EXHIBIT 1.1
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AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of January 12, 1999
among
RECKSON OPERATING PARTNERSHIP, L.P.
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ OPERATING PARTNERSHIP, L.P.,
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS LENDERS,
ING (U.S.) CAPITAL LLC
(FORMERLY KNOWN AS ING (U.S.) CAPITAL CORPORATION),
AS DOCUMENTATION AGENT
and
THE CHASE MANHATTAN BANK
AS ARRANGER, BOOK MANAGER AND ADMINISTRATIVE AGENT,
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AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT dated as of January 12, 1999
(as amended, supplemented or modified from time to time, the "Agreement") is
entered into among RECKSON OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership ("Reckson"), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ OPERATING PARTNERSHIP, L.P., a Delaware
limited partnership ("RMOP"), the institutions from time to time a party hereto
as Lenders, whether by execution of this Agreement or an Assignment and
Acceptance, ING (U.S.) CAPITAL LLC (formerly known as ING (U.S.) CAPITAL
CORPORATION), as Documentation Agent, and THE CHASE MANHATTAN BANK, as Arranger,
Book Manager and Administrative Agent.
R E C I T A L S
WHEREAS, Reckson, RMOP and the Administrative Agent entered into a
Credit Agreement, dated as of December 4, 1998 (the "Existing Credit
Agreement"); and
WHEREAS, the parties hereto have agreed to amend and restate the terms
and conditions contained in the Existing Credit Agreement in their entirety as
hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
I. The Existing Credit Agreement is hereby modified so that all of the
terms and conditions of the aforesaid Existing Credit Agreement shall be
restated in their entirety as set forth herein, and Reckson and RMOP agree to
comply with and be subject to all of the terms, covenants and conditions of this
Agreement.
II. This Agreement shall be binding upon and inure to the benefit of
the parties hereto, and their respective successors and assigns, and shall be
deemed to be effective as of the date hereof.
III. Any reference in the Notes, the Guaranty, any other Loan Document
or any other document executed in connection with this Agreement or the Existing
Credit Credit Agreement shall be deemed to refer to this Agreement.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms. The following terms used in this Agreement
shall have the following meanings, applicable both to the singular and the
plural forms of the terms defined:
"Adjusted Unencumbered NOI" means, for any period, the sum of (i) the
NOI from the Consolidated Businesses, less the Unencumbered Capital Expenditure
Reserve Amounts for such period; and (ii) the portion of NOI of the Minority
Holdings allocable to the Borrower, in accordance with GAAP less the
Unencumbered Capital Expenditure Reserve Amounts allocable to the Borrower for
such period; which amounts represent revenues earned from Real Property that is
not subject to or encumbered by Secured Indebtedness and which revenues are not
subject to any pledge, negative pledge, Lien or other hypothecation. The sum of
(x) NOI from the Consolidated Businesses included in clause (i) hereof from
other than office and industrial Real Property, and (y) NOI included in clause
(ii) hereof, shall in no event be more than twenty-five percent (25%) of
Adjusted Unencumbered NOI. In addition, (a) the NOI from RMOP included in clause
(i) hereof shall in no event exceed an amount equal to $3,750,000 per quarter,
and (b) no NOI attributable to Investment Funds shall be included in Adjusted
Unencumbered NOI.
"Administrative Agent" means Chase.
"Affiliate", as applied to any Person, means any other Person that
directly or indirectly controls, is controlled by, or is under common control
with, that Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to vote ten percent(10.0%) or more of the equity
Securities having voting power for the election of directors of such Person or
otherwise to direct or cause the direction of the management and policies of
that Person, whether through the ownership of voting equity Securities or by
contract or otherwise.
"Agents" means, collectively, Chase in its capacity as Administrative
Agent, each Arranger, and each successor agent appointed pursuant to the terms
of Article XII of this Agreement.
"Agreement" has the meaning set forth in the preamble hereto.
"Applicable Lending Office" means, with respect to a particular Lender,
(i) its Eurodollar Lending Office in respect of provisions relating to
Eurodollar Rate Loans, and (ii) its Domestic Lending Office in respect of
provisions relating to Base Rate Loans.
"Applicable Margin" means, with respect to each Eurodollar Loan, for
the period commencing on the date of the Initial Funding through September 4,
1999, 1.50%, and thereafter, 1.75%, and with respect to each Base Rate Loan, 0%.
"Arranger" means Chase, appointed pursuant to the terms of Article XII
of this Agreement.
"Assignment and Acceptance" means an Assignment and Acceptance in
substantially the form of Exhibit A attached hereto and made a part hereof (with
blanks appropriately completed) delivered to the Administrative Agent in
connection with an assignment of a Lender's interest under this Agreement in
accordance with the provisions of Section 14.1.
"Authorized Financial Officer" means a chief executive officer,
president, chief financial officer, treasurer or other qualified senior officer
acceptable to the Administrative Agent.
"Base Rate" means, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate per annum shall at all
times be equal to the higher of:
(i) the rate of interest announced publicly by Chase in New York, New
York from time to time, as Chase's prime rate; and
(ii) the sum of (A) one-half of one percent (0.50%) per annum plus (B)
the Federal Funds Rate in effect from time to time during such period.
"Base Rate Loan" means (i) a Loan which bears interest at a rate
determined by reference to the Base Rate and the Applicable Margin as provided
in Section 5.1(a) or (ii) an overdue amount which was a Base Rate Loan
immediately before it became due.
"Borrower" means Reckson.
"Borrower Notes" has the meaning set forth in Section 4.3(a).
"Borrower Partnership Agreement" means the Reckson Partnership
Agreement as such agreement may be amended, restated, modified or supplemented
from time to time with the consent of the Agents or as permitted under Section
10.9.
"Borrowing" means a borrowing consisting of Loans of the same type
made, continued or converted on the same day.
"Business Day" means a day, in the applicable local time, which is not
a Saturday or Sunday or a legal holiday and on which banks are not required or
permitted by law or other governmental action to close (i) in New York, New York
and (ii) in the case of Eurodollar Rate Loans, in London, England.
"Capital Expenditures" means, for any period, the aggregate of all
expenditures (whether payable in cash or other Property or accrued as a
liability (but without duplication)) during such period that, in conformity with
GAAP, are required to be included in or reflected by the Company's, the
Borrower's or any of its Subsidiaries' fixed asset accounts as reflected in any
of their respective balance sheets; provided, however, Capital Expenditures
shall include the sum of all expenditures by the Consolidated Businesses and the
portion of expenditures of Minority Holdings allocable to the Consolidated
Businesses for tenant improvements, leasing commissions, property level capital
expenditures (e.g., roof replacement, parking lot repairs, etc., but not capital
expenditures in connection with expansions).
"Capital Expenditure Reserve Amounts" means the greater of (i) the sum
of (a) an amount per annum equal to $0.72 multiplied by the number of square
feet for office properties owned, directly or indirectly by any of the
Consolidated Businesses or Minority Holdings; and (b) an amount per annum equal
to $0.28 multiplied by the number of square feet for industrial properties
owned, directly or indirectly by any of the Consolidated Businesses or Minority
Holdings and (ii) as of the first day of each calendar quarter, an amount equal
to the actual Capital Expenditures for the immediately preceding consecutive
four calendar quarters.
"Capital Lease" means any lease of any property (whether real, personal
or mixed) by a Person as lessee which, in conformity with GAAP, is accounted for
as a capital lease on the balance sheet of that Person.
"Capital Stock" means, with respect to any Person, any capital stock of
such Person, regardless of class or designation, and all warrants, options,
purchase rights, conversion or exchange rights, voting rights, calls or claims
of any character with respect thereto.
"Cash and Cash Equivalents" means unrestricted (i) cash, (ii)
marketable direct obligations issued or unconditionally guaranteed by the United
States government and backed by the full faith and credit of the United States
government; and (iii) domestic and Eurodollar certificates of deposit and time
deposits, bankers' acceptances and floating rate certificates of deposit issued
by any commercial bank organized under the laws of the United States, any state
thereof, the District of Columbia, any foreign bank, or its branches or agencies
(fully protected against currency fluctuations), which, at the time of
acquisition, are rated A-1 (or better) by S&P or P-1 (or better) by ▇▇▇▇▇'▇
provided that the maturities of such Cash and Cash Equivalents shall not exceed
one year.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. Sections 9601 et seq., any amendments
thereto, any successor statutes, and any regulations or guidance promulgated
thereunder.
"Chase" means The Chase Manhattan Bank.
"Claim" means any claim or demand, by any Person, of whatsoever kind or
nature for any alleged Liabilities and Costs, whether based in contract, tort,
implied or express warranty, strict liability, criminal or civil statute,
Permit, ordinance or regulation, common law or otherwise.
"Closing Date" means January 12, 1999.
"Combined Equity Value" means Total Value, less Total Outstanding
Indebtedness.
"Commission" means the Securities and Exchange Commission and any
Person succeeding to the functions thereof.
"Commitment" means with respect to any Lender, the obligation of such
Lender to make Loans pursuant to the terms and conditions of this Agreement, and
which shall not exceed the principal amount set forth opposite such Lender's
name under the heading "Commitment" on the signature pages hereof or the
signature page of the Assignment and Acceptance by which it became a Lender, as
modified from time to time pursuant to the terms of this Agreement or to give
effect to any applicable Assignment and Acceptance, and "Commitments" means the
aggregate principal amount of the Commitments of all the Lenders, the maximum
amount of which shall be $75,000,000 as reduced from time to time pursuant to
Section 4.1, including as a result of a prepayment pursuant to Section 4.1(a) or
(d).
"Company" means Reckson Associates Realty Corp., a Maryland
corporation.
"Compliance Certificate" has the meaning set forth in Section 8.2(b).
"Consolidated" means consolidated, in accordance with GAAP.
"Consolidated Businesses" means the Company, the Borrower, Reckson FS
Limited Partnership, RMOP and their wholly-owned Subsidiaries.
"Construction Asset Cost" means, with respect to Property on which
construction of Improvements has commenced (such commencement evidenced by
foundation excavation) but has not yet been completed (as such completion shall
be evidenced by a temporary or permanent certificate of occupancy permitting use
of such Property by the general public), the aggregate sums expended on the
construction of such Improvements (including land acquisition costs and other
soft costs).
"Contaminant" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, radioactive materials, asbestos containing materials (in any
form or condition), polychlorinated biphenyls (PCBs), or any constituent of any
such substance or waste, and includes, but is not limited to, these terms as
defined in federal, state or local laws or regulations.
"Contingent Obligation" as to any Person means, without duplication,
(i) any contingent obligation of such Person required to be shown on such
Person's balance sheet in accordance with GAAP, and (ii) any obligation required
to be disclosed in the footnotes to such Person's financial statements in
accordance with GAAP, guaranteeing partially or in whole any non-recourse
Indebtedness, lease, dividend or other obligation, exclusive of contractual
indemnities (including, without limitation, any indemnity or price-adjustment
provision relating to the purchase or sale of securities or other assets) and
guarantees of non-monetary obligations (other than guarantees of completion)
which have not yet been called on or quantified, of such Person or of any other
Person. Notwithstanding the foregoing, any litigation required to be disclosed
in the footnotes to such Person's financial statements in accordance with GAAP
shall not be included as a "Contingent Obligation" unless the same shall have
been reserved for in accordance with GAAP. The amount of any Contingent
Obligation described in clause (ii) shall be deemed to be (a) with respect to a
guaranty of interest or interest and principal, or operating income guaranty,
the sum of all payments required to be made thereunder (which in the case of an
operating income guaranty shall be deemed to be equal to the debt service for
the note secured thereby), calculated at the interest rate applicable to such
Indebtedness, through (i) in the case of an interest or interest and principal
guaranty, the stated date of maturity of the obligation (and commencing on the
date interest could first be payable thereunder), or (ii) in the case of an
operating income guaranty, the date through which such guaranty will remain in
effect, and (b) with respect to all guarantees not covered by the preceding
clause (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such guaranty is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as recorded on the
balance sheet and on the footnotes to the most recent financial statements of
the Borrower required to be delivered pursuant hereto. Notwithstanding anything
contained herein to the contrary, guarantees of completion shall not be deemed
to be Contingent Obligations unless and until a claim for payment has been made
thereunder, at which time any such guaranty of completion shall be deemed to be
a Contingent Obligation in an amount equal to any such claim. Subject to the
preceding sentence, (i) in the case of a joint and several guaranty given by
such Person and another Person (but only to the extent such guaranty is
recourse, directly or indirectly to the Borrower), the amount of the guaranty
shall be deemed to be 100% thereof unless and only to the extent that (X) such
other Person has delivered Cash or Cash Equivalents to secure all or any part of
such Person's guaranteed obligations or (Y) such other Person holds an Credit
Rating from either ▇▇▇▇▇'▇ or S&P of BBB- (or its equivalent) or better, and
(ii) in the case of a guaranty, (whether or not joint and several) of an
obligation otherwise constituting Debt of such Person, the amount of such
guaranty shall be deemed to be only that amount in excess of the amount of the
obligation constituting Indebtedness of such Person. Notwithstanding anything
contained herein to the contrary, "Contingent Obligations" shall not be deemed
to include guarantees of loan commitments or of construction loans to the extent
the same have not been drawn.
"Contractual Obligation", as applied to any Person, means any provision
of any Securities issued by that Person or any indenture, mortgage, deed of
trust, security agreement, pledge agreement, guaranty, contract, undertaking,
agreement or instrument to which that Person is a party or by which it or any of
its properties is bound, or to which it or any of its properties is subject.
"Credit Availability" means, at any particular time, the amount by
which the Maximum Credit Amount at such time exceeds the Credit Obligations at
such time.
"Credit Obligations" means, at any particular time, the outstanding
principal amount of the Loans at such time.
"Credit Period" means the period from the Initial Funding Date to April
5, 1999.
"Credit Rating" means the ratings assigned by not less than two of
the Rating Agencies (at least one of which shall be S&P or ▇▇▇▇▇'▇) to the
Borrower's senior long-term unsecured indebtedness.
"Cure Loans" has the meaning set forth in Section 4.2(b)(v)(C).
"Customary Permitted Liens" means
(i) Liens (other than Environmental Liens and Liens in favor of
the PBGC) with respect to the payment of taxes, assessments or
governmental charges or levies in all cases which are not yet due or
which are being contested in good faith by appropriate proceedings in
accordance with Section 9.4 and with respect to which adequate
reserves or other appropriate provisions are being maintained in
accordance with GAAP;
(ii) statutory and common law Liens of landlords against any
Property of the Borrower or any of its Subsidiaries;
(iii) Liens against any Property of the Borrower or any of its
Subsidiaries in favor of suppliers, mechanics, carriers, materialmen,
warehousemen or workmen and other Liens against any Property of the
Borrower or any of its Subsidiaries imposed by law created in the
ordinary course of business for amounts which could not reasonably be
expected to result in a Material Adverse Effect;
(iv) Liens (other than any Lien in favor of the PBGC) incurred or
deposits made in the ordinary course of business in connection with
worker's compensation, unemployment insurance or other types of social
security benefits or to secure the performance of bids, tenders,
sales, contracts (other than for the repayment of borrowed money),
surety, appeal and performance bonds; provided that (A) all such Liens
do not in the aggregate materially detract from the value of the
Borrower's or such Subsidiary's assets or Property or materially
impair the use thereof in the operation of their respective
businesses, and (B) all Liens of attachment or judgment and Liens
securing bonds to stay judgments or in connection with appeals which
do not secure at any time an aggregate amount of recourse Indebtedness
exceeding $10,000,000; and
(v) Liens against any Property of the Borrower or any Subsidiary
of the Borrower arising with respect to zoning restrictions,
easements, licenses, reservations, covenants, rights-of-way, utility
easements, building restrictions and other similar charges or
encumbrances on the use of Real Property which do not materially
interfere with the ordinary conduct of the business of the Borrower or
any of its Subsidiaries;
(vi) leases or subleases granted to other Persons not materially
interfering with the conduct of the business of the Borrower and its
Subsidiaries taken as a whole;
(vii) Liens placed upon equipment or machinery used in the
ordinary course of business of the Borrower or any of its Subsidiaries
at the time of acquisition thereof by the Borrower or any such
Subsidiary or within 180 days thereafter to secure Indebtedness
incurred to pay all or a portion of the purchase price thereof,
provided that the Lien encumbering the equipment or machinery so
acquired does not encumber any other asset of the Borrower or such
Subsidiary;
(viii) customary restrictions imposed by licensors of software or
trademarks on users thereof;
(ix) interests of licensees and sublicensees in any trademarks or
other intellectual property license or sublicense by the Borrower or
any of its Subsidiaries; and
(x) Environmental Liens less than $5,000,000, which are being
contested in good faith by appropriate proceedings.
"Designated Lender" has the meaning set forth in Section 13.4.
"Documentation Agent" means ING (U.S.) Capital LLC (formerly known as
ING (U.S.) Capital Corporation) in its capacity as Documentation Agent.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"Dollars" and "$" mean the lawful money of the United States.
"Domestic Lending Office" means, with respect to any Lender, such
Lender's office, located in the United States, specified as the "Domestic
Lending Office" under its name on the signature pages hereof or on the
Assignment and Acceptance by which it became a Lender or such other United
States office of such Lender as it may from time to time specify by written
notice to the Borrower and the Administrative Agent.
"Duff & ▇▇▇▇▇▇" means Duff & ▇▇▇▇▇▇ Credit Rating Co. or any successor
thereto.
"Eligible Assignee" means (i) a Lender or any Affiliate thereof; (ii) a
commercial bank having total assets in excess of $5,000,000,000; (iii) the
central bank of any country which is a member of the Organization for Economic
Cooperation and Development having total assets in excess of $10,000,000,000; or
(iv) a finance company or other financial institution reasonably acceptable to
the Administrative Agent, which is regularly engaged in making, purchasing or
investing in loans and having total assets in excess of $1,000,000,000 or is
otherwise reasonably acceptable to the Administrative Agent.
"Environmental, Health or Safety Requirements of Law" means all
Requirements of Law derived from or relating to any federal, state or local law,
ordinance, rule, regulation, Permit, license or other binding determination of
any Governmental Authority relating to, imposing liability or standards
concerning, or otherwise addressing the environment, health and/or safety,
including, but not limited to the Clean Air Act, the Clean Water Act, CERCLA,
RCRA, any so-called "Superfund" or "Superlien" law, the Toxic Substances Control
Act and OSHA, and public health codes, each as from time to time in effect.
"Environmental Lien" means a Lien in favor of any Governmental
Authority for any (i) liabilities under any Environmental, Health or Safety
Requirement of Law, or (ii) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"Environmental Property Transfer Act" means any applicable Requirement
of Law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the transfer, sale, lease or closure of any Property or
deed or title for any Property for environmental reasons, including, but not
limited to, any so-called "Environmental Cleanup Responsibility Act" or
"Responsible Property Transfer Act".
"Equipment" means equipment used in connection with the maintenance of
Projects and Properties.
"ERISA" means the Employee Retirement Income Security Act of 1974, 29
U.S.C. Sections 1000 et seq., any amendments thereto, any successor statutes,
and any regulations or guidance promulgated thereunder.
"ERISA Affiliate" means (i) any corporation which is a member of the
same controlled group of corporations (within the meaning of Section 414(b) of
the Internal Revenue Code) as the Borrower; (ii) a partnership or other trade or
business (whether or not incorporated) which is under common control (within the
meaning of Section 414(c) of the Internal Revenue Code) with the Borrower; and
(iii) a member of the same affiliated service group (within the meaning of
Section 414(m) of the Internal Revenue Code) as the Borrower, any corporation
described in clause (i) above or any partnership or trade or business described
in clause (ii) above.
"ERISA Termination Event" means (i) a Reportable Event with respect to
any Plan or Multiemployer Plan; (ii) the withdrawal of the Borrower or any ERISA
Affiliate from a Benefit Plan during a plan year in which the Borrower or such
ERISA Affiliate was a "substantial employer" as defined in Section 4001(a)(2) of
ERISA or the cessation of operations which results in the termination of
employment of 20% of Benefit Plan participants who are employees of the Borrower
or any ERISA Affiliate; (iii) the imposition of an obligation on the Borrower or
any ERISA Affiliate under Section 4041 of ERISA to provide affected parties
written notice of intent to terminate a Benefit Plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the institution by the PBGC of
proceedings to terminate a Benefit Plan; (v) any event or condition which might
constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Benefit Plan; or (vi) the partial or
complete withdrawal of the Borrower or any ERISA Affiliate from a Multiemployer
Plan.
"Eurodollar Affiliate" means, with respect to each Lender, the
Affiliate of such Lender (if any) set forth below such Lender's name under the
heading "Eurodollar Affiliate" on the signature pages hereof or on the
Assignment and Acceptance by which it became a Lender or such Affiliate of a
Lender as it may from time to time specify by written notice to the Borrower and
the Administrative Agent.
"Eurodollar Interest Period" has the meaning set forth in Section
5.2(b).
"Eurodollar Interest Rate Determination Date" has the meaning set forth
in Section 5.2(c).
"Eurodollar Lending Office" means, with respect to any Lender, such
Lender's office (if any) specified as the "Eurodollar Lending Office" under its
name on the signature pages hereof or on the Assignment and Acceptance by which
it became a Lender or such other office or offices of such Lender as it may from
time to time specify by written notice to the Borrower and the Administrative
Agent.
"Eurodollar Rate" means, for any Eurodollar Interest Period with
respect to any Eurodollar Rate Loan, an interest rate per annum equal to the
rate per annum obtained by multiplying (a) a rate per annum equal to the rate
for U.S. dollar deposits with maturities comparable to such Eurodollar Interest
Period which appears on Telerate Page 3750 as of 11:00 a.m., London time, two
(2) Business Days prior to the commencement of such Eurodollar Interest Period,
provided, however, that if such rate does not appear on Telerate Page 3750, the
"Eurodollar Rate" applicable to a particular Eurodollar Interest Period shall
mean a rate per annum equal to the rate at which U.S. dollar deposits in an
amount approximately equal to the principal balance (or the portion thereof
which will bear interest at a rate determined by reference to the Eurodollar
Rate during the Eurodollar Interest Period to which such Eurodollar Rate is
applicable in accordance with the provisions hereof), and with maturities
comparable to the last day of the Eurodollar Interest Period with respect to
which such Eurodollar Rate is applicable, are offered in immediately available
funds in the London Interbank Market to the London office of Chase by leading
banks in the Eurodollar market at 11:00 a.m., London time, two (2) Business Days
prior to the commencement of the Eurodollar Interest Period to which such
Eurodollar Rate is applicable, by (b) a fraction (expressed as a decimal) the
numerator of which shall be the number one and the denominator of which shall be
the number one minus the Eurodollar Reserve Percentage for such Eurodollar
Interest Period.
"Eurodollar Rate Loan" means (i) a Loan which bears interest at a rate
determined by reference to the Eurodollar Rate and the Applicable Margin for
Eurodollar Rate Loans, as provided in Section 5.1(a) or (ii) an overdue amount
which was a Eurodollar Loan immediately before it became due.
"Eurodollar Reserve Percentage" means, for any day, that percentage
which is in effect on such day, as prescribed by the Federal Reserve Board for
determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York, New York with deposits exceeding five
billion Dollars in respect of "Eurocurrency Liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on Eurodollar Rate Loans is determined or any category of
extensions of credit or other assets which includes loans by a non-United States
office of any bank to United States residents).
"Event of Default" means any of the occurrences set forth in Section
11.1 after the expiration of any applicable grace period and the giving of any
applicable notice, in each case as expressly provided in Section 11.1.
"Existing Credit Agreement" has the meaning set forth in the Recitals
hereof.
"Existing Permitted Liens" means each of the Liens set forth on
Schedule 1.1.1 hereto.
"FAD" means "funds available for distribution" and shall mean, for any
period, FFO less (i) Capital Expenditures, for such period, whether payable or
accrued as a liability, (ii) adjustments to account for rents on an accrual
(rather than GAAP) basis for such period, and (iii) free rent and accrued rent
with respect to tenants that are more than 90 days in arrears in the payment of
rent for such period.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day in New York, New York, for the next preceding
Business Day) in New York, New York by the Federal Reserve Bank of New York, or
if such rate is not so published for any day which is a Business Day in New
York, New York, the average of the quotations for such day on transactions by
the Reference Bank, as determined by the Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System or any Governmental Authority succeeding to its functions.
"FFO" means "funds from operations" as defined in the National
Association of Real Estate Investment Trusts ("NAREIT") White Paper on Funds
From Operations as approved by the NAREIT Board of Governors on March 3, 1995.
"Financial Statements" means (i) quarterly and annual consolidated
statements of income and retained earnings, statements of cash flow, and balance
sheets, prepared in accordance with GAAP, consistently applied, and (ii) such
other financial statements of the Borrower, the Company and the other
Consolidated Businesses or Minority Holdings that the Company shall routinely
and regularly prepare and that the Arranger or the Requisite Lenders may from
time to time reasonably request.
"Fiscal Year" means the fiscal year of the Company and the Borrower for
accounting and tax purposes, which shall be the 12-month period ending on
December 31 of each calendar year.
"Fitch" means Fitch IBCA, Inc. or any successor thereto.
"Fixed Charges" means, with respect to any fiscal period, the sum of
(a) Total Interest Expense and (b) the aggregate of all scheduled principal
payments on Total Outstanding Indebtedness according to GAAP made or required to
be made during such fiscal period for the Consolidated Businesses and Minority
Holdings (but excluding balloon payments of principal due upon the stated
maturity of an Indebtedness), and (c) the aggregate of all dividends incurred
(whether paid or accrued) on the Company's or any of its consolidated
Subsidiaries' preferred stock not owned by the Company or any of its Affiliates.
"Funding Date" means, with respect to any Loan, the date of funding of
such Loan.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the American Institute of Certified Public
Accountants' Accounting Principles Board and Financial Accounting Standards
Board or in such other statements by such other entity as may be in general use
by significant segments of the accounting profession as in effect on the Closing
Date (unless otherwise specified herein as in effect on another date or dates).
"General Partner" means the Company and any successor general
partner(s) of the Borrower.
"Governmental Approval" means all right, title and interest in any
existing or future certificates, licenses, permits, variances, authorizations
and approvals issued by any Governmental Authority having jurisdiction with
respect to any Project.
"Governmental Authority" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guaranty" means the Amended and Restated Guaranty Agreement, dated as
of the date hereof, made by the Borrower, the Company, Reckson FS Limited
Partnership, RMIT and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Industrial Interim GP LLC for the benefit
of the Lenders.
"Improvements" means all buildings, fixtures, structures, parking
areas, landscaping and all other improvements whether existing now or hereafter
constructed, together with all machinery and mechanical, electrical, HVAC and
plumbing systems presently located thereon and used in the operation thereof,
excluding (a) any such items owned by utility service providers, (b) any such
items owned by tenants or other third-parties unaffiliated with the Borrower and
(c) any items of personal property.
"Indebtedness", as applied to any Person, means, at any time, without
duplication, (a) all indebtedness, obligations or other liabilities of such
Person (whether consolidated or representing the proportionate interest in any
other Person) (i) for borrowed money (including construction loans) or evidenced
by debt securities, debentures, acceptances, notes or other similar instruments,
and any accrued interest and fees relating thereto, (ii) under profit payment
agreements or in respect of obligations to redeem, repurchase or exchange any
Securities of such Person or to pay dividends in respect of any preferred stock
(but only to the extent that such Person shall be contractually obligated to pay
the same), (iii) with respect to letters of credit issued for such Person's
account, (iv) to pay the deferred purchase price of property or services, except
accounts payable and accrued expenses arising in the ordinary course of
business, (v) in respect of Capital Leases, (vi) which are Contingent
Obligations or (vii) under indemnities but only at such time as a claim shall
have been made thereunder; (b) all indebtedness, obligations or other
liabilities of such Person or others secured by a Lien on any property of such
Person, whether or not such indebtedness, obligations or liabilities are assumed
by such Person, all as of such time; (c) all indebtedness, obligations or other
liabilities of such Person in respect of interest rate contracts and foreign
exchange contracts, net of liabilities owed to such Person by the counterparties
thereon; (d) all preferred stock subject (upon the occurrence of any contingency
or otherwise) to mandatory redemption; and (e) all Contractual Obligations with
respect to any of the foregoing.
"Indemnified Matters" has the meaning set forth in Section 14.3.
"Indemnitees" has the meaning set forth in Section 14.3.
"Initial Funding Date" means the date on or after the Closing Date, on
which all of the conditions described in Section 6.1 have been satisfied (or
waived) in a manner satisfactory to the Administrative Agent and the Lenders and
on which the initial Loans under this Agreement are made by the Lenders to the
Borrower.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, any successor
statute and any regulations or guidance promulgated thereunder.
"Investment" means, with respect to any Person, (i) any purchase or
other acquisition by that Person of Securities, or of a beneficial interest in
Securities, issued by any other Person, (ii) any purchase by that Person of all
or substantially all of the assets of a business conducted by another Person,
(iii) any loan, advance (other than deposits with financial institutions
available for withdrawal on demand, prepaid expenses, accounts receivable,
advances to employees and similar items made or incurred in the ordinary course
of business) or capital contribution by that Person to any other Person,
including all Indebtedness to such Person arising from a sale of property by
such Person other than in the ordinary course of its business, and (iv) any
purchase or other acquisition by that Person of Real Property, whether directly
or indirectly. The amount of any Investment shall be the original cost of such
Investment, without any adjustments for increases or decreases in value or
write-ups, write-downs or write-offs with respect to such Investment.
"Investment Fund" means (i) Reckson Strategic Venture Partners LLC, and
(ii) a Person in which Reckson Service Industries Inc. or a Subsidiary thereof
is a general partner or a managing member, in the case of a partnership or
limited liability company, and which, in the case of a corporation, has the
right to elect a majority of the board of directors.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"knowledge" with reference to the Company, the Borrower, RMOP or any
Subsidiary of any of them, means the actual knowledge of such Person after
reasonable inquiry (which reasonable inquiry shall include, without limitation,
interviewing and questioning such other Persons as the Company, the Borrower,
RMOP or such Subsidiary, as applicable, deems reasonably necessary).
"Lease" means a lease, license, concession agreement or other agreement
providing for the use or occupancy of any portion of any Project, including all
amendments, supplements, modifications and assignments thereof and all side
letters or side agreements relating thereto.
"Lender" means each of the Arranger, the Administrative Agent, and each
financial institution a signatory hereto as a Lender as of the Closing Date and,
at any other given time, each financial institution which is a party hereto as a
Arranger, Administrative Agent or Lender, whether as a signatory hereto or
pursuant to an Assignment and Acceptance, and regardless of the capacity in
which such entity is acting (i.e. whether as Administrative Agent, Arranger, or
Lender).
"Leverage Ratio" means the ratio, expressed as a percentage, of the
Total Outstanding Indebtedness to the Total Value.
"Liabilities and Costs" means all liabilities, obligations,
responsibilities, losses, damages, personal injury, death, punitive damages,
economic damages, consequential damages, treble damages, intentional, willful or
wanton injury, damage or threat to the environment, natural resources or public
health or welfare, costs and expenses (including, without limitation, attorney,
expert and consulting fees and costs of investigation, feasibility or Remedial
Action studies), fines, penalties and monetary sanctions, interest, direct or
indirect, known or unknown, absolute or contingent, past, present or future.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, conditional sale agreement, deposit arrangement, security interest,
encumbrance, lien (statutory or other and including, without limitation, any
Environmental Lien), preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever in respect of any
property of a Person, whether granted voluntarily or imposed by law, and
includes the interest of a lessor under a Capital Lease or under any financing
lease having substantially the same economic effect as any of the foregoing and
the filing of any financing statement or similar notice (other than a financing
statement filed by a "true" lessor pursuant to Section 9-408 of the Uniform
Commercial Code), naming the owner of such property as debtor, under the Uniform
Commercial Code or other comparable law of any jurisdiction.
"Limited Partners" means those Persons who from time to time are
limited partners of the Borrower or RMOP, as the case may be; and "Limited
Partner" means each of the Limited Partners, individually.
"Loan Account" has the meaning set forth in Section 4.3(b).
"Loan Documents" means this Agreement, the Notes and the Guaranty.
"Loans" means the loans made by a Lender pursuant to Section 2.1;
provided, that if any such loan or loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Conversion/Continuation, the term "Loan"
shall refer to the combined principal amount resulting from such combination or
to each of the separate principal amounts resulting from such subdivision, as
the case may be.
"Management Company" means, collectively (i) Reckson Management Group,
Inc., a Delaware corporation, and its wholly-owned or controlled Subsidiaries
and (ii) such other property management companies controlled (directly or
indirectly) by the Company or the Borrower and which property management
companies manage properties owned by the Company, the Borrower and its
Subsidiaries and for which the Borrower has previously provided the
Administrative Agent with: (1) notice of such property management company, (2)
evidence reasonably satisfactory to the Administrative Agent that such property
management company is controlled (directly or indirectly) by the Company or the
Borrower, and (3) evidence reasonably satisfactory to the Administrative Agent
that such property management company manages properties owned, in whole or in
part by the Company or the Borrower or its Subsidiaries.
"Margin Stock" means "margin stock" as such term is defined in
Regulation U.
"Material Adverse Effect" means a material adverse effect upon (i) the
financial condition or assets of the Company, the Borrower, RMOP and their
Subsidiaries taken as a whole, (ii) the ability of the Borrower to perform its
material obligations under the Loan Documents, (iii) the ability of the Company,
Reckson FS Limited Partnership, RMIT or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Industrial Interim GP LLC
to perform its material obligations under the Guaranty, or (iv) the ability of
the Lenders or the Administrative Agent to enforce any of the Loan Documents.
"Maximum Credit Amount" means, at any particular time, the Commitments
at such time.
"Minority Holdings" means any interests in partnerships, joint
ventures, limited liability companies, trusts, associations and corporations
held or owned directly or indirectly by the Borrower and/or the Company which
are not wholly-owned by the Borrower and/or the Company.
"Moody's" means ▇▇▇▇▇'▇ Investor Services, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years
was, contributed to by either the Borrower or any ERISA Affiliate or in respect
of which the Borrower or any ERISA Affiliate has assumed any liability.
"Net Cash Proceeds" means all cash when and as received in connection
with the sale or refinancing of any asset, or any sale of any equity interest
(other than such as would give rise to Net Offering Proceeds) in the Borrower,
the Company, RMOP or any of their Subsidiaries, less reasonable costs and
expenses, repayment of secured indebtedness with respect to the applicable
asset, and net of an amount equal to taxable capital gains and real estate
transfer taxes payable in connection with any asset sale.
"Net Offering Proceeds" means all cash or other assets received by the
Company as a result of the sale of common shares, preferred shares, partnership
interests, limited liability company interests, convertible securities or other
ownership or equity interests in the Company, other than in connection with the
acquisition of an asset or the equity securities of any Person but only to the
extent that no cash is received in connection therewith, less customary costs,
expenses and discounts of issuance paid by the Company.
"NOI" means (x) net operating income determined in accordance with
GAAP, before gains or losses from extraordinary items relating to any Real
Property, plus (y) (i) any interest expense relating to such Real Property, (ii)
depreciation and amortization relating to such Real Property, and (iii) Property
Level G&A to the extent included in the calculation of net operating income,
less (z) (i) free rent and accrued rent with respect to tenants that are more
than 90 days in arrears in the payment of rent, and further adjusted to omit the
straight line treatment of rent, so as to account for rent on an accrual basis,
(ii) any interest income relating to such Real Property, and (iii) the greater
of Property Level G&A to the extent included in the calculation of net operating
income and an amount equal to 3% of gross revenues with respect to a Real
Property.
"Non Rata Loan" has the meaning set forth in Section 4.2 (b)(v).
"Note" means the Borrower Notes and the RMOP Notes; "Notes" means,
collectively, all of such Notes outstanding at any given time.
"Notice of Borrowing" means a notice substantially in the form of
Exhibit C attached hereto and made a part hereof.
"Notice of Conversion/Continuation" means a notice substantially in the
form of Exhibit D attached hereto and made a part hereof with respect to a
proposed conversion or continuation of a Loan pursuant to Section 5.1(c).
"Obligations" means all Loans, advances, debts, liabilities and
monetary obligations owing by the Borrower or RMOP to the Administrative Agent,
any other Lender, or any Person entitled to indemnification pursuant to Section
14.3 of this Agreement, of any kind or nature, arising under this Agreement, the
Notes or any other Loan Document. The term includes, without limitation, all
interest, charges, reasonable expenses, fees, reasonable attorneys' fees and
disbursements and any other sum chargeable to the Borrower under this Agreement
or any other Loan Document.
"Officer's Certificate" means, as to a corporation, a certificate
executed on behalf of such corporation by the chairman of its board of directors
(if an officer of such corporation) or its chief executive officer, president,
any of its vice-presidents, its chief financial officer, or its treasurer and,
as to a partnership, a certificate executed on behalf of such partnership by the
chairman of the board of directors (if an officer of such corporation) or chief
executive officer, president, any vice-president, or treasurer of the general
partner of such partnership.
"Operating Account" has the meaning set forth in Section 9.11 hereof.
"Operating Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee which is not
a Capital Lease.
"Organizational Documents" means, with respect to any corporation,
limited liability company, or partnership (i) the articles/certificate of
incorporation (or the equivalent organizational documents) of such corporation
or limited liability company, (ii) the partnership agreement executed by the
partners in the partnership, (iii) the by-laws (or the equivalent governing
documents) of the corporation, limited liability company or partnership, and
(iv) any document setting forth the designation, amount and/or relative rights,
limitations and preferences of any class or series of such corporation's Capital
Stock or such limited liability company's or partnership's equity or ownership
interests.
"OSHA" means the Occupational Safety and Health Act of 1970, 29 U.S.C.
Sections 651 et seq., any amendments thereto, any successor statutes and any
regulations or guidance promulgated thereunder.
"Other Management Company" means property management companies
controlled (directly or indirectly) by the Company or the Borrower which may
manage properties owned by third parties.
"PBGC" means the Pension Benefit Guaranty Corporation and any Person
succeeding to the functions thereof.
"Permits" means any permit, consent, approval, authorization license,
variance, or permission required from any Person, including any Governmental
Approvals.
"Permitted Securities Options" means the subscriptions, options,
warrants, rights, convertible Securities and other agreements or commitments
relating to the issuance of the Borrower's Securities or the Company's Capital
Stock identified as such on Schedule 1.1.2.
"Person" means any natural person, corporation, limited liability
company, limited partnership, general partnership, joint stock company, joint
venture, association, company, trust, bank, trust company, land trust, business
trust or other organization, whether or not a legal entity, and any Governmental
Authority.
"Plan" means an employee benefit plan defined in Section 3(3) of ERISA
in respect of which the Borrower or any ERISA Affiliate (i) is, or within the
immediately preceding six (6) years was, an "employer" as defined in Section
3(5) of ERISA or (ii) has assumed or is otherwise subject to any liability.
"Potential Event of Default" means an event which, with the giving of
notice or the lapse of time, or both, would constitute an Event of Default.
"Prepayment Date" has the meaning set forth in Section 4.1(d).
"Project" means any office or industrial properties owned, directly or
indirectly, by any of the Consolidated Businesses or Minority Holdings.
"Property" means any Real Property or personal property, plant,
building, facility, structure, equipment, general intangible, receivable, or
other asset owned or leased by any Consolidated Business or any Minority
Holding. The definition of "Property" shall specifically exclude items of Real
Property or personal property owned or leased by members of the Reckler family.
"Property Level G&A" means general and administrative expenses
allocated to the Properties.
"Pro Rata Share" means, with respect to any Lender, the percentage
obtained by dividing (i) the sum of such Lender's Commitment (in each case, as
adjusted from time to time in accordance with the provisions of this Agreement
or any Assignment and Acceptance to which such Lender is a party) by (ii) the
aggregate amount of all of the Commitments.
"Quarterly Capital Expenditure Reserve Amounts" means, as of the first
day of any calendar quarter for the immediately preceding quarter, one quarter
of the Capital Expenditure Reserve Amounts.
"RCRA" means the Resource Conservation and Recovery Act of 1976, 42
U.S.C. Sections 6901 et seq., any amendments thereto, any successor statutes,
and any regulations or guidance promulgated thereunder.
"Real Property" means all of the Borrower's, RMOP's and the
consolidated Subsidiaries' present and future right, title and interest
(including, without limitation, any leasehold estate) in (i) any plots, pieces
or parcels of land, (ii) any Improvements of every nature whatsoever (the rights
and interests described in clauses (i) and (ii) above being the "Premises"),
(iii) all easements, rights of way, gores of land or any lands occupied by
streets, ways, alleys, passages, sewer rights, water courses, water rights and
powers, and public places adjoining such land, and any other interests in
property constituting appurtenances to the Premises, or which hereafter shall in
any way belong, relate or be appurtenant thereto and (iv) all other rights and
privileges thereunto belonging or appertaining and all extensions, additions,
improvements, betterments, renewals, substitutions and replacements to or of any
of the rights and interests described in clause (iii) above.
"Reckson" means Reckson Operating Partnership, L.P., a Delaware limited
partnership.
"Recourse Secured Indebtedness Limitation" has the meaning set forth in
Section 10.11 hereof.
"Reference Bank" means Chase.
"Register" has the meaning set forth in Section 14.1(c).
"Regulation A" means Regulation A of the Federal Reserve Board as in
effect from time to time.
"Regulation T" means Regulation T of the Federal Reserve Board as in
effect from time to time.
"Regulation U" means Regulation U of the Federal Reserve Board as in
effect from time to time.
"Regulation X" means Regulation X of the Federal Reserve Board as in
effect from time to time.
"REIT" means a domestic trust or corporation that qualifies as a real
estate investment trust under the provisions of Sections 856, et seq. of the
Internal Revenue Code.
"Release" means any release, spill, emission, leaking, pumping,
pouring, dumping, injection, deposit, disposal, abandonment, or discarding of
barrels, containers or other receptacles, discharge, emptying, escape,
dispersal, leaching or migration into the indoor or outdoor environment or into
or out of any Property, including the movement of Contaminants through or in the
air, soil, surface water, groundwater or Property.
"Remedial Action" means actions required to (i) clean up, remove, treat
or in any other way address Contaminants in the indoor or outdoor environment;
(ii) prevent the Release or threat of Release or minimize the further Release of
Contaminants; or (iii) investigate and determine if a remedial response is
needed and to design such a response and post-remedial investigation,
monitoring, operation and maintenance and care.
"Reportable Event" means any of the events described in Section 4043(c)
of ERISA and the regulations promulgated thereunder as in effect from time to
time but not including any such event as to which the thirty (30) day notice
requirement has been waived by applicable PBGC regulations.
"Requirements of Law" means, as to any Person, the charter and by-laws
or other organizational or governing documents of such Person, and any law, rule
or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
including, without limitation, the Securities Act, the Securities Exchange Act,
Regulations T, U and X, ERISA, the Fair Labor Standards Act, the Worker
Adjustment and Retraining Notification Act, Americans with Disabilities Act of
1990, and any certificate of occupancy, zoning ordinance, building,
environmental or land use requirement or Permit and Environmental, Health or
Safety Requirement of Law.
"Requisite Lenders" means Lenders whose Pro Rata Shares, in the
aggregate, are equal to or greater than sixty-six and two-thirds percent
(66.67%); provided, however, that, in the event any of the Lenders shall have
failed to fund its Pro Rata Share of any Loan requested by the Borrower which
such Lenders are obligated to fund under the terms of this Agreement and any
such failure has not been cured as provided in Section 4.2(b)(v)(B), then for so
long as such failure continues, "Requisite Lenders" means Lenders (excluding all
Lenders whose failure to fund their respective Pro Rata Shares of such Loans
have not been so cured) whose Pro Rata Shares represent sixty-six and two-thirds
percent (66.67%) or more of the aggregate Pro Rata Shares of such Lenders;
provided, further, however, that, in the event that the Commitments have been
terminated pursuant to the terms of this Agreement, "Requisite Lenders" means
Lenders (without regard to such Lenders' performance of their respective
obligations hereunder) whose aggregate ratable shares (stated as a percentage)
of the aggregate outstanding principal balance of all Loans are sixty six and
two thirds percent (66.67%) or more.
"Revolving Credit Agreement" means the Credit Agreement, dated as of
July 23, 1998, among the Borrower, RMOP, Chase, as administrative agent, UBS AG,
New York Branch, as syndication agent, PNC Bank, National Association, as
documentation agent, and the other lenders party thereto, as the same may be
amended, modified or restated.
"RMIT" means ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Industrial Trust, a Maryland real estate
investment trust.
"RMOP" means ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Operating Partnership, L.P., a Delaware
limited partnership.
"RMOP Note" has the meaning set forth in Section 4.3(a).
"RMOP Partnership Agreement" means the Amended and Restated Agreement
of Limited Partnership of RMOP, dated as of January 6, 1998.
"RMOP Obligations" means, at any particular time the outstanding
principal balance of the Loans made to RMOP at such time.
"RMOP Share" means as of the date of determination the percentage
obtained by dividing (i) the sum of the RMOP Obligations due and owing by RMOP
by (ii) the sum of all Obligations due and owing hereunder.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"Secured Indebtedness" means any Indebtedness secured by a Lien.
"Secured Loan-to-Value Ratio" means, the ratio, expressed as a
percentage, of the aggregate amount of any Secured Indebtedness as of the date
of the determination to the value with respect to such Real Property encumbered
thereby as of such date, which value shall be determined by reference to the
formula set forth in the definition of "Total Value" with respect to each such
Real Property.
"Securities" means any stock, shares, voting trust certificates,
partnership interests, bonds, debentures, notes or other evidences of
indebtedness, secured or unsecured, convertible, subordinated or otherwise, or
in general any instruments commonly known as "securities", including, without
limitation, any "security" as such term is defined in Section 8-102 of the
Uniform Commercial Code, or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or acqui-
sition of, or any right to subscribe to, purchase or acquire any of the
foregoing, but shall not include the Notes or any other evidence of the
Obligations.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, and any successor statute.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"Servicing EBITDA" means, with respect to the Management Company or any
other service company owned by the Borrower or the Company, as of the first day
of each fiscal quarter for the immediately preceding fiscal quarter, an amount,
determined in accordance with GAAP, equal to (i) total earnings relating to such
companies' operations adjusted to exclude amounts that are more than 90 days
delinquent, less (ii) total operating expenses relating to such operations,
including corporate marketing, general and administrative expenses.
"Solvent", when used with respect to any Person, means that at the time
of determination:
(i) the fair saleable value of its assets is in excess of the
total amount of its liabilities (including, without limitation,
contingent liabilities); and
(ii) the present fair saleable value of its assets is greater
than its probable liability on its existing debts as such debts become
absolute and matured; and
(iii) it is then able and expects to be able to pay its debts
(including, without limitation, contingent debts and other
commitments) as they mature; and
(iv) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
"Subsidiary" of a Person means any corporation, limited liability
company, general or limited partnership, or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned or controlled by such Person, one or more of
the other subsidiaries of such Person or any combination thereof.
"Taxes" has the meaning set forth in Section 13.1(a).
"Telerate Page 3750" means the display as "Page 3750" on the Associated
Press-Dow ▇▇▇▇▇ Market Service (or such other page as may replace Page 3750 on
the Associated Press-Dow ▇▇▇▇▇ Market Service or such other service as may be
nominated by the British Bankers' Association as the information vendor for the
purpose of displaying British Bankers' Association interest settlement rates for
U.S. Dollar deposits). Any Eurodollar Rate determined on the basis of the rate
displayed on Telerate Page 3750 in accordance with the provisions hereof shall
be displayed by the Associated Press-Dow ▇▇▇▇▇ Telerate Service within one hour
of the time when such rate is first displayed by such service.
"Tenant Allowance" means a cash allowance paid to a tenant by the
landlord pursuant to a Lease.
"Termination Date" means the earlier to occur of (i) December 3, 1999
(or, if not a Business Day, the next preceding Business Day); and (ii) the date
of termination of the Commitments pursuant to the terms of this Agreement.
"TI Work" means any construction or other "build-out" of tenant
leasehold improvements to the space demised to such tenant under Leases
(excluding such tenant's furniture, fixtures and equipment) performed pursuant
to the terms of such Leases, whether or not such tenant improvement work is
performed by or on behalf of the landlord or as part of a Tenant Allowance.
"Total Adjusted EBITDA" means, for any period, (i) net income
determined in accordance with GAAP, plus (ii) depreciation and amortization
deducted in the calculation of net income, plus (iii) taxes on income deducted
in the calculation of such net income, less (iv) the gains (and plus the losses)
from extraordinary items, asset sales, write-ups, or debt forgiveness included
in the calculation of such net income, less (v) the aggregate Quarterly Capital
Expenditure Reserve Amounts for such period.
"Total Interest Expense" means, for any period, the sum of (i) interest
expense of the Consolidated Businesses paid during such period and (ii) interest
expense of the Consolidated Businesses accrued and/or capitalized for such
period and (iii) the portion of the interest expense of Minority Holdings
allocable to the Borrower in accordance with GAAP and paid during such period
and (iv) the portion of the interest expense of Minority Holdings allocable to
the Borrower in accordance with GAAP and accrued and/or capitalized for such
period, in each case including participating interest expense but excluding
extraordinary interest expense, and net of amortization of deferred costs
associated with new financings or refinancings of existing Indebtedness.
"Total Outstanding Indebtedness" means, for any period, the sum of (i)
the amount of Indebtedness of the Consolidated Businesses set forth on the then
most recent quarterly financial statements of the Borrower, prepared in
accordance with GAAP, plus any additional Indebtedness incurred by the
Consolidated Businesses since the time of such statements, less any Indebtedness
repaid by the Consolidated Businesses since the time of such statements, and
(ii) the outstanding amount of Minority Holding Indebtedness set forth on the
then most recent quarterly financial statements of the Borrower or the
applicable Minority Holding, prepared in accordance with GAAP and allocable in
accordance with GAAP to any of the Consolidated Businesses, plus any additional
Minority Holding Indebtedness incurred by the Minority Holdings allocable in
accordance with GAAP to any of the Consolidated Businesses since the time of
such statements, less any Indebtedness repaid by the Minority Holdings allocable
in accordance with GAAP to any of the Consolidated Businesses since the time of
such statements, and (iii) the Contingent Obligations of the Consolidated
Businesses and, to the extent allocable to the Consolidated Businesses in
accordance with GAAP, of the Minority Holdings.
"Total Outstanding Indebtedness Limitation" has the meaning set forth
in Section 10.11 hereof.
"Total Secured Outstanding Indebtedness Limitation" has the meaning set
forth in Section 10.11 hereof.
"Total Unsecured Outstanding Indebtedness" means that portion of Total
Outstanding Indebtedness that is not secured by a Lien.
"Total Value" means (A) the sum of (i) Valuation NOI divided by 9.5%;
(ii) the Investment in office and industrial Projects owned by the Consolidated
Businesses for less than four fiscal quarters which have not achieved an
occupancy rate of 85% for one fiscal quarter; (iii) unrestricted Cash and Cash
Equivalents; (iv) land (at book value) and Construction Asset Cost, which credit
will be limited to fifteen percent (15%)(exclusive of build-to-suit Projects
that are 75% pre-leased or Projects which are less than 75% pre-leased but have
a pro-forma yield of 12% or more, based upon executed leases and the cost of
acquisition plus the estimated cost to complete the same, which estimated cost
to complete shall be determined in a manner reason ably acceptable to the
Administrative Agent) of Total Value; (v) NOI not otherwise set forth in this
definition, divided by twelve percent (12%); (vi) Servicing EBITDA of the
Management Company or other such service companies for the immediately preceding
four consecutive quarters divided by twenty percent (20%); and (vii) any
investment in or loan to (based on the actual cash investment in or loan to),
directly or indirectly, an affiliated or unaffiliated operating company and
investments in or loans to Investment Funds either directly or indirectly or
joint venture arrangements with Investment Funds, which credit will be limited
to $250,000,000, less (B) the quotient of (x) the Capital Expenditure Reserve
Amounts for such period, divided by (y) 9.5%.
"Treasury Rate" means, as of any date, a rate equal to the annual yield
to maturity on the U.S. Treasury Constant Maturity Series with a ten year
maturity, as such yield is reported in Federal Reserve Statistical Release H.15
-- Selected Interest Rates, published most recently prior to the date the
applicable Treasury Rate is being determined. Such yield shall be determined by
straight line linear interpolation between the yields reported in Release H.15,
if necessary. In the event Release H.15 is no longer published, the
Administrative Agent shall select, in its reasonable discretion, an alternate
basis for the determination of Treasury yield for U.S. Treasury Constant
Maturity Series with ten year maturities.
"Unencumbered Capital Expenditure Reserve Amounts" means, for any
period, the aggregate of Capital Expenditures Reserve Amounts with respect to
Real Property that is not subject to or encumbered by Secured Indebtedness.
"Uniform Commercial Code" means the Uniform Commercial Code as enacted
in the State of New York, as it may be amended from time to time.
"Unsecured Interest Expense" means the interest expense paid, accrued
or capitalized on the Total Unsecured Outstanding Indebtedness for the
applicable period.
"Unused Facility" shall mean the amount, calculated daily, by which the
Commitments exceed the outstanding principal amount of the Loans.
"Valuation NOI" means, the sum of (x) with respect to any office or
industrial Project or any office or industrial Minority Holding, which has been
owned by the Borrower for not less than four consecutive quarters, as of the
first day of each fiscal quarter for the immediately preceding consecutive four
fiscal quarters, an amount equal to NOI relating to such Project or the
Borrower's pro rata share of such Minority Holding for such period, and (y) with
respect to any office or industrial Project or Minority Holding, which has been
owned by the Borrower for less than four consecutive quarters but which has
achieved an occupancy rate of not less than 85% for the immediately preceding
quarter (exclusive of projects under development), as of the first day of each
quarter until such time as such Project or Minority Holding shall qualify under
clause (x) hereof, an amount equal to the product of (i) the NOI relating to
such Project or the Borrower's pro rata share of such Minority Holding for the
immediately preceding quarter, and (ii) four (4). An example of the foregoing
calculation is set forth on Exhibit G hereto.
1.2. Computation of Time Periods. In this Agreement, in the computation
of periods of time from a specified date to a later specified date, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding". Periods of days referred to in this Agreement shall be counted
in calendar days unless Business Days are expressly prescribed. Any period
determined hereunder by reference to a month or months or year or years shall
end on the day in the relevant calendar month in the relevant year, if
applicable, immediately preceding the date numerically corresponding to the
first day of such period, provided that if such period commences on the last day
of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month during which such period is to end), such period
shall, unless otherwise expressly required by the other provisions of this
Agreement, end on the last day of the calendar month.
1.3. Accounting Terms. Subject to Section 14.4, for purposes of this
Agreement, all accounting terms not otherwise defined herein shall have the
meanings assigned to them in conformity with GAAP.
1.4. Other Terms. All other terms contained in this Agreement shall,
unless the context indicates otherwise, have the meanings assigned to such terms
by the Uniform Commercial Code to the extent the same are defined therein.
ARTICLE II
AMOUNTS AND TERMS OF LOANS
2.1. Loans.
(a) Availability. Subject to the terms and conditions set forth in this
Agreement, each Lender hereby severally and not jointly agrees to make loans, in
Dollars (each individually, a "Loan" and, collectively, the "Loans") to the
Borrower and RMOP from time to time during the Credit Period, in an amount not
to exceed such Lender's Pro Rata Share of the Credit Availability at such time.
The aggregate amount of Loans to be made hereunder with respect to the Borrower
and RMOP, shall not exceed Seventy Five Million Dollars ($75,000,000); provided
that the aggregate amount of (i) Loans to be made hereunder to RMOP, and (ii)
the loans to be made, and the letters of credit to be issued, under the
Revolving Credit Agreement to RMOP, shall not exceed One Hundred Million Dollars
($100,000,000). All Loans must be borrowed on or before April 5, 1999. All Loans
comprising the same Borrowing under this Agreement shall be made by the Lenders
simultaneously and proportionately to their then respective Pro Rata Shares, it
being understood that no Lender shall be responsible for any failure by any
other Lender to perform its obligation to make a Loan hereunder nor shall the
Commitment of any Lender be increased or decreased as a result of any such
failure. Subject to the provisions of this Agreement, the Borrower and/or RMOP
may repay any outstanding Loan on any day which is a Business Day and any
amounts so repaid may not be reborrowed. Each requested Borrowing of Loans
funded on any Funding Date shall be in a principal amount of at least $3,000,000
and with integral multiples of $500,000; provided, however, that if the
aggregate Commitments outstanding at the time of such requested Borrowing is
less than $3,000,000, then the requested Borrowing shall be for the total amount
of such outstanding aggregate Commitments.
(b) Notice of Borrowing. When the Borrower or RMOP desires to borrow
under this Section 2.1, the Borrower shall deliver to the Administrative Agent a
Notice of Borrowing, signed by it (x) no later than 12:00 noon (New York time)
on the Business Day immediately preceding the proposed Funding Date, in the case
of a Borrowing of Base Rate Loans and (y) no later than 11:00 a.m. (New York
time) at least three (3) Business Days in advance of the proposed Funding Date,
in the case of a Borrowing of Eurodollar Rate Loans; provided, however, that no
more than two (2) Borrowings may be made within any five (5) Business Day
period. Such Notice of Borrowing shall specify (i) the proposed Funding Date
(which shall be a Business Day), (ii) the amount of the proposed Borrowing,
(iii) the Credit Availability as of the date of such Notice of Borrowing, (iv)
whether the proposed Borrowing will be of Base Rate Loans or Eurodollar Rate
Loans, (v) in the case of Eurodollar Rate Loans, the requested Eurodollar
Interest Period, (vi) instructions for the disbursement of the proceeds of the
proposed Borrowing, (vii) an Officer's Certificate of the Borrower with respect
to compliance with (including calculation thereof) Sections 10.11(a) and
10.11(e), (viii) whether the Base Rate Loans and/or Eurodollar Rate Loans shall
be attributable to the Borrower or RMOP, and if attributable in part to each,
the portions attributable to the Borrower or RMOP, (ix) the aggregate amount of
the Loans as well as the loans pursuant to the Revolving Credit Agreement,
outstanding and attributable to RMOP, and (x) that no Event of Default shall
have occurred and be outstanding. Any Notice of Borrowing (or telephonic notice
in lieu thereof) given pursuant to this Section 2.1(b) shall be irrevocable.
(c) Making of Loans. (i) Promptly after receipt of a Notice of
Borrowing under Section 2.1(b), the Administrative Agent shall notify each
Lender by facsimile transmission, or other similar form of transmission, of the
proposed Borrowing (which notice to the Lenders, in the case of a Borrowing of
Eurodollar Rate Loans, shall be at least three (3) Business Days in advance of
the proposed Funding Date for such Loans). Each Lender shall deposit an amount
equal to its Pro Rata Share of the Borrowing requested by the Borrower with the
Administrative Agent at its office in New York, New York, in immediately
available funds, not later than 12:00 noon. (New York time) on the respective
Funding Date therefor. Subject to the fulfillment of the conditions precedent
set forth in Section 6.1 or Section 6.2, as applicable, the Administrative Agent
shall make the proceeds of such amounts received by it available to the Borrower
at the Administrative Agent's office in New York, New York on such Funding Date
(or on the date received if later than such Funding Date) and shall disburse
such proceeds in accordance with the Borrower's disbursement instructions set
forth in the applicable Notice of Borrowing. The failure of any Lender to
deposit the amount described above with the Administrative Agent on the
applicable Funding Date shall not relieve any other Lender of its obligations
hereunder to make its Loan on such Funding Date. In the event the conditions
precedent set forth in Section 6.1 or 6.2 are not fulfilled as of the proposed
Funding Date for any Borrowing, the Administrative Agent shall promptly return,
by wire transfer of immediately available funds, the amount deposited by each
Lender to such Lender.
(ii) Unless the Administrative Agent shall have been notified by any
Lender on the Business Day immediately preceding the applicable Funding Date in
respect of any Borrowing that such Lender does not intend to fund its Loan
requested to be made on such Funding Date, the Administrative Agent may assume
that such Lender has funded its Loan and is depositing the proceeds thereof with
the Administrative Agent on the Funding Date therefor, and the Administrative
Agent in its sole discretion may, but shall not be obligated to, disburse a
corresponding amount to the Borrower or RMOP on the applicable Funding Date. If
the Loan proceeds corresponding to that amount are advanced to the Borrower or
RMOP by the Administrative Agent but are not in fact deposited with the
Administrative Agent by such Lender on or prior to the applicable Funding Date,
such Lender agrees to pay, and in addition the Borrower or RMOP as the case may
be, agrees to repay, to the Administrative Agent forthwith on demand such
corresponding amount, together with interest thereon, for each day from the date
such amount is disbursed to or for the benefit of the Borrower or RMOP, as the
case may be, until the date such amount is paid or repaid to the Administrative
Agent, at the interest rate applicable to such Borrowing. If such Lender shall
pay to the Administrative Agent the corresponding amount, the amount so paid
shall constitute such Lender's Loan, and if both such Lender and the Borrower or
RMOP shall pay and repay such corresponding amount, the Administrative Agent
shall promptly pay to the Borrower such corresponding amount. This Section
2.1(c)(ii) does not relieve any Lender of its obligation to make its Loan on any
applicable Funding Date.
2.2. Intentionally Omitted.
2.3. Use of Proceeds of Loans. The proceeds of the Loans hereunder may
be used for the purposes of:
(a) investments in direct or indirect interests in industrial and
office properties (and notes secured by such properties) located in the United
States;
(b) renovation and redevelopment of Properties owned and operated by
the Borrower or RMOP;
(c) funding of TI Work and Tenant Allowances;
(d) financing expansions, renovations and new construction related to
Properties owned and operated by the Borrower or RMOP;
(e) refinancing of existing Indebtedness for borrowed money secured by
Projects;
(f) funding, directly or indirectly, of investments in and loans to
Investment Funds, Reckson Service Industries Inc., Subsidiaries, Affiliates and
Minority Holdings;
(g) working capital needs of the Borrower and RMOP; and
(h) loans to Persons in connection with such Person's contribution of
real property to the Consolidated Businesses or Minority Holdings.
2.4. Termination Date. The Commitments shall terminate on the earlier
of (x) the last day of the Credit Period and (y) the Termination Date, and all
outstanding Credit Obligations shall be paid in full, on the Termination Date.
Each Lender's obligation to make Loans shall terminate on the Business Day next
preceding the last day of the Credit Period.
2.5. Maximum Credit Facility. Notwithstanding anything in this
Agreement to the contrary, in no event shall the aggregate principal Credit
Obligations exceed the Maximum Credit Amount.
2.6. Authorized Agents. On the Closing Date and from time to time
thereafter, the Borrower shall deliver to the Administrative Agent an Officer's
Certificate setting forth the names of the employees and agents authorized to
request Loans and to request a conversion/continuation of any Loan and
containing a specimen signature of each such employee or agent. The employees
and agents so authorized shall also be authorized to act for the Borrower and
RMOP in respect of all other matters relating to the Loan Documents. The
Administrative Agent, the Arranger, and the Lenders shall be entitled to rely
conclusively on such employee's or agent's authority to request such Loan or
such conversion/continuation until the Administrative Agent and the Arranger
receive written notice to the contrary. None of the Administrative Agent or the
Arranger shall have any duty to verify the authenticity of the signature
appearing on any written Notice of Borrowing or Notice of
Conversion/Continuation or any other document, and, with respect to an oral
request for such a Loan or such conversion/continuation, the Administrative
Agent and the Arranger shall have no duty to verify the identity of any person
representing himself or herself as one of the employees or agents authorized to
make such request or otherwise to act on behalf of the Borrower or RMOP. None of
the Administrative Agent, the Arranger or the Lenders shall incur any liability
to the Borrower or RMOP or any other Person in acting upon any telephonic or
facsimile notice referred to above which the Administrative Agent or the
Arranger believes to have been given by a person duly authorized to act on
behalf of the Borrower and the Borrower and RMOP each hereby indemnifies and
holds harmless the Administrative Agent, each Arranger and each other Lender
from any loss or expense the Administrative Agent, the Arranger or the Lenders
might incur in acting in good faith as provided in this Section 2.6; provided,
however, that Borrower and RMOP shall not indemnify the applicable party for
acts resulting from its own gross negligence or wilful misconduct.
ARTICLE III
INTENTIONALLY OMITTED
ARTICLE IV
PAYMENTS AND PREPAYMENTS
4.1. Prepayments; Reductions in Commitments.
(a) Voluntary Prepayments. The Borrower and RMOP may, at any time and
from time to time, prepay the Loans, in part or in their entirety, subject to
the following limitations. The Borrower or RMOP, as the case may be, shall give
at least five (5) Business Days' prior written notice to the Administrative
Agent (which the Administrative Agent shall promptly transmit to each Lender) of
any prepayment in the entirety to be made prior to the occurrence of an Event of
Default, which notice of prepayment shall specify the date (which shall be a
Business Day) of prepayment. When notice of prepayment is delivered as provided
herein, the outstanding principal amount of the Loans on the prepayment date
specified in the notice shall become due and payable on such prepayment date.
Each voluntary partial prepayment of the Loans shall be in a minimum amount of
$1,000,000 and in integral multiples of $500,000 in excess of that amount (or
such lesser amount in the event the unpaid principal amount of any Loan is less
than such minimum prepayment amount). Eurodollar Rate Loans may be prepaid in
part or in their entirety only upon payment of the amounts described in Section
5.2(f). Amounts prepaid pursuant to this Section 4.1(a) may not be reborrowed.
(b) Voluntary Reductions In Commitments. The Borrower may, upon at
least five (5) days' prior written notice to the Administrative Agent (which the
Administrative Agent shall promptly transmit to each Lender), at any time and
from time to time, terminate in whole or permanently reduce in part the
Commitments, provided that (i) the Borrower and RMOP shall have made whatever
payment may be required to reduce the Credit Obligations to an amount less than
or equal to the Commitments as reduced, which amount shall become due and
payable on the date specified in such notice and (ii) in the case of a
reduction, the minimum Commitments that shall remain outstanding shall be
$10,000,000. Any partial reduction of the Commitments shall be in an aggregate
minimum amount of $1,000,000 and integral multiples of $1,000,000 in excess of
that amount, and shall reduce the Commitment of each Lender proportionately in
accordance with its Pro Rata Share. Any notice of termination or reduction given
to the Administrative Agent under this Section 4.1(b) shall specify the date
(which shall be a Business Day) of such termination or reduction and, with
respect to a partial reduction, the aggregate principal amount thereof, as well
as whether such reduction shall be attributable to the Loans to the Borrower
and/or Loans to RMOP.
(c) No Penalty. The prepayments and payments in respect of reductions
and terminations described in clauses (a) and (b) of this Section 4.1 may be
made without premium or penalty (except as provided in Section 5.2(f)).
(d) Mandatory Prepayment. If at any time during the term of this
Agreement, the Company shall receive Net Offering Proceeds and/or Net Cash
Proceeds (but only in connection with a refinancing or a sale of equity
interests in the Borrower, the Company, RMOP or any Subsidiary of any of them)
in excess of $300,000,000, then, simultaneously therewith, the Company shall
repay the Loans in an amount equal to the lesser of (x) the aggregate Net
Offering Proceeds and/or such Net Cash Proceeds received by the Company from and
after the date hereof in excess of $300,000,000, and (y) the outstanding
principal balance of the Loans. In addition, if such aggregate Net Offering
Proceeds and/or Net Cash Proceeds received by the Company exceed the outstanding
principal balance of the Loans, then the outstanding Commitments shall be
reduced by an amount equal to such excess. If at any time from and after the
Closing Date: (i) the Company, RMOP or the Borrower merges or consolidates with
another Person and the Company, RMOP or Borrower, as the case may be, is not the
surviving entity, or (ii) the Company, the Borrower, any of its Affiliates or
consolidated Subsidiaries or the Management Company ceases to provide property
management and leasing services to at least 80% of the total number of Projects
in which the Borrower has a direct ownership interest (the date any such event
shall occur being the "Prepayment Date"), the Borrower and/or RMOP, as the case
may be, shall be required to prepay the Loans in their entirety as if the
Prepayment Date were the Termination Date and, the Credit Commitment thereupon
shall be terminated; provided that RMOP shall not be liable to make any payment
in excess of the RMOP Obligations, and provided further that in the case of a
merger or consolidation of RMOP pursuant to clause (i), RMOP shall have no
further right to request Loans hereunder. The Borrower and RMOP shall
immediately make such prepayment together with interest accrued to the date of
the prepayment on the principal amount prepaid; provided that RMOP shall not be
liable to make any payment in excess of the RMOP Obligations together with
interest thereon. In connection with the prepayment of any Loan prior to the
maturity thereof, the Borrower and RMOP shall also pay any applicable expenses
pursuant to Section 5.2(f); provided that RMOP shall not be liable for any such
payment other than any such payments incurred in connection with the RMOP
Obligations. Each such prepayment shall be applied to prepay ratably the Loans
of the Lenders. Amounts prepaid pursuant to this Section 4.1(d) may not be
reborrowed.
4.2. Payments.
(a) Manner and Time of Payment. All payments of principal of and
interest on the Loans and other Obligations (including, without limitation, fees
and expenses) which are payable to the Administrative Agent, the Arranger or any
other Lender shall be made without condition or reservation of right, in
immediately available funds, delivered to the Administrative Agent not later
than 12:00 noon (New York time) on the date and at the place due, to such
account of the Administrative Agent (or the Arranger) as it may designate, for
the account of the Administrative Agent, an Arranger, or such other Lender, as
the case may be; and funds received by the Administrative Agent (or the
Arranger), including, without limitation, funds in respect of any Loans to be
made on that date, not later than 12:00 noon (New York time) on any given
Business Day shall be credited against payment to be made that day and funds
received by the Administrative Agent (or the Arranger) after that time shall be
deemed to have been paid on the next succeeding Business Day. Payments actually
received by the Administrative Agent for the account of the Lenders, or any of
them, shall be paid to them by the Administrative Agent promptly after receipt
thereof.
(b) Apportionment of Payments. (i) Subject to the provisions of Section
4.2(b)(v), all payments of principal and interest in respect of outstanding
Loans, all payments of fees and all other payments in respect of any other
Obligations, shall be allocated among such of the Lenders as are entitled
thereto, in proportion to their respective Pro Rata Shares or otherwise as
provided herein. Subject to the provisions of Section 4.2(b)(ii), all such
payments and any other amounts received by the Administrative Agent from or for
the benefit of the Borrower and RMOP shall be applied in the following order:
(A) to pay principal of and interest on any portion of the Loans
which the Administrative Agent may have advanced on behalf of any
Lender other than Chase for which the Administrative Agent has not then
been reimbursed by such Lender or the Borrower or RMOP, as the case may
be,
(B) to pay all other Obligations then due and payable, and
(C) as the Borrower or RMOP so designates.
Unless otherwise designated by the Borrower or RMOP, all principal payments in
respect of its Loans shall be applied first, to repay its outstanding Base Rate
Loans, and then to repay its outstanding Eurodollar Rate Loans with those
Eurodollar Rate Loans which have earlier expiring Eurodollar Interest Periods
being repaid prior to those which have later expiring Eurodollar Interest
Periods.
(ii) After the occurrence of an Event of Default and while the same is
continuing which results in an acceleration of the Obligations in accordance
with Section 11.2, the Administrative Agent shall apply all payments in respect
of any Obligations in the following order:
(A) first, to pay principal of and interest on any portion of the
Loans which the Administrative Agent may have advanced on behalf of any
Lender other than Chase for which the Administrative Agent has not then
been reimbursed by such Lender or the Borrower or RMOP, as the case may
be;
(B) second, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Administrative Agent;
(C) third, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Lenders;
(D) fourth, to pay interest due in respect of Loans;
(E) fifth, to the ratable payment or prepayment of principal
outstanding on Loans; and
(F) sixth, to the ratable payment of all other Obligations.
The order of priority set forth in this Section 4.2(b)(ii) and the related
provisions of this Agreement are set forth solely to determine the rights and
priorities of the Administrative Agent and the other Lenders as among
themselves. The order of priority set forth in clauses (A) and (B) of this
Section 4.2(b)(ii) may be changed only with the prior written consent of the
Administrative Agent.
(iii) The Administrative Agent, in its sole discretion subject only to
the terms of this Section 4.2(b)(iii), may pay from the proceeds of Loans made
to the Borrower or RMOP hereunder, whether made following a request by the
Borrower pursuant to Section 2.1 or a deemed request as provided in this Section
4.2(b)(iii), all amounts payable by the Borrower and RMOP hereunder, including,
without limitation, amounts payable with respect to payments of principal,
interest, and fees; provided that in the case of RMOP any such payment by the
Administrative Agent for Loans requested on behalf of or deemed requested on
behalf of RMOP shall not exceed, and shall only be applied to, the amounts
payable hereunder in respect of the RMOP Obligations. The Borrower and RMOP
(subject to the proviso of the immediately preceding sentence) hereby
irrevocably authorize the Lenders to make Loans, which Loans shall be Base Rate
Loans, in each case, upon notice from the Administrative Agent as described in
the following sentence for the purpose of paying principal, interest, and fees
due from the Borrower or RMOP, and agrees that all such Loans so made shall be
deemed to have been requested by it pursuant to Section 2.1 as of the date of
the aforementioned notice. The Administrative Agent shall request Loans on
behalf of the Borrower or RMOP as described in the preceding sentence by
notifying the Lenders by facsimile transmission or other similar form of
transmission (which notice the Administrative Agent shall thereafter promptly
transmit to the Borrower), of the amount and Funding Date of the proposed
Borrowing and that such Borrowing is being requested on the Borrower's or RMOP's
behalf pursuant to this Section 4.2(b)(iii). On the proposed Funding Date, the
Lenders shall make the requested Loans in accordance with the procedures and
subject to the conditions specified in Section 2.1.
(iv) Subject to Section 4.2(b)(v), the Administrative Agent shall
promptly distribute to the Arranger and each other Lender at its primary address
set forth on the appropriate signature page hereof or the signature page to the
Assignment and Acceptance by which it became a Lender, or at such other address
as a Lender may request in writing, such funds as such Person may be entitled to
receive, subject to the provisions of Article XII; provided that the
Administrative Agent shall under no circumstances be bound to inquire into or
determine the validity, scope or priority of any interest or entitlement of any
Lender and may suspend all payments or seek appropriate relief (including,
without limitation, instructions from the Requisite Lenders or an action in the
nature of interpleader) in the event of any doubt or dispute as to any
apportionment or distribution contemplated hereby.
(v) In the event that any Lender fails to fund its Pro Rata Share of
any Loan requested by the Borrower on its behalf or on behalf of RMOP which such
Lender is obligated to fund under the terms of this Agreement (the funded
portion of such Loan being hereinafter referred to as a "Non Pro Rata Loan"),
until the earlier of such Lender's cure of such failure and the termination of
the Commitments, the proceeds of all amounts thereafter repaid to the
Administrative Agent by the Borrower or RMOP and otherwise required to be
applied to such Lender's share of all other Obligations pursuant to the terms of
this Agreement shall be advanced to the Borrower or RMOP by the Administrative
Agent on behalf of such Lender to cure, in full or in part, such failure by such
Lender, but shall nevertheless be deemed to have been paid to such Lender in
satisfaction of such other Obligations. Notwithstanding anything in this
Agreement to the contrary:
(A) the foregoing provisions of this Section 4.2(b)(v) shall
apply only with respect to the proceeds of payments of Obligations and
shall not affect the conversion or continuation of Loans pursuant to
Section 5.1(c);
(B) a Lender shall be deemed to have cured its failure to fund
its Pro Rata Share of any Loan at such time as an amount equal to such
Lender's original Pro Rata Share of the requested principal portion of
such Loan is fully funded to the Borrower or RMOP, whether made by such
Lender itself or by operation of the terms of this Section 4.2(b)(v),
and whether or not the Non Pro Rata Loan with respect thereto has been
repaid, converted or continued;
(C) amounts advanced to the Borrower or RMOP to cure, in full or
in part, any such Lender's failure to fund its Pro Rata Share of any
Loan ("Cure Loans") shall bear interest at the Base Rate in effect from
time to time, and for all other purposes of this Agreement shall be
treated as if they were Base Rate Loans; and
(D) regardless of whether or not an Event of Default has occurred
or is continuing, and notwithstanding the instructions of the Borrower
or RMOP as to its desired application, all repayments of principal
which, in accordance with the other terms of this Section 4.2, would be
applied to its outstanding Base Rate Loans shall be applied first,
ratably to its Base Rate Loans constituting Non Pro Rata Loans, second,
ratably to its Base Rate Loans other than those constituting Non Pro
Rata Loans or Cure Loans and, third, ratably to its Base Rate Loans
constituting Cure Loans.
(c) Payments on Non-Business Days. Whenever any payment to be made by
the Borrower or RMOP hereunder or under the Notes is stated to be due on a day
which is not a Business Day, the payment shall instead be due on the next
succeeding Business Day (or, as set forth in Section 5.2(b)(iv), the next
preceding Business Day).
4.3. Promise to Repay; Evidence of Indebtedness.
(a) Promise to Repay. (i) The Borrower hereby agrees to pay when due
the principal amount of each Loan which is made to it and, to the extent not
paid when due (after giving effect to any grace period as more particularly set
forth in Section 11.1(a)) by RMOP, each loan made to RMOP, and further agrees to
pay all unpaid interest accrued thereon, in accordance with the terms of this
Agreement and the Notes. The Borrower shall execute and deliver to each Lender
on the Closing Date, a promissory note, in the form of Exhibit B-1 attached
hereto with blanks appropriately completed, evidencing the Loans and thereafter
shall execute and deliver such other promissory notes as are necessary to
evidence the Loans made to it owing to the Lenders after giving effect to any
assignment thereof pursuant to Section 14.1, all in the form of Exhibit B-1
attached hereto with blanks appropriately completed (all such promissory notes
and all amendments thereto, replacements thereof and substitutions therefor
being collectively referred to as the "Borrower Notes"; and "Borrower Note"
means any one of the Borrower Notes).
(ii) RMOP hereby agrees to pay when due the principal amount of each
Loan which is made to it, and further agrees to pay all unpaid interest accrued
thereon, in accordance with the terms of this Agreement and the RMOP Notes. RMOP
shall execute and deliver to each Lender on the Closing Date, a promissory note,
in the form of Exhibit B-2 attached hereto with blanks appropriately completed,
evidencing the Loans made to it and thereafter shall execute and deliver such
other promissory notes as are necessary to evidence the Loans owing to the
Lenders after giving effect to any assignment thereof pursuant to Section 14.1,
all in the form of Exhibit B-2 attached hereto with blanks appropriately
completed (all such promissory notes and all amendments thereto, replacements
thereof and substitutions therefor being collectively referred to as the "RMOP
Notes"; and "RMOP Note" means any one of the RMOP Notes).
(b) Loan Account. Each Lender shall maintain in accordance with its
usual practice an account or accounts (a "Loan Account") evidencing the
Indebtedness of the Borrower and RMOP, as the case may be, to such Lender
resulting from each Loan owing to such Lender from time to time, including the
amount of principal and interest payable and paid to such Lender from time to
time hereunder and under the Notes.
(c) Control Account. The Register maintained by the Administrative
Agent pursuant to Section 14.1(c) shall include a control account, and a
subsidiary account for each Lender, in which accounts (taken together) shall be
recorded (i) the date and amount of each Borrowing made hereunder, the type of
Loan comprising such Borrowing and any Eurodollar Interest Period applicable
thereto, (ii) the effective date and amount of each Assignment and Acceptance
delivered to and accepted by it and the parties thereto, (iii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower or RMOP, as the case may be, to each Lender hereunder or under the
Notes and (iv) the amount of any sum received by the Administrative Agent from
the Borrower or RMOP, as the case may be, hereunder and each Lender's share
thereof.
(d) Entries Binding. The entries made in the Register and each Loan
Account shall be conclusive and binding for all purposes, absent manifest error.
(e) No Recourse. Notwithstanding anything contained in this Agreement,
any Note, or the Guaranty to the contrary, it is expressly understood and agreed
that nothing herein or therein shall be construed as creating any liability on
any Limited Partner or the general partner of Reckson FS Limited Partnership or
any member of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Industrial Interim GP LLC (other than the
Borrower), or any partner, officer, shareholder or director of any Limited
Partner or any officer, trustee, member, director, or employee of the Borrower
or RMOP or any Guarantor, to pay any of the Obligations other than liability
arising under applicable law from or in connection with (i) its own fraud or
(ii) the misappropriation or misapplication by it of proceeds of the Loans; but
nothing contained in this Section 4.3(e) shall be construed to prevent the
exercise of any remedy allowed to the Administrative Agent, the Arranger or the
Lenders by law or by the terms of this Agreement or the other Loan Documents
which does not relate to or result in such an obligation by any Limited Partner
or the general partner of Reckson FS Limited Partnership or any member of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Industrial Interim GP LLC (other than the Borrower) or such other
Persons to pay money. In addition, notwithstanding anything contained in this
Agreement, any Note, or the Guaranty to the contrary, (i) the Borrower shall be
liable for all Obligations arising hereunder in connection with the Loans, and
(ii) RMOP shall not be liable for any Obligations other than those arising in
connection with the RMOP Obligations.
ARTICLE V
INTEREST AND FEES
5.1. Interest on the Loans and other Obligations.
(a) Rate of Interest. All Loans and the outstanding principal balance
of all other Obligations shall bear interest on the unpaid principal amount
thereof from the date such Loans are made and such other Obligations are due and
payable until paid in full, except as otherwise provided in Section 5.1(d), as
follows:
(i) If a Base Rate Loan or such other Obligation, at a rate
per annum equal to the sum of (A) the Base Rate, as in effect from time
to time as interest accrues, plus (B) the then Applicable Mar gin for
Base Rate Loans; and
(ii) If a Eurodollar Rate Loan, at a rate per annum equal to
the sum of (A) the Eurodollar Rate determined for the applicable
Eurodollar Interest Period, plus (B) the then Applicable Margin for
Eurodollar Loans.
The applicable basis for determining the rate of interest on the Loans shall be
selected by the Borrower on its behalf and on behalf of RMOP at the time a
Notice of Borrowing or a Notice of Conversion/Continuation is delivered by the
Borrower or RMOP to the Administrative Agent; provided, however, the Borrower
may not select the Eurodollar Rate as the applicable basis for determining the
rate of interest on such a Loan if at the time of such selection an Event of
Default has occurred and is continuing. If on any day any Loan is outstanding
with respect to which notice has not been timely delivered to the Administrative
Agent in accordance with the terms of this Agreement specifying the basis for
determining the rate of interest on that day, then for that day interest on that
Loan shall be determined by reference to the Base Rate.
(b) Interest Payments. (i) Interest accrued on each Loan, whether a
Base Rate Loan, a Eurodollar Loan shall be calculated on the last day of each
calendar month and shall be payable in arrears (A) on the first day of each
calendar month, commencing on the first such day following the making of such
Loan, (B) upon the payment or prepayment thereof in full or in part, and (C) if
not theretofore paid in full, at maturity (whether by acceleration or otherwise)
of such Loan.
(ii) Interest accrued on the principal balance of all other Obligations
shall be calculated on the last day of each calendar month and shall be payable
in arrears (A) on the first day of each calendar month, commencing on the first
such day following the incurrence of such Obligation, (B) upon repayment thereof
in full or in part, and (C) if not theretofore paid in full, at the time such
other Obligation becomes due and payable (whether by acceleration or otherwise).
(c) Conversion or Continuation. (i) The Borrower on its behalf and on
behalf of RMOP shall have the option (A) to convert at any time all or any part
of outstanding Base Rate Loans to Eurodollar Rate Loans; (B) to convert all or
any part of outstanding Eurodollar Rate Loans having Eurodollar Interest Periods
which expire on the same date to Base Rate Loans on such expiration date; or (C)
to continue all or any part of outstanding Eurodollar Rate Loans having
Eurodollar Interest Periods which expire on the same date as Eurodollar Rate
Loans, and the succeeding Eurodollar Interest Period of such continued Loans
shall commence on such expiration date; provided, however, no such outstanding
Loan may be continued as, or be converted into, a Eurodollar Rate Loan (i) if
the continuation of, or the conversion into, would violate any of the provisions
of Section 5.2 or (ii) if an Event of Default has occurred and is continuing.
Any conversion into or continuation of Eurodollar Rate Loans under this Section
5.1(c) shall be in a minimum amount of $3,000,000 and in integral multiples of
$500,000 in excess of that amount, except in the case of a conversion into or a
continuation of an entire Borrowing of Non Pro Rata Loans.
(ii) To convert or continue a Loan under Section 5.1(c)(i), the
Borrower or RMOP, as the case may be, shall deliver a Notice of
Conversion/Continuation to the Administrative Agent no later than 11:00 a.m.
(New York time) at least three (3) Business Days in advance of the proposed
conversion/continuation date. A Notice of Conversion/Continuation shall specify
(A) the proposed conversion/continuation date (which shall be a Business Day),
(B) the principal amount of the Loan to be converted/continued, (C) whether such
Loan shall be converted and/or continued, (D) in the case of a conversion to, or
continuation of, a Eurodollar Rate Loan, the requested Eurodollar Interest
Period and (E) whether such loan is for the account of the Borrower or RMOP.
Promptly after receipt of a Notice of Conversion/ Continuation under this
Section 5.1(c)(ii), the Administrative Agent shall notify each Lender by
facsimile transmission, or other similar form of transmission, of the proposed
conversion/continuation. Any Notice of Conversion/Continuation for conversion
to, or continuation of, a Loan (or telephonic notice in lieu thereof) given
pursuant to this Section 5.1(c)(ii) shall be irrevocable, and the Borrower or
RMOP, as the case may be, shall be bound to convert or continue in accordance
therewith. In the event no Notice of Conversion/Continuation is delivered as and
when specified in this Section 5.1(c)(ii) with respect to outstanding Eurodollar
Rate Loans, upon the expiration of the Eurodollar Interest Period applicable
thereto, such Loans shall automatically be converted to a Base Rate Loan.
(d) Default Interest. Notwithstanding the rates of interest specified
in Section 5.1(a) or elsewhere in this Agreement, effective immediately upon the
occurrence of an Event of Default, and for as long thereafter as such Event of
Default shall be continuing, the principal balance of all Loans and other
Obligations shall bear interest at a rate equal to (A) in the case of any
Eurodollar Rate Loans outstanding as of the date of occurrence of any Event of
Default, the sum of (x) the applicable Eurodollar Rate, plus (y) six percent
(6.0%) per annum, and (B) in the case of any Base Rate Loan (including any
Eurodollar Loan that is converted to a Base Rate Loan at maturity) the sum of
(x) the Base Rate, as in effect from time to time as interest accrues, plus (y)
five percent (5.0%) per annum.
(e) Computation of Interest. Interest on all Obligations shall be
computed on the basis of the actual number of days elapsed in the period during
which interest accrues and a year of 360 days. In computing interest on any
Loan, the date of the making of the Loan or the first day of a Eurodollar
Interest Period, as the case may be, shall be included and the date of payment
or the expiration date of a Eurodollar Interest Period, as the case may be,
shall be excluded; provided, however, if a Loan is repaid on the same day on
which it is made, one (1) day's interest shall be paid on such Loan.
(f) Eurodollar Rate Information. Upon the request of the Borrower or
RMOP, the Administrative Agent shall promptly provide to the Borrower or RMOP,
as the case may be, such information with respect to the applicable Eurodollar
Rate as may be so requested.
5.2. Special Provisions Governing Eurodollar Rate Loans.
(a) Amount of Eurodollar Rate Loans. Each Eurodollar Rate Loan shall be
in a minimum principal amount of $3,000,000 and in integral multiples of
$500,000 in excess of that amount.
(b) Determination of Eurodollar Interest Period. By giving notice as
set forth in Section 2.1(b) (with respect to a Borrowing of Eurodollar Rate
Loans), or Section 5.1(c) (with respect to a conversion into or continuation of
Eurodollar Rate Loans), the Borrower on its behalf or on behalf of RMOP, as the
case may be, shall have the option, subject to the other provisions of this
Section 5.2, to select an interest period (each, a "Eurodollar Interest Period")
to apply to the Loans described in such notice, subject to the following
provisions:
(i) The Borrower may only select, as to a particular Borrowing
of Eurodollar Rate Loans, a Eurodollar Interest Period of one, two,
three or six months in duration;
(ii) Intentionally Omitted;
(iii) In the case of immediately successive Eurodollar
Interest Periods applicable to a Borrowing of Eurodollar Rate Loans,
each successive Eurodollar Interest Period shall commence on the day on
which the next preceding Eurodollar Interest Period expires;
(iv) If any Eurodollar Interest Period would otherwise expire
on a day which is not a Business Day, such Eurodollar Interest Period
shall be extended to expire on the next succeeding Business Day if the
next succeeding Business Day occurs in the same calendar month, and if
there will be no succeeding Business Day in such calendar month, the
Eurodollar Interest Period shall expire on the immediately preceding
Business Day;
(v) The Borrower may not select a Eurodollar Interest Period
as to any Loan if such Eurodollar Interest Period terminates later than
the Termination Date;
(vi) The Borrower may not select a Eurodollar Interest Period
with respect to any portion of principal of a Loan which extends beyond
a date on which the Borrower or RMOP, as the case may be, is required
to make a scheduled payment of such portion of principal of which the
Borrower or RMOP, as the case may be, is aware on the date of such
request, in the case of a payment pursuant to Section 4.1(d) hereof;
and
(vii) There shall be no more than ten (10) Eurodollar Interest
Periods in effect at any one time with respect to Eurodollar Rate
Loans.
(c) Determination of Eurodollar Interest Rate. As soon as practicable
on the second Business Day prior to the first day of each Eurodollar Interest
Period (the "Eurodollar Interest Rate Determination Date"), the Administrative
Agent shall determine (pursuant to the procedures set forth in the definition of
"Eurodollar Rate") the interest rate which shall apply to the Eurodollar Rate
Loans for which an interest rate is then being determined for the applicable
Eurodollar Interest Period and shall promptly give notice thereof (in writing or
by telephone or by facsimile confirmed in writing) to the Borrower and RMOP and
to each Lender. The Administrative Agent's determination shall be presumed to be
correct, absent manifest error, and shall be binding upon the Borrower and RMOP.
(d) Interest Rate Unascertainable, Inadequate or Unfair. In the event
that at least one (1) Business Day before the Eurodollar Interest Rate
Determination Date:
(i) the Administrative Agent is advised by the Reference Bank
that deposits in Dollars (in the applicable amounts) are not being
offered by the Reference Bank in the London interbank market for such
Eurodollar Interest Period; or
(ii) the Administrative Agent determines that adequate and
fair means do not exist for ascertaining the applicable interest rates
by reference to which the Eurodollar Rate then being determined is to
be fixed; or
(iii) the Requisite Lenders advise the Administrative Agent
that the Eurodollar Rate for Eurodollar Rate Loans comprising such
Borrowing will not adequately reflect the cost to such Requisite
Lenders of obtaining funds in Dollars in the London interbank market in
the amount substantially equal to such Lenders' Eurodollar Rate Loans
in Dollars and for a period equal to such Eurodollar Interest Period;
then the Administrative Agent shall forthwith give notice thereof to the
Borrower and RMOP, whereupon (until the Administrative Agent notifies the
Borrower and RMOP that the circumstances giving rise to such suspension no
longer exist) the right of the Borrower and RMOP to elect to have Loans bear
interest based upon the Eurodollar Rate shall be suspended and each outstanding
Eurodollar Rate Loan shall be converted into a Base Rate Loan on the last day of
the then current Eurodollar Interest Period therefor, notwithstanding any prior
election by the Borrower on its behalf or on behalf of RMOP as the case may be,
to the contrary.
(e) Illegality. (i) If at any time any Lender determines (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties) that the making or continuation of any Eurodollar Rate Loan
has become unlawful or impermissible by compliance by that Lender with any law,
governmental rule, regulation or order of any Governmental Authority (whether or
not having the force of law and whether or not failure to comply therewith would
be unlawful or would result in costs or penalties), then, and in any such event,
such Lender may give notice of that determination, in writing, to the Borrower
and RMOP and the Administrative Agent, and the Administrative Agent shall
promptly transmit the notice to each other Lender.
(ii) When notice is given by a Lender under Section 5.2(e)(i), (A) the
Borrower's right to request from such Lender and such Lender's obligation, if
any, to make Eurodollar Rate Loans to the Borrower or RMOP shall be immediately
suspended, and such Lender shall make a Base Rate Loan as part of any requested
Borrowing of Eurodollar Rate Loans and (B) if the affected Eurodollar Rate Loan
or Loans are then outstanding, the Borrower or RMOP, as the case may be, shall
immediately, or if permitted by applicable law, no later than the date permitted
thereby, upon at least one (1) Business Day's prior written notice to the
Administrative Agent and the affected Lender, convert each such Loan into a Base
Rate Loan.
(iii) If at any time after a Lender gives notice under Section
5.2(e)(i) such Lender determines that it may lawfully make Eurodollar Rate
Loans, such Lender shall promptly give notice of that determination, in writing,
to the Borrower and RMOP and the Administrative Agent, and the Administrative
Agent shall promptly transmit the notice to each other Lender. The Borrower's
right to request, and such Lender's obligation, if any, to make Eurodollar Rate
Loans to the Borrower or RMOP shall thereupon be restored.
(f) Compensation. In addition to all amounts required to be paid by the
Borrower or RMOP, as the case may be, pursuant to Section 5.1 and Article XIII,
the Borrower or RMOP, as the case may be, shall compensate each Lender, upon
demand, for all losses, expenses and liabilities (including, without limitation,
any loss or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund or maintain such
Lender's Eurodollar Rate Loans to the Borrower or RMOP, as the case may be, but
excluding any loss of Applicable Margin on the relevant Loans) which that
Lender may sustain (i) if for any reason a Borrowing, conversion into or
continuation of Eurodollar Rate Loans does not occur on a date specified
therefor in a Notice of Borrowing or a Notice of Conversion/Continuation given
by the Borrower on its behalf or on behalf of RMOP, as the case may be, or in a
telephonic request by it for borrowing or conversion/continuation or a
successive Eurodollar Interest Period does not commence after notice therefor is
given pursuant to Section 5.1(c), other than pursuant to Sections 5.2(d) or (e),
or (ii) if for any reason any Eurodollar Rate Loan is prepaid (other than
pursuant to Section 4.1(d) or Section 5.2(d) or (e)) on a date which is not the
last day of the applicable Eurodollar Interest Period or (iii) as a consequence
of any failure by the Borrower or RMOP, as the case may be, to repay a
Eurodollar Rate Loan when required by the terms of this Agreement; provided that
RMOP shall not be liable for any amounts under this clause (f) other than in
respect of the Loans made or to be made to RMOP. The Lender making demand for
such compensation shall deliver to the Borrower and RMOP concurrently with such
demand a written statement in reasonable detail as to such losses, expenses and
liabilities, and this statement shall be conclusive as to the amount of
compensation due to that Lender, absent manifest error.
(g) Booking of Eurodollar Rate Loans. Any Lender may make, carry or
transfer Eurodollar Rate Loans at, to, or for the account of, its Eurodollar
Lending Office or Eurodollar Affiliate or its other offices or Affiliates. No
Lender shall be entitled, however, to receive any greater amount under Sections
4.2 or 5.2(f) or Article XIII as a result of the transfer of any such Eurodollar
Rate Loan to any office (other than such Eurodollar Lending Office) or any
Affiliate (other than such Eurodollar Affiliate) than such Lender would have
been entitled to receive immediately prior thereto, unless (i) the transfer
occurred at a time when circumstances giving rise to the claim for such greater
amount did not exist and (ii) such claim would have arisen even if such transfer
had not occurred.
(h) Affiliates Not Obligated. No Eurodollar Affiliate or other
Affiliate of any Lender shall be deemed a party to this Agreement or shall have
any liability or obligation under this Agreement.
(i) Adjusted Eurodollar Rate. Any failure by any Lender to take into
account the Eurodollar Reserve Percentage when calculating interest due on
Eurodollar Rate Loans shall not constitute, whether by course of dealing or
otherwise, a waiver by such Lender of its right to collect such amount for any
future period.
(j) Application of Mandatory Prepayments. The principal amount of any
mandatory prepayment pursuant to Section 4.1(d) hereof, shall be applied, first,
to the outstanding Base Rate Loans and then, to the outstanding Eurodollar Rate
Loans. The Administrative Agent shall hold such principal amounts allocated for
prepayment of Eurodollar Rate Loans until the end of the applicable Eurodollar
Interest Period(s) and, during the interim period, shall invest said sums in
Cash Equivalents. Interest earned thereon shall be forwarded to the Borrower or
RMOP, as the case may be, upon the payment of the Eurodollar Rate Loans at the
end of said Eurodollar Interest Period.
5.3. Fees.
(a) Intentionally Omitted.
(b) Unused Commitment/Facility Fee. The Borrower and RMOP shall pay,
without duplication, to the Administrative Agent, for the account of the Lenders
based on their respective Pro Rata Shares, a commitment fee equal to 0.20% per
annum on the Unused Facility. The commitment fee shall be payable monthly, in
arrears, commencing on the first day of the fiscal month next succeeding the
Closing Date, and on the first day of each fiscal month thereafter.
Notwithstanding the foregoing, in the event that any Lender fails to
fund its Pro Rata Share of any Loan requested by the Borrower which such Lender
is obligated to fund under the terms of this Agreement, (A) such Lender shall
not be entitled to any portion of the commitment fee with respect to its Credit
Commitment until such failure has been cured in accordance with Section
4.2(b)(v)(B) and (B) until such time, the commitment fee shall accrue in favor
of the Lenders which have funded their respective Pro Rata Shares of such
requested Loan, shall be allocated among such performing Lenders ratably based
upon their relative Credit Commitments, and shall be calculated based upon the
average amount by which the aggregate Credit Commitments of such performing
Lenders exceeds the outstanding principal amount of the Loans owing to such
performing Lenders.
(c) Intentionally Omitted.
(d) Calculation and Payment of Fees. All fees shall be calculated on
the basis of the actual number of days elapsed in a 360-day year. All fees shall
be payable in addition to, and not in lieu of, interest, compensation, expense
reimbursements, indemnification and other Obligations. Fees shall be payable to
the Administrative Agent at its office in New York, New York in immediately
available funds unless otherwise set forth herein. All fees shall be fully
earned and nonrefundable when paid. All fees due to the Arranger or any other
Lender, including, without limitation, those referred to in this Section 5.3,
shall bear interest, if not paid when due, at the interest rate specified in
Section 5.1(d) and shall constitute Obligations.
ARTICLE VI
CONDITIONS TO LOANS
6.1. Conditions Precedent to the Initial Loans. The obligation of each
Lender on the Initial Funding Date to make any Loan requested to be made by it,
shall be subject to the satisfaction of all of the following conditions
precedent:
(a) Documents. The Administrative Agent shall have received on or
before the Initial Funding Date all of the following:
(i) this Agreement, the Notes, and, to the extent not
otherwise specifically referenced in this Section 6.1(a), all other
Loan Documents and agreements, documents and instruments described in
the List of Closing Documents attached hereto as Exhibit E and made a
part hereof, each duly executed, and in form and substance satisfactory
to the Agents; without limiting the foregoing, the Borrower and RMOP
hereby directs its counsel, ▇▇▇▇▇ & ▇▇▇▇ LLP to prepare and deliver to
the Agents, the Lenders, and Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
the legal opinions referred to in such List of Closing Documents; and
(ii) such additional documentation as the Agents may
reasonably request.
(b) No Legal Impediments. No law, regulation, order, judgment or decree
of any Governmental Authority shall, and the Administrative Agent shall not have
received any notice that litigation is pending or threatened which is likely to
(i) enjoin, prohibit or restrain the making of the Loans on the Initial Funding
Date or (ii) impose or result in the imposition of a Material Adverse Effect.
(c) No Change in Condition. No change in the business, assets,
management, operations, financial condition or prospects of the Borrower, RMOP
or any of their Properties shall have occurred since June 30, 1998 which change,
in the judgment of the Administrative Agent, will have a Material Adverse
Effect.
(d) Interim Liabilities and Equity. Except as disclosed to the Arranger
and the Lenders, since June 30, 1998, neither the Borrower, RMOP nor the Company
shall have (i) entered into any (as determined in good faith by the
Administrative Agent) commitment or transaction, including, without limitation,
transactions for borrowings and capital expenditures, which are not in the
ordinary course of the Borrower's and RMOP's business, (ii) declared or paid any
dividends or other distributions other than in the ordinary course of business,
(iii) established compensation or employee benefit plans, or (iv) redeemed or
issued any equity Securities, other than those described on Schedule 6.1(d)
hereto.
(e) No Loss of Material Agreements and Licenses. Since June 30, 1998,
no agreement or license relating to the business, operations or employee
relations of the Borrower, RMOP or any of their Real Properties shall have been
terminated, modified, revoked, breached or declared to be in default, the
termination, modification, revocation, breach or default under which, in the
reasonable judgment of the Administrative Agent, would result in a Material
Adverse Effect.
(f) No Market Changes. Since the Closing Date no material adverse
change shall have occurred in the conditions in the capital markets.
(g) No Default. No Event of Default or Potential Event of Default shall
have occurred and be continuing or would result from the making of the Loans.
(h) Representations and Warranties. All of the representations and
warranties contained in Section 7.1 and in any of the other Loan Documents shall
be true and correct in all material respects on and as of the Initial Funding
Date.
(i) Intentionally Omitted.
(j) Fees and Expenses Paid. There shall have been paid to the
Administrative Agent, for the accounts of the Agents and the other Lenders, as
applicable, all fees due and payable on or before the Initial Funding Date and
all expenses due and payable on or before the Initial Funding Date, including,
without limitation, reasonable attorneys' fees and expenses, and other costs and
expenses incurred in connection with the Loan Documents.
6.2. Conditions Precedent to All Subsequent Loans. The obligation of
each Lender to make any Loan requested to be made by it on any date after the
Initial Funding Date is subject to the following conditions precedent as of each
such date:
(a) Representations and Warranties. As of such date, both before and
after giving effect to the Loans to be made on such date, all of the
representations and warranties of the Borrower and RMOP contained in Section 7.1
and all of the representations of the Borrower, RMOP and the parties to the
Guaranty or in any other Loan Document (other than representations and
warranties which expressly speak as of a different date) shall be true and
correct in all material respects.
(b) No Defaults. No Event of Default or Potential Event of Default
shall have occurred and be continuing or would result from the making of the
requested Loan.
(c) No Legal Impediments. No law, regulation, order, judgment or decree
of any Governmental Authority shall, and the Administrative Agent shall not have
received from such Lender notice that, in the reasonable judgment of such
Lender, litigation is pending or threatened which is likely to, enjoin, prohibit
or restrain such Lender's making of the requested Loan.
(d) No Material Adverse Effect. The Borrower has not received written
notice from the Requisite Lenders that an event has occurred since the date of
this Agreement which has had and continues to have, or is reasonably likely to
have, a Material Adverse Effect.
Each submission by the Borrower on its behalf or on behalf of RMOP to the
Administrative Agent of a Notice of Borrowing with respect to a Loan, each
acceptance by the Borrower or RMOP of the proceeds of each Loan made hereunder,
shall constitute a representation and warranty by the Borrower and RMOP as of
the Funding Date in respect of such Loan, that all the conditions contained in
this Section 6.2 have been satisfied or waived in accordance with Section 14.7
(it being understood that with respect to the condition set forth in Section
6.2(c), the same shall constitute a representation and warranty by the Borrower
and RMOP only to the extent that the Borrower or RMOP shall have knowledge of
any of the events set forth therein).
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1. Representations and Warranties of the Borrower and RMOP. In order
to induce the Lenders to enter into this Agreement and to make the Loans and the
other financial accommodations to the Borrower and RMOP, the Borrower and RMOP
each hereby represents and warrants to each Lender that the following statements
are true, correct and complete:
(a) Organization; Powers. (i) The Borrower (A) is a limited partnership
duly organized, validly existing and in good standing under the laws of the
State of Delaware, (B) is duly qualified to do business and is in good standing
under the laws of each jurisdiction in which failure to be so qualified and in
good standing will have a Material Adverse Effect, (C) has all requisite power
and authority to own, operate and encumber its Property and to conduct its
business as presently conducted and as proposed to be conducted in connection
with and following the consummation of the transactions contemplated by this
Agreement, and (D) is a partnership for federal income tax purposes.
(ii) The Company (A) is a corporation duly organized, validly existing
and in good standing under the laws of the State of Maryland (B) is duly
authorized and qualified to do business and is in good standing under the laws
of each jurisdiction in which failure to be so qualified and in good standing
will have a Material Adverse Effect, and (C) has all requisite corporate power
and authority to own, operate and encumber its Property and to conduct its
business as presently conducted.
(iii) RMOP (A) is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Delaware, (B) is
duly qualified to do business and is in good standing under the laws of each
jurisdiction in which failure to be so qualified and in good standing will have
a Material Adverse Effect, (C) has all requisite power and authority to own,
operate and encumber its Property and to conduct its business as presently
conducted and as proposed to be conducted in connection with and following the
consummation of the transactions contemplated by this Agreement, and (D) is a
partnership for federal income tax purposes.
(iv) True, correct and complete copies of the Organizational Documents
of the Borrower, the Company and RMOP identified on Schedule 7.1-A have been
delivered to the Administrative Agent, each of which is in full force and
effect, has not been modified or amended except to the extent set forth
indicated therein or as otherwise permitted hereby and, to the best of the
Borrower's and RMOP's knowledge, there are no defaults under such Organizational
Documents and no events which, with the passage of time or giving of notice or
both, would constitute a default under such Organizational Documents. Borrower
shall update Schedule 7.1-A from time to time in order to keep said Schedule
true and correct.
(v) Neither the Borrower, RMOP nor the Company are "foreign persons"
within the meaning of Section 1445 of the Internal Revenue Code.
(b) Authority. (i) The Company has the requisite power and authority to
execute and deliver this Agreement on behalf of the Borrower and each of the
other Loan Documents which are required to be executed on behalf of the Borrower
as required by this Agreement. The Company is the Person who has executed this
Agreement and such other Loan Documents on behalf of the Borrower and is the
sole general partner of the Borrower.
(ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Industrial Interim GP LLC has the requisite power
and authority to execute and deliver this Agreement on behalf of RMOP and each
of the other Loan Documents which are required to be executed on behalf of RMOP
as required by this Agreement. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Industrial Interim GP LLC is the
Person who has executed this Agreement and such other Loan Documents on behalf
of RMOP and, together with RMIT, are the sole general partners of RMOP.
(iii) The execution, delivery and performance of each of the Loan
Documents which must be executed in connection with this Agreement by the
Borrower and to which the Borrower is a party and the consummation of the
transactions contemplated thereby are within the Borrower's partnership powers,
have been duly authorized by all necessary partnership action (and, in the case
of the Company acting on behalf of the Borrower in connection therewith, all
necessary corporate action of the Company) and such authorization has not been
rescinded. No other partnership or corporate action or proceedings on the part
of the Borrower or the Company is necessary to consummate such transactions.
(iv) The execution, delivery and performance of each of the Loan
Documents which must be executed in connection with this Agreement by RMOP and
to which RMOP is a party and the consummation of the transactions contemplated
thereby are within RMOP's partnership powers, have been duly authorized by all
necessary partnership action (and, in the case of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Industrial
Interim GP LLC acting on behalf of RMOP in connection therewith, all necessary
limited liability company action of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Industrial Interim GP LLC)
and such authorization has not been rescinded. No other partnership or limited
liability company action or proceedings on the part of RMOP or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Industrial Interim GP LLC is necessary to consummate such transactions.
(v) Each of the Loan Documents to which the Borrower is a party has
been duly executed and delivered on behalf of the Borrower and constitutes the
Borrower's legal, valid and binding obligation, enforceable against the Borrower
in accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally or by general principles of equity regardless of
whether enforcement is considered in a proceeding at law or in equity. Each of
the Loan Documents to which Borrower is a party is in full force and effect and
all the terms, provisions, agreements and conditions set forth therein and
required to be performed or complied with by the Company, the Borrower and the
Borrower's Subsidiaries on or before the Initial Funding Date have been
performed or complied with, and no Potential Event of Default or Event of
Default exists hereunder.
(vi) Each of the Loan Documents to which RMOP is a party has been duly
executed and delivered on behalf of RMOP and constitutes RMOP's legal, valid and
binding obligation, enforceable against the Borrower in accordance with its
terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally or by general principles of equity regardless of whether enforcement
is considered in a proceeding at law or in equity. Each of the Loan Documents to
which RMOP is a party is in full force and effect and all the terms, provisions,
agreements and conditions set forth therein and required to be performed or
complied with by RMOP on or before the Initial Funding Date have been performed
or complied with, and no Potential Event of Default or Event of Default exists
hereunder.
(c) Subsidiaries; Ownership of Capital Stock and Partnership Interests.
(i) Schedule 7.1-C (A) contains a diagram indicating the corporate structure of
the Company, the Borrower, RMOP, and any other Person in which the Company, the
Borrower or RMOP holds a direct or indirect partnership, joint venture or other
equity interest indicating the nature of such interest with respect to each
Person included in such diagram; and (B) accurately sets forth (1) the correct
legal name of such Person, the jurisdiction of its incorporation or organization
and the jurisdictions in which it is qualified to transact business as a foreign
corporation, or otherwise, and (2) the authorized, issued and outstanding shares
or interests of each class of equity Securities of the Company, the Borrower,
RMOP and the Subsidiaries of the Borrower and RMOP, and (3) the ownership
interest of the Borrower, the Company, RMOP and the Subsidiaries of the Borrower
and RMOP in all Minority Holdings. None of such issued and outstanding
Securities is subject to any vesting, redemption, or repurchase agreement, and
there are no warrants or options (other than Permitted Securities Options)
outstanding with respect to such Securities, except as noted on Schedule 7.1-C.
The outstanding Capital Stock of the Company is duly authorized, validly issued,
fully paid and nonassessable and the outstanding Securities of the Borrower,
RMOP and their Subsidiaries are duly authorized and validly issued. Attached
hereto as part of Schedule 7.1-C is a true, accurate and complete copy of the
Borrower Partnership Agreement as in effect on the Closing Date and such
Partnership Agreement has not been amended, supplemented, replaced, restated or
otherwise modified in any respect since the Closing Date, except as otherwise
permitted hereby. Attached hereto as part of Schedule 7.1-C is a true, accurate
and complete copy of RMOP Partnership Agreement as in effect on the Closing Date
and such RMOP Partnership Agreement has not been amended, supplemented,
replaced, restated or otherwise modified in any respect since the Closing Date,
except as otherwise permitted hereby. Borrower shall update Schedule 7.1-C as of
the first day of each fiscal quarter, and shall deliver the same together with
the Quarterly Compliance Certificates, to the extent required, in order to keep
said Schedule true and correct.
(ii) Except where failure would not have a Material Adverse Effect on
the Borrower or RMOP, as the case may be, each of its Subsidiary: (A) is a
corporation or partnership, as indicated on Schedule 7.1-C, duly organized or
formed, validly existing and, if applicable, in good standing under the laws of
the jurisdiction of its organization, (B) is duly qualified to do business and,
if applicable, is in good standing under the laws of each jurisdiction in which
failure to be so qualified and in good standing would have a Material Adverse
Effect, and (C) has all requisite power and authority to own, operate and
encumber its Property and to conduct its business as presently conducted and as
proposed to be conducted hereafter.
(d) No Conflict. The execution, delivery and performance of each of the
Loan Documents to which the Borrower or RMOP is a party, respectively, do not
and will not (i) conflict with the Organizational Documents of the Borrower, of
the Company, RMOP, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Industrial Interim GP LLC or RMIT, as the case
may be, (ii) conflict with, result in a breach of or constitute (with or without
notice or lapse of time or both) a default under any Requirement of Law or
material Contractual Obligation of the Borrower, the Company, RMOP, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Industrial Interim GP LLC or RMIT, as the case may be, or require
termination of any such material Contractual Obligation which would subject the
Administrative Agent or any of the other Lenders to any liability, (iii) result
in or require the creation or imposition of any Lien whatsoever upon any of the
Property or assets of the Borrower, the Company, RMOP, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Industrial
Interim GP LLC or RMIT, as the case may be, or (iv) require any approval of
shareholders of the Company or the members of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Industrial Interim
GP LLC or the trustees of RMIT (other than such approvals that have been
obtained and are in full force and effect).
(e) Governmental Consents. The execution, delivery and performance of
each of the Loan Documents to which the Borrower and/or RMOP, as the case may
be, is a party do not and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by any Governmental
Authority, except filings, consents or notices which have been made, obtained or
given.
(f) Governmental Regulation. None of the Borrower, the Company, RMOP or
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Industrial Interim GP LLC is subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, or the Investment Company Act of 1940, or any other
federal or state statute or regulation which limits its ability to incur
indebtedness as contemplated by this Agreement.
(g) Financial Position. Complete and accurate copies of the following
financial statements and materials have been delivered to the Administrative
Agent: annual unaudited financial statements of the Borrower and annual audited
financial statements of the Company for the fiscal year ended December 31, 1997.
All annual financial statements of the Borrower shall be accompanied by an
Officer's Certificate of the Borrower, and shall be certified by the Chief
Financial Officer of the Borrower as fairly presenting in all material respects
the financial position of the Borrower. All financial statements included in
such materials were prepared in all material respects in conformity with GAAP,
except as otherwise noted therein, and fairly present in all material respects
the respective consolidated financial positions, and the consolidated results of
operations and cash flows for each of the periods covered thereby of the
Borrower and the Company as at the respective dates thereof. Neither the
Borrower or the Company has any Contingent Obligation, contingent liability or
liability for any taxes, long-term leases or commitments, not reflected in its
financial statements delivered to the Administrative Agent on or prior to the
Closing Date or otherwise disclosed to the Administrative Agent and the Lenders
in writing on or prior to the Closing Date, which will have a Material Adverse
Effect.
(h) Indebtedness. Schedule 7.1-H sets forth, as of June 30, 1998, all
Indebtedness for borrowed money of each of the Borrower, RMOP, Company, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Industrial Interim GP LLC, RMIT and their respective Subsidiaries and,
except as set forth on Schedule 7.1-H, there are no defaults in the payment of
principal or interest on any such Indebtedness and no payments thereunder have
been deferred or extended beyond their stated maturity and there has been no
material change in the type or amount of such Indebtedness (except for the
repayment of certain Indebtedness) since June 30, 1998.
(i) Litigation; Adverse Effects. Except as set forth in Schedule 7.1-I,
as of the Closing Date, there is no action, suit, proceeding, investigation or
arbitration before or by any Governmental Authority or private arbitrator
pending or, to the knowledge of the Borrower, threatened against the Company,
the Borrower, RMOP, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Industrial Interim GP LLC, RMIT or any of
their respective Subsidiaries, or any Property of any of them (i) challenging
the validity or the enforceability of any of the Loan Documents, (ii) which
could be reasonably be expected to result in any Material Adverse Effect, or
(iii) under the Racketeering Influenced and Corrupt Organizations Act or any
similar federal or state statute where such Person is a defendant in a criminal
indictment that provides for the forfeiture of assets to any Governmental
Authority as a potential criminal penalty. There is no material loss contingency
within the meaning of GAAP which has not been reflected in the consolidated
financial statements of the Company and the Borrower. None of the Company, the
Borrower, RMOP, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Industrial Interim GP LLC, RMIT or any Subsidiary
of the Borrower is (A) in violation of any applicable Requirements of Law which
violation will have or is reasonably likely to have a Material Adverse Effect,
or (B) in default with respect to any final judgment, writ, injunction,
restraining order or order of any nature, decree, rule or regulation of any
court or Governmental Authority which will have a Material Adverse Effect.
(j) No Material Adverse Effect. Since June 30, 1998, there has occurred
no event which has had a Material Adverse Effect.
(k) Intentionally Omitted.
(l) Payment of Taxes. All material tax returns, reports and similar
statements or filings of the Company, the Borrower, RMOP, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Industrial Interim GP LLC, RMIT and their respective Subsidiaries required to be
filed have been timely filed (or extensions to file have been obtained), and,
except for Customary Permitted Liens, all material taxes, assessments, fees and
other charges of Governmental Authorities thereupon and upon or relating to
their respective Properties, assets, receipts, sales, use, payroll, employment,
income, licenses and franchises which are shown in such returns or reports to be
due and payable have been paid, except to the extent (i) such taxes,
assessments, fees and other charges of Governmental Authorities are being
contested in good faith by an appropriate proceeding diligently pursued as
permitted by the terms of Section 9.4 and (ii) such taxes, assessments, fees and
other charges of Governmental Authorities pertain to Property of the Borrower or
any of its Subsidiaries and the non-payment of the amounts thereof would not,
individually or in the aggregate, result in a Material Adverse Effect. All other
material taxes (including, without limitation, real estate taxes), assessments,
fees and other governmental charges upon or relating to the respective
Properties of the Borrower and its Subsidiaries which are due and payable have
been paid, except for Customary Permitted Liens and except to the extent
described in clauses (i) and (ii) hereinabove. The Borrower has no knowledge of
any proposed tax assessment against the Borrower, any of its Subsidiaries, or
any of the Projects that will have or is reasonably likely to have a Material
Adverse Effect. RMOP has no knowledge of any proposed tax assessment against
RMOP, any of its Subsidiaries, or any of the Projects that will have or is
reasonably likely to have a Material Adverse Effect.
(m) Performance. To the knowledge of the Borrower or RMOP, neither the
Company, RMOP, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Industrial Interim GP LLC, RMIT, the Borrower nor
any of their Subsidiaries has received any written notice or citation, nor has
actual knowledge, that (i) it is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in any
Contractual Obligation applicable to it, or (ii) any condition exists which,
with the giving of notice or the lapse of time or both, would constitute a
default with respect to any such Contractual Obligation, in each case, except
where such default or defaults, if any, will not have a Material Adverse Effect.
(n) Disclosure. The representations and warranties of the Borrower and
RMOP contained in the Loan Documents, and all certificates and other documents
delivered to the Administrative Agent pursuant to the terms thereof, do not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained herein or therein, in light
of the circumstances under which they were made, taken as a whole, not
misleading. Notwithstanding the foregoing, the Lenders acknowledge that neither
the Borrower nor RMOP shall have liability under this clause (n) with respect to
its projections of future events or for any financial projections.
(o) Requirements of Law. The Borrower, RMOP and each of their
Subsidiaries is in compliance with all Requirements of Law applicable to it and
its respective businesses and Properties, in each case where the failure to so
comply individually or in the aggregate will have a Material Adverse Effect.
(p) Environmental Matters.
(i) Except as disclosed on Schedule 7.1-P (the Borrower and RMOP
shall update Schedule 7.1-P as of the first day of each fiscal quarter, and
deliver the same together with the Quarterly Compliance Certificates, to the
extent required, in order to keep said Schedule true and correct):
(A) the operations of the Borrower, RMOP, each of their
Subsidiaries, and their respective Properties comply with all applicable
Environmental, Health or Safety Requirements of Law, except to the extent any
failure to do so would not have a Material Adverse Effect;
(B) the Borrower, RMOP and each of their Subsidiaries have
obtained all material environmental, health and safety Permits necessary for
their respective operations, and all such Permits are in good standing and the
holder of each such Permit is currently in compliance with all terms and
conditions of such Permits, except to the extent any failure to do so would not
have a Material Adverse Effect;
(C) to the knowledge of the Borrower or RMOP, none of the
Borrower, RMOP nor any of their Subsidiaries or any of their respective present
or past Property or operations are subject to or are the subject of any
investigation of any Governmental Authority, judicial or administrative
proceeding, order, judgment or decree, negotiations, agreement or settlement
respecting (I) any Remedial Action, (II) any Claims or Liabilities and Costs
arising from the Release or threatened Release of a Contaminant into the
environment, or (III) any violation of or liability under any Environmental,
Health or Safety Requirement of Law, except to the extent none of the foregoing
would have a Material Adverse Effect;
(D) none of Borrower, RMOP or any of their Subsidiaries has
filed any notice under any applicable Requirement of Law (I) reporting a Release
of a Contaminant; (II) indicating past or present treatment, storage or disposal
of a hazardous waste, as that term is defined under 40 C.F.R. Part 261 or any
state equivalent; or (III) reporting a violation of any applicable
Environmental, Health or Safety Requirement of Law with respect to any of the
foregoing, the substance of which would have a Material Adverse Effect;
(E) none of the Borrower's, RMOP's or any of their
Subsidiaries' present or past Property is listed or, to the knowledge of the
Borrower or RMOP, proposed for listing on the National Priorities List ("NPL")
pursuant to CERCLA or on the Comprehensive Environmental Response Compensation
Liability Information System List ("CERCLIS") or any similar state list of sites
requiring Remedial Action;
(F) to the knowledge of the Borrower or RMOP, none of the
Borrower, RMOP or any of their Subsidiaries has sent or directly arranged for
the transport of any waste to any site listed or proposed for listing on the
NPL, CERCLIS or any similar state list;
(G) to the best of Borrower's or RMOP's knowledge, there is
not now, and to Borrower's knowledge there has never been on or in any Project,
(I) any treatment, recycling, storage away from the site of generation or
disposal of any hazardous waste, as that term is defined under 40 C.F.R. Part
261 or any state equivalent, (II) any solid waste management facility, (III) any
underground storage tanks the presence or use of which is in violation of
applicable Environmental, Health or Safety Requirements of Law, (IV) any
asbestos-containing material which, in its present state, such Person has any
reason to believe could subject such Person or its Property to Liabilities and
Costs arising out of or relating to environmental, health or safety matters that
would result in a Material Adverse Effect; or (V) any polychlorinated biphenyls
(PCB) used in hydraulic oils, electrical transformers or other Equipment, which,
in any such case, would subject the Borrower or RMOP or their Property to
Liabilities and Costs arising out of or relating to environmental, health or
safety matters that would result in a Material Adverse Effect;
(H) to the knowledge of the Borrower, none of the Borrower,
RMOP or any of their Subsidiaries has received any notice or Claim to the effect
that any of such Persons is or may be liable to any Person as a result of the
Release or threatened Release of a Contaminant into the environment which would
result in a Material Adverse Effect;
(I) none of the Borrower, RMOP or any of their Subsidiaries
has any contingent liability in connection with any Release or threatened
Release of any Contaminants into the environment which will result in a Material
Adverse Effect;
(J) no Environmental Lien has attached to any Property of
the Borrower, RMOP or any Subsidiary of either (other than those otherwise
permitted hereunder) or which do not constitute an Event of Default; and
(K) no Property of the Borrower, RMOP or any Subsidiary of
either is subject to any Environmental Property Transfer Act, or to the extent
such acts are applicable to any such Property, the Borrower and/or such
Subsidiary whose Property is subject thereto has complied in all material
respects with the requirements of such acts.
(q) ERISA. Neither the Borrower nor any ERISA Affiliate maintains or
contributes to any Benefit Plan or Multiemployer Plan other than those listed on
Schedule 7.1-Q hereto. Each Plan which is intended to be qualified under Section
401(a) of the Internal Revenue Code as currently in effect has been determined
by the IRS to be so qualified, and each trust related to any such Plan has been
determined to be exempt from federal income tax under Section 501(a) of the
Internal Revenue Code as currently in effect. Except as disclosed in Schedule
7.1-Q, neither the Borrower nor any of its Subsidiaries maintains or contributes
to any employee welfare benefit plan within the meaning of Section 3(1) of ERISA
that provides benefits to employees after termination of employment other than
as required by Section 601 of ERISA. The Borrower and each of its Subsidiaries
is in compliance in all material respects with the responsibilities, obligations
and duties imposed on it by ERISA, the Internal Revenue Code and regulations
promulgated thereunder with respect to all Plans. No Benefit Plan has incurred
any accumulated funding deficiency (as defined in Sections 302(a)(2) of ERISA
and 412(a) of the Internal Revenue Code) whether or not waived. Neither the
Borrower nor any ERISA Affiliate nor any fiduciary of any Plan which is not a
Multiemployer Plan (i) has engaged in a nonexempt prohibited transaction
described in Sections 406 of ERISA or 4975 of the Internal Revenue Code or (ii)
has taken or failed to take any action which would constitute or result in a
Termination Event. Neither the Borrower nor any ERISA Affiliate is subject to
any liability under Sections 4063, 4064, or 4204 of ERISA which would have a
Material Adverse Effect. Neither the Borrower nor any ERISA Affiliate is subject
to any liability under Sections 4069 or 4212(c) of ERISA or has incurred any
liability to the PBGC which remains outstanding other than the payment of
premiums, and there are no premium payments which have become due which are
unpaid. Schedule B to the most recent annual report filed with the IRS with
respect to each Benefit Plan has been furnished to the Administrative Agent and
is complete and accurate in all material respects. Since the date of each such
Schedule B, there has been no material adverse change in the funding status or
financial condition of the Benefit Plan relating to such Schedule B. Neither the
Borrower nor any ERISA Affiliate has (i) failed to make a required contribution
or payment to a Multiemployer Plan or (ii) made a complete or partial withdrawal
under Sections 4203 or 4205 of ERISA from a Multiemployer Plan which would have
a Material Adverse Effect. Neither the Borrower, nor any ERISA Affiliate has
failed to make a required installment or any other required payment under
Section 412 of the Internal Revenue Code on or before the due date for such
installment or other payment. Neither the Borrower nor any ERISA Affiliate is
required to provide security to a Benefit Plan under Section 401(a)(29) of the
Internal Revenue Code due to a Benefit Plan amendment that results in an
increase in current liability for the plan year. Except as disclosed on Schedule
7.1-Q, which shall be updated by Borrower as of the first day of each fiscal
quarter, to the extent required, neither the Borrower nor any of its
Subsidiaries has, by reason of the transactions contemplated hereby, any
obligation to make any payment to any employee pursuant to any Plan or existing
contract or arrangement.
(r) Securities Activities. Neither the Borrower nor RMOP is engaged in
the business of extending credit for the purpose of purchasing or carrying
Margin Stock except as described on Schedule 7.1(r).
(s) Solvency. After giving effect to the Loans to be made on the
Initial Funding Date or such other date as Loans requested hereunder are made,
and the disbursement of the proceeds of such Loans pursuant to the Borrower's or
RMOP's instructions, each of the Borrower and RMOP is Solvent.
(t) Insurance. Schedule 7.1-T accurately sets forth as of the Closing
Date all insurance policies and programs currently in effect with respect to the
respective Property and assets and business of the Borrower and its
Subsidiaries, specifying for each such policy and program, (i) the amount
thereof, (ii) the risks insured against thereby, (iii) the name of the insurer
and each insured party thereunder, (iv) the policy or other identification
number thereof, and (v) the expiration date thereof. The Borrower has delivered
to the Administrative Agent copies of all insurance policies set forth on
Schedule 7.1-T. Such insurance policies and programs are currently in full force
and effect, in compliance with the requirements of Section 9.5 hereof and,
together with payment by the insured of scheduled deductible payments, are, to
the knowledge of the Borrower, in amounts which should reasonably be expected to
be sufficient to cover the replacement value of the respective Property and
assets of the Borrower and/or its Subsidiaries. Borrower shall update Schedule
7.1-T, which shall be updated by Borrower annually, to the extent required, in
order to keep said Schedule true and correct (or more frequently if an insurance
policy or program shall be terminated and/or replaced).
(u) REIT Status. The Company qualifies as a REIT under the Internal
Revenue Code.
(v) Ownership of Projects, Minority Holdings and Property. Ownership of
all wholly owned Projects, Minority Holdings and other Property of the
Consolidated Businesses is held by the Borrower and its Subsidiaries and is not
held directly by the Company.
(w) Year 2000 Compliance. The Borrower has commenced a comprehensive
review and assessment of the Borrower's computer applications and has commenced
inquiry of the Borrower's key suppliers, vendors and customers with respect to
the "year 2000 problem" (that is, the risk that computer applications may not be
able to properly perform date sensitive functions after December 31, 1999) and,
based on that review and inquiry, the Borrower does not believe the year 2000
problem will result in a Material Adverse Effect. The Borrower will complete
such review, assessment and inquiry on or before June 30, 1999.
ARTICLE VIII
REPORTING COVENANTS
The Borrower and RMOP each covenants and agrees that so long as any
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than indemnities pursuant to Section 14.3 not yet due),
unless the Requisite Lenders shall otherwise give prior written consent thereto:
8.1. Borrower Accounting Practices. The Borrower and RMOP each shall
maintain, and cause each of its consolidated Subsidiaries to maintain, a system
of accounting established and administered in accordance with sound business
practices to permit preparation of consolidated financial statements in
conformity with GAAP.
8.2. Financial Reports. The Borrower and RMOP each shall deliver or
cause to be delivered to the Administrative Agent (with copies for each of the
Lenders):
(a) Quarterly Reports.
(i) Borrower and RMOP Quarterly Financial Reports. As soon as
practicable, and in any event within forty-five (45) days after the end of each
fiscal quarter in each Fiscal Year (other than the last fiscal quarter in each
Fiscal Year), a consolidated balance sheet of the Borrower and the related
consolidated statements of income and cash flow of the Borrower or RMOP (to be
prepared and delivered quarterly in conjunction with the other reports delivered
hereunder at the end of each fiscal quarter) for each such fiscal quarter, and,
in comparative form, the corresponding figures for the corresponding periods of
the previous Fiscal Year, certified by an Authorized Financial Officer of the
Borrower or RMOP, as the case may be, as fairly presenting in all material
respects the consolidated financial position of the Borrower or RMOP as of the
dates indicated and the results of their operations and cash flow for the months
indicated in accordance with GAAP, subject to normal quarterly adjustments.
(ii) Company Quarterly Financial Reports. As soon as practicable, and
in any event within forty-five (45) days after the end of each fiscal quarter in
each Fiscal Year (other than the last fiscal quarter in each Fiscal Year), the
Financial Statements of the Company and its consolidated Subsidiaries on Form
10-Q as at the end of such period and a report setting forth in comparative form
the corresponding figures for the corresponding period of the previous Fiscal
Year, certified by an Authorized Financial Officer of the Company as fairly
presenting in all material respects the consolidated financial position of the
Company and its consolidated Subsidiaries as at the date indicated and the
results of their operations and cash flow for the period indicated in accordance
with GAAP, subject to normal adjustments.
(iii) Quarterly Compliance Certificates. Together with each delivery of
any quarterly report pursuant to paragraph (a)(i) of this Section 8.2, the
Borrower, RMOP and RMOP each shall deliver Officer's Certificates of the
Borrower and the Company (the "Quarterly Compliance Certificates"), signed by
the Borrower's, RMOP's and the Company's respective Authorized Financial
Officers representing and certifying (1) that the Authorized Financial Officer
signatory thereto has reviewed the terms of the Loan Documents, and has made, or
caused to be made under his/her supervision, a review in reasonable detail of
the consolidated financial condition of the Company and its Consolidated
Subsidiaries, for the fiscal quarter covered by such reports, that such review
has not disclosed the existence during or at the end of such fiscal quarter, and
that such officer does not have knowledge of the existence as at the date of
such Officer's Certificate, of an Event of Default or Potential Event of Default
or mandatory prepayment event, or, if any such condition or event existed or
exists, the nature and period of existence thereof and what action the Company
and/or the Borrower and/or RMOP or any of their Subsidiaries has taken, is
taking and proposes to take with respect thereto; (2) the calculations in the
form of Exhibit G hereto for the period then ended which demonstrate compliance
with the covenants and financial ratios set forth in Sections 9.9, 9.11, 10.2,
10.6, 10.7, 10.11, and 10.12 hereof and, when applicable, that no Event of
Default described in Section 11.1 exists, (3) a schedule of the Borrower's and
RMOP's outstanding Indebtedness, including the amount, maturity, interest rate
and amortization requirements, as well as such other information regarding such
Indebtedness as may be reasonably requested by the Administrative Agent, (4) a
schedule of Total Adjusted EBITDA, and (5) a schedule of Adjusted Unencumbered
NOI.
(b) Annual Reports.
(i) Borrower and RMOP Financial Statements. As soon as practicable, and
in any event within ninety (90) days after the end of each Fiscal Year, the
Financial Statements of the Borrower and RMOP and their respective Subsidiaries
as at the end of such Fiscal Year, accompanied by an Officer's Certificate of
the Borrower or RMOP, certified by the Chief Financial Officer of the Borrower
or RMOP, as the case may be, that the Financial Statements fairly present in all
material respects the consolidated financial position of each of the Borrower
and RMOP and their respective Subsidiaries as of the dates indicated and the
results of their operations and cash flow for the periods indicated in
conformity with GAAP consistently applied, and which Officer's Certificate shall
explain any inconsistencies between the Financial Statements of the Borrower,
RMOP and the Financial Statements of the Company.
(ii) Company Financial Statements. As soon as practicable, and in any
event within ninety (90) days after the end of each Fiscal Year, (i) the
Financial Statements of the Company and its consolidated Subsidiaries on Form
10-K as at the end of such Fiscal Year and a report setting forth in comparative
form the corresponding figures from the consolidated Financial Statements of the
Company and its Subsidiaries for the prior Fiscal Year; (ii) a report with
respect thereto of Ernst & Young LLP or other independent certified public
accountants acceptable to the Administrative Agent (it being understood that any
"Big Six" certified public accountants are acceptable to the Administrative
Agent), which report shall be unqualified and shall state that such financial
statements fairly present the consolidated financial position of each of the
Company and its consolidated Subsidiaries as at the dates indicated and the
results of their operations and cash flow for the periods indicated in
conformity with GAAP (except for changes with which Ernst & Young LLP or any
such other independent certified public accountants, if applicable, shall concur
and which shall have been disclosed in the notes to the financial
statements)(which report shall be subject to the confidentiality limitations set
forth herein); and (iii) in the event that the report referred to in clause (ii)
above is qualified, a copy of the management letter or any similar report
delivered to the Company or to any officer or employee thereof by such
independent certified public accountants in connection with such financial
statements. The Administrative Agent and each Lender (through the Administrative
Agent) may, with the consent of the Company (which consent shall not be
unreasonably withheld), communicate directly with such accountants, with any
such communication to occur together with a representative of the Company, at
the expense of the Administrative Agent (or the Lender requesting such
communication), upon reasonable notice and at reasonable times during normal
business hours.
(iii) Annual Compliance Certificates. Together with each delivery of
any annual report pursuant to clauses (i) and (ii) of this Section 8.2(b), the
Borrower and RMOP each shall deliver Officer's Certificates of the Borrower and
the Company (the "Annual Compliance Certificates" and, collectively with the
Quarterly Compliance Certificates, the "Compliance Certificates"), signed by the
Borrower's, RMOP's and the Company's respective Authorized Financial Officers,
representing and certifying (1) that the officer signatory thereto has reviewed
the terms of the Loan Documents, and has made, or caused to be made under
his/her supervision, a review in reasonable detail of the consolidated financial
condition of the Company and its consolidated Subsidiaries, for the accounting
period covered by such reports, that such review has not disclosed the existence
at the end of such accounting period, and that such officer does not have
knowledge of the existence as at the date of such Officer's Certificate, of an
Event of Default or Potential Event of Default or mandatory prepayment event,
or, if any such condition or event existed or exists, the nature and period of
existence thereof and what action the Company and/or the Borrower and/or RMOP or
any of their Subsidiaries has taken, is taking and proposes to take with respect
thereto; (2) the calculations in the form of Exhibit G hereto for the period
then ended which demonstrate compliance with the covenants and financial ratios
set forth in Sections 9.9, 9.11, 10.2, 10.6, 10.7, 10.11, and 10.12 hereof and,
when applicable, that no Event of Default described in Section 11.1 exists, (3)
a schedule of the Borrower's and RMOP's outstanding Indebtedness including the
amount, maturity, interest rate and amortization requirements, as well as such
other information regarding such Indebtedness as may be reasonably requested by
the Administrative Agent, (4) a schedule of Total Adjusted EBITDA and (5) a
schedule of Adjusted Unencumbered NOI.
(iv) Tenant Bankruptcy Reports. As soon as practicable, and in any
event within ninety (90) days after the end of each Fiscal Year, the Borrower
and RMOP shall deliver a written report, in form reasonably satisfactory to the
Administrative Agent, of all bankruptcy proceedings filed by or against any
tenant of any of the Projects, which tenant occupies three and one half percent
(3.5%) or more of the gross leasable area in the Projects in the aggregate. The
Borrower and RMOP shall deliver to the Administrative Agent and the Lenders,
immediately upon the Borrower's or RMOP's learning thereof, of any bankruptcy
proceedings filed by or against, or the cessation of business or operations of,
any tenant of any of the Projects which tenant occupies three and one half
percent (3.5%) or more of the gross leasable area in the Projects in the
aggregate.
(v) Property Reports. Simultaneously with the delivery of the
Compliance Certificates, a rent roll.
8.3. Events of Default. Promptly upon the Borrower or RMOP obtaining
knowledge (a) of any condition or event which constitutes an Event of Default or
Potential Event of Default; (b) that any Person has given any notice to the
Borrower or RMOP or any Subsidiary of the Borrower or RMOP or taken any other
action with respect to a claimed default or event or condition of the type
referred to in Section 11.1(e); or (c) or of any condition or event which has a
Material Adverse Effect, the Borrower and/or RMOP shall deliver to the
Administrative Agent (with copies for each of the Lenders) an Officer's
Certificate specifying (i) the nature and period of existence of any such
claimed default, Event of Default, Potential Event of Default, condition or
event, (ii) the notice given or action taken by such Person in connection
therewith, and (iii) what action the Borrower or RMOP, as the case may be, has
taken, is taking and proposes to take with respect thereto.
8.4. Lawsuits. (i) Promptly upon the Borrower's or RMOP's obtaining
knowledge of the institution of, or written threat of, any action, suit,
proceeding, governmental investigation or arbitration against or affecting the
Borrower, RMOP or any of their Subsidiaries not previously disclosed pursuant to
Section 7.1(i), which action, suit, proceeding, governmental investigation or
arbitration exposes, or in the case of multiple actions, suits, proceedings,
governmental investigations or arbitrations arising out of the same general
allegations or circumstances which expose, in the Borrower's or RMOP's
reasonable judgment, the Borrower, RMOP or any of their Subsidiaries to
liability in an amount aggregating $1,000,000 or more and is not covered by the
Borrower's, RMOP's or such Subsidiary's insurance, the Borrower and/or RMOP
shall give written notice thereof to the Administrative Agent (with copies for
each of the Lenders) and provide such other information as may be reasonably
available to enable each Lender and the Administrative Agent and its counsel to
evaluate such matters; (ii) as soon as practicable and in any event within
forty-five (45) days after the end of each fiscal quarter of the Borrower or
RMOP, the Borrower or RMOP shall provide a written quarterly report to the
Administrative Agent and the Lenders covering the institution of, or written
threat of, any action, suit, proceeding, governmental investigation or
arbitration in an amount equal to or in excess of $50,000,000 to the extent not
previously reported) against or affecting the Borrower, RMOP or any of their
Subsidiaries or any Property of the Borrower, RMOP or any of their Subsidiaries
not previously disclosed by the Borrower or RMOP to the Administrative Agent and
the Lenders, and shall provide such other information at such time as may be
reasonably available to enable each Lender and the Administrative Agent and its
counsel to evaluate such matters; and (iii) in addition to the requirements set
forth in clauses (i) and (ii) of this Section 8.4, the Borrower and RMOP upon
request of the Administrative Agent or the Requisite Lenders shall promptly give
written notice of the status of any action, suit, proceeding, governmental
investigation or arbitration covered by a report delivered pursuant to clause
(i) or (ii) above and provide such other information as may be reasonably
requested and available to it to enable each Lender and the Administrative Agent
and its counsel to evaluate such matters. Notwithstanding the foregoing, neither
the Borrower nor RMOP shall be not required to disclose any information which is
subject to the attorney-client privilege.
8.5. Insurance. As soon as practicable and in any event by January 31st
of each calendar year, the Borrower shall deliver to the Administrative Agent
(with copies for each of the Lenders) (i) a report in form and substance
reasonably satisfactory to the Administrative Agent outlining all insurance
coverage maintained as of the date of such report by the Borrower and its
Subsidiaries and the duration of such coverage and (ii) an Officer's Certificate
of signed by an Authorized Financial Officer of the Borrower certifying that all
premiums with respect to such coverage have been paid when due.
8.6. ERISA Notices. The Borrower shall deliver or cause to be delivered
to the Administrative Agent (with copies for each of the Lenders), at the
Borrower's expense, the following information and notices as soon as reasonably
possible, and in any event:
(a) within fifteen (15) Business Days after the Borrower or
any ERISA Affiliate knows or has reason to know that a Termination
Event has occurred, a written statement of an Authorized Financial
Officer of the Borrower describing such Termination Event and the
action, if any, which the Borrower or any ERISA Affiliate has taken, is
taking or proposes to take with respect thereto, and when known, any
action taken or threatened by the IRS, DOL or PBGC with respect
thereto;
(b) within fifteen (15) Business Days after the Borrower knows
or has reason to know that a non-exempt prohibited transaction (as
defined in Sections 406 of ERISA and Section 4975 of the Internal
Revenue Code) has occurred with respect to the Borrower, any ERISA
Affiliate or any Plan, a statement of an Authorized Financial Officer
of the Borrower describing such transaction with respect to the
Borrower any ERISA Affiliate or any Plan and the action which the
Borrower or any ERISA Affiliate has taken, is taking or proposes to
take with respect thereto;
(c) within fifteen (15) Business Days after the filing of the
same with the DOL, IRS or PBGC, copies of each annual report (Form 5500
series), including Schedule B thereto, filed with respect to each
Benefit Plan;
(d) within fifteen (15) Business Days after receipt by the
Borrower or any ERISA Affiliate of each actuarial report for any
Benefit Plan or Multiemployer Plan and each annual report for any
Multiemployer Plan, copies of each such report;
(e) within fifteen (15) Business Days after the filing of the
same with the IRS, a copy of each funding waiver request filed with
respect to any Benefit Plan and all written communications received by
the Borrower or any ERISA Affiliate with respect to such request;
(f) within fifteen (15) Business Days after the occurrence of
any material increase in the benefits of any existing Benefit Plan or
Multiemployer Plan or the establishment of any new Benefit Plan or the
commencement of contributions to any Benefit Plan or Multiemployer Plan
to which the Borrower or any ERISA Affiliate to which the Borrower or
any ERISA Affiliate was not previously contributing, notification of
such increase, establishment or commencement;
(g) within fifteen (15) Business Days after the Borrower or
any ERISA Affiliate receives notice of the PBGC's intention to
terminate a Benefit Plan or to have a trustee appointed to administer a
Benefit Plan, copies of each such notice;
(h) within fifteen (15) Business Days after the Borrower or
any of its Subsidiaries receives notice of any unfavorable
determination letter from the IRS regarding the qualification of a Plan
under Section 401(a) of the Internal Revenue Code, copies of each such
letter to the extent any of the foregoing would have a Material Adverse
Effect;
(i) within fifteen (15) Business Days after the Borrower or
any ERISA Affiliate receives notice from a Multiemployer Plan regarding
the imposition of withdrawal liability, copies of each such notice;
(j) within fifteen (15) Business Days after the Borrower or
any ERISA Affiliate fails to make a required installment or any other
required payment under Section 412 of the Internal Revenue Code on or
before the due date for such installment or payment which failure has
not been cured, a notification of such failure; and
(k) within fifteen (15) Business Days after the Borrower or
any ERISA Affiliate knows or has reason to know (i) a Multiemployer
Plan has been terminated, (ii) the administrator or plan sponsor of a
Multiemployer Plan intends to terminate a Multiemployer Plan, or (iii)
the PBGC has instituted or has given written notice that it will
institute proceedings under Section 4042 of ERISA to terminate a
Multiemployer Plan, notification of such termination, intention to
terminate, or institution of proceedings.
For purposes of this Section 8.6, the Borrower and any ERISA Affiliate shall be
deemed to know all facts known by the "Administrator" of any Plan of which the
Borrower or any ERISA Affiliate is the plan sponsor.
8.7. Environmental Notices. The Borrower or RMOP shall notify the
Administrative Agent (with copies for each of the Lenders) in writing, promptly
upon any Officer of the Borrower or RMOP responsible for the environmental
matters at any Property of the Borrower or RMOP learning thereof, of any of the
following (together with any material documents and correspondence received or
sent in connection therewith):
(a) notice or claim to the effect that the Borrower, RMOP or
any of their Subsidiaries is or may be liable to any Person as a result
of the Release or threatened Release of any Contaminant into the
environment, if such liability would result in a Material Adverse
Effect;
(b) notice that the Borrower, RMOP or any of their
Subsidiaries is subject to investigation by any Governmental Authority
evaluating whether any Remedial Action is needed to respond to the
Release or threatened Release of any Contaminant into the environment
which would have a Material Adverse Effect;
(c) notice that any Property of the Borrower or RMOP or any of
their Subsidiaries is subject to an Environmental Lien if the claim to
which such Environmental Lien relates would result in a Material
Adverse Effect;
(d) notice of violation by the Borrower, RMOP or any of their
Subsidiaries of any Environmental, Health or Safety Requirement of Law
which violation would have a Material Adverse Effect;
(e) commencement or written threat of any judicial or
administrative proceeding alleging a violation by the Borrower, RMOP or
any of their Subsidiaries of any Environmental, Health or Safety
Requirement of Law, which would result in a Material Adverse Effect; or
(f) any proposed acquisition of stock, assets, real estate, or
leasing of Property by the Borrower, RMOP or any of their Subsidiaries
that would subject the Borrower or any of its Subsidiaries to
environmental, health or safety Liabilities and Costs which would
result in a Material Adverse Effect.
8.8. Labor Matters. The Borrower or RMOP shall notify the
Administrative Agent (with copies for each of the Lenders) in writing, promptly
upon the Borrower's or RMOP's learning thereof, of any labor dispute to which
the Borrower, RMOP or any of their Subsidiaries is reasonably expected to become
a party (including, without limitation, any strikes, lockouts or other disputes
relating to any Property of such Persons' and other facilities) which would
result in a Material Adverse Effect.
8.9. Notices of Asset Sales and/or Acquisitions. The Borrower or RMOP
shall deliver to the Administrative Agent and the Lenders written notice of each
of the following not less than five (5) Business Days prior to the occurrence
thereof: (a) a sale, transfer or other disposition of assets, in a single
transaction or series of related transactions, (b) an acquisition of assets, in
a single transaction or series of related transactions within the two preceding
calendar quarter period, for consideration in excess of $50,000,000, and (c) the
grant of a Lien with respect to assets, in a single transaction or series of
related transactions. In addition, simultaneously with delivery of any such
notice, the Borrower or RMOP shall deliver to the Administrative Agent a
certificate of an Authorized Officer certifying that Borrower and RMOP are in
compliance with this Agreement and the other Loan Documents both on a historical
basis and on a pro forma basis, exclusive of the property sold, transferred
and/or encumbered and inclusive of the property to be acquired or the
indebtedness to be incurred.
To the extent such proposed transaction would result in a failure to comply with
the financial covenants set forth herein, proceeds of such transaction (together
with such additional amounts as may be required), in an amount, as determined by
the Administrative Agent, equal to that which would be required to reduce the
Obligations so that Borrower and RMOP will be in compliance with the covenants
set forth herein upon the consummation of the contemplated transaction, shall be
applied to prepay the Obligations.
8.10. Notices of Minority Holdings. The Borrower and RMOP shall deliver
to the Administrative Agent and the Lenders written notice of each of the
following not less than two (2) Business Days prior to the occurrence thereof:
(a) the acquisition of an interest in a Minority Holding in excess of
$1,000,000, (b) the investment of an amount in excess of $1,000,000 in a
Minority Holding of which the Administrative Agent and the Lenders have not
previously received notice, and (c) the sale of an interest in a Subsidiary that
results in the same becoming a Minority Holding. Simultaneously with the
delivery of the Compliance Certificates, the Borrower shall deliver to the
Administrative Agent and the Lenders written notice of the formation of any
other Minority Holding.
8.11. Tenant Notifications. The Borrower shall promptly notify the
Administrative Agent upon obtaining knowledge of the bankruptcy or cessation of
operations of any tenant to which greater than three and one half percent (3.5%)
of the Borrower's share of consolidated minimum rent is attributable to such
tenant.
8.12. Other Reports. The Borrower or RMOP shall deliver or cause to be
delivered to the Administrative Agent (with copies for each of the other
Lenders) copies of all financial statements and reports, if any, sent or made
available generally by the Company and/or the Borrower or RMOP to its respective
Securities holders, including, without limitation, supplemental quarterly forms,
or (to the extent not otherwise provided hereunder), all press releases made
available generally by the Company and/or the Borrower or RMOP or any of their
Subsidiaries to the public concerning material adverse developments in the
business of the Company, the Borrower or RMOP or any such Subsidiary and all
material notifications received by the Company, the Borrower or RMOP or their
Subsidiaries pursuant to the Securities Exchange Act and the rules promulgated
thereunder.
8.13. Other Information. Promptly upon receiving a request therefor
from the Administrative Agent or any Arranger, the Borrower or RMOP shall
prepare and deliver to the Administrative Agent (with copies for each of the
other Lenders) such other information with respect to the Company, the Borrower,
RMOP, or any of their Subsidiaries, as from time to time may be reasonably
requested by the Administrative Agent or any Arranger.
ARTICLE IX
AFFIRMATIVE COVENANTS
Borrower and RMOP each covenants and agrees that so long as any
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than indemnities pursuant to Section 14.3 not yet due),
unless the Requisite Lenders shall otherwise give prior written consent:
9.1. Existence, Etc. The Borrower and RMOP each shall, and shall cause
each of its Subsidiaries to, at all times maintain its corporate existence or
existence as a limited partnership or joint venture, as applicable, and preserve
and keep, or cause to be preserved and kept, in full force and effect its rights
and franchises material to its businesses, except where the loss or termination
of such rights and franchises will not have a Material Adverse Effect.
9.2. Powers; Conduct of Business. The Borrower and RMOP shall remain
qualified, and shall cause each of its Subsidiaries to qualify and remain
qualified, to do business and maintain its good standing in each jurisdiction in
which the nature of its business and the ownership of its Property requires it
to be so qualified and in good standing if the failure to do so will have a
Material Adverse Effect.
9.3. Compliance with Laws, Etc. The Borrower and RMOP shall, and shall
cause each of its Subsidiaries to, (a) comply with all Requirements of Law and
all restrictive covenants affecting such Person or the business, Property or
operations of such Person, and (b) obtain and maintain as needed all Permits
necessary for its operations (including, without limitation, the operation of
the Projects) and maintain such Permits in good standing, except where
noncompliance with either clause (a) or (b) above will not have a Material
Adverse Effect.
9.4. Payment of Taxes and Claims. (a) The Borrower and RMOP shall pay,
and cause each of its Subsidiaries to pay, (i) all material taxes, assessments
and other governmental charges imposed upon it or on any of its Property or
assets or in respect of any of its franchises, licenses, receipts, sales, use,
payroll, employment, business, income or Property before any penalty or interest
accrues thereon, and (ii) all material Claims (including, without limitation,
claims for labor, services, materials and supplies) for sums which have become
due and payable and which by law have or may become a Lien (other than a Lien
permitted by Section 10.2 or a Customary Permitted Lien for property taxes and
assessments not yet due upon any of the Borrower's or RMOP's or any of the
Borrower's or RMOP's Subsidiaries' Property, prior to the time when any penalty
or fine shall be incurred with respect thereto; provided, however, that no such
taxes, assessments, fees and governmental charges referred to in clause (i)
above or Claims referred to in clause (ii) above need be paid if being contested
in good faith by appropriate proceedings diligently instituted and conducted and
if such reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor.
9.5. Insurance. The Borrower and RMOP each shall maintain for itself
and its Subsidiaries, or shall cause each of its Subsidiaries to maintain in
full force and effect the insurance policies and programs listed on Schedule
7.1-T or substantially similar policies and programs or other policies and
programs as are reasonably acceptable to the Administrative Agent. All such
policies and programs shall be maintained with insurers having an ▇▇▇▇▇▇ ▇. Best
Company, Inc. rating of "A" or better and a financial size category of not less
than IX.
9.6. Inspection of Property; Books and Records; Discussions. The
Borrower and RMOP shall permit, and cause each of its Subsidiaries and the
Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Industrial Interim GP LLC and RMIT to permit, any
authorized representative(s) designated by the Administrative Agent or any
Arranger or other Lender to visit and inspect any of the Projects, to examine,
audit, and check their respective financial and accounting records, books,
journals, orders, receipts and any correspondence and other data relating to
their respective businesses or the transactions contemplated hereby (including,
without limitation, in connection with environmental compliance, hazard or
liability), and to discuss their affairs, finances and accounts with their
officers and independent certified public accountants, upon reasonable notice
and at such reasonable times during normal business hours, as often as may be
reasonably requested. Each such visitation and inspection shall be at such
visitor's expense. The Borrower and RMOP shall keep and maintain, and cause its
Subsidiaries to keep and maintain, in all material respects proper books of
record and account in which entries in conformity with GAAP.
9.7. ERISA Compliance. The Borrower shall, and shall cause each of its
Subsidiaries and ERISA Affiliates to, establish, maintain and operate all Plans
to comply in all material respects with the provisions of ERISA, the Internal
Revenue Code, all other applicable laws, and the regulations and interpretations
thereunder and the respective requirements of the governing documents for such
Plans.
9.8. Maintenance of Property. The Borrower and RMOP shall, and shall
cause each of its Subsidiaries to, maintain in all material respects all of
their respective owned and leased Property in good, safe and insurable condition
and repair (ordinary wear and tear excepted), and not permit, commit or suffer
any waste or abandonment of any such Property and from time to time shall make
or cause to be made all material repairs, renewal and replacements thereof,
including, without limitation, any capital improvements which may be required to
maintain the same; provided, however, that such Property may be altered or
renovated in the ordinary course of business of the Borrower or RMOP or such
applicable Subsidiary. Without any limitation on the foregoing, the Borrower and
RMOP shall maintain the Projects in a manner such that each Project can be used
in the manner and substantially for the purposes such Project is used on the
Closing Date, including, without limitation, maintaining all utilities, access
rights, zoning and necessary Permits for such Project.
9.9. Company Status. The Company shall at all times (1) remain a
publicly traded company listed on the New York Stock Exchange; (2) maintain its
status as a REIT under the Internal Revenue Code, and (3) retain direct or
indirect management and control of the Borrower.
9.10. Ownership of Projects, Minority Holdings and Property. The
ownership of substantially all wholly owned Projects, Minority Holdings and
other Property of the Consolidated Businesses shall be held by the Borrower and
its Subsidiaries and shall not be held directly by the Company.
9.11. Maintenance of Operating Accounts. The Borrower shall at all
times during the term hereof maintain and cause RMOP to maintain a demand
deposit account held by Administrative Agent (the "Operating Account") and shall
cause funds to be deposited therein in an amount sufficient to permit the
Administrative Agent to automatically deduct therefrom the respective interest
payments on the Obligations at 12:00 p.m. on the first day of each month.
ARTICLE X
NEGATIVE COVENANTS
Borrower covenants and agrees that it shall comply with the following
covenants so long as any Commitments are outstanding and thereafter until
payment in full of all of the Obligations (other than indemnities pursuant to
Section 14.3 not yet due), unless the Requisite Lenders shall otherwise give
prior written consent:
10.1. Intentionally Omitted.
10.2. Liens. Neither of the Borrower nor any of its Subsidiaries shall
directly or indirectly create, incur, assume or permit to exist any Lien on or
with respect to any Property, except:
(a) Liens with respect to Capital Leases of Equipment entered into in
the ordinary course of business of the Borrower or its Subsidiaries pursuant to
which the aggregate Indebtedness under such Capital Leases does not exceed
$1,000,000 for any Project;
(b) Existing Permitted Liens;
(c) Liens securing permitted Secured Indebtedness; and
(d) Customary Permitted Liens.
10.3. Intentionally Omitted.
10.4. Conduct of Business. Neither the Borrower nor any of its
Subsidiaries shall engage in any business, enterprise or activity other than (a)
the businesses of acquiring, developing, re-developing and managing
predominantly office and industrial Projects and portfolios of like Projects,
(b) any business or activities which are substantially similar, related or
incidental thereto, and (c) investments in and loans to Investment Funds,
Reckson Service Industries Inc., Subsidiaries, Affiliates and Minority Holdings.
10.5. Transactions with Partners and Affiliates. Neither the Borrower,
RMOP nor any of their respective Subsidiaries shall directly or indirectly enter
into or permit to exist any transaction (including, without limitation, the
purchase, sale, lease or exchange of any property or the rendering of any
service) with any holder or holders of more than five percent (5%) of any class
of equity Securities of the Borrower, or in the case of RMOP, of RMOP, or with
any Affiliate of the Borrower or in the case of RMOP, of RMOP which is not its
Subsidiary, unless such transaction is determined by the respective Boards of
Directors (or managers or trustees) of the Company or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Industrial
Interim GP LLC or RMIT to be no less favorable to the Borrower, RMOP or any of
their Subsidiaries, as applicable, than those that might be obtained in an arm's
length transaction at the time from Persons who are not such a holder or
Affiliate (other than transactions permitted by Section 2.3). Nothing contained
in this Section 10.5 shall prohibit (a) increases in compensation and benefits
for officers and employees of the Borrower, RMOP or any of their Subsidiaries;
(b) payment of officers', managers', trustees', directors', partners' and other
similar indemnities; (c) performance of any obligations arising under the Loan
Documents; or (d) loans to Persons in connection with such Person's contribution
of Real Property to the Consolidated Businesses or Minority Holdings.
10.6. Restriction on Fundamental Changes. Neither the Borrower nor RMOP
shall enter into any merger or consolidation, or liquidate, wind-up or dissolve
(or suffer any liquidation or dissolution), or convey, lease, sell, transfer or
otherwise dispose of, in one transaction or series of transactions, all or
substantially all of the Borrower's or RMOP's business or Property, whether now
or hereafter acquired, except in connection with issuance, transfer, conversion
or repurchase of limited partnership interests in the Borrower. Notwithstanding
the foregoing, the Borrower and RMOP shall be permitted to merge with another
Person so long as the Borrower or RMOP, as the case may be, is the surviving
Person following such merger.
10.7. Margin Regulations; Securities Laws. None of the Borrower, RMOP
nor any of their Subsidiaries, shall use all or any portion of the proceeds of
any credit extended under this Agreement to purchase or carry Margin Stock.
10.8. ERISA. The Borrower shall not and shall not permit any of its
Subsidiaries or ERISA Affiliates to:
(a) engage in any prohibited transaction described in Sections
406 of ERISA or 4975 of the Internal Revenue Code for which a statutory
or class exemption is not available or a private exemption has not been
previously obtained from the DOL, except to the extent engaging in such
transaction would not have a Material Adverse Effect;
(b) permit to exist any accumulated funding deficiency (as
defined in Sections 302 of ERISA and 412 of the Internal Revenue Code),
with respect to any Benefit Plan, whether or not waived;
(c) fail to pay timely required contributions or annual
installments due with respect to any waived funding deficiency to any
Benefit Plan;
(d) terminate any Benefit Plan which would result in any
liability of Borrower or any ERISA Affiliate under Title IV of ERISA;
(e) fail to make any contribution or payment to any
Multiemployer Plan which Borrower or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto, except to the extent such failure
would not have a Material Adverse Effect;
(f) fail to pay any required installment or any other payment
required under Section 412 of the Internal Revenue Code on or before
the due date for such installment or other payment; or
(g) amend a Benefit Plan resulting in an increase in current
liability for the plan year such that the Borrower or any ERISA
Affiliate is required to provide security to such Plan under Section
401(a)(29) of the Internal Revenue Code.
10.9. Organizational Documents. Neither the Company nor the Borrower
shall, and the Borrower shall not permit RMOP, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Industrial Interim
GP LLC or RMIT to amend, modify or otherwise change any of the terms or
provisions in any of their respective Organizational Documents as in effect on
the Closing Date, except amendments to effect (a) a change of name of the
Borrower or RMOP, provided that the Borrower shall have provided the
Administrative Agent with thirty (30) days prior written notice of any such name
change, or (b) changes that would not affect such Organizational Documents in
any material manner not otherwise permitted under this Agreement.
10.10. Fiscal Year. Neither the Company, the Borrower, RMOP nor any of
their Subsidiaries shall change its Fiscal Year for accounting or tax purposes
from a period consisting of the 12-month period ending on December 31 of each
calendar year.
10.11. Financial Covenants.
(a) Indebtedness. Neither the Borrower nor any of its Subsidiaries
shall directly or indirectly create, incur, assume or otherwise become or remain
directly or indirectly liable with respect to any Indebtedness, except
Indebtedness which, when aggregated with Indebtedness of the Borrower or any of
its Subsidiaries and Minority Holdings Indebtedness allocable in accordance with
GAAP to the Borrower or any Subsidiary of the Borrower as of the time of
determination, would not exceed (i) fifty percent (50%) of Total Value as of the
date of incurrence ("Total Outstanding Indebtedness Limitation"), (ii) in the
case of Secured Indebtedness of the Consolidated Businesses and the Borrower's
proportionate share of Secured Indebtedness of its Minority Holdings, as well as
unsecured recourse Indebtedness of the Consolidated Subsidiaries, thirty-five
percent (35%) of the Total Value ("Total Secured Outstanding Indebtedness
Limitation") or (iii) in the case of recourse Secured Indebtedness of the
Consolidated Businesses, ten percent (10%) of the Total Value ("Recourse Secured
Indebtedness Limitation").
(b) Minimum Combined Equity Value. The Combined Equity Value shall at
no time be less than $750,000,000, plus an amount equal to seventy percent (70%)
of all Net Offering Proceeds received by the Company after the date hereof.
(c) Intentionally Omitted.
(d) Minimum Unsecured Interest Coverage Ratio. As of the first day of
each calendar quarter for the immediately preceding calendar quarter, the ratio
of (i) Adjusted Unencumbered NOI to (ii) Unsecured Interest Expense shall not be
less than 2.25 to 1.0.
(e) Minimum Unsecured Debt Yield. As of the first day of each calendar
quarter for the immediately preceding calendar quarter, the ratio of Adjusted
Unencumbered NOI for such calendar quarter, multiplied by 4 to Total Unsecured
Outstanding Indebtedness shall not be less than the greater of (i) either (a)
15%, if Adjusted Unencumbered NOI is derived from the office and industrial
properties wholly-owned by the Borrower, the Company and the Consolidated
Businesses, or (b) 16%, if Adjusted Unencumbered NOI is derived from both office
and industrial properties both wholly-owned by the Borrower, the Company and the
Consolidated Businesses and from Minority Holdings; and (ii) a percentage equal
to an interest rate constant equal to the product of (x) the sum of the then
Treasury Rate and two percent (2%), and a thirty year mortgage-style
amortization schedule, and (y) 125%.
(f) Minimum Adjusted Unencumbered NOI. As of the first day of each
calendar quarter, the Adjusted Unencumbered NOI for the immediately preceding
calendar quarter multiplied by 4 shall not be less than $35,000,000.
(g) Minimum Fixed Charge Coverage Ratio. As of the first day of each
calendar quarter for the immediately preceding calendar quarter, the ratio of
(i) Total Adjusted EBITDA, to (ii) Fixed Charges shall not be less than 2.0 to
1.0.
(h) Maximum Dividend Payout Ratio. The Company shall not make any
Restricted Payment during any of its fiscal quarters, which, when added to all
Restricted Payments made during the three immediately preceding fiscal quarters,
exceeds the greater of (i) 90% of FFO, and 100% of FAD, and (ii) the amounts
required to maintain its status as a REIT under the Internal Revenue Code, and,
provided an Event of Default shall not have occurred and be continuing, to avoid
federal income and excise tax liability. For purposes of this provision,
"Restricted Payment" means (i) any dividend or other distribution on any shares
of the Company's capital stock (except dividends payable solely in shares of its
capital stock or in rights to subscribe for or purchase shares of its capital
stock), or (ii) any payment on account of the purchase, redemption, retirement
or acquisition of (a) any shares of the Company's capital stock, or (b) any
option, warrant or other right to acquire shares of the Company's capital stock.
(i) Recourse Secured Indebtedness. The Secured Loan-to-Value Ratio with
respect to any Project for which the Consolidated Businesses shall create or
assume recourse Secured Indebtedness, shall at no time exceed seventy five
percent (75%).
(j) Negative Pledge. From and after the date here of, neither the
Borrower, RMOP, RMIT nor the Company will, and will not permit any Subsidiary,
to enter into any agreement containing any provision prohibiting the creation or
assumption of any Lien upon its properties (other than with respect to
prohibitions on subordinate liens set forth in a mortgage on a particular
property), revenues or assets, whether now owned or hereafter acquired, or
restricting the ability of the Borrower or RMOP to amend or modify this
Agreement or any other Loan Document.
(k) Pro Forma Calculations. The Borrower shall comply with the
financial ratios set forth in this Section 10.11 as of the date of each
Borrowing. The Borrower shall recalculate the financial ratios by adding the
deemed amount equal to the Borrowing to the Indebtedness reflected on the most
recently available financial statements, and adding thereto any Indebtedness
incurred since the date of such financial statement and adding thereto the value
of such assets (determined at cost) acquired with such Indebtedness to Total
Value. For the purposes of calculating the Minimum Unsecured Debt Yield, the
Borrower shall add to the annualized Adjusted Unencumbered NOI for the previous
quarter, for any Real Property acquired during the quarter or with a Borrowing
made hereunder, the lesser of (x) the product of .095 and the purchase price of
any such Real Property, and (y) the annualized Adjusted Unencumbered NOI with
respect thereto. The Borrower shall deliver an Officer's Certificate, signed by
the Borrower representing and certifying that the pro forma calculations as of
the date of the draw demonstrate Borrower's compliance with the covenants and
financial ratios set forth in this Section 10.11.
10.12. Negative Covenants with respect to the Company.
(a) From and after the date hereof, the Company will not acquire any
assets of any nature whatsoever other than additional units in the Borrower.
(b) From and after the date hereof, the Company will not incur any
Indebtedness or any other obligations or liabilities except (x) as the general
partner of the Borrower in connection with trade payable incurred in the
ordinary course of business, (y) Indebtedness, the net proceeds of which are
contributed to the Borrower simultaneously with the incurrence thereof by the
Company, and (z) guarantees of Indebtedness which is recourse to the Borrower.
(c) From and after the date hereof, the Company will not retain any Net
Offering Proceeds, and the same will be contributed by the Company to the
Borrower simultaneously with receipt thereof by the Company.
(d) The Company shall not enter into any merger or consolidation, or
liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or
convey, lease, sell, transfer or otherwise dispose of, in one transaction or
series of transactions, any of its business or assets, including its interests
in the Borrower. Notwithstanding the foregoing, the Company shall be permitted
to merge with another Person so long as the Company is the surviving Person
following such merger.
ARTICLE XI
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.1. Events of Default. Each of the following occurrences shall
constitute an Event of Default under this Agreement:
(a) Failure to Make Payments When Due. The Borrower and/or RMOP, as the
case may be, shall fail to pay (i) when due any principal payment on the
Obligations which is due on the Termination Date or pursuant to the terms of
Section 2.1(a), Section 2.4, Section 4.1(a), or Section 4.1(d) or (ii) when due,
any interest payment on the Obligations, provided, however, that the Borrower
and RMOP shall be entitled to a five (5) day grace period with respect to any
interest payment but not more than one time in any twelve (12) month period
during the term hereof, or (iii) when due, any principal payment on the
Obligations not referenced in clauses (i) or (ii) hereinabove or (iv) when due,
any fees due pursuant to the terms of Section 5.3 and such default shall
continue for five (5) days' provided that no Event of Default shall be deemed to
occur under this clause (a) from a failure of RMOP to make any payment required
to be made by RMOP hereunder if such payment is made by the Borrower prior to
the lapse of any grace period contemplated hereby (it being understood and
acknowledged that the foregoing shall not be deemed to grant the Borrower any
additional grace period to cure any such failure by RMOP, and that the same must
be cured within the time periods set forth above).
(b) Breach of Certain Covenants. The Borrower and/or RMOP shall fail
duly and punctually to perform or observe any agreement, covenant or obligation
binding on such Person under Sections 9.1, 9.4, 9.5, 9.10, 9.11 or Article X.
(c) Breach of Representation or Warranty. Any representation or
warranty made by the Borrower, RMOP or any of the parties to the Guaranty to the
Administrative Agent, any Arranger or any other Lender herein or by the
Borrower, RMOP or any of the parties to the Guaranty or any of their
Subsidiaries in any of the other Loan Documents or in any statement or
certificate at any time given by any such Person pursuant to any of the Loan
Documents shall be false or misleading in any material respect on the date as of
which made.
(d) Other Defaults. The Borrower or RMOP shall default in the
performance of or compliance with any term contained in this Agreement (other
than as identified in paragraphs (a), (b) or (c) of this Section 11.1), or any
default or event of default shall occur under any of the other Loan Documents,
and such default or event of default shall continue for thirty (30) days after
receipt of written notice from the Administrative Agent thereof.
(e) Acceleration of Other Indebtedness. Any breach, default or event of
default shall occur and be continuing, or any other condition shall exist under
any instrument, agreement or indenture, including, without limitation, the
Revolving Credit Agreement, pertaining to any recourse Indebtedness (other than
the Obligations) of the Company, the Borrower, RMOP or their Subsidiaries
aggregating more than $10,000,000, and the effect thereof is to cause an
acceleration, mandatory redemption or other required repurchase of such
Indebtedness, or permit the holder(s) of such Indebtedness to accelerate the
maturity of any such Indebtedness or require a redemption or other repurchase of
such Indebtedness; or any such Indebtedness shall be otherwise declared to be
due and payable (by acceleration or otherwise) or required to be prepaid,
redeemed or otherwise repurchased by the Borrower, RMOP or any of their
Subsidiaries (other than by a regularly scheduled required prepayment) prior to
the stated maturity thereof.
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against the Company, the
Borrower, RMOP, or any of their Subsidiaries to which $25,000,000 or more of the
Combined Equity Value is attributable, and the petition shall not be dismissed,
stayed, bonded or discharged within sixty (60) days after commencement of the
case; or a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company, the Borrower, RMOP or any such
Subsidiaries of the Borrower or RMOP in an involuntary case, under any
applicable bankruptcy, insolvency or other similar law now or hereinafter in
effect; or any other similar relief shall be granted under any applicable
federal, state, local or foreign law; or the respective board of directors of
the Company, or Limited Partners of the Borrower, RMOP or the board of directors
or partners of any such Subsidiaries of the Borrower or RMOP (or any committee
thereof) adopts any resolution or otherwise authorizes any action to approve any
of the foregoing.
(ii) A decree or order of a court having jurisdiction in the premises
for the appointment of a receiver, liquidator, sequestrator, trustee, custodian
or other officer having similar powers over the Company, the Borrower, RMOP or
any of their Subsidiaries to which $25,000,000 or more of the Combined Equity
Value is attributable, or over all or a substantial part of the Property of the
Company, the Borrower, RMOP or any of such Subsidiaries shall be entered; or an
interim receiver, trustee or other custodian of the Company, the Borrower, RMOP
or any of such Subsidiaries or of all or a substantial part of the Property of
the Company, the Borrower, RMOP or any of such Subsidiaries shall be appointed
or a warrant of attachment, execution or similar process against any substantial
part of the Property of any of the Company, the Borrower, RMOP, or any of such
Subsidiaries shall be issued and any such event shall not be stayed, dismissed,
bonded or discharged within sixty (60) days after entry, appointment or
issuance; or the respective board of directors of any of the Company or Limited
Partners of the Borrower or the board of directors or partners of any of
Borrower's Subsidiaries (or any committee thereof) adopts any resolution or
otherwise authorizes any action to approve any of the foregoing.
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. The Company,
the Borrower, RMOP or any of their Subsidiaries to which $25,000,000 or more of
the Combined Equity Value is attributable, shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in an involuntary
case, or to the conversion of an involuntary case to a voluntary case, under any
such law, or shall consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of its
Property; or the Company, the Borrower, RMOP or any of such Subsidiaries shall
make any assignment for the benefit of creditors or shall be unable or fail, or
admit in writing its inability, to pay its debts as such debts become due.
(h) Judgments and Unpermitted Liens.
(i) Any money judgment (other than a money judgment covered by
insurance as to which the insurance company has acknowledged coverage), writ or
warrant of attachment, or similar process against the Borrower, RMOP or any of
their Subsidiaries or any of their respective assets involving in any case an
amount in excess of $5,000,000 (other than with respect to Claims arising out of
non-recourse Indebtedness) is entered and shall remain undischarged, unvacated,
unbonded or unstayed for a period of sixty (60) days or in any event later than
five (5) days prior to the date of any proposed sale thereunder.
(ii) A federal, state, local or foreign tax Lien is filed against
the Borrower or RMOP which is not discharged of record, bonded over or otherwise
secured to the satisfaction of the Administrative Agent within sixty (60) days
after the filing thereof or the date upon which the Administrative Agent
receives actual knowledge of the filing thereof for an amount which, either
separately or when aggregated with the amount of any judgments described in
clause (i) above, equals or exceeds $5,000,000.
(iii) An Environmental Lien is filed against any Project with
respect to Claims in an amount which, either separately or when aggregated with
the amount of all other such Environmental Liens, equals or exceeds $5,000,000.
(i) Dissolution. Any order, judgment or decree shall be entered against
the Borrower or RMOP decreeing its involuntary dissolution or split up; or the
Borrower or RMOP shall otherwise dissolve or cease to exist except as
specifically permitted by this Agreement.
(j) Loan Documents. At any time, for any reason, any Loan Document
ceases to be in full force and effect or the Borrower or RMOP seeks to repudiate
its obligations thereunder.
(k) ERISA Termination Event. Any ERISA Termination Event occurs which
the Administrative Agent believes could subject any of the Borrower or any ERISA
Affiliate to liability in excess of $500,000.
(l) Waiver Application. The plan administrator of any Benefit Plan
applies under Section 412(d) of the Code for a waiver of the minimum funding
standards of Section 412(a) of the Internal Revenue Code and the Administrative
Agent believes that the substantial business hardship upon which the application
for the waiver is based could subject either the Borrower or any ERISA Affiliate
to liability in excess of $500,000.
(m) Material Adverse Effect. An event shall occur which has a Material
Adverse Effect.
(n) Certain Defaults Pertaining to the Company. The Company shall fail
to comply with Sections 9.9, or 7.1(a)(ii), (b), (d), (l), or (o).
(o) Merger or Liquidation of the Company, the Borrower or RMOP. The
Company shall merge or liquidate with or into any other Person and, as a result
thereof and after giving effect thereto, (i) the Company is not the surviving
Person or (ii) such merger or liquidation would effect an acquisition of or
Investment in any Person not otherwise permitted under the terms of this
Agreement. The Borrower shall merge or liquidate with or into any other Person
and, as a result thereof and after giving effect thereto, (i) the Borrower is
not the surviving Person or (ii) such merger or liquidation would effect an
acquisition of or Investment in any Person not otherwise permitted under the
terms of this Agreement. RMOP shall merge or liquidate with or into any other
Person and, as a result thereof and after giving effect thereto, (i) RMOP is not
the surviving Person or (ii) such merger or liquidation would effect an
acquisition of or Investment in any Person not otherwise permitted under the
terms of this Agreement, and, in any such case, the Loans made to RMOP have not
been repaid.
An Event of Default shall be deemed "continuing" until cured or waived in
writing in accordance with Section 14.7.
11.2. Rights and Remedies.
(a) Acceleration and Termination. Upon the occurrence of any Event of
Default described in Sections 11.1(f) or 11.1(g), the Commitments shall
automatically and immediately terminate and the unpaid principal amount of, and
any and all accrued interest on, the Obligations and all accrued fees shall
automatically become immediately due and payable, without presentment, demand,
or protest or other requirements of any kind (including, without limitation,
valuation and appraisement, diligence, presentment, notice of intent to demand
or accelerate and of acceleration), all of which are hereby expressly waived by
the Borrower and RMOP, and, upon the occurrence and during the continuance of
any other Event of Default, the Administrative Agent shall at the request, or
may with the consent, of the Lenders whose Pro Rata Shares, in the aggregate,
are greater than fifty-one percent (51%), by written notice to the Borrower and
RMOP, (i) declare that the Commitments are terminated, whereupon the Commitments
and the obligation of each Lender to make any Loan hereunder shall immediately
terminate, and/or (ii) declare the unpaid principal amount of and any and all
accrued and unpaid interest on the Obligations to be, and the same shall
thereupon be, immediately due and payable, without presentment, demand, or
protest or other requirements of any kind (including, without limitation,
valuation and appraisement, diligence, presentment, notice of intent to demand
or accelerate and of acceleration), all of which are hereby expressly waived by
the Borrower and RMOP.
(b) Rescission. If at any time after termination of the Commitments
and/or acceleration of the maturity of the Loans, the Borrower and/or RMOP, as
the case may be, shall pay all arrears of interest and all payments on account
of principal of the Loans which shall have become due otherwise than by
acceleration (with interest on principal and, to the extent permitted by law, on
overdue interest, at the rates specified in this Agreement) and all Events of
Default and Potential Events of Default (other than nonpayment of principal of
and accrued interest on the Loans due and payable solely by virtue of
acceleration) shall be remedied or waived pursuant to Section 14.7, then upon
the written consent of the Requisite Lenders and written notice to the Borrower
and RMOP, the termination of the Commitments and/or the acceleration and their
consequences may be rescinded and annulled; but such action shall not affect any
subsequent Event of Default or Potential Event of Default or impair any right or
remedy consequent thereon. The provisions of the preceding sentence are intended
merely to bind the Lenders to a decision which may be made at the election of
the Requisite Lenders; they are not intended to benefit the Borrower or RMOP and
do not give the Borrower or RMOP the right to require the Lenders to rescind or
annul any acceleration hereunder, even if the conditions set forth herein are
met.
(c) Enforcement. The Borrower and RMOP acknowledge that in the event
the Borrower, RMOP or any of their Subsidiaries fails to perform, observe or
discharge any of their respective obligations or liabilities under this
Agreement or any other Loan Document, any remedy of law may prove to be
inadequate relief to the Administrative Agent, the Arranger and the other
Lenders; therefore, the Borrower and RMOP agree that the Administrative Agent,
the Arranger and the other Lenders shall be entitled to temporary and permanent
injunctive relief in any such case without the necessity of proving actual
damages.
ARTICLE XII
THE AGENTS
12.1. Appointment. (a) Each Lender hereby designates and appoints Chase
as the Administrative Agent and the Arranger as the Arranger of such Lender
under this Agreement, and each Lender hereby irrevocably authorizes the
Administrative Agent and the Arranger to take such actions on its behalf under
the provisions of this Agreement and the Loan Documents and to exercise such
powers as are set forth herein or therein together with such other powers as are
reasonably incidental thereto. The Administrative Agent and the Arranger each
agrees to act as such on the express conditions contained in this Article XII.
(b) The provisions of this Article XII are solely for the benefit of
the Administrative Agent, the Arranger and the other Lenders, and neither the
Borrower, RMOP, the Company nor any Subsidiary of the Borrower or RMOP shall
have any rights to rely on or enforce any of the provisions hereof (other than
as expressly set forth in Section 12.7). In performing its respective functions
and duties under this Agreement, the Administrative Agent, and the Arranger
shall act solely as agents of the Lenders and do not assume and shall not be
deemed to have assumed any obligation or relationship of agency, trustee or
fiduciary with or for the Company, the Borrower, RMOP or any Subsidiary of the
Borrower or RMOP. The Administrative Agent and the Arranger may perform any of
their respective duties hereunder, or under the Loan Documents, by or through
their respective agents or employees.
12.2. Nature of Duties. The Administrative Agent and the Arranger shall
not have any duties or responsibilities except those expressly set forth in this
Agreement or in the Loan Documents. The duties of the Administrative Agent and
the Arranger shall be mechanical and administrative in nature. None of the
Administrative Agent or the Arranger shall have by reason of this Agreement a
fiduciary relationship in respect of any Lender. Nothing in this Agreement or
any of the Loan Documents, expressed or implied, is intended to or shall be
construed to impose upon the Administrative Agent or any Arranger any
obligations in respect of this Agreement or any of the Loan Documents except as
expressly set forth herein or therein. The Administrative Agent and the Arranger
each hereby agrees that its duties shall include providing copies of documents
received by such Agent from the Borrower and RMOP which are reasonably requested
by any Lender, furnishing copies of documents to each Lender, upon request, of
documents sent by the Agent to the Borrower and RMOP and promptly notifying each
Lender upon its obtaining actual knowledge of the occurrence of the Event of
Default hereunder. In addition, the Administrative Agent shall deliver to each
Lender, promptly after receipt thereof, copies of those documents and reports
received by it pursuant to Sections 8.2 (other than clause (b)(iv)) and 8.3.
12.3. Right to Request Instructions. The Administrative Agent and the
Arranger may at any time request instructions from the Lenders with respect to
any actions or approvals which by the terms of any of the Loan Documents the
Agent is permitted or required to take or to grant, and the Agent shall be
absolutely entitled to refrain from taking any action or to withhold any
approval and shall not be under any liability whatsoever to any Person for
refraining from any action or withholding any approval under any of the Loan
Documents until it shall have received such instructions from those Lenders from
whom the Agent is required to obtain such instructions for the pertinent matter
in accordance with the Loan Documents. Without limiting the generality of the
foregoing, the Agent shall take any action, or refrain from taking any action,
which is permitted by the terms of the Loan Documents upon receipt of
instructions from those Lenders from whom such Agent is required to obtain such
instructions for the pertinent matter in accordance with the Loan Documents,
provided, that no Lender shall have any right of action whatsoever against the
Administrative Agent or the Arranger as a result of such Agent acting or
refraining from acting under the Loan Documents in accordance with the
instructions of the Requisite Lenders or, where required by the express terms of
this Agreement, a greater proportion of the Lenders.
12.4. Reliance. The Administrative Agent and the Arranger shall each be
entitled to rely upon any written notices, statements, certificates, orders or
other documents believed by it in good faith to be genuine and correct and to
have been signed, sent or made by the proper Person, and with respect to all
matters pertaining to this Agreement or any of the Loan Documents and its duties
hereunder or thereunder, upon advice of legal counsel (including counsel for the
Borrower and RMOP), independent public accountants and other experts selected by
it.
12.5. Indemnification. To the extent that the Administrative Agent or
the Arranger is not reimbursed and indemnified by the Borrower and/or RMOP, as
the case may be, the Lenders will reimburse and indemnify such Agent for and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, and reasonable costs, expenses or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by, or asserted
against it in any way relating to or arising out of the Loan Documents or any
action taken or omitted by such Agent under the Loan Documents, in proportion to
each Lender's Pro Rata Share. Notwithstanding anything to the contrary contained
herein, the Administrative Agent or the Arranger shall not be indemnified to the
extent such liabilities, obligations, losses, damages, penalties, actions,
judgments, suite, costs and expenses result from such Person's gross negligence,
willful misconduct or breach of this Article XII. Such Agent agrees to refund to
the Lenders any of the foregoing amounts paid to it by the Lenders which amounts
are subsequently recovered by such Agent from the Borrower and RMOP or any other
Person on behalf of the Borrower and RMOP. The obligations of the Lenders under
this Section 12.5 shall survive the payment in full of the Loans and all other
Obligations and the termination of this Agreement.
12.6. Agent Individually. With respect to their respective Pro Rata
Share of the Commitments hereunder, if any, and the Loans made by them, if any,
the Administrative Agent and the Arranger shall have and may exercise the same
rights and powers hereunder and are subject to the same obligations and
liabilities as and to the extent set forth herein for any other Lender. The
terms "Lenders" or "Requisite Lenders" or any similar terms shall, unless the
context clearly otherwise indicates, include Chase in its respective individual
capacity as a Lender or as one of the Requisite Lenders. Chase and each of their
respective Affiliates may accept deposits from, lend money to, and generally
engage in any kind of banking, trust or other business with the Borrower and
RMOP or any of their Subsidiaries as if Chase was not acting as the
Administrative Agent.
12.7. Successor Agents.
(a) Resignation. The Agent may resign from the performance of all its
functions and duties hereunder at any time by giving at least thirty (30)
Business Days' prior written notice to the Borrower and RMOP and the other
Lenders, unless applicable law requires a shorter notice period or that there be
no notice period, in which instance such applicable law shall control. Such
resignation shall take effect upon the acceptance by a successor Agent of
appointment pursuant to this Section 12.7.
(b) Appointment by Requisite Lenders. Upon any such resignation
becoming effective, (i) if a Arranger shall then be acting with respect to this
Agreement, such Arranger shall become the Administrative Agent or (ii) if no
Arranger shall then be acting with respect to this Agreement, the Requisite
Lenders shall have the right to appoint a successor Administrative Agent
selected from among the Lenders with the prior written consent of the Borrower
which shall not be unreasonably withheld.
(c) Appointment by Retiring Agent. If a successor Administrative Agent
shall not have been appointed within the thirty (30) Business Day or shorter
period provided in paragraph (a) of this Section 12.7, the retiring Agent shall
then appoint a successor Agent who shall serve as Administrative Agent until
such time, if any, as the Requisite Lenders appoint a successor Agent as
provided above with the prior written consent of the Borrower which shall not be
unreasonably withheld, provided, however, that such successor Administrative
Agent shall have total assets of not less than $10,000,000,000.
(d) Rights of the Successor and Retiring Agents. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under this Agreement.
After any retiring Agent's resignation hereunder as Agent, the provisions of
this Article XII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was the Agent under this Agreement.
12.8. Relations Among the Lenders. Each Lender agrees that it will not
take any legal action, nor institute any actions or proceedings, against the
Borrower, RMOP or any other obligor hereunder with respect to any of the
Obligations, without the prior written consent of the Lenders. Without limiting
the generality of the foregoing, no Lender may accelerate or otherwise enforce
its portion of the Obligations, or unilaterally terminate its Commitment except
in accordance with Section 11.2(a).
12.9. Standard of Care. The Administrative Agent and the Arranger shall
administer the Loans in the same manner that the Agent administers loans made
for its own account.
ARTICLE XIII
YIELD PROTECTION
13.1. Taxes.
(a) Payment of Taxes. Any and all payments by the Borrower and RMOP
hereunder or under its respective Notes or other document evidencing any
Obligations of such Person shall be made, in accordance with Section 4.2, free
and clear of and without reduction for any and all present or future taxes,
levies, imposts, deductions, charges, withholdings, and all stamp or documentary
taxes, excise taxes, ad valorem taxes and other taxes which arise from the
execution, delivery or registration, or from payment or performance under, or
otherwise with respect to, any of the Loan Documents or the Commitments and all
other liabilities with respect thereto excluding, in the case of each Lender,
taxes imposed on or measured by net income or overall gross receipts and capital
and franchise taxes imposed on it by (i) the United States, (ii) the
Governmental Authority of the jurisdiction in which such Lender's Applicable
Lending Office is located or any political subdivision thereof or (iii) the
Governmental Authority in which such Person is organized, managed and controlled
or any political subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges and withholdings being hereinafter referred to as
"Taxes"). Except as otherwise provided herein, if the Borrower or RMOP shall be
required by law to withhold or deduct any Taxes from or in respect of any sum
payable hereunder or under any such Note or document to any Lender, (x) the sum
payable to such Lender shall be increased as may be necessary so that after
making all required withholding or deductions (including withholding or
deductions applicable to additional sums payable under this Section 13.1) such
Lender receives an amount equal to the sum it would have received had no such
withholding or deductions been made, (y) the Borrower or RMOP, as the case may
be, shall make such withholding or deductions, and (z) the Borrower or RMOP, as
the case may be, shall pay the full amount withheld or deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(b) Indemnification. Except as otherwise provided herein, the Borrower
and RMOP will indemnify each Lender against, and reimburse each within ten (10)
Business Days after written demand for, the full amount of all Taxes (including,
without limitation, any Taxes imposed by any Governmental Authority on amounts
payable under this Section 13.1 and any additional income or franchise taxes
resulting therefrom) incurred or paid by such Lender and any liability
(including penalties, interest, and out-of-pocket expenses paid to third
parties) arising therefrom or with respect thereto, whether or not such Taxes
were lawfully payable, to the extent not paid by the Borrower or RMOP pursuant
to Section 13.1 hereof; provided that RMOP shall not be liable for Taxes imposed
other than those in connection with the RMOP Obligations. A certificate as to
any additional amount payable to any Person under this Section 13.1 submitted by
it to the Borrower and RMOP shall, absent manifest error, be final, conclusive
and binding upon all parties hereto. Each Lender agrees, within a reasonable
time after receiving a written request from the Borrower or RMOP, to provide the
Borrower, RMOP and the Administrative Agent with such certificates and other
documents as are reasonably required, and take such other actions as are
reasonably necessary to claim such exemptions as such Lender may be entitled to
claim in respect of all or a portion of any Taxes which are otherwise required
to be paid or deducted or withheld pursuant to this Section 13.1 in respect of
any payments under this Agreement or under the other Loan Documents. If any
Lender receives any refund with respect to any Taxes, such Lender shall promptly
remit such refund to the Borrower and/or RMOP, as the case may be.
(c) Receipts. Within thirty (30) days after the date of any payment of
Taxes by the Borrower or RMOP, as the case may be, the Borrower or RMOP as
applicable, will furnish to the Administrative Agent, at its address referred to
in Section 14.8, the original or a certified copy of a receipt evidencing
payment thereof.
(d) Foreign Bank Certifications. (i) Each Lender that is not created or
organized under the laws of the United States or a political subdivision thereof
shall deliver to each of the Borrower, RMOP and the Administrative Agent on the
Closing Date or the date on which such Lender becomes a Lender pursuant to
Section 14.1 hereof a true and accurate certificate executed in duplicate by a
duly authorized officer of such Lender to the effect that such Lender is
eligible to receive payments hereunder and under the Notes without deduction or
withholding of United States federal income tax (I) under the provisions of an
applicable tax treaty concluded by the United States (in which case the
certificate shall be accompanied by two duly completed copies of IRS Form 1001
(or any successor or substitute form or forms)) or (II) under Sections
1442(c)(1) and 1442(a) of the Internal Revenue Code (in which case the
certificate shall be accompanied by two duly completed copies of IRS Form 4224
(or any successor or substitute form or forms)).
(ii) Each Lender further agrees to deliver to each of the Borrower,
RMOP and the Administrative Agent from time to time, a true and accurate
certificate executed in duplicate by a duly authorized officer of such Lender
before or promptly upon the occurrence of any event requiring a change in the
most recent certificate previously delivered by it to the Borrower and RMOP and
the Administrative Agent pursuant to this Section 13.1(d). Each certificate
required to be delivered pursuant to this Section 13.1(d)(ii) shall certify as
to one of the following:
(A) that such Lender can continue to receive payments
hereunder and under the Notes without deduction or withholding of
United States federal income tax;
(B) that such Lender cannot continue to receive payments
hereunder and under the Notes without deduction or withholding of
United States federal income tax as specified therein but does not
require additional payments pursuant to Section 13.1(a) because it is
entitled to recover the full amount of any such deduction or
withholding from a source other than the Borrower or RMOP; or
(C) that such Lender is no longer capable of receiving
payments hereunder and under the Notes without deduction or withholding
of United States federal income tax as specified therein and that it is
not capable of recovering the full amount of the same from a source
other than the Borrower or RMOP.
Each Lender agrees to deliver to each of the Borrower, RMOP and the
Administrative Agent further duly completed copies of the above-mentioned IRS
forms on or before the earlier of (x) the date that any such form expires or
becomes obsolete or otherwise is required to be resubmitted as a condition to
obtaining an exemption from withholding from United States federal income tax
and (y) fifteen (15) days after the occurrence of any event requiring a change
in the most recent form previously delivered by such Lender to the Borrower,
RMOP and Administrative Agent, unless any change in treaty, law, regulation, or
official interpretation thereof which would render such form inapplicable or
which would prevent the Lender from duly completing and delivering such form has
occurred prior to the date on which any such delivery would otherwise be
required and the Lender promptly advises the Borrower and RMOP that it is not
capable of receiving payments hereunder and under the Notes without any
deduction or withholding of United States federal income tax.
(iii) Notwithstanding anything to the contrary contained in this
Section 13.1, neither the Borrower nor RMOP will be required to make any
additional payment to or for the account of any Lender under Section 13.1(a) or
(b) by reason of (x) a breach by such Lender of any certification or
representation set forth in any form furnished to the Borrower and RMOP under
Section 13.1(d), or (y) such Lender's failure or inability to furnish under
Section 13.1(d) an original of an extension or renewal of a Form 1001 or Form
4224 (or successor form), as applicable, unless such failure or inability
results from a change (after the date such Lender became a Lender party hereto)
in any applicable law or regulation or in the interpretation thereof by any
regulatory authority (including without limitation any change in any applicable
tax treaty).
13.2. Increased Capital. If after the date hereof any Lender determines
that (i) the adoption or implementation of or any change in or in the
interpretation or administration of any law or regulation or any guideline or
request from any central bank or other Governmental Authority or quasi-
governmental authority exercising jurisdiction, power or control over any Lender
or banks or financial institutions generally (whether or not having the force of
law), compliance with which affects the amount of capital required or expected
to be maintained by such Lender or any corporation controlling such Lender and
(ii) the amount of such capital is increased by or based upon the making or
maintenance by any Lender of its Loans, any Lender's participation in or
obligation to participate in the Loans or other advances made hereunder or the
existence of any Lender's obligation to make Loans, then, in any such case,
within ten (10) Business Days after written demand by such Lender (with a copy
of such demand to the Administrative Agent), the Borrower and RMOP shall
immediately pay to the Administrative Agent for the account of such Lender, from
time to time as specified by such Lender, additional amounts sufficient to
compensate such Lender or such corporation therefor; provided that RMOP shall
not be liable for any additional amounts other than those relating to the RMOP
Obligations. Such demand shall be accompanied by a statement as to the amount of
such compensation and include a brief summary of the basis for such demand. Such
statement shall be conclusive and binding for all purposes, absent manifest
error.
13.3. Changes; Legal Restrictions. If after the date hereof any Lender
determines that the adoption or implementation of or any change in or in the
interpretation or administration of any law or regulation or any guideline or
request from any central bank or other Governmental Authority or
quasi-governmental authority exercising jurisdiction, power or control over any
Lender, or over banks or financial institutions generally (whether or not having
the force of law), compliance with which:
(a) subjects a Lender (or its Applicable Lending Office or
Eurodollar Affiliate) to charges (other than taxes) of any kind which
such Lender reasonably determines to be applicable to the Commitments
of the Lenders to make Eurodollar Rate Loans or change the basis of
taxation of payments to that Lender of principal, fees, interest, or
any other amount payable hereunder with respect to Eurodollar Rate
Loans (other than taxes excluded in Section 13.1(a) hereof); or
(b) imposes, modifies, or holds applicable, in the
determination of a Lender, any reserve, special deposit, compulsory
loan, FDIC insurance or similar requirement against assets held by, or
deposits or other liabilities in or for the account of, advances or
loans by, commitments made, or other credit extended by, or any other
acquisition of funds by, a Lender or any Applicable Lending Office or
Eurodollar Affiliate of that Lender in respect of Eurodollar Loans;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining the Loans or its Commitment or to reduce any
amount receivable thereunder; then, in any such case, within ten (10) Business
Days after written demand by such Lender (with a copy of such demand to the
Administrative Agent), the Borrower and RMOP shall immediately pay to the
Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, such amount or amounts as may be necessary to
compensate such Lender or its Eurodollar Affiliate for any such additional cost
incurred or reduced amount received; provided that RMOP shall not be liable for
any additional amounts other than those relating to the RMOP Obligations. Such
demand shall be accompanied by a statement as to the amount of such compensation
and include a brief summary of the basis for such demand. Such statement shall
be conclusive and binding for all purposes, absent manifest error.
13.4. Replacement of Certain Lenders. In the event a Lender (a
"Designated Lender") shall have (i) requested additional compensation from the
Borrower and/or RMOP under Section 13.1 or under Section 13.2 or under Section
13.3, (ii) failed to make its Pro Rata Share of any Loan requested to be made
hereby or (iii) failed to make any Loan at the Eurodollar Rate, the Borrower and
RMOP may, at their sole election, make written demand on such Designated Lender
(with a copy to the Administrative Agent) for the Designated Lender to assign,
and such Designated Lender shall assign pursuant to one or more duly executed
Assignment and Acceptances to one or more Eligible Assignees which the Borrower,
RMOP or the Administrative Agent shall have identified for such purpose, all of
such Designated Lender's right and obligations under this Agreement, the Notes
and the other Loan Documents (including, without limitation, its Commitment and
all Loans owing to it) in accordance with Section 14.1. All out-of-pocket
expenses incurred by the Administrative Agent in connection with the foregoing
shall be for the sole account of the Borrower and shall constitute Obligations
hereunder. In no event shall Borrower's or RMOP's election under the provisions
of this Section 13.4 affect its obligation to pay the additional compensation
required under either Section 13.1, Section 13.2 or Section 13.3.
13.5. Mitigation. Each Lender shall notify the Borrower and RMOP of any
event occurring after the date of this Agreement entitling such Lender to
compensation under Sections 13.1, 13.2 or 13.3 as promptly as practicable, but
in any event, within 45 days, after such Lender obtains actual knowledge
thereof; provided that (i) if any Lender fails to give such notice within 45
days after it obtains actual knowledge of such an event, such Lender shall, with
respect to compensation payable pursuant to Sections 13.1, 13.2 or 13.3 in
respect of any costs resulting from such event, only be entitled to payment
under Sections 13.1, 13.2 or 13.3 for costs incurred from and after the date 45
days prior to the date that such Lender does give such notice and (ii) each
Lender will designate a different Applicable Lending Office for the Loans of
such Lender affected by such event if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the reasonable
judgment of such Lender, be disadvantageous to such Lender.
ARTICLE XIV
MISCELLANEOUS
14.1. Assignments and Participations.
(a) Assignments. No assignments or participations of any Lender's
rights or obligations under this Agreement shall be made except in accordance
with this Section 14.1. Each Lender may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement (including
all of its rights and obligations with respect to the Loans) in accordance with
the provisions of this Section 14.1.
(b) Limitations on Assignments. For so long as no Event of Default has
occurred and is continuing, each assignment shall be subject to the following
conditions: (i) each assignment shall be of a constant, and not a varying,
ratable percentage of all of the assigning Lender's rights and obligations under
this Agreement and, in the case of a partial assignment, shall be in a minimum
principal amount of $5,000,000 (and the assignor shall maintain a minimum amount
of $5,000,000 for its own account unless the assignor shall assign or
participate its entire interest), (ii) each such assignment shall be to an
Eligible Assignee, (iii) each assignment shall be subject to the reasonable
approval of the Agent and the Borrower, (iv) the parties to each such assignment
shall execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, and (v) each Agent
shall maintain a minimum Commitment in an amount greater than the Commitment of
any other Lender or an amount sufficient to maintain such Arranger's Pro Rata
Share as of the Closing Date, whichever is less. Upon the occurrence and
continuance of an Event of Default, none of the foregoing restrictions on
assignments shall apply, provided, however, that while an Event of Default
(other than an Event of Default that shall have required that the Administrative
Agent shall have delivered a notice of the underlying default) shall be
continuing but prior to acceleration of the Loans, the applicable Lender shall
give the Borrower five (5) days' written notice by telecopy of its intention to
assign any or all of its interest in this Agreement. Upon such execution,
delivery, acceptance and recording in the Register, from and after the effective
date specified in each Assignment and Acceptance and agreed to by the
Administrative Agent, (A) the assignee thereunder shall, in addition to any
rights and obligations hereunder held by it immediately prior to such effective
date, if any, have the rights and obligations hereunder that have been assigned
to it pursuant to such Assignment and Acceptance and shall, to the fullest
extent permitted by law, have the same rights and benefits hereunder as if it
were an original Lender hereunder, (B) the assigning Lender shall, to the extent
that rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of such assigning Lender's
rights and obligations under this Agreement, the assigning Lender shall cease to
be a party hereto) and (C) the Borrower and RMOP shall execute and deliver to
the assignee thereunder a Note evidencing its obligations to such assignee with
respect to the Loans.
(c) The Register. The Administrative Agent shall maintain at its
address referred to in Section 14.8 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register (the "Register") for the
recordation of the names and addresses of the Lenders, the Commitment of, and
the principal amount of the Loans under the Commitments owing to, each Lender
from time to time and whether such Lender is an original Lender or the assignee
of another Lender pursuant to an Assignment and Acceptance. The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, RMOP, the Administrative Agent and the other Lenders
and each other party to a Loan Document may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower, RMOP
or any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(d) Fee. Upon its receipt of an Assignment and Acceptance executed by
the assigning Lender and an Assignee and a processing and recordation fee of
$3,500 (payable by the assignee to the Administrative Agent), the Administrative
Agent shall, if such Assignment and Acceptance has been completed and is in
compliance with this Agreement and in substantially the form of Exhibit A
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower and RMOP and the other Lenders.
(e) Participations. Each Lender may sell participations to one or more
other financial institutions in or to all or a portion of its rights and
obligations under and in respect of any and all facilities under this Agreement
(including, without limitation, all or a portion of any or all of its Commitment
hereunder and the Loans owing to it); provided, however, that (i) such Lender's
obligations under this Agreement (including, without limitation, its Commitment
hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the Borrower, RMOP the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, (iv) each participation
shall be in a minimum amount of $5,000,000, and (v) such participant's rights to
agree or to restrict such Lender's ability to agree to the modification, waiver
or release of any of the terms of the Loan Documents, to consent to any action
or failure to act by any party to any of the Loan Documents or any of their
respective Affiliates, or to exercise or refrain from exercising any powers or
rights which any Lender may have under or in respect of the Loan Documents,
shall be limited to the right to consent to (A) increase in the Commitment of
the Lender from whom such participant purchased a participation, (B) reduction
of the principal of, or rate or amount of interest on the Loans subject to such
participation (other than by the payment or prepayment thereof), (C)
postponement of any date fixed for any payment of principal of, or interest on,
the Loan(s) subject to such participation and (D) release of any guarantor of
the Obligations (provided that no such consent shall be required to release the
Borrower, RMIT and/or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Industrial Interim GP LLC as a guarantor if
RMOP is no longer a borrower hereunder).
(f) Information Regarding the Borrower and RMOP. Any Lender may,
subject to the provisions of Section 14.22, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
14.1, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower, RMOP or their
Subsidiaries furnished to such Lender by the Administrative Agent or by or on
behalf of the Borrower and RMOP.
(g) Payment to Participants. Anything in this Agreement to the contrary
notwithstanding, in the case of any participation, all amounts payable by the
Borrower and/or RMOP, as the case may be, under the Loan Documents shall be
calculated and made in the manner and to the parties required hereby as if no
such participation had been sold.
(h) Lenders' Creation of Security Interests. Notwithstanding any other
provision set forth in this Agreement, any Lender may at any time create a
security interest in all or any portion of its rights under this Agreement
(including, without limitation, Obligations owing to it and any Note held by
it) in favor of any Federal Reserve bank in accordance with Regulation A of the
Federal Reserve Board.
14.2. Expenses.
(a) Generally. Each of the Borrower and RMOP agrees promptly upon
demand to pay, or reimburse the Administrative Agent for the reasonable fees,
expenses and disbursements of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP (but not
of other legal counsel) and for all other reasonable out-of-pocket costs and
expenses incurred by the Administrative Agent or each Arranger in connection
with (i) the preparation, negotiation, and execution of the Loan Documents; (ii)
the preparation, negotiation, execution and interpretation of this Agreement
(including, without limitation, the satisfaction or attempted satisfaction of
any of the conditions set forth in Article VI), the Loan Documents, and the
making of the Loans hereunder; (iii) any amendments, consents, waivers,
assignments, restatements, or supplements to any of the Loan Documents and the
preparation, negotiation, and execution of the same; and (iv) any other
amendments, modifications, agreements, assignments, restatements or supplements
to any of the Loan Documents requested by Borrower and RMOP and the preparation,
negotiation, and execution of the same; provided that RMOP shall not be liable
for any amounts under this clause(a) in excess of the RMOP Share of such
amounts.
(b) After Default. Each of the Borrower and RMOP further agrees to pay
or reimburse the Administrative Agent, the Arranger and each of the Lenders upon
demand for all reasonable out-of-pocket costs and expenses, including, without
limitation, reasonable attorneys' fees (including allocated costs of internal
counsel and costs of settlement) incurred by the such entity after the
occurrence and during the continuance of an Event of Default (i) in enforcing
any Loan Document or Obligation, the collection of any Obligation or exercising
or enforcing any other right or remedy available by reason of such Event of
Default; or (ii) in connection with any refinancing or restructuring of the
credit arrangements provided under this Agreement in the nature of a "work-out"
or in any insolvency or bankruptcy proceeding; (iii) in commencing, defending or
intervening in any litigation or in filing a petition, complaint, answer, motion
or other pleadings in any legal proceeding relating to the Obligations, a
Project, any of the Consolidated Businesses and related to or arising out of the
transactions contemplated hereby or by any of the other Loan Documents; and (iv)
in taking any other action in or with respect to any suit or proceeding
(bankruptcy or otherwise) described in clauses (i) through (iii) above; provided
that RMOP shall not be liable for any amounts under this clause (b) in excess of
the RMOP Share of such amounts and without duplication amounts relating to RMOP.
14.3. Indemnity. Each of the Borrower and RMOP further agrees (a) to
defend, protect, indemnify, and hold harmless the Administrative Agent, the
Arranger and each and all of the other Lenders and each of their respective
officers, directors, employees, attorneys and agents (collectively, the
"Indemnitees") from and against any and all liabilities, obligations, losses
(other than loss of profits), damages, penalties, actions, judgments, suits,
claims, reasonable costs, reasonable expenses and reasonable disbursements
(excluding any taxes and including, without limitation, the reasonable fees and
disbursements of counsel for such Indemnitees in connection with any
investigative, administrative or judicial proceeding, whether or not such
Indemnitees shall be designated a party thereto), imposed on, incurred by, or
asserted against such Indemnitees in any manner relating to or arising out of
(i) this Agreement or the other Loan Documents, the making of the Loans
hereunder, the use or intended use of the proceeds of the Loans hereunder, or
any of the other transactions contemplated by the Loan Documents, or (ii) any
Liabilities and Costs relating to violation of any Environmental, Health or
Safety Requirements of Law, the past, present or future operations of the
Borrower and RMOP, any of its Subsidiaries or any of their respective
predecessors in interest, or, the past, present or future environmental, health
or safety condition of any respective Property of the Borrower, RMOP or any of
their Subsidiaries, the presence of asbestos-containing materials at any
respective Property of the Borrower, RMOP or any of their Subsidiaries, or the
Release or threatened Release of any Contaminant into the environment
(collectively, the "Indemnified Matters"); provided, however, the Borrower and
RMOP shall have no obligation to an Indemnitee hereunder with respect to
Indemnified Matters caused by or resulting from the willful misconduct or gross
negligence of such Indemnitee, as determined by a court of competent
jurisdiction in a non-appealable final judgment; and (b) not to assert any claim
against any of the Indemnitees, on any theory of liability, for consequential or
punitive damages arising out of, or in any way in connection with, the
Commitments, the Credit Obligations, or the other matters governed by this
Agreement and the other Loan Documents; and provided, further, that RMOP shall
not be liable for any amounts under this Section 14.3 in excess of the RMOP
Share of such amounts and without duplication amounts attributable to RMOP. To
the extent that the undertaking to indemnify, pay and hold harmless set forth
in the preceding sentence may be unenforceable because it is violative of any
law or public policy, the Borrower and RMOP shall contribute the maximum portion
which it is permitted to pay and satisfy under applicable law, to the payment
and satisfaction of all Indemnified Matters incurred by the Indemnitees.
14.4. Change in Accounting Principles. If any change in the accounting
principles used in the preparation of the most recent financial statements
referred to in Sections 8.1 or 8.2 are hereafter required or permitted by the
rules, regulations, pronouncements and opinions of the Financial Accounting
Standards Board or the American Institute of Certified Public Accountants (or
successors thereto or agencies with similar functions) and are adopted by the
Company or the Borrower as applicable, with the agreement of its independent
certified public accountants and such changes result in a change in the method
of calculation of any of the covenants, standards or terms found in Article X,
the parties hereto agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating compliance with such covenants, standards and terms
by the Borrower and RMOP shall be the same after such changes as if such changes
had not been made; provided, however, no change in GAAP that would affect the
method of calculation of any of the covenants, standards or terms shall be given
effect in such calculations until such provisions are amended, in a manner
satisfactory to the Administrative Agent and the Borrower and RMOP, to so
reflect such change in accounting principles.
14.5. Intentionally Omitted.
14.6. Ratable Sharing. The Lenders agree among themselves that (i) with
respect to all amounts received by them which are applicable to the payment of
the Obligations (excluding the costs and fees described in Sections 3.1(g),
5.2(f), and 5.3 and Article XIII) equitable adjustment will be made so that, in
effect, all such amounts will be shared among them ratably in accordance with
their Pro Rata Shares, whether received by voluntary payment, by the exercise of
the right of setoff or banker's lien, by counterclaim or cross-action or by the
enforcement of any or all of the Obligations (excluding the costs and fees
described in Sections 3.1(g), 5.2(f), and 5.3 and Article XIII), (ii) if any of
them shall by voluntary payment or by the exercise of any right of counterclaim,
setoff, banker's lien or otherwise, receive payment of a proportion of the
aggregate amount of the Obligations held by it, which is greater than the amount
which such Lender is entitled to receive hereunder, the Lender receiving such
excess payment shall purchase, without recourse or warranty, an undivided
interest and participation (which it shall be deemed to have done simultaneously
upon the receipt of such payment) in such Obligations owed to the others so that
all such recoveries with respect to such Obligations shall be applied ratably in
accordance with their Pro Rata Shares; provided, however, that if all or part of
such excess payment received by the purchasing party is thereafter recovered
from it, those purchases shall be rescinded and the purchase prices paid for
such participations shall be returned to such party to the extent necessary to
adjust for such recovery, but without interest except to the extent the
purchasing party is required to pay interest in connection with such recovery.
The Borrower and RMOP each agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section 14.6 may, to the fullest extent
permitted by law, exercise all its rights of payment with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower and/or RMOP, as the case may be, in the amount of such participation.
14.7. Amendments and Waivers.
(a) General Provisions. Unless otherwise provided for or required in
this Agreement, no amendment or modification of any provision of this Agreement
or any of the other Loan Documents shall be effective without the written
agreement of the Requisite Lenders (which the Requisite Lenders shall have the
right to grant or withhold in their sole discretion) and the Borrower and RMOP;
provided, however, that the Borrower's and RMOP's agreement shall not be
required for any amendment or modification of Sections 12.1 through 12.8 (other
than Section 12.7). In the event that the Administrative Agent shall request the
agreement of the Lenders to any amendment, modification or waiver, if any Lender
shall fail to respond to any such request within fifteen (15) days after receipt
of such request, such Lender's approval thereto shall be deemed to have been
given; provided, however, that such request shall state, in capital letters that
"FAILURE TO RESPOND TO THIS REQUEST WITHIN FIFTEEN (15) DAYS AFTER RECEIPT,
SHALL BE DEEMED CONSENT TO THE ENCLOSED REQUEST". No termination or waiver of
any provision of this Agreement or any of the other Loan Documents, or consent
to any departure by the Borrower and RMOP therefrom, shall be effective without
the written concurrence of the Requisite Lenders, which the Requisite Lenders
shall have the right to grant or withhold in their sole discretion. All
amendments, waivers and consents not specifically reserved to the Administrative
Agent, the Arranger or the other Lenders in Section 14.7(b), 14.7(c), and in
other provisions of this Agreement shall require only the approval of the
Requisite Lenders. Any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or
demand on the Borrower or RMOP in any case shall entitle the Borrower or RMOP to
any other or further notice or demand in similar or other circumstances.
(b) Amendments, Consents and Waivers by Affected Lenders. Any
amendment, modification, termination, waiver or consent with respect to any of
the following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender affected thereby as described below:
(i) waiver of any of the conditions specified in Sections 6.1 and 6.2
(except with respect to a condition based upon another provision of
this Agreement, the waiver of which requires only the concurrence of
the Requisite Lenders),
(ii) increase in the amount of such Lender's Commitment,
(iii) reduction of the principal of, rate or amount of interest on the
Loans, or any fees or other amounts payable to such Lender (other than
by the payment or prepayment thereof), and
(iv) postponement or extension of any date (other than the Termination
Date postponement or extension of which is governed by Section
14.7(c)(i)) fixed for any payment of principal of, or interest on, the
Loans or any fees or other amounts payable to such Lender (except with
respect to any modifications of the application provisions relating to
prepayments of Loans and other Obligations which are governed by
Section 4.2(b)).
(c) Amendments, Consents and Waivers by All Lenders. Any amendment,
modification, termination, waiver or consent with respect to any of the
following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender:
(i) postponement of the Termination Date, or increase in the Maximum
Revolving Credit Amount to any amount in excess of $75,000,000,
(ii) change in the definition of Requisite Lenders or in the aggregate
Pro Rata Share of the Lenders which shall be required for the Lenders
or any of them to take action hereunder or under the other Loan
Documents,
(iii) amendment of Section 14.6 or this Section 14.7,
(iv) assignment of any right or interest in or under this Agreement or
any of the other Loan Documents by the Borrower or RMOP,
(v) waiver of any Event of Default under Section 11.1(a), Section
11.1(f) or Section 11.1(g), and
(vi) amendment or release of the Guaranty; provided that if RMOP ceases
to be a Borrower hereunder, the Borrower, RMIT and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Industrial Interim GP LLC may be released from the Guaranty.
(d) Administrative Agent Authority. Subject to the second succeeding
sentence of this subsection (d), the Administrative Agent may, but shall have no
obligation to, with the written concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of that Lender. Notwithstanding
anything to the contrary contained in this Section 14.7, no amendment,
modification, waiver or consent shall affect the rights or duties of the
Administrative Agent under this Agreement and the other Loan Documents, unless
made in writing and signed by the Administrative Agent in addition to the
Lenders required above to take such action. Notwithstanding anything herein to
the contrary, in the event that the Borrower on its behalf or on behalf of RMOP
shall have requested, in writing, that any Lender agree to an amendment,
modification, waiver or consent with respect to any particular provision or
provisions of this Agreement or the other Loan Documents, and such Lender shall
have failed to state, in writing, that it either agrees or disagrees (in full or
in part) with all such requests (in the case of its statement of agreement,
subject to satisfactory documentation and such other conditions it may specify)
within fifteen (15) days after such request, then such Lender hereby irrevocably
authorizes the Administrative Agent to agree or disagree, in full or in part,
and in the Administrative Agent's sole discretion, to such requests on behalf of
such Lender as such Lenders' attorney-in-fact and to execute and deliver any
writing approved by the Administrative Agent which evidences such agreement as
such Lender's duly authorized agent for such purposes.
14.8. Notices. Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted to be given shall be
in writing and may be personally served, sent by facsimile transmission or by
courier service or United States certified mail and shall be deemed to have been
given when delivered in person or by courier service, upon receipt of a
facsimile transmission, or four (4) Business Days after deposit in the United
States mail with postage prepaid and properly addressed. Notices to the
Administrative Agent pursuant to Articles II, IV or XII shall not be effective
until received by the Administrative Agent. For the purposes hereof, the
addresses of the parties hereto (until notice of a change thereof is delivered
as provided in this Section 14.8) shall be as set forth below each party's name
on the signature pages hereof or the signature page of any applicable Assignment
and Acceptance, or, as to each party, at such other address as may be designated
by such party in a written notice to all of the other parties to this Agreement.
14.9. Survival of Warranties and Agreements. All representations and
warranties made herein and all obligations of the Borrower and RMOP in respect
of taxes, indemnification and expense reimbursement shall survive the execution
and delivery of this Agreement and the other Loan Documents, the making and
repayment of the Loans and, in the case of any Lender that may assign any
interest in its Commitment or Loans hereunder, shall survive the making of such
assignment, notwithstanding that such assigning Lender may cease to be a
"Lender" hereunder, and, except for the representations and warranties, the
termination of this Agreement other than any of the foregoing set forth in
Section 13.1 or Section 13.2 or Section 13.3 or Section 5.2(f) shall survive for
thirty (30) days after termination of this Agreement.
14.10. Failure or Indulgence Not Waiver; Remedies Cumulative. No
failure or delay on the part of the Administrative Agent or any other Lender in
the exercise of any power, right or privilege under any of the Loan Documents
shall impair such power, right or privilege or be construed to be a waiver of
any default or acquiescence therein, nor shall any single or partial exercise of
any such power, right or privilege preclude other or further exercise thereof or
of any other right, power or privilege. All rights and remedies existing under
the Loan Documents are cumulative to and not exclusive of any rights or remedies
otherwise available.
14.11. Payments Set Aside. To the extent that the Borrower or RMOP
makes a payment or payments to the Administrative Agent, any Arranger or any
other Lender or any such Person exercises its rights of setoff, and such payment
or payments or the proceeds of such enforcement or setoff or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required to be repaid to a trustee, receiver or any other party, then
to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied, and all right and remedies therefor, shall be revived
and continued in full force and effect as if such payment had not been made or
such enforcement or setoff had not occurred.
14.12. Severability. In case any provision in or obligation under this
Agreement or the other Loan Documents shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
14.13. Headings. Section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement or be given any substantive effect.
14.14. Governing Law. THIS AGREEMENT SHALL BE INTERPRETED, AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAWS
PRINCIPLES.
14.15. Limitation of Liability. No claim may be made by any Lender, the
Arranger, the Administrative Agent, or any other Person against any Lender
(acting in any capacity hereunder) or the Affiliates, directors, officers,
employees, attorneys or agents of any of them for any consequential or punitive
damages in respect of any claim for breach of contract or any other theory of
liability arising out of or related to the transactions contemplated by this
Agreement, or any act, omission or event occurring in connection therewith; and
each Lender, the Arranger and the Administrative Agent hereby waives, releases
and agrees not to ▇▇▇ upon any such claim for any such damages, whether or not
accrued and whether or not known or suspected to exist in its favor.
14.16. Successors and Assigns. This Agreement and the other Loan
Documents shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of the parties hereto and
the successors and permitted assigns of the Lenders. Except as otherwise
provided in Section 10.7, the rights hereunder of the Borrower and RMOP, or any
interest therein, may not be assigned without the written consent of all
Lenders.
14.17. Certain Consents and Waivers of the Borrower and RMOP.
(a) Personal Jurisdiction. (i) EACH OF THE AGENT, THE LENDERS, THE
BORROWER AND RMOP IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR
FEDERAL COURT SITTING IN NEW YORK, NEW YORK, AND ANY COURT HAVING JURISDICTION
OVER APPEALS OF MATTERS HEARD IN SUCH COURTS, IN ANY ACTION OR PROCEEDING
ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING IN
CONTRACT, TORT, EQUITY OR OTHERWISE, OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH
FEDERAL COURT. EACH OF THE AGENTS, THE LENDERS, THE BORROWER AND RMOP AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. EACH OF THE AGENTS, THE LENDERS, THE BORROWER AND RMOP
WAIVES IN ALL DISPUTES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE
COURT CONSIDERING THE DISPUTE.
(ii) THE BORROWER AND RMOP EACH AGREES THAT THE ADMINISTRATIVE AGENT
SHALL HAVE THE RIGHT TO PROCEED AGAINST THE BORROWER, RMOP OR ITS RESPECTIVE
PROPERTY IN A COURT IN ANY LOCATION NECESSARY OR APPROPRIATE TO ENABLE THE
ADMINISTRATIVE AGENT AND THE OTHER LENDERS TO ENFORCE A JUDGMENT OR OTHER COURT
ORDER ENTERED IN FAVOR OF THE ADMINISTRATIVE AGENT OR ANY OTHER LENDER. THE
BORROWER AND RMOP EACH WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF
THE COURT IN WHICH THE ADMINISTRATIVE AGENT OR ANY LENDER MAY COMMENCE A
PROCEEDING DESCRIBED IN THIS SECTION.
(b) Service of Process. THE BORROWER AND RMOP EACH IRREVOCABLY CONSENTS
TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION
OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE PROCESS AGENT OR THE BORROWER'S OR RMOP'S NOTICE ADDRESS
SPECIFIED BELOW, SUCH SERVICE TO BECOME EFFECTIVE UPON RECEIPT. THE BORROWER AND
RMOP EACH IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY
OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
IN ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF
THE ADMINISTRATIVE AGENT OR THE OTHER LENDERS TO BRING PROCEEDINGS AGAINST THE
BORROWER OR RMOP IN THE COURTS OF ANY OTHER JURISDICTION.
(c) WAIVER OF JURY TRIAL. EACH OF THE AGENT AND THE OTHER LENDERS AND
THE BORROWER AND RMOP IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
14.18. Counterparts; Effectiveness; Inconsistencies. This Agreement and
any amendments, waivers, consents, or supplements hereto may be executed in
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. This Agreement shall become effective against the Borrower and
RMOP and each Agent and Lender on the Closing Date. This Agreement and each of
the other Loan Documents shall be construed to the extent reasonable to be
consistent one with the other, but to the extent that the terms and conditions
of this Agreement are actually inconsistent with the terms and conditions of any
other Loan Document, this Agreement shall govern.
14.19. Limitation on Agreements. All agreements between the Borrower,
RMOP, the Administrative Agent, the Arranger and each Lender in the Loan
Documents are hereby expressly limited so that in no event shall any of the
Loans or other amounts payable by the Borrower and RMOP under any of the Loan
Documents be directly or indirectly secured (within the meaning of Regulation U)
by Margin Stock.
14.20. Disclaimers. The Administrative Agent, the Arranger and the
other Lenders shall not be liable to any contractor, subcontractor, supplier,
laborer, architect, engineer, tenant or other party for services performed or
materials supplied in connection with any work performed on the Projects,
including any TI Work. The Administrative Agent, the Arranger and the other
Lenders shall not be liable for any debts or claims accruing in favor of any
such parties against the Borrower and RMOP or others or against any of the
Projects. Neither the Borrower nor RMOP is not and shall not be an agent of the
Agent, the Arranger or the other Lenders for any purposes and none of the
Lenders, the Arranger, or the Agents shall be deemed partners or joint venturers
with Borrower or RMOP. None of the Administrative Agent, the Arranger or the
other Lenders shall be deemed to be in privity of contract with any contractor
or provider of services to any Project, nor shall any payment of funds directly
to a contractor or subcontractor or provider of services be deemed to create any
third party beneficiary status or recognition of same by any of the
Administrative Agent, the Arranger or the other Lenders and the Borrower and
RMOP each agrees to hold the Administrative Agent, the Arranger and the other
Lenders harmless from any of the damages and expenses resulting from such a
construction of the relationship of the parties or any assertion thereof.
14.21. Entire Agreement. This Agreement, taken together with all of the
other Loan Documents, embodies the entire agreement and understanding among the
parties hereto and supersedes all prior agreements and understandings, written
and oral, relating to the subject matter hereof.
14.22. Confidentiality. Each of the Agent, the Arranger and the Lenders
agrees to keep confidential all non-public information provided to it by the
Borrower or RMOP pursuant to this Agreement that is designated by the Borrower
or RMOP as confidential; provided that nothing herein shall prevent the Agents
or the Lenders from disclosing any such information (a) to the Agents, any other
Lender or any Affiliate of any Lender (provided such Affiliate is made aware of
the confidentiality of such information and agrees to keep such information
confidential), (b) to any Assignee, Participant or prospective Assignee or
Participant (provided such Person is made aware of the confidentiality of such
information and agrees to keep such information confidential), (c) to the
employees, directors, agents, attorneys, accountants and other professional
advisors of any Lender, Assignee, Participant, prospective Assignee or
Participant who are advised of the provisions of this Section, (d) upon the
request or demand of any Governmental Authority having or asserting jurisdiction
over either Agent or any Lender, (e) in response to any order of any court or
other Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (f) if requested or required to do so in connection with the
exercise of any remedy hereunder or under any other Loan Document or (i) upon
the advice of counsel that such disclosure is required by law.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first above written.
BORROWER:
RECKSON OPERATING PARTNERSHIP, L.P.
a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY CORP.
By:_________________________________________
Name:
Title:
Notice Address:
Reckson Associates Realty Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Chief Financial Officer
RMOP:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ OPERATING
PARTNERSHIP, L.P., a Delaware
limited partnership
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Industrial
Interim GP LLC, its general
partner
By:_________________________________________
Name:
Title:
Notice Address:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Operating Partnership
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone:
Telecopy:
Attention: ▇▇▇▇ ▇. ▇▇▇▇
Executive Vice President
ADMINISTRATIVE AGENT,
ARRANGER AND LENDER: THE CHASE MANHATTAN BANK
By: ________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Notice Address, Domestic and
Eurodollar Lending Office:
The Chase Manhattan Bank
1 Chase Manhattan Plaza
Loan and Agency Services, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Reference:
with copy of all Notices to:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Reference:
Pro Rata Share: 33.33%
Commitment: $25,000,000
DOCUMENTATION AGENT
AND LENDER: ING (U.S.) CAPITAL LLC
(formerly known as ING (U.S.)
CAPITAL CORPORATION)
By: ING (U.S.) Capital Financial
Holdings LLC, its sole member
By:________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Pro Rata Share: 33.33%
Commitment: $25,000,000
LENDER: CITIZENS BANK OF RHODE ISLAND
By:________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
Pro Rata Share: 13.33%
Commitment: $10,000,000
LENDER: LASALLE NATIONAL BANK
By:________________________
Name:
Title:
Pro Rata Share: 10.00%
Commitment: $7,500,000
LENDER: EUROPEAN AMERICAN BANK
By:________________________
Name:
Title:
Pro Rata Share: 10.00%
Commitment: $7,500,000
EXHIBIT A
ASSIGNMENT AND ACCEPTANCE
LIST OF EXHIBITS AND SCHEDULES
Exhibit A-- Form of Assignment and Acceptance
Exhibit B-1 Form of Note
Exhibit B-2 Form of RMOP Note
Exhibit C-- Form of Notice of Borrowing
Exhibit D-- Form of Notice of Conversion/Continuation
Exhibit E-- List of Closing Documents
Exhibit F-- Form of [Quarterly/Annual] Compliance Certifi-
cate to Accompany Reports
Exhibit G-- Sample Calculations of Financial Covenants
Schedule 1.1.1 -- Existing Permitted Liens
Schedule 1.1.2 -- Permitted Securities Options
Schedule 6.1(d)-- Equity Changes
Schedule 7.1-A -- Organizational Documents
Schedule 7.1-C -- Corporate Structure; Outstanding Capital
Stock and Partnership Interests; Partner-
ship Agreement
Schedule 7.1-H -- Indebtedness for Borrowed Money; Contin-
gent Obligations
Schedule 7.1-I -- Pending Actions
Schedule 7.1-P -- Environmental Matters
Schedule 7.1-Q -- ERISA Matters
Schedule 7.1-R -- Securities Activities
Schedule 7.1-T -- Insurance Policies
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms...................................2
1.2. Computation of Time Periods............................34
1.3. Accounting Terms.......................................35
1.4. Other Terms............................................35
ARTICLE II
AMOUNTS AND TERMS OF LOANS
2.1. Loans..................................................35
2.2. Intentionally Omitted.
2.3 .......................................................38
2.4. Termination Date.......................................38
2.5. Maximum Credit Facility................................39
2.6. Authorized Agents......................................39
ARTICLE III
ARTICLE IV
PAYMENTS AND PREPAYMENTS
4.1. Prepayments; Reductions in Commitments.................40
4.2. Payments...............................................42
4.3. Promise to Repay; Evidence of Indebtedness.............46
ARTICLE V
INTEREST AND FEES
5.1. Interest on the Loans and other Obligations............48
5.2. Special Provisions Governing Eurodollar Rate
Loans..................................................51
5.3. Fees...................................................56
ARTICLE VI
CONDITIONS TO LOANS
6.1. Conditions Precedent to the Initial Loans..............57
6.2. Conditions Precedent to All Subsequent Loans ..........59
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1. Representations and Warranties of the Borrower
and RMOP...............................................60
ARTICLE VIII
REPORTING COVENANTS
8.1. Borrower Accounting Practices..........................73
8.2. Financial Reports......................................73
8.3. Events of Default......................................77
8.4. Lawsuits...............................................77
8.5. Insurance..............................................78
8.6. ERISA Notices..........................................78
8.7. Environmental Notices..................................80
8.8. Labor Matters..........................................81
8.9. Notices of Asset Sales and/or Acquisitions.............82
8.10. Notices of............................................82
8.11. Tenant Notifications..................................83
8.12. Other Reports.........................................83
8.13. Other Information.....................................83
ARTICLE IX
AFFIRMATIVE COVENANTS
9.1. Existence, Etc.........................................83
9.2. Powers; Conduct of Business............................84
9.3. Compliance with Laws, Etc..............................84
9.4. Payment of Taxes and Claims............................84
9.5. Insurance..............................................85
9.6. Inspection of Property; Books and Records; Dis-
cussions...............................................85
9.7. ERISA Compliance.......................................85
9.8. Maintenance of Property................................85
9.9. Company Status.........................................86
ARTICLE X
NEGATIVE COVENANTS
10.1. Intentionally Omitted.................................86
10.2. Liens.................................................86
10.3. Intentionally Omitted.................................87
10.4. Conduct of Business...................................87
10.5. Transactions with Partners and Affiliates.............87
10.6. Restriction on Fundamental Changes....................88
10.7. Margin Regulations; Securities Laws...................88
10.8. ERISA.................................................88
10.9. Organizational Documents..............................89
10.10. Fiscal Year........................................ ..89
10.11. Financial Covenants............................... ..89
10.12. Negative Covenants with respect to the Company.... ..92
ARTICLE XI
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.1. Events of Default.....................................93
11.2. Rights and Remedies...................................97
ARTICLE XII THE AGENTS
12.1. Appointment...........................................99
12.2. Nature of Duties......................................99
12.3. Right to Request Instructions........................100
12.4. Reliance.............................................100
12.5. Indemnification......................................100
12.6. Agent Individually...................................101
12.7. Successor Agents.....................................101
12.8. Relations Among the Lenders..........................102
ARTICLE XIII YIELD PROTECTION
13.1. Taxes................................................103
13.2. Increased Capital....................................106
13.3. Changes; Legal Restrictions..........................107
13.4. Replacement of Certain Lenders.......................108
13.5. Mitigation...........................................108
ARTICLE XIV
14.1. Assignments and Participations.......................109
14.2. Expenses.............................................112
14.3. Indemnity............................................113
14.4. Change in Accounting Principles......................114
14.5. Intentionally Omitted................................114
14.6. Ratable Sharing......................................114
14.7. Amendments and Waivers...............................115
14.8. Notices..............................................118
14.9. Survival of Warranties and Agreements................118
14.10. Failure or Indulgence Not Waiver; Remedies
Cumulative.........................................118
14.11. Payments Set Aside..................................119
14.12. Severability........................................119
14.13. Headings............................................119
14.14. Governing Law.......................................119
14.15. Limitation of Liability.............................119
14.16. Successors and Assigns..............................120
14.17. Certain Consents and Waivers of the Borrower
and RMOP..........................................120
14.18. Counterparts; Effectiveness; Inconsistencies........121
14.19. Limitation on Agreements............................121
14.20. Disclaimers.........................................122
14.21. Entire Agreement....................................122
14.22. Confidentiality.....................................122
EXHIBIT A
to
Credit Agreement dated as of January 12, 1999
FORM OF ASSIGNMENT AND ACCEPTANCE
------------------------------------------------------ASSIGNMENT AND ACCEPTANCE
This ASSIGNMENT AND ACCEPTANCE dated as of _____________, 199__,
among [Names of Assignor Lenders] (each, an "Assignor" and collectively, the
"Assignors") and _________, ___________, ___________, (etc.) (each, an
"Assignee" and collectively, the "Assignees").
PRELIMINARY STATEMENTS
A. Reference is made to the Amended and Restated Credit Agreement
dated as of January 12, 1999 (as the same may be amended, supplemented,
restated or otherwise modified from time to time, the "Credit Agree ment")
among Reckson Operating Partnership, L.P., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Operating
Partnership, L.P., the institutions from time to time party thereto as
Lenders, ING (U.S.) Capital LLC (formerly known as ING (U.S.) Capital
Corporation), as Documentation Agent, and The Chase Manhattan Bank, as
Arranger and Administrative Agent. Capitalized terms used herein and not
otherwise defined herein are used as defined in the Credit Agreement.
B. The Assignors are Lenders under the Credit Agreement and each
desires to sell and assign to the Assignees a portion of such Assignor's
existing Commitment, as set forth on Schedule 2 attached hereto (each, an
"Assigned Commitment") in the aggregate amount of $__________ of the
Commitments (the "Aggregate Assigned Amount"), and each Assignee desires to
purchase and assume from each Assignor, on terms and conditions set forth
below, an interest in such Assignor's respective Assigned Commitment and
related outstanding Loans (the "Assigned Percentages"), together with the
Assignors' respective rights and obligations under the Credit Agreement with
respect to the Assigned Percentages, such that each Assignee shall, from and
after the Effective Date (as defined below), become a Lender under the Credit
Agreement with the respective Commitment and Pro Rata Share listed on the
signature pages attached hereto.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Assignors and the Assignees
hereby agree as follows:
1. In consideration of the payments of each Assignee to each
Assignor, to be made by wire transfer to the Administrative Agent of
immediately available funds on the Effective Date in accordance with Schedule
3 attached hereto, each Assignor hereby sells and assigns to each Assignee,
and each Assignee hereby purchases and assumes from such Assignor, the
Assigned Percentage set forth on Schedule 1 attached hereto, together with
such Assignor's rights and obligations under the Credit Agreement and all of
the other Loan Documents with respect to the Assigned Percentages as of the
date hereof (after giving effect to any other assignments thereof made prior
to the date hereof, whether or not such assignments have become effective, but
without giving effect to any other assignments thereof also made on the date
hereof), including, without limitation, the obligation to make Loans and the
obligation to participate in Letters of Credit.
2. Each Assignor (i) represents and warrants that as of the date
hereof its Commitment is as set forth on Schedule 2 attached hereto (in each
case, after giving effect to any other assignments thereof made prior to the
date hereof, whether or not such assignments have become effective, but
without giving effect to any other assignments thereof made as of the date
hereof); (ii) represents and warrants that it is the legal and beneficial
owner of the interest being assigned by it hereunder and that such interest is
free and clear of any adverse claim and that such Assignor is legally
authorized to enter into this Assignment and Acceptance; (iii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or any of the other Loan Documents or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Credit Agreement or any of the other Loan Documents or any other instrument or
document furnished pursuant thereto; and (iv) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any
obligations under the Credit Agreement or any of the other Loan Documents or
any other instrument or document furnished pursuant thereto.
3. Each Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Credit Agreement, together with copies of such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance;
(iii) agrees that it shall have no recourse against the Assignor with respect
to any matter relating to the Credit Agreement, any of the other Loan
Documents, or this Assignment and Acceptance (except with respect to the
representations or warranties made by the Assignors in clauses (i) and (ii) of
paragraph 2 above); (iv) agrees that it will, independently and without
reliance upon the Administrative Agent, the Assignors or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (v) confirms that it is an Eligible Assignee; (vi)
appoints and authorizes the Administrative Agent to take such action as agent
on its behalf and to exercise such powers under the Credit Agreement as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (vii) agrees that it will perform
in accordance with their terms all of the obligations which by the terms of
the Credit Agreement are required to be performed by it as a Lender; (viii)
confirms that, to the best of its knowledge, as of the date hereof, it is not
subject to any law, regulation or guideline from any central bank or other
Governmental Authority or quasi-governmental authority exercising
jurisdiction, power or control over it, which would subject the Borrower to
the payment of additional compensation under Section 13.2 or under Section
13.3 of the Credit Agreement; (ix) specifies as its Domestic Lending Office
(and address for notices) and Eurodollar Lending Office(s) the offices set
forth beneath its name on the signature pages hereof; (x) if such Assignee is
organized under the laws of a jurisdiction outside the United States, attaches
the forms described in Section 13.1(d) of the Credit Agreement or any
successor forms prescribed by the Internal Revenue Service of the United
States certifying as to the Assignee's exemption from United States
withholding taxes with respect to all payments to be made to the Assignee
under the Credit Agreement and the Notes or such other documents as are
necessary to indicate that all such payments are subject to such rates at a
rate reduced by an applicable tax treaty; and (xi) represents and warrants
that none of the funds, monies, assets or other consideration being used to
purchase pursuant to this Assignment and Acceptance are "plan assets" as
defined under ERISA and that its rights, benefits, and interests in and under
the Loan Documents will not be "plan assets" under ERISA.
4. Following the execution of this Assignment and Acceptance by each
of the Assignors and the Assignees, it will be delivered to the Administrative
Agent for acceptance and recording by the Administrative Agent. The effective
date of this Assignment and Acceptance shall be , 199 (the "Effective Date").
5. As of the Effective Date, (i) each Assignee shall be a party to
the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and (ii)
each Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement with respect to its Assigned Commitment.
6. From and after the Effective Date, the Administrative Agent shall
make all payments under the Credit Agreement and the Notes in respect of the
Aggregate Assigned Amount (including, without limitation, all payments of
principal, interest and fees with respect thereto) to the appropriate
Assignees. The Administrative Agent shall make all appropriate adjustments in
payments under the Credit Agreement and the Notes for periods prior to the
Effective Date.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. This Assignment and Acceptance may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument.
[9. The Assignor represents and warrants that it has given the
Borrower five (5) days written notice by telecopy of its intention to enter
into this Assignment and Acceptance in accordance with the provisions of
Section 14.1(b) of the Credit Agreement.]1
____________
1 Applies only during the continuance of an Event of Default and prior to an
acceleration of the Loans.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
ASSIGNORS: _______________
By:_______________________
Name:
Title:
By:_______________________
Name:
Title:
Notice Address, Domestic
------------------------
Lending Office and Eurodollar Lending Office:
---------------------------------------------
Adjusted Pro Rata Share: ___%
Adjusted Commitment: $_____
ASSIGNEES: _______________
By:_______________________
Name:
Title:
By:_______________________
Name:
Title:
Notice Address, Domestic
------------------------
Lending Office and Eurodollar Lending Office:
---------------------------------------------
Pro Rata Share: ___%
Commitment: $_____
Accepted as of this ___ day
of ___________, 199_
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:______________________
Name:
Title:
By:______________________
Name:
Title:
Consented and agreed to
as of this ___ day of ________, 199_
RECKSON OPERATING PARTNERSHIP, L.P.,2
a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY CORP.,
a Maryland corporation, its
general partner
By: __________
Name:
Title:
SCHEDULE 1
Assignee Assigned New Pro
--------
Percentage Rata Share
---------- ----------
SCHEDULE 2
EXISTING COMMITMENTS AND
PRO RATA SHARES OF ASSIGNORS
Assignor Existing Existing Pro Assigned
Commitment Rata Share Commitment
---------- ------------ ----------
SCHEDULE 3
PAYMENTS3
Lender Facility Funding Fee to
------ -------- ------- ------
Fee Amount/Repay- Administrative
--- ------------- --------------
ment to Assignors Agent4
----------------- ------
A-11
EXHIBIT B
to
Credit Agreement dated as of January 12, 1999
FORM OF PROMISSORY NOTE
---------------------------------------------------------
$_,000,000 ______________New York, New York
_________ __, 1999
For value received, Reckson Operating Partnership, L.P., a Delaware
limited partnership (the "Borrower"), promises to pay to the order of (the
"Lender"),the unpaid principal amount of each Loan made by the Lender to the
Borrower pursuant to the Credit Agreement referred to below on the Termination
Date (as such term is defined in the Credit Agreement). The Borrower promises
to pay interest on the unpaid principal amount of each such Loan on the dates
and at the rate or rates provided for in the Credit Agreement. All such
payments of principal and interest shall be made in lawful money of the United
States in Federal or other immediately available funds at the office of the
Administrative Agent (as such term is defined in the Credit Agreement).
All Loans made by the Lender, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Lender and, if the Lender so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding may be endorsed by
the Lender on the schedule attached hereto, or on a continuation of such
schedule attached to and made a part hereof; provided that the failure of the
Lender to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Amended and
Restated Credit Agreement, dated as of January 12, 1999, among the Borrower,
the institutions from time to time party thereto, ING (U.S.) Capital LLC
(formerly known as ING (U.S.) Capital Corporation), as Documentation Agent,
and The Chase Manhattan Bank, as Arranger and Administrative Agent (as the
same may be amended, supplemented, restated, or otherwise modified from time
to time, the "Credit Agreement"). Terms defined in the Credit Agreement are
used herein with the same meanings. Reference is made to the Credit Agreement
for provisions for the prepayment hereof and the acceleration of the maturity
hereof upon the happening of certain events.
THIS NOTE SHALL BE INTERPRETED, AND THE RIGHTS AND LIABILITIES OF
THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
BORROWER:
RECKSON OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY CORP.,
a Maryland corporation, its
general partner
By:
---------------
Name:
Title:
LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------
Amount of
Amunt of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
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EXHIBIT B-2
to
Credit Agreement dated as of January 12, 1999
FORM OF PROMISSORY NOTE
---------------------------------------------------------
$_,000,000New York, New York
_________, 1999
For value received, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Operating Partnership, L.P., a
Delaware limited partnership ("RMOP"), promises to pay to the order of (the
"Lender"),the unpaid principal amount of each Loan made by the Lender to RMOP
pursuant to the Credit Agreement referred to below on the Termination Date (as
such term is defined in the Credit Agreement). RMOP promises to pay interest
on the unpaid principal amount of each such Loan on the dates and at the rate
or rates provided for in the Credit Agreement. All such payments of principal
and interest shall be made in lawful money of the United States in Federal or
other immediately available funds at the office of the Administrative Agent
(as such term is defined in the Credit Agreement).
All Loans made by the Lender, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Lender and, if the Lender so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding may be endorsed by
the Lender on the schedule attached hereto, or on a continuation of such
schedule attached to and made a part hereof; provided that the failure of the
Lender to make any such recordation or endorsement shall not affect the
obligations of RMOP hereunder or under the Credit Agreement.
This note is one of the RMOP Notes referred to in the Amended and
Restated Credit Agreement, dated as of January 12, 1999, among RMOP, the
institutions from time to time party thereto, ING (U.S.) Capital LLC (formerly
known as ING (U.S.) Capital Corporation), as Documentation Agent, and The
Chase Manhattan Bank, as Arranger and Administrative Agent (as the same may be
amended, supplemented, restated, or otherwise modified from time to time, the
"Credit Agreement"). Terms defined in the Credit Agreement are used herein
with the same meanings. Reference is made to the Credit Agreement for
provisions for the prepayment hereof and the acceleration of the maturity
hereof upon the happening of certain events.
THIS NOTE SHALL BE INTERPRETED, AND THE RIGHTS AND LIABILITIES OF
THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
BORROWER:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ INDUSTRIAL INTERIM GP LLC
a Delaware limited liability company,
its general partner
By: _________________
Name:
Title:
LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------
Amount of
Amou of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
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EXHIBIT C
to
Credit Agreement dated as of January 12, 1999
---------------------------------------------------------
FORM OF NOTICE OF BORROWING
_______, 199_
The Chase Manhattan Bank, as Administrative Agent
for the Lenders party to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Ladies and Gentlemen:
Reference is hereby made to that certain Amended and Restated Credit
Agreement dated as of January 12, 1999 (as the same may be amended,
supplemented, restated or otherwise modified from time to time, the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among Reckson Operating Partnership, L.P., a Delaware limited partnership (the
"Borrower"), the institutions from time to time party thereto as Lenders, ING
(U.S.) Capital LLC (formerly known as ING (U.S.) Capital Corporation), as
Documentation Agent, and The Chase Manhattan Bank, as Arranger and
Administrative Agent.
The Borrower hereby gives you notice, irrevocably, pursuant to
Section 2.1(b) of the Credit Agreement that the Borrower/RMOP hereby requests
a Borrowing under the Credit Agreement and, in that connection, sets forth
below the information relating to such Borrowing (the "Proposed Borrowing") as
required pursuant to the terms of the Credit Agreement:
The Funding Date (which shall be a Business Day) of the Proposed
Borrowing is __________, 199_.
The amount of the Proposed Borrowing is $_____________.1
The Credit Availability as of the date of this Notice of Borrowing
is $______________.
The Proposed Borrowing will be of [Eurodollar Rate Loans] [Base Rate
Loans].
The requested Eurodollar Interest Period for the Proposed Borrowing
is from ____________ and ending ___________ (for a total of _______ months).2
The Loan is for the account of [Borrower][RMOP]. The aggregate
amount of the Loans (inclusive of this Loan) as well as the loans pursuant to
the Revolving Credit Agreement, outstanding and attributable to RMOP is $ .
The Borrower (by its signature below)hereby directs the
Administrative Agent to disburse the proceeds of the Loans comprising the
Proposed Borrowing on the Funding Date therefor as set forth on Schedule 1
attached hereto and made a part hereof, whereupon the proceeds of such Loans
shall be deemed received by or for the benefit of the Borrower/RMOP.
The Borrower(by its signature below) hereby certifies that the
conditions precedent contained in Section [6.1] [6.2] are satisfied on the
date hereof and will be satisfied on the Funding Date of the Proposed
Borrowing.
RECKSON OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY CORP.,
a Maryland corporation,
its general partner
By:_____________________
Name:
Title:
SCHEDULE 1
to
Notice of Borrowing
dated ______, 199_
[Insert disbursement directions]
EXHIBIT D
to
Credit Agreement dated as of January 12, 1999
---------------------------------------------------------
FORM OF NOTICE OF CONVERSION/CONTINUATION
________, 199_
The Chase Manhattan Bank, as Administrative Agent
for the Lenders party to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Ladies and Gentlemen:
Reference is hereby made to that certain Amended and Restated Credit
Agreement dated as of January 12, 1999 (as the same may be amended,
supplemented, restated or otherwise modified from time to time, the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among Reckson Operating Partnership, L.P., a Delaware limited partnership (the
"Borrower"), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Operating Partnership, L.P. ("RMOP"), the
institutions from time to time party thereto as Lenders, ING (U.S.) Capital
LLC (formerly known as ING (U.S.) Capital Corporation), as Documentation
Agent, and The Chase Manhattan Bank, as Arranger and Administrative Agent.
The Borrower by its signature below hereby gives you notice pursuant
to Section 5.1(c)(ii) of the Credit Agreement that the Borrower hereby elects
to1:
1. Convert $_________2 in aggregate principal amount of Base Rate
Loans from Base Rate Loans to Eurodollar Rate Loans on _______________, 199_3.
The Eurodollar Interest Period for such Eurodollar Rate Loans is requested to
be ______ month[s].4
2. Convert $________ in aggregate principal amount of Eurodollar
Rate Loans with a current Eurodollar Interest Period ending ___________, 199_5
to Base Rate Loans.
3. Continue as Eurodollar Rate Loans $_________6 in aggregate
principal amount of Eurodollar Rate Loans with a current Eurodollar Interest
Period from _____________ and ending _____________, 199_. The succeeding
Eurodollar Interest period for such Eurodollar Rate Loans is requested to be
_______ month[s].7
4. The above Loans are for the account of the [Borrower][RMOP].
The Borrower by its signature below hereby certifies that on
the date hereof there are no prohibitions under the Credit Agreement to the
requested conversion/continuation, and no such prohibitions will exist on the
date of the requested conversion/continuation.
RECKSON OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY CORP.,
a Maryland corporation,
its general partner
By:_____________________
Name:
Title:
EXHIBIT E
to
Credit Agreement dated as of January 12, 1999
---------------------------------------------------------
LIST OF CLOSING DOCUMENTS
$75,000,000
CREDIT FACILITY
among
RECKSON OPERATING PARTNERSHIP, L.P.,
THE LENDERS, AND
THE CHASE MANHATTAN BANK
January 12, 1999
LIST OF CLOSING DOCUMENTS1
--------------------------
1. Amended and Restated Credit Agreement (the "Credit Agreement"),
among Reckson Operating Partnership, L.P. (the "Borrower"), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Operating Partnership, L.P.,certain financial institutions listed on the
signature pages thereof as lenders (collectively referred to herein, together
with their respective successors and assigns, as the "Lenders"), ING (U.S.)
Capital LLC (formerly known as ING (U.S.) Capital Corporation), as
Documentation Agent, and The Chase Manhattan Bank, as Arranger and
Administrative Agent ("Chase").
2. Exhibits and Schedules to the Credit Agreement as described on
Schedule 1 attached hereto.
3. Promissory Notes (the "Notes") executed by the Borrower and
payable to each Lender evidencing the Loans made by such Lender under the
Credit Agreement.
4. Promissory Notes (the "RMOP Notes") executed by RMOP and payable
to each Lender evidencing the Loans made by such Lender under the Credit
Agreement.
5. Amended and Restated Guaranty Agreement by the Borrower, Reckson
Associates Realty Corp. (the "Company"), and Reckson FS Limited Partnership
("Reckson FS"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Industrial Interim GP LLC ("GP LLC") for
the benefit of Chase.
6. Certificate of the Company dated the Closing Date (a) in its
capacity as general partner of the Borrower certifying (1) the names and true
signatures of the incumbent officers of the Company authorized to sign the
Credit Agreement, the Borrower Notes, and the other Loan Documents on behalf
of the Borrower, (2) the resolutions of the Company's Board of Directors
approving and authorizing the execution, delivery and performance of the
Credit Agreement, the Borrower Notes and all other Loan Documents executed by
the General Partner on behalf of the Borrower, and (3) a copy of the
Partnership Agreement of the Borrower as in effect on the date of such
certification, and (2) a copy of the Certificate of Incorporation of the
Company, together with all amendments thereto, if any, certified by the
Secretary of State of Maryland.
7. Certificate of GP LLC dated the Closing Date (a) in its capacity
as general partner of RMOP certifying (1) the names and true signatures of the
incumbent officers of GP LLC authorized to sign the Credit Agreement, the RMOP
Notes, and the other Loan Documents on behalf of RMOP, (2) the resolutions of
GP LLC's Board of Managers approving and authorizing the execution, delivery
and performance of the Credit Agreement, the RMOP Notes and all other Loan
Documents executed by GP LLC on behalf of RMOP, and (3) a copy of the
Partnership Agreement of RMOP as in effect on the date of such certification,
and (2) a copy of the Certificate of Formation of GP LLC, together with all
amendments thereto, if any, certified by the Secretary of State of Delaware.
8. Copy of the Certificate of Limited Partnership of the Borrower,
together with all amendments thereto, if any certified by the Secretary of
State of Delaware.
9. Copy of the Articles of Incorporation of the Company, together
with all amendments thereto, if any certified by the Secretary of State of
Maryland.
10. Copy of the Certificate of Limited Partnership of RMOP, together
with all amendments thereto, if any certified by the Secretary of State of
Delaware.
11. Copy of the Certificate of Formation of GP LLC, together with
all amendments thereto, if any certified by the Secretary of State of
Delaware.
12. Certificate of Reckson FS, Inc. dated the Closing Date (a) in
its capacity as general partner of Reckson FS certifying (1) the names and
true signatures of the incumbent officers of Reckson FS, Inc. authorized to
sign the Guaranty Agreement on behalf of Reckson FS, (2) the resolutions of
Reckson FS, Inc.'s Board of Directors approving and authorizing the execution,
delivery and performance of the Guaranty Agreement executed by Reckson FS,
Inc. on behalf of the Borrower, and (3) a copy of the Partnership Agreement of
the Reckson FS as in effect on the date of such certification, and (2) a copy
of the Certificate of Incorporation of Reckson FS, Inc., together with all
amendments thereto, if any, certified by the Secretary of State of Delaware.
13. Certificate of GP LLC dated the Closing Date certifying (1) the
names and true signatures of the incumbent officers of GP LLC authorized to
sign the Guaranty Agreement, and (2) the resolutions of GP LLC's Board of
Managers approving and authorizing the execution, delivery and performance of
the Guaranty Agreement executed by GP LLC on behalf of the Borrower.
14. Good Standing Certificates of the Borrower, the Company, RMOP,
GP LLC, Reckson FS and Reckson FS, Inc.
15. Opinion of ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Borrower and the
Company.
16. Notice of Borrowing executed by the Borrower and/or RMOP with
respect to the Loans to be made on the Initial Funding Date.
17. Disbursement Direction Authorization executed by the Borrower
and/or RMOP pursuant to which Chase is directed to disburse the proceeds of
the Loans to be made on the Initial Funding Date as described therein.
18. Officer's Certificate of the General Partners dated the Initial
Funding Date, signed by the President of the Company, certifying, among other
things, satisfaction of the conditions precedent to funding set forth in
Section 6.1 of the Credit Agreement.
EXHIBIT F
to
Credit Agreement dated as of January 12, 1999
---------------------------------------------------------
FORM OF [QUARTERLY/ANNUAL] COMPLIANCE CERTIFICATE TO
ACCOMPANY REPORTS
______, 199_
The Chase Manhattan Bank, as Administrative Agent
for the Lenders party to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Ladies and Gentlemen:
Pursuant to Section [8.2(a)(iii)][8.2(b)(iii)] of that certain
Amended and Restated Credit Agreement dated as of January 12, 1999 (as the
same may be amended, supplemented, restated or otherwise modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined) among Reckson Operating Partnership, L.P., a Delaware limited
partnership (the "Borrower"), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Operating Partnership, L.P.
("RMOP"), the institutions from time to time party thereto as Lenders, ING
(U.S.) Capital LLC (formerly known as ING (U.S.) Capital Corporation), as
Documentation Agent, and The Chase Manhattan Bank, as Arranger and
Administrative Agent, the undersigned, , the of [Reckson Operating
Partnership, L.P., a Delaware limited partnership][Reckson Associates Realty
Corp., a Maryland corporation (the "Company")], hereby certifies that:
1. The undersigned has reviewed the terms of the Loan Documents, and
has made, or caused to be made under [his/her] supervision, a review in
reasonable detail of the consolidated financial condition of the Company and
its consolidated Subsidiaries during the accounting period covered by the
financial statements identified below. To the best of the undersigned's
knowledge, such review has not disclosed the existence during or at the end of
such accounting period, and as of the date hereof the undersigned does not
have knowledge, of the existence of any condition or event which constitutes
an Event of Default or Potential Event of Default.1
2. The financial statements, reports and copies of certain
instruments and documents attached hereto, namely,
A. Compliance Certificate, dated ____________
B. ______________________, dated ____________
C. ______________________, dated ____________
D. ______________________, dated ____________
are true and complete copies of the aforesaid which constitute part of or are
based upon the customary books and records of the Company, and, to the best of
the undersigned's knowledge and belief, there exist no facts or circumstances
which would have a Material Adverse Effect.
---------------------------
Name:
Title:
EXHIBIT G
SAMPLE CALCULATIONS OF FINANCIAL COVENANTS
