Exhibit 10.1
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CREDIT AGREEMENT
Dated as of June 1, 2007
by and among
LEXINGTON REALTY TRUST,
THE LEXINGTON MASTER LIMITED PARTNERSHIP,
LEPERCQ CORPORATE INCOME FUND L.P.,
LEPERCQ CORPORATE INCOME FUND II L.P.,
and
NET 3 ACQUISITION L.P.,
as Borrowers
KEYBANC CAPITAL MARKETS,
as Lead Arranger
and
Book Running Manager,
KEYBANK NATIONAL ASSOCIATION,
as Agent,
and
THE FINANCIAL INSTITUTIONS INITIALLY SIGNATORY HERETO
AND THEIR ASSIGNEES PURSUANT TO SECTION 12.5.,
as Lenders
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TABLE OF CONTENTS
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ARTICLE I. - DEFINITIONS.....................................................................1
Section 1.1. Definitions............................................................1
Section 1.2. General; References to Times..........................................21
Section 1.3. Financial Attributes of Non-Wholly Owned Subsidiaries.................21
ARTICLE II. - CREDIT FACILITY...............................................................22
Section 2.1. Loans.................................................................22
Section 2.2. Rates and Payment of Interest on Loans................................23
Section 2.3. Number of Interest Periods............................................23
Section 2.4. Repayment of Loans....................................................23
Section 2.5. Prepayments...........................................................23
Section 2.6. Continuation..........................................................24
Section 2.7. Conversion............................................................25
Section 2.8. Notes.................................................................25
Section 2.9. Voluntary Reductions of the Commitment................................26
Section 2.10. Extension of Termination Date.........................................26
Section 2.11. Amount Limitations....................................................26
Section 2.12. Increase in Facility Amount...........................................26
Section 2.13. Joint and Several Liability...........................................27
Section 2.14. Borrower Representative...............................................28
Section 2.15. Security Interests in Collateral......................................29
ARTICLE III. - PAYMENTS, FEES AND OTHER GENERAL PROVISIONS..................................29
Section 3.1. Payments..............................................................29
Section 3.2. Pro Rata Treatment....................................................29
Section 3.3. Sharing of Payments, Etc..............................................30
Section 3.4. Several Obligations...................................................30
Section 3.5. Minimum Amounts.......................................................31
Section 3.6. Fees..................................................................31
Section 3.7. Computations..........................................................31
Section 3.8. Usury.................................................................31
Section 3.9. Agreement Regarding Interest and Charges..............................32
Section 3.10. Statements of Account.................................................32
Section 3.11. Defaulting Lenders....................................................32
Section 3.12. Taxes.................................................................33
ARTICLE IV. - YIELD PROTECTION, ETC.........................................................35
Section 4.1. Additional Costs; Capital Adequacy....................................35
Section 4.2. Suspension of LIBOR Loans.............................................36
Section 4.3. Illegality............................................................36
Section 4.4. Compensation..........................................................37
Section 4.5. Affected Lenders......................................................37
Section 4.6. Treatment of Affected Loans...........................................38
Section 4.7. Change of Lending Office..............................................38
Section 4.8. Assumptions Concerning Funding of LIBOR Loans.........................38
ARTICLE V. - CONDITIONS PRECEDENT...........................................................39
Section 5.1. Initial Conditions Precedent..........................................39
Section 5.2. Conditions Precedent to All Loans.....................................41
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ARTICLE VI. - REPRESENTATIONS AND WARRANTIES................................................41
Section 6.1. Representations and Warranties........................................41
Section 6.2. Survival of Representations and Warranties, Etc.......................47
ARTICLE VII. - AFFIRMATIVE COVENANTS........................................................48
Section 7.1. Preservation of Existence and Similar Matters.........................48
Section 7.2. Compliance with Applicable Law and Material Contracts.................48
Section 7.3. Maintenance of Property...............................................48
Section 7.4. Conduct of Business...................................................48
Section 7.5. Insurance.............................................................48
Section 7.6. Payment of Taxes and Claims...........................................49
Section 7.7. Visits and Inspections................................................49
Section 7.8. Use of Proceeds.......................................................49
Section 7.9. Environmental Matters.................................................49
Section 7.10. Books and Records.....................................................50
Section 7.11. Further Assurances....................................................50
Section 7.12. New Subsidiaries/Guarantors...........................................50
Section 7.13. REIT Status...........................................................51
Section 7.14. Exchange Listing......................................................51
Section 7.15. Addition of Borrowing Base Assets.....................................51
Section 7.16. Failure of Certain Borrowing Base Assets Representations and Warranties.
52
ARTICLE VIII. - INFORMATION.................................................................52
Section 8.1. Quarterly Financial Statements........................................52
Section 8.2. Year-End Statements...................................................53
Section 8.3. Compliance Certificate................................................53
Section 8.4. Other Information.....................................................54
ARTICLE IX. - NEGATIVE COVENANTS............................................................55
Section 9.1. Financial Covenants...................................................55
Section 9.2. Restricted Payments...................................................56
Section 9.3. Indebtedness..........................................................57
Section 9.4. Certain Permitted Investments.........................................57
Section 9.5. Investments Generally.................................................58
Section 9.6. Liens; Negative Pledges; Other Matters................................59
Section 9.7. Merger, Consolidation, Sales of Assets and Other Arrangements.........59
Section 9.8. Fiscal Year...........................................................60
Section 9.9. Modifications to Material Contracts...................................60
Section 9.10. Modifications of Organizational Documents.............................61
Section 9.11. Transactions with Affiliates..........................................61
Section 9.12. ERISA Exemptions......................................................61
ARTICLE X. - DEFAULT........................................................................61
Section 10.1. Events of Default.....................................................61
Section 10.2. Remedies Upon Event of Default........................................65
Section 10.3. Remedies Upon Default.................................................66
Section 10.4. Allocation of Proceeds................................................66
Section 10.5. Performance by Agent..................................................66
Section 10.6. Rights Cumulative.....................................................67
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ARTICLE XI. - THE AGENT.....................................................................67
Section 11.1. Authorization and Action..............................................67
Section 11.2. Agent's Reliance, Etc.................................................68
Section 11.3. Notice of Defaults....................................................68
Section 11.4. KeyBank as Lender.....................................................69
Section 11.5. Approvals of Lenders..................................................69
Section 11.6. Lender Credit Decision, Etc...........................................69
Section 11.7. Indemnification of Agent..............................................70
Section 11.8. Successor Agent.......................................................71
Section 11.9. Titled Agents.........................................................71
ARTICLE XII. - MISCELLANEOUS................................................................72
Section 12.1. Notices...............................................................72
Section 12.2. Expenses..............................................................72
Section 12.3. Setoff................................................................73
Section 12.4. Litigation; Jurisdiction; Other Matters; Waivers......................74
Section 12.5. Successors and Assigns................................................74
Section 12.6. Amendments............................................................77
Section 12.7. Nonliability of Agent and Lenders.....................................78
Section 12.8. Confidentiality.......................................................78
Section 12.9. Indemnification.......................................................79
Section 12.10. Termination; Survival.................................................81
Section 12.11. Severability of Provisions............................................82
Section 12.12. GOVERNING LAW.........................................................82
Section 12.13. Patriot Act...........................................................82
Section 12.14. Counterparts..........................................................82
Section 12.15. Obligations with Respect to Loan Parties..............................82
Section 12.16. Limitation of Liability...............................................82
Section 12.17. Entire Agreement......................................................83
Section 12.18. Construction..........................................................83
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SCHEDULE 1.1(A) List of Loan Parties
SCHEDULE 6.1.(b) Ownership Structure
SCHEDULE 6.1.(f) Title to Properties; Liens
SCHEDULE 6.1.(g) Indebtedness and Guaranties
SCHEDULE 6.1.(h) Material Contracts
SCHEDULE 6.1.(i) Litigation
SCHEDULE 6.1(j) Audits
EXHIBIT A Form of Assignment and Acceptance Agreement
EXHIBIT B Form of Notice of Borrowing
EXHIBIT C Form of Notice of Continuation
EXHIBIT D Form of Notice of Conversion
EXHIBIT E Form of Note
EXHIBIT F Form of Opinion of Counsel
EXHIBIT G Form of Compliance Certificate
EXHIBIT H Form of Guaranty
EXHIBIT I Form of Borrowing Base Certificate
EXHIBIT J Representations and Warranties relating to Borrowing Base
Assets
EXHIBIT K Initial Borrowing Base Assets
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CREDIT AGREEMENT
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THIS CREDIT AGREEMENT (this "Agreement") dated as of June 1, 2007 by and
among LEXINGTON REALTY TRUST, a real estate investment trust formed under the
laws of the State of Maryland (the "Trust"), THE LEXINGTON MASTER LIMITED
PARTNERSHIP, a limited partnership organized under the laws of the State of
Delaware ("Lexington"), LEPERCQ CORPORATE INCOME FUND L.P., a limited
partnership formed under the laws of the State of Delaware ("LCIF"), LEPERCQ
CORPORATE INCOME FUND II L.P., a limited partnership formed under the laws of
the State of Delaware ("LCIFII") and NET 3 ACQUISITION L.P., a limited
partnership formed under the laws of the State of Delaware ("Net 3";
collectively with the Trust, Lexington, LCIF and LCIFII, the "Borrowers" and
each a "Borrower"), KEYBANC CAPITAL MARKETS, as Lead Arranger (the "Arranger")
and Book Running Manager (the "Book Running Manager"), KEYBANK NATIONAL
ASSOCIATION, as Agent (the "Agent"), and each of the financial institutions
initially a signatory hereto together with their assignees pursuant to Section
12.5.(d).
WHEREAS, on the terms and conditions contained herein, the Agent and the
Lenders desire to make available to the Borrowers Loans in an initial amount of
$225,000,000, subject to increase as provided herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree as follows:
ARTICLE I. - DEFINITIONS
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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:
"Additional Costs" has the meaning given that term in Section 4.1.
"Adjusted EBITDA" means, for any given period, (a) the EBITDA of the
Trust and its Subsidiaries determined on a consolidated basis for such period,
minus (b) Capital Reserves for such period.
"Adjusted LIBOR" means, with respect to each Interest Period for any
LIBOR Loan, the rate obtained by dividing (a) LIBOR for such Interest Period by
(b) a percentage equal to 1 minus the stated maximum rate (stated as a decimal)
of all reserves, if any, required to be maintained with respect to Eurocurrency
funding (currently referred to as "Eurocurrency liabilities") as specified in
Regulation D of the Board of Governors of the Federal Reserve System (or against
any other category of liabilities which includes deposits by reference to which
the interest rate on LIBOR Loans is determined or any applicable category of
extensions of credit or other assets which includes loans by an office of any
Lender outside of the United States of America to residents of the United States
of America). Any change in such maximum rate shall result in a change in
Adjusted LIBOR on the date on which such change in such maximum rate becomes
effective.
"Affiliate" means any Person (other than the Agent or any Lender or any
of their respective affiliates): (a) directly or indirectly controlling,
controlled by, or under common control with, the Trust; (b) directly or
indirectly owning or holding ten percent (10.0%) or more of any Equity Interest
in the Trust; or (c) ten percent (10.0%) or more of whose voting stock or other
Equity Interest is directly or indirectly owned or held by the Trust. 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 executive officer or director of such Person. In no event shall the
Agent or any Lender or any of their respective affiliates be deemed to be an
Affiliate.
"Agent" means KeyBank National Association, as contractual
representative for the Lenders under the terms of this Agreement, and any of its
successors.
"Agreement Date" means the date as of which this Agreement is dated.
"Applicable Law" means all applicable provisions of constitutions,
statutes, laws, 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:
----------------------------------------------------
| Applicable Margin for | Applicable Margin for |
| LIBOR Loans | Base Rate Loans |
|-------------------------|------------------------|
| 0.60% | 0.0% |
"Arranger" means Keybanc Capital Markets, together with its successors
and permitted assigns.
"Assignee" has the meaning given that term in Section 12.5.(d).
"Assignment and Acceptance Agreement" means an Assignment and Acceptance
Agreement among a Lender, an Assignee and the Agent and Borrower Representative,
as applicable, substantially in the form of Exhibit A.
"Base Rate" means the per annum rate of interest equal to the greater of
(a) the Prime Rate or (b) the Federal Funds Rate plus one-half of one percent
(0.5%). Any change in the Base Rate resulting from a change in the Prime Rate or
the Federal Funds Rate shall become effective as of 12:01 a.m. on the Business
Day on which each such change occurs. The Base Rate is a reference rate used by
the Lender acting as the Agent in determining interest rates on certain loans
and is not intended to be the lowest rate of interest charged by the Lender
acting as the Agent or any other Lender on any extension of credit to any
debtor.
"Base Rate Loan" means a Loan bearing interest at a rate based on the
Base Rate.
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"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 a Borrower's successors and permitted assigns.
"Borrower Representative" means the Trust.
"Borrowing Base Assets" means Properties one hundred percent (100%)
owned (legally and equitably) by a Property Subsidiary which are not subject to
any Lien and which have been approved by the Agent for inclusion in the
Borrowing Base Assets Pool.
"Borrowing Base Assets Pool" means, collectively at any time, all
Borrowing Base Assets. The initial Borrowing Base Assets Pool is set forth on
the schedule of initial Borrowing Base Assets annexed hereto as Exhibit K.
"Borrowing Base Availability" means the lesser of (i) the Value of the
Borrowing Base Assets in the Borrowing Base Assets Pool multiplied by forty
percent (40%) and (ii) the Net Operating Income for the trailing two quarters
annualized of the Borrowing Base Assets in the Borrowing Base Assets Pool
divided by 2:50, and then further divided by the interest rate (expressed as a
percentage) in effect from time to time.
"Borrowing Base Certificate" has the meaning set forth in Section
2.1(b).
"Business Day" means (a) any day other than a Saturday, Sunday or other
day on which banks in Boston, Massachusetts 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.
"Capital Reserves" means, for any period and with respect to a Property,
an amount equal to (a) $0.05 per square foot times (b) a fraction, the numerator
of which is the number of days in such period and the denominator of which is
365. If the term Capital Reserves is used without reference to any specific
Property, then the amount shall be determined on an aggregate basis with respect
to all Properties of the Trust and its Subsidiaries and a proportionate share of
all Properties of all Unconsolidated Affiliates.
"Capitalization Rate" means 8.50%.
"Capitalized Lease Obligation" means an obligation 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 as would be required to be reflected on a balance sheet of the
applicable Person prepared in accordance with GAAP as of the applicable date.
"Capitalized Value" means the sum of all of the following of the
Borrowers and the other Subsidiaries on a consolidated basis determined in
accordance with GAAP applied on a consistent basis: (a) cash and cash
equivalents, plus (b)(i) EBITDA for the period of two fiscal
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quarters most recently ended, times (ii) 2, divided by (iii) the Capitalization
Rate, plus (c) the GAAP book value of Properties acquired during the most recent
period of four consecutive fiscal quarters, plus (d) Construction-in-Process
(excluding Construction-in-Process attributable to any Property which is
substantially complete or for which construction commenced more than 18 months
from the date of determination), plus (e) the GAAP book value of Unimproved
Land, Mortgage Receivables and other promissory notes. Notwithstanding the
foregoing, the Capitalized Value attributable to the Ohio Property shall be
$40,000,000 so long as the Ohio Property is leased to Kmart Corp. on the terms
contained in that certain lease agreement entered into in October, 1982 and as
in effect on the Agreement Date. The Trust's pro rata share of assets held by
Unconsolidated Affiliates (excluding assets of the type described in the
immediately preceding clause (a)) will be included in Capitalized Value
calculations consistent with the above described treatment for wholly owned
assets. For purposes of determining Capitalized Value, EBITDA attributable to
Mortgage Receivables, other promissory notes, the Ohio Property and any Property
acquired or disposed of by a Borrower or any other Subsidiary during the
immediately preceding period of four consecutive fiscal quarters shall be
excluded. In addition, for purposes of this definition, with respect to a
Property leased by a Borrower or any Subsidiary pursuant to a Ground Lease (i)
EBITDA attributable to such Property shall be multiplied by the applicable
Ground Lease Discount when including such EBITDA in the preceding clause (b) and
(ii) if such Property was acquired during the two most recent fiscal quarters,
then the GAAP book value of such Property shall be multiplied by the applicable
Ground Lease Discount when including such book value in the preceding clause
(c).
"Cash Equivalents" means: (a) securities issued, guaranteed or insured
by the United States of America or any of its agencies with maturities of not
more than one year from the date acquired; (b) certificates of deposit with
maturities of not more than one year from the date acquired issued by a United
States federal or state chartered commercial bank of recognized standing, or a
commercial bank organized under the laws of any other country which is a member
of the Organization for Economic Cooperation and Development, or a political
subdivision of any such country, acting through a branch or agency, which bank
has capital and unimpaired surplus in excess of $500,000,000 and which bank or
its holding company has a short-term commercial paper rating of at least A-2 or
the equivalent by S&P or at least P-2 or the equivalent by Xxxxx'x; (c) reverse
repurchase agreements with terms of not more than seven days from the date
acquired, for securities of the type described in clause (a) above and entered
into only with commercial banks having the qualifications described in clause
(b) above; (d) commercial paper issued by any Person incorporated under the laws
of the United States of America or any State thereof and rated at least A-2 or
the equivalent thereof by S&P or at least P-2 or the equivalent thereof by
Xxxxx'x, in each case with maturities of not more than one year from the date
acquired; and (e) investments in money market funds registered under the
Investment Company Act of 1940, as amended, which have net assets of at least
$500,000,000 and at least 85% of whose assets consist of securities and other
obligations of the type described in clauses (a) through (d) above.
"Collateral" has the meaning set forth in the Pledge Agreement.
"Commitment" means, as to each Lender, such Lender's obligation to make
Loans pursuant to Section 2.1 in an amount up to, but not exceeding, the amount
set forth for such Lender on its signature page hereto as such Lender's
"Commitment Amount" or as set forth in
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the applicable Assignment and Acceptance Agreement, as the same may be reduced
from time to time pursuant to Section 2.9., or increased or reduced as
appropriate to reflect any assignments to or by such Lender effected in
accordance with Section 12.5., or increased in accordance with Section 2.12.
"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; 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 8.3.
"Construction Budget" means the fully-budgeted costs for the acquisition
and construction of a given parcel of real property (including, without
limitation, the cost of acquiring such parcel of real property, reserves for
construction interest and operating deficits, tenant improvements, leasing
commissions and infrastructure costs) as reasonably determined by the Trust in
good faith.
"Construction-in-Process" means cash expenditures for land and
improvements (including indirect costs internally allocated and development
costs) determined in accordance with GAAP on all Properties that are under
development or are scheduled to commence development within twelve months from
any date of determination.
"Continue", "Continuation" and "Continued" each refers to the
continuation of a LIBOR Loan from one Interest Period to another Interest Period
pursuant to Section 2.6.
"Convert", "Conversion" and "Converted" each refers to the conversion of
a Loan of one Type into a Loan of another Type pursuant to Section 2.7.
"Credit Event" means any of the following: (a) the making (or deemed
making) of any Loan or (b) the Conversion of a Loan.
"Debt Service" means, for any period, the sum of (a) Interest Expense
for such period, and (b) all regularly scheduled principal payments made with
respect to Indebtedness of the Borrowers and the other Subsidiaries during such
period, other than any balloon, bullet, early repayment or similar principal
payment which, in each case, repays such Indebtedness in full. Debt Service
shall include a proportionate share of items (a) and (b) of all Unconsolidated
Affiliates.
"Default" means any of the events specified in Section 10.1., 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 given that term in Section 3.11.
"Derivatives Contract" means any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options,
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forward commodity contracts, equity or equity index swaps or options, bond or
bond price or bond index swaps or options or forward bond or forward bond price
or forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions,
currency options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into any of
the foregoing), whether or not any such transaction is governed by or subject to
any master agreement. Not in limitation of the foregoing, the term "Derivatives
Contract" includes any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed by,
any form of master agreement published by the International Swaps and
Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement, including any such obligations or
liabilities under any such master agreement.
"Derivatives Termination Value" means, in respect of any one or more
Derivatives Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Derivatives Contracts, (a) for
any date on or after the date such Derivatives Contracts have been closed out
and termination value(s) determined in accordance therewith, such termination
value(s), and (b) for any date prior to the date referenced in clause (a) the
amount(s) determined as the xxxx-to-market value(s) for such Derivatives
Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Derivatives
Contracts (which may include any Lender).
"Development Property" means a Property which is being developed to
become an office, industrial or retail property.
"Dollars" or "$" means the lawful currency of the United States of
America.
"EBITDA" means, with respect to a Person for any period (without
duplication): (a) net income (loss) of such Person for such period determined on
a consolidated basis, excluding the following (but only to the extent included
in determination of such net income (loss)): (i) depreciation and amortization;
(ii) Interest Expense; (iii) income tax expense; (iv) extraordinary or
non-recurring gains and losses; (v) noncash charges; and (vi) gains and losses
from sales of assets; plus (b) such Person's pro rata share of EBITDA of its
Unconsolidated Affiliates. EBITDA shall be adjusted to remove any impact from
straight line rent leveling adjustments required under GAAP and amortization of
intangibles associated with the amortization of above or below market rents
pursuant to Statement of Financial Accounting Standards No. 141.
"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 5.1. shall
have been fulfilled or waived in writing by the Requisite Lenders.
"Eligible Assignee" means any Person who is, at the time of
determination: (i) a Lender or an affiliate of a Lender; (ii) a commercial bank,
trust, 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
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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, 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. Notwithstanding the
foregoing, while an Event of Default under subsection (a), (b), (e), (f) or (g)
of Section 10.1. exists, "Eligible Assignee" shall mean any Person that is not
an individual.
"Environmental Laws" means any Applicable Law relating to environmental
protection or the manufacture, storage, treatment, disposal or clean-up of
Hazardous Materials including, without limitation, the following: Clean Air Act,
42 U.S.C. Section 7401 et seq.; Federal Water Pollution Control Act, 33 U.S.C.
Section 1251 et seq.; Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601
et seq.; National Environmental Policy Act, 42 U.S.C. Section 4321 et seq.;
regulations of the United States Environmental Protection Agency and any
applicable rule of common law and any judicial interpretation thereof relating
primarily to environmental protection 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 by a Person of any Equity Interest
in such Person and shall in any event include the issuance of any Equity
Interest upon the conversion or exchange of any security constituting
Indebtedness that is convertible or exchangeable, or is being converted or
exchanged, for Equity Interests.
"ERISA" means the Employee Retirement Income Security Act of 1974, as in
effect from time to time.
"ERISA Group" means the Borrowers, any other 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 any Borrower or any
other 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 10.1.,
provided that any requirement for notice or lapse of time or any other condition
has been satisfied.
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"Facility Amount" means two hundred and twenty-five million dollars
($225,000,000), subject to increase pursuant to Section 2.12 hereof or decrease
pursuant to Section 2.9 hereof.
"Facility Interest Expense" means, as of any date of determination for a
particular period, an amount equal to the interest that would accrue during such
period on the then aggregate principal amount outstanding of the Loans at an
interest rate equal to the sum of (i) the Adjusted LIBOR on such date of
determination for an Interest Period of one (1) month plus (ii) the Applicable
Margin for LIBOR Loans on such date of determination.
"Fair Market Value" means, with respect to (a) a security listed on a
national securities exchange or the NASDAQ National Market, the price of such
security as reported on such exchange or market by any widely recognized
reporting method customarily relied upon by financial institutions and (b) with
respect to any other property, 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.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward to the nearest 1/100th of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day,
provided that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate quoted to the
Agent by federal funds dealers selected by the Agent on such day on such
transaction as determined by the Agent.
"Fee Letter" means that certain Fee Letter dated as of June 1, 2007 by
and among the Trust, the Lead Arranger and KeyBank.
"Fees" means the fees and commissions provided for or referred to in
Section 3.6. and any other fees payable by the Borrowers hereunder or under any
other Loan Document.
"Fixed Charges" means, for any period, the sum of (a) Debt Service for
such period and (b) all Preferred Dividends paid during such period. The Trust
pro rata share of the Fixed Charges of Unconsolidated Affiliates of the Trust
shall be included in determinations of Fixed Charges.
"Floating Rate Indebtedness" means all Indebtedness of a Person which
bears interest at a variable rate during the scheduled life of such Indebtedness
and for which such Person has not obtained interest rate swap agreements,
interest rate "cap" or "collar" agreements or other similar Derivatives
Contracts which effectively cause such variable rates to be equivalent to fixed
rates acceptable to the Agent.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than the United States of America, any State thereof or the
District of Columbia.
"Funds From Operations" means, for a given period, net income (loss) of
the Trust and its Subsidiaries determined on a consolidated basis for such
period exclusive of the following (to
- 8 -
the extent included in the determination of such net income (loss)): (a) gains
(or losses) from debt restructuring and sales of property during such period,
(b) any non-cash charges recorded from asset impairments and (c) depreciation
with respect to real estate assets and amortization (other than amortization of
deferred financing costs) for such period, all after adjustment for
unconsolidated partnerships and joint ventures. Adjustments for unconsolidated
entities will be calculated to reflect funds from operations on the same basis.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"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, commission, board, department or other 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.
"Ground Lease" means a ground lease containing the following terms and
conditions: (a) a remaining term (including any unexercised extension options
that the lessee can unilaterally exercise without the need to obtain the consent
of the lessor or to pay the lessor any amount as a condition to the
effectiveness of such extension) of 15 years or more from the Agreement Date;
(b) the right of the lessee to mortgage and encumber its interest in the leased
property without the consent of the lessor; (c) the obligation of the lessor to
give the holder of any mortgage Lien on such leased property written notice of
any defaults on the part of the lessee and agreement of such lessor that such
lease will not be terminated until such holder has had a reasonable opportunity
to cure or complete foreclosures, and fails to do so; (d) reasonable
transferability of the lessee's interest under such lease, including ability to
sublease; and (e) such other rights customarily required by mortgagees making a
loan secured by the interest of the holder of the leasehold estate demised
pursuant to a ground lease.
"Ground Lease Discount" means, with respect to a Ground Lease, the
percentage set forth in the following table corresponding to the remaining term
(including an unexercised extension options that can be exercised by the lessee
without the consent of the lessor) of such Ground Lease at the time of
determination:
----------------------------------------------------------
| Remaining Term | Ground Lease Discount |
|-----------------------------|--------------------------|
|.> 30 years | 100% |
|-----------------------------|--------------------------|
|> 25 years and = 30 years | 80% |
|-----------------------------|--------------------------|
|> 20 years and = 25 years | 75% |
|-----------------------------|--------------------------|
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----------------------------------------------------------
|> 15 years and = 20 years | 65% |
|-----------------------------|--------------------------|
"Guarantor" means any Person that is or becomes a party to the Guaranty
as a "Guarantor" in that such Person directly, or indirectly through one or more
other Subsidiaries, owns any Property Subsidiary.
"Guaranty", "Guaranteed", "Guarantying" or to "Guarantee" as applied to
any obligation means and includes: (a) a guaranty (other than by endorsement of
negotiable instruments for collection or deposit 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 down by beneficiaries of letters of credit, or (v) the
supplying of funds to or investing in a Person on account of all or any part of
such Person's obligation under a Guaranty of any obligation or indemnifying or
holding harmless, in any way, such Person against any part or all of such
obligation. As the context requires, "Guaranty" shall also mean the Guaranty to
which the Guarantors are parties substantially in the form of Exhibit H.
"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; (e) toxic mold; and (f) electrical equipment which
contains any oil or dielectric fluid containing levels of polychlorinated
biphenyls in excess of fifty parts per million.
"Increase Effective Date" has the meaning given that term in Section
2.12.
"Indebtedness" means, with respect to a Person, at the time of
computation thereof, all of the following (without duplication): (a) all
obligations of such Person in respect of money borrowed; (b) all obligations of
such Person, 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 or services rendered; (c) Capitalized Lease Obligations of
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such Person; (d) all reimbursement obligations (contingent or otherwise) of such
Person in respect of letters of credit or acceptances (whether or not the same
have been presented for payment); (e) all Off-Balance Sheet Obligations of such
Person; (f) all obligations of such Person to purchase, redeem, retire, defease
or otherwise make any payment in respect of any Mandatorily Redeemable Stock
issued by such Person or any other Person, valued at the greater of its
voluntary or involuntary liquidation preference plus accrued and unpaid
dividends; (g) all obligations of such Person in respect of any purchase
obligation, repurchase obligation, takeout commitment or forward equity
commitment, in each case evidenced by a binding agreement (excluding any such
obligation to the extent the obligation can be satisfied by the issuance of
Equity Interests (other than Mandatorily Redeemable Stock)); (h) net obligations
under any Derivatives Contract not entered into as a hedge against existing
Indebtedness, in an amount equal to the Derivatives Termination Value thereof;
(i) all Indebtedness of other Persons which such Person has Guaranteed or is
otherwise recourse to such Person (except for guaranties of customary exceptions
for fraud, misapplication of funds, environmental indemnities, bankruptcy,
insolvency, receivership and other similar events, and other similar exceptions
to nonrecourse liability); (j) all Indebtedness of another Person secured by (or
for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property or assets owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Indebtedness or other payment obligation; and (k) such Person's pro rata
share of the Indebtedness of any Unconsolidated Affiliate of such Person. All
Loans shall constitute Indebtedness of the Borrowers.
"Initial Facility Amount' means two hundred and twenty-five million
dollars ($225,000,000).
"Intellectual Property" has the meaning given that term in Section
6.1.(t).
"Interest Expense" means, for any period, without duplication, (a) total
interest expense of the Trust and its Subsidiaries, including capitalized
interest not funded under a construction loan interest reserve account,
determined on a consolidated basis for such period, plus (b) the Trust's pro
rata share of Interest Expense of Unconsolidated Affiliates for such period.
"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 1, 2, 3 or 6 months
thereafter, as the Borrowers 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 a day for which there is no corresponding day in the appropriate subsequent
calendar month, shall end on the last Business Day of the appropriate subsequent
calendar month. Notwithstanding the foregoing: (i) if any Interest Period would
otherwise end after the Termination Date, such Interest Period shall end on the
Termination Date; and (ii) each Interest Period that would otherwise end on a
day which is not a Business Day shall end on the immediately following Business
Day (or, if such immediately following Business Day falls in the next calendar
month, on the immediately preceding Business Day).
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended.
- 11 -
"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 binding commitment to make an Investment in any other Person, as well as any
option of another Person to require an Investment in such 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.
"KeyBank" means KeyBank National Association, together with its
successors and assigns.
"Lender" means each financial institution from time to time party hereto
as a "Lender", together with its respective successors and permitted assigns.
"Lending Office" means, for each Lender and for each Type of Loan, the
office of such Lender specified as such on its signature page hereto or in the
applicable Assignment and Acceptance Agreement, or such other office of such
Lender of which such Lender may notify the Agent in writing from time to time.
"LIBOR" means, for any LIBOR Loan for any Interest Period therefor, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
available, the term "LIBOR" shall mean, for any LIBOR Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on the Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period; provided, however, if more than
one rate is specified on the Reuters Screen LIBO Page, the applicable rate shall
be the arithmetic mean of all such rates. If for any reason none of the
foregoing rates is available, LIBOR shall be, for any Interest Period, the rate
per annum reasonably determined by the Agent as the rate of interest at which
Dollar deposits in the approximate amount of the LIBOR Loan comprising part of
such borrowing would be offered by the Agent to major banks in the London
interbank Eurodollar market at their request at or about 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period.
"LIBOR Loan" means a 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, assignment
of leases and rents,
- 12 -
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, rents or profits therefrom; (b) any arrangement, express or implied,
under which any property of such Person is transferred, sequestered or otherwise
identified for the purpose of subjecting the same to the payment of Indebtedness
or performance of any other obligation in priority to the payment of the
general, unsecured creditors of such Person; (c) the filing of any financing
statement under the Uniform Commercial Code or its equivalent in any
jurisdiction, other than any precautionary filing not otherwise constituting or
giving rise to a Lien, including a financing statement filed (i) in respect of a
lease not constituting a Capitalized Lease Obligation pursuant to Section 9-505
(or a successor provision) of the Uniform Commercial Code or its equivalent as
in effect in an applicable jurisdiction or (ii) in connection with a sale or
other disposition of accounts or other assets not prohibited by this Agreement
in a transaction not otherwise constituting or giving rise to a Lien; and (d)
any agreement by such Person to grant, give or otherwise convey any of the
foregoing.
"Loan" means a loan made by a Lender to any Borrower pursuant to Section
2.1.(a).
"Loan Document" means this Agreement, each Note, the Pledge Agreement,
the Guaranty and each other document or instrument now or hereafter executed and
delivered by a Loan Party in connection with, pursuant to or relating to this
Agreement.
"Loan Party" means each of the Borrowers and each Person who guarantees
all or a portion of the Obligations and/or who pledges any collateral security
to secure all or a portion of the Obligations. Schedule 1.1.(A) sets forth the
Loan Parties in addition to the Borrowers as of the Agreement Date.
"Mandatorily Redeemable Stock" means, with respect to any Person, any
Equity Interest of such Person which by the terms of such Equity Interest (or by
the terms of any security into which it is convertible or for which it is
exchangeable or exercisable), upon the happening of any event or otherwise, (a)
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise (other than an Equity Interest to the extent redeemable in exchange
for common stock or other equivalent common Equity Interests), (b) is
convertible into or exchangeable or exercisable for Indebtedness or Mandatorily
Redeemable Stock, or (c) is redeemable at the option of the holder thereof, in
whole or in part (other than an Equity Interest which is redeemable solely in
exchange for common stock or other equivalent common Equity Interests), in each
case on or prior to the Termination Date. For the avoidance of doubt, the
parties hereto agree that the following Equity Interests of the Trust do not
qualify as Mandatorily Redeemable Stock based on their terms as in effect on the
Agreement Date: (w) 8.05% Series B Cumulative Redeemable Preferred Stock
established pursuant to Articles Supplementary filed by the Trust on June 17,
2003 with the Department of Assessments and Taxation of the State of Maryland,
(x) 6.50% Series C Cumulative Convertible Preferred Stock established pursuant
to Articles Supplementary filed by the Trust on December 8, 2004 with the
Department of Assessments and Taxation of the State of Maryland, (y) 7.55%
Series D Cumulative Redeemable Preferred Stock established pursuant to Articles
Supplementary filed by the Trust on February 14, 2007 with the Department of
Assessments and Taxation of the State of Maryland, and (z) 5.45% Exchangeable
Guaranteed Notes due 2027 established pursuant to an Indenture and First
- 13 -
Supplemental Indenture dated as of January 29, 2007, and a Second Supplemental
Indenture dated as of March 9, 2007.
"Material Adverse Effect" means a materially adverse effect on (a) the
business, assets, liabilities, financial condition, results of operations or
business prospects of the Trust and its Subsidiaries taken as a whole, (b) the
ability of any Borrower or any other Loan Party to perform its obligations under
any Loan Document to which it is a party, (c) the validity or enforceability of
any of the Loan Documents, (d) the rights and remedies of the Lenders and the
Agent under any of the Loan Documents or (e) the timely payment of the principal
of or interest on the Loans or other amounts payable in connection therewith.
"Material Contract" means any contract or other arrangement (other than
Loan Documents), whether written or oral, to which any Borrower, any other Loan
Party or any other Subsidiary is a party as to which the breach, nonperformance,
cancellation or failure to renew by any party thereto could reasonably be
expected to have a Material Adverse Effect.
"Moody's" means Xxxxx'x Investors Service, Inc., and its successors.
"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 or another Person.
"Mortgage Receivable" means a promissory note secured by a Mortgage of
which a Borrower, a Guarantor or one of their respective Subsidiaries is the
holder and retains the rights of collection of all payments thereunder.
"Multiemployer Plan" means at any time a multiemployer 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 or assumption of any Lien on such
asset as security for Indebtedness of the Person owning such asset or any other
Person; provided, however, that an agreement that conditions a Person's ability
to encumber its assets upon the maintenance of one or more specified ratios that
limit such Person's ability to encumber its assets but that do not generally
prohibit the encumbrance of its assets, or the encumbrance of specific assets,
shall not constitute a Negative Pledge.
"Net Operating Income" means, for any Property and for a given period,
the sum of the following (without duplication and determined on a consistent
basis with prior periods): (a) rents and other revenues received in the ordinary
course from such Property (including proceeds of rent loss or business
interruption insurance but excluding pre-paid rents and revenues and security
deposits except to the extent applied in satisfaction of tenants' obligations
for rent) (the foregoing, collectively "Gross Revenues") minus (b) all expenses
paid (excluding interest but including an appropriate accrual for property taxes
and insurance) related to the ownership,
- 14 -
operation or maintenance of such Property, including but not limited to property
taxes, assessments and the like, insurance, utilities, payroll costs,
maintenance, repair and landscaping expenses, marketing expenses, and general
and administrative expenses (including an appropriate allocation for legal,
accounting, advertising, marketing and other expenses incurred in connection
with such Property, but specifically excluding general overhead expenses of a
Borrower or any Subsidiary and any property management fees).
"Net Proceeds" means with respect to any Equity Issuance by a Person or
any Permitted Financing by a Person, the aggregate amount of all cash and the
Fair Market Value of all other property (other than securities of such Person
being converted or exchanged in connection with any such Equity Issuance or
Permitted Financing) received by such Person in respect of such Equity Issuance
or Permitted Financing 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 or Permitted Financing.
"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, bankruptcy, insolvency, receivership and other similar events, and
other similar exceptions to nonrecourse liability) is contractually limited to
specific assets of such Person encumbered by a Lien securing such Indebtedness.
Liability of a Person under a completion guarantee for a Development Property,
to the extent relating to the Nonrecourse Indebtedness of another Person, shall
not, in and of itself, prevent such liability from being characterized as
Nonrecourse Indebtedness.
"Note" has the meaning given that term in Section 2.8(a).
"Notice of Borrowing" means a notice in the form of Exhibit B to be
delivered to the Agent pursuant to Section 2.1.(b) evidencing the Borrowers'
request for a borrowing of Loans.
"Notice of Continuation" means a notice in the form of Exhibit C to be
delivered to the Agent pursuant to Section 2.6. evidencing the Borrowers'
request for the Continuation of a LIBOR Loan.
"Notice of Conversion" means a notice in the form of Exhibit D to be
delivered to the Agent pursuant to Section 2.7. evidencing the Borrowers'
request for the Conversion of a Loan from one Type to another Type.
"Obligations" means, individually and collectively: (a) the aggregate
principal balance of, and all accrued and unpaid interest on, all Loans; and (b)
all other indebtedness, liabilities, obligations, covenants and duties of the
Borrowers and 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 leased by tenants that are not Affiliates paying rent at rates not
materially less than rates generally prevailing at the time the
- 15 -
applicable lease was entered into, pursuant to binding leases as to which no
monetary default has occurred and has continued unremedied for 30 or more days
to (b) the aggregate net rentable square footage of such Property.
"OFAC" means U.S. Department of the Treasury's Office of Foreign Assets
Control and any successor Governmental Authority.
"Off-Balance Sheet Obligations" means liabilities and obligations of any
Borrower, any Subsidiary or any other Person in respect of "off-balance sheet
arrangements" (as defined in the SEC Off-Balance Sheet Rules) which the Trust
would be required to disclose in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" section of the Trust's report on
Form 10-Q or Form 10-K (or their equivalents) which the Trust is required to
file with the Securities and Exchange Commission (or any Governmental Authority
substituted therefor). As used in this definition, the term "SEC Off-Balance
Sheet Rules" means the Disclosure in Management's Discussion and Analysis About
Off-Balance Sheet Arrangements, Securities Act Release No. 33-8182, 68 Fed. Reg.
5982 (Feb. 5, 2003) (codified at 17 CFR pts. 228, 229 and 249).
"Ohio Property" means that certain 1.7 million square foot distribution
facility located at Warren, Ohio and currently leased to Kmart Corp.
"Operating Partnership" means Lexington, LCIF, LCIFII or Net 3.
"Participant" has the meaning given that term in Section 12.5.(c).
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
agency.
"Permitted Financing" means a sale or refinancing of a Borrowing Base
Asset, the Net Proceeds of which are utilized by the Borrowers in accordance
with Section 2.5(b)(ii).
"Permitted Liens" means, as to any 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 7.6.; (b) Liens consisting of deposits or
pledges made, in the ordinary course of business, in connection with, or to
secure payment of, obligations under workers' 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; (e) Liens in favor of the Agent for the benefit of the Lenders;
(f) Liens in favor of a Borrower or a Guarantor securing obligations owing by a
Subsidiary to such Borrower or such Guarantor, which obligations have been
subordinated to the Obligations on terms satisfactory to the Agent; and (g)
Liens in existence as of the Agreement Date and set forth in Part II of Schedule
6.1.(g).
- 16 -
"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 (a) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (b) 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.
"Pledge Agreement" means collectively the pledge agreements dated as of
June 1, 2007 among the Borrowers, the Guarantor and the Agent for the benefit of
the Lenders, as amended and in effect from time to time.
"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 the Base Rate as in effect from time to time plus the Applicable
Margin for Base Rate Loans plus four percent (4.0%).
"Preferred Dividends" means, for any period and without duplication, all
Restricted Payments paid during such period on Preferred Equity Interests issued
by a Borrower or another Subsidiary. Preferred Dividends shall not include
dividends or distributions (a) paid or payable solely in Equity Interests (other
than Mandatorily Redeemable Stock) payable to holders of such class of Equity
Interests, (b) paid or payable to a Borrower or another Subsidiary, or (c)
constituting or resulting in the redemption of Preferred Equity Interests, other
than scheduled redemptions not constituting balloon, bullet or similar
redemptions in full.
"Preferred Equity Interests" means, with respect to any Person, Equity
Interests in such Person which are entitled to preference or priority over any
other Equity Interest in such Person in respect of the payment of dividends or
distribution of assets upon liquidation or both.
"Prime Rate" means the rate of interest per annum announced publicly by
the Lender then acting as the Agent as its prime rate from time to time. The
Prime Rate is not necessarily the best or the lowest rate of interest offered by
the Lender acting as the Agent or any other Lender.
"Principal Office" means the office of the Agent located at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, or such other office of the Agent as the Agent
may designate from time to time.
"Property" means any parcel of real property owned or leased (in whole
or in part) or operated by any Borrower, any other Subsidiary or any
Unconsolidated Affiliate of the Trust and which is located in a state of the
United States of America or in the District of Columbia.
"Property Subsidiary" means a Subsidiary, the Equity Interests of which
are wholly-owned, directly or indirectly by a Guarantor and that directly owns
or leases a Property that is included in the Borrowing Base Assets Pool.
- 17 -
"Register" has the meaning given that term in Section 12.5.(e).
"Regulatory Change" means, with respect to any Lender, any change
effective after the Agreement Date in Applicable Law (including without
limitation, Regulation D of the Board of Governors of the Federal Reserve
System) or the adoption or making after such date of any interpretation,
directive or request applying to a class of banks, including such Lender, of or
under any Applicable Law (whether or not having the force of law and whether or
not failure to comply therewith would be unlawful) by any Governmental Authority
or monetary authority charged with the interpretation or administration thereof
or compliance by any Lender with any request or directive regarding capital
adequacy.
"REIT" means a Person qualifying for treatment as a "real estate
investment trust" under the Internal Revenue Code.
"Requisite Lenders" means, as of any date, Lenders having at least
66-2/3% of the aggregate amount of the Commitments (not held by Defaulting
Lenders who are not entitled to vote), or, if the Commitments have been
terminated or reduced to zero, Lenders holding at least 66-2/3% of the principal
amount of the aggregate outstanding Loans (not held by Defaulting Lenders who
are not entitled to vote). Commitments and Loans held by Defaulting Lenders
shall be disregarded when determining the Requisite Lenders.
"Responsible Officer" means with respect to a Borrower or any other
Subsidiary, the chief executive officer and the chief financial officer of such
Borrower or such Subsidiary.
"Restricted Payment" means: (a) any dividend or other distribution,
direct or indirect, on account of any Equity Interest of a Borrower or any other
Subsidiary now or hereafter outstanding, except a dividend payable solely in
Equity Interests of an identical or junior class 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
Equity Interest of a Borrower or any other Subsidiary now or hereafter
outstanding; and (c) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire any Equity
Interests of a Borrower or any other Subsidiary now or hereafter outstanding.
"Sanctioned Entity" means (a) an agency of the government of, (b) an
organization directly or indirectly controlled by, or (c) a Person resident in,
in each case, a country that is subject to a sanctions program identified on the
list maintained by the OFAC and published from time to time, as such program may
be applicable to such agency, organization or Person.
"Sanctioned Person" means a Person named on the list of Specially
Designated Nationals or Blocked Persons maintained by the OFAC as published from
time to time.
"Section 0000 Xxxxxxxx" means a like kind tax-free exchange of real
property interests in accordance with Section 1031 of the Internal Revenue Code.
"Secured Indebtedness" means, with respect to a Person as of any given
date, the aggregate principal amount of all Indebtedness of such Person
outstanding at such date and that is secured in any manner by any Lien, and in
the case of the Trust, shall include (without
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duplication) the Trust's pro rata share of the Secured Indebtedness of its
Unconsolidated Affiliates.
"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 computed at the
amount which, in light of all the facts and circumstances existing at such time,
represents the amount that could reasonably be expected to become an actual and
matured liability); (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., and its successors.
"Stabilized Property" means a completed Property that has at any time
achieved an Occupancy Rate of at least 80%.
"Subsidiary" means, for any Person, any corporation, partnership or
other entity of which at least a majority of the Equity Interests having by the
terms thereof ordinary voting power to elect a majority of the board of
directors or other individuals 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, and shall include all Persons the accounts of
which are consolidated with those of such Person pursuant to GAAP.
"Tangible Net Worth" means, as of a given date, (a) the stockholders'
equity of the Trust and Subsidiaries determined on a consolidated basis, plus
(b) accumulated depreciation and amortization, minus (c) the following (to the
extent reflected in determining stockholders' equity of the Trust and its
Subsidiaries): (i) 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 (ii) all amounts
appearing on the assets side of any such balance sheet for assets which would be
classified as intangible assets under GAAP, other than intangibles required to
be recorded under Statement of Financial Accounting Standards No. 141, all
determined on a consolidated basis. Notwithstanding the foregoing, (x)
amortization of above or below market rents pursuant to Statement of Financial
Accounting Standards No. 141 shall not be excluded under either of the preceding
clauses (i) or (ii) and (y) the effect of marked-to-market adjustments required
to be made under GAAP with respect to assumed indebtedness shall be excluded
when determining Tangible Net Worth.
"Taxes" has the meaning given that term in Section 3.12.
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"Termination Date" means the earlier of (a) the date on which the
Commitments are reduced to zero under Section 2.11. or (b) June 1, 2009 (or such
later date to which the Termination Date may be extended pursuant to Section
2.10.).
"Titled Agents" means each of the Arranger, the Book Running Manager and
their respective successors and permitted assigns.
"Total Available Commitments" means, at any time of determination, the
lesser of (a) the aggregate amount of the Commitments at such time, or (b) the
then Borrowing Base Availability.
"Total Indebtedness" means all Indebtedness of the Trust and all of its
Subsidiaries determined on a consolidated basis. For purposes of determining the
Borrowers' compliance with Section 9.1.(a) Indebtedness in respect of the
Borrowers' zero coupon bonds due October, 2007 on the terms in effect on the
Agreement Date and to the extent secured by the Ohio Property shall be excluded
from Total Indebtedness.
"Type" with respect to any Loan, refers to whether such Loan is a LIBOR
Loan or Base Rate Loan.
"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.
"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.
"Unimproved Land" means land on which no development (other than
improvements that are not material and are temporary in nature) has occurred and
for which no construction is planned in the following 12 months.
"Value" means (a) with respect to (i) any Property in the Borrowing Base
Assets Pool acquired prior to March 31, 2006 or (ii) any Property in the
Borrowing Base Assets Pool acquired after March 31, 2006 with respect to which
there has been, in the determination of the Agent, material change in the
operating economics of the Property, (A) the Net Operating Income of such
Property for the fiscal quarter most recently ended, times (B) 4 divided by (C)
the Capitalization Rate and (b) with respect to any other Property in the
Borrowing Base Assets Pool, the value of such Property based on cost determined
in accordance with GAAP.
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"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 Times.
Unless otherwise indicated, all accounting terms, ratios and
measurements shall be interpreted or determined in accordance with GAAP;
provided that, if at any time any change in GAAP would affect the computation of
any financial ratio or requirement set forth in any Loan Document, and either
the Borrowers or the Requisite Lenders shall so request, the Agent, the Lenders
and the Borrowers shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Requisite Lenders); provided further that,
until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrowers shall
provide to the Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting forth
a reconciliation between calculations of such ratio or requirement made before
and after giving effect to such change in GAAP. 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 as of the date of this Agreement and from time to
time thereafter to the extent not prohibited 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 Trust or a
Subsidiary of such Subsidiary and a reference to an "Affiliate" means a
reference to an Affiliate of the Trust. 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 Charlotte, North Carolina
time.
Section 1.3. Financial Attributes of Non-Wholly Owned Subsidiaries.
When determining the Trust's compliance with any financial covenant
contained in any of the Loan Documents, only the Trust's pro rata share of the
financial attributes of a Subsidiary that is not a Wholly Owned Subsidiary shall
be included.
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ARTICLE II. - CREDIT FACILITY
-----------------------------
Section 2.1. Loans.
(a) Generally. Subject to the terms and conditions hereof, during the
period from the Effective Date to but excluding the Termination Date, each
Lender severally and not jointly agrees to make Loans to the Borrowers in an
aggregate principal amount at any one time outstanding up to, but not exceeding,
the amount of such Lender's Commitment. The aggregate amount of Loans shall not
exceed the lesser of (i) the Facility Amount and (ii) the Total Available
Commitments. The Loans shall be funded, subject to satisfaction of all terms and
conditions contained herein in an initial single funding on the Effective Date
in an amount not to exceed $225,000,000; provided, however, that Loans that may
be available for funding as a result of an increase to the Facility Amount
pursuant to Section 2.12 hereof may be funded within ninety (90) days of the
Increase Effective Date for such increase.
(b) Requesting Loans. The Borrowers shall give the Agent notice pursuant
to a Notice of Borrowing or telephonic notice of each borrowing of Loans. Each
Notice of Borrowing shall be delivered to the Agent before 11:00 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. Any such telephonic
notice shall include all information to be specified in a written Notice of
Borrowing and shall be promptly confirmed in writing by the Borrowers pursuant
to a Notice of Borrowing sent to the Agent by telecopy on the same day of the
giving of such telephonic notice. The Agent will transmit by telecopy the 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 or
telephonic notice of each borrowing shall be irrevocable once given and binding
on the Borrowers. Together with the notice to the Agent as specified immediately
above, the Borrowers shall deliver to the Agent a completed, current
certificate, identifying the Borrowing Base Assets against which the borrowing
of Loans is being requested, setting forth the calculation of Borrowing Base
Availability, and providing other information concerning the Borrowing Base
Assets and the Borrowers, in the form attached hereto as Exhibit I (a "Borrowing
Base Certificate").
(c) Disbursements of Loan Proceeds. No later than 1:00 p.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 at the Principal Office,
in immediately available funds, the proceeds of the Loan to be made by such
Lender. With respect to 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
Loan to be made by such Lender on such date, the Agent may assume that such
Lender will make the proceeds of such 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 Borrowers the amount of such Loan to be provided by such
Lender. Subject to satisfaction of the applicable conditions set forth in
Article V. for such borrowing, the Agent will make the proceeds of such
borrowing available to the Borrowers no later than 2:00 p.m. on the date and at
the account specified by the Borrowers in such Notice of Borrowing.
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Section 2.2. Rates and Payment of Interest on Loans.
(a) Rates. The Borrowers promise 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;
and
(ii) during such periods as such Loan is a LIBOR Loan, at
Adjusted LIBOR for such Loan for the Interest Period therefor plus the
Applicable Margin with respect to such Loan.
Notwithstanding the foregoing, during the continuance of an Event of Default,
the Borrowers shall pay to the Agent for the account of each Lender interest at
the Post-Default Rate on the outstanding principal amount of any Loan made by
such Lender, and on any other amount payable by the Borrowers 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. Accrued and unpaid interest on each Loan shall
be payable (i) monthly in arrears on the first day of each calendar month and
(ii) in the case of any Loan, in arrears upon the payment, prepayment or
Continuation thereof or the Conversion of such Loan to a Loan of another Type
(but only on the principal amount so paid, prepaid, Continued or Converted).
Interest payable at the Post-Default Rate shall be payable from time to time on
demand. Promptly after the determination of any interest rate provided for
herein or any change therein, the Agent shall give notice thereof to the Lenders
to which such interest is payable and to the Borrowers. All determinations by
the Agent of an interest rate hereunder shall be conclusive and binding on the
Lenders and the Borrowers for all purposes, absent manifest error.
Section 2.3. Number of Interest Periods.
There may be no more than six (6) different Interest Periods for LIBOR
Loans outstanding at the same time.
Section 2.4. Repayment of Loans.
The Borrowers shall repay the entire outstanding principal amount of,
and all accrued but unpaid interest on, the Loans on the Termination Date.
Section 2.5. Prepayments.
(a) Optional. Subject to Section 4.4., the Borrowers may prepay any Loan
at any time without premium or penalty. The Borrowers shall give the Agent at
least one Business Day's prior written notice of the prepayment of any Loan.
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(b) Mandatory. (i) If at any time the aggregate principal amount of all
outstanding Loans exceeds the Total Available Commitments, the Borrowers shall
promptly (and in any event, within 2 Business Days after notice thereof from the
Agent) pay to the Agent for the accounts of the Lenders the amount of such
excess. Such payment shall be applied to pay all amounts of principal
outstanding on the Loans pro rata in accordance with Section 3.2. If the
Borrowers are required to pay any outstanding LIBOR Loans by reason of this
Section prior to the end of the applicable Interest Period therefor, the
Borrowers shall pay all amounts due under Section 4.4.
(ii) With respect to each Permitted Financing, the Borrowers shall pay
to the Agent on the closing date of such Permitted Financing, for the
accounts of the Lenders, an amount in respect of such Permitted
Financing equal to the greater of (i) 140% of the Borrowing Base
Availability attributable to the Property subject to such Permitted
Financing or (ii) 75% of the Net Proceeds received by the Borrowers in
respect of such Permitted Financing, provided, however, that no such
prepayment shall be required in connection with a Permitted Financing
comprised of the sale of a Property in the event that the Borrowers
utilize the proceeds from such sale in connection with a Section 1031
Exchange provided that (i) the Section 1031 Exchange is documented in a
manner reasonably acceptable to the Agent and its counsel, (ii) any cash
proceeds received by any Loan Party in connection with such Section 1031
Exchange are kept with a third party intermediary consistent with the
requirements of the Internal Revenue Code and (iii) upon the completion
such Section 1031 Exchange, the property received by the Borrowers from
such Section 1031 Exchange shall satisfy the requirements for inclusion
in the Borrowing Base Assets Pool in accordance with Section 7.15.
Section 2.6. Continuation.
So long as no Default or Event of Default shall exist, the Borrowers 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 Borrowers giving to
the Agent a Notice of Continuation not later than 11:00 a.m. on the third
Business Day prior to the date of any such Continuation. Such notice by the
Borrowers of a Continuation shall be by telephone or telecopy, confirmed
immediately in writing if by telephone, in the form of a Notice of Continuation,
specifying (a) the proposed date of such Continuation, (b) the LIBOR Loans and
portions 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 Borrowers once
given. Promptly after receipt of a Notice of Continuation, the Agent shall
notify each Lender by telecopy, or other similar form of transmission, of the
proposed Continuation. If the Borrowers shall fail to select in a timely manner
a new Interest Period for any LIBOR Loan in accordance with this Section, or if
a Default or Event of Default shall exist, such Loan will automatically, on the
last day of the current Interest Period therefor, Convert into a Base Rate Loan
notwithstanding the first sentence of Section 2.7. or the Borrowers' failure to
comply with any of the terms of such Section.
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Section 2.7. Conversion.
The Borrowers 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; provided, however, a Base Rate Loan may not be
Converted to a LIBOR Loan if a Default or Event of Default shall exist. 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 Borrowers 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 11:00 a.m. on the Business Day prior to
the date of any proposed Conversion into Base Rate Loans and on the third
Business Day prior to the date of any proposed Conversion into LIBOR Loans.
Promptly after receipt of a Notice of Conversion, the Agent shall notify each
Lender by telecopy, or other similar form of transmission, of the proposed
Conversion. Subject to the restrictions specified above, each Notice of
Conversion shall be by telephone (confirmed immediately in writing) or telecopy
in the form of a Notice of Conversion specifying (a) the requested date of such
Conversion, (b) the Type of Loan to be Converted, (c) the portion of such Type
of Loan to be Converted, (d) the Type of Loan such Loan is to be Converted into
and (e) if such Conversion is into a LIBOR Loan, the requested duration of the
Interest Period of such Loan. Each Notice of Conversion shall be irrevocable by
and binding on the Borrowers once given.
Section 2.8. Notes.
(a) Note. The Loans made by each Lender shall, in addition to this
Agreement, also be evidenced by a promissory note of the Borrowers substantially
in the form of Exhibit E (each a "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.
(b) Records. The date, amount, interest rate, Type and duration of
Interest Periods (if applicable) of each Loan made by each Lender to the
Borrowers, and each payment made on account of the principal thereof, shall be
recorded by such Lender on its books and such entries shall be binding on the
Borrowers, absent manifest error; provided, however, that the failure of a
Lender to make any such record shall not affect the obligations of the Borrowers
under any of the Loan Documents.
(c) Lost, Stolen, Destroyed or Mutilated Notes. Upon receipt by the
Borrowers of (i) written notice from a Lender that a Note of such Lender has
been lost, stolen, destroyed or mutilated, and (ii) (A) in the case of loss,
theft or destruction, an unsecured agreement of indemnity from such Lender in
form reasonably satisfactory to the Borrowers, or (B) in the case of mutilation,
upon surrender and cancellation of such Note, the Borrowers shall at their own
expense execute and deliver to such Lender a new Note dated the date of such
lost, stolen, destroyed or mutilated Note.
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Section 2.9. RESERVED.
Section 2.10. Extension of Termination Date.
The Borrowers shall have the right, exercisable one time, to extend the
Termination Date by six (6) months. The Borrowers may exercise such right only
by executing and delivering to the Agent at least 90 days but not more than 120
days prior to the initial Termination Date, a written request for such extension
(an "Extension Request"). The Agent shall forward to each Lender a copy of the
Extension Request delivered to the Agent promptly upon receipt thereof. Subject
to satisfaction of the following conditions, the Termination Date shall be
extended for six (6) months effective upon receipt of the Extension Request and
payment of the fee referred to in the following clause (b): (a) immediately
prior to such extension and immediately after giving effect thereto, (i) no
Default or Event of Default shall exist and (ii) the representations and
warranties made or deemed made by the Borrowers and each other Loan Party in the
Loan Documents to which any of them is a party, shall be true and correct in all
material respects on and as of the date of such extension 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 correct
in all material respects on and as of such earlier date) and except for changes
in factual circumstances not prohibited under the Loan Documents and (b) the
Borrowers shall have paid the Fees payable under Section 3.6.(c).
Section 2.11. Amount Limitations.
Notwithstanding any other term of this Agreement or any other Loan
Document, no Lender shall be required to make a Loan, and no reduction of the
Commitments pursuant to Section 2.9. shall take effect, if immediately after the
making of such Loan or such reduction in the Commitments the aggregate principal
amount of all outstanding Loans would exceed the aggregate amount of the
Commitments at such time.
Section 2.12. Increase in Facility Amount.
(a) With the prior consent of the Agent, the Borrowers shall have the
right at any time and from time to time during the term of this Agreement to
request increases in the aggregate amount of the Commitments (provided that
after giving effect to any increases in the Commitments pursuant to this
Section, the aggregate amount of the Commitments may not exceed $300,000,000) by
providing written notice to the Agent, which notice shall be irrevocable once
given. Each such increase in the Commitments must be in an aggregate minimum
amount of $10,000,000. No Lender shall be required to increase its Commitment
and any new Lender becoming a party to this Agreement in connection with any
such requested increase must be an Eligible Assignee. If a new Lender becomes a
party to this Agreement, or if any existing Lender agrees to increase its
Commitment, such Lender shall on the date it becomes a Lender hereunder (or
increases its Commitment, in the case of an existing Lender) (and as a condition
thereto) purchase from the other Lenders its Commitment Percentage (or in the
case of an existing Lender, the increase in the amount of its Commitment
Percentage, in each case as determined after giving effect to the increase of
Commitments) of any outstanding Loans, by making available to the Agent for the
account of such other Lenders at the Principal Office, in same day
- 26 -
funds, an amount equal to the sum of (A) the portion of the outstanding
principal amount of such Loans to be purchased by such Lender plus (B) the
aggregate amount of payments previously made by the other Lenders under Section
2.3.(j) which have not been repaid plus (C) interest accrued and unpaid to and
as of such date on such portion of the outstanding principal amount of such
Loans. The Borrowers shall pay to the Lenders amounts payable, if any, to such
Lenders under Section 4.4. as a result of the prepayment of any such Loans. No
increase of the Commitments may be effected under this Section if (x) a Default
or Event of Default shall be in existence on the effective date of such increase
or (y) any representation or warranty made or deemed made by any Borrower or any
other Loan Party in any Loan Document to which any such Loan Party is a party is
not (or would not be) true or correct in all material respects on the effective
date of such increase (except for representations or warranties which expressly
relate solely to an earlier date) or (z) the Borrowers have not previously
incurred ( or are simultaneously with the increase incurring) Loans in the full
amount of the Initial Facility Amount. In connection with any increase in the
aggregate amount of the Commitments pursuant to this subsection, (a) any Lender
becoming a party hereto shall execute such documents and agreements as the Agent
may reasonably request and (b) the Borrowers shall make appropriate arrangements
so that each new Lender, and any existing Lender increasing its Commitment,
receives a new or replacement Note, as appropriate, in the amount of such
Lender's Commitment within 2 Business Days of the effectiveness of the
applicable increase in the aggregate amount of Commitments. Any increase in the
Facility Amount pursuant to this Section 2.12 shall be subject to the condition
that the Borrowers shall have paid to the Agent, such fees as shall be due to
Agent and/or the Lenders at such time under the Fee Letter. The provisions of
this Section 2.12 shall not constitute a "commitment" to lend, and the
Commitments of the Lenders shall not be increased until satisfaction of the
provisions of this Section 2.12 and actual increase of the Commitments as
provided herein. The date an increase of the Commitments becomes effective
pursuant to this Section 2.12 is referred to herein as an "Increase Effective
Date."
Section 2.13. Joint and Several Liability.
(a) The obligations of the Borrowers hereunder and under the other Loan
Documents to which any Borrower is a party shall be joint and several, and
accordingly, each Borrower confirms that it is liable for the full amount of the
"Obligations," regardless of whether incurred by such Borrower or any other
Borrower, and all of the other obligations and liabilities of the other
Borrowers hereunder and under the other Loan Documents.
(b) Each of the Borrowers represents and warrants to the Agent and the
Lenders that the Borrowers, though separate legal entities, are mutually
dependent on each other in the conduct of their respective businesses as an
integrated operation and have determined it to be in their mutual best interests
to obtain financing from the Lenders through their collective efforts.
(c) None of the Lenders or the Agent shall be obligated or required
before enforcing any Loan Document against a Borrower: (a) to pursue any right
or remedy any of them may have against any other Borrower, any Guarantor or any
other Person or commence any suit or other proceeding against any other
Borrower, any Guarantor or any other Person in any court or other tribunal; (b)
to make any claim in a liquidation or bankruptcy of any other Borrower, any
Guarantor or any other Person; or (c) to make demand of any other Borrower, any
Guarantor or
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any other Person or to enforce or seek to enforce or realize upon any collateral
security held by the Lenders or the Agent which may secure any of the
Obligations.
(d) The Lenders and the Agent may, at any time and from time to time,
without the consent of, or notice to, a Borrower, and without discharging such
Borrower from its obligations hereunder, take any of the following actions: (i)
release or otherwise deal with all, or any part, of any collateral securing any
of the Obligations and in which any other Borrower has rights; (ii) release any
other Borrower, any Guarantor or any other Person liable in any manner for the
payment or collection of the Obligations; (iii) exercise, or refrain from
exercising, any rights against any other Borrower, any Guarantor or any other
Person; and (iv) apply any sum, by whomsoever paid or however realized, to the
Obligations in such order as the Lenders shall elect.
(e) It is the intent of each Borrower, the Agent and the Lenders that in
any proceeding of the types described in Sections 10.1.(f) or 10.1.(g), a
Borrower's maximum obligation hereunder shall equal, but not exceed, the maximum
amount which would not otherwise cause the obligations of such Borrower
hereunder (or any other obligations of such Borrower to the Agent and the
Lenders) to be avoidable or unenforceable against such Borrower in such
proceeding as a result of Applicable Law, including without limitation, (i)
Section 548 of the Bankruptcy Code and (ii) any state fraudulent transfer or
fraudulent conveyance act or statute applied in such proceeding, whether by
virtue of Section 544 of the Bankruptcy Code or otherwise. The Applicable Laws
under which the possible avoidance or unenforceability of the obligations of
such Borrower hereunder (or any other obligations of such Borrower to the Agent
and the Lenders) shall be determined in any such proceeding are referred to as
the "Avoidance Provisions". Accordingly, to the extent that the obligations of
any Borrower hereunder would otherwise be subject to avoidance under the
Avoidance Provisions, the maximum Obligations for which such Borrower shall be
liable hereunder shall be reduced to that amount which, as of the time any of
the Obligations are deemed to have been incurred under the Avoidance Provisions,
would not cause the obligations of such Borrower hereunder (or any other
obligations of such Borrower to the Agent and the Lenders), to be subject to
avoidance under the Avoidance Provisions. This subsection is intended solely to
preserve the rights of the Agent and the Lenders hereunder to the maximum extent
that would not cause the obligations of any Borrower hereunder to be subject to
avoidance under the Avoidance Provisions, and no Borrower or any other Person
shall have any right or claim under this Section as against the Agent and the
Lenders that would not otherwise be available to such Person under the Avoidance
Provisions.
(f) Each Borrower assumes all responsibility for being and keeping
itself informed of the financial condition of the other Borrowers and the
Guarantors, and of all other circumstances bearing upon the risk of nonpayment
of any of the Obligations and the nature, scope and extent of the risks that
such Borrower assumes and incurs hereunder, and agrees that none of the Agent or
the Lenders shall have any duty whatsoever to advise any Borrower of information
regarding such circumstances or risks.
Section 2.14. Borrower Representative.
Each of the Borrowers hereby appoints the Borrower Representative to act
as its exclusive agent for all purposes under the Loan Documents (including,
without limitation, with respect to all matters related to the borrowing and
repayment of Loans as described in Articles II.
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and III.). Each of the Borrowers acknowledges and agrees that (a) the Borrower
Representative may execute such documents on behalf of any of the Borrowers as
the Borrower Representative deems appropriate in its sole discretion and each
Borrower shall be bound by and obligated by all of the terms of any such
document executed by the Borrower Representative on its behalf, (b) any notice
or other communication delivered by the Agent or any Lender hereunder to the
Borrower Representative shall be deemed to have been delivered to each of the
Borrowers and (c) the Agent and each of the Lenders shall accept (and shall be
permitted to rely on) any document or agreement executed by the Borrower
Representative on behalf of the Borrowers (or any of them). The Borrowers must
act through the Borrower Representative for all purposes under this Agreement
and the other Loan Documents. Notwithstanding anything contained herein to the
contrary, to the extent any provision in this Agreement requires any Borrower to
interact in any manner with the Agent or the Lenders, such Borrower shall do so
through the Borrower Representative.
Section 2.15. Security Interests in Collateral.
To secure their Obligations under this Agreement and the other Loan
Documents, the Borrowers and each other Loan Party grant to the Agent, for its
benefit and the benefit of the other Lenders, a first-priority security interest
in all of the Collateral pursuant to the Pledge Agreement.
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 Borrowers 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 at its
Principal Office, not later than 2:00 p.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). Subject to
Section 10.4., the Borrowers may, at the time of making each payment under this
Agreement or any Note, specify to the Agent the amounts payable by the Borrowers
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 shall be paid
to such Lender at the applicable Lending Office of such Lender no later than
5:00 p.m. on the date of receipt. If the Agent fails to pay such amount to a
Lender as provided in the previous sentence, 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 Section 3.6.(a), the first sentence of Section 3.6.(b) and
Section 3.6.(c) shall be made for the
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account of the Lenders, and each termination or reduction of the amount of the
Commitments under Section 2.9. 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 Loans by the Borrowers shall be
made for the account of the Lenders pro rata in accordance with the respective
unpaid principal amounts of the Loans held by them, provided that if immediately
prior to giving effect to any such payment in respect of any Loans the
outstanding principal amount of the 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 Loans in such manner
as shall result, as nearly as is practicable, in the outstanding principal
amount of the Loans being held by the Lenders pro rata in accordance with their
respective Commitments; (c) each payment of interest on Loans by the Borrowers
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 Loans of a particular
Type (other than Conversions provided for by Section 4.6.) 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.
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 Borrowers under this Agreement, or shall obtain
payment on any other Obligation owing by the Borrowers 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 Borrowers 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 10.4., 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, and make such other adjustments from time to time as shall be
equitable, to the end that all the Lenders shall share the benefit of such
payment (net of any reasonable expenses which may be incurred by such Lender in
obtaining or preserving such benefit) pro rata in accordance with Section 3.2.
or Section 10.4., as applicable. To such end, all the Lenders shall make
appropriate adjustments among themselves (by the resale of participations sold
or otherwise) if such payment is rescinded or must otherwise be restored. The
Borrowers agree 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 Borrowers.
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
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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 and Conversions. Each borrowing of Base Rate Loans shall
be in an aggregate minimum amount of $1,000,000 and integral multiples of
$100,000 in excess thereof. Each borrowing of, Conversion to and Continuation of
LIBOR Loans shall be in an aggregate minimum amount of $1,000,000 and integral
multiples of $100,000 in excess of that amount.
(b) Prepayments. Each voluntary prepayment of Loans shall be in an
aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in
excess thereof (or, if less, the aggregate principal amount of Loans then
outstanding).
(c) Reductions of Commitments. Each reduction of the Commitments under
Section 2.11. shall be in an aggregate minimum amount of $5,000,000 and integral
multiples of $5,000,000 in excess thereof.
Section 3.6. Fees.
(a) Extension Fee. If the Borrowers exercise their right to extend the
Termination Date in accordance with Section 2.10., the Borrowers agree to pay to
the Agent for the account of each Lender a fee equal to one-eighth of one
percent (0.125%) of the amount of such Lender's Commitment (whether or not
utilized) at the time of such extension. Such fee shall be due and payable in
full on the date the Agent receives the Extension Request pursuant to such
Section.
(b) Administrative and Other Fees. The Borrowers agree to pay the
administrative and other fees of the Agent pursuant to the Fee Letter and as may
otherwise be agreed to in writing by the Borrowers and the Agent 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 365 or 366 days, as applicable, and the actual number of days
elapsed; provided, however, any accrued interest on any LIBOR Rate Loan shall be
computed on the basis of a year of 360 days and the actual number of days
elapsed.
Section 3.8. Usury.
In no event shall the amount of interest due or payable on the Loans or
other Obligations exceed the maximum rate of interest allowed by Applicable Law
and, if any such payment is paid by any Borrower or any other Loan Party or
received by any Lender, then such excess sum shall be credited as a payment of
principal, unless the Borrowers shall notify the respective Lender in writing
that the Borrowers elect to have such excess sum returned to them forthwith. It
is the express intent of the parties hereto that the Borrowers not pay and the
Lenders not
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receive, directly or indirectly, in any manner whatsoever, interest in excess of
that which may be lawfully paid by the Borrowers under Applicable Law.
Section 3.9. Agreement Regarding Interest and Charges.
The parties hereto hereby agree and stipulate that the only charge
imposed upon the Borrowers for the use of money in connection with this
Agreement is and shall be the interest specifically described in Sections
2.2.(a). Notwithstanding the foregoing, the parties hereto further agree and
stipulate that all agency fees, syndication fees, facility fees, closing 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, in each case in connection with the
transactions contemplated by this Agreement and the other Loan Documents, 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 3.10. Statements of Account.
The Agent will account to the Borrowers monthly with a statement of
Loans, accrued interest and Fees, charges and payments made pursuant to this
Agreement and the other Loan Documents, and such account rendered by the Agent
shall be deemed conclusive upon the Borrowers absent manifest error. The failure
of the Agent to deliver such a statement of accounts shall not relieve or
discharge the Borrowers from any of their obligations hereunder.
Section 3.11. Defaulting Lenders.
(a) Generally. 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 Borrowers 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 Borrowers 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
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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 either applied against the purchase price of
such Loans under the following subsection (b) or paid to such Defaulting Lender
upon such Defaulting Lender's curing of its default.
(b) Purchase or Cancellation of Defaulting Lender's Commitment. Any
Lender who is not a Defaulting Lender may, but shall not be obligated, in its
sole discretion, to acquire all or a portion of a Defaulting Lender's
Commitment. Any Lender desiring to exercise such right shall give written notice
thereof to the Agent and the Borrowers no sooner than 2 Business Days and not
later than 5 Business Days after such Defaulting Lender became a Defaulting
Lender. If more than one Lender exercises such right, each such Lender shall
have the right to acquire an amount of such Defaulting Lender's Commitment in
proportion to the Commitments of the other Lenders exercising such right. If
after such 5th Business Day, the Lenders have not elected to purchase all of the
Commitment of such Defaulting Lender, then the Borrowers may, by giving written
notice thereof to the Agent, such Defaulting Lender and the other Lenders,
either (i) demand that such Defaulting Lender assign its Commitment to an
Eligible Assignee subject to and in accordance with the provisions of Section
12.5.(d) for the purchase price provided for below or (ii) terminate the
Commitment of such Defaulting Lender, whereupon such Defaulting Lender shall no
longer be a party hereto or have any rights or obligations hereunder or under
any of the other Loan Documents. No party hereto shall have any obligation
whatsoever to initiate any such replacement or to assist in finding an Eligible
Assignee. Upon any such purchase or assignment, the Defaulting Lender's interest
in the Loans and its rights hereunder (but not its liability in respect thereof
or under the Loan Documents or this Agreement to the extent the same relate to
the period prior to the effective date of the purchase except to the extent
assigned pursuant to such purchase) shall terminate on the date of purchase, and
the Defaulting Lender shall promptly execute all documents reasonably requested
to surrender and transfer such interest to the purchaser or assignee thereof,
including an appropriate Assignment and Acceptance Agreement and,
notwithstanding Section 12.5.(d), shall pay to the Agent an assignment fee in
the amount of $7,000. The purchase price for the Commitment of a Defaulting
Lender shall be equal to the amount of the principal balance of the Loans
outstanding and owed by the Borrowers to the Defaulting Lender. Prior to payment
of such purchase price to a Defaulting Lender, the Agent shall apply against
such purchase price any amounts retained by the Agent pursuant to the last
sentence of the immediately preceding subsection (a). The Defaulting Lender
shall be entitled to receive amounts owed to it by the Borrowers under the Loan
Documents which accrued prior to the date of the default by the Defaulting
Lender, to the extent the same are received by the Agent from or on behalf of
the Borrowers. There shall be no recourse against any Lender or the Agent for
the payment of such sums except to the extent of the receipt of payments from
any other party or in respect of the Loans.
Section 3.12. Taxes.
(a) Taxes Generally. All payments by the Borrowers of principal of, and
interest on, the Loans and all other Obligations shall be made free and clear of
and without deduction for any present or future excise, stamp or other taxes,
fees, duties, levies, imposts, charges, deductions, withholdings or other
charges of any nature whatsoever imposed by any taxing authority, but
- 33 -
excluding (i) franchise taxes, (ii) any taxes imposed on or measured by the
assets, net income, receipts or branch profits of any Lender or the Agent, (iii)
any taxes (other than withholding taxes) with respect to the Agent or a Lender
that would not be imposed but for a connection between the Agent or such 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), and (iv) any taxes, fees,
duties, levies, imposts, charges, deductions, withholdings or other charges to
the extent imposed as a result of the failure of the Agent or a Lender, as
applicable, to provide and keep current (to the extent legally able) any
certificates, documents or other evidence required to qualify for an exemption
from, or reduced rate of, any such taxes fees, duties, levies, imposts, charges,
deductions, withholdings or other charges or required by the immediately
following subsection (c) to be furnished by the Agent or such Lender, as
applicable (such non-excluded items being collectively called "Taxes"). If any
withholding or deduction from any payment to be made by the Borrowers hereunder
is required in respect of any Taxes pursuant to any Applicable Law, then the
Borrowers 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 Borrowers fail 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 Borrowers 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 Borrowers.
(c) Tax Forms. Prior to the date that any Foreign Lender becomes a party
hereto, such Foreign Lender shall deliver to the Borrowers 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 Foreign Lender
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 imposed under the Internal Revenue Code.
Each such Foreign Lender shall, to the extent it may lawfully do so, (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
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Borrowers or the Agent and (y) obtain such extensions of the time for filing,
and renew such forms and certifications thereof, as may be reasonably requested
by the Borrowers or the Agent. The Borrowers shall not be required to pay any
amount pursuant to the last sentence of subsection (a) above to any Foreign
Lender or the Agent, if it is organized under the laws of a jurisdiction outside
of the United States of America, if such Foreign Lender or the Agent, as
applicable, fails to comply with the requirements of this subsection. If any
such Foreign Lender, to the extent it may lawfully do so, fails to deliver the
above forms or other documentation, then the Agent may withhold from any
payments to be made to such Foreign Lender under any of the Loan Documents such
amounts as are required by the Internal Revenue Code. If any Governmental
Authority asserts that the Agent did not properly withhold or backup withhold,
as the case may be, any tax or other amount from payments made to or for the
account of any Lender, such Lender shall indemnify the Agent therefor, including
all penalties and interest, any taxes imposed by any jurisdiction on the amounts
payable to the Agent under this Section, and costs and expenses (including all
reasonable fees and disbursements of any law firm or other external counsel and
the allocated cost of internal legal services and all disbursements of internal
counsel) of the Agent. The obligation of the Lenders under this Section shall
survive the termination of the Commitments, repayment of all Obligations and the
resignation or replacement of the Agent.
ARTICLE IV. - YIELD PROTECTION, ETC.
------------------------------------
Section 4.1. Additional Costs; Capital Adequacy.
(a) Additional Costs. The Borrowers shall promptly pay to the Agent for
the account of each affected 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 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"), to the extent
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,
fees, duties, levies, imposts, charges, deductions, withholdings or other
charges which are excluded from the definition of Taxes pursuant to the first
sentence of Section 3.12.(a)); or (ii) imposes or modifies any reserve, special
deposit or similar requirements (other than Regulation D of the Board of
Governors of the Federal Reserve System or other reserve requirement to the
extent utilized in the determination of Adjusted LIBOR for such Loan) 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).
(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,
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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 Borrowers (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 4.6. shall apply).
(c) Notification and Determination of Additional Costs. Each of the
Agent and each Lender agrees to notify the Borrowers 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 Borrowers from any of their obligations
hereunder (and in the case of a Lender, to the Agent). The Agent or such Lender
agrees to furnish to the Borrowers (and in the case of a Lender, to the Agent) a
certificate setting forth in reasonable detail the basis and amount of each
request by the Agent or such Lender for compensation under this Section. Absent
manifest error, 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 4.2. Suspension of LIBOR Loans.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of Adjusted LIBOR for any Interest Period:
(a) the Agent reasonably determines (which determination shall
be conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining
Adjusted LIBOR for such Interest Period, or
(b) the Agent reasonably determines (which determination shall
be conclusive) that Adjusted 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 Borrowers 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 Borrowers 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 4.3. Illegality.
Notwithstanding any other provision of this Agreement, if any Lender
shall reasonably determine (which determination shall be conclusive and binding)
that it has become unlawful for such Lender to honor its obligation to make or
maintain LIBOR Loans hereunder, then such
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Lender shall promptly notify the Borrowers 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
4.6. shall be applicable).
Section 4.4. Compensation.
The Borrowers 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, cost or expense that such Lender reasonably determines is directly
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 Borrowers for any reason (including,
without limitation, the failure of any of the applicable conditions
precedent specified in Article V. to be satisfied) to borrow a LIBOR
Loan from such Lender on the requested 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 Borrowers' request, any Lender requesting compensation under this
Section shall provide the Borrowers with a statement setting forth in reasonable
detail the basis for requesting such compensation and the method for determining
the amount thereof. Absent manifest error, determinations by any Lender in any
such statement shall be conclusive, provided that such determinations are made
on a reasonable basis and in good faith.
Section 4.5. Affected Lenders.
If (a) a Lender requests compensation pursuant to Section 3.12. or 4.1.,
and the Requisite Lenders are not also doing the same, or (b) 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 4.1.(b) or 4.3. but the
obligation of the Requisite Lenders shall not have been suspended under such
Sections, then, so long as there does not then exist any Default or Event of
Default, the Borrowers may demand that such Lender (the "Affected Lender"), and
upon such demand the Affected Lender shall promptly, assign its Commitment to an
Eligible Assignee subject to and in accordance with the provisions of Section
12.5.(d) for a purchase price equal to the aggregate principal balance of all
Loans then owing to the Affected Lender plus any accrued but unpaid interest
thereon and accrued but unpaid fees owing to the Affected Lender, or any other
amount as may be mutually agreed upon by such Affected Lender and Eligible
Assignee. Each of the Agent and the Affected Lender shall reasonably cooperate
in effectuating the replacement of such Affected Lender under this Section, but
at no time shall the Agent, such Affected Lender nor any other Lender be
obligated in any way whatsoever to initiate any such replacement or to assist in
finding an Eligible Assignee. The exercise by the Borrowers of their rights
under this Section shall be at the Borrowers' sole cost and expense and at no
cost or
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expense to the Agent, the Affected Lender or any of the other Lenders. The terms
of this Section shall not in any way limit the Borrowers' obligation to pay to
any Affected Lender compensation owing to such Affected Lender pursuant to
Section 3.12. or 4.1. with respect to periods up to the date of replacement.
Section 4.6. 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 4.1.(b) or 4.3., 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
4.1.(b) or 4.3., on such earlier date as such Lender may specify to the
Borrowers with a copy to the Agent) and, unless and until such Lender gives
notice as provided below that the circumstances specified in Section 4.1. or
4.3. 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 Borrowers (with a copy to the Agent) that the
circumstances specified in Section 4.1. or 4.3. 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 4.7. Change of Lending Office.
Each Lender agrees that it will use reasonable efforts to designate an
alternate Lending Office with respect to any of its Loans affected by the
matters or circumstances described in Section 3.12., 4.1. or 4.3. to reduce the
liability of the Borrowers 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 4.8. Assumptions Concerning Funding of LIBOR Loans.
Calculation of all amounts payable to a Lender under this Article IV.
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
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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 IV.
ARTICLE V. - CONDITIONS PRECEDENT
---------------------------------
Section 5.1. Initial Conditions Precedent.
The obligation of the Lenders to effect or permit the occurrence of the
first Credit Event hereunder is subject to the 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) Notes executed by the Borrowers, payable to each Lender and
complying with the applicable provisions of Section 2.8;
(iii) The Guaranty executed by each Guarantor existing as of the
Effective Date;
(iv) The Pledge Agreement executed by the Parties thereto;
(v) An opinion of counsel to the Loan Parties, addressed to the
Agent and the Lenders, addressing the matters set forth in Exhibit F;
(vi) The articles of incorporation, articles of organization,
certificate of limited partnership or other comparable organizational
instrument (if any) of the Borrowers and each other Loan Party certified
as of a recent date by the Secretary of State of the state of formation
of such Loan Party;
(vii) A certificate of good standing or certificate of similar
meaning with respect to each Loan Party issued as of a recent date by
the Secretary of State of the state of formation of each such Loan Party
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 Loan
Party is required to be so qualified and where the failure to be so
qualified could reasonably be expected to have a Material Adverse
Effect;
(viii) 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 Loan
Party authorized to execute and deliver the Loan Documents to which such
Loan Party is a party, and in the case of the Borrowers, and the
officers of the Borrower Representative then authorized to deliver
Notices of Borrowing, Notices of Continuation and Notices of Conversion;
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(ix) Copies certified by the Secretary or Assistant Secretary
(or other individual performing similar functions) of each Loan Party of
(i) the by-laws of such Loan Party, if a corporation, the operating
agreement of such Loan Party, if a limited liability company, the
partnership agreement of such Loan Party, 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 Loan Party to authorize the execution,
delivery and performance of the Loan Documents to which it is a party;
(x) The Fees then due and payable under Section 3.6., and any
other Fees payable to the Agent, the Titled Agents and the Lenders on or
prior to the Effective Date;
(xi) A Compliance Certificate calculated as of June 1, 2007
(giving pro forma effect to the financing contemplated by this Agreement
and the use of the proceeds of the Loans to be funded on the Effective
Date);
(xii) A Borrowing Base Certificate dated as of the Effective
Date;
(xiii) Such due diligence (including lien searches and/or title
reports) with respect to the Borrowing Base Assets Pool as the Agent on
behalf of the Lenders may reasonably request;
(xiv) all documentation, recordings, filings and other actions
in the judgment of the Agent required to collaterally assign the
Collateral to the Agent for the benefit of the Lenders and to perfect
the Agent's first priority Lien therein for the benefit the Lenders
shall have been completed; and
(xv) Such other documents, agreements and instruments as the
Agent on behalf of the Lenders may reasonably request; and
(b) In the good faith judgment of the Agent and the Lenders:
(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 Trust
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 (1) result in a
Material Adverse Effect or (2) restrain or enjoin, impose materially
burdensome conditions on, or otherwise materially and adversely affect
the ability of the Borrowers or any other Loan Party to fulfill its
obligations under the Loan Documents to which it is a party;
(iii) The Trust and its Subsidiaries shall have received all
approvals, consents and waivers, and shall have made or given all
necessary filings and notices, as shall be
- 40 -
required to consummate the transactions contemplated hereby without the
occurrence of any default under, conflict with or violation of (1) any
Applicable Law or (2) any agreement, document or instrument to which any
Borrower or any other 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 would not reasonably be likely to (A) have a Material Adverse
Effect, or (B) restrain or enjoin, impose materially burdensome
conditions on, or otherwise materially and adversely affect the ability
of any Borrower or any other Loan Party to fulfill its obligations under
the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material
disruption of financial or capital markets that could reasonably be
expected to materially and adversely affect the transactions
contemplated by the Loan Documents.
Section 5.2. Conditions Precedent to All Loans.
The obligations of the Lenders to make any Loans are all subject to the
further condition precedent that: (a) no Default or Event of Default shall exist
as of the date of the making of such Loan or would exist immediately after
giving effect thereto; and (b) the representations and warranties made or deemed
made by the Borrowers and each other Loan Party in the Loan Documents to which
any of them is a party, shall be true and correct in all material respects on
and as of the date of the making of such Loan 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 correct in all material
respects on and as of such earlier date) and except for changes in factual
circumstances not prohibited under the Loan Documents. Each Credit Event shall
constitute a certification by the Borrowers 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 Borrowers otherwise notify the Agent prior to the
date of such Credit Event, as of the date of the occurrence of such Credit
Event). In addition, if such Credit Event is the making of a Loan, the Borrowers
shall be deemed to have represented to the Agent and the Lenders at the time
such Loan is made that all conditions to the occurrence of such Credit Event
contained in this Article V. have been satisfied.
ARTICLE VI. - REPRESENTATIONS AND WARRANTIES
--------------------------------------------
Section 6.1. Representations and Warranties.
In order to induce the Agent and each Lender to enter into this
Agreement and to make Loans, the Borrowers represents and warrants to the Agent
and each Lender as follows:
(a) Organization; Power; Qualification. Each of the Borrowers, the other
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
- 41 -
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. As of the Agreement Date, Part I of Schedule
6.1.(b) is a complete and correct list of all Subsidiaries of the Trust setting
forth for each such Subsidiary, (i) the jurisdiction of organization of such
Subsidiary, (ii) each Person holding any Equity Interests in such Subsidiary,
(iii) the nature of the Equity Interests held by each such Person, (iv) the
percentage of ownership of such Subsidiary represented by such Equity Interests
and (v) whether such Subsidiary is a Guarantor or Property Subsidiary. Except as
disclosed in such Schedule, as of the Agreement Date (i) each of the Trust and
its Subsidiaries owns, free and clear of all Liens (other than Permitted Liens),
and has the unencumbered right to vote, all outstanding Equity 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. As of the Agreement Date Part II of Schedule 6.1.(b) correctly sets
forth all Unconsolidated Affiliates of the Trust, including 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 Trust.
(c) Authorization of Agreement, Etc. Each Borrower has the right and
power, and has taken all necessary action to authorize it, to borrow and obtain
other extensions of credit hereunder. The Borrowers and each other Loan Party
have the right and power, and has taken all necessary action to authorize it, to
execute, deliver and perform each of the Loan Documents to which it is a party
in accordance with their respective terms and to consummate the transactions
contemplated hereby and thereby. The Loan Documents to which any Borrower or any
other Loan Party is a party have been duly executed and delivered by the duly
authorized officers of such Person and each is a legal, valid and binding
obligation of such Person enforceable against such Person in accordance with its
respective terms except as the same may be limited by bankruptcy, insolvency,
and other similar laws affecting the rights of creditors generally and the
availability of equitable remedies for the enforcement of certain obligations
(other than the payment of principal) contained herein or therein and as may be
limited by equitable principles generally.
(d) Compliance of Loan Documents with Laws, Etc. The execution, delivery
and performance of this Agreement, the Notes and the other Loan Documents to
which any Borrower or any other Loan Party is a party in accordance with their
respective terms and the borrowings and other extensions of credit hereunder do
not and will not, by the passage of time, the giving of notice, or both: (i)
require any Governmental Approval or violate any Applicable Law (including all
Environmental Laws) relating to any Borrower or any other Loan Party; (ii)
conflict with, result in a breach of or constitute a default under the
organizational documents of any Borrower or any other Loan Party, or any
indenture, agreement or other instrument to which any Borrower or any other Loan
Party is a party or by which it or any of its respective
- 42 -
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 Borrower or any other Loan Party, other than Liens
created pursuant to the Loan Documents.
(e) Compliance with Law; Governmental Approvals. Each of the Borrowers,
each other Loan Party and each other Subsidiary is in compliance with each
Governmental Approval applicable to it and in compliance with all other
Applicable Laws (including without limitation, Environmental Laws) relating to a
Borrower, a Subsidiary or such other Loan Party except for noncompliances which,
and Governmental Approvals the failure to possess which, could not, individually
or in the aggregate, reasonably be expected to cause a Default or Event of
Default or have a Material Adverse Effect.
(f) Title to Properties; Liens. As of the Agreement Date, Schedule
6.1.(f) is a complete and correct listing of all of the real property owned or
leased by each Borrower, each other Loan Party and each other Subsidiary. Each
such Person has good, marketable and legal title to, or a valid leasehold
interest in, its respective assets. As of the Agreement Date, there are no Liens
against any assets of any Borrower, any other Loan Party or any other Subsidiary
except for Permitted Liens.
(g) Existing Indebtedness. Schedule 6.1.(g) is, as of the Agreement
Date, a complete and correct listing of all Indebtedness of the Trust and its
Subsidiaries, including without limitation, Guarantees of the Trust and its
Subsidiaries, and indicating whether such Indebtedness is Secured Indebtedness.
(h) Material Contracts. Schedule 6.1.(h) is, as of the Agreement Date, a
true, correct and complete listing of all Material Contracts. No event or
condition exists which with the giving of notice, the lapse of time, or both,
would permit any party to any such Material Contract to terminate such Material
Contract.
(i) Litigation. Except as set forth on Schedule 6.1.(i), there are no
actions, suits, investigations or proceedings pending (nor, to the knowledge of
the Borrowers, are there any actions, suits or proceedings threatened) against
or in any other way relating adversely to or affecting any Borrower, any other
Loan Party or 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 could reasonably be expected to have a Material
Adverse Effect. There are no strikes, slow downs, work stoppages or walkouts or
other labor disputes in progress or threatened relating to any Borrower, any
other Loan Party or any other Subsidiary which could reasonably be expected to
have a Material Adverse Effect.
(j) Taxes. All federal, state and other tax returns of each Borrower,
each other 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 Borrower, each other Loan
Party and each other Subsidiary and their respective properties, income, profits
and assets which are due and payable have been paid, except any such nonpayment
which is at the time permitted under Section 7.6. Except as set forth on
Schedule 6.1(j) as of the Agreement Date, none of the United States income tax
returns of any Borrower, any other Loan Party or any other Subsidiary is under
an audit. All charges, accruals and
- 43 -
reserves on the books of the Trust and each of its Subsidiaries in respect of
any taxes or other governmental charges are in accordance with GAAP.
(k) Financial Statements. The Trust has furnished to each Lender copies
of (i) the audited consolidated balance sheet of the Trust and its consolidated
Subsidiaries for the fiscal year ending December 31, 2006, and the related
audited consolidated statements of operations, cash flows and changes in
shareholders' equity for the fiscal year ending on such dates, with the opinion
thereon of KPMG LLP, and (ii) the unaudited consolidated balance sheet of the
Trust and its consolidated Subsidiaries for the fiscal quarter ending March 31,
2007, and the related unaudited consolidated statements of operations and cash
flows of the Trust and its consolidated Subsidiaries for the fiscal quarter
ending on such date. Such financial statements (including in each case related
schedules and notes) present fairly, in all material respects and in accordance
with GAAP consistently applied throughout the periods involved, the consolidated
financial position of the Trust 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). Except as set forth in the Schedules to this
Agreement, neither the Trust nor any of its Subsidiaries has on the Agreement
Date any contingent liabilities, liabilities, liabilities for taxes, unusual or
long-term commitments or unrealized or forward anticipated losses from any
unfavorable commitments, in each case, that is material and that would be
required to be set forth in its financial statements or in the notes thereto,
except as referred to or reflected or provided for in said financial statements.
(l) No Material Adverse Change. Since March 31, 2007, there has been no
material adverse change in the business, assets, liabilities, financial
condition, results of operations or business prospects of the Trust and its
Subsidiaries taken as a whole. Each of the Borrowers, the other Loan Parties and
the other Subsidiaries is Solvent.
(m) ERISA. Each member of the ERISA Group is in compliance with its
obligations under the minimum funding standards of ERISA and the Internal
Revenue Code with respect to each Plan and is in compliance with the presently
applicable provisions of ERISA and the Internal Revenue Code with respect to
each Plan, except in each case for noncompliances which could not reasonably be
expected to have a Material Adverse Effect. As of the Agreement Date, no member
of the ERISA Group has (i) sought a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code in respect of any Plan, (ii) failed to
make any contribution or payment to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement, or made any amendment to any Plan or Benefit
Arrangement, which has resulted or could reasonably be expected to result in the
imposition of a Lien or the posting of a bond or other security under ERISA or
the Internal Revenue Code or (iii) incurred any liability under Title IV of
ERISA other than a liability to the PBGC for premiums under Section 4007 of
ERISA.
(n) Not Plan Assets; No Prohibited Transaction. None of the assets of
any Borrower, any other Loan Party or any other Subsidiary constitute "plan
assets" within the meaning of ERISA, the Internal Revenue Code and the
respective regulations promulgated thereunder. The execution, delivery and
performance of this Agreement and the other Loan Documents, and the borrowing
and repayment of amounts hereunder, do not and will not constitute non-exempt
"prohibited transactions" under ERISA or the Internal Revenue Code.
- 44 -
(o) Absence of Defaults. None of the Borrowers, any of the other Loan
Parties or any of 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, which, in any such case: (i) constitutes a Default or an Event of
Default; or (ii) constitutes, or which with the passage of time, the giving of
notice, or both, would constitute, a default or event of default by any
Borrower, any other Loan Party or any other Subsidiary under any agreement
(other than this Agreement) or judgment, decree or order to which any Borrower,
any other Loan Party or any other Subsidiary is a party or by which any
Borrower, any other Loan Party or any other Subsidiary, or any of their
respective properties may be bound where such default or event of default could,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(p) Environmental Laws. Except as disclosed in the Trust's Annual Report
on Form 10-K for the year ended December 31, 2006 filed with the Securities and
Exchange Commission, each of the Borrowers, the other Loan Parties and the other
Subsidiaries has obtained all Governmental Approvals which are required under
Environmental Laws and is in compliance with all terms and conditions of such
Governmental Approvals which the failure to obtain or to comply with could
reasonably be 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, (i) the Trust is not aware of, and has not received notice of,
any past, present, or future events, conditions, circumstances, activities,
practices, incidents, actions, or plans which, with respect to any Borrower, any
other Loan Party or any other Subsidiary, may interfere with or prevent
compliance or continued compliance with Environmental Laws, or may give rise to
any common-law or legal liability, or otherwise form the basis of any claim,
action, demand, suit, proceeding, hearing, or investigation, 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 (ii) 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 Trust's knowledge, threatened, against any Borrower, any other Loan Party or
any other Subsidiary relating to any Environmental Laws.
(q) Investment Company; Public Utility Holding Company. None of the
Borrowers, any of the other Loan Parties or any of the other Subsidiaries 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 to consummate the
transactions contemplated by this Agreement or to perform its obligations under
any Loan Document to which it is a party.
(r) Margin Stock. None of the Borrowers, any of the other Loan Parties
or any of the other Subsidiaries 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.
- 45 -
(s) Affiliate Transactions. Except as is not prohibited by Section 9.11,
none of the Borrowers, any of the other Loan Parties or any of the other
Subsidiaries is a party to any transaction with an Affiliate.
(t) Intellectual Property. Each of the Borrowers, other Loan Parties and
the other Subsidiaries owns or has the right to use, under valid license
agreements or otherwise, all material patents, licenses, franchises, trademarks,
trademark rights, service marks, service xxxx rights, trade names, trade name
rights, trade secrets and copyrights (collectively, "Intellectual Property")
necessary to the conduct of its businesses as now conducted and as contemplated
by the Loan Documents, without known conflict with any patent, license,
franchise, trademark, trademark right, service xxxx, service xxxx right, trade
secret, trade name, copyright or other proprietary right of any other Person.
The Borrowers, the other Loan Parties and the other Subsidiaries have taken all
such steps as they deem reasonably necessary to protect their respective rights
under and with respect to such Intellectual Property. No material claim has been
asserted by any Person with respect to the use of any such Intellectual Property
by any Borrower, any other Loan Party or any other Subsidiary, or challenging or
questioning the validity or effectiveness of any such Intellectual Property. The
use of such Intellectual Property by the Borrowers, the other Loan Parties and
the other Subsidiaries, does not infringe on the rights of any Person, subject
to such claims and infringements as do not, in the aggregate, give rise to any
liabilities on the part of any Borrower, any other Loan Party or any other
Subsidiary that could reasonably be expected to have a Material Adverse Effect.
(u) Business. As of the Agreement Date, the Trust and its Subsidiaries
are engaged in the business of acquiring, owning, and managing net leased
office, industrial and retail properties, together with other business
activities incidental thereto.
(v) 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 the Trust or any of its Subsidiaries
ancillary to the transactions contemplated hereby.
(w) Accuracy and Completeness of Information. No written information,
report or other papers or data (excluding financial projections and other
forward looking statements) furnished to the Agent or any Lender by, on behalf
of, or at the direction of, any Borrower, any other Loan Party or any other
Subsidiary in connection with, pursuant to or relating in any way to this
Agreement, contained any untrue statement of a fact material to the
creditworthiness of the Borrowers, the other Loan Parties and the other
Subsidiaries taken as a whole or omitted to state a material fact necessary in
order to make such statements contained therein, in light of the circumstances
under which they were made, not misleading. All financial statements (including
in each case all related schedules and notes) furnished to the Agent or any
Lender by, on behalf of, or at the direction of, any Borrower, any other Loan
Party or any other Subsidiary in connection with, pursuant to or relating in any
way to this Agreement, present fairly, in all material respects and 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 (subject, as to interim statements, to
changes resulting from normal year-end audit adjustments). All financial
projections and other forward looking statements prepared by or on behalf of any
Borrower, any other Loan Party or any other Subsidiary that
- 46 -
have been or may hereafter be made available to the Agent or any Lender were or
will be prepared in good faith based on reasonable assumptions as of the date of
such information; provided, however, the Agent and the Lenders recognize that
such projections as to future events are not to be viewed as facts or guarantees
of future performance and that actual results during the period or periods
covered by any such projections may differ from the projected results. As of the
Effective Date, no fact is known to any Borrower which has had, or may in the
future have (so far as such Borrower can reasonably foresee), a Material Adverse
Effect which has not been set forth in the financial statements referred to in
Section 6.1.(k) or in such information, reports or other papers or data or
otherwise disclosed in writing to the Agent and the Lenders.
(x) Foreign Assets Control. To the knowledge of the Trust and the
Borrowers after due inquiry, none of the Borrower, any Subsidiary or any
Affiliate of the Borrower: (i) is a Sanctioned Person, (ii) has any of its
assets in Sanctioned Entities, or (iii) derives any of its operating income from
investments in, or transactions with, Sanctioned Persons or Sanctioned Entities.
(y) Security Documents. The Pledge Agreement creates in favor of the
Agent, for the benefit of the Agent and the Lenders, a legal, valid and
enforceable security interest in the Collateral, and the Pledge Agreement
constitutes the creation of a fully perfected first priority Lien on, and
security interest in, all right, title and interest of the Borrowers and the
other Loan Parties in such Collateral, in each case prior and superior in right
to any other Person.
Section 6.2. Survival of Representations and Warranties, Etc.
All statements contained in any certificate, financial statement or
other instrument delivered by or on behalf of any Borrower, any other 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
hereto or thereto or any such statement contained in any certificate, financial
statement or other instrument delivered by or on behalf of any Borrower, any
other Loan Party or any other Subsidiary prior to the Agreement Date and
delivered to the Agent or any Lender in connection with the underwriting or
closing of the transactions contemplated hereby) shall constitute
representations and warranties made by the Borrowers in favor of the Agent or
any of the Lenders 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, the date on which any
extension of the Termination Date is effectuated pursuant to Section 2.10. and
the date of the occurrence of any 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 correct
in all material respects on and as of such earlier date) and except for changes
in factual circumstances not prohibited under the Loan Documents. All such
representations and warranties shall survive the effectiveness of this
Agreement, the execution and delivery of the Loan Documents and the making of
the Loans.
- 47 -
ARTICLE VII. - AFFIRMATIVE COVENANTS
------------------------------------
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 12.6., all of the Lenders) shall otherwise
consent in the manner provided for in Section 12.6., the Borrowers shall comply
with the following covenants:
Section 7.1. Preservation of Existence and Similar Matters.
Except as otherwise permitted under Section 9.7., the Borrowers 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 7.2. Compliance with Applicable Law and Material Contracts.
The Borrowers shall, and shall cause each other Loan Party and each
other Subsidiary to, comply with (a) all Applicable Laws, 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 7.3. Maintenance of Property.
In addition to the requirements of any of the other Loan Documents, the
Borrowers shall, and shall cause each other Loan Party and each other Subsidiary
to, (a) protect and preserve all of its respective material properties,
including, but not limited to, all Intellectual Property, and maintain in good
repair, working order and condition all tangible properties, ordinary wear and
tear excepted, and (b) 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 7.4. Conduct of Business.
The Borrowers shall, and shall cause each other Loan Party and each
other Subsidiary to, carry on, their respective businesses as described in
Section 6.1.(u).
Section 7.5. Insurance.
In addition to the requirements of any of the other Loan Documents, the
Borrowers shall, and shall cause each other Loan Party and each other Subsidiary
to, maintain insurance (on a replacement cost basis) with financially sound and
reputable insurance companies against such risks and in such amounts as is
customarily maintained by Persons engaged in similar businesses or as may be
required by Applicable Law, and from time to time deliver to the Agent upon its
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.
- 48 -
Section 7.6. Payment of Taxes and Claims.
The Borrowers shall, and shall cause each other Loan Party and each
other Subsidiary to, pay and discharge when due (a) all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits or
upon any properties belonging to it, and (b) all lawful claims of materialmen,
mechanics, carriers, warehousemen and landlords for labor, materials, supplies
and rentals which, if unpaid, might become a Lien on any properties of such
Person; provided, however, that this Section shall not require the payment or
discharge of any such tax, assessment, charge, levy or claim which is being
contested in good faith by appropriate proceedings which operate to suspend the
collection thereof and for which adequate reserves have been established on the
books of the applicable Borrower, or Subsidiary, in accordance with GAAP.
Section 7.7. Visits and Inspections.
The Borrowers shall, and shall cause each other Loan Party and each
other Subsidiary to, permit representatives or agents of any Lender or the
Agent, from time to time after reasonable prior notice if no Event of Default
shall be in existence, and as often as may be reasonably requested, but only
during normal business hours, to: (a) visit and inspect all properties of the
Borrowers the other Loan Parties and the other Subsidiaries to the extent any
such right to visit or inspect is within the control of such Person; (b) inspect
and make extracts from their respective books and records, including but not
limited to management letters prepared by independent accountants; and (c)
discuss with its officers and employees, and its independent accountants, its
business, properties, condition (financial or otherwise), results of operations
and performance. If requested by the Agent, the Borrowers shall execute an
authorization letter addressed to its accountants authorizing the Agent or any
Lender to discuss the financial affairs of any Borrower, any other Loan Party or
any other Subsidiary with its accountants. The exercise by the Agent or a Lender
of its rights under this Section shall be at the expense of the Agent or such
Lender, as the case may be, unless an Event of Default shall exist in which case
it shall be at the expense of the Borrowers.
Section 7.8. Use of Proceeds.
The Borrowers shall use the proceeds of the Loans for general corporate
purposes only, including the acquisition, renovation and improvement of real
property by means of the investment by the Borrowers in joint ventures sponsored
by the Borrowers. No part of the proceeds of any Loan will be used (a) for the
purpose of buying or carrying "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 or (b) to
finance any operations in, finance investments or activities in, or make any
payments to, a Sanctioned Person or Sanctioned Entity.
Section 7.9. Environmental Matters.
The Borrowers shall, and shall cause all of the other Loan Parties and
all of the other Subsidiaries to, comply with all Environmental Laws the failure
with which to comply could reasonably be expected to have a Material Adverse
Effect. If any Borrower, any other Loan
- 49 -
Party or any other Subsidiary: (a) receives notice that any violation of any
Environmental Law may have been committed or is about to be committed by such
Person, (b) receives notice that any administrative or judicial complaint or
order has been filed or is about to be filed against any Borrower, any other
Loan Party or any other Subsidiary alleging violations of any Environmental Law
or requiring any Borrower, any other Loan Party or any other Subsidiary to take
any action in connection with the release of Hazardous Materials or (c) receives
any notice from a Governmental Authority or private party alleging that any
Borrower, any other Loan Party or any other Subsidiary 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 the matters referred to
in such notices, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect, the Borrowers shall provide the Agent with a
copy of such notice promptly, and in any event within 10 Business Days, after
the receipt thereof by a Borrower, any other Loan Party or any other Subsidiary.
The Borrowers shall, and shall cause the other Loan Parties and the other
Subsidiaries to, take promptly 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 7.10. Books and Records.
The Borrowers shall, and shall cause each of the other Loan Parties and
each of the other Subsidiaries to, maintain books and records pertaining to its
respective business operations in such detail, form and scope as is consistent
with good business practice and in accordance with GAAP.
Section 7.11. Further Assurances.
The Borrowers shall, at the Borrowers' cost and expense and upon request
of the Agent, execute and deliver or cause to be executed and delivered, to the
Agent such further instruments, documents and certificates, and do and cause to
be done such further acts that may be reasonably necessary or advisable in the
reasonable opinion of the Agent to carry out more effectively the provisions and
purposes of this Agreement and the other Loan Documents.
Section 7.12. Release of a Guarantor.
The Borrowers may request in writing that the Agent release, and upon
receipt of such request the Agent shall release, a Guarantor from the Guaranty
so long as: (i) such Guarantor has ceased to be, or simultaneously with its
release from the Guaranty will cease to be, a Guarantor; (ii) such Guarantor is
not otherwise required to be a party to the Guaranty under the immediately
preceding subsection (a); (iii) no Default or Event of Default shall then be in
existence or would occur as a result of such release, including without
limitation, a Default or Event of Default resulting from a violation of any of
the covenants contained in Section 9.1.; (iv) any required payment as a result
of a Permitted Financing shall be made; and (v) the Agent shall have received
such written request at least 10 Business Days prior to the requested date of
release. Delivery by the Borrowers to the Agent of any such request shall
constitute a representation by the Borrowers that the matters set forth in the
preceding sentence (both as of the date of the giving of such request and as of
the date of the effectiveness of such request) are true and correct with respect
to such request.
- 50 -
Section 7.13. REIT Status.
The Trust shall at all times maintain its status as a REIT.
Section 7.14. Exchange Listing.
The Trust shall maintain at least one class of common shares of the
Trust having trading privileges on the New York Stock Exchange or the American
Stock Exchange or which is the subject of price quotations in the
over-the-counter market as reported by the National Association of Securities
Dealers Automated Quotation System.
Section 7.15. Addition of Borrowing Base Assets.
(a) With the approval of the Agent, the Borrowers may from time to time
have Properties included in the Borrowing Base Assets Pool. In such event, the
Borrowers shall provide to the Agent written notice thereof (each an "Approval
Request") no later than 10:00 a.m. (Boston, Massachusetts time) on the Business
Day that is at least ten (10) Business Days prior to the date on which the
Borrowers wish to have such asset included within the Borrowing Base Assets
Pool, such Approval Request to (i) identify the Property proposed to be included
in the Borrowing Base Assets Pool, (ii) set forth the calculation of the
Borrowing Base Availability attributable to such proposed asset to be reflected
on the Borrowing Base Certificate, and (iii) certify that such asset complies
with all of the representations and warranties applicable to such Property
contained in Exhibit J hereto. Together with the Approval Request, the Borrowers
shall deliver to the Agent (i) a completed, current Borrowing Base Certificate,
(ii) the Borrowers' credit write-up and approval memo relating to such
prospective Borrowing Base Asset, and (iii) if requested by the Agent, an
appraisal report relating to such prospective Borrowing Base Asset and such
other documents as the Agent may request from time to time (collectively, the
"Credit Underwriting Documents"). With respect to any asset which the Borrowers
have requested be added to the Borrowing Base Assets Pool, Borrowers shall be
deemed to represent and warrant hereunder that with respect to such asset all of
the representations and warranties as set forth on Exhibit J hereto are true and
correct.
(b) Promptly upon receipt of an Approval Request and all related Credit
Underwriting Documents (collectively, each, an "Approval Request Package"), the
Agent shall provide copies thereof to each Lender. Within ten (10) Business Days
after its receipt of an Approval Request Package, each Lender shall advise the
Agent as to whether such Lender approves the Approval Request. If a Lender fails
to respond to the Agent within such ten (10) Business Day period, such Lender
shall be deemed to have approved such Approval Request. Approval of any Approval
Request shall be subject to compliance with Section 7.12.
(c) On or before 5:00 P.M., New York time, on the twelfth (12th)
Business Day following the Agent's receipt of an Approved Request Package, the
Agent will advise the Borrowers as to whether the Agent and the Lenders have
approved the Approval Request. If the Agent does not respond to the Approval
Request within the time period set forth herein, the Approval Request shall be
deemed denied and the prospective Borrowing Base Asset identified in the
Approval Request shall not be included in the Borrowing Base Asset Pool. If an
Approval
- 51 -
Request has been approved, the subject asset shall thereupon become a Borrowing
Base Asset hereunder.
(d) Upon any Person becoming a Guarantor after the Effective Date in
connection with an Approval Request, the Borrowers shall deliver to the Agent
each of the following items, each in form and substance satisfactory to the
Agent: (i) a Guaranty executed by such Guarantor and (ii) the items that would
have been delivered under Sections 5.1.(a)(iv) through (viii) and (xii) if such
Guarantor had been one on the Effective Date (including a Pledge Agreement by
such Guarantor relating to the Equity Interests of each Property Subsidiary
owned by such Guarantor). Upon the request of a Lender, the Agent shall send to
such Lender copies of each of the foregoing items once the Agent has received
all such items with respect to a Guarantor.
(e) All determinations by the Agent and the Lenders as to whether to
approve any Approval Request shall be in their sole and absolute discretion.
Section 7.16. Failure of Certain Borrowing Base Assets Representations and
Warranties.
----------------------------------------------------------------
If at any time the Borrowers shall become aware that any
representation set forth on Exhibit J hereto is no longer true and correct with
respect to any Borrowing Base Asset in the Borrowing Base Asset Pool, the
Borrowers shall promptly notify the Agent in writing of such event, together
with a detailed description of the factual circumstances giving rise thereto. In
such event, the Agent may, and at the direction of the Required Lenders shall,
require that the asset no longer be considered a Borrowing Base Asset for
purposes hereof and require that such asset be removed from the Borrowing Base
Assets Pool. Upon the determination that an asset shall no longer be considered
a Borrowing Base Asset for purposes hereof, the provisions of Section 2.5(b)(i)
shall apply.
ARTICLE VIII. - INFORMATION
---------------------------
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 12.6., all of the Lenders) shall otherwise
consent in the manner set forth in Section 12.6., the Borrowers shall furnish to
each Lender (or to the Agent if so provided below) at its Lending Office:
Section 8.1. Quarterly Financial Statements.
As soon as available and in any event within 10 days after the same is
required to be filed with the Securities and Exchange Commission (but in no
event later than 55 days after the end of each of the first, second and third
fiscal quarters of the Trust), the unaudited consolidated balance sheet of the
Trust and its Subsidiaries as at the end of such period and the related
unaudited consolidated statements of income and cash flows of the Trust 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 in form and substance reasonably satisfactory
to the Agent and shall be certified by the chief financial officer or chief
accounting officer of the Trust, in his or her opinion, to present fairly, in
accordance with GAAP and in all material respects, the consolidated financial
position of the Trust and its Subsidiaries as at the date thereof and the
results of operations for such period (subject to normal year-end audit
adjustments); provided, however, the Borrowers shall not be required to deliver
an item required
- 52 -
under this Section if such item is contained in a Form 10-Q filed by the Trust
with the Securities and Exchange Commission (or any Governmental Authority
substituted therefor) and is publicly available to the Agent and the Lenders.
Section 8.2. Year-End Statements.
As soon as available and in any event within 10 days after the same is
required to be filed with the Securities and Exchange Commission (but in no
event later than 100 days after the end of each fiscal year of the Trust), the
audited consolidated balance sheet of the Trust and its Subsidiaries as at the
end of such fiscal year and the related audited consolidated statements of
income, changes in shareholders' equity and cash flows of the Trust 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 (a) in
form and substance reasonably satisfactory to the Agent, (b) certified by the
chief financial officer or chief accounting officer of the Trust, in his or her
opinion, to present fairly, in accordance with GAAP and in all material
respects, the consolidated financial position of the Trust and its Subsidiaries
as at the date thereof and the results of operations for such period and (c)
accompanied by the report thereon of independent certified public accountants of
recognized national standing, whose certificate shall be without a "going
concern" or like qualification or exception, or a qualification arising out of
the scope of the audit, and who shall have authorized the Trust to deliver such
financial statements and report to the Agent and the Lenders; provided, however,
the Borrowers shall not be required to deliver an item required under this
Section if such item is contained in a Form 10-K filed by the Trust with the
Securities and Exchange Commission (or any Governmental Authority substituted
therefor) and is publicly available to the Agent and the Lenders.
Section 8.3. Compliance Certificate.
At the time financial statements are furnished pursuant to Sections 8.1.
and 8.2., and if the Agent or the Requisite Lenders reasonably believe that a
Default or Event of Default may exist or may be likely to occur, within 5
Business Days of the Agent's request with respect to any other fiscal period, a
certificate substantially in the form of Exhibit I (a "Compliance Certificate")
executed by the chief financial officer or chief accounting officer of the
Trust: (a) setting forth in reasonable detail as at the end of such quarterly
accounting period, fiscal year, or other fiscal period, as the case may be, the
calculations required to establish whether or not the Borrowers were in
compliance with the covenants contained in Sections 9.1., 9.2. and 9.4. and (b)
stating that, to the best of his or her knowledge, information and belief after
due inquiry, 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,
whether it is continuing and the steps being taken by the Borrowers with respect
to such event, condition or failure. Together with each Compliance Certificate
delivered in connection with quarterly or annual financial statements, the
Borrowers shall deliver a statement of Funds From Operations for the fiscal
period then ending, in form and detail reasonably satisfactory to the Agent.
- 53 -
Section 8.4. Other Information.
(a) Management Reports. Promptly upon receipt thereof, copies of all
management reports, if any, submitted to any Borrower or its Board of Directors
by its independent public accountants;
(b) Securities Filings. Prompt notice of the filing of all registration
statements, reports on Forms 10-K, 10-Q and 8-K (or their equivalents) and all
other periodic reports which any of the Borrowers, any other 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, and promptly upon the filing thereof copies of any of the foregoing
that is not publicly available to the Agent and the Lenders or that the Agent or
any Lender may request;
(c) Shareholder Information; Press Releases. Promptly upon the mailing
thereof to the shareholders of the Trust or Operating Partnership generally,
copies of all financial statements, reports and proxy statements so mailed and
promptly upon the issuance thereof copies of all press releases issued by any
Borrower or any other Subsidiary;
(d) ERISA. If and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement, and such failure or amendment has
resulted or could reasonably be expected to result in the imposition of a Lien
or the posting of a bond or other security, a certificate of a duly authorized
executive of the Trust setting forth details as to such occurrence and the
action, if any, which the Trust or applicable member of the ERISA Group is
required or proposes to take;
(e) Litigation. To the extent any Borrower 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 Borrower or any
other Subsidiary or any of their respective properties, assets or businesses
which 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 the
Trust or any of its Subsidiaries are being audited;
- 54 -
(f) Change of Management or Financial Condition. Prompt notice of any
change in the senior management of the Trust or the Operating Partnership and
any change in the business, assets, liabilities, financial condition, results of
operations or business prospects of any Borrower or any other Subsidiary which
has had or could reasonably be expected to have a Material Adverse Effect;
(g) Default. Notice of the occurrence of any of the following promptly
upon a Responsible Officer of the Trust obtaining knowledge thereof: (i) any
Default or Event of Default or (ii) 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 Borrower 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;
(h) Judgments. Prompt notice of any order, judgment or decree in excess
of $5,000,000 having been entered against any Borrower or any other Subsidiary
or any of their respective properties or assets;
(i) Material Asset Sales. Prompt notice of the sale, transfer or other
disposition of any material assets of any Borrower or any other Subsidiary to
any Person other than a Borrower or another Subsidiary;
(j) Patriot Act Information. From time to time and promptly upon each
request, information identifying any Borrower or any other Loan Party as a
Lender may request in order to comply with the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)); and
(k) Other Information. From time to time and promptly upon each request,
such data, certificates, reports, statements, opinions of counsel, documents or
further information regarding the business, assets, liabilities, financial
condition, results of operations or business prospects of any Borrower, any
other Loan Party or any other Subsidiary as the Agent or any Lender may
reasonably request.
ARTICLE IX. - NEGATIVE COVENANTS
--------------------------------
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 12.6., all of the Lenders) shall otherwise
consent in the manner set forth in Section 12.6., the Borrowers shall comply
with the following covenants:
Section 9.1. Financial Covenants.
The Borrowers shall not permit:
(a) Maximum Leverage Ratio. The ratio of (i) Total Indebtedness to (ii)
Capitalized Value, to exceed 0.65 to 1.00 at any time.
(b) Minimum Debt Service Ratio. The ratio of (i) Adjusted EBITDA of the
Trust and its Subsidiaries determined on a consolidated basis for the period of
two consecutive fiscal
-55-
quarters of the Trust most recently ending to (ii) Debt Service for such period,
to be less than 1.50 to 1.00 at any time.
(c) Minimum Fixed Charge Coverage Ratio. The ratio of (i) Adjusted
EBITDA for the period of two consecutive fiscal quarters of the Trust most
recently ending to (ii) Fixed Charges for such period, to be less than 1.40 to
1.00 at any time.
(d) Maximum Recourse Secured Indebtedness Ratio. The ratio of (i)
Secured Indebtedness (excluding Nonrecourse Indebtedness) of the Borrowers and
the Guarantors determined on a consolidated basis to (ii) Capitalized Value, to
be greater than 0.10 to 1.00 at any time.
(e) Maximum Loan to Value Ratio. The ratio of (x) the principal amount
of Secured Indebtedness (other than Nonrecourse Indebtedness) secured by a Lien
on a Stabilized Property or a Development Property to (y) the Value of such
Property, to exceed the applicable ratio in the following table at any time:
---------------------------------------- -------------------------------------
Property Type Maximum Ratio
---------------------------------------- -------------------------------------
Stabilized Property 0.75 to 1.00
---------------------------------------- -------------------------------------
Development Property 0.80 to 1.00
---------------------------------------- -------------------------------------
(f) Minimum Net Worth. Tangible Net Worth at any time to be less than
(i) $1,224,905,000.00 plus (ii) 75.0% of the Net Proceeds of all Equity
Issuances effected by the Trust or any Subsidiary after March 31, 2007 (other
than (x) Equity Issuances to the Trust or any Subsidiary and (y) Equity
Issuances by the Trust or any Subsidiary, to the extent the proceeds thereof are
used at the time of such Equity Issuance to redeem, repurchase or otherwise
acquire or retire any other Equity Interest (other than Mandatorily Redeemable
Stock) of the Trust or such Subsidiary, as the case may be).
(g) Floating Rate Indebtedness. The ratio of (i) Floating Rate
Indebtedness of the Trust and its Subsidiaries determined on a consolidated
basis to (ii) Total Indebtedness, to exceed 0.35 to 1.00 at any time.
Section 9.2. Restricted Payments.
The Trust shall not, and shall not permit any of its Subsidiaries to,
declare or make any Restricted Payment; provided, however, that the Trust and
its Subsidiaries may declare and make the following Restricted Payments so long
as no Default or Event of Default would result therefrom:
(a) the Operating Partnership may make cash distributions to the Trust
and other holders of partnership interests in the Operating Partnership with
respect to any fiscal year ending during the term of this Agreement to the
extent necessary for the Trust to make, and the Trust may so make, cash
distributions to its shareholders in an aggregate amount not to exceed the
greater of (i) the amount required to be distributed for the Trust to maintain
its status as a REIT or (ii) 90.0% of Funds From Operation;
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(b) the Trust may make cash distributions to its shareholders 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;
(c) any Borrower or any Subsidiary may acquire the Equity Interests of a
Subsidiary that is not a Wholly Owned Subsidiary;
(d) any Subsidiary (other than the Operating Partnership) that is not a
Wholly Owned Subsidiary may make cash distributions to holders of Equity
Interests issued by such Subsidiary;
(e) Subsidiaries may pay Restricted Payments to the Trust or any other
Subsidiary; and
(f) An Operating Partnership or the Trust, as applicable, may exchange
Equity Interest in such Operating Partnership for Equity Interests in the Trust.
Notwithstanding the foregoing, but subject to the following sentence, if a
Default or Event of Default exists, the Operating Partnership may only make cash
distributions to the Trust and other holders of partnership interests in the
Operating Partnership, and the Trust may distribute to its shareholders such
cash distributions received from the Operating Partnership, during any fiscal
year in an aggregate amount not to exceed the minimum amount necessary for the
Trust to maintain its status as a REIT. If a Default or Event of Default
specified in Section 10.1.(a), Section 10.1.(b), Section 10.1.(f) or Section
10.1.(g) shall exist, or if as a result of the occurrence of any other Event of
Default any of the Obligations have been accelerated pursuant to Section
10.2.(a), the Trust shall not, and shall not permit any Subsidiary to, make any
Restricted Payments to any Person other than to the Trust or any Subsidiary.
Section 9.3. Indebtedness.
The Borrowers 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 immediately prior to the
assumption, incurring or becoming obligated in respect thereof, or immediately
thereafter and after giving effect thereto, a Default or Event of Default is or
would be in existence, including without limitation, a Default or Event of
Default resulting from a violation of any of the covenants contained in Section
9.1.
Section 9.4. Certain Permitted Investments.
The Borrowers shall not, and shall not permit any other Loan Party or
any other Subsidiary to, make any Investment in or otherwise own the following
items which would cause the aggregate value of such holdings of the Borrowers,
the other Loan Parties and the other Subsidiaries to exceed the applicable
limits set forth below:
(a) Investments in Unconsolidated Affiliates and other Persons that are
not Subsidiaries, such that the aggregate value of such Investments (determined
in a manner consistent with the definition of Capitalized Value or, if not
contemplated under the definition of Capitalized Value, as determined in
accordance with GAAP) exceeds 20.0% of Capitalized Value at any time;
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(b) raw land, such that the current book value of all raw land exceeds
10.0% of Capitalized Value;
(c) real property under construction such that the aggregate
Construction Budget for all such real property exceeds 15.0% of Capitalized
Value at any time;
(d) Mortgage Receivables and other promissory notes, such that the
aggregate book value of all such Mortgage Receivables and promissory notes
exceeds 10.0% of Capitalized Value at any time; and
(e) Properties leased under ground leases by any Borrower or any
Subsidiary, as lessee, such that the current value (determined in accordance
with the applicable provisions of the term "Capitalized Value") of such
Properties exceeds 25.0% of Capitalized Value at any time.
In addition to the foregoing limitations, the aggregate value of all of the
items subject to the limitations in the preceding clauses (a) through (e) shall
not exceed 40.0% of Capitalized Value at any time.
Section 9.5. Investments Generally.
The Borrowers shall not, and shall not permit any other Loan Party or
any other Subsidiary to, directly or indirectly, acquire, make or purchase any
Investment, or permit any Investment of such Person to be outstanding on and
after the Agreement Date, other than the following:
(a) Investments in Subsidiaries in existence on the Agreement Date and
disclosed on Part I of Schedule 6.1.(b);
(b) Investments to acquire Equity Interests of a Subsidiary or any other
Person who after giving effect to such acquisition would be a Subsidiary, so
long as in each case (i) immediately prior to such Investment, and after giving
effect thereto, no Default or Event of Default is or would be in existence and
(ii) if such Subsidiary is (or after giving effect to such Investment would
become) a Guarantor or Property Subsidiary, the terms and conditions set forth
in Section 7.12. are satisfied;
(c) Investments permitted under Section 9.4.;
(d) Investments in Cash Equivalents;
(e) intercompany Indebtedness among the Loan Parties and the Wholly
Owned Subsidiaries of the Loan Parties provided that such Indebtedness is
permitted by the terms of Section 9.3.;
(f) loans and advances to officers and employees for moving,
entertainment, travel and other similar expenses in the ordinary course of
business consistent with past practices; and
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(g) any other Investment so long as immediately prior to making such
Investment, and immediately thereafter and after giving effect thereto, no
Default or Event of Default is or would be in existence.
Section 9.6. Liens; Negative Pledges; Other Matters.
(a) The Borrowers shall not, and shall not permit any other Loan Party
or any other Subsidiary to, create, assume, or incur any Lien (other than
Permitted Liens) upon any of its properties, assets, income or profits of any
character whether now owned or hereafter acquired if immediately prior to the
creation, assumption or incurring of such Lien, or immediately thereafter, a
Default or Event of Default is or would be in existence, including without
limitation, a Default or Event of Default resulting from a violation of any of
the covenants contained in Section 9.1. The Borrowers shall not, and shall not
permit any other Loan Party or any other Subsidiary to, create, assume, or incur
any Lien (other than Permitted Liens) upon any Equity Interests subject to the
Pledge Agreement or any Property included in the Borrowing Base Assets Pool,
other than Permitted Liens.
(b) The Borrowers shall not, and shall not permit any other Loan Party
or any other Subsidiary to, enter into, assume or otherwise be bound by any
Negative Pledge except for a Negative Pledge contained in (i) an agreement (x)
evidencing Indebtedness which such Borrower, Loan Party or Subsidiary may
create, incur, assume, or permit or suffer to exist under Section 9.3., (y)
which Indebtedness is secured by a Lien permitted to exist under the Loan
Documents, and (z) which prohibits the creation of any other Lien on only the
property securing such Indebtedness as of the date such agreement was entered
into; or (ii) in an agreement relating to the sale of a Subsidiary or assets
pending such sale, provided that in any such case the Negative Pledge applies
only to the Subsidiary or the assets that are the subject of such sale.
(c) The Borrowers 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 a
Borrower or any Subsidiary; (ii) pay any Indebtedness owed to a Borrower or any
Subsidiary; (iii) make loans or advances to a Borrower or any Subsidiary; or
(iv) transfer any of its property or assets to a Borrower or any Subsidiary.
Section 9.7. Merger, Consolidation, Sales of Assets and Other Arrangements.
The Borrowers shall not, and shall not permit any other Loan Party or
any other Subsidiary to: (i) enter into any transaction of merger or
consolidation; (ii) liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution); or (iii) convey, sell, lease, sublease, transfer or
otherwise dispose of, in one transaction or a series of transactions, all or
substantially all of its business or assets, whether now owned or hereafter
acquired; provided, however, that:
(a) any of the actions described in the immediately preceding clauses
(i) through (iii) may be taken with respect to any Subsidiary or any other Loan
Party (other than a Borrower) so long as immediately prior to the taking of such
action, and immediately thereafter and after giving effect thereto, no Default
or Event of Default is or would be in existence; notwithstanding
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the foregoing, any such Loan Party (other than a Borrower) may enter into a
transaction of merger pursuant to which such Loan Party is not the survivor of
such merger only if (i) the Borrowers shall have given the Agent and the Lenders
at least 10 Business Days' prior written notice of such merger, such notice to
include a certification to the effect that immediately after and after giving
effect to such action, no Default or Event of Default is or would be in
existence; (ii) if the survivor entity is a Guarantor within 5 Business Days of
consummation of such merger, the survivor entity (if not already a Guarantor)
shall have executed and delivered an assumption agreement in form and substance
reasonably satisfactory to the Agent pursuant to which such survivor entity
shall expressly assume all of such Loan Party's Obligations under the Loan
Documents to which it is a party; (iii) within 10 Business Days of consummation
of such merger, the survivor entity delivers to the Agent the following: (A)
items of the type referred to in Sections 5.1.(a)(iv) through (viii) with
respect to the survivor entity as in effect after consummation of such merger
(if not previously delivered to the Agent and still in effect), (B) copies of
all documents entered into by such Loan Party or the survivor entity to
effectuate the consummation of such merger, including, but not limited to,
articles of merger and the plan of merger, (C) copies, certified by the
Secretary or Assistant Secretary (or other individual performing similar
functions) of such Loan Party or the survivor entity, of all corporate and
shareholder action authorizing such merger and (D) copies of any filings with
the Securities and Exchange Commission in connection with such merger; and (iv)
such Loan Party and the survivor entity each takes such other action and
delivers such other documents, instruments, opinions and agreements as the Agent
may reasonably request;
(b) the Borrowers, the other 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;
(c) a Person may merge with and into a Borrower so long as (i) such
Borrower is the survivor of such merger, (ii) immediately prior to such merger,
and immediately thereafter and after giving effect thereto, no Default or Event
of Default is or would be in existence, and (iii) the Borrowers shall have given
the Agent and the Lenders at least 10 Business Days' prior written notice of
such merger, such notice to include a certification as to the matters described
in the immediately preceding clause (ii) (except that such prior notice shall
not be required in the case of the merger of a Subsidiary with and into a
Borrower);
(d) the Borrowers and the other Loan Parties may sell, transfer or
dispose of assets among themselves, and the other Subsidiaries that are not Loan
Parties may sell, transfer or dispose of assets among themselves or to a
Borrower or other Loan Party.
Section 9.8. Fiscal Year.
The Trust shall not change its fiscal year from that in effect as of the
Agreement Date.
Section 9.9. Modifications to Material Contracts.
The Borrowers shall not, and shall not permit any other Loan Party or
any other Subsidiary to, enter into any amendment or modification to any
Material Contract which could reasonably be expected to have a Material Adverse
Effect.
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Section 9.10. Modifications of Organizational Documents.
The Borrowers shall not, and shall not permit any other Loan Party or
any other Subsidiary to, amend, supplement, restate or otherwise modify its
articles or certificate of incorporation, by-laws, operating agreement,
declaration of trust, partnership agreement or other applicable organizational
document if such amendment, supplement, restatement or other modification could
reasonably be expected to have a Material Adverse Effect.
Section 9.11. Transactions with Affiliates.
The Borrowers shall not, and shall not permit any other Loan Party or
any 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 (other than a Loan Party), except
transactions in the ordinary course of and pursuant to the reasonable
requirements of the business of such Borrower, other Loan Party or other
Subsidiary and upon fair and reasonable terms which are no less favorable to
such Borrower, other Loan Party or other Subsidiary than would be obtained in a
comparable arm's length transaction with a Person that is not an Affiliate.
Section 9.12. ERISA Exemptions.
The Borrowers shall not, and shall not permit any other Loan Party or
any other Subsidiary to, permit any of its respective assets to become or be
deemed to be "plan assets" within the meaning of ERISA, the Internal Revenue
Code and the respective regulations promulgated thereunder.
ARTICLE X. - DEFAULT
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Section 10.1. 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 of Principal. Any Borrower shall fail to pay when
due (whether upon demand, at maturity, by reason of acceleration or otherwise)
the principal of any of the Loans, or any Reimbursement Obligation.
(b) Default in Payment of Interest and Other Obligations. Any Borrower
shall fail to pay when due any interest on any of the Loans or any of the other
payment Obligations owing by the Borrowers 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 other Loan Party under any Loan Document to which it is
a party, and such failure shall continue for a period of 5 Business Days.
(c) Default in Performance. (i) Any Borrower shall fail to perform or
observe any term, covenant, condition or agreement contained in Section 8.4.(g)
or in Article IX. or (ii) any Borrower or any other Loan Party shall fail to
perform or observe any term, covenant, condition or agreement contained in this
Agreement or any other Loan Document to which it is a party and
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not otherwise mentioned in this Section and in the case of this clause (ii) only
such failure shall continue for a period of 30 days after the earlier of (x) the
date upon which a Responsible Officer of any Borrower or such other Loan Party
obtains knowledge of such failure or (y) the date upon which any Borrower has
received written notice of such failure from the Agent.
(d) Misrepresentations. Any written statement, representation or
warranty made or deemed made by or on behalf of any Borrower or any other 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 or
made or deemed made by or on behalf of any Borrower or any other Loan Party to
the Agent or any Lender, shall at any time prove to have been incorrect or
misleading, in light of the circumstances in which made or deemed made, in any
material respect when furnished or made or deemed made.
(e) Indebtedness Cross-Default; Derivatives Contracts.
(i) Any Borrower, any other Loan Party or any other Subsidiary
shall fail to pay when due and payable, within any applicable grace or
cure period, the principal of, or interest on, any Indebtedness (other
than the Loans) having an aggregate outstanding principal amount of
$10,000,000 or more in the case of Indebtedness that is not Nonrecourse
Indebtedness, or $25,000,000 or more in the case of Nonrecourse
Indebtedness (all such Indebtedness being referred to as "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;
(iii) any other event shall have occurred and be continuing
which permits any holder or holders of Material Indebtedness, any
trustee or agent acting on behalf of such holder or holders or any other
Person, to accelerate the maturity of any such Material Indebtedness or
require any such Material Indebtedness to be prepaid or repurchased
prior to its stated maturity; or
(iv) there occurs under any Derivatives Contract an Early
Termination Date (as defined in such Derivatives Contract) resulting
from (A) any event of default under such Derivatives Contract as to
which any Loan Party is the Defaulting Party (as defined in such
Derivatives Contract) or (B) any Termination Event (as so defined) under
such Derivatives Contract as to which any Loan Party is an Affected
Party (as so defined) and, in either event, the Derivatives Termination
Value owed by any Loan Party as a result thereof is $10,000,000 or more.
(f) Voluntary Bankruptcy Proceeding. Any Borrower, any other Loan Party
or any other Subsidiary (other than a Subsidiary that, together with all other
Subsidiaries then subject to a bankruptcy proceeding or other proceeding or
condition described in this subsection or the immediately following subsection,
does not account for more than $25,000,000 of Capitalized Value) shall: (i)
commence a voluntary case under the Bankruptcy Code of 1978, as amended,
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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) 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.
(g) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
be commenced against any Borrower, any other Loan Party or any other Subsidiary
(other than a Subsidiary that, together with all other Subsidiaries then subject
to a bankruptcy proceeding or other proceeding or condition described in this
subsection or the immediately preceding subsection, does not account for more
than $25,000,000 of Capitalized Value) 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 such case or proceeding shall continue undismissed or unstayed
for a period of 60 consecutive calendar days, or an order granting the remedy or
other relief requested in such case or proceeding against such Borrower, such
other Loan Party or such other Subsidiary (including, but not limited to, an
order for relief under such Bankruptcy Code or such other federal bankruptcy
laws) shall be entered.
(h) Litigation; Enforceability. Any Borrower or any other Loan Party
shall disavow, revoke or terminate (or attempt to 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, or any Loan Document shall
cease to be in full force and effect (except as a result of the express terms
thereof).
(i) Judgment. A judgment or order for the payment of money or for an
injunction shall be entered against any Borrower, any other Loan Party, or any
other Subsidiary 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 of such
judgment or order 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
outstanding judgments or orders entered against (x) in the case of the Borrowers
and the other Loan Parties, $10,000,000 or (y) in the case of the other
Subsidiaries, $25,000,000 or (B) in the case of an injunction or other
non-monetary judgment, such judgment could reasonably be expected to have a
Material Adverse Effect.
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(j) Attachment. A warrant, writ of attachment, execution or similar
process shall be issued against any property of any Borrower, any other Loan
Party or any other Subsidiary which (i) exceeds, individually or together with
all other such warrants, writs, executions and processes, (x) against the
Borrowers and other Loan Parties, $10,000,000 in amount or (y) against the other
Subsidiaries, $25,000,000 in amount, and in any such case such warrant, writ,
execution or process shall not be 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.
(k) ERISA. Any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $10,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to terminate a
Plan or Plans having aggregate Unfunded Liabilities in excess of $10,000,000
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 Plan or Plans having aggregate
Unfunded Liabilities in excess of $10,000,000; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree adjudicating that
any such Plan must be terminated; or there shall occur a complete or partial
withdrawal from, or a default, within the meaning of Section 4219(c)(5) of
ERISA, with respect to, one or more Multiemployer Plans which could cause one or
more members of the ERISA Group to incur a current payment obligation in excess
of $10,000,000.
(l) Loan Documents. An Event of Default (as defined therein) shall occur
under any of the other Loan Documents.
(m) 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 20.0% of the total voting power of the then outstanding
voting stock of the Trust; or
(ii) During any period of 12 consecutive months ending after the
Agreement Date, individuals who at the beginning of any such 12-month
period constituted the Board of Trustees of the Trust (together with any
new directors whose election by such Board or whose nomination for
election by the shareholders of the Trust 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 Trust then in office.
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(n) Liens. Any Lien purported to be created under any Loan Document
shall cease to be, or shall be asserted by any Borrower or other Loan Party not
to be, a valid and perfected Lien on any Collateral, with the priority required
by the applicable Loan Document, except as a result of the sale or other
disposition of the applicable Collateral in a transaction permitted under the
Loan Documents;
Section 10.2. 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 10.1.(f) or 10.1.(g), (A)(i) the principal of, and
all accrued interest on, the Loans and the Notes at the time
outstanding, and (ii) all of the other Obligations of the Borrowers,
including, but not limited to, the other amounts owed to the Lenders and
the Agent under this Agreement, the Notes or any of the other Loan
Documents shall become immediately and automatically due and payable by
the Borrowers without presentment, demand, protest, or other notice of
any kind, all of which are expressly waived by the Borrowers and (B) all
of the Commitments, the obligation of the Lenders to make Loans shall
all immediately and automatically terminate.
(ii) Optional. If any other Event of Default shall exist, the
Agent shall, at the direction of the Requisite Lenders: (A) declare (1)
the principal of, and accrued interest on, the Loans and the Notes at
the time outstanding, and (2) 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 Borrowers and (B)
terminate the Commitments and the obligation of the Lenders to make
Loans hereunder.
(b) Loan Documents. The Requisite Lenders may direct the Agent to, and
the Agent if so directed shall, exercise any and all of its rights under any and
all of the other Loan Documents.
(c) Applicable Law. The Requisite Lenders may direct the Agent to, and
the Agent if so directed shall, exercise all other rights and remedies it may
have under any Applicable Law.
(d) Appointment of Receiver. To the extent permitted by Applicable Law,
the Agent and the Lenders shall be entitled to the appointment of a receiver for
the assets and properties of the Trust 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 Trust and its
Subsidiaries and to exercise such power as the court shall confer upon such
receiver.
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Section 10.3. Remedies Upon Default.
Upon the occurrence of a Default specified in Section 10.1.(g), the
Commitments shall immediately and automatically terminate.
Section 10.4. Allocation of Proceeds.
If an Event of Default shall exist 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 Borrowers hereunder or
thereunder, shall be applied in the following order and priority:
(a) amounts due the Agent in respect of fees and expenses due
under Section 12.2.;
(b) amounts due the Lenders in respect of fees and expenses due
under Section 12.2., pro rata in the amount then due each Lender;
(c) payments of interest all Loans, to be applied for the
ratable benefit of the Lenders;
(d) payments of principal of all Loans;
(e) amounts due the Agent and the Lenders pursuant to Sections
11.7. and 12.9.;
(f) payment of all other Obligations and other amounts due and
owing by the Borrowers and the other Loan Parties under any of the Loan
Documents, if any, to be applied for the ratable benefit of the Lenders;
and
(g) any amount remaining after application as provided above,
shall be paid to the Borrowers or whomever else may be legally entitled
thereto.
Section 10.5. Performance by Agent.
If any Borrower shall fail to perform any covenant, duty or agreement
contained in any of the Loan Documents, the Agent may, after notice to the
Borrowers, perform or attempt to perform such covenant, duty or agreement on
behalf of such Borrower after the expiration of any cure or grace periods set
forth herein. In such event, the Borrowers 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
any Borrower under this Agreement or any other Loan Document.
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Section 10.6. 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 XI. - THE AGENT
-----------------------
Section 11.1. 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 any Borrower, any other Loan
Party or any other Affiliate of any Borrower, pursuant to this Agreement or any
other Loan Document not already delivered to such Lender pursuant to the terms
of this Agreement or any such other Loan Document. As to any matters not
expressly provided for by the Loan Documents (including, without limitation,
enforcement or collection of any of the Obligations), the Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Requisite Lenders (or all
of the Lenders if explicitly required under any other provision of this
Agreement), and such instructions shall be binding upon all Lenders 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 (or all of the Lenders if
explicitly required under any provision of this Agreement) have so directed the
Agent to exercise such right or remedy.
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Section 11.2. Agent's Reliance, Etc.
Notwithstanding any other provisions of this Agreement or any other Loan
Documents, neither the Agent nor any of its directors, officers, agents,
employees or counsel shall be liable for any action taken or omitted to be taken
by it or them under or in connection with this Agreement or any other Loan
Document, except for its or their own gross negligence or willful misconduct as
determined by a court of competent jurisdiction in a final, non-appealable
judgment. 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 Borrowers 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 Borrowers or other Persons (except for the delivery to it of any certificate
or document specifically required to be delivered to it pursuant to Section
5.1.) or inspect the property, books or records of the Borrowers 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. Unless set forth in writing to the contrary, the making of its
initial Loan by a Lender shall constitute a certification by such Lender to the
Agent and the other Lenders that the Borrowers have satisfied the conditions
precedent for initial Loans set forth in Sections 5.1. and 5.2. that have not
previously been waived by the Requisite Lenders.
Section 11.3. 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 Borrowers referring to this Agreement, describing with
reasonable specificity such Default or Event of Default and stating that such
notice is a "notice of default." If any Lender (excluding the Lender which is
also serving as the Agent) becomes aware of any Default or Event of Default, it
shall promptly send to the Agent such a "notice of default." Further, if the
Agent receives such a "notice of default", the Agent shall give prompt notice
thereof to the Lenders.
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Section 11.4. KeyBank as Lender.
KeyBank, 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 KeyBank in each case in its
individual capacity. KeyBank 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, any 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 any Borrower for services in connection with
this Agreement and otherwise without having to account for the same to the other
Lenders. The Lenders acknowledge that, pursuant to such activities, KeyBank or
its affiliates may receive information regarding the Trust, other Loan Parties,
other Subsidiaries and other Affiliates (including information that may be
subject to confidentiality obligations in favor of such Person) and acknowledge
that the Agent shall be under no obligation to provide such information to them.
Section 11.5. 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
Borrowers 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
Loan Documents) of receipt of such communication. Except as otherwise 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
(together with a written explanation of the reasons behind such objection)
within the applicable time period for reply, such Lender shall be deemed to have
conclusively approved of or consented to such recommendation or determination.
Section 11.6. 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 any 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 any Borrower, any other
Loan Party or any other Subsidiary, shall be deemed to constitute any such
representation or warranty by the Agent to any Lender. Each Lender acknowledges
that it has made its own credit and legal analysis and
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decision to enter into this Agreement and the transactions contemplated hereby,
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 Trust, the Subsidiaries or
any other Affiliate thereof, and inquiries of such Persons, its independent due
diligence of the business and affairs of the Trust, the other 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. 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 any
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 11.7. Indemnification of Agent.
Each Lender agrees to indemnify the Agent (to the extent not reimbursed
by the Borrowers and without limiting the obligation of the Borrowers 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, reasonable out-of-pocket costs and 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 as determined by a court of competent jurisdiction in a
final, non-appealable judgment or if the Agent fails to follow the written
direction of the Requisite Lenders (or all of the Lenders if expressly required
hereunder) unless such failure results from the Agent following the advice of
counsel to the Agent of which advice the Lenders have received notice. Without
limiting the generality of the foregoing but subject to the preceding proviso,
each Lender agrees to reimburse the Agent (to the extent not reimbursed by the
Borrowers and without limiting the obligation of the Borrowers to do so),
promptly upon demand for its ratable share of any out-of-pocket 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, 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
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brought against the Agent, and/or the Lenders arising under any Environmental
Laws. Such out-of-pocket expenses (including counsel fees) shall be advanced by
the Lenders on the request of the Agent notwithstanding any claim or assertion
that the Agent is not entitled to indemnification hereunder upon receipt of an
undertaking by the Agent that the Agent will reimburse the Lenders if it is
actually and finally determined by a court of competent jurisdiction that the
Agent is not so entitled to indemnification. The agreements in this Section
shall survive the payment of the Loans and all other amounts payable hereunder
or under the other Loan Documents and the termination of this Agreement. If the
Borrowers 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 11.8. 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 Borrowers. The Agent may be
removed as Agent under the Loan Documents for good cause by all of the Lenders
(other than the Lender then acting as Agent) upon 30-days' prior written notice
to the Agent. Upon any such resignation or removal, the Requisite Lenders (other
than the Lender then acting as Agent, in the case of the removal of the Agent
under the immediately preceding sentence) shall have the right to appoint a
successor Agent which appointment shall, provided no Default or Event of Default
exists, be subject to the Borrowers' approval, which approval shall not be
unreasonably withheld or delayed (except that the Borrowers shall, in all
events, be deemed to have approved each Lender and its affiliates as a successor
Agent). If no successor Agent shall have been so appointed in accordance with
the immediately preceding sentence, and shall have accepted such appointment,
within 30 days after the 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 a
commercial bank having total combined assets of at least $50,000,000,000. 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 or removed Agent, and the
retiring or removed 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 XI. 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 11.9. Titled Agents.
Each of the Titled Agents in each such respective capacity, assumes no
responsibility or obligation hereunder, including, without limitation, for
servicing, enforcement or collection of any of the Loans, or for any duties as
an agent hereunder for the Lenders. The titles of "Lead Arranger" and "Book
Running Manager" are solely honorific and imply no fiduciary responsibility on
the part of the Titled Agents to the Agent, the Borrowers or any Lender and the
use of such titles does not impose on the Titled Agents any duties or
obligations greater than those of any other Lender or entitle the Titled Agents
to any rights other than those to which any other Lender is entitled.
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ARTICLE XII. - MISCELLANEOUS
----------------------------
Section 12.1. Notices.
Unless otherwise provided herein, communications provided for hereunder
shall be in writing and shall be mailed, telecopied or delivered as follows:
If to a Borrower:
Lexington Realty Trust
Xxx Xxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Agent:
KeyBank, National Association
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to a Lender:
To such Lender's address or telecopy number, as applicable, set
forth on its signature page hereto or in the applicable
Assignment and Acceptance Agreement;
or, as to each party at such other address as shall be designated by such party
in a written notice to the other parties delivered in compliance with this
Section. All such notices and other communications shall be effective (i) if
mailed, when received; (ii) if telecopied, when transmitted; or (iii) if hand
delivered or sent by overnight courier, when delivered. Notwithstanding the
immediately preceding sentence, all notices or communications sent by telecopy
to the Agent or any Lender under Article II. shall be effective only when
actually received by the intended addressee. Neither the Agent nor any Lender
shall incur any liability to the Borrowers (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. Failure of a Person designated to
get a copy of a notice to receive such copy shall not affect the validity of
notice properly given to any other Person.
Section 12.2. Expenses.
The Borrowers agree (a) to pay or reimburse the Agent for all of its
reasonable out-of-pocket costs and expenses actually incurred in connection with
the preparation, negotiation and
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execution of, and any amendment, supplement or modification to, any of the Loan
Documents (including due diligence expenses and travel expenses relating to
closing), and the consummation of the transactions contemplated thereby,
including the reasonable fees and disbursements of counsel to the Agent and
costs and expenses in connection with the use of IntraLinks, Inc. or other
similar information transmission systems in connection with the Loan Documents,
(b) to pay or reimburse the Agent and the Lenders for all their reasonable costs
and expenses actually incurred in connection with the enforcement or
preservation of any rights under the Loan Documents, including the reasonable
fees and disbursements of their respective counsel 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 or reimburse the Agent and the Lenders for all their costs
and expenses incurred in connection with any bankruptcy or other proceeding of
the type described in Section 10.1.(f) or 10.1.(g), including the reasonable
fees and disbursements of counsel to the Agent and any Lender, 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. If the
Borrowers shall fail to pay any amounts required to be paid by them pursuant to
this Section, the Agent and/or the Lenders may pay such amounts on behalf of the
Borrowers and either deem the same to be Loans outstanding hereunder or
otherwise Obligations owing hereunder. Upon the Borrowers' request, the Agent or
any Lender requesting payment of any amounts under this Section shall provide
the Borrowers with a statement setting forth in reasonable detail the basis for
requesting such amounts.
Section 12.3. 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 each
Borrower, at any time or from time to time during the continuance of an Event of
Default, without prior notice to any Borrower or to any other Person, any such
notice being hereby expressly waived, but in the case of a Lender or 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
any 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 10.2., and although such obligations shall be contingent or unmatured.
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Section 12.4. Litigation; Jurisdiction; Other Matters; Waivers.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY
BETWEEN OR AMONG THE BORROWERS, 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 BORROWERS 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 BORROWERS, THE AGENT OR ANY OF THE LENDERS OF ANY KIND OR NATURE RELATING TO
ANY OF THE LOAN DOCUMENTS.
(b) EACH OF THE BORROWERS, THE AGENT AND EACH LENDER HEREBY AGREES THAT
THE FEDERAL DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK AND ANY STATE
COURT LOCATED IN BOROUGH OF MANHATTAN, NEW YORK, NEW YORK, SHALL HAVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG THE
BORROWERS, THE AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO
THIS AGREEMENT, THE LOANS, THE NOTES OR ANY OTHER LOAN DOCUMENT OR TO ANY MATTER
ARISING HEREFROM OR THEREFROM. THE BORROWERS AND EACH OF THE LENDERS EXPRESSLY
SUBMIT AND CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING
COMMENCED IN SUCH COURTS WITH RESPECT TO SUCH CLAIMS OR DISPUTES. EACH PARTY
FURTHER WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM, AND EACH AGREES NOT TO PLEAD OR
CLAIM THE SAME. THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE
DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY THE AGENT OR ANY LENDER OR THE
ENFORCEMENT BY THE AGENT OR ANY LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN
ANY OTHER APPROPRIATE JURISDICTION.
(c) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY
WITH THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL
CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS AND ALL OTHER
AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS, AND THE TERMINATION
OF THIS AGREEMENT.
Section 12.5. 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 no Borrower
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may assign or otherwise transfer any of its rights or obligations under this
Agreement 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
Borrowers.
(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, (i) any
such participating interest must be for a constant and not a varying percentage
interest and (ii) after giving effect to any such participation by a Lender, the
amount of its Commitment, or if the Commitments have been terminated, the
aggregate outstanding principal balance of Notes held by it, in which it has not
granted any participating interests must be equal to at least $10,000,000.
Except as otherwise provided in Section 12.3., no Participant shall have any
rights or benefits under this Agreement or any other Loan Document. A
Participant shall not be entitled to receive any greater payment under Section
3.12. than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrowers' prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 3.12. unless the Borrowers are
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrowers and the Agent, to comply with Section
3.12.(c) as though it were a Lender. 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 Borrowers
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 Borrowers 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, (iv) reduce the rate at which interest is payable thereon or (v)
release any Guarantor (except as otherwise permitted under Section 7.12.(c)). 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). Upon
request from the Agent, a Lender shall notify the Agent of the sale of any
participation hereunder and, if requested by the Agent, certify to the Agent
that such participation is permitted hereunder and that the requirements of
Section 3.12. (c) have been satisfied.
(d) Any Lender may with the prior written consent of the Agent and, so
long as no Default or Event of Default exists, the Borrowers (which consent, in
each case, shall not be unreasonably withheld (it being agreed that the
Borrowers' withholding of consent to an assignment which would result in the
Borrowers having to pay amounts under Section 3.12. shall
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be deemed to be reasonable)), 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 (including all or a portion of its Commitments and the Loans owing
to such Lender); provided, however, (i) no such consent by the Borrowers shall
be required in the case of any assignment to another Lender or any affiliate of
such Lender or another Lender and no such consent by the Agent shall be required
in the case of any assignment by a Lender to any affiliate of such Lender; (ii)
unless the Borrowers and the Agent otherwise agree, after giving effect to any
partial assignment by a Lender, the Assignee shall hold, and the assigning
Lender shall retain, a Commitment, or if the Commitments have been terminated,
Loans having an outstanding principal balance, of at least $10,000,000 and
integral multiples of $5,000,000 in excess thereof; and (iii) each such
assignment shall be effected by means of an Assignment and Acceptance Agreement.
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 a Lender party
to this Agreement with respect to the assigned interest as of the effective date
of the Assignment and Acceptance Agreement and shall have all the rights and
obligations of a Lender with respect to the assigned interest as set forth in
such Assignment and Acceptance Agreement, and the transferor Lender shall be
released from its obligations hereunder with respect to the assigned interest to
a corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to this subsection,
the transferor Lender, the Agent and the Borrowers 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 at the Principal Office 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 Borrowers notice of the assignment by any Lender of its
rights as contemplated by this Section. The Borrowers, 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. The Register and copies of each
Assignment and Acceptance Agreement shall be available for inspection by the
Borrowers 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 Borrowers.
(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.
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(g) A Lender may furnish any information concerning any Borrower, any
other Loan Party or any other Subsidiary in the possession of such Lender from
time to time to Assignees and Participants (including prospective Assignees and
Participants) subject to compliance with Section 12.8.
(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 any
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
Borrowers 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 12.6. Amendments.
(a) Except as otherwise expressly provided in this Agreement, any
consent or approval required or permitted by this Agreement or any other Loan
Document to be given by the Lenders may be given, and any term of this Agreement
or of any other Loan Document may be amended, and the performance or observance
by any Borrower or any other Loan Party or any other Subsidiary of any terms of
this Agreement or such other Loan Document 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 a party thereto).
(b) Notwithstanding the foregoing, without the prior written consent of
each Lender adversely affected thereby, no amendment, waiver or consent shall do
any of the following:
(i) increase the Commitments of the Lenders (except for any
increase in the Commitments effectuated pursuant to Section 2.12.) or
subject the Lenders to any additional obligations;
(ii) reduce the principal of, or interest rates that have
accrued or that will be charged on the outstanding principal amount of,
any Loans or other Obligations;
(iii) reduce the amount of any Fees payable hereunder or
postpone any date fixed for payment thereof;
(iv) modify the definition of the term "Termination Date"
(except as contemplated under Section 2.12.) or otherwise postpone any
date fixed for any payment of any principal of, or interest on, any
Loans or any other Obligations (including the waiver of any Default or
Event of Default as a result of the nonpayment of any such Obligations
as and when due);
(v) amend or otherwise modify the provisions of Section 3.2.;
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(vi) modify the definition of the term "Requisite Lenders" or
otherwise 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, including without
limitation, any modification of this Section 12.6. if such modification
would have such effect;
(vii) release any Guarantor from its obligations under the
Guaranty (except as otherwise permitted under Section 7.12.(b));
(viii) amend or otherwise modify the provisions of Section
2.11.; or
(ix) increase the number of Interest Periods permitted with
respect to Loans under Section 2.5.
(c) No amendment, waiver or consent, unless in writing and signed by the
Agent, in such capacity, 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.
(d) 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. Except as otherwise provided in Section 11.5., 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 any 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 Borrowers shall entitle the Borrowers to any other or further
notice or demand in similar or other circumstances.
Section 12.7. Nonliability of Agent and Lenders.
The relationship between the Borrowers, 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 Borrowers 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, any Borrower, any other Loan Party or any other Subsidiary. Neither
the Agent nor any Lender undertakes any responsibility to the Borrowers to
review or inform the Borrowers of any matter in connection with any phase of the
Borrowers' business or operations.
Section 12.8. Confidentiality.
The Agent and each Lender shall use reasonable efforts to assure that
information about Borrowers, the other Loan Parties and the other Subsidiaries,
and the Properties thereof and their operations, affairs and financial
condition, not generally disclosed to the public, which is furnished to the
Agent or any Lender pursuant to the provisions of this Agreement or any other
Loan Document, is used only for the purposes of this Agreement and the other
Loan Documents
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and shall not be divulged to any Person other than the Agent, the Lenders, and
their respective agents who are actively and directly participating in the
evaluation, administration or enforcement of the Loan Documents and other
transactions between the Agent or such Lender, as applicable, and the Borrowers,
but in any event the Agent and the Lenders may make disclosure: (a) to any of
their respective affiliates (provided they shall agree to keep such information
confidential in accordance with the terms of this Section); (b) as reasonably
requested by any potential or actual 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 or as
otherwise required by Applicable Law; (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) after the happening
and during the continuance of an Event of Default, 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; (f) upon the Borrowers' prior consent
(which consent shall not be unreasonably withheld), to any contractual
counter-parties to any swap or similar hedging agreement or to any rating
agency; and (g) to the extent such information (x) becomes publicly available
other than as a result of a breach of this Section actually known to such Lender
to be such a breach or (y) becomes available to the Agent or any Lender on a
nonconfidential basis from a source other than any Borrower or any Affiliate.
Notwithstanding the foregoing, the Agent and each Lender may disclose any such
confidential information, without notice to any Borrower or any other Loan
Party, to Governmental Authorities in connection with any regulatory examination
of the Agent or such Lender or in accordance with the regulatory compliance
policy of the Agent or such Lender.
Section 12.9. Indemnification.
(a) The Borrowers shall and hereby agree to indemnify, defend and hold
harmless the Agent, each of the Lenders, any affiliate of the Agent or any
Lender, and their respective directors, officers, shareholders, agents,
employees and counsel (each referred to herein as an "Indemnified Party") from
and against any and all of the following (collectively, the "Indemnified
Costs"): losses, costs, claims, damages, liabilities, deficiencies, judgments or
reasonable expenses of every kind and nature (including, without limitation,
amounts paid in settlement, court costs and the reasonable 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 3.12. or 4.1. or expressly excluded from the
coverage of such Section 3.12. or 4.1.) incurred by an Indemnified Party in
connection with, arising out of, or by reason of, any suit, cause of action,
claim, arbitration, investigation or settlement, consent decree or other
proceeding (the foregoing referred to herein as an "Indemnity Proceeding") which
is in any way related directly or indirectly to: (i) this Agreement or any other
Loan Document or the transactions contemplated thereby; (ii) the making of any
Loans hereunder; (iii) any actual or proposed use by any Borrower of the
proceeds of the Loans; (iv) the Agent's or any Lender's entering into this
Agreement; (v) the fact that the Agent and the Lenders have established the
credit facility evidenced hereby in favor of the Borrowers; (vi) the fact that
the Agent and the Lenders are
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creditors of the Borrowers and have or are alleged to have information regarding
the financial condition, strategic plans or business operations of the Trust and
the Subsidiaries; (vii) the fact that the Agent and the Lenders are material
creditors of the Borrowers and are alleged to influence directly or indirectly
the business decisions or affairs of the Borrowers and the other 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; (ix)
any civil penalty or fine assessed by the OFAC against, and all reasonable costs
and expenses (including counsel fees and disbursements) incurred in connection
with defense thereof by, the Agent or any Lender as a result of conduct of any
Borrower, any other Loan Party or any Subsidiary that violates a sanction
enforced by the OFAC; or (x) any violation or non-compliance by any 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 Trust or its Subsidiaries (or its
respective properties) (or the Agent and/or the Lenders as successors to any
Borrower) to be in compliance with such Environmental Laws; provided, however,
that the Borrowers shall not be obligated to indemnify any Indemnified Party for
any acts or omissions of such Indemnified Party in connection with matters
described in this subsection to the extent arising from the gross negligence or
willful misconduct of such Indemnified Party, as determined by a court of
competent jurisdiction in a final, non-appealable judgment.
(b) The Borrowers' indemnification obligations under this Section 12.9.
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 regard, this indemnification shall cover all Indemnified
Costs of any Indemnified Party in connection with any deposition of any
Indemnified Party or compliance with any subpoena (including any subpoena
requesting the production of documents). This indemnification shall, among other
things, apply to any Indemnity Proceeding commenced by other creditors of any
Borrower or any Subsidiary, any shareholder of any Borrower or any Subsidiary
(whether such shareholder(s) are prosecuting such Indemnity Proceeding in their
individual capacity or derivatively on behalf of any Borrower), any account
debtor of any Borrower or any Subsidiary or by any Governmental Authority. If
indemnification is to be sought hereunder by an Indemnified Party, then such
Indemnified Party shall notify the Borrowers of the commencement of any
Indemnity Proceeding; provided, however, that the failure to so notify the
Borrowers shall not relieve the Borrowers from any liability that they may have
to such Indemnified Party pursuant to this Section 12.9.
(c) This indemnification shall apply to any Indemnity Proceeding arising
during the pendency of any bankruptcy proceeding filed by or against any
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 Borrowers at the
request of such Indemnified Party notwithstanding any claim or assertion by the
Borrowers 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 Borrowers if it is actually and finally
determined
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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 Indemnified Costs incurred
by such Indemnified Party shall be reimbursed by the Borrowers. 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 Borrowers hereunder to indemnify and hold harmless
each such Indemnified Party; provided, however, that if (i) the Borrowers are
required to indemnify an Indemnified Party pursuant hereto and (ii) the
Borrowers have provided evidence reasonably satisfactory to such Indemnified
Party that the Borrowers have 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 Borrowers
(which consent shall not be unreasonably withheld or delayed). Notwithstanding
the foregoing, an Indemnified Party may settle or compromise any such Indemnity
Proceeding without the prior written consent of the Borrowers where (x) no
monetary relief is sought against such Indemnified Party in such Indemnity
Proceeding or (y) there is an allegation of a violation of law by such
Indemnified Party.
(f) If and to the extent that the obligations of the Borrowers under
this Section are unenforceable for any reason, the Borrowers hereby agree to
make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under Applicable Law.
(g) The Borrowers' obligations under this Section 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 other of their obligations set forth in this Agreement or any other Loan
Document to which it is a party.
Section 12.10. 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 two sentences) 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 3.12., 4.1., 4.4., 11.7., 12.2.
and 12.9. and any other provision of this Agreement and the other Loan
Documents, and the provisions of Section 12.4., 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.
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Section 12.11. Severability of Provisions.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating the
remainder of such provision or the remaining provisions or affecting the
validity or enforceability of such provision in any other jurisdiction.
Section 12.12. 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 12.13. Patriot Act.
The Lenders and the Agent each hereby notifies the Borrowers that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), it is required to obtain, verify and record
information that identifies the Borrowers, which information includes the name
and address of the Borrowers and other information that will allow such Lender
or the Agent, as applicable, to identify the Borrowers in accordance with such
Act.
Section 12.14. 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 12.15. Obligations with Respect to Loan Parties.
The obligations of a 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 such Borrower may have that such Borrower does
not control such Loan Parties.
Section 12.16. 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 Borrowers hereby waive, release, and agree not to xxx
any of them upon, any claim for any special, indirect, incidental, or
consequential damages suffered or incurred by any 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 Borrowers hereby waive, release, and agree 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.
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Section 12.17. Entire Agreement.
This Agreement 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 12.18. Construction.
The Agent, each 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 Borrowers and the Lenders.
[Signatures on Following Pages]
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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.
LEXINGTON REALTY TRUST
By:/s/ Xxxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
THE LEXINGTON MASTER LIMITED PARTNERSHIP
LEPERCQ CORPORATE INCOME FUND L.P.
LEPERCQ CORPORATE INCOME FUND II L.P.
NET 3 ACQUISITION L.P.
Each By: LEX GP-1 Trust, its sole general partner
By:/s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
[Signatures Continued on Next Page]
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[Signature Page to Credit Agreement dated as of June 1,
2007 with Lexington Realty Trust et al.]
KEYBANK NATIONAL ASSOCIATION, as Agent, as a Lender
By:_____________________________________
Name:______________________________
Title:_____________________________
Commitment Amount:
$225,000,000
Lending Office (all Types of Loans):
KeyBank, National Association
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
[Signatures Continued on Next Page]
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[Signature Page to Credit Agreement dated as of June 1,
2007 with Lexington Realty Trust et al.]
[LENDER]
By:_____________________________________
Name:______________________________
Title:_____________________________
Commitment Amount:
$----------
Lending Office (all Types of Loans):
__________________________________
__________________________________
__________________________________
__________________________________
Attn: _______________
Telephone: (___) __________
Telecopy: (___) __________
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EXHIBIT A
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
THIS ASSIGNMENT AND ACCEPTANCE AGREEMENT dated as of ___________, 200_
(the "Agreement") by and among _________________________ (the "Assignor"),
_________________________ (the "Assignee"), and KEYBANK NATIONAL ASSOCIATION, as
Agent (the "Agent").
WHEREAS, the Assignor is a Lender under that certain Credit Agreement
dated as of June 1, 2007 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), by and among Lexington
Realty Trust, The Lexington Master Limited Partnership, Lepercq Corporate Income
Fund L.P., Lepercq Corporate Income Fund II L.P. and Net 3 Acquisition L.P.
(collectively, the "Borrowers"), the financial institutions party thereto and
their assignees under Section 12.5. thereof (the "Lenders"), the Agent, and the
other parties thereto;
WHEREAS, the Assignor desires to assign to the Assignee, among other
things, all or a portion of the Assignor's Commitment under the Credit
Agreement, all on the terms and conditions set forth herein; and
WHEREAS, the Agent consents to such assignment on the terms and
conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged by the parties hereto, the parties
hereto hereby agree as follows:
Section 1. Assignment.
(a) Subject to the terms and conditions of this Agreement and in
consideration of the payment to be made by the Assignee to the Assignor pursuant
to Section 2 of this Agreement, effective as of ____________, 200_ (the
"Assignment Date"), the Assignor hereby irrevocably sells, transfers and assigns
to the Assignee, without recourse, a $__________ interest (such interest being
the "Assigned Commitment") in and to the Assignor's Commitment and all of the
other rights and obligations of the Assignor under the Credit Agreement, the
Assignor's Note and the other Loan Documents (representing ______% in respect of
the aggregate amount of all Lenders' Commitments), including without limitation,
a principal amount of outstanding Loans equal to $_________ and all voting
rights of the Assignor associated with the Assigned Commitment, all rights to
receive interest on such amount of Loans and all facility and other Fees with
respect to the Assigned Commitment and other rights of the Assignor under the
Credit Agreement and the other Loan Documents with respect to the Assigned
Commitment. The Assignee, subject to the terms and conditions hereof, hereby
assumes all obligations of the Assignor as a Lender with respect to the Assigned
Commitment, which obligations shall include, but shall not be limited to, the
obligation to make Loans to the Borrowers with respect to the Assigned
Commitment and the obligation to indemnify the Agent as provided in the Credit
Agreement (the foregoing enumerated obligations, together with all other similar
obligations more particularly set forth in the Credit Agreement and the other
Loan Documents, collectively, the "Assigned Obligations"). The Assignor shall
have no further duties or obligations with
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respect to, and shall have no further interest in, the Assigned Obligations or
the Assigned Commitment from and after the Assignment Date.
(b) The assignment by the Assignor to the Assignee hereunder is without
recourse to the Assignor. The Assignee makes and confirms to the Agent, the
Assignor, and the other Lenders all of the representations, warranties and
covenants of a Lender under Article XI. of the Credit Agreement. Not in
limitation of the foregoing, the Assignee acknowledges and agrees that, except
as set forth in Section 4 below, the Assignor is making no representations or
warranties with respect to, and the Assignee hereby releases and discharges the
Assignor for any responsibility or liability for: (i) the present or future
solvency or financial condition of any Borrower, any other Loan Party or any
other Subsidiary, (ii) any representations, warranties, statements or
information made or furnished by any Borrower, any other Loan Party or any other
Subsidiary in connection with the Credit Agreement or otherwise, (iii) the
validity, efficacy, sufficiency, or enforceability of the Credit Agreement, any
other Loan Document or any other document or instrument executed in connection
therewith, or the collectibility of the Assigned Obligations, (iv) the
perfection, priority or validity of any Lien with respect to any collateral at
any time securing the Obligations or the Assigned Obligations under the Notes or
the Credit Agreement and (v) the performance or failure to perform by any
Borrower or any other Loan Party of any obligation under the Credit Agreement or
any other Loan Document to which it is a party. Further, the Assignee
acknowledges that it has, independently and without reliance upon the Agent, or
any affiliate or subsidiary thereof, the Assignor or any other Lender and based
on the financial statements supplied by the Borrowers and such other documents
and information as it has deemed appropriate, made its own credit and legal
analysis and decision to become a Lender under the Credit Agreement. The
Assignee also acknowledges that it will, independently and without reliance upon
the Agent, the Assignor or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement or
any other Loan Documents or pursuant to any other obligation. Except as
expressly provided in the Credit Agreement, the Agent shall have no duty or
responsibility whatsoever, either initially or on a continuing basis, to provide
the Assignee with any credit or other information with respect to any Borrower
or any other Loan Party or to notify the Assignee of any Default or Event of
Default. The Assignee has not relied on the Agent as to any legal or factual
matter in connection therewith or in connection with the transactions
contemplated thereunder.
Section 2. Payment by Assignee. In consideration of the assignment made
pursuant to Section 1 of this Agreement, the Assignee agrees to pay to the
Assignor on the Assignment Date, such amount as they may agree.
Section 3. Payments by Assignor. The Assignor agrees to pay to the Agent
on the Assignment Date the administration fee, if any, payable under the
applicable provisions of the Credit Agreement.
Section 4. Representations and Warranties of Assignor. The Assignor
hereby represents and warrants to the Assignee that (a) as of the Assignment
Date (i) the Assignor is a Lender under the Credit Agreement having a Commitment
under the Credit Agreement (without reduction by any assignments thereof which
have not yet become effective), equal to $____________ [and $__________,
respectively], and that the Assignor is not in default of its
A-2
obligations under the Credit Agreement; and (ii) the outstanding balance of
Loans owing to the Assignor (without reduction by any assignments thereof which
have not yet become effective) is $____________; and (b) it is the legal and
beneficial owner of the Assigned Commitment which is free and clear of any
adverse claim created by the Assignor.
Section 5. Representations, Warranties and Agreements of Assignee. The
Assignee (a) represents and warrants that it is (i) legally authorized to enter
into this Agreement, (ii) an "accredited investor" (as such term is used in
Regulation D of the Securities Act) and (iii) an Eligible Assignee; (b) confirms
that it has received a copy of the Credit Agreement, together with copies of the
most recent financial statements delivered in connection therewith or pursuant
thereto and such other documents and information (including without limitation
the Loan Documents) as it has deemed appropriate to make its own credit analysis
and decision to enter into this Agreement; (c) appoints and authorizes the Agent
to take such action as contractual representative on its behalf and to exercise
such powers under the Loan Documents as are delegated to the Agent by the terms
thereof together with such powers as are reasonably incidental thereto; and (d)
agrees that, if not already a Lender and to the extent of the Assigned
Commitment, it will become a party to and shall be bound by the Credit Agreement
and the other Loan Documents to which the other Lenders are a party on the
Assignment Date and will perform in accordance therewith all of the obligations
which are required to be performed by it as a Lender with respect to the
Assigned Commitment.
Section 6. Recording and Acknowledgment by the Agent. Following the
execution of this Agreement, the Assignor will deliver to the Agent (a) a duly
executed copy of this Agreement for acknowledgment and recording by the Agent
and (b) the Assignor's Note. Upon such acknowledgment and recording, from and
after the Assignment Date, the Agent shall make all payments in respect of the
interest assigned hereby (including payments of principal, interest, Fees and
other amounts) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement for periods prior
to the Assignment Date directly between themselves.
Section 7. Addresses. The Assignee specifies as its address for notices
and its Lending Office for all Loans, the offices set forth on Schedule 1
attached hereto.
Section 8. Payment Instructions. All payments to be made to the Assignee
under this Agreement by the Assignor, and all payments to be made to the
Assignee under the Credit Agreement, shall be made as provided in the Credit
Agreement in accordance with the instructions set forth on Schedule 1 attached
hereto or as the Assignee may otherwise notify the Agent.
Section 9. Effectiveness of Assignment. This Agreement, and the
assignment and assumption contemplated herein, shall not be effective until (a)
this Agreement is executed and delivered by each of the Assignor, the Assignee,
the Agent, and if required under Section 12.5.(d) of the Credit Agreement, the
Borrowers, and (b) the payment to the Assignor of the amounts, if any, owing by
the Assignee pursuant to Section 2 hereof and (c) the payment to the Agent of
the amounts, if any, owing by the Assignor pursuant to Section 3 hereof. Upon
recording and acknowledgment of this Agreement by the Agent, from and after the
Assignment Date, (i) the Assignee shall be a party to the Credit Agreement with
respect to the Assigned
A-3
Commitment and have the rights and obligations of a Lender thereunder to the
extent of the Assigned Commitment and (ii) the Assignor shall relinquish its
rights (except as otherwise provided in Section 12.10. of the Credit Agreement)
and be released from its obligations under the Credit Agreement with respect to
the Assigned Commitment; provided, however, that if the Assignor does not assign
its entire interest under the Loan Documents, it shall remain a Lender entitled
to all of the benefits and subject to all of the obligations thereunder with
respect to its Commitment.
Section 10. 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 11. Counterparts. This Agreement may be executed in any number
of counterparts each of which, when taken together, shall constitute one and the
same agreement.
Section 12. Headings. Section headings have been inserted herein for
convenience only and shall not be construed to be a part hereof.
Section 13. Amendments; Waivers. This Agreement may not be amended,
changed, waived or modified except by a writing executed by the Assignee and the
Assignor; provided, however, any amendment, waiver or consent which shall affect
the rights or duties of the Agent under this Agreement shall not be effective
unless signed by the Agent.
Section 14. Entire Agreement. This Agreement embodies the entire
agreement between the Assignor and the Assignee with respect to the subject
matter hereof and supersedes all other prior arrangements and understandings
relating to the subject matter hereof.
Section 15. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
Section 16. Definitions. Terms not otherwise defined herein are used
herein with the respective meanings given them in the Credit Agreement.
[Include this Section only if Borrowers' consent is required under
Section 12.5.(d) Section 17. Agreements of the Borrowers. The Borrowers hereby
agree that the Assignee shall be a Lender under the Credit Agreement having a
Commitment equal to the Assigned Commitment. The Borrowers agree that the
Assignee shall have all of the rights and remedies of a Lender under the Credit
Agreement and the other Loan Documents, including, but not limited to, the right
of a Lender to receive payments of principal and interest with respect to the
Assigned Obligations, and to the Loans made by the Lenders after the date hereof
and to receive the commitment and other Fees payable to the Lenders as provided
in the Credit Agreement. Further, the Assignee shall be entitled to the
indemnification provisions from the Borrowers in favor of the Lenders as
provided in the Credit Agreement and the other Loan Documents. The Borrowers
further agree, upon the execution and delivery of this Agreement, to execute in
favor of the Assignee, and if applicable the Assignor, Notes as required by
Section 12.5.(d) of the Credit Agreement. Upon receipt by the Assignor of the
amounts due the Assignor under Section 2, the Assignor agrees to surrender to
the Borrowers such Assignor's Notes.]
A-4
[Signatures on Following Pages]
A-5
IN WITNESS WHEREOF, the parties hereto have duly executed this
Assignment and Acceptance Agreement as of the date and year first written above.
ASSIGNOR:
[NAME OF ASSIGNOR]
By:_____________________________________
Name:______________________________
Title:_____________________________
ASSIGNEE:
[NAME OF ASSIGNEE]
By:_____________________________________
Name:______________________________
Title:_____________________________
Accepted as of the date first written above.
AGENT:
KEYBANK NATIONAL ASSOCIATION, as Agent
By:_________________________________
Name:__________________________
Title:_________________________
[Signatures Continued on Following Page]
A-6
[Include signature of the Borrower Representative
only if required under Section 12.5.(d) of the
Credit Agreement]
Agreed and consented to as of the
date first written above.
BORROWERS:
LEXINGTON REALTY TRUST, as Borrower
Representative on its own behalf and on behalf
of the other Borrowers
By:_________________________________
Name:__________________________
Title:_________________________
A-7
SCHEDULE 1
Information Concerning the Assignee
Notice Address: _____________________________
_____________________________
_____________________________
Telephone No.:________
Telecopy No.:________________
Lending Office:
_____________________________
_____________________________
_____________________________
Telephone No.:________
Telecopy No.:________________
Payment Instructions: _____________________________
_____________________________
A-8
EXHIBIT B
FORM OF NOTICE OF BORROWING
____________, 200_
KeyBank, National Association, as Agent
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of June 1,
2007 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Lexington Realty Trust, The
Lexington Master Limited Partnership, Lepercq Corporate Income Fund L.P.,
Lepercq Corporate Income Fund II L.P. and Net 3 Acquisition L.P. (collectively,
the "Borrowers"), the financial institutions party thereto and their assignees
under Section 12.5. thereof (the "Lenders"), KeyBank National Association, as
Agent (the "Agent"), and the other parties thereto. Capitalized terms used
herein, and not otherwise defined herein, have their respective meanings given
them in the Credit Agreement.
1. Pursuant to Section 2.1.(b) of the Credit Agreement, the
Borrowers hereby request that the Lenders make Loans to the
Borrowers in an aggregate principal amount equal to
$___________________.
2. The Borrowers request that such Loans be made available to the
Borrowers on ____________, 200_.
3. The Borrowers hereby request that the requested Loans all be of
the following Type:
[Check one box only]
|_| Base Rate Loans
|_| LIBOR Loans, each with an initial Interest Period for a
duration of:
[Check one box only] |_| 1 month
|_| 2 months
|_| 3 months
|_| 6 months
4. The Borrowers request that the proceeds of this borrowing of
Loans be made available to the Borrowers by
____________________________.
B-1
The Borrowers hereby certify to the Agent and the Lenders that as of the
date hereof and as of the date of the making of the requested Loans and after
giving effect thereto, (a) no Default or Event of Default exists or will exist
immediately after giving effect to the requested Loans, and (b) the
representations and warranties made or deemed made by the Borrowers and each
other Loan Party in the Loan Documents to which any of them is a party are and
shall be true and correct in all material respects, 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
correct in all material respects on and as of such earlier date) and except for
changes in factual circumstances not prohibited under the Loan Documents. In
addition, the Borrowers certify to the Agent and the Lenders that all conditions
to the making of the requested Loans contained in Article V. of the Credit
Agreement will have been satisfied (or waived in accordance with the applicable
provisions of the Loan Documents) at the time such Loans are made.
If notice of the requested borrowing of Loans was previously given by
telephone, this notice is to be considered the written confirmation of such
telephone notice required by Section 2.1.(b) of the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Notice of Borrowing as of the date first written above.
LEXINGTON REALTY TRUST, as Borrower
Representative on its own behalf and on behalf
of the other Borrowers
By: ________________________________
Name:__________________________
Title:_________________________
B-2
EXHIBIT C
FORM OF NOTICE OF CONTINUATION
____________, 200_
KeyBank, National Association, as Agent
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of June 1,
2007 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Lexington Realty Trust, The
Lexington Master Limited Partnership, Lepercq Corporate Income Fund L.P.,
Lepercq Corporate Income Fund II L.P. and Net 3 Acquisition L.P. (collectively,
the "Borrowers"), the financial institutions party thereto and their assignees
under Section 12.5. thereof (the "Lenders"), KeyBank National Association, as
Agent (the "Agent"), and the other parties thereto. Capitalized terms used
herein, and not otherwise defined herein, have their respective meanings given
them in the Credit Agreement.
Pursuant to Section 2.8. of the Credit Agreement, the Borrowers hereby
request a Continuation of a borrowing of Loans under the Credit Agreement, and
in that connection sets forth below the information relating to such
Continuation as required by such Section of the Credit Agreement:
1. The proposed date of such Continuation is ____________, 200__.
2. The aggregate principal amount of Loans subject to the requested
Continuation is $________________________ and was originally
borrowed by the Borrowers on ____________, 200_.
3. The portion of such principal amount subject to such Continuation
is
$____________________________.
4. The current Interest Period for each of the Loans subject to such
Continuation ends on ________________, 200_.
5. The duration of the new Interest Period for each of such Loans or
portion thereof subject to such Continuation is:
[Check one box only] |_| 1 month
|_| 2 months
|_| 3 months
|_| 6 months
C-1
The Borrowers hereby certify to the Agent and the Lenders that as of the
date hereof, as of the proposed date of the requested Continuation, and after
giving effect to such Continuation, no Default or Event of Default exists or
will exist.
If notice of the requested Continuation was given previously by
telephone, this notice is to be considered the written confirmation of such
telephone notice required by Section 2.8. of the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Notice of Continuation as of the date first written above.
LEXINGTON REALTY TRUST, as Borrower
Representative on its own behalf and on behalf
of the other Borrowers
By: ________________________________
Name:__________________________
Title:_________________________
C-2
EXHIBIT D
FORM OF NOTICE OF CONVERSION
____________, 200_
KeyBank, National Association, as Agent
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of June 1,
2007 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Lexington Realty Trust, The
Lexington Master Limited Partnership, Lepercq Corporate Income Fund L.P.,
Lepercq Corporate Income Fund II L.P. and Net 3 Acquisition L.P. (collectively,
the "Borrowers"), the financial institutions party thereto and their assignees
under Section 12.5. thereof (the "Lenders"), KeyBank National Association, as
Agent (the "Agent"), and the other parties thereto. Capitalized terms used
herein, and not otherwise defined herein, have their respective meanings given
them in the Credit Agreement.
Pursuant to Section 2.9. of the Credit Agreement, the Borrowers hereby
request a Conversion of a borrowing of Loans of one Type into Loans of another
Type under the Credit Agreement, and in that connection sets forth below the
information relating to such Conversion as required by such Section of the
Credit Agreement:
1. The proposed date of such Conversion is ______________, 200_.
2. The Loans to be Converted pursuant hereto are currently:
[Check one box only] |_| Base Rate Loans
|_| LIBOR Loans
3. The aggregate principal amount of Loans subject to the requested
Conversion is $_____________________ and was originally borrowed
by the Borrowers on ____________, 200_.
4. The portion of such principal amount subject to such Conversion
is $___________________________.
5. The amount of such Loans to be so Converted is to be converted
into Loans of the following Type:
D-1
[Check one box only]
|_| Base Rate Loans
|_| LIBOR Loans, each with an initial Interest Period for a
duration of:
[Check one box only] |_| 1 month
|_| 2 months
|_| 3 months
|_| 6 months
The Borrowers hereby certify to the Agent and the Lenders that as of the
date hereof and as of the date of the requested Conversion and after giving
effect thereto, (a) no Default or Event of Default exists or will exist
(provided the certification under this clause (a) shall not be made in
connection with the Conversion of a Loan into a Base Rate Loan), and (b) the
representations and warranties made or deemed made by the Borrowers and each
other Loan Party in the Loan Documents to which any of them is a party are and
shall be true and correct in all material respects, 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
correct in all material respects on and as of such earlier date) and except for
changes in factual circumstances not prohibited under the Loan Documents.
If notice of the requested Conversion was given previously by telephone,
this notice is to be considered the written confirmation of such telephone
notice required by Section 2.9. of the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Notice of Conversion as of the date first written above.
LEXINGTON REALTY TRUST, as Borrower
Representative on its own behalf and on behalf
of the other Borrowers
By: ________________________________
Name:__________________________
Title:_________________________
D-2
EXHIBIT E
FORM OF NOTE
$____________________ _______________, 200_
FOR VALUE RECEIVED, each of the undersigned, LEXINGTON REALTY TRUST, a
real estate investment trust formed under the laws of the State of Maryland (the
"Trust"), THE LEXINGTON MASTER LIMITED PARTNERSHIP, a limited partnership
organized under the laws of the State of Delaware ("Lexington"), LEPERCQ
CORPORATE INCOME FUND L.P., a limited partnership formed under the laws of the
State of Delaware ("LCIF"), LEPERCQ CORPORATE INCOME FUND II L.P., a limited
partnership formed under the laws of the State of Delaware ("LCIFII"), and NET 3
ACQUISITION L.P., a limited partnership formed under the laws of the State of
Delaware ("Net 3"; collectively with the Trust, Lexington, LCIF and LCIFII, the
"Borrowers" and each a "Borrower"), hereby jointly and severally promises to pay
to the order of ____________________ (the "Lender"), in care of KeyBank National
Association, as Agent (the "Agent") at KeyBank National Association, as Agent
(the "Agent") at KeyBank, National Association, 000 Xxxxxxxx xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, or at such other address as may be specified in writing by
the Agent to the Borrowers, the principal sum of ________________ AND ____/100
DOLLARS ($____________) (or such lesser amount as shall equal the aggregate
unpaid principal amount of Loans made by the Lender to the Borrowers under the
Credit Agreement (as herein defined)), on the dates and in the principal amounts
provided in the Credit Agreement, and to pay interest on the unpaid principal
amount owing hereunder, at the rates and on the dates provided in the Credit
Agreement.
The date and amount of each Loan made by the Lender to the Borrowers,
and each payment made on account of the principal thereof, shall be recorded by
the Lender on its books and, prior to any transfer of this Note, endorsed by the
Lender on the schedule attached hereto or any continuation thereof, provided
that the failure of the Lender to make any such recordation or endorsement shall
not affect the obligations of the Borrowers to make a payment when due of any
amount owing under the Credit Agreement or hereunder.
This Note is one of the Notes referred to in the Credit Agreement dated
as of June 1, 2007 (as amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"), by and among the Borrowers, the
financial institutions party thereto and their assignees under Section 12.5.
thereof (the "Lenders"), the Agent, and the other parties thereto. Capitalized
terms used herein, and not otherwise defined herein, have their respective
meanings given them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Loans
upon the terms and conditions specified therein.
E-1
Except as permitted by Section 12.5.(d) of the Credit Agreement, this
Note may not be assigned by the Lender to any Person.
THIS NOTE 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.
The Borrowers hereby waive presentment for payment, demand, notice of
demand, notice of non-payment, protest, notice of protest and all other similar
notices.
Time is of the essence for this Note.
THE OBLIGATIONS OF THE BORROWERS UNDER THIS NOTE SHALL BE JOINT AND
SEVERAL, AND ACCORDINGLY, EACH BORROWER CONFIRMS THAT IT IS LIABLE FOR THE FULL
AMOUNT OF THE OBLIGATIONS OF EACH OF THE OTHER BORROWERS HEREUNDER.
IN WITNESS WHEREOF, the undersigned has executed and delivered this Note
under seal as of the date first written above.
LEXINGTON REALTY TRUST
By:_____________________________________
Name:______________________________
Title:_____________________________
THE LEXINGTON MASTER LIMITED PARTNERSHIP
LEPERCQ CORPORATE INCOME FUND L.P.
LEPERCQ CORPORATE INCOME FUND II L.P.
NET 3 ACQUISITION L.P.
Each By: LEX GP-1 Trust, its sole general partner
By:_________________________________
Name:__________________________
Title:_________________________
E-2
SCHEDULE OF LOANS
This Note evidences Loans made under the within-described Credit
Agreement to the Borrowers, on the dates and in the principal amounts set forth
below, subject to the payments and prepayments of principal set forth below:
Principal Amount Unpaid
Date of Amount of Paid or Principal Notation
Loan Loan Prepaid Amount Made By
---- ---- ------- ------ -------
E-3
EXHIBIT F
FORM OF OPINION OF COUNSEL
[LETTERHEAD OF COUNSEL TO THE LOAN PARTIES]
June 1, 2007
KeyBank, National Association, as Agent
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
The Lenders party to the Credit Agreement
referred to below
Ladies and Gentlemen:
We have acted as counsel to Lexington Realty Trust, a real estate
investment trust formed under the laws of the State of Maryland (the "Trust"),
The Lexington Master Limited Partnership, a limited partnership organized under
the laws of the State of Delaware ("Lexington"), Lepercq Corporate Income Fund
L.P., a limited partnership formed under the laws of the State of Delaware
("LCIF"), Lepercq Corporate Income Fund II L.P., a limited partnership formed
under the laws of the State of Delaware ("LCIFII") and Net 3 Acquisition L.P., a
limited partnership formed under the laws of the State of Delaware ("Net 3";
collectively with the Trust, Lexington, LCIF and LCIFII, the "Borrowers" and
each a "Borrower"), in connection with the negotiation, execution and delivery
of that certain Credit Agreement dated as of June 1, 2007 (the "Credit
Agreement"), by and among the Borrowers, the financial institutions party
thereto and their assignees under Section 12.5. thereof (the "Lenders"), KeyBank
National Association, as Agent (the "Agent"), and the other parties thereto. We
have also acted as counsel to each of the Guarantors listed on Schedule 1
attached hereto (the "Guarantors"; together with the Borrowers, the "Loan
Parties"), in connection with the Guaranty and the other Loan Documents
identified below to which they are party. Capitalized terms not otherwise
defined herein have the respective meaning given them in the Credit Agreement.
In these capacities, we have reviewed executed copies of the following:
(a) the Credit Agreement;
(b) the Notes;
(c) the Guaranty; and
F-1
(d) [list other applicable Loan Documents].
The documents and instruments set forth in items (a) through (d) above are
referred to herein as the "Loan Documents".
In addition to the foregoing, we have reviewed the [articles or
certificate of incorporation, by-laws, declaration of trust, partnership
agreement and limited liability company operating agreement, as applicable,] of
each Loan Party and certain resolutions of the board of trustees or directors,
as applicable, of each Loan Party (collectively, the "Organizational Documents")
and have also examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, and other instruments,
and made such other investigations of law and fact, as we have deemed necessary
or advisable for the purposes of rendering this opinion. In our examination of
documents, we assumed the genuineness of all signatures on documents presented
to us as originals (other than the signatures of officers of the Loan Parties)
and the conformity to originals of documents presented to us as conformed or
reproduced copies.
Based upon the foregoing, and subject to all of the qualifications and
assumptions set forth herein, we are of the opinion that:
1. Each Loan Party is a [corporation, trust, partnership or limited
liability company, as applicable,] duly organized or formed, validly existing
and in good standing under the laws of the State of its organization or
formation and has the power to execute and deliver, and to perform its
obligations under, the Loan Documents to which it is a party, to own and use its
assets, and to conduct its business as presently conducted. Each Loan Party is
qualified to transact business as a foreign [corporation, trust, partnership or
limited liability company, as applicable,] in the indicated jurisdictions set
forth on Schedule I attached hereto.
2. Each Loan Party has duly authorized the execution and delivery of the
Loan Documents to which it is a party and the performance by such Loan Party of
all of its obligations under each such Loan Document.
3. Each Loan Party has duly executed and delivered the Loan Documents to
which it is a party.
4. Each Loan Document is a valid and binding obligation of each Loan
Party which is a party thereto, enforceable against each such Loan Party in
accordance with its terms, except as such enforceability may be limited by: (a)
applicable bankruptcy, insolvency, reorganization, moratorium, arrangement or
similar laws relating to or affecting the enforcement of creditors' rights
generally and (b) the fact that equitable remedies or relief (including, but not
limited to, the remedy of specific performance) are subject to the discretion of
the court before which any such remedies or relief may be sought.
5. The execution and delivery by each Loan Party of the Loan Documents
to which it is a party do not, and if each Loan Party were now to perform its
obligations under such Loan Documents, such performance would not, result in
any:
(a) violation of such Loan Party's Organizational Documents;
F-2
(b) violation of any existing federal or state constitution,
statute, regulation, rule, order, or law to which such Loan Party or its
assets are subject;
(c) breach or violation of or default under, any agreement,
instrument, indenture or other document evidencing any indebtedness for
money borrowed or any other material agreement to which, to our
knowledge, such Loan Party is bound or under which a Loan Party or its
assets is subject;
(d) creation or imposition of a lien or security interest in, on
or against the assets of such Loan Party under any agreement,
instrument, indenture or other document evidencing any indebtedness for
money borrowed or any other material agreement to which, to our
knowledge, such Loan Party is bound or under which a Loan Party or its
assets is subject; or
(e) violation of any judicial or administrative decree, writ,
judgment or order to which, to our knowledge, such Loan Party or its
assets are subject.
6. The execution, delivery and performance by each Loan Party of each
Loan Document to which it is a party, and the consummation of the transactions
thereunder, do not and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any Governmental
Authority of the United States of America or the States of ___________,
___________ or ___________.
7. To our knowledge, there are no judgments outstanding against any of
the Loan Parties or affecting any of their respective assets, nor is there any
litigation or other proceeding against any of the Loan Parties or its assets
pending or overtly threatened, could reasonably be expected to have a materially
adverse effect on (a) the business, assets, liabilities, condition (financial or
otherwise), results of operations or business prospects of any Borrower or any
other Loan Party or (b) the validity or enforceability of any of the Loan
Documents.
8. None of the Loan Parties is, or, after giving effect to any Loan will
be, subject to regulation under the Public Utility Holding Company Act of 1935,
the Federal Power Act or the Investment Company Act of 1940 or to any federal or
state statute or regulation limiting its ability to incur indebtedness for
borrowed money.
9. Assuming that the Borrowers apply the proceeds of the Loans as
provided in the Credit Agreement, the transactions contemplated by the Loan
Documents do not violate the provisions of Regulations T, U or X of the Board of
Governors of the Federal Reserve System of the United States of America.
10. The consideration to be paid to the Agent and the Lenders for the
financial accommodations to be provided to the Loan Parties pursuant to the
Credit Agreement does not violate any law of the States of New York or
____________ relating to interest and usury.
This opinion is limited to the laws of the States of _____________,
_____________ and ____________ and the federal laws of the United States of
America, and we express no opinions with respect to the law of any other
jurisdiction.
F-3
[Other Customary Qualifications/Assumptions/Limitations]
This opinion is furnished to you solely for your benefit in connection
with the consummation of the transactions contemplated by the Credit Agreement
and may not be relied upon by any other Person, other than an Assignee of a
Lender, or for any other purpose without our express, prior written consent.
Very truly yours,
[NAME OF LAW FIRM]
By:_________________________________
A Partner
F-4
SCHEDULE 1
Guarantors
---------------- -------------------------------- ------------------------------
Name Jurisdiction of Formation Jurisdictions of Foreign
Qualification
---------------- -------------------------------- ------------------------------
---------------- -------------------------------- ------------------------------
---------------- -------------------------------- ------------------------------
---------------- -------------------------------- ------------------------------
F-5
EXHIBIT G
FORM OF COMPLIANCE CERTIFICATE
_______________, 200_
KeyBank, National Association, as Agent
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of June 1,
2007 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Lexington Realty Trust, The
Lexington Master Limited Partnership, Lepercq Corporate Income Fund L.P.,
Lepercq Corporate Income Fund II L.P. and Net 3 Acquisition L.P. (collectively,
the "Borrowers"), the financial institutions party thereto and their assignees
under Section 12.5. thereof (the "Lenders"), KeyBank National Association, as
Agent (the "Agent"), and the other parties thereto. Capitalized terms used
herein, and not otherwise defined herein, have their respective meanings given
them in the Credit Agreement.
Pursuant to Section 8.3. of the Credit Agreement, the undersigned hereby
certifies to the Agent and the Lenders as follows:
(1) The undersigned is the _____________________ of the Trust.
(2) The undersigned has examined the books and records of the Trust
and has conducted such other examinations and investigations as are reasonably
necessary to provide this Compliance Certificate.
(3) To the best of the undersigned's knowledge, information and
belief after due inquiry, no Default or Event of Default exists [if such is not
the case, specify such Default or Event of Default and its nature, when it
occurred and whether it is continuing and the steps being taken by the Borrowers
with respect to such event, condition or failure].
(4) The representations and warranties made or deemed made by the
Borrowers and the other Loan Parties in the Loan Documents to which any is a
party, are true and correct in all material respects on and as of the date
hereof 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 correct in all material respects on and as
of such earlier date) and except for changes in factual circumstances not
prohibited under the Loan Documents.
G-1
(5) Attached hereto as Schedule 1 are reasonably detailed
calculations establishing whether or not the Trust and its Subsidiaries were in
compliance with the covenants contained in Sections 9.1., 9.2. and 9.4. of the
Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
the date first above written.
Name:_______________________________
Title:______________________________
G-2
Schedule 1
[Calculations to be Attached]
G-3
EXHIBIT H
FORM OF GUARANTY
GUARANTY
GUARANTY, dated as of June 1, 2007 (the "Guaranty"), by each of the
undersigned GUARANTY PARTIES listed on Exhibit A attached hereto (collectively,
the "Guarantors"), in favor of KEYBANK NATIONAL ASSOCIATION, a national banking
association having an address at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, as administrative agent (KeyBank National Association, in such capacity
as administrative agent, hereinafter referred to as "Administrative Agent") for
a syndicate of lenders (singly and collectively, the "Lenders") as specifically
provided in the Loan Agreement (as defined below).
INTRODUCTORY STATEMENT
WHEREAS, pursuant to that certain Credit Agreement dated as of June 1,
2007 (as same may be amended, restated, supplemented or otherwise modified from
time to time, the "Loan Agreement") entered into by and among (i) Lexington
Realty Trust ("LRT"), a real estate investment trust organized under the laws of
the State of Maryland, The Lexington Master Limited Partnership, Lepercq
Corporate Income Fund L.P., Lepercq Corporate Income Fund II L.P., and Net 3
Acquisition L.P., each a Delaware limited partnership (together with LRT,
jointly, severally and collectively, the "Borrower"), (ii) the Administrative
Agent, and (iii) the Lenders, the Administrative Agent and the Lenders may make
loans to the Borrower up the aggregate principal amount of $300,000,000.00 (the
"Loan") upon the terms and subject to the conditions set forth therein.
Capitalized terms used herein and not otherwise defined herein, but defined in
the Loan Agreement, shall have the meaning set forth in the Loan Agreement.
WHEREAS, the Guarantors have substantial financial dealings with certain
of the Borrowers and are affiliated with certain of the Borrowers (either by
ownership, contractual relationship, employment or other meaningful business
relationship), and the lending of money and other extensions of the Obligations
by the Administrative Agent and the Lenders to the Borrower will enhance and
benefit the business activities and interests of the Guarantors.
WHEREAS, as a condition to making the Loans, the Administrative Agent
and the Lenders have required the Guarantors to execute and deliver this
Guaranty, guaranteeing the payment and performance of all Obligations arising
under or pursuant to the Loan Agreement.
WHEREAS, the Guarantors have executed and delivered certain Security
Documents, each dated as of the date hereof, in favor of the Administrative
Agent, for its own benefit and the benefit of the other Lenders, as described in
Schedule 1 hereto to secure the Guarantors' obligations hereunder.
NOW THEREFORE, in consideration of the premises and in order to induce
the Administrative Agent and the Lenders to make the Loans and extend other
financial accommodations under the Loan Agreement, the Guarantors hereby agree
as follows:
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Section 1. Guaranty. Each of the Guarantors hereby irrevocably and
unconditionally guarantees, jointly with the other Guarantors and severally, as
a primary obligor and not merely as a surety, the punctual payment when due,
whether at stated maturity, after maturity, by acceleration or otherwise, and
the punctual performance, of all present and future Obligations of the Borrower
under the Loan Agreement and each other Loan Document, each as the same may be
hereafter amended, modified, extended, renewed or recast, together with interest
and other charges thereon, as provided in the Loan Agreement and the Note
executed thereunder (the foregoing being herein referred to as the "Guaranteed
Obligations").
Section 2. Waiver. Each of the Guarantors hereby absolutely,
unconditionally and irrevocably waives, to the fullest extent permitted by law,
(a) promptness, diligence, notice of acceptance and any other notice with
respect to this Guaranty, (b) presentment, demand of payment, protest, notice of
dishonor or nonpayment and any other notice with respect to the Guaranteed
Obligations, (c) any requirement that the Administrative Agent protect, secure,
perfect or insure any security interest or Lien on any property subject thereto
or exhaust any right or take any action against the Borrower or any other Person
or any collateral (other than the Collateral pledged to the Administrative
Agent, for its own benefit and the benefit of the other Lenders, pursuant to the
Security Documents), (d) any and all right to assert any defense (other than the
defense of indefeasible payment), set off, counterclaim or cross claim of any
nature whatsoever with respect to this Guaranty (except as otherwise provided in
Section 20(a)(iii) hereof), the obligations of each Guarantor hereunder or the
obligations of any other person or party relating to this Guaranty or the
obligations of each Guarantor hereunder or otherwise with respect to the
Guaranteed Obligations in any action or proceeding brought by the Administrative
Agent to collect the Guaranteed Obligations or any portion thereof or to enforce
the obligations of each Guarantor under this Guaranty, and (e) any other action,
event or precondition to the enforcement of this Guaranty or the performance by
each Guarantor of its obligations hereunder.
Section 3. Guaranty Absolute.
(a) Each of the Guarantors guarantees that, to the fullest extent
permitted by law, the Guaranteed Obligations will be paid or performed
strictly in accordance with their terms, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Administrative Agent
with respect thereto.
(b) No invalidity, irregularity, voidability, voidness or
unenforceability of the Loan Agreement, the Note, or any other Loan
Document or any other agreement or instrument relating thereto, or of
all or any part of the Guaranteed Obligations or of any security
therefor shall affect, impair or be a defense to this Guaranty.
(c) This Guaranty is one of payment and performance, not
collection, and the obligations of each Guarantor under this Guaranty
are independent of the Guaranteed Obligations, and a separate action or
actions may be brought and prosecuted against each or any Guarantor to
enforce this Guaranty, irrespective of whether any action is brought
against the Borrower or any Affiliate or Subsidiary thereof or whether
the Borrower or any Affiliate or Subsidiary thereof is joined in any
such action or actions.
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(d) The liability of each Guarantor under this Guaranty shall be
absolute and unconditional irrespective of:
(i) any change in the manner, place or terms of payment or
performance, and/or any change or extension of the time of payment or
performance of, renewal or alteration of, any Guaranteed Obligation, any
security therefor, or any liability incurred directly or indirectly in
respect thereof, or any other amendment or waiver of or any consent to
departure from the Loan Agreement or the Note or any other Loan
Document, including any increase in the Guaranteed Obligations resulting
from the extension of additional credit to the Borrower or any
Subsidiary or Affiliate thereof or otherwise;
(ii) any sale, exchange, release, surrender, realization
upon any property by whomsoever at any time pledged or mortgaged to
secure, or howsoever securing, all or any of the Guaranteed Obligations
(other than the Collateral pledged to the Administrative Agent, for its
own benefit and the benefit of the other Lenders, under the Security
Documents), and/or any offset against such Guaranteed Obligations, or
failure to perfect, or continue the perfection of, any Lien in any such
property, or delay in the perfection of any such Lien, or any amendment
or waiver of or consent to departure from any other guaranty for all or
any of the Guaranteed Obligations;
(iii) any exercise or failure to exercise any rights
against the Borrower or any Affiliate or Subsidiary thereof or others
(including any Guarantor);
(iv) any settlement or compromise of any Guaranteed
Obligation, any security therefor or any liability (including any of
those hereunder) incurred directly or indirectly in respect thereof or
hereof;
(v) any manner of application of Collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any Collateral for all or any of the
Guaranteed Obligations or any other assets of the Borrower or any
Affiliate or Subsidiary thereof;
(vi) any change, restructuring or termination of the
existence of the Borrower or any Affiliate or Subsidiary thereof;
(vii) the release of the Borrower or any other party,
other than any Guarantor, now or hereafter liable upon or in respect of
the Loan Documents; or
(viii) any other agreements or circumstance of any nature
whatsoever which might otherwise constitute a defense available to, or a
discharge of, this Guaranty and/or the obligations of any Guarantor
hereunder, or a defense to, or discharge of, the Borrower or any
Affiliate or Subsidiary thereof relating to this Guaranty or the
obligations of any Guarantor hereunder or otherwise with respect to the
Loan or other financial accommodations to the Borrower (other than the
defense of indefeasible payment).
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(e) The Administrative Agent may at any time and from time to
time (whether or not after revocation or termination of this Guaranty)
without the consent of, or notice (except as shall be required by
applicable statute and cannot be waived) to, the Guarantors, and without
incurring responsibility to the Guarantors or impairing or releasing the
obligations of any Guarantor hereunder, apply any sums by whomsoever
paid or howsoever realized to any Guaranteed Obligation regardless of
what Guaranteed Obligations remain unpaid.
(f) This Guaranty shall continue to be effective or be
reinstated, as the case may be, if claim is ever made upon the
Administrative Agent for repayment or recovery of any amount or amounts
received by the Administrative Agent in payment or on account of any of
the Guaranteed Obligations as a result of laws relating to preferences,
fraudulent transfers and fraudulent conveyances, and the Administrative
Agent repays all or part of said amount by reason of any judgment,
decree or order of any court or administrative body having jurisdiction
over the Administrative Agent or its property, or any settlement or
compromise of any such claim effected by the Administrative Agent with
any such claimant (including LRT). In such event each Guarantor agrees
that any such judgment, decree, order, settlement or compromise shall be
binding upon such Guarantor, notwithstanding any revocation hereof or
the cancellation of any note (including the Note) or other instrument
evidencing any Guaranteed Obligation, and each Guarantor shall be and
remain liable to the Administrative Agent hereunder for the amount so
repaid or recovered to the same extent as if such amount had never
originally been received by the Administrative Agent.
Section 4. Continuing Guaranty. This Guaranty is a continuing one and
shall (a) remain in full force and effect until the indefeasible payment and
satisfaction in full of the Guaranteed Obligations, (b) be binding upon each
Guarantor, its successors and assigns, and (c) inure to the benefit of, and be
enforceable by, the Administrative Agent and the Lenders. All obligations to
which this Guaranty applies shall be conclusively presumed to have been created
in reliance hereon.
Section 5. Representations, Warranties and Covenants. Each of the
Guarantors hereby represents, warrants and covenants to and with the
Administrative Agent and the Lenders that:
(a) Each Guarantor has the power to execute and deliver this
Guaranty and to incur and perform its obligations hereunder;
(b) Each Guarantor has duly taken all necessary action to
authorize the execution, delivery and performance of this Guaranty and
to incur and perform its obligations hereunder;
(c) No consent, approval, authorization or other action by, and
no notice to or of, or declaration or filing with, any governmental or
other public body, or any other Person, is required for the due
authorization, execution, delivery and performance by any Guarantor of
this Guaranty or the consummation of the transactions contemplated
hereby;
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(d) The execution, delivery and performance by each Guarantor of
this Guaranty does not and will not, with the passage of time or the
giving of notice or both, violate or otherwise conflict with any term or
provision of any material agreement, instrument, judgment, decree, order
or any statute, rule or governmental regulation applicable to such
Guarantor or result in the creation of any Lien upon any of its
properties or assets pursuant thereto;
(e) This Guaranty has been duly authorized, executed and
delivered by each Guarantor and constitutes the legal, valid and binding
obligation of each Guarantor, and is enforceable against each Guarantor
in accordance with its terms, except as enforcement thereof may be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights
generally, and general principles of equity (regardless of whether such
enforcement is sought in a proceeding in equity or at law); and
(f) The granting of the Loan to the Borrower will constitute a
material economic benefit to each Guarantor.
Section 6. Affirmative Covenants. Each of the Guarantors covenants and
agrees that, from the date hereof and so long as the Loan or the other
Guaranteed Obligations remain outstanding, each such Guarantor shall pay,
perform, observe and otherwise comply with (a) all of the affirmative covenants
set forth in the Loan Agreement that have been made by the Borrower therein with
respect to the Subsidiaries or the Loan Parties, but only to the extent that
such covenants were made with respect to such Guarantor, and (b) all of the
affirmative covenants set forth in the Consent executed and delivered by the
Guarantors.
Section 7. Negative Covenants. Each of the Guarantors covenants and
agrees that, from the date hereof and so long as the Loan or the other
Guaranteed Obligations remain outstanding, no Guarantor shall take any action
(or otherwise suffer or permit to occur any event) contrary to (a) the negative
covenants set forth in the Loan Agreement, as agreed by the Borrower therein
with respect to the Subsidiaries or the Loan Parties, but only to the extent
that such covenants were made with respect to such Guarantor, or (b) the
negative covenants set forth in the Consent executed and delivered by the
Guarantors. Without limiting the generality of the foregoing, each of the
Guarantors covenants and agrees that, from the date hereof and so long as the
Loan or the other Guaranteed Obligations remain outstanding, no Guarantor no
Guarantor shall take any action (or otherwise suffer or permit to occur any
event) contrary to the negative covenants set forth in the Loan Agreement.
Section 8. Expenses. The Guarantors will, upon demand, reimburse the
Administrative Agent for any sums, costs, and expenses which the Administrative
Agent and/or the Lenders may pay or incur pursuant to the provisions of this
Guaranty or in enforcing this Guaranty or in enforcing payment of the Guaranteed
Obligations or otherwise in connection with the provisions hereof, including
court costs, collection charges, and reasonable attorneys' fees, together with
interest thereon as specified in Section 15 hereof.
Section 9. Terms.
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(a) All terms defined in the Uniform Commercial Code of The
Commonwealth of Massachusetts (as amended and in effect from time to
time, the "UCC") and used herein shall have the meanings as defined in
the UCC, unless the context otherwise requires.
(b) The words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation".
(c) All references herein to Sections and subsections shall be
deemed to be references to Sections and subsections of this Guaranty
unless the context shall otherwise require.
Section 10. Amendments and Modification. No provision hereof shall be
modified, altered or limited except by written instrument expressly referring to
this Guaranty and to such provision, and executed by the party to be charged.
Section 11. Waiver of Subrogation Rights. Until such time as all the
Guaranteed Obligations have been indefeasibly satisfied (including the
expiration of any applicable voidable preference period under the federal
bankruptcy laws), each of the Guarantors hereby waives and releases any and all
rights and claims it may now or hereafter have or acquire against the Borrower
that would constitute it a "creditor" of the Borrower for purposes of the
federal bankruptcy laws, including all rights of subrogation against the
Borrower and its property and all rights of indemnification, contribution and
reimbursement from the Borrower and its property, regardless of whether such
rights arise in connection with this Guaranty, by operation of law, pursuant to
contract or otherwise.
Section 12. Remedies Upon Default.
(a) Upon the occurrence and during the continuance of any Event
of Default, in addition to any other rights and remedies which the
Administrative Agent and/or the Lenders may have hereunder or at law,
and not in limitation thereof, the Administrative Agent may, without
notice to or demand upon the Borrower or the Guarantors, declare any
Guaranteed Obligations immediately due and payable, and shall be
entitled to enforce the obligations of the Guarantors hereunder.
(b) The Administrative Agent's rights under this Guaranty shall
be in addition to, and not in limitation of, all of the rights and
remedies of the Administrative Agent and/or the Lenders under the Loan
Documents. All rights and remedies of the Administrative Agent and/or
the Lenders shall be cumulative and may be exercised in such manner and
combination as the Administrative Agent and/or the Lenders,
respectively, may determine.
Section 13. Set-Off. After the occurrence and during the continuance of
any Event of Default, any Accounts, deposits, balances or other sums credited by
or due from the Administrative Agent, any affiliate of the Administrative Agent,
or any of the Lenders, or from any affiliate of any of the Lenders, to any
Guarantor may to the fullest extent not prohibited by applicable law at any time
or from time to time, without regard to the existence, sufficiency or adequacy
of any other collateral, and without notice or compliance with any other
condition
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precedent now or hereafter imposed by statute, rule of law or otherwise, all of
which are hereby waived to the fullest extent permitted by law, be set off,
appropriated and applied by the Administrative Agent against any or all of the
Guaranteed Obligations irrespective of whether demand shall have been made, in
such manner as the Administrative Agent in its sole and absolute discretion may
determine. Within three (3) Business Days of making any such set off,
appropriation or application, the Administrative Agent agrees to notify the
Guarantors thereof, provided the failure to give such notice shall not affect
the validity of such set off or appropriation or application. ANY AND ALL RIGHTS
TO REQUIRE THE ADMINISTRATIVE AGENT, THE DEPOSIT ACCOUNT CO-AGENT OR ANY OF THE
LENDERS TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL
WHICH SECURES THE LOAN, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO
SUCH ACCOUNTS, DEPOSITS, CREDITS OR OTHER PROPERTY OF THE GUARANTORS, ARE HEREBY
KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
Section 14. Statute of Limitations. Any acknowledgment or new promise,
whether by payment of principal or interest or otherwise and whether by the
Borrower or others (including any Guarantor), with respect to any of the
Guaranteed Obligations shall, if the statute of limitations in favor of the
Guarantors against the Administrative Agent shall have commenced to run, toll
the running of such statute of limitations and, if the period of such statute of
limitations shall have expired, prevent the operation of such statute of
limitations.
Section 15. Interest. All amounts payable from time to time by the
Guarantors hereunder shall bear interest at the Default Rate, provided, that
such interest shall not be duplicative of any obligations payable under the Loan
Agreement.
Section 16. Rights and Remedies Not Waived. No act, omission or delay by
the Administrative Agent shall constitute a waiver of its rights and remedies
hereunder or otherwise. No single or partial waiver by the Administrative Agent
of any default hereunder or right or remedy which it may have shall operate as a
waiver of any other default, right or remedy or of the same default, right or
remedy on a future occasion.
Section 17. Admissibility of Guaranty. Each of the Guarantors agrees
that any copy of this Guaranty signed by the Guarantor and transmitted by
telecopier for delivery to the Administrative Agent shall be admissible in
evidence as the original itself in any judicial or administrative proceeding,
whether or not the original is in existence.
Section 18. Notices. All notices, requests and demands to or upon the
Administrative Agent, the Lenders or the Guarantors under this Guaranty shall be
in writing and given as provided in the Loan Agreement (and with respect to the
Guarantors, c/o the Borrower at the address of the Borrower as set forth in the
Loan Agreement).
Section 19. Counterparts. This Guaranty may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original and all of which
shall together constitute one and the same agreement.
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Section 20. CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL; ETC.
(a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY
OR ANY SECURITY DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE
COMMONWEALTH OF MASSACHUSETTS OR OF THE UNITED STATES OF AMERICA FOR THE
DISTRICT OF MASSACHUSETTS, AND, BY EXECUTION AND DELIVERY OF THIS
GUARANTY, EACH GUARANTOR HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION
OF THE AFORESAID COURTS. EACH GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY
AND IRREVOCABLY WAIVES, IN CONNECTION WITH ANY SUCH ACTION OR
PROCEEDING, (i) TRIAL BY JURY, (ii) TO THE EXTENT IT MAY EFFECTIVELY DO
SO UNDER APPLICABLE LAW, ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR
PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS AND (iii) THE RIGHT TO
IMPOSE ANY SET OFF, COUNTERCLAIM OR CROSS CLAIM UNLESS SUCH SET OFF,
COUNTERCLAIM OR CROSS CLAM COULD NOT, BY REASON OF ANY APPLICABLE
FEDERAL OR STATE PROCEDURAL LAWS, BE INTERPOSED, PLEADED OR ALLEGED IN
ANY OTHER ACTION.
(b) Each of the Guarantors irrevocably consents to the service of
process of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by certified mail, postage
prepaid, to such Guarantor at its address determined pursuant to Section
18 hereof.
(c) Nothing herein shall affect the right of the Administrative
Agent to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against any Guarantor in
any other jurisdiction.
(d) Each of the Guarantors hereby waives presentment, notice of
dishonor and protests of all instruments included in or evidencing any
of the Guaranteed Obligations, and any and all other notices and demands
whatsoever (except as expressly provided herein).
Section 21. GOVERNING LAW. THIS GUARANTY, THE SECURITY DOCUMENTS AND THE
GUARANTEED OBLIGATIONS SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS APPLICABLE TO CONTRACTS EXECUTED AND TO BE
PERFORMED IN SUCH STATE, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF.
Section 22. Captions; Separability.
(a) The captions of the Sections and subsections of this Guaranty
have been inserted for convenience only and shall not in any way affect
the meaning or construction of any provision of this Guaranty.
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(b) If any term of this Guaranty shall be held to be invalid,
illegal or unenforceable, the validity of all other terms hereof shall
in no way be affected thereby.
Section 23. Acknowledgment of Receipt. Each of the Guarantors
acknowledges receipt of a copy of this Guaranty and each of the Loan Documents.
Section 24. Entire Agreement. This Guaranty sets forth the entire
agreement and understanding of the Administrative Agent, the Lenders and the
Guarantors with respect to the matters covered hereby and, by accepting this
Guaranty, each of the Guarantors acknowledges that no oral or other
understanding, agreements, representations or warranties have been made and/or
exist with respect to the matters covered by this Guaranty or with respect to
the obligations of the Guarantors hereunder or otherwise, except as specifically
set forth in this Guaranty.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, each of the Guarantors has duly executed or caused
this Guaranty to be duly executed in The Commonwealth of Massachusetts as of the
date first above set forth.
GUARANTORS:
LEXINGTON SOUTHFIELD, LLC, a Delaware limited
liability company
By: ______________________
Name: ______________________
Title: ______________________
LEXINGTON WESTPORT LLC, a Delaware limited
liability company
By: ____________________________
Name: ____________________________
Title: ____________________________
WESTPORT VIEW CORPORATE CENTER L.P., a Delaware
limited partnership
By: Lexington Westport LLC, a Delaware limited
liability company, its general partner
By: ___________________________
Name: ________________________
Title: ________________________
LEXINGTON COLLIERVILLE MANAGER LLC, a Delaware
limited company
By: ___________________________
Name: ________________________
Title: ________________________
LEXINGTON HONOLULU MANAGER LLC, a Delaware
limited company
By: ______________________
Name: ______________________
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Title: ______________________
LEXINGTON TENNESSEE HOLDINGS L.P., a Delaware
limited partnership
By: Lexington Realty Trust, its General
Partner
By: ___________________________
Name: ___________________________
Title: ___________________________
LEX GP-1 TRUST
By: ___________________________
Name: ___________________________
Title: ___________________________
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Exhibit A
Guaranty Parties
LEXINGTON SOUTHFIELD, LLC
LEXINGTON WESTPORT MANAGER LLC
WESTPORT VIEW CORPORATE CENTER L.P.
LEXINGTON COLLIERVILLE MANAGER LLC
LEXINGTON HONOLULU MANAGER LLC
LEXINGTON TENNESSEE HOLDINGS L.P.
LEX GP-1 TRUST
LEX-PROPERTY HOLDINGS LLC
LEXINGTON GP HOLDING LLC
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Schedule 1
Ownership Interest Pledges and Security Agreements, dated as of June 1,
2007, made by LRT, Lepercq Corporate Income Fund L.P. and the Guarantors to and
in favor of the Administrative Agent.
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EXHIBIT I
FORM OF BORROWING BASE CERTIFICATE
June 1, 2007
KeyBank, National Association, as Agent
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of June 1,
2007 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Lexington Realty Trust, The
Lexington Master Limited Partnership, Lepercq Corporate Income Fund L.P.,
Lepercq Corporate Income Fund II L.P. and Net 3 Acquisition L.P. (collectively,
the "Borrowers"), the financial institutions party thereto and their assignees
under Section 12.5. thereof (the "Lenders"), KeyBank National Association, as
Agent (the "Agent"), and the other parties thereto. Capitalized terms used
herein, and not otherwise defined herein, have their respective meanings given
them in the Credit Agreement.
Pursuant to Section 2.1(b) of the Credit Agreement, the undersigned
hereby certifies to the Agent and the Lenders as follows:
(1)____The undersigned is the Senior Vice President of the Trust.
(2)____The undersigned has examined the books and records of the Trust
and has conducted such other examinations and investigations as are reasonably
necessary to provide this Certificate.
(3)____To the best of the undersigned's knowledge, information and
belief after due inquiry, no Default or Event of Default exists [if such is not
the case, specify such Default or Event of Default and its nature, when it
occurred and whether it is continuing and the steps being taken by the Borrowers
with respect to such event, condition or failure].
(4)____The representations and warranties made or deemed made by the
Borrowers and the other Loan Parties in the Loan Documents to which any is a
party, are true and correct in all material respects on and as of the date
hereof 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 correct in all material respects on and as
of such earlier date) and except for changes in factual circumstances not
prohibited under the Loan Documents.
(5)____Attached hereto as Schedule 1 are reasonably detailed
calculations establishing that the Borrowing Base Availability is
$_________________.
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IN WITNESS WHEREOF, the undersigned has executed this certificate as of
the date first above written.
LEXINGTON REALTY TRUST, as Borrower
Representative on its own behalf and on behalf
of the other Borrowers
By: ________________________________
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
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SCHEDULE 1
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EXHIBIT J
ELIGIBLE PROPERTIES
A. ELIGIBILITY REQUIREMENTS FOR PROPERTIES
To be eligible for inclusion in the Borrowing Base Assets Pool, a
Property must have each of the following characteristics:
1. The Borrowers shall have delivered to the Administrative Agent an
Approval Request and all required Credit Underwriting Documents relating to such
Property and the Administrative Agent, in its good faith discretion, shall have
approved such Approval Request on behalf of the Lenders.
2. As of any date of determination, each of the representations and
warranties relating to such Property set forth in Paragraph B below must be true
and correct.
3. As of any date of determination, the Borrower shall have complied
with each of the covenants set forth in Paragraph C below relating to such
Property.
B. SPECIAL REPRESENTATIONS AND WARRANTIES CONCERNING PROPERTIES
As long as the Commitments are outstanding or there remain any
Obligations to be paid or performed under the Credit Agreement or under any
other Loan Document, the Borrowers represent and warrant that as to each
Property:
1. A Property Subsidiary is the sole legal and equitable owner in
fee simple of the Property or a lessee under a valid ground lease of the
Property or a holder of a valid estate for years in respect the Property, free
and clear of all Liens or any ownership interest of any other Person, has full
right, power and authority to own, lease or hold the Property, and all consents
required to transfer ownership of, or leasehold or estate rights in, the
Property to the Property Subsidiary have been obtained.
2. The Property is a Property as to which the Borrowers have
conducted their customary due diligence and review, including inspection of the
Property, and such customary due diligence and review have not revealed facts
that would adversely affect the value of the Property.
3. The Borrowers have complied with all applicable conditions set
forth in the Credit Agreement to the inclusion and retention of the Property in
the Borrowing Base Assets Pool.
4. The Property complies and will continue to comply with all
Environmental Laws and is and will be free of any material structural defect.
5. The Property is located in one of the states of the United States
or the District of Columbia.
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6. The Property is a commercial office, retail or industrial
property or a mixed-use property.
7. All real estate taxes and governmental assessments, or
installments thereof, which would be a lien on the Property and that have become
delinquent in respect of the Property have been paid or an escrow of funds in an
amount sufficient to cover such payments has been established.
8. One or more engineering assessments were performed and prepared
by an independent engineering consultant firm prior to the acquisition of the
Property by the Borrowers or one of their Affiliates, and, except as set forth
in an engineering report prepared in connection with such assessment, a copy of
which has been delivered to the Borrowers, the Property is, to the Borrowers'
knowledge, in good repair, free and clear of any damage that would materially
and adversely affect its value.
9. There is no proceeding pending, and neither the Borrowers nor any
of their Subsidiaries or Affiliates have received notice of any pending or
threatening proceeding for the condemnation of all or any material portion of
the Property.
10. The Borrowers have received an owner's title insurance policy, in
ALTA form or equivalent, (or if such policy has not yet been issued, such
insurance may be evidenced by escrow instructions, a "marked up" pro forma or
specimen policy or title commitment, in either case, marked as binding and
countersigned by the title insurer or its authorized agent at the closing of the
related acquisition) as adopted in the applicable jurisdiction (the "Title
Insurance Policy"), which to the knowledge of the Borrowers, was issued by a
recognized title insurance company qualified to do business in the jurisdiction
where the Property is located and neither the Borrowers nor any of their
Subsidiaries or Affiliates have done, by act or omission, and the Borrowers have
no knowledge of, anything that would impair the coverage under such Title
Insurance Policy. Such Title Insurance Policy has been issued for the benefit of
the Borrowers or the applicable Material Subsidiary or Property Subsidiary , and
contains no material exclusions for, or affirmatively insures against any losses
arising from (other than in jurisdictions in which affirmative insurance is
unavailable) (a) failure to have access to a public road, and (b) material
encroachments of any part of the building thereon over easements.
11. The Property is covered by (a) a fire and extended perils
included within the classification "All Risk of Physical Loss" insurance policy
in an amount (subject to a customary deductible) equal to the replacement cost
of improvements (excluding foundations) located on the Property, and in any
event, the amount necessary to avoid the operation of any co-insurance
provisions; (b) business interruption or rental loss insurance in an amount at
least equal to 12 months of operations of the Property; and (c) comprehensive
general liability insurance against claims for personal and bodily injury, death
or property damage occurring on, in or about the Property in an amount
customarily, but not less than $1 million. All triple net lessees of any
Property located in seismic zone 3 or 4 are required to carry earthquake
insurance if the Probable Maximum Loss ("PML") for such property would exceed
20% of the replacement cost of the insurance. Such determination is the
responsibility of the lessee. Earthquake insurance on the Property must be
obtained by an insurer rated at least "A-:V" (or the equivalent) by A.M. Best
Company or "BBB-" (or the equivalent) from S&P or "Baa3" (or the equivalent)
from Xxxxx'x.
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To the Borrowers' knowledge, the insurer with respect to each policy is
qualified to write insurance in the relevant jurisdiction to the extent
required.
12. There are no material violations of any applicable zoning
ordinances, building codes and land laws applicable to the Property or the use
and occupancy thereof which would have a material adverse effect on the value,
operation or net operating income of the Property.
13. To the knowledge of the Borrowers, based solely on surveys and/or
the title policy referred to herein obtained in connection with the origination
of each loan, none of the material improvements which were included for the
purposes of determining the appraised value of each Property lies outside of the
boundaries and building restriction lines of such property (except such
Properties which are legal non-conforming uses), to an extent which would have a
material adverse affect on the value of the Property and no improvements on
adjoining properties encroached upon the Property to any material and adverse
extent.
14. To the knowledge of the Borrowers, there is no pending action,
suit or proceeding, arbitration or governmental investigation against the owner
of or relating to any Property, an adverse outcome of which could reasonably be
expected to materially and adversely affect the value or current use of such
Property.
15. The Property is either not located in a federally designated
special flood hazard area or, if so located, the Borrowers maintain flood
insurance with respect to such improvements and such policy is in full force and
effect in an amount no less than the lesser of (i) the value of the Property
located in such flood hazard area or (ii) the maximum allowed under the related
federal flood insurance program.
16. The Property is treated as a real estate asset for purposes of
Section 856(c) of the Code, and the interest or other payments payable pursuant
to such security is treated as interest on an obligation secured by a mortgage
on real property or on an interest in real property for purposes of Section
856(c) of the Code.
17. Under the terms of the documents relating to the Property, any
related insurance proceeds or condemnation award will be applied either to the
principal amount outstanding under the loan or to the repair or restoration of
all or part of the Property (except in such cases where a provision entitling
another party to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage lender) in an amount
equal to the greater of (x) the replacement costs for the Property or (y) the
acquisition costs for the Property (subject, in the case of condemnation awards,
to the rights of the lessor in the Ground Lease (as defined in Section 21
below)). As of the Closing Date, neither the Borrowers nor any of their
Subsidiaries or Affiliates has submitted a claim for the repair and restoration
of the Property following the occurrence of a material casualty event.
18. In the case of a Property that constitutes an interest of a
Property Subsidiary as a lessee under a ground lease of a property (a "Ground
Lease") (the term Ground Lease shall mean such ground lease, all written
amendments and modifications, and any related estoppels or agreements from the
ground lessor), but not by the related fee interest in such property (the "Fee
Interest"), the following shall be true and correct:
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(a) There has been no material change in the term of such Ground
Lease, the payment terms under such Ground Lease or any renewal options
under such Ground Lease since its recordation;
(b) Such Ground Lease is not subject to any liens or
encumbrances; and
(c) Such Ground Lease is in full force and effect, and no
material default has occurred under such Ground Lease as of the Closing
Date.
19. There is no mortgage, deed of trust or similar instrument
encumbering the Property.
20. The Property Subsidiary which owns the Property has no
Indebtedness other than as permitted under the Credit Agreement.
C. SPECIAL COVENANTS CONCERNING PROPERTIES
As long as the Commitments are outstanding or there remain any
Obligations to be paid or performed under the Credit Agreement or under any
other Loan Document, the Borrowers, with respect to each Property:
(a) shall defend the right, title and interest of the applicable
Property Subsidiary in and to the Property against the claims and
demands of all Persons.
(b) shall cause the Property to be managed in accordance with the
policies and procedures customary for assets of a type such as the
Property.
(c) shall review its policies and procedures periodically to
confirm that the policies and procedures are being complied with in all
material respects and are adequate to meet the Borrowers' business
objectives with respect to the Property.
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