Exhibit 10.1
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CREDIT AGREEMENT
Dated as of February 7, 2003
by and among
EQUITY ONE, INC.,
as Borrower
THE FINANCIAL INSTITUTIONS PARTY HERETO
AND THEIR ASSIGNEES UNDER SECTION 13.6,
as Lenders
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent and Sole Lead Arranger
and
COMMERZBANK AG NEW YORK AND GRAND CAYMAN BRANCHES,
KEYBANK NATIONAL ASSOCIATION and SOUTHTRUST BANK,
as Documentation Agents
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Table of Contents
ARTICLE I DEFINITIONS.................................................1
Section 1.1 Definitions.................................................1
Section 1.2 General; References to San Francisco Time..................25
ARTICLE II CREDIT FACILITY.........................................26
Section 2.1 Revolving Loans............................................26
Section 2.2 Letters of Credit..........................................27
Section 2.3 Swingline Loans............................................31
Section 2.4 Bid Rate Loans.............................................33
Section 2.5 Rates and Payment of Interest on Loans.....................37
Section 2.6 Number of Interest Periods.................................38
Section 2.7 Repayment of Loans.........................................38
Section 2.8 Prepayments................................................38
Section 2.9 Continuation...............................................39
Section 2.10 Conversion.................................................39
Section 2.11 Notes.39
Section 2.12 Expiration or Termination Date of Letters of
Credit Past Termination Date.............................40
Section 2.13 Amount Limitations.........................................40
Section 2.14 Optional Increase to the Commitment........................40
Section 2.15 Extension of the Termination Date..........................42
ARTICLE III PAYMENTS, FEES AND OTHER GENERAL PROVISIONS.............42
Section 3.1 Payments...................................................42
Section 3.2 Pro Rata Treatment.........................................43
Section 3.3 Sharing of Payments, Setoff, Etc...........................43
Section 3.4 Several Obligations........................................44
Section 3.5 Minimum Amounts............................................44
Section 3.6 Fees. 45
Section 3.7 Computations...............................................46
Section 3.8 Usury.46
Section 3.9 Agreement Regarding Interest and Charges...................46
Section 3.10 Statements of Account......................................46
Section 3.11 Defaulting Lenders.........................................47
Section 3.12 Taxes.47
ARTICLE IV UNENCUMBERED POOL PROPERTIES............................49
Section 4.1 Inclusion of Unencumbered Pool Properties..................49
Section 4.2 Termination of Designation as Unencumbered Pool Property...49
Section 4.3 Ineligibility of a Property as Unencumbered Pool Property..50
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ARTICLE V YIELD PROTECTION, ETC...................................50
Section 5.1 Additional Costs; Capital Adequacy.........................50
Section 5.2 Suspension of LIBOR Loans..................................51
Section 5.3 Illegality.................................................52
Section 5.4 Compensation...............................................52
Section 5.5 Treatment of Affected Loans................................53
Section 5.6 Change of Lending Office...................................54
Section 5.7 Assumptions Concerning Funding of LIBOR Loans..............54
ARTICLE VI CONDITIONS PRECEDENT....................................54
Section 6.1 Initial Conditions Precedent...............................54
Section 6.2 Conditions Precedent to All Loans and Letters of Credit....57
Section 6.3 Conditions as Covenants....................................57
ARTICLE VII REPRESENTATIONS AND WARRANTIES..........................57
Section 7.1 Representations and Warranties.............................57
Section 7.2 Survival of Representations and Warranties, Etc............63
ARTICLE VIII AFFIRMATIVE COVENANTS...................................64
Section 8.1 Preservation of Existence and Similar Matters..............64
Section 8.2 Compliance with Applicable Law and Material Contracts......64
Section 8.3 Maintenance of Property....................................64
Section 8.4 Conduct of Business........................................64
Section 8.5 Insurance..................................................64
Section 8.6 Payment of Taxes and Claims................................65
Section 8.7 Books and Records; Inspections.............................65
Section 8.8 Use of Proceeds............................................65
Section 8.9 Environmental Matters......................................66
Section 8.10 Further Assurances.........................................66
Section 8.11 Material Contracts; Approved Ground Leases.................66
Section 8.12 REIT Status................................................66
Section 8.13 Exchange Listing...........................................66
Section 8.14 Guarantors.................................................67
ARTICLE IX INFORMATION.............................................68
Section 9.1 Quarterly Financial Statements.............................68
Section 9.2 Year-End Statements........................................69
Section 9.3 Compliance Certificate.....................................69
Section 9.4 Other Information..........................................69
ARTICLE X NEGATIVE COVENANTS......................................72
Section 10.1 Financial Covenants........................................72
Section 10.2 Negative Pledge............................................75
Section 10.3 Restrictions on Intercompany Transfers.....................75
Section 10.4 Merger, Consolidation, Sales of Assets and
Other Arrangements.......................................75
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Section 10.5 Plans.76
Section 10.6 Fiscal Year................................................76
Section 10.7 Modifications of Organizational Documents and
Material Contracts.......................................76
Section 10.8 Transactions with Affiliates...............................77
ARTICLE XI DEFAULT.................................................77
Section 11.1 Events of Default..........................................77
Section 11.2 Remedies Upon Event of Default.............................81
Section 11.3 Marshaling; Payments Set Aside.............................82
Section 11.4 Allocation of Proceeds.....................................82
Section 11.5 Letter of Credit Collateral Account........................83
Section 11.6 Performance by Administrative Agent........................84
Section 11.7 Rights Cumulative..........................................84
ARTICLE XII THE AGENT...............................................84
Section 12.1 Authorization and Action...................................84
Section 12.2 Administrative Agent's Reliance, Etc.......................85
Section 12.3 Notice of Defaults.........................................86
Section 12.4 Xxxxx Fargo as Lender......................................86
Section 12.5 Approvals of Lenders.......................................87
Section 12.6 Lender Credit Decision, Etc................................87
Section 12.7 Indemnification of Administrative Agent....................88
Section 12.8 Successor Administrative Agent.............................89
Section 12.9 Titled Agents..............................................89
ARTICLE XIII MISCELLANEOUS...........................................90
Section 13.1 Notices. 90
Section 13.2 Expenses...................................................91
Section 13.3 Stamp, Intangible and Recording Taxes......................91
Section 13.4 Intentionally Omitted......................................92
Section 13.5 Litigation; Jurisdiction; Other Matters; Waivers...........92
Section 13.6 Successors and Assigns.....................................93
Section 13.7 Amendments.................................................95
Section 13.8 Nonliability of Administrative Agent and Lenders...........97
Section 13.9 Confidentiality............................................97
Section 13.10 Indemnification......................................98
Section 13.11 Termination; Survival...............................100
Section 13.12 Severability of Provisions..........................100
Section 13.13 GOVERNING LAW.......................................100
Section 13.14 Counterparts........................................100
Section 13.15 Obligations with Respect to Loan Parties............100
Section 13.16 Independence of Covenants...........................100
Section 13.17 Limitation of Liability.............................101
Section 13.18 Entire Agreement....................................101
Section 13.19 Construction........................................101
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SCHEDULE 1.1(A) Pro Rata Shares of Lenders
SCHEDULE 1.1(B) List of Loan Parties
SCHEDULE 4.1 Initial Unencumbered Pool Properties
SCHEDULE 6.1(a)(xii) List of Indebtedness to be Retired Prior to Closing
SCHEDULE 7.1(b) Ownership Structure
SCHEDULE 7.1(f) List of Properties
SCHEDULE 7.1(g) Existing Indebtedness
SCHEDULE 7.1(h) Material Contracts
SCHEDULE 7.1(i) Litigation
EXHIBIT A Form of Assignment and Acceptance Agreement
EXHIBIT B Form of Unencumbered Pool Certificate
EXHIBIT C Form of Guaranty
EXHIBIT D-1 Form of Notice of Borrowing
EXHIBIT D-2 Form of Notice of Swingline Borrowing
EXHIBIT E Form of Notice of Continuation
EXHIBIT F Form of Notice of Conversion
EXHIBIT G-1 Form of Revolving Note
EXHIBIT G-2 Form of Swingline Note
EXHIBIT G-3 Form of Bid Rate Note
EXHIBIT H Form of Opinion of Counsel
EXHIBIT I Form of Compliance Certificate
EXHIBIT J Form of Designation Agreement
EXHIBIT K-1 Form of Bid Rate Quote Request
EXHIBIT K-2 Form of Bid Rate Quote
EXHIBIT K-3 Form of Bid Rate Quote Acceptance
EXHIBIT L Form of Solvency Certificate
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT (the "Agreement") dated as of February 7, 2003 by and
among EQUITY ONE, INC., a corporation organized under the laws of the State of
Maryland (the "Borrower"), each of the financial institutions initially a
signatory hereto together with their assignees under Section 13.6(d) (the
"Lenders"), COMMERZBANK AG NEW YORK AND GRAND CAYMAN BRANCHES, KEYBANK NATIONAL
ASSOCIATION, and SOUTHTRUST BANK, as Documentation Agents (each a "Documentation
Agent"), and XXXXX FARGO BANK, NATIONAL ASSOCIATION ("Xxxxx Fargo") as
contractual representative of the Lenders to the extent and in the manner
provided in Article XII (in such capacity, the "Administrative Agent") and as
Sole Lead Arranger.
WHEREAS, the parties hereto are entering into this Agreement and the other
Loan Documents, among other things, to make available to Borrower, on an
unsecured basis, a $340,000,000 revolving credit facility, which will include a
$20,000,000 letter of credit subfacility, a $25,000,000 swingline subfacility
and a $150,000,000 competitive bid subfacility, 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:
DEFINITIONS
Definitions.
In addition to terms defined elsewhere herein, the following terms
shall have the following meanings for the purposes of this Agreement:
"Absolute Rate" has the meaning given that term in Section 2.4(c)(ii).
"Absolute Rate Auction" means a solicitation of Bid Rate Quotes
setting forth Absolute Rates pursuant to Section 2.4(b).
"Absolute Rate Loan" means a Bid Rate Loan, in which the interest rate
is determined on the basis of an Absolute Rate pursuant to an Absolute Rate
Auction.
"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 Administrative 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
ten percent (10%) or more of any Equity Interest in the Borrower; or (c) ten
percent (10%) 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
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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 Administrative Agent or any Lender be deemed to be an
Affiliate of the Borrower.
"Administrative Agent" means Xxxxx Fargo Bank, National Association,
as contractual representative for the Lenders under the terms of this Agreement,
and any of its successors in such capacity.
"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" shall mean the respective percentage rates set
forth below corresponding to the Credit Ratings of the Borrower prevailing as of
the date of rate determination as assigned by the applicable Rating Agencies:
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Level Credit Rating Applicable Margin for
(from S&P and one other Rating Agency)
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1 A-/A3 or equivalent or higher 0.65%
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2 BBB+/Baa1 or equivalent 0.75%
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3 BBB/Baa2 or equivalent 0.85%
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4 BBB-/Baa3 or equivalent 1.00%
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5 BB+/Ba1 or equivalent 1.15%
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6 Less than BB+/Ba1 or equivalent or no rating 1.35%
from S&P and one other Rating Agency
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During any period that the Borrower receives two Credit Ratings, if the Rating
Agencies assign Credit Ratings which correspond to different Levels in the above
table resulting in different Applicable Margin determinations, the Applicable
Margin will be determined based on the Level corresponding to the higher of the
two Credit Ratings. During any period that the Borrower receives more than two
Credit Ratings and none of such Credit Ratings is equivalent, the Applicable
Margin shall equal the average of the Applicable Margins corresponding to the
two highest of such Credit Ratings. Borrower shall provide to Administrative
Agent notice of each anticipated or actual change in a Credit Rating within
three (3) Business Days of Borrower's knowledge thereof. Each change in the
Applicable Margin resulting from a change in a Credit Rating of the Borrower
shall take effect on the first calendar day of the month following the month in
which such Credit Rating is publicly announced by the relevant Rating Agency. As
of the Agreement Date, the Applicable Margin for LIBOR Loans equals one percent
(1%).
"Approved Ground Leases" means the following four Leasehold estates:
XxXxxxx Square, Shelby Plaza and Plaza Acadienne, and the Kmart at Lantana.
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"Asset Value" means:
(a) with respect to any Subsidiary at a given time, the sum of
(i) EBITDA of such Subsidiary at such time for the fiscal quarter most recently
ended multiplied by four (4) and divided by 9.125%, plus (ii) the book value of
all CIP of such Subsidiary as of the end of the Borrower'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, the Borrower's Ownership Share of EBITDA of such Unconsolidated
Affiliate attributable to such Properties for the fiscal quarter most recently
ended multiplied by four (4) and divided by 9.125%, plus (ii) with respect to
any of such Unconsolidated Affiliate's CIP, the Borrower's Ownership Share of
the book value of such CIP as of the end of the Borrower's fiscal quarter most
recently ended.
"Assignee" has the meaning given that term in Section 13.6(c).
"Assignment and Acceptance Agreement" means an Assignment and
Acceptance Agreement among a Lender, an Assignee and the Administrative 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 Xxxxx Fargo at its principal office in
San Francisco, California as its "prime rate" (which rate of interest may not be
the lowest rate charged by the Administrative Agent or any of the Lenders on
similar loans) or (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 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.
"Bid Rate Borrowing" has the meaning given that term in Section
2.4(b).
"Bid Rate Loan" means a loan made by a Lender under Section 2.4(a).
"Bid Rate Note" means a promissory note of the Borrower substantially
in the form of Exhibit G-3, payable to the order of a Lender as originally in
effect and otherwise duly completed.
"Bid Rate Quote" means an offer in accordance with Section 2.4(c) by a
Lender to make a Bid Rate Loan with one single specified interest rate.
"Bid Rate Quote Request" has the meaning given that term in Section
2.4(b).
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"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 Tampa, Florida 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.
"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.
"CIP" means construction-in-progress, together with any related Land
held for development, all as determined in accordance with GAAP.
"Commitment" means, as to each Lender, such Lender's obligation to
make Revolving Loans pursuant to Section 2.1, and to issue (in the case of the
Administrative Agent) or participate in (in the case of the other Lenders)
Letters of Credit pursuant to Section 2.2(a) and 2.2(i) respectively, and to
make (in the case of the Administrative Agent) or participate in (in the case of
other Lenders) Swingline Loans pursuant to Section 2.3(e), in an amount up to,
but not exceeding the amount set forth for such Lender on Schedule 1.1(A)
attached hereto as such Lender's "Commitment Amount" or as set forth in the
applicable Assignment and Acceptance Agreement, or as appropriate to reflect any
assignments to or by such Lender effected in accordance with Section 13.6.
"Compliance Certificate" has the meaning given that term in Section
9.3.
"Contingent Obligation" as applied to any Person, means any direct or
indirect liability, contingent or otherwise, of that Person with respect to any
Indebtedness, lease, dividend or other payment obligation of another Person if
the primary purpose or intent of the Person incurring such liability, or the
primary effect thereof, is to provide assurance to the obligee of such liability
that such liability will be paid or discharged, or that the holders of such
liability will be protected (in whole or in part) against loss with respect
thereto. Contingent Obligations shall include (i) any Guaranty of the
Indebtedness of another (other than of such Person for liabilities arising from
reasonable and customary exceptions to Nonrecourse Indebtedness, such as for
fraud, willful misrepresentation, misapplication of funds (including
misappropriation of security deposits and failure to apply rents to operating
expenses or debt service), indemnities relating to environmental matters and
waste of property constituting security for such Nonrecourse Indebtedness,
post-default interest, attorney's fees and other costs of collection to the
extent not covered by the value of the property constituting security for such
Nonrecourse Indebtedness and other similar exceptions to recourse liability,
none of which liabilities shall be deemed to be Contingent Obligations), (ii)
the obligation to make take-or-pay or similar payments if required regardless of
nonperformance by any other party or parties to an agreement, and (iii) any
liability of such Person for the Indebtedness of another through any agreement
to purchase, repurchase or otherwise acquire such obligation or any property
constituting security therefor, to provide funds
8
for the payment or discharge of such obligation or to maintain the solvency,
financial condition or any balance sheet item or level of income of another. The
amount of any Contingent Obligation shall be equal to the amount of the
obligation so guaranteed or otherwise supported or, if not a fixed and
determined amount, the maximum amount so guaranteed.
"Continue", "Continuation" and "Continued" each refers to the
continuation of a LIBOR Loan from one Interest Period to another Interest Period
pursuant to Section 2.9.
"Convert", "Conversion" and "Converted" each refers to the conversion
of a Loan of one Type into a Loan of another Type pursuant to Section 2.10.
"Credit Event" means any of the following: (a) the making (or deemed
making) of any Loan, (b) the Conversion of a Loan, (c) the Continuation of a
LIBOR Loan and (d) the issuance of a Letter of Credit.
"Credit Rating" means the rating assigned by a Rating Agency to each
series of rated senior unsecured long term indebtedness of the Borrower.
"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 3.11.
"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.
"Derivatives Termination Value" means, in respect of any one or more
Derivatives Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Derivatives Contracts, (a) for
any date on or after the date such Derivatives Contracts have been closed out
and termination value(s) determined in accordance therewith, such termination
value(s), and (b) for any date prior to the date referenced in clause (a) the
amount(s) determined as the xxxx-to-market value(s) for such Derivatives
Contracts, as determined based upon one or more mid-market or other readily
available quotations provided
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by any recognized dealer in such Derivatives Contracts (which may include the
Administrative Agent or any Lender).
"Designated Lender" means any Person which would qualify as an
Eligible Assignee or a special purpose entity which is an affiliate of, or
sponsored by, a Lender, that is engaged in making, purchasing or otherwise
investing in commercial loans in the ordinary course of its business and that
issues (or the direct or indirect parent of which issues) commercial paper rated
at least P-1 (or the then equivalent grade) by Xxxxx'x or A-1 (or the then
equivalent grade) by S&P that, in either case, (a) is organized under the laws
of the United States of America or any state thereof, (b) shall have become a
party to this Agreement pursuant to Section 13.6(d) and (c) is not otherwise a
Lender, together with its respective successors and permitted assigns, and, as
the context requires, includes the Swingline Lender; provided, however, that the
term "Lender" shall exclude each Designated Lender when used in reference to any
Loan other than a Bid Rate Loan, the Commitments or terms relating to any Loan
other than a Bid Rate Loan and the Commitments and shall further exclude each
Designated Lender for all other purposes hereunder except that any Designated
Lender which funds a Bid Rate Loan shall, subject to Section 13.6(d), have the
rights (including the rights given to a Lender contained in Sections 13.2 and
13.10) and obligations of a Lender associated with holding such Bid Rate Loan.
"Designated Lender Note" means a Bid Rate Note of the Borrower
evidencing the obligation of the Borrower to repay Bid Rate Loans made by a
Designated Lender.
"Designating Lender" has the meaning given that term in Section
13.6(d).
"Designation Agreement" means a Designation Agreement between a Lender
and a Designated Lender and accepted by the Administrative Agent, substantially
in the form of Exhibit J or such other form as may be agreed to by such Lender,
such Designated Lender and the Administrative Agent.
"Development Property" means a Property currently under development
that has not achieved a Leasing Rate of eighty percent (80%) or more or, subject
to the last sentence of this definition, 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 or real property being developed by third parties
with related indebtedness that the Borrower, any Subsidiary or any
Unconsolidated Affiliate has guaranteed or as to which any such Person is
otherwise obligated. A Development Property on which all improvements (other
than tenant improvements on unoccupied space) related to the development of such
Property have been substantially completed for at least twelve (12) months shall
cease to constitute a Development Property notwithstanding the fact that such
Property has not achieved a Leasing Rate of at least eighty percent (80%).
"Dollars" or "$" means the lawful currency of the United States of
America.
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"EBITDA" means, with respect to any Person for any period and without
duplication, the sum of (a) net earnings (loss) of such Person (before minority
interests and preferred distributions) 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): (i) depreciation and amortization expense and other non-cash
charges of such Person for such period; (i) interest expense of such Person for
such period; (iii) income tax expense of such Person in respect of such period;
(iv) 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; plus (b) such Person's Ownership Share of
EBITDA (calculated as referred to in the foregoing clause (a)) of each
Unconsolidated Affiliate.
"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 Administrative 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 Organization 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, agency or
international banking facility located in the United States of America. If such
Person is not currently a Lender, such Person'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.
"Eligible Property" means a Property which satisfies at all times,
from and after its inclusion as an Unencumbered Pool Property in accordance with
Section 4.1 and until such Property is removed from the Unencumbered Pool in
accordance with Section 4.2 or Section 4.3, all of the following requirements as
certified by Borrower to Administrative Agent at such time as the Property is
added to the Unencumbered Pool and from time to time thereafter in accordance
with the provisions of this Agreement:
(a) such Property is owned in fee simple by the Borrower or
a Wholly Owned Subsidiary (or is one of the Approved Ground Leases);
(b) regardless of whether such Property is owned by the
Borrower or a Wholly Owned Subsidiary, the Borrower has the right
directly, or indirectly through a Subsidiary, to take the following
actions without the need to obtain the consent of any Person: (i) to
create a Lien on such Property as security for Indebtedness of the
Borrower or such Subsidiary, as applicable and (ii) to sell, transfer
or otherwise dispose of such Property;
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(c) 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 any Lien other than
Permitted Liens;
(d) 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 profitable operation of such Property;
(e) Borrower has obtained an environmental study from a
third party consultant that indicates the property has no material
recognized environmental condition which, in Borrower's reasonable
discretion, impedes its intended use or materially impacts its
salability or financing potential; and
(f) if such Property is owned by a Subsidiary, such
Subsidiary has already or will become a Guarantor hereunder prior to
such Property being treated as an Eligible Property.
"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.ss.7401 et seq.; Federal Water Pollution Control Act, 33 U.S.C.ss.1251
et seq.; Solid Waste Disposal Act, 42 U.S.C.ss.6901 et seq.; Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.ss.9601 et
seq.; National Environmental Policy Act, 42 U.S.C.ss.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.
"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.
12
"Existing Loan" means the loan made pursuant to a Credit Agreement
dated as of February 27, 2002 between Borrower, Xxxxx Fargo and the financial
institutions party thereto, as amended.
"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.
"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 Directors of the Borrower
(or an authorized committee thereof) acting in good faith conclusively evidenced
by a board resolution thereof delivered to the Administrative Agent or, with
respect to any asset valued at up to $1,000,000, such determination may be made
by the chief financial officer of the Borrower evidenced by an officer's
certificate delivered to the Administrative Agent.
"Federal Funds Rate" means, for any 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 day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day,
provided that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate quoted to the
Administrative Agent by federal funds dealers selected by the Administrative
Agent on such day on such transaction as determined by the Administrative Agent.
"Fee Letter" means that certain letter agreement dated December 3,
2002 between the Administrative Agent and the Borrower with respect to certain
fees payable by the Borrower to and for the benefit of Administrative Agent in
connection with this Agreement.
"Fees" means the fees and commissions provided for or referred to in
Section 3.6 and any other fees payable by the Borrower to the Administrative
Agent or any other Lender hereunder or under any other Loan Document.
"FIRREA" means the Financial Institution Recovery, Reform and
Enforcement Act of 1989, as amended.
"Fixed Charges" means, with respect to a Person and for a given
period, the sum of (a) the Interest Expense of such Person for such period, plus
(b) the aggregate of all scheduled principal payments on Indebtedness made by
such Person during such period (excluding balloon, bullet or similar payments of
principal due upon the stated maturity of Indebtedness) including a
proportionate share of same for all Unconsolidated Affiliates, plus (c) the
aggregate of all dividends paid or accrued by such Person on any Preferred Stock
during such period including a
13
proportionate share of same for all Unconsolidated Affiliates, plus (d) the
Reserve for Replacements.
"Funds From Operations" means, with respect to a Person and for a
given period, (a) net income (loss) of such Person determined on a consolidated
basis for such period minus (or plus) (b) gains (or losses) from debt
restructuring and sales of property during such period plus (c) depreciation
with respect to such Person's real estate assets and amortization (other than
amortization of deferred financing costs) of such Person for such period, all
after adjustment for unconsolidated partnerships and joint ventures.
"GAAP" means 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 or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of the date of
determination, and which have been consistently applied.
"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) Operating Property Value at such time, plus
(b) all cash and cash equivalents (excluding tenant deposits
and other cash and cash equivalents the disposition of which is
restricted) of the Borrower and its Subsidiaries at such time; plus
(c) Borrower's and its Subsidiaries' respective Ownership
Shares of all cash and cash equivalents (excluding tenant deposits and
other cash and cash equivalents the disposition of which is
restricted) of each Unconsolidated Affiliate at such time, plus
(d) the current book value of all CIP, plus
(e) the Borrower's and its Subsidiaries' respective
Ownership Shares of the current book values of all CIP of each
Unconsolidated Affiliate, plus
(f) the purchase price paid by the Borrower or any
Subsidiary (less any amounts paid to the Borrower or such Subsidiary
as a purchase price adjustment (i.e., the net effective purchase
price, after taking into account any net credits to the stated
14
purchase price), held in escrow, retained as a contingency reserve, or
in connection with other similar arrangements) for any Property
acquired by the Borrower or such Subsidiary during the immediately
preceding fiscal quarter of the Borrower, plus
(g) the Borrower's and its Subsidiaries' respective
Ownership Shares of the purchase price paid by any Unconsolidated
Affiliate (less any amounts paid to such Unconsolidated Affiliate as a
purchase price adjustment, held in escrow, retained as a contingency
reserve, or in connection with other similar arrangements) for any
Property acquired by such Unconsolidated Affiliate during the
immediately preceding fiscal quarter of the Borrower, plus
(h) the contractual purchase price of Properties of the
Borrower and its Subsidiaries and Borrower's and its Subsidiaries
Ownership Share of the contractual purchase price of Properties of the
Borrower's Unconsolidated Affiliates, subject to purchase obligations,
repurchase obligations, forward commitments and unfunded obligations
to the extent such obligations and commitments are included in
determinations of Total Liabilities, plus
(i) the current book value of Land held for development
(including Borrower's and its Subsidiaries' Ownership Share of Land
held for development by Borrower's Unconsolidated Affiliates, but not
including Land included in subsection (d) or (e) above), plus
(j) the current book value (including Borrower's and its
Subsidiaries' Ownership Share with respect to Borrower's
Unconsolidated Affiliates) of accounts receivable (deemed collectable
in the ordinary course of business and less than ninety (90) days
outstanding) and notes receivable (deemed to be collectable) net of
collection reserves.
No more than five percent (5%) of the Gross Asset Value may be
attributable to the current book value of land held for development
(not including book value of such land included in CIP), and no more
then five percent (5%) of the Gross Asset Value may be attributable to
the book value of current portions of accounts receivable and notes
receivable net of collection reserves. Without limiting Borrower's
continuing obligations under Sections 10.1(g) and (h), any Gross Asset
Value in excess of any limitation set forth therein shall be excluded.
"Guarantor" means any Person that is party to the Guaranty as a
"Guarantor" and in any event shall include each Person which is required to
execute a Guaranty pursuant to the provisions of Section 8.14.
"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
15
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 (including 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 C.
"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 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;
16
(f) net obligations under any Derivatives Contract in an amount
equal to the Derivatives Termination Value thereof;
(g) 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; and
(h) such Person's Ownership Share of the Indebtedness of any
Unconsolidated Affiliate of such Person that is not with recourse to such
Person.
"Indemnity and Contribution Agreement" means the Indemnity and
Contribution Agreement dated substantially concurrently herewith executed
amongst Borrower and each Guarantor.
"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
as determined in accordance with GAAP, (a) all paid or accrued interest expense
(excluding capitalized interest, but including 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 or otherwise, plus (b)
to the extent not already included in the foregoing clause (a) such Person's
Ownership Share of all paid or accrued interest expense (excluding capitalized
interest, but including interest expense attributable to Capitalized Lease
Obligations) 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 preceding Business Day); and (c)
notwithstanding the immediately preceding clauses (a) and (b), no 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
17
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. A 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.
"IRT" means IRT Property Company.
"L/C Commitment Amount" equals $20,000,000.
"L/C Termination Date" means the date which is seven (7) Business Days
prior to the Termination Date.
"Land" means fully entitled unimproved land.
"Leasing Rate" means, with respect to any Unencumbered Pool Property
(including CIP) at any time, the ratio, expressed as a percentage, of (a) the
net rentable square footage of such Property actually leased to tenants paying
rent pursuant to binding leases as to which no material monetary default has
occurred and is continuing to (b) the aggregate net rentable square footage of
such Property.
"Lender" means each financial institution from time to time party
hereto as a "Lender" or a "Designated Lender," together with its respective
successors and permitted assigns, and, as the context requires, includes the
Swingline Lender; provided, however, that the term "Lender" shall exclude each
Designated Lender when used in reference to any Loan other than a Bid Rate Loan,
the Commitments or terms relating to any Loan other than a Bid Rate Loan and the
Commitments and shall further exclude each Designated Lender for all other
purposes hereunder except that any Designated Lender which funds a Bid Rate Loan
shall, subject to Section 13.6(d), have the rights (including the rights given
to a Lender contained in Sections 13.2 and 13.10) and obligations of a Lender
associated with holding such Bid Rate Loan.
"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 Administrative Agent in writing from time
to time.
"Letter of Credit" has the meaning given that term in Section 2.2(a).
"Letter of Credit Collateral Account" means a special deposit account
accruing interest in favor of Borrower maintained by the Administrative Agent
and under its sole dominion and control.
18
"Letter of Credit Documents" means, with respect to any Letter of
Credit, collectively, any application therefor, any certificate or other
document presented in connection with a drawing under such Letter of Credit and
any other agreement, instrument or other document governing or providing for (a)
the rights and obligations of the parties concerned or at risk with respect to
such Letter of Credit or (b) any collateral security for any of such
obligations.
"Letter of Credit Liabilities" means, without duplication, at any time
and in respect of any Letter of Credit, the sum of (a) the Stated Amount of such
Letter of Credit plus (b) the aggregate unpaid principal amount of all
Reimbursement Obligations of the Borrower at such time due and payable in
respect of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Lender (other than the Lender then acting as Administrative Agent)
shall be deemed to hold a Letter of Credit Liability in an amount equal to its
participation interest under Section 2.2(i) in the related Letter of Credit, and
the Lender then acting as Administrative Agent shall be deemed to hold a Letter
of Credit Liability in an amount equal to its retained interest in the related
Letter of Credit after giving effect to the acquisition by the Lenders (other
than the Lender then acting as Administrative Agent) of their participation
interests under such Section.
"LIBOR" means, for any LIBOR Loan for any Interest Period therefor,
the average rate of interest per annum at which deposits in immediately
available funds in Dollars are offered to the Lender then acting as
Administrative 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
Administrative 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 Administrative Agent
shall, in absence of demonstrable error, be conclusive and binding.
"LIBOR Auction" means a solicitation of Bid Rate Quotes setting forth
LIBOR Margin Loans based on LIBOR pursuant to Section 2.4.
"LIBOR Loan" means a Loan bearing interest at a rate based on LIBOR.
"LIBOR Margin Loan" means a Bid Rate Loan the interest rate on which
is determined on the basis of LIBOR pursuant to a LIBOR Auction.
"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, express or implied, under
which any property of such Person is transferred, sequestered or otherwise
identified for the purpose of subjecting the same to the payment of Indebtedness
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.
19
"Loan" means a Revolving Loan, Swingline Loan or Bid Loan, as
applicable.
"Loan Document" means this Agreement, each Note, each Guaranty, each
Letter of Credit Document, the Fee Letter, the Indemnity and Contribution
Agreement 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 Borrower and the Guarantors. Schedule
1.1(B) sets forth the Loan Parties in addition to the Borrower as of the
Effective Date.
"Material Adverse Effect" means a materially adverse effect on (a) the
business, assets, liabilities, financial condition, or results of operations of
the Borrower and its Subsidiaries taken as a whole, (b) the ability of the
Borrower or any other Loan Party to perform its obligations under any Loan
Document to which it is a party, (c) the validity or enforceability of any of
the Loan Documents, (d) the rights and remedies of the Lenders and the
Administrative Agent under any of the Loan Documents or (e) the timely payment
of the principal of or interest on the Loans or other amounts payable in
connection therewith.
"Material Contract" means (a) each property management agreement, if
any, not terminable on thirty (30) days' notice with respect to an Eligible
Property and (b) any other contract or other arrangement (other than Loan
Documents), whether written or oral, to which 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 Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $3,000,000.
"Maximum Availability" means, at any time, (a) the Unencumbered Pool
Value divided by (i) at any time prior to March 31, 2004, 1.667, and (ii) at any
time thereafter, 1.70, minus (b) all Unsecured Liabilities of the Borrower and
its Subsidiaries (not including the Loans or Letter of Credit Liabilities made
or incurred hereunder) determined on a consolidated basis.
"Moody's" means Xxxxx'x Investors Service, Inc.
"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.
"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 (5) plan years made contributions, including
for these purposes any Person which ceased to be a member of the ERISA Group
during such 5-year period.
"Net Operating Income" means, for any Property and for a given period,
the sum (without duplication) of (a) rents and other revenues earned in the
ordinary course from such
20
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 minus, to the extent
not already covered in subsection (b) above, (c) the Reserve for Replacements
for such Property for such period minus (d) the greater of (i) the actual
property management fee paid during such period with respect to such Property
and (ii) an imputed management fee in an amount equal to three percent (3%) of
the gross revenues for such Property for such period, 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.
"Non-Guarantor Entity" means: (a) any Subsidiary or Unconsolidated
Affiliate of the Borrower that is not required to become a party to the Guaranty
under Section 8.14(a), and (b) any Preferred Stock Entity or non-Voting Stock
Subsidiary and any Subsidiary or Unconsolidated Affiliate of any Preferred Stock
Entity or non-Voting Stock Subsidiary.
"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 exceptions to recourse liability in a form
reasonably acceptable to the Administrative Agent) is contractually limited to
specific assets of such Person encumbered by a Lien securing such Indebtedness.
"Note" means a Revolving Note, a Bid Rate Note or a Swingline Note.
"Notice of Borrowing" means a notice substantially in the form of
Exhibit D-1 to be delivered to the Administrative Agent pursuant to Section
2.1(b) evidencing the Borrower's request for a borrowing of Revolving Loans.
"Notice of Continuation" means a notice substantially in the form of
Exhibit E to be delivered to the Administrative Agent pursuant to Section 2.9
evidencing the Borrower's request for the Continuation of a LIBOR Loan.
"Notice of Conversion" means a notice substantially in the form of
Exhibit F to be delivered to the Administrative Agent pursuant to Section 2.10
evidencing the Borrower's request for the Conversion of a Loan from one Type to
another Type.
"Notice of Swingline Borrowing" means a notice substantially in the
form of Exhibit D-2 to be delivered to the Administrative Agent pursuant to
Section 2.3(b) evidencing the Borrower's request for a borrowing of Swingline
Loans.
21
"Obligations" means, individually and collectively: (a) the aggregate
principal balance of, and all accrued and unpaid interest on, all Loans; (b) all
Reimbursement Obligations and all other Letter of Credit Liabilities; and (c)
all other indebtedness, liabilities, obligations, covenants and duties of the
Borrower or any of the other Loan Parties owing to the Administrative 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.
"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.
"Officer's Certificate" means a certificate signed by a specified
officer of a Person certifying as to the matters set forth therein.
"Operating Property Value" means, as of a given date, (a) EBITDA of
the Borrower and its Subsidiaries for the fiscal quarter most recently ended
multiplied by four (4) and divided by 9.125%, plus (b) EBITDA from management
activities for the fiscal quarter most recently ended multiplied by four (4) and
divided by 20%. For purposes of determining the component of Operating Property
Value under clause (a) above, the following shall be excluded: (i) EBITDA from
Properties acquired by the Borrower or any Subsidiary during the immediately
preceding fiscal quarter of the Borrower or disposed of by any such Person
during the immediately preceding fiscal quarter of the Borrower, (ii) EBITDA
from management activities, and (iii) if applicable, EBITDA from CIP.
"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.
"Participant" has the meaning given that term in Section 13.6(b).
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor agency.
22
"Permitted Liens" means (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 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 or impair the 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 the Borrower; and (e) Liens in favor of the
Administrative 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 (5) 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 four percent (4%) 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.
"Preferred Stock Entity" means any Person (other than a Subsidiary) in
whom the Borrower owns, directly or indirectly, at least ninety-five (95%) of
the Preferred Stock or other equity interests which are not Voting Stock and
which Preferred Stock or other equity interests entitle the Borrower to receive
the majority of all economic benefits associated with ownership of all equity
interests issued by such Person.
"Property" means a parcel (or group of related parcels) of real
property developed (or to be developed).
23
"Pro Rata Share" means, as to each Lender, the ratio, expressed as a
percentage, of (a) the amount of such Lender's Commitment to (b) the Total
Commitment Amount; provided, however, that if at the time of determination the
Commitments have terminated or been reduced to zero, the "Pro Rata Share" of
each Lender shall be the Pro Rata Share of such Lender in effect immediately
prior to such termination or reduction. The Pro Rata Shares of Lenders as of the
Agreement Date are as set forth on Schedule 1.1(A) hereto, and shall be modified
from time to time to reflect any assignments to or by such Lender effected in
accordance with Section 13.6.
"Rating Agencies" means S&P, Moody's and any other nationally
recognized securities rating agency selected by the Borrower and approved of by
the Administrative Agent in writing.
"Recourse Indebtedness" means Indebtedness that is not Nonrecourse
Indebtedness.
"Recurring Capital Expenditures" means capital expenditures made in
respect of a Property for maintenance of such Property and replacement of items
due to ordinary wear and tear including, but not limited to, expenditures made
for maintenance or replacement of carpeting, roofing materials, mechanical
systems, electrical systems and other structural systems and expenditures
relating to tenant improvements and leasing commissions. "Recurring Capital
Expenditures" shall not include any of the following (a) improvements to the
appearance of such Property or any other major upgrade or renovation of such
Property not necessary for proper maintenance or marketability of such Property;
(b) capital expenditures for seismic upgrades or (c) capital expenditures for
deferred maintenance for such Property existing at the time such Property was
acquired by the Borrower or a Subsidiary.
"Redevelopment Property" means a Property (a) on which the existing
building or other improvements are undergoing renovation and redevelopment and
for which any of the following has occurred (i) construction has commenced, or
(ii) the Borrower, any Subsidiary or any Unconsolidated Affiliate, as the case
may be, has entered into a binding construction contract or (iii) the Borrower,
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 a Leasing Rate of eighty
percent (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 or real property
being developed by third parties with related indebtedness that the Borrower,
any Subsidiary or any Unconsolidated Affiliate has guaranteed or as to which any
such Person is otherwise obligated. A Redevelopment Property on which all
improvements (other than tenant improvements on unoccupied space) related to the
development of such Property have been substantially completed for at least
twelve (12) months shall cease to constitute a Redevelopment Property
notwithstanding the fact that such Property has not achieved a Leasing Rate of
at least eighty percent (80%).
"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
24
Governors of the Federal Reserve System) or the adoption or making after such
date of any written 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
written request or directive regarding capital adequacy.
"Reimbursement Obligation" means the absolute, unconditional and
irrevocable obligation of the Borrower to reimburse the Administrative Agent for
any drawing honored by the Administrative Agent under a Letter of Credit.
"REIT" means a Person which is properly taxable as a "real estate
investment trust" under the Internal Revenue Code.
"Requisite Lenders" means, as of any date, Lenders having at least
66-2/3% of the Total Commitment Amount, or, if the Commitments have been
terminated or reduced to zero, Lenders holding at least 66 2/3% of the principal
amount of the Loans then outstanding and Letter of Credit Liabilities.
"Reserve for Replacements" means, for any period and with respect to
any Property, an amount equal to (a) the aggregate square footage of all
completed space of such Property times (b) $0.15 times (c) the number of days in
such period divided by (d) 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 a proportionate share of all
real property of all Unconsolidated Affiliates.
"Restricted Payment" means: (a) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock or other
Equity Interest of the Borrower or any of its Subsidiaries now or hereafter
outstanding, except a dividend payable solely in shares of that class of stock
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 of any class of stock or other Equity
Interest of the Borrower or any of its Subsidiaries now or hereafter
outstanding; (c) any payment or prepayment of principal of, premium, if any, or
interest on, redemption, conversion, exchange, purchase, retirement, defeasance,
sinking fund or similar payment with respect to, any Subordinated Debt; and (d)
any payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any class of stock of the
Borrower or any of its Subsidiaries now or hereafter outstanding.
"Revolving Loan" means a loan made by a Lender to the Borrower
pursuant to Section 2.1(a).
"Revolving Note" has the meaning given that term in Section 2.11.
"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.
25
"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.
"Stated Amount" means the amount available to be drawn by a
beneficiary under a Letter of Credit from time to time, as such amount may be
increased or reduced from time to time in accordance with the terms of such
Letter of Credit.
"Subordinated Debt" means Indebtedness for money borrowed of the
Borrower or any of its Subsidiaries that is subordinated in right of payment and
otherwise to the Loans and the other Obligations in a manner satisfactory to the
Administrative Agent in its sole and absolute discretion.
"Subsidiary" means each Person (a) with respect to which more than
fifty percent (50%) of the stock, capital or income interests are owned,
directly or indirectly, by Borrower or (b) the financial results of which are
consolidated under GAAP in the financial statements of Borrower.
"Substantial Amount" means, at the time of determination thereof, an
amount in excess of thirty percent (30%) of total consolidated assets (exclusive
of depreciation) at such time of the Borrower and its Subsidiaries determined on
a consolidated basis.
"Swingline Commitment" means the Swingline Lender's obligation to make
Swingline Loans pursuant to Section 2.3 in an amount up to, but not exceeding
the amount set forth in Section 2.3(a).
"Swingline Lender" means Administrative Agent, in its capacity
pursuant to Section 2.3.
"Swingline Loan" means a loan made by the Swingline Lender to the
Borrower pursuant to Section 2.3.
"Swingline Note" means a promissory note of the Borrower substantially
in the form of Exhibit G-2, payable to the order of the Swingline Lender in a
principal amount equal to the amount of the Swingline Commitment as originally
in effect and otherwise duly completed.
"Swingline Termination Date" means the date which is seven (7)
Business Days prior to the Termination Date.
26
"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
Borrower, increases in accumulated depreciation and amortization 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 3.12.
"Termination Date" means February 12, 2006, as such date may be
extended in accordance with Section 2.15.
"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 one hundred percent (100%) occupancy, 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 Commitment Amount" means, at any time, the then aggregate
amount of the Commitments of all Lenders hereunder. The Total Commitment Amount
is $340,000,000 as of the Effective Date, and is subject to increase in
accordance with Section 2.14.
"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
(excluding any liability associated with tenant deposits), together with
(without duplication):
(a) all Indebtedness of such Person (whether or not
Nonrecourse Indebtedness and whether or not secured by a Lien),
including without limitation, Capitalized Lease Obligations;
(b) all accounts payable and accrued expenses of such
Person;
27
(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 the balance sheet of such Person;
(f) all Contingent Obligations of such Person including,
without limitation, all Guarantees of Indebtedness by such Person;
(g) all liabilities of any Unconsolidated Affiliate of such
Person, which liabilities such Person has Guaranteed or is otherwise
obligated on a recourse basis; and
(h) 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 the
contract if, at such time, the seller of such real property would be entitled to
specifically enforce the contract against such Person, otherwise, (ii) the
aggregate amount of due diligence deposits, xxxxxxx money payments and other
similar payments made by such Person under the contract which, at such time,
would be subject to forfeiture upon termination of the 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 the contract assuming performance by the seller of its
obligations under the 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.
For purposes of this definition, if the assets of a Subsidiary of a
Person consist solely of Equity Interests in one Unconsolidated Affiliate of
such Person and such Person is not otherwise obligated in respect of the
Indebtedness of such Unconsolidated Affiliate, then only such Person's Ownership
Share of the Indebtedness of such Unconsolidated Affiliate shall be included as
Total Liabilities of such Person.
"Type" with respect to any Revolving Loan, refers to whether such Loan
is a LIBOR Loan or a Base Rate Loan, or in the case of a Bid Rate Loan only, an
Absolute Rate Loan or a LIBOR Margin Loan.
"UCC" means the Uniform Commercial Code as in effect in any applicable
jurisdiction.
28
"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.
"Unencumbered Net Operating Income" means, for any period, the
aggregate Net Operating Income for such period of all Unencumbered Pool
Properties (or if such Property is owned by a Subsidiary, any of the Borrower's
direct or indirect ownership interest in such Subsidiary) that were unencumbered
by Liens as of the last day of such period.
"Unencumbered Pool Certificate" means a report, certified by the chief
financial officer or treasurer of the Borrower, substantially in the form of
Exhibit B, setting forth the calculations required to establish the Unencumbered
Pool Values of each Unencumbered Pool Property as of a specified date and
certifying that each Unencumbered Pool Property remains an Eligible Property,
all in form and detail satisfactory to the Administrative 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, at any time, to be an Eligible Property.
"Unencumbered Pool Value" means the sum of:
(a) the Net Operating Income of each Unencumbered Pool
Property (other than a Property referred to in clause (b) or (c)
below) for the fiscal quarter most recently ended times four (4) and
divided by 9.25% plus
(b) the acquisition cost of any Unencumbered Pool Property
not owned for the entire prior fiscal quarter period plus
(c) the aggregate book value of any Unencumbered Pool
Property constituting CIP, as of the last day of the fiscal quarter
most recently ended.
provided that no more than fifteen percent (15%) of the Unencumbered
Pool Value may be attributable to the book value of CIP, no more than
ten percent (10%) of the Unencumbered Pool Value may be attributable
to any one Eligible Property, no more than five percent (5%) of the
Unencumbered Pool Value may be attributable to non-retail Properties,
and the Unencumbered Pool Value shall be adjusted from time to time to
delete one or more Properties such that the weighted average Leasing
Rate for the Unencumbered Pool Properties at all times equals or
exceeds eighty percent (80%).
"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
29
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 Interest Expense" means
Interest Expense on Borrower's and any Subsidiary's Unsecured Liabilities, plus
Borrower's Ownership Share of Interest Expense on Unsecured Liabilities with
respect to Unconsolidated Affiliates.
"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.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even if the right so
to vote has been suspended by the happening of such a contingency.
"Xxxxx Fargo" means Xxxxx Fargo Bank, National Association, and its
successors and permitted assigns.
"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 Person or one or more other
Subsidiaries of such Person or by such Person and one or more other Subsidiaries
of such Person.
General; References to San Francisco 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, and all financial reporting by Borrower shall
be on a consolidated basis. 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 Borrower 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
30
Agreement. Unless otherwise indicated, all references to time are references to
San Francisco, California time.
CREDIT FACILITY
Revolving Loans.
Generally. Subject to the terms and conditions hereof, including without
limitation, Section 2.14, during the period from the Effective Date to but
excluding the Termination Date, each Lender severally and not jointly agrees to
make Revolving Loans 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 Pro Rata Share of the Maximum
Availability. Subject to the terms and conditions of this Agreement, during the
period from the Effective Date to but excluding the Termination Date, the
Borrower may borrow, repay and reborrow Revolving Loans hereunder.
Requesting Revolving Loans. The Borrower shall give the Administrative
Agent notice pursuant to a Notice of Borrowing of each borrowing of Revolving
Loans. Each Notice of Borrowing shall be delivered to the Administrative Agent
before 9:00 a.m. (i) in the case of LIBOR Loans, on the date three (3) Business
Days prior to the proposed date of such borrowing and (ii) in the case of Base
Rate Loans, on the date one (1) Business Day prior to the proposed date of such
borrowing. The Administrative Agent shall transmit by telecopy the Notice of
Borrowing (or the information contained in such Notice of Borrowing) to each
Lender promptly upon receipt by the Administrative Agent. Each Notice of
Borrowing shall be irrevocable once received by Administrative Agent and binding
on the Borrower.
Disbursements of Revolving Loan Proceeds. No later than 9:00 a.m. on the
date specified in the Notice of Borrowing, each Lender shall make available for
the account of its applicable Lending Office to the Administrative Agent, in
immediately available funds, the proceeds of the Revolving Loan to be made by
such Lender. With respect to Revolving Loans to be made after the Effective
Date, unless the Administrative Agent shall have been notified by any Lender
prior to the specified date of borrowing that such Lender does not intend to
make available to the Administrative Agent the Revolving Loan to be made by such
Lender on such date, the Administrative Agent may assume that such Lender will
make the proceeds of such Revolving Loan available to the Administrative Agent
on the date of the requested borrowing as set forth in the Notice of Borrowing
and the Administrative Agent may (but shall not be obligated to), in reliance
upon such assumption, make available to the Borrower the amount of such
Revolving Loan to be provided by such Lender. Subject to satisfaction of the
applicable conditions set forth in Article VI for such borrowing, the
Administrative Agent shall make the proceeds of such borrowing available to the
Borrower no later than 11:00 a.m. on the date and at the account specified by
the Borrower in such Notice of Borrowing.
Letters of Credit.
Letters of Credit. Subject to the terms and conditions of this Agreement,
the Administrative Agent, on behalf of the Lenders, agrees to issue for the
account of the Borrower during the
31
period from and including the Effective Date to, but excluding, the L/C
Termination Date one or more standby letters of credit (each a "Letter of
Credit") up to a maximum aggregate Stated Amount at any one time outstanding not
to exceed the L/C Commitment Amount.
Terms of Letters of Credit. At the time of issuance, the amount, form,
terms and conditions of each Letter of Credit shall be subject to approval by
the Administrative Agent and the Borrower. Notwithstanding the foregoing, in no
event may (i) the expiration date of any Letter of Credit extend beyond the L/C
Termination Date, (ii) any Letter of Credit have initial duration in excess of
one year, or (iii) any Letter of Credit contain an automatic renewal provision
which (x) would allow such Letter of Credit to be renewed more often than
annually or (y) would allow, after giving effect to all renewal periods, the
expiration date of such Letter of Credit to extend beyond the L/C Termination
Date. The initial Stated Amount of each Letter of Credit shall be at least
$500,000.
Requests for Issuance of Letters of Credit. The Borrower shall give the
Administrative Agent written notice at least five (5) Business Days prior to the
requested date of issuance of a Letter of Credit, such notice to describe in
reasonable detail the proposed terms of such Letter of Credit and the nature of
the transactions or obligations proposed to be supported by such Letter of
Credit, and in any event shall set forth with respect to such Letter of Credit
(i) the proposed initial Stated Amount, (ii) the beneficiary, and (iii)
expiration date. The Borrower shall also execute and deliver such customary
applications and agreements for standby letters of credit, and other forms as
requested from time to time by the Administrative Agent. Provided the Borrower
has given the notice prescribed by the first sentence of this subsection and
delivered such application and agreements referred to in the preceding sentence,
subject to the other terms and conditions of this Agreement, including the
satisfaction of any applicable conditions precedent set forth in Article VI, the
Administrative Agent shall issue the requested Letter of Credit on the requested
date of issuance for the benefit of the stipulated beneficiary but in no event
prior to the date five (5) Business Days following the date after which the
Administrative Agent has received all of the items required to be delivered to
it under this subsection. Upon the written request of the Borrower, the
Administrative Agent shall deliver to the Borrower a copy of (i) any Letter of
Credit proposed to be issued hereunder prior to the issuance thereof and (ii)
each issued Letter of Credit within a reasonable time after the date of issuance
thereof. To the extent any term of a Letter of Credit Document is inconsistent
with a term of any Loan Document, the term of such Loan Document shall control.
Reimbursement Obligations. Upon receipt by the Administrative Agent from
the beneficiary of a Letter of Credit of any demand for payment under such
Letter of Credit, the Administrative Agent shall promptly notify the Borrower of
the amount to be paid by the Administrative Agent as a result of such demand and
the date on which payment is to be made by the Administrative Agent to such
beneficiary in respect of such demand. The Borrower hereby absolutely,
unconditionally and irrevocably agrees to pay and reimburse the Administrative
Agent for the amount of each demand for payment under such Letter of Credit at
or prior to the date on which payment is to be made by the Administrative Agent
to the beneficiary thereunder, without presentment, demand, protest or other
formalities of any kind. Upon receipt by the Administrative Agent of any payment
in respect of any Reimbursement Obligation, the
32
Administrative Agent shall promptly pay to each Lender that has acquired a
participation therein under the second sentence of Section 2.2(i) such Lender's
Pro Rata Share of such payment.
Manner of Reimbursement. Upon its receipt of a notice referred to in the
immediately preceding subsection (d), the Borrower shall advise the
Administrative Agent whether or not the Borrower intends to borrow hereunder to
finance its obligation to reimburse the Administrative Agent for the amount of
the related demand for payment and, if it does, the Borrower shall submit a
timely Notice of Borrowing as provided in Section 2.1(b). If the Borrower fails
to so advise the Administrative Agent, or if the Borrower fails to reimburse the
Administrative Agent for a demand for payment under a Letter of Credit by the
date of such payment, then (i) if the applicable conditions contained in Article
VI would permit the making of Revolving Loans, the Borrower shall be deemed to
have requested a borrowing of Revolving Loans (which shall be Base Rate Loans)
in an amount equal to the unpaid Reimbursement Obligation and the Administrative
Agent shall give each Lender prompt notice of the amount of the Revolving Loan
to be made available to the Administrative Agent not later than 11:00 a.m. and
(ii) if such conditions would not permit the making of Revolving Loans, the
provisions of subsection (j) of this Section shall apply.
Effect of Letters of Credit on Commitments. Upon the issuance by the
Administrative Agent of any Letter of Credit and until such Letter of Credit
shall have expired or been terminated, the Commitment of each Lender shall be
deemed to be utilized for all purposes of this Agreement in an amount equal to
the product of (i) such Lender's Pro Rata Share and (ii) the sum of (A) the
Stated Amount of such Letter of Credit plus (B) any related Reimbursement
Obligations then outstanding.
Administrative Agent's Duties Regarding Letters of Credit; Unconditional
Nature of Reimbursement Obligation. In examining documents presented in
connection with drawings under Letters of Credit and making payments under such
Letters of Credit against such documents, the Administrative Agent shall only be
required to use the same standard of care as it uses in connection with
examining documents presented in connection with drawings under letters of
credit in which it has not sold participations and making payments under such
letters of credit. The Borrower assumes all risks of the acts and omissions of,
or misuse of the Letters of Credit by, the respective beneficiaries of such
Letters of Credit. In furtherance and not in limitation of the foregoing,
neither the Administrative Agent nor any of the Lenders shall be responsible for
(i) the form, validity, sufficiency, accuracy, genuineness or legal effects of
any document submitted by any party in connection with the application for and
issuance of or any drawing honored under any Letter of Credit even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any Letter of
Credit, or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason; (iii) failure
of the beneficiary of any Letter of Credit to comply fully with conditions
required in order to draw upon such Letter of Credit; (iv) errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail,
cable, telex, telecopy or otherwise, whether or not they be in cipher; (v)
errors in interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit, or of the proceeds thereof; (vii) the
33
misapplication by the beneficiary of any Letter of Credit, or of the proceeds of
any drawing under any Letter of Credit; or (viii) any consequences arising from
causes beyond the control of the Administrative Agent or the Lenders. None of
the above shall affect, impair or prevent the vesting of any of the
Administrative Agent's rights or powers hereunder. Any action taken or omitted
to be taken by the Administrative Agent under or in connection with any Letter
of Credit, if taken or omitted in the absence of gross negligence or willful
misconduct, shall not create against the Administrative Agent any liability to
the Borrower or any Lender. In this connection, the obligation of the Borrower
to reimburse the Administrative Agent for any drawing made under any Letter of
Credit shall be absolute, unconditional and irrevocable and shall be paid
strictly in accordance with the terms of this Agreement or any other applicable
Letter of Credit Document under all circumstances whatsoever, including without
limitation, the following circumstances: (A) any lack of validity or
enforceability of any Letter of Credit Document or any term or provisions
therein; (B) any amendment or waiver of or any consent to departure from all or
any of the Letter of Credit Documents; (C) the existence of any claim, setoff,
defense or other right which the Borrower may have at any time against the
Administrative Agent, any Lender, any beneficiary of a Letter of Credit or any
other Person, whether in connection with this Agreement, the transactions
contemplated hereby or in the Letter of Credit Documents or any unrelated
transaction; (D) any breach of contract or dispute between the Borrower, the
Administrative Agent, any Lender or any other Person; (E) any demand, statement
or any other document presented under a Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein or
made in connection therewith being untrue or inaccurate in any respect
whatsoever; (F) any non-application or misapplication by the beneficiary of a
Letter of Credit or of the proceeds of any drawing under such Letter of Credit;
(G) payment by the Administrative Agent under the Letter of Credit against
presentation of a draft or certificate which does not strictly comply with the
terms of the Letter of Credit; and (H) any other act, omission to act, delay or
circumstance whatsoever that might, but for the provisions of this Section,
constitute a legal or equitable defense to or discharge of the Borrower's
Reimbursement Obligations.
Amendments, Etc. The issuance by the Administrative Agent of any amendment,
supplement or other modification to any Letter of Credit shall be subject to the
same conditions applicable under this Agreement to the issuance of new Letters
of Credit (including, without limitation, that the request therefor be made
through the Administrative Agent), and no such amendment, supplement or other
modification shall be issued unless either (i) the respective Letter of Credit
affected thereby would have complied with such conditions had it originally been
issued hereunder in such amended, supplemented or modified form or (ii) the
Requisite Lenders shall have consented thereto. In connection with any such
amendment, supplement or other modification, the Borrower shall pay the fees, if
any, payable under the last sentence of Section 3.6(e).
Lenders' Participation in Letters of Credit. Immediately upon the issuance
by the Administrative Agent of any Letter of Credit each Lender shall be deemed
to have absolutely, irrevocably and unconditionally purchased and received from
the Administrative Agent, without recourse or warranty, an undivided interest
and participation to the extent of such Lender's Pro Rata Share of the liability
of the Administrative Agent with respect to such Letter of Credit and each
Lender thereby shall absolutely, unconditionally and irrevocably assume, as
primary
34
obligor and not as surety, and shall be unconditionally obligated to the
Administrative Agent to pay and discharge when due, such Lender's Pro Rata Share
of the Administrative Agent's liability under such Letter of Credit. In
addition, upon the making of each payment by a Lender to the Administrative
Agent in respect of any Letter of Credit pursuant to the immediately following
subsection (j), such Lender shall, automatically and without any further action
on the part of the Administrative Agent or such Lender, acquire (i) a
participation in an amount equal to such payment in the Reimbursement Obligation
owing to the Administrative Agent by the Borrower in respect of such Letter of
Credit and (ii) a participation in a percentage equal to such Lender's Pro Rata
Share in any interest or other amounts payable by the Borrower in respect of
such Reimbursement Obligation (other than the Fees payable to the Administrative
Agent pursuant to the last sentence of Section 3.6(e)).
Payment Obligation of Lenders. Each Lender severally agrees to pay to the
Administrative Agent on demand in immediately available funds in Dollars the
amount of such Lender's Pro Rata Share of each drawing paid by the
Administrative Agent under each Letter of Credit to the extent such amount is
not reimbursed by the Borrower pursuant to Section 2.2(d). Each such Lender's
obligation to make such payments to the Administrative Agent under this
subsection, and the Administrative Agent's right to receive the same, shall be
absolute, irrevocable and unconditional and shall not be affected in any way by
any circumstance whatsoever, including without limitation, (i) the failure of
any other Lender to make its payment under this subsection, (ii) the financial
condition of the Borrower or any other Loan Party, (iii) the existence of any
Default or Event of Default, including any Event of Default described in Section
11.1(e) or Section 11.1(f) or (iv) the termination of the Commitments. Each such
payment to the Administrative Agent shall be made without any offset, abatement,
withholding or deduction whatsoever.
Information to Lenders. Promptly following any change in Letters of Credit
outstanding, the Administrative Agent shall deliver to each Lender and the
Borrower a notice describing the aggregate amount of all Letters of Credit
outstanding at such time. Upon the request of any Lender from time to time, the
Administrative Agent shall deliver any other information reasonably requested by
such Lender with respect to each Letter of Credit then outstanding. Other than
as set forth in this subsection, the Administrative Agent shall have no duty to
notify the Lenders regarding the issuance or other matters regarding Letters of
Credit issued hereunder. The failure of the Administrative Agent to perform its
requirements under this subsection shall not relieve any Lender from its
obligations under Section 2.2(j).
Swingline Loans.
----------------
Swingline Loans. Subject to the terms and conditions hereof, including
without limitation Section 2.14, the Swingline Lender agrees to make Swingline
Loans to the Borrower, during the period from the Effective Date to but
excluding the Swingline Termination Date, in an aggregate principal amount at
any one time outstanding up to, but not exceeding, $25,000,000, as such amount
may be reduced from time to time in accordance with the terms hereof. If at any
time the aggregate principal amount of the Swingline Loans outstanding at such
time exceeds the Swingline Commitment in effect at such time, the Borrower shall
immediately pay the Administrative Agent for the account of the Swingline Lender
the amount of such excess.
35
Subject to the terms and conditions of this Agreement, the Borrower may borrow,
repay and reborrow Swingline Loans hereunder.
Procedure for Borrowing Swingline Loans. The Borrower shall give the
Administrative Agent and the Swingline Lender notice either telephonically or
pursuant to a Notice of Swingline Borrowing, in the form of Exhibit D-2 attached
hereto, delivered no later than 9:00 a.m. on the proposed date of such
borrowing. Any such telephonic notice shall include all information to be
specified in a written Notice of Swingline Borrowing, and shall be followed
promptly by delivery from Borrower of a completed Notice of Swingline Borrowing.
Not later than 11:00 a.m. on the date of the requested Swingline Loan and
subject to satisfaction of the applicable conditions set forth in Article VI for
such borrowing, the Swingline Lender shall make the proceeds of such Swingline
Loan available to the Borrower in Dollars, in immediately available funds, at
the account specified by the Borrower in the Notice of Swingline Borrowing.
Interest. Swingline Loans shall bear interest at a per annum rate equal to
the Base Rate as in effect from time to time or at such other rate or rates as
the Borrower and the Swingline Lender may agree from time to time in writing.
All accrued and unpaid interest on Swingline Loans shall be payable on the dates
and in the manner provided in Section 2.5 with respect to interest on Base Rate
Loans (except as the Swingline Lender and the Borrower may otherwise agree in
writing in connection with any particular Swingline Loan).
Swingline Loan Amounts, Etc. Each Swingline Loan shall be in the minimum
amount of $500,000 and integral multiples of $100,000 in excess thereof, or such
other minimum amounts agreed to by the Swingline Lender and the Borrower. Any
voluntary prepayment of a Swingline Loan must be in integral multiples of
$100,000 or the aggregate principal amount of all outstanding Swingline Loans
(or such other minimum amounts upon which the Swingline Lender and the Borrower
may agree) and in connection with any such prepayment, the Borrower must give
the Swingline Lender prior written notice thereof no later than 2:00 p.m. on the
day prior to the date of such prepayment. Voluntary prepayments of any Swingline
Loan shall not be subject to any penalty or premium (with the exception of any
breakage fee associated therewith). The Swingline Loans shall, in addition to
this Agreement, be evidenced by the Swingline Note.
Repayment and Participations of Swingline Loans.
------------------------------------------------
The Borrower agrees to repay each Swingline Loan within three (3) Business
Days of demand therefor by the Swingline Lender and, in any event, within seven
(7) Business Days after the date such Swingline Loan was made. Notwithstanding
the foregoing, the Borrower shall repay the entire outstanding principal amount
of, and all accrued but unpaid interest on, the Swingline Loans on the Swingline
Termination Date (or such earlier date as the Swingline Lender and the Borrower
may agree in writing).
If (A), as of 10:00 a.m. on the sixth (6th) Business Day following the
funding of a particular Swingline Loan, Borrower has neither (1) repaid the
Swingline Loan in full, notified the Swingline Lender in writing that Borrower
intends to repay such Swingline Loan in full on the next Business Day, nor
timely delivered a Notice of Borrowing requesting a proposed funding date no
later than the seventh (7th) Business Day after such Swingline funding date,
with respect
36
to a Revolving Loan in a principal amount sufficient to repay such Swingline
Loan in full or (B), as of 11:00 a.m. on the seventh (7th) Business Day
following the funding of a particular Swingline Loan Borrower has not repaid
such Swingline Loan in full or the conditions precedent to any requested
Revolving Loan the proceeds of which were to have been used (in whole or in
part) to repay such Swingline Loan have not been satisfied, or (C) at any time
prior to the repayment of any Swingline Loan, an Event of Default shall exist or
the Loan shall be accelerated, then, in lieu of demanding repayment of any
outstanding Swingline Loan from the Borrower, the Swingline Lender may, on
behalf of the Borrower (which hereby irrevocably directs the Swingline Lender to
act on its behalf), request a borrowing of Base Rate Loans from the Lenders in
an amount equal to the principal balance of such Swingline Loan.
The limitations contained in Section 3.5(a) shall not apply to any
borrowing of Base Rate Loans made pursuant to this subsection. The Swingline
Lender shall give notice to the Administrative Agent of any such borrowing of
Base Rate Loans not later than 11:00 a.m. at least one Business Day prior to the
proposed date of such borrowing.
Each Lender will make available to the Administrative Agent at the
Principal Office for the account of the Swingline Lender, in immediately
available funds, the proceeds of the Base Rate Loan to be made by such Lender.
The Administrative Agent shall pay the proceeds of such Base Rate Loans to the
Swingline Lender, which shall apply such proceeds to repay such Swingline Loan.
If the Lenders are prohibited from making Loans required to be made under
this subsection for any reason whatsoever, including without limitation, the
occurrence of any of the Defaults or Events of Default described in Sections
11.1(e) or 11.1(f), each Lender shall purchase from the Swingline Lender,
without recourse or warranty, an undivided interest and participation to the
extent of such Lender's Pro Rata Share of such Swingline Loan, by directly
purchasing a participation in such Swingline Loan in such amount and paying the
proceeds thereof to the Administrative Agent for the account of the Swingline
Lender in Dollars and in immediately available funds. A Lender's obligation to
purchase such a participation in a Swingline Loan shall be absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including without limitation, (i) any claim of setoff, counterclaim, recoupment,
defense or other right which such Lender or any other Person may have or claim
against the Administrative Agent, the Swingline Lender or any other Person
whatsoever, (ii) the occurrence or continuation of a Default or Event of Default
(including without limitation, any of the Defaults or Events of Default
described in Sections 11.1(e) or 11.1(f), or the termination of any Lender's
Commitment, (iii) the existence (or alleged existence) of an event or condition
which has had or could have a Material Adverse Effect, (iv) any breach of any
Loan Document by the Administrative Agent, any Lender or the Borrower or (v) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing. If such amount is not in fact made available to the Swingline
Lender by any Lender, the Swingline Lender shall be entitled to recover such
amount on demand from such Lender, together with accrued interest thereon for
each day from the date of demand thereof, at the Federal Funds Rate.
If such Lender does not pay such amount forthwith upon the Swingline
Lender's demand therefor, and until such time as such Lender makes the required
payment, the Swingline Lender
37
shall be deemed to continue to have outstanding Swingline Loans in the amount of
such unpaid participation obligation for all purposes of the Loan Documents
(other than those provisions requiring the other Lenders to purchase a
participation therein). Further, such Lender shall be deemed to have assigned
any and all payments made of principal and interest on its Loans, and any other
amounts due it hereunder, to the Swingline Lender to fund Swingline Loans in the
amount of the participation in Swingline Loans that such Lender failed to
purchase pursuant to this Section until such amount has been purchased (as a
result of such assignment or otherwise).
Bid Rate Loans.
---------------
Bid Rate Loans. In addition to borrowings of Revolving Loans but subject to
the limitations of Section 2.13, at any time during the period from the
Effective Date to but excluding the Termination Date, the Borrower may, as set
forth in this Section, request the Lenders to make offers to make Bid Rate Loans
to the Borrower in Dollars, in an aggregate principal amount at any one time
outstanding up to, but not exceeding, $150,000,000. The Lenders may, but shall
have no obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section.
Requests for Bid Rate Loans. When the Borrower in its discretion wishes to
request from the Lenders offers to make Bid Rate Loans, it shall give the
Administrative Agent notice (a "Bid Rate Quote Request") so as to be received no
later than 9:00 a.m. on (x) the Business Day immediately preceding the date of
borrowing proposed therein, in the case of an Absolute Rate Auction and (y) the
date four (4) Business Days prior to the proposed date of borrowing, in the case
of a LIBOR Auction. The Administrative Agent shall deliver to each Lender a copy
of each Bid Rate Quote Request promptly upon receipt thereof by the
Administrative Agent. The Borrower may request offers to make Bid Rate Loans for
up to three (3) different Interest Periods in each Bid Rate Quote Request (for
which purpose Interest Periods in different lettered clauses of the definition
of the term "Interest Period" shall be deemed to be different Interest Periods
even if they are coterminous); provided that the request for each separate
Interest Period shall be deemed to be a separate Bid Rate Quote Request for a
separate borrowing (a "Bid Rate Borrowing"). Each Bid Rate Quote Request shall
be substantially in the form of Exhibit K-1 and shall specify as to each Bid
Rate Borrowing all of the following:
the proposed date of such Bid Rate Borrowing, which shall be a Business
Day;
the aggregate amount of such Bid Rate Borrowing which shall be in a minimum
amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof
which shall not cause any of the limits specified in Section 2.13 to be
violated;
whether the Bid Rate Quote Request is for LIBOR Margin Loans or Absolute
Rate Loans; and
the duration of the Interest Period applicable thereto, which shall not
extend beyond the Termination Date.
The Borrower shall not deliver more than one (1) Bid Rate Quote Requests in
any calendar week.
38
Bid Rate Quotes.
----------------
Each Lender may submit to the Administrative Agent one or more Bid Rate
Quotes, each containing an offer to make a Bid Rate Loan in response to any Bid
Rate Quote Request; provided that, if the Borrower's request under Section
2.4(b) specified more than one Interest Period, such Lender may make a single
submission containing only one Bid Rate Quote for each such Interest Period.
Each Bid Rate Quote must be submitted to the Administrative Agent not later than
7:30 a.m. (x) on the proposed date of borrowing, in the case of an Absolute Rate
Auction and (y) on the date three Business Days prior to the proposed date of
borrowing, in the case of a LIBOR Auction, and in either case the Administrative
Agent shall disregard any Bid Rate Quote received after such time; provided that
the Lender then acting as the Administrative Agent may submit a Bid Rate Quote
only if it notifies the Borrower of the terms of the offer contained therein not
later than thirty (30) minutes prior to the latest time by which the Lenders
must submit applicable Bid Rate Quotes. Subject to Articles VI and XI, any Bid
Rate Quote so made shall be irrevocable. Such Bid Rate Loans may be funded by a
Lender's Designated Lender (if any) as provided in Section 13.6(d); provided,
such Lender shall not be required to specify in its Bid Rate Quote whether such
Bid Rate Loan will be funded by such Designated Lender.
Each Bid Rate Quote made by a Lender shall be substantially in the form of
Exhibit K-2 and shall specify:
the proposed date of borrowing and the Interest Period therefor;
the principal amount of the Bid Rate Loan for which each such
offer is being made; provided that the aggregate principal amount
of all Bid Rate Loans for which a Lender submits Bid Rate Quotes
(x) may be greater or less than the Commitment of such Lender but
(y) shall not exceed the principal amount of the Bid Rate
Borrowing for a particular Interest Period for which offers were
requested;
in the case of an Absolute Rate Auction, the rate of interest per
annum (rounded upwards, if necessary, to the nearest 1/1,000th of
1%) offered for each such Absolute Rate Loan (the "Absolute
Rate");
in the case of a LIBOR Auction, the margin above or below
applicable LIBOR (the "LIBOR Margin") offered for each such LIBOR
Margin Loan, expressed as a percentage (rounded upwards, if
necessary, to the nearest 1/1,000th of 1%) to be added to (or
subtracted from) the applicable LIBOR;
the identity of the quoting Lender; and
any Bid Rate Quote shall be in a minimum amount of $5,000,000 and
integral multiples of $1,000,000 in excess thereof.
No Bid Rate Quote shall contain qualifying, conditional or similar
language or propose terms other than or in addition to those set forth
in the applicable Bid Rate Quote Request
39
and, in particular, no Bid Rate Quote may be conditioned upon
acceptance by the Borrower of all (or some specified minimum) of the
principal amount of the Bid Rate Loan for which such Bid Rate Quote is
being made.
Notification by Administrative Agent. The Administrative Agent shall, as
promptly as practicable after the Bid Rate Quotes are submitted (but in any
event not later than 8:30 a.m. (x) on the proposed date of borrowing, in the
case of an Absolute Rate Margin and (y) on the date three Business Days prior to
the proposed date of borrowing, in the case of a LIBOR Auction), notify the
Borrower of the terms (i) of any Bid Rate Quote submitted by a Lender that is in
accordance with Section 2.4(c) and (ii) of any Bid Rate Quote that amends,
modifies or is otherwise inconsistent with a previous Bid Rate Quote submitted
by such Lender with respect to the same Bid Rate Quote Request. Any such
subsequent Bid Rate Quote shall be disregarded by the Administrative Agent
unless such subsequent Bid Rate Quote is submitted solely to correct a manifest
error in such former Bid Rate Quote. The Administrative Agent's notice to the
Borrower shall specify (A) the aggregate principal amount of the Bid Rate
Borrowing for which offers have been received and (B) the principal amounts and
Absolute Rates or LIBOR Margins, as applicable, so offered by each Lender.
Acceptance by Borrower.
-----------------------
Not later than 9:30 a.m. (x) on the proposed date of borrowing, in the case
of an Absolute Rate Margin and (y) on the date three Business Days prior to the
proposed date of borrowing, in the case of LIBOR Auction, the Borrower shall
notify the Administrative Agent of its acceptance or nonacceptance of the offers
so notified to it pursuant to Section 2.4(d) which notice shall be in the form
of Exhibit K-3. In the case of acceptance, such notice shall specify the
aggregate principal amount of offers for each Interest Period that are accepted.
The failure of the Borrower to give such notice by such time shall constitute
nonacceptance of the relevant Bid Rate Quote. The Borrower may accept any Bid
Rate Quote in whole or in part; provided, that:
the aggregate principal amount of each Bid Rate Borrowing may not
exceed the applicable amount set forth in the related Bid Rate
Quote Request;
the aggregate principal amount of each Bid Rate Borrowing shall
comply with the provisions of Section 2.4(b)(ii) but shall not
cause the limits specified in Section 2.13 to be violated;
acceptance of offers may be made only in ascending order of
Absolute Rates or LIBOR Margins, as applicable, in each case
beginning with the lowest rate so offered;
any acceptance in part by the Borrower shall be in a minimum
amount of $5,000,000 and integral multiples of $1,000,000 in
excess thereof; and
the Borrower may not accept any offer that fails to comply with
Section 2.4(c) or otherwise fails to comply with the requirements
of this Agreement.
40
If offers are made by two or more Lenders with the same Absolute Rates or
LIBOR Margins, as applicable, for a greater aggregate principal amount than the
amount in respect of which offers are accepted for the related Interest Period,
the principal amount of Bid Rate Loans in respect of which such offers are
accepted shall be allocated by the Administrative Agent among such Lenders in
proportion to the aggregate principal amount of such offers. Determinations by
the Administrative Agent of the amounts of Bid Rate Loans shall be conclusive in
the absence of manifest error.
Obligation to Make Bid Rate Loans. The Administrative Agent shall promptly
(and in any event not later than (x) 10:00 a.m. on the proposed date of
borrowing of Absolute Rate Loans and (y) on the date three Business Days prior
to the proposed date of borrowing of LIBOR Margin Loans) notify each Lender that
submitted a Bid Rate Quote as to whose Bid Rate Quote has been accepted and the
amount and rate thereof. A Lender who is notified that it has been selected to
make a Bid Rate Loan may designate its Designated Lender (if any) to fund such
Bid Rate Loan on its behalf, as described in Section 13.6(d) Any Designated
Lender which funds a Bid Rate Loan shall on and after the time of such funding
become the obligee under such Bid Rate Loan and be entitled to receive payment
thereof when due. No Lender shall be relieved of its obligation to fund a Bid
Rate Loan, and no Designated Lender shall assume such obligation, prior to the
time the applicable Bid Rate Loan is funded. Any Lender whose offer to make any
Bid Rate Loan has been accepted shall, not later than 11:00 a.m. on the date
specified for the making of such Loan, make the amount of such Loan available to
the Administrative Agent at its Principal Office in immediately available funds,
for the account of the Borrower. The Administrative Agent shall, subject to the
terms and conditions of this Agreement, make the amount so received available to
the Borrower not later than 12:00 noon on such date by depositing the same, in
immediately available funds, in an account of the Borrower designated by the
Borrower.
No Effect on Commitment. Except for the purpose and to the extent expressly
stated in Section 2.14, the amount of any Bid Rate Loan made by any Lender shall
not constitute a utilization of such Lender's Commitment.
Rates and Payment of Interest on Loans.
---------------------------------------
Rates. The Borrower promises to pay to the Administrative 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:
during such periods as such Loan is a Base Rate Loan, at the Base Rate (as
in effect from time to time);
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;
41
during such periods as such Loan is a Swingline Loan, at the Base Rate (as
in effect from time to time) or such other rate as Borrower and Swingline Lender
may agree from time to time in writing for such Swingline Loan; and
during such periods as such Loan is a Bid Rate Loan, (A) at the Absolute
Rate (as in effect from time to time), in the case of each such Bid Rate Loan
which is an Absolute Rate Loan, and (B) at LIBOR for such Bid Rate Loan for the
Interest Period therefor, plus the applicable LIBOR Margin, in the case of each
such Bid Rate Loan which is a LIBOR Margin Loan.
Notwithstanding the foregoing, during the continuance of an Event of Default,
the Borrower shall pay to the Administrative 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, on all Reimbursement Obligations 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).
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
time to time on demand. All determinations by the Administrative Agent of an
interest rate hereunder shall be conclusive and binding on the Lenders and the
Borrower for all purposes, absent manifest error.
Number of Interest Periods.
---------------------------
There may be no more than eight (8) different Interest Periods
outstanding at the same time, whether in the context of a LIBOR Loan which is a
Revolving Loan or a LIBOR Loan which is a Bid Rate Loan.
Repayment of Loans.
-------------------
The Borrower shall repay the entire outstanding principal amount of, and
all accrued but unpaid interest on, the Revolving Loans on the Termination Date
and the Bid Rate Loans on their respective applicable due dates.
Prepayments.
------------
Optional. Subject to Sections 3.5 and 5.4, the Borrower may prepay any
Loan at any time without premium or penalty. The Borrower shall give the
Administrative Agent at least three (3) Business Days prior written notice of
the prepayment of any Loan, and Administrative Agent shall promptly notify
Lenders thereafter.
42
Mandatory.
----------
Commitment Overadvance. If at any time the aggregate principal amount of
all outstanding Loans, together with the aggregate amount of all Letter of
Credit Liabilities, exceeds the Total Commitment Amount, the Borrower shall
immediately upon demand pay to the Administrative Agent for the ratable benefit
of the Lenders, the amount of such excess.
Unencumbered Pool Overadvance. If at any time the aggregate principal
amount of all outstanding Loans, together with the aggregate amount of all
Letter of Credit Liabilities, exceeds the Maximum Availability, the Borrower
shall within five (5) days of the Borrower obtaining knowledge of the occurrence
of any such excess, deliver to the Administrative 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 fifteen (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, and an amount equal to all Letter of Credit Liabilities for deposit
into the Letter of Credit Collateral Account, shall be immediately due and
payable in full.
Bid Loan Overadvance. If at any time the aggregate principal amount of
all outstanding Bid Rate Borrowings exceeds $150,000,000, the Borrower shall
immediately upon demand pay to the Administrative Agent for the account of the
applicable Lenders, the amount of such excess.
All payments under this subsection (b) shall be applied to pay all
amounts of excess principal outstanding on the applicable Loans and any
applicable Reimbursement Obligations in accordance with Section 3.2, and the
remainder, if any, shall be deposited into the Letter of Credit Collateral
Account for application to any Reimbursement Obligations as and when due.
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 Period. Each
selection of a new Interest Period shall be made by the Borrower giving to the
Administrative 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 telephone or telecopy, confirmed
immediately in writing if by telephone, 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 Administrative
Agent shall notify each Lender by telex or telecopy, 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
43
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 2.10.
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
Administrative 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. on the Business Day prior to the date of any proposed Conversion into Base
Rate Loans and on the third Business Day prior to the date of any proposed
Conversion into LIBOR Loans. Promptly after receipt of a Notice of Conversion,
the Administrative Agent shall notify each Lender by telex or telecopy, or other
similar form of transmission of the proposed Conversion. Subject to the
restrictions specified above, each Notice of Conversion shall be by telephone
(confirmed immediately in writing) or 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.
Notes.
------
The Revolving 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-1 (each a "Revolving 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. The Bid Rate Loans made by
any Lender to the Borrower shall, in addition to this Agreement, also be
evidenced by a Bid Rate Note payable to the order of such Lender substantially
in the form of Exhibit G-3. The Swingline Loans made by the Swingline Lender to
the Borrower shall, in addition to this Agreement, also be evidenced by a
Swingline Note payable to the order of the Swingline Lender substantially in the
form of Exhibit G-2.
Expiration or Termination Date of Letters of Credit Past Termination Date.
If on the date the Commitments are terminated (whether voluntarily, by
reason of the occurrence of an Event of Default or otherwise), there are any
Letters of Credit outstanding hereunder, the Borrower shall, on such date, pay
to the Administrative Agent an amount of money equal to the Stated Amount of
such Letter(s) of Credit for deposit into the Letter of Credit Collateral
Account. If a drawing pursuant to any such Letter of Credit occurs on or prior
to the expiration date of such Letter of Credit, the Borrower authorizes the
Administrative Agent to use the monies deposited in the Letter of Credit
Collateral Account to make payment to the beneficiary with respect to such
drawing or the payee with respect to such presentment. If no drawing occurs on
or prior to the expiration date of such Letter of Credit, the Administrative
44
Agent shall pay to the Borrower (or to whomever else may be legally entitled
thereto) the monies deposited in the Letter of Credit Collateral Account
(together with any accrued interest thereon) with respect to such outstanding
Letter of Credit on or before the date thirty (30) days after the expiration
date of such Letter of Credit.
Amount Limitations.
Notwithstanding any other term of this Agreement or any other Loan
Document, (a) no Lender shall be required to make any Loan, and the
Administrative Agent shall not be required to issue any Letter of Credit or make
any Swingline Loan if, immediately after the making of such Loan (including
Swingline Loans) or issuance of such Letter of Credit the aggregate principal
amount of all outstanding Loans (including Swingline Loans), together with the
aggregate amount of all Letter of Credit Liabilities, would exceed either (i)
the Total Commitment Amount or (ii) the Maximum Availability and (b) the
aggregate principal amount of all outstanding Bid Rate Loans shall not exceed
$150,000,000.
Optional Increase to the Commitment.
(a) Provided that no Event of Default or Default then exists, Borrower
may, in accordance with the provisions of this Section 2.14 and on no more than
three (3) occasions prior to February 12, 2005, request in writing that the then
Total Commitment Amount be increased up to $400,000,000, provided, however, that
no such request shall be for an increase amount less than $20,000,000. Any
request under this Section shall be submitted by Borrower to the Lenders through
Administrative Agent not less than thirty (30) days prior to the proposed
increase, specify the proposed effective date and amount of such increase and be
accompanied by (i) an Officer's Certificate of Borrower stating that no Event of
Default or Default exists as of the date of the request or will result from the
requested increase, (ii) a written consent to the increase in the amount of the
Commitments executed by each Guarantor and (iii) the satisfaction of all
conditions precedent specified in Article VI. Borrower may also specify any fees
offered to those Lenders which agree to an increase in the amount of their
respective Pro Rata Shares of the Total Commitment Amount (which fees may be
variable based upon the amount which any such Lender is willing to assume as an
increase to the amount of its Pro Rata Share of the increased Commitments). The
consent of the Lenders, as such, shall not be required for an increase in the
amount of the Total Commitment Amount pursuant to this Section 2.14.
(b) Each Lender may approve or reject a request for an increase in the
amount of its Pro Rata Share of the Total Commitment Amount in its sole and
absolute discretion and, absent an affirmative written response within fifteen
(15) days after receipt of such request, shall be deemed to have rejected the
request. The rejection of such a request by any number of Lenders shall not
affect Borrower's right to increase the Total Commitment Amount pursuant to this
Section as a result of, and with respect to the Pro Rata Shares of, those
Lenders that approve such increase and such additional Lenders that join this
Agreement in accordance with subsection (e) of this Section 2.14.
Notwithstanding any other provision hereof, no Lender which rejects a request
for an increase in the Total Commitment Amount shall be (i) subject to removal
as a Lender, (ii) obligated to lend any amount greater than its original Pro
Rata Share of the original Total Commitment Amount, or (iii) deemed to be in
default in any respect hereunder.
45
(c) In responding to a request under this Section, each Lender which
is willing to increase the amount of its Pro Rata Share of the increased Total
Commitment Amount shall specify the amount of the proposed increase which it is
willing to assume. Each consenting Lender shall be entitled to participate
ratably (based on its Pro Rata Share of the Commitment before such increase) in
any resulting increase in the Commitment, subject to the right of Administrative
Agent to adjust allocations of the increased Commitment so as to result in the
amounts of the Pro Rata Shares of the Lenders being in integral multiples of
$1,000,000.
(d) If the aggregate principal amount offered to be assumed by the
consenting Lenders is less than the amount requested, Borrower in its sole
discretion may (i) reject the proposed increase in its entirety, (ii) accept the
offered amounts or (iii) designate new lenders who qualify as Eligible Assignees
under Section 13.6 and which are reasonably acceptable to Administrative Agent
as additional Lenders hereunder in accordance with clause (e) of this Section
(each, a "New Lender"), which New Lenders may assume the amount of the increase
in the Commitment that has not been assumed by the consenting Lenders.
(e) Each New Lender designated by Borrower and reasonably acceptable
to Administrative Agent shall become an additional party hereto as a New Lender
concurrently with the effectiveness of the proposed increase in the Commitment
upon its execution of an instrument of joinder to this Agreement which is in
form and substance acceptable to Administrative Agent and which, in any event,
contains the representations, warranties, indemnities and other protections
afforded to Administrative Agent and the other Lenders which would be granted or
made by an eligible assignee under Section 13.6 by means of the execution of an
Assignment and Acceptance Agreement.
(f) Subject to the foregoing, any increase to the Commitment requested
under this Section shall be effective as of the date proposed by Borrower and
shall be in the principal amount equal to (i) the amount which consenting
Lenders are willing to assume as increases to the amount of their respective Pro
Rata Shares plus (ii) the amount offered by any New Lenders. Upon the
effectiveness of any such increase, Borrower shall execute replacement Notes to
each affected Lender and new Notes to each New Lender, and the Pro Rata Share of
each Lender will be adjusted, higher or lower as needed, to give effect to the
increase in the Commitment and set forth in a new Schedule 1.1(A) issued by
Administrative Agent. On or prior to such effective date and as applicable,
certain of the Lenders shall purchase, and certain of the Lenders shall sell, to
one another, the percentage interest in the Commitment as necessary in order to
reallocate the principal balance under the Notes among the Lenders to correspond
to the Pro Rata Shares of the Lenders set forth in the new Schedule 1.1(A)
referred to above, and Borrower shall be obligated to pay any breakage costs
associated therewith.
Extension of the Termination Date.
The Borrower in its sole discretion may request that the Administrative
Agent and the Lenders extend the current Termination Date by one year by
executing and delivering to the Administrative Agent at least ninety (90) days
prior to the current Termination Date, a written request for such extension. The
Administrative Agent shall forward to each Lender a copy of any such request
delivered to the Administrative Agent promptly upon receipt thereof. Subject
46
to satisfaction of the following conditions, the Termination Date shall be
extended for one year: (a) immediately prior to such extension and immediately
after giving effect thereto, no Default or Event of Default shall have occurred
and be continuing, (b) the Borrower shall have paid the Fees payable under
Section 3.6(b) upon exercise of the extension option set forth in this Section
2.15, and (c) all representations and warranties made or deemed made by any Loan
Party in any Loan Document to which any such Loan Party is a party are true and
correct on the effective date of such extension (except for representations or
warranties which expressly relate solely to an earlier date).
PAYMENTS, FEES AND OTHER GENERAL PROVISIONS
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
Administrative 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
Note, specify to the Administrative Agent the amounts payable by the Borrower
hereunder to which such payment is to be applied. Each payment received by the
Administrative 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 Administrative Agent from time to time, for the account of
such Lender at the applicable Lending Office of such Lender. If the
Administrative Agent fails to pay such amount to a Lender within one Business
Day of receipt thereof by the Administrative Agent, the Administrative 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 be payable for the period of such extension.
Pro Rata Treatment.
Except to the extent otherwise provided herein: (a) each borrowing from
Lenders under Section 2.1 shall be made from the Lenders, each payment of the
fees under Sections 3.6(b), 3.6(d) and the first sentence of 3.6(e) shall be
made for the ratable benefit of the Lenders, and each termination or reduction
of the amount of the Commitments pursuant to this Agreement shall be applied to
the respective Commitments of the Lenders, pro rata according to the amounts of
their respective Commitments; (b) each payment or prepayment of principal of
Revolving Loans by the Borrower shall be made for the account of each Lender pro
rata in accordance with the respective unpaid principal amounts of the Revolving
Loans held by them, provided that if immediately prior to giving effect to any
such payment in respect of any Revolving Loans the outstanding principal amount
of the Revolving Loans shall not be held by the Lenders pro rata in accordance
with their respective Commitments in effect at the time such Loans were made,
then
47
such payment shall be applied to the Revolving Loans in such manner as shall
result, as nearly as is practicable, in the outstanding principal amount of the
Revolving Loans being held by the Lenders pro rata in accordance with their
respective Commitments; (c) each payment of interest on Revolving 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; (d) the Conversion and Continuation of Revolving 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 or Continuations of Loans) and the then current Interest
Period for each Lender's portion of each Revolving Loan of such Type shall be
coterminous; (e) each payment or prepayment of principal and/or interest of Bid
Rate Loans by the Borrower pursuant to Section 2.8(b) shall be made for account
of each Lender then owed Bid Rate Loans pro rata in accordance with the
respective unpaid principal amounts of the Bid Rate Loans then owing to each
such Lender; (f) the Lenders' participation in, and payment obligations in
respect of, Swingline Loans under Section 2.3, shall be in accordance with their
respective Pro Rata Shares; and (g) the Lenders' participation in, and payment
obligations in respect of, Letters of Credit under Section 2.2, shall be pro
rata in accordance with their respective Commitments. All payments of principal,
interest, fees and other amounts in respect of the Swingline Loans shall be for
the account of the Swingline Lender only (except to the extent any Lender shall
have acquired a participating interest in any such Swingline Loan pursuant to
Section 2.3).
Sharing of Payments, Setoff, Etc.
The Borrower agrees that, in addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
the Administrative Agent, each Lender and each Participant is hereby authorized
by the Borrower, at any time or from time to time so long as but only so long as
an Event of Default exists 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 Administrative Agent, such
Lender or any affiliate of the Administrative 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. The foregoing rights may be exercised without prior
notice to the Borrower or to any other Person, any such notice being hereby
expressly waived (provided that Administrative Agent shall give after-the-fact
notice to Borrower), but in the case of a Lender or a Participant shall be
subject to receipt of the prior written consent of the Administrative Agent
exercised in its sole discretion. If a Lender shall obtain payment of any
principal of, or interest on, any Loan made by it to 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 11.4, as applicable, such Lender shall promptly
purchase from the other Lenders participations in (or, if and to the extent
specified by
48
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, to the end that all the Lenders shall share the benefit of such
payment (net of any reasonable expenses which may actually be incurred by such
Lender in obtaining or preserving such benefit) pro rata in accordance with the
requirements of Section 3.2 or Section 11.4, as applicable. 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 the 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.
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.
Minimum Amounts.
Borrowings. Each borrowing of Base Rate Loans shall be in an aggregate
minimum amount of $1,000,000 and integral multiples of $100,000 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 $1,000,000
and integral multiples of $100,000 in excess of that amount.
Prepayments. Each voluntary prepayment of Revolving Loans shall be in an
aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in
excess thereof.
Fees.
Loan Fee. The Borrower agrees to pay to the Administrative Agent on or
prior to the Effective Date a loan fee as set forth in the Fee Letter, which
loan fee Administrative Agent shall share with the other Lenders in accordance
with Administrative Agent's separate agreements with such Lenders.
Extension Fee. If, pursuant to Section 2.15, the Borrower exercises its
right to extend the Termination Date, the Borrower agrees to pay to the
Administrative Agent for the account of each Lender an extension fee equal to
two tenths of one percent (0.20%) of the amount of each Lender's Commitment.
Such fees shall be paid to the Administrative Agent upon, and as a condition to,
Borrower's exercise of such extension.
49
Bid Rate Loan Fees. The Borrower agrees to pay to the Administrative
Agent such fees for services rendered by the Administrative Agent in connection
with the Bid Rate Loans as are set forth in the Fee Letter or as shall be
separately agreed upon between the Borrower and the Administrative Agent.
Facility Fees. During the period from the Effective Date to but
excluding the Termination Date, the Borrower agrees to pay to the Administrative
Agent for the ratable benefit of the Lenders a facility fee per annum equal to
the percentage of the Total Commitment Amount set forth in the table below
corresponding to the applicable Level at which the "Applicable Margin" is
determined in accordance with the definition thereof:
---------------- ------------------------------
Level Facility Fee
---------------- ------------------------------
1 0.15%
---------------- ------------------------------
2 0.15%
---------------- ------------------------------
3 0.20%
---------------- ------------------------------
4 0.20%
---------------- --------------------------------
5 0.20%
---------------- --------------------------------
6 0.25%
---------------- --------------------------------
Such fees shall be computed and payable quarterly in arrears on the first day of
each January, April, July and October during the term of this Agreement and on
the Termination Date.
Letter of Credit Fees. The Borrower agrees to pay to the Administrative
Agent for the ratable benefit of the Lenders a letter of credit fee in respect
of each outstanding Letter of Credit at a rate per annum equal to the greater of
(i) the Applicable Margin for LIBOR Loans from time to time in effect multiplied
by the Stated Amount of such Letter of Credit or (ii) $1,000. Such letter of
credit fee shall be payable quarterly in arrears (for the respective number of
days outstanding) on the first day of each January, April, July and October
during the term of such Letter of Credit, provided that the full amount of such
fee shall be immediately due and payable upon any early termination of a Letter
of Credit. The Borrower shall pay directly to the Administrative Agent a
fronting fee for its account with respect to each Letter of Credit issued,
together with from time to time on demand all commissions, charges, costs and
expenses in the amounts customarily charged by the Administrative Agent from
time to time in like circumstances with respect to the issuance of each Letter
of Credit, drawings, amendments and other transactions relating thereto.
Administrative and Other Fees. The Borrower agrees to pay the
administrative, arrangement and other fees of the Administrative Agent as set
forth in the Fee Letter or as may otherwise be agreed to in writing between the
Borrower and the Administrative Agent from time to time.
Computations.
Unless otherwise expressly set forth herein, any accrued interest on any
Loan, any Fees or other Obligations due hereunder shall be computed on the basis
of a year of 360 days and the actual number of days elapsed.
50
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.
Agreement Regarding Interest and Charges.
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 2.5(a)(i) through (iv).
Notwithstanding the foregoing, the parties hereto further agree and stipulate
that all agency fees, syndication fees, facility fees, letter of credit fees,
default charges, funding or "breakage" charges, increased cost charges,
attorneys' fees and reimbursement for costs and expenses paid by the
Administrative Agent or any Lender to third parties or for damages incurred by
the Administrative Agent or any Lender, are charges made to compensate the
Administrative 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 Administrative 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.
Statements of Account.
The Administrative Agent shall, within fifteen (15) days after the end of
each calendar month, account to the Borrower monthly with a written 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
Administrative Agent shall be deemed conclusive upon Borrower absent manifest
error. The Administrative Agent will account to the Borrower on changes in
Letters of Credit in accordance with Section 2.2(k). The failure of the
Administrative Agent to deliver such a statement of accounts shall not relieve
or discharge the Borrower from any of its obligations hereunder.
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
Administrative Agent, then, in addition to the rights and remedies that may be
available to the Administrative 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
51
Loan Documents, including without limitation, any right to vote in respect of,
to consent to or to direct any action or inaction of the Administrative 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
Administrative Agent of any amount required to be paid to the Administrative
Agent hereunder (without giving effect to any notice or cure periods), in
addition to other rights and remedies which the Administrative Agent or the
Borrower may have under the immediately preceding provisions or otherwise, the
Administrative 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 Administrative Agent in respect of a Defaulting
Lender's Loans shall not be paid to such Defaulting Lender and shall be held
uninvested by the Administrative Agent and paid to such Defaulting Lender upon
the Defaulting Lender's curing of its default.
Taxes.
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 Administrative Agent or a Lender (which
for purposes of the exclusions in clauses (i)-(iv) of this Section 3.12(a),
includes any Participant) and the jurisdiction imposing such taxes (other than a
connection arising solely by virtue of the activities of the Administrative
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 income, receipts or branch profits and (iv) any taxes arising after the
Agreement Date solely as a result of or attributable to a Lender changing its
designated Lending Office after the date such Lender becomes a party hereto or
transferring any interest in any Loan to the extent such Lender would not have
been liable for such taxes (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:
pay directly to the relevant Governmental Authority the full amount
required to be so withheld or deducted;
promptly forward to the Administrative Agent an official receipt or other
documentation satisfactory to the Administrative Agent evidencing such payment
to such Governmental Authority; and
52
pay to the Administrative 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 Administrative
Agent or such Lender will equal the full amount that the Administrative Agent or
such Lender would have received had no such withholding or deduction been
required.
Tax Indemnification. If the Borrower fails to pay any Taxes when due to the
appropriate Governmental Authority or fails to remit to the Administrative
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 Administrative Agent and the Lenders for any incremental
Taxes, interest or penalties that may become payable by the Administrative Agent
or any Lender as a result of any such failure. For purposes of this Section, a
distribution hereunder by the Administrative Agent or any Lender to or for the
account of any Lender shall be deemed a payment by the Borrower.
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 Administrative 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 or 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 Administrative 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 Administrative
Agent, if it is organized under the laws of a jurisdiction outside of the United
States of America, if such Lender, Participant or the Administrative 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 Administrative 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 Administrative Agent did not properly
withhold 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 Administrative Agent therefor, including all penalties and interest, any
taxes imposed by any jurisdiction on the amounts payable to the Administrative
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
Administrative Agent. The obligation of the Lenders and Participants under this
Section shall survive the termination of the Commitments, repayment of all
Obligations and the resignation or replacement of the Administrative Agent.
53
UNENCUMBERED POOL PROPERTIES
Inclusion of Unencumbered Pool Properties.
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.
Additional Unencumbered Pool Properties. After the Effective Date, if
Borrower intends to designate an Eligible Property to be included as an
Unencumbered Pool Property from time to time, it will notify the Administrative
Agent of such intention, which notice will include, with respect to such
Eligible Property, (i) an Unencumbered Pool Certificate 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 Administrative Agent or any Lender (through the
Administrative Agent) may reasonably request in connection with the evaluation
of such Eligible Property. Subject to the terms and conditions of this
Agreement, upon the Administrative 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 Administrative Agent.
Termination of Designation as Unencumbered Pool Property.
If Borrower at any time intends to withdraw any Eligible Property from
inclusion as an Unencumbered Pool Property, it shall (a) notify the
Administrative Agent of its intention, and (b) deliver to the Administrative
Agent an Unencumbered Pool Certificate setting forth the calculations
establishing that Borrower will be in compliance with Section 2.13 with giving
effect to such withdrawal (and any concurrent addition of Eligible Properties as
Unencumbered Pool Properties), which calculations shall be in such detail, and
otherwise in such form and substance, as Administrative Agent reasonably
requires. Effective automatically upon receipt of such notice and certificate by
Administrative Agent (or upon any later date stated in such notice), such
Eligible Property shall no longer constitute an Unencumbered Pool Property.
Additionally, 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
Administrative Agent of such Unencumbered Pool Certificate and until such time,
if ever, as Borrower re-designates such Property as an Unencumbered Pool
Property in accordance with Section 4.1(b)) 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.
54
Ineligibility of a Property as Unencumbered Pool Property.
If a Property at any time ceases to be an Eligible Property, such Property
shall automatically no longer constitute an Unencumbered Pool Property, and
Borrower shall immediately (a) notify the Administrative Agent, and (b) deliver
to the Administrative Agent an Unencumbered Pool Certificate setting forth the
calculations establishing that Borrower will be in compliance with Section 2.13
with giving effect to the termination of such Property as an Unencumbered Pool
Property, which calculations shall be in such detail, and otherwise in such form
and substance, as Administrative Agent reasonably requires.
YIELD PROTECTION, ETC.
Additional Costs; Capital Adequacy.
Additional Costs. The Borrower shall promptly pay to the Administrative
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).
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
55
liabilities or assets that it may hold, then, if such Lender so elects by notice
to the Borrower (with a copy to the Administrative 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).
Additional Costs in Respect of Letters of Credit. Without limiting the
obligations of the Borrower under the preceding subsections of this Section (but
without duplication), if as a result of any Regulatory Change or any risk-based
capital guideline or other requirement heretofore or hereafter issued by any
Governmental Authority there shall be imposed, modified or deemed applicable any
tax, reserve, special deposit, capital adequacy or similar requirement against
or with respect to or measured by reference to Letters of Credit and the result
shall be to increase the cost to the Administrative Agent of issuing (or any
Lender of purchasing participations in) or maintaining its obligation hereunder
to issue (or purchase participations in) any Letter of Credit or reduce any
amount receivable by the Administrative Agent or any Lender hereunder in respect
of any Letter of Credit, then, upon demand by the Administrative Agent or such
Lender, the Borrower shall pay immediately to the Administrative Agent for its
account or the account of such Lender, as applicable, from time to time as
specified by the Administrative Agent or a Lender, such additional amounts as
shall be sufficient to compensate the Administrative Agent or such Lender for
such increased costs or reductions in amount.
Notification and Determination of Additional Costs. Each of the
Administrative Agent and each Lender, as the case may be, shall promptly notify
the Borrower of any event occurring after the Agreement Date entitling the
Administrative 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 Administrative Agent or any Lender to give such notice shall not
release the Borrower from any of its obligations hereunder. The Administrative
Agent or such Lender agrees to furnish to the Borrower (and in the case of a
Lender to the Administrative Agent, as well) a certificate setting forth the
basis and amount of each request by the Administrative Agent or such Lender for
compensation under this Section. Determinations by the Administrative Agent or
any Lender of the effect of any Regulatory Change shall be conclusive, provided
that such determinations are made on a reasonable basis and in good faith.
Suspension of LIBOR Loans.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of LIBOR for any Interest Period:
the Administrative Agent reasonably determines (which determination shall
be conclusive, absent manifest error) 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
the Administrative Agent reasonably determines (which determination shall
be conclusive, absent manifest error) that the relevant rates of interest
referred to in the definition of LIBOR
56
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; or
any Lender that has outstanding a Bid Rate Quote with respect to a LIBOR
Margin Loan reasonably determines (which determination shall be conclusive,
absent manifest error) that LIBOR will not adequately and fairly reflect the
cost to such Lender of making or maintaining such LIBOR Margin Loan,
then the Administrative Agent shall give the Borrower and each Lender prompt
notice thereof and, so long as such condition remains in effect, (i) 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 and (ii) in
the case of clause (c) above, no Lender that has outstanding a Bid Rate Quote
with respect to a LIBOR Margin Loan shall be under any obligation to make such
Loan.
Illegality.
Notwithstanding any other provision of this Agreement, if it becomes
unlawful for any 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 Administrative 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).
Compensation.
The Borrower shall pay to the Administrative Agent for the account of each
Lender, upon the request of such Lender through the Administrative Agent, such
amount or amounts as shall be sufficient (in the reasonable opinion of such
Lender) to compensate it for any loss, cost or expense that such Lender
reasonably determines is attributable to:
any payment or prepayment (whether mandatory or optional) of a LIBOR Loan,
or Conversion of a LIBOR Loan or Bid Rate 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
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 or Bid Rate 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; (i) in the case of a LIBOR Loan, an amount equal to the then present
value of (A) the amount of interest that would have accrued on such LIBOR Loan
for the remainder of the Interest Period at the rate
57
applicable to such LIBOR Loan, less (B) 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, Convert or Continue such LIBOR Loan, as applicable,
calculating present value by using as a discount rate LIBOR quoted on such date
and (ii) in the case of a Bid Rate Loan, the sum of such losses and expenses as
the Lender or Designated Lender who made such Bid Rate Loan may reasonably incur
by reason of such prepayment, including without limitation any losses or
expenses incurred in obtaining, liquidating or employing deposits from third
parties. Upon Borrower's request (made through the Administrative Agent), any
Lender seeking 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.
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 Administrative 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:
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
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 Administrative
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 Loans and by such Lender are held pro rata (as
to principal amounts, Types and Interest Periods) in accordance with their
respective Commitments.
Change of Lending Office.
Each Lender agrees that it will use commercially reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate an alternate Lending Office
58
with respect to any of its Loans affected by the matters or circumstances
described in Sections 3.12, 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.
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.
CONDITIONS PRECEDENT
Initial Conditions Precedent.
The obligation of the Lenders to effect or permit the occurrence of the
first Credit Event hereunder, whether as the making of a Loan or the issuance of
a Letter of Credit, is subject to the satisfaction or waiver of the following
conditions precedent:
The Administrative Agent shall have received each of the following, in form
and substance reasonably satisfactory to the Administrative Agent:
counterparts of this Agreement executed by each of the parties hereto;
(A) Revolving Notes executed by Borrower, payable to each Lender, (B) Bid
Rate Notes executed by Borrower, each in the full amount of the potential Bid
Rate Borrowing and one payable to each Lender, and (C) a Swingline Note executed
by Borrower and payable to the Swingline Lender, each complying with the terms
of Section 2.11;
the Guaranty executed by each of the Guarantors initially to be a party
thereto;
an opinion of counsel to the Borrower and such other Loan Parties as
Administrative Agent shall request, addressed to the Administrative Agent and
the Lenders substantially in the form set forth in Exhibit H;
the certificate or articles of incorporation, articles of organization,
certificate of limited partnership, declaration of trust or other comparable
organizational instrument (if any) of (A) the Borrower, certified as of a recent
date by the Secretary of State of the State of organization of such Person, and
(B), each of the other Loan Parties, certified as of a recent date (and with
reference to documents filed and certified by the applicable state Secretary of
State) by the Secretary or Assistant Secretary (or other individual performing
similar functions) of such Person;
59
a certificate of good standing (or certificate of similar meaning) with
respect to the Borrower and each of the other Loan Parties issued as of a recent
date by the Secretary of State of the state of formation of each such Person
and, within thirty (30) days following the Effective Date, 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 owns an Unencumbered Pool Property;
a certificate of incumbency signed by the Secretary or Assistant Secretary
(or other individual performing similar functions) of the Borrower and each of
the other Loan Parties 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, Notices of
Continuation and requests for Letters of Credit;
copies certified by the Secretary or Assistant Secretary (or other
individual performing similar functions) of the Borrower of (x) the by-laws of
Borrower and (y) all corporate or other necessary action taken by Borrower to
authorize the execution, delivery and performance of the Loan Documents to which
it is a party;
an Unencumbered Pool Certificate calculated on a pro forma basis for the
Borrower's fiscal quarter ending December 31, 2002, reflecting the merger of
Borrower with IRT;
a Compliance Certificate calculated on a pro forma basis for the Borrower's
fiscal quarter ending December 31, 2002, reflecting the merger of Borrower with
IRT;
evidence satisfactory to the Administrative Agent that the Fees then due
and payable under Section 3.6, together with all other fees, expenses and
reimbursement amounts due and payable to the Administrative Agent and any of the
Lenders, including without limitation, the fees and expenses of counsel to the
Administrative Agent, have been paid;
evidence that all indebtedness listed on Schedule 6.1(a)(xii) attached
hereto has been or will be satisfied in full concurrently with the initial
funding;
a fully executed and satisfactory Solvency Certificate for each Guarantor
and provided by the Chief Financial Officer of Borrower in the form attached as
Exhibit L hereto;
evidence that the merger of Borrower with IRT shall be substantially
contemporaneously effected immediately following the funding of the first Loan
hereunder;
a certificate from Borrower certifying that all Persons required by Section
8.14 to become Guarantors hereunder have executed a Guaranty, and listing the
Wholly Owned Subsidiaries which are not becoming Guarantors hereunder,
certifying to Administrative Agent and Lenders that such Wholly Owned
Subsidiaries (A) are prohibited from executing a Guaranty by the express
provisions of Indebtedness incurred by such Wholly Owned Subsidiary and (B) such
prohibitions are not currently being waived by the applicable lender; and
60
such other documents and instruments as the Administrative Agent, or any
Lender through the Administrative Agent, may reasonably request.
In the good faith judgment of the Administrative Agent:
There shall not have occurred or become known to the Administrative 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 Borrower and its Subsidiaries
delivered to the Administrative Agent and the Lenders prior to the Agreement
Date that has had or could reasonably be expected to result in a Material
Adverse Effect;
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
The Borrower and the other Loan Parties shall have received all approvals,
consents and waivers, and shall have made or will make contemporaneously with
the making of the first Loan 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 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.
Conditions Precedent to All Loans and Letters of Credit.
The obligations of (i) Lenders to make any Loans, and (ii) the
Administrative Agent to issue Letters of Credit or make any Swingline Loan, are
each subject to the further condition precedent that: (a) no Default or Event of
Default shall exist as of the date of the making of such Loan or date of
issuance of such Letter of Credit or would exist immediately 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 in all material respects on and as of the
date of the making of such Loan or date of issuance of such Letter of Credit
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 Revolving Loans, the Administrative 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
61
of the giving of notice relating to such Credit Event and, unless the Borrower
otherwise notifies the Administrative 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 Administrative Agent and the
Lenders at the time such Loan is made or such Letter of Credit is issued that
all conditions to the making of such Loan or issuing of such Letter of Credit
contained in this Article VI have been satisfied.
Conditions as Covenants.
If the Lenders permit the making of any Loans, or the Administrative Agent
issues a Letter of Credit, 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 five (5) Business Days after the
date of the making of such Loans or the issuance of such Letter of Credit.
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 Administrative
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.
REPRESENTATIONS AND WARRANTIES
Representations and Warranties.
In order to induce the Administrative Agent and each Lender to enter into
this Agreement and to make Loans and, in the case of the Administrative Agent,
to issue Letters of Credit and make Swingline Loans, and, in the case of the
Lenders, to acquire participations in Letters of Credit and Swingline Loans, the
Borrower represents and warrants to the Administrative Agent and each Lender as
follows:
Organization; Power; Qualification. Each of the Loan Parties is a
corporation, partnership or other legal entity, duly organized, validly existing
and in good standing under the jurisdiction of its incorporation or
organization, has the corporate or similar 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 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.
Ownership Structure. Part I of Schedule 7.1(b) is, as of the Effective
Date, a complete and correct list of all Subsidiaries of the Borrower setting
forth for each such Subsidiary, (i) the jurisdiction of organization of such
Person, (ii) each Person holding any Equity Interest in such Person, (iii) the
nature of the Equity Interests held by each such Person and (iv) the percentage
of ownership of such Person represented by such Equity Interests (provided that
non-material errors in such schedule shall not constitute a Default hereunder so
long as all parties which are required to become Guarantors hereunder have in
fact become Guarantors hereunder, notwithstanding such errors). Except as
disclosed in such Schedule, as of the Effective Date (A) either the
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Borrower or one of the other Loan Parties owns, free and clear of all Liens
(other than Permitted Liens), and has the unencumbered right to vote, all
outstanding Equity Interests in each Subsidiary shown to be held by it on such
Schedule, (B) all of the issued and outstanding capital stock of each such
Subsidiary organized as a corporation is validly issued, fully paid and
nonassessable and (C) 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 Subsidiary. Part II of Schedule
7.1(b) correctly sets forth, as of the Effective Date, all Unconsolidated
Affiliates of the Borrower, including the correct legal name of such
Unconsolidated Affiliates, the type of legal entity which each such
Unconsolidated Affiliate is, and all ownership interests in such Unconsolidated
Affiliates held directly or indirectly by the Borrower.
Authorization of Agreement, Notes, Loan Documents and Borrowings. Each Loan
Party has the corporate or similar 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 each
of the 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 the Borrower or any other Loan Party is a party have been duly executed
and delivered by the duly authorized officers of such Person and each is a
legal, valid and binding obligation of such Person enforceable against such
Person in accordance with its respective terms, except as the same may be
limited by bankruptcy, insolvency, and other 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.
Compliance of Agreement, Etc. with Laws. The execution, delivery and
performance of this Agreement and the other Loan Documents to which the Borrower
or any other 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 the Borrower or any other Loan Party; (ii) conflict with or result
in a breach of the articles of incorporation or the bylaws of the Borrower or
the organizational documents of any other Loan Party, or conflict with or result
in a breach of any term or condition that would constitute a default under any
Material Contract; or (iii) result in or require the creation or imposition of
any Lien (other than a Permitted Lien) upon or with respect to any Eligible
Property now owned or hereafter acquired by the Borrower or any other Loan Party
other than in favor of the Administrative Agent for the benefit of the Lenders.
Compliance with Law; Governmental Approvals. The Borrower, each other Loan
Party and each other Subsidiary is in compliance with each Governmental Approval
and all other Applicable Laws relating to it except for non-compliances which,
and Governmental Approvals the failure to possess which, could not, individually
or in the aggregate, reasonably be expected to cause a Default or Event of
Default or have a Material Adverse Effect.
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Title to Properties. Schedule 7.1(f) is, as of the Effective Date, a
complete and correct listing of all Properties of the Borrower, the other Loan
Parties and the other Subsidiaries, setting forth, for each such Property, the
current leasing 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 Borrower and the other Loan Parties and all other
Subsidiaries has good, marketable and legal title to, or a valid leasehold
interest in, its respective Properties.
Existing Indebtedness. Schedule 7.1(g) is, as of the Effective Date, a
complete and correct listing of all Indebtedness of each of the Loan Parties and
the other Subsidiaries which is secured by any Lien, together with a description
of all of the property subject to such Lien, and all Guarantees of Indebtedness
provided by each of the Loan Parties and the other Subsidiaries. As of the
Agreement Date, each of the Loan Parties has performed and is in compliance with
all of the material terms of its respective 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.
Material Contracts; Approved Ground Leases. Schedule 7.1(h) is, as of the
Effective Date, a true, correct and complete listing of all Material Contracts
(other than those Material Contracts which are loan documents with respect to
Secured Indebtedness). Each of the Borrower, the other 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. As of the Agreement Date, Borrower
has provided Administrative Agent with true, correct and complete copies of the
Approved Ground Leases.
Litigation. Except as set forth on Schedule 7.1(i), there are no actions,
suits or proceedings pending (nor, to the knowledge of the Borrower, are there
any actions, suits or proceedings threatened) against or in any other way
relating adversely to or affecting the Borrower, any other 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, would reasonably be expected to have a Material Adverse
Effect, and there are no strikes, slow downs, work stoppages or walkouts or
other labor disputes in progress or threatened relating to the Borrower or any
other Loan Party.
Taxes. All material federal, state and other tax returns of the Borrower,
each other Loan Party and each other Subsidiary required by Applicable Law,
which, to the knowledge of Borrower, are to be filed have been duly filed, and
all federal, state and other taxes, assessments and other governmental charges
or levies upon the Borrower, each other 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 the Borrower, any other Loan Party or any other
Subsidiary is under audit.
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Financial Statements. The Borrower has furnished to each Lender copies of
(i) the audited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries for the fiscal years ending December 31, 1999, December 31, 2000
and December 31, 2001, and the related consolidated statements of operations,
comprehensive income (only to the extent regularly prepared by or on behalf of
the Borrower), stockholders' equity and cash flow for the fiscal years ending on
such dates, with the opinion thereon of Deloitte & Touche LLP, and (ii) the
unaudited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries for the fiscal quarter ending September 30, 2002, and the related
consolidated statements of operations, comprehensive income (only to the extent
regularly prepared by or on behalf of the Borrower), stockholders' equity and
cash flow of the Borrower and its consolidated Subsidiaries for the three fiscal
quarter period ended on such date. Such balance sheets and statements (including
in each case related schedules and notes) 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 Borrower 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 or as set forth in
Borrower's Joint Proxy Statement/Prospectus dated December 24, 2002.
No Material Adverse Change; Solvency. Since December 31, 2001, there has
been no material adverse change in the consolidated financial condition, results
of operations, business or prospects of the Borrower and its consolidated
Subsidiaries taken as a whole. Each of the Borrower and the other Loan Parties
is Solvent.
ERISA. Each member of the ERISA Group has fulfilled its obligations 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, 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 any liability under Title
IV of ERISA other than a liability to the PBGC for premiums under Section 4007
of ERISA.
Absence of Defaults. None of the Borrower, the other Loan Parties or the
other Subsidiaries has violated any material provision of 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 the Borrower, any other 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
65
where such default or event of default could, individually or in the aggregate,
have a Material Adverse Effect.
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 Borrower'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.
Investment Company; Public Utility Holding Company. No Loan Party is (i) an
"investment company" or a company "controlled" by an "investment 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.
Margin Stock. No Loan Party 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
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buying or carrying "margin stock" within the meaning of Regulation U of the
Board of Governors of the Federal Reserve System.
Affiliate Transactions. Except as permitted by Section 10.8, none of the
Borrower, any other Loan Party nor any other Subsidiary is a party to or bound
by any agreement or arrangement (whether oral or written) with any Affiliate.
Intellectual Property. Each of the Loan Parties 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.
Business. As of the Agreement Date, the Borrower and its Subsidiaries are
engaged in the business of acquiring, renovating, developing and managing income
producing Properties (consisting primarily of retail Properties), together with
related business activities and investments incidental thereto.
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.
Accuracy and Completeness of Information. All written information, reports
and other papers and data furnished to the Administrative Agent or any Lender
by, on behalf of, or at the direction of, the Borrower, any other Loan Party or
any other Subsidiary were, at the time of their respective dates or
certification, 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 (subject, as to
interim statements, to changes resulting from normal year-end audit adjustments
and the exclusion of notes), 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 the Borrower which has had, or may in the future have (so far as the
Borrower can reasonably foresee), a Material Adverse Effect which has not been
set forth 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 Administrative Agent and the Lenders prior to the Effective Date. The
documents furnished or written statements made to the Administrative 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, taken as a
whole, do not contain, as of the time of their respective dates or
certification, any untrue statement of a fact material to the creditworthiness
of the Borrower, any other Loan Party or any other Subsidiary or omitted when
67
furnished or made to state a material fact necessary in order to make the
statements contained therein not misleading.
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 ERISA 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.
Unencumbered Pool Properties. No Person, other than Borrower or a Person
that is a Guarantor, is the owner of any Unencumbered Pool Property, and each of
the Unencumbered Pool Properties qualifies as an Eligible Property. Without
limiting the foregoing, no Unencumbered Pool Property is subject to a Lien other
than a Permitted Lien.
Survival of Representations and Warranties, Etc.
All statements contained in any certificate required pursuant to this
Agreement or any other Loan Document and delivered by or on behalf of the
Borrower to the Administrative Agent or any Lender (including, but not limited
to, any such statement made in or in connection with any amendment thereto or
any statement contained in any such certificate or attached financial statement)
shall constitute representations and warranties made by 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 and the issuance of the Letters of Credit.
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 Borrower shall comply
with the following covenants:
Preservation of Existence and Similar Matters.
Except as otherwise permitted under Section 10.4, the Borrower 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.
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Compliance with Applicable Law and Material Contracts.
The Borrower 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.
Maintenance of Property.
In addition to the requirements of any of the other Loan Documents, the
Borrower shall, and shall cause each other Loan Party and each other Subsidiary
to, (a) keep all of its material Properties in good working order and condition,
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.
Conduct of Business.
The Borrower 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.
Insurance.
The Borrower 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 Applicable Law. Such insurance
shall, in any event, include replacement cost fire and extended coverage, public
liability, property damage, workers' compensation and flood insurance (if
required under Applicable Law). The Borrower shall from time to time deliver to
the Administrative 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.
Payment of Taxes and Claims.
The Borrower 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 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.
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Books and Records; Inspections.
The Borrower 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 Borrower will, and will cause each other Loan
Party and each other Subsidiary to, permit representatives of the Administrative
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
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 Administrative 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.
Use of Proceeds.
The Borrower shall use the proceeds of Loans only (a) for the payment of
pre-development and development costs incurred in connection with Properties
owned by the Borrower or any Subsidiary; (b) to finance acquisitions otherwise
permitted under this Agreement, including, but not limited to the acquisition of
IRT; (c) to finance capital expenditures and the repayment of Indebtedness of
the Borrower and its Subsidiaries, including, but not limited to, the
Indebtedness listed on Schedule 6.1(a)(xii); and (d) for other general corporate
purposes of the Borrower and its Subsidiaries, including the payment of
dividends and fee and expenses in connection with the Loans. The Borrower shall
only use Letters of Credit for the same purposes for which it may use the
proceeds of Loans. 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.
Environmental Matters.
The Borrower 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 the
Borrower, any other 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
70
reasonably be expected to have a Material Adverse Effect, the Borrower shall
provide the Administrative Agent with a copy of such notice within ten (10) days
after the receipt thereof by the Borrower or any of the Subsidiaries. The
Borrower and the 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.
Further Assurances.
At the Borrower's cost and expense and upon request of the Administrative
Agent, the Borrower 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 Administrative 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
Administrative Agent to carry out more effectively the provisions and purposes
of this Agreement and the other Loan Documents.
Material Contracts.
The Borrower shall, and shall cause each other Loan Party and each other
Subsidiary to, 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 Borrower 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,
provided that nothing in this Agreement shall prohibit any Loan Party or
Subsidiary from prepaying any Mortgage.
REIT Status.
The Borrower shall maintain its status as a REIT.
Exchange Listing.
The Borrower shall maintain at least one class of common stock of the
Borrower 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.
Guarantors.
Generally. Borrower shall cause any Subsidiary and 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 Administrative Agent an
Accession Agreement, together with the other items required to be delivered
under the subsection (c) below:
such Person (other than the Borrower) owns an Unencumbered Pool Property;
such Person is a Wholly Owned Subsidiary of Borrower; or
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such Person is a Subsidiary of Borrower or Unconsolidated Affiliate which
Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of
Borrower or any Subsidiary of the Borrower.
Any such Accession Agreement and the other items required under subsection
(c) below must be delivered to the Administrative Agent no later than ten (10)
Business Days following the date on which any of the above conditions first
applies to a New Guarantor. Notwithstanding the foregoing, a Wholly Owned
Subsidiary shall not be required to become a Guarantor if such Wholly Owned
Subsidiary cannot become a party to the Guaranty without violating (1) express
provisions of indebtedness incurred by such Wholly Owned Subsidiary, or (2) in
the case of a Wholly Owned Subsidiary obligated under any secured mortgage
indebtedness, express provisions of such Wholly Owned Subsidiary's
organizational documents. Borrower shall deliver to Administrative Agent
promptly upon request copies of such non-recourse indebtedness documentation or
such other items as Administrative Agent may reasonably request to confirm the
possibility of such violation.
Other Guarantors. The Borrower shall cause, as is necessary from time to
time to comply with the provisions of Section 10.1(j), Persons that are not
already Guarantors to become Guarantors by causing such Persons to execute and
deliver to the Administrative Agent an Accession Agreement, together with the
other items required to be delivered under the subsection (c) below.
Required Deliveries. Each Accession Agreement delivered by a New Guarantor
under the immediately preceding subsections (a) or (b) shall be accompanied by
all of the following items, each in form and substance satisfactory to the
Administrative Agent:
the articles of incorporation, articles of organization, certificate of
limited partnership or other comparable organizational instrument (if any) of
such New Guarantor certified as of a recent date (and with reference to
documents filed and certified by the applicable state Secretary of State) by the
Secretary or Assistant Secretary (or other individual performing similar
functions) of such New Guarantor;
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 organization 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 owns an Unencumbered Pool Property, if
any;
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;
copies certified by the Secretary or Assistant Secretary of such New
Guarantor (or other individual performing similar functions) of all corporate,
partnership, member or other necessary action taken by such New Guarantor to
authorize the execution, delivery and performance of the
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Loan Documents to which it is a party and, upon Administrative Agent's request,
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;
an opinion of counsel to the Borrower and such New Guarantor, addressed to
the Administrative Agent and Lenders, and regarding, among other things, the
authority of such New Guarantor to execute, deliver and perform the Guaranty,
and such other matters as the Administrative Agent or its counsel may request;
and
such other documents and instruments as the Administrative Agent may
reasonably request.
Release of Guarantor. Borrower may request in writing that Administrative
Agent release, and upon receipt of such request Administrative Agent shall
release, a Guarantor from the Guaranty so long as: (i) such Guarantor owns no
Unencumbered Pool Property, nor 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 8.14;
and (iii) no Default or Event of Default shall then be in existence or would
occur as a result of such release.
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 Borrower shall furnish to
Administrative Agent on behalf of the Lenders (with multiple copies, one for
each Lender) at its Lending Office:
Quarterly Financial Statements.
If not publicly available free of charge from the Securities and Exchange
Commission on the internet at xxxx://xxx.xxx.xxx within forty-five (45) days
after the close of each fiscal quarter of Borrower, or if an extension has been
granted by the Securities and Exchange Commission for the filing by the Borrower
of its quarterly report on Form 10-Q, then by the earlier of the date such Form
10-Q is actually filed and the last day of such extended time period, but in no
event later than sixty (60) days after the end of such quarterly period for
which such Form 10-Q is to be filed, the unaudited consolidated balance sheet of
the Borrower and its Subsidiaries as at the end of such period and the related
unaudited consolidated statements of operations, comprehensive income,
stockholders' equity and cash flows of the Borrower 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 Borrower, in his
or her opinion, to present fairly, in accordance with GAAP, the consolidated
financial position of the Borrower and its Subsidiaries as at the date thereof
and the results of operations for such period (subject to normal year-end audit
adjustments).
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Year-End Statements.
If not publicly available free of charge from the Securities and Exchange
Commission on the internet at xxxx://xxx.xxx.xxx within ninety (90) days after
the end of each fiscal year of the Borrower, or if an extension has been granted
by the Securities and Exchange Commission for the filing by the Borrower of its
quarterly report on Form 10-K, then by the earlier of the date such Form 10-K is
actually filed and the last day of such extended time period, but in no event
later than one hundred twenty (120) days after the end of such fiscal year for
which such Form 10-K is to be filed, the audited consolidated balance sheet of
the Borrower and its Subsidiaries as at the end of such fiscal year and the
related audited consolidated statements of operations, comprehensive income,
stockholders' equity and cash flows of the Borrower 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 Borrower, in his or her opinion, to present
fairly, in accordance with GAAP, the financial position of the Borrower and its
Subsidiaries as at the date thereof and the result of operations for such period
and (b) Deloitte & Touche 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 Borrower to deliver
such financial statements and certification thereof to the Administrative Agent
and the Lenders pursuant to this Agreement.
Compliance Certificate.
At the time the financial statements are furnished or available 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
Borrower by the chief financial officer of the Borrower (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 was 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, whether it is continuing
and the steps being taken by the Borrower with respect to such event, condition
or failure.
Other Information.
As soon as available and in any event within fifty (50) days after the end
of each fiscal quarter of the Borrower or as otherwise required pursuant to
Article IV, 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 and actual quarterly and
year-to-date Net Operating Income and leasing/occupancy status reports and
certifying that each Property in the Unencumbered Pool remains an Eligible
Property, as of the last day of such fiscal quarter and that the aggregate
outstanding principal amount of all outstanding Loans, together with the
aggregate amount of all Letter of Credit Liabilities, are less than or equal to
the Maximum Availability at such time.
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Promptly upon receipt thereof, copies of all reports, if any, submitted to
the Borrower or its Board of Directors by its independent public accountants
including, without limitation, any management report unless such report is
prepared for the Borrower's internal use only;
Within ten (10) Business Days of request, unless such report is publicly
available, free of charge from the Securities and Exchange Commission on the
internet at xxxx://xxx.xxx.xxx, 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 the Borrower, any Subsidiary or any other Loan
Party shall file with the Securities and Exchange Commission (or any
Governmental Authority substituted therefor) or any national securities
exchange, provided that Borrower shall provide Administrative Agent with written
notice of any such filing (other than regularly filed 10-Ks or 10-Qs) within ten
(10) Business Days following such filing;
Promptly upon the issuance thereof copies of all press releases issued by
the Borrower, any Subsidiary or any other Loan Party;
No later than seventy-five (75) days after the end of each fiscal year of
the Borrower ending prior to the Termination Date, projected operating
statements of the Borrower and its Subsidiaries on a consolidated basis for each
quarter of the next succeeding two (2) 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 Borrower,
and when appropriate its consolidated Subsidiaries, will be in compliance with
the covenants contained in Section 10.1 and at the end of each fiscal quarter of
the next succeeding two (2) fiscal years;
No later than thirty (30) days following Administrative Agent's request
(which 30-day period shall expire in no event earlier than forty-five (45) days
after the end of each fiscal year of the Borrower), a property budget for each
Unencumbered Pool Property for the coming fiscal year of the Borrower;
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 might 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 or makes any amendment to any Plan or Benefit
75
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
Borrower setting forth details as to such occurrence and action, if any, which
the Borrower or applicable member of the ERISA Group is required or proposes to
take;
To the extent the Borrower or any 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, the Borrower or any Subsidiary or any of their
respective properties, assets or businesses which, if determined or resolved
adversely to such Person, would 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 the Borrower or any of its Subsidiaries are being
audited;
A copy of any amendment to the articles of incorporation, bylaws,
partnership agreement or other similar organizational documents of the Borrower
or any other Loan Party within five (5) Business Days of the effectiveness
thereof;
Prompt notice of any change in the senior management of the Borrower and
any change in the business, assets, liabilities, financial condition or results
of operations of the Borrower, any Subsidiary or any other Loan Party which has
had or could have Material Adverse Effect;
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 both, would constitute a default or event of default by the Borrower, any
Subsidiary or any other Loan Party 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;
Promptly upon entering into any Material Contract after the Agreement Date,
notice of such Material Contract (along with a brief description of its terms)
and, upon Administrative Agent's request (provided dissemination is not
prohibited by confidentiality provisions), a copy of such Material Contract to
Administrative Agent;
Prompt notice of (i) any order, judgment or decree in excess of $1,500,000
having been entered against the Borrower, any Subsidiary or any other Loan Party
or any of their respective properties or assets, (ii) the institution of, or
threat of, any material action, suit, proceeding, governmental investigation or
arbitration against or affecting Borrower not listed on Schedule 7.1(i) hereto,
or (iii) any material development in any action, suit, proceeding, governmental
investigation or arbitration already disclosed, which, in the case of matters
referenced in subsections (ii) and (iii), has, or is reasonably likely to have,
a Material Adverse Effect, together with such other information as may be
reasonably available to Borrower to enable Administrative Agent, the Lenders and
their counsel to evaluate such matters;
Prompt notice of (i) any written notification of an alleged violation by
the Borrower or any other Loan Party of any law or regulation, the violation of
which could result in a Material
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Adverse Effect, or (ii) any inquiry shall have been received by the Borrower or
any other Loan Party from any Governmental Authority;
Promptly upon the request of the Administrative Agent, and in any event not
later than ten (10) Business Days following any change in Borrower's calculation
of the Ownership Share with respect to a Subsidiary or an Unconsolidated
Affiliate, evidence of the Borrower'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 Administrative Agent;
From time to time and promptly upon each request, such data, certificates,
reports, schedules of major tenants, 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 Borrower or any of its Subsidiaries as the Administrative Agent or any
Lender may reasonably request; and
Promptly upon request, copies certified by the Secretary or Assistant
Secretary (or other individual performing similar functions) of each of the Loan
Parties (other than Borrower, for which the following information shall be
provided prior to the Effective Date) 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 and (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.
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 Borrower shall comply with
the following covenants (which, to the extent tested with respect to a specific
fiscal quarter, shall be tested as of the last Business Day of such fiscal
quarter):
Financial Covenants.
Minimum Tangible Net Worth. The Borrower shall not permit its Tangible Net
Worth determined on a consolidated basis at the end of any fiscal quarter to be
less than (i) $497,902,400 (which amount was determined based upon Borrower's
pro forma December 31, 2002 financial statements and shall be adjusted by the
parties immediately following delivery of Borrower's actual March 31, 2003
financial statements to Administrative Agent in accordance with this Agreement
to an amount equal to eighty percent (80%) of Borrower's Tangible Net Worth
determined on a consolidated basis as set forth on such financial statements)
plus (ii) ninety percent (90%) of the Net Proceeds of all Equity Issuances
effected at any time after the Effective Date by the Borrower or any of its
Subsidiaries to any Person other than the Borrower or any of its Subsidiaries.
Ratio of Total Liabilities to Gross Asset Value. The Borrower shall not
permit the ratio of (i) Total Liabilities of the Borrower and its Subsidiaries
determined on a consolidated basis to
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(ii) Gross Asset Value of the Borrower and its Subsidiaries determined on a
consolidated basis, to exceed 0.60 to 1.00 at any time.
Ratio of Secured Indebtedness to Gross Asset Value. The Borrower shall not
permit the ratio of (i) Secured Indebtedness of the Borrower and its
Subsidiaries determined on a consolidated basis to (ii) Gross Asset Value to
exceed 0.40 to 1.00 at any time.
Ratio of EBITDA to Interest Expense. The Borrower shall not permit the
ratio of (i) EBITDA of the Borrower and its Subsidiaries determined on a
consolidated basis for the fiscal quarter most recently ended to (ii) Interest
Expense of the Borrower and its Subsidiaries determined on a consolidated basis
for such period, to be less than 1.90 to 1.00 for such period.
Ratio of EBITDA to Fixed Charges. The Borrower shall not permit the ratio
of (i) EBITDA of the Borrower and its Subsidiaries determined on a consolidated
basis for the fiscal quarter most recently ended to (ii) Fixed Charges of the
Borrower and its Subsidiaries determined on a consolidated basis for such
period, to be less than 1.65 to 1.00 for such period.
Ratio of Unencumbered Net Operating Income to Unsecured Interest Expense.
The Borrower 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
Borrower and its Subsidiaries determined on a consolidated basis for such
period, to be less than 2.00 to 1.00.
Permitted Investments. The Borrower shall not, and shall not permit any
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 the Borrower's Gross Asset Value:
unimproved and undeveloped raw land (which shall not include any such land
acquired less than eighteen (18) months previously and which is to become a
Development Property within eighteen (18) months of its acquisition), such that
the aggregate book value of all such land exceeds ten percent (10%) of the
Borrower's Gross Asset Value;
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 book value of such interests exceeds five
percent (5%) of the Borrower's Gross Asset Value;
Investments in Unconsolidated Affiliates, such that the aggregate value of
such Investments in Unconsolidated Affiliates, exceeds ten percent (10%) of the
Borrower's Gross Asset Value. For purposes of this clause (iii), the "value" of
any such Investment in an Unconsolidated Affiliate shall equal (1) with respect
to any of such Unconsolidated Affiliate's CIP, the Borrower's Ownership Share of
such CIP as of the date of determination and (2) with respect to any of such
Unconsolidated Affiliate's Properties which have been completed, the Borrower's
Ownership Share of the Operating Property Value for each Property of such
Unconsolidated Affiliate; and
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Mortgages in favor of the Borrower or any Subsidiary of the Borrower, such
that the aggregate book value of Indebtedness secured by such Mortgages exceeds
five percent (5%) of the Borrower's Gross Asset Value;
the aggregate amount of the Total Budgeted Costs for Development Properties
plus Major Redevelopment Properties in which the Borrower either has a direct or
indirect ownership interest shall not exceed fifteen percent (15%) of the
Borrower's Gross Asset Value. If a Development Property or Redevelopment
Property is owned by an Unconsolidated Affiliate of Borrower or any Subsidiary,
then the greater of (1) the product of (A) the Borrower'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 Redevelopment Property or (2)
the recourse obligations of the Borrower or such Subsidiary (including, without
limitation, as a general partner of such Unconsolidated Affiliate) 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 and other items subject to the limitations in the
preceding clauses (i) through (v) shall not exceed twenty percent (20%) of the
Borrower's Gross Asset Value.
Total Assets of Non-Wholly Owned Subsidiaries. Borrower shall not permit
aggregate Gross Asset Value, determined with respect to all Subsidiaries that
are not Wholly Owned Subsidiaries to exceed fifteen percent (15%) of the Gross
Asset Value.
Dividends and Other Restricted Payments. The Borrower and its Subsidiaries
(other than Wholly Owned Subsidiaries) shall not, directly or indirectly declare
or make, or incur any liability to make, any Restricted Payments, except that:
(i) the Borrower may make cash distributions to its shareholders in an aggregate
amount not to exceed ninety-five percent (95%) of Funds From Operations as of
the end of each fiscal quarter for the four fiscal quarter period then ending;
provided however, that Borrower in all events shall be entitled to make
distributions to its shareholders in such amounts and at such times as shall be
necessary or appropriate to enable the Borrower to avoid liability for any tax
pursuant to Section 857(b) or Section 4981 of the Internal Revenue Code
(including cash distributions) of capital gains resulting from gains from asset
sales to the extent necessary to avoid payment of taxes on such asset sales; and
(iii) Subsidiaries may make Restricted Payments to the Borrower or any other
Subsidiary. Notwithstanding the foregoing, but subject to the following
sentence, if a Default or Event of Default exists, the Borrower may only declare
or make cash distributions to its shareholders in an aggregate amount not to
exceed the minimum amount necessary for the Borrower to remain in compliance
with Section 8.12. If an Event of Default specified in subsection (a), (e) or
(f) of Section 11.1 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 Borrower 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.
Asset Value of Non-Guarantor Entities. At no time shall the aggregate Asset
Value of the Non-Guarantor Entities obligated in respect of any Recourse
Indebtedness exceed ten percent (10%) of the Gross Asset Value.
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Negative Pledge.
The Borrower shall not, and shall not permit any other Loan Party to,
create, assume or suffer to exist any Lien on any Unencumbered Pool Property or
on any direct or indirect ownership interest in any Unencumbered Pool Property,
except for Permitted Liens.
Restrictions on Intercompany Transfers.
The Borrower 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 Borrower or any
other Subsidiary; (iii) make loans or advances to the Borrower or any other
Subsidiary; or (iv) transfer any of its property or assets to the Borrower or
any other Subsidiary.
Merger, Consolidation, Sales of Assets and Other Arrangements.
The Borrower shall not, and shall not permit any other 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 substantially all 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:
any Subsidiary may merge with a Loan Party so long as the survivor is a
Loan Party;
any Subsidiary may sell, transfer or dispose of its assets to a Loan Party;
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;
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) assets of, or make an Investment in, any
other Person so long as the amount of such acquisition or Investment does not
equal or exceed a Substantial Amount and (B) sell, lease or otherwise transfer,
whether by one or a series of transactions, assets (including capital stock or
other securities of Subsidiaries) which do not equal or exceed a Substantial
Amount to any other Person and, in the event that the assets referenced in
either subsection (A) or (B) above do in fact equal or exceed a Substantial
Amount, the applicable Loan Party or other Subsidiary may proceed with such
acquisition or transfer, so long as, in each case, (1) the Borrower shall have
given the Administrative Agent and the Lenders at least thirty (30) days prior
written notice of
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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 Borrower
or any other Loan Party, such Person shall be the survivor thereof and (4) at
the time the Borrower gives notice pursuant to clause (1) of this subsection,
the Borrower shall have delivered to the Administrative 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;
the Borrower and the other Loan Parties may lease and sublease its
respective assets, as lessor or sublessor (as the case may be), in the ordinary
course of their business; and
the Borrower may enter into a merger transaction with IRT, provided that
Borrower is the resulting entity.
Further, no Loan Party, nor any other 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.
Plans.
The Borrower shall not, and shall not permit any other Loan Party or any
other 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.
Fiscal Year.
The Borrower shall not change its fiscal year from that in effect as of the
Agreement Date.
Modifications of Organizational Documents and Material Contracts.
The Borrower shall not, and shall not permit any other Loan Party to,
amend, supplement, restate or otherwise modify its articles of incorporation,
by-laws or other organizational documents without the prior written consent of
the Requisite Lenders unless such amendment, supplement, restatement or other
modification (a) is in the case of the Borrower, to increase the amount of
Equity Interests authorized to be issued by the Borrower, or to authorize the
issuance of a class of Preferred Stock by the Borrower, (b) is required under or
as a result of the Internal Revenue Code or other Applicable Law, (c) is
required to maintain the Borrower's status as a REIT or (d) could not reasonably
be expected to have a Material Adverse Effect (and in all events, Borrower, in
accordance with Section 9.4(i), shall provide Administrative Agent with fully
executed and filed, if applicable, copies of any of the foregoing). The Borrower
shall not permit Subsidiary that is not a Loan Party to amend, supplement,
restate or otherwise modify its articles of incorporation, by-laws or other
organizational documents if such amendment,
81
supplement, restatement or other modification could reasonably be expected to
have a Material Adverse Effect. The Borrower shall not enter into, and shall not
permit any Subsidiary or other Loan Party to enter into, any amendment,
termination 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 the Borrower or any Subsidiary in any Material Contract.
Transactions with Affiliates.
The Borrower shall not, and shall not permit any other Loan Party 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 Borrower or with any director, officer or employee of any Loan
Party, except transactions in the course of and pursuant to the reasonable
requirements of the business of the Borrower and upon fair and reasonable terms
that are no less favorable to the Borrower than would be obtained in a
comparable arm's length transaction with a Person that is not an Affiliate. In
limitation of the foregoing, neither Borrower nor any other Loan Parties or
Subsidiaries shall (a) make loans or advances to any director, officer or
employee of any Loan Party or (b) guaranty loans or advances to any director,
officer or employee of any Loan Party, in either case or cumulatively in excess
of $10,000,000 in the aggregate. The Borrower and each Subsidiary may, however,
guaranty Indebtedness of other Loan Parties.
DEFAULT
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:
Default in Payment. The Borrower or any other Loan Party shall fail to pay
(i) any amount due on the Termination Date, (ii) any principal when due (whether
upon demand, at maturity, by reason of acceleration or otherwise), or (iii) any
other amount due (whether upon demand, at maturity, by reason of acceleration or
otherwise) under this Agreement or any other Loan Document within three (3)
Business Days of the same being due.
Default in Performance.
The Borrower shall fail to perform or observe any term, covenant, condition
or agreement on its part to be performed or observed and contained in Sections
9.4 or Article X.; or
The Borrower or any other 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 thirty (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 Administrative Agent;
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Misrepresentations. Any representation or warranty made or deemed made by
or on behalf of the Borrower or any other Loan Party in this Agreement, in any
other Loan Document, or in any required certificate delivered by or on behalf of
the Borrower or any other Loan Party, or any amendment hereto or thereto, shall
at any time prove to have been incorrect or misleading in any material respect
when furnished or made or deemed made.
Indebtedness Cross-Default.
The Borrower, any other Loan Party, or any other Subsidiary shall fail to
pay when due and payable the principal of, or interest on, (x) any Recourse
Indebtedness (other than the Loans) having an aggregate outstanding principal
amount of $5,000,000 or more, or (y) any Nonrecourse Indebtedness having an
aggregate outstanding principal amount of $35,000,000 or more, and in any such
case such failure shall continue beyond any applicable notice and cure periods;
or
The maturity of any (x) any Recourse Indebtedness (other than the Loans) of
the Borrower, any other Loan Party or any other Subsidiary having an aggregate
outstanding principal amount of $5,000,000 or more, or (y) any Nonrecourse
Indebtedness of the Borrower, any other Loan Party or any other Subsidiary
having an aggregate outstanding principal amount of $35,000,000 or more shall
have (1) been accelerated in accordance with the provisions of any indenture,
contract or instrument evidencing, providing for the creation of or otherwise
concerning such Indebtedness or (2) been required to be prepaid or repurchased
prior to the stated maturity thereof; or
Any other event shall have occurred and be continuing which, with or
without the passage of time, the giving of notice, or both, would permit any
holder or holders of (x) any Recourse Indebtedness (other than the Loans) of the
Borrower, any other Loan Party or any other Subsidiary having an aggregate
outstanding principal amount of $5,000,000 or more, or (y) any Nonrecourse
Indebtedness of the Borrower, any other Loan Party or any other Subsidiary
having an aggregate outstanding principal amount of $35,000,000 or more, any
trustee or agent acting on behalf of such holder or holders or any other Person,
to accelerate the maturity of such Indebtedness or require any such Indebtedness
to be prepaid or repurchased prior to its stated maturity.
Voluntary Bankruptcy Proceeding. The Borrower or any other Loan Party or
any Person who has granted to the Administrative Agent a Lien under any Security
Document 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;
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(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.
Involuntary Bankruptcy Proceeding. A case or other proceeding shall be
commenced against the Borrower or any other Loan Party or any Person who has
granted to the Administrative Agent a Lien under any Security Document 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 sixty (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.
Revocation of Loan Documents. The Borrower or any other 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.
Judgment. A judgment or order for the payment of money shall be entered
against the Borrower or any other Loan Party, by any court or other tribunal and
(i) such judgment or order shall continue for a period of thirty (30) days
without being paid, stayed or dismissed through appropriate appellate
proceedings and (ii) either (A) the amount for which insurance has not been
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, $1,500,000
or (B) such judgment or order could reasonably be expected to have a Material
Adverse Effect.
Attachment. A warrant, writ of attachment, execution or similar process
shall be issued against any property of the Borrower or any other Loan Party,
which exceeds, individually or together with all other such warrants, writs,
executions and processes, $1,500,000 in amount and such warrant, writ, execution
or process shall not be paid, discharged, vacated, stayed or bonded for a period
of thirty (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 Administrative 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.
ERISA. Any member of the ERISA Group shall fail to pay when due an amount
or amounts aggregating in excess of $1,000,000 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;
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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 $1,000,000.
Loan Documents. An Event of Default (as defined therein) shall occur under
any of the other Loan Documents;
Change of Control/Change in Management.
(A) 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"))
other than Xxxxx Xxxxxxx and/or his Affiliates, successors, estate beneficiaries
or assigns, 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 greater than forty percent (40%) of the
total voting power of the then outstanding voting stock of the Borrower or (B)
during any period of twelve (12) consecutive months ending after the Agreement
Date, individuals who at the beginning of any such 12-month period constituted
the Board of Directors of the Borrower (together with any new directors whose
election by such Board or whose nomination for election by the shareholders of
the Borrower was approved by a vote of a majority of the directors then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason (other than death or mental or physical disability) to constitute a
majority of the Board of Directors of the Borrower then in office; or
If either Xxxxx Xxxxxxx or Xxxx Xxxxx and either Xxxxx Xxxxxx or Xxxxxx
Xxxxxxx cease for any reason to be principally involved in the senior management
of the Borrower, and (in the case of vacancies caused by resignation, death or
incapacity) Borrower shall have failed to replace the resulting vacancies in
senior management with individuals reasonably acceptable to the Requisite
Lenders within a period of one-hundred eighty (180) days.
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 thirty (30) consecutive days beyond
the coverage period of any applicable business interruption insurance, the
cessation or substantial curtailment of revenue producing activities of the
Borrower 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.
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Remedies Upon Event of Default.
Upon the occurrence of an Event of Default the following provisions shall
apply:
Acceleration; Termination of Facilities.
Automatic. Upon the occurrence of an Event of Default specified in Sections
11.1(e) or 11.1(f), (A)(i) the principal of, and all accrued interest on, the
Loans and the Notes at the time outstanding, (ii) an amount equal to the Stated
Amount of all Letters of Credit outstanding as of the date of the occurrence of
such Event of Default and (iii) all of the other Obligations of the Borrower,
including, but not limited to, the other amounts owed to the Lenders and the
Administrative 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 Borrower and (B) the Commitments and the
obligation of the Lenders to make Loans hereunder, and the obligation of the
Administrative Agent to issue Letters of Credit hereunder, shall immediately and
automatically terminate.
Optional. If any other Event of Default shall exist, the Administrative
Agent shall, at the direction of the Requisite Lenders: (A) declare (1) the
principal of, and accrued interest on, the Loans and the Notes at the time
outstanding, (2) an amount equal to the Stated Amount of all Letters of Credit
outstanding as of the date of the occurrence of such Event of Default and (3)
all of the other Obligations, including, but not limited to, the other amounts
owed to the Lenders and the Administrative 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 (B) terminate the Commitments and the obligation of the Lenders to
make Loans hereunder and the obligation of the Administrative Agent to issue
Letters of Credit hereunder.
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
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Loan Documents. The Requisite Lenders may direct the Administrative Agent
to, and the Administrative Agent if so directed shall, exercise any and all of
its rights under any and all of the other Loan Documents.
Applicable Law. The Requisite Lenders may direct the Administrative Agent
to, and the Administrative Agent if so directed shall, exercise all other rights
and remedies it may have under any Applicable Law.
Marshaling; Payments Set Aside.
Neither the Administrative 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 Administrative Agent and/or
any Lender, or the Administrative 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.
Allocation of Proceeds.
If an Event of Default exists and maturity of any of the Obligations has
been accelerated, all payments received by the Administrative 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 Administrative Agent and the Lenders
in respect of Fees and expenses due under Section 13.2;
(b) payments of interest on Loans, to be applied for the
ratable benefit of the Lenders;
(c) payments of principal of Loans, to be applied for the
ratable benefit of the Lenders;
(d) amounts due to the Administrative Agent and the Lenders
pursuant to Sections 12.7 and 13.10;
(e) payments of all other 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.
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Letter of Credit Collateral Account.
As collateral security for the prompt payment in full when due of all
Letter of Credit Liabilities, the Borrower hereby pledges and grants to the
Administrative Agent, for the benefit of the Administrative Agent and the
Lenders as provided herein, a security interest in all of its right, title and
interest in and to the Letter of Credit Collateral Account established pursuant
to the requirements of Section 2.12, and the balances from time to time in the
Letter of Credit Collateral Account (including the investments and reinvestments
therein provided for below). The balances from time to time in the Letter of
Credit Collateral Account shall not constitute payment of any Letter of Credit
Liabilities until applied by the Administrative Agent as provided herein.
Anything in this Agreement to the contrary notwithstanding, funds held in the
Letter of Credit Collateral Account shall be subject to withdrawal only as
provided in this Section and in Section 2.12.
Amounts on deposit in the Letter of Credit Collateral Account shall be
invested and reinvested by the Administrative Agent in such cash equivalents as
the Administrative Agent shall determine in its sole discretion. All such
investments and reinvestments shall be held in the name of and be under the sole
dominion and control of the Administrative Agent, provided, that all earnings on
such investments will be credited to and retained in the Letter of Credit
Collateral Account for the account of Borrower. The Administrative Agent shall
exercise reasonable care in the custody and preservation of any funds held in
the Letter of Credit Collateral Account and shall be deemed to have exercised
such care if such funds are accorded treatment substantially equivalent to that
which the Administrative Agent accords other funds deposited with the
Administrative Agent, it being understood that the Administrative Agent shall
not have any responsibility for taking any necessary steps to preserve rights
against any parties with respect to any funds held in the Letter of Credit
Collateral Account.
If an Event of Default exists, the Administrative Agent shall, if
instructed by the Requisite Lenders in their discretion at any time and from
time to time, elect to liquidate any such investments and reinvestments
referenced in subsection (b) above and credit the proceeds thereof to the Letter
of Credit Collateral Account and apply or cause to be applied such proceeds and
any other balances in the Letter of Credit Collateral Account to the payment of
any of the Letter of Credit Liabilities due and payable.
So long as no Default or Event of Default exists, the Administrative Agent
shall, from time to time, at the request of the Borrower, deliver to the
Borrower, against receipt but without any recourse, warranty or representation
whatsoever, such of the balances in the Letter of Credit Collateral Account as
exceed the aggregate amount of Letter of Credit Liabilities at such time. When
all of the Obligations shall have been indefeasibly paid in full and no Letters
of Credit remain outstanding, the Administrative Agent shall deliver to the
Borrower, against receipt but without any recourse, warranty or representation
whatsoever, the balances remaining in the Letter of Credit Collateral Account.
The Borrower shall pay to the Administrative Agent from time to time such
fees as the Administrative Agent normally charges for similar services in
connection with the
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Administrative Agent's administration of the Letter of Credit Collateral Account
and investments and reinvestments of funds therein.
Performance by Administrative Agent.
If the Borrower shall fail to perform any covenant, duty or agreement
contained in any of the Loan Documents, the Administrative 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 Administrative Agent, promptly
reimburse the Administrative Agent the duly documented, out-of-pocket costs of
third parties engaged by the Administrative Agent in such performance or
attempted performance to the Administrative Agent. Notwithstanding the
foregoing, neither the Administrative 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.
Rights Cumulative.
The rights and remedies of the Administrative 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
Administrative Agent and the Lenders may be selective and no failure or delay by
the Administrative 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.
THE AGENT
Authorization and Action.
Each Lender hereby appoints and authorizes the Administrative 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 Administrative 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
Administrative 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 Administrative Agent
a trustee or fiduciary for any Lender or to impose on the Administrative Agent
duties or obligations other than those expressly provided for herein. Without
limiting the generality of the foregoing, the use of the terms "Administrative
Agent", "Agent", "agent" and similar terms in the Loan Documents with reference
to the Administrative 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
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such terms is merely a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent contracting
parties. Except as otherwise specifically provided in this Agreement, at the
request of a Lender, the Administrative Agent will forward to such Lender copies
or, where appropriate, originals of the documents delivered to the
Administrative Agent pursuant to this Agreement or the other Loan Documents. The
Administrative Agent shall deliver to each Lender, promptly upon receipt thereof
by the Administrative Agent, one original of each Note made payable to the order
of such Lender and copies of each of the financial statements, certificates,
notices and other documents delivered to the Administrative Agent pursuant to
Article IX; provided such delivered documents shall not be deemed to include any
documents obtained by the Administrative Agent from the internet pursuant to
Sections 9.1, 9.2 or 9.4.(b). The Administrative Agent will also furnish to any
Lender, upon the request of such Lender, a copy of any certificate or notice
furnished to the Administrative 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 Administrative 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 and all
holders of any of the Obligations; provided, however, that, notwithstanding
anything in this Agreement to the contrary, the Administrative Agent shall not
be required to take any action which exposes the Administrative 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
Administrative Agent shall 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 Administrative Agent
otherwise. Without limiting the foregoing, no Lender shall have any right of
action whatsoever against the Administrative Agent as a result of the
Administrative 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.
Administrative Agent's Reliance, Etc.
Notwithstanding any other provisions of this Agreement or any other Loan
Documents, neither the Administrative Agent nor any of its directors, officers,
agents, employees or counsel shall be liable for any action taken or not taken
by it 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 Administrative Agent: 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 with
reasonable care 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 Administrative 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,
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warranty or representation made or deemed made by the Borrower, 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 Administrative 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 Administrative 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 with reasonable
care in the absence of gross negligence or willful misconduct.
Notice of Defaults.
The Administrative Agent shall not be deemed to have knowledge or notice of
the occurrence of a Default or Event of Default unless the Administrative 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 or event of default." If any
Lender (excluding the Lender which is also serving as the Administrative Agent)
becomes aware of any Default or Event of Default, it shall promptly send to the
Administrative Agent with a copy to Borrower such a "notice of default or event
of default." Further, if the Administrative Agent receives such a "notice of
default", the Administrative Agent shall give prompt notice thereof to the
Lenders with a copy to Borrower.
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 Administrative 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 Administrative 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,
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pursuant to such activities, Xxxxx Fargo or its affiliates may receive
information regarding the Borrower, 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 Administrative
Agent shall be under no obligation to provide such information to them.
Approvals of Lenders.
All communications from the Administrative 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 Administrative Agent by the Borrower in respect of the matter or issue to be
resolved, and (d) shall include the Administrative Agent's recommended course of
action or determination in respect thereof. Each Lender shall reply promptly,
but in any event within ten (10) Business Days of receipt of such communication
(or such lesser period as may be required under the Loan Documents for the
Administrative Agent to respond). Unless a Lender shall give written notice to
the Administrative Agent that it specifically objects to the recommendation or
determination of the Administrative Agent (together with a written explanation
of the reasons behind such objection) within the applicable time period for
reply, such Lender shall be deemed to have conclusively approved of or consented
to such recommendation or determination.
Lender Credit Decision, Etc.
Each Lender expressly acknowledges and agrees that neither the
Administrative 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 Administrative Agent hereinafter taken, including any review of the
affairs of the Borrower, shall be deemed to constitute any such representation
or warranty by the Administrative Agent to any Lender. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Agent,
any other Lender or counsel to the Administrative Agent, or any of their
respective officers, directors, employees and agents, and based on the financial
statements of the Borrower, the Subsidiaries or any other Affiliate thereof, and
inquiries of such Persons, its independent due diligence of the business and
affairs of the Borrower, the Loan Parties, the 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 Administrative Agent, any other Lender or counsel to the
Administrative Agent or any of their respective officers, directors, employees
and agents, and based on such review,
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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. Except for notices, reports and other documents and information
expressly required to be furnished to the Lenders by the Administrative Agent
under this Agreement or any of the other Loan Documents, the Administrative
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 Administrative
Agent or any of its officers, directors, employees, agents, attorneys-in-fact or
other Affiliates. Each Lender acknowledges that the Administrative Agent's legal
counsel in connection with the transactions contemplated by this Agreement is
only acting as counsel to the Administrative Agent and is not acting as counsel
to such Lender.
Indemnification of Administrative Agent.
Each Lender agrees to indemnify the Administrative 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 Pro Rata Share,
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 by, or
asserted against the Administrative Agent (in its capacity as Administrative
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 Administrative 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
Administrative Agent's gross negligence or willful misconduct or if the
Administrative Agent fails to follow the written direction of the Requisite
Lenders unless such failure is pursuant to the advice of counsel of which the
Lenders have received notice. Without limiting the generality of the foregoing,
each Lender agrees to reimburse the Administrative Agent promptly upon demand
for its ratable share of any out-of-pocket expenses (including counsel fees of
the counsel(s) of the Administrative Agent's own choosing) incurred by the
Administrative Agent in connection with the preparation, negotiation, execution,
administration, or enforcement 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 Administrative Agent to enforce the terms of the Loan Documents
and/or collect any Obligations, any "lender liability" suit or claim brought
against the Administrative Agent and/or the Lenders, and any claim or suit
brought against the Administrative Agent and/or the Lenders arising under any
Environmental Laws, to the extent that the Administrative Agent is not
reimbursed for such expenses by the Borrower. Such out-of-pocket expenses
(including counsel fees) shall be advanced by the Lenders on the request of the
Administrative Agent notwithstanding any claim or assertion that the
Administrative Agent is not entitled to indemnification hereunder upon receipt
of an undertaking by the Administrative Agent that the Administrative Agent will
reimburse the Lenders if it is actually and finally determined by a court of
competent jurisdiction that the Administrative 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.
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Successor Administrative Agent.
The Administrative Agent may resign at any time as Administrative Agent
under the Loan Documents by giving written notice thereof to the Lenders and the
Borrower. In the event (a) of Administrative Agent's gross negligence or willful
misconduct or (b) Administrative Agent, at any time, ceases to maintain a Pro
Rata Share equal to or greater than the Pro Rata Share of each other Lender, the
Administrative Agent may be removed as Administrative Agent under the Loan
Documents at any time by Requisite Lenders (other than the Administrative Agent
as a "Lender") upon thirty (30) day's prior notice. Upon any such resignation or
removal, the Requisite Lenders (which, in the case of the removal of the
Administrative Agent as provided in the immediately preceding sentence, shall be
determined without regard to the Commitment of the Lender then acting as
Administrative Agent) shall have the right to appoint a successor Administrative
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 as a successor Administrative Agent). If no successor
Administrative Agent shall have been so appointed in accordance with the
immediately preceding sentence, and shall have accepted such appointment, within
thirty (30) days after the resigning Administrative Agent's giving of notice of
resignation or the Lenders' removal of the resigning Administrative Agent, then
the resigning or removed Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative 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 Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under the Loan Documents.
After any Administrative Agent's resignation or removal hereunder as
Administrative 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
Administrative Agent under the Loan Documents.
Titled Agents.
Each of the Documentation Agents (each a "Titled Agent") in each such
respective capacity, assumes no responsibility or obligation hereunder,
including, without limitation, for servicing, enforcement or collection of any
of the Loans, nor any duties as an agent hereunder for the Lenders. The titles
given to the Titled Agents are solely honorific and imply no fiduciary
responsibility on the part of the Titled Agents to the Administrative Agent, any
Lender, the Borrower or any other Loan Party and the use of such titles does not
impose on the Titled Agents any duties or obligations greater than those of any
other Lender or entitle the Titled Agents to any rights other than those to
which any other Lender is entitled.
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MISCELLANEOUS
Notices.
Unless otherwise provided herein, communications provided for hereunder
shall be in writing and shall be mailed, sent by overnight delivery, telecopied
or delivered as follows:
If to the Borrower:
Equity One, Inc.
0000 X.X. Xxxxx Xxxxxxx Xxxxx
Xxxxx Xxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, CFO
Facsimile :(000) 000-0000
Telephone Number:(000) 000-0000
With a copy to:
Xxx Xxxxxx, Esq.
Xxxxxxxxx Xxxxxxx, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone Number: (000) 000-0000
If to the Administrative Agent or a Lender:
To the address or telecopy number, as applicable, of the
Administrative 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. All such notices and other
communications shall be effective (i) if mailed or sent by overnight
delivery, 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
Administrative Agent or any Lender under Article II. shall be
effective only when actually received. Neither the Administrative
Agent nor any Lender shall incur any liability to the Borrower (nor
shall the Administrative Agent incur any liability to the Lenders) for
acting upon any telephonic notice referred to in this Agreement which
the Administrative 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. The
failure of any Person designated to receive only a copy of any notice
shall not render ineffective notice otherwise properly given to the
Person to receive such notice.
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Expenses.
The Borrower agrees (a) to reimburse the Administrative Agent the duly
documented out-of-pocket costs of third parties engaged by Administrative Agent
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 duly documented disbursements of counsel to the
Administrative Agent and all reasonable and duly documented costs and expenses
of the Administrative Agent in connection with the review of Properties for
inclusion in calculations of the Unencumbered Pool and the Administrative
Agent's other activities under Article IV, (b) to pay or reimburse the
Administrative Agent and the Lenders for all their costs and expenses incurred
in connection with the enforcement or preservation of any rights under the Loan
Documents, including the reasonable fees and duly documented disbursements of
their respective counsel and any payments in indemnification or otherwise
payable by the Lenders to the Administrative Agent pursuant to the Loan
Documents, (c) to pay, and indemnify and hold harmless the Administrative 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 reasonable fees and duly documented
disbursements of counsel to the Administrative Agent and any Lender incurred in
connection with the representation of the Administrative 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.
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
Administrative 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.
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Intentionally Omitted.
Litigation; Jurisdiction; Other Matters; Waivers.
EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR
AMONG THE BORROWER, THE ADMINISTRATIVE 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 ADMINISTRATIVE 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 IN CONNECTION WITH ANY COLLATERAL OR ANY LIEN OR BY REASON OF
ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG THE
BORROWER, THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS OF ANY KIND OR NATURE.
EACH OF THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY
AGREES THAT THE FEDERAL DISTRICT COURT OF THE NORTHERN DISTRICT OF CALIFORNIA
OR, AT THE OPTION OF THE ADMINISTRATIVE AGENT, ANY STATE COURT LOCATED IN SAN
FRANCISCO COUNTY, CALIFORNIA SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY
CLAIMS OR DISPUTES BETWEEN OR AMONG THE BORROWER, THE ADMINISTRATIVE AGENT OR
ANY OF THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, THE
LOANS AND LETTERS OF CREDIT, THE NOTES OR ANY OTHER LOAN DOCUMENT OR TO ANY
MATTER ARISING HEREFROM OR THEREFROM. 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. TO THE EXTENT PERMITTED BY LAW, 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
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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 ADMINISTRATIVE AGENT OR ANY LENDER OR
THE ENFORCEMENT BY THE ADMINISTRATIVE AGENT OR ANY LENDER OF ANY JUDGMENT
OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.
THE BORROWER AGREES THAT ALL OF ITS PAYMENT OBLIGATIONS HEREUNDER SHALL BE
ABSOLUTE AND UNCONDITIONAL, AND, FOR THE PURPOSES OF AND WITH RESPECT TO MAKING
PAYMENTS HEREUNDER, THE BORROWER HEREBY WAIVES ANY RIGHT TO ASSERT ANY SETOFF,
COUNTERCLAIM OR CROSS-CLAIM.
THE FOREGOING WAIVERS HAVE BEEN MADE WITH THE ADVICE OF COUNSEL AND WITH A
FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE THE
PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER
LOAN DOCUMENTS, THE TERMINATION OR EXPIRATION OF ALL LETTERS OF CREDIT AND THE
TERMINATION OF THIS AGREEMENT.
Successors and Assigns.
Generally. The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns, except that the Borrower may not assign or otherwise transfer any of
its rights under this Agreement without the prior written consent of all the
Lenders (and any such assignment or transfer to which all of the Lenders have
not consented shall be void).
Participations. 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 3.3, 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 Administrative 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 such Lender's Commitment, (ii) extend the
date fixed for the payment of principal on the Loans or portions thereof owing
to such Lender, or (iii) reduce the
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rate at which interest is payable thereon. An assignment or other transfer which
is not permitted by subsection (c) or (d) below shall be given effect for
purposes of this Agreement only to the extent of a participating interest
granted in accordance with this subsection (b).
Assignments. Any Lender may with the prior written consent of the
Administrative 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 at least equal to $10,000,000 and
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 $15,000,000, and (iii) each
such assignment shall be effected by means of an Assignment and Acceptance
Agreement. From and after the Assignment Effective Date (as such term is defined
in the Assignment and Agreement), such Assignee shall be deemed to be a Lender
party to this 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 (c), the transferor Lender, the Administrative Agent and the
Borrower shall make appropriate arrangement so the 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 Administrative 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.
Designated Lenders. Any Lender (each, a "Designating Lender") may at any
time designate one Designated Lender to fund Bid Rate Loans on behalf of such
Designating Lender subject to the terms of this subsection (d) and the
provisions in the immediately preceding subsections (b) and (c) shall not apply
to such designation. No Lender may designate more than one Designated Lender at
any point in time. The parties to each such designation shall execute and
deliver to the Administrative Agent for its acceptance a Designation Agreement.
Upon such receipt of an appropriately completed Designation Agreement executed
by a Designating Lender and a designee representing that it is a Designated
Lender, the Administrative Agent will accept such Designation Agreement and give
prompt notice thereof to the Borrower, whereupon, (i) the Borrower shall execute
and deliver to the Designating Lender a Designated Lender Note payable to the
order of the Designated Lender, (ii) from and after the effective date specified
in the Designation Agreement, the Designated Lender shall become a party to this
Agreement with a right to make Bid Rate Loans on behalf of its Designating
Lender pursuant to Section 2.4 after the Borrower has accepted a Bid Rate Loan
(or portion thereof) of the Designating Lender, and (iii) the Designated Lender
shall not be required to make payments with respect to any obligations in this
Agreement except to the extent of excess cash flow of such Designated Lender
which is not otherwise required to repay obligations of such Designated Lender
which are then due and payable; provided, however, that regardless of such
designation and assumption by the
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Designated Lender, the Designating Lender shall be and remain obligated to the
Borrower, the Administrative Agent and the Lenders for each and every of the
obligations of the Designating Lender and its related Designated Lender with
respect to this Agreement, including, without limitation, any indemnification
obligations under Section 12.7 and any sums otherwise payable to the Borrower by
the Designated Lender. Each Designating Lender shall serve as the agent of the
Designated Lender and shall on behalf of, and to the exclusion of, the
Designated Lender: (i) receive any and all payments made for the benefit of the
Designated Lender and (ii) give and receive all communications and notices and
take all actions hereunder, including, without limitation, votes, approvals,
waivers, consents and amendments under or relating to this Agreement and the
other Loan Documents. Any such notice, communication, vote, approval, waiver,
consent or amendment shall be signed by the Designating Lender as agent for the
Designated Lender and shall not be signed by the Designated Lender on its own
behalf and shall be binding on the Designated Lender to the same extent as if
signed by the Designated Lender on its own behalf. The Borrower, the
Administrative Agent and the Lenders may rely thereon without any requirement
that the Designated Lender sign or acknowledge the same. No Designated Lender
may assign or transfer all or any portion of its interest hereunder or under any
other Loan Document, other than assignments to the Designating Lender which
originally designated such Designated Lender. The Borrower, the Lenders and the
Administrative Agent each hereby agrees that it will not institute against any
Designated Lender or join any other Person in instituting against any Designated
Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding under any federal or state bankruptcy or similar law, until the later
to occur of (x) one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Designated Lender and (y) the
Termination Date. In connection with any such designation the Designating Lender
shall pay to the Administrative Agent an administrative fee for processing such
designation in the amount of $3,500.
Federal Reserve Bank Assignments. In addition to the assignments and
participations permitted under the foregoing provisions of this Section 13.6,
and without the need to comply with any of the formal or procedural requirements
of this Section 13.6, 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 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. No such pledge or
assignment shall release the assigning Lender from its obligations hereunder.
Information to Assignee, Etc. A Lender may furnish any information
concerning the Borrower, any Subsidiary or any other Loan Party in the
possession of such Lender from time to time to Assignees and Participants
(including prospective Assignees and Participants); provided that the
information concerning Borrower, any other Loan Party or Subsidiary shall be
subject to Section 13.9.
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Amendments.
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 Administrative Agent) may be amended, (iii) the
performance or observance by the Borrower or any other Loan Party of any terms
of this Agreement or such other Loan Document (other than any fee letter solely
between the Borrower and the Administrative Agent) may be waived, 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 Administrative
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.
Unanimous Consent. Notwithstanding the foregoing, no amendment, waiver or
consent shall, unless in writing, and signed by all of the Lenders (or the
Administrative Agent at the written direction of the Lenders), do any of the
following:
increase the Commitments of the Lenders (excluding any increase as a result
of an assignment of Commitments permitted under Section 13.6) or subject the
Lenders to any additional obligations, except for any increases contemplated
under Section 2.14;
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;
reduce the amount of any Fees payable to the Lenders hereunder, other than
Fees payable to Administrative Agent pursuant to the Fee Letter;
postpone any date fixed for any payment of principal of, or interest on,
any Loans or for the payment of Fees (other than Fees to Administrative Agent
pursuant to the Fee Letter) or any other Obligations, or extend the expiration
date of any Letter of Credit beyond the Termination Date;
change the Pro Rata Shares (excluding any change as a result of an
assignment of Commitments permitted under Section 13.6 or an increase of
Commitments effected pursuant to Section 2.14);
amend this Section 13.7 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 13.7;
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;
release any Guarantor from its obligations under the Guaranty except as
contemplated under Section 8.14;
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modify the definitions of the terms "Gross Asset Value", "Indebtedness",
"Maximum Availability", "Total Liabilities", "Unencumbered Pool" or
"Unencumbered Pool Value" (or the definitions used in such definition or the
percentages or rates used in the calculation thereof);
modify or amend the financial covenant set forth in Section 10.1(b), or
waive any Default or Event of Default under such Section 10.1(b);
waive a Default or Event of Default under Section 11.1(a) or Section
11.1(l)(i); or
amend, or waive the Borrower's compliance with, Section 2.8(b)(ii).
Amendment of Administrative Agent's Duties, Etc. No amendment, waiver or
consent unless in writing and signed by the Administrative Agent, in addition to
the Lenders required hereinabove to take such action, shall affect the rights or
duties of the Administrative Agent under this Agreement or any of the other Loan
Documents. Any amendment, waiver or consent relating to Section 2.3 or the
obligations of the Swingline Lender under this Agreement or any other Loan
Document shall, in addition to the Lenders required hereinabove to take such
action, require the written consent of the Swingline Lender. 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 Administrative 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 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.
Nonliability of Administrative Agent and Lenders.
The relationship between the Borrower, on the one hand, and the Lenders and
the Administrative Agent, on the other hand, shall be solely that of borrower
and lender. Neither the Administrative 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 Administrative Agent or any Lender to any Lender, the Borrower, any
Subsidiary or any other Loan Party. Neither the Administrative 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.
Confidentiality.
Except as otherwise provided by Applicable Law, the Administrative 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
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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 13.9); (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 Administrative 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, but solely in connection with the
exercise by the Administrative Agent or the Lenders of their 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 13.9 or (y) becomes available to the Administrative Agent or any Lender
on a nonconfidential basis from a source other than the Borrower or any
Affiliate.
Indemnification.
The Borrower shall and hereby agrees to indemnify, defend and hold harmless
the Administrative Agent, any affiliate of the Administrative 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 reasonable and duly
documented 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 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 or issuance of
Letters of Credit hereunder; (iii) any actual or proposed use by the Borrower of
the proceeds of the Loans or Letters of Credit; (iv) the Administrative Agent's
or any Lender's entering into this Agreement; (v) the fact that the
Administrative Agent and the Lenders have established the credit facility
evidenced hereby in favor of the Borrower; (vi) the fact that the Administrative
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 Borrower and the Subsidiaries; (vii) the fact that the
Administrative 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 Administrative Agent or the
Lenders may have under this Agreement or the other Loan Documents including, but
not limited to, the foreclosure upon, or seizure of, any collateral or the
exercise of any other rights of a secured party; (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
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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 Administrative 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 this clause (a) that constitute gross
negligence or willful misconduct.
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 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.
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.
All out-of-pocket fees and expenses of, and all amounts paid to
third-persons by, an Indemnified Party shall be reimbursed 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.
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).
104
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.
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 Administrative Agent and the Lenders are
entitled under the provisions of Sections 3.12, 5.1, 5.4, 12.7, 13.2 and 13.10
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 Administrative 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.
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.
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE
FULLY PERFORMED, IN SUCH STATE.
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.
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.
105
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.
Limitation of Liability.
Neither the Administrative Agent nor any Lender, nor any affiliate,
officer, director, employee, attorney, or agent of the Administrative 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 Administrative Agent or any
Lender or any of the Administrative 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.
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.
Construction.
The Administrative 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 Administrative Agent, the
Borrower and each Lender.
[Signatures on Following Pages]
106
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to
be executed by their authorized officers all as of the day, month and year first
above written.
BORROWER:
EQUITY ONE, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Sipnzer
Title: CFO
[Signatures Continued on Next Page]
107
[Signature Page to Credit Agreement dated as of
February 7, 2003 with Equity One, Inc.]
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent and as a Lender
By: /s/ Xxx X. Xxxxxx
---------------------
Name: Xxx X. Xxxxxx
Title: Senior Vice President
Commitment Amount:
$55,000,000
Lending Office (all Types of Loans):
Xxxxx Fargo Bank, N.A.
Real Estate Group
000 X. Xxxxxxx Xx., Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxx X. Xxxxxx, SVP
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxx Fargo Bank, N.A.
Real Estate Group
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Chief Credit Officer
Fax: (000) 000-0000
108
[Signature Page to Credit Agreement dated as of
February 7, 2003 with Equity One, Inc.]
COMMERZBANK AG NEW YORK AND GRAND CAYMAN BRANCHES,
as a Lender
By: /s/ Xxxxxxxxx Xxxxx /s/ R. Xxxxxxx Xxxxxxxxxxxxx
----------------------- ------------------------
Name: Xxxxxxxxx Xxxxx R. Xxxxxxx Xxxxxxxxxxxxx
Title: Vice President Assistant Vice President
Commitment Amount:
$32,000,000
Credit/Business Matters:
Commerzbank AG New York and Grand Cayman Branches
2 World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
109
[Signature Page to Credit Agreement dated as of
February 7, 2003 with Equity One, Inc.]
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxx Xxxxx Xxxxxx
---------------------------
Name: Xxxxxx Xxxxx Xxxxxx
Title: Vice President
Commitment Amount:
$32,000,000
Credit/Business Matters:
KeyBank National Association
0000 00xx Xxxxxx X.X.
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
KeyBank National Association
0000 00xx Xxxxxx X.X., 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
110
[Signature Page to Credit Agreement dated as of
February 7, 2003 with Equity One, Inc.]
SOUTHTRUST BANK,
as a Lender
By: /s/ Xxxxxx Xxxxx
----------------
Name: Xxxxxx Xxxxx
Title: AVP
Commitment Amount:
$32,000,000
Credit/Business Matters:
SouthTrust Bank
000 Xxxxx 00xx Xxxxxx, 00xx Xxxxx
Mail Code: A-001-TW-1105
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
111
[Signature Page to Credit Agreement dated as of
February 7, 2003 with Equity One, Inc.]
BANK ONE, NA,
as a Lender
By: /s/ Xxxx X. Xxxxxx
----------------------
Name: Xxxx X. Xxxxxx
Title: Director
Commitment Amount:
$24,000,000
Credit/Business Matters:
Bank One, NA
1 Bank One Plaza, Suite IL-1 0315
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
112
[Signature Page to Credit Agreement dated as of
February 7, 2003 with Equity One, Inc.]
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxxx X. Xxxxx
---------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Commitment Amount:
$24,000,000
Credit/Business Matters:
PNC Bank, National Association
000 0xx Xxxxxx
XX-XXXX-00-0
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
113
[Signature Page to Credit Agreement dated as of
February 7, 2003 with Equity One, Inc.]
AMSOUTH BANK,
as a Lender
By: /s/ Xxx Xxxxxxx
-------------------
Name: Xxx Xxxxxxx
Title: Commercial Loan Officer
Commitment Amount:
$20,000,000
Credit/Business Matters:
AmSouth Bank
0000 0xx Xxx. Xxxxx
XXX-0
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
114
[Signature Page to Credit Agreement dated as of
February 7, 2003 with Equity One, Inc.]
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as a Lender
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
Commitment Amount:
$20,000,000
Credit/Business Matters:
Deutsche Bank Trust Company Americas
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
With a copy to:
Loeb & Loeb
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxxx, Esq.
Tel: 000-000-0000
Fax: 000-000-0000
LIBOR Office:
00 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
115
[Signature Page to Credit Agreement dated as of
February 7, 2003 with Equity One, Inc.]
SUNTRUST BANK,
as a Lender
By: /s/ Xxxx Xxxxx
------------------
Name: Xxxx Xxxxx
Title: FVP
Commitment Amount:
$20,000,000
Credit/Business Matters:
SunTrust Bank
0000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
116
[Signature Page to Credit Agreement dated as of
February 7, 2003 with Equity One, Inc.]
BANK LEUMI USA,
as a Lender
By: /s/ Xxxxxx Yechshevish /s/ Xxxxxxxx Xxxxx
---------------------- ------------------
Name: Xxxxxx Yechshevish Xxxxxxxx Xxxxx
Title: AVP Senior Vice President
Commitment Amount:
$16,000,000
Credit/Business Matters:
Bank Leumi USA
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Yechilevich
Tel: 000-000-0000
Fax: 000-000-0000
117
[Signature Page to Credit Agreement dated as of
February 7, 2003 with Equity One, Inc.]
CIBC INC.,
as a Lender
By: /s/ Xxxxx Xxx Xxxxxxxxx
---------------------------
Name: Xxxxx Xxx Xxxxxxxxx
Title: Authorized Signatory
Commitment Amount:
$15,000,000
Credit/Business Matters:
CIBC Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
118
[Signature Page to Credit Agreement dated as of
February 7, 2003 with Equity One, Inc.]
COMERICA BANK,
as a Lender
By: /s/ Xxxxxx X. Xxxxx
-----------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
Commitment Amount:
$15,000,000
Credit/Business Matters:
Comerica Bank
000 Xxxxxxxx Xxxxxx
XX 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
119
[Signature Page to Credit Agreement dated as of
February 7, 2003 with Equity One, Inc.]
COMMERCEBANK, N.A.,
as a Lender
By: /s/ Xxxxx Xxxxxxxx
------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
By: -----------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
Commitment Amount:
$15,000,000
Credit/Business Matters:
Commercebank, N.A.
0000 X. Xxxxxxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
120
[Signature Page to Credit Agreement dated as of
February 7, 2003 with Equity One, Inc.]
COMPASS BANK,
as a Lender
By: /s/ Xxxxxxx Xxxx Xxxxx
--------------------------
Name: Xxxxxxx Xxxx Xxxxx
Title: Senior Vice President
Commitment Amount:
$10,000,000
Credit/Business Matters:
Compass Bank
00 Xxxxx 00xx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
121
[Signature Page to Credit Agreement dated as of
February 7, 2003 with Equity One, Inc.]
ISRAEL DISCOUNT BANK OF NEW YORK,
as a Lender
By: /s/ Xxxxx Xxxxxxx
--- -----------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
By: /s/ Xxxxxxx Xxxxx
---------------------
Name: Xxxxxxx Xxxxx
Title: Senior Vice President
Commitment Amount:
$10,000,000
Credit/Business Matters:
Israel Discount Bank of New York
0000 XX 000xx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
122
