Exhibit 10(x)
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$75,000,000 Term Credit Facility
TERM LOAN AGREEMENT
Dated as of September 11, 2003
by and among
KEYSTONE OPERATING PARTNERSHIP, L.P.,
as Borrower,
KEYSTONE PROPERTY TRUST,
as Parent,
THE FINANCIAL INSTITUTIONS PARTY HERETO
AND THEIR ASSIGNEES UNDER SECTION 13.6.,
as Lenders,
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Agent
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TABLE OF CONTENTS
Article I. Definitions.....................................................................1
Section 1.1. Definitions.........................................................1
Section 1.2. General; References to Pacific Standard Time........................22
Article II. Credit Facility................................................................22
Section 2.1. Term Loans..........................................................22
Section 2.2. Rates and Payment of Interest on Loans..............................23
Section 2.3. Number of Interest Periods..........................................24
Section 2.4. Repayment of Loans..................................................24
Section 2.5. Prepayments.........................................................24
Section 2.6. Late Charges........................................................24
Section 2.7. Continuation........................................................24
Section 2.8. Conversion..........................................................25
Section 2.9. Notes...............................................................25
Section 2.10. Amount Limitations.................................................26
Article III. Payments, Fees and Other General Provisions...................................26
Section 3.1. Payments............................................................26
Section 3.2. Pro Rata Treatment..................................................26
Section 3.3. Sharing of Payments, Etc............................................27
Section 3.4. Several Obligations.................................................27
Section 3.5. Minimum Amounts.....................................................27
Section 3.6. Fees................................................................28
Section 3.7. Computations........................................................28
Section 3.8. Usury...............................................................28
Section 3.9. Statements of Account...............................................29
Section 3.10. Defaulting Lenders.................................................29
Section 3.11. Taxes..............................................................29
Article IV. Unencumbered Pool Properties..................................................31
Section 4.1. Inclusion of Unencumbered Pool Properties...........................31
Section 4.2. Termination of Designation as Unencumbered Pool Property............31
Article V. Yield Protection, Etc...........................................................32
Section 5.1. Additional Costs; Capital Adequacy..................................32
Section 5.2. Suspension of LIBOR Loans...........................................33
Section 5.3. Illegality..........................................................33
Section 5.4. Compensation........................................................33
Section 5.5. Treatment of Affected Loans.........................................34
Section 5.6. Change of Lending Office............................................35
Section 5.7. Assumptions Concerning Funding of LIBOR Loans.......................35
Article VI. Conditions Precedent...........................................................35
Section 6.1. Initial Conditions Precedent........................................35
Section 6.2. Conditions Precedent to All Loans...................................38
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Section 6.3. Conditions as Covenants.............................................38
Article VII. Representations and Warranties................................................38
Section 7.1. Representations and Warranties......................................38
Section 7.2. Survival of Representations and Warranties, Etc.....................44
Article VIII. Affirmative Covenants........................................................45
Section 8.1. Preservation of Existence and Similar Matters.......................45
Section 8.2. Compliance with Applicable Law and Material Contracts...............45
Section 8.3. Maintenance of Property.............................................45
Section 8.4. Conduct of Business.................................................45
Section 8.5. Insurance...........................................................45
Section 8.6. Payment of Taxes and Claims.........................................46
Section 8.7. Books and Records; Inspections......................................46
Section 8.8. Use of Proceeds.....................................................46
Section 8.9. Environmental Matters...............................................47
Section 8.10. Further Assurances.................................................47
Section 8.11. Material Contracts.................................................47
Section 8.12. REIT Status........................................................47
Section 8.13. Exchange Listing...................................................47
Section 8.14. Guarantors; Release of Guarantors..................................48
Article IX. Information....................................................................49
Section 9.1. Quarterly Financial Statements......................................50
Section 9.2. Year-End Statements.................................................50
Section 9.3. Compliance Certificate..............................................50
Section 9.4. Other Information...................................................51
Article X. Negative Covenants..............................................................53
Section 10.1. Financial Covenants................................................53
Section 10.2. Asset Value of Non-Guarantor Entities..............................56
Section 10.3. Indebtedness.......................................................56
Section 10.4. Negative Pledge....................................................56
Section 10.5. Restrictions on Intercompany Transfers.............................57
Section 10.6. Merger, Consolidation, Sales of Assets and Other Arrangements......57
Section 10.7. Plans..............................................................58
Section 10.8. Fiscal Year........................................................58
Section 10.9. Modifications of Organizational Documents and Material Contracts...58
Section 10.10. Transactions with Affiliates......................................58
Article XI. Default........................................................................59
Section 11.1. Events of Default..................................................59
Section 11.2. Remedies Upon Event of Default.....................................62
Section 11.3. Remedies Upon Default..............................................63
Section 11.4. Marshaling; Payments Set Aside.....................................63
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Section 11.5. Allocation of Proceeds.............................................64
Section 11.6. Performance by Agent...............................................64
Section 11.7. Rights Cumulative..................................................64
Section 11.8. Rescission of Acceleration by Requisite Lenders....................65
Article XII. The Agent.....................................................................65
Section 12.1. Appointment and Authorization......................................65
Section 12.2. Agent's Reliance, Etc..............................................66
Section 12.3. Notice of Defaults.................................................67
Section 12.4. Xxxxx Fargo as Lender..............................................67
Section 12.5. Approvals of Lenders...............................................67
Section 12.6. Lender Credit Decision, Etc........................................68
Section 12.7. Indemnification of Agent...........................................68
Section 12.8. Successor Agent....................................................69
Article XIII. Miscellaneous................................................................70
Section 13.1. Notices............................................................70
Section 13.2. Expenses...........................................................70
Section 13.3. Stamp, Intangible and Recording Taxes..............................71
Section 13.4. Setoff.............................................................71
Section 13.5. Litigation; Jurisdiction; Other Matters; Waivers...................72
Section 13.6. Successors and Assigns.............................................73
Section 13.7. Amendments and Waivers.............................................75
Section 13.8. Nonliability of Agent and Lenders..................................77
Section 13.9. Confidentiality....................................................77
Section 13.10. Indemnification...................................................78
Section 13.11. Termination; Survival.............................................79
Section 13.12. Severability of Provisions........................................80
Section 13.13. GOVERNING LAW.....................................................80
Section 13.14. Counterparts......................................................80
Section 13.15. Obligations with Respect to Loan Parties..........................80
Section 13.16. Marshaling; Payments Set Aside....................................80
Section 13.17. Independence of Covenants.........................................81
Section 13.18. Limitation of Liability...........................................81
Section 13.19. Entire Agreement..................................................81
Section 13.20. Construction......................................................81
Section 13.21. New York Collateral Documents.....................................81
SCHEDULE 1.1.(A) List of Loan Parties
SCHEDULE 1.1.(B) New York Collateral Documents
SCHEDULE 4.1. Initial Unencumbered Pool Properties
SCHEDULE 7.1.(b) Ownership Structure
SCHEDULE 7.1.(f) Title to Properties; Liens
SCHEDULE 7.1.(g) Existing Indebtedness; Total Liabilities
SCHEDULE 7.1.(h) Material Contracts
SCHEDULE 7.1.(i) Litigation
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EXHIBIT A Form of Assignment and Acceptance Agreement
EXHIBIT B Form of Guaranty
EXHIBIT C Form of Notice of Borrowing
EXHIBIT D Form of Notice of Continuation
EXHIBIT E Form of Notice of Conversion
EXHIBIT F Form of Unencumbered Pool Certificate
EXHIBIT G Form of Term Note
EXHIBIT H Form of Opinion of Counsel
EXHIBIT I Form of Compliance Certificate
EXHIBIT J Form of Mortgage Assignment
EXHIBIT K Form of Mortgage Modification
EXHIBIT L Form of Environmental Indemnity Agreement
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THIS TERM LOAN AGREEMENT dated as of September 11, 2003 by and among
KEYSTONE OPERATING PARTNERSHIP, L.P., a limited partnership organized under the
laws of the State of Delaware (the "Borrower"), KEYSTONE PROPERTY TRUST, a real
estate investment trust formed under the laws of the State of Maryland (the
"Parent"), each of the financial institutions initially a signatory hereto
together with their assignees pursuant to Section 13.6.(d) (the "Lenders") and
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as contractual representative of the
Lenders to the extent and in the manner provided in Article XII. (in such
capacity, the "Agent").
WHEREAS, the Lenders and the Agent are entering into this Agreement, among
other things, to make available to the Borrower a $75,000,000 term loan facility
on the terms and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.1. DEFINITIONS.
In addition to terms defined elsewhere herein, the following terms shall
have the following meanings for the purposes of this Agreement:
"ACCESSION AGREEMENT" means an Accession Agreement substantially in the
form of Annex I to the Guaranty.
"ADDITIONAL COSTS" has the meaning given that term in Section 5.1.
"AFFILIATE" means any Person (other than the Agent or any Lender): (a)
directly or indirectly controlling, controlled by, or under common control with,
the Borrower; (b) directly or indirectly owning or holding fifteen percent
(15.0%) or more of any equity interest in the Borrower; or (c) fifteen percent
(15.0%) or more of whose voting stock or other equity interest is directly or
indirectly owned or held by the Borrower. For purposes of this definition,
"control" (including with correlative meanings, the terms "controlling",
"controlled by" and "under common control with") means the possession directly
or indirectly of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities or
by contract or otherwise. The Affiliates of a Person shall include any officer
or director of such Person. In no event shall the Agent or any Lender be deemed
to be an Affiliate of the Borrower.
"AGENT" means Xxxxx Fargo Bank, National Association or any successor
Agent appointed pursuant to Section 12.8.
"AGREEMENT DATE" means the date as of which this Agreement is dated.
"APPLICABLE LAW" means all applicable provisions of constitutions,
statutes, rules, regulations and orders of all governmental bodies and all
orders and decrees of all courts, tribunals and arbitrators.
"APPLICABLE MARGIN" means the percentage rate set forth below
corresponding to the ratio of Total Liabilities to Gross Asset Value as
determined in accordance with Section 10.1.(a) in effect at such time:
RATIO OF TOTAL LIABILITIES APPLICABLE MARGIN APPLICABLE MARGIN
LEVEL TO GROSS ASSET VALUE FOR LIBOR LOANS FOR BASE RATE LOANS
----- ---------------------------- ----------------- -------------------
1 Less than 0.35 to 1.00 1.35% 0%
2 Greater than or equal to 1.50% 0%
0.35 to 1.00 but less than
0.45 to 1.00
3 Greater than or equal to 1.625% 0%
0.45 to 1.00 but less than
0.55 to 1.00
4 Greater than or equal to 1.75% 0%
0.55 to 1.00
The Applicable Margin shall be determined by the Agent from time to time, based
on the ratio of Total Liabilities to Gross Asset Value as set forth in the
Compliance Certificate most recently delivered by the Parent pursuant to Section
9.3. Any such adjustment to the Applicable Margin shall be effective as of the
first day of the calendar month immediately following the month during which the
Parent delivers to the Agent the applicable Compliance Certificate pursuant to
Section 9.3. If the Parent fails to deliver a Compliance Certificate pursuant to
Section 9.3, the Applicable Margin shall equal the percentages corresponding to
Level 4 until the date of the delivery of the required Compliance Certificate.
Notwithstanding the foregoing, for the period from the Effective Date through
but excluding the date on which the Agent first determines the Applicable Margin
as set forth above, such Applicable Margin shall equal the percentages
corresponding to Level 3. Thereafter, such Applicable Margin shall be adjusted
from time to time as set forth in this definition.
"ASSET VALUE" means (a) with respect to any Subsidiary at a given time,
the sum of (i) the Capitalized EBITDA of such Subsidiary at such time, plus (ii)
the book value of all Construction in Process of such Subsidiary as of the end
of the Parent's fiscal quarter most recently ended, and (b) with respect to any
Unconsolidated Affiliate at a given time the sum of (i) with respect to any of
such Unconsolidated Affiliate's Properties under construction, the Parent's
Ownership Share of the book value of Construction in Process for such Property
as of the end of the Parent's fiscal quarter most recently ended and (ii) with
respect to any of such Unconsolidated Affiliate's Properties which have been
completed, the Parent's Ownership Share of Capitalized EBITDA of such
Unconsolidated Affiliate attributable to such Properties.
"ASSIGNEE" has the meaning given that term in Section 13.6.(d).
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" means an Assignment and Acceptance
Agreement among a Lender, an Assignee and the Agent, substantially in the form
of Exhibit A.
"BASE RATE" means the greater of (a) the rate of interest per annum
publicly announced from time to time by the Lender then acting as Agent at its
principal office in San Francisco,
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California as its "prime rate" (which rate of interest may not be the lowest
rate charged by the Lender then acting as Agent or any of the other Lenders on
similar loans) and (b) the Federal Funds Rate plus one-half of one percent
(0.5%). Each change in the Base Rate shall become effective without prior notice
to the Borrower or the Lenders automatically as of the opening of business on
the date of such change in the Base Rate.
"BASE RATE LOAN" means a Term Loan bearing interest at a rate based on the
Base Rate.
"BENEFIT ARRANGEMENT" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the ERISA
Group.
"BORROWER" has the meaning set forth in the introductory paragraph hereof
and shall include the Borrower's successors and permitted assigns.
"BUSINESS DAY" means (a) any day other than a Saturday, Sunday or other
day on which banks in Philadelphia, Pennsylvania, Washington, D.C., or San
Francisco, California are authorized or required to close and (b) with reference
to a LIBOR Loan, any such day that is also a day on which dealings in Dollar
deposits are carried out in the London interbank market.
"CAPITALIZATION RATE" means (a) with respect to EBITDA attributable to
office Properties or Properties held through a ground lease, 10% and (b) in all
other cases, 9.25%.
"CAPITALIZED EBITDA" means, with respect to a Person and as of a given
date, (a) such Person's EBITDA for the fiscal quarter most recently ended times
(b) 4 and divided by (c) the applicable Capitalization Rate. In determining
Capitalized EBITDA, EBITDA attributable to real estate properties either
acquired or disposed of by such Person during such fiscal quarter shall be
disregarded.
"CAPITALIZED LEASE OBLIGATION" means obligations under a lease that is
required to be capitalized for financial reporting purposes in accordance with
GAAP. The amount of a Capitalized Lease Obligation is the capitalized amount of
such obligation determined in accordance with GAAP.
"COMMITMENT" means, as to each Lender, such Lender's obligation to make
Term Loans pursuant to Section 2.1. in an amount up to, but not exceeding, the
amount set forth for such Lender on its signature page hereto as such Lender's
"Commitment Amount" or as set forth in the applicable Assignment and Acceptance
Agreement, as the same may be reduced to reflect any assignments to or by such
Lender effected in accordance with Section 13.6.
"COMMITMENT TERMINATION DATE" means that date which is 180 days after the
Effective Date.
"COMPLIANCE CERTIFICATE" has the meaning given that term in Section 9.3.
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"CONSTRUCTION IN PROCESS" means construction in process as determined in
accordance with GAAP.
"CONTINUE", "CONTINUATION" and "CONTINUED" each refers to the continuation
of a LIBOR Loan from one Interest Period to another Interest Period pursuant to
Section 2.7.
"CONVERT", "CONVERSION" and "CONVERTED" each refers to the conversion of a
Term Loan of one Type into a Term Loan of another Type pursuant to Section 2.8.
"CREDIT EVENT" means any of the following: (a) the making of any Loan, (b)
the Conversion of a Term Loan, and (c) the Continuation of a LIBOR Loan.
"CREDIT PERCENTAGE" means, as to each Lender, the ratio, expressed as a
percentage, of (a) the amount of such Lender's Commitment to (b) the aggregate
amount of the Commitments of all Lenders hereunder; provided, however, that if
at the time of determination the Commitments have terminated, the "Credit
Percentage" of each Lender shall be the ratio, expressed as a percentage, of (x)
the aggregate principal amount of Term Loans owed to such Lender to (y) the
aggregate principal amount of all outstanding Term Loans.
"DEBT SERVICE" means, with respect to any Person and for any period, the
sum of (a) Interest Expense of such Person for such period plus (b) regularly
scheduled principal payments on Indebtedness of such Person during such period,
other than any balloon, bullet or similar principal payment payable on any
Indebtedness of such Person which repays such Indebtedness in full.
"DEFAULT" means any of the events specified in Section 11.1., whether or
not there has been satisfied any requirement for the giving of notice, the lapse
of time, or both.
"DEFAULTING LENDER" has the meaning set forth in Section 3.10.
"DERIVATIVES CONTRACT" means any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement. Not in limitation of the
foregoing, the term "Derivatives Contract" includes any and all transactions of
any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement, including any such
obligations or liabilities under any such master agreement.
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"DEVELOPMENT PROPERTY" means a Property currently under development that
has not achieved an Occupancy Rate of 80% or more or on which the improvements
(other than tenant improvements on unoccupied space) related to the development
have not been completed. The term "Development Property" shall include real
property of the type described in the immediately preceding sentence to be (but
not yet) acquired by the Borrower, any Subsidiary or any Unconsolidated
Affiliate upon completion of construction pursuant to a contract in which the
seller of such real property is required to develop or renovate prior to, and as
a condition precedent to, such acquisition.
"DOLLARS" or "$" means the lawful currency of the United States of
America.
"EBITDA" means, with respect to any Person for any period and without
duplication, net earnings (loss) of such Person for such period (excluding
equity in net earnings or net loss of Unconsolidated Affiliates) excluding the
following amounts (but only to the extent included in determining net earnings
(loss) for such period): (a) depreciation and amortization expense and other
non-cash charges of such Person for such period; (b) interest expense of such
Person for such period; (c) income tax expense of such Person in respect of such
period; (d) extraordinary and nonrecurring gains and losses of such Person for
such period, including without limitation, gains and losses from the sale of
assets, write-offs and forgiveness of debt; and (e) the portion of EBITDA
allocable to interests in Unconsolidated Affiliates. For purposes of this
definition, net earnings (loss) shall be determined before minority interests
and distributions to holders of Preferred Stock.
"EFFECTIVE DATE" means the later of (a) the Agreement Date and (b) the
date on which all of the conditions precedent set forth in Section 6.1. shall
have been fulfilled or waived in writing by the Agent.
"ELIGIBLE ASSIGNEE" means any Person that is: (a) an existing Lender; (b)
a commercial bank, trust company, savings and loan association, savings bank,
insurance company, investment bank or pension fund organized under the laws of
the United States of America, any state thereof or the District of Columbia, and
having total assets in excess of $5,000,000,000; or (c) a commercial bank
organized under the laws of any other country which is a member of the
Organisation for Economic Co-operation and Development, or a political
subdivision of any such country, and having total assets in excess of
$10,000,000,000, provided that such bank is acting through a branch or agency
located in the United States of America. If such entity is not currently a
Lender, such entity's (or in the case of a bank which is a subsidiary, such
bank's parent's) senior unsecured long term indebtedness must be rated BBB or
higher by S&P, Baa2 or higher by Xxxxx'x or the equivalent or higher of either
such rating by another Rating Agency acceptable to the Agent.
"ELIGIBLE PROPERTY" means a completed industrial or office Property which
satisfies all of the following requirements: (a) such Property is owned in fee
simple by the Parent, the Borrower or a Wholly Owned Subsidiary of the Borrower
or is a Qualified Lease Property; (b) such Property is located in a State of the
United States of America or in the District of Columbia; (c) regardless of
whether such Property is owned or leased by the Borrower or a Subsidiary, the
Borrower has the right directly, or indirectly through a Subsidiary, to take the
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following actions without the need to obtain the consent of any Person: (i) to
create Liens on such Property as security for Indebtedness of the Parent, the
Borrower or such Subsidiary, as applicable, and (ii) to sell, transfer or
otherwise dispose of such Property; (d) neither such Property, nor if such
Property is owned by a Subsidiary, any of the Borrower's direct or indirect
ownership interest in such Subsidiary, is subject to (i) any Lien other than
Permitted Liens or (ii) any Negative Pledge; (e) the Occupancy Rate of such
Property equals or exceeds 80.0%; provided, however, that the Occupancy Rate for
any industrial Property may be less than 80.0% for a period (including any
period commencing prior to the Agreement Date) not to exceed nine consecutive
calendar months; (f) such Property is free of all structural defects, title
defects, environmental conditions or other adverse matters except for defects,
conditions or matters individually or collectively which are not material to the
operation of such Property; and (g) the Parent or the Borrower has obtained a
"Phase I" environmental assessment or other appropriate environmental assessment
with respect to such Property, and such assessment does not indicate the
existence of any condition that has, or could reasonably be expected to have, a
materially adverse effect on the condition, fair market value or net operating
income of such Property. An Eligible Property of a Subsidiary shall cease to be
an Eligible Property if any event or condition shall occur or exist that could
reasonably be expected to have a materially adverse effect on either (a) the
validity or enforceability as against such Subsidiary of any of the Loan
Documents to which such Subsidiary is a party or (b) the rights and remedies of
the Lenders and the Agent as against such Subsidiary under any of the Loan
Documents to which such Subsidiary is a party.
"ENVIRONMENTAL INDEMNITY AGREEMENT" has the meaning given that term in
Section 6.1.(a)(xvi).
"ENVIRONMENTAL LAWS" means any Applicable Law relating to environmental
protection or the manufacture, storage, disposal or clean-up of Hazardous
Materials including, without limitation, the following: Clean Air Act, 42
U.S.C. Section 7401 et seq.; Federal Water Pollution Control Act, 33
U.S.C. Section 1251 et seq.; Solid Waste Disposal Act, 42 U.S.C.Section 6901 et
seq.; Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. Section 9601 et seq.; National Environmental Policy Act, 42
U.S.C. Section 4321 et seq.; regulations of the Environmental Protection Agency
and any applicable rule of common law and any judicial interpretation thereof
relating primarily to the environment or Hazardous Materials.
"EQUITY INTEREST" means, with respect to any Person, any share of capital
stock of (or other ownership or profit interests in) such Person, any warrant,
option or other right for the purchase or other acquisition from such Person of
any share of capital stock of (or other ownership or profit interests in) such
Person, any security convertible into or exchangeable for any share of capital
stock of (or other ownership or profit interests in) such Person or warrant,
right or option for the purchase or other acquisition from such Person of such
shares (or such other interests), and any other ownership or profit interest in
such Person (including, without limitation, partnership, member or trust
interests therein), whether voting or nonvoting, and whether or not such share,
warrant, option, right or other interest is authorized or otherwise existing on
any date of determination.
"EQUITY ISSUANCE" means any issuance or sale by a Person of any Equity
Interest.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as in
effect from time to time.
"ERISA GROUP" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"EVENT OF DEFAULT" means any of the events specified in Section 11.1.,
provided that any requirement for notice or lapse of time or any other condition
has been satisfied.
"EXISTING REVOLVING CREDIT AGREEMENT" mean that certain Credit Agreement
dated as of December 21, 2001, by and among the Borrower, the Parent, each of
the Lenders from time to time party thereto, Xxxxx Fargo Bank, National
Association, as Agent, and the other parties thereto.
"FAIR MARKET VALUE" means, with respect to any asset, the price which
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of which is under pressure
or compulsion to complete the transaction. Except as otherwise provided herein,
Fair Market Value shall be determined by the Board of Trustees of the Borrower
(or an authorized committee thereof) acting in good faith conclusively evidenced
by a board resolution thereof delivered to the Agent or, with respect to any
asset valued at less than $2,500,000, such determination may be made by the
chief financial officer or executive vice president of the Borrower evidenced by
an officer's certificate delivered to the Agent.
"FEDERAL FUNDS RATE" means, for any given day, the rate per annum (rounded
upward to the nearest 1/100th of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such given day, as published by the
Federal Reserve Bank of New York on the Business Day immediately following such
given day, provided that (a) if such given day is not a Business Day, the
Federal Funds Rate for such given day shall be such rate on such transactions on
the immediately preceding Business Day, and (b) if no such rate is so published
on the Business Day immediately following such given day, the Federal Funds Rate
for such given day shall be the average rate quoted to the Agent by federal
funds brokers selected by the Agent on such given day on such transaction as
reasonably determined by the Agent.
"FEES" means the fees and commissions provided for or referred to in
Section 3.6. and any other fees payable by the Borrower hereunder or under any
other Loan Document.
"FIXED CHARGES" means, with respect to a Person and for a given period,
the sum of (a) Debt Service, plus (b) the aggregate of all dividends paid or
accrued by such Person on any Preferred Stock during such period.
"FUNDS FROM OPERATIONS" means net income (computed in accordance with
GAAP), excluding gains (or losses) from sales of property, plus depreciation and
amortization, and after
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adjustments for unconsolidated partnerships and joint ventures. Adjustments for
unconsolidated partnership and joint ventures will be calculated to reflect
funds from operations on the same basis. For purposes of this Agreement, Funds
From Operations shall be calculated consistent with the White Paper on Funds
From Operations dated October 1999 issued by National Association of Real Estate
Investments Trusts, Inc. ("NAREIT"), as supplemented by the National Policy
Bulletin dated November 8, 1999 issued by NAREIT, but without giving effect to
any supplements, amendments or other modifications promulgated after the
Agreement Date.
"GAAP" means United States generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, which are applicable
to the circumstances as of the date of determination.
"GOVERNMENTAL APPROVALS" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"GOVERNMENTAL AUTHORITY" means any national, state or local government
(whether domestic or foreign), any political subdivision thereof or any other
governmental, quasi-governmental, judicial, public or statutory instrumentality,
authority, body, agency, bureau or entity (including, without limitation, the
Federal Deposit Insurance Corporation, the Comptroller of the Currency or the
Federal Reserve Board, any central bank or any comparable authority) or any
arbitrator with authority to bind a party at law.
"GROSS ASSET VALUE" means, at a given time, the sum (without duplication)
of (a) the Operating Property Value of the Parent and the Subsidiaries, plus (b)
all of the Parent's and its Subsidiaries' cash and cash equivalents and other
escrowed cash as of the end of such fiscal quarter, plus (c) the book value of
(i) all Construction in Process for Properties acquired for development by the
Parent or any Subsidiary and (ii) all unimproved real property, in each case as
such book value is set forth on the Parent's consolidated balance sheet most
recently delivered to the Lenders under Section 9.1. or 9.2., plus (d) the
purchase price paid by the Parent or any Subsidiary (less any amounts paid to
the Parent or such Subsidiary as a purchase price adjustment) for any Property
(other than a Development Property) acquired by the Parent or such Subsidiary
during the Parent's fiscal quarter most recently ended, plus (e) with respect to
each of the Parent's Unconsolidated Affiliates, (i) with respect to any of such
Unconsolidated Affiliate's Properties under construction, the Parent's Ownership
Share of the book value of Construction in Process for such Property as of the
end of such fiscal quarter and (ii) with respect to any of such Unconsolidated
Affiliate's Properties which have been completed, the Parent's Ownership Share
of Capitalized EBITDA of such Unconsolidated Affiliate attributable to such
Properties, plus (f) the contractual purchase price of any real property subject
to a purchase obligation, repurchase obligation or forward commitment which at
such time could be specifically enforced by the seller of such real property,
but only to the extent such obligations are included in the Parent's or any
Subsidiary's Total Liabilities, plus (g) in the case of any real property
subject to a purchase obligation, repurchase obligation or forward commitment of
the Parent or any Subsidiary which at such time could not be specifically
enforced by the seller of such real property, the aggregate amount of due
diligence deposits, xxxxxxx money payments and other similar payments made under
the applicable contract which, at such time, would be subject to
- 8 -
forfeiture upon termination of the contract, but only to the extent such amounts
are included in the Parent's or any Subsidiary's Total Liabilities, plus (h) the
amount, if any, that would be payable to the Parent or any Subsidiary under any
Derivative Contract of the Parent or such Subsidiary (determined on a net basis
regardless of the applicability of any netting agreement relating to such
Derivatives Contract) if such Derivatives Contract were terminated at such time.
For purposes of determined Gross Asset Value, so long as paragraph 3 of the
NOCHA Letter Agreement is not then applicable, the NOCHA Preferred Interest (as
defined in the NOCHA Letter Agreement) shall be valued at its current book value
determined in accordance with GAAP rather than as otherwise provided in clause
(e) above.
"GUARANTOR" means any Person that is party to the Guaranty as a
"Guarantor" and shall in any event include each Wholly Owned Subsidiary of the
Parent or the Borrower.
"GUARANTY", "GUARANTEED" or to "GUARANTEE" as applied to any obligation
means and includes: (a) a guaranty (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), directly or
indirectly, in any manner, of any part or all of such obligation, or (b) an
agreement, direct or indirect, contingent or otherwise, and whether or not
constituting a guaranty, the practical effect of which is to assure the payment
or performance (or payment of damages in the event of nonperformance) of any
part or all of such obligation whether by: (i) the purchase of securities or
obligations, (ii) the purchase, sale or lease (as lessee or lessor) of property
or the purchase or sale of services primarily for the purpose of enabling the
obligor with respect to such obligation to make any payment or performance (or
payment of damages in the event of nonperformance) of or on account of any part
or all of such obligation, or to assure the owner of such obligation against
loss, (iii) the supplying of funds to or in any other manner investing in the
obligor with respect to such obligation, (iv) repayment of amounts drawn by
beneficiaries of letters of credit, or (v) the supplying of funds to or
investing in a Person on account of all or any part of such Person's obligation
under a Guaranty of any obligation or indemnifying or holding harmless, in any
way, such Person against any part or all of such obligation. As the context
requires, "Guaranty" shall also mean the guaranty executed and delivered
pursuant to Section 6.1. and substantially in the form of Exhibit B.
"HAZARDOUS MATERIALS" means all or any of the following: (a) substances
that are defined or listed in, or otherwise classified pursuant to, any
applicable Environmental Laws as "hazardous substances", "hazardous materials",
"hazardous wastes", "toxic substances" or any other formulation intended to
define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity,
"TCLP" toxicity, or "EP toxicity"; (b) oil, petroleum or petroleum derived
substances, natural gas, natural gas liquids or synthetic gas and drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources; (c)
any flammable substances or explosives or any radioactive materials; (d)
asbestos in any form; and (e) electrical equipment which contains any oil or
dielectric fluid containing levels of polychlorinated biphenyls in excess of
fifty parts per million.
"INDEBTEDNESS" means, with respect to a Person, at the time of computation
thereof, all of the following (without duplication): (a) all obligations of such
Person in respect of money borrowed; (b) all obligations of such Person (other
than trade debt incurred in the ordinary
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course of business), whether or not for money borrowed (i) represented by notes
payable, or drafts accepted, in each case representing extensions of credit,
(ii) evidenced by bonds, debentures, notes or similar instruments, or (iii)
constituting purchase money indebtedness, conditional sales contracts, title
retention debt instruments or other similar instruments, upon which interest
charges are customarily paid or that are issued or assumed as full or partial
payment for property; (c) Capitalized Lease Obligations of such Person; (d) all
reimbursement obligations of such Person under or in respect of any letters of
credit or acceptances (whether or not the same have been presented for payment);
(e) all Off Balance Sheet Liabilities of such Person; and (f) all Indebtedness
of other Persons which (i) such Person has Guaranteed or is otherwise recourse
to such Person or (ii) is secured by a Lien on any property of such Person.
"INDEMNIFIED PARTY" has the meaning given that term in Section 13.10.(a).
"INDEMNITY PROCEEDING" has the meaning given that term in Section
13.10.(a).
"INTELLECTUAL PROPERTY" has the meaning given that term in Section
7.1.(s).
"INTEREST EXPENSE" means, with respect to a Person and for any period, the
sum of the following (without duplication): (a) the total consolidated interest
expense (including, without limitation, capitalized interest expense (other than
capitalized interest funded from a construction loan interest reserve account
held by another lender and not included in the calculation of cash for balance
sheet reporting purposes and capitalized interest funded from a construction
loan) and interest expense attributable to Capitalized Lease Obligations) of
such Person and in any event shall include all letter of credit fees and all
interest expense with respect to any Indebtedness in respect of which such
Person is wholly or partially liable whether pursuant to any repayment, interest
carry, performance Guarantee (other than Guarantees which are solely Guarantees
of performance and not of payment and other Guarantees of such Person for
liabilities arising from customary exceptions to Nonrecourse Indebtedness, such
as for fraud, misapplication of funds, environmental indemnities, and other
similar customary exceptions to recourse liability) or otherwise, to the extent
of such liability, plus (b) such Person's Ownership Share of all paid or accrued
interest expense for such period of Unconsolidated Affiliates of such Person.
"INTEREST PERIOD" means, with respect to any LIBOR Loan, each period
commencing on the date such LIBOR Loan is made or the last day of the next
preceding Interest Period for such Loan and ending on the numerically
corresponding day in the first, second, third or sixth calendar month
thereafter, as the Borrower may select in a Notice of Borrowing, Notice of
Continuation or Notice of Conversion, as the case may be, except that each
Interest Period that commences on the last Business Day of a calendar month (or
on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month. Notwithstanding the foregoing: (a) if any
Interest Period would otherwise end after the Termination Date, such Interest
Period shall end on the Termination Date; (b) each Interest Period that would
otherwise end on a day which is not a Business Day shall end on the next
succeeding Business Day (or, if such next succeeding Business Day falls in the
next succeeding calendar month, on the next preceding Business Day); and (c)
notwithstanding the immediately preceding clauses (a) and (b), no
- 10 -
Interest Period shall have a duration of less than one month and, if the
Interest Period for any Loan would otherwise be a shorter period, such Loan
shall not be available hereunder for such period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended.
"INVESTMENT" means, with respect to any Person, any acquisition or
investment (whether or not of a controlling interest) by such Person, whether by
means of (a) the purchase or other acquisition of any Equity Interest in another
Person, (b) a loan, advance or extension of credit to, capital contribution to,
Guaranty of Indebtedness of, or purchase or other acquisition of any
Indebtedness of, another Person, including any partnership or joint venture
interest in such other Person, or (c) the purchase or other acquisition (in one
transaction or a series of transactions) of assets of another Person that
constitute the business or a division or operating unit of another Person. Any
commitment or option to make an Investment in any other Person shall constitute
an Investment. Except as expressly provided otherwise, for purposes of
determining compliance with any covenant contained in a Loan Document, the
amount of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such
Investment.
"LENDER" means each financial institution from time to time party hereto
as a "Lender", together with its respective successors and permitted assigns.
"LENDING OFFICE" means, for each Lender and for each Type of Loan, the
office of such Lender specified as such on its signature page hereto or in the
applicable Assignment and Acceptance Agreement, or such other office of such
Lender as such Lender may notify the Agent in writing from time to time.
"LIBOR" means, for any LIBOR Loan for any Interest Period therefor, the
average rate of interest per annum (rounded upwards, if necessary, to the next
highest 1/100th of 1%) at which deposits in immediately available funds in
Dollars are offered to the Lender then acting as Agent (at approximately 9:00
a.m., two Business Days prior to the first day of such Interest Period) by first
class banks in the interbank Eurodollar market where the Eurodollar operations
of the Lender then acting as Agent are customarily conducted, for delivery on
the first day of such Interest Period, such deposits being for a period of time
equal or comparable to such Interest Period and in an amount equal to or
comparable to the principal amount of the LIBOR Loan to which such Interest
Period relates. Each determination of LIBOR by the Lender then acting as Agent
shall, in absence of demonstrable error, be conclusive and binding.
"LIBOR LOAN" means a Term Loan bearing interest at a rate based on LIBOR.
"LIEN" as applied to the property of any Person means: (a) any security
interest, encumbrance, mortgage, deed to secure debt, deed of trust, pledge,
lien, charge or lease constituting a Capitalized Lease Obligation, conditional
sale or other title retention agreement, or other security title or encumbrance
of any kind in respect of any property of such Person, or upon the income or
profits therefrom; (b) any arrangement under which any property of such Person
is transferred or sequestered for the purpose of subjecting the same to the
payment of Indebtedness
- 11 -
or performance of any other obligation in priority to the payment of the
general, unsecured creditors of such Person; (c) the filing of any financing
statement under the UCC or its equivalent in any jurisdiction; and (d) any
agreement by such Person to grant, give or otherwise convey any of the
foregoing.
"LOAN" means a Term Loan.
"LOAN DOCUMENT" means this Agreement, each Note, the New York Collateral
Documents and each other document or instrument now or hereafter executed and
delivered by a Loan Party in connection with, pursuant to or relating to this
Agreement.
"LOAN PARTY" means each of the Parent, the Borrower, each other Person who
guarantees all or a portion of the Obligations and/or who pledges any collateral
to secure all or a portion of the Obligations. Schedule 1.1.(A) sets forth the
Loan Parties in addition to the Parent and the Borrower as of the Agreement
Date.
"MATERIAL ADVERSE EFFECT" means a materially adverse effect on (a) the
business, assets, liabilities, financial condition, results of operations or
business prospects of the Parent and its Subsidiaries taken as a whole, or the
Borrower and its Subsidiaries taken as a whole, (b) the ability of the Borrower
or the Parent to perform its obligations under any Loan Document to which it is
a party, (c) the validity or enforceability as against the Parent or the
Borrower of any of the Loan Documents to which the Parent or the Borrower is a
party, (d) the rights and remedies of the Lenders and the Agent as against the
Parent or the Borrower under any of the Loan Documents to which the Parent or
the Borrower is a party or (e) the timely payment of the principal of or
interest on the Loans or other amounts payable in connection therewith.
"MATERIAL CONTRACT" means any contract or other arrangement (other than
Loan Documents), whether written or oral, to which the Parent, the Borrower, any
Subsidiary or any other Loan Party is a party as to which the breach,
nonperformance, cancellation or failure to renew by any party thereto could have
a Material Adverse Effect.
"MATERIAL INDEBTEDNESS" means, with respect to any Person, any (a)
Nonrecourse Indebtedness having an aggregate outstanding principal amount of
$25,000,000 or more or (b) other Indebtedness (other than the Loans) having an
aggregate outstanding principal amount of $10,000,000 or more.
"MATERIAL PLAN" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $1,000,000.
"MAXIMUM AVAILABILITY" means, at any time, an amount equal to the positive
difference, if any, of (a) the Unencumbered Pool Value minus (b) the product of
(i) all Unsecured Liabilities of the Parent and its Subsidiaries determined on a
consolidated basis, and (ii) 1.75.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
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"MORTGAGE" means a mortgage, deed of trust, deed to secure debt or similar
security instrument made by a Person owning an interest in real property
granting a Lien on such interest in real property as security for the payment of
Indebtedness of such Person.
"MORTGAGE ASSIGNMENT" has the meaning given that term in Section
6.1.(a)(xiii).
"MORTGAGE MODIFICATION" has the meaning given that term in Section
6.1.(a)(xiv).
"MULTIEMPLOYER PLAN" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"NEGATIVE PLEDGE" means, with respect to a given asset, any provision of a
document, instrument or agreement (other than any Loan Document) which prohibits
or purports to prohibit the creation of any Lien on such asset as security for
Indebtedness of the Person owning such asset or any other Person.
"NET OPERATING INCOME" means, for any Property and for a given period, the
sum (without duplication) of (a) rents and other revenues received in the
ordinary course from such Property (excluding pre-paid rents and revenues and
security deposits except to the extent applied in satisfaction of tenants'
obligations for rent) minus (b) all expenses paid or accrued related to the
ownership, operation or maintenance of such Property (other than those expenses
normally covered by a management fee), including but not limited to, taxes,
assessments and the like, insurance, utilities, payroll costs, maintenance,
repair and landscaping expenses, marketing expenses, and general and
administrative expenses (including an appropriate allocation for legal,
accounting, advertising, marketing and other expenses incurred in connection
with such Property, but specifically excluding general overhead expenses of the
Borrower and its Subsidiaries) minus (c) the Reserve for Replacements for such
Property for such period minus (d) the greater of (i) the actual property
management fee paid to any Person that is not an Affiliate, during such period
with respect to such Property and (ii) an imputed management fee in an amount
equal to (A) 2.0% of the gross revenues for such Property for such period if
such Property is an industrial Property, or (B) 4.5% of the gross revenues for
such Property for such period if such Property is an office Property, all as
determined in accordance with GAAP.
"NET PROCEEDS" means with respect to an Equity Issuance by a Person, the
aggregate amount of all cash or the Fair Market Value of all other property
received by such Person in respect of such Equity Issuance net of investment
banking fees, legal fees, accountants fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred by such
Person in connection with such Equity Issuance.
"NEW YORK COLLATERAL DOCUMENTS" means each of the Mortgages described on
Schedule 1.1.(B).
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"NOCHA LETTER AGREEMENT" means that certain letter agreement dated as of
September 3, 2002 among the Borrower and other parties to the Existing Revolving
Credit Agreement.
"NON-GUARANTOR ENTITY" means: (a) any Subsidiary that is not required to
become a party to the Guaranty under Section 8.14.; and (b) any Unconsolidated
Affiliate of the Parent.
"NONRECOURSE INDEBTEDNESS" means, with respect to a Person, Indebtedness
for borrowed money in respect of which recourse for payment (except for
customary exceptions for fraud, misapplication of funds, environmental
indemnities, and other similar customary exceptions to recourse liability) is
contractually limited to specific assets of such Person encumbered by a Lien
securing such Indebtedness.
"NOTE" means a Term Note.
"NOTICE OF BORROWING" means a notice substantially in the form of Exhibit
C to be delivered to the Agent pursuant to Section 2.1.(b) evidencing the
Borrower's request for a borrowing of Term Loans.
"NOTICE OF CONTINUATION" means a notice substantially in the form of
Exhibit D to be delivered to the Agent pursuant to Section 2.7. evidencing the
Borrower's request for the Continuation of a LIBOR Loan.
"NOTICE OF CONVERSION" means a notice substantially in the form of Exhibit
E to be delivered to the Agent pursuant to Section 2.8. evidencing the
Borrower's request for the Conversion of a Loan from one Type to another Type.
"OBLIGATIONS" means, individually and collectively: (a) the aggregate
principal balance of, and all accrued and unpaid interest on, all Loans and (b)
all other indebtedness, liabilities, obligations, covenants and duties of the
Borrower or any of the other Loan Parties owing to the Agent or any Lender of
every kind, nature and description, under or in respect of this Agreement or any
of the other Loan Documents, including, without limitation, the Fees and
indemnification obligations, whether direct or indirect, absolute or contingent,
due or not due, contractual or tortious, liquidated or unliquidated, and whether
or not evidenced by any promissory note.
"OCCUPANCY RATE" means, with respect to a Property at any time, the ratio,
expressed as a percentage, of (a) the net rentable square footage of such
Property actually occupied by tenants paying rent pursuant to binding leases as
to which no monetary default exists following the expiration of applicable grace
periods or no other event of default has been declared to (b) the aggregate net
rentable square footage of such Property. For purposes of this definition, the
Agent may determine in its reasonable discretion that a tenant that does not
otherwise occupy a Property but that is paying rent pursuant to a binding lease
as to which no monetary default exists, qualifies as occupying such Property due
to acceptable credit of such tenant and the overall occupancy of all Properties
of the Parent and its Subsidiaries; provided, however, the provisions of this
sentence may not apply to more than five unaffiliated tenants at any one time.
- 14 -
"OFF BALANCE SHEET LIABILITIES" means, with respect to any Person, (a) any
repurchase obligation or liability, contingent or otherwise, of such Person with
respect to any accounts or notes receivable sold, transferred or otherwise
disposed of by such Person, (b) any repurchase obligation or liability,
contingent or otherwise, of such Person with respect to property or assets
leased by such Person as lessee and (c) all obligations, contingent or
otherwise, of such Person under any synthetic lease, tax retention operating
lease, off balance sheet loan or similar off balance sheet financing if the
transaction giving rise to such obligation (i) is considered indebtedness for
borrowed money for tax purposes but is classified as an operating lease or (ii)
does not (and is not required pursuant to GAAP to) appear as a liability on the
balance sheet of such Person.
"OPERATING PROPERTY VALUE" means, with respect to a Person and as of a
given date, such Person's Capitalized EBITDA (excluding EBITDA attributable to
Development Properties and Redevelopment Properties) for the fiscal quarter most
recently ended.
"OWNERSHIP SHARE" means, with respect to any Subsidiary of a Person (other
than a Wholly Owned Subsidiary) or any Unconsolidated Affiliate of a Person, the
greater of (a) such Person's relative nominal direct and indirect ownership
interest (expressed as a percentage) in such Subsidiary or Unconsolidated
Affiliate or (b) subject to compliance with Section 9.4.(q), such Person's
relative direct and indirect economic interest (calculated as a percentage) in
such Subsidiary or Unconsolidated Affiliate determined in accordance with the
applicable provisions of the declaration of trust, articles or certificate of
incorporation, articles of organization, partnership agreement, joint venture
agreement or other applicable organizational document of such Subsidiary or
Unconsolidated Affiliate. For purposes of this definition, if the Borrower's
nominal direct and indirect ownership interest in such Subsidiary or
Unconsolidated Affiliate is less than its direct and indirect economic interest
solely because of an arrangement providing for an increased economic interest
contingent upon the occurrence of specified performance levels or other events
or other promoted interest arrangement, such as under the applicable
organizational documents of such Subsidiary or Unconsolidated Affiliate, then
the Borrower's economic interest in such Subsidiary or Unconsolidated Affiliate,
without giving effect to such promoted interest, shall constitute its "Ownership
Share."
"PARENT" has the meaning set forth in the introductory paragraph hereof
and shall include the Parent's successors and permitted assigns.
"PARTICIPANT" has the meaning given that term in Section 13.6.(c).
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
agency.
"PERMITTED LIENS" means, with respect to any asset or property of a
Person, (a) Liens securing taxes, assessments and other charges or levies
imposed by any Governmental Authority (excluding any Lien imposed pursuant to
any of the provisions of ERISA or pursuant to any Environmental Laws) or the
claims of materialmen, mechanics, carriers, warehousemen or landlords for labor,
materials, supplies or rentals incurred in the ordinary course of business,
which are not at the time required to be paid or discharged under Section 8.6.;
(b) Liens consisting of deposits or pledges made, in the ordinary course of
business, in connection with, or
- 15 -
to secure payment of, obligations under workmen's compensation, unemployment
insurance or similar Applicable Laws; (c) Liens consisting of encumbrances in
the nature of zoning restrictions, easements, and rights or restrictions of
record on the use of real property, which do not materially detract from the
value of such property for its intended business use or impair the intended
business use thereof in the business of such Person; (d) the rights of tenants
under leases or subleases not interfering with the ordinary conduct of business
of such Person; and (e) Liens in favor of the Agent for the benefit of the
Lenders.
"PERSON" means an individual, corporation, partnership, limited liability
company, association, trust or unincorporated organization, or a government or
any agency or political subdivision thereof.
"PLAN" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"POST-DEFAULT RATE" means, in respect of any principal of any Loan or any
other Obligation that is not paid when due (whether at stated maturity, by
acceleration, by optional or mandatory prepayment or otherwise), a rate per
annum equal to five percent (5.0%) plus the Base Rate as in effect from time to
time.
"PREFERRED STOCK" means, with respect to any Person, shares of capital
stock of, or other equity interests in, such Person which are entitled to
preference or priority over any other capital stock of, or other equity interest
in, such Person in respect of the payment of dividends or distribution of assets
upon liquidation or both.
"PROPERTY" means a parcel (or group of related parcels) of real property
developed (or to be developed) for industrial or office use.
"QUALIFIED LEASED PROPERTY" means a Property leased by the Borrower or a
Wholly Owned Subsidiary of the Borrower pursuant to a ground lease containing
terms and conditions acceptable to the Agent in its sole discretion which must
provide protections for a potential leasehold mortgagee ("Mortgagee") which
include, among other things, (a) the right of the tenant to mortgage and
encumber its interest in the Property, (b) a remaining term of no less than 25
years from the Agreement Date, (c) the obligation of the landlord thereunder to
give the Mortgagee written notice of any defaults on the part of the tenant
thereunder, (d) that the lease will not be terminated until the Mortgagee has
received notice of a default and has had a reasonable opportunity to cure or
complete foreclosures, and fails to do so, (e) a new lease on the same terms to
the Mortgagee as tenant if the ground lease is terminated for any reasons, (f)
non-merger of the fee and leasehold estates, (g) free transferability of the
tenant's interest under the ground lease, including ability to sublease, (h)
that insurance obtained under the lease shall include standard mortgagee clauses
for the benefit of the Mortgagee, (i) that in the event of
- 16 -
condemnation or other taking or conveyance in lieu thereof, the tenant has the
right to a separate award for the value of the leasehold, (j) that insurance
proceeds and condemnation awards (from the fee interest as well as the leasehold
interest) will be applied pursuant to the terms of a leasehold mortgage, and (k)
that the Mortgagee's prior written consent is required for any adjustment of
insurance proceeds for a material casualty or condemnation awards relating to a
material condemnation.
"RATING AGENCY" means S&P, Xxxxx'x or any other nationally recognized
securities rating agency reasonably acceptable to the Agent.
"REDEVELOPMENT PROPERTY" means a Property (a) on which the existing
building or other improvements are or will be undergoing renovation and
redevelopment and for which any of the following has occurred (i) construction
has commenced or (ii) the Parent, any Subsidiary or any Unconsolidated
Affiliate, as the case may be, has entered into a binding construction contract
or (iii) the Parent, any Subsidiary or any Unconsolidated Affiliate, as the case
may be, has entered into a binding agreement by an anchor tenant to enter into a
lease of any such Property and (b) either (i) that has not achieved an Occupancy
Rate of 80% or more or (ii) on which the improvements (other than tenant
improvements on unoccupied space) related to the renovation and redevelopment
have not been completed. The term "Redevelopment Property" shall include real
property of the type described in the immediately preceding sentence to be (but
not yet) acquired by any such Person upon completion of construction pursuant to
a contract in which the seller of such real property is required to renovate
prior to, and as a condition precedent to, such acquisition.
"REGISTER" has the meaning given that term in Section 13.6.(e).
"REGULATORY CHANGE" means, with respect to any Lender, any change
effective after the Agreement Date in Applicable Law (including without
limitation, Regulation D of the Board of Governors of the Federal Reserve
System) or the adoption or making after such date of any interpretation,
directive or request applying to a class of banks, including such Lender, of or
under any Applicable Law (whether or not having the force of law and whether or
not failure to comply therewith would be unlawful) by any Governmental Authority
or monetary authority charged with the interpretation or administration thereof
or compliance by any Lender with any request or directive regarding capital
adequacy.
"REIT" means a Person qualifying for treatment as a "real estate
investment trust" under the Internal Revenue Code.
"REQUISITE LENDERS" means, as of any date, Lenders (which shall include
the Lender then acting as Agent) having at least 66-2/3% of the aggregate amount
of the Commitments, or, if the Commitments have been terminated, Lenders holding
at least 66-2/3% of the principal amount of the Loans.
"RESERVE FOR REPLACEMENTS" means, for any period and with respect to any
Property (other than a Development Property or a Redevelopment Property), an
amount equal to (i) the aggregate square footage of all completed space of such
Property times (ii)(A) $0.10, if such
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Property is an industrial Property, or (B) $0.30, if such Property is an office
Property, times (iii) the number of days in such period, divided by (iv) 365. If
the term Reserve for Replacements is used without reference to any specific
Property, then it shall be determined on an aggregate basis with respect to all
Properties and the applicable Ownership Shares of all real property of all
Unconsolidated Affiliates. If a Property has not been owned or leased by the
Parent, the Borrower or any other Subsidiary for at least one complete fiscal
quarter of the Parent, then the Reserve for Replacements for such Property shall
be $0.
"RESTRICTED PAYMENT" means, with respect to a Person: (a) any dividend or
other distribution, direct or indirect, on account of any shares or other equity
units of any class of stock, partnership interest or other equity interest, as
applicable, of such Person now or hereafter outstanding, except a dividend
payable solely in shares or other equity units of that class of stock,
partnership interest or other equity interest, as applicable, to the holders of
that class; (b) any redemption, conversion, exchange, retirement, sinking fund
or similar payment, purchase or other acquisition for value, direct or indirect,
of any shares or other equity units of any class of stock, partnership interests
or other equity interests, as applicable, of such Person now or hereafter
outstanding, except, in the case of the Borrower, for any conversion or exchange
of partnership units in the Borrower solely for shares of capital stock of the
Parent; and (c) any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares or other equity
units of any class of stock, partnership interests or other equity interests, as
applicable, of such Person now or hereafter outstanding.
"SECURED INDEBTEDNESS" means, with respect to any Person, any Indebtedness
of such Person that is secured in any manner by any Lien on any real property
and shall include such Person's Ownership Share of the Secured Indebtedness of
any of such Person's Unconsolidated Affiliates.
"SECURED RECOURSE DEBT" means, with respect to any Person, all Secured
Indebtedness of such Person other than Nonrecourse Indebtedness of such Person.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time, together with all rules and regulations issued thereunder.
"SOLVENT" means, when used with respect to any Person, that (a) the fair
value and the fair salable value of its assets (excluding any Indebtedness due
from any affiliate of such Person) are each in excess of the fair valuation of
its total liabilities (including all contingent liabilities); (b) such Person is
able to pay its debts or other obligations in the ordinary course as they
mature; and (c) such Person has capital not unreasonably small to carry on its
business and all business in which it proposes to be engaged.
"S&P" means Standard & Poor's Rating Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"SUBSIDIARY" means, for any Person, any corporation, partnership, limited
liability company or other entity of which at least a majority of the securities
or other ownership interests having by the terms thereof ordinary voting power
to elect a majority of the board of directors or
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other persons performing similar functions of such corporation, partnership or
other entity (without regard to the occurrence of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person.
"SUBSTANTIAL AMOUNT" means, at the time of determination thereof, an
amount in excess of 30.0% of total consolidated assets (exclusive of
depreciation) at such time of the Borrower and its Subsidiaries determined on a
consolidated basis.
"TANGIBLE NET WORTH" means, for any Person and as of a given date, such
Person's total consolidated stockholders' equity plus, in the case of the Parent
and its Subsidiaries, increases in accumulated depreciation accrued after the
Agreement Date minus (to the extent reflected in determining stockholders'
equity of such Person): (a) the amount of any write-up in the book value of any
assets contained in any balance sheet resulting from revaluation thereof or any
write-up in excess of the cost of such assets acquired, and (b) the aggregate of
all amounts appearing on the assets side of any such balance sheet for
franchises, licenses, permits, patents, patent applications, copyrights,
trademarks, service marks, trade names, goodwill, treasury stock, experimental
or organizational expenses and other like assets which would be classified as
intangible assets under GAAP, all determined on a consolidated basis.
"TAXES" has the meaning given that term in Section 3.11.
"TERM LOAN" has the meaning given that term in Section 2.1.(a).
"TERM NOTE" has the meaning given that term in Section 2.9.
"TERMINATION DATE" means September 10, 2008.
"TOTAL BUDGETED COST" means, with respect to a Development Property or a
Redevelopment Property, and at any time, the aggregate amount of all costs
budgeted to be paid, incurred or otherwise expended or accrued by the Borrower,
a Subsidiary or an Unconsolidated Affiliate with respect to such Property to
achieve an Occupancy Rate of 100%, including without limitation, all amounts
budgeted with respect to all of the following: (a) acquisition of land and any
related improvements; (b) a reasonable and appropriate reserve for construction
interest; (c) a reasonable and appropriate operating deficit reserve; (d) tenant
improvements, (e) leasing commissions and (f) other hard and soft costs
associated with the development or redevelopment of such Property. With respect
to any Property to be developed in more than one phase, the Total Budgeted Cost
shall exclude budgeted costs (other than costs relating to acquisition of land
and related improvements) to the extent relating to any phase for which (i)
construction has not yet commenced and (ii) a binding construction contract has
not been entered into by the Borrower, any other Subsidiary or any
Unconsolidated Affiliate, as the case may be.
"TOTAL LIABILITIES" means, as to any Person as of a given date, all
liabilities which would, in conformity with GAAP, be properly classified as a
liability on a consolidated balance sheet of such Person as of such date, and in
any event shall include (without duplication): (a) all Indebtedness of such
Person (whether or not Nonrecourse Indebtedness and whether or not
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secured by a Lien), including without limitation, Capitalized Lease Obligations
and reimbursement obligations with respect to any letter of credit; (b) all
accounts payable and accrued expenses of such Person; (c) all purchase and
repurchase obligations and forward commitments of such Person to the extent such
obligations or commitments are evidenced by a binding purchase agreement
(forward commitments shall include without limitation (i) forward equity
commitments and (ii) commitments to purchase any real property under
development, redevelopment or renovation); (d) all unfunded obligations of such
Person; (e) all lease obligations of such Person (including ground leases) to
the extent required under GAAP to be classified as a liability on a balance
sheet of such Person; (f) all contingent obligations of such Person including,
without limitation, all Guarantees of Indebtedness by such Person (other than
Guarantees which are solely Guarantees of performance and not of payment and
other Guarantees of such Person for liabilities arising from customary
exceptions to Nonrecourse Indebtedness, such as for fraud, misapplication of
funds, environmental indemnities, and other similar customary exceptions to
recourse liability); (g) all liabilities of any Unconsolidated Affiliate of such
Person, which liabilities such Person has Guaranteed or is otherwise obligated
on a recourse basis, including as a partner in a partnership; (h) the amount of
such Person's liabilities under any Derivative Contract of such Person (after
taking into account the effect of any legally enforceable netting agreement
relating to such Derivatives Contract), to the extent required under GAAP to be
classified as a liability on a balance sheet of such Person; and (i) such
Person's Ownership Share of the Indebtedness of any Unconsolidated Affiliate of
such Person, including Nonrecourse Indebtedness of such Person. For purposes of
clauses (c) and (d) of this definition, the amount of Total Liabilities of a
Person at any given time in respect of (x) a contract to purchase or otherwise
acquire unimproved or fully developed real property shall be equal to (i) the
total purchase price payable by such Person under such contract if, at such
time, the seller of such real property would be entitled to specifically enforce
such contract against such Person, otherwise, (ii) to the extent funded, the
aggregate amount of due diligence deposits, xxxxxxx money payments and other
similar payments made by such Person under such contract which, at such time,
would be subject to forfeiture upon termination of such contract and (y) a
contract relating to the acquisition of real property which the seller is
required to develop or renovate prior to, and as a condition precedent to, such
acquisition, shall equal the maximum amount reasonably estimated to be payable
by such Person under such contract assuming performance by the seller of its
obligations under such contract, which amount shall include, without limitation,
any amounts payable after consummation of such acquisition which may based on
certain performance levels or other related criteria.
"TYPE" with respect to any Loan, refers to whether such Loan is a LIBOR
Loan or Base Rate Loan.
"UCC" means the Uniform Commercial Code as in effect in any applicable
jurisdiction.
"UNCONSOLIDATED AFFILIATE" means, with respect to any Person, any other
Person in whom such Person holds an Investment, which Investment is accounted
for in the financial statements of such Person on an equity basis of accounting
and whose financial results would not be consolidated under GAAP with the
financial results of such Person on the consolidated financial statements of
such Person.
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"UNENCUMBERED NET OPERATING INCOME" means, for any period, the aggregate
Net Operating Income for such period of all Properties that were Unencumbered
Pool Properties for such entire period.
"UNENCUMBERED POOL CERTIFICATE" means a report, certified by the chief
financial officer or treasurer of the Parent, substantially in the form of
Exhibit F, setting forth the calculations required to establish the Unencumbered
Pool Values of each Unencumbered Pool Property as of a specified date, all in
form and detail satisfactory to the Agent.
"UNENCUMBERED POOL PROPERTIES" means those Eligible Properties that,
pursuant to the terms of this Agreement, are to be included when calculating the
Unencumbered Pool Value. A Property shall cease to be an Unencumbered Pool
Property if such Property shall cease to be an Eligible Property.
"UNENCUMBERED POOL VALUE" means (a) the Net Operating Income of each
Unencumbered Pool Property for the fiscal quarter most recently ended times (b)
4 and divided by (c) the applicable Capitalization Rate. No more than 20% of the
Unencumbered Pool Value may be attributable to any one Eligible Property. Not
more than three Qualified Leased Properties may be included in determinations of
the Unencumbered Pool Value and no more than 11% of the Unencumbered Pool Value
may be attributable to Qualified Leased Properties. No more than $35,000,000 of
the Unencumbered Pool Value may be attributable to Properties subject to the New
York Collateral Documents.
"UNFUNDED LIABILITIES" means, with respect to any Plan at any time, the
amount (if any) by which (a) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (b) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"UNSECURED INDEBTEDNESS" means, with respect to a Person, all Indebtedness
of such Person that is not Secured Indebtedness.
"UNSECURED INTEREST EXPENSE" means, with respect to a Person and for a
given period, all Interest Expense for such period attributable to the Unsecured
Indebtedness of such Person.
"UNSECURED LIABILITIES" means, as to any Person as of a given date, the
sum of the following (without duplication): (a) all liabilities which would, in
conformity with GAAP, be properly classified as a liability on a balance sheet
of such Person as at such date; plus (b) all Indebtedness of such Person; minus
(c) all Secured Indebtedness of such Person.
"WHOLLY OWNED SUBSIDIARY" means any Subsidiary of a Person in respect of
which all of the equity securities or other ownership interests (other than, in
the case of a corporation, directors' qualifying shares) are at the time
directly or indirectly owned or controlled by such
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Person or one or more other Subsidiaries of such Person or by such Person and
one or more other Subsidiaries of such Person.
SECTION 1.2. GENERAL; REFERENCES TO PACIFIC STANDARD TIME.
Unless otherwise indicated, all accounting terms, ratios and measurements
shall be interpreted or determined in accordance with GAAP in effect as of the
Agreement Date. References in this Agreement to "Sections", "Articles",
"Exhibits" and "Schedules" are to sections, articles, exhibits and schedules
herein and hereto unless otherwise indicated. References in this Agreement to
any document, instrument or agreement (a) shall include all exhibits, schedules
and other attachments thereto, (b) shall include all documents, instruments or
agreements issued or executed in replacement thereof, to the extent permitted
hereby and (c) shall mean such document, instrument or agreement, or replacement
or predecessor thereto, as amended, supplemented, restated or otherwise modified
from time to time to the extent permitted hereby and in effect at any given
time. Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter. Unless explicitly set forth to the
contrary, a reference to "Subsidiary" means a Subsidiary of the Parent or a
Subsidiary of such Subsidiary and a reference to an "Affiliate" means a
reference to an Affiliate of the Borrower. Titles and captions of Articles,
Sections, subsections and clauses in this Agreement are for convenience only,
and neither limit nor amplify the provisions of this Agreement. Unless otherwise
indicated, all references to time are references to Pacific Standard time.
ARTICLE II. CREDIT FACILITY
SECTION 2.1. TERM LOANS.
(a) Generally. Subject to the terms and conditions hereof, including
without limitation, Section 2.10., during the period from the Effective Date to
but excluding the Commitment Termination Date, each Lender severally and not
jointly agrees to make term loans (each a "Term Loan") to the Borrower in an
aggregate principal amount at any one time outstanding up to, but not to exceed,
the lesser of (i) the amount of such Lender's Commitment and (ii) such Lender's
Credit Percentage of the Maximum Availability. On the Commitment Termination
Date, each Lender's Commitment shall terminate.
(b) Requesting Term Loans. Not later than 9:00 a.m. Pacific Standard time
at least two (2) Business Days prior to a borrowing of Base Rate Loans and not
later than 9:00 a.m. Pacific Standard time at least three (3) Business Days
prior to a borrowing of LIBOR Loans, the Borrower shall deliver to the Agent a
Notice of Borrowing. Each Notice of Borrowing shall specify the aggregate
principal amount of the Term Loans to be borrowed, the date such Term Loans are
to be borrowed (which must be a Business Day), the use of the proceeds of such
Term Loans, the Type of the requested Term Loans, and if such Term Loans are to
be LIBOR Loans, the initial Interest Period for such Term Loans. Each Notice of
Borrowing shall be irrevocable once given and binding on the Borrower.
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(c) Funding of Term Loans. Promptly after receipt of a Notice of Borrowing
under the immediately preceding subsection (b), the Agent shall notify each
Lender by telex or telecopy, or other similar form of transmission of the
proposed borrowing. Each Lender shall deposit an amount equal to the Term Loan
to be made by such Lender to the Borrower with the Agent, in immediately
available funds not later than 9:00 a.m. Pacific Standard time on the date of
such proposed Term Loans. Subject to fulfillment of all applicable conditions
set forth herein, the Agent shall make available to the Borrower, not later than
11:00 a.m. Pacific Standard time on the date of the requested borrowing of Term
Loans, the proceeds of such amounts received by the Agent. No Lender shall be
responsible for the failure of any other Lender to make a Loan or to perform any
other obligation to be made or performed by such other Lender hereunder, and the
failure of any Lender to make a Loan or to perform any other obligation to be
made or performed by it hereunder shall not relieve the obligation of any other
Lender to make any Loan or to perform any other obligation to be made or
performed by such other Lender.
(d) Assumptions Regarding Funding by Lenders. With respect to Term Loans
to be made after the Effective Date, unless the Agent shall have been notified
by any Lender that such Lender will not make available to the Agent a Term Loan
to be made by such Lender, the Agent may assume that such Lender will make the
proceeds of such Term Loan available to the Agent in accordance with this
Section and the Agent may (but shall not be obligated to), in reliance upon such
assumption, make available to the Borrower the amount of such Term Loan to be
provided by such Lender.
SECTION 2.2. RATES AND PAYMENT OF INTEREST ON LOANS.
(a) Rates. The Borrower promises to pay to the Agent for the account of
each Lender interest on the unpaid principal amount of each Loan made by such
Lender for the period from and including the date of the making of such Loan to
but excluding the date such Loan shall be paid in full, at the following per
annum rates:
(i) during such periods as such Loan is a Base Rate Loan, at the
Base Rate (as in effect from time to time), plus the Applicable Margin for
Base Rate Loans; and
(ii) during such periods as such Loan is a LIBOR Loan, at LIBOR for
such Loan for the Interest Period therefor, plus the Applicable Margin for
LIBOR Loans.
Notwithstanding the foregoing, during the continuance of an Event of Default,
the Borrower shall pay to the Agent for the account of each Lender interest at
the Post-Default Rate on the outstanding principal amount of any Loan made by
such Lender and on any other amount payable by the Borrower hereunder or under
the Notes held by such Lender to or for the account of such Lender (including
without limitation, accrued but unpaid interest to the extent permitted under
Applicable Law).
(b) Payment of Interest. All accrued and unpaid interest on the
outstanding principal amount of each Loan shall be payable (i) monthly in
arrears on the first day of each month, commencing with the first full calendar
month occurring after the Effective Date and (ii) on any date on which the
principal balance of such Loan is due and payable in full (whether at maturity,
due to acceleration or otherwise). Interest payable at the Post-Default Rate
shall be payable from
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time to time on demand by the Agent or the Requisite Lenders. All determinations
by the Agent of an interest rate hereunder shall be conclusive and binding on
the Lenders and the Borrower for all purposes, absent manifest error.
SECTION 2.3. NUMBER OF INTEREST PERIODS.
There may be no more than 5 different Interest Periods outstanding at the
same time.
SECTION 2.4. REPAYMENT OF LOANS.
The Borrower shall repay the entire outstanding principal amount of, and
all accrued but unpaid interest on, the Term Loans on the Termination Date.
SECTION 2.5. PREPAYMENTS.
(a) Optional. During the period from the Effective Date to but excluding
the date which is one year following the Effective Date, the Borrower may not
voluntarily prepay any Term Loan in whole or part. At anytime on or after the
date which is one year following the Effective Date, the Borrower may
voluntarily prepay any Loan in whole or part upon at least 30-days' prior
written notice to the Agent.
(b) Mandatory. If at any time the aggregate principal amount of all
outstanding Loans exceeds the Maximum Availability, the Borrower shall within 5
days of the Borrower obtaining knowledge of the occurrence of any such excess,
deliver to the Agent for prompt distribution to each Lender a written plan
acceptable to all of the Lenders to eliminate such excess. If such excess is not
eliminated within 15 days of the Borrower obtaining knowledge of the occurrence
thereof, then the entire outstanding principal balance of all Loans, together
with all accrued interest thereon, shall be immediately due and payable in full.
SECTION 2.6. LATE CHARGES.
If any payment required under this Agreement is not paid within 10 days
after it becomes due and payable, the Borrower shall pay a late charge for late
payment to compensate the Lenders for the loss of use of funds and for the
expenses of handling the delinquent payment, in an amount equal to four percent
(4.0%) of such delinquent payment. Such late charge shall be paid in any event
not later than the due date of the next subsequent installment of principal
and/or interest. In the event the maturity of the Obligations hereunder occurs
or is accelerated pursuant to Section 11.2., this Section shall apply only to
payments overdue prior to the time of such acceleration. This Section shall not
be deemed to be a waiver of the Lenders' right to accelerate payment of any of
the Obligations as permitted under the terms of this Agreement.
SECTION 2.7. CONTINUATION.
So long as no Default or Event of Default exists, the Borrower may on any
Business Day, with respect to any LIBOR Loan, elect to maintain such LIBOR Loan
or any portion thereof as a LIBOR Loan by selecting a new Interest Period for
such LIBOR Loan. Each new Interest Period selected under this Section shall
commence on the last day of the immediately preceding Interest
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Period. Each selection of a new Interest Period shall be made by the Borrower
giving to the Agent a Notice of Continuation not later than 9:00 a.m. on the
third Business Day prior to the date of any such Continuation. Such notice by
the Borrower of a Continuation shall be by telecopy, electronic mail (but in the
case of electronic mail, only if the Agent has approved delivery of such notice
by electronic mail) or other form of communication in the form of a Notice of
Continuation, specifying (a) the proposed date of such Continuation, (b) the
LIBOR Loan and portion thereof subject to such Continuation and (c) the duration
of the selected Interest Period, all of which shall be specified in such manner
as is necessary to comply with all limitations on Loans outstanding hereunder.
Each Notice of Continuation shall be irrevocable by and binding on the Borrower
once given. Promptly after receipt of a Notice of Continuation, the Agent shall
notify each Lender by telecopy, electronic mail (but in the case of electronic
mail, only to any Lender which has approved delivery of such notice by
electronic mail) or other similar form of transmission of the proposed
Continuation. If the Borrower shall fail to select in a timely manner a new
Interest Period for any LIBOR Loan in accordance with this Section, such Loan
will automatically, on the last day of the current Interest Period therefor,
Convert into a Base Rate Loan notwithstanding failure of the Borrower to comply
with Section 2.8.
SECTION 2.8. CONVERSION.
So long as no Default or Event of Default exists, the Borrower may on any
Business Day, upon the Borrower's giving of a Notice of Conversion to the Agent,
Convert all or a portion of a Loan of one Type into a Loan of another Type. Any
Conversion of a LIBOR Loan into a Base Rate Loan shall be made on, and only on,
the last day of an Interest Period for such LIBOR Loan and, upon Conversion of a
Base Rate Loan into a LIBOR Loan, the Borrower shall pay accrued interest to the
date of Conversion on the principal amount so Converted. Each such Notice of
Conversion shall be given not later than 9:00 a.m. one Business Day prior to the
date of any proposed Conversion into Base Rate Loans and three Business Days
prior to the date of any proposed Conversion into LIBOR Loans. Promptly after
receipt of a Notice of Conversion, the Agent shall notify each Lender by
telecopy, electronic mail (but in the case of electronic mail, only to any
Lender which has approved delivery of such notice by electronic mail) or other
similar form of transmission of the proposed Conversion. Subject to the
restrictions specified above, each Notice of Conversion shall be by telecopy in
the form of a Notice of Conversion specifying (a) the requested date of such
Conversion, (b) the Type of Loan to be Converted, (c) the portion of such Type
of Loan to be Converted, (d) the Type of Loan such Loan is to be Converted into
and (e) if such Conversion is into a LIBOR Loan, the requested duration of the
Interest Period of such Loan. Each Notice of Conversion shall be irrevocable by
and binding on the Borrower once given.
SECTION 2.9. NOTES.
The Term Loans made by each Lender shall, in addition to this Agreement,
also be evidenced by a promissory note of the Borrower substantially in the form
of Exhibit G (each a "Term Note"), payable to the order of such Lender in a
principal amount equal to the amount of its Commitment as originally in effect
and otherwise duly completed.
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SECTION 2.10. AMOUNT LIMITATIONS.
Notwithstanding any other term of this Agreement, no Lender shall be
required to make any Loan if, immediately after the making of such Loan the
aggregate principal amount of all outstanding Loans would exceed the Maximum
Availability.
ARTICLE III. PAYMENTS, FEES AND OTHER GENERAL PROVISIONS
SECTION 3.1. PAYMENTS.
Except to the extent otherwise provided herein, all payments of principal,
interest and other amounts to be made by the Borrower under this Agreement or
any other Loan Document shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to the Agent, not later than
11:00 a.m. on the date on which such payment shall become due (each such payment
made after such time on such due date to be deemed to have been made on the next
succeeding Business Day). The Borrower shall, at the time of making each payment
under this Agreement or any other Loan Document, specify to the Agent the
amounts payable by the Borrower hereunder to which such payment is to be
applied. Each payment received by the Agent for the account of a Lender under
this Agreement or any Note of such Lender shall be paid to such Lender, by wire
transfer of immediately available funds in accordance with the wiring
instructions provided by such Lender to the Agent from time to time, for the
account of such Lender at the applicable Lending Office of such Lender. If the
Agent fails to pay such amount to a Lender within one Business Day of receipt
thereof by the Agent, the Agent shall pay interest on such amount until paid at
a rate per annum equal to the Federal Funds Rate from time to time in effect. If
the due date of any payment under this Agreement or any other Loan Document
would otherwise fall on a day which is not a Business Day such date shall be
extended to the next succeeding Business Day and interest shall continue to
accrue at the rate, if any, applicable to such payment.
SECTION 3.2. PRO RATA TREATMENT.
Except to the extent otherwise provided herein: (a) each borrowing from
the Lenders under Section 2.1.(a) shall be made from the Lenders, and each
payment of the Fees under Section 3.6.(b) shall be made for the account of the
Lenders, pro rata according to the amounts of their respective Commitments; (b)
each payment or prepayment of principal of Term Loans by the Borrower shall be
made for the account of the Lenders pro rata in accordance with the respective
unpaid principal amounts of the Term Loans held by them; (c) each payment of
interest on Term Loans by the Borrower shall be made for the account of the
Lenders pro rata in accordance with the amounts of interest on such Loans then
due and payable to the respective Lenders; and (d) the making, Conversion and
Continuation of Term Loans of a particular Type (other than Conversions provided
for by Section 5.5.) shall be made pro rata among the Lenders according to the
amounts of their respective Commitments (in the case of making of Loans) or
their respective Loans (in the case of Conversions and Continuations of Loans)
and the then current Interest Period for each Lender's portion of each Loan of
such Type shall be coterminous.
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SECTION 3.3. SHARING OF PAYMENTS, ETC.
If a Lender shall obtain payment of any principal of, or interest on, any
Loan made by it to the Borrower under this Agreement, or shall obtain payment on
any other Obligation owing by the Borrower or any other Loan Party through the
exercise of any right of set-off, banker's lien or counterclaim or similar right
or otherwise or through voluntary prepayments directly to a Lender or other
payments made by the Borrower or any other Loan Party to a Lender not in
accordance with the terms of this Agreement and such payment should be
distributed to the Lenders pro rata in accordance with Section 3.2. or Section
11.5., as applicable, such Lender shall promptly purchase from the other Lenders
participations in (or, if and to the extent specified by such Lender, direct
interests in) the Loans made by the other Lenders or other Obligations owed to
such other Lenders in such amounts, pay such amounts to the other Lenders and
make such other adjustments from time to time as shall be equitable, so that all
the Lenders shall share the benefit of such payment (net of any reasonable
expenses which may be incurred by such Lender in obtaining or preserving such
benefit) pro rata in accordance with Section 3.2. or Section 11.5. To such end,
all the Lenders shall make appropriate adjustments among themselves (by the
resale of participations sold or otherwise) if such payment is rescinded or must
otherwise be restored. The Borrower agrees that any Lender so purchasing a
participation (or direct interest) in the Loans or other Obligations owed to
such other Lenders may exercise all rights of set-off, banker's lien,
counterclaim or similar rights with respect to such participation as fully as if
such Lender were a direct holder of Loans in the amount of such participation.
Nothing contained herein shall require any Lender to exercise any such right or
shall affect the right of any Lender to exercise, and retain the benefits of
exercising, any such right with respect to any other indebtedness or obligation
of the Borrower.
SECTION 3.4. SEVERAL OBLIGATIONS.
No Lender shall be responsible for the failure of any other Lender to make
a Loan or to perform any other obligation to be made or performed by such other
Lender hereunder, and the failure of any Lender to make a Loan or to perform any
other obligation to be made or performed by it hereunder shall not relieve the
obligation of any other Lender to make any Loan or to perform any other
obligation to be made or performed by such other Lender.
SECTION 3.5. MINIMUM AMOUNTS.
(a) Borrowings. Each borrowing of Base Rate Loans shall be in an aggregate
minimum amount of $10,000,000 and integral multiples of $5,000,000 in excess
thereof. Each borrowing of and Continuation of, and each Conversion of Base Rate
Loans into, LIBOR Loans shall be in an aggregate minimum amount of $15,000,000
and integral multiples of $3,000,000 in excess of that amount.
(b) Prepayments. To the extent permitted by Section 2.5., each voluntary
prepayment of Term Loans shall be in an aggregate minimum amount of $5,000,000
and integral multiples of $2,500,000 in excess thereof.
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SECTION 3.6. FEES.
(a) Closing Fee. On the Effective Date, the Borrower agrees to pay to the
Agent and each Lender all loan fees as have been agreed to in writing by the
Borrower and the Agent or each Lender, as applicable.
(b) Unused Facility Fee. During the period from the date which is 60 days
following the Effective Date to but excluding the Commitment Termination Date,
the Borrower agrees to pay to the Agent for the account of the Lenders an unused
facility fee equal to the aggregate amount of the unutilized Commitments times
0.20% per annum. Such fee shall be computed on a daily basis and payable
quarterly in arrears on the last day of each September and December during such
period and on the Commitment Termination Date.
(c) Administrative and Other Fees. The Borrower agrees to pay the
administrative and other fees of the Agent as may be agreed to in writing from
time to time.
SECTION 3.7. COMPUTATIONS.
Unless otherwise expressly set forth herein, any accrued interest on any
Loan, any Fees or any other Obligations due hereunder shall be computed on the
basis of a year of 360 days and the actual number of days elapsed.
SECTION 3.8. USURY.
In no event shall the amount of interest due or payable on the Loans or
other Obligations exceed the maximum rate of interest allowed by Applicable Law
and, if any such payment is paid by the Borrower or received by any Lender, then
such excess sum shall be credited as a payment of principal, unless the Borrower
shall notify the respective Lender in writing that the Borrower elects to have
such excess sum returned to it forthwith. It is the express intent of the
parties hereto that the Borrower not pay and the Lenders not receive, directly
or indirectly, in any manner whatsoever, interest in excess of that which may be
lawfully paid by the Borrower under Applicable Law. The parties hereto hereby
agree and stipulate that the only charge imposed upon the Borrower for the use
of money in connection with this Agreement is and shall be the interest
specifically described in Section 2.2.(a)(i) and (ii). Notwithstanding the
foregoing, the parties hereto further agree and stipulate that all agency fees,
syndication fees, facility fees, letter of credit fees, underwriting fees,
default charges, late charges, funding or "breakage" charges, increased cost
charges, attorneys' fees and reimbursement for costs and expenses paid by the
Agent or any Lender to third parties or for damages incurred by the Agent or any
Lender, are charges made to compensate the Agent or any such Lender for
underwriting or administrative services and costs or losses performed or
incurred, and to be performed or incurred, by the Agent and the Lenders in
connection with this Agreement and shall under no circumstances be deemed to be
charges for the use of money. All charges other than charges for the use of
money shall be fully earned and nonrefundable when due.
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SECTION 3.9. STATEMENTS OF ACCOUNT.
The Agent will account to the Borrower monthly with a statement of Loans,
accrued interest and Fees, charges and payments made pursuant to this Agreement
and the other Loan Documents, and such account rendered by the Agent shall be
deemed conclusive upon the Borrower absent manifest error. The failure of the
Agent to deliver such a statement of accounts shall not relieve or discharge the
Borrower from any of its obligations hereunder.
SECTION 3.10. DEFAULTING LENDERS.
If for any reason any Lender (a "Defaulting Lender") shall fail or refuse
to perform any of its obligations under this Agreement or any other Loan
Document to which it is a party within the time period specified for performance
of such obligation or, if no time period is specified, if such failure or
refusal continues for a period of two Business Days after notice from the Agent,
then, in addition to the rights and remedies that may be available to the Agent
or the Borrower under this Agreement or Applicable Law, such Defaulting Lender's
right to participate in the administration of the Loans, this Agreement and the
other Loan Documents, including without limitation, any right to vote in respect
of, to consent to or to direct any action or inaction of the Agent or to be
taken into account in the calculation of the Requisite Lenders, shall be
suspended during the pendency of such failure or refusal. If a Lender is a
Defaulting Lender because it has failed to make timely payment to the Agent of
any amount required to be paid to the Agent hereunder (without giving effect to
any notice or cure periods), in addition to other rights and remedies which the
Agent or the Borrower may have under the immediately preceding provisions or
otherwise, the Agent shall be entitled (i) to collect interest from such
Defaulting Lender on such delinquent payment for the period from the date on
which the payment was due until the date on which the payment is made at the
Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of
the defaulted payment and any related interest, any amounts otherwise payable to
such Defaulting Lender under this Agreement or any other Loan Document and (iii)
to bring an action or suit against such Defaulting Lender in a court of
competent jurisdiction to recover the defaulted amount and any related interest.
Any amounts received by the Agent in respect of a Defaulting Lender's Loans
shall not be paid to such Defaulting Lender and shall be held uninvested by the
Agent and paid to such Defaulting Lender upon the Defaulting Lender's curing of
its default.
SECTION 3.11. TAXES.
(a) Taxes Generally. All payments by the Borrower of principal of, and
interest on, the Loans and all other Obligations shall be made free and clear of
and without deduction for any present or future excise, stamp or other taxes,
fees, duties, levies, imposts, charges, deductions, withholdings or other
charges of any nature whatsoever imposed by any taxing authority, but excluding
(i) franchise taxes, (ii) any taxes (other than withholding taxes) that would
not be imposed but for a connection between the Agent or a Lender and the
jurisdiction imposing such taxes (other than a connection arising solely by
virtue of the activities of the Agent or such Lender pursuant to or in respect
of this Agreement or any other Loan Document), (iii) any taxes imposed on or
measured by any Lender's assets, net or gross income, net or gross receipts,
capital or net worth, excess profits, or conduct of business or branch profits
and (iv) any taxes arising after the Agreement Date solely as a result of or
attributable to a Lender changing its
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designated Lending Office after the date such Lender becomes a party hereto
(such non-excluded items being collectively called "Taxes"). If any withholding
or deduction from any payment to be made by the Borrower hereunder is required
in respect of any Taxes pursuant to any Applicable Law, then the Borrower will:
(i) pay directly to the relevant Governmental Authority the full
amount required to be so withheld or deducted;
(ii) promptly forward to the Agent an official receipt or other
documentation satisfactory to the Agent evidencing such payment to such
Governmental Authority; and
(iii) pay to the Agent for its account or the account of the
applicable Lender, as the case may be, such additional amount or amounts
as is necessary to ensure that the net amount actually received by the
Agent or such Lender will equal the full amount that the Agent or such
Lender would have received had no such withholding or deduction been
required.
(b) Tax Indemnification. If the Borrower fails to pay any Taxes when due
to the appropriate Governmental Authority or fails to remit to the Agent, for
its account or the account of the respective Lender, as the case may be, the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Agent and the Lenders for any incremental Taxes, interest or
penalties that may become payable by the Agent or any Lender as a result of any
such failure. For purposes of this Section, a distribution hereunder by the
Agent or any Lender to or for the account of any Lender shall be deemed a
payment by the Borrower.
(c) Tax Forms. Prior to the date that any Lender or Participant organized
under the laws of a jurisdiction outside the United States of America becomes a
party hereto, such Person shall deliver to the Borrower and the Agent such
certificates, documents or other evidence, as required by the Internal Revenue
Code or Treasury Regulations issued pursuant thereto (including Internal Revenue
Service Forms W-8ECI and W-8BEN, as applicable, or appropriate successor forms),
properly completed, currently effective and duly executed by such Lender or
Participant establishing that payments to it hereunder and under the Notes are
(i) not subject to United States Federal backup withholding tax and (ii) not
subject to United States Federal withholding tax under the Code. Each such
Lender or Participant shall (x) deliver further copies of such forms or other
appropriate certifications on or before the date that any such forms expire or
become obsolete and after the occurrence of any event requiring a change in the
most recent form delivered to the Borrower and (y) obtain such extensions of the
time for filing, and renew such forms and certifications thereof, as may be
reasonably requested by the Borrower or the Agent. The Borrower shall not be
required to pay any amount pursuant to last sentence of subsection (a) above to
any Lender or Participant that is organized under the laws of a jurisdiction
outside of the United States of America or the Agent, if it is organized under
the laws of a jurisdiction outside of the United States of America, if such
Lender, Participant or the Agent, as applicable, fails to comply with the
requirements of this subsection. If any such Lender or Participant fails to
deliver the above forms or other documentation, then the Agent may withhold from
such payment to such Lender such amounts as are required by the Internal Revenue
Code. If any Governmental Authority asserts that the Agent did not properly
withhold
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or backup withhold, as the case may be, any tax or other amount from payments
made to or for the account of any Lender, such Lender shall indemnify the Agent
therefore, including all penalties and interest, any taxes imposed by any
jurisdiction on the amounts payable to the Agent under this Section, and costs
and expenses (including all fees and disbursements of any law firm or other
external counsel and the allocated cost of internal legal services and all
disbursements of internal counsel) of the Agent. The obligation of the Lenders
under this Section shall survive the termination of the Commitments, repayment
of all Obligations and the resignation or replacement of the Agent.
ARTICLE IV. UNENCUMBERED POOL PROPERTIES
SECTION 4.1. INCLUSION OF UNENCUMBERED POOL PROPERTIES.
(a) Existing Unencumbered Pool Properties. Subject to compliance with the
terms and conditions of Section 6.1.(a), as of the Effective Date the parties
hereto acknowledge and agree that the Properties listed on Schedule 4.1. are
Unencumbered Pool Properties.
(b) Additional Unencumbered Pool Properties. After the Effective Date, an
Eligible Property shall be included as Unencumbered Pool Property upon delivery
to the Agent of (i) an Unencumbered Pool Certificate pursuant to Section 9.4.(a)
setting forth the information required to be contained therein and assuming that
such Eligible Property is included as an Unencumbered Pool Property, (ii) such
other information as the Agent or any Lender (through the Agent) may reasonably
request in connection with the evaluation of such Eligible Property. Subject to
the terms and conditions of this Agreement, upon the Agent's receipt of such
certificate and such other information, such Eligible Property shall be included
as an Unencumbered Pool Property. Any Property that does not satisfy the
requirements of an Eligible Property shall be included as an Unencumbered Pool
Property only upon the written approval of the Requisite Lenders. If a Property
that is to become an Unencumbered Pool Property is owned (or is being acquired)
by a Subsidiary of the Borrower that is not yet a party to the Guaranty, such
Property shall not become an Unencumbered Pool Property unless and until an
Accession Agreement executed by such Subsidiary, and all other items required to
be delivered under Section 8.14., have all been delivered to the Agent.
SECTION 4.2. TERMINATION OF DESIGNATION AS UNENCUMBERED POOL PROPERTY.
Any Property previously included as an Unencumbered Pool Property but
which is not included in an Unencumbered Pool Certificate subsequently submitted
pursuant to this Agreement shall no longer be included as an Unencumbered Pool
Property (effective as of the date of receipt by the Agent of such Unencumbered
Pool Certificate) so long as no Default or Event of Default exists or would
exist immediately after such Property is no longer included as an Unencumbered
Pool Property.
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ARTICLE V. YIELD PROTECTION, ETC.
SECTION 5.1. ADDITIONAL COSTS; CAPITAL ADEQUACY.
(a) Additional Costs. The Borrower shall promptly pay to the Agent for the
account of a Lender from time to time such amounts as such Lender may reasonably
determine to be necessary to compensate such Lender for any costs incurred by
such Lender that it reasonably determines are attributable to its making or
maintaining of any LIBOR Loans or its obligation to make any LIBOR Loans
hereunder, any reduction in any amount receivable by such Lender under this
Agreement or any of the other Loan Documents in respect of any of such Loans or
such obligation or the maintenance by such Lender of capital in respect of its
Loans or its Commitment (such increases in costs and reductions in amounts
receivable being herein called "Additional Costs"), resulting from any
Regulatory Change that: (i) changes the basis of taxation of any amounts payable
to such Lender under this Agreement or any of the other Loan Documents in
respect of any of such Loans or its Commitment (other than taxes imposed on or
measured by the overall net income of such Lender or of its Lending Office for
any of such Loans by the jurisdiction in which such Lender has its principal
office or such Lending Office); or (ii) imposes or modifies any reserve, special
deposit or similar requirements (including without limitation, Regulation D of
the Board of Governors of the Federal Reserve System or other similar reserve
requirement applicable to any other category of liabilities or category of
extensions of credit or other assets by reference to which the interest rate on
LIBOR Loans is determined) relating to any extensions of credit or other assets
of, or any deposits with or other liabilities of, or other credit extended by,
or any other acquisition of funds by such Lender (or its parent corporation), or
any commitment of such Lender (including, without limitation, the Commitment of
such Lender hereunder); or (iii) has or would have the effect of reducing the
rate of return on capital of such Lender to a level below that which such Lender
could have achieved but for such Regulatory Change (taking into consideration
such Lender's policies with respect to capital adequacy). Subject to Section
5.6., the Agent and each Lender agree to take such steps as the Borrower may
reasonably request to mitigate amounts payable under this Section, so long as
such steps are not disadvantageous to the Agent or such Lender, as the case may
be, as determined by the Agent or such Lender, as the case may be, in its sole
discretion.
(b) Lender's Suspension of LIBOR Loans. Without limiting the effect of the
provisions of the immediately preceding subsection (a), if by reason of any
Regulatory Change, any Lender either (i) incurs Additional Costs based on or
measured by the excess above a specified level of the amount of a category of
deposits or other liabilities of such Lender that includes deposits by reference
to which the interest rate on LIBOR Loans is determined as provided in this
Agreement or a category of extensions of credit or other assets of such Lender
that includes LIBOR Loans or (ii) becomes subject to restrictions on the amount
of such a category of liabilities or assets that it may hold, then, if such
Lender so elects by notice to the Borrower (with a copy to the Agent), the
obligation of such Lender to make or Continue, or to Convert any other Type of
Loans into, LIBOR Loans hereunder shall be suspended until such Regulatory
Change ceases to be in effect (in which case the provisions of Section 5.5.
shall apply).
(c) Notification and Determination of Additional Costs. Each of the Agent
and each Lender agrees to notify the Borrower of any event occurring after the
Agreement Date entitling
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the Agent or such Lender to compensation under any of the preceding subsections
of this Section as promptly as practicable; provided, however, the failure of
the Agent or any Lender to give such notice shall not release the Borrower from
any of its obligations hereunder. The Agent and each Lender, as the case may be,
agrees to furnish to the Borrower (and in the case of a Lender to the Agent as
well) a certificate setting forth the basis and amount of each request by the
Agent or such Lender for compensation under this Section. Determinations by the
Agent or such Lender, as the case may be, of the effect of any Regulatory Change
shall be conclusive, provided that such determinations are made on a reasonable
basis and in good faith.
SECTION 5.2. SUSPENSION OF LIBOR LOANS.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of LIBOR for any Interest Period:
(a) the Agent reasonably determines (which determination shall be
conclusive) that quotations of interest rates for the relevant deposits
referred to in the definition of LIBOR are not being provided in the
relevant amounts or for the relevant maturities for purposes of
determining rates of interest for LIBOR Loans as provided herein or is
otherwise unable to determine LIBOR, or
(b) the Agent reasonably determines (which determination shall be
conclusive) that the relevant rates of interest referred to in the
definition of LIBOR upon the basis of which the rate of interest for LIBOR
Loans for such Interest Period is to be determined are not likely to
adequately cover the cost to any Lender of making or maintaining LIBOR
Loans for such Interest Period;
then the Agent shall give the Borrower and each Lender prompt notice thereof
and, so long as such condition remains in effect, the Lenders shall be under no
obligation to, and shall not, make additional LIBOR Loans, Continue LIBOR Loans
or Convert Loans into LIBOR Loans and the Borrower shall, on the last day of
each current Interest Period for each outstanding LIBOR Loan, either repay such
Loan or Convert such Loan into a Base Rate Loan.
SECTION 5.3. ILLEGALITY.
Notwithstanding any other provision of this Agreement, if any Lender shall
reasonably determine (which determination shall be conclusive and binding) that
it is unlawful for such Lender to honor its obligation to make or maintain LIBOR
Loans hereunder, then such Lender shall promptly notify the Borrower thereof
(with a copy to the Agent) and such Lender's obligation to make or Continue, or
to Convert Loans of any other Type into, LIBOR Loans shall be suspended until
such time as such Lender may again make and maintain LIBOR Loans (in which case
the provisions of Section 5.5. shall be applicable).
SECTION 5.4. COMPENSATION.
The Borrower shall pay to the Agent for the account of each Lender, upon
the request of such Lender through the Agent, such amount or amounts as shall be
sufficient (in the reasonable opinion of such Lender) to compensate it for any
loss (other than lost profits), cost or expense
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that such Lender reasonably determines is attributable to: (a) any payment or
prepayment (whether mandatory or optional) of a LIBOR Loan, or Conversion of a
LIBOR Loan, made by such Lender for any reason (including, without limitation,
acceleration) on a date other than the last day of the Interest Period for such
Loan; or (b) any failure by the Borrower for any reason (including, without
limitation, the failure of any of the applicable conditions precedent specified
in Article VI. to be satisfied) to borrow a LIBOR Loan from such Lender on the
date for such borrowing, or to Convert a Base Rate Loan into a LIBOR Loan or
Continue a LIBOR Loan on the requested date of such Conversion or Continuation.
Not in limitation of the foregoing, such compensation shall include, without
limitation, an amount equal to the then present value of (i) the amount of
interest that would have accrued on such LIBOR Loan for the remainder of the
Interest Period at the rate applicable to such LIBOR Loan, less (ii) the amount
of interest that would accrue on the same LIBOR Loan for the same period if
LIBOR were set on the date on which such LIBOR Loan was repaid, prepaid or
Converted or the date on which the Borrower failed to borrow, Covert or Continue
such LIBOR Loan, as applicable, calculating present value by using as a discount
rate LIBOR quoted on such date. Upon the Borrower's request (made through the
Agent), any Lender requesting compensation under this Section shall provide the
Borrower with a statement setting forth the basis for requesting such
compensation and the method for determining the amount thereof. Any such
statement shall be conclusive absent manifest error.
SECTION 5.5. TREATMENT OF AFFECTED LOANS.
If the obligation of any Lender to make LIBOR Loans or to Continue, or to
Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to Section
5.1.(b), 5.2. or 5.3., then such Lender's LIBOR Loans shall be automatically
Converted into Base Rate Loans on the last day(s) of the then current Interest
Period(s) for LIBOR Loans (or, in the case of a Conversion required by Section
5.1.(b) or 5.3., on such earlier date as such Lender may specify to the Borrower
with a copy to the Agent) and, unless and until such Lender gives notice as
provided below that the circumstances specified in Section 5.1., 5.2. or 5.3.
that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's LIBOR Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's LIBOR Loans shall be applied instead to its
Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such
Lender as LIBOR Loans shall be made or Continued instead as Base Rate
Loans, and all Base Rate Loans of such Lender that would otherwise be
Converted into LIBOR Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 5.1. or 5.3. that gave rise to the Conversion
of such Lender's LIBOR Loans pursuant to this Section no longer exist (which
such Lender agrees to do promptly upon such circumstances ceasing to exist) at a
time when LIBOR Loans made by other Lenders are outstanding, then such Lender's
Base Rate Loans shall be automatically Converted, on the first day(s) of the
next succeeding Interest Period(s) for such outstanding LIBOR Loans, to the
extent necessary so that, after giving effect thereto, all Loans held by the
Lenders holding LIBOR
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Loans and by such Lender are held pro rata (as to principal amounts, Types and
Interest Periods) in accordance with their respective Commitments.
SECTION 5.6. CHANGE OF LENDING OFFICE.
Each Lender agrees that it will use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to designate an
alternate Lending Office with respect to any of its Loans affected by the
matters or circumstances described in Sections 3.11., 5.1. or 5.3. to reduce the
liability of the Borrower or avoid the results provided thereunder, so long as
such designation is not disadvantageous to such Lender as determined by such
Lender in its sole discretion, except that such Lender shall have no obligation
to designate a Lending Office located in the United States of America.
SECTION 5.7. ASSUMPTIONS CONCERNING FUNDING OF LIBOR LOANS.
Calculation of all amounts payable to a Lender under this Article V. shall
be made as though such Lender had actually funded LIBOR Loans through the
purchase of deposits in the relevant market bearing interest at the rate
applicable to such LIBOR Loans in an amount equal to the amount of the LIBOR
Loans and having a maturity comparable to the relevant Interest Period;
provided, however, that each Lender may fund each of its LIBOR Loans in any
manner it sees fit and the foregoing assumption shall be used only for
calculation of amounts payable under this Article V.
ARTICLE VI. CONDITIONS PRECEDENT
SECTION 6.1. INITIAL CONDITIONS PRECEDENT.
The obligation of the Lenders to effect or permit the occurrence of the
first Credit Event hereunder is subject to the satisfaction or waiver of the
following conditions precedent:
(a) The Agent shall have received each of the following, in form and
substance satisfactory to the Agent:
(i) counterparts of this Agreement executed by each of the parties
hereto;
(ii) Term Notes executed by the Borrower, payable to each Lender and
complying with the terms of Section 2.9.;
(iii) the Guaranty executed by the Parent, and any other Person that
would be required under Section 8.14. to become a party to the Guaranty as
of the Effective Date;
(iv) an opinion of counsel to the Parent, the Borrower and, unless
otherwise agreed by the Agent with respect to a given Guarantor, each of
the other Guarantors that owns any Unencumbered Pool Property, addressed
to the Agent and the Lenders and covering the matters set forth in Exhibit
H;
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(v) the certificate or articles of incorporation, articles of
organization, certificate of limited partnership, declaration of trust or
other comparable organizational instrument (if any) of the Parent, the
Borrower and each of the other Guarantors that owns any Unencumbered Pool
Property certified as of a date acceptable to the Agent by the Secretary
of State of the state of formation of such Person;
(vi) a certificate of good standing (or certificate of similar
meaning) with respect to the Parent, the Borrower and each of the other
Guarantors that owns any Unencumbered Pool Property issued as of a date
acceptable to the Agent by the Secretary of State of the state of
formation of each such Person and certificates of qualification to
transact business or other comparable certificates issued by each
Secretary of State (and any state department of taxation, as applicable)
of each state in which such Person is required to be so qualified;
(vii) a certificate of incumbency signed by the Secretary or
Assistant Secretary (or other individual performing similar functions) of
each Loan Party with respect to each of the officers of such Person
authorized to execute and deliver the Loan Documents to which such Person
is a party, and in the case of the Borrower, authorized to execute and
deliver on behalf of the Borrower Notices of Borrowing, Notices of
Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or
other individual performing similar functions) of each Loan Party of (x)
the by-laws of such Person, if a corporation, the operating agreement, if
a limited liability company, the partnership agreement, if a limited or
general partnership, or other comparable document in the case of any other
form of legal entity, (y) all corporate, partnership, member or other
necessary action taken by such Person to authorize the execution, delivery
and performance of the Loan Documents to which it is a party and (z) in
the case of any Guarantor other than the Parent and any Guarantor that
owns an Unencumbered Pool Property, the certificate or articles of
incorporation, articles of organization, certificate of limited
partnership, declaration of trust or other comparable organizational
instrument (if any) of such Person;
(ix) a Unencumbered Pool Certificate calculated as of the Effective
Date;
(x) a Compliance Certificate calculated on a pro forma basis for the
Parent's fiscal quarter ended June 30, 2003;
(xi) pro forma calculations, together with detailed assumptions,
establishing that the Parent, and when appropriate its consolidated
Subsidiaries, will be in compliance with the covenants contained in
Section 10.1. at the end of each of the next eight fiscal quarters;
(xii) copies of each of the New York Collateral Documents, including
all amendments thereto, showing all recording information thereon
certified as true, correct and complete by an authorized officer of the
Parent;
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(xiii) assignments of each of the New York Collateral Documents
executed by the Existing Lender, such assignments relating to the
applicable Mortgages to be substantially in the form of Exhibit J (each a
"Mortgage Assignment");
(xiv) modifications to each of the New York Collateral Documents
executed by the applicable Loan Parties, such modifications relating to
the applicable Mortgages to be substantially in the form of Exhibit K
(each a "Mortgage Modification");
(xv) copies of each environmental assessments reports on the
Properties subject to the New York Collateral Documents available to the
Borrower, together with reliance letters from the environmental
engineering firms performing such assessments addressed to the Agent and
the Lenders;
(xvi) an Environmental Indemnity Agreement executed by the Borrower
and the Parent with respect to each Property subject to a New York
Collateral Document, such agreement to be substantially in the form of
Exhibit L (each an "Environmental Indemnity Agreement"); and
(xvii) such other documents and instruments as the Agent, or any
Lender through the Agent, may reasonably request.
(b) In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Agent or
any of the Lenders any event, condition, situation or status since the
date of the information contained in the financial and business
projections, budgets, pro forma data and forecasts concerning the Parent
and its Subsidiaries delivered to the Agent and the Lenders prior to the
Agreement Date that has had or could reasonably be expected to result in a
Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral,
administrative or judicial proceeding shall be pending or threatened which
could reasonably be expected to (A) result in a Material Adverse Effect or
(B) restrain or enjoin, impose materially burdensome conditions on, or
otherwise materially and adversely affect, the ability of any Loan Party
to fulfill its obligations under the Loan Documents to which it is a
party; and
(iii) The Borrower and the other Loan Parties shall have received
all approvals, consents and waivers, and shall have made or given all
necessary filings and notices as shall be required to consummate the
transactions contemplated hereby without the occurrence of any default
under, conflict with or violation of (A) any Applicable Law or (B) any
agreement, document or instrument to which any Loan Party is a party or by
which any of them or their respective properties is bound, except for such
approvals, consents, waivers, filings and notices the receipt, making or
giving of which, or the failure to make, give or receive which, would not
reasonably be likely to (1) have a Material Adverse Effect, or (2)
restrain or enjoin, impose materially burdensome
- 37 -
conditions on, or otherwise materially and adversely affect the ability of
the Borrower or any other Loan Party to fulfill its obligations under the
Loan Documents to which it is a party.
SECTION 6.2. CONDITIONS PRECEDENT TO ALL LOANS.
The obligations of Lenders to make any Loans are subject to the further
conditions precedent that: (a) no Default or Event of Default shall exist as of
the date of the making of such Loan or would exist immediately after giving
effect thereto, and none of the conditions described in Section 2.10. would
exist after giving effect thereto; (b) the representations and warranties made
or deemed made by the Borrower and each other Loan Party in the Loan Documents
to which any of them is a party shall be true and correct on and as of the date
of the making of such Loan with the same force and effect as if made on and as
of such date except to the extent that such representations and warranties
expressly relate solely to an earlier date (in which case such representations
and warranties shall have been true and accurate on and as of such earlier date)
and except for changes in factual circumstances specifically and expressly
permitted hereunder and (c) in the case of the borrowing of Term Loans, the
Agent shall have received a timely Notice of Borrowing. Each Credit Event shall
constitute a certification by the Borrower to the effect set forth in the
preceding sentence (both as of the date of the giving of notice relating to such
Credit Event and, unless the Borrower otherwise notifies the Agent prior to the
date of such Credit Event, as of the date of the occurrence of such Credit
Event). In addition, the Borrower shall be deemed to have represented to the
Agent and the Lenders at the time such Loan is made that all conditions to the
making of such Loan contained in this Article VI. have been satisfied.
SECTION 6.3. CONDITIONS AS COVENANTS.
If the Lenders permit the making of any Loans prior to the satisfaction of
all conditions precedent set forth in Sections 6.1. and 6.2., the Borrower shall
nevertheless cause such condition or conditions to be satisfied within 5
Business Days after the date of the making of such Loans. Unless set forth in
writing to the contrary, the making of its initial Loan by a Lender shall
constitute a confirmation by such Lender to the Agent and the other Lenders that
insofar as such Lender is concerned the Borrower has satisfied the conditions
precedent for initial Loans set forth in Sections 6.1. and 6.2.
ARTICLE VII. REPRESENTATIONS AND WARRANTIES
SECTION 7.1. REPRESENTATIONS AND WARRANTIES.
In order to induce the Agent and each Lender to enter into this Agreement
and to make Loans, each of the Parent and the Borrower represents and warrants
to the Agent and each Lender as follows:
(a) Organization; Power; Qualification. Each of the Loan Parties and the
other Subsidiaries is a corporation, partnership or other legal entity, duly
organized or formed, validly existing and in good standing under the
jurisdiction of its incorporation or formation, has the power and authority to
own or lease its respective properties and to carry on its respective business
as now being and hereafter proposed to be conducted and is duly qualified and is
in
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good standing as a foreign corporation, partnership or other legal entity, and
authorized to do business, in each jurisdiction in which the character of its
properties or the nature of its business requires such qualification or
authorization and where the failure to be so qualified or authorized could
reasonably be expected to have, in each instance, a Material Adverse Effect.
(b) Ownership Structure. Part I of Schedule 7.1.(b) is, as of the
Agreement Date, a complete and correct list of all Subsidiaries of the Parent
(including all Subsidiaries of the Borrower), setting forth for each such
Subsidiary, (a) the jurisdiction of organization of such Subsidiary, (b) each
Person holding ownership interests in such Subsidiary, (c) the nature of the
ownership interests held by each such Person and (d) the percentage of ownership
of such Subsidiary represented by such ownership interests. Except as disclosed
in such Schedule, as of the Agreement Date (i) each of the Parent and its
Subsidiaries owns, free and clear of all Liens, and has the unencumbered right
to vote, all outstanding ownership interests in each Person shown to be held by
it on such Schedule, (ii) all of the issued and outstanding capital stock of
each such Person organized as a corporation is validly issued, fully paid and
nonassessable and (iii) there are no outstanding subscriptions, options,
warrants, commitments, preemptive rights or agreements of any kind (including,
without limitation, any stockholders' or voting trust agreements) for the
issuance, sale, registration or voting of, or outstanding securities convertible
into, any additional shares of capital stock of any class, or partnership or
other ownership interests of any type in, any such Person. Part II of Schedule
7.1.(b) correctly sets forth all Unconsolidated Affiliates of the Parent,
including the correct legal name of such Person, the type of legal entity which
each such Person is, and all ownership interests in such Person held directly or
indirectly by the Parent. Part III of Schedule 7.1.(b) is, as of the Agreement
Date, a complete and correct list of all Non-Guarantor Entities, setting forth,
for each such Person, the correct legal name of such Person, the type of legal
entity which each such Person is, and all equity interests in such Person held
directly or indirectly by the Borrower.
(c) Authorization of Agreement, Notes, Loan Documents and Borrowings. Each
Loan Party has the right and power, and has taken all necessary action to
authorize it, to borrow and obtain other extensions of credit hereunder (in the
case of the Borrower) and to execute, deliver and perform this Agreement, the
Notes and the other Loan Documents to which it is a party in accordance with
their respective terms and to consummate the transactions contemplated hereby
and thereby, as the case may be. This Agreement, the Notes and each of the other
Loan Documents to which any Loan Party is a party have been duly executed and
delivered by such Loan Party and each is a legal, valid and binding obligation
of such Loan Party enforceable against such Loan Party in accordance with its
respective terms, except as the same may be limited by bankruptcy, insolvency,
and other similar laws affecting the rights of creditors generally and the
availability of equitable remedies for the enforcement of certain obligations
contained herein or therein may be limited by equitable principles generally.
(d) Compliance of Agreement, Etc. with Laws. The execution, delivery and
performance of this Agreement and the other Loan Documents to which any Loan
Party is a party in accordance with their respective terms and the borrowings
and other extensions of credit hereunder do not and will not, by the passage of
time, the giving of notice, or both: (i) require any Governmental Approval or
violate any Applicable Law (including all Environmental Laws) relating to any
Loan Party; (ii) conflict with, result in a breach of or constitute a default
under the
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organizational documents of any Loan Party, or any indenture, agreement or other
instrument to which any Loan Party is a party or by which it or any of its
respective properties may be bound; or (iii) result in or require the creation
or imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by any Loan Party other than in favor of the Agent for the
benefit of the Lenders.
(e) Compliance with Law; Governmental Approvals. Each Loan Party and each
other Subsidiary is in compliance with each Governmental Approval and all other
Applicable Laws relating to it except for noncompliances which, and Governmental
Approvals the failure to possess which, could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(f) Title to Properties; Liens. Schedule 7.1.(f) is, as of the Agreement
Date, a complete and correct listing of all real estate assets of the Loan
Parties and the other Subsidiaries, setting forth, for each such Property, the
current occupancy status of such Property and whether such Property is a
Development Property or Redevelopment Property and, if such Property is a
Development Property or Redevelopment Property, the status of completion of such
Property. Each of the Loan Parties and all other Subsidiaries has good,
marketable and legal title to, or a valid leasehold interest in, its respective
assets.
(g) Existing Indebtedness; Total Liabilities. Part I of Schedule 7.1.(g)
is, as of the Agreement Date, a complete and correct listing of all Indebtedness
(including all Guarantees) of each of the Loan Parties and the other
Subsidiaries, and if such Indebtedness is secured by any Lien, a description of
all of the property subject to such Lien. As of the Agreement Date, the Loan
Parties and the other Subsidiaries have performed and are in compliance with all
of the terms of such Indebtedness and all instruments and agreements relating
thereto, and no default or event of default, or event or condition which with
the giving of notice, the lapse of time, or both, would constitute a default or
event of default, exists with respect to any such Indebtedness. Part II of
Schedule 7.1.(g) is, as of the Agreement Date, a complete and correct listing of
all Total Liabilities of the Loan Parties and the other Subsidiaries (excluding
any Indebtedness set forth on Part I of such Schedule).
(h) Material Contracts. Schedule 7.1.(h) is, as of the Agreement Date, a
true, correct and complete listing of all Material Contracts. Each of the Loan
Parties and the other Subsidiaries that are parties to any Material Contract has
performed and is in compliance with all of the terms of such Material Contract,
and no default or event of default, or event or condition which with the giving
of notice, the lapse of time, or both, would constitute a default or event of
default, exists with respect to any such Material Contract.
(i) Litigation. Except as set forth on Schedule 7.1.(i), there are no
actions, suits or proceedings pending (nor, to the knowledge of any Loan Party,
are there any actions, suits or proceedings threatened, nor is there any basis
therefor) against or in any other way relating adversely to or affecting any
Loan Party, any other Subsidiary or any of their respective property in any
court or before any arbitrator of any kind or before or by any other
Governmental Authority which, if adversely determined, could reasonably be
expected to have a Material
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Adverse Effect, and there are no strikes, slow downs, work stoppages or walkouts
or other labor disputes in progress or threatened relating to any Loan Party or
any other Subsidiary.
(j) Taxes. All federal, state and other tax returns of each Loan Party and
each other Subsidiary required by Applicable Law to be filed have been duly
filed, and all federal, state and other taxes, assessments and other
governmental charges or levies upon each Loan Party and each other Subsidiary
and their respective properties, income, profits and assets which are due and
payable have been paid, except any such nonpayment or non-filing which is at the
time permitted under Section 8.6. As of the Agreement Date, none of the United
States income tax returns of any Loan Party or any other Subsidiary is under
audit. All charges, accruals and reserves on the books of the Parent and each of
its Subsidiaries in respect of any taxes or other governmental charges are in
accordance with GAAP.
(k) Financial Statements. The Parent has furnished to each Lender copies
of (i) the audited consolidated balance sheet of the Parent and its consolidated
Subsidiaries for the fiscal years ended December 31, 2001 and December 31, 2002,
and the related consolidated statements of operations, shareholders' equity and
cash flow for the fiscal years ended on such dates, with the opinion thereon of
KPMG, LLP, and (ii) the unaudited consolidated balance sheet of the Parent and
its consolidated Subsidiaries for the fiscal quarter ended June 30, 2003, and
the related consolidated statements of operations and cash flow of the Parent
and its consolidated Subsidiaries for the two fiscal quarter period ended on
such date. Such balance sheets and statements (including in each case related
schedules and notes) are complete and correct in all material respects and
present fairly, in accordance with GAAP consistently applied throughout the
periods involved, the consolidated financial position of the Borrower and its
consolidated Subsidiaries as at their respective dates and the results of
operations and the cash flow for such periods (subject, as to interim
statements, to changes resulting from normal year-end audit adjustments).
Neither the Parent nor any of its Subsidiaries has on the Agreement Date any
material contingent liabilities, liabilities, liabilities for taxes, unusual or
long-term commitments or unrealized or forward anticipated losses from any
unfavorable commitments, except as referred to or reflected or provided for in
said financial statements.
(l) No Material Adverse Change. Since December 31, 2002, there has been no
material adverse change in the consolidated financial condition, results of
operations, business or prospects of the Parent and its consolidated
Subsidiaries taken as a whole. Each of the Loan Parties is Solvent and the
Parent and its Subsidiaries, taken as a whole, are Solvent.
(m) ERISA. Each member of the ERISA Group has fulfilled its obligations as
required under the minimum funding standards of ERISA and the Internal Revenue
Code with respect to each Plan and is in compliance in all material respects
with the presently applicable provisions of ERISA and the Internal Revenue Code
with respect to each Plan. No member of the ERISA Group has (i) sought a waiver
of the minimum funding standard under Section 412 of the Internal Revenue Code
in respect of any Plan, (ii) failed to make any contribution or payment to any
Plan or Multiemployer Plan or in respect of any Benefit Arrangement which could
reasonably be expected to have a Material Adverse Effect, or made any amendment
to any Plan or Benefit Arrangement, which has resulted or could result in the
imposition of a Lien or the posting of a bond or other security under ERISA or
the Internal Revenue Code or (iii) incurred
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any liability under Title IV of ERISA other than a liability to the PBGC for
premiums under Section 4007 of ERISA.
(n) Absence of Defaults. None of the Loan Parties or the other
Subsidiaries is in default under its articles of incorporation, bylaws,
partnership agreement or other similar organizational documents, and no event
has occurred, which has not been remedied, cured or waived: (i) which
constitutes a Default or an Event of Default; or (ii) which constitutes, or
which with the passage of time, the giving of notice, or both, would constitute,
a default or event of default by any Loan Party or any other Subsidiary under
any agreement (other than this Agreement) or judgment, decree or order to which
any such Person is a party or by which any such Person or any of its respective
properties may be bound where such default or event of default could,
individually or in the aggregate, have a Material Adverse Effect.
(o) Environmental Laws. In the ordinary course of business and from time
to time each of the Loan Parties and the other Subsidiaries conducts reviews of
the effect of Environmental Laws on its respective business, operations and
properties, including without limitation, its respective Properties, in the
course of which such Loan Party or such other Subsidiary identifies and
evaluates associated liabilities and costs (including, without limitation,
determining whether any capital or operating expenditures are required for
clean-up or closure of properties presently or previously owned, determining
whether any capital or operating expenditures are required to achieve or
maintain compliance in all material respects with Environmental Laws or required
as a condition of any Governmental Approval, any contract, or any related
constraints on operating activities, determining whether any costs or
liabilities exist in connection with off-site disposal of wastes or Hazardous
Materials, and determining whether any actual or potential liabilities to third
parties, including employees, and any related costs and expenses exist). Each of
the Loan Parties and the other Subsidiaries is in compliance with all applicable
Environmental Laws and has obtained all Governmental Approvals which are
required under Environmental Laws and is in compliance with all terms and
conditions of such Governmental Approvals, where with respect to each of the
foregoing the failure to obtain or to comply with could be reasonably expected
to have a Material Adverse Effect. Except for any of the following matters that
could not be reasonably expected to have a Material Adverse Effect, no Loan
Party is aware of, nor has it received notice of, any past or present events,
conditions, circumstances, activities, practices, incidents, actions, or plans
which, with respect to any Loan Party or any other Subsidiary, may unreasonably
interfere with or prevent compliance or continued compliance with Environmental
Laws, or may give rise to any common-law or legal liability, based on or related
to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling or the emission, discharge, release or threatened release
into the environment, of any Hazardous Material; and there is no civil,
criminal, or administrative action, suit, demand, claim, hearing, notice, or
demand letter, notice of violation, investigation, or proceeding pending or, to
the Parent's knowledge after due inquiry, threatened, against any Loan Party or
any other Subsidiary relating in any way to Environmental Laws which, if
determined adversely to such Loan Party or such other Subsidiary, could be
reasonably expected to have a Material Adverse Effect.
(p) Investment Company; Public Utility Holding Company. No Loan Party, nor
any other Subsidiary, is (i) an "investment company" or a company "controlled"
by an "investment
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company" within the meaning of the Investment Company Act of 1940, as amended,
(ii) a "holding company" or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended, or (iii) subject to any other Applicable Law which purports to
regulate or restrict its ability to borrow money or obtain other extensions of
credit or to consummate the transactions contemplated by this Agreement or to
perform its obligations under any Loan Document to which it is a party.
(q) Margin Stock. No Loan Party nor any other Subsidiary is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose, whether immediate, incidental or ultimate, of buying or
carrying "margin stock" within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System.
(r) Affiliate Transactions. Except as permitted by Section 10.10., no Loan
Party nor any other Subsidiary is a party to or bound by any agreement or
arrangement (whether oral or written) with any Affiliate.
(s) Intellectual Property. Each of the Loan Parties and each other
Subsidiary owns or has the right to use, under valid license agreements or
otherwise, all patents, licenses, franchises, trademarks, trademark rights,
trade names, trade name rights, trade secrets and copyrights (collectively,
"Intellectual Property") necessary to the conduct of its businesses, without
known conflict with any patent, license, franchise, trademark, trade secret,
trade name, copyright, or other proprietary right of any other Person. All such
Intellectual Property is fully protected and/or duly and properly registered,
filed or issued in the appropriate office and jurisdictions for such
registrations, filing or issuances. No material claim has been asserted by any
Person with respect to the use of any such Intellectual Property, or challenging
or questioning the validity or effectiveness of any such Intellectual Property.
(t) Business. As of the Agreement Date, the Loan Parties and the other
Subsidiaries are engaged in the business of owning, developing and managing
office and industrial properties.
(u) Broker's Fees. No broker's or finder's fee, commission or similar
compensation will be payable with respect to the transactions contemplated
hereby. No other similar fees or commissions will be payable by any Loan Party
for any other services rendered to any Loan Party or any other Subsidiaries
ancillary to the transactions contemplated hereby.
(v) Accuracy and Completeness of Information. All written information,
reports and other papers and data furnished to the Agent or any Lender by, on
behalf of, or at the direction of any Loan Party or any other Subsidiary were,
at the time the same were so furnished, complete and correct in all material
respects, to the extent necessary to give the recipient a true and accurate
knowledge of the subject matter, or, in the case of financial statements,
present fairly, in accordance with GAAP consistently applied throughout the
periods involved, the financial position of the Persons involved as at the date
thereof and the results of operations for such periods. No fact is known to any
Loan Party which has had, or may in the future have (so far as any Loan Party
can reasonably foresee), a Material Adverse Effect which has not been set forth
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in the financial statements referred to in Section 7.1.(k) or in such
information, reports or other papers or data or otherwise disclosed in writing
to the Agent and the Lenders prior to the Effective Date. No document furnished
or written statement made to the Agent or any Lender in connection with the
negotiation, preparation or execution, or pursuant to, of this Agreement or any
of the other Loan Documents contains or will contain any untrue statement of a
fact material to the creditworthiness of any Loan Party or any other Subsidiary
or omits or will omit to state a material fact necessary in order to make the
statements contained therein not misleading.
(w) Not Plan Assets; No Prohibited Transactions. None of the assets of any
Loan Party or any other Subsidiary constitutes "plan assets" within the meaning
of ERISA, the Internal Revenue Code and the respective regulations promulgated
thereunder, of any Plan. The execution, delivery and performance of the Loan
Documents by the Loan Parties, and the borrowing, other credit extensions and
repayment of amounts thereunder, do not and will not constitute "prohibited
transactions" under ERISA or the Internal Revenue Code.
(x) Unencumbered Pool Properties. Each of the Unencumbered Pool Properties
qualifies as an Eligible Property.
(y) Tax Shelter Regulations. Neither the Borrower, the Parent, any other
Guarantor, any non-borrower trustor, nor any Subsidiary of any of the foregoing
intends to treat the Loans or the transactions contemplated by this Agreement
and the other Loan Documents as being a "reportable transaction" (within the
meaning of Treasury Regulation Section 1.6011-4). If the Borrower, or any other
Loan Party determines to take any action inconsistent with such intention, the
Borrower will promptly notify the Agent thereof. If the Borrower so notifies the
Agent, the Borrower acknowledges that the Agent and the Lenders may treat the
Loans as part of a transaction that is subject to Treasury Regulation Section
301.6112-1, and the Agent and each Lender, will maintain the lists and other
records, including the identity of the applicable party to the Loans as required
by such Treasury Regulation.
SECTION 7.2. SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC.
All statements contained in any certificate, financial statement or other
instrument delivered by or on behalf of any Loan Party or any other Subsidiary
to the Agent or any Lender pursuant to or in connection with this Agreement or
any of the other Loan Documents (including, but not limited to, any such
statement made in or in connection with any amendment thereto or any statement
contained in any certificate, financial statement or other instrument delivered
by or on behalf of any Loan Party prior to the Agreement Date and delivered to
the Agent or any Lender in connection with closing the transactions contemplated
hereby) shall constitute representations and warranties made by the Parent and
the Borrower under this Agreement. All representations and warranties made under
this Agreement and the other Loan Documents shall be deemed to be made at and as
of the Agreement Date, the Effective Date and at and as of the date of the
occurrence of each Credit Event, except to the extent that such representations
and warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and accurate on and as of
such earlier date) and except for changes in factual circumstances specifically
permitted hereunder. All such representations and warranties shall survive the
effectiveness of this Agreement, the execution and delivery of the Loan
Documents and the making of the Loans.
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ARTICLE VIII. AFFIRMATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 13.7., all of the Lenders) shall otherwise
consent in the manner provided for in Section 13.7., the Parent shall comply
with the following covenants:
SECTION 8.1. PRESERVATION OF EXISTENCE AND SIMILAR MATTERS.
Except as otherwise permitted under Section 10.6., the Parent shall, and
shall cause each other Loan Party and each other Subsidiary to, preserve and
maintain its respective existence, rights, franchises, licenses and privileges
in the jurisdiction of its incorporation or formation and qualify and remain
qualified and authorized to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification and authorization and where the failure to be so authorized and
qualified could reasonably be expected to have a Material Adverse Effect.
SECTION 8.2. COMPLIANCE WITH APPLICABLE LAW AND MATERIAL CONTRACTS.
The Parent shall, and shall cause each other Loan Party and each other
Subsidiary to, comply with (a) all Applicable Law, including the obtaining of
all Governmental Approvals, the failure with which to comply could reasonably be
expected to have a Material Adverse Effect, and (b) all terms and conditions of
all Material Contracts to which it is a party.
SECTION 8.3. MAINTENANCE OF PROPERTY.
In addition to the requirements of any of the other Loan Documents, the
Parent shall, and shall cause each other Loan Party and each other Subsidiary
to, (a) protect and preserve all of its material properties, including, but not
limited to, all Intellectual Property necessary to the conduct of its respective
business, and maintain in good repair, working order and condition all tangible
properties, ordinary wear and tear excepted, and (b) from time to time make or
cause to be made all needed and appropriate repairs, renewals, replacements and
additions to such properties, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times.
SECTION 8.4. CONDUCT OF BUSINESS.
The Parent shall, and shall cause the other Loan Parties and each other
Subsidiary to, carry on its respective businesses as described in Section
7.1.(t) and not enter into any line of business not otherwise engaged in by such
Person as of the Agreement Date.
SECTION 8.5. INSURANCE.
The Parent shall, and shall cause each other Loan Party and each other
Subsidiary to, maintain insurance with financially sound and reputable insurance
companies against such risks and in such amounts as is customarily maintained by
similar businesses or as may be required by
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Applicable Law. The Parent shall from time to time deliver to the Agent upon
request a detailed list, together with copies of all policies of the insurance
then in effect, stating the names of the insurance companies, the amounts and
rates of the insurance, the dates of the expiration thereof and the properties
and risks covered thereby.
SECTION 8.6. PAYMENT OF TAXES AND CLAIMS.
The Parent shall, and shall cause each other Loan Party and each other
Subsidiary to, pay and discharge when due (a) all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits or
upon any properties belonging to it, and (b) all lawful claims of materialmen,
mechanics, carriers, warehousemen and landlords for labor, materials, supplies
and rentals which, if unpaid, might become a Lien on any properties of such
Person; provided, however, that this Section shall not require the payment or
discharge of any such tax, assessment, charge, levy or claim (i) which is being
contested in good faith by appropriate proceedings which operate to suspend the
collection thereof and for which adequate reserves have been established on the
books of such Person in accordance with GAAP or (ii) non-payment of which or the
failure to discharge which could not reasonably be expected to have a Material
Adverse Effect.
SECTION 8.7. BOOKS AND RECORDS; INSPECTIONS.
The Parent will, and will cause each other Loan Party and each other
Subsidiary to, keep proper books of record and account in which full, true and
correct entries shall be made of all dealings and transactions in relation to
its business and activities. The Parent will, and will cause each other Loan
Party and each other Subsidiary to, permit representatives of the Agent or any
Lender to visit and inspect any of their respective properties, to examine and
make abstracts from any of their respective books and records and to discuss
their respective affairs, finances and accounts with their respective officers,
employees and independent public accountants (in the Borrower's or the Parent's
presence if an Event of Default does not then exist), all at such reasonable
times during business hours and as often as may reasonably be requested and so
long as no Event of Default exists, with reasonable prior notice. The Borrower
shall be obligated to reimburse the Agent and the Lenders for their costs and
expenses incurred in connection with the exercise of their rights under this
Section only if such exercise occurs while a Default or Event of Default exists.
SECTION 8.8. USE OF PROCEEDS.
The Borrower will only use the proceeds of the Loans to refinance
outstanding Indebtedness and for general corporate purposes. The Borrower shall
not, and shall not permit any other Loan Party or any other Subsidiary to, use
any part of such proceeds to purchase or carry, or to reduce or retire or
refinance any credit incurred to purchase or carry, any margin stock (within the
meaning of Regulation U of the Board of Governors of the Federal Reserve System)
or to extend credit to others for the purpose of purchasing or carrying any such
margin stock.
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SECTION 8.9. ENVIRONMENTAL MATTERS.
The Parent shall, and shall cause each other Loan Party and each other
Subsidiary to, comply with all Environmental Laws the failure with which to
comply could reasonably be expected to have a Material Adverse Effect. If any
Loan Party or any other Subsidiary shall (a) receive notice that any violation
of any Environmental Law may have been committed or is about to be committed by
such Person, (b) receive notice that any administrative or judicial complaint or
order has been filed or is about to be filed against any such Person alleging
violations of any Environmental Law or requiring any such Person to take any
action in connection with the release of Hazardous Materials or (c) receive any
notice from a Governmental Authority or private party alleging that any such
Person may be liable or responsible for costs associated with a response to or
cleanup of a release of Hazardous Materials or any damages caused thereby, and
such notices, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect, the Borrower shall provide the Agent with a copy
of such notice within 10 days after the receipt thereof by such Person or any of
the Subsidiaries. The Loan Parties and the other Subsidiaries shall promptly
take all actions necessary to prevent the imposition of any Liens on any of
their respective properties arising out of or related to any Environmental Laws.
SECTION 8.10. FURTHER ASSURANCES.
At the Borrower's cost and expense and upon request of the Agent, the
Parent shall, and shall cause each other Loan Party and each other Subsidiary
to, duly execute and deliver or cause to be duly executed and delivered, to the
Agent such further instruments, documents and certificates, and do and cause to
be done such further acts that may be reasonably necessary or advisable in the
reasonable opinion of the Agent to carry out more effectively the provisions and
purposes of this Agreement and the other Loan Documents.
SECTION 8.11. MATERIAL CONTRACTS.
The Parent shall, and shall cause each other Loan Party and each other
Subsidiary to, duly and punctually perform and comply with any and all material
representations, warranties, covenants and agreements expressed as binding upon
any such Person under any Material Contract. The Parent shall not, and shall not
permit any other Loan Party or any other Subsidiary to, do or knowingly permit
to be done anything to impair materially the value of any of the Material
Contracts.
SECTION 8.12. REIT STATUS.
The Parent shall maintain its status as a REIT.
SECTION 8.13. EXCHANGE LISTING.
The Parent shall maintain at least one class of common shares of the
Parent having trading privileges on the New York Stock Exchange or the American
Stock Exchange or which is subject to price quotations on The NASDAQ Stock
Market's National Market System.
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SECTION 8.14. GUARANTORS; RELEASE OF GUARANTORS.
(a) Generally. The Parent shall cause any Subsidiary and any
Unconsolidated Affiliate that is not already a Guarantor and to which any of the
following conditions apply (each a "New Guarantor") to execute and deliver to
the Agent an Accession Agreement, together with the other items required to be
delivered under the subsection (c) below:
(i) In the case of a Subsidiary, such Subsidiary (A) owns an
Unencumbered Pool Property or (B) is a Wholly Owned Subsidiary; or
(ii) In the case of any Subsidiary or any Unconsolidated Affiliate,
such Person shall Guarantee, or otherwise become obligated in respect of,
any Indebtedness of the Borrower, any Subsidiary or any Non-Guarantor
Entity (except in the case of an Unconsolidated Affiliate Guaranteeing, or
otherwise becoming obligated in respect of, any Indebtedness of another
Unconsolidated Affiliate).
Any such Accession Agreement and the other items required under subsection (c)
below must be delivered to the Agent no later than 10 days following the date on
which any of the above conditions first applies to a New Guarantor.
Notwithstanding the foregoing, a Person shall not be required to become a
Guarantor if such Person cannot become a party to the Guaranty without
violating: (x) terms of its articles of incorporation, bylaws, operating
agreement, partnership agreement, declaration of trust or other similar
organizational document, which terms expressly prohibit such Person from
providing Guarantees of Indebtedness of any other Person or from otherwise
incurring any Indebtedness or (y) any fiduciary obligation owing by such Person,
under Applicable Law or otherwise in the good faith judgment of such Person, to
the holders of an equity interest in such Person. The Parent shall deliver to
the Agent promptly upon request copies of such organizational documents or such
other items as the Agent may reasonably request to confirm the possibility of
such violation.
(b) Other Guarantors. The Borrower may, at its option, cause any other
Person that is not already a Guarantor to become a Guarantor by causing such
Person to execute and deliver to the Agent an Accession Agreement, together with
the other items required to be delivered under the subsection (c) below.
(c) Required Deliveries. Each Accession Agreement delivered by a New
Guarantor under the immediately preceding subsections (a) or (b) shall be
accompanied by each of the following in form and substance reasonably
satisfactory to the Agent:
(i) an opinion of counsel to such New Guarantor, addressed to the
Agent and the Lenders and addressing the same legal matters as are
addressed in the opinions delivered pursuant to Section 6.1.(a)(iv);
(ii) the certificate or articles of incorporation, articles of
organization, certificate of limited partnership, declaration of trust or
other comparable organizational instrument (if any) of such New Guarantor
certified as of a recent date by the Secretary of State of the state of
formation of such New Guarantor;
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(iii) a certificate of good standing (or certificate of similar
meaning) with respect to such New Guarantor issued as of a recent date by
the Secretary of State of the state of formation of such New Guarantor and
certificates of qualification to transact business or other comparable
certificates issued by each Secretary of State (and any state department
of taxation, as applicable) of each state in which such New Guarantor is
required to be so qualified;
(iv) a certificate of incumbency signed by the Secretary or
Assistant Secretary (or other individual performing similar functions) of
such New Guarantor with respect to each of the officers of such New
Guarantor authorized to execute and deliver the Loan Documents to which
such New Guarantor is a party;
(v) copies certified by the Secretary or Assistant Secretary of such
New Guarantor (or other individual performing similar functions) of (i)
the by-laws of such New Guarantor, if a corporation, the operating
agreement, if a limited liability company, the partnership agreement, if a
limited or general partnership, or other comparable document in the case
of any other form of legal entity and (ii) all corporate, partnership,
member or other necessary action taken by such New Guarantor to authorize
the execution, delivery and performance of the Loan Documents to which it
is a party; and
(vi) such other documents and instruments as the Agent, or any
Lender through the Agent, may reasonably request.
(d) Release of Guarantor. The Borrower may request in writing that the
Agent release, and upon receipt of such request the Agent shall release, a
Guarantor from it obligations under the Guaranty if, and only if: (i) such
Guarantor is not the Parent and does not own any Unencumbered Pool Property, or
any direct or indirect Equity Interest in any Subsidiary that does own an
Unencumbered Pool Property; (ii) such Guarantor is not otherwise required to be
a party to the Guaranty under this Section; and (iii) no Default or Event of
Default shall then be in existence or would occur as a result of such release.
(e) Exception for First Point Associates. The Agent and the Lenders agree
that the provisions of this Section shall not apply to First Point Associates,
LLC, a Subsidiary of the Parent, so long as such Subsidiary owns no assets other
than assets of nominal value incidental to its existence as a legal entity. The
Parent agrees if at any time such Subsidiary owns assets in excess of those
described in the preceding sentence, the Parent shall cause such Subsidiary to
comply with the provisions of this Section within 10 days of the date such
Subsidiary first owned such excess assets. In addition, the Parent agrees to
liquidate or dissolve such Subsidiary by December 31, 2003.
ARTICLE IX. INFORMATION
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 13.7., all of the Lenders) shall otherwise
consent in the manner set forth in Section 13.7., the Parent shall furnish to
each Lender (or to the Agent if so provided below) at its Lending Office:
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SECTION 9.1. QUARTERLY FINANCIAL STATEMENTS.
As soon as available and in any event within 50 days after the close of
each of the first, second and third fiscal quarters of the Parent, the unaudited
consolidated balance sheet of the Parent and its Subsidiaries as at the end of
such period and the related unaudited consolidated statements of operations,
stockholders' equity and cash flows of the Parent and its Subsidiaries for such
period, setting forth in each case in comparative form the figures as of the end
of and for the corresponding periods of the previous fiscal year, all of which
shall be certified by the chief financial officer of the Parent, in his or her
opinion, to present fairly, in accordance with GAAP, the consolidated financial
position of the Parent and its Subsidiaries as at the date thereof and the
results of operations for such period (subject to normal year-end adjustments).
SECTION 9.2. YEAR-END STATEMENTS.
As soon as available and in any event within 95 days after the end of each
fiscal year of the Parent, the audited consolidated balance sheet of the Parent
and its Subsidiaries as at the end of such fiscal year and the related audited
consolidated statements of operations, stockholders' equity and cash flows of
the Parent and its Subsidiaries for such fiscal year, setting forth in
comparative form the figures as at the end of and for the previous fiscal year,
all of which shall be certified by (a) the chief financial officer of the
Parent, in his or her opinion, to present fairly, in accordance with GAAP, the
financial position of the Parent and its Subsidiaries as at the date thereof and
the result of operations for such period and (b) KPMG, LLP or any other
independent certified public accountants of recognized national standing
acceptable to the Requisite Lenders, whose certificate shall be unqualified and
in scope and substance satisfactory to the Requisite Lenders and who shall have
authorized the Parent to deliver such financial statements and certification
thereof to the Agent and the Lenders pursuant to this Agreement.
SECTION 9.3. COMPLIANCE CERTIFICATE.
At the time the financial statements are furnished pursuant to the
immediately preceding Sections 9.1. and 9.2., a certificate substantially in the
form of Exhibit I (a "Compliance Certificate") executed on behalf of the Parent
by the chief financial officer or treasurer of the Parent (a) setting forth as
of the end of such quarterly accounting period or fiscal year, as the case may
be, the calculations required to establish whether the Borrower and the Parent
were in compliance with the covenants contained in Section 10.1.; and (b)
stating that no Default or Event of Default exists, or, if such is not the case,
specifying such Default or Event of Default and its nature, when it occurred and
the steps being taken by the Borrower and the Parent with respect to such event,
condition or failure. So long as the covenants contained in Section 10.1 of the
Existing Revolving Credit Agreement and the covenants contained in Section 10.1.
of this Agreement remain the same, the delivery by the Borrower to the Agent of
a copy of the compliance certificate delivered by the Borrower pursuant to
Section 9.3 of the Existing Revolving Credit Agreement will satisfy the
requirement set forth in subsection (a) (but not subsection (b)) above.
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SECTION 9.4. OTHER INFORMATION.
(a) As soon as available and in any event within 50 days after the end of
each fiscal quarter of the Parent, a Unencumbered Pool Certificate setting forth
the information to be contained therein, including without limitation, a
calculation of Maximum Availability, as of the last day of such fiscal quarter.
(b) Within 5 Business Days of the filing thereof, copies of all
registration statements (excluding the exhibits thereto and any registration
statements on Form S-8 or its equivalent), reports on Forms 10-K, 10-Q and 8-K
(or their equivalents) and all other periodic reports which any Loan Party or
any other Subsidiary shall file with the Securities and Exchange Commission (or
any Governmental Authority substituted therefor) or any national securities
exchange; provided, however, the Parent shall only be required to give the Agent
and the Lenders notice of the filing of any Form 8-K (or equivalent);
(c) Promptly upon the mailing thereof to the shareholders of the Parent
generally, copies of all financial statements, reports and proxy statements so
mailed;
(d) Promptly upon receipt thereof, copies of all reports, if any,
submitted to any Loan Party or its Board of Trustees or managers by its
independent public accountants in their function as auditors including, without
limitation, any management report;
(e) Within 50 days after the end of each fiscal quarter of the Parent, an
operating summary with respect to each Property then included in calculations of
the Unencumbered Pool Value, including without limitation, a quarterly and
year-to-date statement of Net Operating Income and a leasing/occupancy status
report together with a current rent roll for such Property.
(f) No later than 30 days before the end of each fiscal year of the Parent
ending prior to the Termination Date, projected balance sheets, operating
statements and cash flow budgets of the Parent and its Subsidiaries on a
consolidated basis for each quarter of the next succeeding two fiscal years, all
itemized in reasonable detail. The foregoing shall be accompanied by pro forma
calculations, together with detailed assumptions, required to establish whether
or not the Parent, and when appropriate its consolidated Subsidiaries, will be
in compliance with the covenants contained in Section 10.1. at the end of each
fiscal quarter of the next succeeding fiscal year.
(g) Within 10 Business Days of the Agent's request therefor, a report in
form and content satisfactory to the Agent detailing the Parent's, together with
its Subsidiaries', projected sources and uses of cash for the period of four
consecutive fiscal quarters immediately following the date of the Agent's
request. Such sources shall include but not be limited to excess operating cash
flow, availability under this Agreement, unused availability under committed
development loans, unfunded committed equity and any other committed sources of
funds. Such uses shall include but not be limited to cash obligations for
binding acquisitions, unfunded development costs, capital expenditures, debt
service, overhead, dividends, maturing Property loans, hedge settlements and
other anticipated uses of cash.
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(h) If and when any member of the ERISA Group (i) gives or is required to
give notice to the PBGC of any "reportable event" (as defined in Section 4043 of
ERISA) with respect to any Plan which could reasonably be expected to constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows that
the plan administrator of any Plan has given or is required to give notice of
any such reportable event, a copy of the notice of such reportable event given
or required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement which could
reasonably be expected to have a Material Adverse Effect or makes any amendment
to any Plan or Benefit Arrangement which has resulted or could result in the
imposition of a Lien or the posting of a bond or other security, a certificate
of the controller of the Parent setting forth details as to such occurrence and
action, if any, which the Parent or applicable member of the ERISA Group is
required or proposes to take;
(i) To the extent any Loan Party or any other Subsidiary is aware of the
same, prompt notice of the commencement of any proceeding or investigation by or
before any Governmental Authority and any action or proceeding in any court or
other tribunal or before any arbitrator against or in any other way relating
adversely to, or adversely affecting any Loan Party or any other Subsidiary or
any of their respective properties, assets or businesses which, if determined or
resolved adversely to such Person, could reasonably be expected to have a
Material Adverse Effect, and prompt notice of the receipt of notice that any
United States income tax returns of any Loan Party or any other Subsidiary are
being audited;
(j) A copy of any amendment to the articles of incorporation, bylaws,
partnership agreement or other similar organizational documents of any Loan
Party or any other Subsidiary within 5 Business Days of the effectiveness
thereof;
(k) Prompt notice of (i) any of Xxxxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxx
Xxxxxx, or Xxxxxxx XxXxxxx ceasing to hold his current office with the Parent
and (ii) any change in the business, assets, liabilities, financial condition,
results of operations or business prospects of any Loan Party or any other
Subsidiary which has had or could have Material Adverse Effect;
(l) Prompt notice of the occurrence of any Default or Event of Default or
any event which constitutes or which with the passage of time, the giving of
notice, or otherwise, would constitute a default or event of default by any Loan
Party or any other Subsidiary under any Material Contract to which any such
Person is a party or by which any such Person or any of its respective
properties may be bound and of which the Parent or the Borrower is aware;
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(m) Promptly upon entering into any Material Contract after the Agreement
Date, a copy of such Material Contract to the Agent;
(n) Prompt notice of any order, judgment or decree in excess of $5,000,000
having been entered against any Loan Party or any other Subsidiary or any of
their respective properties or assets;
(o) Any notification of a material violation of any law or regulation or
any inquiry shall have been received by any Loan Party or any other Subsidiary
from any Governmental Authority;
(p) Prompt notice of the acquisition, incorporation or other creation of
any Subsidiary, the purpose for such Subsidiary, the nature of the assets and
liabilities thereof and whether such Subsidiary is a Wholly Owned Subsidiary of
the Parent;
(q) Promptly upon the request of the Agent, evidence of the Parent's
calculation of the Ownership Share with respect to a Subsidiary or an
Unconsolidated Affiliate, such evidence to be in form and detail satisfactory to
the Agent; and
(r) From time to time and promptly upon each request, such data,
certificates, reports, statements, opinions of counsel, documents or further
information regarding any Property or the business, assets, liabilities,
financial condition, results of operations or business prospects of the Parent
or any of its Subsidiaries as the Agent or any Lender may reasonably request.
ARTICLE X. NEGATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 13.7., all of the Lenders) shall otherwise
consent in the manner set forth in Section 13.7., the Parent and the Borrower
shall comply with the following covenants:
SECTION 10.1. FINANCIAL COVENANTS.
(a) Ratio of Total Liabilities to Gross Asset Value. During the periods
indicated below, the Parent shall not permit the ratio of (i) Total Liabilities
of the Parent and its Subsidiaries determined on a consolidated basis to (ii)
Gross Asset Value, at any time to exceed the ratio set forth below corresponding
to the applicable period:
RATIO OF TOTAL
PERIOD LIABILITIES TO GROSS ASSET VALUE
------ --------------------------------
From the Effective Date to but
excluding December 21, 2004 0.60 to 1.00
December 21, 2004 and thereafter 0.55 to 1.00
(b) Ratio of Secured Indebtedness to Gross Asset Value. The Parent shall
not permit the ratio of (i) Secured Indebtedness of the Parent and its
Subsidiaries determined on a consolidated basis to (ii) Gross Asset Value to
exceed 0.45 to 1.00 at any time.
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(c) Ratio of Secured Recourse Debt to Gross Asset Value. The Parent shall
not permit the ratio of (i) Secured Recourse Debt of the Parent and its
Subsidiaries determined on a consolidated basis to (ii) Gross Asset Value to
exceed 0.15 to 1.00 at any time.
(d) Ratio of EBITDA to Debt Service. The Parent shall not permit the ratio
of (i) EBITDA of the Parent and its Subsidiaries determined on a consolidated
basis for the fiscal quarter most recently ending to (ii) Debt Service of the
Parent and its Subsidiaries determined on a consolidated basis for such period,
to be less than 2.00 to 1.00.
(e) Ratio of EBITDA less Reserve for Replacements to Fixed Charges. The
Parent shall not permit the ratio of (i)(A) EBITDA of the Parent and its
Subsidiaries determined on a consolidated basis for the fiscal quarter most
recently ending minus (B) the Reserve for Replacements of the Properties of the
Parent and its Subsidiaries for such period to (ii) Fixed Charges of the Parent
and its Subsidiaries determined on a consolidated basis for such period, to be
less than 1.50 to 1.00.
(f) Ratio of Unencumbered Net Operating Income to Unsecured Interest
Expense. The Parent shall not permit the ratio of (i) Unencumbered Net Operating
Income of the Borrower and its Subsidiaries determined on a consolidated basis
for the fiscal quarter most recently ending to (ii) Unsecured Interest Expense
of the Parent and its Subsidiaries determined on a consolidated basis for such
period, to be less than 2.0 to 1.00.
(g) Minimum Tangible Net Worth. The Parent shall not permit the Parent's
Tangible Net Worth determined on a consolidated basis at the end of any fiscal
quarter to be less than the greater of (a)(i) $334,767,000, plus (ii) 85% of the
Net Proceeds of all Equity Issuances effected at any time after September 30,
2001, by the Parent to any Person other than the Parent or any Subsidiaries
minus (iii) 85% of the aggregate amount paid by the Parent and the Borrower
after September 30, 2001, to purchase or otherwise acquire outstanding shares of
the common stock or Preferred Stock of the Parent or partnership units of the
Borrower, or (b) $334,767,000.
(h) Dividends and Other Restricted Payments. Neither the Parent, the
Borrower nor any other Subsidiary (other than Wholly Owned Subsidiaries) shall
directly or indirectly declare or make, or incur any liability to make, any
Restricted Payments, except that: (i) the Parent and the Borrower may make cash
distributions to its shareholders or partners, as applicable, which
distributions in the aggregate shall not exceed 95% of Funds From Operations as
of the end of each fiscal quarter for the four fiscal quarter period then
ending; (ii) the Parent and the Borrower may make cash distributions to its
shareholders or partners, as applicable, of capital gains resulting from gains
from certain asset sales to the extent necessary to avoid payment of taxes on
such asset sales imposed under Sections 857(b)(3) and 4981 of the Internal
Revenue Code; (iii) Subsidiaries may make Restricted Payments to the Borrower or
any other Subsidiary; and (iv) the Parent and the Borrower may make cash
payments to repurchase outstanding shares of common stock or Preferred Stock of
the Parent or partnership units of the Borrower. Notwithstanding the foregoing,
but subject to the following sentence, if a Default or Event of Default exists,
the Parent and the Borrower may only declare or make cash distributions to its
shareholders or partners, as applicable, in an aggregate amount not to exceed
the minimum
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amount necessary for the Parent to remain in compliance with Section 8.12. If an
Event of Default specified in Section 11.1.(e) or Section 11.1.(f) shall have
occurred and be continuing, or if as a result of the occurrence of any other
Event of Default the Obligations have been accelerated, the Parent shall not,
and shall not permit any Subsidiary to, make any Restricted Payments to any
Person whatsoever other than to the Borrower or any Subsidiary.
(i) Permitted Investments. The Parent shall not, and shall not permit any
Loan Party or other Subsidiary to, make an Investment in or otherwise own the
following items which would cause the aggregate value of such holdings of such
Persons to exceed the following percentages of Gross Asset Value:
(i) Properties that are not industrial properties or office
properties exceeds 5% of Gross Asset Value;
(ii) unimproved real estate, such that the aggregate value of all
such unimproved real estate calculated on the basis of the lower of cost
or market, exceeds 5% of Gross Asset Value;
(iii) Common stock, Preferred Stock, other capital stock, beneficial
interest in trust, membership interest in limited liability companies and
other Equity Interests in Persons (other than consolidated Subsidiaries
and Unconsolidated Affiliates), such that the aggregate value of such
interests calculated on the basis of the lower of cost or market, exceeds
5% of Gross Asset Value;
(iv) Mortgages in favor of the Parent, or any other Loan Party, such
that the aggregate book value of Indebtedness secured by such Mortgages
exceeds 5% of Gross Asset Value;
(v) Investments in Unconsolidated Affiliates, such that the
aggregate value of such Investments in Unconsolidated Affiliates, exceeds
20% of Gross Asset Value. For purposes of this clause (iv), the "value" of
any such Investment in an Unconsolidated Affiliate shall equal (1) with
respect to any of such Unconsolidated Affiliate's Properties under
construction, the Parent's Ownership Share of the book value of
construction in process for such Property as of the date of determination
and (2) with respect to any of such Unconsolidated Affiliate's Properties
which have been completed, the Parent's Ownership Share of Capitalized
EBITDA of such Unconsolidated Affiliate attributable to such Properties;
provided, however, with respect to the NOCHA Preferred Interest (as
defined in the NOCHA Letter Agreement), so long as paragraph 3 of the
NOCHA Letter Agreement is not then applicable, the book value of such
interest determined in accordance with GAAP shall be the "value" of such
Investment for purposes of this clause (v); and
(vi) the aggregate amount of the Total Budgeted Costs for
Development Properties or Redevelopment Properties in which the Parent
either has a direct or indirect ownership interest shall not exceed 15% of
Gross Asset Value. If a Development Property is owned by an Unconsolidated
Affiliate of the Parent, or any other Subsidiary,
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then the greater of (1) the product of (A) the Parent's or such
Subsidiary's Ownership Share in such Unconsolidated Affiliate and (B) the
amount of the Total Budgeted Costs for such Development Property or (2)
the recourse obligations of the Parent or such Subsidiary relating to the
Indebtedness of such Unconsolidated Affiliate, shall be used in
calculating such investment limitation;
provided, further, that, in addition to the foregoing limitations, the aggregate
value of the Investments subject to the limitations in the preceding clauses (i)
through (vi) shall not exceed 30% of Gross Asset Value. If an Investment is
owned by an Unconsolidated Affiliate of the Parent, the Borrower, or any other
Subsidiary, then the product of (A) the Parent's, the Borrower's, or such other
Subsidiary's Ownership Share in such Unconsolidated Affiliate and (B) the amount
of such Investment, shall be used in calculating such investment limitation.
(j) Aggregate Occupancy Rates. The Parent shall not permit the weighted
average aggregate Occupancy Rate (weighted on the basis of aggregate square
footage) of all Unencumbered Pool Properties to be less than 90% at any time.
SECTION 10.2. ASSET VALUE OF NON-GUARANTOR ENTITIES.
At no time shall the aggregate Asset Value of the Non-Guarantor Entities
obligated in respect of any Indebtedness other than Nonrecourse Indebtedness
exceed 10% of Gross Asset Value.
SECTION 10.3. INDEBTEDNESS.
The Parent shall not, and shall not permit any other Loan Party or any
other Subsidiary to, incur, assume or otherwise become obligated in respect of
any Indebtedness after the Agreement Date if (a) immediately before or
immediately after incurring, assuming or otherwise becoming obligated in respect
of such Indebtedness a Default or Event of Default resulting from a violation of
any of the covenants contained in Section 10.1. exists or would exist or (b)
immediately after incurring, assuming or otherwise becoming obligated in respect
of such Indebtedness, a Default or Event of Default resulting from such
incurrence, assumption or obligation in respect of such Indebtedness would
exist, including without limitation, a Default or Event of Default resulting
from a violation of any of the covenants contained in Section 10.1. determined
after giving pro forma effect thereto.
SECTION 10.4. NEGATIVE PLEDGE.
The Parent shall not, and shall not permit any other Loan Party or any
other Subsidiary to, (a) create, assume, incur or permit or suffer to exist any
Lien upon any of the Unencumbered Pool Properties or any direct or indirect
ownership interest of the Parent in any Subsidiary owning any Unencumbered Pool
Property, other than Permitted Liens or (b) permit any Unencumbered Pool
Property, or any direct or indirect ownership interest of the Parent in any
Subsidiary owning any Unencumbered Pool Property, to become subject to a
Negative Pledge.
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SECTION 10.5. RESTRICTIONS ON INTERCOMPANY TRANSFERS.
The Parent shall not, and shall not permit any other Loan Party or any
other Subsidiary to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any Subsidiary to: (i) pay dividends or make any other distribution on any of
such Subsidiary's capital stock or other equity interests owned by the Borrower
or any other Subsidiary; (ii) pay any Indebtedness owed to the Parent or any
other Subsidiary; (iii) make loans or advances to the Parent or any other
Subsidiary; or (iv) transfer any of its property or assets to the Parent or any
other Subsidiary.
SECTION 10.6. MERGER, CONSOLIDATION, SALES OF ASSETS AND OTHER ARRANGEMENTS.
The Parent shall not, and shall not permit any Loan Party or any other
Subsidiary to, (a) enter into any transaction of merger or consolidation; (b)
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution); (c) convey, sell, lease, sublease, transfer or otherwise dispose
of, in one transaction or a series of transactions, all or any substantial part
of its business or assets, or the capital stock of or other Equity Interests in
any of its Subsidiaries, whether now owned or hereafter acquired; or (d) acquire
a Substantial Amount of the assets of, or make an Investment of a Substantial
Amount in, any other Person; provided, however, that:
(i) any Subsidiary may merge with a Loan Party so long as such other
Loan Party is the survivor;
(ii) any Subsidiary may sell, transfer or dispose of its assets
to a Loan Party;
(iii) a Loan Party (other than the Parent, the Borrower or any Loan
Party which owns an Unencumbered Pool Property) and any Subsidiary that is
not (and is not required to be) a Loan Party may convey, sell, transfer or
otherwise dispose of, in one transaction or a series of transactions, all
or any substantial part of its business or assets, or the capital stock of
or other Equity Interests in any of its Subsidiaries, and immediately
thereafter liquidate, provided that immediately prior to any such
conveyance, sale, transfer, disposition or liquidation and immediately
thereafter and after giving effect thereto, no Default or Event of Default
is or would be in existence;
(iv) any Loan Party and any other Subsidiary may, directly or
indirectly, (A) acquire (whether by purchase, acquisition of Equity
Interests of a Person, or as a result of a merger or consolidation) a
Substantial Amount of the assets of, or make an Investment of a
Substantial Amount in, any other Person and (B) sell, lease or otherwise
transfer, whether by one or a series of transactions, a Substantial Amount
of assets (including capital stock or other securities of Subsidiaries) to
any other Person, so long as, in each case, (1) the Borrower shall have
given the Agent and the Lenders at least 30 days prior written notice of
such consolidation, merger, acquisition, Investment, sale, lease or other
transfer; (2) immediately prior thereto, and immediately thereafter and
after giving effect thereto, no Default or Event of Default is or would be
in existence; (3) in the case of a consolidation or merger involving the
Parent, the Borrower or a Loan Party which owns an Unencumbered Pool
Property, such Person shall be the survivor thereof and (4) at the time
the Borrower gives notice pursuant to clause (1) of this subsection, the
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Borrower shall have delivered to the Agent and the Lenders a Compliance
Certificate, calculated on a pro forma basis, evidencing the continued
compliance by the Loan Parties with the terms and conditions of this
Agreement and the other Loan Documents, including without limitation, the
financial covenants contained in Section 10.1., after giving effect to
such consolidation, merger, acquisition, Investment, sale, lease or other
transfer; and
(v) the Loan Parties and the other Subsidiaries may lease and
sublease their respective assets, as lessor or sublessor (as the case may
be), in the ordinary course of their business.
Further, no Loan Party, nor any Subsidiary, shall enter into any sale-leaseback
transactions or other transaction by which such Person shall remain liable as
lessee (or the economic equivalent thereof) of any real or personal property
that it has sold or leased to another Person; provided, however, that this
sentence shall not prohibit a Loan Party or Subsidiary from entering into a
master lease of space in a Property in connection with a sale of such Property.
SECTION 10.7. PLANS.
The Parent shall not, and shall not permit any Subsidiary to, permit any
of its respective assets to become or be deemed to be "plan assets" within the
meaning of ERISA, the Internal Revenue Code and the respective regulations
promulgated thereunder.
SECTION 10.8. FISCAL YEAR.
The Parent shall not, and shall not permit any Loan Party or other
Subsidiary to, change its fiscal year from that in effect as of the Agreement
Date.
SECTION 10.9. MODIFICATIONS OF ORGANIZATIONAL DOCUMENTS AND MATERIAL CONTRACTS.
The Parent shall not, and shall not permit any Loan Party or other
Subsidiary to, amend, supplement, restate or otherwise modify its articles of
incorporation or by-laws or other organizational documents if such amendment,
supplement, restatement or other modification could reasonably be expected to
have a Material Adverse Effect. The Parent shall not enter into, and shall not
permit any Loan Party or other Subsidiary to enter into, any amendment or
modification to any Material Contract that could reasonably be expected to have
a Material Adverse Effect or default in the performance of any obligations of
any Loan Party or other Subsidiary in any Material Contract or permit any
Material Contract to be canceled or terminated prior to its stated maturity.
SECTION 10.10. TRANSACTIONS WITH AFFILIATES.
The Parent shall not permit to exist or enter into, and will not permit
any Loan Party or other Subsidiary to permit to exist or enter into, any
transaction (including the purchase, sale, lease or exchange of any property or
the rendering of any service) with any Affiliate of the Parent or with any
director, officer or employee of any Loan Party, except transactions in the
ordinary course of and pursuant to the reasonable requirements of the business
of the Parent or
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any of its Subsidiaries and upon fair and reasonable terms which are no less
favorable to the Parent or such Subsidiary than would be obtained in a
comparable arm's length transaction with a Person that is not an Affiliate.
ARTICLE XI. DEFAULT
SECTION 11.1. EVENTS OF DEFAULT.
Each of the following shall constitute an Event of Default, whatever the
reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of Applicable Law or pursuant to any judgment or order of
any Governmental Authority:
(a) Default in Payment. The Borrower shall fail to pay when due under this
Agreement or any other Loan Document (whether upon demand, at maturity, by
reason of acceleration or otherwise) (i) the principal of any Loan or (ii) any
interest on any of the Loans, or any of the other payment Obligations owing by
the Borrower under this Agreement or any other Loan Document, or any other Loan
Party shall fail to pay when due any payment obligation owing by such Loan Party
under any Loan Document to which it is a party, and solely in the case of this
clause (ii) such failure shall continue for a period of 3 Business Days.
(b) Default in Performance.
(i) Any Loan Party shall fail to perform or observe any term,
covenant, condition or agreement on its part to be performed or observed
and contained in Section 9.4.(l) or Article X. (other than Section 10.4.);
or
(ii) Any Loan Party shall fail to perform or observe any term,
covenant, condition or agreement contained in this Agreement or any other
Loan Document to which it is a party and not otherwise mentioned in this
Section and such failure shall continue for a period of 30 calendar days
after the earlier of (x) the date upon which any Loan Party obtains
knowledge of such failure or (y) the date upon which the Borrower has
received written notice of such failure from the Agent.
(c) Misrepresentations. Any written statement, representation or warranty
made or deemed made by or on behalf of any Loan Party under this Agreement or
under any other Loan Document, or any amendment hereto or thereto, or in any
other writing or statement at any time furnished by, or at the direction of, any
Loan Party to the Agent or any Lender, shall at any time prove to have been
incorrect or misleading in any material respect when furnished or made or deemed
made.
(d) Indebtedness Cross-Default.
(i) Any Loan Party shall fail to pay when due and payable the
principal of, or interest on, any Material Indebtedness; or
(ii) (x) The maturity of any Material Indebtedness shall have been
accelerated in accordance with the provisions of any indenture, contract
or instrument evidencing,
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providing for the creation of or otherwise concerning such Material
Indebtedness or (y) any Material Indebtedness shall have been required to
be prepaid or repurchased prior to the stated maturity thereof; or
(iii) Any other event shall have occurred and be continuing which
would permit any holder or holders of any Material Indebtedness, any
trustee or agent acting on behalf of such holder or holders or any other
Person, to accelerate the maturity of any Material Indebtedness or require
any Material Indebtedness to be prepaid or repurchased prior to its stated
maturity.
(e) Voluntary Bankruptcy Proceeding. Any Loan Party shall: (i) commence a
voluntary case under the Bankruptcy Code of 1978, as amended, or other federal
bankruptcy laws (as now or hereafter in effect); (ii) file a petition seeking to
take advantage of any other Applicable Laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment
of debts; (iii) consent to, or fail to contest in a timely and appropriate
manner, any petition filed against it in an involuntary case under such
bankruptcy laws or other Applicable Laws or consent to any proceeding or action
described in the immediately following subsection; (iv) apply for or consent to,
or fail to contest in a timely and appropriate manner, the appointment of, or
the taking of possession by, a receiver, custodian, trustee, or liquidator of
itself or of a substantial part of its property, domestic or foreign; (v) be
unable to or admit in writing its inability to pay its debts as they become due;
(vi) make a general assignment for the benefit of creditors; (vii) make a
conveyance fraudulent as to creditors under any Applicable Law; or (viii) take
any corporate or partnership action for the purpose of effecting any of the
foregoing.
(f) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be
commenced against any Loan Party in any court of competent jurisdiction seeking:
(i) relief under the Bankruptcy Code of 1978, as amended, or other federal
bankruptcy laws (as now or hereafter in effect) or under any other Applicable
Laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts; or (ii) the appointment of a
trustee, receiver, custodian, liquidator or the like of such Person, or of all
or any substantial part of the assets, domestic or foreign, of such Person, and
in the case of either clause (i) or (ii) such case or proceeding shall continue
undismissed or unstayed for a period of 60 consecutive calendar days, or an
order granting the relief requested in such case or proceeding (including, but
not limited to, an order for relief under such Bankruptcy Code or such other
federal bankruptcy laws) shall be entered.
(g) Revocation of Loan Documents. Any Loan Party shall (or shall attempt
to) disavow, revoke or terminate any Loan Document to which it is a party or
shall otherwise challenge or contest in any action, suit or proceeding in any
court or before any Governmental Authority the validity or enforceability of any
Loan Document.
(h) Judgment. A judgment or order for the payment of money shall be
entered against any Loan Party, by any court or other tribunal and (i) such
judgment or order shall continue for a period of 30 days without being paid
stayed or dismissed through appropriate appellate proceedings and (ii) either
(A) the amount for which insurance has not been
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acknowledged in writing by the applicable insurance carrier (or the amount as to
which the insurer has denied liability) exceeds, individually or together with
all other such judgments or orders entered against the Loan Parties, $5,000,000
or (B) such judgment or order could reasonably be expected to have a Material
Adverse Effect.
(i) Attachment. A warrant, writ of attachment, execution or similar
process shall be issued against any property of any Loan Party, which exceeds,
individually or together with all other such warrants, writs, executions and
processes, $5,000,000 in amount and such warrant, writ, execution or process
shall not be paid, discharged, vacated, stayed or bonded for a period of 30
days; provided, however, that if a bond has been issued in favor of the claimant
or other Person obtaining such warrant, writ, execution or process, the issuer
of such bond shall execute a waiver or subordination agreement in form and
substance satisfactory to the Agent pursuant to which the issuer of such bond
subordinates its right of reimbursement, contribution or subrogation to the
Obligations and waives or subordinates any Lien it may have on the assets of any
Loan Party.
(j) ERISA. Any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $2,000,000 which it shall have become
liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or to cause a trustee to be appointed to administer, any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $2,000,000.
(k) Loan Documents. An Event of Default (as defined therein) shall occur
under any of the other Loan Documents.
(l) Change of Control/Change in Management.
(i) Any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), is or becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person will be
deemed to have "beneficial ownership" of all securities that such Person
has the right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of more than 50%
of the total voting power of the then outstanding voting stock of the
Borrower or the Parent;
(ii) During any period of 24 consecutive months ending after the
Agreement Date, individuals who at the beginning of any such 24-month
period constituted the Board of Trustees of the Parent (together with any
new trustees whose election by such Board or whose nomination for election
by the shareholders of the Parent was approved
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by a vote of a majority of the trustees then still in office who were
either trustees at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason
to constitute a majority of the Board of Trustees of the Borrower then in
office;
(iii) If more than two of Xxxxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxx Xxxxxx
and Xxxxxxx XxXxxxx cease for any reason to be principally involved in the
senior management of the Parent, and the Parent shall have failed to
replace the resulting vacancies in senior management with individuals
reasonably acceptable to the Requisite Lenders within a period of 90 days;
or
(iv) The Parent or any Wholly Owned Subsidiary of the Parent shall
cease to be the sole general partner of the Borrower.
(m) Damage; Strike; Casualty. Any material damage to, or loss or
destruction of, any Unencumbered Pool Property, whether or not insured, or any
strike, lockout, labor dispute, embargo, condemnation, act of God or public
enemy, or other casualty which causes, for more than 30 consecutive days beyond
the coverage period of any applicable business interruption insurance, the
cessation or substantial curtailment of revenue producing activities of the
Parent or its Subsidiaries taken as a whole and only if any such event or
circumstance could reasonably be expected to have a Material Adverse Effect.
(k) Existing Revolving Credit Agreement. An Event of Default (as defined
therein) shall occur under the Existing Revolving Credit Agreement.
Notwithstanding anything to the contrary in this Section, (i) the failure of any
Loan Party to perform or observe any term, covenant, condition or agreement
contained any New York Collateral Document to which it is a party shall not
constitute a Default or Event of Default and (ii) the occurrence of an Event of
Default (as defined in any New York Collateral Document) shall not constitute a
Default or Event of Default; provided, however, the preceding shall in no way
limit or impair the rights of the Agent and the Lenders with respect to any
Default or Event of Default resulting from the failure of any Loan Party to
perform or observe the same or any similar term, covenant, condition or
agreement contained in any other Loan Document.
SECTION 11.2. REMEDIES UPON EVENT OF DEFAULT.
Upon the occurrence of an Event of Default the following provisions shall
apply:
(a) Acceleration; Termination of Facilities.
(i) Automatic. Upon the occurrence of an Event of Default specified
in Section 11.1.(e) or 11.1.(f), (1)(A) the principal of, and all accrued
interest on, the Loans and the Notes at the time outstanding and (B) all
of the other Obligations of the Borrower, including, but not limited to,
the other amounts owed to the Lenders and the Agent under this Agreement,
the Notes or any of the other Loan Documents shall become immediately and
automatically due and payable by the Borrower without presentment, demand,
protest, or other notice of any kind, all of which are expressly waived by
the
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Borrower, and (2) the Commitments and the obligation of the Lenders to
make Loans hereunder shall all immediately and automatically terminate.
(ii) Optional. If any other Event of Default shall exist, the Agent
may, and at the direction of the Requisite Lenders shall: (1) declare (A)
the principal of, and accrued interest on, the Loans and the Notes at the
time outstanding and (B) all of the other Obligations, including, but not
limited to, the other amounts owed to the Lenders and the Agent under this
Agreement, the Notes or any of the other Loan Documents to be forthwith
due and payable, whereupon the same shall immediately become due and
payable without presentment, demand, protest or other notice of any kind,
all of which are expressly waived by the Borrower, and (2) terminate the
Commitments and the obligation of the Lenders to make Loans hereunder.
(b) Loan Documents. The Requisite Lenders may direct the Agent to, and the
Agent if so directed shall, exercise any and all of its rights under any and all
of the other Loan Documents.
(c) Applicable Law. The Requisite Lenders may direct the Agent to, and the
Agent if so directed shall, exercise all other rights and remedies it may have
under any Applicable Law.
(d) Appointment of Receiver. To the extent permitted by Applicable Law,
the Agent and the Lenders shall be entitled to the appointment of a receiver for
the assets and properties of the Borrower and its Subsidiaries, without notice
of any kind whatsoever and without regard to the adequacy of any security for
the Obligations or the solvency of any party bound for its payment, to take
possession of all or any portion of the business operations of the Borrower and
its Subsidiaries and to exercise such power as the court shall confer upon such
receiver.
SECTION 11.3. REMEDIES UPON DEFAULT.
Upon the occurrence of a Default specified in Section 11.1.(e) or
11.1.(f), the Commitments shall immediately and automatically terminate.
SECTION 11.4. MARSHALING; PAYMENTS SET ASIDE.
Neither the Agent nor any Lender shall be under any obligation to marshal
any assets in favor of any Loan Party or any other party or against or in
payment of any or all of the Obligations. To the extent that any Loan Party
makes a payment or payments to the Agent and/or any Lender, or the Agent and/or
any Lender enforce their security interests or exercise their rights of setoff,
and such payment or payments or the proceeds of such enforcement or setoff or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such recovery, the Obligations or part
thereof originally intended to be satisfied, and all Liens, rights and remedies
therefor, shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not occurred.
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SECTION 11.5. ALLOCATION OF PROCEEDS.
If an Event of Default exists and maturity of any of the Obligations has
been accelerated, all payments received by the Agent under any of the Loan
Documents, in respect of any principal of or interest on the Obligations or any
other amounts payable by the Borrower hereunder or thereunder, shall be applied
in the following order and priority:
(a) amounts due to the Agent and the Lenders in respect of Fees and
expenses due under Section 13.2.;
(b) payments of interest on all Loans, to be applied for the ratable
benefit of the Lenders, in such order as the Lenders may determine in
their sole discretion;
(c) payments of principal of all Loans, to be applied for the
ratable benefit of the Lenders, in such order as the Lenders may determine
in their sole discretion;
(d) amounts due the Agent and the Lenders pursuant to Sections 12.7.
and 13.10.;
(e) payments of all amounts due under any of the Loan Documents, if
any, to be applied for the ratable benefit of the Lenders; and
(f) any amount remaining after application as provided above, shall
be paid to the Borrower or whomever else may be legally entitled thereto.
SECTION 11.6. PERFORMANCE BY AGENT.
If the Borrower shall fail to perform any covenant, duty or agreement
contained in any of the Loan Documents, the Agent may perform or attempt to
perform such covenant, duty or agreement on behalf of the Borrower after the
expiration of any cure or grace periods set forth herein. In such event, the
Borrower shall, at the request of the Agent, promptly pay any amount reasonably
expended by the Agent in such performance or attempted performance to the Agent,
together with interest thereon at the applicable Post-Default Rate from the date
of such expenditure until paid. Notwithstanding the foregoing, neither the Agent
nor any Lender shall have any liability or responsibility whatsoever for the
performance of any obligation of the Borrower under this Agreement or any other
Loan Document.
SECTION 11.7. RIGHTS CUMULATIVE.
The rights and remedies of the Agent and the Lenders under this Agreement
and each of the other Loan Documents shall be cumulative and not exclusive of
any rights or remedies which any of them may otherwise have under Applicable
Law. In exercising their respective rights and remedies the Agent and the
Lenders may be selective and no failure or delay by the Agent or any of the
Lenders in exercising any right shall operate as a waiver of it, nor shall any
single or partial exercise of any power or right preclude its other or further
exercise or the exercise of any other power or right.
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SECTION 11.8. RESCISSION OF ACCELERATION BY REQUISITE LENDERS.
If at any time after acceleration of the maturity of the Loans and the
other Obligations, the Borrower shall pay all arrears of interest and all
payments on account of principal of the Obligations which shall have become due
otherwise than by acceleration (with interest on principal and, to the extent
permitted by Applicable Law, on overdue interest, at the rates specified in this
Agreement) and all Events of Default and Defaults (other than nonpayment of
principal of and accrued interest on the Obligations due and payable solely by
virtue of acceleration) shall become remedied or waived to the satisfaction of
the Requisite Lenders, then by written notice to the Borrower, the Requisite
Lenders may elect, in the sole discretion of such Requisite Lenders, to rescind
and annul the acceleration and its consequences. The provisions of the preceding
sentence are intended merely to bind all of the Lenders to a decision which may
be made at the election of the Requisite Lenders, and are not intended to
benefit the Borrower and do not give the Borrower the right to require the
Lenders to rescind or annul any acceleration hereunder, even if the conditions
set forth herein are satisfied.
ARTICLE XII. THE AGENT
SECTION 12.1. APPOINTMENT AND AUTHORIZATION.
Each Lender hereby irrevocably appoints and authorizes the Agent to take
such action as contractual representative on such Lender's behalf and to
exercise such powers under this Agreement and the other Loan Documents as are
specifically delegated to the Agent by the terms hereof and thereof, together
with such powers as are reasonably incidental thereto. Not in limitation of the
foregoing, each Lender authorizes and directs the Agent to enter into the Loan
Documents for the benefit of the Lenders. Each Lender hereby agrees that, except
as otherwise set forth herein, any action taken by the Requisite Lenders in
accordance with the provisions of this Agreement or the Loan Documents, and the
exercise by the Requisite Lenders of the powers set forth herein or therein,
together with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Lenders. Nothing herein shall be
construed to deem the Agent a trustee or fiduciary for any Lender or to impose
on the Agent duties or obligations other than those expressly provided for
herein. Without limiting the generality of the foregoing, the use of the terms
"Agent", "agent" and similar terms in the Loan Documents with reference to the
Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any Applicable Law. Instead, use of
such terms is merely a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent contracting
parties. The Agent will furnish to any Lender, upon the request of such Lender,
a copy (or, where appropriate, an original) of any document, instrument,
agreement, certificate or notice furnished to the Agent by the Borrower, any
Loan Party or any other Affiliate of the Borrower, pursuant to this Agreement or
any other Loan Document not already delivered to such Lender pursuant to the
terms of this Agreement or any such other Loan Document. As to any matters not
expressly provided for by the Loan Documents (including, without limitation,
enforcement or collection of any of the Obligations), the Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Requisite Lenders (or all
of the Lenders if explicitly required under any other provision of this
Agreement), and such instructions shall be binding upon all Lenders
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and all holders of any of the Obligations; provided, however, that,
notwithstanding anything in this Agreement to the contrary, the Agent shall not
be required to take any action which exposes the Agent to personal liability or
which is contrary to this Agreement or any other Loan Document or Applicable
Law. Not in limitation of the foregoing, the Agent shall not exercise any right
or remedy it or the Lenders may have under any Loan Document upon the occurrence
of a Default or an Event of Default unless the Requisite Lenders have directed
the Agent otherwise. Without limiting the foregoing, no Lender shall have any
right of action whatsoever against the Agent as a result of the Agent acting or
refraining from acting under this Agreement or any of the other Loan Documents
in accordance with the instructions of the Requisite Lenders, or where
applicable, all the Lenders.
SECTION 12.2. AGENT'S RELIANCE, ETC.
Notwithstanding any other provisions of this Agreement or any other Loan
Documents, neither the Agent nor any of its directors, officers, agents,
employees or counsel shall be liable for any action taken or omitted to be taken
by it or them under or in connection with this Agreement or any other Loan
Document, except for its or their own gross negligence or willful misconduct in
connection with its duties expressly set forth herein or therein. Without
limiting the generality of the foregoing, the Agent: (a) may treat the payee of
any Note as the holder thereof until the Agent receives written notice of the
assignment or transfer thereof signed by such payee and in form satisfactory to
the Agent and (b) may consult with legal counsel (including its own counsel or
counsel for the Borrower or any other Loan Party), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts. Neither the Agent nor any of its
directors, officers, agents, employees or counsel (a) makes any warranty or
representation to any Lender or any other Person and shall be responsible to any
Lender or any other Person for any statement, warranty or representation made or
deemed made by the Borrower, the Parent, any other Loan Party or any other
Person in or in connection with this Agreement or any other Loan Document; (b)
shall have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this Agreement or any
other Loan Document or the satisfaction of any conditions precedent under this
Agreement or any Loan Document on the part of the Borrower or other Persons or
inspect the property, books or records of the Borrower or any other Person; (c)
shall be responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
Loan Document, any other instrument or document furnished pursuant thereto or
any collateral covered thereby or the perfection or priority of any Lien in
favor of the Agent on behalf of the Lenders in any such Collateral; (d) shall
have any liability in respect of any recitals, statements, certifications,
representations or warranties contained in any of the Loan Documents or any
other document, instrument, agreement, certificate or statement delivered in
connection therewith; and (e) shall incur any liability under or in respect of
this Agreement or any other Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telephone, telecopy
or electronic mail) believed by it to be genuine and signed, sent or given by
the proper party or parties. The Agent may execute any of its duties under the
Loan Documents by or through agents, employees or attorneys in fact and shall
not be responsible for the negligence or misconduct of any agent or attorney in
fact that it selects in the absence of gross negligence or willful misconduct.
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SECTION 12.3. NOTICE OF DEFAULTS.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of a Default or Event of Default unless the Agent has received notice
from a Lender or the Borrower referring to this Agreement, describing with
reasonable specificity such Default or Event of Default and stating that such
notice is a "notice of default." If any Lender (excluding the Lender which is
also serving as the Agent) becomes aware of any Default or Event of Default, it
shall promptly send to the Agent such a "notice of default". Further, if the
Agent receives such a "notice of default" from any Lender, the Agent shall give
prompt notice thereof to the other Lenders.
SECTION 12.4. XXXXX FARGO AS LENDER.
Xxxxx Fargo, as a "Lender", shall have the same rights and powers under
this Agreement and any other Loan Document as any other Lender and may exercise
the same as though it were not the Agent; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include Xxxxx Fargo in each case in
its individual capacity. Xxxxx Fargo and its affiliates may each accept deposits
from, maintain deposits or credit balances for, invest in, lend money to, act as
trustee under indentures of, serve as financial advisor to, and generally engage
in any kind of business with the Borrower, any other Loan Party or any other
affiliate thereof as if it were any other bank and without any duty to account
therefor to the other Lenders. Further, the Agent and any affiliate may accept
fees and other consideration from the Borrower for services in connection with
this Agreement and otherwise without having to account for the same to the other
Lenders. The Lenders acknowledge that, pursuant to such activities, Xxxxx Fargo
or its affiliates may receive information regarding the Borrower, the Parent,
other Loan Parties, other Subsidiaries and other Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Person) and acknowledge that the Agent shall be under no obligation to provide
such information to them.
SECTION 12.5. APPROVALS OF LENDERS.
All communications from the Agent to any Lender requesting such Lender's
determination, consent, approval or disapproval (a) shall be given in the form
of a written notice to such Lender, (b) shall be accompanied by a description of
the matter or issue as to which such determination, approval, consent or
disapproval is requested, or shall advise such Lender where information, if any,
regarding such matter or issue may be inspected, or shall otherwise describe the
matter or issue to be resolved, (c) shall include, if reasonably requested by
such Lender and to the extent not previously provided to such Lender, written
materials and a summary of all oral information provided to the Agent by the
Borrower in respect of the matter or issue to be resolved, and (d) shall include
the Agent's recommended course of action or determination in respect thereof.
Each Lender shall reply promptly, but in any event within 10 Business Days (or
such lesser or greater period as may be specifically required under the express
terms of the Loan Documents) of receipt of such communication. Except as
otherwise expressly provided in this Agreement, unless a Lender shall give
written notice to the Agent that it specifically objects to the recommendation
or determination of the Agent within the applicable time period for reply,
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such Lender shall be deemed to have conclusively approved of or consented to
such recommendation or determination.
SECTION 12.6. LENDER CREDIT DECISION, ETC.
Each Lender expressly acknowledges and agrees that neither the Agent nor
any of its officers, directors, employees, agents, counsel, attorneys-in-fact or
other affiliates has made any representations or warranties as to the financial
condition, operations, creditworthiness, solvency or other information
concerning the business or affairs of the Borrower, any other Loan Party, any
Subsidiary or any other Person to such Lender and that no act by the Agent
hereafter taken, including any review of the affairs of the Borrower, the
Parent, any other Loan Party or any other Subsidiary or Affiliate, shall be
deemed to constitute any such representation or warranty by the Agent to any
Lender. Each Lender acknowledges that it has, independently and without reliance
upon the Agent, any other Lender or counsel to the Agent, or any of their
respective officers, directors, employees, agents or counsel, and based on the
financial statements of the Borrower, the Parent, the other Loan Parties, the
other Subsidiaries and other Affiliates, and inquiries of such Persons, its
independent due diligence of the business and affairs of the Borrower, the
Parent, the other Loan Parties, the other Subsidiaries and other Persons, its
review of the Loan Documents, the legal opinions required to be delivered to it
hereunder, the advice of its own counsel and such other documents and
information as it has deemed appropriate, made its own credit and legal analysis
and decision to enter into this Agreement and the transaction contemplated
hereby. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, any other Lender or counsel to the Agent or any of
their respective officers, directors, employees and agents, and based on such
review, advice, documents and information as it shall deem appropriate at the
time, continue to make its own decisions in taking or not taking action under
the Loan Documents. The Agent shall not be required to keep itself informed as
to the performance or observance by the Borrower, the Parent or any other Loan
Party of the Loan Documents or any other document referred to or provided for
therein or to inspect the properties or books of, or make any other
investigation of, the Borrower, any other Loan Party or any other Subsidiary.
Except for notices, reports and other documents and information expressly
required to be furnished to the Lenders by the Agent under this Agreement or any
of the other Loan Documents, the Agent shall have no duty or responsibility to
provide any Lender with any credit or other information concerning the business,
operations, property, financial and other condition or creditworthiness of the
Borrower, any other Loan Party or any other Affiliate thereof which may come
into possession of the Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or other Affiliates. Each Lender acknowledges that the
Agent's legal counsel in connection with the transactions contemplated by this
Agreement is only acting as counsel to the Agent and is not acting as counsel to
such Lender.
SECTION 12.7. INDEMNIFICATION OF AGENT.
Regardless of whether the transactions contemplated by this Agreement and
the other Loan Documents are consummated, each Lender agrees to indemnify the
Agent (to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so) pro rata in accordance with such Lender's
respective Credit Percentage, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may at any time
be imposed on, incurred
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by, or asserted against the Agent (in its capacity as Agent but not as a
"Lender") in any way relating to or arising out of the Loan Documents, any
transaction contemplated hereby or thereby or any action taken or omitted by the
Agent under the Loan Documents (collectively, "Indemnifiable Amounts");
provided, however, that no Lender shall be liable for any portion of such
Indemnifiable Amounts to the extent resulting from the Agent's gross negligence
or willful misconduct as determined by a court of competent jurisdiction in a
final, non-appealable judgment; provided, however, that no action take in
accordance with the directions of the Requisite Lenders shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section.
Without limiting the generality of the foregoing, each Lender agrees to
reimburse the Agent (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so) promptly upon demand for its
ratable share of any out-of-pocket expenses (including the reasonable fees and
expenses of the counsel to the Agent) incurred by the Agent in connection with
the preparation, negotiation, execution, administration, or enforcement (whether
through negotiations, legal proceedings, or otherwise) of, or legal advice with
respect to the rights or responsibilities of the parties under, the Loan
Documents, any suit or action brought by the Agent to enforce the terms of the
Loan Documents and/or collect any Obligations, any "lender liability" suit or
claim brought against the Agent and/or the Lenders, and any claim or suit
brought against the Agent and/or the Lenders arising under any Environmental
Laws. Such out-of-pocket expenses (including counsel fees) shall be advanced by
the Lenders on the request of the Agent notwithstanding any claim or assertion
that the Agent is not entitled to indemnification hereunder upon receipt of an
undertaking by the Agent that the Agent will reimburse the Lenders if it is
actually and finally determined by a court of competent jurisdiction that the
Agent is not so entitled to indemnification. The agreements in this Section
shall survive the payment of the Loans and all other amounts payable hereunder
or under the other Loan Documents and the termination of this Agreement. If the
Borrower shall reimburse the Agent for any Indemnifiable Amount following
payment by any Lender to the Agent in respect of such Indemnifiable Amount
pursuant to this Section, the Agent shall share such reimbursement on a ratable
basis with each Lender making any such payment.
SECTION 12.8. SUCCESSOR AGENT.
The Agent may resign at any time as Agent under the Loan Documents by
giving written notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Requisite Lenders shall have the right to appoint a successor
Agent which appointment shall, provided no Default or Event of Default exists,
be subject to the Borrower's approval, which approval shall not be unreasonably
withheld or delayed (except that the Borrower shall, in all events, be deemed to
have approved each Lender and any of its affiliates as a successor Agent). If no
successor Agent shall have been so appointed in accordance with the immediately
preceding sentence, and shall have accepted such appointment, within 30 days
after the current Agent's giving of notice of resignation, then the current
Agent may, on behalf of the Lenders, appoint a successor Agent, which shall be a
Lender, if any Lender shall be willing to serve, and otherwise shall be an
Eligible Assignee. Upon the acceptance of any appointment as Agent hereunder by
a successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the current Agent,
and the current Agent shall be discharged from its duties and obligations under
the Loan Documents. After any Agent's resignation hereunder as Agent, the
provisions of this Article XII. shall continue to inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under the Loan
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Documents. Notwithstanding anything contained herein to the contrary, the Agent
may assign its rights and duties under the Loan Documents to any of its
affiliates by giving the Borrower and each Lender prior written notice.
ARTICLE XIII. MISCELLANEOUS
SECTION 13.1. NOTICES.
Unless otherwise provided herein, communications provided for hereunder
shall be in writing and shall be mailed, telecopied or delivered as follows:
If to the Borrower:
Keystone Operating Partnership, L.P.
200 Four Falls Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Financial Officer
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
If to the Agent or a Lender:
To the address or telecopy number, as applicable, of the Agent or
such Lender, as the case may be, set forth on its signature page
hereto or, in the case of a Lender, in the applicable Assignment and
Acceptance Agreement
or, as to each party at such other address as shall be designated by such party
in a written notice to the other parties delivered in compliance with this
Section; provided, a Lender shall only be required to give notice of any such
other address to the Agent and the Borrower. All such notices and other
communications shall be effective (i) if mailed, when received; (ii) if
telecopied, when transmitted; or (iii) if hand delivered, when delivered.
Notwithstanding the immediately preceding sentence, all notices or
communications to the Agent or any Lender under Article II. shall be effective
only when actually received. Neither the Agent nor any Lender shall incur any
liability to the Borrower (nor shall the Agent incur any liability to the
Lenders) for acting upon any telephonic notice referred to in this Agreement
which the Agent or such Lender, as the case may be, believes in good faith to
have been given by a Person authorized to deliver such notice or for otherwise
acting in good faith hereunder.
SECTION 13.2. EXPENSES.
The Borrower agrees (a) to pay or reimburse the Agent for all of its
reasonable out-of-pocket costs and reasonable expenses incurred in connection
with the preparation, negotiation and execution of, and any amendment,
supplement or modification to, any of the Loan Documents (including due
diligence expense and reasonable travel expenses related to closing), and the
consummation of the transactions contemplated thereby, including the reasonable
fees and disbursements of counsel to the Agent, (b) to pay or reimburse the
Agent and the Lenders for all their reasonable costs and expenses incurred in
connection with the enforcement or
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preservation of any rights under the Loan Documents, including the reasonable
fees and disbursements of one counsel for the Agent and one counsel for the
Lenders, and any payments in indemnification or otherwise payable by the Lenders
to the Agent pursuant to the Loan Documents, (c) to pay, and indemnify and hold
harmless the Agent and the Lenders from, any and all recording and filing fees
and any and all liabilities with respect to, or resulting from any failure to
pay or delay in paying, documentary, stamp, excise and other similar taxes, if
any, which may be payable or determined to be payable in connection with the
execution and delivery of any of the Loan Documents, or consummation of any
amendment, supplement or modification of, or any waiver or consent under or in
respect of, any Loan Document and (d) to the extent not already covered by any
of the preceding subsections, to pay the fees and disbursements of counsel to
the Agent and any Lender incurred in connection with the representation of the
Agent or such Lender in any matter relating to or arising out of any bankruptcy
or other proceeding of the type described in Sections 11.1.(e) or 11.1.(f),
including, without limitation (i) any motion for relief from any stay or similar
order, (ii) the negotiation, preparation, execution and delivery of any document
relating to the Obligations and (iii) the negotiation and preparation of any
debtor-in-possession financing or any plan of reorganization of the Borrower or
any other Loan Party, whether proposed by the Borrower, such Loan Party, the
Lenders or any other Person, and whether such fees and expenses are incurred
prior to, during or after the commencement of such proceeding or the
confirmation or conclusion of any such proceeding.
SECTION 13.3. STAMP, INTANGIBLE AND RECORDING TAXES.
The Borrower will pay any and all stamp, intangible, registration,
recordation and similar taxes, fees or charges and shall indemnify the Agent and
each Lender against any and all liabilities with respect to or resulting from
any delay in the payment or omission to pay any such taxes, fees or charges,
which may be payable or determined to be payable in connection with the
execution, delivery, recording, performance or enforcement of this Agreement,
the Notes and any of the other Loan Documents or the perfection of any rights or
Liens thereunder.
SECTION 13.4. SETOFF.
Subject to Section 3.3. and in addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
the Agent, each Lender and each Participant is hereby authorized by the
Borrower, at any time or from time to time while an Event of Default exists,
without notice to the Borrower or to any other Person, any such notice being
hereby expressly waived, but in the case of a Lender or a Participant subject to
receipt of the prior written consent of the Agent exercised in its sole
discretion, to set off and to appropriate and to apply any and all deposits
(general or special, including, but not limited to, indebtedness evidenced by
certificates of deposit, whether matured or unmatured) and any other
indebtedness at any time held or owing by the Agent, such Lender or any
affiliate of the Agent or such Lender, to or for the credit or the account of
the Borrower against and on account of any of the Obligations, irrespective of
whether or not any or all of the Loans and all other Obligations have been
declared to be, or have otherwise become, due and payable as permitted by
Section 11.2., and although such obligations shall be contingent or unmatured.
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SECTION 13.5. LITIGATION; JURISDICTION; OTHER MATTERS; WAIVERS.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY
BETWEEN OR AMONG THE BORROWER, THE AGENT OR ANY OF THE LENDERS WOULD BE BASED ON
DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND
EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF THE LENDERS, THE AGENT AND THE BORROWER HEREBY WAIVES ITS RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR
TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO
ARISING OUT OF THIS AGREEMENT, THE NOTES, OR ANY OTHER LOAN DOCUMENT OR BY
REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG
THE BORROWER, THE AGENT OR ANY OF THE LENDERS OF ANY KIND OR NATURE.
(b) EACH OF THE BORROWER, THE AGENT AND EACH LENDER HEREBY AGREES THAT
THE FEDERAL DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK OR, AT THE
OPTION OF THE AGENT, ANY STATE COURT LOCATED IN NEW YORK, NEW YORK, SHALL HAVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG THE
BORROWER, THE AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO
THIS AGREEMENT, THE LOANS AND THE NOTES OR ANY OTHER LOAN DOCUMENT OR TO ANY
MATTER ARISING HEREFROM OR THEREFROM. EACH OF THE BORROWER AND EACH OF THE
LENDERS EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY
ACTION OR PROCEEDING COMMENCED IN SUCH COURTS. THE BORROWER HEREBY WAIVES
PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER PROCESS OR PAPERS ISSUED
THEREIN, AND AGREES THAT SERVICE OF SUCH SUMMONS AND COMPLAINT, OR OTHER PROCESS
OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO THE BORROWER
AT ITS ADDRESS FOR NOTICES PROVIDED FOR HEREIN. SHOULD THE BORROWER FAIL TO
APPEAR OR ANSWER ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN
THIRTY DAYS AFTER THE MAILING THEREOF, THE BORROWER SHALL BE DEEMED IN DEFAULT
AND AN ORDER AND/OR JUDGMENT MAY BE ENTERED AGAINST IT AS DEMANDED OR PRAYED FOR
IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS. EACH PARTY FURTHER WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME. THE CHOICE OF
FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF
ANY ACTION BY THE AGENT OR ANY LENDER OR THE ENFORCEMENT BY THE AGENT OR ANY
LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE
JURISDICTION.
(c) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY
WITH THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL
CONSEQUENCES THEREOF, AND SHALL
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SURVIVE THE PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR
UNDER THE OTHER LOAN DOCUMENTS AND THE TERMINATION OF THIS AGREEMENT.
SECTION 13.6. SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns, except that the Borrower may not assign or otherwise transfer any of
its rights or obligations under this Agreement or as of the other Loan Documents
without the prior written consent of all Lenders (and any such assignment or
other transfer to which all of the Lenders have not so consented shall be null
and void).
(b) Any Lender may make, carry or transfer Loans at, to or for the
account of any of its branch offices or the office of an affiliate of such
Lender except to the extent such transfer would result in increased costs to the
Borrower.
(c) Any Lender may at any time grant to an affiliate of such Lender, or
one or more banks or other financial institutions (each a "Participant")
participating interests in its Commitment or the Obligations owing to such
Lender; provided, however, any such participating interest must be for a
constant and not a varying percentage interest. Except as otherwise provided in
Section 13.4., no Participant shall have any rights or benefits under this
Agreement or any other Loan Document. In the event of any such grant by a Lender
of a participating interest to a Participant, such Lender shall remain
responsible for the performance of its obligations hereunder, and the Borrower
and the Agent shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement pursuant to which any Lender may grant such a participating interest
shall provide that such Lender shall retain the sole right and responsibility to
enforce the obligations of the Borrower hereunder including, without limitation,
the right to approve any amendment, modification or waiver of any provision of
this Agreement; provided, however, such Lender may agree with the Participant
that it will not, without the consent of the Participant, agree to (i) increase,
or extend the term or extend the time or waive any requirement for the reduction
or termination of, such Lender's Commitment, (ii) extend the date fixed for the
payment of principal of or interest on the Loans or portions thereof owing to
such Lender, (iii) reduce the amount of any such payment of principal, or (iv)
reduce the rate at which interest is payable thereon. An assignment or other
transfer which is not permitted by subsection (d) or (e) below shall be given
effect for purposes of this Agreement only to the extent of a participating
interest granted in accordance with this subsection (c). The selling Lender
shall notify the Agent and the Borrower of the sale of any participation
hereunder and the terms thereof.
(d) Any Lender may with the prior written consent of the Agent and the
Borrower (which consent, in each case, shall not be unreasonably withheld) at
any time assign to one or more Eligible Assignees (each an "Assignee") all or a
portion of its rights and obligations under this Agreement and the Notes;
provided, however, (i) no such consent by the Borrower shall be required (x) if
a Default or Event of Default shall exist or (y) in the case of an assignment to
another Lender or an affiliate of another Lender; (ii) any partial assignment
shall be in an amount
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at least equal to $10,000,000 and integral multiples of $5,000,000 in excess
thereof; (iii) after giving effect to such assignment, the assigning Lender
retains a Commitment, or if the Commitments have been terminated, holds Notes
having an aggregate outstanding principal balance of at least $10,000,000; (iv)
each such assignment shall be effected by means of an Assignment and Acceptance
Agreement; and (v) if, after giving effect to any assignment by the Lender then
acting as Agent, such Lender's Commitment would be less than the amount of any
other Lender's Commitment, such Lender shall (x) promptly notify all of the
other Lenders of such event and (y) resign as Agent subject to and in accordance
with Section 12.8. if within 5 Business Days of the giving of such notice, the
Requisite Lenders shall have requested in writing that such Lender so resign.
Upon execution and delivery of such instrument and payment by such Assignee to
such transferor Lender of an amount equal to the purchase price agreed between
such transferor Lender and such Assignee, such Assignee shall be deemed to be a
Lender party to this Agreement as of the effective date of the Assignment and
Acceptance Agreement and shall have all the rights and obligations of a Lender
with a Commitment as set forth in such Assignment and Acceptance Agreement, and
the transferor Lender shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to this subsection
(d), the transferor Lender, the Agent and the Borrower shall make appropriate
arrangements so that new Notes are issued to the Assignee and such transferor
Lender, as appropriate. In connection with any such assignment, the transferor
Lender shall pay to the Agent an administrative fee for processing such
assignment in the amount of $3,500. Anything in this Section to the contrary
notwithstanding, no Lender may assign or participate any interest in any Loan
held by it hereunder to the Borrower, or any of its respective affiliates or
Subsidiaries.
(e) The Agent shall maintain a copy of each Assignment and Acceptance
Agreement delivered to and accepted by it and a register for the recordation of
the names and addresses of the Lenders and the Commitment of each Lender from
time to time (the "Register"). The Agent shall give each Lender and the Borrower
notice of the assignment by any Lender of its rights as contemplated by this
Section. The Borrower, the Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement and the other Loan Documents. The Register and copies of each
Assignment and Acceptance Agreement shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice to the Agent. Upon its receipt of an Assignment and
Acceptance Agreement executed by an assigning Lender, together with each Note
subject to such assignment, the Agent shall, if such Assignment and Acceptance
Agreement has been completed and if the Agent receives the processing and
recording fee described in subsection (d) above, (i) accept such Assignment and
Acceptance Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
(f) In addition to the assignments and participations permitted under
the foregoing provisions of the Section, and without the need to comply with any
of the formal or procedural requirements of this Section, any Lender may at any
time and from time to time, pledge and assign all or any portion of its rights
under all or any of the Loan Documents to a Federal Reserve Bank; provided that
no such pledge of assignment shall release such Lender from its
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obligation thereunder. To facilitate any such pledge or assignment,
Administrative Agent shall, at the request of such Lender, enter into a letter
agreement with the Federal Reserve Bank in, or substantially in, the form of the
exhibit to Appendix C to the Federal Reserve Bank of New York Operating Circular
No 10, as amended from time to time.
(g) A Lender may furnish any information concerning the Borrower, any
other Loan Party or any of their respective Subsidiaries in the possession of
such Lender from time to time to Assignees and Participants (including
prospective Assignees and Participants) subject to compliance with Section 13.9.
(h) Anything in this Section to the contrary notwithstanding, no Lender
may assign or participate any interest in any Loan held by it hereunder to the
Borrower, any other Loan Party or any of their respective Affiliates or
Subsidiaries.
(i) Each Lender agrees that, without the prior written consent of the
Borrower and the Agent, it will not make any assignment hereunder in any manner
or under any circumstances that would require registration or qualification of,
or filings in respect of, any Loan or Note under the Securities Act or any other
securities laws of the United States of America or of any other jurisdiction.
SECTION 13.7. AMENDMENTS AND WAIVERS.
(a) Generally. Except as otherwise expressly provided in this Agreement,
(i) any consent or approval required or permitted by this Agreement or in any
Loan Document to be given by the Lenders may be given, (ii) any term of this
Agreement or of any other Loan Document (other than any fee letter solely
between the Borrower and the Agent) may be amended, (iii) the performance or
observance by the Borrower, the Parent, any other Loan Party or any other
Subsidiary of any terms of this Agreement or such other Loan Document (other
than any fee letter solely between the Borrower and the Agent) and (iv) the
continuance of any Default or Event of Default may be waived (either generally
or in a particular instance and either retroactively or prospectively), with,
but only with, the written consent of the Requisite Lenders (or the Agent at the
written direction of the Requisite Lenders), and, in the case of an amendment to
any Loan Document, the written consent of each Loan Party which is party
thereto.
(b) Unanimous Consent. Notwithstanding the foregoing, no amendment,
waiver or consent shall, unless in writing, and signed by all of the Lenders (or
the Agent at the written direction of the Lenders), do any of the following:
(i) increase the Commitments of the Lenders (excluding any increase
as a result of an assignment of Commitments permitted under Section
13.6.(d)) or subject the Lenders to any additional obligations;
(ii) reduce the principal of, or interest rates that have accrued or
that will be charged on the outstanding principal amount of, any Loans or
other Obligations, provided, however, the Agent may, in its sole
discretion, waive up to two times per year any late charges incurred by
the Borrower pursuant to Section 2.8.;
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(iii) reduce the amount of any Fees payable to the Lenders
hereunder;
(iv) postpone any date fixed for any payment of principal of, or
interest on, any Loans or for the payment of Fees or any other Obligations
beyond the Termination Date;
(v) change the Credit Percentages (excluding any change as a result
of an assignment of Commitments permitted under Section 13.6.(d));
(vi) modify the definition of the term "Commitment Termination Date"
or "Termination Date";
(vii) amend this Section or amend the definitions of the terms used
in this Agreement or the other Loan Documents insofar as such definitions
affect the substance of this Section;
(viii) modify the definition of the term "Requisite Lenders" or
modify in any other manner the number or percentage of the Lenders
required to make any determinations or waive any rights hereunder or to
modify any provision hereof;
(ix) release any Guarantor from its obligations under the Guaranty,
except as otherwise permitted under Section 8.14(d);
(x) modify the definition of the terms "Maximum Availability" or
"Unencumbered Pool Value" (and the definitions used in such definitions
and the percentages and rates used in the calculation thereof); provided,
however, the Requisite Lenders may agree to permit more than 20% of the
Unencumbered Pool Value to be attributable to a given Eligible Property;
(xi) waive a Default or Event of Default under subsection (a) of
Section 11.1.;
(xii) waive a Default or Event of Default under subsection (b) of
Section 11.1. to the extent such Default or Event of Default arises
from the failure of the Parent to perform or observe the covenant set
forth in subsection (a) of Section 10.1.; and
(xiii) amend, or waive the Borrower's compliance with, Section
2.5.(b).
(d) Amendment of Agent's Duties, Etc. No amendment, waiver or consent
unless in writing and signed by the Agent, in addition to the Lenders required
hereinabove to take such action, shall affect the rights or duties of the Agent
under this Agreement or any of the other Loan Documents. No waiver shall extend
to or affect any obligation not expressly waived or impair any right consequent
thereon and any amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose set forth therein. No course of
dealing or delay or omission on the part of the Agent or any Lender in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. Any Event of Default occurring hereunder shall continue to
exist until such time as such Event of Default is waived in writing in
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accordance with the terms of this Section, notwithstanding any attempted cure or
other action by the Borrower, any other Loan Party or any other Person
subsequent to the occurrence of such Event of Default. Except as otherwise
explicitly provided for herein or in any other Loan Document, no notice to or
demand upon the Borrower shall entitle the Borrower to other or further notice
or demand in similar or other circumstances.
SECTION 13.8. NONLIABILITY OF AGENT AND LENDERS.
The relationship between the Borrower, on the one hand, and the Lenders
and the Agent, on the other hand, shall be solely that of borrower and lender.
Neither the Agent nor any Lender shall have any fiduciary responsibilities to
the Borrower and no provision in this Agreement or in any of the other Loan
Documents, and no course of dealing between or among any of the parties hereto,
shall be deemed to create any fiduciary duty owing by the Agent or any Lender to
any Lender, the Borrower, any Subsidiary or any other Loan Party. Neither the
Agent nor any Lender undertakes any responsibility to the Borrower to review or
inform the Borrower of any matter in connection with any phase of the Borrower's
business or operations.
SECTION 13.9. CONFIDENTIALITY.
Except as otherwise provided by Applicable Law, the Agent and each Lender
shall utilize all non-public information obtained pursuant to the requirements
of this Agreement which has been identified as confidential or proprietary by
the Borrower in accordance with its customary procedure for handling
confidential information of this nature and in accordance with safe and sound
banking practices but in any event may make disclosure: (a) to any of their
respective affiliates (provided any such affiliate shall agree to keep such
information confidential in accordance with the terms of this Section); (b) as
reasonably requested by any bona fide Assignee, Participant or other transferee
in connection with the contemplated transfer of any Commitment or participations
therein as permitted hereunder (provided they shall agree to keep such
information confidential in accordance with the terms of this Section); (c) as
required or requested by any Governmental Authority or representative thereof or
pursuant to legal process or in connection with any legal proceedings; (d) to
the Agent's or such Lender's independent auditors and other professional
advisors (provided they shall be notified of the confidential nature of the
information); (e) if an Event of Default exists, to any other Person, in
connection with the exercise by the Agent or the Lenders of rights hereunder or
under any of the other Loan Documents; and (f) to the extent such information
(x) becomes publicly available other than as a result of a breach of this
Section or (y) becomes available to the Agent or any Lender on a nonconfidential
basis from a source other than the Borrower or any Affiliate. Notwithstanding
anything to the contrary set forth herein or in any other written or oral
understanding or agreement to which the parties hereto are parties or by which
they are bound, the parties hereto acknowledge and agree that (i) any
obligations of confidentiality contained herein and therein do not apply and
have not applied from the commencement of discussions between the parties to the
tax treatment and tax structure of the transactions contemplated by the Loan
Documents (and any related transactions or arrangements), and (ii) each party
(and each of its employees, representatives, or other agents) may disclose to
any and all parties as required, without limitation of any kind, the tax
treatment and tax structure of the transactions contemplated by the Loan
Documents and all materials of any kind (including opinions or other tax
analyses) that are provided to such party relating to such tax treatment and tax
structure, all within the meaning of
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Treasury Regulations Section 1.6011-4; provided, however, that each party
recognizes that the privilege each has to maintain, in its sole discretion, the
confidentiality of a communication relating to the transactions contemplated by
the Loan Documents, including a confidential communication with its attorney or
a confidential communication with a federally authorized tax practitioner under
Section 7525 of the Internal Revenue Code, is not intended to be affected by the
foregoing.
SECTION 13.10. INDEMNIFICATION.
(a) The Borrower shall and hereby agrees to indemnify, defend and hold
harmless the Agent, any affiliate of the Agent and each of the Lenders and their
respective directors, officers, shareholders, agents, employees and counsel
(each referred to herein as an "Indemnified Party") from and against any and all
losses, costs, claims, damages, liabilities, deficiencies, judgments or expenses
of every kind and nature (including, without limitation, amounts paid in
settlement, court costs and the fees and disbursements of counsel incurred in
connection with any litigation, investigation, claim or proceeding or any advice
rendered in connection therewith, but excluding losses, costs, claims, damages,
liabilities, deficiencies, judgments or expenses indemnification in respect of
which is specifically covered by Section 3.11. or 5.1. or expressly excluded
from the coverage of such Sections) incurred by an Indemnified Party in
connection with, arising out of, or by reason of, any suit, cause of action,
claim, arbitration, investigation or settlement, consent decree or other
proceeding (the foregoing referred to herein as an "Indemnity Proceeding") which
is in any way related directly or indirectly to: (i) this Agreement or any other
Loan Document or the transactions contemplated thereby; (ii) the making of any
Loans; (iii) any actual or proposed use by the Borrower of the proceeds of the
Loans; (iv) the Agent's or any Lender's entering into this Agreement; (v) the
fact that the Agent and the Lenders have established the credit facility
evidenced hereby in favor of the Borrower; (vi) the fact that the Agent and the
Lenders are creditors of the Borrower and have or are alleged to have
information regarding the financial condition, strategic plans or business
operations of the Parent, the Borrower and the Subsidiaries; (vii) the fact that
the Agent and the Lenders are material creditors of the Borrower and are alleged
to influence directly or indirectly the business decisions or affairs of the
Borrower and the Subsidiaries or their financial condition; (viii) the exercise
of any right or remedy the Agent or the Lenders may have under this Agreement or
the other Loan Documents; or (ix) any violation or non-compliance by the
Borrower or any Subsidiary of any Applicable Law (including any Environmental
Law) including, but not limited to, any Indemnity Proceeding commenced by (A)
the Internal Revenue Service or state taxing authority or (B) any Governmental
Authority or other Person under any Environmental Law, including any Indemnity
Proceeding commenced by a Governmental Authority or other Person seeking
remedial or other action to cause the Borrower or its Subsidiaries (or its
respective properties) (or the Agent and/or the Lenders as successors to the
Borrower) to be in compliance with such Environmental Laws; provided, however,
that the Borrower shall not be obligated to indemnify any Indemnified Party for
any acts or omissions of such Indemnified Party in connection with matters
described in the immediately preceding clause (ii) or (viii) that constitute
gross negligence or willful misconduct.
(b) The Borrower's indemnification obligations under this Section shall
apply to all Indemnity Proceedings arising out of, or related to, the foregoing
whether or not an Indemnified Party is a named party in such Indemnity
Proceeding. In this connection, this indemnification shall cover all costs and
expenses of any Indemnified Party in connection with any deposition of
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any Indemnified Party or compliance with any subpoena (including any subpoena
requesting the production of documents). This indemnification shall, among other
things, apply to any Indemnity Proceeding commenced by other creditors of the
Borrower or any Subsidiary, any shareholder of the Borrower or any Subsidiary
(whether such shareholder(s) are prosecuting such Indemnity Proceeding in their
individual capacity or derivatively on behalf of the Borrower), any account
debtor of the Borrower or any Subsidiary or by any Governmental Authority.
(c) This indemnification shall apply to any Indemnity Proceeding arising
during the pendency of any bankruptcy proceeding filed by or against the
Borrower and/or any Subsidiary.
(d) All out-of-pocket fees and expenses of, and all amounts paid to
third persons by, an Indemnified Party shall be advanced by the Borrower at the
request of such Indemnified Party notwithstanding any claim or assertion by the
Borrower that such Indemnified Party is not entitled to indemnification
hereunder upon receipt of an undertaking by such Indemnified Party that such
Indemnified Party will reimburse the Borrower if it is actually and finally
determined by a court of competent jurisdiction that such Indemnified Party is
not so entitled to indemnification hereunder.
(e) An Indemnified Party may conduct its own investigation and defense
of, and may formulate its own strategy with respect to, any Indemnity Proceeding
covered by this Section and, as provided above, all costs and expenses incurred
by such Indemnified Party shall be reimbursed by the Borrower. No action taken
by legal counsel chosen by an Indemnified Party in investigating or defending
against any such Indemnity Proceeding shall vitiate or in any way impair the
obligations and duties of the Borrower hereunder to indemnify and hold harmless
each such Indemnified Party; provided, however, that (i) if the Borrower is
required to indemnify an Indemnified Party pursuant hereto and (ii) the Borrower
has provided evidence reasonably satisfactory to such Indemnified Party that the
Borrower has the financial wherewithal to reimburse such Indemnified Party for
any amount paid by such Indemnified Party with respect to such Indemnity
Proceeding, such Indemnified Party shall not settle or compromise any such
Indemnity Proceeding without the prior written consent of the Borrower (which
consent shall not be unreasonably withheld or delayed).
(f) If and to the extent that the obligations of the Borrower hereunder
are unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under Applicable Law.
(g) The Borrower's obligations hereunder shall survive any termination
of this Agreement and the other Loan Documents and the payment in full in cash
of the Obligations, and are in addition to, and not in substitution of, any of
the other obligations set forth in this Agreement or any other Loan Document to
which it is a party.
SECTION 13.11. TERMINATION; SURVIVAL.
At such time as (a) all of the Commitments have been terminated, (b) none
of the Lenders is obligated any longer under this Agreement to make any Loans
and (c) all Obligations (other than obligations which survive as provided in the
following sentence) have been paid and satisfied in full, this Agreement shall
terminate. The indemnities to which the Agent and the
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Lenders are entitled under the provisions of Sections 3.11., 5.1., 5.4., 12.7.,
13.2., 13.10. and 13.21. and any other provision of this Agreement and the other
Loan Documents, and the provisions of Section 13.5., shall continue in full
force and effect and shall protect the Agent and the Lenders (i) notwithstanding
any termination of this Agreement, or of the other Loan Documents, against
events arising after such termination as well as before and (ii) at all times
after any such party ceases to be a party to this Agreement with respect to all
matters and events existing on or prior to the date such party ceased to be a
party to this Agreement.
SECTION 13.12. SEVERABILITY OF PROVISIONS.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating the
remainder of such provision or the remaining provisions or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 13.13. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
SECTION 13.14. COUNTERPARTS.
This Agreement and any amendments, waivers, consents or supplements may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all of which counterparts together shall constitute but
one and the same instrument.
SECTION 13.15. OBLIGATIONS WITH RESPECT TO LOAN PARTIES.
The obligations of the Borrower to direct or prohibit the taking of
certain actions by the other Loan Parties as specified herein shall be absolute
and not subject to any defense the Borrower may have that the Borrower does not
control such Loan Parties.
SECTION 13.16. MARSHALING; PAYMENTS SET ASIDE.
Neither the Agent nor any Lender shall be under any obligation to marshal
any assets in favor of any Loan Party or any other party or against or in
payment of any or all of the Obligations. To the extent that any Loan Party
makes a payment or payments to the Agent and/or any Lender, or the Agent and/or
any Lender enforce their security interests or exercise their rights of setoff,
and such payment or payments or the proceeds of such enforcement or setoff or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such recovery, the Obligations or part
thereof originally intended to be satisfied, and all Liens, rights and remedies
therefor, shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not occurred.
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SECTION 13.17. INDEPENDENCE OF COVENANTS.
All covenants hereunder shall be given in any jurisdiction independent
effect so that if a particular action or condition is not permitted by any of
such covenants, the fact that it would be permitted by an exception to, or be
otherwise within the limitations of, another covenant shall not avoid the
occurrence of a Default or an Event of Default if such action is taken or
condition exists.
SECTION 13.18. LIMITATION OF LIABILITY.
Neither the Agent nor any Lender, nor any affiliate, officer, director,
employee, attorney, or agent of the Agent or any Lender shall have any liability
with respect to, and the Borrower hereby waives, releases, and agrees not to xxx
any of them upon, any claim for any special, indirect, incidental, or
consequential damages suffered or incurred by the Borrower in connection with,
arising out of, or in any way related to, this Agreement or any of the other
Loan Documents, or any of the transactions contemplated by this Agreement or any
of the other Loan Documents. The Borrower hereby waives, releases, and agrees
not to xxx the Agent or any Lender or any of the Agent's or any Lender's
affiliates, officers, directors, employees, attorneys, or agents for punitive
damages in respect of any claim in connection with, arising out of, or in any
way related to, this Agreement or any of the other Loan Documents, or any of the
transactions contemplated by this Agreement or financed hereby.
SECTION 13.19. ENTIRE AGREEMENT.
This Agreement, the Notes, and the other Loan Documents referred to herein
embody the final, entire agreement among the parties hereto and supersede any
and all prior commitments, agreements, representations, and understandings,
whether written or oral, relating to the subject matter hereof and thereof and
may not be contradicted or varied by evidence of prior, contemporaneous, or
subsequent oral agreements or discussions of the parties hereto. There are no
oral agreements among the parties hereto.
SECTION 13.20. CONSTRUCTION.
The Agent, the Borrower and each Lender acknowledge that each of them has
had the benefit of legal counsel of its own choice and has been afforded an
opportunity to review this Agreement and the other Loan Documents with its legal
counsel and that this Agreement and the other Loan Documents shall be construed
as if jointly drafted by the Agent, the Borrower and each Lender.
SECTION 13.21. NEW YORK COLLATERAL DOCUMENTS.
(a) Generally. The parties hereto acknowledge and agree that the Agent and
the Lenders are accepting the benefits of the New York Collateral Documents as
an accommodation to the Parent and the Borrower.
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(b) Release of New York Collateral Documents. Notwithstanding any other
provision of this Agreement or any other Loan Document to the contrary,
including without limitation, Section 13.7., (i) upon the Borrower's written
request and at the Borrower's sole cost and expense, the Agent shall release any
or all of the New York Collateral Documents or assign any or all of the New York
Collateral Documents to any Person requested by the Borrower (any such
assignment to be without recourse or warranty whatsoever) and (ii) the Agent may
in its discretion, and shall at the direction of the Requisite Lenders, release
any or all of the New York Collateral Documents so long as the Agent shall have
given the Borrower written notice at least 30 days' prior to any such release;
provided, however, the Agent shall not be required to give any such prior notice
to the Borrower if the Agent, in its sole discretion, has determined that delay
of such release would be detrimental to the Agent or the Lenders.
(c) Indemnity. Not in limitation of any of the Borrower's obligations
under Section 13.2.(c) or 13.10., the Borrower shall and hereby agrees to
indemnify, defend and hold harmless the Agent, each Lender and each other
Indemnified Party from and against any and all losses, costs, claims, damages,
liabilities, deficiencies, judgments or expenses of every kind and nature
(including, without limitation, amounts paid in settlement, court costs and the
fees and disbursements of counsel incurred in connection with any litigation,
investigation, claim or proceeding or any advice rendered in connection
therewith) incurred by an Indemnified Party in connection with, arising out of,
or by reason of, any Indemnity Proceeding which is in any way related directly
or indirectly to the failure of any Person to pay any recording tax payable
pursuant to N.Y. Tax Law, Ch. 60, Art. 11, Sec. 253 et seq. or other Applicable
Laws of the State of New York or any political subdivision of such State.
[Signatures on Following Pages]
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IN WITNESS WHEREOF, the parties hereto have caused this Term Loan
Agreement to be executed by their authorized officers all as of the day and year
first above written.
BORROWER:
KEYSTONE OPERATING PARTNERSHIP, L.P.
By: Keystone Property Trust, its sole general
partner
By:___________________________
Name:____________________
Title:___________________
PARENT:
KEYSTONE PROPERTY TRUST
By:______________________________
Name:_______________________
Title:______________________
[Signatures Continued on Next Page]
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[SIGNATURE PAGE TO TERM LOAN AGREEMENT DATED AS OF SEPTEMBER 11,
2003 WITH KEYSTONE OPERATING PARTNERSHIP, L.P.]
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as
Agent and as a Lender
By:______________________________
Name:_______________________
Title:______________________
COMMITMENT AMOUNT:
$75,000,000
LENDING OFFICE (ALL TYPES OF LOANS) AND
ADDRESS FOR NOTICES:
Xxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
0000 X Xxxxxx XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Loan Administration Manager
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
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SCHEDULE 1.1.(A)
List of Loan Parties
NAME OF GUARANTOR JURISDICTION OF FORMATION
----------------- -------------------------
4 Applegate, LLC New Jersey
000 Xxxxx Xxxxx, LLC New Jersey
FLIP BRE II, Inc. New Jersey
Xxxxxxxxx Drive, LLC Delaware
Keystone American DE 1, Inc. Delaware
Keystone American DE L.P. Delaware
Keystone Capital I, LP Delaware
Keystone Capital, LLC Delaware
Keystone Capital, LP Delaware
Keystone CBC I, LP Delaware
Keystone CBC, LLC Delaware
Keystone CBC, LP Delaware
Keystone Greenville Urban Renewal LLC New Jersey
Keystone Independence II LP Delaware
Keystone Independence LLC Delaware
Keystone Independence LP Delaware
Keystone KPJV, LLC Delaware
Keystone KPJV, LP Delaware
Keystone Lemoyne Partners GP, LLC Pennsylvania
Keystone Lemoyne Partners, L.P. Pennsylvania
Keystone MBP L.P. Delaware
Keystone New Jersey, L.P. Delaware
Keystone NJA L.P. Delaware
Keystone NJP II LLC Delaware
Keystone NJP III LLC Delaware
Keystone NJP IV LLC Delaware
Keystone NJP LLC Delaware
Keystone Oak I, LP Delaware
Keystone Oak LLC Delaware
Keystone Oak, LP Delaware
Keystone Property Holdings Incorporated Delaware
Keystone Roadway Partners GP, LLC Pennsylvania
Keystone Xxxxxxxx LLC Delaware
XxXxxxx Properties New Jersey
New Jersey Associates New Jersey
Xxxxx Park, LLC Delaware
REA/SPC II, Inc. New Jersey
RMOP GP, LLC Delaware
RROP, L.L.C. New Jersey
Xxxxxx, LLC Delaware
UFSC, L.L.C. New Jersey
