EXHIBIT 10.1
THIS CREDIT AGREEMENT dated as of December 21, 2001 by and among KEYSTONE
OPERATING PARTNERSHIP, L.P., a limited partnership organized under the laws of
the State of Delaware (the "Borrower"), KEYSTONE PROPERTY TRUST, a real estate
investment trust formed under the laws of the State of Maryland (the "Parent"),
each of the financial institutions initially a signatory hereto together with
their assignees pursuant to Section 13.6.(d), FIRST UNION NATIONAL BANK, as
Syndication Agent (the "Syndication Agent"), THE BANK OF NEW YORK, as
Documentation Agent (the "Documentation Agent") and XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Agent.
WHEREAS, pursuant to that certain First Amended and Restated Revolving
Credit Agreement dated as of June 30, 1999 (as amended and in effect immediately
prior to the date hereof, the "Existing Credit Agreement"), by and among the
Borrower, the financial institutions party thereto as "Lenders" (the "Existing
Lenders"), Fleet National Bank, successor to BankBoston, N.A., as Agent (the
"Existing Agent"), and the other parties thereto, the Existing Lenders and the
Existing Agent made a $150,000,000 credit facility available to the Borrower;
WHEREAS, the Existing Lenders, the Existing Agent, the Borrower and Xxxxx
Fargo Bank, National Association ("Xxxxx Fargo") have entered into that certain
Assignment and Acceptance Agreement dated as of the date hereof (the "Fleet
Assignment Agreement") pursuant to which such parties provided for, among other
things, (a) the assignment by certain of the Existing Lenders to Xxxxx Fargo of
such Existing Lenders' rights and obligations under the Existing Credit
Agreement and the promissory notes and other documents, instruments and
agreements executed and delivered by the Borrower in connection with the
Existing Credit Agreement and (b) the replacement of the Existing Agent with the
Agent; and
WHEREAS, Xxxxx Fargo, the other Lenders, the Agent and the Borrower are
entering into this Agreement, among other things, (a) to provide for the
assignment by Xxxxx Fargo to certain of the Lenders of a proportionate amount of
Xxxxx Fargo's rights and obligations under the Existing Credit Agreement and the
promissory notes and other documents, instruments and agreements executed and
delivered by the Borrower in connection with the Existing Credit Agreement, and
(b) to amend and restate the Existing Credit Agreement so as to make available
to the Borrower a $125,000,000 revolving credit facility, which will include a
$5,000,000 swingline subfacility and a $10,000,000 letter of credit subfacility,
on the terms and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree that the Existing Credit Agreement is amended and restated in its
entirety as follows:
ARTICLE I. DEFINITIONS
SECTION 1.1. DEFINITIONS.
In addition to terms defined elsewhere herein, the following terms shall
have the following meanings for the purposes of this Agreement:
"ACCESSION AGREEMENT" means an Accession Agreement substantially in the
form of Annex I to the Guaranty.
"ADDITIONAL COSTS" has the meaning given that term in Section 5.1.
"AFFILIATE" means any Person (other than the Agent or any Lender): (a)
directly or indirectly controlling, controlled by, or under common control with,
the Borrower; (b) directly or indirectly owning or holding fifteen percent
(15.0%) or more of any equity interest in the Borrower; or (c) fifteen percent
(15.0%) or more of whose voting stock or other equity interest is directly or
indirectly owned or held by the Borrower. For purposes of this definition,
"control" (including with correlative meanings, the terms "controlling",
"controlled by" and "under common control with") means the possession directly
or indirectly of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities or
by contract or
otherwise. The Affiliates of a Person shall include any officer
or director of such Person. In no event shall the Agent or any Lender be deemed
to be an Affiliate of the Borrower.
"AGENT" means Xxxxx Fargo Bank, National Association, as contractual
representative for the Lenders under the terms of this Agreement, and any of its
successors in such capacity.
"AGREEMENT DATE" means the date as of which this Agreement is dated.
"APPLICABLE LAW" means all applicable provisions of constitutions,
statutes, rules, regulations and orders of all governmental bodies and all
orders and decrees of all courts, tribunals and arbitrators.
"APPLICABLE MARGIN" means the percentage rate set forth below
corresponding to the ratio of Total Liabilities to Gross Asset Value as
determined in accordance with Section 10.1.(b) in effect at such time:
--------------------------------------------------------------------------------
RATIO OF TOTAL LIABILITIES APPLICABLE MARGIN APPLICABLE MARGIN
LEVEL TO GROSS ASSET VALUE FOR LIBOR LOANS FOR BASE RATE LOANS
--------------------------------------------------------------------------------
1 Less than 0.35 to 1.00 1.35% 0%
--------------------------------------------------------------------------------
2 Greater than or equal to 1.50% 0%
0.35 to 1.00 but less than
0.45 to 1.00
--------------------------------------------------------------------------------
3 Greater than or equal to 1.625% 0%
0.45 to 1.00 but less than
0.55 to 1.00
--------------------------------------------------------------------------------
4 Greater than or equal to 1.875% 0%
0.55 to 1.00
--------------------------------------------------------------------------------
The Applicable Margin shall be determined by the Agent from time to time, based
on the ratio of Total Liabilities to Gross Asset Value as set forth in the
Compliance Certificate most recently delivered by the Parent pursuant to Section
9.3. Any such adjustment to the Applicable Margin shall be effective as of the
first day of the calendar month immediately following the month during which the
Parent delivers to the Agent the applicable Compliance Certificate pursuant to
Section 9.3. If the Parent fails to deliver a Compliance Certificate pursuant to
Section 9.3, the Applicable Margin shall equal the percentages corresponding to
Level 4 until the date of the delivery of the required Compliance Certificate.
Notwithstanding the foregoing, for the period from the Effective Date through
but excluding the date on which the Agent first determines the Applicable Margin
as set forth above, such Applicable Margin shall equal the percentages
corresponding to Level 3. Thereafter, such Applicable Margin shall be adjusted
from time to time as set forth in this definition.
"ASSET VALUE" means (a) with respect to any Subsidiary at a given time,
the sum of (i) the Capitalized EBITDA of such Subsidiary at such time, PLUS (ii)
the book value of all Construction in Process of such Subsidiary as of the end
of the Parent's fiscal quarter most recently ended, and (b) with respect to any
Unconsolidated Affiliate at a given time the sum of (i) with respect to any of
such Unconsolidated Affiliate's Properties under construction, the Parent's
Ownership Share of the book value of Construction in Process for such Property
as of the end of the Parent's fiscal quarter most recently ended and (ii) with
respect to any of such Unconsolidated Affiliate's Properties which have been
completed, the Parent's Ownership Share of Capitalized EBITDA of such
Unconsolidated Affiliate attributable to such Properties.
"ASSIGNEE" has the meaning given that term in Section 13.6.(d).
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" means an Assignment and Acceptance
Agreement among a Lender, an Assignee and the Agent, substantially in the form
of Exhibit A.
"BASE RATE" means the greater of (a) the rate of interest per annum
publicly announced from time to time by the Lender then acting as Agent at its
principal office in San Francisco, California as its "prime rate" (which rate of
interest may not be the lowest rate charged by the Lender then acting as Agent
or any of the other Lenders on similar loans) and (b) the Federal Funds Rate
PLUS one-half of one percent (0.5%). Each change in the Base Rate shall become
effective without prior notice to the Borrower or the Lenders automatically as
of the opening of business on the date of such change in the Base Rate.
-2-
"BASE RATE LOAN" means a Revolving Loan bearing interest at a rate based
on the Base Rate.
"BENEFIT ARRANGEMENT" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the ERISA
Group.
"BORROWER" has the meaning set forth in the introductory paragraph hereof
and shall include the Borrower's successors and permitted assigns.
"BUSINESS DAY" means (a) any day other than a Saturday, Sunday or other
day on which banks in Philadelphia, Pennsylvania, Washington, D.C., or San
Francisco, California are authorized or required to close and (b) with reference
to a LIBOR Loan, any such day that is also a day on which dealings in Dollar
deposits are carried out in the London interbank market.
"CAPITALIZATION RATE" means (a) with respect to EBITDA attributable to
office Properties or Properties held through a ground lease, 10% and (b) in all
other cases, 9.5%.
"CAPITALIZED EBITDA" means, with respect to a Person and as of a given
date, (a) such Person's EBITDA for the fiscal quarter most recently ended TIMES
(b) 4 and DIVIDED BY (c) the applicable Capitalization Rate. In determining
Capitalized EBITDA, EBITDA attributable to real estate properties either
acquired or disposed of by such Person during such fiscal quarter shall be
disregarded.
"CAPITALIZED LEASE OBLIGATION" means obligations under a lease that is
required to be capitalized for financial reporting purposes in accordance with
GAAP. The amount of a Capitalized Lease Obligation is the capitalized amount of
such obligation determined in accordance with GAAP.
"COMMITMENT" means, as to each Lender, such Lender's obligation to make
Revolving Loans pursuant to Section 2.1. and to issue (in the case of the Agent)
or participate in (in the case of the Lenders) Letters of Credit pursuant to
Section 2.2.(a) and 2.2.(i) respectively, in an amount up to, but not exceeding
(but in the case of the Agent excluding the aggregate amount of participations
in the Letters of Credit held by other Lenders) the amount set forth for such
Lender on its signature page hereto as such Lender's "Commitment Amount" or as
set forth in the applicable Assignment and Acceptance Agreement, as the same may
be reduced from time to time pursuant to Section 2.12. or otherwise pursuant to
the terms of this Agreement or as appropriate to reflect any assignments to or
by such Lender effected in accordance with Section 13.6.
"COMMITMENT PERCENTAGE" means, as to each Lender, the ratio, expressed as
a percentage, of (a) the amount of such Lender's Commitment to (b) the aggregate
amount of the Commitments of all Lenders hereunder; provided, however, that if
at the time of determination the Commitments have terminated or been reduced to
zero, the "Commitment Percentage" of each Lender shall be the Commitment
Percentage of such Lender in effect immediately prior to such termination or
reduction.
"COMPLIANCE CERTIFICATE" has the meaning given that term in Section 9.3.
"CONSTRUCTION IN PROCESS" means construction in process as determined in
accordance with GAAP.
"CONTINUE", "CONTINUATION" and "CONTINUED" each refers to the continuation
of a LIBOR Loan from one Interest Period to another Interest Period pursuant to
Section 2.9.
"CONVERT", "CONVERSION" and "CONVERTED" each refers to the conversion of a
Revolving Loan of one Type into a Revolving Loan of another Type pursuant to
Section 2.10.
"CREDIT EVENT" means any of the following: (a) the making (or deemed
making) of any Loan, (b) the Conversion of a Revolving Loan, (c) the
Continuation of a LIBOR Loan and (d) the issuance of a Letter of Credit.
"DEBT SERVICE" means, with respect to any Person and for any period, the
sum of (a) Interest Expense of such Person for such period PLUS (b) regularly
scheduled principal payments on Indebtedness of such Person during
-3-
such period, other than any balloon, bullet or similar principal payment payable
on any Indebtedness of such Person which repays such Indebtedness in full.
"DEFAULT" means any of the events specified in Section 11.1., whether or
not there has been satisfied any requirement for the giving of notice, the lapse
of time, or both.
"DEFAULTING LENDER" has the meaning set forth in Section 3.10.
"DERIVATIVES CONTRACT" means any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement. Not in limitation of the
foregoing, the term "Derivatives Contract" includes any and all transactions of
any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement, including any such
obligations or liabilities under any such master agreement.
"DEVELOPMENT PROPERTY" means a Property currently under development that
has not achieved an Occupancy Rate of 80% or more or on which the improvements
(other than tenant improvements on unoccupied space) related to the development
have not been completed. The term "Development Property" shall include real
property of the type described in the immediately preceding sentence to be (but
not yet) acquired by the Borrower, any Subsidiary or any Unconsolidated
Affiliate upon completion of construction pursuant to a contract in which the
seller of such real property is required to develop or renovate prior to, and as
a condition precedent to, such acquisition.
"DOLLARS" or "$" means the lawful currency of the United States of
America.
"EBITDA" means, with respect to any Person for any period and without
duplication, net earnings (loss) of such Person for such period (excluding
equity in net earnings or net loss of Unconsolidated Affiliates) excluding the
following amounts (but only to the extent included in determining net earnings
(loss) for such period): (a) depreciation and amortization expense and other
non-cash charges of such Person for such period; (b) interest expense of such
Person for such period; (c) income tax expense of such Person in respect of such
period; (d) extraordinary and nonrecurring gains and losses of such Person for
such period, including without limitation, gains and losses from the sale of
assets, write-offs and forgiveness of debt; and (e) the portion of EBITDA
allocable to interests in Unconsolidated Affiliates. For purposes of this
definition, net earnings (loss) shall be determined before minority interests
and distributions to holders of Preferred Stock.
"EFFECTIVE DATE" means the later of (a) the Agreement Date and (b) the
date on which all of the conditions precedent set forth in Section 6.1. shall
have been fulfilled or waived in writing by the Agent.
"ELIGIBLE ASSIGNEE" means any Person who is: (i) currently a Lender; (ii)
a commercial bank, trust company, insurance company, investment bank or pension
fund organized under the laws of the United States of America, or any state
thereof, and having total assets in excess of $5,000,000,000; (iii) a savings
and loan association or savings bank organized under the laws of the United
States of America, or any state thereof, and having a tangible net worth of at
least $500,000,000; or (iv) a commercial bank organized under the laws of any
other country which is a member of the Organization for Economic Cooperation and
Development ("OECD"), or a political subdivision of any such country, and having
total assets in excess of $10,000,000,000, provided that such bank is acting
through a branch or agency located in the United States of America. If such
Person is not currently a Lender, such Person's senior unsecured long term
indebtedness must be rated BBB or higher by S&P, Baa2 or higher by Xxxxx'x, or
the equivalent or higher of either such rating by another Rating Agency
acceptable to the Agent.
-4-
"ELIGIBLE PROPERTY" means a completed industrial or office Property which
satisfies all of the following requirements: (a) such Property is owned in fee
simple by the Parent, the Borrower or a Wholly Owned Subsidiary of the Borrower
or is a Qualified Lease Property; (b) such Property is located in a State of the
United States of America or in the District of Columbia; (c) regardless of
whether such Property is owned or leased by the Borrower or a Subsidiary, the
Borrower has the right directly, or indirectly through a Subsidiary, to take the
following actions without the need to obtain the consent of any Person: (i) to
create Liens on such Property as security for Indebtedness of the Parent, the
Borrower or such Subsidiary, as applicable, and (ii) to sell, transfer or
otherwise dispose of such Property; (d) neither such Property, nor if such
Property is owned by a Subsidiary, any of the Borrower's direct or indirect
ownership interest in such Subsidiary, is subject to (i) any Lien other than
Permitted Liens or (ii) any Negative Pledge; (e) the Occupancy Rate of such
Property equals or exceeds 80.0%; PROVIDED, HOWEVER, that the Occupancy Rate for
any industrial Property may be less than 80.0% for a period (including any
period commencing prior to the Agreement Date) not to exceed nine consecutive
calendar months; (f) such Property is free of all structural defects, title
defects, environmental conditions or other adverse matters except for defects,
conditions or matters individually or collectively which are not material to the
operation of such Property; and (g) the Parent or the Borrower has obtained a
"Phase I" environmental assessment or other appropriate environmental assessment
with respect to such Property, and such assessment does not indicate the
existence of any condition that has, or could reasonably be expected to have, a
materially adverse effect on the condition, fair market value or net operating
income of such Property. An Eligible Property of a Subsidiary shall cease to be
an Eligible Property if any event or condition shall occur or exist that could
reasonably be expected to have a materially adverse effect on either (a) the
validity or enforceability as against such Subsidiary of any of the Loan
Documents to which such Subsidiary is a party or (b) the rights and remedies of
the Lenders and the Agent as against such Subsidiary under any of the Loan
Documents to which such Subsidiary is a party.
"ENVIRONMENTAL INDEMNITY AGREEMENT" has the meaning given that term in
Section 6.1.(a)(xx).
"ENVIRONMENTAL LAWS" means any Applicable Law relating to environmental
protection or the manufacture, storage, disposal or clean-up of Hazardous
Materials including, without limitation, the following: Clean Air Act, 42
U.S.C. Section 7401 et seq.; Federal Water Pollution Control Act, 33 U.S.C.
Section 1251 et seq.; Xxxxx Xxxxx Xxxxxxxx Xxx, 00 U.S.C. Section 6901 et
seq.; Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C. Section 9601 et seq.; National Environmental Policy Act, 42 U.S.C.
Section 4321 et seq.; regulations of the Environmental Protection Agency and
any applicable rule of common law and any judicial interpretation thereof
relating primarily to the environment or Hazardous Materials.
"EQUITY INTEREST" means, with respect to any Person, any share of capital
stock of (or other ownership or profit interests in) such Person, any warrant,
option or other right for the purchase or other acquisition from such Person of
any share of capital stock of (or other ownership or profit interests in) such
Person, any security convertible into or exchangeable for any share of capital
stock of (or other ownership or profit interests in) such Person or warrant,
right or option for the purchase or other acquisition from such Person of such
shares (or such other interests), and any other ownership or profit interest in
such Person (including, without limitation, partnership, member or trust
interests therein), whether voting or nonvoting, and whether or not such share,
warrant, option, right or other interest is authorized or otherwise existing on
any date of determination.
"EQUITY ISSUANCE" means any issuance or sale by a Person of any Equity
Interest.
"ERISA" means the Employee Retirement Income Security Act of 1974, as in
effect from time to time.
"ERISA GROUP" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"EVENT OF DEFAULT" means any of the events specified in Section 11.1.,
provided that any requirement for notice or lapse of time or any other condition
has been satisfied.
"EXISTING AGENT" has the meaning given that term in the first "WHEREAS"
clause of this Agreement.
-5-
"EXISTING
CREDIT AGREEMENT" has the meaning given that term in the first
"WHEREAS" clause of this Agreement.
"EXISTING LENDERS" has the meaning given that term in the first "WHEREAS"
clause of this Agreement.
"FAIR MARKET VALUE" means, with respect to any asset, the price which
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of which is under pressure
or compulsion to complete the transaction. Except as otherwise provided herein,
Fair Market Value shall be determined by the Board of Trustees of the Borrower
(or an authorized committee thereof) acting in good faith conclusively evidenced
by a board resolution thereof delivered to the Agent or, with respect to any
asset valued at less than $2,500,000, such determination may be made by the
chief financial officer or executive vice president of the Borrower evidenced by
an officer's certificate delivered to the Agent.
"FEDERAL FUNDS RATE" means, for any given day, the rate per annum (rounded
upward to the nearest 1/100th of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such given day, as published by the
Federal Reserve Bank of
New York on the Business Day immediately following such
given day, provided that (a) if such given day is not a Business Day, the
Federal Funds Rate for such given day shall be such rate on such transactions on
the immediately preceding Business Day, and (b) if no such rate is so published
on the Business Day immediately following such given day, the Federal Funds Rate
for such given day shall be the average rate quoted to the Agent by federal
funds dealers selected by the Agent on such given day on such transaction as
reasonably determined by the Agent.
"FEES" means the fees and commissions provided for or referred to in
Section 3.6. and any other fees payable by the Borrower hereunder or under any
other Loan Document.
"FIXED CHARGES" means, with respect to a Person and for a given period,
the sum of (a) Debt Service, PLUS (b) the aggregate of all dividends paid or
accrued by such Person on any Preferred Stock during such period.
"FLEET ASSIGNMENT AGREEMENT" has the meaning given that term in the second
"WHEREAS" clause of this Agreement.
"FUNDS FROM OPERATIONS" means net income (computed in accordance with
GAAP), excluding gains (or losses) from sales of property, plus depreciation and
amortization, and after adjustments for unconsolidated partnerships and joint
ventures. Adjustments for unconsolidated partnership and joint ventures will be
calculated to reflect funds from operations on the same basis. For purposes of
this Agreement, Funds From Operations shall be calculated consistent with the
White Paper on Funds From Operations dated October 1999 issued by National
Association of Real Estate Investments Trusts, Inc. ("NAREIT"), as supplemented
by the National Policy Bulletin dated November 8, 1999 issued by NAREIT, but
without giving effect to any supplements, amendments or other modifications
promulgated after the Agreement Date.
"GAAP" means United States generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, which are applicable
to the circumstances as of the date of determination.
"GOVERNMENTAL APPROVALS" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"GOVERNMENTAL AUTHORITY" means any national, state or local government
(whether domestic or foreign), any political subdivision thereof or any other
governmental, quasi-governmental, judicial, public or statutory instrumentality,
authority, body, agency, bureau or entity (including, without limitation, the
Federal Deposit Insurance Corporation, the Comptroller of the Currency or the
Federal Reserve Board, any central bank or any comparable authority) or any
arbitrator with authority to bind a party at law.
-6-
"GROSS ASSET VALUE" means, at a given time, the sum (without duplication)
of (a) the Operating Property Value of the Parent and the Subsidiaries, PLUS (b)
all of the Parent's and its Subsidiaries' cash and cash equivalents and other
escrowed cash as of the end of such fiscal quarter, PLUS (c) the book value of
(i) all Construction in Process for Properties acquired for development by the
Parent or any Subsidiary and (ii) all unimproved real property, in each case as
such book value is set forth on the Parent's consolidated balance sheet most
recently delivered to the Lenders under Section 9.1. or 9.2., PLUS (d) the
purchase price paid by the Parent or any Subsidiary (less any amounts paid to
the Parent or such Subsidiary as a purchase price adjustment) for any Property
(other than a Development Property) acquired by the Parent or such Subsidiary
during the Parent's fiscal quarter most recently ended, PLUS (e) with respect to
each of the Parent's Unconsolidated Affiliates, (i) with respect to any of such
Unconsolidated Affiliate's Properties under construction, the Parent's Ownership
Share of the book value of Construction in Process for such Property as of the
end of such fiscal quarter and (ii) with respect to any of such Unconsolidated
Affiliate's Properties which have been completed, the Parent's Ownership Share
of Capitalized EBITDA of such Unconsolidated Affiliate attributable to such
Properties, PLUS (f) the contractual purchase price of any real property subject
to a purchase obligation, repurchase obligation or forward commitment which at
such time could be specifically enforced by the seller of such real property,
but only to the extent such obligations are included in the Parent's or any
Subsidiary's Total Liabilities, PLUS (g) in the case of any real property
subject to a purchase obligation, repurchase obligation or forward commitment of
the Parent or any Subsidiary which at such time could not be specifically
enforced by the seller of such real property, the aggregate amount of due
diligence deposits, xxxxxxx money payments and other similar payments made under
the applicable contract which, at such time, would be subject to forfeiture upon
termination of the contract, but only to the extent such amounts are included in
the Parent's or any Subsidiary's Total Liabilities, plus (h) the amount, if any,
that would be payable to the Parent or any Subsidiary under any Derivative
Contract of the Parent or such Subsidiary (determined on a net basis regardless
of the applicability of any netting agreement relating to such Derivatives
Contract) if such Derivatives Contract were terminated at such time.
"GUARANTOR" means any Person that is party to the Guaranty as a
"Guarantor" and shall in any event include each Wholly Owned Subsidiary of the
Parent or the Borrower.
"GUARANTY", "GUARANTEED" or to "GUARANTEE" as applied to any obligation
means and includes: (a) a guaranty (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), directly or
indirectly, in any manner, of any part or all of such obligation, or (b) an
agreement, direct or indirect, contingent or otherwise, and whether or not
constituting a guaranty, the practical effect of which is to assure the payment
or performance (or payment of damages in the event of nonperformance) of any
part or all of such obligation whether by: (i) the purchase of securities or
obligations, (ii) the purchase, sale or lease (as lessee or lessor) of property
or the purchase or sale of services primarily for the purpose of enabling the
obligor with respect to such obligation to make any payment or performance (or
payment of damages in the event of nonperformance) of or on account of any part
or all of such obligation, or to assure the owner of such obligation against
loss, (iii) the supplying of funds to or in any other manner investing in the
obligor with respect to such obligation, (iv) repayment of amounts drawn by
beneficiaries of letters of credit (including Letters of Credit), or (v) the
supplying of funds to or investing in a Person on account of all or any part of
such Person's obligation under a Guaranty of any obligation or indemnifying or
holding harmless, in any way, such Person against any part or all of such
obligation. As the context requires, "Guaranty" shall also mean the guaranty
executed and delivered pursuant to Section 6.1. and substantially in the form of
Exhibit B.
"HAZARDOUS MATERIALS" means all or any of the following: (a) substances
that are defined or listed in, or otherwise classified pursuant to, any
applicable Environmental Laws as "hazardous substances", "hazardous materials",
"hazardous wastes", "toxic substances" or any other formulation intended to
define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity,
"TCLP" toxicity, or "EP toxicity"; (b) oil, petroleum or petroleum derived
substances, natural gas, natural gas liquids or synthetic gas and drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources; (c)
any flammable substances or explosives or any radioactive materials; (d)
asbestos in any form; and (e) electrical equipment which contains any oil or
dielectric fluid containing levels of polychlorinated biphenyls in excess of
fifty parts per million.
"INDEBTEDNESS" means, with respect to a Person, at the time of computation
thereof, all of the following (without duplication): (a) all obligations of such
Person in respect of money borrowed; (b) all obligations of such
-7-
Person (other than trade debt incurred in the ordinary course of business),
whether or not for money borrowed (i) represented by notes payable, or drafts
accepted, in each case representing extensions of credit, (ii) evidenced by
bonds, debentures, notes or similar instruments, or (iii) constituting purchase
money indebtedness, conditional sales contracts, title retention debt
instruments or other similar instruments, upon which interest charges are
customarily paid or that are issued or assumed as full or partial payment for
property; (c) Capitalized Lease Obligations of such Person; (d) all
reimbursement obligations of such Person under or in respect of any letters of
credit or acceptances (whether or not the same have been presented for payment);
(e) all Off Balance Sheet Liabilities of such Person; and (f) all Indebtedness
of other Persons which (i) such Person has Guaranteed or is otherwise recourse
to such Person or (ii) is secured by a Lien on any property of such Person.
"INDEMNIFIED PARTY" has the meaning given that term in Section 13.10.(a).
"INDEMNITY PROCEEDING" has the meaning given that term in Section
13.10.(a).
"INTELLECTUAL PROPERTY" has the meaning given that term in Section
7.1.(s).
"INTEREST EXPENSE" means, with respect to a Person and for any period, the
sum of the following (without duplication): (a) the total consolidated interest
expense (including, without limitation, capitalized interest expense (other than
capitalized interest funded from a construction loan interest reserve account
held by another lender and not included in the calculation of cash for balance
sheet reporting purposes and capitalized interest funded from a construction
loan) and interest expense attributable to Capitalized Lease Obligations) of
such Person and in any event shall include all letter of credit fees and all
interest expense with respect to any Indebtedness in respect of which such
Person is wholly or partially liable whether pursuant to any repayment, interest
carry, performance Guarantee (other than Guarantees which are solely Guarantees
of performance and not of payment and other Guarantees of such Person for
liabilities arising from customary exceptions to Nonrecourse Indebtedness, such
as for fraud, misapplication of funds, environmental indemnities, and other
similar customary exceptions to recourse liability) or otherwise, to the extent
of such liability, PLUS (b) such Person's Ownership Share of all paid or accrued
interest expense for such period of Unconsolidated Affiliates of such Person.
"INTEREST PERIOD" means, with respect to any LIBOR Loan, each period
commencing on the date such LIBOR Loan is made or the last day of the next
preceding Interest Period for such Loan and ending on the numerically
corresponding day in the first, second, third or sixth calendar month
thereafter, as the Borrower may select in a Notice of Borrowing, Notice of
Continuation or Notice of Conversion, as the case may be, except that each
Interest Period that commences on the last Business Day of a calendar month (or
on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month. Notwithstanding the foregoing: (a) if any
Interest Period would otherwise end after the Termination Date, such Interest
Period shall end on the Termination Date; (b) each Interest Period that would
otherwise end on a day which is not a Business Day shall end on the next
succeeding Business Day (or, if such next succeeding Business Day falls in the
next succeeding calendar month, on the next preceding Business Day); and (c)
notwithstanding the immediately preceding clauses (a) and (b), no Interest
Period shall have a duration of less than one month and, if the Interest Period
for any Loan would otherwise be a shorter period, such Loan shall not be
available hereunder for such period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended.
"INVESTMENT" means, with respect to any Person, any acquisition or
investment (whether or not of a controlling interest) by such Person, whether by
means of (a) the purchase or other acquisition of any Equity Interest in another
Person, (b) a loan, advance or extension of credit to, capital contribution to,
Guaranty of Indebtedness of, or purchase or other acquisition of any
Indebtedness of, another Person, including any partnership or joint venture
interest in such other Person, or (c) the purchase or other acquisition (in one
transaction or a series of transactions) of assets of another Person that
constitute the business or a division or operating unit of another Person. Any
commitment or option to make an Investment in any other Person shall constitute
an Investment. Except as expressly provided otherwise, for purposes of
determining compliance with any covenant contained in a Loan Document, the
amount of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such
Investment.
-8-
"L/C COMMITMENT AMOUNT" equals $10,000,000 as such amount may be reduced
from time to time in accordance with the terms hereof.
"LENDER" means each financial institution from time to time party hereto
as a "Lender", together with its respective successors and permitted assigns,
and, as the context requires, includes the Swingline Lender.
"LENDING OFFICE" means, for each Lender and for each Type of Loan, the
office of such Lender specified as such on its signature page hereto or in the
applicable Assignment and Acceptance Agreement, or such other office of such
Lender as such Lender may notify the Agent in writing from time to time.
"LETTER OF CREDIT" has the meaning given that term in Section 2.2.(a).
"LETTER OF CREDIT COLLATERAL ACCOUNT" means a special deposit account
maintained by the Agent and under its sole dominion and control.
"LETTER OF CREDIT DOCUMENTS" means, with respect to any Letter of Credit,
collectively, any application therefor, any certificate or other document
presented in connection with a drawing under such Letter of Credit and any other
agreement, instrument or other document governing or providing for (a) the
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such obligations.
"LETTER OF CREDIT LIABILITIES" means, without duplication, at any time and
in respect of any Letter of Credit, the sum of (a) the Stated Amount of such
Letter of Credit plus (b) the aggregate unpaid principal amount of all
Reimbursement Obligations of the Borrower at such time due and payable in
respect of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Lender (other than the Lender then acting as Agent) shall be deemed
to hold a Letter of Credit Liability in an amount equal to its participation
interest under Section 2.2.(i) in the related Letter of Credit, and the Lender
then acting as Agent shall be deemed to hold a Letter of Credit Liability in an
amount equal to its retained interest in the related Letter of Credit after
giving effect to the acquisition by the Lenders (other than the Lender then
acting as Agent) of their participation interests under such Section.
"LIBOR" means, for any LIBOR Loan for any Interest Period therefor, the
average rate of interest per annum (rounded upwards, if necessary, to the next
highest 1/100th of 1%) at which deposits in immediately available funds in
Dollars are offered to the Lender then acting as Agent (at approximately 9:00
a.m., two Business Days prior to the first day of such Interest Period) by first
class banks in the interbank Eurodollar market where the Eurodollar operations
of the Lender then acting as Agent are customarily conducted, for delivery on
the first day of such Interest Period, such deposits being for a period of time
equal or comparable to such Interest Period and in an amount equal to or
comparable to the principal amount of the LIBOR Loan to which such Interest
Period relates. Each determination of LIBOR by the Lender then acting as Agent
shall, in absence of demonstrable error, be conclusive and binding.
"LIBOR LOAN" means a Revolving Loan bearing interest at a rate based on
LIBOR.
"LIEN" as applied to the property of any Person means: (a) any security
interest, encumbrance, mortgage, deed to secure debt, deed of trust, pledge,
lien, charge or lease constituting a Capitalized Lease Obligation, conditional
sale or other title retention agreement, or other security title or encumbrance
of any kind in respect of any property of such Person, or upon the income or
profits therefrom; (b) any arrangement under which any property of such Person
is transferred or sequestered for the purpose of subjecting the same to the
payment of Indebtedness or performance of any other obligation in priority to
the payment of the general, unsecured creditors of such Person; (c) the filing
of any financing statement under the UCC or its equivalent in any jurisdiction;
and (d) any agreement by such Person to grant, give or otherwise convey any of
the foregoing.
"LOAN" means a Revolving Loan or a Swingline Loan.
"LOAN DOCUMENT" means this Agreement, each Note, each Letter of Credit
Document, the
New York Collateral Documents, the Mortgage Modifications and each
other document or instrument now or hereafter executed and delivered by a Loan
Party in connection with, pursuant to or relating to this Agreement.
-9-
"LOAN PARTY" means each of the Parent, the Borrower, each other Person who
guarantees all or a portion of the Obligations and/or who pledges any collateral
to secure all or a portion of the Obligations. Schedule 1.1.(A) sets forth the
Loan Parties in addition to the Parent and the Borrower as of the Agreement
Date.
"MATERIAL ADVERSE EFFECT" means a materially adverse effect on (a) the
business, assets, liabilities, financial condition, results of operations or
business prospects of the Parent and its Subsidiaries taken as a whole, or the
Borrower and its Subsidiaries taken as a whole, (b) the ability of the Borrower
or the Parent to perform its obligations under any Loan Document to which it is
a party, (c) the validity or enforceability as against the Parent or the
Borrower of any of the Loan Documents to which the Parent or the Borrower is a
party, (d) the rights and remedies of the Lenders and the Agent as against the
Parent or the Borrower under any of the Loan Documents to which the Parent or
the Borrower is a party or (e) the timely payment of the principal of or
interest on the Loans or other amounts payable in connection therewith.
"MATERIAL CONTRACT" means any contract or other arrangement (other than
Loan Documents), whether written or oral, to which the Parent, the Borrower, any
Subsidiary or any other Loan Party is a party as to which the breach,
nonperformance, cancellation or failure to renew by any party thereto could have
a Material Adverse Effect.
"MATERIAL INDEBTEDNESS" means, with respect to any Person, any (a)
Nonrecourse Indebtedness having an aggregate outstanding principal amount of
$25,000,000 or more or (b) other Indebtedness (other than the Loans) having an
aggregate outstanding principal amount of $10,000,000 or more.
"MATERIAL PLAN" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $1,000,000.
"MAXIMUM AVAILABILITY" means, at any time, an amount equal to the positive
difference, if any, of (a) the Unencumbered Pool Value MINUS (b) the product of
(i) all Unsecured Liabilities of the Parent and its Subsidiaries determined on a
consolidated basis, and (ii) 1.80.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MORTGAGE" means a mortgage, deed of trust, deed to secure debt or similar
security instrument made by a Person owning an interest in real property
granting a Lien on such interest in real property as security for the payment of
Indebtedness of such Person.
"MORTGAGE ASSIGNMENT" has the meaning given that term in Section
6.1.(a)(xvi).
"MORTGAGE MODIFICATION" has the meaning given that term in Section
6.1.(a)(xvii).
"MULTIEMPLOYER PLAN" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"NEGATIVE PLEDGE" means, with respect to a given asset, any provision of a
document, instrument or agreement (other than any Loan Document) which prohibits
or purports to prohibit the creation of any Lien on such asset as security for
Indebtedness of the Person owning such asset or any other Person.
"NET OPERATING INCOME" means, for any Property and for a given period, the
sum (without duplication) of (a) rents and other revenues received in the
ordinary course from such Property (excluding pre-paid rents and revenues and
security deposits except to the extent applied in satisfaction of tenants'
obligations for rent) MINUS (b) all expenses paid or accrued related to the
ownership, operation or maintenance of such Property (other than those expenses
normally covered by a management fee), including but not limited to, taxes,
assessments and the like, insurance, utilities, payroll costs, maintenance,
repair and landscaping expenses, marketing expenses, and general and
administrative expenses (including an appropriate allocation for legal,
accounting, advertising, marketing and other expenses incurred in connection
with such Property, but specifically excluding general
-10-
overhead expenses of the Borrower and its Subsidiaries) MINUS (c) the Reserve
for Replacements for such Property for such period MINUS (d) the greater of (i)
the actual property management fee paid to any Person that is not an Affiliate,
during such period with respect to such Property and (ii) an imputed management
fee in an amount equal to (A) 2.0% of the gross revenues for such Property for
such period if such Property is an industrial Property, or (B) 4.5% of the gross
revenues for such Property for such period if such Property is an office
Property, all as determined in accordance with GAAP.
"NET PROCEEDS" means with respect to an Equity Issuance by a Person, the
aggregate amount of all cash or the Fair Market Value of all other property
received by such Person in respect of such Equity Issuance net of investment
banking fees, legal fees, accountants fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred by such
Person in connection with such Equity Issuance.
"
NEW YORK COLLATERAL DOCUMENTS" means each of the Mortgages described on
Schedule 1.1.(B).
"NON-GUARANTOR ENTITY" means: (a) any Subsidiary that is not required
to become a party to the Guaranty under Section 8.14.; and (b) any
Unconsolidated Affiliate of the Parent.
"NONRECOURSE INDEBTEDNESS" means, with respect to a Person, Indebtedness
for borrowed money in respect of which recourse for payment (except for
customary exceptions for fraud, misapplication of funds, environmental
indemnities, and other similar customary exceptions to recourse liability) is
contractually limited to specific assets of such Person encumbered by a Lien
securing such Indebtedness.
"NOTE" means a Revolving Note or a Swingline Note.
"NOTICE OF BORROWING" means a notice substantially in the form of Exhibit
C to be delivered to the Agent pursuant to Section 2.1.(b) evidencing the
Borrower's request for a borrowing of Revolving Loans.
"NOTICE OF CONTINUATION" means a notice substantially in the form of
Exhibit D to be delivered to the Agent pursuant to Section 2.9. evidencing the
Borrower's request for the Continuation of a LIBOR Loan.
"NOTICE OF CONVERSION" means a notice substantially in the form of Exhibit
E to be delivered to the Agent pursuant to Section 2.10. evidencing the
Borrower's request for the Conversion of a Loan from one Type to another Type.
"NOTICE OF SWINGLINE BORROWING" means a notice substantially in the form
of Exhibit F to be delivered to the Swingline Lender pursuant to Section 2.3.(b)
evidencing the Borrower's request for a Swingline Loan.
"OBLIGATIONS" means, individually and collectively: (a) the aggregate
principal balance of, and all accrued and unpaid interest on, all Loans; (b) all
Reimbursement Obligations and all other Letter of Credit Liabilities; and (c)
all other indebtedness, liabilities, obligations, covenants and duties of the
Borrower or any of the other Loan Parties owing to the Agent or any Lender of
every kind, nature and description, under or in respect of this Agreement or any
of the other Loan Documents, including, without limitation, the Fees and
indemnification obligations, whether direct or indirect, absolute or contingent,
due or not due, contractual or tortious, liquidated or unliquidated, and whether
or not evidenced by any promissory note.
"OCCUPANCY RATE" means, with respect to a Property at any time, the ratio,
expressed as a percentage, of (a) the net rentable square footage of such
Property actually occupied by tenants paying rent pursuant to binding leases as
to which no monetary default exists following the expiration of applicable grace
periods or no other event of default has been declared to (b) the aggregate net
rentable square footage of such Property. For purposes of this definition, the
Agent may determine in its reasonable discretion that a tenant that does not
otherwise occupy a Property but that is paying rent pursuant to a binding lease
as to which no monetary default exists, qualifies as occupying such Property due
to acceptable credit of such tenant and the overall occupancy of all Properties
of the Parent and its Subsidiaries; provided, however, the provisions of this
sentence may not apply to more than five unaffiliated tenants at any one time.
-11-
"OFF BALANCE SHEET LIABILITIES" means, with respect to any Person, (a) any
repurchase obligation or liability, contingent or otherwise, of such Person with
respect to any accounts or notes receivable sold, transferred or otherwise
disposed of by such Person, (b) any repurchase obligation or liability,
contingent or otherwise, of such Person with respect to property or assets
leased by such Person as lessee and (c) all obligations, contingent or
otherwise, of such Person under any synthetic lease, tax retention operating
lease, off balance sheet loan or similar off balance sheet financing if the
transaction giving rise to such obligation (i) is considered indebtedness for
borrowed money for tax purposes but is classified as an operating lease or (ii)
does not (and is not required pursuant to GAAP to) appear as a liability on the
balance sheet of such Person.
"OPERATING PROPERTY VALUE" means, with respect to a Person and as of a
given date, such Person's Capitalized EBITDA (excluding EBITDA attributable to
Development Properties and Redevelopment Properties) for the fiscal quarter most
recently ended.
"OWNERSHIP SHARE" means, with respect to any Subsidiary of a Person (other
than a Wholly Owned Subsidiary) or any Unconsolidated Affiliate of a Person, the
greater of (a) such Person's relative nominal direct and indirect ownership
interest (expressed as a percentage) in such Subsidiary or Unconsolidated
Affiliate or (b) subject to compliance with Section 9.4.(q), such Person's
relative direct and indirect economic interest (calculated as a percentage) in
such Subsidiary or Unconsolidated Affiliate determined in accordance with the
applicable provisions of the declaration of trust, articles or certificate of
incorporation, articles of organization, partnership agreement, joint venture
agreement or other applicable organizational document of such Subsidiary or
Unconsolidated Affiliate. For purposes of this definition, if the Borrower's
nominal direct and indirect ownership interest in such Subsidiary or
Unconsolidated Affiliate is less than its direct and indirect economic interest
solely because of an arrangement providing for an increased economic interest
contingent upon the occurrence of specified performance levels or other events
or other promoted interest arrangement, such as under the applicable
organizational documents of such Subsidiary or Unconsolidated Affiliate, then
the Borrower's economic interest in such Subsidiary or Unconsolidated Affiliate,
without giving effect to such promoted interest, shall constitute its "Ownership
Share."
"PARENT" has the meaning set forth in the introductory paragraph hereof
and shall include the Parent's successors and permitted assigns.
"PARTICIPANT" has the meaning given that term in Section 13.6.(c).
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
agency.
"PERMITTED LIENS" means, with respect to any asset or property of a
Person, (a) Liens securing taxes, assessments and other charges or levies
imposed by any Governmental Authority (excluding any Lien imposed pursuant to
any of the provisions of ERISA or pursuant to any Environmental Laws) or the
claims of materialmen, mechanics, carriers, warehousemen or landlords for labor,
materials, supplies or rentals incurred in the ordinary course of business,
which are not at the time required to be paid or discharged under Section 8.6.;
(b) Liens consisting of deposits or pledges made, in the ordinary course of
business, in connection with, or to secure payment of, obligations under
workmen's compensation, unemployment insurance or similar Applicable Laws; (c)
Liens consisting of encumbrances in the nature of zoning restrictions,
easements, and rights or restrictions of record on the use of real property,
which do not materially detract from the value of such property for its intended
business use or impair the intended business use thereof in the business of such
Person; (d) the rights of tenants under leases or subleases not interfering with
the ordinary conduct of business of such Person; and (e) Liens in favor of the
Agent for the benefit of the Lenders.
"PERSON" means an individual, corporation, partnership, limited liability
company, association, trust or unincorporated organization, or a government or
any agency or political subdivision thereof.
"PLAN" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
-12-
"POST-DEFAULT RATE" means, in respect of any principal of any Loan or any
other Obligation that is not paid when due (whether at stated maturity, by
acceleration, by optional or mandatory prepayment or otherwise), a rate per
annum equal to five percent (5.0%) plus the Base Rate as in effect from time to
time.
"PREFERRED STOCK" means, with respect to any Person, shares of capital
stock of, or other equity interests in, such Person which are entitled to
preference or priority over any other capital stock of, or other equity interest
in, such Person in respect of the payment of dividends or distribution of assets
upon liquidation or both.
"PROPERTY" means a parcel (or group of related parcels) of real property
developed (or to be developed) for industrial or office use.
"QUALIFIED LEASED PROPERTY" means a Property leased by the Borrower or a
Wholly Owned Subsidiary of the Borrower pursuant to a ground lease containing
terms and conditions acceptable to the Agent in its sole discretion which must
provide protections for a potential leasehold mortgagee ("Mortgagee") which
include, among other things, (a) the right of the tenant to mortgage and
encumber its interest in the Property, (b) a remaining term of no less than 25
years from the Agreement Date, (c) the obligation of the landlord thereunder to
give the Mortgagee written notice of any defaults on the part of the tenant
thereunder, (d) that the lease will not be terminated until the Mortgagee has
received notice of a default and has had a reasonable opportunity to cure or
complete foreclosures, and fails to do so, (e) a new lease on the same terms to
the Mortgagee as tenant if the ground lease is terminated for any reasons, (f)
non-merger of the fee and leasehold estates, (g) free transferability of the
tenant's interest under the ground lease, including ability to sublease, (h)
that insurance obtained under the lease shall include standard mortgagee clauses
for the benefit of the Mortgagee, (i) that in the event of condemnation or other
taking or conveyance in lieu thereof, the tenant has the right to a separate
award for the value of the leasehold, (j) that insurance proceeds and
condemnation awards (from the fee interest as well as the leasehold interest)
will be applied pursuant to the terms of a leasehold mortgage, and (k) that the
Mortgagee's prior written consent is required for any adjustment of insurance
proceeds for a material casualty or condemnation awards relating to a material
condemnation.
"RATING AGENCY" means S&P, Moody's or any other nationally recognized
securities rating agency reasonably acceptable to the Agent.
"REDEVELOPMENT PROPERTY" means a Property (a) on which the existing
building or other improvements are or will be undergoing renovation and
redevelopment and for which any of the following has occurred (i) construction
has commenced or (ii) the Parent, any Subsidiary or any Unconsolidated
Affiliate, as the case may be, has entered into a binding construction contract
or (iii) the Parent, any Subsidiary or any Unconsolidated Affiliate, as the case
may be, has entered into a binding agreement by an anchor tenant to enter into a
lease of any such Property and (b) either (i) that has not achieved an Occupancy
Rate of 80% or more or (ii) on which the improvements (other than tenant
improvements on unoccupied space) related to the renovation and redevelopment
have not been completed. The term "Redevelopment Property" shall include real
property of the type described in the immediately preceding sentence to be (but
not yet) acquired by any such Person upon completion of construction pursuant to
a contract in which the seller of such real property is required to renovate
prior to, and as a condition precedent to, such acquisition.
"REGISTER" has the meaning given that term in Section 13.6.(e).
"REGULATORY CHANGE" means, with respect to any Lender, any change
effective after the Agreement Date in Applicable Law (including without
limitation, Regulation D of the Board of Governors of the Federal Reserve
System) or the adoption or making after such date of any interpretation,
directive or request applying to a class of banks, including such Lender, of or
under any Applicable Law (whether or not having the force of law and whether or
not failure to comply therewith would be unlawful) by any Governmental Authority
or monetary authority charged with the interpretation or administration thereof
or compliance by any Lender with any request or directive regarding capital
adequacy.
"REIMBURSEMENT OBLIGATION" means the absolute, unconditional and
irrevocable obligation of the Borrower to reimburse the Agent for any drawing
honored by the Agent under a Letter of Credit.
-13-
"REIT" means a Person qualifying for treatment as a "real estate
investment trust" under the Internal Revenue Code.
"REQUISITE LENDERS" means, as of any date, Lenders having at least 66-2/3%
of the aggregate amount of the Commitments, or, if the Commitments have been
terminated or reduced to zero, Lenders holding at least 66-2/3% of the principal
amount of the Loans and Letter of Credit Liabilities.
"RESERVE FOR REPLACEMENTS" means, for any period and with respect to any
Property (other than a Development Property or a Redevelopment Property), an
amount equal to (i) the aggregate square footage of all completed space of such
Property TIMES (ii)(A) $0.15, if such Property is an industrial Property, or (B)
$0.30, if such Property is an office Property, TIMES (iii) the number of days in
such period, DIVIDED BY (iv) 365. If the term Reserve for Replacements is used
without reference to any specific Property, then it shall be determined on an
aggregate basis with respect to all Properties and the applicable Ownership
Shares of all real property of all Unconsolidated Affiliates. If a Property has
not been owned or leased by the Parent, the Borrower or any other Subsidiary for
at least one complete fiscal quarter of the Parent, then the Reserve for
Replacements for such Property shall be $0.
"RESTRICTED PAYMENT" means, with respect to a Person: (a) any dividend or
other distribution, direct or indirect, on account of any shares or other equity
units of any class of stock, partnership interest or other equity interest, as
applicable, of such Person now or hereafter outstanding, except a dividend
payable solely in shares or other equity units of that class of stock,
partnership interest or other equity interest, as applicable, to the holders of
that class; (b) any redemption, conversion, exchange, retirement, sinking fund
or similar payment, purchase or other acquisition for value, direct or indirect,
of any shares or other equity units of any class of stock, partnership interests
or other equity interests, as applicable, of such Person now or hereafter
outstanding, except, in the case of the Borrower, for any conversion or exchange
of partnership units in the Borrower solely for shares of capital stock of the
Parent; and (c) any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares or other equity
units of any class of stock, partnership interests or other equity interests, as
applicable, of such Person now or hereafter outstanding.
"REVOLVING LOAN" means a loan made by a Lender to the Borrower pursuant to
Section 2.1.(a).
"REVOLVING NOTE" has the meaning given that term in Section 2.11.
"SECURED INDEBTEDNESS" means, with respect to any Person, any Indebtedness
of such Person that is secured in any manner by any Lien on any real property
and shall include such Person's Ownership Share of the Secured Indebtedness of
any of such Person's Unconsolidated Affiliates.
"SECURED RECOURSE DEBT" means, with respect to any Person, all Secured
Indebtedness of such Person other than Nonrecourse Indebtedness of such Person.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time, together with all rules and regulations issued thereunder.
"SOLVENT" means, when used with respect to any Person, that (a) the fair
value and the fair salable value of its assets (excluding any Indebtedness due
from any affiliate of such Person) are each in excess of the fair valuation of
its total liabilities (including all contingent liabilities); (b) such Person is
able to pay its debts or other obligations in the ordinary course as they
mature; and (c) such Person has capital not unreasonably small to carry on its
business and all business in which it proposes to be engaged.
"S&P" means Standard & Poor's Rating Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"STATED AMOUNT" means the amount available to be drawn by a beneficiary
under a Letter of Credit from time to time, as such amount may be increased or
reduced from time to time in accordance with the terms of such Letter of Credit.
-14-
"SUBSIDIARY" means, for any Person, any corporation, partnership, limited
liability company or other entity of which at least a majority of the securities
or other ownership interests having by the terms thereof ordinary voting power
to elect a majority of the board of directors or other persons performing
similar functions of such corporation, partnership or other entity (without
regard to the occurrence of any contingency) is at the time directly or
indirectly owned or controlled by such Person or one or more Subsidiaries of
such Person or by such Person and one or more Subsidiaries of such Person.
"SUBSTANTIAL AMOUNT" means, at the time of determination thereof, an
amount in excess of 30.0% of total consolidated assets (exclusive of
depreciation) at such time of the Borrower and its Subsidiaries determined on a
consolidated basis.
"SWINGLINE COMMITMENT" means the Swingline Lender's obligation to make
Swingline Loans pursuant to Section 2.3. in an amount up to, but not exceeding,
$5,000,000, as such amount may be reduced from time to time in accordance with
the terms hereof.
"SWINGLINE LENDER" means Xxxxx Fargo Bank, National Association, together
with its respective successors and assigns.
"SWINGLINE LOAN" means a loan made by the Swingline Lender to the Borrower
pursuant to Section 2.3.(a).
"SWINGLINE NOTE" means a promissory note of the Borrower substantially in
the form of Exhibit G, payable to the order of the Swingline Lender in a
principal amount equal to the amount of the Swingline Commitment as originally
in effect and otherwise duly completed.
"SWINGLINE TERMINATION DATE" means the date which is seven Business Days
prior to the Termination Date.
"TANGIBLE NET WORTH" means, for any Person and as of a given date, such
Person's total consolidated stockholders' equity PLUS, in the case of the Parent
and its Subsidiaries, increases in accumulated depreciation accrued after the
Agreement Date MINUS (to the extent reflected in determining stockholders'
equity of such Person): (a) the amount of any write-up in the book value of any
assets contained in any balance sheet resulting from revaluation thereof or any
write-up in excess of the cost of such assets acquired, and (b) the aggregate of
all amounts appearing on the assets side of any such balance sheet for
franchises, licenses, permits, patents, patent applications, copyrights,
trademarks, service marks, trade names, goodwill, treasury stock, experimental
or organizational expenses and other like assets which would be classified as
intangible assets under GAAP, all determined on a consolidated basis.
"TAXES" has the meaning given that term in Section 3.11.
"TERMINATION DATE" means December 21, 2004.
"TOTAL BUDGETED COST" means, with respect to a Development Property or a
Redevelopment Property, and at any time, the aggregate amount of all costs
budgeted to be paid, incurred or otherwise expended or accrued by the Borrower,
a Subsidiary or an Unconsolidated Affiliate with respect to such Property to
achieve an Occupancy Rate of 100%, including without limitation, all amounts
budgeted with respect to all of the following: (a) acquisition of land and any
related improvements; (b) a reasonable and appropriate reserve for construction
interest; (c) a reasonable and appropriate operating deficit reserve; (d) tenant
improvements, (e) leasing commissions and (f) other hard and soft costs
associated with the development or redevelopment of such Property. With respect
to any Property to be developed in more than one phase, the Total Budgeted Cost
shall exclude budgeted costs (other than costs relating to acquisition of land
and related improvements) to the extent relating to any phase for which (i)
construction has not yet commenced and (ii) a binding construction contract has
not been entered into by the Borrower, any other Subsidiary or any
Unconsolidated Affiliate, as the case may be.
"TOTAL LIABILITIES" means, as to any Person as of a given date, all
liabilities which would, in conformity with GAAP, be properly classified as a
liability on a consolidated balance sheet of such Person as of such date, and in
any event shall include (without duplication): (a) all Indebtedness of such
Person (whether or not Nonrecourse
-15-
Indebtedness and whether or not secured by a Lien), including without
limitation, Capitalized Lease Obligations and reimbursement obligations with
respect to any letter of credit; (b) all accounts payable and accrued expenses
of such Person; (c) all purchase and repurchase obligations and forward
commitments of such Person to the extent such obligations or commitments are
evidenced by a binding purchase agreement (forward commitments shall include
without limitation (i) forward equity commitments and (ii) commitments to
purchase any real property under development, redevelopment or renovation); (d)
all unfunded obligations of such Person; (e) all lease obligations of such
Person (including ground leases) to the extent required under GAAP to be
classified as a liability on a balance sheet of such Person; (f) all contingent
obligations of such Person including, without limitation, all Guarantees of
Indebtedness by such Person (other than Guarantees which are solely Guarantees
of performance and not of payment and other Guarantees of such Person for
liabilities arising from customary exceptions to Nonrecourse Indebtedness, such
as for fraud, misapplication of funds, environmental indemnities, and other
similar customary exceptions to recourse liability); (g) all liabilities of any
Unconsolidated Affiliate of such Person, which liabilities such Person has
Guaranteed or is otherwise obligated on a recourse basis, including as a partner
in a partnership; (h) the amount of such Person's liabilities under any
Derivative Contract of such Person (after taking into account the effect of any
legally enforceable netting agreement relating to such Derivatives Contract), to
the extent required under GAAP to be classified as a liability on a balance
sheet of such Person; and (i) such Person's Ownership Share of the Indebtedness
of any Unconsolidated Affiliate of such Person, including Nonrecourse
Indebtedness of such Person. For purposes of clauses (c) and (d) of this
definition, the amount of Total Liabilities of a Person at any given time in
respect of (x) a contract to purchase or otherwise acquire unimproved or fully
developed real property shall be equal to (i) the total purchase price payable
by such Person under such contract if, at such time, the seller of such real
property would be entitled to specifically enforce such contract against such
Person, otherwise, (ii) to the extent funded, the aggregate amount of due
diligence deposits, xxxxxxx money payments and other similar payments made by
such Person under such contract which, at such time, would be subject to
forfeiture upon termination of such contract and (y) a contract relating to the
acquisition of real property which the seller is required to develop or renovate
prior to, and as a condition precedent to, such acquisition, shall equal the
maximum amount reasonably estimated to be payable by such Person under such
contract assuming performance by the seller of its obligations under such
contract, which amount shall include, without limitation, any amounts payable
after consummation of such acquisition which may based on certain performance
levels or other related criteria.
"TYPE" with respect to any Loan, refers to whether such Loan is a LIBOR
Loan or Base Rate Loan.
"UCC" means the Uniform Commercial Code as in effect in any applicable
jurisdiction.
"UNCONSOLIDATED AFFILIATE" means, with respect to any Person, any other
Person in whom such Person holds an Investment, which Investment is accounted
for in the financial statements of such Person on an equity basis of accounting
and whose financial results would not be consolidated under GAAP with the
financial results of such Person on the consolidated financial statements of
such Person.
"UNENCUMBERED NET OPERATING INCOME" means, for any period, the aggregate
Net Operating Income for such period of all Properties that were Unencumbered
Pool Properties for such entire period.
"UNENCUMBERED POOL CERTIFICATE" means a report, certified by the chief
financial officer or treasurer of the Parent, substantially in the form of
Exhibit H, setting forth the calculations required to establish the Unencumbered
Pool Values of each Unencumbered Pool Property as of a specified date, all in
form and detail satisfactory to the Agent.
"UNENCUMBERED POOL PROPERTIES" means those Eligible Properties that,
pursuant to the terms of this Agreement, are to be included when calculating the
Unencumbered Pool Value. A Property shall cease to be an Unencumbered Pool
Property if such Property shall cease to be an Eligible Property.
"UNENCUMBERED POOL VALUE" means (a) the Net Operating Income of each
Unencumbered Pool Property for the fiscal quarter most recently ended TIMES (b)
4 and DIVIDED BY (c) the applicable Capitalization Rate. No more than 15% of the
Unencumbered Pool Value may be attributable to any one Eligible Property. Not
more than three Qualified Leased Properties may be included in determinations of
the Unencumbered Pool Value and no more than 11% of the Unencumbered Pool Value
may be attributable to Qualified Leased Properties. No more than
-16-
$35,000,000 of the Unencumbered Pool Value may be attributable to Properties
subject to the
New York Collateral Documents.
"UNFUNDED LIABILITIES" means, with respect to any Plan at any time, the
amount (if any) by which (a) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (b) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"UNSECURED INDEBTEDNESS" means, with respect to a Person, all Indebtedness
of such Person that is not Secured Indebtedness.
"UNSECURED INTEREST EXPENSE" means, with respect to a Person and for a
given period, all Interest Expense for such period attributable to the Unsecured
Indebtedness of such Person.
"UNSECURED LIABILITIES" means, as to any Person as of a given date, the
sum of the following (without duplication): (a) all liabilities which would, in
conformity with GAAP, be properly classified as a liability on a balance sheet
of such Person as at such date; PLUS (b) all Indebtedness of such Person; MINUS
(c) all Secured Indebtedness of such Person.
"XXXXX FARGO" has the meaning given that term in the second "WHEREAS"
clause of this Agreement, and includes its successors and permitted assigns.
"WHOLLY OWNED SUBSIDIARY" means any Subsidiary of a Person in respect of
which all of the equity securities or other ownership interests (other than, in
the case of a corporation, directors' qualifying shares) are at the time
directly or indirectly owned or controlled by such Person or one or more other
Subsidiaries of such Person or by such Person and one or more other Subsidiaries
of such Person.
SECTION 1.2. GENERAL; REFERENCES TO SAN FRANCISCO TIME.
Unless otherwise indicated, all accounting terms, ratios and measurements
shall be interpreted or determined in accordance with GAAP in effect as of the
Agreement Date. References in this Agreement to "Sections", "Articles",
"Exhibits" and "Schedules" are to sections, articles, exhibits and schedules
herein and hereto unless otherwise indicated. references in this Agreement to
any document, instrument or agreement (a) shall include all exhibits, schedules
and other attachments thereto, (b) shall include all documents, instruments or
agreements issued or executed in replacement thereof, to the extent permitted
hereby and (c) shall mean such document, instrument or agreement, or replacement
or predecessor thereto, as amended, supplemented, restated or otherwise modified
from time to time to the extent permitted hereby and in effect at any given
time. Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter. Unless explicitly set forth to the
contrary, a reference to "Subsidiary" means a Subsidiary of the Parent or a
Subsidiary of such Subsidiary and a reference to an "Affiliate" means a
reference to an Affiliate of the Borrower. Titles and captions of Articles,
Sections, subsections and clauses in this Agreement are for convenience only,
and neither limit nor amplify the provisions of this Agreement. Unless otherwise
indicated, all references to time are references to San Francisco, California
time.
ARTICLE II. CREDIT FACILITY
SECTION 2.1. REVOLVING LOANS.
(a) GENERALLY. Subject to the terms and conditions hereof, including
without limitation, Section 2.15., during the period from the Effective Date to
but excluding the Termination Date, each Lender severally and not jointly agrees
to make Revolving Loans to the Borrower in an aggregate principal amount at any
one time outstanding up to, but not to exceed, the lesser of (i) the amount of
such Lender's Commitment and (ii) such Lender's Commitment Percentage of the
Maximum Availability. Subject to the terms and conditions of this
-17-
Agreement, during the period from the Effective Date to but excluding the
Termination Date, the Borrower may borrow, repay and reborrow Revolving Loans
hereunder.
(b) REQUESTING REVOLVING LOANS. The Borrower shall give the Agent notice
pursuant to a Notice of Borrowing of each borrowing of Revolving Loans. Each
Notice of Borrowing shall be delivered to the Agent before 9:00 a.m. (i) in the
case of LIBOR Loans, on the date three Business Days prior to the proposed date
of such borrowing and (ii) in the case of Base Rate Loans, on the date one
Business Day prior to the proposed date of such borrowing. The Agent will
transmit by telecopy, electronic mail (but in the case of electronic mail, only
to any Lender which has approved delivery of such notice by electronic mail) or
other form of transmission such Notice of Borrowing (or the information
contained in such Notice of Borrowing) to each Lender promptly upon receipt by
the Agent. Each Notice of Borrowing shall be irrevocable once given and binding
on the Borrower.
(c) DISBURSEMENTS OF REVOLVING LOAN PROCEEDS. No later than 9:00 a.m. on
the date specified in the Notice of Borrowing, each Lender will make available
for the account of its applicable Lending Office to the Agent, in immediately
available funds, the proceeds of the Revolving Loan to be made by such Lender.
With respect to Revolving Loans to be made after the Effective Date, unless the
Agent shall have been notified by any Lender prior to the specified date of
borrowing that such Lender does not intend to make available to the Agent the
Revolving Loan to be made by such Lender on such date, the Agent may assume that
such Lender will make the proceeds of such Revolving Loan available to the Agent
on the date of the requested borrowing as set forth in the Notice of Borrowing
and the Agent may (but shall not be obligated to), in reliance upon such
assumption, make available to the Borrower the amount of such Revolving Loan to
be provided by such Lender. Subject to satisfaction of the applicable conditions
set forth in Article VI. for such borrowing, the Agent will make the proceeds of
such borrowing available to the Borrower no later than 11:00 a.m. on the date
and at the account specified by the Borrower in such Notice of Borrowing.
SECTION 2.2. LETTERS OF CREDIT.
(a) LETTERS OF CREDIT. Subject to the terms and conditions of this
Agreement, the Agent, on behalf of the Lenders, agrees to issue for the account
of the Borrower during the period from and including the Effective Date to, but
excluding, the date 30 days prior to the Termination Date, one or more standby
letters of credit (each a "Letter of Credit") up to a maximum aggregate Stated
Amount at any one time outstanding not to exceed the L/C Commitment Amount.
(b) TERMS OF LETTERS OF CREDIT. At the time of issuance, the amount, form,
terms and conditions of each Letter of Credit, and of any drafts or acceptances
thereunder, shall be subject to approval by the Agent and the Borrower.
Notwithstanding the foregoing, in no event may (i) the expiration date of any
Letter of Credit extend beyond the Termination Date, (ii) any Letter of Credit
have an initial duration in excess of one year, or (iii) any Letter of Credit
contain an automatic renewal provision; provided, however, up to six Letters of
Credit may contain renewal provisions which are automatic in the absence of a
notice of non-renewal from the Agent so long as such renewal provisions can not
extend the expiration date of any Letter of Credit beyond the Termination Date.
The initial Stated Amount of each Letter of Credit shall be at least $50,000.
(c) REQUESTS FOR ISSUANCE OF LETTERS OF CREDIT. The Borrower shall give
the Agent written notice at least 5 Business Days prior to the requested date of
issuance of a Letter of Credit, such notice to describe in reasonable detail the
proposed terms of such Letter of Credit and the nature of the transactions or
obligations proposed to be supported by such Letter of Credit, and in any event
shall set forth with respect to such Letter of Credit the proposed (i) initial
Stated Amount, (ii) the beneficiary, and (iii) expiration date. The Borrower
shall also execute and deliver such customary applications and agreements for
standby letters of credit, and other forms as reasonably requested from time to
time by the Agent. Provided the Borrower has given the notice prescribed by the
first sentence of this subsection and delivered such application and agreements
referred to in the preceding sentence, subject to the other terms and conditions
of this Agreement, including the satisfaction of any applicable conditions
precedent set forth in Article VI., the Agent shall issue the requested Letter
of Credit on the requested date of issuance for the benefit of the stipulated
beneficiary but in no event prior to the date 5 Business Days following the date
after which the Agent has received all of the items required to be delivered to
it under this subsection. Upon the written request of the Borrower, the Agent
shall deliver to the Borrower a copy of (i) any Letter of Credit proposed to be
issued hereunder prior to the issuance thereof and (ii) each issued Letter of
Credit within a reasonable time
-18-
after the date of issuance thereof. To the extent any term of a Letter of Credit
Document is inconsistent with a term of any Loan Document, the term of such Loan
Document shall control.
(d) REIMBURSEMENT OBLIGATIONS. Upon receipt by the Agent from the
beneficiary of a Letter of Credit of any demand for payment under such Letter of
Credit, the Agent shall promptly notify the Borrower of the amount to be paid by
the Agent as a result of such demand and the date on which payment is to be made
by the Agent to such beneficiary in respect of such demand. The Borrower hereby
absolutely, unconditionally and irrevocably agrees to pay and reimburse the
Agent for the amount of each demand for payment under such Letter of Credit at
or prior to the date on which payment is to be made by the Agent to the
beneficiary thereunder, without presentment, demand, protest or other
formalities of any kind. Upon receipt by the Agent of any payment in respect of
any Reimbursement Obligation, the Agent shall promptly pay to each Lender that
has acquired a participation therein under the second sentence of Section
2.2.(i) such Lender's Commitment Percentage of such payment.
(e) MANNER OF REIMBURSEMENT. Upon its receipt of a notice referred to in
the immediately preceding subsection (d), the Borrower shall advise the Agent
whether or not the Borrower intends to borrow hereunder to finance its
obligation to reimburse the Agent for the amount of the related demand for
payment and, if it does, the Borrower shall submit a timely request for such
borrowing as provided in the applicable provisions of this Agreement. If the
Borrower fails to so advise the Agent, or if the Borrower fails to reimburse the
Agent for a demand for payment under a Letter of Credit by the date of such
payment, then (i) if the applicable conditions contained in Article VI. would
permit the making of Revolving Loans, the Borrower shall be deemed to have
requested a borrowing of Revolving Loans (which shall be Base Rate Loans) in an
amount equal to the unpaid Reimbursement Obligation and the Agent shall give
each Lender prompt notice of the amount of the Revolving Loan to be made
available to the Agent not later than 12:00 noon and (ii) if such conditions
would not permit the making of Revolving Loans, the provisions of subsection (j)
of this Section shall apply.
(f) EFFECT OF LETTERS OF CREDIT ON COMMITMENTS. Upon the issuance by the
Agent of any Letter of Credit and until such Letter of Credit shall have expired
or been terminated, the Commitment of each Lender shall be deemed to be utilized
for all purposes of this Agreement in an amount equal to the product of (i) such
Lender's Commitment Percentage and (ii) the sum of (A) the Stated Amount of such
Letter of Credit plus (B) any related Reimbursement Obligations then
outstanding.
(g) AGENT'S DUTIES REGARDING LETTERS OF CREDIT; UNCONDITIONAL NATURE OF
REIMBURSEMENT OBLIGATIONS. In examining documents presented in connection with
drawings under Letters of Credit and making payments under such Letters of
Credit against such documents, the Agent shall only be required to use the same
standard of care as it uses in connection with examining documents presented in
connection with drawings under letters of credit in which it has not sold
participations and making payments under such letters of credit. The Borrower
assumes all risks of the acts and omissions of, or misuse of the Letters of
Credit by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, neither the Agent nor any of
the Lenders shall be responsible for (i) the form, validity, sufficiency,
accuracy, genuineness or legal effects of any document submitted by any party in
connection with the application for and issuance of or any drawing honored under
any Letter of Credit even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit, or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) failure of the beneficiary of any
Letter of Credit to comply fully with conditions required in order to draw upon
such Letter of Credit; (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telex, telecopy or
otherwise, whether or not they be in cipher; (v) errors in interpretation of
technical terms; (vi) any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of Credit, or of
the proceeds thereof; (vii) the misapplication by the beneficiary of any Letter
of Credit, or of the proceeds of any drawing under any Letter of Credit; or
(viii) any consequences arising from causes beyond the control of the Agent or
the Lenders. None of the above shall affect, impair or prevent the vesting of
any of the Agent's rights or powers hereunder. Any action taken or omitted to be
taken by the Agent under or in connection with any Letter of Credit, if taken or
omitted in the absence of gross negligence or willful misconduct, shall not
create against the Agent any liability to the Borrower or any Lender. In this
connection, the obligation of the Borrower to reimburse the Agent for any
drawing made under any Letter of Credit shall be absolute, unconditional and
irrevocable and shall be paid strictly in accordance with the terms of this
Agreement or any other applicable Letter of Credit Document under all
circumstances whatsoever, including
-19-
without limitation, the following circumstances: (A) any lack of validity or
enforceability of any Letter of Credit Document or any term or provisions
therein; (B) any amendment or waiver of or any consent to departure from all or
any of the Letter of Credit Documents; (C) the existence of any claim, setoff,
defense or other right which the Borrower may have at any time against the
Agent, any Lender, any beneficiary of a Letter of Credit or any other Person,
whether in connection with this Agreement, the transactions contemplated hereby
or in the Letter of Credit Documents or any unrelated transaction; (D) any
breach of contract or dispute between the Borrower, the Agent, any Lender or any
other Person; (E) any demand, statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein or made in connection therewith being
untrue or inaccurate in any respect whatsoever; (F) any non-application or
misapplication by the beneficiary of a Letter of Credit or of the proceeds of
any drawing under such Letter of Credit; (G) payment by the Agent under the
Letter of Credit against presentation of a draft or certificate which does not
strictly comply with the terms of the Letter of Credit; and (H) any other act,
omission to act, delay or circumstance whatsoever that might, but for the
provisions of this Section, constitute a legal or equitable defense to or
discharge of the Borrower's Reimbursement Obligations.
(h) AMENDMENTS, ETC. The issuance by the Agent of any amendment,
supplement or other modification to any Letter of Credit shall be subject to the
same conditions applicable under this Agreement to the issuance of new Letters
of Credit (including, without limitation, that the request therefor be made
through the Agent), and no such amendment, supplement or other modification
shall be issued unless either (i) the respective Letter of Credit affected
thereby would have complied with such conditions had it originally been issued
hereunder in such amended, supplemented or modified form or (ii) the Requisite
Lenders shall have consented thereto. In connection with any such amendment,
supplement or other modification, the Borrower shall pay the fees, if any,
payable under the last sentence of Section 3.6.(d).
(i) LENDERS' PARTICIPATION IN LETTERS OF CREDIT. Immediately upon the
issuance by the Agent of any Letter of Credit each Lender shall be deemed to
have absolutely, irrevocably and unconditionally purchased and received from the
Agent, without recourse or warranty, an undivided interest and participation to
the extent of such Lender's Commitment Percentage of the liability of the Agent
with respect to such Letter of Credit and each Lender thereby shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as surety,
and shall be unconditionally obligated to the Agent to pay and discharge when
due, such Lender's Commitment Percentage of the Agent's liability under such
Letter of Credit. In addition, upon the making of each payment by a Lender to
the Agent in respect of any Letter of Credit pursuant to the immediately
following subsection (j), such Lender shall, automatically and without any
further action on the part of the Agent or such Lender, acquire (i) a
participation in an amount equal to such payment in the Reimbursement Obligation
owing to the Agent by the Borrower in respect of such Letter of Credit and (ii)
a participation in a percentage equal to such Lender's Commitment Percentage in
any interest or other amounts payable by the Borrower in respect of such
Reimbursement Obligation (other than the Fees payable to the Agent pursuant to
the second and last sentences of Section 3.6.(d)).
(j) PAYMENT OBLIGATION OF LENDERS. Each Lender severally agrees to pay to
the Agent on demand in immediately available funds in Dollars the amount of such
Lender's Commitment Percentage of each drawing paid by the Agent under each
Letter of Credit to the extent such amount is not reimbursed by the Borrower
pursuant to Section 2.2.(d); provided, however, that in respect of any drawing
under any Letter of Credit, the maximum amount that any Lender shall be required
to fund, whether as a Revolving Loan or as a participation, shall not exceed
such Lender's Commitment Percentage of such drawing. Each Lender's obligation to
make such payments to the Agent under this subsection, and the Agent's right to
receive the same, shall be absolute, irrevocable and unconditional and shall not
be affected in any way by any circumstance whatsoever, including without
limitation, (i) the failure of any other Lender to make its payment under this
subsection, (ii) the financial condition of the Borrower or any other Loan
Party, (iii) the existence of any Default or Event of Default, including any
Event of Default described in Section 11.1.(e) or 11.1.(f) or (iv) the
termination of the Commitments. Each such payment to the Agent shall be made
without any offset, abatement, withholding or deduction whatsoever.
(k) INFORMATION TO LENDERS. Promptly following any change in Letters of
Credit outstanding, the Agent shall deliver to each Lender and the Borrower a
notice describing the aggregate amount of all Letters of Credit outstanding at
such time. Upon the request of any Lender from time to time, the Agent shall
deliver any other information reasonably requested by such Lender with respect
to each Letter of Credit then outstanding. Other than as set forth in this
subsection, the Agent shall have no duty to notify the Lenders regarding the
issuance or other
-20-
matters regarding Letters of Credit issued hereunder. The failure of the Agent
to perform its requirements under this subsection shall not relieve any Lender
from its obligations under Section 2.2.(j).
SECTION 2.3. SWINGLINE LOANS.
(a) SWINGLINE LOANS. Subject to the terms and conditions hereof,
including, without limitation Section 2.15., the Swingline Lender agrees to make
Swingline Loans to the Borrower, during the period from the Effective Date to
but excluding the Swingline Termination Date, in an aggregate principal amount
at any one time outstanding up to, but not exceeding, the amount of the
Swingline Commitment. If at any time the aggregate principal amount of the
Swingline Loans outstanding at such time exceeds the Swingline Commitment in
effect at such time, the Borrower shall immediately pay the Agent for the
account of the Swingline Lender the amount of such excess. Subject to the terms
and conditions of this Agreement, the Borrower may borrow, repay and reborrow
Swingline Loans hereunder.
(b) PROCEDURE FOR BORROWING SWINGLINE LOANS. The Borrower shall give the
Agent and the Swingline Lender notice pursuant to a Notice of Swingline
Borrowing delivered to the Swingline Lender no later than 9:00 a.m. on the
proposed date of such borrowing. Any such telephonic notice shall include all
information to be specified in a written Notice of Swingline Borrowing. Not
later than 11:00 a.m. on the date of the requested Swingline Loan and subject to
satisfaction of the applicable conditions set forth in Article VI. for such
borrowing, the Swingline Lender will make the proceeds of such Swingline Loan
available to the Borrower in Dollars, in immediately available funds, at the
account specified by the Borrower in the Notice of Swingline Borrowing.
(c) INTEREST. Swingline Loans shall bear interest at a per annum rate
equal to the Base Rate as in effect from time to time or at such other rate or
rates as the Borrower and the Swingline Lender may agree from time to time in
writing. All accrued and unpaid interest on Swingline Loans shall be payable on
the dates and in the manner provided in Section 2.4. with respect to interest on
Base Rate Loans (except as the Swingline Lender and the Borrower may otherwise
agree in writing in connection with any particular Swingline Loan).
(d) SWINGLINE LOAN AMOUNTS, ETC. Each Swingline Loan shall be in the
minimum amount of $500,000 and integral multiples of $100,000 in excess thereof,
or such other minimum amounts agreed to by the Swingline Lender and the
Borrower. Any voluntary prepayment of a Swingline Loan must be in integral
multiples of $100,000 or the aggregate principal amount of all outstanding
Swingline Loans (or such other minimum amounts upon which the Swingline Lender
and the Borrower may agree) and in connection with any such prepayment, the
Borrower must give the Swingline Lender prior written notice thereof no later
than 10:00 a.m. on the day prior to the date of such prepayment. The Swingline
Loans shall, in addition to this Agreement, be evidenced by the Swingline Note.
(e) REPAYMENT AND PARTICIPATIONS OF SWINGLINE LOANS. The Borrower agrees
to repay each Swingline Loan within one Business Day of demand therefor by the
Swingline Lender and, in any event, within 5 Business Days after the date such
Swingline Loan was made. Notwithstanding the foregoing, the Borrower shall repay
the entire outstanding principal amount of, and all accrued but unpaid interest
on, the Swingline Loans on the Swingline Termination Date (or such earlier date
as the Swingline Lender and the Borrower may agree in writing). In lieu of
demanding repayment of any outstanding Swingline Loan from the Borrower, the
Swingline Lender may, on behalf of the Borrower (which hereby irrevocably
directs the Swingline Lender to act on its behalf), request a borrowing of Base
Rate Loans from the Lenders in an amount equal to the principal balance of such
Swingline Loan. The amount limitations contained in Section 3.5.(a) shall not
apply to any borrowing of Base Rate Loans made pursuant to this subsection. The
Swingline Lender shall give notice to the Agent of any such borrowing of Base
Rate Loans not later than 9:00 a.m. at least one Business Day prior to the
proposed date of such borrowing. Each Lender will make available to the Agent at
the Principal Office for the account of Swingline Lender, in immediately
available funds, the proceeds of the Base Rate Loan to be made by such Lender.
The Agent shall pay the proceeds of such Base Rate Loans to the Swingline
Lender, which shall apply such proceeds to repay such Swingline Loan. If the
Lenders are prohibited from making Loans required to be made under this
subsection for any reason whatsoever, including without limitation, the
occurrence of any of the Defaults or Events of Default described in Sections
11.1.(e) or 11.1.(f), each Lender shall purchase from the Swingline Lender,
without recourse or warranty, an undivided interest and participation to the
extent of such Lender's Commitment Percentage of such Swingline Loan, by
directly purchasing a participation in such Swingline Loan in such amount and
paying the proceeds thereof to the Agent for
-21-
the account of the Swingline Lender in Dollars and in immediately available
funds. A Lender's obligation to purchase such a participation in a Swingline
Loan shall be absolute and unconditional and shall not be affected by any
circumstance whatsoever, including without limitation, (i) any claim of setoff,
counterclaim, recoupment, defense or other right which such Lender or any other
Person may have or claim against the Agent, the Swingline Lender or any other
Person whatsoever, (ii) the occurrence or continuation of a Default or Event of
Default (including without limitation, any of the Defaults or Events of Default
described in Sections 11.1.(e) or 11.1.(f)) or the termination of any Lender's
Commitment, (iii) the existence (or alleged existence) of an event of condition
which has had or could have a Material Adverse Effect, (iv) any breach of any
Loan Document by the Agent, any Lender or the Borrower or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing; provided, however, a Lender shall not be obligated to purchase
such a participation in a Swingline Loan as provided above if, and only if, the
Swingline Lender made such Swingline Loan when the officer of the Swingline
Lender then acting as the relationship manager for the Borrower had actual
knowledge (as opposed to presumed or imputed knowledge) that an Event of Default
resulting from the failure to pay when due any principal of any Loan, any
Reimbursement Obligation or any interest on any of the Loans, existed at the
time such Swingline Loan was made. If such amount is not in fact made available
to the Swingline Lender by any Lender, the Swingline Lender shall be entitled to
recover such amount on demand from such Lender, together with accrued interest
thereon for each day from the date of demand thereof, at the Federal Funds Rate.
If such Lender does not pay such amount forthwith upon the Swingline Lender's
demand therefor, and until such time as such Lender makes the required payment,
the Swingline Lender shall be deemed to continue to have outstanding Swingline
Loans in the amount of such unpaid participation obligation for all purposes of
the Loan Documents (other than those provisions requiring the other Lenders to
purchase a participation therein). Further, such Lender shall be deemed to have
assigned any and all payments made of principal and interest on its Loans, and
any other amounts due it hereunder, to the Swingline Lender to fund Swingline
Loans in the amount of the participation in Swingline Loans that such Lender
failed to purchase pursuant to this Section until such amount has been purchased
(as a result of such assignment or otherwise).
SECTION 2.4. RATES AND PAYMENT OF INTEREST ON LOANS.
(a) RATES. The Borrower promises to pay to the Agent for the account of
each Lender interest on the unpaid principal amount of each Loan made by such
Lender for the period from and including the date of the making of such Loan to
but excluding the date such Loan shall be paid in full, at the following per
annum rates:
(i) during such periods as such Loan is a Base Rate Loan, at the
Base Rate (as in effect from time to time), plus the Applicable Margin for
Base Rate Loans; and
(ii) during such periods as such Loan is a LIBOR Loan, at LIBOR for
such Loan for the Interest Period therefor, plus the Applicable Margin for
LIBOR Loans.
Notwithstanding the foregoing, during the continuance of an Event of Default,
the Borrower shall pay to the Agent for the account of each Lender interest at
the Post-Default Rate on the outstanding principal amount of any Loan made by
such Lender, on all Reimbursement Obligations and on any other amount payable by
the Borrower hereunder or under the Notes held by such Lender to or for the
account of such Lender (including without limitation, accrued but unpaid
interest to the extent permitted under Applicable Law).
(b) PAYMENT OF INTEREST. All accrued and unpaid interest on the
outstanding principal amount of each Loan shall be payable (i) monthly in
arrears on the first day of each month, commencing with the first full calendar
month occurring after the Effective Date and (ii) on any date on which the
principal balance of such Loan is due and payable in full (whether at maturity,
due to acceleration or otherwise). Interest payable at the Post-Default Rate
shall be payable from time to time on demand. All determinations by the Agent of
an interest rate hereunder shall be conclusive and binding on the Lenders and
the Borrower for all purposes, absent manifest error.
SECTION 2.5. NUMBER OF INTEREST PERIODS.
There may be no more than 8 different Interest Periods outstanding at the
same time.
-22-
SECTION 2.6. REPAYMENT OF LOANS.
The Borrower shall repay the entire outstanding principal amount of, and
all accrued but unpaid interest on, the Revolving Loans on the Termination Date.
SECTION 2.7. PREPAYMENTS.
(a) OPTIONAL. Subject to Section 5.4., the Borrower may prepay any Loan at
any time without premium or penalty. The Borrower shall give the Agent (i) at
least 3 Business Days prior written notice of the prepayment of any LIBOR Loan,
(ii) at least 1 Business Day's prior written notice of the prepayment of any
Base Rate Loan and (iii) prior written notice of the prepayment of any Swingline
Loan no later than the date of such prepayment.
(b) MANDATORY.
(i) COMMITMENT OVERADVANCE. If at any time the aggregate principal
amount of all outstanding Loans, together with the aggregate amount of all
Letter of Credit Liabilities, exceeds the aggregate amount of the
Commitments, the Borrower shall immediately upon demand pay to the Agent
for the account of the Lenders, the amount of such excess.
(ii) UNENCUMBERED POOL OVERADVANCE. If at any time the aggregate
principal amount of all outstanding Loans, together with the aggregate
amount of all Letter of Credit Liabilities, exceeds the Maximum
Availability, the Borrower shall within 5 days of the Borrower obtaining
knowledge of the occurrence of any such excess, deliver to the Agent for
prompt distribution to each Lender a written plan acceptable to all of the
Lenders to eliminate such excess. If such excess is not eliminated within
15 days of the Borrower obtaining knowledge of the occurrence thereof,
then the entire outstanding principal balance of all Loans, together with
all accrued interest thereon, and an amount equal to all Letter of Credit
Liabilities for deposit into the Letter of Credit Collateral Account,
shall be immediately due and payable in full.
All payments under this subsection (b) shall be applied to pay all amounts of
excess principal outstanding on the applicable Loans and any applicable
Reimbursement Obligations in accordance with Section 3.2., and the remainder, if
any, shall be deposited into the Letter of Credit Collateral Account for
application to any Reimbursement Obligations as and when due.
SECTION 2.8. LATE CHARGES.
If any payment required under this Agreement is not paid within 10 days
after it becomes due and payable, the Borrower shall pay a late charge for late
payment to compensate the Lenders for the loss of use of funds and for the
expenses of handling the delinquent payment, in an amount equal to four percent
(4.0%) of such delinquent payment. Such late charge shall be paid in any event
not later than the due date of the next subsequent installment of principal
and/or interest. In the event the maturity of the Obligations hereunder occurs
or is accelerated pursuant to Section 11.2., this Section shall apply only to
payments overdue prior to the time of such acceleration. This Section shall not
be deemed to be a waiver of the Lenders' right to accelerate payment of any of
the Obligations as permitted under the terms of this Agreement.
SECTION 2.9. CONTINUATION.
So long as no Default or Event of Default exists, the Borrower may on any
Business Day, with respect to any LIBOR Loan, elect to maintain such LIBOR Loan
or any portion thereof as a LIBOR Loan by selecting a new Interest Period for
such LIBOR Loan. Each new Interest Period selected under this Section shall
commence on the last day of the immediately preceding Interest Period. Each
selection of a new Interest Period shall be made by the Borrower giving to the
Agent a Notice of Continuation not later than 9:00 a.m. on the third Business
Day prior to the date of any such Continuation. Such notice by the Borrower of a
Continuation shall be by telecopy, electronic mail (but in the case of
electronic mail, only if the Agent has approved delivery of such notice by
electronic mail) or other form of communication in the form of a Notice of
Continuation, specifying (a) the proposed date of such
-23-
Continuation, (b) the LIBOR Loan and portion thereof subject to such
Continuation and (c) the duration of the selected Interest Period, all of which
shall be specified in such manner as is necessary to comply with all limitations
on Loans outstanding hereunder. Each Notice of Continuation shall be irrevocable
by and binding on the Borrower once given. Promptly after receipt of a Notice of
Continuation, the Agent shall notify each Lender by telecopy, electronic mail
(but in the case of electronic mail, only to any Lender which has approved
delivery of such notice by electronic mail) or other similar form of
transmission of the proposed Continuation. If the Borrower shall fail to select
in a timely manner a new Interest Period for any LIBOR Loan in accordance with
this Section, such Loan will automatically, on the last day of the current
Interest Period therefor, Convert into a Base Rate Loan notwithstanding failure
of the Borrower to comply with Section 2.10.
SECTION 2.10. CONVERSION.
So long as no Default or Event of Default exists, the Borrower may on any
Business Day, upon the Borrower's giving of a Notice of Conversion to the Agent,
Convert all or a portion of a Loan of one Type into a Loan of another Type. Any
Conversion of a LIBOR Loan into a Base Rate Loan shall be made on, and only on,
the last day of an Interest Period for such LIBOR Loan and, upon Conversion of a
Base Rate Loan into a LIBOR Loan, the Borrower shall pay accrued interest to the
date of Conversion on the principal amount so Converted. Each such Notice of
Conversion shall be given not later than 9:00 a.m. one Business Day prior to the
date of any proposed Conversion into Base Rate Loans and three Business Days
prior to the date of any proposed Conversion into LIBOR Loans. Promptly after
receipt of a Notice of Conversion, the Agent shall notify each Lender by
telecopy, electronic mail (but in the case of electronic mail, only to any
Lender which has approved delivery of such notice by electronic mail) or other
similar form of transmission of the proposed Conversion. Subject to the
restrictions specified above, each Notice of Conversion shall be by telecopy in
the form of a Notice of Conversion specifying (a) the requested date of such
Conversion, (b) the Type of Loan to be Converted, (c) the portion of such Type
of Loan to be Converted, (d) the Type of Loan such Loan is to be Converted into
and (e) if such Conversion is into a LIBOR Loan, the requested duration of the
Interest Period of such Loan. Each Notice of Conversion shall be irrevocable by
and binding on the Borrower once given.
SECTION 2.11. NOTES.
The Revolving Loans made by each Lender shall, in addition to this
Agreement, also be evidenced by a promissory note of the Borrower substantially
in the form of Exhibit I (each a "Revolving Note"), payable to the order of such
Lender in a principal amount equal to the amount of its Commitment as originally
in effect and otherwise duly completed.
SECTION 2.12. VOLUNTARY REDUCTIONS OF THE COMMITMENT.
The Borrower shall have the right to terminate or reduce the aggregate
unused amount of the Commitments (for which purpose use of the Commitments shall
be deemed to include the aggregate amount of Letter of Credit Liabilities and
Swingline Loans) at any time and from time to time without penalty or premium
upon not less than 5 Business Days prior written notice to the Agent of each
such termination or reduction, which notice shall specify the effective date
thereof and the amount of any such reduction and shall be irrevocable once given
and effective only upon receipt by the Agent; provided, however, that if the
Borrower seeks to reduce the aggregate amount of the Commitments below
$60,000,000, then, unless the Agent and all Lenders have otherwise previously
agreed in writing, the Commitments shall be reduced to zero and, except as
otherwise provided herein, the provisions of this Agreement shall terminate. The
Agent will promptly transmit such notice to each Lender. The Commitments, once
terminated or reduced may not be increased or reinstated. Any reduction in the
aggregate amount of the Commitments shall result in a proportionate reduction
(rounded to the next lowest integral multiple of $100,000) in the Swingline
Commitment and in the L/C Commitment Amount.
SECTION 2.13. EXTENSION OF TERMINATION DATE.
The Borrower may request that the Agent and the Lenders extend the current
Termination Date by one year by executing and delivering to the Agent at least
60 days but not more than 180 days prior to the current Termination Date, a
written request for such extension. The Agent shall forward to each Lender a
copy of any such request delivered to the Agent promptly upon receipt thereof.
Subject to satisfaction of the following conditions, the
-24-
Termination Date shall be extended for one year: (a) immediately prior to such
extension and immediately after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing, (b) the Borrower shall have paid
the Fees payable under Section 3.6.(b), and (c) all representations and
warranties made or deemed made by any Loan Party in any Loan Document to which
any such Loan Party is a party are true and correct on the effective date of
such extension (except for representations or warranties which expressly relate
solely to an earlier date).
SECTION 2.14. EXPIRATION OR MATURITY DATE OF LETTERS OF CREDIT PAST TERMINATION
DATE.
If on the date the Commitments are terminated (whether voluntarily, by
reason of the occurrence of an Event of Default or otherwise), there are any
Letters of Credit outstanding hereunder, the Borrower shall, on such date, pay
to the Agent an amount of money equal to the Stated Amount of such Letter(s) of
Credit for deposit into the Letter of Credit Collateral Account. If a drawing
pursuant to any such Letter of Credit occurs on or prior to the expiration date
of such Letter of Credit, the Borrower authorizes the Agent to use the monies
deposited in the Letter of Credit Collateral Account to make payment to the
beneficiary with respect to such drawing or the payee with respect to such
presentment. If no drawing occurs on or prior to the expiration date of such
Letter of Credit, the Agent shall pay to the Borrower (or to whomever else may
be legally entitled thereto) the monies deposited in the Letter of Credit
Collateral Account with respect to such outstanding Letter of Credit on or
before the date 5 days after the expiration date of such Letter of Credit.
SECTION 2.15. AMOUNT LIMITATIONS.
Notwithstanding any other term of this Agreement, no Lender shall be
required to make any Loan, and the Agent shall not be required to issue any
Letter of Credit if, immediately after the making of such Loan or issuance of
such Letter of Credit the aggregate principal amount of all outstanding Loans,
together with the aggregate amount of all Letter of Credit Liabilities, would
exceed either (i) the aggregate amount of the Commitments or (ii) the Maximum
Availability.
ARTICLE III. PAYMENTS, FEES AND OTHER GENERAL PROVISIONS
SECTION 3.1. PAYMENTS.
Except to the extent otherwise provided herein, all payments of principal,
interest and other amounts to be made by the Borrower under this Agreement or
any other Loan Document shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to the Agent, not later than
11:00 a.m. on the date on which such payment shall become due (each such payment
made after such time on such due date to be deemed to have been made on the next
succeeding Business Day). The Borrower shall, at the time of making each payment
under this Agreement or any Note, specify to the Agent the amounts payable by
the Borrower hereunder to which such payment is to be applied. Each payment
received by the Agent for the account of a Lender under this Agreement or any
Note of such Lender shall be paid to such Lender, by wire transfer of
immediately available funds in accordance with the wiring instructions provided
by such Lender to the Agent from time to time, for the account of such Lender at
the applicable Lending Office of such Lender. If the Agent fails to pay such
amount to a Lender within one Business Day of receipt thereof by the Agent, the
Agent shall pay interest on such amount until paid at a rate per annum equal to
the Federal Funds Rate from time to time in effect. If the due date of any
payment under this Agreement or any other Loan Document would otherwise fall on
a day which is not a Business Day such date shall be extended to the next
succeeding Business Day and interest shall be payable for the period of such
extension.
SECTION 3.2. PRO RATA TREATMENT.
Except to the extent otherwise provided herein: (a) each borrowing from
the Lenders under Section 2.1.(a) shall be made from the Lenders, each payment
of the Fees under Sections 3.6.(b) and 3.6.(c) and the first sentence of Section
3.6.(d) shall be made for the account of the Lenders, and each termination or
reduction of the amount of the Commitments under Section 2.12. or otherwise
pursuant to this Agreement shall be applied to the respective Commitments of the
Lenders, pro rata according to the amounts of their respective Commitments; (b)
each payment or prepayment of principal of Revolving Loans by the Borrower shall
be made for the account of the Lenders pro
-25-
rata in accordance with the respective unpaid principal amounts of the Revolving
Loans held by them, provided that if immediately prior to giving effect to any
such payment in respect of any Revolving Loans the outstanding principal amount
of the Revolving Loans shall not be held by the Lenders pro rata in accordance
with their respective Commitments in effect at the time such Loans were made,
then such payment shall be applied to the Revolving Loans in such manner as
shall result, as nearly as is practicable, in the outstanding principal amount
of the Revolving Loans being held by the Lenders pro rata in accordance with
their respective Commitments; (c) each payment of interest on Revolving Loans by
the Borrower shall be made for the account of the Lenders pro rata in accordance
with the amounts of interest on such Loans then due and payable to the
respective Lenders; (d) the making, Conversion and Continuation of Revolving
Loans of a particular Type (other than Conversions provided for by Section 5.5.)
shall be made pro rata among the Lenders according to the amounts of their
respective Commitments (in the case of making of Loans) or their respective
Loans (in the case of Conversions and Continuations of Loans) and the then
current Interest Period for each Lender's portion of each Loan of such Type
shall be coterminous; (e) the Lenders' participation in, and payment obligations
in respect of, Swingline Loans under Section 2.3. shall be in accordance with
their respective Commitment Percentages; and (f) the Lenders' participation in,
and payment obligations in respect of, Letters of Credit under Section 2.2.
shall be pro rata in accordance with their respective Commitments. All payments
of principal, interest, fees and other amounts in respect of the Swingline Loans
shall be for the account of the Swingline Lender only (except to the extent any
Lender shall have acquired a participating interest in any such Swingline Loan
pursuant to Section 2.3.(e)).
SECTION 3.3. SHARING OF PAYMENTS, ETC.
If a Lender shall obtain payment of any principal of, or interest on, any
Loan made by it to the Borrower under this Agreement, or shall obtain payment on
any other Obligation owing by the Borrower or any other Loan Party through the
exercise of any right of set-off, banker's lien or counterclaim or similar right
or otherwise or through voluntary prepayments directly to a Lender or other
payments made by the Borrower or any other Loan Party to a Lender not in
accordance with the terms of this Agreement and such payment should be
distributed to the Lenders pro rata in accordance with Section 3.2. or Section
11.5., as applicable, such Lender shall promptly purchase from the other Lenders
participations in (or, if and to the extent specified by such Lender, direct
interests in) the Loans made by the other Lenders or other Obligations owed to
such other Lenders in such amounts, pay such amounts to the other Lenders and
make such other adjustments from time to time as shall be equitable, so that all
the Lenders shall share the benefit of such payment (net of any reasonable
expenses which may be incurred by such Lender in obtaining or preserving such
benefit) pro rata in accordance with Section 3.2. or Section 11.5. To such end,
all the Lenders shall make appropriate adjustments among themselves (by the
resale of participations sold or otherwise) if such payment is rescinded or must
otherwise be restored. The Borrower agrees that any Lender so purchasing a
participation (or direct interest) in the Loans or other Obligations owed to
such other Lenders may exercise all rights of set-off, banker's lien,
counterclaim or similar rights with respect to such participation as fully as if
such Lender were a direct holder of Loans in the amount of such participation.
Nothing contained herein shall require any Lender to exercise any such right or
shall affect the right of any Lender to exercise, and retain the benefits of
exercising, any such right with respect to any other indebtedness or obligation
of the Borrower.
SECTION 3.4. SEVERAL OBLIGATIONS.
No Lender shall be responsible for the failure of any other Lender to make
a Loan or to perform any other obligation to be made or performed by such other
Lender hereunder, and the failure of any Lender to make a Loan or to perform any
other obligation to be made or performed by it hereunder shall not relieve the
obligation of any other Lender to make any Loan or to perform any other
obligation to be made or performed by such other Lender.
SECTION 3.5. MINIMUM AMOUNTS.
(a) BORROWINGS. Each borrowing of Base Rate Loans shall be in an aggregate
minimum amount of $1,000,000 and integral multiples of $500,000 in excess
thereof. Each borrowing of and Continuation of, and each Conversion of Base Rate
Loans into, LIBOR Loans shall be in an aggregate minimum amount of $5,000,000
and integral multiples of $1,000,000 in excess of that amount.
(b) PREPAYMENTS. Each voluntary prepayment of Revolving Loans shall be in
an aggregate minimum amount of $1,000,000 and integral multiples of $500,000 in
excess thereof.
-26-
(c) REDUCTIONS OF COMMITMENTS. Each reduction of the Commitments under
Section 2.12. shall be in an aggregate minimum amount of $5,000,000 and integral
multiples of $100,000 in excess thereof.
SECTION 3.6. FEES.
(a) CLOSING FEE. On the Effective Date, the Borrower agrees to pay to the
Agent and each Lender all loan fees as have been agreed to in writing by the
Borrower and the Agent or each Lender, as applicable.
(b) EXTENSION FEE. If, pursuant to Section 2.13., the Borrower exercises
its right to extend the Termination Date, the Borrower agrees to pay to the
Agent for the account of each Lender an extension fee equal to one quarter of
one percent (0.25%) of the amount of such Lender's Commitment at such time. Such
fee shall be paid to the Agent prior to, and as a condition to, such extension.
(c) UNUSED FACILITY FEES. During the period from the Effective Date to but
excluding the Termination Date, the Borrower agrees to pay to the Agent for the
account of the Lenders an unused facility fee equal to the sum of the daily
amount by which the aggregate amount of the Commitments exceeds the aggregate
outstanding principal balance of Revolving Loans and Letter of Credit
Liabilities set forth in the table below multiplied by the corresponding per
annum rate applicable to that portion:
--------------------------------------------------------------
AMOUNT BY WHICH COMMITMENTS EXCEEDS UNUSED FEE
REVOLVING LOANS AND LETTER OF CREDIT LIABILITIES
--------------------------------------------------------------
$0 to and including an amount equal to 0.15%
50% of the aggregate amount of Commitments
--------------------------------------------------------------
Greater than an amount equal to 50% of 0.20%
the aggregate amount of Commitments
--------------------------------------------------------------
Such fee shall be computed on a daily basis and payable quarterly in arrears on
the first day of each January, April, July and October during the term of this
Agreement and on the Termination Date or any earlier date of termination of the
Commitments or reduction of the Commitments to zero. For purposes of this
subsection, the aggregate amount of the Commitments shall not be deemed to be
utilized by the amount of any outstanding Swingline Loans.
(d) LETTER OF CREDIT FEES. The Borrower agrees to pay to the Agent for the
account of each Lender a letter of credit fee at a rate per annum equal to the
Applicable Margin for LIBOR Loans times the daily average Stated Amount of each
Letter of Credit for the period from and including the date of issuance of such
Letter of Credit (x) to and including the date such Letter of Credit expires or
is terminated or (y) to but excluding the date such Letter of Credit is drawn in
full; PROVIDED, HOWEVER, in no event shall the aggregate amount of such fee in
respect of any Letter of Credit be less than $1,000. In addition to such fees,
the Borrower shall pay to the Agent solely for its own account, a fronting fee
in respect of each Letter of Credit at the rate equal to one-eighth of one
percent (0.125%) per annum on the daily average Stated Amount of such Letter of
Credit. The fees provided for in the immediately preceding two sentences shall
be nonrefundable and payable in arrears (i) quarterly on the last day of March,
June, September and December, (ii) on the Termination Date, (iii) on the date
the Commitments are terminated or reduced to zero and (iv) thereafter from time
to time on demand of the Agent. The Borrower shall pay directly to the Agent
from time to time on demand all commissions, charges, costs and expenses in the
amounts customarily charged by the Agent from time to time in like circumstances
with respect to the issuance of each Letter of Credit, drawings, amendments and
other transactions relating thereto.
(e) ADMINISTRATIVE AND OTHER FEES. The Borrower agrees to pay the
administrative and other fees of the Agent as may be agreed to in writing from
time to time.
SECTION 3.7. COMPUTATIONS.
Unless otherwise expressly set forth herein, any accrued interest on any
Loan, any Fees or any other Obligations due hereunder shall be computed on the
basis of a year of 360 days and the actual number of days elapsed.
-27-
SECTION 3.8. USURY.
In no event shall the amount of interest due or payable on the Loans or
other Obligations exceed the maximum rate of interest allowed by Applicable Law
and, if any such payment is paid by the Borrower or received by any Lender, then
such excess sum shall be credited as a payment of principal, unless the Borrower
shall notify the respective Lender in writing that the Borrower elects to have
such excess sum returned to it forthwith. It is the express intent of the
parties hereto that the Borrower not pay and the Lenders not receive, directly
or indirectly, in any manner whatsoever, interest in excess of that which may be
lawfully paid by the Borrower under Applicable Law. The parties hereto hereby
agree and stipulate that the only charge imposed upon the Borrower for the use
of money in connection with this Agreement is and shall be the interest
specifically described in Section 2.4.(a)(i) and (ii) and with respect to
Swingline Loans, in Section 2.3.(c). Notwithstanding the foregoing, the parties
hereto further agree and stipulate that all agency fees, syndication fees,
facility fees, letter of credit fees, underwriting fees, default charges, late
charges, funding or "breakage" charges, increased cost charges, attorneys' fees
and reimbursement for costs and expenses paid by the Agent or any Lender to
third parties or for damages incurred by the Agent or any Lender, are charges
made to compensate the Agent or any such Lender for underwriting or
administrative services and costs or losses performed or incurred, and to be
performed or incurred, by the Agent and the Lenders in connection with this
Agreement and shall under no circumstances be deemed to be charges for the use
of money. All charges other than charges for the use of money shall be fully
earned and nonrefundable when due.
SECTION 3.9. STATEMENTS OF ACCOUNT.
The Agent will account to the Borrower monthly with a statement of Loans,
Letters of Credit, accrued interest and Fees, charges and payments made pursuant
to this Agreement and the other Loan Documents, and such account rendered by the
Agent shall be deemed conclusive upon the Borrower absent manifest error. The
Agent will account to the Borrower on changes in Letters of Credit in accordance
with 2.2.(k). The failure of the Agent to deliver such a statement of accounts
shall not relieve or discharge the Borrower from any of its obligations
hereunder.
SECTION 3.10. DEFAULTING LENDERS.
If for any reason any Lender (a "Defaulting Lender") shall fail or refuse
to perform any of its obligations under this Agreement or any other Loan
Document to which it is a party within the time period specified for performance
of such obligation or, if no time period is specified, if such failure or
refusal continues for a period of two Business Days after notice from the Agent,
then, in addition to the rights and remedies that may be available to the Agent
or the Borrower under this Agreement or Applicable Law, such Defaulting Lender's
right to participate in the administration of the Loans, this Agreement and the
other Loan Documents, including without limitation, any right to vote in respect
of, to consent to or to direct any action or inaction of the Agent or to be
taken into account in the calculation of the Requisite Lenders, shall be
suspended during the pendency of such failure or refusal. If a Lender is a
Defaulting Lender because it has failed to make timely payment to the Agent of
any amount required to be paid to the Agent hereunder (without giving effect to
any notice or cure periods), in addition to other rights and remedies which the
Agent or the Borrower may have under the immediately preceding provisions or
otherwise, the Agent shall be entitled (i) to collect interest from such
Defaulting Lender on such delinquent payment for the period from the date on
which the payment was due until the date on which the payment is made at the
Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of
the defaulted payment and any related interest, any amounts otherwise payable to
such Defaulting Lender under this Agreement or any other Loan Document and (iii)
to bring an action or suit against such Defaulting Lender in a court of
competent jurisdiction to recover the defaulted amount and any related interest.
Any amounts received by the Agent in respect of a Defaulting Lender's Loans
shall not be paid to such Defaulting Lender and shall be held uninvested by the
Agent and paid to such Defaulting Lender upon the Defaulting Lender's curing of
its default.
SECTION 3.11. TAXES.
(a) TAXES GENERALLY. All payments by the Borrower of principal of, and
interest on, the Loans and all other Obligations shall be made free and clear of
and without deduction for any present or future excise, stamp or
-28-
other taxes, fees, duties, levies, imposts, charges, deductions, withholdings or
other charges of any nature whatsoever imposed by any taxing authority, but
excluding (i) franchise taxes, (ii) any taxes (other than withholding taxes)
that would not be imposed but for a connection between the Agent or a Lender and
the jurisdiction imposing such taxes (other than a connection arising solely by
virtue of the activities of the Agent or such Lender pursuant to or in respect
of this Agreement or any other Loan Document), (iii) any taxes imposed on or
measured by any Lender's assets, net or gross income, net or gross receipts,
capital or net worth, excess profits, or conduct of business or branch profits
and (iv) any taxes arising after the Agreement Date solely as a result of or
attributable to a Lender changing its designated Lending Office after the date
such Lender becomes a party hereto (such non-excluded items being collectively
called "Taxes"). If any withholding or deduction from any payment to be made by
the Borrower hereunder is required in respect of any Taxes pursuant to any
Applicable Law, then the Borrower will:
(i) pay directly to the relevant Governmental Authority the full
amount required to be so withheld or deducted;
(ii) promptly forward to the Agent an official receipt or other
documentation satisfactory to the Agent evidencing such payment to such
Governmental Authority; and
(iii) pay to the Agent for its account or the account of the
applicable Lender, as the case may be, such additional amount or amounts
as is necessary to ensure that the net amount actually received by the
Agent or such Lender will equal the full amount that the Agent or such
Lender would have received had no such withholding or deduction been
required.
(b) TAX INDEMNIFICATION. If the Borrower fails to pay any Taxes when due
to the appropriate Governmental Authority or fails to remit to the Agent, for
its account or the account of the respective Lender, as the case may be, the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Agent and the Lenders for any incremental Taxes, interest or
penalties that may become payable by the Agent or any Lender as a result of any
such failure. For purposes of this Section, a distribution hereunder by the
Agent or any Lender to or for the account of any Lender shall be deemed a
payment by the Borrower.
(c) TAX FORMS. Prior to the date that any Lender or Participant organized
under the laws of a jurisdiction outside the United States of America becomes a
party hereto, such Person shall deliver to the Borrower and the Agent such
certificates, documents or other evidence, as required by the Internal Revenue
Code or Treasury Regulations issued pursuant thereto (including Internal Revenue
Service Forms W-8ECI and W-8BEN, as applicable, or appropriate successor forms),
properly completed, currently effective and duly executed by such Lender or
Participant establishing that payments to it hereunder and under the Notes are
(i) not subject to United States Federal backup withholding tax and (ii) not
subject to United States Federal withholding tax under the Code. Each such
Lender or Participant shall (x) deliver further copies of such forms or other
appropriate certifications on or before the date that any such forms expire or
become obsolete and after the occurrence of any event requiring a change in the
most recent form delivered to the Borrower and (y) obtain such extensions of the
time for filing, and renew such forms and certifications thereof, as may be
reasonably requested by the Borrower or the Agent. The Borrower shall not be
required to pay any amount pursuant to last sentence of subsection (a) above to
any Lender or Participant that is organized under the laws of a jurisdiction
outside of the United States of America or the Agent, if it is organized under
the laws of a jurisdiction outside of the United States of America, if such
Lender, Participant or the Agent, as applicable, fails to comply with the
requirements of this subsection.
ARTICLE IV. UNENCUMBERED POOL PROPERTIES
SECTION 4.1. INCLUSION OF UNENCUMBERED POOL PROPERTIES.
(a) EXISTING UNENCUMBERED POOL PROPERTIES. Subject to compliance with the
terms and conditions of Section 6.1.(a), as of the Effective Date the parties
hereto acknowledge and agree that the Properties listed on Schedule 4.1. are
Unencumbered Pool Properties.
(b) ADDITIONAL UNENCUMBERED POOL PROPERTIES. After the Effective Date, an
Eligible Property shall be included as Unencumbered Pool Property upon delivery
to the Agent of (i) an Unencumbered Pool Certificate pursuant to Section 9.4.(a)
setting forth the information required to be contained therein and assuming that
such
-29-
Eligible Property is included as an Unencumbered Pool Property, (ii) such other
information as the Agent or any Lender (through the Agent) may reasonably
request in connection with the evaluation of such Eligible Property. Subject to
the terms and conditions of this Agreement, upon the Agent's receipt of such
certificate and such other information, such Eligible Property shall be included
as an Unencumbered Pool Property. Any Property that does not satisfy the
requirements of an Eligible Property shall be included as an Unencumbered Pool
Property only upon the written approval of the Requisite Lenders. If a Property
that is to become an Unencumbered Pool Property is owned (or is being acquired)
by a Subsidiary of the Borrower that is not yet a party to the Guaranty, such
Property shall not become an Unencumbered Pool Property unless and until an
Accession Agreement executed by such Subsidiary, and all other items required to
be delivered under Section 8.14., have all been delivered to the Agent.
SECTION 4.2. TERMINATION OF DESIGNATION AS UNENCUMBERED POOL PROPERTY.
Any Property previously included as an Unencumbered Pool Property but
which is not included in an Unencumbered Pool Certificate subsequently submitted
pursuant to this Agreement shall no longer be included as an Unencumbered Pool
Property (effective as of the date of receipt by the Agent of such Unencumbered
Pool Certificate) so long as no Default or Event of Default exists or would
exist immediately after such Property is no longer included as an Unencumbered
Pool Property.
ARTICLE V. YIELD PROTECTION, ETC.
SECTION 5.1. ADDITIONAL COSTS; CAPITAL ADEQUACY.
(a) ADDITIONAL COSTS. The Borrower shall promptly pay to the Agent for the
account of a Lender from time to time such amounts as such Lender may reasonably
determine to be necessary to compensate such Lender for any costs incurred by
such Lender that it reasonably determines are attributable to its making or
maintaining of any LIBOR Loans or its obligation to make any LIBOR Loans
hereunder, any reduction in any amount receivable by such Lender under this
Agreement or any of the other Loan Documents in respect of any of such Loans or
such obligation or the maintenance by such Lender of capital in respect of its
Loans or its Commitment (such increases in costs and reductions in amounts
receivable being herein called "Additional Costs"), resulting from any
Regulatory Change that: (i) changes the basis of taxation of any amounts payable
to such Lender under this Agreement or any of the other Loan Documents in
respect of any of such Loans or its Commitment (other than taxes imposed on or
measured by the overall net income of such Lender or of its Lending Office for
any of such Loans by the jurisdiction in which such Lender has its principal
office or such Lending Office); or (ii) imposes or modifies any reserve, special
deposit or similar requirements (including without limitation, Regulation D of
the Board of Governors of the Federal Reserve System or other similar reserve
requirement applicable to any other category of liabilities or category of
extensions of credit or other assets by reference to which the interest rate on
LIBOR Loans is determined) relating to any extensions of credit or other assets
of, or any deposits with or other liabilities of, such Lender, or any commitment
of such Lender (including, without limitation, the Commitment of such Lender
hereunder); or (iii) has or would have the effect of reducing the rate of return
on capital of such Lender to a level below that which such Lender could have
achieved but for such Regulatory Change (taking into consideration such Lender's
policies with respect to capital adequacy). Subject to Section 5.6., the Agent
and each Lender agree to take such steps as the Borrower may reasonably request
to mitigate amounts payable under this Section, so long as such steps are not
disadvantageous to the Agent or such Lender, as the case may be, as determined
by the Agent or such Lender, as the case may be, in its sole discretion.
(b) LENDER'S SUSPENSION OF LIBOR LOANS. Without limiting the effect of the
provisions of the immediately preceding subsection (a), if by reason of any
Regulatory Change, any Lender either (i) incurs Additional Costs based on or
measured by the excess above a specified level of the amount of a category of
deposits or other liabilities of such Lender that includes deposits by reference
to which the interest rate on LIBOR Loans is determined as provided in this
Agreement or a category of extensions of credit or other assets of such Lender
that includes LIBOR Loans or (ii) becomes subject to restrictions on the amount
of such a category of liabilities or assets that it may hold, then, if such
Lender so elects by notice to the Borrower (with a copy to the Agent), the
obligation of such Lender to make or Continue, or to Convert any other Type of
Loans into, LIBOR Loans hereunder shall be suspended until such Regulatory
Change ceases to be in effect (in which case the provisions of Section 5.5.
shall apply).
-30-
(c) ADDITIONAL COSTS IN RESPECT OF LETTERS OF CREDIT. Without limiting the
obligations of the Borrower under the preceding subsections of this Section (but
without duplication), if as a result of any Regulatory Change or any risk-based
capital guideline or other requirement heretofore or hereafter issued by any
Governmental Authority there shall be imposed, modified or deemed applicable any
tax, reserve, special deposit, capital adequacy or similar requirement against
or with respect to or measured by reference to Letters of Credit and the result
shall be to increase the cost to the Agent of issuing (or any Lender of
purchasing participations in) or maintaining its obligation hereunder to issue
(or purchase participations in) any Letter of Credit or reduce any amount
receivable by the Agent or any Lender hereunder in respect of any Letter of
Credit, then, upon demand by the Agent or such Lender, the Borrower shall pay
immediately to the Agent for its account or the account of such Lender, as
applicable, from time to time as specified by the Agent or a Lender, such
additional amounts as shall be sufficient to compensate the Agent or such Lender
for such increased costs or reductions in amount.
(d) NOTIFICATION AND DETERMINATION OF ADDITIONAL COSTS. Each of the Agent
and each Lender agrees to notify the Borrower of any event occurring after the
Agreement Date entitling the Agent or such Lender to compensation under any of
the preceding subsections of this Section as promptly as practicable; provided,
however, the failure of the Agent or any Lender to give such notice shall not
release the Borrower from any of its obligations hereunder. The Agent or such
Lender agrees to furnish to the Borrower a certificate setting forth the basis
and amount of each request by the Agent or such Lender for compensation under
this Section. Determinations by the Agent or any Lender of the effect of any
Regulatory Change shall be conclusive, provided that such determinations are
made on a reasonable basis and in good faith.
SECTION 5.2. SUSPENSION OF LIBOR LOANS.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of LIBOR for any Interest Period:
(a) the Agent reasonably determines (which determination shall be
conclusive absent manifest error) that by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist
for ascertaining LIBOR for such Interest Period, or
(b) the Agent reasonably determines (which determination shall be
conclusive absent manifest error) that LIBOR will not adequately and
fairly reflect the cost to the Lenders of making or maintaining LIBOR
Loans for such Interest Period;
then the Agent shall give the Borrower and each Lender prompt notice thereof
and, so long as such condition remains in effect, the Lenders shall be under no
obligation to, and shall not, make additional LIBOR Loans, Continue LIBOR Loans
or Convert Loans into LIBOR Loans and the Borrower shall, on the last day of
each current Interest Period for each outstanding LIBOR Loan, either repay such
Loan or Convert such Loan into a Base Rate Loan.
SECTION 5.3. ILLEGALITY.
Notwithstanding any other provision of this Agreement, if it becomes
unlawful for any Lender to honor its obligation to make or maintain LIBOR Loans
hereunder, then such Lender shall promptly notify the Borrower thereof (with a
copy to the Agent) and such Lender's obligation to make or Continue, or to
Convert Loans of any other Type into, LIBOR Loans shall be suspended until such
time as such Lender may again make and maintain LIBOR Loans (in which case the
provisions of Section 5.5. shall be applicable).
SECTION 5.4. COMPENSATION.
The Borrower shall pay to the Agent for the account of each Lender, upon
the request of such Lender through the Agent, such amount or amounts as shall be
sufficient (in the reasonable opinion of such Lender) to compensate it for any
loss (other than lost profits), cost or expense that such Lender reasonably
determines is attributable to: (a) any payment or prepayment (whether mandatory
or optional) of a LIBOR Loan, or Conversion of a LIBOR Loan, made by such Lender
for any reason (including, without limitation, acceleration) on a date other
than the last day of the Interest Period for such Loan; or (b) any failure by
the Borrower for any reason (including,
-31-
without limitation, the failure of any of the applicable conditions precedent
specified in Article VI. to be satisfied) to borrow a LIBOR Loan from such
Lender on the date for such borrowing, or to Convert a Base Rate Loan into a
LIBOR Loan or Continue a LIBOR Loan on the requested date of such Conversion or
Continuation. Upon the Borrower's request, any Lender requesting compensation
under this Section shall provide the Borrower with a statement setting forth the
basis for requesting such compensation and the method for determining the amount
thereof. Any such statement shall be conclusive absent manifest error.
SECTION 5.5. TREATMENT OF AFFECTED LOANS.
If the obligation of any Lender to make LIBOR Loans or to Continue, or to
Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to Section
5.1.(b), 5.2. or 5.3., then such Lender's LIBOR Loans shall be automatically
Converted into Base Rate Loans on the last day(s) of the then current Interest
Period(s) for LIBOR Loans (or, in the case of a Conversion required by Section
5.1.(b) or 5.3., on such earlier date as such Lender may specify to the Borrower
with a copy to the Agent) and, unless and until such Lender gives notice as
provided below that the circumstances specified in Section 5.1., 5.2. or 5.3.
that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's LIBOR Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's LIBOR Loans shall be applied instead to its
Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such
Lender as LIBOR Loans shall be made or Continued instead as Base Rate
Loans, and all Base Rate Loans of such Lender that would otherwise be
Converted into LIBOR Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 5.1. or 5.3. that gave rise to the Conversion
of such Lender's LIBOR Loans pursuant to this Section no longer exist (which
such Lender agrees to do promptly upon such circumstances ceasing to exist) at a
time when LIBOR Loans made by other Lenders are outstanding, then such Lender's
Base Rate Loans shall be automatically Converted, on the first day(s) of the
next succeeding Interest Period(s) for such outstanding LIBOR Loans, to the
extent necessary so that, after giving effect thereto, all Loans held by the
Lenders holding LIBOR Loans and by such Lender are held pro rata (as to
principal amounts, Types and Interest Periods) in accordance with their
respective Commitments.
SECTION 5.6. CHANGE OF LENDING OFFICE.
Each Lender agrees that it will use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to designate an
alternate Lending Office with respect to any of its Loans affected by the
matters or circumstances described in Sections 3.11., 5.1. or 5.3. to reduce the
liability of the Borrower or avoid the results provided thereunder, so long as
such designation is not disadvantageous to such Lender as determined by such
Lender in its sole discretion, except that such Lender shall have no obligation
to designate a Lending Office located in the United States of America.
SECTION 5.7. ASSUMPTIONS CONCERNING FUNDING OF LIBOR LOANS.
Calculation of all amounts payable to a Lender under this Article V. shall
be made as though such Lender had actually funded LIBOR Loans through the
purchase of deposits in the relevant market bearing interest at the rate
applicable to such LIBOR Loans in an amount equal to the amount of the LIBOR
Loans and having a maturity comparable to the relevant Interest Period;
provided, however, that each Lender may fund each of its LIBOR Loans in any
manner it sees fit and the foregoing assumption shall be used only for
calculation of amounts payable under this Article V.
-32-
ARTICLE VI. CONDITIONS PRECEDENT
SECTION 6.1. INITIAL CONDITIONS PRECEDENT.
The obligation of the Lenders to effect or permit the occurrence of the
first Credit Event hereunder, whether as the making of a Loan or the issuance of
a Letter of Credit, is subject to the satisfaction or waiver of the following
conditions precedent:
(a) The Agent shall have received each of the following, in form and
substance satisfactory to the Agent:
(i) counterparts of this Agreement executed by each of the parties
hereto;
(ii) Revolving Notes executed by the Borrower, payable to each
Lender and complying with the terms of Section 2.11. and the Swingline
Note executed by the Borrower;
(iii) the Guaranty executed by the Parent, and any other Person that
would be required under Section 8.14. to become a party to the Guaranty as
of the Effective Date;
(iv) an opinion of counsel to the Parent, the Borrower and, unless
otherwise agreed by the Agent with respect to a given Guarantor, each of
the other Guarantors that owns any Unencumbered Pool Property, addressed
to the Agent and the Lenders and covering the matters set forth in Exhibit
J;
(v) the certificate or articles of incorporation, articles of
organization, certificate of limited partnership, declaration of trust or
other comparable organizational instrument (if any) of the Parent, the
Borrower and each of the other Guarantors that owns any Unencumbered Pool
Property certified as of a recent date by the Secretary of State of the
state of formation of such Person;
(vi) a certificate of good standing (or certificate of similar
meaning) with respect to the Parent, the Borrower and each of the other
Guarantors that owns any Unencumbered Pool Property issued as of a recent
date by the Secretary of State of the state of formation of each such
Person and certificates of qualification to transact business or other
comparable certificates issued by each Secretary of State (and any state
department of taxation, as applicable) of each state in which such Person
is required to be so qualified;
(vii) a certificate of incumbency signed by the Secretary or
Assistant Secretary (or other individual performing similar functions) of
each Loan Party with respect to each of the officers of such Person
authorized to execute and deliver the Loan Documents to which such Person
is a party, and in the case of the Borrower, authorized to execute and
deliver on behalf of the Borrower Notices of Borrowing, Notices of
Swingline Borrowing, requests for Letters of Credit, Notices of Conversion
and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or
other individual performing similar functions) of each Loan Party of (x)
the by-laws of such Person, if a corporation, the operating agreement, if
a limited liability company, the partnership agreement, if a limited or
general partnership, or other comparable document in the case of any other
form of legal entity, (y) all corporate, partnership, member or other
necessary action taken by such Person to authorize the execution, delivery
and performance of the Loan Documents to which it is a party and (z) in
the case of any Guarantor other than the Parent and any Guarantor that
owns an Unencumbered Pool Property, the certificate or articles of
incorporation, articles of organization, certificate of limited
partnership, declaration of trust or other comparable organizational
instrument (if any) of such Person;
(ix) a Unencumbered Pool Certificate calculated as of the Effective
Date;
(x) a Compliance Certificate calculated on a pro forma basis for the
Parent's fiscal quarter ended September 30, 2001;
-33-
(xi) pro forma calculations, together with detailed assumptions,
establishing that the Parent, and when appropriate its consolidated
Subsidiaries, will be in compliance with the covenants contained in
Section 10.1. at the end of each of the next eight fiscal quarters;
(xii) a copy of the Existing Credit Agreement, including all
amendments thereto;
(xiii) the Fleet Assignment Agreement executed and delivered by the
parties thereto;
(xiv) the copies (or originals if available) of each outstanding
Note (as defined in the Existing Credit Agreement) held by any Lender (as
defined in the Existing Credit Agreement) that is not also a Lender under
this Agreement (and in the case of originals, duly endorsed to the order
of Xxxxx Fargo);
(xv) copies of each of the
New York Collateral Documents, including
all amendments thereto, showing all recording information thereon
certified as true, correct and complete by an authorized officer of the
Parent;
(xvi) assignments of each of the
New York Collateral Documents
executed by the Existing Agent, such assignments relating to the
applicable Mortgages to be substantially in the form of Exhibit L (each a
"Mortgage Assignment");
(xvii) modifications to each of the
New York Collateral Documents
executed by the applicable Loan Parties, such modifications relating to
the applicable Mortgages to be substantially in the form of Exhibit M
(each a "Mortgage Modification");
(xviii) all documents necessary in the sole discretion of the Agent
to release any Liens created in connection with, or otherwise securing any
obligations of any Loan Party owing in connection with, the Existing
Credit Agreement, other than the
New York Collateral Documents;
(xix) copies of each environmental assessments reports on the
Properties subject to the
New York Collateral Documents available to the
Borrower, together with reliance letters from the environmental
engineering firms performing such assessments addressed to the Agent and
the Lenders;
(xx) an Environmental Indemnity Agreement executed by the Borrower
and the Parent with respect to each Property subject to a New York
Collateral Document, such agreement to be substantially in the form of
Exhibit N (each an "Environmental Indemnity Agreement"); and
(xxi) such other documents and instruments as the Agent, or any
Lender through the Agent, may reasonably request.
(b) In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Agent or
any of the Lenders any event, condition, situation or status since the
date of the information contained in the financial and business
projections, budgets, pro forma data and forecasts concerning the Parent
and its Subsidiaries delivered to the Agent and the Lenders prior to the
Agreement Date that has had or could reasonably be expected to result in a
Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral,
administrative or judicial proceeding shall be pending or threatened which
could reasonably be expected to (A) result in a Material Adverse Effect or
(B) restrain or enjoin, impose materially burdensome conditions on, or
otherwise materially and adversely affect, the ability of any Loan Party
to fulfill its obligations under the Loan Documents to which it is a
party; and
(iii) The Borrower and the other Loan Parties shall have received
all approvals, consents and waivers, and shall have made or given all
necessary filings and notices as shall be required to consummate the
transactions contemplated hereby without the occurrence of any default
under, conflict with or violation
-34-
of (A) any Applicable Law or (B) any agreement, document or instrument to
which any Loan Party is a party or by which any of them or their
respective properties is bound, except for such approvals, consents,
waivers, filings and notices the receipt, making or giving of which, or
the failure to make, give or receive which, would not reasonably be likely
to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose
materially burdensome conditions on, or otherwise materially and adversely
affect the ability of the Borrower or any other Loan Party to fulfill its
obligations under the Loan Documents to which it is a party.
SECTION 6.2. CONDITIONS PRECEDENT TO ALL LOANS AND LETTERS OF CREDIT.
The obligations of (i) Lenders to make any Loans, and (ii) the Agent to
issue Letters of Credit, are each subject to the further conditions precedent
that: (a) no Default or Event of Default shall exist as of the date of the
making of such Loan or date of issuance of such Letter of Credit or would exist
immediately after giving effect thereto, and none of the conditions described in
Section 2.15. would exist after giving effect thereto; (b) the representations
and warranties made or deemed made by the Borrower and each other Loan Party in
the Loan Documents to which any of them is a party shall be true and correct on
and as of the date of the making of such Loan or date of issuance of such Letter
of Credit with the same force and effect as if made on and as of such date
except to the extent that such representations and warranties expressly relate
solely to an earlier date (in which case such representations and warranties
shall have been true and accurate on and as of such earlier date) and except for
changes in factual circumstances specifically and expressly permitted hereunder
and (c) in the case of the borrowing of Revolving Loans, the Agent shall have
received a timely Notice of Borrowing, or in the case of a Swingline Loan, the
Swingline Lender shall have received a timely Notice of Swingline Borrowing.
Each Credit Event shall constitute a certification by the Borrower to the effect
set forth in the preceding sentence (both as of the date of the giving of notice
relating to such Credit Event and, unless the Borrower otherwise notifies the
Agent prior to the date of such Credit Event, as of the date of the occurrence
of such Credit Event). In addition, the Borrower shall be deemed to have
represented to the Agent and the Lenders at the time such Loan is made or such
Letter of Credit is issued that all conditions to the making of such Loan or
issuing of such Letter of Credit contained in this Article VI. have been
satisfied.
SECTION 6.3. CONDITIONS AS COVENANTS.
If the Lenders permit the making of any Loans, or the Agent issues a
Letter of Credit, prior to the satisfaction of all conditions precedent set
forth in Sections 6.1. and 6.2., the Borrower shall nevertheless cause such
condition or conditions to be satisfied within 5 Business Days after the date of
the making of such Loans or the issuance of such Letter of Credit. Unless set
forth in writing to the contrary, the making of its initial Loan by a Lender
shall constitute a confirmation by such Lender to the Agent and the other
Lenders that insofar as such Lender is concerned the Borrower has satisfied the
conditions precedent for initial Loans set forth in Sections 6.1. and 6.2.
ARTICLE VII. REPRESENTATIONS AND WARRANTIES
SECTION 7.1. REPRESENTATIONS AND WARRANTIES.
In order to induce the Agent and each Lender to enter into this Agreement
and to make Loans and, in the case of the Agent, to issue Letters of Credit,
and, in the case of the Lenders, to acquire participations in Letters of Credit,
each of the Parent and the Borrower represents and warrants to the Agent and
each Lender as follows:
(a) ORGANIZATION; POWER; QUALIFICATION. Each of the Loan Parties and the
other Subsidiaries is a corporation, partnership or other legal entity, duly
organized or formed, validly existing and in good standing under the
jurisdiction of its incorporation or formation, has the power and authority to
own or lease its respective properties and to carry on its respective business
as now being and hereafter proposed to be conducted and is duly qualified and is
in good standing as a foreign corporation, partnership or other legal entity,
and authorized to do business, in each jurisdiction in which the character of
its properties or the nature of its business requires such qualification or
authorization and where the failure to be so qualified or authorized could
reasonably be expected to have, in each instance, a Material Adverse Effect.
(b) OWNERSHIP STRUCTURE. Part I of Schedule 7.1.(b) is, as of the
Agreement Date, a complete and correct list of all Subsidiaries of the Parent
(including all Subsidiaries of the Borrower), setting forth for each such
-35-
Subsidiary, (a) the jurisdiction of organization of such Subsidiary, (b) each
Person holding ownership interests in such Subsidiary, (c) the nature of the
ownership interests held by each such Person and (d) the percentage of ownership
of such Subsidiary represented by such ownership interests. Except as disclosed
in such Schedule, as of the Agreement Date (i) each of the Parent and its
Subsidiaries owns, free and clear of all Liens, and has the unencumbered right
to vote, all outstanding ownership interests in each Person shown to be held by
it on such Schedule, (ii) all of the issued and outstanding capital stock of
each such Person organized as a corporation is validly issued, fully paid and
nonassessable and (iii) there are no outstanding subscriptions, options,
warrants, commitments, preemptive rights or agreements of any kind (including,
without limitation, any stockholders' or voting trust agreements) for the
issuance, sale, registration or voting of, or outstanding securities convertible
into, any additional shares of capital stock of any class, or partnership or
other ownership interests of any type in, any such Person. Part II of Schedule
7.1.(b) correctly sets forth all Unconsolidated Affiliates of the Parent,
including the correct legal name of such Person, the type of legal entity which
each such Person is, and all ownership interests in such Person held directly or
indirectly by the Parent. Part III of Schedule 7.1.(b) is, as of the Agreement
Date, a complete and correct list of all Non-Guarantor Entities, setting forth,
for each such Person, the correct legal name of such Person, the type of legal
entity which each such Person is, and all equity interests in such Person held
directly or indirectly by the Borrower.
(c) AUTHORIZATION OF AGREEMENT, NOTES, LOAN DOCUMENTS AND BORROWINGS. Each
Loan Party has the right and power, and has taken all necessary action to
authorize it, to borrow and obtain other extensions of credit hereunder (in the
case of the Borrower) and to execute, deliver and perform this Agreement, the
Notes and the other Loan Documents to which it is a party in accordance with
their respective terms and to consummate the transactions contemplated hereby
and thereby, as the case may be. This Agreement, the Notes and each of the other
Loan Documents to which any Loan Party is a party have been duly executed and
delivered by such Loan Party and each is a legal, valid and binding obligation
of such Loan Party enforceable against such Loan Party in accordance with its
respective terms, except as the same may be limited by bankruptcy, insolvency,
and other similar laws affecting the rights of creditors generally and the
availability of equitable remedies for the enforcement of certain obligations
contained herein or therein may be limited by equitable principles generally.
(d) COMPLIANCE OF AGREEMENT, ETC. WITH LAWS. The execution, delivery and
performance of this Agreement and the other Loan Documents to which any Loan
Party is a party in accordance with their respective terms and the borrowings
and other extensions of credit hereunder do not and will not, by the passage of
time, the giving of notice, or both: (i) require any Governmental Approval or
violate any Applicable Law (including all Environmental Laws) relating to any
Loan Party; (ii) conflict with, result in a breach of or constitute a default
under the organizational documents of any Loan Party, or any indenture,
agreement or other instrument to which any Loan Party is a party or by which it
or any of its respective properties may be bound; or (iii) result in or require
the creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by any Loan Party other than in favor of the Agent
for the benefit of the Lenders.
(e) COMPLIANCE WITH LAW; GOVERNMENTAL APPROVALS. Each Loan Party and each
other Subsidiary is in compliance with each Governmental Approval and all other
Applicable Laws relating to it except for noncompliances which, and Governmental
Approvals the failure to possess which, could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(f) TITLE TO PROPERTIES; LIENS. Schedule 7.1.(f) is, as of the Agreement
Date, a complete and correct listing of all real estate assets of the Loan
Parties and the other Subsidiaries, setting forth, for each such Property, the
current occupancy status of such Property and whether such Property is a
Development Property or Redevelopment Property and, if such Property is a
Development Property or Redevelopment Property, the status of completion of such
Property. Each of the Loan Parties and all other Subsidiaries has good,
marketable and legal title to, or a valid leasehold interest in, its respective
assets.
(g) EXISTING INDEBTEDNESS; TOTAL LIABILITIES. Part I of Schedule 7.1.(g)
is, as of the Agreement Date, a complete and correct listing of all Indebtedness
(including all Guarantees) of each of the Loan Parties and the other
Subsidiaries, and if such Indebtedness is secured by any Lien, a description of
all of the property subject to such Lien. As of the Agreement Date, the Loan
Parties and the other Subsidiaries have performed and are in compliance with all
of the terms of such Indebtedness and all instruments and agreements relating
thereto, and no default or event of default, or event or condition which with
the giving of notice, the lapse of time, or both, would constitute a
-36-
default or event of default, exists with respect to any such Indebtedness. Part
II of Schedule 7.1.(g) is, as of the Agreement Date, a complete and correct
listing of all Total Liabilities of the Loan Parties and the other Subsidiaries
(excluding any Indebtedness set forth on Part I of such Schedule).
(h) MATERIAL CONTRACTS. Schedule 7.1.(h) is, as of the Agreement Date, a
true, correct and complete listing of all Material Contracts. Each of the Loan
Parties and the other Subsidiaries that are parties to any Material Contract has
performed and is in compliance with all of the terms of such Material Contract,
and no default or event of default, or event or condition which with the giving
of notice, the lapse of time, or both, would constitute a default or event of
default, exists with respect to any such Material Contract.
(i) LITIGATION. Except as set forth on Schedule 7.1.(i), there are no
actions, suits or proceedings pending (nor, to the knowledge of any Loan Party,
are there any actions, suits or proceedings threatened, nor is there any basis
therefor) against or in any other way relating adversely to or affecting any
Loan Party, any other Subsidiary or any of their respective property in any
court or before any arbitrator of any kind or before or by any other
Governmental Authority which, if adversely determined, could reasonably be
expected to have a Material Adverse Effect, and there are no strikes, slow
downs, work stoppages or walkouts or other labor disputes in progress or
threatened relating to any Loan Party or any other Subsidiary.
(j) TAXES. All federal, state and other tax returns of each Loan Party and
each other Subsidiary required by Applicable Law to be filed have been duly
filed, and all federal, state and other taxes, assessments and other
governmental charges or levies upon each Loan Party and each other Subsidiary
and their respective properties, income, profits and assets which are due and
payable have been paid, except any such nonpayment or non-filing which is at the
time permitted under Section 8.6. As of the Agreement Date, none of the United
States income tax returns of any Loan Party or any other Subsidiary is under
audit. All charges, accruals and reserves on the books of the Parent and each of
its Subsidiaries in respect of any taxes or other governmental charges are in
accordance with GAAP.
(k) FINANCIAL STATEMENTS. The Parent has furnished to each Lender copies
of (i) the audited consolidated balance sheet of the Parent and its consolidated
Subsidiaries for the fiscal years ended December 31, 1999 and December 31, 2000,
and the related consolidated statements of operations, shareholders' equity and
cash flow for the fiscal years ended on such dates, with the opinion thereon of
Xxxxxx Xxxxxxxx LLP, and (ii) the unaudited consolidated balance sheet of the
Parent and its consolidated Subsidiaries for the fiscal quarter ended September
30, 2001, and the related consolidated statements of operations and cash flow of
the Parent and its consolidated Subsidiaries for the three fiscal quarter period
ended on such date. Such balance sheets and statements (including in each case
related schedules and notes) are complete and correct in all material respects
and present fairly, in accordance with GAAP consistently applied throughout the
periods involved, the consolidated financial position of the Borrower and its
consolidated Subsidiaries as at their respective dates and the results of
operations and the cash flow for such periods (subject, as to interim
statements, to changes resulting from normal year-end audit adjustments).
Neither the Parent nor any of its Subsidiaries has on the Agreement Date any
material contingent liabilities, liabilities, liabilities for taxes, unusual or
long-term commitments or unrealized or forward anticipated losses from any
unfavorable commitments, except as referred to or reflected or provided for in
said financial statements.
(l) NO MATERIAL ADVERSE CHANGE. Since December 31, 2000, there has been no
material adverse change in the consolidated financial condition, results of
operations, business or prospects of the Parent and its consolidated
Subsidiaries taken as a whole. Each of the Loan Parties is Solvent and the
Parent and its Subsidiaries, taken as a whole, are Solvent.
(m) ERISA. Each member of the ERISA Group has fulfilled its obligations as
required under the minimum funding standards of ERISA and the Internal Revenue
Code with respect to each Plan and is in compliance in all material respects
with the presently applicable provisions of ERISA and the Internal Revenue Code
with respect to each Plan. No member of the ERISA Group has (i) sought a waiver
of the minimum funding standard under Section 412 of the Internal Revenue Code
in respect of any Plan, (ii) failed to make any contribution or payment to any
Plan or Multiemployer Plan or in respect of any Benefit Arrangement which could
reasonably be expected to have a Material Adverse Effect, or made any amendment
to any Plan or Benefit Arrangement, which has resulted or could result in the
imposition of a Lien or the posting of a bond or other security under ERISA or
the
-00-
Xxxxxxxx Xxxxxxx Code or (iii) incurred any liability under Title IV of ERISA
other than a liability to the PBGC for premiums under Section 4007 of ERISA.
(n) ABSENCE OF DEFAULTS. None of the Loan Parties or the other
Subsidiaries is in default under its articles of incorporation, bylaws,
partnership agreement or other similar organizational documents, and no event
has occurred, which has not been remedied, cured or waived: (i) which
constitutes a Default or an Event of Default; or (ii) which constitutes, or
which with the passage of time, the giving of notice, or both, would constitute,
a default or event of default by any Loan Party or any other Subsidiary under
any agreement (other than this Agreement) or judgment, decree or order to which
any such Person is a party or by which any such Person or any of its respective
properties may be bound where such default or event of default could,
individually or in the aggregate, have a Material Adverse Effect.
(o) ENVIRONMENTAL LAWS. In the ordinary course of business and from time
to time each of the Loan Parties and the other Subsidiaries conducts reviews of
the effect of Environmental Laws on its respective business, operations and
properties, including without limitation, its respective Properties, in the
course of which such Loan Party or such other Subsidiary identifies and
evaluates associated liabilities and costs (including, without limitation,
determining whether any capital or operating expenditures are required for
clean-up or closure of properties presently or previously owned, determining
whether any capital or operating expenditures are required to achieve or
maintain compliance in all material respects with Environmental Laws or required
as a condition of any Governmental Approval, any contract, or any related
constraints on operating activities, determining whether any costs or
liabilities exist in connection with off-site disposal of wastes or Hazardous
Materials, and determining whether any actual or potential liabilities to third
parties, including employees, and any related costs and expenses exist). Each of
the Loan Parties and the other Subsidiaries is in compliance with all applicable
Environmental Laws and has obtained all Governmental Approvals which are
required under Environmental Laws and is in compliance with all terms and
conditions of such Governmental Approvals, where with respect to each of the
foregoing the failure to obtain or to comply with could be reasonably expected
to have a Material Adverse Effect. Except for any of the following matters that
could not be reasonably expected to have a Material Adverse Effect, no Loan
Party is aware of, nor has it received notice of, any past or present events,
conditions, circumstances, activities, practices, incidents, actions, or plans
which, with respect to any Loan Party or any other Subsidiary, may unreasonably
interfere with or prevent compliance or continued compliance with Environmental
Laws, or may give rise to any common-law or legal liability, based on or related
to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling or the emission, discharge, release or threatened release
into the environment, of any Hazardous Material; and there is no civil,
criminal, or administrative action, suit, demand, claim, hearing, notice, or
demand letter, notice of violation, investigation, or proceeding pending or, to
the Parent's knowledge after due inquiry, threatened, against any Loan Party or
any other Subsidiary relating in any way to Environmental Laws which, if
determined adversely to such Loan Party or such other Subsidiary, could be
reasonably expected to have a Material Adverse Effect.
(p) INVESTMENT COMPANY; PUBLIC UTILITY HOLDING COMPANY. No Loan Party, nor
any other Subsidiary, is (i) an "investment company" or a company "controlled"
by an "investment company" within the meaning of the Investment Company Act of
1940, as amended, (ii) a "holding company" or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended, or (iii) subject to any other
Applicable Law which purports to regulate or restrict its ability to borrow
money or obtain other extensions of credit or to consummate the transactions
contemplated by this Agreement or to perform its obligations under any Loan
Document to which it is a party.
(q) MARGIN STOCK. No Loan Party nor any other Subsidiary is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose, whether immediate, incidental or ultimate, of buying or
carrying "margin stock" within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System.
(r) AFFILIATE TRANSACTIONS. Except as permitted by Section 10.10., no Loan
Party nor any other Subsidiary is a party to or bound by any agreement or
arrangement (whether oral or written) with any Affiliate.
-38-
(s) INTELLECTUAL PROPERTY. Each of the Loan Parties and each other
Subsidiary owns or has the right to use, under valid license agreements or
otherwise, all patents, licenses, franchises, trademarks, trademark rights,
trade names, trade name rights, trade secrets and copyrights (collectively,
"Intellectual Property") necessary to the conduct of its businesses, without
known conflict with any patent, license, franchise, trademark, trade secret,
trade name, copyright, or other proprietary right of any other Person. All such
Intellectual Property is fully protected and/or duly and properly registered,
filed or issued in the appropriate office and jurisdictions for such
registrations, filing or issuances. No material claim has been asserted by any
Person with respect to the use of any such Intellectual Property, or challenging
or questioning the validity or effectiveness of any such Intellectual Property.
(t) BUSINESS. As of the Agreement Date, the Loan Parties and the other
Subsidiaries are engaged in the business of owning, developing and managing
office and industrial properties.
(u) BROKER'S FEES. No broker's or finder's fee, commission or similar
compensation will be payable with respect to the transactions contemplated
hereby. No other similar fees or commissions will be payable by any Loan Party
for any other services rendered to any Loan Party or any other Subsidiaries
ancillary to the transactions contemplated hereby.
(v) ACCURACY AND COMPLETENESS OF INFORMATION. All written information,
reports and other papers and data furnished to the Agent or any Lender by, on
behalf of, or at the direction of any Loan Party or any other Subsidiary were,
at the time the same were so furnished, complete and correct in all material
respects, to the extent necessary to give the recipient a true and accurate
knowledge of the subject matter, or, in the case of financial statements,
present fairly, in accordance with GAAP consistently applied throughout the
periods involved, the financial position of the Persons involved as at the date
thereof and the results of operations for such periods. No fact is known to any
Loan Party which has had, or may in the future have (so far as any Loan Party
can reasonably foresee), a Material Adverse Effect which has not been set forth
in the financial statements referred to in Section 7.1.(k) or in such
information, reports or other papers or data or otherwise disclosed in writing
to the Agent and the Lenders prior to the Effective Date. No document furnished
or written statement made to the Agent or any Lender in connection with the
negotiation, preparation or execution, or pursuant to, of this Agreement or any
of the other Loan Documents contains or will contain any untrue statement of a
fact material to the creditworthiness of any Loan Party or any other Subsidiary
or omits or will omit to state a material fact necessary in order to make the
statements contained therein not misleading.
(w) NOT PLAN ASSETS; NO PROHIBITED TRANSACTIONS. None of the assets of any
Loan Party or any other Subsidiary constitutes "plan assets" within the meaning
of ERISA, the Internal Revenue Code and the respective regulations promulgated
thereunder, of any Plan. The execution, delivery and performance of the Loan
Documents by the Loan Parties, and the borrowing, other credit extensions and
repayment of amounts thereunder, do not and will not constitute "prohibited
transactions" under ERISA or the Internal Revenue Code.
(x) UNENCUMBERED POOL PROPERTIES. Each of the Unencumbered Pool Properties
qualifies as an Eligible Property.
SECTION 7.2. SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC.
All statements contained in any certificate, financial statement or other
instrument delivered by or on behalf of any Loan Party or any other Subsidiary
to the Agent or any Lender pursuant to or in connection with this Agreement or
any of the other Loan Documents (including, but not limited to, any such
statement made in or in connection with any amendment thereto or any statement
contained in any certificate, financial statement or other instrument delivered
by or on behalf of any Loan Party prior to the Agreement Date and delivered to
the Agent or any Lender in connection with closing the transactions contemplated
hereby) shall constitute representations and warranties made by the Parent and
the Borrower under this Agreement. All representations and warranties made under
this Agreement and the other Loan Documents shall be deemed to be made at and as
of the Agreement Date, the Effective Date and at and as of the date of the
occurrence of each Credit Event, except to the extent that such representations
and warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and accurate on and as of
such earlier date) and except for changes in factual circumstances specifically
permitted hereunder. All such representations and warranties shall survive the
-39-
effectiveness of this Agreement, the execution and delivery of the Loan
Documents and the making of the Loans and the issuance of the Letters of Credit.
ARTICLE VIII. AFFIRMATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 13.7., all of the Lenders) shall otherwise
consent in the manner provided for in Section 13.7., the Parent shall comply
with the following covenants:
SECTION 8.1. PRESERVATION OF EXISTENCE AND SIMILAR MATTERS.
Except as otherwise permitted under Section 10.6., the Parent shall, and
shall cause each other Loan Party and each other Subsidiary to, preserve and
maintain its respective existence, rights, franchises, licenses and privileges
in the jurisdiction of its incorporation or formation and qualify and remain
qualified and authorized to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification and authorization and where the failure to be so authorized and
qualified could reasonably be expected to have a Material Adverse Effect.
SECTION 8.2. COMPLIANCE WITH APPLICABLE LAW AND MATERIAL CONTRACTS.
The Parent shall, and shall cause each other Loan Party and each other
Subsidiary to, comply with (a) all Applicable Law, including the obtaining of
all Governmental Approvals, the failure with which to comply could reasonably be
expected to have a Material Adverse Effect, and (b) all terms and conditions of
all Material Contracts to which it is a party.
SECTION 8.3. MAINTENANCE OF PROPERTY.
In addition to the requirements of any of the other Loan Documents, the
Parent shall, and shall cause each other Loan Party and each other Subsidiary
to, (a) protect and preserve all of its material properties, including, but not
limited to, all Intellectual Property necessary to the conduct of its respective
business, and maintain in good repair, working order and condition all tangible
properties, ordinary wear and tear excepted, and (b) from time to time make or
cause to be made all needed and appropriate repairs, renewals, replacements and
additions to such properties, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times.
SECTION 8.4. CONDUCT OF BUSINESS.
The Parent shall, and shall cause the other Loan Parties and each other
Subsidiary to, carry on its respective businesses as described in Section
7.1.(t) and not enter into any line of business not otherwise engaged in by such
Person as of the Agreement Date.
SECTION 8.5. INSURANCE.
The Parent shall, and shall cause each other Loan Party and each other
Subsidiary to, maintain insurance with financially sound and reputable insurance
companies against such risks and in such amounts as is customarily maintained by
similar businesses or as may be required by Applicable Law. The Parent shall
from time to time deliver to the Agent upon request a detailed list, together
with copies of all policies of the insurance then in effect, stating the names
of the insurance companies, the amounts and rates of the insurance, the dates of
the expiration thereof and the properties and risks covered thereby.
SECTION 8.6. PAYMENT OF TAXES AND CLAIMS.
The Parent shall, and shall cause each other Loan Party and each other
Subsidiary to, pay and discharge when due (a) all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or
-40-
profits or upon any properties belonging to it, and (b) all lawful claims of
materialmen, mechanics, carriers, warehousemen and landlords for labor,
materials, supplies and rentals which, if unpaid, might become a Lien on any
properties of such Person; provided, however, that this Section shall not
require the payment or discharge of any such tax, assessment, charge, levy or
claim (i) which is being contested in good faith by appropriate proceedings
which operate to suspend the collection thereof and for which adequate reserves
have been established on the books of such Person in accordance with GAAP or
(ii) non-payment of which or the failure to discharge which could not reasonably
be expected to have a Material Adverse Effect.
SECTION 8.7. BOOKS AND RECORDS; INSPECTIONS.
The Parent will, and will cause each other Loan Party and each other
Subsidiary to, keep proper books of record and account in which full, true and
correct entries shall be made of all dealings and transactions in relation to
its business and activities. The Parent will, and will cause each other Loan
Party and each other Subsidiary to, permit representatives of the Agent or any
Lender to visit and inspect any of their respective properties, to examine and
make abstracts from any of their respective books and records and to discuss
their respective affairs, finances and accounts with their respective officers,
employees and independent public accountants (in the Borrower's or the Parent's
presence if an Event of Default does not then exist), all at such reasonable
times during business hours and as often as may reasonably be requested and so
long as no Event of Default exists, with reasonable prior notice. The Borrower
shall be obligated to reimburse the Agent and the Lenders for their costs and
expenses incurred in connection with the exercise of their rights under this
Section only if such exercise occurs while a Default or Event of Default exists.
SECTION 8.8. USE OF PROCEEDS.
The Borrower will only use the proceeds of the Loans for pre-development
costs, development costs, acquisitions, capital expenditures, working capital,
equity investments, repayment of Indebtedness or scheduled amortization payments
on Indebtedness, and general corporate purposes. The Borrower shall only use
Letters of Credit for the same purposes for which it may use the proceeds of
Loans. The Borrower shall not, and shall not permit any other Loan Party or any
other Subsidiary to, use any part of such proceeds to purchase or carry, or to
reduce or retire or refinance any credit incurred to purchase or carry, any
margin stock (within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System) or to extend credit to others for the purpose of
purchasing or carrying any such margin stock.
SECTION 8.9. ENVIRONMENTAL MATTERS.
The Parent shall, and shall cause each other Loan Party and each other
Subsidiary to, comply with all Environmental Laws the failure with which to
comply could reasonably be expected to have a Material Adverse Effect. If any
Loan Party or any other Subsidiary shall (a) receive notice that any violation
of any Environmental Law may have been committed or is about to be committed by
such Person, (b) receive notice that any administrative or judicial complaint or
order has been filed or is about to be filed against any such Person alleging
violations of any Environmental Law or requiring any such Person to take any
action in connection with the release of Hazardous Materials or (c) receive any
notice from a Governmental Authority or private party alleging that any such
Person may be liable or responsible for costs associated with a response to or
cleanup of a release of Hazardous Materials or any damages caused thereby, and
such notices, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect, the Borrower shall provide the Agent with a copy
of such notice within 10 days after the receipt thereof by such Person or any of
the Subsidiaries. The Loan Parties and the other Subsidiaries shall promptly
take all actions necessary to prevent the imposition of any Liens on any of
their respective properties arising out of or related to any Environmental Laws.
SECTION 8.10. FURTHER ASSURANCES.
At the Borrower's cost and expense and upon request of the Agent, the
Parent shall, and shall cause each other Loan Party and each other Subsidiary
to, duly execute and deliver or cause to be duly executed and delivered, to the
Agent such further instruments, documents and certificates, and do and cause to
be done such further acts that may be reasonably necessary or advisable in the
reasonable opinion of the Agent to carry out more effectively the provisions and
purposes of this Agreement and the other Loan Documents.
-41-
SECTION 8.11. MATERIAL CONTRACTS.
The Parent shall, and shall cause each other Loan Party and each other
Subsidiary to, duly and punctually perform and comply with any and all material
representations, warranties, covenants and agreements expressed as binding upon
any such Person under any Material Contract. The Parent shall not, and shall not
permit any other Loan Party or any other Subsidiary to, do or knowingly permit
to be done anything to impair materially the value of any of the Material
Contracts.
SECTION 8.12. REIT STATUS.
The Parent shall maintain its status as a REIT.
SECTION 8.13. EXCHANGE LISTING.
The Parent shall maintain at least one class of common shares of the
Parent having trading privileges on the New York Stock Exchange or the American
Stock Exchange or which is subject to price quotations on The NASDAQ Stock
Market's National Market System.
SECTION 8.14. GUARANTORS; RELEASE OF GUARANTORS.
(a) GENERALLY. The Parent shall cause any Subsidiary and any
Unconsolidated Affiliate that is not already a Guarantor and to which any of the
following conditions apply (each a "New Guarantor") to execute and deliver to
the Agent an Accession Agreement, together with the other items required to be
delivered under the subsection (c) below:
(i) In the case of a Subsidiary, such Subsidiary (A) owns an
Unencumbered Pool Property or (B) is a Wholly Owned Subsidiary; or
(ii) In the case of any Subsidiary or any Unconsolidated Affiliate,
such Person shall Guarantee, or otherwise become obligated in respect of,
any Indebtedness of the Borrower, any Subsidiary or any Non-Guarantor
Entity (except in the case of an Unconsolidated Affiliate Guaranteeing, or
otherwise becoming obligated in respect of, any Indebtedness of another
Unconsolidated Affiliate).
Any such Accession Agreement and the other items required under subsection (c)
below must be delivered to the Agent no later than 10 days following the date on
which any of the above conditions first applies to a New Guarantor.
Notwithstanding the foregoing, a Person shall not be required to become a
Guarantor if such Person cannot become a party to the Guaranty without
violating: (x) terms of its articles of incorporation, bylaws, operating
agreement, partnership agreement, declaration of trust or other similar
organizational document, which terms expressly prohibit such Person from
providing Guarantees of Indebtedness of any other Person or from otherwise
incurring any Indebtedness or (y) any fiduciary obligation owing by such Person,
under Applicable Law or otherwise in the good faith judgment of such Person, to
the holders of an equity interest in such Person. The Parent shall deliver to
the Agent promptly upon request copies of such organizational documents or such
other items as the Agent may reasonably request to confirm the possibility of
such violation.
(b) OTHER GUARANTORS. The Borrower may, at its option, cause any other
Person that is not already a Guarantor to become a Guarantor by causing such
Person to execute and deliver to the Agent an Accession Agreement, together with
the other items required to be delivered under the subsection (c) below.
(c) REQUIRED DELIVERIES. Each Accession Agreement delivered by a New
Guarantor under the immediately preceding subsections (a) or (b) shall be
accompanied by each of the following in form and substance reasonably
satisfactory to the Agent:
(i) an opinion of counsel to such New Guarantor, addressed to the
Agent and the Lenders and addressing the same legal matters as are
addressed in the opinions delivered pursuant to Section 6.1.(a)(iv);
-42-
(ii) the certificate or articles of incorporation, articles of
organization, certificate of limited partnership, declaration of trust or
other comparable organizational instrument (if any) of such New Guarantor
certified as of a recent date by the Secretary of State of the state of
formation of such New Guarantor;
(iii) a certificate of good standing (or certificate of similar
meaning) with respect to such New Guarantor issued as of a recent date by
the Secretary of State of the state of formation of such New Guarantor and
certificates of qualification to transact business or other comparable
certificates issued by each Secretary of State (and any state department
of taxation, as applicable) of each state in which such New Guarantor is
required to be so qualified;
(iv) a certificate of incumbency signed by the Secretary or
Assistant Secretary (or other individual performing similar functions) of
such New Guarantor with respect to each of the officers of such New
Guarantor authorized to execute and deliver the Loan Documents to which
such New Guarantor is a party;
(v) copies certified by the Secretary or Assistant Secretary of such
New Guarantor (or other individual performing similar functions) of (i)
the by-laws of such New Guarantor, if a corporation, the operating
agreement, if a limited liability company, the partnership agreement, if a
limited or general partnership, or other comparable document in the case
of any other form of legal entity and (ii) all corporate, partnership,
member or other necessary action taken by such New Guarantor to authorize
the execution, delivery and performance of the Loan Documents to which it
is a party; and
(vi) such other documents and instruments as the Agent, or any
Lender through the Agent, may reasonably request.
(d) RELEASE OF GUARANTOR. The Borrower may request in writing that the
Agent release, and upon receipt of such request the Agent shall release, a
Guarantor from it obligations under the Guaranty if, and only if: (i) such
Guarantor is not the Parent and does not own any Unencumbered Pool Property, or
any direct or indirect Equity Interest in any Subsidiary that does own an
Unencumbered Pool Property; (ii) such Guarantor is not otherwise required to be
a party to the Guaranty under this Section; and (iii) no Default or Event of
Default shall then be in existence or would occur as a result of such release.
ARTICLE IX. INFORMATION
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 13.7., all of the Lenders) shall otherwise
consent in the manner set forth in Section 13.7., the Parent shall furnish to
each Lender (or to the Agent if so provided below) at its Lending Office:
SECTION 9.1. QUARTERLY FINANCIAL STATEMENTS.
As soon as available and in any event within 50 days after the close of
each of the first, second and third fiscal quarters of the Parent, the unaudited
consolidated balance sheet of the Parent and its Subsidiaries as at the end of
such period and the related unaudited consolidated statements of operations,
stockholders' equity and cash flows of the Parent and its Subsidiaries for such
period, setting forth in each case in comparative form the figures as of the end
of and for the corresponding periods of the previous fiscal year, all of which
shall be certified by the chief financial officer of the Parent, in his or her
opinion, to present fairly, in accordance with GAAP, the consolidated financial
position of the Parent and its Subsidiaries as at the date thereof and the
results of operations for such period (subject to normal year-end adjustments).
SECTION 9.2. YEAR-END STATEMENTS.
As soon as available and in any event within 95 days after the end of each
fiscal year of the Parent, the audited consolidated balance sheet of the Parent
and its Subsidiaries as at the end of such fiscal year and the related
-43-
audited consolidated statements of operations, stockholders' equity and cash
flows of the Parent and its Subsidiaries for such fiscal year, setting forth in
comparative form the figures as at the end of and for the previous fiscal year,
all of which shall be certified by (a) the chief financial officer of the
Parent, in his or her opinion, to present fairly, in accordance with GAAP, the
financial position of the Parent and its Subsidiaries as at the date thereof and
the result of operations for such period and (b) Xxxxxx Xxxxxxxx LLP or any
other independent certified public accountants of recognized national standing
acceptable to the Requisite Lenders, whose certificate shall be unqualified and
in scope and substance satisfactory to the Requisite Lenders and who shall have
authorized the Parent to deliver such financial statements and certification
thereof to the Agent and the Lenders pursuant to this Agreement.
SECTION 9.3. COMPLIANCE CERTIFICATE.
At the time the financial statements are furnished pursuant to the
immediately preceding Sections 9.1. and 9.2., a certificate substantially in the
form of Exhibit K (a "Compliance Certificate") executed on behalf of the Parent
by the chief financial officer or treasurer of the Parent (a) setting forth as
of the end of such quarterly accounting period or fiscal year, as the case may
be, the calculations required to establish whether the Borrower and the Parent
were in compliance with the covenants contained in Section 10.1.; and (b)
stating that no Default or Event of Default exists, or, if such is not the case,
specifying such Default or Event of Default and its nature, when it occurred and
the steps being taken by the Borrower and the Parent with respect to such event,
condition or failure.
SECTION 9.4. OTHER INFORMATION.
(a) As soon as available and in any event within 50 days after the end of
each fiscal quarter of the Parent, a Unencumbered Pool Certificate setting forth
the information to be contained therein, including without limitation, a
calculation of Maximum Availability, as of the last day of such fiscal quarter.
(b) Within 5 Business Days of the filing thereof, copies of all
registration statements (excluding the exhibits thereto and any registration
statements on Form S-8 or its equivalent), reports on Forms 10-K, 10-Q and 8-K
(or their equivalents) and all other periodic reports which any Loan Party or
any other Subsidiary shall file with the Securities and Exchange Commission (or
any Governmental Authority substituted therefor) or any national securities
exchange; provided, however, the Parent shall only be required to give the Agent
and the Lenders notice of the filing of any Form 8-K (or equivalent);
(c) Promptly upon the mailing thereof to the shareholders of the Parent
generally, copies of all financial statements, reports and proxy statements so
mailed;
(d) Promptly upon receipt thereof, copies of all reports, if any,
submitted to any Loan Party or its Board of Trustees or managers by its
independent public accountants in their function as auditors including, without
limitation, any management report;
(e) Within 50 days after the end of each fiscal quarter of the Parent, an
operating summary with respect to each Property then included in calculations of
the Unencumbered Pool Value, including without limitation, a quarterly and
year-to-date statement of Net Operating Income and a leasing/occupancy status
report together with a current rent roll for such Property.
(f) No later than 30 days before the end of each fiscal year of the Parent
ending prior to the Termination Date, projected balance sheets, operating
statements and cash flow budgets of the Parent and its Subsidiaries on a
consolidated basis for each quarter of the next succeeding two fiscal years, all
itemized in reasonable detail. The foregoing shall be accompanied by pro forma
calculations, together with detailed assumptions, required to establish whether
or not the Parent, and when appropriate its consolidated Subsidiaries, will be
in compliance with the covenants contained in Section 10.1. at the end of each
fiscal quarter of the next succeeding fiscal year.
(g) Within 10 Business Days of the Agent's request therefor, a report in
form and content satisfactory to the Agent detailing the Parent's, together with
its Subsidiaries', projected sources and uses of cash for the period of four
consecutive fiscal quarters immediately following the date of the Agent's
request. Such sources shall include but not be limited to excess operating cash
flow, availability under this Agreement, unused availability
-44-
under committed development loans, unfunded committed equity and any other
committed sources of funds. Such uses shall include but not be limited to cash
obligations for binding acquisitions, unfunded development costs, capital
expenditures, debt service, overhead, dividends, maturing Property loans, hedge
settlements and other anticipated uses of cash.
(h) If and when any member of the ERISA Group (i) gives or is required to
give notice to the PBGC of any "reportable event" (as defined in Section 4043 of
ERISA) with respect to any Plan which could reasonably be expected to constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows that
the plan administrator of any Plan has given or is required to give notice of
any such reportable event, a copy of the notice of such reportable event given
or required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement which could
reasonably be expected to have a Material Adverse Effect or makes any amendment
to any Plan or Benefit Arrangement which has resulted or could result in the
imposition of a Lien or the posting of a bond or other security, a certificate
of the controller of the Parent setting forth details as to such occurrence and
action, if any, which the Parent or applicable member of the ERISA Group is
required or proposes to take;
(i) To the extent any Loan Party or any other Subsidiary is aware of the
same, prompt notice of the commencement of any proceeding or investigation by or
before any Governmental Authority and any action or proceeding in any court or
other tribunal or before any arbitrator against or in any other way relating
adversely to, or adversely affecting any Loan Party or any other Subsidiary or
any of their respective properties, assets or businesses which, if determined or
resolved adversely to such Person, could reasonably be expected to have a
Material Adverse Effect, and prompt notice of the receipt of notice that any
United States income tax returns of any Loan Party or any other Subsidiary are
being audited;
(j) A copy of any amendment to the articles of incorporation, bylaws,
partnership agreement or other similar organizational documents of any Loan
Party or any other Subsidiary within 5 Business Days of the effectiveness
thereof;
(k) Prompt notice of (i) any of Xxxxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxx
Xxxxxx, or Xxxxxxx Xxxxxxxx ceasing to hold his current office with the Parent
and (ii) any change in the business, assets, liabilities, financial condition,
results of operations or business prospects of any Loan Party or any other
Subsidiary which has had or could have Material Adverse Effect;
(l) Prompt notice of the occurrence of any Default or Event of Default or
any event which constitutes or which with the passage of time, the giving of
notice, or otherwise, would constitute a default or event of default by any Loan
Party or any other Subsidiary under any Material Contract to which any such
Person is a party or by which any such Person or any of its respective
properties may be bound and of which the Parent or the Borrower is aware;
(m) Promptly upon entering into any Material Contract after the Agreement
Date, a copy of such Material Contract to the Agent;
(n) Prompt notice of any order, judgment or decree in excess of $5,000,000
having been entered against any Loan Party or any other Subsidiary or any of
their respective properties or assets;
(o) Any notification of a material violation of any law or regulation or
any inquiry shall have been received by any Loan Party or any other Subsidiary
from any Governmental Authority;
-45-
(p) Prompt notice of the acquisition, incorporation or other creation of
any Subsidiary, the purpose for such Subsidiary, the nature of the assets and
liabilities thereof and whether such Subsidiary is a Wholly Owned Subsidiary of
the Parent;
(q) Promptly upon the request of the Agent, evidence of the Parent's
calculation of the Ownership Share with respect to a Subsidiary or an
Unconsolidated Affiliate, such evidence to be in form and detail satisfactory to
the Agent; and
(r) From time to time and promptly upon each request, such data,
certificates, reports, statements, opinions of counsel, documents or further
information regarding any Property or the business, assets, liabilities,
financial condition, results of operations or business prospects of the Parent
or any of its Subsidiaries as the Agent or any Lender may reasonably request.
ARTICLE X. NEGATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 13.7., all of the Lenders) shall otherwise
consent in the manner set forth in Section 13.7., the Parent and the Borrower
shall comply with the following covenants:
SECTION 10.1. FINANCIAL COVENANTS.
(a) RATIO OF TOTAL LIABILITIES TO GROSS ASSET VALUE. The Parent shall not
permit the ratio of (i) Total Liabilities of the Parent and its Subsidiaries
determined on a consolidated basis to (ii) Gross Asset Value, at any time to
exceed 0.60 to 1.00 at any time; PROVIDED, HOWEVER, that if the Termination Date
is extended pursuant to Section 2.13., the Parent shall not permit such ratio to
exceed 0.55 to 1.00 at any time after the effective date of such extension.
(b) RATIO OF SECURED INDEBTEDNESS TO GROSS ASSET VALUE. The Parent shall
not permit the ratio of (i) Secured Indebtedness of the Parent and its
Subsidiaries determined on a consolidated basis to (ii) Gross Asset Value to
exceed 0.50 to 1.00 at any time.
(c) RATIO OF SECURED RECOURSE DEBT TO GROSS ASSET VALUE. The Parent shall
not permit the ratio of (i) Secured Recourse Debt of the Parent and its
Subsidiaries determined on a consolidated basis to (ii) Gross Asset Value to
exceed 0.15 to 1.00 at any time.
(d) RATIO OF EBITDA TO DEBT SERVICE. The Parent shall not permit the ratio
of (i) EBITDA of the Parent and its Subsidiaries determined on a consolidated
basis for the fiscal quarter most recently ending to (ii) Debt Service of the
Parent and its Subsidiaries determined on a consolidated basis for such period,
to be less than 1.75 to 1.00.
(e) RATIO OF EBITDA LESS RESERVE FOR REPLACEMENTS TO FIXED CHARGES. The
Parent shall not permit the ratio of (i)(A) EBITDA of the Parent and its
Subsidiaries determined on a consolidated basis for the fiscal quarter most
recently ending minus (B) the Reserve for Replacements of the Properties of the
Parent and its Subsidiaries for such period to (ii) Fixed Charges of the Parent
and its Subsidiaries determined on a consolidated basis for such period, to be
less than 1.50 to 1.00.
(f) RATIO OF UNENCUMBERED NET OPERATING INCOME TO UNSECURED INTEREST
EXPENSE. The Parent shall not permit the ratio of (i) Unencumbered Net Operating
Income of the Borrower and its Subsidiaries determined on a consolidated basis
for the fiscal quarter most recently ending to (ii) Unsecured Interest Expense
of the Parent and its Subsidiaries determined on a consolidated basis for such
period, to be less than 2.0 to 1.00.
(g) MINIMUM TANGIBLE NET WORTH. The Parent shall not permit the Parent's
Tangible Net Worth determined on a consolidated basis at the end of any fiscal
quarter to be less than the greater of (a)(i) $334,767,000, PLUS (ii) 85% of the
Net Proceeds of all Equity Issuances effected at any time after September 30,
2001, by the Parent to any Person other than the Parent or any Subsidiaries
MINUS (iii) 85% of the aggregate amount paid by the
-46-
Parent and the Borrower after September 30, 2001, to purchase or otherwise
acquire outstanding shares of the common stock or Preferred Stock of the Parent
or partnership units of the Borrower, or (b) $334,767,000.
(h) DIVIDENDS AND OTHER RESTRICTED PAYMENTS. Neither the Parent, the
Borrower nor any other Subsidiary (other than Wholly Owned Subsidiaries) shall
directly or indirectly declare or make, or incur any liability to make, any
Restricted Payments, except that: (i) the Parent and the Borrower may make cash
distributions to its shareholders or partners, as applicable, which
distributions in the aggregate shall not exceed 95% of Funds From Operations as
of the end of each fiscal quarter for the four fiscal quarter period then
ending; (ii) the Parent and the Borrower may make cash distributions to its
shareholders or partners, as applicable, of capital gains resulting from gains
from certain asset sales to the extent necessary to avoid payment of taxes on
such asset sales imposed under Sections 857(b)(3) and 4981 of the Internal
Revenue Code; (iii) Subsidiaries may make Restricted Payments to the Borrower or
any other Subsidiary; and (iv) the Parent and the Borrower may make cash
payments to repurchase outstanding shares of common stock or Preferred Stock of
the Parent or partnership units of the Borrower. Notwithstanding the foregoing,
but subject to the following sentence, if a Default or Event of Default exists,
the Parent and the Borrower may only declare or make cash distributions to its
shareholders or partners, as applicable, in an aggregate amount not to exceed
the minimum amount necessary for the Parent to remain in compliance with Section
8.12. If an Event of Default specified in Section 11.1.(e) or Section 11.1.(f)
shall have occurred and be continuing, or if as a result of the occurrence of
any other Event of Default the Obligations have been accelerated, the Parent
shall not, and shall not permit any Subsidiary to, make any Restricted Payments
to any Person whatsoever other than to the Borrower or any Subsidiary.
(i) PERMITTED INVESTMENTS. The Parent shall not, and shall not permit any
Loan Party or other Subsidiary to, make an Investment in or otherwise own the
following items which would cause the aggregate value of such holdings of such
Persons to exceed the following percentages of Gross Asset Value:
(i) Properties that are not industrial properties or office
properties exceeds 5% of Gross Asset Value;
(ii) unimproved real estate, such that the aggregate value of all
such unimproved real estate calculated on the basis of the lower of cost
or market, exceeds 5% of Gross Asset Value;
(iii) Common stock, Preferred Stock, other capital stock, beneficial
interest in trust, membership interest in limited liability companies and
other Equity Interests in Persons (other than consolidated Subsidiaries
and Unconsolidated Affiliates), such that the aggregate value of such
interests calculated on the basis of the lower of cost or market, exceeds
5% of Gross Asset Value;
(iv) Mortgages in favor of the Parent, or any other Loan Party, such
that the aggregate book value of Indebtedness secured by such Mortgages
exceeds 5% of Gross Asset Value;
(v) Investments in Unconsolidated Affiliates, such that the
aggregate value of such Investments in Unconsolidated Affiliates, exceeds
20% of Gross Asset Value. For purposes of this clause (iv), the "value" of
any such Investment in an Unconsolidated Affiliate shall equal (1) with
respect to any of such Unconsolidated Affiliate's Properties under
construction, the Parent's Ownership Share of the book value of
construction in process for such Property as of the date of determination
and (2) with respect to any of such Unconsolidated Affiliate's Properties
which have been completed, the Parent's Ownership Share of Capitalized
EBITDA of such Unconsolidated Affiliate attributable to such Properties;
and
(vi) the aggregate amount of the Total Budgeted Costs for
Development Properties or Redevelopment Properties in which the Parent
either has a direct or indirect ownership interest shall not exceed 15% of
Gross Asset Value. If a Development Property is owned by an Unconsolidated
Affiliate of the Parent, or any other Subsidiary, then the greater of (1)
the product of (A) the Parent's or such Subsidiary's Ownership Share in
such Unconsolidated Affiliate and (B) the amount of the Total Budgeted
Costs for such Development Property or (2) the recourse obligations of the
Parent or such Subsidiary
-47-
relating to the Indebtedness of such Unconsolidated Affiliate, shall be
used in calculating such investment limitation;
PROVIDED, FURTHER, that, in addition to the foregoing limitations, the aggregate
value of the Investments subject to the limitations in the preceding clauses (i)
through (vi) shall not exceed 30% of Gross Asset Value. If an Investment is
owned by an Unconsolidated Affiliate of the Parent, the Borrower, or any other
Subsidiary, then the product of (A) the Parent's, the Borrower's, or such other
Subsidiary's Ownership Share in such Unconsolidated Affiliate and (B) the amount
of such Investment, shall be used in calculating such investment limitation.
(j) AGGREGATE OCCUPANCY RATES. The Parent shall not permit the weighted
average aggregate Occupancy Rate (weighted on the basis of aggregate square
footage) of all Unencumbered Pool Properties to be less than 90% at any time.
SECTION 10.2. ASSET VALUE OF NON-GUARANTOR ENTITIES.
At no time shall the aggregate Asset Value of the Non-Guarantor Entities
obligated in respect of any Indebtedness other than Nonrecourse Indebtedness
exceed 10% of Gross Asset Value.
SECTION 10.3. INDEBTEDNESS.
The Parent shall not, and shall not permit any other Loan Party or any
other Subsidiary to, incur, assume or otherwise become obligated in respect of
any Indebtedness after the Agreement Date if (a) immediately before or
immediately after incurring, assuming or otherwise becoming obligated in respect
of such Indebtedness a Default or Event of Default resulting from a violation of
any of the covenants contained in Section 10.1. exists or would exist or (b)
immediately after incurring, assuming or otherwise becoming obligated in respect
of such Indebtedness, a Default or Event of Default resulting from such
incurrence, assumption or obligation in respect of such Indebtedness would
exist, including without limitation, a Default or Event of Default resulting
from a violation of any of the covenants contained in Section 10.1. determined
after giving pro forma effect thereto.
SECTION 10.4. NEGATIVE PLEDGE.
The Parent shall not, and shall not permit any other Loan Party or any
other Subsidiary to, (a) create, assume, incur or permit or suffer to exist any
Lien upon any of the Unencumbered Pool Properties or any direct or indirect
ownership interest of the Parent in any Subsidiary owning any Unencumbered Pool
Property, other than Permitted Liens or (b) permit any Unencumbered Pool
Property, or any direct or indirect ownership interest of the Parent in any
Subsidiary owning any Unencumbered Pool Property, to become subject to a
Negative Pledge.
SECTION 10.5. RESTRICTIONS ON INTERCOMPANY TRANSFERS.
The Parent shall not, and shall not permit any other Loan Party or any
other Subsidiary to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any Subsidiary to: (i) pay dividends or make any other distribution on any of
such Subsidiary's capital stock or other equity interests owned by the Borrower
or any other Subsidiary; (ii) pay any Indebtedness owed to the Parent or any
other Subsidiary; (iii) make loans or advances to the Parent or any other
Subsidiary; or (iv) transfer any of its property or assets to the Parent or any
other Subsidiary.
SECTION 10.6. MERGER, CONSOLIDATION, SALES OF ASSETS AND OTHER ARRANGEMENTS.
The Parent shall not, and shall not permit any Loan Party or any other
Subsidiary to, (a) enter into any transaction of merger or consolidation; (b)
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution); (c) convey, sell, lease, sublease, transfer or otherwise dispose
of, in one transaction or a series of transactions, all or any substantial part
of its business or assets, or the capital stock of or other Equity Interests in
any of its Subsidiaries, whether now owned or hereafter acquired; or (d) acquire
a Substantial Amount of the assets of, or make an Investment of a Substantial
Amount in, any other Person; provided, however, that:
-48-
(i) any Subsidiary may merge with a Loan Party so long as such other
Loan Party is the survivor;
(ii) any Subsidiary may sell, transfer or dispose of its assets to a
Loan Party;
(iii) a Loan Party (other than the Parent, the Borrower or any Loan
Party which owns an Unencumbered Pool Property) and any Subsidiary that is
not (and is not required to be) a Loan Party may convey, sell, transfer or
otherwise dispose of, in one transaction or a series of transactions, all
or any substantial part of its business or assets, or the capital stock of
or other Equity Interests in any of its Subsidiaries, and immediately
thereafter liquidate, provided that immediately prior to any such
conveyance, sale, transfer, disposition or liquidation and immediately
thereafter and after giving effect thereto, no Default or Event of Default
is or would be in existence;
(iv) any Loan Party and any other Subsidiary may, directly or
indirectly, (A) acquire (whether by purchase, acquisition of Equity
Interests of a Person, or as a result of a merger or consolidation) a
Substantial Amount of the assets of, or make an Investment of a
Substantial Amount in, any other Person and (B) sell, lease or otherwise
transfer, whether by one or a series of transactions, a Substantial Amount
of assets (including capital stock or other securities of Subsidiaries) to
any other Person, so long as, in each case, (1) the Borrower shall have
given the Agent and the Lenders at least 30 days prior written notice of
such consolidation, merger, acquisition, Investment, sale, lease or other
transfer; (2) immediately prior thereto, and immediately thereafter and
after giving effect thereto, no Default or Event of Default is or would be
in existence; (3) in the case of a consolidation or merger involving the
Parent, the Borrower or a Loan Party which owns an Unencumbered Pool
Property, such Person shall be the survivor thereof and (4) at the time
the Borrower gives notice pursuant to clause (1) of this subsection, the
Borrower shall have delivered to the Agent and the Lenders a Compliance
Certificate, calculated on a pro forma basis, evidencing the continued
compliance by the Loan Parties with the terms and conditions of this
Agreement and the other Loan Documents, including without limitation, the
financial covenants contained in Section 10.1., after giving effect to
such consolidation, merger, acquisition, Investment, sale, lease or other
transfer; and
(v) the Loan Parties and the other Subsidiaries may lease and
sublease their respective assets, as lessor or sublessor (as the case may
be), in the ordinary course of their business.
Further, no Loan Party, nor any Subsidiary, shall enter into any sale-leaseback
transactions or other transaction by which such Person shall remain liable as
lessee (or the economic equivalent thereof) of any real or personal property
that it has sold or leased to another Person; PROVIDED, HOWEVER, that this
sentence shall not prohibit a Loan Party or Subsidiary from entering into a
master lease of space in a Property in connection with a sale of such Property.
SECTION 10.7. PLANS.
The Parent shall not, and shall not permit any Subsidiary to, permit any
of its respective assets to become or be deemed to be "plan assets" within the
meaning of ERISA, the Internal Revenue Code and the respective regulations
promulgated thereunder.
SECTION 10.8. FISCAL YEAR.
The Parent shall not, and shall not permit any Loan Party or other
Subsidiary to, change its fiscal year from that in effect as of the Agreement
Date.
SECTION 10.9. MODIFICATIONS OF ORGANIZATIONAL DOCUMENTS AND MATERIAL CONTRACTS.
The Parent shall not, and shall not permit any Loan Party or other
Subsidiary to, amend, supplement, restate or otherwise modify its articles of
incorporation or by-laws or other organizational documents if such amendment,
supplement, restatement or other modification could reasonably be expected to
have a Material Adverse Effect. The Parent shall not enter into, and shall not
permit any Loan Party or other Subsidiary to enter into, any amendment or
modification to any Material Contract that could reasonably be expected to have
a Material Adverse Effect or
-49-
default in the performance of any obligations of any Loan Party or other
Subsidiary in any Material Contract or permit any Material Contract to be
canceled or terminated prior to its stated maturity.
SECTION 10.10. TRANSACTIONS WITH AFFILIATES.
The Parent shall not permit to exist or enter into, and will not permit
any Loan Party or other Subsidiary to permit to exist or enter into, any
transaction (including the purchase, sale, lease or exchange of any property or
the rendering of any service) with any Affiliate of the Parent or with any
director, officer or employee of any Loan Party, except transactions in the
ordinary course of and pursuant to the reasonable requirements of the business
of the Parent or any of its Subsidiaries and upon fair and reasonable terms
which are no less favorable to the Parent or such Subsidiary than would be
obtained in a comparable arm's length transaction with a Person that is not an
Affiliate.
ARTICLE XI. DEFAULT
SECTION 11.1. EVENTS OF DEFAULT.
Each of the following shall constitute an Event of Default, whatever the
reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of Applicable Law or pursuant to any judgment or order of
any Governmental Authority:
(a) DEFAULT IN PAYMENT. The Borrower shall fail to pay when due under this
Agreement or any other Loan Document (whether upon demand, at maturity, by
reason of acceleration or otherwise) (i) the principal of any Loan or any
Reimbursement Obligation or (ii) any interest on any of the Loans, or any of the
other payment Obligations owing by the Borrower under this Agreement or any
other Loan Document, or any other Loan Party shall fail to pay when due any
payment obligation owing by such Loan Party under any Loan Document to which it
is a party, and solely in the case of this clause (ii) such failure shall
continue for a period of 3 Business Days.
(b) DEFAULT IN PERFORMANCE.
(i) Any Loan Party shall fail to perform or observe any term,
covenant, condition or agreement on its part to be performed or observed
and contained in Section 9.4.(l) or Article X. (other than Section 10.4.);
or
(ii) Any Loan Party shall fail to perform or observe any term,
covenant, condition or agreement contained in this Agreement or any other
Loan Document to which it is a party and not otherwise mentioned in this
Section and such failure shall continue for a period of 30 calendar days
after the earlier of (x) the date upon which any Loan Party obtains
knowledge of such failure or (y) the date upon which the Borrower has
received written notice of such failure from the Agent.
(c) MISREPRESENTATIONS. Any written statement, representation or warranty
made or deemed made by or on behalf of any Loan Party under this Agreement or
under any other Loan Document, or any amendment hereto or thereto, or in any
other writing or statement at any time furnished by, or at the direction of, any
Loan Party to the Agent or any Lender, shall at any time prove to have been
incorrect or misleading in any material respect when furnished or made or deemed
made.
(d) INDEBTEDNESS CROSS-DEFAULT.
(i) Any Loan Party shall fail to pay when due and payable the
principal of, or interest on, any Material Indebtedness; or
(ii) (x) The maturity of any Material Indebtedness shall have been
accelerated in accordance with the provisions of any indenture, contract
or instrument evidencing, providing for the creation of or otherwise
concerning such Material Indebtedness or (y) any Material Indebtedness
shall have been required to be prepaid or repurchased prior to the stated
maturity thereof; or
-50-
(iii) Any other event shall have occurred and be continuing which
would permit any holder or holders of any Material Indebtedness, any
trustee or agent acting on behalf of such holder or holders or any other
Person, to accelerate the maturity of any Material Indebtedness or require
any Material Indebtedness to be prepaid or repurchased prior to its stated
maturity.
(e) VOLUNTARY BANKRUPTCY PROCEEDING. Any Loan Party shall: (i) commence a
voluntary case under the Bankruptcy Code of 1978, as amended, or other federal
bankruptcy laws (as now or hereafter in effect); (ii) file a petition seeking to
take advantage of any other Applicable Laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment
of debts; (iii) consent to, or fail to contest in a timely and appropriate
manner, any petition filed against it in an involuntary case under such
bankruptcy laws or other Applicable Laws or consent to any proceeding or action
described in the immediately following subsection; (iv) apply for or consent to,
or fail to contest in a timely and appropriate manner, the appointment of, or
the taking of possession by, a receiver, custodian, trustee, or liquidator of
itself or of a substantial part of its property, domestic or foreign; (v) be
unable to or admit in writing its inability to pay its debts as they become due;
(vi) make a general assignment for the benefit of creditors; (vii) make a
conveyance fraudulent as to creditors under any Applicable Law; or (viii) take
any corporate or partnership action for the purpose of effecting any of the
foregoing.
(f) INVOLUNTARY BANKRUPTCY PROCEEDING. A case or other proceeding shall be
commenced against any Loan Party in any court of competent jurisdiction seeking:
(i) relief under the Bankruptcy Code of 1978, as amended, or other federal
bankruptcy laws (as now or hereafter in effect) or under any other Applicable
Laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts; or (ii) the appointment of a
trustee, receiver, custodian, liquidator or the like of such Person, or of all
or any substantial part of the assets, domestic or foreign, of such Person, and
in the case of either clause (i) or (ii) such case or proceeding shall continue
undismissed or unstayed for a period of 60 consecutive calendar days, or an
order granting the relief requested in such case or proceeding (including, but
not limited to, an order for relief under such Bankruptcy Code or such other
federal bankruptcy laws) shall be entered.
(g) REVOCATION OF LOAN DOCUMENTS. Any Loan Party shall (or shall attempt
to) disavow, revoke or terminate any Loan Document to which it is a party or
shall otherwise challenge or contest in any action, suit or proceeding in any
court or before any Governmental Authority the validity or enforceability of any
Loan Document.
(h) JUDGMENT. A judgment or order for the payment of money shall be
entered against any Loan Party, by any court or other tribunal and (i) such
judgment or order shall continue for a period of 30 days without being paid
stayed or dismissed through appropriate appellate proceedings and (ii) either
(A) the amount for which insurance has not been acknowledged in writing by the
applicable insurance carrier (or the amount as to which the insurer has denied
liability) exceeds, individually or together with all other such judgments or
orders entered against the Loan Parties, $5,000,000 or (B) such judgment or
order could reasonably be expected to have a Material Adverse Effect.
(i) ATTACHMENT. A warrant, writ of attachment, execution or similar
process shall be issued against any property of any Loan Party, which exceeds,
individually or together with all other such warrants, writs, executions and
processes, $5,000,000 in amount and such warrant, writ, execution or process
shall not be paid, discharged, vacated, stayed or bonded for a period of 30
days; provided, however, that if a bond has been issued in favor of the claimant
or other Person obtaining such warrant, writ, execution or process, the issuer
of such bond shall execute a waiver or subordination agreement in form and
substance satisfactory to the Agent pursuant to which the issuer of such bond
subordinates its right of reimbursement, contribution or subrogation to the
Obligations and waives or subordinates any Lien it may have on the assets of any
Loan Party.
(j) ERISA. Any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $2,000,000 which it shall have become
liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or to cause a trustee to be appointed to administer, any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with
-51-
respect to, one or more Multiemployer Plans which could cause one or more
members of the ERISA Group to incur a current payment obligation in excess of
$2,000,000.
(k) LOAN DOCUMENTS. An Event of Default (as defined therein) shall occur
under any of the other Loan Documents;
(l) CHANGE OF CONTROL/CHANGE IN MANAGEMENT.
(i) Any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), is or becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person will be
deemed to have "beneficial ownership" of all securities that such Person
has the right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of more than 50%
of the total voting power of the then outstanding voting stock of the
Borrower or the Parent;
(ii) During any period of 24 consecutive months ending after the
Agreement Date, individuals who at the beginning of any such 24-month
period constituted the Board of Trustees of the Parent (together with any
new trustees whose election by such Board or whose nomination for election
by the shareholders of the Parent was approved by a vote of a majority of
the trustees then still in office who were either trustees at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of
the Board of Trustees of the Borrower then in office;
(iii) If more than two of Xxxxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxx Xxxxxx
and Xxxxxxx Xxxxxxxx cease for any reason to be principally involved in
the senior management of the Parent, and the Parent shall have failed to
replace the resulting vacancies in senior management with individuals
reasonably acceptable to the Requisite Lenders within a period of 90 days;
or
(iv) The Parent or any Wholly Owned Subsidiary of the Parent shall
cease to be the sole general partner of the Borrower.
(m) DAMAGE; STRIKE; CASUALTY. Any material damage to, or loss or
destruction of, any Unencumbered Pool Property, whether or not insured, or any
strike, lockout, labor dispute, embargo, condemnation, act of God or public
enemy, or other casualty which causes, for more than 30 consecutive days beyond
the coverage period of any applicable business interruption insurance, the
cessation or substantial curtailment of revenue producing activities of the
Parent or its Subsidiaries taken as a whole and only if any such event or
circumstance could reasonably be expected to have a Material Adverse Effect.
Notwithstanding anything to the contrary in this Section, (i) the failure of any
Loan Party to perform or observe any term, covenant, condition or agreement
contained any New York Collateral Document to which it is a party shall not
constitute a Default or Event of Default and (ii) the occurrence of an Event of
Default (as defined in any New York Collateral Document) shall not constitute a
Default or Event of Default; provided, however, the preceding shall in no way
limit or impair the rights of the Agent and the Lenders with respect to any
Default or Event of Default resulting from the failure of any Loan Party to
perform or observe the same or any similar term, covenant, condition or
agreement contained in any other Loan Document.
SECTION 11.2. REMEDIES UPON EVENT OF DEFAULT.
Upon the occurrence of an Event of Default the following provisions shall
apply:
(a) ACCELERATION; TERMINATION OF FACILITIES.
(i) AUTOMATIC. Upon the occurrence of an Event of Default specified
in Section 11.1.(e) or 11.1.(f), (1)(A) the principal of, and all accrued
interest on, the Loans and the Notes at the time outstanding, (B) an
amount equal to the Stated Amount of all Letters of Credit outstanding as
of the date of the occurrence of such Event of Default and (C) all of the
other Obligations of the Borrower, including, but
-52-
not limited to, the other amounts owed to the Lenders and the Agent under
this Agreement, the Notes or any of the other Loan Documents shall become
immediately and automatically due and payable by the Borrower without
presentment, demand, protest, or other notice of any kind, all of which
are expressly waived by the Borrower, and (2) the Commitments and the
Swingline Commitment, the obligation of the Lenders to make Loans
hereunder, and the obligation of the Agent to issue Letters of Credit
hereunder, shall all immediately and automatically terminate.
(ii) OPTIONAL. If any other Event of Default shall exist, the Agent
may, and at the direction of the Requisite Lenders shall: (1) declare (A)
the principal of, and accrued interest on, the Loans and the Notes at the
time outstanding, (B) an amount equal to the Stated Amount of all Letters
of Credit outstanding as of the date of the occurrence of such Event of
Default and (C) all of the other Obligations, including, but not limited
to, the other amounts owed to the Lenders and the Agent under this
Agreement, the Notes or any of the other Loan Documents to be forthwith
due and payable, whereupon the same shall immediately become due and
payable without presentment, demand, protest or other notice of any kind,
all of which are expressly waived by the Borrower, and (2) terminate the
Commitments and the obligation of the Lenders to make Loans hereunder and
the obligation of the Agent to issue Letters of Credit hereunder. If the
Agent has exercised any of the rights provided under the preceding
sentence, the Swingline Lender shall: (x) declare the principal of, and
accrued interest on, the Swingline Loans and the Swingline Notes at the
time outstanding, and all of the other Obligations owing to the Swingline
Lender, to be forthwith due and payable, whereupon the same shall
immediately become due and payable without presentment, demand, protest or
other notice of any kind, all of which are expressly waived by the
Borrower and (y) terminate the Swingline Commitment and the obligation of
the Swingline Lender to make Swingline Loans.
(b) LOAN DOCUMENTS. The Requisite Lenders may direct the Agent to, and the
Agent if so directed shall, exercise any and all of its rights under any and all
of the other Loan Documents.
(c) APPLICABLE LAW. The Requisite Lenders may direct the Agent to, and the
Agent if so directed shall, exercise all other rights and remedies it may have
under any Applicable Law.
(d) APPOINTMENT OF RECEIVER. To the extent permitted by Applicable Law,
the Agent and the Lenders shall be entitled to the appointment of a receiver for
the assets and properties of the Borrower and its Subsidiaries, without notice
of any kind whatsoever and without regard to the adequacy of any security for
the Obligations or the solvency of any party bound for its payment, to take
possession of all or any portion of the business operations of the Borrower and
its Subsidiaries and to exercise such power as the court shall confer upon such
receiver.
SECTION 11.3. REMEDIES UPON DEFAULT.
Upon the occurrence of a Default specified in Section 11.1.(e) or
11.1.(f), the Commitments shall immediately and automatically terminate.
SECTION 11.4. MARSHALING; PAYMENTS SET ASIDE.
Neither the Agent nor any Lender shall be under any obligation to marshal
any assets in favor of any Loan Party or any other party or against or in
payment of any or all of the Obligations. To the extent that any Loan Party
makes a payment or payments to the Agent and/or any Lender, or the Agent and/or
any Lender enforce their security interests or exercise their rights of setoff,
and such payment or payments or the proceeds of such enforcement or setoff or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such recovery, the Obligations or part
thereof originally intended to be satisfied, and all Liens, rights and remedies
therefor, shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not occurred.
-53-
SECTION 11.5. ALLOCATION OF PROCEEDS.
If an Event of Default exists and maturity of any of the Obligations has
been accelerated, all payments received by the Agent under any of the Loan
Documents, in respect of any principal of or interest on the Obligations or any
other amounts payable by the Borrower hereunder or thereunder, shall be applied
in the following order and priority:
(a) amounts due to the Agent and the Lenders in respect of Fees and
expenses due under Section 13.2.;
(b) payments of interest on Swingline Loans;
(c) payments of interest on all other Loans, to be applied for the
ratable benefit of the Lenders, in such order as the Lenders may determine
in their sole discretion;
(d) payment of principal on Swingline Loans;
(e) payments of principal of all other Loans, to be applied for the
ratable benefit of the Lenders, in such order as the Lenders may determine
in their sole discretion;
(f) amounts to be deposited into the Letter of Credit Collateral
Account in respect of Letters of Credit;
(g) amounts due the Agent and the Lenders pursuant to Sections 12.7.
and 13.10.;
(h) payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the Lenders;
and
(i) any amount remaining after application as provided above, shall
be paid to the Borrower or whomever else may be legally entitled thereto.
SECTION 11.6. LETTER OF CREDIT COLLATERAL ACCOUNT.
(a) As collateral security for the prompt payment in full when due of all
Letter of Credit Liabilities, the Borrower hereby pledges to the Agent for the
benefit of the Lenders as provided herein, and grants to the Agent, for the
benefit of the Agent and the Lenders as provided herein, a security interest in
all of its right, title and interest in and to the Letter of Credit Collateral
Account established pursuant to the requirements of Section 2.14., and the
balances from time to time in the Letter of Credit Collateral Account (including
the investments and reinvestments therein provided for below). The balances from
time to time in the Letter of Credit Collateral Account shall not constitute
payment of any Letter of Credit Liabilities until applied by the Agent as
provided herein. Anything in this Agreement to the contrary notwithstanding,
funds held in the Letter of Credit Collateral Account shall be subject to
withdrawal only as provided in this Section and in Section 2.14.
(b) Amounts on deposit in the Letter of Credit Collateral Account shall be
invested and reinvested by the Agent in such cash equivalents as the Agent shall
determine in its sole discretion. All such investments and reinvestments shall
be held in the name of and be under the sole dominion and control of the Agent,
PROVIDED, that all earnings on such investments will be credited to and retained
in the Letter of Credit Collateral Account. The Agent shall exercise reasonable
care in the custody and preservation of any funds held in the Letter of Credit
Collateral Account and shall be deemed to have exercised such care if such funds
are accorded treatment substantially equivalent to that which the Agent accords
other funds deposited with the Agent, it being understood that the Agent shall
not have any responsibility for taking any necessary steps to preserve rights
against any parties with respect to any funds held in the Letter of Credit
Collateral Account.
(c) If an Event of Default exists, the Agent may (and, if instructed by
the Requisite Lenders, shall) in its (or their) discretion at any time and from
time to time elect to liquidate any such investments and reinvestments and
credit the proceeds thereof to the Letter of Credit Collateral Account and apply
or cause to be applied such
-54-
proceeds and any other balances in the Letter of Credit Collateral Account to
the payment of any of the Letter of Credit Liabilities due and payable.
(d) So long as no Default or Event of Default exists, the Agent shall,
from time to time, at the request of the Borrower, deliver to the Borrower,
against receipt but without any recourse, warranty or representation whatsoever,
such of the balances in the Letter of Credit Collateral Account as exceed the
aggregate amount of Letter of Credit Liabilities at such time. When all of the
Obligations shall have been indefeasibly paid in full and no Letters of Credit
remain outstanding, the Agent shall deliver to the Borrower, against receipt but
without any recourse, warranty or representation whatsoever, the balances
remaining in the Letter of Credit Collateral Account.
(e) The Borrower shall pay to the Agent from time to time such fees as the
Agent normally charges for similar services in connection with the Agent's
administration of the Letter of Credit Collateral Account and investments and
reinvestments of funds therein.
SECTION 11.7. PERFORMANCE BY AGENT.
If the Borrower shall fail to perform any covenant, duty or agreement
contained in any of the Loan Documents, the Agent may perform or attempt to
perform such covenant, duty or agreement on behalf of the Borrower after the
expiration of any cure or grace periods set forth herein. In such event, the
Borrower shall, at the request of the Agent, promptly pay any amount reasonably
expended by the Agent in such performance or attempted performance to the Agent,
together with interest thereon at the applicable Post-Default Rate from the date
of such expenditure until paid. Notwithstanding the foregoing, neither the Agent
nor any Lender shall have any liability or responsibility whatsoever for the
performance of any obligation of the Borrower under this Agreement or any other
Loan Document.
SECTION 11.8. RIGHTS CUMULATIVE.
The rights and remedies of the Agent and the Lenders under this Agreement
and each of the other Loan Documents shall be cumulative and not exclusive of
any rights or remedies which any of them may otherwise have under Applicable
Law. In exercising their respective rights and remedies the Agent and the
Lenders may be selective and no failure or delay by the Agent or any of the
Lenders in exercising any right shall operate as a waiver of it, nor shall any
single or partial exercise of any power or right preclude its other or further
exercise or the exercise of any other power or right.
ARTICLE XII. THE AGENT
SECTION 12.1. AUTHORIZATION AND ACTION.
Each Lender hereby appoints and authorizes the Agent to take such action
as contractual representative on such Lender's behalf and to exercise such
powers under this Agreement and the other Loan Documents as are specifically
delegated to the Agent by the terms hereof and thereof, together with such
powers as are reasonably incidental thereto. Not in limitation of the foregoing,
each Lender authorizes and directs the Agent to enter into the Loan Documents
for the benefit of the Lenders. Each Lender hereby agrees that, except as
otherwise set forth herein, any action taken by the Requisite Lenders in
accordance with the provisions of this Agreement or the Loan Documents, and the
exercise by the Requisite Lenders of the powers set forth herein or therein,
together with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Lenders. Nothing herein shall be
construed to deem the Agent a trustee or fiduciary for any Lender or to impose
on the Agent duties or obligations other than those expressly provided for
herein. At the request of a Lender, the Agent will forward to such Lender copies
or, where appropriate, originals of the documents delivered to the Agent
pursuant to this Agreement or the other Loan Documents. The Agent will also
furnish to any Lender, upon the request of such Lender, a copy of any
certificate or notice furnished to the Agent by the Borrower, any Loan Party or
any other Affiliate of the Borrower, pursuant to this Agreement or any other
Loan Document not already delivered to such Lender pursuant to the terms of this
Agreement or any such other Loan Document. As to any matters not expressly
provided for by the Loan Documents (including, without limitation, enforcement
or collection of any of the Obligations), the Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions
-55-
of the Requisite Lenders (or all of the Lenders if explicitly required under any
other provision of this Agreement), and such instructions shall be binding upon
all Lenders and all holders of any of the Obligations; provided, however, that,
notwithstanding anything in this Agreement to the contrary, the Agent shall not
be required to take any action which exposes the Agent to personal liability or
which is contrary to this Agreement or any other Loan Document or Applicable
Law. Not in limitation of the foregoing, the Agent shall not exercise any right
or remedy it or the Lenders may have under any Loan Document upon the occurrence
of a Default or an Event of Default unless the Requisite Lenders have so
directed the Agent to exercise such right or remedy.
SECTION 12.2. AGENT'S RELIANCE, ETC.
Notwithstanding any other provisions of this Agreement or any other Loan
Documents, neither the Agent nor any of its directors, officers, agents,
employees or counsel shall be liable for any action taken or omitted to be taken
by it or them under or in connection with this Agreement, except for its or
their own gross negligence or willful misconduct. Without limiting the
generality of the foregoing, the Agent: (a) may treat the payee of any Note as
the holder thereof until the Agent receives written notice of the assignment or
transfer thereof signed by such payee and in form satisfactory to the Agent; (b)
may consult with legal counsel (including its own counsel or counsel for the
Borrower or any other Loan Party), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (c) makes no warranty or representation to any Lender or
any other Person and shall not be responsible to any Lender or any other Person
for any statements, warranties or representations made by any Person in or in
connection with this Agreement or any other Loan Document; (d) shall not have
any duty to ascertain or to inquire as to the performance or observance of any
of the terms, covenants or conditions of any of this Agreement or any other Loan
Document or the satisfaction of any conditions precedent under this Agreement or
any Loan Document on the part of the Borrower or other Persons or inspect the
property, books or records of the Borrower or any other Person; (e) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
Loan Document, any other instrument or document furnished pursuant thereto or
any collateral covered thereby or the perfection or priority of any Lien in
favor of the Agent on behalf of the Lenders in any such Collateral; and (f)
shall incur no liability under or in respect of this Agreement or any other Loan
Document by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telephone or telecopy) believed by it to be genuine and
signed, sent or given by the proper party or parties.
SECTION 12.3. NOTICE OF DEFAULTS.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of a Default or Event of Default unless the Agent has received notice
from a Lender or the Borrower referring to this Agreement, describing with
reasonable specificity such Default or Event of Default and stating that such
notice is a "notice of default." If any Lender (excluding the Lender which is
also serving as the Agent) becomes aware of any Default or Event of Default, it
shall promptly send to the Agent such a "notice of default" and if the Lender
which is also serving as the Agent becomes aware of any Default or Event of
Default, the Agent shall promptly send to each other Lender such a "notice of
default." Further, if the Agent receives such a "notice of default" from any
Lender, the Agent shall give prompt notice thereof to the other Lenders.
SECTION 12.4. XXXXX FARGO AS LENDER.
Xxxxx Fargo, as a "Lender", shall have the same rights and powers under
this Agreement and any other Loan Document as any other Lender and may exercise
the same as though it were not the Agent; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include Xxxxx Fargo in each case in
its individual capacity. Xxxxx Fargo and its affiliates may each accept deposits
from, maintain deposits or credit balances for, invest in, lend money to, act as
trustee under indentures of, serve as financial advisor to, and generally engage
in any kind of business with the Borrower, any other Loan Party or any other
affiliate thereof as if it were any other bank and without any duty to account
therefor to the other Lenders. Further, the Agent and any affiliate may accept
fees and other consideration from the Borrower for services in connection with
this Agreement and otherwise without having to account for the same to the other
Lenders.
-56-
SECTION 12.5. APPROVALS OF LENDERS.
All communications from the Agent to any Lender requesting such Lender's
determination, consent, approval or disapproval (a) shall be given in the form
of a written notice to such Lender, (b) shall be accompanied by a description of
the matter or issue as to which such determination, approval, consent or
disapproval is requested, or shall advise such Lender where information, if any,
regarding such matter or issue may be inspected, or shall otherwise describe the
matter or issue to be resolved, (c) shall include, if reasonably requested by
such Lender and to the extent not previously provided to such Lender, written
materials and a summary of all oral information provided to the Agent by the
Borrower in respect of the matter or issue to be resolved, and (d) shall include
the Agent's recommended course of action or determination in respect thereof.
Each Lender shall reply promptly, but in any event within 10 Business Days (or
such lesser or greater period as may be specifically required under the express
terms of the Loan Documents) of receipt of such communication. Except as
otherwise expressly provided in this Agreement, unless a Lender shall give
written notice to the Agent that it specifically objects to the recommendation
or determination of the Agent within the applicable time period for reply, such
Lender shall be deemed to have conclusively approved of or consented to such
recommendation or determination.
SECTION 12.6. LENDER CREDIT DECISION, ETC.
Each Lender expressly acknowledges and agrees that neither the Agent nor
any of its officers, directors, employees, agents, counsel, attorneys-in-fact or
other affiliates has made any representations or warranties as to the financial
condition, operations, creditworthiness, solvency or other information
concerning the business or affairs of the Borrower, any other Loan Party, any
Subsidiary or any other Person to such Lender and that no act by the Agent
hereafter taken, including any review of the affairs of the Borrower, shall be
deemed to constitute any such representation or warranty by the Agent to any
Lender. Each Lender acknowledges that it has, independently and without reliance
upon the Agent, any other Lender or counsel to the Agent, or any of their
respective officers, directors, employees and agents, and based on the financial
statements of the Borrower, the Subsidiaries or any other Affiliate thereof, and
inquiries of such Persons, its independent due diligence of the business and
affairs of the Borrower, the Loan Parties, the Subsidiaries and other Persons,
its review of the Loan Documents, the legal opinions required to be delivered to
it hereunder, the advice of its own counsel and such other documents and
information as it has deemed appropriate, made its own credit and legal analysis
and decision to enter into this Agreement and the transaction contemplated
hereby. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, any other Lender or counsel to the Agent or any of
their respective officers, directors, employees and agents, and based on such
review, advice, documents and information as it shall deem appropriate at the
time, continue to make its own decisions in taking or not taking action under
the Loan Documents. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the Agent under
this Agreement or any of the other Loan Documents, the Agent shall have no duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial and other condition or
creditworthiness of the Borrower, any other Loan Party or any other Affiliate
thereof which may come into possession of the Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or other Affiliates. Each Lender
acknowledges that the Agent's legal counsel in connection with the transactions
contemplated by this Agreement is only acting as counsel to the Agent and is not
acting as counsel to such Lender.
SECTION 12.7. INDEMNIFICATION OF AGENT.
Each Lender agrees to indemnify the Agent (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so) pro
rata in accordance with such Lender's respective Commitment Percentage, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may at any time be imposed on, incurred by, or asserted
against the Agent (in its capacity as Agent but not as a "Lender") in any way
relating to or arising out of the Loan Documents, any transaction contemplated
hereby or thereby or any action taken or omitted by the Agent under the Loan
Documents (collectively, "Indemnifiable Amounts"); provided, however, that no
Lender shall be liable for any portion of such Indemnifiable Amounts to the
extent resulting from the Agent's gross negligence or willful misconduct or if
the Agent fails to follow the written direction of the Requisite Lenders unless
such failure is pursuant to the advice of counsel of which the Lenders have
received notice. Without limiting the generality of the foregoing, each Lender
agrees to reimburse the Agent (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so) promptly upon demand
for its ratable share of any out-of-pocket
-57-
expenses (including counsel fees of the counsel(s) of the Agent's own choosing)
incurred by the Agent in connection with the preparation, negotiation,
execution, administration, or enforcement of, or legal advice with respect to
the rights or responsibilities of the parties under, the Loan Documents, any
suit or action brought by the Agent to enforce the terms of the Loan Documents
and/or collect any Obligations, any "lender liability" suit or claim brought
against the Agent and/or the Lenders, and any claim or suit brought against the
Agent and/or the Lenders arising under any Environmental Laws, other than any
such expenses to the extent resulting from the gross negligence or willful
misconduct of the Agent. Such out-of-pocket expenses (including counsel fees)
shall be advanced by the Lenders on the request of the Agent notwithstanding any
claim or assertion that the Agent is not entitled to indemnification hereunder
upon receipt of an undertaking by the Agent that the Agent will reimburse the
Lenders if it is actually and finally determined by a court of competent
jurisdiction that the Agent is not so entitled to indemnification. The
agreements in this Section shall survive the payment of the Loans and all other
amounts payable hereunder or under the other Loan Documents and the termination
of this Agreement. If the Borrower shall reimburse the Agent for any
Indemnifiable Amount following payment by any Lender to the Agent in respect of
such Indemnifiable Amount pursuant to this Section, the Agent shall share such
reimbursement on a ratable basis with each Lender making any such payment.
SECTION 12.8. SUCCESSOR AGENT.
The Agent may resign at any time as Agent under the Loan Documents by
giving written notice thereof to the Lenders and the Borrower. In the event of a
material breach of its duties hereunder, the Agent may be removed as Agent under
the Loan Documents at any time by all Lenders (other than the Lender then acting
as Agent) and the Borrower upon 30-day's prior notice. Upon any such resignation
or removal, the Requisite Lenders (which, in the case of the removal of the
Agent as provided in the immediately preceding sentence, shall be determined
without regard to the Commitment of the Lender then acting as Agent) shall have
the right to appoint a successor Agent which appointment shall, provided no
Default or Event of Default exists, be subject to the Borrower's approval, which
approval shall not be unreasonably withheld or delayed (except that the Borrower
shall, in all events, be deemed to have approved each Lender as a successor
Agent). If no successor Agent shall have been so appointed in accordance with
the immediately preceding sentence, and shall have accepted such appointment,
within 30 days after the resigning Agent's giving of notice of resignation or
the Lenders' removal of the resigning Agent, then the resigning or removed Agent
may, on behalf of the Lenders, appoint a successor Agent, which shall be a
Lender, if any Lender shall be willing to serve, and otherwise shall be an
Eligible Assignee. Upon the acceptance of any appointment as Agent hereunder by
a successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations under
the Loan Documents. After any Agent's resignation or removal hereunder as Agent,
the provisions of this Article XII. shall continue to inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent under the Loan
Documents.
SECTION 12.9. TITLED AGENTS.
Each of the SYNDICATION AGENT AND THE DOCUMENTATION AGENT (each a "Titled
Agent") in each such respective capacity, assumes no responsibility or
obligation hereunder, including, without limitation, for servicing, enforcement
or collection of any of the Loans, nor any duties as an agent hereunder for the
Lenders. The titles given to the Titled Agents are solely honorific and imply no
fiduciary responsibility on the part of the Titled Agents to the Agent, any
Lender, the Borrower or any other Loan Party and the use of such titles does not
impose on the Titled Agents any duties or obligations greater than those of any
other Lender or entitle the Titled Agents to any rights other than those to
which any other Lender is entitled.
ARTICLE XIII. MISCELLANEOUS
SECTION 13.1. NOTICES.
Unless otherwise provided herein, communications provided for hereunder
shall be in writing and shall be mailed, telecopied or delivered as follows:
-58-
If to the Borrower:
Keystone Operating Partnership, L.P.
200 Four Falls Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Financial Officer
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
If to the Agent or a Lender:
To the address or telecopy number, as applicable, of the Agent or
such Lender, as the case may be, set forth on its signature page
hereto or, in the case of a Lender, in the applicable Assignment and
Acceptance Agreement
or, as to each party at such other address as shall be designated by such party
in a written notice to the other parties delivered in compliance with this
Section; provided, a Lender shall only be required to give notice of any such
other address to the Agent and the Borrower. All such notices and other
communications shall be effective (i) if mailed, when received; (ii) if
telecopied, when transmitted; or (iii) if hand delivered, when delivered.
Notwithstanding the immediately preceding sentence, all notices or
communications to the Agent or any Lender under Article II. shall be effective
only when actually received. Neither the Agent nor any Lender shall incur any
liability to the Borrower (nor shall the Agent incur any liability to the
Lenders) for acting upon any telephonic notice referred to in this Agreement
which the Agent or such Lender, as the case may be, believes in good faith to
have been given by a Person authorized to deliver such notice or for otherwise
acting in good faith hereunder.
SECTION 13.2. EXPENSES.
The Borrower agrees (a) to pay or reimburse the Agent for all of its
reasonable out-of-pocket costs and reasonable expenses incurred in connection
with the preparation, negotiation and execution of, and any amendment,
supplement or modification to, any of the Loan Documents (including due
diligence expense and reasonable travel expenses related to closing), and the
consummation of the transactions contemplated thereby, including the reasonable
fees and disbursements of counsel to the Agent, (b) to pay or reimburse the
Agent and the Lenders for all their reasonable costs and expenses incurred in
connection with the enforcement or preservation of any rights under the Loan
Documents, including the reasonable fees and disbursements of one counsel for
the Agent and one counsel for the Lenders, and any payments in indemnification
or otherwise payable by the Lenders to the Agent pursuant to the Loan Documents,
(c) to pay, and indemnify and hold harmless the Agent and the Lenders from, any
and all recording and filing fees and any and all liabilities with respect to,
or resulting from any failure to pay or delay in paying, documentary, stamp,
excise and other similar taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of any of the Loan
Documents, or consummation of any amendment, supplement or modification of, or
any waiver or consent under or in respect of, any Loan Document and (d) to the
extent not already covered by any of the preceding subsections, to pay the fees
and disbursements of counsel to the Agent and any Lender incurred in connection
with the representation of the Agent or such Lender in any matter relating to or
arising out of any bankruptcy or other proceeding of the type described in
Sections 11.1.(e) or 11.1.(f), including, without limitation (i) any motion for
relief from any stay or similar order, (ii) the negotiation, preparation,
execution and delivery of any document relating to the Obligations and (iii) the
negotiation and preparation of any debtor-in-possession financing or any plan of
reorganization of the Borrower or any other Loan Party, whether proposed by the
Borrower, such Loan Party, the Lenders or any other Person, and whether such
fees and expenses are incurred prior to, during or after the commencement of
such proceeding or the confirmation or conclusion of any such proceeding.
SECTION 13.3. STAMP, INTANGIBLE AND RECORDING TAXES.
The Borrower will pay any and all stamp, intangible, registration,
recordation and similar taxes, fees or charges and shall indemnify the Agent and
each Lender against any and all liabilities with respect to or resulting from
any delay in the payment or omission to pay any such taxes, fees or charges,
which may be payable or
-59-
determined to be payable in connection with the execution, delivery, recording,
performance or enforcement of this Agreement, the Notes and any of the other
Loan Documents or the perfection of any rights or Liens thereunder.
SECTION 13.4. SETOFF.
Subject to Section 3.3. and in addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
the Agent, each Lender and each Participant is hereby authorized by the
Borrower, at any time or from time to time while an Event of Default exists,
without notice to the Borrower or to any other Person, any such notice being
hereby expressly waived, but in the case of a Lender or a Participant subject to
receipt of the prior written consent of the Agent exercised in its sole
discretion, to set off and to appropriate and to apply any and all deposits
(general or special, including, but not limited to, indebtedness evidenced by
certificates of deposit, whether matured or unmatured) and any other
indebtedness at any time held or owing by the Agent, such Lender or any
affiliate of the Agent or such Lender, to or for the credit or the account of
the Borrower against and on account of any of the Obligations, irrespective of
whether or not any or all of the Loans and all other Obligations have been
declared to be, or have otherwise become, due and payable as permitted by
Section 11.2., and although such obligations shall be contingent or unmatured.
SECTION 13.5. LITIGATION; JURISDICTION; OTHER MATTERS; WAIVERS.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY
BETWEEN OR AMONG THE BORROWER, THE AGENT OR ANY OF THE LENDERS WOULD BE BASED ON
DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND
EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF THE LENDERS, THE AGENT AND THE BORROWER HEREBY WAIVES ITS RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR
TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO
ARISING OUT OF THIS AGREEMENT, THE NOTES, OR ANY OTHER LOAN DOCUMENT OR BY
REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG
THE BORROWER, THE AGENT OR ANY OF THE LENDERS OF ANY KIND OR NATURE.
(b) EACH OF THE BORROWER, THE AGENT AND EACH LENDER HEREBY AGREES THAT
THE FEDERAL DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK OR, AT THE
OPTION OF THE AGENT, ANY STATE COURT LOCATED IN NEW YORK, NEW YORK, SHALL HAVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG THE
BORROWER, THE AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO
THIS AGREEMENT, THE LOANS AND LETTERS OF CREDIT, THE NOTES OR ANY OTHER LOAN
DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. EACH OF THE BORROWER
AND EACH OF THE LENDERS EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS. THE BORROWER
HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER PROCESS OR
PAPERS ISSUED THEREIN, AND AGREES THAT SERVICE OF SUCH SUMMONS AND COMPLAINT, OR
OTHER PROCESS OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO
THE BORROWER AT ITS ADDRESS FOR NOTICES PROVIDED FOR HEREIN. SHOULD THE BORROWER
FAIL TO APPEAR OR ANSWER ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED
WITHIN THIRTY DAYS AFTER THE MAILING THEREOF, THE BORROWER SHALL BE DEEMED IN
DEFAULT AND AN ORDER AND/OR JUDGMENT MAY BE ENTERED AGAINST IT AS DEMANDED OR
PRAYED FOR IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS. EACH PARTY FURTHER
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS
BROUGHT IN AN INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME.
THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE
THE BRINGING OF ANY ACTION BY THE AGENT OR ANY LENDER OR THE ENFORCEMENT BY THE
AGENT OR ANY LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER
APPROPRIATE JURISDICTION.
-60-
(c) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY
WITH THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL
CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS AND ALL OTHER
AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS, THE TERMINATION OR
EXPIRATION OF ALL LETTERS OF CREDIT AND THE TERMINATION OF THIS AGREEMENT.
SECTION 13.6. SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns, except that the Borrower may not assign or otherwise transfer any of
its rights or obligations under this Agreement or as of the other Loan Documents
without the prior written consent of all Lenders (and any such assignment or
other transfer to which all of the Lenders have not so consented shall be null
and void).
(b) Any Lender may make, carry or transfer Loans at, to or for the
account of any of its branch offices or the office of an affiliate of such
Lender except to the extent such transfer would result in increased costs to the
Borrower.
(c) Any Lender may at any time grant to one or more banks or other
financial institutions (each a "Participant") participating interests in its
Commitment or the Obligations owing to such Lender; provided, however, any such
participating interest must be for a constant and not a varying percentage
interest. Except as otherwise provided in Section 13.4., no Participant shall
have any rights or benefits under this Agreement or any other Loan Document. In
the event of any such grant by a Lender of a participating interest to a
Participant, such Lender shall remain responsible for the performance of its
obligations hereunder, and the Borrower and the Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement pursuant to which any Lender may
grant such a participating interest shall provide that such Lender shall retain
the sole right and responsibility to enforce the obligations of the Borrower
hereunder including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Agreement; provided, however,
such Lender may agree with the Participant that it will not, without the consent
of the Participant, agree to (i) increase, or extend the term or extend the time
or waive any requirement for the reduction or termination of, such Lender's
Commitment, (ii) extend the date fixed for the payment of principal of or
interest on the Loans or portions thereof owing to such Lender, (iii) reduce the
amount of any such payment of principal, or (iv) reduce the rate at which
interest is payable thereon. An assignment or other transfer which is not
permitted by subsection (d) or (e) below shall be given effect for purposes of
this Agreement only to the extent of a participating interest granted in
accordance with this subsection (c). The selling Lender shall notify the Agent
and the Borrower of the sale of any participation hereunder and the terms
thereof.
(d) Any Lender may with the prior written consent of the Agent and the
Borrower (which consent, in each case, shall not be unreasonably withheld) at
any time assign to one or more Eligible Assignees (each an "Assignee") all or a
portion of its rights and obligations under this Agreement and the Notes;
PROVIDED, HOWEVER, (i) no such consent by the Borrower shall be required (x) if
a Default or Event of Default shall exist or (y) in the case of an assignment to
another Lender or an affiliate of another Lender; (ii) any partial assignment
shall be in an amount at least equal to $5,000,000 and integral multiples of
$5,000,000 in excess thereof; (iii) after giving effect to such assignment, the
Commitment of the assigning Lender and the Assignee (or if the Commitments have
been terminated, the outstanding principal balance of the Revolving Notes of the
assigning Lender and the Assignee), shall equal or exceed $10,000,000; (iv) each
such assignment shall be effected by means of an Assignment and Acceptance
Agreement; and (v) if, after giving effect to any assignment by the Lender then
acting as Agent, such Lender's Commitment would be less than the amount of any
other Lender's Commitment, such Lender shall (x) promptly notify all of the
other Lenders of such event and (y) resign as Agent subject to and in accordance
with Section 12.8. if within 5 Business Days of the giving of such notice, the
Requisite Lenders shall have requested in writing that such Lender so resign.
Upon execution and delivery of such instrument and payment by such Assignee to
such transferor Lender of an amount equal to the purchase price agreed between
such transferor Lender and such Assignee, such Assignee shall be deemed to be a
Lender party to this Agreement as of the effective date of the Assignment and
Acceptance Agreement and shall have all the rights and obligations of a Lender
with a Commitment as set forth in such Assignment and Acceptance Agreement, and
the transferor Lender shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required.
-61-
Upon the consummation of any assignment pursuant to this subsection (d), the
transferor Lender, the Agent and the Borrower shall make appropriate
arrangements so that new Notes are issued to the Assignee and such transferor
Lender, as appropriate. In connection with any such assignment, the transferor
Lender shall pay to the Agent an administrative fee for processing such
assignment in the amount of $3,500.
(e) The Agent shall maintain a copy of each Assignment and Acceptance
Agreement delivered to and accepted by it and a register for the recordation of
the names and addresses of the Lenders and the Commitment of each Lender from
time to time (the "Register"). The Agent shall give each Lender and the Borrower
notice of the assignment by any Lender of its rights as contemplated by this
Section. The Borrower, the Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement and the other Loan Documents. The Register and copies of each
Assignment and Acceptance Agreement shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice to the Agent. Upon its receipt of an Assignment and
Acceptance Agreement executed by an assigning Lender, together with each Note
subject to such assignment, the Agent shall, if such Assignment and Acceptance
Agreement has been completed and if the Agent receives the processing and
recording fee described in subsection (d) above, (i) accept such Assignment and
Acceptance Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
(f) In addition to the assignments and participations permitted under
the foregoing provisions of this Section, any Lender may assign and pledge all
or any portion of its Loans and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular issued
by such Federal Reserve Bank, and such Loans and Notes shall be fully
transferable as provided therein. No such assignment shall release the assigning
Lender from its obligations hereunder.
(g) A Lender may furnish any information concerning the Borrower, any
other Loan Party or any of their respective Subsidiaries in the possession of
such Lender from time to time to Assignees and Participants (including
prospective Assignees and Participants) subject to compliance with Section 13.9.
(h) Anything in this Section to the contrary notwithstanding, no Lender
may assign or participate any interest in any Loan held by it hereunder to the
Borrower, any other Loan Party or any of their respective Affiliates or
Subsidiaries.
(i) Each Lender agrees that, without the prior written consent of the
Borrower and the Agent, it will not make any assignment hereunder in any manner
or under any circumstances that would require registration or qualification of,
or filings in respect of, any Loan or Note under the Securities Act or any other
securities laws of the United States of America or of any other jurisdiction.
SECTION 13.7. AMENDMENTS.
Except as otherwise expressly provided in this Agreement, any consent or
approval required or permitted by this Agreement or in any Loan Document to be
given by the Lenders may be given, and any term of this Agreement or of any
other Loan Document (other than any fee letter solely between the Borrower and
the Agent) may be amended, and the performance or observance by the Borrower,
any other Loan Party or any other Subsidiary of any terms of this Agreement or
such other Loan Document (other than any fee letter solely between the Borrower
and the Agent) or the continuance of any Default or Event of Default may be
waived (either generally or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of the Requisite Lenders
(and, in the case of an amendment to any Loan Document, the written consent of
each Loan Party which is party thereto). Notwithstanding the foregoing, no
amendment, waiver or consent shall, unless in writing, and signed by all of the
Lenders (or the Agent at the written direction of the Lenders), do any of the
following:
(a) increase the Commitments of the Lenders or subject the Lenders to
any additional obligations;
(b) reduce the principal of, or interest rates that have accrued or that
will be charged on the outstanding principal amount of, any Loans or other
Obligations, provided, however, the Agent may, in its sole discretion, waive up
to two times per year any late charges incurred by the Borrower pursuant to
Section 2.8.;
-62-
(c) reduce the amount of any Fees payable to the Lenders hereunder;
(d) postpone any date fixed for any payment of principal of, or interest
on, any Loans or for the payment of Fees or any other Obligations, or extend the
expiration date of any Letter of Credit beyond the Termination Date;
(e) change the Commitment Percentages (excluding any change as a
result of an assignment of Commitments permitted under Section 13.6.(d));
(f) modify the definition of the term "Termination Date";
(g) amend this Section or amend the definitions of the terms used in
this Agreement or the other Loan Documents insofar as such definitions affect
the substance of this Section;
(h) modify the definition of the term "Requisite Lenders" or modify in
any other manner the number or percentage of the Lenders required to make any
determinations or waive any rights hereunder or to modify any provision hereof;
(i) release any Guarantor from its obligations under the Guaranty,
except as otherwise permitted under Section 8.14(d);
(j) modify the definition of the terms "Maximum Availability" or
"Unencumbered Pool Value" (and the definitions used in such definitions and the
percentages and rates used in the calculation thereof); PROVIDED, HOWEVER, the
Requisite Lenders may agree to permit more than 15% of the Unencumbered Pool
Value to be attributable to a given Eligible Property;
(k) waive a Default or Event of Default under subsection (a) of Section
11.1.;
(l) waive a Default or Event of Default under subsection (b) of Section
11.1. to the extent such Default or Event of Default arises from the failure of
the Parent to perform or observe the covenant set forth in subsection (a) of
Section 10.1.; and
(m) amend, or waive the Borrower's compliance with, Section 2.7.(b)(ii).
No amendment, waiver or consent unless in writing and signed by the Agent, in
addition to the Lenders required hereinabove to take such action, shall affect
the rights or duties of the Agent under this Agreement or any of the other Loan
Documents. Any amendment, waiver or consent relating to Section 2.3. or the
obligations of the Swingline Lender under this Agreement or any other Loan
Document shall, in addition to the Lenders required hereinabove to take such
action, require the written consent of the Swingline Lender. No waiver shall
extend to or affect any obligation not expressly waived or impair any right
consequent thereon and any amendment, waiver or consent shall be effective only
in the specific instance and for the specific purpose set forth therein. No
course of dealing or delay or omission on the part of the Agent or any Lender in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. Any Event of Default occurring hereunder shall continue to
exist until such time as such Event of Default is waived in writing in
accordance with the terms of this Section, notwithstanding any attempted cure or
other action by the Borrower, any other Loan Party or any other Person
subsequent to the occurrence of such Event of Default. Except as otherwise
explicitly provided for herein or in any other Loan Document, no notice to or
demand upon the Borrower shall entitle the Borrower to other or further notice
or demand in similar or other circumstances.
SECTION 13.8. NONLIABILITY OF AGENT AND LENDERS.
The relationship between the Borrower, on the one hand, and the Lenders
and the Agent, on the other hand, shall be solely that of borrower and lender.
Neither the Agent nor any Lender shall have any fiduciary responsibilities to
the Borrower and no provision in this Agreement or in any of the other Loan
Documents, and no course of dealing between or among any of the parties hereto,
shall be deemed to create any fiduciary duty owing by the Agent or any Lender to
any Lender, the Borrower, any Subsidiary or any other Loan Party. Neither the
Agent
-63-
nor any Lender undertakes any responsibility to the Borrower to review or inform
the Borrower of any matter in connection with any phase of the Borrower's
business or operations.
SECTION 13.9. CONFIDENTIALITY.
Except as otherwise provided by Applicable Law, the Agent and each Lender
shall utilize all non-public information obtained pursuant to the requirements
of this Agreement which has been identified as confidential or proprietary by
the Borrower in accordance with its customary procedure for handling
confidential information of this nature and in accordance with safe and sound
banking practices but in any event may make disclosure: (a) to any of their
respective affiliates (provided any such affiliate shall agree to keep such
information confidential in accordance with the terms of this Section); (b) as
reasonably requested by any bona fide Assignee, Participant or other transferee
in connection with the contemplated transfer of any Commitment or participations
therein as permitted hereunder (provided they shall agree to keep such
information confidential in accordance with the terms of this Section); (c) as
required or requested by any Governmental Authority or representative thereof or
pursuant to legal process or in connection with any legal proceedings; (d) to
the Agent's or such Lender's independent auditors and other professional
advisors (provided they shall be notified of the confidential nature of the
information); (e) if an Event of Default exists, to any other Person, in
connection with the exercise by the Agent or the Lenders of rights hereunder or
under any of the other Loan Documents; and (f) to the extent such information
(x) becomes publicly available other than as a result of a breach of this
Section or (y) becomes available to the Agent or any Lender on a nonconfidential
basis from a source other than the Borrower or any Affiliate.
SECTION 13.10. INDEMNIFICATION.
(a) The Borrower shall and hereby agrees to indemnify, defend and hold
harmless the Agent, any affiliate of the Agent and each of the Lenders and their
respective directors, officers, shareholders, agents, employees and counsel
(each referred to herein as an "Indemnified Party") from and against any and all
losses, costs, claims, damages, liabilities, deficiencies, judgments or expenses
of every kind and nature (including, without limitation, amounts paid in
settlement, court costs and the fees and disbursements of counsel incurred in
connection with any litigation, investigation, claim or proceeding or any advice
rendered in connection therewith, but excluding losses, costs, claims, damages,
liabilities, deficiencies, judgments or expenses indemnification in respect of
which is specifically covered by Section 3.11. or 5.1. or expressly excluded
from the coverage of such Sections) incurred by an Indemnified Party in
connection with, arising out of, or by reason of, any suit, cause of action,
claim, arbitration, investigation or settlement, consent decree or other
proceeding (the foregoing referred to herein as an "Indemnity Proceeding") which
is in any way related directly or indirectly to: (i) this Agreement or any other
Loan Document (including without limitation, the Fleet Assignment Agreement) or
the transactions contemplated thereby; (ii) the making of any Loans or issuance
of Letters of Credit hereunder; (iii) any actual or proposed use by the Borrower
of the proceeds of the Loans or Letters of Credit; (iv) the Agent's or any
Lender's entering into this Agreement; (v) the fact that the Agent and the
Lenders have established the credit facility evidenced hereby in favor of the
Borrower; (vi) the fact that the Agent and the Lenders are creditors of the
Borrower and have or are alleged to have information regarding the financial
condition, strategic plans or business operations of the Parent, the Borrower
and the Subsidiaries; (vii) the fact that the Agent and the Lenders are material
creditors of the Borrower and are alleged to influence directly or indirectly
the business decisions or affairs of the Borrower and the Subsidiaries or their
financial condition; (viii) the exercise of any right or remedy the Agent or the
Lenders may have under this Agreement or the other Loan Documents; or (ix) any
violation or non-compliance by the Borrower or any Subsidiary of any Applicable
Law (including any Environmental Law) including, but not limited to, any
Indemnity Proceeding commenced by (A) the Internal Revenue Service or state
taxing authority or (B) any Governmental Authority or other Person under any
Environmental Law, including any Indemnity Proceeding commenced by a
Governmental Authority or other Person seeking remedial or other action to cause
the Borrower or its Subsidiaries (or its respective properties) (or the Agent
and/or the Lenders as successors to the Borrower) to be in compliance with such
Environmental Laws; provided, however, that the Borrower shall not be obligated
to indemnify any Indemnified Party for any acts or omissions of such Indemnified
Party in connection with matters described in the immediately preceding clause
(ii) or (viii) that constitute gross negligence or willful misconduct.
(b) The Borrower's indemnification obligations under this Section shall
apply to all Indemnity Proceedings arising out of, or related to, the foregoing
whether or not an Indemnified Party is a named party in such Indemnity
Proceeding. In this connection, this indemnification shall cover all costs and
expenses of any
-64-
Indemnified Party in connection with any deposition of any Indemnified Party or
compliance with any subpoena (including any subpoena requesting the production
of documents). This indemnification shall, among other things, apply to any
Indemnity Proceeding commenced by other creditors of the Borrower or any
Subsidiary, any shareholder of the Borrower or any Subsidiary (whether such
shareholder(s) are prosecuting such Indemnity Proceeding in their individual
capacity or derivatively on behalf of the Borrower), any account debtor of the
Borrower or any Subsidiary or by any Governmental Authority.
(c) This indemnification shall apply to any Indemnity Proceeding arising
during the pendency of any bankruptcy proceeding filed by or against the
Borrower and/or any Subsidiary.
(d) All out-of-pocket fees and expenses of, and all amounts paid to
third persons by, an Indemnified Party shall be advanced by the Borrower at the
request of such Indemnified Party notwithstanding any claim or assertion by the
Borrower that such Indemnified Party is not entitled to indemnification
hereunder upon receipt of an undertaking by such Indemnified Party that such
Indemnified Party will reimburse the Borrower if it is actually and finally
determined by a court of competent jurisdiction that such Indemnified Party is
not so entitled to indemnification hereunder.
(e) An Indemnified Party may conduct its own investigation and defense
of, and may formulate its own strategy with respect to, any Indemnity Proceeding
covered by this Section and, as provided above, all costs and expenses incurred
by such Indemnified Party shall be reimbursed by the Borrower. No action taken
by legal counsel chosen by an Indemnified Party in investigating or defending
against any such Indemnity Proceeding shall vitiate or in any way impair the
obligations and duties of the Borrower hereunder to indemnify and hold harmless
each such Indemnified Party; provided, however, that (i) if the Borrower is
required to indemnify an Indemnified Party pursuant hereto and (ii) the Borrower
has provided evidence reasonably satisfactory to such Indemnified Party that the
Borrower has the financial wherewithal to reimburse such Indemnified Party for
any amount paid by such Indemnified Party with respect to such Indemnity
Proceeding, such Indemnified Party shall not settle or compromise any such
Indemnity Proceeding without the prior written consent of the Borrower (which
consent shall not be unreasonably withheld or delayed).
(f) If and to the extent that the obligations of the Borrower hereunder
are unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under Applicable Law.
(g) The Borrower's obligations hereunder shall survive any termination
of this Agreement and the other Loan Documents and the payment in full in cash
of the Obligations, and are in addition to, and not in substitution of, any of
the other obligations set forth in this Agreement or any other Loan Document to
which it is a party.
SECTION 13.11. TERMINATION; SURVIVAL.
At such time as (a) all of the Commitments have been terminated, (b) none
of the Lenders is obligated any longer under this Agreement to make any Loans
and (c) all Obligations (other than obligations which survive as provided in the
following sentence) have been paid and satisfied in full, this Agreement shall
terminate. The indemnities to which the Agent and the Lenders are entitled under
the provisions of Sections 3.11., 5.1., 5.4., 12.7., 13.2., 13.10. and 13.21.
and any other provision of this Agreement and the other Loan Documents, and the
provisions of Section 13.5., shall continue in full force and effect and shall
protect the Agent and the Lenders (i) notwithstanding any termination of this
Agreement, or of the other Loan Documents, against events arising after such
termination as well as before and (ii) at all times after any such party ceases
to be a party to this Agreement with respect to all matters and events existing
on or prior to the date such party ceased to be a party to this Agreement.
SECTION 13.12. SEVERABILITY OF PROVISIONS.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating the
-65-
remainder of such provision or the remaining provisions or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 13.13. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
SECTION 13.14. COUNTERPARTS.
This Agreement and any amendments, waivers, consents or supplements may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all of which counterparts together shall constitute but
one and the same instrument.
SECTION 13.15. OBLIGATIONS WITH RESPECT TO LOAN PARTIES.
The obligations of the Borrower to direct or prohibit the taking of
certain actions by the other Loan Parties as specified herein shall be absolute
and not subject to any defense the Borrower may have that the Borrower does not
control such Loan Parties.
SECTION 13.16. MARSHALING; PAYMENTS SET ASIDE.
Neither the Agent nor any Lender shall be under any obligation to marshal
any assets in favor of any Loan Party or any other party or against or in
payment of any or all of the Obligations. To the extent that any Loan Party
makes a payment or payments to the Agent and/or any Lender, or the Agent and/or
any Lender enforce their security interests or exercise their rights of setoff,
and such payment or payments or the proceeds of such enforcement or setoff or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such recovery, the Obligations or part
thereof originally intended to be satisfied, and all Liens, rights and remedies
therefor, shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not occurred.
SECTION 13.17. INDEPENDENCE OF COVENANTS.
All covenants hereunder shall be given in any jurisdiction independent
effect so that if a particular action or condition is not permitted by any of
such covenants, the fact that it would be permitted by an exception to, or be
otherwise within the limitations of, another covenant shall not avoid the
occurrence of a Default or an Event of Default if such action is taken or
condition exists.
SECTION 13.18. LIMITATION OF LIABILITY.
Neither the Agent nor any Lender, nor any affiliate, officer, director,
employee, attorney, or agent of the Agent or any Lender shall have any liability
with respect to, and the Borrower hereby waives, releases, and agrees not to xxx
any of them upon, any claim for any special, indirect, incidental, or
consequential damages suffered or incurred by the Borrower in connection with,
arising out of, or in any way related to, this Agreement or any of the other
Loan Documents, or any of the transactions contemplated by this Agreement or any
of the other Loan Documents. The Borrower hereby waives, releases, and agrees
not to xxx the Agent or any Lender or any of the Agent's or any Lender's
affiliates, officers, directors, employees, attorneys, or agents for punitive
damages in respect of any claim in connection with, arising out of, or in any
way related to, this Agreement or any of the other Loan Documents, or any of the
transactions contemplated by this Agreement or financed hereby.
-66-
SECTION 13.19. ENTIRE AGREEMENT.
This Agreement, the Notes, and the other Loan Documents referred to herein
embody the final, entire agreement among the parties hereto and supersede any
and all prior commitments, agreements, representations, and understandings,
whether written or oral, relating to the subject matter hereof and thereof and
may not be contradicted or varied by evidence of prior, contemporaneous, or
subsequent oral agreements or discussions of the parties hereto. There are no
oral agreements among the parties hereto.
SECTION 13.20. CONSTRUCTION.
The Agent, the Borrower and each Lender acknowledge that each of them has
had the benefit of legal counsel of its own choice and has been afforded an
opportunity to review this Agreement and the other Loan Documents with its legal
counsel and that this Agreement and the other Loan Documents shall be construed
as if jointly drafted by the Agent, the Borrower and each Lender.
SECTION 13.21. NEW YORK COLLATERAL DOCUMENTS.
(a) GENERALLY. The parties hereto acknowledge and agree that the Agent
and the Lenders are accepting the benefits of the New York Collateral Documents
as an accommodation to the Parent and the Borrower.
(b) RELEASE OF NEW YORK COLLATERAL DOCUMENTS. Notwithstanding any other
provision of this Agreement or any other Loan Document to the contrary,
including without limitation, Section 13.7., (i) upon the Borrower's written
request and at the Borrower's sole cost and expense, the Agent shall release any
or all of the New York Collateral Documents or assign any or all of the New York
Collateral Documents to any Person requested by the Borrower (any such
assignment to be without recourse or warranty whatsoever) and (ii) the Agent may
in its discretion, and shall at the direction of the Requisite Lenders, release
any or all of the New York Collateral Documents so long as the Agent shall have
given the Borrower written notice at least 30 days' prior to any such release;
provided, however, the Agent shall not be required to give any such prior notice
to the Borrower if the Agent, in its sole discretion, has determined that delay
of such release would be detrimental to the Agent or the Lenders.
(c) NON-RECOURSE ASSIGNMENT. Subject to the terms and conditions of the
Fleet Assignment Agreement, each of the Assignors (as defined in the Fleet
Assignment Agreement) has assigned to Xxxxx Fargo such Assignor's Assigned
Interest (as defined in the Fleet Assignment Agreement) in, among other things,
the Existing Credit Agreement. So that each of the Lenders will hold interests
in the Revolving Loans made on the Effective Date in accordance with their
respective Commitment Percentages, each of Xxxxx Fargo and the Existing Lenders
party hereto (collectively, the "Fleet Assignors") shall, effective as of the
Effective Date, be deemed to have irrevocably sold, assigned and transferred to
each other Lender, and each other Lender shall be deemed to have irrevocably
purchased, taken and assumed from the Fleet Assignors, an interest (each a
"Transferred Interest") in the Fleet Assignors' Assigned Interests (as defined
in the Fleet Assignment Agreement) in the amount, if any, necessary so that
after giving effect to such sales, assignments and transfers each of the Lenders
will hold interests in the Revolving Loans made on the Effective Date in
accordance with their respective Commitment Percentages. No Fleet Assignor shall
have any duties or obligations whatsoever with respect to, and shall have no
further interest in, the Transferred Interest from and after the Effective Date.
Further, each assignment by a Fleet Assignor to a Lender of a Transferred
Interest is "as is" and without recourse to such Fleet Assignor.
(d) INDEMNITY. Not in limitation of any of the Borrower's obligations
under Section 13.2.(c) or 13.10., the Borrower shall and hereby agrees to
indemnify, defend and hold harmless the Agent, each Lender and each other
Indemnified Party from and against any and all losses, costs, claims,
damages, liabilities, deficiencies, judgments or expenses of every kind and
nature (including, without limitation, amounts paid in settlement, court
costs and the fees and disbursements of counsel incurred in connection with
any litigation, investigation, claim or proceeding or any advice rendered in
connection therewith) incurred by an Indemnified Party in connection with,
arising out of, or by reason of, any Indemnity Proceeding which is in any way
related directly or indirectly to the failure of any Person to pay any
recording tax payable pursuant to N.Y. Tax Law, Ch. 60, Art. 11, Sec. 253 et
seq. or other Applicable Laws of the State of New York or any political
subdivision of such State.
-67-
SECTION 13.22. NO NOVATION.
THE PARTIES HERETO HAVE ENTERED INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SOLELY TO AMEND AND RESTATE THE TERMS OF, AND THE OBLIGATIONS OWING
UNDER AND IN CONNECTION WITH, THE EXISTING CREDIT AGREEMENT. THE PARTIES DO NOT
INTEND THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY TO BE, AND THIS
AGREEMENT AND THE TRANSACTION CONTEMPLATED HEREBY SHALL NOT BE DEEMED OR
CONSTRUED TO BE, A NOVATION OF ANY OF THE OBLIGATIONS OWING BY THE BORROWER OR
ANY OTHER LOAN PARTY UNDER OR IN CONNECTION WITH THE EXISTING CREDIT AGREEMENT.
FURTHER, THE PARTIES DO NOT INTEND THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR BY ANY OF THE OTHER LOAN DOCUMENTS TO AFFECT THE
PERFECTION OR PRIORITY OF ANY LIEN HELD BY THE AGENT FOR THE BENEFIT OF THE
LENDERS IN ANY COLLATERAL IN ANY WAY WHATSOEVER.
[Signatures on Following Pages]
-68-
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement
to be executed by their authorized officers all as of the day and year first
above written.
BORROWER:
KEYSTONE OPERATING PARTNERSHIP, L.P.
By:
Keystone Property Trust, its sole general
partner
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
---------------------------
Title: Executive Vice-President
--------------------------
PARENT:
KEYSTONE PROPERTY TRUST
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
---------------------------
Title: Executive Vice-President
--------------------------
[Signatures Continued on Next Page]
-69-
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as
Agent, the Swingline Lender, and as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
---------------------------
Title: Executive Vice-President
--------------------------
COMMITMENT AMOUNT:
$25,000,000
LENDING OFFICE (ALL TYPES OF LOANS) AND
ADDRESS FOR NOTICES:
Through February 1, 2002:
Xxx Xxxx Xxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
On and after February 1, 2002:
Two Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
0000 X Xxxxxx XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Loan Administration Manager
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
[Signatures Continued on Next Page]
-70-
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
---------------------------
Title: Vice-President
--------------------------
COMMITMENT AMOUNT:
$17,500,000
LENDING OFFICE (ALL TYPES OF LOANS) AND
ADDRESS FOR NOTICES:
000 X. Xxxxxxx Xxxxxx, XX-0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
000 X. Xxxxxxx Xxxxxx, XX-0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Loan Administration Manager
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
[Signatures Continued on Next Page]
-00-
XXX XXXX XX XXX XXXX
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
---------------------------
Title: Vice-President
--------------------------
COMMITMENT AMOUNT:
$17,500,000
LENDING OFFICE (ALL TYPES OF LOANS) AND
ADDRESS FOR NOTICES:
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Loan Administration
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
[Signatures Continued on Next Page]
-72-
CHEVY CHASE BANK
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
---------------------------
Title: Group Vice-President
--------------------------
COMMITMENT AMOUNT:
$13,000,000
LENDING OFFICE (ALL TYPES OF LOANS) AND
ADDRESS FOR NOTICES:
0000 Xxxxxxxxx Xxxxxx
#00
Xxxxxxxx, Xxxxxxxx 00000
Attention: X. Xxxxxx X'Xxxxx, III
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
00000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx,
Loan Administration Manager
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
[Signatures Continued on Next Page]
-73-
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxx Xxxxxx
---------------------------
Title: Vice-President
--------------------------
COMMITMENT AMOUNT:
$13,000,000
LENDING OFFICE (ALL TYPES OF LOANS) AND
ADDRESS FOR NOTICES:
000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx Xxxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx Xxxxx
Loan Administration Manager
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
[Signatures Continued on Next Page]
-00-
XXXXXXX XXXX NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxxxxxx
------------------------
Name: Xxxx Xxxxxxxxxx
-----------------
Title: Vice President
-----------------
COMMITMENT AMOUNT:
$13,000,000
LENDING OFFICE (ALL TYPES OF LOANS) AND
ADDRESS FOR NOTICES:
000 X. Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
000 X. Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: La-Xxxxx Xxxxxxxx
Loan Administration Manager
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
[Signatures Continued on Next Page]
-00-
XXXXXX XXXX, N.A.
By: /s/ Xxxxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxxxx X. Xxxxxx
---------------------------
Title: Executive Vice-President
--------------------------
COMMITMENT AMOUNT:
$13,000,000
LENDING OFFICE (ALL TYPES OF LOANS) AND
ADDRESS FOR NOTICES:
Mellon Bank Center
0000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Mellon Bank Center
0000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxxxx Xxxxxx
Senior Loan Administrator
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
[Signatures Continued on Next Page]
-76-
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxx
--------------------------------
Name: Xxxx Xxxx
---------------------------
Title: Vice-President
--------------------------
COMMITMENT AMOUNT:
$13,000,000
LENDING OFFICE (ALL TYPES OF LOANS) AND
ADDRESS FOR NOTICES:
Xxxxxxx Xxxxxxxx Xxxxxx
000 Xxxxx Xxxxxxxx Avenue
1st Floor
Chicago, Illinois 60611-4104
Attention: Xxxx Xxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Wrigley Building Office
000 Xxxxx Xxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxxx
Loan Administration Manager
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
-77-
