Internal Revenue Service Form
4224 in respect of all payments to be made to such Bank by Borrower or
Administrative Agent under this Agreement or any other Loan Document or a United
States Internal Revenue Service Form 1001 establishing such Bank's complete
exemption from United States withholding tax in respect of payments to be made
to such Bank by Borrower or Administrative Agent under this Agreement or any
other Loan Document, or such other forms, certifications, statements or
documents, duly executed and completed by such Bank as evidence of such Bank's
exemption from the withholding of U.S. tax with respect thereto. Administrative
Agent shall not be obligated to make any payments hereunder to such Bank in
respect of any Loan or participation or such Bank's Loan Commitment or
obligation to purchase participations until such Bank shall have furnished to
Administrative Agent and Borrower the requested form, certification, statement
or document.
Section 10.14 Minimum Commitment by UBS. Subsequent to the Closing Date,
UBS hereby agrees to maintain a Loan Commitment in an amount no less than Twenty
Five Million Dollars ($25,000,000) for so long as (x) no Event of Default exists
under this Agreement and (y) UBS remains Administrative Agent hereunder. UBS
further agrees to hold and not to participate or assign any of such amount other
than an assignment to a Federal Reserve Bank or to the Parent or a
majority-owned subsidiary of UBS.
Section 10.15 Pro Rata Treatment. Except to the extent otherwise provided,
(1) each advance of proceeds of the Ratable Loans shall be made by the Banks,
(2) each reduction of the amount of the Total Loan Commitment under Section 2.15
shall be applied to the Loan Commitments of the Banks and (3) each payment of
the fees
54
accruing under Section 2.07 shall be made for the account of the Banks, ratably
according to the amounts of their respective Loan Commitments.
Section 10.16 Sharing of Payments Among Banks. If a Bank shall obtain
payment of any principal of or interest on any Loan made by it through the
exercise of any right of setoff, banker's lien, counterclaim, or by any other
means (including direct payment), and such payment results in such Bank
receiving a greater payment than it would have been entitled to had such payment
been paid directly to Administrative Agent for disbursement to the Banks, then
such Bank shall promptly purchase for cash from the other Banks participations
in the Loans made by the other Banks in such amounts, and make such other
adjustments from time to time as shall be equitable to the end that all the
Banks shall share ratably the benefit of such payment. To such end the Banks
shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored. Borrower agrees that any Bank so purchasing a participation in the
Loans made by other Banks may exercise all rights of setoff, banker's lien,
counterclaim or similar rights with respect to such participation. Nothing
contained herein shall require any Bank to exercise any such right or shall
affect the right of any Bank to exercise, and retain the benefits of exercising,
any such right with respect to any other indebtedness of Borrower.
Section 10.17 Possession of Documents. Each Bank shall keep possession of
its own Ratable Loan Note. Administrative Agent shall hold all the other Loan
Documents and related documents in its possession and maintain separate records
and accounts with respect thereto, and shall permit the Banks and their
representatives access at all reasonable times to inspect such Loan Documents,
related documents, records and accounts.
Section 10.18 Effect of a Bank's Failure to Make an Advance. In the event
any Bank fails for any reason to fund the portion it is required to fund of any
advance of Loan proceeds by 3:00 p.m. (New York time) on the second Banking Day
after the date established by Administrative Agent as the date such advance is
to be made, such Bank shall be a "Delinquent Bank" for all purposes hereunder
until and unless such delinquency is cured in accordance with the terms of and
by the time permitted under Section 10.19, and the following provisions shall
apply:
(a) Administrative Agent shall notify (such notice being referred to
as the "Delinquency Notice") each Bank and Borrower of any Bank's failure
to fund. Each Non-Delinquent Bank shall have the right, but in no event or
under any circumstance the obligation, to fund such Delinquent Bank's
portion of such advance, provided that, within ten (10) days of the date of
the Delinquency Notice (the "Election Period"), such Non-Delinquent Bank or
Banks (each such Bank, an "Electing Bank") irrevocably commit(s) by notice
in writing (an "Election Notice") to Administrative Agent, the other Banks
and Borrower to fund the Delinquent Bank's portion of the advance that is
the subject of the delinquency (the "Delinquency Amount"). If
Administrative Agent receives more
55
than one Election Notice within the Election Period, then the Electing
Banks sending such notices shall be deemed to have committed to fund
ratable shares of the Delinquency Amount based upon the amounts of their
respective Loan Commitments. If there are one or more Electing Banks and
the Delinquent Bank fails to cure during the Election Period as provided in
Section 10.19, then upon the expiration of the Election Period, each
Electing Bank's Loan Commitment shall be automatically increased by the
Delinquency Amount (if there is only one Electing Bank) or such Electing
Bank's ratable share, determined as aforesaid, of the Delinquency Amount
(if there are two (2) or more Electing Banks), and the Delinquent Bank's
Loan Commitment shall automatically be reduced by the Delinquency Amount.
Administrative Agent shall thereupon notify Borrower and each Bank of (i)
the adjusted amounts of the Loan Commitments and (ii) the date the
Delinquency Amount is to be remitted by the Electing Banks to
Administrative Agent (which date shall be no sooner than three (3) Banking
Days after such notice). In the event Administrative Agent shall not have
advanced the Delinquency Amount pursuant to Section 10.12 or Borrower shall
have refunded such advance pursuant to paragraph (e) of this Section,
Administrative Agent shall advance to Borrower the Delinquency Amount no
later than one (1) Banking Day after Administrative Agent receives the same
from the Electing Bank(s). In the event Administrative Agent shall have
previously advanced the Delinquency Amount pursuant to Section 10.12 and
Borrower shall not have refunded such advance pursuant to paragraph (e) of
this Section, Administrative Agent shall reimburse itself for such advance
from the funds received from the Electing Bank(s). Notwithstanding anything
to the contrary contained herein, if Administrative Agent advances its own
funds in respect of a Delinquent Bank's portion of an advance,
Administrative Agent shall be entitled to the interest on the portion of
the outstanding principal amount of the Loans represented thereby, from the
date Administrative Agent makes such advance until the date it is
reimbursed therefor.
(b) In connection with the adjustment of the amounts of the Loan
Commitments of the Delinquent Bank and Electing Bank (s) upon the
expiration of the Election Period as aforesaid, Borrower covenants that it
shall, promptly following the request of the Electing Bank (s), execute and
deliver to each Electing Bank and the Delinquent Bank substitute notes
substantially in the form of EXHIBIT B and stating: "This Note is a
substitute note as contemplated by Section 10.18 of the Loan Agreement; it
replaces and is in lieu of that certain note made by [Maker] dated [date of
Note] to the order of [Bank] in the principal sum of [Bank's original Loan
Commitment]." Such substitute notes shall be in amounts equal to such
Banks' respective Loan Commitments, as adjusted. All such substitute notes
shall constitute Ratable Loan Notes. In connection with Borrower's
execution of substitute notes as aforesaid, Borrower shall deliver to
Administrative Agent evidence, reasonably satisfactory to Administrative
Agent, of all requisite partnership, corporate or other action to authorize
Borrower's execution and delivery of the substitute notes and any
56
related documents. The execution and delivery of substitute notes as
required above shall be a condition precedent to any further advances of
proceeds of the Loans. Upon receipt of its substitute note, the Electing
Bank will return to Borrower its note that was replaced. Borrower,
Administrative Agent and Banks shall execute such modifications to the Loan
Documents as shall, in the reasonable judgment of Administrative Agent, be
necessary or desirable in connection with the adjustment of the amounts of
Loan Commitments in accordance with the foregoing provisions of this
Section.
(c) In the event that no Bank elects to commit to fund the Delinquency
Amount within the Election Period as provided in paragraph (a) of this
Section, Administrative Agent shall, upon the expiration of the Election
Period, so notify Borrower and each Bank.
(d) Subject to a Delinquent Bank's right to cure as provided in
Section 10.19, but notwithstanding anything else to the contrary contained
in this Agreement, the Delinquent Bank's interest in, and any and all
amounts due to a Delinquent Bank under, the Loan Documents (including,
without limitation, all principal, interest, fees and expenses) shall be
subordinate to the repayment of all amounts (including, without limitation,
interest) then or thereafter due or to become due to the Non-Delinquent
Banks under the Loan Documents (including future advances), and the
Delinquent Bank thereafter shall have no right to participate in any
discussions among and/or decisions by Banks hereunder and/or under the
other Loan Documents. Further, any Delinquent Bank shall be bound by any
amendment to, or waiver of, any provision of, or any action taken or
omitted to be taken by Administrative Agent and/or the Non-Delinquent Banks
under, any Loan Document which is made subsequent to the Delinquent Bank's
becoming a Delinquent Bank.
(e) If, pursuant to the operation of Section 10.12, an advance of Loan
proceeds is made without Administrative Agent's receipt of a Delinquent
Bank's portion thereof, Borrower shall, upon demand of Administrative
Agent, refund the Delinquency Amount to Administrative Agent. Borrower's
failure to do so within ten (10) days of such demand shall, notwithstanding
anything to the contrary contained herein, constitute an Event of Default.
If a Delinquent Lender's obligations with respect to the Delinquency
Amount are assumed by one or more Electing Banks, then, notwithstanding
anything to the contrary contained in this Agreement (including Sections
2.01(b), 2.02 (h) or 10.15), subsequent advances of the Ratable Loans shall
be made by the Banks in proportion to the remaining available amounts of
their respective Loan Commitments.
57
Section 10.19 Cure by Delinquent Bank. A Delinquent Bank may cure a
delinquency arising out of its failure to fund its required portion of any
advance if, within the Election Period, it remits to Administrative Agent its
required portion of such advance (together with interest thereon at the Default
Rate from the date such advance was to have been made if such advance was made
by Administrative Agent and not refunded by Borrower pursuant to paragraph (e)
of Section 10.18), in which event Administrative Agent shall so notify Borrower
and the Non-Delinquent Banks of its receipt of such funds. If Administrative
Agent shall not have advanced the Delinquency Amount from its own funds pursuant
to Section 10.12 (or such advance shall have been made but shall have been
refunded by Borrower pursuant to paragraph (e) of Section 10.18), Administrative
Agent shall, within one (1) Banking Day of its receipt thereof from the
Delinquent Lender, advance the Delinquency Amount to Borrower. If Administrative
Agent shall have advanced the Delinquency Amount pursuant to Section 10.12 and
Borrower shall not have refunded such advance pursuant to paragraph (e) of
Section 10.18, Administrative Agent shall notify Borrower and the Banks of its
intention to reimburse itself from funds received from the Delinquent Bank
(which reimbursement is hereby authorized) for funding the Delinquency Amount.
In the event any Delinquent Bank cures a delinquency prior to the expiration of
the Election Period (or thereafter with the consent of all of the Non-Delinquent
Banks), such Delinquent Bank nonetheless shall be bound by any amendment to or
waiver of any provision of, or any action taken or omitted to be taken by
Administrative Agent and/or the Non-Delinquent Banks under, any Loan Document
which is made subsequent to that Bank's becoming a Delinquent Bank and prior to
its curing the delinquency as provided in this Section, provided that such
amendment or waiver of action was taken in accordance with the provisions of
this Agreement. A Delinquent Bank shall have absolutely no right to cure any
delinquency after the expiration of the Election Period unless all the Banks in
their sole discretion elect to permit such cure.
Section 10.20 Delinquent Bank Not Excused. Nothing contained in Sections
10.18 or 10.19 shall release or in any way limit a Delinquent Bank's obligations
as a Bank hereunder and/or under any other of the Loan Documents. Further, a
Delinquent Bank shall indemnify and hold harmless Administrative Agent and each
of the Non-Delinquent Banks from any claim, loss, or costs incurred by
Administrative Agent and/or the Non-Delinquent Banks as a result of a Delinquent
Bank's failure to comply with the requirements of this Agreement, including,
without limitation, any and all additional losses, damages, costs and expenses
(including, without limitation, attorneys' fees) incurred by Administrative
Agent and any Bank as a result of and/or in connection with (i) a Non-Delinquent
Bank's acting as an Electing Bank, (ii) any enforcement action brought by
Administrative Agent against a Delinquent Bank, and (iii) any action brought
against Administrative Agent and/or the Banks. The indemnification provided
above shall survive any termination of this Agreement.
Section 10.21 Notices Regarding Delinquent Bank. Notices by Administrative
Agent or the Banks pursuant to Sections 10.18 or 10.19 may be by telephone or by
facsimile.
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ARTICLE XI.
NATURE OF OBLIGATIONS
Section 11.01 Absolute and Unconditional Obligations. Borrower acknowledges
and agrees that its obligations and liabilities under this Agreement and under
the other Loan Documents shall be absolute and unconditional irrespective of:
(1) any lack of validity or enforceability of any of the Obligations, any Loan
Documents, or any agreement or instrument relating thereto; (2) any change in
the time, manner or place of payment of, or in any other term in respect of, all
or any of the Obligations, or any other amendment or waiver of or consent to any
departure from any Loan Documents or any other documents or instruments executed
in connection with or related to the Obligations; (3) any exchange or release of
any collateral, if any, or of any other Person from all or any of the
Obligations; or (4) any other circumstances which might otherwise constitute a
defense available to, or a discharge of, Borrower or any other Person in respect
of the Obligations.
The obligations and liabilities of Borrower under this Agreement and other
Loan Documents shall not be conditioned or contingent upon the pursuit by any
Bank or any other Person at any time of any right or remedy against Borrower or
any other Person which may be or become liable in respect of all or any part of
the Obligations or against any collateral or security or guarantee therefor or
right of setoff with respect thereto.
Section 11.02 Non-Recourse to Borrower's Principals. This Agreement and the
obligations hereunder and under the Loan Documents are fully recourse to
Borrower. Notwithstanding anything to the contrary contained in this Agreement,
in any of the other Loan Documents, or in any other instruments, certificates,
documents or agreements executed in connection with the Loans (all of the
foregoing, for purposes of this Section, hereinafter referred to, individually
and collectively, as the "Relevant Documents"), no recourse under or upon any
Obligation, representation, warranty, promise or other matter whatsoever shall
be had against any of Borrower's Principals, and each Bank expressly waives and
releases, on behalf of itself and its successors and assigns, all right to
assert any liability whatsoever under or with respect to the Relevant Documents
against, or to satisfy any claim or obligation arising thereunder against, any
of Borrower's Principals or out of any assets of Borrower's Principals;
provided, however, that nothing in this Section shall be deemed to: (1) release
Borrower from any personal liability pursuant to, or from any of its obligations
under, the Relevant Documents, or from personal liability for its fraudulent
actions or fraudulent omissions; (2) release any of Borrower's Principals from
personal liability for its or his own fraudulent actions or fraudulent
omissions; (3) constitute a waiver of any obligation evidenced or secured by, or
contained in, the Relevant Documents or affect in any way the validity or
enforceability of the Relevant Documents; or (4) limit the right of
Administrative Agent and/or the Banks to proceed against or realize upon any
collateral
59
hereafter given for the Loans or any and all of the assets of Borrower
(notwithstanding the fact that Borrower's Principals have an ownership interest
in Borrower and, thereby, an interest in the assets of Borrower) or to name
Borrower (or, to the extent that the same are required by applicable law or are
determined by a court to be necessary parties in connection with an action or
suit against Borrower or any collateral hereafter given for the Loans, any of
Borrower's Principals) as a party defendant in, and to enforce against any
collateral hereafter given for the Loans and/or assets of Borrower any judgment
obtained by Administrative Agent and/or the Banks with respect to, any action or
suit under the Relevant Documents so long as no judgment shall be taken (except
to the extent taking a judgment is required by applicable law or determined by a
court to be necessary to preserve Administrative Agent's and/or Banks' rights
against any collateral hereafter given for the Loans or Borrower, but not
otherwise) or shall be enforced against Borrower's Principals or their assets.
ARTICLE XII.
MISCELLANEOUS
Section 12.01 Binding Effect of Request for Advance. Borrower agrees that,
by its acceptance of any advance of proceeds of the Loans under this Agreement,
it shall be bound in all respects by the request for advance submitted on its
behalf in connection therewith with the same force and effect as if Borrower had
itself executed and submitted the request for advance and whether or not the
request for advance is executed and/or submitted by an authorized person.
Section 12.02 Amendments and Waivers. No amendment or material waiver of
any provision of this Agreement or any other Loan Document nor consent to any
material departure by Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Required Banks and, solely for
purposes of its acknowledgment thereof, Administrative Agent, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given, provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all the Banks (subject,
however, to the provisions of Section 10.18(d)) do any of the following: (1)
reduce the principal of, or interest on, the Notes or any fees due hereunder or
any other amount due hereunder or under any Loan Document; (2) postpone any date
fixed for any payment of principal of, or interest on, the Notes or any fees due
hereunder or under any Loan Document; (3) change the definition of Required
Banks; (4) amend this Section or any other provision requiring the consent of
all the Banks; (5) waive any default under paragraphs (4), (5) or (6) of Section
9.01 or (6) increase the Total Loan Commitment. Any advance of proceeds of the
Loans made prior to or without the fulfillment by Borrower of all of the
conditions precedent thereto, whether or not known to Administrative Agent and
the Banks, shall not constitute a waiver of the requirement that all conditions,
including the non-performed conditions, shall be required with respect to all
future advances. No failure on the part of Administrative Agent or any Bank to
60
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof or preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law. All communications from
Administrative Agent to the Banks requesting the Banks' determination, consent,
approval or disapproval (i) shall be given in the form of a written notice to
each Bank, (ii) shall be accompanied by a description of the matter or thing as
to which such determination, approval, consent or disapproval is requested and
(iii) shall include Administrative Agent's recommended course of action or
determination in respect thereof. Each Bank shall reply promptly, but in any
event within ten (10) Banking Days (or five (5) Banking Days with respect to any
decision to accelerate or stop acceleration of the Loan) after receipt of the
request therefor by Administrative Agent (the "Bank Reply Period"). Unless a
Bank shall give written notice to Administrative Agent that it objects to the
recommendation or determination of Administrative Agent (together with a written
explanation of the reasons behind such objection) within the Bank Reply Period,
such Bank shall be deemed to have approved or consented to such recommendation
or determination.
Section 12.03 Usury. Anything herein to the contrary notwithstanding, the
obligations of Borrower under this Agreement and the Notes shall be subject to
the limitation that payments of interest shall not be required to the extent
that receipt thereof would be contrary to provisions of law applicable to a Bank
limiting rates of interest which may be charged or collected by such Bank.
Section 12.04 Expenses; Indemnification. Subject to Section 4.01(1),
Borrower agrees to reimburse Administrative Agent on demand for all reasonable
costs, expenses, and charges (including, without limitation, all reasonable fees
and charges of engineers, appraisers and external legal counsel) incurred by
Administrative Agent in connection with the Loans and to reimburse each of the
Banks for reasonable legal costs, expenses and charges incurred by each of the
Banks in connection with the performance or enforcement of this Agreement, the
Notes, or any other Loan Documents; provided, however, that Borrower is not
responsible for costs, expenses and charges incurred by the Bank Parties in
connection with the administration or syndication of the Loans (other than the
administration fee which Borrower has separately agreed to pay to UBS as
Administrative Agent). Borrower agrees to indemnify Administrative Agent and
each Bank and their respective directors, officers, employees and agents from,
and hold each of them harmless against, any and all losses, liabilities, claims,
damages or expenses incurred by any of them arising out of or by reason of (x)
any claims by brokers due to acts or omissions by Borrower, or (y) any
investigation or litigation or other proceedings (including any threatened
investigation or litigation or other proceedings) relating to any actual or
proposed use by Borrower of the proceeds of the Loans, including without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation or litigation or other proceedings (but
excluding any such losses, liabilities, claims, damages or expenses incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified).
61
The obligations of Borrower under this Section shall survive the repayment
of all amounts due under or in connection with any of the Loan Documents and the
termination of the Loans.
Section 12.05 Assignment; Participation. This Agreement shall be binding
upon, and shall inure to the benefit of, Borrower, Administrative Agent, the
Banks and their respective successors and permitted assigns. Borrower may not
assign or transfer its rights or obligations hereunder, in whole or in part,
without, in each such case, the prior unanimous written consent of the Banks,
which consent may be granted or denied by the Banks in their sole and absolute
discretion.
Any Non-Delinquent Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Loan (the
"Participations"). In the event of any such grant by a Bank of a participating
interest to a Participant, whether or not Borrower or Administrative Agent was
given notice, such Bank shall remain responsible for the performance of its
obligations hereunder, and Borrower and Administrative Agent shall continue to
deal solely and directly with such Bank in connection with such Bank's rights
and obligations hereunder. Any agreement pursuant to which any Bank may grant
such a participating interest shall provide that such Bank shall retain the sole
right and responsibility to enforce the obligations of Borrower hereunder and
under any other Loan Document including, without limitation, the right to
approve any amendment, modification or waiver of any provision of this Agreement
or any other Loan Document; provided that such participation agreement may
provide that such Bank will not agree to any modification, amendment or waiver
of this Agreement described in clauses (1) through (5) of Section 12.02 without
the consent of the Participant.
Subject to the provisions of Section 10.14, any Non-Delinquent Bank may at
any time assign to any bank or other institution with the acknowledgment of
Administrative Agent and the consent of UBS and, provided there exists no Event
of Default, of Borrower, which consents shall not be unreasonably withheld or
delayed (such assignee, a "Consented Assignee"), or to one or more banks or
other institutions which are majority owned subsidiaries of a Bank or to the
Parent of a Bank (each Consented Assignee or subsidiary bank or institution, an
"Assignee") all, or a proportionate part of all, of its rights and obligations
under this Agreement and its Note, and such Assignee shall assume rights and
obligations, pursuant to an Assignment and Assumption Agreement executed by such
Assignee and the assigning Bank, provided that, in each case, after giving
effect to such assignment the Assignee's Loan Commitment and, in the case of a
partial assignment, the assigning Bank's Loan Commitment, each will be equal to
or greater than Fifteen Million Dollars ($15,000,000). Upon (i) execution and
delivery of such instrument, (ii) payment by such Assignee to the Bank of an
amount equal to the purchase price agreed between the Bank and such Assignee and
(iii) payment, at Administrative Agent's option, by such Assignee to
Administrative Agent of a fee, for Administrative Agent's own account, in the
amount of Two Thousand Five Hundred Dollars ($2,500), such Assignee shall be a
Bank Party to
62
this Agreement and shall have all the rights and obligations of a Bank as set
forth in such Assignment and Assumption Agreement, and the assigning Bank shall
be released from its obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required. Upon the consummation
of any assignment pursuant to this paragraph, substitute Ratable Loan Notes
shall be issued to the assigning Bank (in the case of a partial assignment) and
Assignee by Borrower, in exchange for the return of the original Ratable Loan
Note of the assigning Bank. The obligations evidenced by such substitute notes
shall constitute "Obligations" for all purposes of this Agreement and the other
Loan Documents. In connection with Borrower's execution of substitute notes as
aforesaid, Borrower shall deliver to Administrative Agent evidence, reasonably
satisfactory to Administrative Agent, of all requisite corporate, partnership or
other action to authorize Borrower's execution and delivery of the substitute
notes and any related documents. If the Assignee is not incorporated under the
laws of the United States of America or a state thereof, it shall, prior to the
first date on which interest or fees are payable hereunder for its account,
deliver to Borrower and Administrative Agent certification as to exemption from
deduction or withholding of any United States federal income taxes in accordance
with Section 10.13. Each Assignee shall be deemed to have made the
representations contained in, and shall be bound by the provisions of, Section
10.13.
Any Bank may at any time assign all or any portion of its rights under this
Agreement and its Note to a Federal Reserve Bank. No such assignment shall
release the transferor Bank from its obligations hereunder.
Borrower recognizes that in connection with a Bank's selling of
Participations or making of assignments, any or all documentation, financial
statements, appraisals and other data, or copies thereof, relevant to Borrower
or the Loans may be exhibited to and retained by any such Participant or
assignee or prospective Participant or assignee. In connection with a Bank's
delivery of any financial statements and appraisals to any such Participant or
assignee or prospective Participant or assignee, such Bank shall also indicate
that the same are delivered on a confidential basis. Borrower agrees to provide
all assistance reasonably requested by a Bank to enable such Bank to sell
Participations or make assignments of its Loan as permitted by this Section.
Each Bank agrees to provide Borrower with notice of all Participations sold by
such Bank.
Section 12.06 Documentation Satisfactory. All documentation required from
or to be submitted on behalf of Borrower in connection with this Agreement and
the documents relating hereto shall be subject to the prior approval of, and be
reasonably satisfactory in form and substance to, Administrative Agent, its
counsel and, where specifically provided herein, the Banks. In addition, the
persons or parties responsible for the execution and delivery of, and
signatories to, all of such documentation, shall be acceptable to, and subject
to the approval of, Administrative Agent and its counsel and the Banks.
63
Section 12.07 Notices. Except as expressly provided otherwise, all notices,
demands, consents, approvals and statements required or permitted hereunder
shall be in writing and shall be deemed to have been sufficiently given or
served for all purposes when presented personally, three (3) business days after
mailing by registered or certified mail, postage prepaid, or one (1) business
day after delivery to a nationally recognized overnight courier service
providing evidence of the date of delivery, to a party at its address stated on
its signature page hereof (or in the applicable Assignment and Assumption
Agreement), or at such other address of which a party shall have notified the
party giving such notice in writing in accordance with the foregoing
requirements.
Section 12.08 Intentionally omitted.
Section 12.09 Table of Contents; Headings. Any table of contents and the
headings and captions hereunder are for convenience only and shall not affect
the interpretation or construction of this Agreement.
Section 12.10 Severability. The provisions of this Agreement are intended
to be severable. If for any reason any provision of this Agreement shall be held
invalid or unenforceable in whole or in part in any jurisdiction, such provision
shall, as to such jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
Section 12.11 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any party hereto may execute this Agreement by signing any such
counterpart.
Section 12.12 Integration. The Loan Documents set forth the entire
agreement among the parties hereto relating to the transactions contemplated
thereby (except with respect to agreements relating solely to compensation,
consideration and the coordinated syndication of the Loan) and supersede any
prior oral or written statements or agreements with respect to such
transactions.
Section 12.13 Governing Law. This Agreement shall be governed by, and
interpreted and construed in accordance with, the laws of the State of New York.
Section 12.14 Waivers. To the extent permitted or not expressly prohibited
by applicable law, in connection with the obligations and liabilities as
aforesaid, Borrower hereby waives: (1) promptness and diligence; (2) notice of
any actions taken by any Bank Party under this Agreement, any other Loan
Document or any other agreement or instrument relating thereto except to the
extent otherwise provided herein; (3) all other notices, demands and protests
(except as expressly provided herein), and all other formalities of every kind
in connection with the enforcement of the Obligations, the omission of or delay
in which, but for the provisions of this Section,
64
might constitute grounds for relieving Borrower of its obligations hereunder;
(4) any requirement that any Bank Party protect, secure, perfect or insure any
Lien on any collateral or exhaust any right or take any action against Borrower
or any other Person or any collateral; (5) any right or claim of right to cause
a marshalling of the assets of Borrower; and (6) all rights of subrogation or
contribution, whether arising by contract or operation of law (including,
without limitation, any such right arising under the Federal Bankruptcy Code) or
otherwise by reason of payment by Borrower pursuant to this Agreement or other
Loan Documents.
Section 12.15 Jurisdiction; Immunities. Borrower, Administrative Agent and
each Bank hereby irrevocably submit to the jurisdiction of any New York State or
United States Federal court sitting in New York City over any action or
proceeding arising out of or relating to this Agreement, the Notes or any other
Loan Document. Borrower, Administrative Agent, and each Bank irrevocably agree
that all claims in respect of such action or proceeding may be heard and
determined in such New York State or United States Federal court. Borrower,
Administrative Agent, and each Bank irrevocably consent to the service of any
and all process in any such action or proceeding by the mailing of copies of
such process to Borrower, Administrative Agent or each Bank, as the case may be,
at the addresses specified herein. Borrower, Administrative Agent and each Bank
agree 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. Borrower, Administrative Agent and each Bank
further waive any objection to venue in the State of New York and any objection
to an action or proceeding in the State of New York on the basis of forum non
convenient. Borrower, Administrative Agent and each Bank agree that any action
or proceeding brought against Borrower, Administrative Agent or any Bank, as the
case may be, shall be brought only in a New York State court sitting in New York
City or a United States Federal court sitting in New York City, to the extent
permitted or not expressly prohibited by applicable law.
Nothing in this Section shall affect the right of Borrower, Administrative
Agent or any Bank to serve legal process in any other manner permitted by law.
To the extent that Borrower, Administrative Agent or any Bank have or
hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether from service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, Borrower, Administrative Agent and each Bank hereby irrevocably
waive such immunity in respect of its obligations under this Agreement, the
Notes and any other Loan Document.
BORROWER, ADMINISTRATIVE AGENT AND EACH BANK WAIVE ANY RIGHT EACH SUCH
PARTY MAY HAVE TO JURY TRIAL IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING
BROUGHT WITH RESPECT TO THIS AGREEMENT, THE NOTES OR THE LOAN. IN ADDITION,
BORROWER HEREBY WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR
65
PROCEEDING BROUGHT BY ADMINISTRATIVE AGENT OR THE BANKS WITH RESPECT TO THE
NOTES, ANY RIGHT BORROWER MAY HAVE TO (1) TO THE EXTENT PERMITTED OR NOT
EXPRESSLY PROHIBITED BY APPLICABLE LAW, INTERPOSE ANY COUNTERCLAIM THEREIN
(OTHER THAN A COUNTERCLAIM THAT IF NOT BROUGHT IN THE SUIT, ACTION OR PROCEEDING
BROUGHT BY ADMINISTRATIVE AGENT OR THE BANKS COULD NOT BE BROUGHT IN A SEPARATE
SUIT, ACTION OR PROCEEDING OR WOULD BE SUBJECT TO DISMISSAL OR SIMILAR
DISPOSITION FOR FAILURE TO HAVE BEEN ASSERTED IN SUCH SUIT, ACTION OR PROCEEDING
BROUGHT BY ADMINISTRATIVE AGENT OR THE BANKS) OR (2) TO THE EXTENT PERMITTED OR
NOT EXPRESSLY PROHIBITED BY APPLICABLE LAW, HAVE THE SAME CONSOLIDATED WITH ANY
OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING HEREIN CONTAINED SHALL
PREVENT OR PROHIBIT BORROWER FROM INSTITUTING OR MAINTAINING A SEPARATE ACTION
AGAINST ADMINISTRATIVE AGENT OR THE BANKS WITH RESPECT TO ANY ASSERTED CLAIM.
Section 12.16 Designated Lender. Any Bank (other than a Bank who is such
solely because it is a Designated Lender) (each, a "Designating Lender") may at
any time designate one (1) Designated Lender to fund Bid Rate Loans on behalf of
such Designating Lender subject to the terms of this Section and the provisions
in Section 12.05 shall not apply to such designation. No Bank may designate more
than one (1) Designated Lender. The parties to each such designation shall
execute and deliver to 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 Lender, Administrative Agent will accept such Designation Agreement
and give prompt notice thereto to Borrower, whereupon, (i) from and after the
"Effective Date" specified in the Designation Agreement, the Designated Lender
shall become a party to this Agreement with a right to make Bid Rate Loans on
behalf of its Designating Lender pursuant to Section 2.02 after Borrower has
accepted the Bid Rate Quote of the Designating Lender and (ii) the Designated
Lender 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
Lender which is not otherwise required to repay obligations of such Designated
Lender which are then due and payable; provided, however, that regardless of
such designation and assumption by the Designated Lender, the Designating Lender
shall be and remain obligated to Borrower, Administrative Agent and the Banks
for each and every of the obligations of the Designating Lender and its related
Designated Lender with respect to this Agreement, including, without limitation,
any indemnification obligations under Section 10.05. Each Designating Lender
shall serve as the administrative agent of its Designated Lender and shall on
behalf of, and to the exclusion of, the Designated Lender: (i) receive any and
all payments made for the benefit of the Designated Lender and (ii) give and
receive all communications and notices and take all actions hereunder,
including, without limitation, votes, approvals, waivers and consents under or
relating to this Agreement and the other Loan Documents. Any such notice,
communication, vote,
66
approval, waiver or consent shall be signed by the Designating Lender as
administrative agent for the Designated Lender and shall not be signed by the
Designated Lender on its own behalf, but shall be binding on the Designated
Lender to the same extent as if actually signed by the Designated Lender.
Borrower, Administrative Agent and the Banks may rely thereon without any
requirement that the Designated Lender sign or acknowledge the same. No
Designated Lender 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 Lender.
Section 12.17 No Bankruptcy Proceedings. Each of Borrower, the Banks and
Administrative Agent hereby agrees that it will not institute against any
Designated Lender or join any other Person in instituting against any Designated
Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding under any federal or state bankruptcy or similar law, for one (1)
year and one (1) day after the payment in full of the latest maturing commercial
paper note issued by such Designated Lender.
67
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
PRICE ENTERPRISES, INC.,
a Maryland corporation
By /s/▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: CEO
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
UNION BANK OF SWITZERLAND
(New York Branch)
(as Bank and Administrative Agent)
By /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
By /s/▇▇▇▇▇▇ ▇▇▇▇▇ III
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ III
Title: Managing Director
Address for Notices and Applicable
Lending Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Real Estate Finance and
▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
68
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS, ETC.....................................................................1
Section 1.01 Definitions..........................................................................1
Section 1.02 Accounting Terms....................................................................16
Section 1.03 Computation of Time Periods.........................................................16
Section 1.04 Rules of Construction...............................................................16
ARTICLE II. THE LOANS...........................................................................17
Section 2.01 Ratable Loans; Bid Rate Loans; Purpose..............................................17
Section 2.02 Bid Rate Loans......................................................................18
Section 2.03 Advances, Generally.................................................................21
Section 2.04 Procedures for Advances.............................................................22
Section 2.05 Interest Periods; Renewals..........................................................23
Section 2.06 Interest............................................................................23
Section 2.07 Fees................................................................................24
Section 2.08 Notes...............................................................................24
Section 2.09 Prepayments.........................................................................25
Section 2.10 Method of Payment; Certain Consequences of
Delinquent Bank Status .............................................................25
Section 2.11 Elections, Conversions or Continuation of Loans.....................................26
Section 2.12 Minimum Amounts.....................................................................27
Section 2.13 Certain Notices Regarding Elections, Conversions and
Continuations of Loans .............................................................27
Section 2.14 Late Payment Premium................................................................27
Section 2.15 Changes of Commitments..............................................................28
Section 2.16 Letters of Credit...................................................................28
ARTICLE III. YIELD PROTECTION; ILLEGALITY; ETC...................................................29
Section 3.01 Additional Costs....................................................................29
Section 3.02 Limitation on Types of Loans........................................................31
Section 3.03 Illegality..........................................................................31
Section 3.04 Treatment of Affected Loans.........................................................32
Section 3.05 Certain Compensation................................................................32
Section 3.06 Capital Adequacy....................................................................33
Section 3.07 Substitution of Banks...............................................................33
Section 3.08 "Bank" to Include Participants......................................................35
ARTICLE IV. CONDITIONS PRECEDENT................................................................35
Section 4.01 Conditions Precedent to the Loans...................................................35
Section 4.02 Conditions Precedent to Advances After the Initial Advance..........................37
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Page
Section 4.03 Deemed Representations..............................................................37
ARTICLE V. REPRESENTATIONS AND WARRANTIES......................................................38
Section 5.01 Existence...........................................................................38
Section 5.02 Corporate Powers....................................................................38
Section 5.03 Power of Officers...................................................................38
Section 5.04 Power and Authority; No Conflicts; Compliance With Laws.............................38
Section 5.05 Legally Enforceable Agreements......................................................39
Section 5.06 Litigation..........................................................................39
Section 5.07 Good Title to Properties............................................................39
Section 5.08 Taxes...............................................................................39
Section 5.09 ERISA...............................................................................39
Section 5.10 No Default on Outstanding Judgments or Orders.......................................40
Section 5.11 No Defaults on Other Agreements.....................................................40
Section 5.12 Government Regulation...............................................................40
Section 5.13 Environmental Protection............................................................40
Section 5.14 Solvency............................................................................40
Section 5.15 Financial Statements................................................................41
Section 5.16 Valid Existence of Affiliates.......................................................41
Section 5.17 Insurance...........................................................................41
Section 5.18 Accuracy of Information; Full Disclosure............................................41
ARTICLE VI. AFFIRMATIVE COVENANTS...............................................................42
Section 6.01 Maintenance of Existence............................................................42
Section 6.02 Maintenance of Records..............................................................42
Section 6.03 Maintenance of Insurance............................................................42
Section 6.04 Compliance with Laws; Payment of Taxes..............................................42
Section 6.05 Right of Inspection.................................................................42
Section 6.06 Compliance With Environmental Laws..................................................42
Section 6.07 Payment of Costs....................................................................43
Section 6.08 Maintenance of Properties...........................................................43
Section 6.09 Reporting and Miscellaneous Document Requirements...................................43
ARTICLE VII. NEGATIVE COVENANTS..................................................................46
Section 7.01 Mergers Etc.........................................................................46
Section 7.02 Investments.........................................................................46
Section 7.03 Sale of Assets......................................................................46
Section 7.04 Management..........................................................................46
ARTICLE VIII. FINANCIAL COVENANTS.................................................................47
Section 8.01 Equity Value........................................................................47
Section 8.02 Leverage Ratio......................................................................47
Section 8.03 Relationship of Secured Indebtedness to Capitalization Value........................47
ii
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Section 8.04 Relationship of Combined EBITDA to Interest Expense................................47
Section 8.05 Relationship of Combined EBITDA to Total
Outstanding Indebtedness ..........................................................47
Section 8.06 Unsecured Debt Yield...............................................................47
Section 8.07 Relationship of Combined EBITDA to Fixed Charges...................................47
Section 8.08 Relationship of Unencumbered Combined EBITDA to
Unsecured Interest Expense ........................................................47
Section 8.09 Dividend Payment Ratio.............................................................47
Section 8.10 Construction in Progress...........................................................48
ARTICLE IX. EVENTS OF DEFAULT..................................................................48
Section 9.01 Events of Default..................................................................48
Section 9.02 Remedies...........................................................................50
ARTICLE X. ADMINISTRATIVE AGENT; RELATIONS AMONG BANKS........................................50
Section 10.01 Appointment, Powers and Immunities of Administrative
Agent .............................................................................50
Section 10.02 Reliance by Administrative Agent...................................................51
Section 10.03 Defaults...........................................................................51
Section 10.04 Rights of Administrative Agent as a Bank...........................................52
Section 10.05 Indemnification of Administrative Agent............................................52
Section 10.06 Non-Reliance on Administrative Agent and Other
Banks .............................................................................52
Section 10.07 Failure of Administrative Agent to Act.............................................53
Section 10.08 Resignation or Removal of Administrative Agent.....................................53
Section 10.09 Amendments Concerning Agency Function..............................................53
Section 10.10 Liability of Administrative Agent..................................................54
Section 10.11 Transfer of Agency Function........................................................54
Section 10.12 Non-Receipt of Funds by Administrative Agent.......................................54
Section 10.13 Withholding Taxes..................................................................54
Section 10.14 Minimum Commitment by UBS..........................................................55
Section 10.15 Pro Rata Treatment.................................................................55
Section 10.16 Sharing of Payments Among Banks....................................................55
Section 10.17 Possession of Documents............................................................55
Section 10.18 Effect of a Bank's Failure to Make an Advance......................................56
Section 10.19 Cure by Delinquent Bank............................................................58
Section 10.20 Delinquent Bank Not Excused........................................................59
Section 10.21 Notices Regarding Delinquent Bank..................................................59
ARTICLE XI. NATURE OF OBLIGATIONS..............................................................59
Section 11.01 Absolute and Unconditional Obligations.............................................59
Section 11.02 Non-Recourse to Borrower's Principals..............................................60
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ARTICLE XII. MISCELLANEOUS......................................................................60
Section 12.01 Binding Effect of Request for Advance..............................................60
Section 12.02 Amendments and Waivers.............................................................61
Section 12.03 Usury..............................................................................61
Section 12.04 Expenses; Indemnification..........................................................62
Section 12.05 Assignment; Participation..........................................................62
Section 12.06 Documentation Satisfactory.........................................................64
Section 12.07 Notices............................................................................64
Section 12.08 Intentionally omitted..............................................................64
Section 12.09 Table of Contents; Headings........................................................64
Section 12.10 Severability.......................................................................64
Section 12.11 Counterparts.......................................................................65
Section 12.12 Integration........................................................................65
Section 12.13 Governing Law......................................................................65
Section 12.14 Waivers............................................................................65
Section 12.15 Jurisdiction; Immunities...........................................................65
Section 12.16 Designated Lender..................................................................66
Section 12.17 No Bankruptcy Proceedings..........................................................67
EXHIBIT A - Authorization Letter
EXHIBIT B - Ratable Loan Note
EXHIBIT C - Bid Rate Loan Note
EXHIBIT D - Solvency Certificate
EXHIBIT E - Assignment and Assumption Agreement
EXHIBIT F - List of Material Affiliates
EXHIBIT G-1 - Bid Rate Quote Request
EXHIBIT G-2 - Invitation for Bid Rate Quotes
EXHIBIT G-3 - Bid Rate Quote
EXHIBIT G-4 - Borrower's Acceptance of Bid Rate Quote
EXHIBIT H - Designation Agreement
EXHIBIT H-1 Jurisdictions in which Borrower is to Qualify
iv
EXHIBIT I - Litigation Schedule
EXHIBIT J - Material Adverse Change
EXHIBIT K - Properties with Hazardous Materials
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