$150,000,000.00
CREDIT AGREEMENT
Dated as of August 13, 1997
among
PAN PACIFIC RETAIL PROPERTIES, INC.
as the Company,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
U.S. BANK NATIONAL ASSOCIATION,
KEYBANK NATIONAL ASSOCIATION,
THE BANK OF NOVA SCOTIA,
SIGNET BANK,
and
SANWA BANK CALIFORNIA,
(and any additional commercial institutions which from
time to time are a party to this Agreement),
as the Banks,
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as the Agent
TABLE OF CONTENTS
PAGE
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ARTICLE 1: DEFINITIONS AND ACCOUNTING TERMS................................1
1.1 DEFINED TERMS.............................................1
1.2 USE OF DEFINED TERMS.....................................21
1.3 ACCOUNTING TERMS.........................................21
1.4 EXHIBITS.................................................22
1.5 REFERENCES...............................................22
ARTICLE 2: RECITALS.......................................................22
ARTICLE 3: BORROWING PROCEDURES AND LETTER OF CREDIT SUBLIMIT.............22
3.1 DISBURSEMENT OF LOAN PROCEEDS............................22
3.2 REFERENCE RATE BORROWINGS................................24
3.3 LIBOR BORROWING..........................................24
3.4 REDESIGNATION OF BORROWINGS..............................25
3.5 CALCULATION OF BORROWING BASE............................27
3.6 AVAILABILITY LIMITS......................................30
3.7 PAYMENTS BY THE BANKS TO THE AGENT.......................30
3.8 SHARING OF PAYMENTS, ETC.................................31
3.9 LETTER OF CREDIT SUBLIMIT................................32
3.9.1 AMOUNT AND TERMS OF THE CREDIT...........................32
3.9.2 STANDBY LETTERS OF CREDIT................................32
3.9.3 REQUEST FOR CREDIT.......................................33
3.9.4 CONDITIONS PRECEDENT TO ISSUANCE OF LETTERS OF CREDIT....33
ARTICLE 4: PAYMENTS AND FEES..............................................34
4.1 PRINCIPAL AND INTEREST...................................34
4.2 UNUSED FEE...............................................38
4.3 FEES FOR ISSUANCE OF LETTERS OF CREDIT...................38
4.4 LATE PAYMENTS............................................38
4.5 TAXES....................................................38
4.6 ILLEGALITY...............................................39
4.7 INCREASED COSTS AND REDUCTION OF RETURN..................39
4.8 FUNDING LOSSES...........................................40
4.9 INABILITY TO DETERMINE RATES.............................41
4.10 RESERVES ON LIBOR RATE LOANS.............................42
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4.11 CERTIFICATES OF BANKS....................................42
4.12 SUBSTITUTION OF BANKS....................................42
4.13 SURVIVAL.................................................42
4.14 MANNER AND TREATMENT OF PAYMENTS.........................43
4.15 CHANGE IN CAPITAL REQUIREMENTS; ADDITIONAL COSTS.........43
4.16 MANDATORY PREPAYMENT.....................................43
4.17 AGENCY FEE AND OTHER CONSIDERATION PAYABLE TO BOFA.......43
4.18 MATURITY DATE EXTENSION OPTION...........................44
ARTICLE 5: SECURITY.......................................................44
5.1 UNSECURED CREDIT.........................................44
ARTICLE 6: CONDITIONS.....................................................44
6.1 CONDITIONS TO DISBURSEMENT OF FIRST BORROWINGS...........45
6.2 CONDITIONS FOR SUBSEQUENT BORROWINGS OR FOR A
REDESIGNATION OF BORROWINGS..............................45
6.3 ANY BORROWING............................................45
ARTICLE 7: REPRESENTATIONS AND WARRANTIES OF THE COMPANY..................45
7.1 INCORPORATION, QUALIFICATION, POWERS AND CAPITAL STOCK...45
7.2 EXECUTION, DELIVERY AND PERFORMANCE OF LOAN DOCUMENTS....46
7.3 COMPLIANCE WITH LAWS AND OTHER REQUIREMENTS..............47
7.4 SUBSIDIARIES.............................................47
7.5 AFFILIATED PARTNERSHIPS..................................48
7.6 FINANCIAL STATEMENTS OF THE COMPANY AND THE SUBSIDIARIES.48
7.7 NO MATERIAL ADVERSE CHANGE...............................48
7.8 TAX LIABILITY............................................49
7.9 LITIGATION...............................................49
7.10 ERISA COMPLIANCE.........................................49
7.11 REGULATIONS U AND X; INVESTMENT COMPANY ACT..............50
7.12 NO DEFAULT...............................................50
7.13 BORROWING BASE...........................................51
7.14 ENVIRONMENTAL MATTERS....................................51
7.15 INSURANCE................................................52
7.16 NO BURDENSOME RESTRICTIONS...............................52
7.17 FULL DISCLOSURE..........................................52
ARTICLE 8: COVENANTS OF THE COMPANY.......................................52
8.1 CONSOLIDATED TANGIBLE NET WORTH..........................53
8.2 DEBT SERVICE COVERAGE RATIO..............................53
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8.3 LEVERAGE RATIO............................................53
8.4 SECURED DEBT RATIO........................................53
8.5 UNENCUMBERED ASSET RATIOS.................................53
8.6 PAYMENT OF TAXES AND OTHER POTENTIAL LIENS................53
8.7 PRESERVATION OF EXISTENCE.................................54
8.8 REIT STATUS; NO PROHIBITED TRANSACTIONS...................54
8.9 MAINTENANCE OF PROPERTIES.................................54
8.10 MAINTENANCE OF INSURANCE..................................54
8.11 MERGERS...................................................55
8.12 BOOKS AND RECORDS.........................................55
8.13 INSPECTION RIGHTS.........................................55
8.14 REPORTING REQUIREMENTS....................................55
8.15 NOTICES...................................................57
8.16 [Intentionally Deleted.]..................................59
8.17 LIENS.....................................................59
8.18 NO OTHER NEGATIVE PLEDGE..................................60
8.19 PREPAYMENT OF INDEBTEDNESS................................60
8.20 LOANS AND INVESTMENTS.....................................60
8.21 COMPLIANCE WITH LAWS AND OTHER REQUIREMENTS...............61
8.22 CHANGE IN NATURE OF BUSINESS..............................61
8.23 COMPLIANCE WITH ERISA.....................................61
8.24 DIVIDENDS.................................................61
8.25 DISPOSITION OF PROPERTIES.................................62
8.26 MANAGEMENT; OWNERSHIP.....................................62
8.27 COMPLIANCE WITH AVAILABILITY LIMITS.......................62
8.28 DEVELOPMENT LIMITATION....................................62
8.29 ENVIRONMENTAL LAWS........................................62
8.30 USE OF PROCEEDS...........................................63
8.31 TRANSACTIONS WITH AFFILIATES..............................63
8.32 ACCOUNTING CHANGES........................................63
ARTICLE 9: EVENTS OF DEFAULT AND REMEDIES UPON DEFAULT....................63
9.1 EVENTS OF DEFAULT.........................................63
9.2 REMEDIES..................................................66
9.3 RIGHTS NOT EXCLUSIVE......................................67
ARTICLE 10: THE AGENT......................................................67
10.1 APPOINTMENT AND AUTHORIZATION.............................67
10.2 DELEGATION OF DUTIES......................................67
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10.3 LIABILITY OF AGENT.......................................67
10.4 RELIANCE BY AGENT........................................68
10.5 NOTICE OF DEFAULT........................................69
10.6 CREDIT DECISION..........................................69
10.7 INDEMNIFICATION..........................................70
10.8 AGENT IN INDIVIDUAL CAPACITY.............................70
10.9 SUCCESSOR AGENT..........................................71
10.10 WITHHOLDING TAX..........................................71
10.11 COLLATERAL MATTERS.......................................73
10.12 PERFORMANCE BY THE AGENT.................................74
10.13 ACTIONS..................................................74
10.14 CO-AGENT.................................................74
ARTICLE 11: MISCELLANEOUS.................................................74
11.1 AMENDMENTS AND WAIVERS...................................74
11.2 COSTS, EXPENSES AND TAXES................................75
11.3 NO WAIVER; CUMULATIVE REMEDIES...........................76
11.4 PAYMENTS SET ASIDE.......................................76
11.5 SUCCESSORS AND ASSIGNS...................................76
11.6 ASSIGNMENTS, PARTICIPATIONS, ETC.........................77
11.7 SET-OFF..................................................80
11.8 AUTOMATIC DEBITS.........................................80
11.9 NOTIFICATION OF ADDRESSES, LENDING OFFICES, ETC..........80
11.10 SURVIVAL OF REPRESENTATIONS AND WARRANTIES...............81
11.11 NOTICES..................................................81
11.12 INDEMNITY BY THE COMPANY.................................81
11.13 INTEGRATION AND SEVERABILITY.............................82
11.14 COUNTERPARTS.............................................82
11.15 NO THIRD PARTIES BENEFITED...............................82
11.16 SECTION HEADINGS.........................................82
11.17 FURTHER ACTS BY THE COMPANY..............................82
11.18 TIME OF THE ESSENCE......................................82
11.19 GOVERNING LAW............................................82
11.20 REFERENCE AND ARBITRATION................................82
11.21 EFFECTIVENESS OF THIS AGREEMENT..........................83
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LIST OF EXHIBITS
Exhibit "A" - Note
Exhibit "B" - Borrowing Base Certificate
Exhibit "C-1" - Request for Borrowing
Exhibit "C-2" - Request for Letter of Credit
Exhibit "D" - Request for Redesignation of Borrowing
Exhibit "E" - Subsidiaries
Exhibit "F" - Form of Legal Opinion
Exhibit "G" - Form of Assignment and Acceptance Agreement
LIST OF SCHEDULES
Schedule 1.1(A) - List of Assets and Initial Asset Classifications
Schedule 1.1(B) - Designated Responsible Officials
Schedule 3.5(c) - Assets Initially Constituting The Borrowing Base
Properties Pool
Schedule 7.14 - Environmental Matters
Schedule 8.20(e) - Description of Existing Partnerships
Schedule 11.21 - Description of Existing Pan Pacific/BofA Credit Facilities
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CREDIT AGREEMENT
This Credit Agreement ("AGREEMENT") is entered into as of August 13,
1997, by and among PAN PACIFIC RETAIL PROPERTIES, INC., a Maryland corporation
(the "COMPANY"), the several financial institutions from time to time party to
this Agreement (collectively, the "BANKS" and individually, a "BANK"), and BANK
OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national banking
association, as agent for the Banks ("Bofa" and the "AGENT").
WHEREAS, the Banks have agreed to make available to the Company an
unsecured revolving credit facility upon the terms and conditions set forth in
this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE 1: DEFINITIONS AND ACCOUNTING TERMS.
1.1 DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth respectively after each:
"ACCOUNT" means the Company's general account no. 1423100780
maintained with BofA, and any future similar account with BofA.
"ACTUAL DEBT SERVICE" means for any period, without duplication,
the sum of (a) the aggregate amount of interest which, in conformity with
GAAP, would be set opposite the caption "interest expense" or any like
caption on an income statement for the Company and consolidated
Subsidiaries, whether expensed directly, or included as a component of cost
of goods sold, or allocated to joint ventures, or otherwise (including
without limitation imputed interest on Capitalized Lease Obligations, all
commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing, the net costs
associated with Rate Hedging Obligations, amortization of other financing
fees and expenses, the interest portion of any deferred payment
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obligation, amortization of discount or premiums, in any, and all non-cash
interest expense other than interest and other charges amortized to cost of
sales), plus (b) the aggregate amount of all principal and other payments
due during such period with respect to Indebtedness of the Company or any
of its consolidated Subsidiaries (excluding, however, any principal
"balloon payments" paid or payable by the Company or any consolidated
Subsidiaries during such period), plus (c) cash dividends paid on any
preferred stock of the Company.
"ADJUSTED CURRENT VALUE" means, for any Asset, as of any date,
the Net Operating Income for such Asset as of such date DIVIDED BY the
Applicable Cap Rate; provided, however, that if the Agent has not received
quarterly operating statements for such Asset for each of the immediately
preceding four calendar quarters (whether because the Company has owned
such Asset for less than four calendar quarters, or otherwise), then the
"Adjusted Current Value" for such Asset shall be the LESSER of (a) the
Adjusted Current Value as calculated above, or (b) the purchase price paid
by the Company upon acquiring such Asset, net of all brokerage commissions,
finder's fees and other closing costs or expenses incurred by the Company
in connection with the acquisition of such Asset.
"ADJUSTED EBITDA" means, for any period, without duplication,
(a) the sum of the following amounts attributable to such period and
calculated on a consolidated basis for the Company and consolidated
Subsidiaries: (i) Consolidated Net Income, (ii) Consolidated Interest
Expense, (iii) charges against income for all federal, state and local
taxes, (iv) depreciation expense, (v) amortization expense, (vi) other
non-cash charges and expenses, and (vii) any losses arising outside of the
ordinary course of business which have been included in the determination
of Consolidated Net Income, less (b) any gains arising outside the ordinary
course of business which have been included in the determination of
Consolidated Net Income, as determined on a consolidated basis for the
Company and consolidated Subsidiaries, less (c) net income (determined in
accordance with GAAP) of, loans or contributions to, and other cash
investments in any Affiliated Partnership (provided that such net income
shall be included to the extent of the Company's direct or indirect
proportionate interest in the net income of such Affiliated Partnership),
less (d) the aggregate amount of all actual expenditures made by the
Company during such period for replacements or substitutions to
improvements to any of the Company's Asset, including remediation of
deferred maintenance, which, in accordance with GAAP, would be treated as a
capital expense, plus (e) net losses (determined in accordance with GAAP)
of, and dividends, distributions, loan payments or other cash return on
investments from,
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any Affiliated Partnership (provided that such net losses shall be included
to the extent of the Company's direct or indirect proportionate interest in
the net losses of such Affiliated Partnership).
"AFFILIATE" means any Person (a) which directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or is
under common control with, the Company or any Subsidiary, as the context
may require, or (b) which owns beneficially or of record 10% or more of the
voting stock of the Company. The term "control" means the possession,
directly or indirectly, of the power to cause the direction of the
management and policies of a Person, whether through the ownership of
voting securities or partnership interests, by contract, family
relationship or otherwise.
"AFFILIATED PARTNERSHIP" means any general or limited partnership
or joint venture in which the Company, any Subsidiary, or any other
Affiliate is a partner or joint venturer.
"AGENT" means BofA when acting in its capacity as the Agent under
any of the Loan Documents, and any successor agent.
"AGENT-RELATED PERSONS" means the Agent and any successor agent
(pursuant to the terms of SECTION 10.9) together with their respective
Affiliates and the directors, officers, agents, employees and
attorneys-in-fact of such Persons and Affiliates.
"AGGREGATE ADJUSTED CURRENT VALUE" means, as of any date of
determination, the sum of the Adjusted Current Values as of such date for
all Assets.
"AGREEMENT" means this Credit Agreement, either as originally
executed or as it may from time to time be supplemented, modified or
amended.
"APPLICABLE CAP RATE" means, for each Asset Classification, and
for all time periods through the Maturity Date, the following:
Class A: 9.30%
Class B: 9.75%
Class C: 10.50%
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The Majority Banks shall have the right to change the Applicable Cap Rate
for each Asset Classification in connection with an extension of the
Maturity Date (if any).
"ASSET CLASSIFICATION" means, for any Asset, as of any date, the
then effective designation of such Asset as a "Class A", "Class B" or
"Class C" Asset as determined by the Majority Banks in their sole
discretion. The Asset Classification as of the Closing Date for each Asset
is set forth in SCHEDULE 1.1(A). Thereafter, the Majority Banks shall have
the right, at any time, to change the Asset Classification of any Asset,
which change shall be effective immediately.
"ASSETS" means, as of any date, (a) all real estate assets of the
Company as of such date, and (b) the Tanasbourne Asset; provided, however,
that in the event the Company (directly or through its wholly-owned
Subsidiaries) ceases to own and control at least 90% of all general and
limited partnership interests in Tanasbourne, then the term "Assets" shall
no longer include the Tanasbourne Asset. As of the Closing Date, "Assets"
consist of the real estate assets described in SCHEDULE 1.1(A).
"ASSIGNEE" shall have the meaning set forth in SECTION 11.6.
"ASSIGNMENT AND ACCEPTANCE" shall have the meaning set forth in
SECTION 11.6.
"ATTORNEY COSTS" means and includes all reasonable fees and
disbursements of any law firm or other external counsel, the allocated
reasonable cost of internal legal services and all reasonable disbursements
of internal legal counsel.
"BANKING DAY" means any Monday, Tuesday, Wednesday, Thursday or
Friday on which banks (including the Banks) are open for business in
California.
"BANKS" means Bank of America National Trust and Savings
Association, a national banking association ("BofA"), U.S. Bank National
Association (FKA First Bank National Association) ("U.S. Bank"), KeyBank
National Association ("KeyBank"), The Bank of Nova Scotia ("Bank of Nova
Scotia"), Signet Bank ("Signet Bank"), and Sanwa Bank California, a
California corporation ("Sanwa Bank"), and the additional financial
institutions (if any) from
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time to time party to this Agreement, any of their successors and assigns
(including any Assignee), or any one or more of them.
"BORROWING" means each of the Loans to be made by the Banks to
the Company as provided in Article 3.
"BORROWING BASE" has the meaning set forth in SECTION 3.5(b).
"BORROWING BASE CERTIFICATE" means a written calculation of the
Borrowing Base, substantially in the form of EXHIBIT "B" attached hereto
and made a part hereof, signed by a Responsible Official of the Company and
properly completed to provide all information required to be included
thereon.
"BORROWING BASE PROPERTIES POOL" has the meaning set forth in
SECTION 3.5(c) hereof.
"CAPITAL ADEQUACY REGULATION" means any guideline, request or
directive of any central bank or other Governmental Authority, or any other
law, rule or regulation, whether or not having the force of law, in each
case, regarding capital adequacy of any bank or of any corporation
controlling a bank.
"CAPITALIZED LEASE OBLIGATIONS" means any obligations under a
lease that is required to be capitalized for financial reporting purposes
in accordance with GAAP.
"CERCLA" has the meaning specified in the definition of
"Environmental Laws."
"CLOSING DATE" means the time and Banking Day on which the
conditions precedent specified in SECTION 11.21 are satisfied or waived as
provided therein, or shall be as otherwise specified in SECTION 11.21.
"CO-AGENT" means each of the Banks which is designated in writing
by the Agent to receive the title of Co-Agent hereunder (subject to SECTION
10.14 hereof).
"CODE" means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
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"COMMITMENT" means, with respect to the Loans, the following
percentage obligations and aggregate dollar amounts as to each of the
following Banks:
PERCENTAGE AGGREGATE DOLLAR
BANK OBLIGATION AMOUNT
1. BofA 23.3333333 $35,000,000
2. U.S. Bank 16.0000000 $25,000,000
3. KeyBank 16.6666666 $25,000,000
4. Bank of Nova Scotia 16.0000000 $25,000,000
5. Signet Bank 13.0000000 $20,000,000
6. Sanwa Bank 13.0000000 $20,000,000
As Banks are added to this Agreement, or withdraw from this Agreement, and
assignments are made by the Banks in accordance with SECTION 11.6 hereof,
the amount of each Bank's Commitment shall change in accordance with that
Bank's Pro Rata Share of the Total Aggregate Commitments. The Assignment
and Acceptances executed by the Banks, and the records maintained by the
Agent, shall be presumptive evidence of each Bank's Commitment, as each
such Bank's Commitment may change from time to time in accordance with the
terms of this Agreement.
"COMPANY" means Pan Pacific Retail Properties, Inc., a Maryland
corporation, and its successors and assigns.
"CONSOLIDATED NET INCOME" means, for any period, the net income
(or loss) of the Company and consolidated Subsidiaries determined in
accordance with GAAP.
"CONSOLIDATED TANGIBLE NET WORTH" means, as of any time of
determination, (a) the total assets of the Company and consolidated
Subsidiaries, MINUS (b) the carrying value of all intangible assets of the
Company and consolidated Subsidiaries, including deferred costs associated
with goodwill, patents, franchises, organizational expense and the like,
MINUS (c) the total liabilities of the Company and consolidated
Subsidiaries, all determined in accordance with GAAP consistently applied.
"CONTINGENT OBLIGATION" means, as to any Person, any direct or
indirect liability of that Person, whether or not contingent, with or
without
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recourse, (a) with respect to any Indebtedness, lease, dividend, letter of
credit or other obligation (the "primary obligations") of another Person
(the "primary obligor"), including any obligation of that Person (i) to
purchase, repurchase or otherwise acquire such primary obligations or any
security therefor, (ii) to advance or provide funds for the payment or
discharge of any such primary obligation, or to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net
worth or solvency or any balance sheet item, level of income or financial
condition of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of
such primary obligation, or (iv) otherwise to assure or hold harmless the
holder of any such primary obligation against loss in respect thereof
(each, a "GUARANTY OBLIGATION"); (b) with respect to any Surety Instrument
issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments; (c) to purchase
any materials, supplies or other property from, or to obtain the services
of, another Person if the relevant contract or other related document or
obligation requires that payment for such materials, supplies or other
property, or for such services, shall be made regardless of whether
delivery of such materials, supplies or other property is ever made or
tendered, or such services are ever performed or tendered, or (d) in
respect of any Rate Hedging Obligation. The amount of any Contingent
Obligation shall, in the case of Guaranty Obligations, be deemed equal to
the stated or determinable amount of the primary obligation in respect of
which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect
thereof, and in the case of other Contingent Obligations, shall be equal to
the maximum reasonably anticipated liability in respect thereof.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision
of any security issued by such Person or of any agreement, undertaking,
contract, indenture, mortgage, deed of trust or other instrument, document
or agreement to which such Person is a party or by which it or any of its
property is bound.
"DESIGNATED RESPONSIBLE OFFICIAL" means a responsible official of
the Company that is specifically authorized to execute Requests for
Borrowings and Requests for Letters of Credit and to otherwise request
Borrowings or the issuance of Letters of Credit hereunder, request and
accept interest rate quotes and designate and redesignate LIBOR Borrowings,
LIBOR Periods and otherwise act for the Company in connection with
borrowing funds under this Agreement and establishing or reestablishing
applicable interest rates with respect thereto. As of
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the date of this Agreement, the Designated Responsible Officials are set
forth in SCHEDULE 1.1(b) hereto. The Company, by written notice to Agent
in accordance with the notice provisions of this Agreement, may, with the
written consent of the Agent (not to be unreasonably withheld) change the
persons who constitute Designated Responsible Officials hereunder.
"DOLLARS" or "$" means United States dollars.
"ELIGIBLE ASSIGNEE" means (i) a commercial bank organized under
the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000, (ii) 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 a combined capital and surplus
of at least $100,000,000, provided that such bank is acting through a
branch or agency located in the United States, or (iii) a Person that is
primarily engaged in the business of commercial banking and that is (A) a
Subsidiary of a Bank, (B) a Subsidiary of a Person of which a Bank is a
Subsidiary, or (C) a Person of which a Bank is a Subsidiary.
"ENVIRONMENTAL CLAIMS" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or
injury to the environment or threat to public health, personal injury
(including sickness, disease or death), property damage, natural resources
damage, or otherwise alleging liability or responsibility for damages
(punitive or otherwise), cleanup, removal, remedial or response costs,
restitution, civil or criminal penalties, injunctive relief, or other type
of relief, resulting from or based upon the presence, placement, discharge,
emission or release (including intentional and unintentional, negligent and
non-negligent, sudden or non-sudden, accidental or non-accidental,
placement, spills, leaks, discharges, emissions or releases) of any
Hazardous Material at, in, or from any property, whether owned by the
Company or any other Person.
"ENVIRONMENTAL LAWS" means all federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any
Governmental Authorities, in each case relating to environmental, health,
safety and land use matters; including the Comprehensive Environmental
Response, Compensation and Liability Act of 1980
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("CERCLA"), the Clean Air Act, the Federal Water Pollution Control Act of
1972, the Solid Waste Disposal Act, the Federal Resource Conservation and
Recovery Act, the Toxic Substances Control Act, the Emergency Planning and
Community Right-to-Know Act, the California Hazardous Waste Control Law,
the California Solid Waste Management, Resource, Recovery and Recycling
Act, the California Water Code, the California Health and Safety Code and
any other similar laws or other environmental, health or safety laws of
other states.
"ERISA" means the Employee Retirement Income Security Act of
1974, and any regulations issued pursuant thereto, as now or from time to
time hereafter in effect.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control with the Company within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code
for purposes of provisions relating to Section 412 of the Code).
"ERISA EVENT" means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by the Company or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA during a plan year in which
it was a substantial employer (as defined in Section 4001(a)(2) of ERISA)
or a cessation of operations which is treated as such a withdrawal under
Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the
Company or any ERISA Affiliate from a Multiemployer Plan or notification
that a Multiemployer Plan is in reorganization; (d) the filing of a notice
of intent to terminate, the treatment of a Plan amendment as a termination
under Section 4041 or 4041A of ERISA, or the commencement of proceedings by
the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or
condition which might reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the
Company or any ERISA Affiliate.
"EVENTS OF DEFAULT" has the meaning set forth for that term in
SECTION 9.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, and
regulations promulgated thereunder.
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"EXTENSION REQUEST" means a written request from the Company to
extend the Maturity Date pursuant to SECTION 4.18.
"FDIC" means the Federal Deposit Insurance Corporation, and any
Governmental Authority succeeding to any of its principal functions.
"FEDERAL FUNDS RATE" means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including
any such successor, "H.15(519)") on the preceding Banking Day opposite the
caption "Federal Funds (Effective)"; or, if for any relevant day such rate
is not so published on any such preceding Banking Day, the rate for such
day will be the arithmetic mean as determined by the Agent of the rates for
the last transaction in overnight Federal funds arranged prior to 9:00 a.m.
(New York City time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the Agent.
"FEE LETTER AGREEMENT" has the meaning set forth in SECTION 4.17.
"FIXED RATE OPTION REQUESTS" means the combined number of LIBOR
Borrowings made in any specified period of time.
"FRB" means the Board of Governors of the Federal Reserve System,
and any Governmental Authority succeeding to any of its principal
functions.
"FUNDS FROM OPERATIONS" means net income (loss), computed in
accordance with GAAP, excluding gains (or losses) from debt restructuring
and sales of property, plus real estate related depreciation and
amortization and after adjustments for unconsolidated partnerships and
joint ventures.
"GAAP" means, as of any date, generally accepted accounting
principals set forth in the then current opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified Public
Accountants and the then current statements and pronouncements of the
Financial Accounting Standards Board (or agency with similar functions of
comparable stature and authority within the United States accounting
profession).
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"GOVERNMENT SECURITIES" means readily marketable direct
obligations of the United States of America or obligations fully guaranteed
by the United States of America.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state or other political subdivision thereof, any central bank (or similar
monetary or regulatory authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"GUARANTOR" means any Person who hereafter guarantees repayment
of all or part of the Loans (it being understood that as of the date of
this Agreement there is no Guarantor) and such Person's successors and
assigns.
"GUARANTY" means any guaranty hereafter executed by a Guarantor
and approved by Agent.
"HAZARDOUS MATERIALS" means all those substances that are
regulated by, or which may form the basis of liability under, any
Environmental Law, including all substances identified under any
Environmental Law as a pollutant, contaminant, hazardous waste, hazardous
constituent, special waste, hazardous substance, hazardous material, or
toxic substance, or petroleum or petroleum derived substance or waste.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than
trade payables entered into in the ordinary course of business on ordinary
terms); (c) all non-contingent reimbursement or payment obligations with
respect to Surety Instruments; (d) all obligations evidenced by notes,
bonds, debentures or similar instruments, including obligations so
evidenced incurred in connection with the acquisition of property, assets
or businesses; (e) all indebtedness created or arising under any
conditional sale or other title retention agreement, or incurred as
financing, in either case with respect to property acquired by the Person
(even though the rights and remedies of the seller or bank under such
agreement in the event of default are limited to repossession or sale of
such property); (f) all obligations with respect to capital leases; (g) all
Rate Hedging Obligations; (h) all indebtedness referred to in clauses
(a) through (g) above secured by (or for which
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the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in property (including
accounts and contracts rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such
Indebtedness; and (i) all Guaranty Obligations in respect of indebtedness
or obligations of others of the kinds referred to in clauses (a) through
(g) above.
"INTEREST DIFFERENTIAL" means, with respect to any prepayment or
redesignation of a LIBOR Rate Loan on a day other than the last day of the
applicable LIBOR Period and with respect to any failure to borrow a LIBOR
Rate Loan on the date or in the amount specified in any Request for
Borrowing or any Request for Redesignation of Borrowing, (a) the LIBOR Rate
payable (or, with respect to a failure to borrow, the LIBOR Rate which
would have been payable) with respect to the LIBOR Rate Loan MINUS (b) the
LIBOR Rate on, or as near as practicable to the date of, the prepayment or
failure to borrow for a LIBOR Rate Loan with a LIBOR Period commencing on
such date and ending on the last day of the LIBOR Period of the LIBOR
Borrowing so prepaid or which would have been borrowed on such date. The
determination of the Interest Differential by the Agent shall be conclusive
in the absence of manifest error.
"INTEREST PAYMENT DATE" means the first day of any month.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
"ISSUING BANK" means BofA in its individual capacity as a bank
issuing Letters of Credit under this Agreement.
"LAWS" means, collectively, all international, foreign, federal,
state and local statutes, treaties, rules, regulations, ordinances, codes
and administrative or judicial precedents.
"L/C COMMITMENT" has the meaning set forth in SECTION 3.9.1.
"L/C COMMITMENT TERMINATION DATE" has the meaning set forth in
SECTION 3.9.1.
"L/C OBLIGATIONS" has the meaning set forth in SECTION 3.9.1.
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"LETTERS OF CREDIT" has the meaning set forth in SECTION
3.9.2(a).
"LIBOR BANKING DAY" means any Banking Day on which banks are open
for business in London, England and New York, New York and BofA is open for
business in San Francisco, California.
"LIBOR BASE RATE" means the rate of interest, rounded upward, if
necessary, to the nearest 1/16th of one percent (0.0625%), at which BofA's
London branch, London, England, would offer U.S. dollar deposits in amounts
and for periods equal to those of the applicable LIBOR Borrowing and LIBOR
Period to major banks in the London U.S. dollar inter-bank market at
approximately 11:00 a.m., London time, the first LIBOR Banking Day after
the Company's request. The determination of the LIBOR Base Rate by the
Agent shall be conclusive in the absence of manifest error.
"LIBOR BORROWING" means any portion of the Loan Proceeds
designated or redesignated by the Company as a LIBOR Borrowing pursuant to
Article 3.
"LIBOR LENDING OFFICE" means the office or branch of each Bank so
designated on the signature pages of this Agreement, or such other office
or branch of each Bank as it may hereafter designate, by written notice to
the Company, as its LIBOR Lending Office.
"LIBOR PERIOD" means, as to each LIBOR Borrowing, the period
commencing on the date specified by the Company pursuant to SECTIONS 3.3 OR
3.4 and ending one, two, three, six, nine or twelve months thereafter, as
designated by the Company in the applicable Request for Borrowing or
Request for Redesignation of Borrowing, PROVIDED that:
(a) the first day in any LIBOR Period shall be a LIBOR
Banking Day;
(b) any LIBOR Period that would otherwise end on a day that
is not a LIBOR Banking Day shall be extended to the next succeeding
LIBOR Banking Day UNLESS such LIBOR Banking Day falls in another
calendar month, in which case such LIBOR Period shall end on the next
preceding LIBOR Banking Day; and
(c) No LIBOR Period shall extend beyond the Maturity
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Date.
"LIBOR RATE" means, for any LIBOR Period for any LIBOR Borrowing,
the rate (rounded upward, if necessary, to the next 1/100 of 1%) obtained
by dividing (i) the LIBOR Base Rate for such LIBOR Period, by (ii) a
percentage equal to 100% minus the LIBOR Reserve Percentage for such LIBOR
Period.
"LIBOR RATE SPREAD" means the additional component of interest,
expressed as a percentage per annum, to be added to the LIBOR Rate in
determining the applicable rate of interest for LIBOR Borrowings. The
applicable LIBOR Rate Spread shall be based on the Company's current senior
long term debt ratings as published by Standard & Poors and Xxxxx'x
Investor Services as determined by the following pricing grid:
S&P/MOODY'S SENIOR DEBT RATING APPLICABLE LIBOR RATE SPREAD
BBB/Baa2 (or better) 1.15%
BBB-/Baa3 1.25%
Less than BBB-/Baa3 1.50%
(or not rated)
In the event of a difference in rating between Standard & Poors and Xxxxx'x
Investor Services, the lower rating shall prevail for purposes of
determining the applicable LIBOR Rate Spread. As of the date of this
Agreement, the Company is not rated by Standard & Poors or Xxxxx'x Investor
Services, and therefore the applicable LIBOR Rate Spread for the Loans as
of the date of this Agreement is 1.50%.
"LIBOR RESERVE PERCENTAGE" means the total of the maximum reserve
percentages for determining the reserves to be maintained by member banks
of the Federal Reserve System for Eurocurrency Liabilities, as defined in
Regulation D. The Reserve Percentage shall be expressed as a decimal and
rounded upward, if necessary, to the nearest 1/100th of one percent, and
shall include marginal, emergency, supplemental, special and other reserve
percentages.
"LIEN" means any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or preferential arrangement of any
kind or nature whatsoever in
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respect of any property (including those created by, arising under or
evidenced by any conditional sale or other title retention agreement, the
interest of a lessor under a capital lease, any financing lease having
substantially the same economic effect as any of the foregoing, or the
filing of any financing statement naming the owner of the asset to which
such lien relates as debtor, under the Uniform Commercial Code or any
comparable law) and any contingent or other agreement to provide any of the
foregoing, but not including the interest of a lessor under an operating
lease.
"LOAN" or "LOANS" means each of the loans and Borrowings under
this Agreement.
"LOAN DOCUMENTS" means, collectively, this Agreement, each Note,
and any Guaranty.
"LOAN PROCEEDS" means the proceeds of the Loans, in the aggregate
principal amount of up to $150,000,000.
"MAJORITY BANKS" means, at any time, if BofA is the only Bank,
BofA, and, if there is more than one Bank, at least two Banks then holding
in excess of 66 2/3% of the then aggregate unpaid principal amount of the
Loans, or, if no such principal amount is then outstanding, at least two
Banks then having in excess of 66 2/3% of the Total Aggregate Commitment.
"MATERIAL" means, in connection with the Company, its
Subsidiaries, and the Loan and the Loan Documents, such circumstances or
facts which the Banks in the exercise of their discretion could be expected
to rely upon in determining whether to enter into or to continue lending
under this Agreement or which could have a bearing on any actions
undertaken by the Banks. Such Material circumstances or facts shall
include, without limitation, such circumstances or facts as would alter,
enlarge, restrict or otherwise affect the rights and liabilities otherwise
existing between the parties to the Agreement or any other Loan Document.
"MATURITY DATE" means August 13, 2000, subject to possible
extension pursuant to SECTION 4.18.
"MULTIEMPLOYER PLAN" means a "multiemployer plan", within the
meaning of Section 4001(a)(3) of ERISA, to which the Company or any ERISA
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Affiliate makes, is making, or is obligated to make contributions or,
during the preceding three calendar years, has made, or been obligated to
make, contributions.
"NET OPERATING INCOME" means, for any Asset, as of any date and
calculated on a cash basis, (a) the gross rental income of such Asset for
the immediately preceding four consecutive calendar quarters, LESS (b) the
aggregate amount of all actual operating expenses (excluding capital
expenditures) for such Asset during such period, LESS (c) an imputed
capital expenditures amount equal to 3.5% of the difference between (a) and
(b) above. In the event the Agent receives operating statements covering
only a portion of the relevant four calendar quarter period (whether
because the Asset has been owned for less than four calendar quarters, or
otherwise), the Agent shall calculate Net Operating Income for such Asset
on the basis of the operating statements which have been provided, subject
to such adjustments as the Agent deems appropriate in its sole discretion
to accurately reflect anticipated annual operating results. In the event
(a) the Company has, within the two calendar quarters preceding the date of
calculation, completed the build-out of additional in-line shop space or
pad space on any Asset, (b) such additional space has been leased to
tenants who have commenced paying rent, are in occupancy and have opened
for business, and (c) the Agent determines that, as a result of the leasing
of such additional space, annual Net Operating Income for such Asset will
increase by at least $250,000, then Net Operating Income for such Asset
shall be calculated based upon the operating statement for such Asset
covering the most recently completed calendar quarter, subject to such
adjustments as the Agent deems appropriate in its sole and reasonable
discretion to accurately reflect anticipated annual operating results. In
addition, the Agent may, in its sole discretion, reduce the Net Operating
Income for any Asset by the amount of rents attributable to any leases
(i) which are in default or which have terminated or are otherwise no
longer in effect, or (ii) which are otherwise unacceptable to the Agent in
its sole discretion. The foregoing notwithstanding, the Net Operating
Income of the Tanasbourne Asset shall be the product obtained by
multiplying (x) the Net Operating Income of such Asset as calculated above,
by (y) the percentage of distributions from Tanasbourne to which the
Company or its wholly-owned Subsidiaries is entitled as of the date of such
calculation.
"NOTE" means each of the promissory notes, substantially in the
form of EXHIBIT "A" attached hereto and made a part hereof, executed by the
Company in favor of the Banks, each to the order of the applicable Bank as
payee to evidence such Bank's share of the Loans, and each in the original
principal amount
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of the applicable Bank's Commitment such that the aggregate original
principal amount of all Notes is initially $150,000,000; as originally
executed or as the same may from time to time be supplemented, modified,
amended, renewed, extended or refinanced (and any promissory note that may
be issued in substitution or exchange therefor).
"OBLIGATIONS" means all obligations of every nature of the
Company from time to time owed to the Banks under the Loan Documents.
"OPINION OF COUNSEL" means the favorable written legal opinion of
Hale, Lane, Peek, Xxxxxxxx, Xxxxxx, Xxxxxxxx & Pearl, as counsel to the
Company and the Subsidiaries, to this Agreement, substantially in the form
of EXHIBIT "F" attached hereto, together with copies of all factual
certificates and legal opinions upon which such counsel has relied.
"OTHER TAXES" means any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies
which arise from any payment made hereunder or from the execution, delivery
or registration of, or otherwise with respect to, this Agreement or any
other Loan Documents.
"PARTICIPANT" shall have the meaning set forth in SECTION 11.6.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions under
ERISA.
"PENSION PLAN" means a pension plan (as defined in Section 3(2)
of ERISA) subject to Title IV of ERISA which the Company sponsors,
maintains, or to which it makes, is making, or is obligated to make
contributions, or in the case of a multiple employer plan (as described in
Section 4064(a) of ERISA) has made contributions at any time during the
immediately preceding five (5) plan years.
"PERSON" means any entity, whether an individual, trustee,
corporation, general partnership, limited partnership, limited liability
company, joint stock company, trust, unincorporated organization, bank,
business association, firm, joint venture, Governmental Authority or
otherwise.
"PLAN" means an employee benefit plan (as defined in Section 3(3)
of ERISA) which the Company sponsors or maintains or to which the Company
makes, is making, or is obligated to make contributions and includes any
Pension Plan.
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"PRO RATA SHARE" means, as to any Bank at any time, the
percentage equivalent (expressed as a decimal, rounded to the ninth decimal
place as determined by the Agent) at such time of such Bank's Commitment
divided by the combined Commitments of all Banks.
"RATE HEDGING OBLIGATIONS" means, for any Person, the net
obligations of such Person pursuant to any interest rate hedging agreement
or any foreign exchange contract, currency swap agreement or other similar
agreement to which such Person is a party or a beneficiary.
"REFERENCE RATE" means the higher of:
(a) the rate of interest publicly announced from time to
time by BofA in San Francisco, California, as its reference rate. It
is a rate set by BofA based upon various factors including BofA's
costs and desired return, general economic conditions, and other
factors, and is used as a reference point for pricing some loans,
which may be priced at, above, or below such announced rate; and
(b) 0.50% per annum above the latest Federal Funds Rate.
Any change in the Reference Rate shall take effect on the day specified in
the public announcement of such change.
"REFERENCE RATE BORROWING" means any portion of the Loan Proceeds
which is not designated or redesignated by the Company as a LIBOR Borrowing
pursuant to SECTIONS 3.3 OR 3.4.
"REFERENCE RATE SPREAD" means the additional component of
interest, expressed as a percentage per annum, to be added to the Reference
Rate in determining the applicable rate of interest for Reference Rate
Borrowings. For the period beginning on the Closing Date and continuing
through the entire term of the Loans, the Reference Rate Spread shall be
equal to one-half of one percent (.50%).
"REGULATION D" means Regulation D of the Board of Governors of
the Federal Reserve System as now or from time to time hereafter in effect
and any other regulation issued in substitution therefor.
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"REPORTABLE EVENT" means, any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder, other than any such
event for which the 30-day notice requirement under ERISA has been waived
in regulations issued by the PBGC.
"REQUEST FOR BORROWING" means a written request for a Borrowing
substantially in the form of EXHIBIT "C-1" attached hereto, signed by a
Responsible Official of the Company and properly completed to provide all
information required to be included thereon.
"REQUEST FOR LETTER OF CREDIT" means a written request for a
Letter of Credit substantially in the form of EXHIBIT "C-2" attached
hereto, signed by a Responsible Official of the Company and properly
completed to provide all information required to be included thereon.
"REQUEST FOR REDESIGNATION OF BORROWING" means a written request
for redesignation of Borrowing substantially in the form of EXHIBIT "D"
attached hereto, signed by a Responsible Official of the Company and
properly completed to provide all information required to be included
thereon.
"REQUIREMENT OF LAW" means, as to any Person, any Law or
determination of an arbitrator or of a Governmental Authority, in each case
applicable to or binding upon the Person or any of its property or to which
the Person or any of its property is subject.
"RESPONSIBLE OFFICIAL" means: (a) when used with reference to a
Person other than an individual, any corporate officer of such Person,
general partner of such Person, corporate officer of a corporate general
partner of such Person, or corporate officer of a corporate general partner
of a partnership that is a general partner of such Person, or any other
responsible official thereof duly acting on behalf thereof, and (b) when
used with reference to a Person who is an individual, such Person. Any
document or certificate hereunder that is signed or executed by a
Responsible Official of another Person shall be conclusively presumed to
have been authorized by all necessary corporate, partnership and/or other
action on the part of such other Person.
"REVOLVING PERIOD TERMINATION DATE" means the date which is one
year prior to the Maturity Date.
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"SPECIAL CIRCUMSTANCE" means the adoption of any Law or
interpretation, or any change therein or thereof, or any change in the
interpretation, administration or application thereof by any Governmental
Authority, central bank or comparable authority, or compliance by the Banks
or their LIBOR Lending Offices with any request or directive (whether or
not having the force of Law) of any Governmental Authority, central bank or
comparable authority, or the occurrence of circumstances affecting the
applicable certificate of deposit market or London interbank eurodollar
market generally which are beyond the reasonable control of the Banks.
"SUBSIDIARY" means (i) any corporation of which at least 50% of
the outstanding securities of any class or classes (however designated)
having ordinary voting power to elect directors of the corporation is owned
by the Company and/or by one or more than one other Subsidiary, and
(ii) any partnership, joint venture or limited liability company in which
the Company and/or any Subsidiary owns at least a 50% interest, or which is
otherwise controlled by the Company and/or any Subsidiary.
"SURETY INSTRUMENTS" means all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties, shipside
bonds, surety bonds and similar instruments.
"TANASBOURNE" means Tanasbourne Limited Partnership, an Oregon
limited partnership.
"TANASBOURNE ASSET" means that certain real property located in
Hillsboro, Oregon owned as of the date of this Agreement by Tanasbourne,
which is improved with an approximately 220,000 square foot community
shopping center commonly known as Tanasbourne Village.
"TANASBOURNE PARTNERSHIP INTERESTS" means, collectively, all
general and limited partnership interests now or hereafter held by the
Company or its wholly-owned Subsidiaries in Tanasbourne.
"TAXES" means any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Bank and the Agent, such
taxes (including income taxes or franchise taxes) as are imposed on or
measured by each Bank's net
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income.
"TOTAL AGGREGATE COMMITMENT" means the total aggregate combined
Commitments of each of the Banks. The Total Aggregate Commitment
concurrently equals $150,000,000.
"TOTAL LIABILITIES" means, at any time of determination thereof,
without duplication, (a) all Indebtedness of the Company and consolidated
Subsidiaries, that, in conformity with GAAP applied on a consistent basis,
should be included in determining total liabilities shown on the liability
side of a consolidated balance sheet of the Company and consolidated
Subsidiaries, PLUS (b) all Indebtedness of any Affiliated Partnership for
which the Company or its consolidated Subsidiaries could be held personally
liable, PLUS (c) all Contingent Obligations of the Company and consolidated
Subsidiaries.
"TREASURY RATE" means, as of any date of determination, the yield
to maturity of the most recently issued 10-year U.S. Treasury Security as
quoted by the Telerate News Services on such date. If such date is not a
business day, then the quote shall be obtained on the business day
immediately preceding such date. If the Telerate News Services (a)
publishes more than one such 10-year U.S. Treasury Security, the average of
such yields shall apply, or (b) ceases to publish such yield, the Treasury
Rate shall be determined from such substitute financial reporting service
or source as the Agent in its sole discretion deems appropriate.
"UNENCUMBERED ASSETS" means those Assets which are not subject to
or encumbered by any Liens (other than Liens of a type described in
SECTIONS 8.17(a) OR 8.17(b)).
"UNFUNDED PENSION LIABILITY" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of
that Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
1.2 USE OF DEFINED TERMS. Any defined term used in the plural shall
refer to all members of the relevant class, and any defined term used in the
singular shall refer to any of the members of the relevant class.
1.3 ACCOUNTING TERMS. All accounting terms not specifically defined
in this Agreement shall be construed in conformity with, and all financial data
required to be
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submitted by this Agreement shall be prepared in conformity with, GAAP applied
on a consistent basis.
1.4 EXHIBITS. All exhibits to this Agreement, either as now existing
or as the same may from time to time be supplemented, modified or amended, are
incorporated herein by this reference.
1.5 REFERENCES. Any reference to any Loan Document or other document
shall include such document both as originally executed and as it may from time
to time be amended or modified. References herein to Articles, Sections,
Schedules and Exhibits shall be construed as references to this Agreement unless
a different document is named. References to subparagraphs shall be construed
as references to the same Section in which the reference appears. The terms
"INCLUDING" and "INCLUDE" mean "including (include) without limitation". This
SECTION 1.5 shall apply to all of the Loan Documents.
ARTICLE 2: RECITALS.
This Agreement is made with reference to the following facts:
(a) The Company is primarily engaged in the business of
acquiring, owning and operating (and, to a lesser extent, developing)
retail shopping centers.
(b) The Company has applied to the Banks for the Loans (i) to
finance or refinance the acquisition (and, within the limits specified
herein, the development) of retail shopping centers, and (ii) for general
working capital purposes.
(c) The Banks are willing to make the Loans to the Company on
the terms and conditions set forth in this Agreement and in the other Loan
Documents.
ARTICLE 3: BORROWING PROCEDURES AND LETTER OF CREDIT SUBLIMIT.
3.1 DISBURSEMENT OF LOAN PROCEEDS.
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(a) Subject to the terms and conditions set forth in this
Agreement, at any time and from time to time from the Closing Date through
the Banking Day immediately preceding the Revolving Period Termination
Date, each Bank shall, according to its Pro Rata Share, make Loans to the
Company in such amounts as the Company may request that do not exceed in
the aggregate at any one time outstanding, the Commitment of such Bank
(LESS the Pro Rata Share of such Bank's L/C Obligations, if any). Subject
to the limitations set forth herein, the Company may (prior to the
Revolving Period Termination Date) borrow, repay and reborrow under each
Bank's Commitment without premium or penalty. The Company may not request
more than two new Borrowings during any calendar month UNLESS the Company
shall pay to the Agent, for the ratable benefit of the Banks, a fee in the
amount of $1,500 for each new Borrowing in excess of two Borrowings per
calendar month. From and after the Revolving Period Termination Date,
Company shall have no further ability to borrow or reborrow under this
Agreement. In no event shall the Banks be obligated to make Loans to the
Company at any time if, after giving effect to such Loans, the provisions
of SECTION 3.6 would be violated.
(b) Unless the Agent otherwise consents, the aggregate amount of
each LIBOR Borrowing shall be not less than $2,000,000 and the aggregate
amount of each Reference Rate Borrowing shall be not less than $100,000.
(c) The Loans made by the Banks pursuant to this Agreement shall
be evidenced by each Note.
(d) A Request for Borrowing shall be irrevocable upon receipt by
the Agent. The Agent shall not be bound by any preliminary information
that it may give the Company concerning a particular LIBOR Rate before it
delivers the binding rate quote in accordance with SECTION 3.3(b) below.
(e) Unless the Agent otherwise consents, no more than five (5)
LIBOR Borrowings in the aggregate shall be outstanding at any one time.
(f) The Agent will notify each Bank of its receipt of a Request
for Borrowing and of the amount of such Bank's Pro Rata Share of that
Borrowing on the date of timely receipt of a Request for Borrowing by the
Company.
(g) Each Bank will make the amount of its Pro Rata Share of each
Borrowing available to the Agent for the account of the Company at the
Agent's
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Payment Office by 11:00 a.m. (California time) on the date of Borrowing
requested by the Company in funds immediately available to the Agent. The
proceeds of all such Loans will then be made available to the Company by
the Agent by wire transfer in accordance with written instructions provided
to the Agent by the Company of like funds as received by the Agent.
(h) The Company may not request more than two new Borrowings in
any calendar month; UNLESS the Company shall pay to the Agent, for the
account of the Banks in accordance with their Pro Rata Shares, a fee in the
amount of $1,500 for each new Borrowing per calendar month in excess of two
new Borrowings.
3.2 REFERENCE RATE BORROWINGS. All Loans shall at all times
constitute Reference Rate Borrowings unless properly designated or redesignated
as LIBOR Borrowings pursuant to SECTIONS 3.3. OR 3.4. Each request by the
Company for a new Reference Rate Borrowing shall be made pursuant to a Request
for Borrowing, executed by a Designated Responsible Official, received by the
Agent, at the Agent's office, not later than 9:00 a.m., California time, at
least one (1) Banking Day prior to the date the Reference Rate Borrowing is to
be funded to the Company. The Agent will notify each Bank of its receipt of a
Request for Borrowing in accordance with SECTION 3.1(f).
3.3 LIBOR BORROWING.
(a) Each request by the Company for a LIBOR Borrowing shall be
made pursuant to a Request for Borrowing, executed by a Designated
Responsible Official, received by the Agent, at the Agent's office, not
later than 9:00 a.m., California time, at least three (3) LIBOR Banking
Days before the first day of the applicable LIBOR Period. The Agent will
notify each Bank of its receipt of a Request for Borrowing in accordance
with SECTION 3.1(f).
(b) Each Request for Borrowing pertaining to a LIBOR Borrowing
shall designate the LIBOR Period applicable to such LIBOR Borrowing. If
any Request for Borrowing fails to specify the duration of the LIBOR Period
for the requested LIBOR Borrowing, the LIBOR Period shall be one month.
(c) At or about 9:00 a.m., California time, one (1) LIBOR
Banking Day after the LIBOR Banking Day on which Agent receives the
Company's Request for Borrowing, the Agent shall determine the applicable
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LIBOR Rate (which determination shall be conclusive in the absence of
manifest error) and shall promptly give notice of the same to the Company
and the Banks by telephone, telecopier or telex.
(d) Upon fulfillment of the applicable conditions set forth in
Article 6, a LIBOR Borrowing shall become effective on the first day of the
applicable LIBOR Period.
(e) The Agent in its sole discretion may require the Company to
request any LIBOR Borrowing of $100,000,000 or more, or any redesignation
of a Reference Rate Borrowing of $100,000,000 or more as a LIBOR Borrowing,
at a time or on a day which is earlier than the deadline stated above (or
for redesignations of Reference Rate Borrowings, stated SECTION 3.4 below)
for making such a request. The Company acknowledges that if this happens,
the LIBOR Period for that LIBOR Borrowing could begin later than the
Company had originally contemplated. The Company consents to any and all
such delays.
(f) Nothing contained herein shall require the Banks to fund any
LIBOR Borrowing in the London interbank eurodollar market.
3.4 REDESIGNATION OF BORROWINGS.
(a) Subject to SECTION 6.3, if any LIBOR Borrowing is not repaid
on the last day of the applicable LIBOR Period, such Borrowing
automatically shall be redesignated as a Reference Rate Borrowing on such
date.
(b) Subject to the terms and conditions set forth in this
Agreement, at any time and from time to time from the Closing Date until
one month preceding the Maturity Date, the Company may request that all or
a portion of outstanding Reference Rate Borrowings be redesignated as a
LIBOR Borrowing; provided that the LIBOR Period for such LIBOR Borrowing
shall end on or before the Maturity Date.
(c) Each redesignation of all or a portion of outstanding
Reference Rate Borrowings as a LIBOR Borrowing shall be made pursuant to a
written Request for Redesignation of Borrowing, executed by a Designated
Responsible Official. Not later than 9:00 a.m., California time, at least
three (3) LIBOR Banking Days prior to the first day of the applicable LIBOR
Period, the Agent shall have received, at the Agent's office, a properly
completed Request for
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Redesignation of Borrowing specifying (1) the requested date of
redesignation, (2) the requested amount of Reference Rate Borrowings to be
redesignated as a LIBOR Borrowing, and (3) the requested LIBOR Period. The
Agent may, in its sole and absolute discretion, permit a Request for
Redesignation of Borrowing to be made by telecopier or by telephone (with
confirmation sent promptly by telecopier) by the Company, in which case the
Company shall confirm same by mailing a written Request for Redesignation
of Borrowing to the Agent within 24 hours following the date of
redesignation.
(d) The Agent will notify each Bank of its receipt of a Request
for Redesignation on the date of timely receipt of a Request for
Redesignation from the Company. All redesignations shall be made ratably
according to the respective outstanding principal amount of the Loans with
respect to which the Request for Redesignation was given is then held by
each Bank.
(e) Unless all of the Banks otherwise agree, during the
existence of an Event of Default, the Company may not elect to have a Loan
converted into a LIBOR Borrowing.
(f) Unless the Banks otherwise consent, the amount of Reference
Rate Borrowings to be redesignated as a LIBOR Borrowing shall be not less
than $2,000,000.
(g) With respect to any redesignation of Reference Rate
Borrowing as a LIBOR Borrowing, at or about 9:00 a.m., California time,
one (1) LIBOR Banking Day after the LIBOR Banking Day on which Agent
receives Borrower's Request for Redesignation, the Agent shall determine
the applicable LIBOR Rate (which determination shall be conclusive in the
absence of manifest error) and shall promptly give notice of the same to
the Company and the Banks by telephone, telecopier or telex.
(h) Upon fulfillment of the applicable conditions set forth in
this Agreement, the redesignation of all or a portion of outstanding
Reference Rate Borrowings as a LIBOR Borrowing shall become effective on
the first day of the applicable LIBOR Period.
(i) A Request for Redesignation of Borrowing shall be
irrevocable upon receipt by the Agent.
(j) Nothing contained herein shall require the Banks to fund any
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XXXXX Xxxxxxxxx resulting from redesignation of all or a portion of any of
the Reference Rate Borrowings, in the London interbank eurodollar market.
3.5 CALCULATION OF BORROWING BASE.
(a) The Borrowing Base shall be calculated at the times and in
the manner set forth in this SECTION 3.5(a):
(i) Within thirty (30) days after the end of each calendar
quarter, and at such other times as the Majority Banks may reasonably
require (including without limitation at any time following the
removal of any property from the Borrowing Base Properties Pool), the
Company shall provide the Agent with a Borrowing Base Certificate
showing the Company's calculations of the components of the Borrowing
Base and such data supporting such calculations as the Majority Banks
may require. The Majority Banks shall have a period of fifteen (15)
days following Agent's receipt of a Borrowing Base Certificate to
notify the Agent of the Majority Banks' approval or disapproval
thereof, and the Agent shall have five (5) Banking Days thereafter to
notify the Company of the decision of the Majority Banks. Failure of
the Majority Banks to so notify the Agent within such fifteen (15) day
period shall be deemed approval and such Borrowing Base as set forth
in such Borrowing Base Certificate shall be effective as of the date
approved (or deemed approved) by the Majority Banks.
(ii) In the event that the Agent (as requested by the
Majority Banks) timely notifies the Company of disapproval of a
Borrowing Base Certificate, then the Agent shall, at the same time,
notify the Company in writing of the amount of the Borrowing Base as
determined by the Majority Banks and the basis of such determination,
and the effective date thereof (which shall be the date of the giving
of such notice by the Agent), and such amount shall thereupon and
thereafter constitute the Borrowing Base which shall remain in effect
until such time as the Borrowing Base is redetermined in accordance
with this SECTION 3.5(a). The Company shall cooperate in good faith
with the Banks in the calculation of the Borrowing Base.
(iii) Each determination of the Borrowing Base in
accordance with this SECTION 3.5(a) shall be binding and conclusive
upon
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the parties hereto (i) provided that the Majority Banks are not bound
to rely on information and figures provided by the Company if the
Majority Banks determine in good faith that it would be inappropriate
to do so. Nothing contained herein shall be deemed to restrict the
Company from submitting additional Borrowing Base Certificates to the
Agent (but not more often than once per calendar month) for the
Majority Banks' approval at times other than those required hereunder
(including, without limitation, at any time following the addition of
a property to the Borrowing Base Properties Pool).
(b) AMOUNT OF BORROWING BASE. As used herein, the term
"BORROWING BASE" shall mean the LESSER of:
(i) an amount equal to the sum of: (A) an amount which
would be fully amortized in 25 equal annual installments of principal
and interest by 50% of the cumulative Net Operating Income from the
Tanasbourne Asset (so long as it remains in the Borrowing Base
Properties Pool) and the Assets within the Borrowing Base Properties
Pool which have been owned and held by the Company for at least one
full calendar quarter, assuming interest at a per annum rate equal to
the greater of (1) 2.5% per annum plus the Treasury Rate, or (2) 9.0%,
plus (B) an amount equal to 50% of the cumulative net purchase prices
paid by the Company for the Assets within the Borrowing Base
Properties Pool which have been owned and held by the Company for less
than one full calendar quarter (it being understood that an Asset may
not be counted under both subparagraph (A) and subparagraph (B)
immediately above); or
(ii) an amount equal to one-half of the aggregate Adjusted
Current Values of the Assets within the Borrowing Base Properties
Pool.
(c) Only those Assets which constitute part of the "Borrowing
Base Properties Pool" shall be included in the calculation of the Borrowing
Base as set forth above. As used herein, the "BORROWING BASE PROPERTIES
POOL" means those Assets which the Majority Banks, in the exercise of their
sole and absolute discretion, designate in writing as constituting part of
the Borrowing Base Properties Pool. The Assets which shall initially
constitute the Borrowing Base Properties Pool are as set forth on
SCHEDULE 3.5(c) hereto. From time to
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time after the Closing Date, the Company may submit written requests (not
more often than once each calendar month) to add additional Assets to the
Borrowing Base Properties Pool. In each instance, it shall be in the sole
and absolute discretion of the Majority Banks as to whether any additional
Assets are added to the Borrowing Base Properties Pool; provided that the
Majority Banks shall use reasonable efforts to respond to any requests by
the Company to add additional Assets to the Borrowing Base Properties Pool
within 30 days of the receipt by Agent of such written request from the
Company (together with such information regarding each of such Assets as
the Majority Banks and Agent shall request). Provided further, however,
that failure of the Majority Banks to respond to any such request within
such 30-day period shall be deemed to be a disapproval of such request.
Without limiting the Majority Banks' discretion as to which Assets shall be
designated as part of the Borrowing Base Properties Pool, the Company
acknowledges and understands that the Agent shall not be required to even
submit an Asset to the Banks for their consideration unless such Asset is
100% owned by the Company (in fee), is free of all Liens (other than Liens
of a type permitted under SECTION 8.17), is a well-located, stabilized
retail shopping center, is at least 90% leased to reputable, third party
tenants who are in occupancy and have opened for business, and as to which
a recent "Phase I" environmental report has disclosed no material toxic or
hazardous substances. In connection with each request from the Company to
add an Asset to the Borrowing Base Properties Pool, the Company shall
submit to the Agent the following information and documentation, in
addition to any other information, documentation or other items required by
the Agent or the Majority Banks in their sole discretion: (1) a current
Phase I environmental report addressed to the Company, which is dated
within the guidelines of the Majority Banks, (2) a title insurance policy
insuring the Company's lien free fee ownership interest in the subject
Asset, and a current title report with respect to such Asset, and (3) a
current rent roll (and detailed analysis of the net operating income
generated from such Asset, including gross rental receipts, operating
expenses, capital expenditures and other relevant information for at least
the prior four quarters, if available). Assets may be removed from the
Borrowing Base Properties Pool as follows:
(i) The Company may remove Assets at any time from the
Borrowing Base Properties Pool, upon not less than ten (10) days'
written notice to the Agent, so long as (A) the Company shall have
submitted a Borrowing Base Certificate to the Agent in accordance with
SECTION 3.5(a)(i) at least thirty (30) days (but not more than
ninety (90)
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days) prior to the date of the proposed release of the subject Asset from
the Borrowing Base Properties Pool, (B) the Company shall concurrently
reduce the outstanding amount of Loans and/or L/C Obligations (by repayment
of outstanding Loans, termination of issued Letters of Credit, or both) to
the extent necessary to comply with the availability limits set forth in
SECTION 3.6 below, and any other applicable provisions of this Agreement,
(C) following such removal, the Borrowing Base Properties Pool shall not
have less than three separate Assets as part of the Borrowing Base
Properties Pool, (D) following such removal, the aggregate Adjusted Current
Value of the properties in the Borrowing Base Properties Pool shall not be
less than $45,000,000, and (E) no Event of Default or event that with the
giving of notice and/or the passage of time would constitute an Event of
Default shall have occurred and be continuing; and
(ii) The Majority Banks may, at any time, remove Assets from
the Borrowing Base Properties Pool, upon not less than ten (10) days
written notice from the Agent to the Company, if the Majority Banks in
their sole and absolute discretion have determined that a material
adverse change has occurred with respect to any of such Assets.
3.6 AVAILABILITY LIMITS. The sum of the aggregate principal amount
at any time outstanding under the Loans PLUS the L/C Obligations shall not at
any time exceed the LESSER of (i) the Total Aggregate Commitment or (ii) the
Borrowing Base.
3.7 PAYMENTS BY THE BANKS TO THE AGENT.
(a) Unless the Agent receives notice from a Bank on or prior to
the Closing Date or, with respect to any Borrowing after the Closing Date,
at least one Banking Day prior to the date of such Borrowing, that such
Bank will not make available as and when required hereunder to the Agent
for the account of the Company the amount of that Bank's Pro Rata Share of
the Borrowing, the Agent may assume that each Bank has made such amount
available to the Agent in immediately available funds on the date of
Borrowing and the Agent may (but shall not be so required), in reliance
upon such assumption, make available to the Company on such date a
corresponding amount. If and to the extent any Bank shall not have made
its full amount available to the Agent in immediately available funds and
the Agent in such circumstances has made available to the
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Company such amount, that Bank shall on the Banking Day following such date
of Borrowing make such amount available to the Agent, together with
interest at the Reference Rate for each day during such period. A notice
of the Agent submitted to any Bank with respect to amounts owing under this
subsection (a) shall be conclusive, absent manifest error. If such amount
is so made available, such payment to the Agent shall constitute such
Bank's Loan on the date of Borrowing for all purposes of this Agreement.
If such amount is not made available to the Agent on the Banking Day
following the date of Borrowing, the Agent will notify the Company of such
failure to fund and, upon demand by the Agent, the Company shall pay such
amount to the Agent for the Agent's account, together with interest thereon
for each day elapsed since the date of such Borrowing, at a rate per annum
equal to the interest rate applicable at the time to the Loans comprising
such Borrowing.
(b) The failure of any Bank to make any Loan on any date of
Borrowing shall not relieve any other Bank of any obligation hereunder to
make a Loan on such date of Borrowing, but no Bank shall be responsible for
the failure of any other Bank to make the Loan to be made by such other
Bank on any date of Borrowing.
3.8 SHARING OF PAYMENTS, ETC. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Loans made by it any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its Pro Rata Share, such Bank shall
immediately (a) notify the Agent of such fact, and (b) purchase from the other
Banks such participations in the Loans made by them as shall be necessary to
cause such purchasing Bank to share the excess payment pro rata with each of
them; PROVIDED, HOWEVER, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Bank, such purchase shall to that
extent be rescinded and each other Bank shall repay to the purchasing Bank the
purchase price paid therefor, together with an amount equal to such paying
Bank's ratable share (according to the proportion of (i) the amount of such
paying Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Company agrees
that any Bank so purchasing a participation from another Bank may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off, but subject to SECTION 11.7) with respect to such
participation as fully as if such Bank were the direct creditor of the Company
in the amount of such participation. The Agent will keep records (which shall
be conclusive and binding in the absence of manifest error) of participations
purchased under this Section and will in each case notify the Banks
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following any such purchases or repayments.
3.9 LETTER OF CREDIT SUBLIMIT.
3.9.1 AMOUNT AND TERMS OF THE CREDIT. Subject to the terms
and upon the conditions of this Agreement, the Issuing Bank shall issue standby
letters of credit for the account of the Company from time to time up to but not
including the Revolving Period Termination Date (as extended by the Banks in
writing from time to time in their sole discretion, the "L/C COMMITMENT
TERMINATION DATE"). The maximum aggregate principal amount which remains
undrawn under all outstanding Letters of Credit (the "L/C OBLIGATIONS") under
this Agreement shall not exceed at any one time outstanding the aggregate
principal sum of TEN MILLION AND NO/100 DOLLARS ($10,000,000.00) (the "L/C
COMMITMENT").
3.9.2 STANDBY LETTERS OF CREDIT.
(a) AMOUNTS AND TERMS OF STANDBY LETTERS OF CREDIT. During
the period from the Closing Date to but excluding the L/C Commitment
Termination Date, and subject to the terms and conditions of this
Agreement, upon Company's request pursuant to SECTION 3.9.3, the
Issuing Bank shall issue one or more standby letter(s) of credit
(each, a "LETTER OF CREDIT," and collectively, the "LETTERS OF
CREDIT") for the account of Company (subject to SECTION 3.9.4);
PROVIDED that the Issuing Bank shall not be obligated to issue any
Letter of Credit if, after giving effect thereto, (i) the
L/C Obligations would exceed the L/C Commitment, or (ii) the total
aggregate outstanding Loans PLUS the L/C Obligations would exceed the
LESSER of (A) the Total Aggregate Commitment, or (B) the Borrowing
Base. All Letters of Credit shall be on Issuing Bank's standard forms
of letters of credit at the time of issuance. No Letter of Credit
shall have an expiration date (unless the Banks otherwise consent in
writing) later than the EARLIER of (i) 12 months after the date of
issuance, or (ii) the date which is 60 days prior to the Maturity
Date. No "evergreen" provisions shall be permitted. The Issuing Bank
shall not be required to issue any Letter of Credit hereunder unless
such Letter of Credit is for the benefit of a party to which the
Company or its Subsidiaries owe certain performance obligations
incurred in the ordinary course of their real estate business.
Issuing Bank shall not be required to issue any Letter of Credit for
the benefit of creditors to which the Company or its Subsidiaries are
obligated in
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respect of obligations for borrowed money, other than to back a
purchase money note generated in connection with the acquisition of
Assets.
(b) LETTER OF CREDIT DRAWS ARE LOANS UNDER THIS AGREEMENT.
The Company and each Bank agree that any draws under any Letters of
Credit shall constitute Loans under this Agreement for all purposes.
Without limiting the foregoing, (i) all draws under any Letter of
Credit shall bear interest and be repaid as Loans outstanding under
this Agreement, and (ii) if, at the time any draw is made under any
Letter of Credit, an Event of Default has occurred or the Maturity
Date has passed or the Loans have been accelerated or are otherwise
due and payable, such draw under such Letter of Credit shall be
immediately due and payable in full. Promptly upon being notified by
the Agent (after Agent has received notice from the Issuing Bank) that
a draw has occurred under any Letter of Credit, each Bank shall
reimburse the Agent, for the benefit of the Issuing Bank, for that
Bank's Pro Rata Share of such draw.
3.9.3 REQUEST FOR CREDIT. The Company, on or after the
Closing Date, shall give the Issuing Bank notice of its request for the
issuance of a Letter of Credit by delivering to the Issuing Bank (with a
copy to the Agent) a duly executed and completed L/C Application on Issuing
Bank's then current form (herein, an "L/C APPLICATION"). Such request
shall specify: (i) the date on which the issuance of the Letter of Credit
is requested to be made (which day shall be a Banking Day), and (ii) the
amount of the Letter of Credit. Subject to the conditions herein, the
Issuing Bank will issue the Letter of Credit as soon as reasonably
practicable after receiving the above described notice.
3.9.4 CONDITIONS PRECEDENT TO ISSUANCE OF LETTERS OF CREDIT.
The obligation of the Issuing Bank to issue any Letter of Credit requested
by the Company is subject to satisfaction of the following conditions
precedent:
(a) CONDITIONS TO LOANS SHALL BE SATISFIED. Each of the
conditions specified in SECTIONS 6.2 AND 6.3 to Borrowings shall also
be applicable as conditions precedent to the issuance of any Letter of
Credit.
(b) L/C APPLICATION. The Issuing Bank shall have received
from the Company, in form and substance satisfactory to the Issuing
Bank, (i) a duly executed and completed L/C Application which
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L/C Application shall set forth, among other things, the beneficiary,
the amount, and the term of the proposed Letter of Credit, and (ii) a
duly executed and completed Request for Letter of Credit (in the form
attached hereto as EXHIBIT "C-2").
(c) ISSUING BANK APPROVAL. The Issuing Bank shall have
determined that the amount of any requested Letter of Credit, the
beneficiary thereof and the other terms contained in the documents
pertaining to such Letter of Credit are satisfactory to the Issuing
Bank in the exercise of its sole discretion.
(d) PAYMENT OF FEES. The Company shall pay the Issuing
Bank an issuance fee ("ISSUANCE FEE") in accordance with the Fee
Letter Agreement for the issuance of each Letter of Credit. The
applicable Issuance Fee shall be payable prior to the issuance (or
renewal) of any Letter of Credit. In addition, the Company shall pay
to the Issuing Bank (for its own benefit) all reasonable and customary
processing fees and costs described in the documents pertaining to
such Letter of Credit.
(e) TELEPHONE CONFIRMATION. Prior to the issuance of any
Letter of Credit, the Issuing Bank shall confirm by telephone with the
Agent that, following the issuance of such Letter of Credit, none of
the limitations set forth in SECTION 3.9 would be violated.
ARTICLE 4: PAYMENTS AND FEES.
4.1 PRINCIPAL AND INTEREST.
(a) Interest shall be payable on the outstanding daily unpaid
principal amount of each Borrowing from the date thereof until payment in
full is made and shall accrue and be payable at the rates set forth herein
both before and after default and before and after maturity and judgment,
with interest on overdue interest to bear interest at the rate specified in
SECTION 4.4. Upon any partial prepayment or redesignation of outstanding
Reference Rate Borrowings, interest accrued through the date of such
prepayment or redesignation shall be payable on the next following Interest
Payment Date and shall be deducted from the Account on such date.
Insufficient funds in the Account shall not excuse the
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Company's obligation to pay accrued interest on the Interest Payment Date.
Upon any partial prepayment or payment in full or redesignation or
conversion of any LIBOR Borrowing, or upon any payment or redesignation in
full of all outstanding Reference Rate Borrowings, interest accrued through
the date of such prepayment, payment, redesignation or conversion shall be
payable on the next following Interest Payment Date.
(b) Interest on each Reference Rate Borrowing shall be computed
on the basis of a year of 360 days and the actual number of days elapsed
(which shall result in more interest being due than if a year of 365 days
were used), at the Reference Rate TIMES the total principal balance
outstanding under each Note. Interest accrued on each Reference Rate
Borrowing shall be payable on each Interest Payment Date, commencing with
the first such date to occur after the Closing Date, and shall be deducted
from the Account on each such Interest Payment Date. Insufficient funds in
the Account shall not excuse the Company's obligation to pay accrued
interest on the Interest Payment Date. The Agent shall use its best
efforts to notify the Company of the amount of interest so payable prior to
each Interest Payment Date, but failure of the Agent to do so shall not
excuse payment of such interest when payable. EXCEPT as otherwise provided
in SECTION 4.4, the unpaid principal amount of any Reference Rate Borrowing
shall bear interest at a fluctuating rate per annum equal to the Reference
Rate PLUS the Reference Rate Spread. Each change in the interest rate
shall take effect simultaneously with the corresponding change in the
Reference Rate. Each change in the Reference Rate shall be effective as of
12:01 a.m. on the Banking Day on which the change in the Reference Rate is
announced, unless otherwise specified in such announcement, in which case
the change shall be effective as so specified.
(c) Interest on each LIBOR Borrowing shall be computed on the
basis of a year of 360 days and the actual number of days elapsed (which
shall result in more interest being due than if a year of 365 days were
used). Interest accrued on each LIBOR Borrowing which is for a term of one
month shall be payable on the next Interest Payment Date following the
maturity date of that LIBOR Borrowing. Interest accrued on each other
LIBOR Borrowing outstanding as of each Interest Payment Date, commencing
with the first such date to occur after the Closing Date: (i) shall be
payable on each such Interest Payment Date and shall be deducted from the
Account on such date, and (ii) shall be payable on the next Interest
Payment Date following the maturity date of that LIBOR Borrowing.
Insufficient funds in the Account shall not
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excuse the Company's obligation to pay accrued interest on the Interest
Payment Date. The Agent shall use its best efforts to notify the Company
of the amount of interest so payable prior to each such date, but failure
of the Agent to do so shall not excuse payment of such interest when
payable. The unpaid principal amount of any LIBOR Borrowing shall bear
interest at a rate per annum equal to the LIBOR Rate for that LIBOR
Borrowing PLUS the applicable LIBOR Rate Spread.
(d) If not sooner paid, the principal indebtedness evidenced by
each Note shall be payable as follows:
(i) subject to the applicable provisions of this
Agreement providing for automatic redesignation of Borrowings upon
compliance with SECTION 3.4, the principal amount of each LIBOR
Borrowing shall be payable on the last day of the LIBOR Period for
such Borrowing;
(ii) the amount, if any, by which the principal
indebtedness evidenced by each Note at any time exceeds the applicable
Bank's Commitment shall be payable immediately;
(iii) the amount of each payment required pursuant to
SECTION 4.16 shall be payable immediately;
(iv) an amount equal to 20% of the outstanding Loans
and L/C Obligations as of the Revolving Period Termination Date,
DIVIDED BY twelve (12), shall be payable commencing on the Revolving
Period Termination Date, and continuing on the first day of each month
thereafter until the Maturity Date; and
(v) all remaining outstanding Loans (together with any
and all other indebtedness not otherwise paid when due under the Loan
Documents) shall be payable in full on the Maturity Date.
(e) Each Note may, at any time and from time to time, be paid or
prepaid in whole or in part, PROVIDED that (i) any partial prepayment shall
be in an amount not less than $100,000, (ii) EXCEPT as required by
subsection (d) above, no LIBOR Borrowing may be paid or prepaid in whole or
in part prior to the last day of the applicable LIBOR Period without the
prior consent of each
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Bank, and, notwithstanding such required prepayment or such consent, any
payment or prepayment of all or any part of any LIBOR Borrowing on a day
other than the last day of the applicable LIBOR Period shall be made on a
LIBOR Banking Day, as applicable, and shall be preceded by at least five
(5) LIBOR Banking Days, as applicable, written notice to the Agent of the
date and amount of such payment or payments, and (iii) any prepayment of a
LIBOR Borrowing shall be accompanied by a prepayment fee calculated in
accordance with subsection (f) below and any other amounts required to be
paid pursuant to SECTION 4.8. In addition, if at any time the amount of
any LIBOR Borrowing is reduced (by payment, prepayment or conversion of a
part thereof) to an amount less than $2,000,000, such LIBOR Borrowing shall
automatically convert into a Reference Rate Borrowing, and on and after
such date the right of the Company to continue such Borrowing as a LIBOR
Borrowing shall terminate.
(f) Prepayment fees shall be calculated as follows:
(i) $250; PLUS
(ii) principal amount of the LIBOR Borrowing, TIMES
[the number of days between the date of prepayment and the last day in
the applicable LIBOR Period] DIVIDED BY 360, TIMES the applicable
Interest Differential; PLUS
(iii) all reasonable out-of-pocket expenses (including
Attorney Costs) incurred by the Banks and reasonably attributable to
such prepayment; PROVIDED that no prepayment fee shall be payable (and
no credit or rebate shall be required) if the product of the foregoing
formula is not positive.
For purposes of calculating any prepayment fee under this subsection (f),
each LIBOR Borrowing (and each related reserve, special deposit or similar
requirement) shall be conclusively deemed to have been funded at the LIBOR
Base Rate used in determining the LIBOR Rate for such LIBOR Borrowing by a
matching deposit or other borrowing in the interbank eurodollar market for
a comparable amount and for a comparable period, regardless of whether such
LIBOR Borrowing is so funded. The Agent's determination of the amount of
any prepayment fee shall be conclusive in the absence of manifest error.
Nothing contained in this SECTION 4.1 shall relieve the Company from
its
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obligation to make interest payments to the Banks on each Interest Payment Date
(in accordance with the terms and conditions contained herein) in the event the
funds held in the Account are insufficient to make such interest payments on any
such Interest Payment Date.
4.2 UNUSED FEE. For the period commencing on the date of this
Agreement and ending on the Revolving Period Termination Date, the Company shall
pay to the Agent each quarter, for the account of each Bank in accordance with
its Pro Rata Share, an unused fee, computed on the basis of a year of 360 days
and the actual number of days elapsed, at the rate of .25% per annum TIMES the
average daily difference between (a) the Total Aggregate Commitment, and (b) the
total principal balance outstanding under the Notes plus the L/C Obligations
(PROVIDED, HOWEVER, that if during the applicable quarter as to which an unused
fee is owing, the average daily difference between the amounts specified in
subparagraphs (a) and (b) immediately above is less than one-half (50%) of the
amount of the Total Aggregate Commitment, the applicable rate to be used in
calculating the unused fee shall be .125% per annum, and not .25% per annum) .
The unused fee shall be measured quarterly and shall be payable quarterly in
arrears on October 1, January 1, April 1 and July 1 of each year, with the first
such payment due October 1, 1997, EXCEPT that upon payment of each Note in full,
the unused fee accrued to the date of payment shall be payable on the date of
payment.
4.3 FEES FOR ISSUANCE OF LETTERS OF CREDIT. The fees payable for the
issuance and processing of Letters of Credit shall be as set forth in
SECTION 3.9 and the Fee Letter Agreement.
4.4 LATE PAYMENTS. Should any installment of principal or interest
or any fee or cost or other amount payable under any Loan Document to the Banks
not be paid within 10 days of when due, it shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the sum of the
Reference Rate PLUS 3.00% per annum, to the fullest extent permitted by
applicable Law. Accrued and unpaid interest on past due amounts (INCLUDING,
without limitation, interest on past due interest) shall be compounded monthly,
on the last day of each calendar month, to the fullest extent permitted by
applicable Law.
4.5 TAXES. All payments payable to the Banks hereunder or with
respect to the Loan Documents shall be made to the Banks without deductions for
any Taxes or Other Taxes except to the extent the Company is required by any Law
or Governmental Authority to withhold and except in accordance with SECTION
10.10 to
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the extent, if any, that such amounts are required to be withheld by the Agent
under the laws of the United States of America or any other applicable taxing
authority.
4.6 ILLEGALITY.
(a) If any Bank determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has
asserted that it is unlawful, for any Bank or its applicable Lending Office
to make LIBOR Rate Loans, then, on notice thereof by the Bank to the
Company through the Agent, any obligation of that Bank to make LIBOR Rate
Loans shall be suspended until the Bank notifies the Agent and the Company
that the circumstances giving rise to such determination no longer exist.
(b) If a Bank determines that it is unlawful to maintain any
LIBOR Rate Loan, the Company shall, upon its receipt of notice of such fact
and demand from such Bank (with a copy to the Agent), prepay in full such
LIBOR Borrowings of that Bank then outstanding, together with interest
accrued thereon and amounts required under SECTION 4.8, either on the last
day of the LIBOR Period thereof, if the Bank may lawfully continue to
maintain such LIBOR Rate Loans to such day, or immediately, if the Bank may
not lawfully continue to maintain such LIBOR Rate Loan. If the Company is
required to so prepay any LIBOR Rate Loan, then concurrently with such
prepayment, the Company shall borrow from the affected Bank, in the amount
of such repayment, a Reference Rate Loan.
(c) If the obligation of any Bank to make or maintain LIBOR Rate
Loans has been so terminated or suspended, all Loans which would otherwise
be made by the Bank as LIBOR Rate Loans shall be instead Reference Rate
Loans.
(d) Before giving any notice to the Agent under this Section,
the affected Bank shall designate a different Lending Office with respect
to its Reference Rate Loans if such designation will avoid the need for
giving such notice or making such demand and will not, in the judgment of
the Bank, be illegal or otherwise disadvantageous to the Bank.
4.7 INCREASED COSTS AND REDUCTION OF RETURN.
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(a) If any Bank determines that, due to either (i) the
introduction of or any change (other than any change by way of imposition
of or increase in reserve requirements included in the calculation of the
LIBOR Rate or in respect of the assessment rate payable by any Bank to the
FDIC for insuring U.S. deposits) in or in the interpretation of any law or
regulation or (ii) the compliance by that Bank with any guideline or
request from any central bank or other Governmental Authority (whether or
not having the force of law), there shall be any increase in the cost to
such Bank or reduction of return of agreeing to make or making, funding or
maintaining any LIBOR Rate Loans, then the Company shall be liable for, and
shall from time to time, upon demand (with a copy of such demand to be sent
to the Agent), pay to the Agent for the account of such Bank, additional
amounts as are sufficient to compensate such Bank for such increased costs.
(b) If any Bank shall have determined that (i) the introduction
of any Capital Adequacy Regulation, (ii) any change in any Capital Adequacy
Regulation, (iii) any change in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other Governmental
Authority charged with the interpretation or administration thereof, or
(iv) compliance by the Bank (or its Lending Office) or any corporation
controlling the Bank with any Capital Adequacy Regulation, affects or would
affect the amount of capital required or expected to be maintained by the
Bank or any corporation controlling the Bank and (taking into consideration
such Bank's or such corporation's policies with respect to capital adequacy
and such Bank's desired return on capital) determines that the amount of
such capital is increased as a consequence of its Commitment, loans,
credits or obligations under this Agreement, then, upon demand of such Bank
to the Company through the Agent, the Company shall pay to the Bank, from
time to time as specified by the Bank, additional amounts sufficient to
compensate the Bank for such increase.
4.8 FUNDING LOSSES. The Company shall reimburse each Bank and hold
each Bank harmless from any loss or expense which the Bank may sustain or incur
as a consequence of:
(a) the failure of the Company to borrow, continue or convert a
Loan after the Company has given (or is deemed to have given) a Request for
Borrowing or a Request for Redesignation of Borrowing; or
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(b) the prepayment (including pursuant to SECTION 4.16) or other
payment (including after acceleration thereof) of a LIBOR Rate Loan on a
day that is not the last day of the relevant LIBOR Period; or
(c) the automatic conversion under SECTION 4.1(e) of any LIBOR
Borrowing to a Reference Rate Borrowing on a day that is not the last day
of the relevant LIBOR Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its LIBOR Rate Loans or from fees payable to
terminate the deposits from which such funds were obtained. Such loss or
expense shall be calculated as follows:
(i) principal amount of the LIBOR Borrowing, TIMES [the number
of days between the date of the event and the last day in the applicable LIBOR
Period] DIVIDED BY 360, TIMES the applicable Interest Differential; PLUS
(ii) all out-of-pocket expenses (including Attorney Costs)
incurred by the Banks and reasonably attributable to such event; PROVIDED that
no prepayment fee shall be payable (and no credit or rebate shall be required)
if the product of the foregoing formula is not positive.
For purposes of calculating amounts payable by the Company to the Banks under
this SECTION 4.8, each LIBOR Borrowing (and each related reserve, special
deposit or similar requirement) shall be conclusively deemed to have been funded
at the LIBOR Base Rate used in determining the LIBOR Rate for such LIBOR
Borrowing by a matching deposit or other borrowing in the interbank eurodollar
market for a comparable amount and for a comparable period, regardless of
whether such LIBOR Borrowing is so funded.
4.9 INABILITY TO DETERMINE RATES. If any Bank determines that for
any reason adequate and reasonable means do not exist for determining the LIBOR
Rate for any requested LIBOR Period with respect to a proposed LIBOR Rate Loan,
or that the LIBOR Rate applicable pursuant to subsection 4.1(c) for any
requested LIBOR Period with respect to a proposed LIBOR Rate Loan does not
adequately and fairly reflect the cost to such Banks of funding such Loan, the
Agent will promptly so notify the Company and each Bank. Thereafter, the
obligation of the Banks to make or
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maintain LIBOR Rate Loans, as the case may be, hereunder shall be suspended
until the Agent upon the instruction of such Bank revokes such notice in
writing. Upon receipt of such notice, the Company may revoke any Request for
Borrowing or Request for Redesignation of Borrowing then submitted by it. If
the Company does not revoke such Request, the Banks shall make, convert or
continue the Loans, as proposed by the Company, in the amount specified in the
applicable notice submitted by the Company, but such Loans shall be made,
converted or continued as Reference Rate Loans instead of LIBOR Rate Loans.
4.10 RESERVES ON LIBOR RATE LOANS. The Company shall pay to each
Bank, as long as such Bank shall be required under regulations of the FRB to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as "Eurocurrency
liabilities"), additional costs on the unpaid principal amount of each LIBOR
Rate Loan equal to the actual costs of such reserves allocated to such Loan by
the Bank (as determined by the Bank in good faith, which determination shall be
conclusive), payable on each date on which interest is payable on such Loan,
provided the Company shall have received at least 15 days' prior written notice
(with a copy to the Agent) of such additional costs from the Bank. If a Bank
fails to give notice 15 days prior to the relevant Interest Payment Date, such
additional costs shall be payable 15 days from receipt of such notice.
4.11 CERTIFICATES OF BANKS. Any Bank claiming reimbursement or
compensation under this Article 4 shall deliver to the Company (with a copy to
the Agent) a certificate setting forth in reasonable detail the amount payable
to the Bank hereunder and such certificate shall be conclusive and binding on
the Company in the absence of manifest error.
4.12 SUBSTITUTION OF BANKS. Upon the receipt by the Company from
any Bank (an "AFFECTED BANK") of a claim for compensation under SECTION 4.7 or
SECTION 4.15, the Company may: (i) request the Affected Bank to use its best
efforts to obtain a replacement bank or financial institution satisfactory to
the Company to acquire and assume all or a ratable part of all of such Affected
Bank's Loans and Commitment (a "REPLACEMENT BANK"); or (ii) request one or more
of the other Banks to acquire and assume all or part of such Affected Bank's
Loans and Commitment; or (iii) designate a Replacement Bank. Any such
designation of a Replacement Bank under clause (i) or (iii) shall be subject to
the prior written consent of the Agent (which consent shall not be unreasonably
withheld).
4.13 SURVIVAL. The agreements and obligations of the Company in
this
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Article 4 shall survive for one year following the payment in full of all
Obligations.
4.14 MANNER AND TREATMENT OF PAYMENTS. The amount of each
payment hereunder or on each Note shall be made to Agent for the account of each
applicable Bank in immediately available funds on the day of payment (which must
be a Banking Day). Any payment received after 11:00 a.m., California time, on
any Banking Day, shall be deemed received on the next succeeding Banking Day.
Whenever any payment to be made hereunder or on each Note is due on a day that
is not a Banking Day, payment shall be made on the next succeeding Banking Day;
provided that the extension shall be included in the computation of interest
owing on the next following Interest Payment Date. Any payment of the principal
of any LIBOR Borrowing shall be made on a LIBOR Banking Day as applicable.
4.15 CHANGE IN CAPITAL REQUIREMENTS; ADDITIONAL COSTS. If a Bank
at any time subsequent to the date of this Agreement determines that the amount
of capital required or expected to be maintained by the Bank or any corporation
controlling the Bank under any Law or any guideline, request or directive of any
Governmental Authority is based on or increased by advances and/or commitments
of the type contemplated by this Agreement, then Company shall pay to the Bank
on demand such additional amounts as the Bank may reasonably determine to be
sufficient to compensate the Bank or such other corporation in light of such
circumstances to the extent that the Bank reasonably determines that the
maintenance of such capital is allocable to advances and/or commitments under
this Agreement. If the occurrence of any Special Circumstance or other
regulatory development, or the imposition of any Tax or Other Tax, or change in
applicable Law, shall result in an increase in the cost or reduction of return
to the Bank of making, funding, maintaining or continuing the funding of any
Borrowing, then Company shall pay to the Bank on demand such additional amounts
as the Bank determines to be necessary to compensate the Bank for such increased
cost.
4.16 MANDATORY PREPAYMENT. In the event that the aggregate
principal amount of the outstanding Loans PLUS the L/C Obligations at any time
exceeds the limitations specified in SECTION 3.6, the Company shall immediately
make a prepayment of the Loans in such amount as is necessary to cause the
amount of outstanding Loans PLUS L/C Obligations to comply with the limitations
of SECTION 3.6.
4.17 AGENCY FEE AND OTHER CONSIDERATION PAYABLE TO BOFA. The
Banks have been informed that pursuant to a fee letter agreement dated as of
August 13, 1997 between BofA and the Company (the "FEE LETTER AGREEMENT"), the
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Company has agreed to pay BofA an agency fee, a commitment fee, Letter of Credit
issuance fees, and other fees and compensation as consideration for BofA's
performance of its duties as Agent under this Agreement, for its earlier
commitment to make the Loans and to issue Letters of Credit, and for other
reasons, as more fully set forth in the Fee Letter Agreement. The Company
covenants and agrees to pay such agency fee, commitment fee, Letter of Credit
issuance fees, and other fees and compensation to BofA at the times and in the
manner set forth in the Fee Letter Agreement. The agency fee, commitment fee,
Letter of Credit issuance fees, and other fees and compensation payable to BofA
under the Fee Letter Agreement shall belong solely to BofA, and BofA shall not
be required to share any such agency fee, commitment fee, Letter of Credit
issuance fees, or other fees or compensation specified in the Fee Letter
Agreement with any of the other Banks.
4.18 MATURITY DATE EXTENSION OPTION. The Maturity Date may be
extended to the first anniversary of the then applicable Maturity Date, at the
sole discretion of each of the Banks, upon receipt from the Company of an
Extension Request delivered to the Agent not earlier than ninety (90) days and
not later than sixty (60) days prior to the date which is two (2) years prior to
the then existing Maturity Date. No extension shall be effective as to any Bank
without the approval of all Banks. Approval or disapproval of each such
extension shall be in the sole and absolute discretion of each Bank. Each Bank
shall notify the Agent and the Company, in writing and within 30 days of receipt
of an Extension Request, whether it will extend the Maturity Date. If all Banks
approve such extension, the Maturity Date shall be extended to the first
anniversary of the then effective Maturity Date. If any Bank elects not to
extend the Maturity Date, or does not give notice of its election to extend the
Maturity Date on or before the date which is thirty (30) days before the date
which is two (2) years prior to the previously applicable Maturity Date, the
Maturity Date shall not be extended.
ARTICLE 5: SECURITY.
5.1 UNSECURED CREDIT. The Obligations shall be unsecured (except as
specified in SECTION 9.2, or as may otherwise now or hereafter be specifically
provided for to the contrary).
ARTICLE 6: CONDITIONS.
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6.1 CONDITIONS TO DISBURSEMENT OF FIRST BORROWINGS. The obligation
of the Banks to make the first new disbursement of the Loan Proceeds is subject
to the conditions precedent specified in SECTION 11.21.
6.2 CONDITIONS FOR SUBSEQUENT BORROWINGS OR FOR A REDESIGNATION OF
BORROWINGS. The obligation of the Banks to make any subsequent disbursement of
Loan Proceeds or redesignation of Borrowing is subject to the following
conditions precedent:
(a) the representations and warranties contained in ARTICLE 7,
as of the latest reporting required under this Agreement, shall be correct
in all Material respects on and as of the date of the Borrowing, or
redesignation thereof, as though made on and as of that date, and no Event
of Default or event that could become an Event of Default upon the giving
of notice and/or the passage of time shall have occurred and be continuing;
and
(b) the Company shall, at its sole expense, deliver or cause to
be delivered to the Agent, in form and substance satisfactory to the Agent,
a Request for Borrowing or a Request for Redesignation of Borrowing, as
applicable.
6.3 ANY BORROWING. In addition to any applicable conditions
precedent set forth elsewhere in this Article 6, the obligation of the Banks to
make any Loan is subject to the conditions precedent that the representations
and warranties contained in SECTION 7.2 shall be true and correct in all
Material respects on and as of the date of such Loan as though made on and as of
that date, and that there shall not have occurred any default which would
constitute an Event of Default or which would upon notice or the passage of time
constitute an Event of Default.
ARTICLE 7: REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the Agent and each Bank that:
7.1 INCORPORATION, QUALIFICATION, POWERS AND CAPITAL STOCK. The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the state of Maryland, is duly qualified to do
business as, and is in good standing as, a foreign corporation in each
jurisdiction in which the conduct of its business or the ownership, leasing or
operation of its properties makes such qualifica-
-45-
tion necessary, and has all requisite power and authority to conduct its
business and to own, lease and operate its properties. Without limiting the
foregoing, the Company qualifies as, and has elected to be taxed as, a real
estate investment trust under the Code. All outstanding shares of capital stock
of the Company are duly authorized, validly issued, fully paid, nonassessable,
and issued in compliance with all applicable state and federal securities and
other Laws.
7.2 EXECUTION, DELIVERY AND PERFORMANCE OF LOAN DOCUMENTS.
(a) The Company has all requisite power and authority to execute
and deliver, and to perform all of its obligations under, the Loan
Documents.
(b) The execution and delivery by the Company of, and the
performance by the Company of each of its obligations under, each Loan
Document have been duly authorized by all necessary action and do not and
will not:
(i) require any consent or approval not heretofore obtained
of any stockholder, security holder or creditor of the Company or any
Subsidiary;
(ii) violate any provision of the articles of incorporation
or bylaws of the Company or any provision of the articles or
certificate of incorporation or organization, bylaws, operating
agreement or partnership agreement of any Subsidiary;
(iii) result in or require the creation or imposition of
any Lien (except to the extent that any Lien is created under this
Agreement) upon or with respect to any property now owned or leased or
hereafter acquired by the Company or any Subsidiary;
(iv) violate any provision of any Law, order, writ,
judgment, injunction, decree, determination or award presently in
effect having applicability to the Company, any Subsidiary or any
property owned by the Company or any Subsidiary;
(v) result in a breach of or constitute a default under, or
cause or permit the acceleration of any Contractual Obligation of the
Company or any Subsidiaries.
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(c) The Company and each Subsidiary is not in default under any
Law, order, writ, judgment, injunction, decree, determination, award,
indenture, agreement, lease or instrument described in SECTIONS 7.2(b)(iv)
OR 7.2(b)(v) above, in any respect that (i) is Materially adverse to the
interests of the Banks, or that (ii) could Materially impair the ability of
the Company to perform its obligations under the Loan Documents, or
(iii) has a Material adverse effect on the business or financial condition
of the Company or any Subsidiary.
(d) No authorization, consent, approval, order, license, permit
or exemption from, or filing, registration or qualification with, or other
action by, or notice to any Governmental Authority not heretofore obtained
is or will be required under applicable Law to authorize or permit the
execution and delivery of, and performance by the Company of all of its
obligations under, the Loan Documents.
(e) Each of the Loan Documents, when executed and delivered,
will constitute the legal, valid and binding obligations of the Company
enforceable against it in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency or other similar laws relating to
or affecting creditors' rights generally or equitable principles relating
to the granting of specific performance or other equitable remedies as a
matter of judicial discretion.
7.3 COMPLIANCE WITH LAWS AND OTHER REQUIREMENTS. The Company is in
compliance with all Requirements of Law and other requirements applicable to its
business and has obtained all authorizations, consents, approvals, orders,
licenses, permits and exemptions from, and has accomplished all filings,
registrations or qualifications with, any Governmental Authority that are
necessary for the transaction of its business.
7.4 SUBSIDIARIES.
(a) EXHIBIT "E" hereto correctly sets forth the names and
jurisdictions of incorporation or formation of all present Subsidiaries.
Except as described in EXHIBIT "E", the Company does not own any capital
stock, membership interest, equity interest or partnership interest in any
Person other than the Subsidiaries. All outstanding shares of capital
stock, membership
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interests or partnership interests, as the case may be, of each Subsidiary
that are owned by the Company or any Subsidiary are (i) owned of record and
beneficially by the Company and/or by one or more Subsidiaries, free and
clear of all liens, claims, encumbrances and rights of others, and are
(ii) duly authorized, validly issued, fully paid, nonassessable, and issued
in compliance with all applicable state and federal securities and other
Laws. The Company may update EXHIBIT "E" from time to time by sending
written notice to the Agent.
(b) Each Subsidiary is a corporation, partnership or limited
liability company duly incorporated, formed or organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation,
formation or organization (as applicable), is duly qualified to do business
as, and is in good standing as, a foreign corporation, partnership or
limited liability company in each jurisdiction in which the conduct of its
business or the ownership or leasing of its properties makes such
qualification necessary, and has all requisite power and authority to
conduct its business and to own and lease its properties.
(c) Each Subsidiary is in compliance with all Requirements of
Law and other requirements applicable to its business and has obtained all
authorizations, consents, approvals, orders, licenses, permits and
exemptions from, and has accomplished all filings, registrations or
qualifications with, any Governmental Authority that are necessary for the
transaction of its business.
7.5 AFFILIATED PARTNERSHIPS. There are no Affiliated Partnerships
presently in existence which are not Subsidiaries listed on EXHIBIT "E" hereto.
7.6 FINANCIAL STATEMENTS OF THE COMPANY AND THE SUBSIDIARIES. The
Company has furnished to the Banks a copy of the Pan Pacific Retail Properties,
Inc. Prospectus dated August 7, 1997, which contains certain financial
information of the Company and its Subsidiaries. Such financial information
fairly presents the consolidated financial position of the Company and the
Subsidiaries as at the dates specified therein and the consolidated results of
operations and cash flows for the periods then ended, all in conformity with
GAAP applied on a consistent basis.
7.7 NO MATERIAL ADVERSE CHANGE. There has been no Material adverse
change in the condition, financial or otherwise, of the Company and the
Subsidiaries, taken as a whole, from the financial condition of the Company and
the Subsidiaries, taken as a whole, as of August 7, 1997, and the Company and
the
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Subsidiaries, taken as a whole, do not have any Material liability or, to the
best knowledge of the Company, Material contingent liability, not reflected or
disclosed in the Prospectus described in SECTION 7.6.
7.8 TAX LIABILITY. The Company and each Subsidiary have filed all
tax returns (federal, state and local) required to be filed by them and have
paid all taxes shown thereon to be due and all property taxes due, including
interest and penalties, if any. To the best knowledge of the Company, there
does not exist any substantial likelihood that any Governmental Authority will
successfully assert a tax deficiency against the Company or any Subsidiary that
is Material to the Company and the Subsidiaries, taken as a whole, that has not
been adequately reserved against in the financial statements described in
SECTION 7.6. The Company and each Subsidiary has established and is maintaining
adequate reserves for tax liabilities, if any, sufficient to comply with GAAP.
7.9 LITIGATION. There are no actions, suits, proceedings, claims or
disputes pending or, to the best knowledge of the Company, threatened, at law,
in equity, in arbitration or before any Governmental Authority against or
affecting the Company or any Subsidiary, or any property of the Company or any
Subsidiary, which, if determined adversely to the Company or the Subsidiary,
could have a material adverse effect on the interests of any Bank, or could
Materially impair the ability of the Company to perform its obligations under
the Loan Documents, or could have a Material adverse effect on the business or
financial condition of the Company and the Subsidiaries, taken as a whole.
7.10 ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law.
Each Plan which is intended to qualify under Section 401(a) of the Code has
received a favorable determination letter from the IRS and to the best
knowledge of the Company, nothing has occurred which would cause the loss
of such qualification. The Company and each ERISA Affiliate has made all
required contributions to any Plan subject to Section 412 of the Code, and
no application for a funding waiver or an extension of any amortization
period pursuant to Section 412 of the Code has been made with respect to
any Plan.
(b) There are no pending or, to the best knowledge of Company,
threatened claims, actions or lawsuits, or action by any
-49-
Governmental Authority, with respect to any Plan which has resulted or
could reasonably be expected to result in (i) a Material adverse change in,
or a Material adverse effect upon, the operations, business, properties,
condition (financial or otherwise) of the Company, or (ii) a Material
impairment of the ability of the Company to perform its obligations under
the Loan Documents or to avoid any Event of Default. There has been no
prohibited transaction or violation of the fiduciary responsibility rules
with respect to any Plan which has resulted or could reasonably be expected
to result in (i) a Material adverse change in, or a Material adverse effect
upon, the operations, business, properties, condition (financial or
otherwise) of the Company, or (ii) a Material impairment of the ability of
the Company to perform its obligations under the Loan Documents or to avoid
any Event of Default.
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability;
(iii) neither the Company nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA with
respect to any Pension Plan (other than premiums due and not delinquent
under Section 4007 of ERISA); (iv) neither the Company nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability (and
no event has occurred which, with the giving of notice under Section 4219
of ERISA, would result in such liability) under Section 4201 or 4243 of
ERISA with respect to a Multiemployer Plan; and (v) neither the Company nor
any ERISA Affiliate has engaged in a transaction that could be subject to
Section 4069 or 4212(c) of ERISA.
7.11 REGULATIONS U AND X; INVESTMENT COMPANY ACT. Neither the
Company nor any Subsidiary is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of "purchasing"
or "carrying" any "margin stock" within the meanings of Regulation U of the FRB.
No part of the Loan Proceeds will be used to purchase or carry any margin stock,
or to extend credit to others for that purpose, or for any purpose that violates
the provisions of Regulations U or X of the Board of Governors. Neither the
Company nor any Subsidiary is or is required to be registered under the
Investment Company Act of 1940.
7.12 NO DEFAULT. No event has occurred and is continuing that is
an Event of Default or that could become an Event of Default upon the giving of
notice and/or the passage of time. As of the Closing Date, neither the Company
nor any Subsidiary is in default under or with respect to any Contractual
Obligation in any respect which, individually or together with all other such
defaults, could reasonably
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be expected to (a) have a Material adverse effect on the business or financial
condition of the Company or any Subsidiary, (b) be Materially adverse to the
interests of the Banks, or (c) Materially impair the ability of the Company to
perform its obligations under the Loan Documents.
7.13 BORROWING BASE. The sum of the aggregate principal amount
outstanding under the Loans PLUS the L/C Obligations does not exceed the
Borrowing Base.
7.14 ENVIRONMENTAL MATTERS.
(a) Except as specifically disclosed in SCHEDULE 7.14, the
on-going operations of the Company and each of its Subsidiaries comply in
all respects with all Environmental Laws, except such non-compliance which
would not ( if enforced in accordance with applicable law) result in
liability in excess of $200,000 in the aggregate.
(b) Except as specifically disclosed in SCHEDULE 7.14, the
Company and each of its Subsidiaries have obtained all licenses, permits,
authorizations and registrations required under any Environmental Law
("ENVIRONMENTAL PERMITS") and necessary for their respective ordinary
course operations, all such Environmental Permits are in good standing, and
the Company and each of its Subsidiaries are in compliance with all
material terms and conditions of such Environmental Permits.
(c) Except as specifically disclosed in SCHEDULE 7.14, none
of the Company, any of its Subsidiaries or any of their respective present
property or operations, is subject to any outstanding written order from or
agreement with any Governmental Authority, nor subject to any judicial or
docketed administrative proceeding, respecting any Environmental Law,
Environmental Claim or Hazardous Material.
(d) Except as specifically disclosed in SCHEDULE 7.14,
there are no Hazardous Materials or other conditions or circumstances
existing with respect to any property of the Company or any Subsidiary, or
arising from operations of the Company or any Subsidiaries that would
reasonably be expected to give rise to Environmental Claims with a
potential liability of the Company and Subsidiaries in excess of $200,000
in the aggregate for any such condition, circumstance or property. In
addition, (i) no underground storage
-51-
tanks exist on any property owned or operated by the Company or any
Subsidiary (x) that are not properly registered or permitted under
applicable Environmental Laws, or (y) that are leaking or disposing of
Hazardous Materials off-site, and (ii) the Company and Subsidiaries have
notified all of their employees of the existence, if any, of any health
hazard arising from the conditions of their employment and have met all
notification requirements under Title III of CERCLA and all other
Environmental Laws.
7.15 INSURANCE. The properties of the Company and each Subsidiary
is insured with financially sound and reputable insurance companies not
Affiliates of the Company, in such amounts, with such deductibles and covering
such risks as are customarily carried by companies engaged in similar businesses
and owning similar properties in localities where the Company or such Subsidiary
operates. All such insurance is in compliance with the insurance requirements
specified in this Agreement.
7.16 NO BURDENSOME RESTRICTIONS. Neither the Company nor any
Subsidiary is a party to or bound by any Contractual Obligation, or subject to
any restriction in any formation documents or other organizational or charter
documents, or any Requirement of Law, which could reasonably be expected to
(a) have a Material adverse affect on the business or financial condition of the
Company or any Subsidiary, (b) be Materially adverse to the interests of the
Banks, or (c) Materially impair the ability of the Company to perform its
obligations under the Loan Documents.
7.17 FULL DISCLOSURE. None of the representations or warranties
made by the Company in the Loan Documents as of the date such representations
and warranties are made or deemed made, and none of the statements contained in
any exhibit, report, statement or certificate furnished by or on behalf of the
Company or any Subsidiary in connection with the Loan Documents (including the
offering and disclosure materials delivered by or on behalf of the Company to
the Banks prior to the Closing Date), contains any untrue statement of a
material fact or omits any material fact required to be stated therein or
necessary to make the statements made therein, in light of the circumstances
under which they are made, not misleading as of the time when made or delivered.
ARTICLE 8: COVENANTS OF THE COMPANY.
As long as any Note remains unpaid or any other Obligation remains
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outstanding or any Commitment remains in effect:
8.1 CONSOLIDATED TANGIBLE NET WORTH. The Company shall not permit
Consolidated Tangible Net Worth at any time to be less than the sum of
(a) $240,000,000 PLUS (b) 75% of the net proceeds from any equity offerings of
the Company after the Company's initial public offering.
8.2 DEBT SERVICE COVERAGE RATIO. The Company shall not permit, at
any time, the ratio of (a) Adjusted EBITDA to (b) Actual Debt Service to be less
than 2.0 to 1.0.
8.3 LEVERAGE RATIO. The Company shall not permit, at any time, the
ratio of (a) Total Liabilities to (b) Aggregate Adjusted Current Value to exceed
.50 to 1.0.
8.4 SECURED DEBT RATIO. The Company shall not permit, at any time,
the ratio of (a) the aggregate amount of Total Liabilities then secured by real
property to (b) Aggregate Adjusted Current Value to exceed .35 to 1.0.
8.5 UNENCUMBERED ASSET RATIOS.
(a) the Company shall not permit, at any time, the ratio of
(i) the aggregate amount of the Adjusted Current Values of all Unencumbered
Assets to (ii) the aggregate amount of Total Liabilities which are not
secured by real property to be less than 2.0 to 1.0.
(b) Company shall not permit, at any time, the ratio of (i)
the aggregate amount of the Adjusted Current Values of all Unencumbered
Assets to (ii) Aggregate Adjusted Current Value to be less than .50 to 1.0.
8.6 PAYMENT OF TAXES AND OTHER POTENTIAL LIENS. The Company shall
pay and discharge promptly, and cause each Subsidiary to pay and discharge
promptly, all taxes, assessments and governmental charges or levies imposed upon
it, upon its property or any part thereof, upon its income or profits or any
part thereof, or upon any right or interest of any Bank under or in respect of
any Loan Document, EXCEPT that neither the Company nor any Subsidiary shall be
required to pay or cause to be paid (a) any income or gross receipts tax
generally applicable to banks and imposed on any Bank, or (b) any tax,
assessment, charge or levy that is not yet past due, or being actively contested
in good faith by appropriate proceedings, as long as the Company or
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Subsidiary, as the case may be, has established and maintains adequate reserves
for the payment of the same and, by reason of nonpayment, no property of the
Company or any Subsidiary is in danger of being lost or forfeited.
8.7 PRESERVATION OF EXISTENCE. The Company shall preserve and
maintain, and cause each Subsidiary to preserve and maintain, its corporate or
partnership existence, as the case may be, and all licenses, rights, franchises
and privileges in the jurisdiction of its incorporation or formation and all
authorizations, consents, approvals, orders, licenses, permits or exemptions
from, or registrations or qualifications with, any Governmental Authority that
are necessary for the transaction of its business, and qualify and remain
qualified, and cause each Subsidiary to qualify and remain qualified, to do
business as a foreign corporation or partnership in each jurisdiction in which
such qualification is necessary in view of its business or the ownership or
leasing of its properties.
8.8 REIT STATUS; NO PROHIBITED TRANSACTIONS. The Company shall at
all times elect to be taxed as, and shall take any and all action necessary to
qualify as, a real estate investment trust under the Code. The Company shall
not suffer or incur in any fiscal year any "net income from prohibited
transactions" as defined in Sections 857 and 1221 of the Code, as those sections
may be amended from time to time.
8.9 MAINTENANCE OF PROPERTIES. The Company shall maintain,
preserve and protect, and cause each Subsidiary to maintain, preserve and
protect, all of its properties in good order and condition, subject to wear and
tear in the ordinary course of business and, in the case of unimproved
properties, damage caused by the natural elements, and not allow any Subsidiary
to suffer or permit any waste of its properties.
8.10 MAINTENANCE OF INSURANCE. The Company shall maintain, and
shall cause each of its Subsidiaries to maintain, with financially sound and
reputable independent insurers, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by
Persons engaged in the same or similar business, of such types and in such
amounts as are customarily carried under similar circumstances by such other
Persons; including workers' compensation insurance, public liability and
property and casualty insurance which amount shall not be reduced by the
Company in the absence of 10 days' prior notice to the Agent. All such
insurance shall name the Agent as loss payee/mortgagee and as additional
insured, for the benefit of the Banks, as their interests may appear. All
casualty and
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key man insurance maintained by the Company shall name the Agent as loss payee
and all liability insurance shall name the Agent as additional insured for the
benefit of the Banks, as their interests may appear. Upon request of the Agent
or any Bank, the Company shall furnish the Agent, with sufficient copies for
each Bank, at reasonable intervals (but not more than once per calendar year) a
certificate of the chief financial officer of the Company (and, if requested by
the Agent, any insurance broker of the Company) setting forth the nature and
extent of all insurance maintained by the Company and its Subsidiaries in
accordance with this Section (and which, in the case of a certificate of a
broker, were placed through such broker).
8.11 MERGERS. The Company shall not merge or consolidate, or permit
any Subsidiary to merge or consolidate, with or into any Person, except that any
Subsidiary existing on the date hereof may merge into the Company (provided that
the surviving entity is the Company) or into any other Subsidiary; provided that
if the transaction involves a merger of a Subsidiary and wholly-owned
Subsidiary, the wholly-owned Subsidiary shall be the continuing or surviving
corporation; and provided further that no Subsidiary who is a Guarantor at the
time of the proposed merger shall merge with or into a non-guarantying
Subsidiary.
8.12 BOOKS AND RECORDS. The Company shall maintain, and cause each
Subsidiary to maintain, full and complete books of account and other records
reflecting the results of its operations in conformity with GAAP applied on a
consistent basis and all applicable requirements of any Governmental Authority
having jurisdiction over the Company or any Subsidiary or any business or
properties of the Company or any Subsidiary.
8.13 INSPECTION RIGHTS. At any time during regular business hours
and at any other reasonable time, and as often as requested, the Company shall
permit, and cause each Subsidiary to permit, each Bank or any employee, agent or
representative thereof to inspect and make copies and abstracts from the records
and books of account of, and to visit and inspect the properties of, the Company
and any Subsidiary, and to discuss any affairs, finances and accounts of the
Company and any Subsidiary with any of their respective officers or directors.
8.14 REPORTING REQUIREMENTS. The Company shall cause to be
delivered to the Agent, in form and detail satisfactory to the Agent and the
Majority Banks, with sufficient copies for each Bank:
(a) As soon as available and in any event within 45 days
after
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the end of each calendar quarter, unaudited consolidated balance sheets,
statements of income, retained earnings and cash flows of the Company and
the Subsidiaries for such period, all in reasonable detail and duly
certified (subject to year-end audit adjustments) by the chief financial
officer or the treasurer of the Company. Additionally, the Company shall
deliver with the unaudited consolidated balance sheets a schedule which
shall reconcile the amounts used to calculate the covenants pursuant to
SECTIONS 8.1, 8.2, 8.3, 8.4, 8.5, 8.20(d), 8.24 and 8.28 to such unaudited
consolidated balance sheet.
(b) As soon as available and in any event within 120 days
after the end of each calendar year, a consolidated balance sheet of the
Company and the Subsidiaries as of the end of the calendar year most
recently ended and consolidated statements of income, retained earnings and
cash flows of the Company and the Subsidiaries for such year, setting forth
in each case in comparative form the corresponding figures for the
preceding fiscal year, audited by and with the unqualified opinion of an
independent certified public accountants of nationally recognized standing
selected by the Company and acceptable to the Majority Banks.
(c) Within five (5) days of the sending or filing thereof,
copies of each annual report, proxy or financial statement or other report
or communication sent to the shareholders of the Company, and copies of all
annual, regular, periodic and special filings, reports and registration
statements which the Company or any of its Subsidiaries may file or be
required to file with the Securities Exchange Commission or any similar or
corresponding Governmental Agency, with any securities exchange or other
national market trading system, or with the National Association of
Securities Dealers, including Forms 8K, 10-K, 10-Q, 126-25 and NASD report
no. 10b-17.
(d) At the time of the delivery of the financial statements
described in (a) and (b) above, a certificate of the chief financial
officer or the treasurer of the Company stating that no event exists that
is, or with the giving of notice and/or the passage of time would be, an
Event of Default, or if such an event exists, stating the nature thereof
and the action that the Company proposes to take with respect thereto.
(e) As soon as available and in any event within 30 days
after the end of each calendar quarter, a rent roll, tenant sales
performance data (to the extent provided by tenants to the Company) and a
leasing activity summary
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covering such quarter for each of the Assets in the Borrowing Base
Properties Pool.
(f) As soon as practicable, and in any event within 30 days
after the end of each calendar quarter, a report covering each of the
Assets and each of the real estate assets owned by one or more Subsidiaries
showing the actual operating results of each Asset and each such other real
estate asset for the calendar quarter most recently ended, duly certified
by the chief financial office of the Company.
(g) Within 45 days after the end of each calendar quarter,
a certificate of the Company's chief financial officer or treasurer,
together with such backup information as the Agent may reasonably require,
demonstrating in reasonable detail that the Company was in compliance
during the applicable period with the covenants set forth in SECTIONS 8.1,
8.2, 8.3, 8.4, 8.5, 8.20(d), 8.24 and 8.28.
(h) As soon as practicable, and in any event within 60 days
after the end of each fiscal year, projections of cash flow for the Company
for the next succeeding three-year period.
(i) Such other information about the business, assets,
operation or condition, financial or otherwise, of the Company or any
Subsidiary, as each Bank may reasonably request from time to time.
8.15 NOTICES. The Company shall promptly notify the Agent and each
Bank:
(a) of the occurrence of any Event of Default, and of the
occurrence or existence of any event or circumstance that foreseeably will
become an Event of Default (and in each case such notice shall include the
action that the Company proposes to take with respect thereto);
(b) of (i) any breach or non-performance of, or any default
under, any Contractual Obligation of the Company or any Subsidiaries that
is Materially adverse to the interests of the Banks, or that could
Materially impair the ability of the Company to perform its obligations
under the Loan Documents, or that has a Material adverse effect on the
business or financial condition of the Company or any Subsidiary, and
(ii) any dispute, litigation,
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investigation, proceeding or suspension which may exist at any time between
the Company or any Subsidiaries and any Governmental Authority;
(c) of the commencement of, or any Material development in,
any litigation or proceeding affecting the Company or any Subsidiary (i) in
which the amount of damages claimed is $1,000,000 or more, (ii) in which
injunctive or similar relief is sought and which, if adversely determined,
would reasonably be expected to be Materially adverse to the interests of
the Banks, to Materially impair the ability of the Company to perform its
obligations under the Loan Documents, or to have a Material adverse effect
on the business or financial condition of the Company or any Subsidiary, or
(iii) in which the relief sought is an injunction or other stay of the
performance of this Agreement or any Loan Document;
(d) upon, but in no event later than 10 days after,
becoming aware of (i) any and all enforcement, cleanup, removal or other
governmental or regulatory actions instituted, completed or threatened
against the Company or any Subsidiary or any of their respective properties
pursuant to any applicable Environmental Laws, (ii) all other Environmental
Claims, and (iii) any environmental or similar condition on any real
property adjoining or in the vicinity of the property of the Company or any
Subsidiary that could reasonably be anticipated to cause such property or
any part thereof to be subject to any restrictions on the ownership,
occupancy, transferability or use of such property under any Environmental
Laws;
(e) of any other litigation or proceeding affecting the
Company or any Subsidiaries which the Company would be required to report
to the Securities Exchange Commission pursuant to the Exchange Act, within
four days after reporting the same to the Securities Exchange Commission;
(f) of any of the following events affecting the Company,
together with a copy of any notice with respect to such event that may be
required to be filed with a Governmental Authority and any notice delivered
by a Governmental Authority to the Company with respect to such event:
(i) an ERISA Event;
(ii) if any of the representations and warranties in
SECTION 7.10 ceases to be true and correct;
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(iii) the adoption of any new Pension Plan or other Plan
subject to Section 412 of the Code;
(iv) the adoption of any amendment to a Pension Plan or
other Plan subject to Section 412 of the Code, if such amendment
results in a material increase in contributions or Unfunded Pension
Liability; or
(v) the commencement of contributions to any Pension Plan
or other Plan subject to Section 412 of the Code; and
(g) of any material change in accounting policies or
financial reporting practices by the Company or any Subsidiaries.
Each notice under this Section shall be accompanied by a written
statement by the Company's chief financial officer setting forth details of the
occurrence referred to therein, and stating what action the Company or any
affected Subsidiary proposes to take with respect thereto and at what time.
Each notice under subsection (a) shall describe with particularity any and all
clauses or provisions of this Agreement or other Loan Document that have been
(or foreseeably will be) breached or violated.
8.16 [Intentionally Deleted.]
8.17 LIENS. The Company shall not create, incur, assume or allow to
exist (or, with respect to the Tanasbourne Asset, permit Tanasbourne to create,
incur, assume or allow to exist) any Lien of any nature upon or with respect to
any Asset in the Borrowing Base Properties Pool, except the following
permissible Liens:
(a) Liens for taxes, assessments or governmental charges or
levies to the extent that neither the Company nor any Subsidiary is
required to pay the amount secured thereby under SECTION 8.6; and
(b) Liens imposed by law, such as carrier's,
warehouseman's, mechanic's, materialman's and other similar Liens, arising
in the ordinary course of business in respect of obligations that are not
overdue or are being actively contested in good faith by appropriate
proceedings, as long as the Company or Subsidiary, as the case may be, has
established and maintains adequate reserves
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for the payment of the same and, by reason of nonpayment, no property of
the Company or any Subsidiary is in danger of being lost or forfeited.
8.18 NO OTHER NEGATIVE PLEDGE. The Company shall not covenant or
otherwise agree with any Person (other than the Banks and Agent pursuant to this
Agreement), whether in connection with obtaining or modifying credit
accommodations from such Person, or incurring other Indebtedness, or otherwise,
to keep its Unencumbered Assets free of any or all Liens.
8.19 PREPAYMENT OF INDEBTEDNESS. If an Event of Default has
occurred and is continuing or an acceleration of the Obligations has occurred,
the Company shall not prepay the principal amount, in whole or in part, of any
Indebtedness other than (a) Obligations owed to each Bank hereunder or under
some other agreement between the Company and such Bank, and (b) Indebtedness
which ranks pari passu with the Obligations and which is or becomes due and
owing whether by reason of acceleration or otherwise.
8.20 LOANS AND INVESTMENTS. The Company shall not purchase or
acquire, or suffer or permit any Subsidiary to purchase or acquire, or make any
commitment to purchase or acquire, any capital stock, equity interest or any
obligations or securities of, or any interest in, any Person, or make or commit
to make any advance, loan, extension of credit or capital contribution to or any
other investment in, any Person, including any Affiliate, except for:
(a) investments in cash equivalents;
(b) Extensions of credit by the Company, in the ordinary
course of business and at market terms, to any of its wholly-owned
Subsidiaries or by any of its wholly-owned Subsidiaries to another of its
wholly-owned Subsidiaries;
(c) Extensions of credit by the Company to tenants leasing
space within the Assets for the build out of tenant improvements within the
Assets, provided that the aggregate amount of all such extensions of credit
(outstanding plus committed) shall not at any time exceed $1,000,000; or
(d) investments in Persons, provided that (i) any such
investment is undertaken in accordance with all Requirements of Law;
(ii) the Company's (or a Subsidiary's) percentage ownership interest in
such Person after such investment will not cause such Person to become a
Subsidiary; and
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(iii) the aggregate amount of all such Investments shall not at any time
exceed an amount equal to 15% of the Aggregate Adjusted Current Value; or
(e) investments in existing partnerships which the Company,
as of the date hereof, is a partner (as reflected in SCHEDULE 8.20(e)
hereof).
8.21 COMPLIANCE WITH LAWS AND OTHER REQUIREMENTS.
(a) The Company shall comply, and cause each Subsidiary to
comply, with all Requirements of Law and orders of any Governmental
Authority.
(b) The Company shall comply, and cause each Subsidiary (to
the extent they are so engaged) to comply, with all Requirements of Law
relating to the development, management and operation of each of its real
estate assets, and shall obtain, and cause each Subsidiary (to the extent
they are so engaged) to obtain, all necessary authorizations, consents,
approvals, licenses and permits of any Governmental Authority with respect
thereto.
8.22 CHANGE IN NATURE OF BUSINESS. The Company shall not make, or
permit any Subsidiary to make, any change in the nature of its or their
respective businesses as carried on at the date hereof that is Material to the
Company and Subsidiaries, taken as a whole, which has not been consented to by
the Majority Banks in writing.
8.23 COMPLIANCE WITH ERISA. The Company shall , and shall cause
each of its ERISA Affiliates to: (a) maintain each Plan in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
federal or state law; (b) cause each Plan which is qualified under
Section 401(a) of the Code to maintain such qualification; and (c) make all
required contributions to any Plan subject to Section 412 of the Code. In
addition, the Company shall not, and shall not suffer or permit any of its ERISA
Affiliates to: (a) engage in a prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan which has resulted or
could reasonably expected to result in liability of the Company in an aggregate
amount in excess of $500,000; or (b) engage in a transaction that could be
subject to Section 4069 or 4212(c) of ERISA.
8.24 DIVIDENDS. The Company shall not declare or pay any dividend
on any of its capital stock now or hereafter outstanding which exceeds the
LESSER of
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(a) 100% of the Funds From Operations for the calendar quarter in which such
dividend is paid, and (b) 95% of the average quarterly Funds From Operations
(calculated based upon the current calendar quarter and the immediately
preceding three calendar quarters. Notwithstanding the foregoing, the Company
may pay dividends that exceed the foregoing limitation to the extent (but only
to the extent) that the payment of such dividends is necessary to maintain its
status as a real estate investment trust under the Code.
8.25 DISPOSITION OF PROPERTIES. The Company shall not, and shall
not permit the Subsidiaries to, sell, assign, exchange, transfer, lease or
otherwise dispose of any of their respective properties (whether real or
personal), other than properties sold, assigned, exchanged, transferred, leased
or otherwise disposed of for fair value and in the ordinary course of business.
8.26 MANAGEMENT; OWNERSHIP. The Company shall at all times, unless
the Majority Banks otherwise agree, maintain Xxxxxx Xxxx as president and chief
executive officer of the Company.
8.27 COMPLIANCE WITH AVAILABILITY LIMITS. The Company shall not
permit the aggregate outstanding principal amount of the Loans PLUS the L/C
Obligations to exceed the LESSER of (a) the Total Aggregate Commitment, or
(b) the Borrowing Base.
8.28 DEVELOPMENT LIMITATION. The Company and its Subsidiaries shall
not commit to, commence or continue construction of any improvements (excluding
normal repair or rehabilitation work on currently owned properties) on any
undeveloped or partially developed property of the Company or any of its
Subsidiaries, if the cost to complete such construction, together with the
aggregate cost to complete construction of all other improvements to be
constructed on undeveloped or partially developed property of the Company or any
of its Subsidiaries, would exceed 10% of the Aggregate Adjusted Current Value.
8.29 ENVIRONMENTAL LAWS.
(a) The Company shall, and shall cause each Subsidiary to,
conduct its operations and keep and maintain its property in compliance
with all Environmental Laws.
(b) Upon the written request of the Agent or any Bank, the
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Company shall submit and cause each of its Subsidiaries to submit, to the
Agent with sufficient copies for each Bank, at the Company's sole cost and
expense, at reasonable intervals, a report providing an update of the
status of any environmental, health or safety compliance, hazard or
liability issue identified in any notice or report required pursuant to
SECTION 8.15(d), that could, individually or in the aggregate, result in
liability in excess of $50,000.
8.30 USE OF PROCEEDS. The Company shall use the proceeds of the
Loans for working capital purposes not in contravention of any Laws or of any
Loan Document. Without limiting the foregoing, the Company shall not, and shall
not suffer or permit any Subsidiary to, use any portion of the Loan proceeds,
directly or indirectly, (i) to purchase or carry "margin stock" as such term is
defined in Regulation G, T, U or X of the FRB, (ii) to repay or otherwise
refinance indebtedness of the Company or others incurred to purchase or carry
margin stock, (iii) to extend credit for the purpose of purchasing or carrying
any margin stock, or (iv) to acquire any security in any transaction that is
subject to Section 13 or 14 of the Exchange Act.
8.31 TRANSACTIONS WITH AFFILIATES. The Company shall not, and shall
not suffer or permit any Subsidiary to, enter into any transaction with any
Affiliate of the Company, except upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than would obtain in a comparable
arm's-length transaction with a Person not an Affiliate of the Company or such
Subsidiary.
8.32 ACCOUNTING CHANGES. The Company shall not, and shall not
suffer or permit any Subsidiary to, make any significant change in accounting
treatment or reporting practices, except as required by GAAP, or change the
fiscal year of the Company or of any Subsidiary.
ARTICLE 9: EVENTS OF DEFAULT AND REMEDIES UPON DEFAULT.
9.1 EVENTS OF DEFAULT. The occurrence of any one or more of the
following events shall constitute an Event of Default hereunder:
(a) failure to pay within 5 days after the date when due
the principal of each Note or any portion thereof or any interest thereon;
or
(b) failure to pay any fee or any other amount payable by
the Company or any Subsidiary under the Loan Documents within 15 days after
the
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date when due; or
(c) failure to perform or observe any other term, covenant
or agreement contained in any Loan Document on the Company's or any
Subsidiary's part to be performed or observed, and such failure shall
continue uncured for a period of thirty (30) days following notice from the
Agent to the Company (PROVIDED, HOWEVER, that the cure period specified in
this subparagraph (c) shall not be applicable to any of the other Events of
Default set forth in the other subparagraphs of this Section 9.1, or with
respect to the failure to perform any covenants set forth in Sections 8.10
or 8.11, or with respect to any other provisions of any of the other Loan
Documents as to which a cure period is specifically stated); or
(d) any representation or warranty in any Loan Document or
in any certificate, agreement, instrument or other document made or
delivered pursuant to or in connection with any Loan Document proves to
have been incorrect when made in any respect that is materially adverse to
the interests of any Bank under the Loan Documents; or
(e) the occurrence of any default under any other agreement
between the Company and any Bank, including without limitation, the failure
to pay when due (or within any stated grace period) the principal or any
principal installment of, or any interest, on any present or future
indebtedness for borrowed money owed by the Company to any Bank; or
(f) the Company, any Subsidiary or any Guarantor is
dissolved or liquidated or all or substantially all of the assets of the
Company are sold or otherwise transferred or encumbered without the prior
written consent of each Bank; or
(g) the Company, any Subsidiary or any Guarantor is the
subject of an order for relief by any bankruptcy court, or is unable or
admits in writing its inability to pay its debts as they mature or makes an
assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any part of its
property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or
consent of the Company, Subsidiary or Guarantor and the appointment
continues undischarged or unstayed for 60 days; or institutes or
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consents to any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, dissolution, custodianship, conservatorship,
liquidation, rehabilitation or similar proceeding relating to it or to all
or any part of its property under the laws of any jurisdiction; or any
similar proceeding is instituted without the consent of the Company,
Subsidiary or Guarantor and continues undismissed or unstayed for 45 days;
or any judgment, writ, warrant of attachment or execution or similar
process is issued or levied against all or any part of the property of the
Company, any Subsidiary or any Guarantor and is not released, vacated or
fully bonded within 45 days after its issue or levy; or
(h) the Majority Banks have reasonably determined that a
Material adverse change has occurred since the date hereof in the
operations, business or financial condition of the Company and the
Subsidiaries taken as a whole, and 30 calendar days have elapsed since the
date that notice of such determination is given to the Company; or
(i) the Company, any Subsidiary or any Guarantor shall
(i) fail to pay any indebtedness to any other Person or any interest or
premium thereon, when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) and such failure shall
continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such indebtedness, or (ii) fail to
perform any term, covenant or condition on its part to be performed under
any agreement or instrument relating to any such indebtedness, when
required to be performed, and such failure shall continue after the
applicable grace period, if any, specified in such agreement or instrument,
if the effect of such failure to perform is to accelerate, or to permit the
acceleration of, the maturity of such indebtedness; or any such
indebtedness shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment), prior to
the stated maturity thereof; or
(j) any Guarantor shall reject or disaffirm its Guaranty,
or otherwise notify the Agent that it does not intend the Guaranty or its
liability thereunder to apply to any one or more future Borrowings or other
Obligations; or
(k) (i) An ERISA Event shall occur with respect to a
Pension Plan or Multiemployer Plan which has resulted or could reasonably
be expected to result in liability of the Company under Title IV of ERISA
to the Pension
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Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of
$500,000; or (ii) the aggregate amount of Unfunded Pension Liability among
all Pension Plans at any time exceeds $500,000; or (iii) the Company or any
ERISA Affiliate shall fail to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan
in an aggregate amount in excess of $500,000; or
(l) any Borrowing Base Certificate proves to have been
incorrect in any Material respect when delivered to the Agent.
9.2 REMEDIES. If any Event of Default occurs, the Agent shall, at
the request of, or may, with the consent of, the Majority Banks,
(a) declare the Commitment of each Bank to make Loans to be
terminated, whereupon such Commitments shall be terminated;
(b) declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon, and all other amounts owing
or payable hereunder or under any other Loan Document to be immediately due
and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Company; and
(c) exercise on behalf of itself and the Banks all rights
and remedies available to it and the Banks under the Loan Documents or
applicable law;
PROVIDED, HOWEVER, that upon the occurrence of any event specified in
subsection (g) of SECTION 9.1, the obligation of each Bank to make Loans
shall automatically terminate and the unpaid principal amount of all
outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable without further act of the Agent or
any Bank. Upon the occurrence of any Event of Default, the Company shall
immediately pay to Agent, for the benefit of the Banks, an amount (the "L/C
OBLIGATIONS AMOUNT") equal to the aggregate outstanding L/C Obligations;
and upon written receipt of the payment of the L/C Obligations Amount, the
Agent shall deposit such funds in an interest-bearing cash account (the
"CASH ACCOUNT") in the name of the Company maintained with the Agent as to
which the Company shall have NO right of withdrawal except as provided
below. The Company hereby irrevocably authorizes and directs the Agent to
apply amounts on deposit in the
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Cash Account against draws on the outstanding Letters of Credit as such
draws are made. The Agent shall have, and is hereby granted, a security
interest in the Cash Account and all funds therein, to secure all
Obligations owing to the Agent and the Banks by the Company. Upon
expiration of all Letters of Credit and payment in full of all draws
thereunder and all outstanding Loans and other Obligations, the amounts
then on deposit in the Cash Account and any interest accrued thereon shall
then be returned to the Company (to the extent any funds remain in the Cash
Account after application of such funds as provided above.)
9.3 RIGHTS NOT EXCLUSIVE. The rights and remedies of the Agent and
Banks provided for in this Agreement and the other Loan Documents are cumulative
and are not exclusive of any other rights, powers, privileges or remedies
provided by law or in equity, or under any other instrument, document or
agreement now existing or hereafter arising.
ARTICLE 10: THE AGENT.
10.1 APPOINTMENT AND AUTHORIZATION. Each Bank hereby irrevocably
appoints, designates and authorizes the Agent to take such action in its behalf
under the provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly delegated to it by
the terms of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary contained elsewhere in this Agreement or in any other Loan
Document, the Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Agent have or be deemed to have any
fiduciary relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Agent.
10.2 DELEGATION OF DUTIES. The Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents, employees
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
10.3 LIABILITY OF AGENT. None of the Agent-Related Persons shall:
(a) be liable for any action taken or omitted to be taken
by any of them under or in connection with this Agreement or any other Loan
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Document or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct), or
(b) be responsible in any manner to any of the Banks for
any recital, statement, representation or warranty made by the Company or
any Subsidiary or Affiliate of the Company, or any officer thereof,
contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided
for in, or received by the Agent under or in connection with, this
Agreement or any other Loan Document, or for the value of or title to any
collateral, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any
failure of the Company or any other party to any Loan Document to perform
its obligations hereunder or thereunder.
No Agent-Related Person shall be under any obligation to any Bank to ascertain
or to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of the Company or any of the Company's
Subsidiaries or Affiliates.
10.4 RELIANCE BY AGENT.
(a) The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal counsel
(including counsel to the Company), independent accountants and other
experts selected by the Agent. The Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other
Loan Document unless it shall first receive such advice or concurrence of
each Bank as it deems appropriate and, if it so requests, it shall first be
indemnified to its satisfaction by the Banks against any and all liability
and expense which may be incurred by it by reason of taking or continuing
to take any such action. The Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement or any other
Loan Document in accordance with a request or consent of each Bank and such
request and any action taken or failure to act pursuant thereto shall be
binding upon all of the Banks.
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(b) For purposes of determining compliance with the
conditions specified in SECTION 6.1 and SECTION 11.21, each Bank that has
executed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter either sent
by the Agent to such Bank for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or approved by or
acceptable or satisfactory to the Bank.
10.5 NOTICE OF DEFAULT. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any default or Event of Default, except
with respect to defaults in the payment of principal, interest and fees required
to be paid to the Agent for the account of the Banks, unless the Agent shall
have received written notice from a Bank or the Company referring to this
Agreement, describing such default or Event of Default and stating that such
notice is a "notice of default". The Agent will notify the Banks of its receipt
of any such notice. The Agent shall take such action with respect to such
default or Event of Default as may be requested by the Majority Banks in
accordance with Article 9; PROVIDED, HOWEVER, that unless and until the Agent
has received any such request, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
default or Event of Default as it shall deem advisable or in the best interest
of the Banks.
10.6 CREDIT DECISION. Each Bank acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Agent hereinafter taken, including any review of the affairs of the
Company and its Subsidiaries, shall be deemed to constitute any representation
or warranty by any Agent-Related Person to any Bank. Each Bank represents to
the Agent that it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Company and its Subsidiaries, the value of and title to any collateral, and all
applicable bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend
credit to the Company hereunder. Each Bank also represents that it will,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects,
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operations, property, financial and other condition and creditworthiness of the
Company. Except for notices, reports and other documents expressly herein
required to be furnished to the Banks by the Agent, the Agent shall not have any
duty or responsibility to provide any Bank with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of the Company which may come into the possession
of any of the Agent-Related Persons.
10.7 INDEMNIFICATION. Whether or not the transactions contemplated
hereby are consummated, the Banks shall indemnify upon demand the Agent-Related
Persons (to the extent not reimbursed by or on behalf of the Company and without
limiting the obligations of the Company to do so), pro rata, from and against
any and all liabilities covered by any indemnification hereunder; PROVIDED,
HOWEVER, that no Bank shall be liable for the payment to the Agent-Related
Persons of any portion of such liabilities resulting solely from such Person's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Bank shall reimburse the Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including attorney costs) incurred by the Agent
in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Agent is not
reimbursed for such expenses by or on behalf of the Company. The undertaking in
this Section shall survive the payment of all Obligations hereunder and the
resignation or replacement of the Agent.
10.8 AGENT IN INDIVIDUAL CAPACITY. BofA and its Affiliates may make
loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the Company and its
Subsidiaries and Affiliates as though BofA were not the Agent hereunder and
without notice to or consent of the Banks. Each Bank acknowledges that,
pursuant to such activities, BofA or its Affiliates may receive information
regarding the Company or its Affiliates (including information that may be
subject to confidentiality obligations in favor of the Company or such
Subsidiary) and acknowledge that the Agent shall be under no obligation to
provide such information to it. With respect to its Loans, BofA shall have the
same rights and powers under this Agreement as any other bank and may exercise
the same as though it were not the Agent, and the terms "Bank" and "Banks"
include BofA in its individual capacity.
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10.9 SUCCESSOR AGENT. The Agent may resign as Agent upon 30 days'
notice to the Banks. If the Agent resigns under this Agreement, the Majority
Banks shall appoint from among the Banks a successor agent for the Banks upon
the written consent of the Company and the Banks (which consents shall not be
unreasonably withheld). If no successor agent is appointed prior to the
effective date of the resignation of the Agent, the Agent may appoint a
successor agent from among the Banks upon the written consent of the Company and
the Banks (which consents shall not be unreasonably withheld). Upon the
acceptance of its appointment as successor agent hereunder, such successor agent
shall succeed to all the rights, powers and duties of the retiring Agent and the
term "Agent" shall mean such successor agent and the retiring Agent's
appointment, powers and duties as Agent shall be terminated. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Article 10 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement. If no successor agent has accepted
appointment as Agent by the date which is 30 days following a retiring Agent's
notice of resignation, the retiring Agent's resignation shall nevertheless
thereupon become effective and the Banks shall perform all of the duties of the
Agent hereunder until such time, if any, as the Majority Banks appoint a
successor agent as provided for above. If BofA reduces its Commitment to zero
dollars hereunder (and a percentage obligation of zero), or BofA dissolves,
liquidates, or ceases doing business (it being understood that a merger would
not constitute dissolution, liquidation or cessation of business), the Majority
Banks may require BofA to discontinue acting as Agent hereunder, and the
Majority Banks may appoint a new Agent.
10.10 WITHHOLDING TAX.
(a) If any Bank is a "foreign corporation, partnership or
trust" within the meaning of the Code and such Bank claims exemption from,
or a reduction of, U.S. withholding tax under Sections 1441 or 1442 of the
Code, such Bank agrees with and in favor of the Agent, to deliver to the
Agent:
(i) if such Bank claims an exemption from, or a reduction
of, withholding tax under a United States tax treaty, properly
completed IRS Forms 1001 and W-8 before the payment of any interest in
the first calendar year and before the payment of any interest in each
third succeeding calendar year during which interest may be paid under
this Agreement;
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(ii) if such Bank claims that interest paid under this
Agreement is exempt from United States withholding tax because it is
effectively connected with a United States trade or business of such
Bank, two properly completed and executed copies of IRS Form 4224
before the payment of any interest is due in the first taxable year of
such Bank and in each succeeding taxable year of such Bank during
which interest may be paid under this Agreement, and IRS Form W-9; and
(iii) such other form or forms as may be required under the
Code or other laws of the United States as a condition to exemption
from, or reduction of, United States withholding tax.
Such Bank agrees to promptly notify the Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction.
(b) If any Bank claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form 1001
and such Bank sells, assigns, grants a participation in, or otherwise
transfers all or part of the Obligations of the Company to such Bank in
accordance with SECTION 11.6, such Bank agrees to notify the Agent of the
percentage amount in which it is no longer the beneficial owner of
Obligations of the Company to such Bank. To the extent of such percentage
amount, the Agent will treat such Bank's IRS Form 1001 as no longer valid.
(c) If any Bank claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Agent sells, assigns,
grants a participation in, or otherwise transfers all or part of the
Obligations of the Company to such Bank in accordance with SECTION 11.6,
such Bank agrees to undertake sole responsibility for complying with the
withholding tax requirements imposed by Sections 1441 and 1442 of the Code.
(d) If any Bank is entitled to a reduction in the applicable
withholding tax, the Agent may withhold from any interest payment to such
Bank an amount equivalent to the applicable withholding tax after taking
into account such reduction. If the forms or other documentation required
by subsection (a) of this Section are not delivered to the Agent, then the
Agent may withhold from any interest payment to such Bank not providing
such forms or other documentation an amount equivalent to the applicable
withholding tax.
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(e) If the IRS or any other Governmental Authority of the
United States or other jurisdiction asserts a claim that the Agent did not
properly withhold tax from amounts paid to or for the account of any Bank
(because the appropriate form was not delivered, was not properly executed,
or because such Bank failed to notify the Agent of a change in
circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason) such Bank shall
indemnify the Agent fully for all amounts paid, directly or indirectly, by
the Agent as tax or otherwise, including penalties and interest, and
including any taxes imposed by any jurisdiction on the amounts payable to
the Agent under this Section, together with all costs and expenses
(including Attorney Costs). The obligation of the Banks under this
subsection shall survive the payment of all Obligations and the resignation
or replacement of the Agent.
10.11 COLLATERAL MATTERS.
(a) [Intentionally Deleted.]
(b) The Banks irrevocably authorize the Agent, at its
option and in its discretion, to release any Lien granted to or held by the
Agent upon any collateral (i) upon termination of the Commitments and
payment in full of all Loans and all other Obligations known to the Agent
and payable under this Agreement or any other Loan Document;
(ii) constituting property sold or to be sold or disposed of as part of or
in connection with any disposition permitted hereunder; (iii) constituting
property in which the Company or any Subsidiary owned no interest at the
time the Lien was granted or at any time thereafter; (iv) constituting
property leased to the Company or any Subsidiary under a lease which has
expired or been terminated in a transaction permitted under this Agreement
or is about to expire and which has not been, and is not intended by the
Company or such Subsidiary to be, renewed or extended; (v) consisting of an
instrument evidencing Indebtedness or other debt instrument, if the
indebtedness evidenced thereby has been paid in full; or (vi) if approved,
authorized or ratified in writing by all the Banks. Upon request by the
Agent at any time, the Banks will confirm in writing the Agent's authority
to release particular types or items of collateral.
(c) Each Bank agrees with and in favor of each other (which
agreement shall not be for the benefit of the Company or any Subsidiary)
that
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the Company's obligation to such Bank under this Agreement and the other
Loan Documents is not and shall not be secured by any real property
collateral now or hereafter acquired by such Bank.
10.12 PERFORMANCE BY THE AGENT. In the event that the Company shall
default in or fail to perform any of its obligations under the Loan Documents,
which default is not cured within any applicable cure period, the Agent shall
have the right, but not the duty, without limitation upon any of the Agent's or
the Banks' rights pursuant thereto, to perform the same, and the Company agrees
to pay to the Agent within five (5) Banking Days after demand, all reasonable
costs and expenses incurred by the Agent in connection therewith, including
without limitation reasonable Attorney Costs, together with interest thereon
from the date which is 5 Banking Days after demand until paid at a rate per
annum equal to the Reference Rate PLUS 3%.
10.13 ACTIONS. The Agent shall have the right to commence, appear
in, and defend any action or proceeding purporting to affect the rights or
duties of the Banks hereunder or the payment of any funds, and in connection
therewith the Agent may pay necessary expenses, employ counsel, and pay Attorney
Costs. The Company agrees to pay to the Agent, within 5 Banking Days after
demand, all reasonable costs and expenses incurred by the Agent in connection
therewith, including without limitation reasonable Attorney Costs, together with
interest thereon from the date which is 5 Banking Days after demand until paid
at a rate per annum equal to the Reference Rate PLUS 3%.
10.14 CO-AGENT. Notwithstanding anything contained herein which may
be construed to the contrary, the Co-Agent shall not exercise any of the rights
or have any of the responsibilities of the Agent hereunder, or any other rights
or responsibilities other than its rights and responsibilities as a Bank
hereunder.
ARTICLE 11: MISCELLANEOUS.
11.1 AMENDMENTS AND WAIVERS. No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no consent with
respect to any departure by the Company therefrom, shall be effective unless the
same shall be in writing and signed by the Majority Banks (or by the Agent at
the written request of the Majority Banks) and the Company and acknowledged by
the Agent, and then any such waiver of consent shall be effective only in the
specific instance and for the specific purpose for which given; PROVIDED,
HOWEVER, that no such waiver, amendment, or consent shall, unless in writing and
signed by all the Banks and the Company and
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acknowledged by the Agent, do any of the following:
(a) increase or extend the Commitment of any Bank, unless
such Bank has consented thereto in writing;
(b) postpone or delay any date fixed by this Agreement or
any other Loan Document for any payment of principal, interest, fees or
other amounts due to the Banks (or any of them) hereunder or under any
other Loan Document;
(c) reduce the principal of, or the rate of interest
specified herein on any Loan, or any fees or other amounts payable
hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which is required for the
Banks or any of them to take any action hereunder;
(e) amend the definitions of Borrowing Base or Majority
Banks, or amend SECTIONS 3.5 or 3.6;
(f) amend this Section or any provision herein providing
for consent or other action by all Banks;
(g) discharge any Guarantor, or release any Material
portion of any collateral except where the consent of the Majority Banks
only is specifically provided for; or
(h) amend, or perform any act pursuant to, any provision
herein expressly requiring the consent of each Bank;
and, PROVIDED FURTHER, that no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Majority Banks or all the
Banks, as the case may be, affect the rights or duties of the Agent under this
Agreement or any other Loan Document. Each Bank shall bear its Pro Rata Share
of all costs and expenses incurred in any amendment, waiver or consent pursuant
to this Agreement.
11.2 COSTS, EXPENSES AND TAXES. The Company shall pay on demand the
reasonable costs and expenses of the Agent and the Banks in connection with the
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negotiation, preparation, execution, delivery, administration, amendment, waiver
and enforcement of the Loan Documents and any matter related thereto and any
litigation or dispute with respect thereto (including any bankruptcy or similar
proceedings), including without limitation Attorney Costs; PROVIDED, HOWEVER,
the Company shall not be liable for any expenses of any Bank other than BofA
(for itself and as Agent) in connection with the negotiation and preparation of
the Loan Documents (PROVIDED FURTHER, that the immediately preceding proviso
shall not be deemed to limit the right of each Bank to payment from the Company
of all reasonable costs and expenses incurred by each Bank as aforesaid in
connection with any and all future administration, amendments, waivers,
enforcement actions, litigation, negotiations and other actions or matters other
than assignments or participations with respect to which the only amounts
payable shall be the processing fee owing pursuant to SECTION 11.6(a) relating
to the Loans and Loan Documents). Any amount payable to the Agent and the Banks
under this SECTION 11.2 shall, from the date of demand for payment, and any
other amount payable to the Agent under the Loan Documents which is not paid
when due or within any applicable grace period shall, thereafter, bear interest
at the rate in effect under each Note with respect to Reference Rate Borrowings.
11.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the Agent or any Bank, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege.
11.4 PAYMENTS SET ASIDE. To the extent that the Company makes a
payment to the Agent or the Banks, or the Agent or the Banks exercise their
right of set-off, and such payment or the proceeds of such set-off or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the
Agent or such Bank in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any bankruptcy, insolvency, reorganization,
arrangement, moratorium or other similar proceeding relating to or affecting
creditors' rights generally or otherwise, then (a) to the extent of such
recovery the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had
not been made or such set-off had not occurred, and (b) each Bank severally
agrees to pay to the Agent upon demand its Pro Rata Share of any amount so
recovered from or repaid by the Agent.
11.5 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall
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be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Company may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of the Agent and each Bank, and no Bank may assign or transfer
any of its rights or obligations under this Agreement except in accordance with
SECTION 11.6.
11.6 ASSIGNMENTS, PARTICIPATIONS, ETC.
(a) Any Bank may, with the written consent of (i) the
Company at all times other than during the existence of an Event of Default
(which consent shall not be unreasonably withheld) and (ii) the Agent
(which consent shall not be unreasonably withheld), at any time assign and
delegate to one or more Eligible Assignees (provided that no written
consent of the Company or the Agent shall be required in connection with
any assignment and delegation by a Bank to an Eligible Assignee that is an
affiliate of such Bank) which have not been a party to any Material
litigation with the Agent or the Company (each an "ASSIGNEE") all, or any
ratable part of all, of the Loans, the Commitments and the other rights and
obligations of such Bank hereunder, in an initial minimum amount of
$10,000,000 and in minimum amounts of $1,000,000 after the first
assignment; PROVIDED, HOWEVER, that (A) each Bank (including each Eligible
Assignee) must retain a Commitment of not less than $15,000,000 after
giving effect to such assignment (unless such assignor Bank transfers and
assigns ALL of its Commitment hereunder), and (B) the Company and the Agent
may continue to deal solely and directly with such Bank in connection with
the interest so assigned to an Assignee until (1) written notice of such
assignment, together with payment instructions, addresses and related
information with respect to the Assignee, shall have been given to the
Company and the Agent by such Bank and the Assignee; (2) such Bank and its
Assignee shall have delivered to the Company and the Agent an Assignment
and Acceptance in the form of EXHIBIT "G" ("ASSIGNMENT AND ACCEPTANCE")
together with any Note or Notes subject to such assignment and (3) the
assignor Bank has paid to the Agent a processing fee in the amount of
$3,000. All costs and expenses incurred by an assigning Bank in such
assignment shall be borne by such Bank.
(b) From and after the date that the Agent notifies the
assignor Bank that it has received (and provided its consent with respect
to and received the consent of the Company with respect to) an executed
Assignment and Acceptance and payment of the above-referenced processing
fee, (i) the
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Assignee thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and obligations of a Bank
under the Loan Documents, and (ii) the assignor Bank shall, to the extent
that rights and obligations hereunder and under the other Loan Documents
have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Loan
Documents.
(c) Within five Banking Days after its receipt of notice by
the Agent that it has received an executed Assignment and Acceptance and
payment of the processing fee (and provided that it consents to such
assignment in accordance with SECTION 11.6(a)), the Company shall execute
and deliver to the Agent, new Notes evidencing such Assignee's assigned
Loans and Commitment and, if the assignor Bank has retained a portion of
its Loans and its Commitment, replacement Notes in the principal amount of
the Loans retained by the assignor Bank (such Notes to be in exchange for,
but not in payment of, the Notes held by such Bank). Immediately upon each
Assignee's making its processing fee payment under the Assignment and
Acceptance, this Agreement shall be deemed to be amended to the extent, but
only to the extent, necessary to reflect the addition of the Assignee and
the resulting adjustment of the Commitments arising therefrom. The
Commitment allocated to each Assignee shall reduce such Commitments of the
assigning Bank PRO TANTO.
(d) Any Bank may, with the written consent (which consent
shall not be required if the participation is to an affiliate of the Bank)
of (i) the Company at all times other than during the existence of an Event
of Default (which consent shall not be unreasonably withheld) and (ii) the
Agent (which consent shall not be unreasonably withheld), at any time sell
to one or more commercial banks or other Persons not Affiliates of the
Company (a "PARTICIPANT") participating interests in any Loans, the
Commitment of that Bank and the other interests of that Bank (the
"ORIGINATING BANK") hereunder and under the other Loan Documents; PROVIDED,
HOWEVER, that (A) the originating Bank's obligations under this Agreement
shall remain unchanged, (B) the originating Bank shall remain solely
responsible for the performance of such obligations, (C) the Company and
the Agent shall continue to deal solely and directly with the originating
Bank in connection with the originating Bank's rights and obligations under
this Agreement and the other Loan Documents, and (D) no Bank shall transfer
or grant any participating interest under which the Participant has rights
to approve any amendment to, or any consent or waiver
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with respect to, this Agreement or any other Loan Document, except to the
extent such amendment, consent or waiver would require unanimous consent of
the Banks as described in the FIRST PROVISO to SECTION 11.1. In the case
of any such participation, the Participant shall be entitled to the benefit
of SECTIONS 4.5, 4.7, 4.8 and 11.12 as though it were also a Bank
hereunder, and, if amounts outstanding under this Agreement are due and
unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall be
deemed to have the right of set-off in respect of its participating
interest in amounts owing under this Agreement to the same extent as if the
amount of its participating interest were owing directly to it as a Bank
under this Agreement.
(e) Each Bank agrees to take normal and reasonable
precautions and exercise due care to maintain the confidentiality of all
information identified as "confidential" or "secret" by the Company and
provided to it by the Company or any Subsidiary, or by the Agent on such
Company's or Subsidiary's behalf, under this Agreement or any other Loan
Document, and neither it nor any of its Affiliates shall use any such
information other than in connection with or in enforcement of this
Agreement and the other Loan Documents; except to the extent such
information (i) was or becomes generally available to the public other than
as a result of disclosure by the Bank, or (ii) was or becomes available on
a non-confidential basis from a source other than the Company, provided
that such source is not bound by a confidentiality agreement with the
Company known to the Bank; PROVIDED, HOWEVER, that any Bank may disclose
such information (A) at the request or pursuant to any requirement of any
Governmental Authority to which the Bank is subject or in connection with
an examination of such Bank by any such authority; (B) pursuant to subpoena
or other court process; (C) when required to do so in accordance with the
provisions of any applicable Requirement of Law; (D) to the extent
reasonably required in connection with any litigation or proceeding to
which the Agent, any Bank or their respective Affiliates may be party;
(E) to the extent reasonably required in connection with the exercise of
any remedy hereunder or under any other Loan Document; (F) to such Bank's
independent auditors and other professional advisors; (G) to any
Participant or Assignee, actual or potential, provided that such Person
agrees in writing to keep such information confidential to the same extent
required of the Banks hereunder, and (H) as to any Bank, as expressly
permitted under the terms of any other document or agreement regarding
confidentiality to which the Company is party or is deemed party with such
Bank.
-79-
(f) Notwithstanding any other provision in this Agreement,
any Bank may at any time create a security interest in, or pledge, all or
any portion of its rights under and interest in this Agreement and the Note
held by it in favor of any Federal Reserve Bank in accordance with
Regulation A of the FRB or U.S. Treasury Regulation 31 CFR Section 203.14,
and such Federal Reserve Bank may enforce such pledge or security interest
in any manner permitted under applicable Law.
11.7 SET-OFF. Subject to SECTION 3.8 and in addition to any rights
and remedies of the Banks provided by Law, if an Event of Default exists or the
Loans have been accelerated, each Bank is authorized at any time and from time
to time, without prior notice to the Company, any such notice being waived by
the Company to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final excluding
the Company's customer trust accounts) at any time held by, and other
indebtedness at any time owing by, such Bank to or for the credit or the account
of the Company against any and all Obligations owing to the Banks, now or
hereafter existing, irrespective of whether or not the Agent or such Bank shall
have made demand under this Agreement or any Loan Document and although such
Obligations may be contingent or unmatured. Each Bank agrees promptly to notify
the Company and the Agent after any such set-off and application made by such
Bank; PROVIDED, HOWEVER, that the failure to give such notice shall not affect
the validity of such set-off and application.
11.8 AUTOMATIC DEBITS. With respect to any principal or interest
payment, commitment fee or usage fee, or any other cost or expense (including
Attorney Costs), due and payable to the Agent or the Banks under the Loan
Documents, the Company hereby irrevocably authorizes and directs the Agent to
debit any deposit account of the Company with the Agent (as one of the Banks) in
an amount such that the aggregate amount debited from all such deposit accounts
does not exceed such payment, fee, or other cost or expense. If there are
insufficient funds in such deposit accounts to cover the amount of the payment,
fee, other cost or expense then due, such debits will be reversed (in whole or
in part, in the Agent's sole discretion) and such amount not debited shall be
deemed to be unpaid. No such debit under this Section shall be deemed a
set-off.
11.9 NOTIFICATION OF ADDRESSES, LENDING OFFICES, ETC. Each Bank
shall notify the Agent in writing of any changes in the address to which notices
to the Bank should be directed, of addresses of any Lending Office, of payment
instructions in
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respect of all payments to be made to it hereunder and of such other
administrative information as the Agent shall reasonably request.
11.10 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties of the Company contained herein or in any
certificate or other writing delivered by or on behalf of the Company pursuant
to any Loan Document will survive the making and repayment of the Loan and the
execution and delivery of each Note, and have been or will be relied upon by
each Bank, notwithstanding any investigation made by such Bank or on its behalf.
11.11 NOTICES. Except as otherwise provided herein or in each Note:
(a) all notices, requests, demands, directions and other
communications provided for hereunder and under each Note must be in
writing and must be mailed, telecopied, delivered or sent by telex or cable
to the appropriate party at the address set forth on the signature pages of
this Agreement or, as to any party, at any other address as may be
designated by it in a written notice sent to the other party in accordance
with this SECTION 11.11, and
(b) if any notice, request, demand, direction or other
communication is given by mail it will be effective on the earlier of
receipt or the third calendar day after deposit in the United States mails
with first class or airmail postage prepaid; if given by telecopier, when
receipt is confirmed by the recipient; if given by cable, when delivered to
the telegraph company with charges prepaid; if given by telex, when sent;
or if given by personal delivery, when delivered.
11.12 INDEMNITY BY THE COMPANY. The Company agrees to indemnify,
save and hold harmless each Bank, the Agent and their directors, officers,
agents, attorneys and employees (collectively the "INDEMNITEES") from and
against (a) any and all claims, demands, actions or causes of action that are
asserted against any indemnitee by any Person if the claim, demand, action or
cause of action directly or indirectly relates to a claim, demand, action or
cause of action that the Person has or asserts against the Company or any
officer, director or shareholder of the Company, and (b) any and all
liabilities, losses, costs or expenses (including Attorney Costs) that any
indemnitee suffers or incurs as a result of the assertion of any such claim,
demand, action or cause of action.
-81-
11.13 INTEGRATION AND SEVERABILITY. This Agreement and the other
Loan Documents comprise the complete and integrated agreement of the parties on
the subject matter hereof and supersede all prior agreements, written or oral,
on the subject matter hereof. Any provision in any Loan Document that is held
to be inoperative, unenforceable or invalid in any jurisdiction shall, as to
that jurisdiction, be inoperative, unenforceable or invalid without affecting
the remaining provisions or the operation, enforceability or validity of that
provision in any other jurisdiction, and to this end the provisions of the Loan
Documents are declared to be severable.
11.14 COUNTERPARTS. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
11.15 NO THIRD PARTIES BENEFITED. This Agreement is made and entered
into for the sole protection and legal benefit of the Company, the Banks, the
Agent and the Agent-Related Persons, and their successors and permitted assigns,
and no other Person shall be a direct or indirect legal beneficiary of, or have
any direct or indirect cause of action or claim in connection with, this
Agreement or any of the other Loan Documents.
11.16 SECTION HEADINGS. Section headings in this Agreement are
included for convenience of reference only and are not part of this Agreement
for any other purpose.
11.17 FURTHER ACTS BY THE COMPANY. The Company agrees, at its own
expense, to do such acts and execute and deliver such documents as any Bank from
time to time reasonably requires for the purpose of carrying out the intention
or facilitating the performance of the terms hereof.
11.18 TIME OF THE ESSENCE. Time is of the essence of the Loan
Documents.
11.19 GOVERNING LAW. The Loan Documents shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of
California without regard to the conflict of law provisions thereof.
11.20 REFERENCE AND ARBITRATION.
-82-
(a) In any judicial action between or among the parties,
including any action or cause of action arising out of or relating to this
Agreement or the Loan Documents or based on or arising from an alleged
tort, all decisions of fact and law shall at the request of any party be
referred to a referee in accordance with California Code of Civil Procedure
Sections 638 ET SEQ. The parties shall designate to the court a referee or
referees selected under the auspices of the American Arbitration
Association ("AAA") in the same manner as arbitrators are selected in
AAA-sponsored proceedings. The presiding referee of the panel, or the
referee if there is a single referee, shall be an active attorney or
retired judge. Judgment upon the award rendered by such referee or
referees shall be entered in the court in which such proceeding was
commenced in accordance with California Code of Civil Procedure
Sections 644 and 645.
(b) Any controversy or claim between or among the parties,
including those arising out of or relating to this Agreement or the Loan
Documents and any claim based on or arising from an alleged tort, shall at
the request of any party be determined by arbitration. The arbitration
shall be conducted in accordance with the United States Arbitration Act
(Title 9, U.S. Code), notwithstanding any choice of law provision in this
Agreement, and under the Commercial Rules of the AAA. The arbitrator(s)
shall give effect to statutes of limitation in determining any claim. Any
controversy concerning whether an issue is arbitrable shall be determined
by the arbitrator(s). Judgment upon the arbitration award may be entered
in any court having jurisdiction. The institution and maintenance of an
action for judicial relief or pursuit of a provisional or ancillary remedy
shall not constitute a waiver of the right of any party, including the
plaintiff, to submit the controversy or claim to arbitration if any other
party contests such action for judicial relief.
(c) No provision of this SECTION 11.20 shall limit the
right of any party to this Agreement to exercise self-help remedies such as
setoff, foreclosure against or sale of any real or personal property
collateral or security, or to obtain provisional or ancillary remedies from
a court of competent jurisdiction before, after, or during the pendency of
any arbitration or other proceeding. The exercise of a remedy does not
waive the right of either party to resort to arbitration or reference.
11.21 EFFECTIVENESS OF THIS AGREEMENT. Notwithstanding anything
contained herein to the contrary, the effectiveness of this Agreement and the
Banks'
-83-
and the Agent's obligations hereunder are expressly conditioned upon
satisfaction of all of the following conditions precedent (any one or more of
which the Banks may waive in their sole discretion):
(a) The Agent shall have received the following original
executed documents (in form and substance satisfactory to the Agent and
legal counsel for the Agent in sufficient number for the Agent and each
Bank):
(i) this Agreement;
(ii) each Note;
(iii) the Guaranty (if any);
(iv) the Opinion of Counsel;
(v) a certified copy of resolutions of the board of
directors of the Company authorizing the execution of the Loan
Documents, together with an incumbency certificate executed by the
corporate secretary of the Company;
(vi) a certified copy of resolutions of the board of
directors of each Guarantor (if any) authorizing the execution of the
Guaranty, together with an incumbency certificate executed by the
corporate secretary of each Guarantor (if any); and
(vii) such other agreements, instruments and documents as
any Bank shall reasonably request.
(b) The Agent shall have received evidence satisfactory to
the Agent and legal counsel to the Agent that the Company has been duly
incorporated, validly exists and is in good standing under the laws of the
State of Maryland, is duly qualified to do business as, and is in good
standing as, a foreign corporation in each jurisdiction in which the
conduct of its business or the ownership or leasing of its properties makes
such qualification necessary, and has all requisite power and authority to
conduct its business and to own and lease its properties.
(c) The Agent shall have received evidence satisfactory to
the
-84-
Agent that the Company received at least $120,000,000 in net proceeds from
its initial public offering.
Following the date that this Agreement becomes effective, and subject
to the satisfaction (or waiver by Agent in its sole discretion) of all
applicable conditions to advances hereunder, the Company authorizes and directs
each of the Banks to disburse sufficient funds under this Agreement to the Agent
to pay all sums owing under the BofA loan agreements and credit facilities
described in SCHEDULE 11.21 attached hereto (the "EXISTING PAN PACIFIC/BofA
CREDIT FACILITIES") (each Bank in accordance with such Bank's Pro Rata Share),
to the extent the Company has not already paid all such Existing Pan
Pacific/BofA Credit Facilities. Until all sums owing to BofA under all Existing
Pan Pacific/BofA Credit Facilities have been repaid in full, the Company may not
request or use any Loans hereunder for any other purpose. Following the date
this Agreement becomes effective, the borrowers under each of the Existing Pan
Pacific/BofA Credit Facilities shall have no further right to borrow any
additional sums under any of the Existing Pan Pacific/BofA Credit Facilities.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
THE COMPANY:
PAN PACIFIC RETAIL PROPERTIES, INC., A
MARYLAND CORPORATION
By:
------------------------------------
Xxxxxx X. Xxxx, Director Chairman, Chief
Executive Officer and President
By:
------------------------------------
Xxxxx X. Xxxxxx, Executive Vice
President and Chief Financial Officer
Address for notices:
Pan Pacific Retail Properties, Inc.
-85-
0000-X Xxxxx Xxxxxxx Xxxxx
Xxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
THE BANKS:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, A NATIONAL BANKING ASSOCIATION
By:
------------------------------------
Xxxxxxx X. Xxxxxx, Vice President
Address for Notices:
Bank of America National
Trust and Savings Association
CRESG - San Diego Xxxx #0000
000 X Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxx or
Xx. Xxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
LIBOR LENDING OFFICE:
Bank of America National
Trust and Savings Association
0 Xxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xx. Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
-86-
U.S. BANK NATIONAL ASSOCIATION, (FKA: FIRST
BANK NATIONAL ASSOCIATION)
By:
------------------------------------
Xxxxx X. Xxxxxxxxxx, Assistant Vice
President
Address for Notices:
U.S. Bank National Association, (FKA: First
Bank National Association)
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
LIBOR LENDING OFFICE:
U.S. Bank National Association, (FKA: First
Bank National Association)
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
KEYBANK NATIONAL ASSOCIATION
By:
------------------------------------
Xxxxx Xxxxxxxxx, Assistant Vice
President
Address for Notices:
KeyBank National Association
000 Xxxxxx Xxxxxx
XX-00-00-0000
-00-
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
LIBOR LENDING OFFICE:
KeyBank National Association
000 Xxxxxx Xxxxxx
XX-00-00-0000
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
THE BANK OF NOVA SCOTIA
By:
------------------------------------
Xxxxx Xxxxxx, Relationship Manager
Address for Notices:
The Bank of Nova Scotia
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
LIBOR LENDING OFFICE:
The Bank of Nova Scotia
000 Xxxxxxxxx Xxxxxx X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx Veiker
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
-88-
SIGNET BANK
By:
------------------------------------
Xxxxx Xxxxxx, Vice President
Address for Notices:
Signet Bank
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
LIBOR LENDING OFFICE:
Signet Bank
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
SANWA BANK CALIFORNIA, A CALIFORNIA
CORPORATION
By:
------------------------------------
Xxxxxxx X. Xxxxx, Vice President
Address for Notices:
Sanwa Bank California
000 XxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
LIBOR LENDING OFFICE:
-00-
Xxxxx Xxxx California
000 XxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
THE AGENT:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, A NATIONAL BANKING ASSOCIATION
By:
------------------------------------
Xxxxxxx X. Xxxxxx, Vice President
Address for Notices:
(Agent's Payment Office)
Bank of America National
Trust and Savings Association
0 Xxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xx. Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
-90-
EXHIBIT "A"
NOTE
$_________________ August 13, 0000
Xxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, Pan Pacific Retail Properties, Inc., a Maryland
corporation (the "COMPANY"), promises to pay to the order of
____________________ _______________________________________________ ("Bank")
the principal amount of _________________________________ AND NO/100 DOLLARS
($___________), or such lesser aggregate amount of Loans as may be made pursuant
to Bank's Commitment under the Credit Agreement hereinafter described, payable
as hereinafter set forth. Company promises to pay interest on the principal
amount hereof remaining unpaid from time to time from the date hereof until the
date of payment in full, payable as hereinafter set forth.
Reference is made to the Credit Agreement of even date herewith among
Company and the Banks (the "AGREEMENT"). Terms defined in the Agreement and not
otherwise defined herein are used herein with the meanings defined for those
terms in the Agreement. This is one of the Notes referred to in the Agreement,
and any holder hereof is entitled to all of the rights, remedies, benefits and
privileges provided for in the Agreement as originally executed or as it may
from time to time be supplemented, modified or amended. The Agreement, among
other things, contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events upon the terms and conditions therein
specified.
The principal indebtedness evidenced by this Note shall be payable as
provided in the Agreement and in any event on the Maturity Date (which shall be
August 13, 2000, subject to possible extension as provided in SECTION 4.18 of
the Agreement).
Interest shall be payable on the outstanding daily unpaid principal
amount of each Loan hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the
Agreement both before and after default and before and after maturity and
judgment, with interest on overdue interest to bear interest at the rate set
forth in SECTION 4.4 of the Agreement, to the fullest extent
EXHIBIT "A"-- Page 1
permitted by applicable Law.
The amount of each payment hereunder shall be made to Bank at Agent's
office located in [Irvine], California, for the account of Bank, in lawful money
of the United States of America and in immediately available funds not later
than 11:00 a.m., California time, on the day of payment (which must be a Banking
Day). All payments received after 11:00 a.m., California time, on any Banking
Day, shall be deemed received on the next succeeding Banking Day. Bank shall
use its best efforts to keep a record of Loans made by it and payments of
principal with respect to this Note, and such record shall be presumptive
evidence of the principal amount owing under this Note.
Company hereby promises to pay all costs and expenses of any holder
hereof incurred in collecting the undersigned's obligations hereunder or in
enforcing or attempting to enforce any of any holder's rights hereunder,
including Attorney Costs, whether or not an action is filed in connection
therewith.
Company hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
Assignment of this Note is subject to the consent of certain parties
pursuant to SECTION 11.6 of the Agreement.
This Note shall be delivered to and accepted by Bank in the State of
California, and shall be governed by, and construed and enforced in accordance
with, the internal Laws thereof without regard to the choice of law provisions
thereof.
"Company"
PAN PACIFIC RETAIL PROPERTIES, INC., a
Maryland corporation
By:
----------------------------------
----------------------------------
[Printed Name and Title]
By:
----------------------------------
----------------------------------
[Printed Name and Title]
EXHIBIT "A"-- Page 2
ADVANCES AND PAYMENTS OF PRINCIPAL
(Reference Rate Borrowings)
BANK AMOUNT OF AMOUNT OF UNPAID NOTATION DATE
ADVANCE OR OF PRINCIPAL PAID OR PRINCIPAL AND MADE BY
REDESIGNATION REDESIGNATED INTO BALANCE
FROM ANOTHER ANOTHER TYPE OF
TYPE OF BORROWING BORROWING
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EXHIBIT "A" -- Page 3
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Borrowings)
BANK AMOUNT OF AMOUNT OF UNPAID NOTATION DATE
ADVANCE OR OF PRINCIPAL PAID OR PRINCIPAL AND MADE BY
REDESIGNATION REDESIGNATED INTO BALANCE
FROM ANOTHER ANOTHER TYPE OF
TYPE OF BORROWING BORROWING
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EXHIBIT "B" -- Page 1
EXHIBIT "B"
BORROWING BASE CERTIFICATE
The undersigned, being the duly elected chief financial officer of
Pan Pacific Retail Properties, Inc., a Maryland corporation, hereby certifies
that the following is a true and correct calculation of the Borrowing Base as of
_____________, 199__:
[AGENT TO PROVIDE FORM OF CALCULATION AND
SCHEDULES IT WOULD DESIRE]
PAN PACIFIC RETAIL PROPERTIES, INC., a
Maryland corporation
By:
---------------------------------
---------------------------------
[Printed Name and Title]
By:
---------------------------------
---------------------------------
[Printed Name and Title]
EXHIBIT "B" -- Page 2
EXHIBIT "C-1"
REQUEST FOR BORROWING
1. This REQUEST FOR BORROWING is executed and delivered by the
Company to the Agent for the Banks pursuant to the Credit Agreement (the
"AGREEMENT") dated as of August 13, 1997, entered into by the Company, the Banks
and the Agent. Any terms used herein and not defined herein shall have the
meanings defined in the Agreement.
2. The Company hereby requests that the Banks make a Loan for the
account of the Company pursuant to the Agreement, as follows:
(a) Amount of Loan: $________________.
(b) Date of Loan: _______________, 19__.
(c) Type of Loan (check one box only):
[] Reference Rate Borrowing.
[] LIBOR Borrowing with a ____-month LIBOR Period
ending _______________, 19__.
3. In connection with the Loan requested herein, the Company
hereby represents, warrants and certifies to the Banks that, as of the date of
the Loan requested herein: Each representation and warranty made by the Company
in ARTICLE 7 of the Agreement will be true and correct, both immediately before
and after such Loan is made, as though such representation and warranty was made
on and as of the date of such Loan, provided, however, the representations and
warranties made by the Company in SECTION 7.13 of the Agreement are true and
correct as of the last reporting under the Agreement; no actions, suits or
proceedings will be pending against or affecting the Company or any of its
Subsidiaries or any property of any of them in any court of Law or before any
Governmental Authority which might reasonably be expected to Materially
adversely affect the business, operations or financial condition of the Company
and its Subsidiaries taken as a whole; no Material adverse change will have
occurred in the business, operations or financial condition of the Company and
its Subsidiaries taken as a whole since the Closing Date; and no Event of
Default or event
EXHIBIT "C-1" -- Page 1
that upon notice or passage of time would constitute an Event of Default will
have occurred and be continuing. (If any of the foregoing statements is not
true and correct, attach a statement specifying in detail the circumstances
thereof and the actions the Company is taking or proposes to take with respect
thereto.)
4. This Request for Borrowing is executed on ____________, 19__,
by a Responsible Official of the Company on behalf of the Company. The
undersigned, in such capacity, hereby certifies each and every matter contained
herein to be true and correct.
Dated: _________________
PAN PACIFIC RETAIL PROPERTIES, INC., a
Maryland corporation
By:
---------------------------------
---------------------------------
[Printed Name and Title]
By:
---------------------------------
---------------------------------
[Printed Name and Title]
EXHIBIT "C-1" -- Page 2
EXHIBIT "C-2"
REQUEST FOR LETTER OF CREDIT
1. This REQUEST FOR LETTER OF CREDIT is executed and delivered by
the Company to the Agent for the Banks pursuant to the Credit Agreement (the
"AGREEMENT") dated as of August 13, 1997, entered into by the Company, the Banks
and the Agent. Any terms used herein and not defined herein shall have the
meanings defined in the Agreement.
2. The Company hereby requests that the Issuing Bank issue a
Letter of Credit in accordance with the L/C Application accompanying this
request.
3. In connection with the Letter of Credit requested herein, the
Company hereby represents, warrants and certifies to the Banks that, as of the
date of the Letter of Credit requested herein: Each representation and warranty
made by the Company in ARTICLE 7 of the Agreement will be true and correct, both
immediately before and after such Letter of Credit is issued, as though such
representation and warranty was made on and as of the date of such issuance,
provided, however, the representations and warranties made by the Company in
SECTION 7.13 of the Agreement are true and correct as of the last reporting
under the Agreement; no actions, suits or proceedings will be pending against or
affecting the Company or any of its Subsidiaries or any property of any of them
in any court of Law or before any Governmental Authority which might reasonably
be expected to Materially adversely affect the business, operations or financial
condition of the Company and its Subsidiaries taken as a whole; no Material
adverse change will have occurred in the business, operations or financial
condition of the Company and its Subsidiaries taken as a whole since the Closing
Date; and no Event of Default or event that upon notice or passage of time would
constitute an Event of Default will have occurred and be continuing. (If any of
the foregoing statements is not true and correct, attach a statement specifying
in detail the circumstances thereof and the actions the Company is taking or
proposes to take with respect thereto.)
4. This Request for Letter of Credit is executed on ____________,
19__, by a Responsible Official of the Company on behalf of the Company. The
undersigned, in such capacity, hereby certifies each and every matter contained
herein to be true and correct.
EXHIBIT "C-2" -- Page 1
Dated: _________________
PAN PACIFIC RETAIL PROPERTIES, INC., a
Maryland corporation
By:
---------------------------------
---------------------------------
[Printed Name and Title]
By:
---------------------------------
---------------------------------
[Printed Name and Title]
EXHIBIT "C-2" -- Page 2
EXHIBIT "D"
REQUEST FOR REDESIGNATION OF BORROWING
1. This REQUEST FOR REDESIGNATION OF BORROWING is executed and
delivered by the Company to the Agent for the Banks pursuant to the Credit
Agreement (the "AGREEMENT") dated as of August 13, 1997, entered into by the
Company, the Banks and the Agent. Any terms used herein and not defined herein
shall have the meanings defined in the Agreement.
2. The Company hereby requests that the Banks redesignate
outstanding Reference Rate Borrowings heretofore made or redesignated for the
account of the Company pursuant to the Agreement, as follows:
(a) Total Amount of Loans to be Redesignated:
$_______________.
(b) Date of Redesignation: ________________, 19__.
(c) Type of Loan as so Redesignated: LIBOR Borrowing with
a ____-month LIBOR Period ending _______________, 19__.
3. In connection with the redesignation of Borrowing requested
herein, the Company hereby represents, warrants and certifies to the Banks that,
as of the date of the Loan requested herein: Each representation and warranty
made by the Company in ARTICLE 7 of the Agreement will be true and correct, both
immediately before and after such redesignation of Borrowing is made, as though
such representation and warranty was made on and as of the date of such
redesignation of Borrowing, provided, however, the representations and
warranties made by the Company in SECTION 7.13 of the Agreement are true and
correct as of the last reporting under the Agreement; no actions, suits or
proceedings will be pending against or affecting the Company or any of its
Subsidiaries or any property of any of them in any court of Law or before any
Governmental Authority which might reasonably be expected to Materially
adversely affect the business, operations or financial condition of the Company
and its Subsidiaries taken as a whole; no Material adverse change will have
occurred in the business, operations or financial condition of the Company and
its Subsidiaries taken as a whole since the Closing Date; and no Event of
Default or event
EXHIBIT "D" -- Page 1
that upon notice or passage of time would constitute an Event of Default will
have occurred and be continuing. (If any of the foregoing statements is not
true and correct, attach a statement specifying in detail the circumstances
thereof and the actions the Company is taking or proposes to take with respect
thereto.)
4. This Request for Redesignation of Borrowing is executed on
____________, 19__, by a Responsible Official on behalf of the Company. The
undersigned, in such capacity, hereby certifies each and every matter contained
herein to be true and correct.
Dated: _________________
PAN PACIFIC RETAIL PROPERTIES, INC., a
Maryland corporation
By:
---------------------------------
---------------------------------
[Printed Name and Title]
By:
---------------------------------
---------------------------------
[Printed Name and Title]
EXHIBIT "D" -- Page 2
EXHIBIT "E"
SUBSIDIARIES
1. Pan Pacific Development (Tennessee) Acquisition, Inc., a Delaware
corporation
2. Pan Pacific Development (Rosewood), Inc., a California corporation
3. Pan Pacific Development (Olympia Square), Inc., a Washington corporation
4. Pan Pacific Development (Kentucky), Inc., a Kentucky corporation
5. Sahara Pavilion North - U.S., Inc., a Nevada corporation
6. Pan Pacific Development (New Mexico), Inc., a New Mexico corporation
7. Pan Pacific Development (Chino), Inc., a Delaware corporation
8. Melrose Village Plaza Partners, a California general partnership
9. Tanasbourne Village Limited Partnership, an Oregon limited partnership
10. North Coast Health Center Joint Venture, a California general partnership
11. Pan Pacific U.S. Shopping Center I Limited Partnership, a Delaware limited
partnership
EXHIBIT "E" -- Page 1
EXHIBIT "F"
FORM OF LEGAL OPINION
_________________, 199___
Bank of America National Trust and
Savings Association, as Agent and to
the Banks that are, or may become,
parties to the to the Agreement
[_______________________
San Diego, California _____________]
Re: PAN PACIFIC RETAIL PROPERTIES, INC.
Ladies and Gentlemen:
We have acted as special counsel to Pan Pacific Retail Properties,
Inc., a Maryland corporation (the "COMPANY"), in connection with the execution
and delivery of a Credit Agreement, dated as of even date herewith (the
"AGREEMENT") by and among the Company and Bank of America National Trust and
Savings Association, a national banking association, and other Banks that are,
or may become, parties to the Agreement. Capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Agreement.
In our capacity as counsel for the Company, we have made such legal
and factual inquiries and examinations as we deemed advisable for purposes of
rendering this opinion, and, in the course thereof, we have examined originals,
or copies of originals certified to our satisfaction, of such agreements,
documents, certificates and other statements of government officials, officers
of the Company and others as we deemed relevant and necessary as a basis for
this opinion. We have relied upon such certificates and documents with respect
to the accuracy of factual matters contained therein, which factual matters were
not independently established or verified by us. In all such examinations, we
have assumed the genuineness of all signatures by
EXHIBIT "F" -- Page 1
each party and the authenticity of all documents submitted to us as originals
and the conformity to authentic original documents of all documents submitted to
us as conformed or photostatic copies. For the purpose of the opinions
hereinafter expressed, we have assumed the due execution and delivery, pursuant
to due authorization, of each document referred to herein by each party thereto
other than the Company and the Subsidiaries and that each document constitutes
the valid and binding obligation of each party thereto other than the Company
and the Subsidiaries, enforceable against such party in accordance with its
terms.
On the basis of our inquiries and examinations, and subject to the
qualifications, exceptions, assumptions and limitations contained herein, we are
of the opinion that:
1. The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Maryland and is qualified to
do business in the jurisdictions in which the nature of the property owned or
leased by the Company or the nature of the business transacted by the Company
makes such qualification necessary, except where the failure to be so qualified
would not have a Material adverse effect on the business or financial condition
of the Company and the Subsidiaries taken as a whole.
2. The execution, delivery and performance by the Company of the
Agreement and each Note pursuant thereto are within the Company's corporate
powers, have been duly authorized by all necessary corporate action and do not
contravene (a) the Company's certificate of incorporation or bylaws, (b) any law
or (c) any agreement or instrument identified to us by the Company as being
Material to the business or financial condition of the Company and the
Subsidiaries taken as a whole.
3. The Agreement is, and the Notes when delivered thereunder will
be, valid and binding obligations of the Company enforceable against the Company
in accordance with their respective terms.
4. No action of, or filing with, or approval or other action by,
any governmental or public body or authority which has not been taken, made or
obtained is required to authorize, or is otherwise required in connection with,
the execution, delivery and performance of the Agreement and the Notes.
5. Each Subsidiary is duly organized, existing and in good
standing
EXHIBIT "F" -- Page 2
under the laws of the jurisdiction of its incorporation. Each of the
Subsidiaries is duly qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which the ownership of property or
the nature of the business transacted by such Subsidiary makes such
qualification necessary.
6. To the best of our knowledge, the Company owns all of the
issued and outstanding capital stock of each of the Subsidiaries.
Very truly yours,
-------------------------------------
EXHIBIT "F" -- Page 3
EXHIBIT "G"
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "ASSIGNMENT AND
ACCEPTANCE") dated as of __________, 199__ is made between
______________________________ (the "ASSIGNOR") and
______________________________ (the "ASSIGNEE").
RECITALS
WHEREAS, the Assignor is party to that certain Credit Agreement dated
as of _____________, 1997 (as amended, amended and restated, modified,
supplemented or renewed, the "CREDIT AGREEMENT") among Pan Pacific Retail
Properties, Inc., a Maryland corporation (the "COMPANY"), the several financial
institutions from time to time party thereto (including the Assignor, the
"BANKS"), and Bank of America National Trust and Savings Association, as agent
for the Banks (the "AGENT"). Any terms defined in the Credit Agreement and not
defined in this Assignment and Acceptance are used herein as defined in the
Credit Agreement;
WHEREAS, as provided under the Credit Agreement, the Assignor has
committed to making Loans (the "COMMITTED LOANS") to the Company in an aggregate
amount not to exceed $__________ (the "COMMITMENT");
WHEREAS, [the Assignor has made Committed Loans in the aggregate
principal amount of $__________ to the Company] [no Committed Loans are
outstanding under the Credit Agreement]; and
WHEREAS, the Assignor wishes to assign to the Assignee [part of the]
[all] rights and obligations of the Assignor under the Credit Agreement in
respect of its Commitment, [together with a corresponding portion of each of its
outstanding Loans, in an amount equal to $__________ (the "ASSIGNED AMOUNT") on
the terms and subject to the conditions set forth herein and the Assignee wishes
to accept assignment of such rights and to assume such obligations from the
Assignor on such terms and subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the mutual
EXHIBIT "G" -- Page 1
agreements contained herein, the parties hereto agree as follows:
1. ASSIGNMENT AND ACCEPTANCE.
(a) Subject to the terms and conditions of this Assignment and
Acceptance, (i) the Assignor hereby sells, transfers and assigns to the
Assignee, and (ii) the Assignee hereby purchases, assumes and undertakes from
the Assignor, without recourse and without representation or warranty (except as
provided in this Assignment and Acceptance) __% (the "ASSIGNEE'S PERCENTAGE
SHARE") of (A) the Commitment [and the Loans] of the Assignor and (B) all
related rights, benefits, obligations, liabilities and indemnities of the
Assignor under and in connection with the Credit Agreement and the Loan
Documents.
[IF APPROPRIATE, ADD PARAGRAPH SPECIFYING PAYMENT TO ASSIGNOR BY
ASSIGNEE OF OUTSTANDING PRINCIPAL OF, ACCRUED INTEREST ON, AND FEES WITH RESPECT
TO, COMMITTED LOANS AND L/C OBLIGATIONS ASSIGNED.]
(b) With effect on and after the Effective Date (as defined in
Section 5 hereof), the Assignee shall be a party to the Credit Agreement and
succeed to all of the rights and be obligated to perform all of the obligations
of a Bank under the Credit Agreement, including the requirements concerning
confidentiality and the payment of indemnification, with a Commitment in an
amount equal to the Assigned Amount. The Assignee agrees that it will perform
in accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Bank. It is the intent
of the parties hereto that the Commitment of the Assignor shall, as of the
Effective Date, be reduced by an amount equal to the Assigned Amount and the
Assignor shall relinquish its rights and be released from its obligations under
the Credit Agreement to the extent such obligations have been assumed by the
Assignee; provided, however, the Assignor shall not relinquish its rights under
Section ___ and ___ of the Credit Agreement to the extent such rights relate to
the time prior to the Effective Date.
(c) After giving effect to the assignment and assumption set forth
herein, on the Effective Date the Assignee's Commitment will be $__________.
(d) After giving effect to the assignment and assumption set forth
herein, on the Effective Date the Assignor's Commitment will be $__________.
2. PAYMENTS.
EXHIBIT "G" -- Page 2
(a) As consideration for the sale, assignment and transfer
contemplated in Section 1 hereof, the Assignee shall pay to the Assignor on the
Effective Date in immediately available funds an amount equal to $__________,
representing the Assignee's Pro Rata Share of the principal amount of all
Committed Loans.
(b) The [Assignor] [Assignee] further agrees to pay to the Agent a
processing fee in the amount specified in Section [ ](__) of the Credit
Agreement.
3. REALLOCATION OF PAYMENTS.
Any interest, fees and other payments accrued to the Effective Date with
respect to the Commitment [and] Loans shall be for the account of the Assignor.
Any interest, fees and other payments accrued on and after the Effective Date
with respect to the Assigned Amount shall be for the account of the Assignee.
Each of the Assignor and the Assignee agrees that it will hold in trust for the
other party any interest, fees and other amounts which it may receive to which
the other party is entitled pursuant to the preceding sentence and pay to the
other party any such amounts which it may receive promptly upon receipt.
4. INDEPENDENT CREDIT DECISION.
The Assignee (a) acknowledges that it has received a copy of the Credit
Agreement and the Schedules and Exhibits thereto, together with copies of the
most recent financial statements referred to in Section [ ](__) of the Credit
Agreement, and such other documents and information as it has deemed appropriate
to make its own credit and legal analysis and decision to enter into this
Assignment and Acceptance; and (b) agrees that it will, independently and
without reliance upon the Assignor, the Agent or any other Bank and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit and legal decisions in taking or not taking
action under the Credit Agreement.
5. EFFECTIVE DATE; NOTICES.
(a) As between the Assignor and the Assignee, the effective date
for this Assignment and Acceptance shall be __________, 199__ (the "EFFECTIVE
DATE"); PROVIDED that the following conditions precedent have been satisfied on
or before the Effective Date:
EXHIBIT "G" -- Page 3
(i) this Assignment and Acceptance shall be executed and
delivered by the Assignor and the Assignee;
(ii) the consent of the Company and the Agent required for an
effective assignment of the Assigned Amount by the Assignor to the Assignee
under Section [ ](__) the Credit Agreement shall have been duly obtained and
shall be in full force and effect as of the Effective Date;
(iii) the Assignee shall pay to the Assignor all amounts due to
the Assignor under this Assignment and Acceptance;
[(iv) the Assignee shall have complied with Section [ ](__) of
the Credit Agreement (if applicable);
(v) the processing fee referred to in Section 2(b) hereof and in
Section [ ](__) of the Credit Agreement shall have been paid to the Agent; and
(vi) the Assignor shall have assigned and the Assignee shall have
assumed a percentage equal to the Assignee's Percentage Share of the rights and
obligations of the Assignor under the Credit Agreement (if such agreement
exists).
(b) Promptly following the execution of this Assignment and
Acceptance, the Assignor shall deliver to the Company [, the Issuing Bank] and
the Agent for acknowledgement by the Agent, a Notice of Assignment
[substantially] in the form attached hereto as SCHEDULE 1.
[6. AGENT. [INCLUDE ONLY IF ASSIGNOR IS AGENT]
(a) The Assignee hereby appoints and authorizes the Assignor to
take such action as agent on its behalf and to exercise such powers under the
Credit Agreement as are delegated to the Agent by the Banks pursuant to the
terms of the Credit Agreement.
(b) The Assignee shall assume no duties or obligations held by the
Assignor in its capacity as Agent under the Credit Agreement.]
7. WITHHOLDING TAX.
EXHIBIT "G" -- Page 4
The Assignee (a) represents and warrants to the Bank, the Agent and the
Company that under applicable law and treaties no tax will be required to be
withheld by the Bank with respect to any payments to be made to the Assignee
hereunder, (b) agrees to furnish (if it is organized under the laws of any
jurisdiction other than the United States or any State thereof) to the Agent and
the Company prior to the time that the Agent or Company is required to make any
payment of principal, interest or fees hereunder, duplicate executed originals
of either U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue
Service Form 1001 (wherein the Assignee claims entitlement to the benefits of a
tax treaty that provides for a complete exemption from U.S. federal income
withholding tax on all payments hereunder) and agrees to provide new Forms 4224
or 1001 upon the expiration of any previously delivered form or comparable
statements in accordance with applicable U.S. law and regulations and amendments
thereto, duly executed and completed by the Assignee, and (c) agrees to comply
with all applicable U.S. laws and regulations with regard to such withholding
tax exemption.
8. REPRESENTATIONS AND WARRANTIES.
(a) The Assignor represents and warrants that (i) it is the legal
and beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any Lien or other adverse claim; (ii) it is
duly organized and existing and it has the full power and authority to take, and
has taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance and to fulfill
its obligations hereunder; (iii) no notices to, or consents, authorizations or
approvals of, any Person are required (other than any already given or obtained)
for its due execution, delivery and performance of this Assignment and
Acceptance, and apart from any agreements or undertakings or filings required by
the Credit Agreement, no further action by, or notice to, or filing with, any
Person is required of it for such execution, delivery or performance; and
(iv) this Assignment and Acceptance has been duly executed and delivered by it
and constitutes the legal, valid and binding obligation of the Assignor,
enforceable against the Assignor in accordance with the terms hereof, subject,
as to enforcement, to bankruptcy, insolvency, moratorium, reorganization and
other laws of general application relating to or affecting creditors' rights and
to general equitable principles.
(b) The Assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity,
EXHIBIT "G" -- Page 5
enforceability, genuineness, sufficiency or value of the Credit Agreement or any
other instrument or document furnished pursuant thereto. The Assignor makes no
representation or warranty in connection with, and assumes no responsibility
with respect to, the solvency, financial condition or statements of the Company,
or the performance or observance by the Company, of any of its respective
obligations under the Credit Agreement or any other instrument or document
furnished in connection therewith.
(c) The Assignee represents and warrants that (i) it is duly
organized and existing and it has full power and authority to take, and has
taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance, and to
fulfill its obligations hereunder; (ii) no notices to, or consents,
authorizations or approvals of, any Person are required (other than any already
given or obtained) for its due execution, delivery and performance of this
Assignment and Acceptance; and apart from any agreements or undertakings or
filings required by the Credit Agreement, no further action by, or notice to, or
filing with, any Person is required of it for such execution, delivery or
performance; (iii) this Assignment and Acceptance has been duly executed and
delivered by it and constitutes the legal, valid and binding obligation of the
Assignee, enforceable against the Assignee in accordance with the terms hereof,
subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application relating to or affecting
creditors' rights and to general equitable principles; and (iv) it is an
Eligible Assignee.
9. FURTHER ASSURANCES.
The Assignor and the Assignee each hereby agree to execute and deliver such
other instruments, and take such other action, as either party may reasonably
request in connection with the transactions contemplated by this Assignment and
Acceptance, including the delivery of any notices or other documents or
instruments to the Company or the Agent, which may be required in connection
with the assignment and assumption contemplated hereby.
10. MISCELLANEOUS.
(a) Any amendment or waiver of any provision of this Assignment and
Acceptance shall be in writing and signed by the parties hereto. No failure or
delay by either party hereto in exercising any right, power or privilege
hereunder shall
EXHIBIT "G" -- Page 6
operate as a waiver thereof and any waiver of any breach of the provisions of
this Assignment and Acceptance shall be without prejudice to any rights with
respect to any other or further breach thereof.
(b) All payments made hereunder shall be made without any set-off
or counterclaim.
(c) The Assignor and the Assignee shall each pay its own costs and
expenses incurred in connection with the negotiation, preparation, execution and
performance of this Assignment and Acceptance.
(d) This Assignment and Acceptance may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
(e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF CALIFORNIA. The Assignor
and the Assignee each irrevocably submits to the non-exclusive jurisdiction of
any State or Federal court sitting in California over any suit, action or
proceeding arising out of or relating to this Assignment and Acceptance and
irrevocably agrees that all claims in respect of such action or proceeding may
be heard and determined in such [California] State or Federal court. Each party
to this Assignment and Acceptance hereby irrevocably waives, to the fullest
extent it may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding. [Reference]
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH THIS ASSIGNMENT AND ACCEPTANCE, THE CREDIT AGREEMENT, ANY
RELATED DOCUMENTS AND AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING, OR
STATEMENTS (WHETHER ORAL OR WRITTEN).
[OTHER PROVISIONS TO BE ADDED AS MAY BE NEGOTIATED BETWEEN THE
ASSIGNOR AND THE ASSIGNEE, PROVIDED THAT SUCH PROVISIONS ARE NOT INCONSISTENT
WITH THE CREDIT AGREEMENT.]
EXHIBIT "G" -- Page 7
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance to be executed and delivered by their duly authorized
officers as of the date first above written.
[ASSIGNOR]
By:
---------------------------------
---------------------------------
[Printed Name and Title]
[ASSIGNEE]
By:
---------------------------------
---------------------------------
[Printed Name and Title]
EXHIBIT "G" -- Page 8
SCHEDULE 1
NOTICE OF ASSIGNMENT AND ACCEPTANCE
_________________, 19__
Bank of America National Trust
and Savings Association, as Agent
____________________________
____________________________
Attn: _______________________
Pan Pacific Retail Properties, Inc.
____________________________
____________________________
Attn: _______________________
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of ______________, 1997 (as
amended, amended and restated, modified, supplemented or renewed from time to
time the "CREDIT AGREEMENT") among Pan Pacific Retail Properties, Inc., a
Maryland corporation (the "COMPANY"), the Banks referred to therein and Bank of
America National Trust and Savings Association as agent for the Banks (the
"AGENT"). Terms defined in the Credit Agreement are used herein as therein
defined.
1. We hereby give you notice of, and request your consent to, the
assignment by __________________ (the "ASSIGNOR") to _______________ (the
"ASSIGNEE") of _____% of the right, title and interest of the Assignor in and to
the Credit Agreement (including, without limitation, the right, title and
interest of the Assignor in and to the Commitments of the Assignor and all
outstanding Loans made by the Assignor) pursuant to the Assignment and
Acceptance Agreement attached hereto (the "ASSIGNMENT AND ACCEPTANCE"). Before
giving effect to such assignment, the Assignor's Commitment is $ ___________ and
the aggregate amount of its
SCHEDULE 1 -- Page 1
outstanding Loans is $_____________. After giving effect to such assignment,
the Assignor's Commitment shall be $______________ and the Assignee's Commitment
shall be $______________.
2. The Assignee agrees that, upon receiving the consent of the
Agent and, if applicable, the Company to such assignment, the Assignee will be
bound by the terms of the Credit Agreement as fully and to the same extent as if
the Assignee were the Bank originally holding such interest in the Credit
Agreement.
3. The following administrative details apply to the Assignee:
(A) Notice Address:
Assignee name: __________________________
Address: _______________________________
_______________________________
_______________________________
Attention: _____________________________
Telephone: (___) _______________________
Telecopier: (___) ______________________
Telex (Answerback): ____________________
(B) Payment Instructions:
Account No.: ___________________________
At: ___________________________
___________________________
___________________________
Reference: ___________________________
Attention: ___________________________
4. You are entitled to rely upon the representations, warranties
and covenants of each of the Assignor and Assignee contained in the Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
SCHEDULE 1 -- Page 2
this Notice of Assignment and Acceptance to be executed by their respective duly
authorized officials, officers or agents as of the date first above mentioned.
Very truly yours,
[NAME OF ASSIGNOR]
By:
---------------------------------
Title:
---------------------------------
By:
---------------------------------
Title:
---------------------------------
[NAME OF ASSIGNEE]
By:
---------------------------------
Title:
---------------------------------
By:
---------------------------------
Title:
---------------------------------
ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
PAN PACIFIC RETAIL PROPERTIES, INC., a Maryland corporation
SCHEDULE 1 -- Page 3
By:
---------------------------------
Title:
---------------------------------
By:
---------------------------------
Title:
---------------------------------
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By:
---------------------------------
Title:
---------------------------------
By:
---------------------------------
Title:
---------------------------------
SCHEDULE 1 -- Page 4
SCHEDULE 1.1(A)
LIST OF ASSETS AND INITIAL ASSET CLASSIFICATIONS
Asset Asset Classification
----- --------------------
1. Cheyenne Commons A
2. Sahara Pavilion North A
3. Sahara Pavilion South A
4. Green Valley Towne & Country B
5. Winterwood Pavilion B
6. Chico Crossroads A
7. Monterey Plaza A
8. Lakewood Shopping Center B
9. Fairmont Shopping Center B
10. Rosewood Village B
11. Laguna Village A
12. Chino Town Square A
13. Melrose Village Plaza B
14. Laurentian Center B
15. Vineyard Village East B
16. Foothill Center C
17. Arlington Courtyard C
18. Xxxxxx Xxxxxx X
00. Xxxxxxx Xxxxxx X
20. Canyon Ridge Plaza A
21. Tanasbourne Village A
22. Maysville Market Square A
SCHEDULE 1.1(A)
Asset Asset Classification
----- --------------------
23. Ocoee Plaza B
24. Sports Unlimited B
25. Country Club Center B
SCHEDULE 1.1(A)
SCHEDULE 1.1(B)
DESIGNATED RESPONSIBLE OFFICIALS
1. Xxxxxx X. Xxxx, Director Chairman, Chief Executive Officer and President
2. Xxxxx X. Xxxxxx, Executive Vice President and Chief Financial Officer
3. Xxxxxx X. Xxxxx, Vice President and Controller
SCHEDULE 1.1(B)
SCHEDULE 3.5(c)
ASSETS INITIALLY CONSTITUTING THE
BORROWING BASE PROPERTIES POOL
Asset
-----
1. Cheyenne Commons
2. Sahara Pavilion South
3. Winterwood Pavilion
4. Chico Crossroads
5. Monterey Plaza
6. Lakewood Center
7. Fairmont Shopping Center
8. Laguna Village
9. Vineyard Village East
10. Arlington Courtyard
11. Xxxxxx Xxxxxx
00. Xxxxxx Xxxxx Xxxxx
00. Ocoee Plaza
14. Sports Unlimited
15. Tanasbourne Village
SCHEDULE 3.5(c)
SCHEDULE 7.14
ENVIRONMENTAL MATTERS
None.
SCHEDULE 7.14
SCHEDULE 8.20(e)
DESCRIPTION OF EXISTING PARTNERSHIPS
1. Melrose Village Plaza Partners, a California general partnership
2. Tanasbourne Village Limited Partnership, an Oregon limited partnership
3. North Coast Health Center Joint Venture, a California general partnership
4. Pan Pacific Development (Tennessee), Limited Partnership, a California
limited partnership
5. Pan Pacific U.S. Shopping Center I Limited Partnership, a Delaware limited
partnership
6. Maysville Marketsquare Associate Limited Partnership, a Kentucky limited
partnership
SCHEDULE 8.20(e)
SCHEDULE 11.21
DESCRIPTION OF EXISTING
PAN PACIFIC/BOFA CREDIT FACILITIES
Borrower Name Original Note Amount Date of Documents
------------- -------------------- -----------------
Pan Pacific Development $27,450,000 September 22, 1995
(Cheyenne Commons),
Inc., a Nevada corporation
Tanasbourne Limited $18,375,000 February 16, 1996
Partnership, an Oregon
limited partnership
Pan Pacific (Canyon $4,300,000 April 28, 1995
Ridge), Inc., a
Washington corporation
Sahara Pavilion U.S., Inc., $13,000,000 July 20, 1997
a Nevada corporation
SCHEDULE 11.21
NOTE
$35,000,000 August 13, 0000
Xxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, Pan Pacific Retail Properties, Inc., a Maryland
corporation (the "COMPANY"), promises to pay to the order of Bank of America
National Trust and Savings Association, a national banking association ("Bank")
the principal amount of THIRTY-FIVE MILLION AND NO/100 DOLLARS ($35,000,000), or
such lesser aggregate amount of Loans as may be made pursuant to Bank's
Commitment under the Credit Agreement hereinafter described, payable as
hereinafter set forth. Company promises to pay interest on the principal amount
hereof remaining unpaid from time to time from the date hereof until the date of
payment in full, payable as hereinafter set forth.
Reference is made to the Credit Agreement of even date herewith among
Company and the Banks (the "AGREEMENT"). Terms defined in the Agreement and not
otherwise defined herein are used herein with the meanings defined for those
terms in the Agreement. This is one of the Notes referred to in the Agreement,
and any holder hereof is entitled to all of the rights, remedies, benefits and
privileges provided for in the Agreement as originally executed or as it may
from time to time be supplemented, modified or amended. The Agreement, among
other things, contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events upon the terms and conditions therein
specified.
The principal indebtedness evidenced by this Note shall be payable as
provided in the Agreement and in any event on the Maturity Date (which shall be
August 13, 2000, subject to possible extension as provided in SECTION 4.18 of
the Agreement).
Interest shall be payable on the outstanding daily unpaid principal
amount of each Loan hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the
Agreement both before and after default and before and after maturity and
judgment, with interest on overdue interest to bear interest at the rate set
forth in SECTION 4.4 of the Agreement, to the fullest extent permitted by
applicable Law.
1
The amount of each payment hereunder shall be made to Bank at Agent's
office located in [Irvine], California, for the account of Bank, in lawful money
of the United States of America and in immediately available funds not later
than 11:00 a.m., California time, on the day of payment (which must be a Banking
Day). All payments received after 11:00 a.m., California time, on any Banking
Day, shall be deemed received on the next succeeding Banking Day. Bank shall
use its best efforts to keep a record of Loans made by it and payments of
principal with respect to this Note, and such record shall be presumptive
evidence of the principal amount owing under this Note.
Company hereby promises to pay all costs and expenses of any holder
hereof incurred in collecting the undersigned's obligations hereunder or in
enforcing or attempting to enforce any of any holder's rights hereunder,
including Attorney Costs, whether or not an action is filed in connection
therewith.
Company hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
Assignment of this Note is subject to the consent of certain parties
pursuant to SECTION 11.6 of the Agreement.
This Note shall be delivered to and accepted by Bank in the State of
California, and shall be governed by, and construed and enforced in accordance
with, the internal Laws thereof without regard to the choice of law provisions
thereof.
"Company"
PAN PACIFIC RETAIL PROPERTIES, INC., a
Maryland corporation
By:
------------------------------------
------------------------------------
[Printed Name and Title]
By:
------------------------------------
------------------------------------
[Printed Name and Title]
2
ADVANCES AND PAYMENTS OF PRINCIPAL
(Reference Rate Borrowings)
BANK AMOUNT OF AMOUNT OF UNPAID NOTATION DATE
ADVANCE OR OF PRINCIPAL PAID OR PRINCIPAL AND MADE BY
REDESIGNATION REDESIGNATED INTO BALANCE
FROM ANOTHER ANOTHER TYPE OF
TYPE OF BORROWING BORROWING
---- ----------------- ----------------- --------- -------------
4
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Borrowings)
BANK AMOUNT OF AMOUNT OF UNPAID NOTATION DATE
ADVANCE OR OF PRINCIPAL PAID OR PRINCIPAL AND MADE BY
REDESIGNATION REDESIGNATED INTO BALANCE
FROM ANOTHER ANOTHER TYPE OF
TYPE OF BORROWING BORROWING
---- ----------------- ----------------- --------- -------------
5
NOTE
$25,000,000 August 13, 0000
Xxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, Pan Pacific Retail Properties, Inc., a Maryland
corporation (the "COMPANY"), promises to pay to the order of U.S. Bank National
Association ("Bank") the principal amount of TWENTY-FIVE MILLION AND NO/100
DOLLARS ($25,000,000), or such lesser aggregate amount of Loans as may be made
pursuant to Bank's Commitment under the Credit Agreement hereinafter described,
payable as hereinafter set forth. Company promises to pay interest on the
principal amount hereof remaining unpaid from time to time from the date hereof
until the date of payment in full, payable as hereinafter set forth.
Reference is made to the Credit Agreement of even date herewith among
Company and the Banks (the "AGREEMENT"). Terms defined in the Agreement and not
otherwise defined herein are used herein with the meanings defined for those
terms in the Agreement. This is one of the Notes referred to in the Agreement,
and any holder hereof is entitled to all of the rights, remedies, benefits and
privileges provided for in the Agreement as originally executed or as it may
from time to time be supplemented, modified or amended. The Agreement, among
other things, contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events upon the terms and conditions therein
specified.
The principal indebtedness evidenced by this Note shall be payable as
provided in the Agreement and in any event on the Maturity Date (which shall be
August 13, 2000, subject to possible extension as provided in SECTION 4.18 of
the Agreement).
Interest shall be payable on the outstanding daily unpaid principal
amount of each Loan hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the
Agreement both before and after default and before and after maturity and
judgment, with interest on overdue interest to bear interest at the rate set
forth in SECTION 4.4 of the Agreement, to the fullest extent permitted by
applicable Law.
The amount of each payment hereunder shall be made to Bank at Agent's
office located in [Irvine], California, for the account of Bank, in lawful money
of the United States of America and in immediately available funds not later
than 11:00 a.m., California time, on the day of payment (which must be a Banking
Day). All payments received after 11:00 a.m., California time, on any Banking
Day, shall be deemed received on the next succeeding
1
Banking Day. Bank shall use its best efforts to keep a record of Loans made by
it and payments of principal with respect to this Note, and such record shall be
presumptive evidence of the principal amount owing under this Note.
Company hereby promises to pay all costs and expenses of any holder
hereof incurred in collecting the undersigned's obligations hereunder or in
enforcing or attempting to enforce any of any holder's rights hereunder,
including Attorney Costs, whether or not an action is filed in connection
therewith.
Company hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
Assignment of this Note is subject to the consent of certain parties
pursuant to SECTION 11.6 of the Agreement.
This Note shall be delivered to and accepted by Bank in the State of
California, and shall be governed by, and construed and enforced in accordance
with, the internal Laws thereof without regard to the choice of law provisions
thereof.
"Company"
PAN PACIFIC RETAIL PROPERTIES, INC., a
Maryland corporation
By:
------------------------------------
------------------------------------
[Printed Name and Title]
By:
------------------------------------
------------------------------------
[Printed Name and Title]
2
ADVANCES AND PAYMENTS OF PRINCIPAL
(Reference Rate Borrowings)
BANK AMOUNT OF AMOUNT OF UNPAID NOTATION DATE
ADVANCE OR OF PRINCIPAL PAID OR PRINCIPAL AND MADE BY
REDESIGNATION REDESIGNATED INTO BALANCE
FROM ANOTHER ANOTHER TYPE OF
TYPE OF BORROWING BORROWING
---- ----------------- ----------------- --------- -------------
3
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Borrowings)
BANK AMOUNT OF AMOUNT OF UNPAID NOTATION DATE
ADVANCE OR OF PRINCIPAL PAID OR PRINCIPAL AND MADE BY
REDESIGNATION REDESIGNATED INTO BALANCE
FROM ANOTHER ANOTHER TYPE OF
TYPE OF BORROWING BORROWING
---- ----------------- ----------------- --------- -------------
4
NOTE
$25,000,000 August 13, 0000
Xxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, Pan Pacific Retail Properties, Inc., a Maryland
corporation (the "COMPANY"), promises to pay to the order of KeyBank National
Association ("Bank") the principal amount of TWENTY-FIVE MILLION AND NO/100
DOLLARS ($25,000,000), or such lesser aggregate amount of Loans as may be made
pursuant to Bank's Commitment under the Credit Agreement hereinafter described,
payable as hereinafter set forth. Company promises to pay interest on the
principal amount hereof remaining unpaid from time to time from the date hereof
until the date of payment in full, payable as hereinafter set forth.
Reference is made to the Credit Agreement of even date herewith among
Company and the Banks (the "AGREEMENT"). Terms defined in the Agreement and not
otherwise defined herein are used herein with the meanings defined for those
terms in the Agreement. This is one of the Notes referred to in the Agreement,
and any holder hereof is entitled to all of the rights, remedies, benefits and
privileges provided for in the Agreement as originally executed or as it may
from time to time be supplemented, modified or amended. The Agreement, among
other things, contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events upon the terms and conditions therein
specified.
The principal indebtedness evidenced by this Note shall be payable as
provided in the Agreement and in any event on the Maturity Date (which shall be
August 13, 2000, subject to possible extension as provided in SECTION 4.18 of
the Agreement).
Interest shall be payable on the outstanding daily unpaid principal
amount of each Loan hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the
Agreement both before and after default and before and after maturity and
judgment, with interest on overdue interest to bear interest at the rate set
forth in SECTION 4.4 of the Agreement, to the fullest extent permitted by
applicable Law.
The amount of each payment hereunder shall be made to Bank at Agent's
office located in [Irvine], California, for the account of Bank, in lawful money
of the United States of America and in immediately available funds not later
than 11:00 a.m., California time, on the day of payment (which must be a Banking
Day). All payments received after 11:00 a.m., California time, on any Banking
Day, shall be deemed received on the next succeeding
1
Banking Day. Bank shall use its best efforts to keep a record of Loans made by
it and payments of principal with respect to this Note, and such record shall be
presumptive evidence of the principal amount owing under this Note.
Company hereby promises to pay all costs and expenses of any holder
hereof incurred in collecting the undersigned's obligations hereunder or in
enforcing or attempting to enforce any of any holder's rights hereunder,
including Attorney Costs, whether or not an action is filed in connection
therewith.
Company hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
Assignment of this Note is subject to the consent of certain parties
pursuant to SECTION 11.6 of the Agreement.
This Note shall be delivered to and accepted by Bank in the State of
California, and shall be governed by, and construed and enforced in accordance
with, the internal Laws thereof without regard to the choice of law provisions
thereof.
"Company"
PAN PACIFIC RETAIL PROPERTIES, INC., a
Maryland corporation
By:
------------------------------------
------------------------------------
[Printed Name and Title]
By:
------------------------------------
------------------------------------
[Printed Name and Title]
2
ADVANCES AND PAYMENTS OF PRINCIPAL
(Reference Rate Borrowings)
BANK AMOUNT OF AMOUNT OF UNPAID NOTATION DATE
ADVANCE OR OF PRINCIPAL PAID OR PRINCIPAL AND MADE BY
REDESIGNATION REDESIGNATED INTO BALANCE
FROM ANOTHER ANOTHER TYPE OF
TYPE OF BORROWING BORROWING
---- ----------------- ----------------- --------- -------------
3
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Borrowings)
BANK AMOUNT OF AMOUNT OF UNPAID NOTATION DATE
ADVANCE OR OF PRINCIPAL PAID OR PRINCIPAL AND MADE BY
REDESIGNATION REDESIGNATED INTO BALANCE
FROM ANOTHER ANOTHER TYPE OF
TYPE OF BORROWING BORROWING
---- ----------------- ----------------- --------- -------------
4
NOTE
$25,000,000 August 13, 0000
Xxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, Pan Pacific Retail Properties, Inc., a Maryland
corporation (the "COMPANY"), promises to pay to the order of The Bank of Nova
Scotia ("Bank") the principal amount of TWENTY-FIVE MILLION AND NO/100 DOLLARS
($25,000,000), or such lesser aggregate amount of Loans as may be made pursuant
to Bank's Commitment under the Credit Agreement hereinafter described, payable
as hereinafter set forth. Company promises to pay interest on the principal
amount hereof remaining unpaid from time to time from the date hereof until the
date of payment in full, payable as hereinafter set forth.
Reference is made to the Credit Agreement of even date herewith among
Company and the Banks (the "AGREEMENT"). Terms defined in the Agreement and not
otherwise defined herein are used herein with the meanings defined for those
terms in the Agreement. This is one of the Notes referred to in the Agreement,
and any holder hereof is entitled to all of the rights, remedies, benefits and
privileges provided for in the Agreement as originally executed or as it may
from time to time be supplemented, modified or amended. The Agreement, among
other things, contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events upon the terms and conditions therein
specified.
The principal indebtedness evidenced by this Note shall be payable as
provided in the Agreement and in any event on the Maturity Date (which shall be
August 13, 2000, subject to possible extension as provided in SECTION 4.18 of
the Agreement).
Interest shall be payable on the outstanding daily unpaid principal
amount of each Loan hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the
Agreement both before and after default and before and after maturity and
judgment, with interest on overdue interest to bear interest at the rate set
forth in SECTION 4.4 of the Agreement, to the fullest extent permitted by
applicable Law.
The amount of each payment hereunder shall be made to Bank at Agent's
office located in [Irvine], California, for the account of Bank, in lawful money
of the United States of America and in immediately available funds not later
than 11:00 a.m., California time, on the day of payment (which must be a Banking
Day). All payments received after 11:00 a.m., California time, on any Banking
Day, shall be deemed received on the next succeeding
1
Banking Day. Bank shall use its best efforts to keep a record of Loans made by
it and payments of principal with respect to this Note, and such record shall be
presumptive evidence of the principal amount owing under this Note.
Company hereby promises to pay all costs and expenses of any holder
hereof incurred in collecting the undersigned's obligations hereunder or in
enforcing or attempting to enforce any of any holder's rights hereunder,
including Attorney Costs, whether or not an action is filed in connection
therewith.
Company hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
Assignment of this Note is subject to the consent of certain parties
pursuant to SECTION 11.6 of the Agreement.
This Note shall be delivered to and accepted by Bank in the State of
California, and shall be governed by, and construed and enforced in accordance
with, the internal Laws thereof without regard to the choice of law provisions
thereof.
"Company"
PAN PACIFIC RETAIL PROPERTIES, INC., a Maryland corporation
"Company"
PAN PACIFIC RETAIL PROPERTIES, INC., a
Maryland corporation
By:
------------------------------------
------------------------------------
[Printed Name and Title]
By:
------------------------------------
------------------------------------
[Printed Name and Title]
2
ADVANCES AND PAYMENTS OF PRINCIPAL
(Reference Rate Borrowings)
BANK AMOUNT OF AMOUNT OF UNPAID NOTATION DATE
ADVANCE OR OF PRINCIPAL PAID OR PRINCIPAL AND MADE BY
REDESIGNATION REDESIGNATED INTO BALANCE
FROM ANOTHER ANOTHER TYPE OF
TYPE OF BORROWING BORROWING
---- ----------------- ----------------- --------- -------------
3
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Borrowings)
BANK AMOUNT OF AMOUNT OF UNPAID NOTATION DATE
ADVANCE OR OF PRINCIPAL PAID OR PRINCIPAL AND MADE BY
REDESIGNATION REDESIGNATED INTO BALANCE
FROM ANOTHER ANOTHER TYPE OF
TYPE OF BORROWING BORROWING
---- ----------------- ----------------- --------- -------------
4
NOTE
$20,000,000 August 13, 0000
Xxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, Pan Pacific Retail Properties, Inc., a Maryland
corporation (the "COMPANY"), promises to pay to the order of Signet Bank
("Bank") the principal amount of TWENTY MILLION AND NO/100 DOLLARS
($20,000,000), or such lesser aggregate amount of Loans as may be made pursuant
to Bank's Commitment under the Credit Agreement hereinafter described, payable
as hereinafter set forth. Company promises to pay interest on the principal
amount hereof remaining unpaid from time to time from the date hereof until the
date of payment in full, payable as hereinafter set forth.
Reference is made to the Credit Agreement of even date herewith among
Company and the Banks (the "AGREEMENT"). Terms defined in the Agreement and not
otherwise defined herein are used herein with the meanings defined for those
terms in the Agreement. This is one of the Notes referred to in the Agreement,
and any holder hereof is entitled to all of the rights, remedies, benefits and
privileges provided for in the Agreement as originally executed or as it may
from time to time be supplemented, modified or amended. The Agreement, among
other things, contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events upon the terms and conditions therein
specified.
The principal indebtedness evidenced by this Note shall be payable as
provided in the Agreement and in any event on the Maturity Date (which shall be
August 13, 2000, subject to possible extension as provided in SECTION 4.18 of
the Agreement).
Interest shall be payable on the outstanding daily unpaid principal
amount of each Loan hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the
Agreement both before and after default and before and after maturity and
judgment, with interest on overdue interest to bear interest at the rate set
forth in SECTION 4.4 of the Agreement, to the fullest extent permitted by
applicable Law.
The amount of each payment hereunder shall be made to Bank at Agent's
office located in [Irvine], California, for the account of Bank, in lawful money
of the United States of America and in immediately available funds not later
than 11:00 a.m., California time, on the day of payment (which must be a Banking
Day). All payments received after 11:00 a.m., California time, on any Banking
Day, shall be deemed received on the next succeeding Banking Day. Bank shall
use its best efforts to keep a record of Loans made by it and
1
payments of principal with respect to this Note, and such record shall be
presumptive evidence of the principal amount owing under this Note.
Company hereby promises to pay all costs and expenses of any holder
hereof incurred in collecting the undersigned's obligations hereunder or in
enforcing or attempting to enforce any of any holder's rights hereunder,
including Attorney Costs, whether or not an action is filed in connection
therewith.
Company hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
Assignment of this Note is subject to the consent of certain parties
pursuant to SECTION 11.6 of the Agreement.
This Note shall be delivered to and accepted by Bank in the State of
California, and shall be governed by, and construed and enforced in accordance
with, the internal Laws thereof without regard to the choice of law provisions
thereof.
"Company"
PAN PACIFIC RETAIL PROPERTIES, INC., a
Maryland corporation
By:
------------------------------------
------------------------------------
[Printed Name and Title]
By:
------------------------------------
------------------------------------
[Printed Name and Title]
2
ADVANCES AND PAYMENTS OF PRINCIPAL
(Reference Rate Borrowings)
BANK AMOUNT OF AMOUNT OF UNPAID NOTATION DATE
ADVANCE OR OF PRINCIPAL PAID OR PRINCIPAL AND MADE BY
REDESIGNATION REDESIGNATED INTO BALANCE
FROM ANOTHER ANOTHER TYPE OF
TYPE OF BORROWING BORROWING
---- ----------------- ----------------- --------- -------------
3
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Borrowings)
BANK AMOUNT OF AMOUNT OF UNPAID NOTATION DATE
ADVANCE OR OF PRINCIPAL PAID OR PRINCIPAL AND MADE BY
REDESIGNATION REDESIGNATED INTO BALANCE
FROM ANOTHER ANOTHER TYPE OF
TYPE OF BORROWING BORROWING
---- ----------------- ----------------- --------- -------------
4
NOTE
$20,000,000 August 13, 0000
Xxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, Pan Pacific Retail Properties, Inc., a Maryland
corporation (the "COMPANY"), promises to pay to the order of Sanwa Bank
California, a California corporation ("Bank") the principal amount of TWENTY
MILLION AND NO/100 DOLLARS ($20,000,000), or such lesser aggregate amount of
Loans as may be made pursuant to Bank's Commitment under the Credit Agreement
hereinafter described, payable as hereinafter set forth. Company promises to
pay interest on the principal amount hereof remaining unpaid from time to time
from the date hereof until the date of payment in full, payable as hereinafter
set forth.
Reference is made to the Credit Agreement of even date herewith among
Company and the Banks (the "AGREEMENT"). Terms defined in the Agreement and not
otherwise defined herein are used herein with the meanings defined for those
terms in the Agreement. This is one of the Notes referred to in the Agreement,
and any holder hereof is entitled to all of the rights, remedies, benefits and
privileges provided for in the Agreement as originally executed or as it may
from time to time be supplemented, modified or amended. The Agreement, among
other things, contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events upon the terms and conditions therein
specified.
The principal indebtedness evidenced by this Note shall be payable as
provided in the Agreement and in any event on the Maturity Date (which shall be
August 13, 2000, subject to possible extension as provided in SECTION 4.18 of
the Agreement).
Interest shall be payable on the outstanding daily unpaid principal
amount of each Loan hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the
Agreement both before and after default and before and after maturity and
judgment, with interest on overdue interest to bear interest at the rate set
forth in SECTION 4.4 of the Agreement, to the fullest extent permitted by
applicable Law.
The amount of each payment hereunder shall be made to Bank at Agent's
office located in [Irvine], California, for the account of Bank, in lawful money
of the United States of America and in immediately available funds not later
than 11:00 a.m., California time, on the day of payment (which must be a Banking
Day). All payments received after 11:00 a.m., California time, on any Banking
Day, shall be deemed received on the next succeeding
1
Banking Day. Bank shall use its best efforts to keep a record of Loans made by
it and payments of principal with respect to this Note, and such record shall be
presumptive evidence of the principal amount owing under this Note.
Company hereby promises to pay all costs and expenses of any holder
hereof incurred in collecting the undersigned's obligations hereunder or in
enforcing or attempting to enforce any of any holder's rights hereunder,
including Attorney Costs, whether or not an action is filed in connection
therewith.
Company hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
Assignment of this Note is subject to the consent of certain parties
pursuant to SECTION 11.6 of the Agreement.
This Note shall be delivered to and accepted by Bank in the State of
California, and shall be governed by, and construed and enforced in accordance
with, the internal Laws thereof without regard to the choice of law provisions
thereof.
"Company"
PAN PACIFIC RETAIL PROPERTIES, INC., a
Maryland corporation
By:
------------------------------------
------------------------------------
[Printed Name and Title]
By:
------------------------------------
------------------------------------
[Printed Name and Title]
2
ADVANCES AND PAYMENTS OF PRINCIPAL
(Reference Rate Borrowings)
BANK AMOUNT OF AMOUNT OF UNPAID NOTATION DATE
ADVANCE OR OF PRINCIPAL PAID OR PRINCIPAL AND MADE BY
REDESIGNATION REDESIGNATED INTO BALANCE
FROM ANOTHER ANOTHER TYPE OF
TYPE OF BORROWING BORROWING
---- ----------------- ----------------- --------- -------------
3
ADVANCES AND PAYMENTS OF PRINCIPAL
(LIBOR Borrowings)
BANK AMOUNT OF AMOUNT OF UNPAID NOTATION DATE
ADVANCE OR OF PRINCIPAL PAID OR PRINCIPAL AND MADE BY
REDESIGNATION REDESIGNATED INTO BALANCE
FROM ANOTHER ANOTHER TYPE OF
TYPE OF BORROWING BORROWING
---- ----------------- ----------------- --------- -------------
4