EXHIBIT 10.6
================================================================================
EXECUTION VERSION
SECOND
AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of
March 23, 2001
among
W. P. XXXXX & CO. LLC,
(F/K/A XXXXX DIVERSIFIED LLC)
CORPORATE PROPERTY ASSOCIATES,
CORPORATE PROPERTY ASSOCIATES 4, A CALIFORNIA LIMITED PARTNERSHIP,
CORPORATE PROPERTY ASSOCIATES 6- A CALIFORNIA LIMITED PARTNERSHIP,
CORPORATE PROPERTY ASSOCIATES 9, L.P., A DELAWARE LIMITED PARTNERSHIP,
XXXXX ASSET MANAGEMENT CORP.,
CALL LLC,
XXXXX TECHNOLOGY PROPERTIES II LLC,
CD UP LP
The Lenders Party Hereto,
THE CHASE MANHATTAN BANK,
as Issuing Bank and Administrative Agent,
THE BANK OF NEW YORK,
as Syndication Agent,
PNC BANK, NATIONAL ASSOCIATION,
as Documentation Agent,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Managing Agent
and
XX XXXXXX, a division of CHASE SECURITIES INC.,
as Lead Arranger and Sole Book Runner
================================================================================
-34-
TABLE OF CONTENTS
Page
----
ARTICLE I. Definitions.................................................... 38
SECTION 1.1. Defined Terms............................................ 38
SECTION 1.2. Classification of Loans and Borrowings................... 73
SECTION 1.3. Terms Generally.......................................... 74
SECTION 1.4. Accounting Terms; GAAP................................... 74
ARTICLE II. The Credits................................................... 74
SECTION 2.1. Commitments.............................................. 74
SECTION 2.2. Loans and Borrowings..................................... 75
SECTION 2.3. Requests for Revolving Borrowings........................ 76
SECTION 2.4. Competitive Bid Procedure................................ 77
SECTION 2.5. [Reserved]............................................... 80
SECTION 2.6. Letters of Credit........................................ 80
SECTION 2.7. Funding of Borrowings.................................... 85
SECTION 2.8. Interest Elections....................................... 86
SECTION 2.9. Termination and Reduction of Commitments................. 88
SECTION 2.10. Repayment of Loans; Evidence of Debt.................... 88
SECTION 2.11. Prepayment of Loans..................................... 89
SECTION 2.12. Fees.................................................... 90
SECTION 2.13. Interest................................................ 92
SECTION 2.14. Alternate Rate of Interest.............................. 93
SECTION 2.15. Increased Costs......................................... 94
SECTION 2.16. Break Funding Payments.................................. 95
SECTION 2.17. Taxes................................................... 96
SECTION 2.18. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs............................. 97
SECTION 2.19. Mitigation Obligations;
Replacement of Lenders.......................... 99
SECTION 2.20. Increase in Commitment.................................. 100
ARTICLE III. Representations and Warranties............................... 102
SECTION 3.1. Organization; Powers..................................... 102
SECTION 3.2. Authorization; Enforceability............................ 102
SECTION 3.3. Governmental Approvals; No Conflicts..................... 103
SECTION 3.4. Financial Condition; No Material Adverse
Change........................................... 103
SECTION 3.5. Properties............................................... 104
SECTION 3.6. Litigation and Environmental Matters..................... 104
SECTION 3.7. Compliance with Laws and Agreements...................... 105
SECTION 3.8. Investment and Holding Company Status.................... 105
SECTION 3.9. Taxes.................................................... 105
SECTION 3.10. ERISA................................................... 105
SECTION 3.11. Disclosure.............................................. 105
SECTION 3.12. Insurance............................................... 106
SECTION 3.13. Leases.................................................. 106
SECTION 3.14. SEC Reports............................................. 106
SECTION 3.15. [Reserved].............................................. 106
SECTION 3.16. Representations and Warranties in Loan
Documents....................................... 106
SECTION 3.17. Organizational Documents................................ 107
-35-
ARTICLE IV. Conditions.................................................... 107
SECTION 4.1. Closing Date............................................. 107
SECTION 4.2. Each Credit Event........................................ 109
ARTICLE V. Affirmative Covenants.......................................... 110
SECTION 5.1. Financial Statements and Other Information............... 110
SECTION 5.2. Notices of Material Events............................... 113
SECTION 5.3. Existence; Conduct of Business........................... 115
SECTION 5.4. Payment of Obligations................................... 115
SECTION 5.5. Maintenance of Properties; Insurance..................... 115
SECTION 5.6. Books and Records; Inspection Rights..................... 116
SECTION 5.7. Compliance with Laws..................................... 116
SECTION 5.8. Use of Proceeds and Letters of Credit.................... 116
SECTION 5.9. Company Status........................................... 117
SECTION 5.10. Additional Borrowers; Solvency of Borrowers............. 117
SECTION 5.11. Further Assurances...................................... 117
SECTION 5.12. Distributions in the Ordinary Course.................... 117
SECTION 5.13. ERISA Compliance........................................ 117
ARTICLE VI. Negative Covenants............................................ 118
SECTION 6.1. Indebtedness and Other Financial Covenants............... 118
SECTION 6.2. Liens.................................................... 121
SECTION 6.3. Fundamental Changes...................................... 121
SECTION 6.4. Investments, Loans, Advances, Guarantees
SECTION 6.5. Hedging Agreements....................................... 122
SECTION 6.6. ERISA.................................................... 123
SECTION 6.7. Margin Regulations; Securities Laws...................... 123
SECTION 6.8. Transactions with Affiliates............................. 124
ARTICLE VII. Events of Default............................................ 125
SECTION 7.1............................................................ 125
ARTICLE VIII. The Agents.................................................. 128
SECTION 8.1............................................................ 128
ARTICLE IX. Miscellaneous................................................. 131
SECTION 9.1. Notices.................................................. 131
SECTION 9.2. Waivers; Amendments...................................... 132
SECTION 9.3. Expenses; Indemnity; Damage Waiver....................... 133
SECTION 9.4. Successors and Assigns................................... 135
SECTION 9.5. Survival................................................. 139
SECTION 9.6. Counterparts; Integration; Effectiveness................. 139
SECTION 9.7. Severability............................................. 139
SECTION 9.8. Right of Setoff.......................................... 140
SECTION 9.9. Governing Law; Jurisdiction; Consent to
Service of Process..................................................... 140
SECTION 9.10. WAIVER OF JURY TRIAL.................................... 141
SECTION 9.11. Headings................................................ 141
SECTION 9.12. Confidentiality......................................... 141
SECTION 9.13. Interest Rate Limitation................................ 142
SECTION 9.14. Amendment and Restatement............................... 142
Section 9.15. No Bankruptcy Proceedings............................... 143
ARTICLE X. Multiple Borrowers............................................. 144
ARTICLE XI. REIT Conversion............................................... 144
-36-
SCHEDULES:
SCHEDULE 2.1 - Commitments
SCHEDULE 3.2 - Ownership Structure
SCHEDULE 3.2A - Limited Partnership Interests
SCHEDULE 3.3 - Consents
SCHEDULE 3.4 - Existing Indebtedness
SCHEDULE 3.6 - Disclosed Matters
SCHEDULE 3.13 - Company Leases
SCHEDULE 4.1(F) - Transactions not in the Ordinary Course
EXHIBITS:
EXHIBIT A -- Form of Assignment and Acceptance
EXHIBIT B -- Form of Borrowing Base Certificate
EXHIBIT C -- Form of Borrowing Request
EXHIBIT D-1 - Form of Note
EXHIBIT D-2 - Form of Designated Bank Note
EXHIBIT E-1 -- Form of Opinion of Xxxx Xxxxx Xxxx & XxXxxx LLP
EXHIBIT E-2 -- Form of Opinion of California Counsel
EXHIBIT F -- Financial Calculation Schedule Pursuant to Section 5.1
EXHIBIT G - Form of Intercompany Note
EXHIBIT H - Form of [Quarterly/Annual] Compliance Certificate to Accompany
Reports
EXHIBIT I - Form of Instrument of Adherence to Credit Agreement
EXHIBIT J- Form of Designation Agreement
-37-
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this "AGREEMENT") dated
as of March 23, 2001, among W. P. Xxxxx & Co. LLC (f/k/a Xxxxx Diversified LLC),
Corporate Property Associates, Corporate Property Associates 4, a California
limited partnership, Corporate Property Associates 6- a California limited
partnership, Corporate Property Associates 9, L.P., a Delaware limited
partnership, Xxxxx Asset Management Corp., Call LLC, Xxxxx Technology Properties
II LLC, CD UP LP, the LENDERS party hereto, and The Chase Manhattan Bank, as
administrative agent, (in such capacity, the "ADMINISTRATIVE AGENT") and as
issuing bank (in such capacity, the "ISSUING BANK"), The Bank of New York, as
syndication agent (in such capacity, the "SYNDICATION AGENT"), PNC Bank,
National Association, as documentation agent (in such capacity, the
"DOCUMENTATION AGENT"), Xxxxx Fargo Bank, National Association, as Managing
Agent (in such capacity, the "MANAGING AGENT") and XX Xxxxxx, a division of
Chase Securities Inc., as Lead Arranger and Sole Book Runner.
WHEREAS, pursuant to the Amended and Restated Credit Agreement dated as of
October 15, 1998 (the "EXISTING CREDIT AGREEMENT"), W. P. Xxxxx & Co. LLC (then
known as Xxxxx Diversified LLC) obtained commitments for up to $185,000,000 in
revolving loans and letters of credit;
WHEREAS, the parties hereto have agreed to amend and restate the Existing
Credit Agreement so as to, among other things, (a) amend various provisions of
the Existing Credit Agreement, (b) revise in certain respects the composition of
the lender group and (c) provide the Borrowers with the one time right to
request the increase of the commitment for up to $225,000,000 in revolving loans
and letters of credit; and
WHEREAS, the parties hereto intend that this Agreement and the documents
executed in connection herewith not effect a novation of the obligations of the
Company or any other obligor under the Existing Credit Agreement, but merely a
restatement and, where applicable, an amendment of the terms governing such
obligations;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, the Existing Credit Agreement is restated in its entirety, and the
parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. Defined Terms. As used in this Agreement, the following terms have
the meanings specified below:
-38-
"ABR," when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"ADJUSTED EBITDA" means, for any Person, for any period, (i) EBITDA for
such Person, for such period, as adjusted to eliminate free rent and the
straight-lining of rents, less (ii) the Capital Expenditure Reserve Amount for
such Person's Projects for each month in such period.
"ADJUSTED NOI" means, for any period, the sum, without duplication, of (i)
NOI for such period from Projects owned by the Company or its Subsidiaries, less
the Capital Expenditure Reserve Amounts for such Projects for each month in such
period (with appropriate adjustments for minority interests) and (ii) the
portion of NOI for such period of Joint Venture Holdings allocable to the
Company or its Subsidiaries in accordance with GAAP, less the Capital
Expenditure Reserve Amounts for such Joint Venture Holdings for each month in
such period.
"ADJUSTED UNENCUMBERED NOI" means, for any period, Adjusted NOI derived
from Unencumbered Eligible Projects for such period, which Adjusted NOI is not
subject to any Lien.
"ADJUSTED LIBO RATE" means, with respect to any Eurodollar Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"ADMINISTRATIVE AGENT" means The Chase Manhattan Bank, in its capacity as
administrative agent for the Lenders hereunder.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal to the
greater of the Prime Rate in effect on such day and the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate Base Rate
due to a change in the Prime Rate or the Federal Funds Effective Rate shall be
effective from and including the effective date of such change in the Prime Rate
or the Federal Funds Effective Rate, respectively.
-39-
"APPLICABLE PERCENTAGE" means, with respect to any Lender, the percentage
of the total Commitments represented by such Lender's Commitment. If the
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"APPLICABLE RATE" means, for any day, with respect to any ABR Loan or
Eurodollar Revolving Loan, as the case may be:
(i) in the event that Xxxxx'x or S&P shall have in effect either a
corporate credit rating for the Company or a rating for the Index Debt,
the applicable rate per annum set forth below under the caption "ABR
Spread" or "Eurodollar Spread", as the case may be, based upon the ratings
by Xxxxx'x and S&P, respectively, applicable on such date to the Company
or the Index Debt:
Index Debt Ratings ABR Eurodollar
------------------ ---
(S&P/Xxxxx'x): Spread Spread
-------------- ------ ------
Category 1
A-/A3 or better 0.0% 0.60%
Category 2
BBB+/Baa1 0.0% 0.75%
Category 3
BBB/Baa2 0.0% 0.875%
Category 4
BBB-/Baa3 0.0% 1.00%
Category 5
Lower than BBB-/Baa3 0.50% 1.35%
For purposes of the foregoing, (A) if the ratings established or deemed to
have been established by Xxxxx'x and S&P for the Company or the Index Debt
shall fall within different Categories, the Applicable Rate shall be based
on the higher of the two ratings unless one of the two ratings is two or
more Categories lower than the other, in which case the Applicable Rate
shall be determined by reference to the Category next below that of the
higher of the two ratings, and (B) if the ratings established or deemed to
have been established by Xxxxx'x and S&P for the Company or the Index Debt
shall be changed (other than as a result of a change in the rating system
of Xxxxx'x or S&P), such
-40-
change shall be effective as of the date on which it is first announced by
the applicable rating agency. Each change in the Applicable Rate in
accordance with this clause (i) shall apply during the period commencing
on the effective date of such change and ending on the date immediately
preceding the effective date of the next such change. If the rating system
of Xxxxx'x or S&P shall change, or if either such rating agency shall
cease to be in the business of rating companies or corporate debt
obligations, the Company and the Lenders shall negotiate in good faith to
amend this definition to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Rate shall be
determined by reference to the rating most recently in effect prior to
such change or cessation; or
(ii) in the event that neither Xxxxx'x nor S&P shall have in effect
a rating for the Company or the Index Debt, (a) the applicable rate per
annum set forth below under the caption "ABR Spread" or "Eurodollar
Spread", as the case may be, based upon the range into which the Leverage
Ratio then falls in accordance with the following table:
Leverage Ratio Eurodollar Spread ABR Spread
-------------- ----------------- ----------
less than 30% 1.15% 0.0%
30%-less than 45% 1.30% 0.0%
45%-55% (or higher) 1.45% 0.125%
Any change in the Applicable Rate determined in accordance with this
clause (ii) shall be effective as of the financial reporting dates set
forth in Section 5.1 or as of the date of any borrowing on which the
Leverage Ratio changes.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.4), and accepted by the Administrative Agent, in the form
of EXHIBIT A or any other form approved by the Administrative Agent.
"AVAILABILITY PERIOD" means the period from and including the Effective
Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
-41-
"BOARD" means the Board of Governors of the Federal Reserve System of the
United States of America.
"BORROWER" means each of (i) the Company, (ii) Corporate Property
Associates, Corporate Property Associates 4, a California limited partnership,
Corporate Property Associates 6- a California limited partnership, each a
California limited partnership, (iii) Corporate Property Associates 9, L.P., a
Delaware limited partnership, and CD Up LP, each of which is a Delaware limited
partnership, (iv) Xxxxx Asset Management Corp., a Delaware corporation, (v) Call
LLC and Xxxxx Technology Properties II LLC, each a Delaware limited liability
company, and (vi) any entity which becomes a Borrower under this Agreement
pursuant to Section 5.10 (individually each a "BORROWER" and collectively, the
"BORROWERS").
"BORROWING" means (i) Revolving Loans of the same Type, made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect (a "REVOLVING BORROWING") or (ii) a
Competitive Loan or group of Competitive Loans made on the same date and as to
which a single Interest Period is in effect (a "COMPETITIVE BORROWING").
"BORROWING BASE" means, as of any date, the lesser of (i) $185,000,000,
subject to increase to $225,000,000 pursuant to Section 2.20, and (ii) an amount
equal to the sum of (A) the Lease Value and (B) the Management Value, less (C)
1.33 multiplied by the amount of Total Unsecured Outstanding Indebtedness
(excluding for such purpose only Indebtedness outstanding in respect of Loans)
of the Consolidated Businesses.
"BORROWING BASE CERTIFICATE" means a certificate of the President, a Vice
President or a Financial Officer of the Company, substantially in the form of
EXHIBIT B.
"BORROWING REQUEST" means a request by the Company or the Company on
behalf of any of the Borrowers for a Revolving Borrowing in accordance with
Section 2.3, substantially in the form of EXHIBIT C.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by law to
remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
-42-
"CAPITAL EXPENDITURE RESERVE AMOUNTS" means, for any month for any
Property owned, directly or indirectly, by any of the Consolidated Businesses or
any Joint Venture to which the Consolidated Businesses or any Joint Venture has
a Joint Venture Holding during such month, an amount equal to one-twelfth
(1/12th) of the gross revenues attributable to such Property (exclusive of
management fees) for the twelve month period ended on the last day of the
preceding month, multiplied by 2.5%, after adjustments for Joint Ventures.
"CAPITAL LEASE OBLIGATIONS" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"CAPITAL LEASE" means any lease by a Person of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
the obligations under which are required to be classified and accounted for as
capital leases on a balance sheet of such Person under GAAP.
"CASH AND CASH EQUIVALENTS" means unrestricted (i) cash, (ii) marketable
direct obligations issued or unconditionally guaranteed by the United States
government and backed by the full faith and credit of the United States
government; and (iii) domestic and Eurodollar certificates of deposit and time
deposits, bankers' acceptances and floating rate certificates of deposit issued
by any commercial bank organized under the laws of the United States, any state
thereof, the District of Columbia, any foreign bank, or its branches or agencies
(fully protected against currency fluctuations), which, at the time of
acquisition, are rated A-1 (or better) by S&P or P-1 (or better) by Xxxxx'x
provided that the maturities of such Cash and Cash Equivalents shall not exceed
one year.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C.ss.ss.9601 et seq., any amendments thereto, any
successor statutes and any regulations or guidance promulgated thereunder.
"CHANGE IN CONTROL" means (i) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934, as amended, and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof)
(other than the Company, any of its Subsidiaries, any trustee,
-43-
fiduciary or other person or entity holding securities under any employee
benefit plan of the Company or any of its Subsidiaries and other than any wholly
owned direct or indirect subsidiary of the Company), of shares representing more
than 20% of the aggregate ordinary voting power represented by the issued and
outstanding capital stock of the Company; or (ii) occupation of a majority of
the seats (other than vacant seats) on the board of directors of the Company by
Persons who were neither (A) nominated by the board of directors of the Company
nor (B) appointed by directors so nominated; or (iii) the acquisition of direct
or indirect Control of the Company by any Person or group (other than any wholly
owned direct or indirect subsidiary of the Company).
"CHANGE IN LAW" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or to the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or the Issuing
Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender
or by such Lender's or the Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"CLASS", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Competitive Loans.
"CLOSING DATE" means March 23, 2001.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"COMBINED EQUITY VALUE" means Total Value less Total Outstanding
Indebtedness.
"COMMITMENT" means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans and to acquire participations in Letters of
Credit hereunder, expressed as an amount representing the maximum aggregate
amount of such Lender's Revolving Credit Exposure hereunder, as such commitment
may be (a) increased pursuant to Section 2.20 or (b) reduced from time to time
pursuant to Section 2.9 and (c) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.4. The initial amount
of each Lender's Commitment is set forth on SCHEDULE 2.1, or in the Assignment
and Acceptance pursuant to which such Lender shall have assumed its Commitment,
as applicable. The initial aggregate amount of the Lenders' Commitments is
$185,000,000.
-44-
"COMPANY" means W. P. Xxxxx & Co. LLC, a Delaware limited liability
company (f/k/a Xxxxx Diversified LLC).
"COMPANY INTERESTS" means a limited liability company interest in the
Company.
"COMPETITIVE BID" means an offer by a Lender to make a Competitive Loan in
accordance with Section 2.4.
"COMPETITIVE BID RATE" means, with respect to any Competitive Bid, the
Margin offered by the Lender making such Competitive Bid.
"COMPETITIVE BID REQUEST" means a request by the Company or the Company on
behalf of any of the Borrowers for Competitive Bids in accordance with Section
2.4.
"COMPETITIVE LOAN" means a Loan made pursuant to Section 2.4.
"CONSOLIDATED BUSINESSES" means the Company and its Subsidiaries, on a
consolidated basis (without taking into account any non-wholly owned Person or
entity).
"CONTINGENT OBLIGATION" as to any Person means, without duplication, (i)
any contingent obligation of such Person required to be shown on such Person's
balance sheet in accordance with GAAP, and (ii) any obligation required to be
disclosed in the footnotes to such Person's financial statements in accordance
with GAAP, guaranteeing partially or in whole any non-recourse Indebtedness,
lease, dividend or other obligation, exclusive of contractual indemnities
(including, without limitation, any indemnity or price-adjustment provision
relating to the purchase or sale of securities or other assets) and guarantees
of non-monetary obligations (other than guarantees of completion) which have not
yet been called on or quantified, of such Person or of any other Person. The
amount of any Contingent Obligation described in clause (ii) shall be deemed to
be (a) with respect to a guaranty of interest or interest and principal, or
operating income guaranty, the sum of all payments required to be made
thereunder (which in the case of an operating income guaranty shall be deemed to
be equal to the debt service for the note secured thereby), calculated at the
interest rate applicable to such Indebtedness, through (i) in the case of an
interest or interest and principal guaranty, the stated dated maturity of the
obligation (and commencing on the date interest could first be payable
thereunder), or (ii) in the case of an operating income guaranty, the date
through which such guaranty will remain in effect, and (b) with respect to all
guarantees not covered by the preceding clause (a) an amount equal to the stated
or determinable amount of the primary obligation in respect of which such
-45-
guaranty is made or, if not stated or determinable, the maximum reasonable
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as recorded on the balance sheet and on the footnotes to the
most recent financial statements of the applicable Borrower required to be
delivered pursuant hereto. Notwithstanding anything contained herein to the
contrary, guarantees of completion and of Nonrecourse Carveouts shall not be
deemed to be Contingent Obligations unless and until a claim for payment has
been made thereunder, at which time any such guaranty of completion or of
Nonrecourse Carveouts shall be deemed to be a Contingent Obligation in an amount
equal to any such claim. Subject to the preceding sentence, (i) in the case of a
joint and several guaranty given by such Person and another Person (but only to
the extent such guaranty is recourse, directly or indirectly to the applicable
Person), the amount of the guaranty shall be deemed to be 100% thereof unless
and only to the extent that (X) such other Person has delivered Cash or Cash
Equivalents to secure all or any part of such Person's guaranteed obligations or
(Y) such other Person holds an Investment Grade Credit Rating from either
Xxxxx'x or S&P, and (ii) in the case of a guaranty (whether or not joint and
several) of an obligation otherwise constituting Indebtedness of such Person,
the amount of such guaranty shall be deemed to be only that amount in excess of
the amount of the obligation constituting Indebtedness of such Person.
Notwithstanding anything contained herein to the contrary, "Contingent
Obligations" shall not be deemed to include guarantees of loan commitments or of
construction loans to the extent the same have not been drawn.
"CONTROL" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "controlled" have meanings correlative thereto.
"CREDIT EVENT" has the meaning set forth in Section 4.2.
"DEFAULT" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"DESIGNATED BANK" means a special purpose corporation that (i) shall have
become a party to this Agreement pursuant to Section 9.4(h), and (ii) is not
otherwise a Lender.
"DESIGNATED BANK NOTES" means promissory notes of the Borrowers,
substantially in the form of EXHIBIT D-2 hereto, evidencing the obligation of
the Borrowers to repay Competitive Loans made by Designated Banks, as the same
may be amended, supplemented, modified or restated from time to
-46-
time, and "Designated Bank Note" means any one of such promissory notes issued
under Section 9.4(h).
"DESIGNATING LENDER" shall have the meaning set forth in Section 9.4(h).
"DESIGNATION AGREEMENT" means a designation agreement in substantially the
form of EXHIBIT J attached hereto, entered into by a Lender and a Designated
Bank and accepted by the Administrative Agent.
"DISCLOSED MATTERS" means the actions, suits and proceedings and the
environmental matters disclosed in SCHEDULE 3.6.
"DOLLARS" or "$" refers to lawful money of the United States of America.
"EBITDA" means, for any Person for any period, the Net Income (Loss) of
such Person for such period taken as a single accounting period, plus (a) the
sum of the following amounts of such Person and its subsidiaries for such period
determined on a consolidated basis in conformity with GAAP to the extent
included in the determination of such Net Income (Loss): (i) depreciation
expense, (ii) amortization expense and other non-cash charges, (iii) interest
expense, (iv) income tax expense, (v) extraordinary losses (and other losses on
asset sales not otherwise included in extraordinary losses determined on a
consolidated basis in conformity with GAAP), and (vi) minority interests in
Unconsolidated Entities, less (b) the sum of the following amounts of such
Person and its subsidiaries determined on a consolidated basis in conformity
with GAAP to the extent included in the determination of such Net Income (Loss):
(i) extraordinary gains (and in the case of the Company and its consolidated
subsidiaries, other gains on asset sales not otherwise included in extraordinary
gains determined on a consolidated basis in conformity with GAAP) and (ii) the
applicable share of Net Income (Loss) of such Person's Unconsolidated Entities;
plus (c) the portion allocable to such Person of EBITDA of such Person's
Unconsolidated Entities.
"EFFECTIVE DATE" means the date on which the conditions specified in
Section 4.1 are satisfied (or waived in accordance with Section 9.2).
"ELIGIBLE LEASE" means any Lease that (A) is a Triple Net Lease or (B) is
a Lease (other than a Lease specified in clause (A) above), in each case (i)
under which no payment default has occurred and is continuing; (ii) under which
no material default (other than a payment default) has occurred and is
continuing; and (iii) under which the tenant is not subject to any bankruptcy,
insolvency, reorganization or other similar proceedings.
-47-
"ELIGIBLE JOINT VENTURE HOLDING" means Joint Venture Holdings in Joint
Ventures in which (i) the Company and the Subsidiaries have an ownership
interest of fifty percent (50%) or greater, (ii) the Company and the
Subsidiaries control the management of such Joint Venture, whether as the
general partner or manager of such Joint Venture, or otherwise, (iii) the
Company and the Subsidiaries, as general partner, manager or otherwise, have the
ability, in its or their sole discretion, to grant Liens on the assets of such
Joint Venture, and (iv) there are no restrictions on the ability of such Joint
Venture to declare distributions or dividends, as the case may be. As used in
this definition only, the term "control" shall mean the authority to make major
management decisions in its sole discretion and the management of day-to-day
operations of such entity.
"ELIGIBLE PROJECT" means a Project (i) which is free of all title defects
and material structural defects, as verified by an Officer's Certificate of the
Company in form and substance satisfactory to the Administrative Agent, and (ii)
which is free of Hazardous Materials except as would not materially affect the
value of such Project, as verified by an Officer's Certificate of the Company in
form and substance satisfactory to the Administrative Agent.
"ENCUMBERED ELIGIBLE PROJECT" means an Eligible Project (a) (i) with
respect to which either (A) the Company and/or one or more of the Subsidiaries
collectively have an ownership interest of one hundred percent (100%), or (B)(1)
the Company and/or one or more of the Subsidiaries collectively have an
ownership interest (whether directly or through an interest in a Joint Venture)
of more than fifty percent (50%), and (2) the Company and/or one or more of the
Subsidiaries control the management of such Project and (b) all or a portion of
which is encumbered by a Lien. As used in this definition only, the term
"control" shall mean the authority, with sole discretion, to make major
management decisions with respect to the Project, including with respect to
sale, refinancing, capital improvements, leasing and the grant of Liens on such
Project and to manage the day-to-day operations of such Project.
"ENCUMBERED LEASE VALUE" means, as of any date, the sum of the net present
value of the projected contractual income, net of the projected expenses to be
incurred by the landlord, from all Eligible Leases of Encumbered Eligible
Projects (with appropriate adjustments with respect to minority interests in
Joint Ventures and the Subsidiaries through which such Projects are held to
reflect the actual percentage interest of income entitled to be received where
the collective ownership interests are less than 100%), discounted at an annual
rate of 10.5%. In determining Encumbered Lease Value, income from lease
extensions under any Lease will be included only if the extension right with
respect to such Lease has been unconditionally and
-48-
irrevocably exercised by the tenant (or the tenant has lost its rights to
terminate the lease prior to the automatic extension thereof). Encumbered Lease
Value shall not include any amount in respect of an Encumbered Eligible Project
unless the Indebtedness in respect of such Encumbered Eligible Project is less
than or equal to 35% of the Encumbered Lease Value for such Encumbered Eligible
Project. In determining the amount of projected contractual income, net of
projected expenses to be incurred by a landlord from any Eligible Lease, all
amounts attributable to adjustments in rental obligations of a tenant that are
contingent (for example, rental increases based upon a specified occupancy rate)
or otherwise indeterminate (for example, rental increases based upon index
adjustments), shall be excluded.
"ENVIRONMENTAL LAWS" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Company or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA EVENT" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or
-49-
not waived; (c) the filing pursuant to Section 412(d) of the Code or Section
303(d) of ERISA of an application for a waiver of the minimum funding standard
with respect to any Plan; (d) the incurrence by the Company or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Company or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Company or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Company or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Company or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"EURODOLLAR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate (or, in the case of
a Competitive Loan, the Adjusted LIBO Rate).
"EVENT OF DEFAULT" has the meaning set forth in Article VII.
"EXCLUDED TAXES" means, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of any Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which such Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by such
Borrower under Section 2.19(b)), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender's failure to comply with Section 2.17(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from such Borrower with respect to such withholding tax
pursuant to Section 2.17(a).
"FACILITY FEE RATE" means the applicable rate per annum set forth below
under the caption "Facility Fee Rate" based upon the ratings by
-50-
Xxxxx'x and S&P, respectively, applicable on such date to the Company or the
"Index Debt":
Index Debt Ratings Facility Fee
------------------ ------------
(S&P/Xxxxx'x): Rate
-------------- ----
Category 1
A-/A3 or better 0.15%
Category 2
BBB+ / Baa1 0.15%
Category 3
BBB / Baa2 0.175%
Category 4
BBB- / Baa3 0.20%
Category 0
Xxxxx xxxx XXX- / Xxx0 0.25%
For purposes of the foregoing, (A) if the ratings established or deemed to have
been established by Xxxxx'x and S&P for the Company or the Index Debt shall fall
within different Categories, the Facility Fee Rate shall be based on the higher
of the two ratings unless one of the two ratings is two or more Categories lower
than the other, in which case the Facility Fee Rate shall be determined by
reference to the Category next below that of the higher of the two ratings, and
(B) if the ratings established or deemed to have been established by Xxxxx `s
and S&P for the Company or the Index Debt shall be changed (other than as a
result of a change in the rating system of Xxxxx `s or S&P), such change shall
be effective as of the date on which it is first announced by the applicable
rating agency. Each change in the Facility Fee Rate shall apply during the
period commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If the rating
system of Xxxxx'x or S&P shall change, or if either such rating agency shall
cease to be in the business of rating companies or corporate debt obligations,
the Company and the Lenders shall negotiate in good faith to amend this
definition to reflect such changed rating system or the unavailability of
ratings from such rating agency and, pending the effectiveness of any such
amendment, the Facility Fee Rate shall be determined by reference to the rating
most recently in effect prior to such change or cessation.
-51-
"FAIR MARKET VALUE" means, with respect to any asset or property, the sale
value that would be obtained in an arm's-length transaction between an informed
and willing seller under no compulsion to sell and an informed and willing buyer
under no compulsion to buy. Fair Market Value shall be determined by an officer
of the Company acting in good faith and shall be evidenced by an Officer's
Certificate, except in the case of the determination of Fair Market Value of
Permitted REIT Investments which are "restricted securities" as defined in the
definition of REIT Investment Value having a Fair Market Value in excess of
$5,000,000, in which case the determination of such Fair Market Value shall be,
at the election of the Company, by (i) the board of directors of the Company
acting in good faith and shall be evidenced by a resolution of the board of
directors, or (ii) an appraisal of an independent third-party appraiser which
shall be a Person regularly engaged in the valuation of securities of the same
type as such Permitted REIT Investment. The Fair Market Value of any readily
marketable securities shall be the number of such securities multiplied by the
average Market Price per share or per unit of such securities during the five
consecutive trading days immediately preceding the date of determination. The
"Market Price" of any security on any trading day shall mean, with respect to
any security which is listed on a national securities exchange, the last sale
price regular way, or, in case no such sale takes place on such day, the average
of the closing bid and asked prices regular way, in either case on the New York
Stock Exchange, or, if such security is not listed or admitted to trading on
such exchange, on the principal national securities exchange on which such
security is listed or admitted to trading, or, if such security is not listed or
admitted to trading on any national securities exchange but is designated as a
national market system security by the National Association of Securities
Dealers, the last sale price, or, in case no such sale takes place on such day,
the average of the closing bid and asked prices, in either case as reported on
the National Association of Securities Dealers Automated Quotation/National
Market System, or if such security is not so designated as a national market
systems security, the average of the highest reported bid and lowest reported
asked prices as furnished by the National Association of Securities Dealers or
similar organization if the National Association of Securities Dealers is no
longer reporting such information. With respect to operating partnership units
of any REIT, such operating partnership units shall in no event have a value
greater than the value of the number of shares of the REIT into which such
operating partnership units are then convertible.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if
-52-
such rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"FINANCIAL OFFICER" means the chief financial officer, principal
accounting officer, treasurer or controller of the Company.
"FINANCIAL STATEMENTS" means financial statements presenting the
consolidated and consolidating financial position of the Company and its
Subsidiaries as at the date indicated and the results of their operations and
cash flow for the period indicated in accordance with GAAP, subject to normal
adjustments.
"FIXED CHARGES" means, with respect to any period, the sum of (a) Total
Interest Expense for such period and (b) the aggregate of all scheduled
principal payments on Total Outstanding Indebtedness according to GAAP made or
required to be made during such period by the Company and its Subsidiaries (with
appropriate adjustments for minority interests) or allocable to the Company and
its Subsidiaries on account of Joint Venture Holdings (but excluding balloon
payments of principal due upon the stated maturity of any Indebtedness), and (c)
the aggregate of all dividends payable on the Company's or any of its
consolidated Subsidiaries' preferred equity interests (if any).
"FOREIGN LENDER" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles in the United States
of America.
"GOVERNMENTAL AUTHORITY" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"GUARANTEE" of or by any Person (the "GUARANTOR") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "PRIMARY OBLIGOR") in any manner, whether directly
-53-
or indirectly, and including any obligation of the guarantor, direct or
indirect, (a) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation or to purchase (or to advance
or supply funds for the purchase of) any security for the payment thereof, (b)
to purchase or lease property, securities or services for the purpose of
assuring the owner of such Indebtedness or other obligation of the payment
thereof, (c) to maintain working capital, equity capital or any other financial
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or other obligation or (d) as an
account party or applicant in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness or obligation; provided, that the
term Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"HEDGING AGREEMENT" means any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or other
interest or currency exchange rate or commodity price hedging arrangement.
"IMPROVEMENTS" means all buildings, fixtures, structures, parking areas,
landscaping and other improvements whether existing now or hereafter
constructed, together with all machinery and mechanical, electrical, HVAC and
plumbing systems presently located thereon and used to the operation thereof,
excluding (a) any such items owned by utility service providers, (b) any such
items owned by tenants or other third parties unaffiliated with the Company and
(c) any items of personal property.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid (excluding current Taxes, water
and sewer charges and assessments and current trade liabilities incurred in the
ordinary course of business in accordance with customary terms), (d) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person (other than current
trade liabilities incurred in the ordinary course of business in
-54-
accordance with customary terms), (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others and other Contingent Obligations, (h) all Capital Lease
Obligations of such Person, (i) all obligations, contingent or otherwise, of
such Person as an account party or applicant in respect of letters of credit and
letters of guaranty, (j) all obligations, contingent or otherwise, of such
Person in respect of bankers' acceptances, (k) all obligations of such Person to
purchase or redeem any shares of equity securities issued by such Person, (l)
all obligations of such Person in respect of any forward contract, futures
contract, swap or other agreement, the value of which is dependent upon interest
rates or currency exchange rates, and (m) all obligations of such Person in
respect of any so-called "synthetic lease" (i.e., a lease of property which is
treated as an operating lease under GAAP and as a loan for U.S. income tax
purposes). The Indebtedness of any Person shall include the Indebtedness of any
other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INDEX DEBT" means senior, unsecured, long-term indebtedness for borrowed
money of the Company that is not guaranteed by any other Person or subject to
any other credit enhancement.
"INTEREST ELECTION REQUEST" means a request by the Company to convert or
continue a Revolving Borrowing in accordance with Section 2.8.
"INTEREST PAYMENT DATE" means (a) with respect to any ABR Loan, the last
Business Day of each March, June, September and December and (b) with respect to
any Eurodollar Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months' duration, each day
prior to the last Business Day of such Interest Period that occurs at intervals
of three months' duration after the first day of such Interest Period.
"INTEREST PERIOD" means with respect to any Eurodollar Borrowing the
period commencing on the date of such Borrowing and ending on the
-55-
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Company may elect; provided, that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day, (ii) any
Interest Period that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period, (iii) the Interest Period for
Eurodollar Revolving Borrowings may be shorter than one (1) month in order to
consolidate two (2) or more Eurodollar Revolving Borrowings and (iv) the
Interest Period for all Eurodollar Revolving Borrowings shall be one (1) month
until the earlier of ninety (90) days after the Closing Date or the date on
which the Lead Arranger completes the syndication of the total Commitments, as
evidenced by written notice from the Lead Arranger to the Company as to such
completion). For purposes hereof, the date of a Borrowing initially shall be the
date on which such Borrowing is made and, in the case of a Revolving Borrowing,
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"INVESTMENT GRADE CREDIT RATING" means a rating of BBB- or higher by S&P)
or Baa3 or higher by Xxxxx'x.
"ISSUING BANK" means The Chase Manhattan Bank, in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.6(i). The Issuing Bank may, in its discretion, arrange for
one or more Letters of Credit to be issued by Affiliates of the Issuing Bank, in
which case the term "Issuing Bank" shall include any such Affiliate with respect
to Letters of Credit issued by such Affiliate.
"JOINT VENTURE" means a partnership, limited liability company, joint
venture (including a tenancy-in-common ownership pursuant to a written agreement
providing for substantially the same rights and obligations relating to such
property that would be in a joint venture agreement), or corporation.
"JOINT VENTURE HOLDING" means an interest in a Joint Venture held or owned
by the Company (or one of its Subsidiaries) which is not wholly owned by the
Company (or one of its Subsidiaries).
"LC DISBURSEMENT" means a payment made by the Issuing Bank pursuant to a
Letter of Credit.
-56-
"LC EXPOSURE" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Company at such time. The LC Exposure of any Lender at any time shall be
its Applicable Percentage of the total LC Exposure at such time.
"LEASE" means a lease, license, concession agreement or other agreement
providing for the use or occupancy of any portion of any Project, including all
amendments, supplements, modifications and assignments thereof and all side
letters or side agreements relating thereto.
"LEASE VALUE" means, as of any date, the sum of (i) 75% of Unencumbered
Lease Value; (ii) the excess, if any, of (A) 75% of Encumbered Lease Value over
(B) the amount of all Indebtedness in respect of Properties for which the
corresponding Eligible Lease was included in the calculation of Encumbered Lease
Value; and (iii) 50% of Residual Proceeds.
Solely for purposes of calculating Lease Value, not more than 15% of Lease
Value may consist of the sum of (x) amounts calculated pursuant to clause (ii)
above; (y) the sum of (1) Encumbered Lease Value attributable to Projects that
are not 100% owned by the Consolidated Businesses (but only to the extent that
the value of such Project is included in clause (ii) above) and (2) Unencumbered
Lease Value attributable to Projects that are not 100% owned by the Consolidated
Businesses (but only to the extent that the value of such Project is included in
clause (i) above) and (z) the amount derived under clause (iii) above.
Solely for purposes of calculating Lease Value, not more than 10% of Lease
Value may consist of Lease Value attributable to Eligible Leases other than
Triple Net Leases.
"LENDER AFFILIATE" means, (a) with respect to any Lender, (i) an Affiliate
of such Lender or (ii) any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise investing
in bank loans and similar extensions of credit in the ordinary course of its
business and is administered or managed by a Lender or an Affiliate of such
Lender and (b) with respect to any Lender that is a fund which invests in bank
loans and similar extensions of credit, any other fund that invests in bank
loans and similar extensions of credit and is managed by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.
-57-
"LENDERS" means (a) the Persons listed on SCHEDULE 2.1 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance and (b) the Designated Banks; provided, however,
that the term "Lender" shall exclude each Designated Bank when used in reference
to a Revolving Loan, the Commitments or terms relating to the Revolving Loans
and the Commitments and shall further exclude each Designated Bank for all other
purposes hereunder except that any Designated Bank which funds a Competitive
Loan shall, subject to Section 9.4(h), have the rights (including, without
limitation, the rights given to a Lender contained in Article IX) and
obligations of a Lender associated with holding such Competitive Loan.
"LETTER OF CREDIT" means any letter of credit issued pursuant to this
Agreement.
"LEVERAGED ASSETS" means Eligible Projects designated by the Company in an
Officer's Certificate delivered to the Administrative Agent (i) each of which is
subject only to Non-Recourse Indebtedness; (ii) each of which is subject to an
Eligible Lease; and (iii) the tenants of which have a weighted average Moody's
or S&P long-term unsecured indebtedness rating of not less than Baa1 or BBB+,
respectively. Eligible Projects designated by the Company as Leveraged Assets
shall remain Leveraged Assets for the term of this Agreement.
"LEVERAGE RATIO" as of any date means the ratio, expressed as a
percentage, of the Total Outstanding Indebtedness as of such date to the Total
Value as of such date.
"LIBO RATE" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate (rounded
upwards, if necessary, to the next 1/16 of 1%) at which dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of the entity which is the
-58-
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"LIEN" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset (excluding, in the case of assets consisting of Real Property
owned by the Company, its Subsidiaries or a Joint Venture, the lien of a
mortgage or deed of trust on the Real Property interest not owned by the
Company, its Subsidiaries or the Joint Venture; provided, that the ownership or
estate interest of the Company in such Real Property is not subordinate to such
a lien and the Company's interest would not be adversely affected by such lien
either through foreclosure thereof or otherwise (e.g., a mortgage on the
leasehold interest of a Project owned in fee by a Subsidiary does not constitute
a Lien)), (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"LISTED SHARES" means a limited liability interest in the Company
representing a share of all the income, loss and capital of the Company.
"LOANS" means the loans made by the Lenders to the Borrowers pursuant to
this Agreement.
"LOAN DOCUMENTS" means this Agreement, the Notes and all other
instruments, agreements and written obligations between the Borrowers and any of
the Lenders pursuant to or in connection with the transactions contemplated
hereby.
"MANAGEMENT CONTRACT" means a management contract or advisory agreement
under which the Company or one of its Subsidiaries provides management and
advisory services to a third party, consisting of management of properties or
provision of advisory services on property acquisition and dispositions, equity
and debt placements and related transactional matters.
"MANAGEMENT VALUE" means, as of any date, the product of 125% of the
lesser of (a) EBITDA of the Company and its Subsidiaries generated from
Management Contracts during the immediately preceding four fiscal quarters or
(b) the product of 2 times EBITDA of the Company and its Subsidiaries generated
from Management Contracts during the immediately preceding two fiscal quarters.
-59-
"MARGIN" means, with respect to any Competitive Loan, the marginal rate of
interest, if any, to be added to or subtracted from the Adjusted LIBO Rate to
determine the rate of interest applicable to such Loan, as specified by the
Lender making such Loan in its related Competitive Bid.
"MARGIN STOCK" means "margin stock" or "margin securities" as such terms
are defined in Regulation U and Regulation X of the Federal Reserve Board as in
effect from time to time.
"MARKETABLE SECURITIES" means short-term marketable securities, issued by
any entity (other than an Affiliate of the Company) organized and existing under
the laws of the United States of America, with a long-term unsecured
indebtedness rating, at the time as of which any investment therein is made,
with Moody's or S&P of Baa2/BBB or better, respectively.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or otherwise, of
the Company and the Subsidiaries taken as a whole, (b) the ability of the
Company to perform any of its material obligations under the Loan Documents or
(c) the rights of or benefits available to the Lenders under the Loan Documents
"MATERIAL INDEBTEDNESS" means Indebtedness (other than the Loans, Letters
of Credit and Nonrecourse Indebtedness), or obligations in respect of one or
more Hedging Agreements, of any one or more of the Company and its Subsidiaries
in an aggregate principal amount exceeding $10,000,000. For purposes of
determining Material Indebtedness, the "principal amount" of the obligations of
the Company or any Subsidiary in respect of any Hedging Agreement at any time
shall be the maximum aggregate amount (giving effect to any netting agreements)
that the Company or such Subsidiary would be required to pay if such Hedging
Agreement were terminated at such time.
"MATURITY DATE" means March 23, 2004.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MORTGAGE ASSET" means Indebtedness owed to the Company or a Subsidiary of
the Company and secured by a mortgage or deed of trust on a fee interest or a
leasehold interest in Real Property and all collateral security related thereto.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
-60-
"NET CASH PROCEEDS" means all cash when and as received by the seller or
owner in connection with the sale or refinancing of any asset, less reasonable
costs and expenses of the seller or owner, repayment of secured indebtedness
with respect to the applicable asset and real estate transfer taxes payable by
the seller or owner in connection with any asset sale.
"NET INCOME (LOSS)" means, for any Person for any period, the aggregate of
net income (or loss) of such Person and its subsidiaries for such period,
determined on a consolidated basis in conformity with GAAP.
"NET OFFERING PROCEEDS" means all cash or other assets received by the
Company as a result of the sale of common shares, preferred shares, partnership
interests, limited liability company interests, convertible securities or other
ownership or equity interests in the Company, less customary costs and discounts
of issuance paid by the Company.
"NOI" means, with respect to any Project or Joint Venture Holding for any
period, net operating income for such Project or Joint Venture Holding for such
period determined in accordance with GAAP, excluding interest, depreciation,
amortization and income taxes and adjusted, (i) to exclude accrued rent with
respect to tenants that are more than 90 days in arrears in the payment of rent,
and (ii) to exclude free rent and omit the straight line treatment of rent, so
as to account for rent on a cash basis.
"NONRECOURSE CARVEOUTS" means the personal liability of an obligor under
Indebtedness for fraud, misrepresentation, misapplication or misappropriation of
cash, waste, environmental liability, bankruptcy filing or any other
circumstances customarily excluded from non-recourse provisions and non-recourse
financing of real estate.
"NONRECOURSE INDEBTEDNESS" of any Person means all Indebtedness of such
Person with respect to which recourse for payment is limited to specific assets
encumbered by a Lien securing such Indebtedness; provided, however, that
personal recourse of a holder of Indebtedness against any obligor with respect
thereto for fraud, misrepresentation, misapplication or misappropriation of
cash, waste, environmental liabilities, and other circumstances customarily
excluded from nonrecourse provisions in nonrecourse financing of real estate
shall not, by itself, prevent any Indebtedness from being characterized as
Nonrecourse Indebtedness; provided, further, that if in connection therewith a
personal recourse claim is established by judgment decree or award by any court
of competent jurisdiction or arbitrator of competent jurisdiction and execution
or enforcement thereof shall not be effectively stayed for 30 consecutive days
and such Indebtedness shall not be paid or otherwise satisfied within such
-61-
30-day period, then such Indebtedness in an amount equal to the personal
recourse claim established by judgment or award shall not constitute Nonrecourse
Indebtedness for purposes of this Agreement.
"NOTE" means (a) a promissory note in the form attached hereto as EXHIBIT
D-1 payable to a Lender, evidencing certain of the Obligations of the Borrowers
to such Lender and executed by the Borrowers as set forth in Section 2.10, as
the same may be amended, supplemented, modified or restated from time to time or
(b) a Designated Bank Note, as the context may require. "Notes" means,
collectively, all of such Notes outstanding at any given time.
"OBLIGATIONS" means, collectively, the obligations of the Borrowers in
respect of principal, interest, fees, indemnities, and all other amounts under
or in connection with this Agreement or any of the other Loan Documents,
including reimbursement obligations in respect of Letters of Credit, in each
case whether such obligation arose before or after the commencement of any
bankruptcy, insolvency, receivership or other similar proceeding and whether or
not the obligation is undersecured or oversecured or deemed allowable, provable
or accruing against any Borrower in any such proceeding, including interest
calculated from the commencement of any such proceeding at the rate provided in
Section 2.13(c).
"OFFICER'S CERTIFICATE" means a certificate signed by the President, any
Vice President or any Financial Officer of any Person, or such other officer as
may be specified herein, and delivered to the Administrative Agent hereunder.
"OPERATING LEASE" means, as applied to any Person, any Lease which is not
a Capital Lease.
"OTHER TAXES" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"PERMITTED ENCUMBRANCES" means:
(a) liens imposed by law for taxes, assessments, governmental
charges or levies that are not yet due or are being contested in
compliance with Section 5.4;
-62-
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more
than 30 days or are being contested in compliance with Section 5.4,
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations or to secure the performance of bids,
purchases, contracts (other than for the payment of borrowed money) and
surety, appeal and performance bonds;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary
course of business;
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Company or any Subsidiary;
and
(f) statutory and common law landlord liens;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"PERMITTED INVESTMENTS" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in
each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from
the date of acquisition thereof and having, at such date of acquisition, a
rating of not less than A-2 or P-2 from S&P or from Moody's, respectively;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date
-63-
of acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of any
commercial bank organized under the laws of the United States of America
or any State thereof which has a combined capital and surplus and
undivided profits of not less than $500,000,000;
(d) shares of so called "money market funds" registered with the SEC
under the Investment Company Act of 1940, as amended, which maintain a
level per share value, invest principally in marketable direct or
guaranteed obligations of the United States of America and agencies and
instrumentalities thereof and investments in commercial paper having, at
such date, a rating of not less than A-1 or P-1 from S&P or from Moody's,
respectively, and have total assets in excess of $50,000,000 provided that
any such shares are moved to a qualifying money market fund within thirty
(30) days after any Borrower, or any Subsidiary has knowledge that any
money market fund no longer has total assets in excess of that amount; and
(e) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and entered
into with a financial institution satisfying the criteria described in
clause (c) above.
"PERMITTED REIT INVESTMENTS" means investments by the Company or any
Subsidiary in publicly traded warrants, publicly traded equity securities and
operating partnership units of publicly traded REITS. For purposes hereof,
"publicly traded" shall mean that such investments are traded on a
nationally-recognized market with widely distributed standard price quotations.
"PERSON" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"PLAN" means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which the Company or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"PRIME RATE" means the rate of interest per annum publicly announced from
time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the
-64-
Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.
"PROJECT" means any office, industrial/manufacturing facility, educational
facility, retail facility, distribution/warehouse facility, assembly or
production facility, hotel, day care center, storage facility, health
care/hospital facility, restaurant, radio or TV station,
broadcasting/communication facility (including any transmission facility), any
combination of any of the foregoing, or any land to be developed into any one or
more of the foregoing pursuant to a written agreement with respect to such land
for a transaction involving a Lease, owned, directly or indirectly, by any of
the Consolidated Businesses.
"PROPERTY" means any Real Property or personal property, plant, building,
facility, structure, equipment, general intangible, receivable, or other asset
owned or leased by any Consolidated Business or any Joint Venture in which the
Company, directly or indirectly, has a Joint Venture Holding.
"REAL PROPERTY" means any present and future right, title and interest
(including, without limitation, any leasehold estate) in (i) any plots, pieces
or parcels of land, (ii) any Improvements of every nature whatsoever (the rights
and interests described in clauses (i) and (ii) above being the "PREMISES"),
(iii) all easements, rights of way, gores of land or any lands occupied by
streets, ways, alleys, passages, sewer rights, water courses, water rights and
powers, and public places adjoining such land, and any other interests in
property constituting appurtenances to the Premises, or which hereafter shall in
any way belong, relate or be appurtenant thereto, (iv) all hereditaments, gas,
oil, minerals (with the right to extract, sever and remove such gas, oil and
minerals), and easements, of every nature whatsoever, located in, on or
benefiting the Premises and (v) all other rights and privileges thereunto
belonging or appertaining and all extensions, additions, improvements,
betterments, renewals, substitutions and replacements to or of any of the rights
and interests described in clauses (iii) and (iv) above.
"REGISTER" has the meaning set forth in Section 9.4.
"REIT" means a domestic trust or corporation that qualifies as a real
estate investment trust under the provisions of Sections 856, et seq. of the
Code.
"REIT INVESTMENT VALUE" means, as of any date, the sum of (i) 80% of the
Fair Market Value as of the date of determination of Permitted REIT Investments
consisting of warrants, REIT shares and operating partnership
-65-
units that are unrestricted securities, plus (ii) 65% of the Fair Market Value
as of the date of determination of Permitted REIT Investments consisting of
warrants, REIT shares and operating partnership units that are restricted
securities; provided, that the Fair Market Value of Permitted REIT Investments
in excess of 15% of the outstanding equity securities of any REIT and its
related operating Partnership shall be excluded in determining REIT Investment
Value. For purposes of this definition and the definition of Fair Market Value,
the term "restricted securities" shall mean securities which constitute
"restricted securities" or are held by an "affiliate" of the issuer of such
securities, in each case in accordance with Rule 144 promulgated under the
Securities Act of 1933, as amended, or are otherwise subject to any agreement,
arrangement or other understanding in any way limiting or affecting the right of
the holder of such securities to dispose of such securities. For purposes of
this definition, the term "unrestricted securities" shall mean securities which
are not "restricted securities."
"RELATED PARTIES" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"REQUIRED LENDERS" means, at any time, Lenders having Revolving Credit
Exposures and Unused Commitments representing at least 51% of the sum of the
total Revolving Credit Exposures and Unused Commitments at such time; provided
that, for purposes of declaring the Loans to be due and payable pursuant to
Article VII, and for all purposes after the Loans become due and payable
pursuant to Article VII or the Commitments expire or terminate, the outstanding
Competitive Loans of the Lenders shall be included in their respective Revolving
Credit Exposures in determining the Required Lenders; and provided further,
that, in the event any of the Lenders shall have failed to fund its Applicable
Percentage of any Borrowing requested by the Borrowers which such Lender is
obligated to fund under the terms of this Agreement and any such failure has not
been cured as provided in Section 2.7, then for so long as such failure
continues, "Required Lenders" means Lenders (excluding all Lenders whose failure
to fund their respective Applicable Percentages of such Borrowings have not been
so cured) having Revolving Credit Exposures and Unused Commitments representing
at least 51% of the sum of the total Revolving Credit Exposures and Unused
Commitments of such Lenders at such time.
"RESIDUAL PROCEEDS" means, as of any date, the sum of the projected Net
Cash Proceeds of the Company and the Subsidiaries (with appropriate adjustments
to account for minority interests in respect of (i) a Project, (ii) the
Subsidiary through which such Project is held and (iii) any Joint Venture
Holding) to be derived from (x) the exercise of a purchase option by a tenant
-66-
under a Lease which option has been irrevocably and unconditionally exercised,
the purchase price has been determined (by appraisal or otherwise), the tenant
has no right to elect not to close and the closing of which is required to occur
within twelve months of the date of determination or (y) an agreement of sale
entered into with a tenant where the purchase price has been determined, the
tenant has no right to terminate the agreement, there are no conditions to
closing thereunder other than delivery of title and the closing will occur
within twelve months of the date of determination; provided that Net Cash
Proceeds from the exercise of any purchase option shall be included in the
determination of Residual Proceeds only if the actual price of such option has
been determined and the creditworthiness of the tenant exercising such purchase
option shall be satisfactory to the Administrative Agent in its sole discretion;
provided further, that any tenant shall be deemed creditworthy by the
Administrative Agent for purposes of this definition if such tenant has been a
tenant under a Lease of the Property subject to such option or agreement of sale
for at least 3 years, has been timely in its payment of rent and fulfillment of
all other obligations under such Lease for the 12 month period immediately
preceding the date of determination and is not the subject of any pending
bankruptcy, insolvency or other similar proceeding.
"RESTRICTED PAYMENT" is defined in Section 6.1.
"REVOLVING CREDIT EXPOSURE" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Revolving Loans and
its LC Exposure at such time.
"REVOLVING LOAN" means a Loan made pursuant to Sections 2.2 and 2.3.
"S&P" means Standard & Poor's Ratings Group, a division of The XxXxxx-Xxxx
Companies, Inc..
"SECURED INDEBTEDNESS" means any Indebtedness secured by a Lien (excluding
Indebtedness hereunder).
"SOLVENT", when used with respect to any Person, means that at the time of
determination:
(i) the fair saleable value of its assets is in excess of the total
amount of its liabilities (including, without limitation, contingent
liabilities); and
-67-
(ii) the present fair saleable value of its assets is greater than
its probable liability on its existing debts as such debts become absolute
and matured; and
(iii) it is then able and expects to be able to pay its debts
(including, without limitation, contingent debts and other commitments) as
they mature; and
(iv) it has capital sufficient to carry on its business as conducted
and as proposed to be conducted.
"STATUTORY RESERVE RATE" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred
to as "Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"SUBSIDIARY" means, with respect to any Person (the "PARENT") at any date,
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent's consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50%
of the equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent.
"SUBSIDIARY" means any direct or indirect subsidiary of the Company.
"SUBSIDIARY PARTNERSHIPS" means each of Corporate Property Associates,
Corporate Property Associates 4, a California limited partnership,
-68-
Corporate Property Associates 6-a California limited partnership, and Corporate
Property Associates 9, L.P., and the other Borrowers that are Subsidiaries and
any of them a "SUBSIDIARY PARTNERSHIP".
"TAXES" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TENANT ALLOWANCE" means a cash allowance paid to a tenant by the landlord
pursuant to a Lease.
"TI WORK" means any construction or other "build-out" of tenant leasehold
improvements to the space demised to such tenant under Leases (excluding such
tenant's furniture, fixtures and equipment) performed pursuant to the terms of
such Leases, whether or not such tenant improvement work is performed by or on
behalf of the landlord or as part of a Tenant Allowance.
"TOTAL ADJUSTED EBITDA" means, for any period, the aggregate sum of the
Adjusted EBITDA for the Company and its Subsidiaries for such period, determined
on a consolidated basis in accordance with GAAP.
"TOTAL INTEREST EXPENSE" means, for any period, the sum, without
duplication, of (i) interest expense of the Company and its Subsidiaries paid
during such period (with appropriate adjustments for minority interests) and
(ii) interest expense of the Company and its Subsidiaries accrued and/or
capitalized for such period (with appropriate adjustments for minority
interests) and (iii) the portion of the interest expense of Joint Ventures
allocable to the Company in accordance with GAAP on account of ownership of
Joint Venture Holdings and paid during such period and (iv) the portion of the
interest expense of Joint Ventures allocable to the Company in accordance with
GAAP on account of ownership of Joint Venture Holdings and accrued and
capitalized for such period, in each case including participating interest
expense but excluding extraordinary interest expense, and net of amortization of
deferred costs associated with new financings or refinancings of existing
Indebtedness.
"TOTAL OUTSTANDING INDEBTEDNESS" means, as of any date, the sum, without
duplication, of (i) the amount of Indebtedness of the Company and its
Subsidiaries set forth on the then most recent quarterly financial statements of
the Company, prepared in accordance with GAAP, plus any additional Indebtedness
incurred by the Company and its Subsidiaries since the time of such statements
(with appropriate adjustments for minority interests) and (ii) the outstanding
amount of Joint Venture Indebtedness allocable in accordance with GAAP on
account of ownership of Joint Venture Holdings to
-69-
any of the Company and its Subsidiaries as of the time of determination (with
appropriate adjustments for minority interests) and (iii) the Contingent
Obligations of the Company and its Subsidiaries and, to the extent allocable to
the Company and its Subsidiaries in accordance with GAAP on account of ownership
of Joint Venture Holdings, of the Joint Ventures (with appropriate adjustments
for minority interests).
"TOTAL SECURED OUTSTANDING INDEBTEDNESS" means, as of any date, the
portion of Total Outstanding Indebtedness that is Secured Indebtedness.
"TOTAL UNSECURED OUTSTANDING INDEBTEDNESS" means, as of any date, the
portion of Total Outstanding Indebtedness that is Unsecured Indebtedness.
"TOTAL VALUE" means, as of any date, the sum, without duplication, of (i)
Valuation NOI as of the first day of the fiscal quarter in which such date
occurs divided by .10; (ii) the investment (at cost without depreciation) in
Projects owned by the Company and its Subsidiaries for less than four fiscal
quarters (with appropriate adjustments for minority interests); (iii) the
investment (at cost without depreciation) in Joint Venture Holdings for less
than four fiscal quarters allocable to the Company and its Subsidiaries; (iv)
unrestricted Cash and Cash Equivalents which would be included on the
Consolidated Businesses' consolidated balance sheet as of such date (with
appropriate adjustments for minority interests); (v) investments in notes
secured by mortgages on the Real Property of any Person, at cost, less an amount
equal to accrued amortization payments in respect thereof, which amount under
this clause (v) shall be limited to 15% of Total Value; (vi) the REIT Investment
Value, which amount under this clause (vi) shall be limited to a maximum of
$50,000,000; (vii) the Fair Market Value of all Permitted Investments and
Marketable Securities held by the Company and its Subsidiaries; and (viii) the
product of 5 times the lesser of (a) EBITDA of the Company and its Subsidiaries
generated from Management Contracts during the previous four fiscal quarters or
(b) the product of 2 times EBITDA of the Company and its Subsidiaries generated
from Management Contracts during the previous two fiscal quarters, which amount
under this clause (viii) shall be limited to 15% of Total Value. Notwithstanding
the foregoing, (x) the aggregate investments by the Company and its consolidated
Subsidiaries in Properties which are not office or industrial/manufacturing,
retail or distribution/warehouse in nature shall not exceed (solely for purposes
of this definition) five percent (5%) of Total Value and (y) the aggregate
investments by the Company and its consolidated Subsidiaries in Properties which
are located outside the United States shall not exceed (solely for purposes of
this definition) ten percent (10%) of Total Value.
-70-
"TRANSACTIONS" means the execution, delivery and performance by the
Borrowers of this Agreement, the borrowing of Loans, the use of the proceeds
thereof, the issuance of Letters of Credit hereunder and the execution, delivery
and performance by the Borrowers or the Subsidiaries (who may be parties to the
Loan Documents) of the other Loan Documents, and the transactions contemplated
by the Loan Documents.
"TRIPLE NET LEASE" means a Lease representing all or substantially all of
the rentable area of a Property where the tenant is responsible for real estate
taxes and assessments, repairs and maintenance, insurance and other expenses
relating to such Property, provided, that adequate insurance is maintained for
such Property either by the tenant, the Company, a Subsidiary or a Joint
Venture. Notwithstanding the foregoing, a Triple Net Lease may be subject to the
landlord's express contractual obligations with respect to the payment of taxes,
assessments, ground rents, utility charges, exterior maintenance and maintenance
of all non-interior areas and any capital expenditures related thereto (such as
roof, structure and parking) (the "CONTRACTUAL OBLIGATIONS") so long as the
capital expenditures have been adequately accounted for in accordance with GAAP;
provided, that the projected average annual Contractual Obligations shall not
exceed 10% of the projected average gross annual rent under such Lease. For
purposes of this definition, (a) the obligation of a landlord to make capital
improvements or repairs as a condition to a tenant's occupancy (e.g., build to
suit transactions) shall not be deemed to be an undertaking by such landlord of
any tenant maintenance or repair obligations and (b) the improvements to be
constructed by such landlord described in the immediately preceding clause (a)
shall not be included as a capital expenditure.
"TYPE", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBO Rate, the Alternate Base Rate or,
in the case of a Competitive Loan or Borrowing, the Adjusted LIBO Rate.
"UNCONSOLIDATED ENTITY" means, with respect to any Person, at any date,
any other Person in whom such Person holds an investment, which investment is
accounted for in the financial statements of such Person on an equity basis of
accounting and whose financial results would not be consolidated under GAAP with
the financial results of such Person on the consolidated financial statements of
such Person if such statements were prepared as of such date.
"UNENCUMBERED ELIGIBLE PROJECT" means an Eligible Project (a) which is
located in the United States, (b) with respect to which either (i) one
-71-
or more of the Borrowers collectively have an ownership interest of one hundred
percent (100%), or (ii)(A) one or more of the Borrowers collectively have an
ownership interest (whether directly or through an interest in a Joint Venture)
of more than fifty percent (50%), (B) one or more Affiliates of the Borrowers
collectively have all of the remaining ownership interests (whether directly or
through an interest in a Joint Venture) not owned by the Borrowers and (C) one
or more of the Borrowers collectively control the management of such Project,
and (c) which is not subject (nor are any equity interests therein owned by the
Borrowers and their Subsidiaries subject) to any Liens or preferred equity
interests, except for Permitted Encumbrances and buy-sell rights with respect to
Joint Ventures on customary terms and conditions. As used in this definition
only, the term "control" shall mean the authority, with sole discretion, to make
major management decisions with respect to the applicable Project, including
with respect to sale, financing, refinancing, capital improvements, leasing and
the grant of Liens on such Project and to manage the day-to-day operations of
such Project.
"UNENCUMBERED LEASE VALUE" means, as of any date, the sum of the net
present value of the projected contractual income, net of the projected expenses
to be incurred by landlord, from all Eligible Leases of Unencumbered Eligible
Projects (with appropriate adjustments with respect to minority interests in
Joint Ventures and the Subsidiaries through which such Projects are held to
reflect the actual percentage interest of income entitled to be received where
the collective ownership interests are less than 100%), discounted at an annual
rate of 10.5%. In determining Unencumbered Lease Value, income from lease
extensions under any Lease will be included only if the extension right with
respect to such Lease has been unconditionally and irrevocably exercised by the
tenant (or the tenant has lost its rights to terminate the lease prior to the
automatic extension thereof). In determining the amount of projected contractual
income, net of projected expenses to be incurred by landlord, from any Eligible
Lease, all amounts attributable to adjustments in rental obligations of a tenant
that are contingent (for example, rental increases based upon a specified
occupancy rate) or otherwise indeterminate (for example, rental increases based
upon index adjustments), shall be excluded.
"UNSECURED INDEBTEDNESS" means any Indebtedness not secured by a Lien,
including any Indebtedness hereunder but excluding, to the extent otherwise
includable therein, any Indebtedness in respect of Guarantees of Nonrecourse
Carveouts.
"UNSECURED INTEREST EXPENSE" means, for any period, the greater of (i)
Total Interest Expense attributable to the Total Unsecured Outstanding
Indebtedness for such period or (ii) the interest expense that would have been
-72-
paid, accrued or capitalized on the Total Unsecured Outstanding Indebtedness for
such period, assuming for such period an interest rate of 7%.
"UNUSED COMMITMENT" means, as of any date, with respect to each Lender,
its Commitment less its Revolving Credit Exposure.
"UNUSED COMMITMENT FEE RATE" means the applicable rate per annum set forth
below under the caption "Unused Commitment Fee Rate" for any Unused Commitment
amounts based upon the range into which the Leverage Ratio then falls in
accordance with the following table:
Unused Commitment Fee
---------------------
Leverage Ratio Rate
-------------- ----
less than 30% 0.15%
30%-less than 45% 0.175%
45%-55% (or higher) 0.20%
Any change in the Unused Commitment Fee Rate shall be effective as of the
financial reporting dates set forth in Section 5.1 or as of the date of any
borrowing on which the Leverage Ratio changes.
"VALUATION NOI" means, with respect to all Projects or Joint Venture
Holdings which have been owned by the Company or any Subsidiary for not less
than four consecutive quarters, as of the first day of each fiscal quarter, an
amount equal to the sum, without duplication, of (i) Adjusted NOI relating to
all such Projects for the immediately preceding consecutive four fiscal
quarters, and (ii) Adjusted NOI of all such Joint Venture Holdings allocable to
the Company in accordance with GAAP for the immediately preceding consecutive
four fiscal quarters.
"WHOLLY-OWNED SUBSIDIARY" means, with respect to any Person, at any date,
any subsidiary of such Person of which 100% of the outstanding shares of capital
stock or other equity interests having ordinary voting power is at the time,
directly or indirectly, owned by such Person.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part 1 of Subtitle E of Title IV of ERISA.
SECTION 1.2. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving
Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type (e.g., a
"Eurodollar Revolving Loan"). Borrowings also may be classified and referred to
by Class (e.g., a
-73-
"Revolving Borrowing") or by Type (e.g., a "Eurodollar Borrowing") or by Class
and Type (e.g., a "Eurodollar Revolving Borrowing").
SECTION 1.3. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof' and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.4. Accounting Terms; GAAP. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if the
Company notifies the Administrative Agent that the Company requests an amendment
to any provision hereof to eliminate the effect of any change occurring after
the date hereof in GAAP or in the application thereof on the operation of such
provision (or if the Administrative Agent notifies the Company that the Required
Lenders request an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such change in
GAAP or in the application thereof, then such provision shall be interpreted on
the basis of GAAP as in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.
ARTICLE II.
THE CREDITS
SECTION 2.1. Commitments. Subject to the terms and conditions set forth herein,
each Lender agrees to make Revolving Loans to the Borrowers from time to time
during
-74-
the Availability Period in an aggregate principal amount that will not result in
(a) such Lender's Revolving Credit Exposure exceeding such Lender's Commitment
or (b) the sum of the total Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans exceeding the lesser of total
Commitments or the Borrowing Base at such time. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrowers may borrow,
repay and reborrow Revolving Loans. No Loans may be borrowed or reborrowed after
the end of the Availability Period.
SECTION 2.2. Loans and Borrowings. (a) Each Revolving Loan shall be made as part
of a Borrowing consisting of Revolving Loans made by the Lenders ratably in
accordance with their respective Commitments. Each Competitive Loan shall be
made in accordance with the procedures set forth in Section 2.4. The failure of
any Lender to make any Loan required to be made by it shall not relieve any
other Lender of its obligations hereunder; provided that the Commitments and
Competitive Bids of the Lenders are several and no Lender shall be responsible
for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.14, (i) each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Revolving Loans as the Company or
a Borrower may request in accordance herewith, and (ii) each Competitive
Borrowing shall be comprised entirely of Eurodollar Competitive Loans. Each
Lender at its option may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided that any
exercise of such option shall not affect the obligation of the Borrowers to
repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $500,000 and not less than $1,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $500,000 and not less than $1,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Commitments or that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.6(e). Each Competitive Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $20,000,000. Borrowings of
more than one Type and Class may be outstanding at the same time; provided that
there shall not at any time be more than a total of eight Eurodollar Revolving
Borrowings outstanding.
-75-
(d) Notwithstanding any other provision of this Agreement, the Company and
the other Borrowers shall not be entitled to request, or to elect to convert to
or continue, any Eurodollar Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date, or if prohibited by Section
2.8(e).
SECTION 2.3. Requests for Revolving Borrowings. To request a Revolving
Borrowing, the Company or the Company on behalf of any of the Borrowers shall
notify the Administrative Agent of such request by telephone (a) in the case of
a Eurodollar Revolving Borrowing, not later than 11:00 a.m., New York City time,
three Business Days before the date of the proposed Borrowing or (b) in the case
of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business
Day before the date of the proposed Borrowing; provided that any such notice of
an ABR Revolving Borrowing to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.6(e) may be given not later than 10:00 a.m., New York
City time, on the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing Request approved by
the Administrative Agent substantially in the form set forth in EXHIBIT C and
signed by the Company. Each such request shall be accompanied by a pro forma
Borrowing Base Certificate evidencing compliance with this Agreement after
giving effect to the requested Borrowing and the Officer's Certificate as to pro
forma financial covenant compliance required by Section 6.1(k). Each such
telephonic and written Borrowing Request shall specify the following information
in compliance with Section 2.2 and shall constitute a representation that the
conditions in Section 4.1 and Section 4.2 have been satisfied on such date and
will be satisfied on the date of such Borrowing:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Revolving Borrowing;
(iv) in the case of a Eurodollar Revolving Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by the
definition of the term "Interest Period"; and
(v) the location and number of the Company's or such Borrower's account to
which funds are to be disbursed, which shall comply with the requirements of
Section 2.7.
-76-
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing, then
the Company and the Borrowers shall be deemed to have selected an Interest
Period of one month's duration. Promptly following receipt of a Borrowing
Request in accordance with this Section, the Administrative Agent shall advise
each Lender of the details thereof and of the amount of such Lender's Revolving
Loan to be made as part of the requested Borrowing.
SECTION 2.4. Competitive Bid Procedure. (a) Subject to the terms and conditions
set forth herein, from time to time during the Availability Period the Company
or the Company on behalf of any of the Borrowers may request Competitive Bids
and may (but shall not have any obligation to) accept Competitive Bids and
borrow Competitive Loans; provided that (i) Xxxxx'x or S&P has established an
Investment Grade Credit Rating which is in effect for the Company or the Index
Debt, (ii) upon giving effect to the borrowing of such Competitive Loans, the
sum of the total Revolving Credit Exposures plus the aggregate principal amount
of outstanding Competitive Loans at any time would not exceed the lesser of the
total Commitments or the Borrowing Base at such time and (iii) upon giving
effect to the borrowing of such Competitive Loans, the sum of the total
principal amount of the outstanding Competitive Loans does not exceed 50% of the
total Commitments. To request Competitive Bids, the Company or a Borrower shall
notify the Administrative Agent of such request by telephone, not later than
11:00 a.m., New York City time, four Business Days before the date of the
proposed Borrowing; provided that a Competitive Bid Request shall not be made
within 5 Business Days after the date of any previous Competitive Bid Request.
Each such telephonic Competitive Bid Request shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Competitive Bid
Request in a form approved by the Administrative Agent and signed by the
Company. Each such request shall be accompanied by a pro forma Borrowing Base
Certificate evidencing compliance with this Agreement after giving effect to the
requested Borrowing and the Officer's Certificate as to pro forma financial
covenant compliance required by Section 6.1(k). Each such telephonic and written
Competitive Bid Request shall specify the following information in compliance
with Section 2.2 and shall constitute a representation that the conditions in
Section 4.1 and Section 4.2 have been satisfied on such date and will be
satisfied on the date of such Borrowing:
(i) the aggregate amount of the requested Borrowing, which
shall be not less than $20,000,000 or, if larger, an integral
multiple of $1,000,000;
-77-
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) the Interest Period to be applicable to such Borrowing,
which shall be a period contemplated by the definition of the term
"Interest Period"; and
(iv) the location and number of the Company's or such
Borrower's account to which funds are to be disbursed, which shall
comply with the requirements of Section 2.7.
Promptly following receipt of a Competitive Bid Request in accordance with
this Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one or
more Competitive Bids to the Company or to the Company on behalf of any of the
Borrowers in response to a Competitive Bid Request. Each Competitive Bid by a
Lender must be in a form approved by the Administrative Agent and must be
received by the Administrative Agent by telecopy, not later than 9:30 a.m., New
York City time, three Business Days before the proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially in the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender as
promptly as practicable. Competitive Loans to be funded pursuant to a
Competitive Bid may, as provided in Section 9.4(h), be funded by a Lender's
Designated Bank. A Lender making a Competitive Bid may, but shall not be
required to, specify in its Competitive Bid whether the related Competitive
Loans are intended to be funded by such Lender's Designated Bank, as provided in
Section 9.4(h). Each Competitive Bid shall specify (i) the identity of the
Lender and the contact person at such Lender for such Competitive Bid, (ii) the
principal amount (which shall be a minimum of $5,000,000 and an integral
multiple of $1,000,000 and which may equal the entire principal amount of the
Competitive Borrowing requested by the Company or by the Company on behalf of
any of the Borrowers) of the Competitive Loan or Loans that the applicable
Lender is willing to make, (iii) the Competitive Bid Rate or Rates at which such
Lender is prepared to make such Loan or Loans (expressed as a percentage rate
per annum in the form of a decimal to no more than four decimal places) and (iv)
the Interest Period applicable to each such Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify the Company or the
Company in respect of any of the Borrowers by telecopy of the Competitive Bid
Rate and the principal amount specified in each Competitive
-78-
Bid and the identity of the Lender that shall have made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Company or the
Company on behalf of any of the Borrowers may accept or reject any Competitive
Bid. The Company or the Company on behalf of any of the Borrowers shall notify
the Administrative Agent by telephone, confirmed by telecopy in a form approved
by the Administrative Agent, whether and to what extent it has decided to accept
or reject each Competitive Bid, not later than 10:30 a.m., New York City time,
three Business Days before the date of the proposed Competitive Borrowing;
provided that (i) the failure of the Company to give such notice shall be deemed
to be a rejection of each Competitive Bid, (ii) the Company shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if the Company rejects
a Competitive Bid made at a lower Competitive Bid Rate, (iii) the aggregate
amount of the Competitive Bids accepted by the Company shall not exceed the
aggregate amount of the requested Competitive Borrowing specified in the related
Competitive Bid Request, (iv) to the extent necessary to comply with clause
(iii) above, the Company may accept Competitive Bids at the same Competitive Bid
Rate in part, which acceptance, in the case of multiple Competitive Bids at such
Competitive Bid Rate, shall be made pro rata in accordance with the amount of
each such Competitive Bid, and (v) except pursuant to clause (iv) above, no
Competitive Bid shall be accepted for a Competitive Loan unless such Competitive
Loan is in a minimum principal amount of $5,000,000 and an integral multiple of
$1,000,000; provided further that if a Competitive Loan must be in an amount
less than $5,000,000 because of the provisions of clause (iv) above, such
Competitive Loan may be for a minimum of $1,000,000 or any integral multiple
thereof, and in calculating the pro rata allocation of acceptances of portions
of multiple Competitive Bids at a particular Competitive Bid Rate pursuant to
clause (iv) above the amounts shall be rounded to integral multiples of
$1,000,000 in a manner determined by the Company. A notice given by the Company
or the Company on behalf of any of the Borrowers pursuant to this paragraph
shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender by
telecopy whether or not its Competitive Bid has been accepted (and, if so, the
amount and Competitive Bid Rate so accepted), and each successful bidder will
thereupon become bound, subject to the terms and conditions hereof, to make the
Competitive Loan in respect of which its Competitive Bid has been accepted. A
Lender who is notified that it has been selected to make a Competitive Loan may
designate its Designated Bank (if any) to fund such Competitive Loan on its
behalf, as described in Section 9.4(h). Any Designated Bank which funds a
Competitive Loan shall on and
-79-
after the time of such funding become the obligee in respect of such Competitive
Loan and be entitled to receive payment thereof when due.
(f) If the entity which is the Administrative Agent shall elect to submit
a Competitive Bid in its capacity as a Lender, it shall submit such Competitive
Bid directly to the Company or to the Company on behalf of any of the Borrowers
at least one quarter of an hour earlier than the time by which the other Lenders
are required to submit their Competitive Bids to the Administrative Agent
pursuant to paragraph (b) of this Section.
SECTION 2.5. [Reserved].
SECTION 2.6. Letters of Credit. (a) General. Subject to the terms and conditions
set forth herein, the Company or the Company on behalf of any Borrower may
request the issuance of Letters of Credit for its own account, in a form
reasonably acceptable to the Administrative Agent and the Issuing Bank, at any
time and from time to time during the period commencing on the Effective Date
and ending on the date that is 30 days prior to the Maturity Date, provided that
the amount of each Letter of Credit so requested shall be not less than
$300,000. In the event of any inconsistency between the terms and conditions of
this Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Company or the Company on behalf
of any of the Borrowers to, or entered into by the Company or a Borrower with,
the Issuing Bank relating to any Letter of Credit, the terms and conditions of
this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.
To request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), the Company or the Company on
behalf of any of the Borrowers shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been approved by the
Issuing Bank) to the Issuing Bank and the Administrative Agent (at least four
(4) Business Days in advance of the requested date of issuance, amendment,
renewal or extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, the date of
issuance, amendment, renewal or extension, the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the
amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. Each such notice shall be accompanied by a pro
forma Borrowing Base Certificate evidencing compliance with this Agreement after
giving effect to the issuance of such Letter of Credit and the Officer's
Certificate as to pro forma financial covenant compliance required by Section
6.1(k). If requested by the Issuing Bank, the Company or such
-80-
Borrower also shall submit a letter of credit application on the Issuing Bank's
standard form in connection with any request for a Letter of Credit. A Letter of
Credit shall be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of Credit the Company or such
Borrower shall be deemed to represent and warrant that), after giving effect to
such issuance, amendment, renewal or extension (i) the LC Exposure shall not
exceed $20,000,000 and (ii) the sum of the total Revolving Credit Exposures plus
the aggregate principal amount of outstanding Competitive Loans shall not exceed
the lesser of the total Commitments or the Borrowing Base at such time.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to the
close of business on the earlier of (i) the date one year after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (ii) the date that is 30
days prior to the Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an amendment
to a Letter of Credit increasing the amount thereof) and without any further
action on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby
grants to each Lender, and each Lender hereby acquires from the Issuing Bank, a
participation in such Letter of Credit equal to such Lender's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the Issuing Bank, such Lender's Applicable Percentage of each LC
Disbursement made by the Issuing Bank and not reimbursed by the Borrowers on the
date due as provided in paragraph (e) of this Section, or of any reimbursement
payment required to be refunded to the Borrowers for any reason. Each Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit (subject to Section 2.6(c)) is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. Notwithstanding
anything to the contrary set forth herein, the aggregate amount to be paid by
any Lender with respect to any drawing under a Letter of Credit (whether as a
payment pursuant to this Section 2.6(d) or a Loan pursuant to Section 2.3) shall
not exceed its Applicable Percentage of such drawing.
-81-
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the Borrowers shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on the date that
such LC Disbursement is made, if the Company or the Company on behalf of any of
the Borrowers shall have received notice of such LC Disbursement prior to 10:00
a.m., New York City time, on such date, or, if such notice has not been received
by the Company or the Company on behalf of any of the Borrowers prior to such
time on such date, then not later than 12:00 noon, New York Cite time, on (i)
the Business Day that the Company or the Company on behalf of any of the
Borrowers receive such notice, if such notice is received prior to 10:00 a.m.,
New York City time, on the day of receipt, or (ii) the Business Day immediately
following the day that the Company or the Company on behalf of any of the
Borrowers receives such notice, if such notice is not received prior to such
time on the day of receipt; provided that the Company or the Company on behalf
of any of the Borrowers may, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.3 that such payment be financed
with an ABR Revolving Borrowing in an equivalent amount and, to the extent so
financed, the Borrowers' obligation to make such payment shall be discharged and
replaced by the resulting ABR Revolving Borrowing. If the Borrowers fail to (or
are not permitted to) finance such payment with an ABR Revolving Borrowing and
fail to make such payment when due, the Administrative Agent shall notify each
Lender of the applicable LC Disbursement, the payment then due from the
Borrowers in respect thereof and such Lender's Applicable Percentage thereof.
Promptly following receipt of such notice, each Lender shall pay to the
Administrative Agent its Applicable Percentage of the payment then due from the
Borrowers, in the same manner as provided in Section 2.7 with respect to Loans
made by such Lender (and Section 2.7 shall apply, mutatis mutandis, to the
payment obligations of the Lenders), and the Administrative Agent shall promptly
pay to the Issuing Bank the amounts so received by it from the Lenders. Promptly
following receipt by the Administrative Agent of any payment from the Borrowers
pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the Issuing Bank or, to the extent that Lenders have made payments
pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders
and the Issuing Bank as their interests may appear. Any payment made by a Lender
pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement
(other than the funding of ABR Revolving Loans as contemplated above) shall not
constitute a Loan and shall not relieve the Borrowers of their obligation to
reimburse such LC Disbursement.
-82-
(f) Obligations Absolute. The Borrowers' obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be joint and
several, absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit or this Agreement, or any term or
provision therein, (ii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment by
the Issuing Bank under a Letter of Credit against presentation of a draft or
other document that does not comply with the terms of such Letter of Credit, or
(iv) any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section, constitute
a legal or equitable discharge of, or provide a right of setoff against, the
Borrowers' obligations hereunder. Neither the Administrative Agent, the Lenders
nor the Issuing Bank, nor any of their Related Parties, shall have any liability
or responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from
causes beyond the control of the Issuing Bank; provided that the foregoing (and
the agreement of the Borrowers in the first sentence of this Section 2.6(f))
shall not be construed to excuse the Issuing Bank from liability to the
Borrowers to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrowers to the
extent permitted by applicable law) suffered by the Borrowers that are caused by
the Issuing Bank's failure to exercise care when determining whether drafts and
other documents presented under a Letter of Credit comply with the terms
thereof. The parties hereto expressly agree that, in the absence of gross
negligence or willful misconduct on the part of the Issuing Bank (as finally
determined by a court of competent jurisdiction), the Issuing Bank shall be
deemed to have exercised care in each such determination. In furtherance of the
foregoing and without limiting the generality thereof, the parties agree that,
with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
-83-
(g) Disbursement Procedures. The Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall promptly notify the
Administrative Agent and the Company or the Company on behalf of any of the
Borrowers by telephone (confirmed by telecopy) of such demand for payment and
whether the Issuing Bank has made or will make an LC Disbursement thereunder;
provided that any failure to give or delay in giving such notice shall not
relieve the Borrowers of their obligation to reimburse the Issuing Bank and the
Lenders with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC Disbursement,
then, unless the Borrowers shall reimburse such LC Disbursement in full on the
date such LC Disbursement is made, the unpaid amount thereof shall bear
interest, for each day from and including the date such LC Disbursement is made
to but excluding the date that the Borrowers reimburse such LC Disbursement, at
the rate per annum then applicable to ABR Revolving Loans; provided that, if the
Borrowers fail to reimburse such LC Disbursement when due pursuant to paragraph
(e) of this Section, then Section 2.13(c) shall apply. Interest accrued pursuant
to this paragraph shall be for the account of the Issuing Bank, except that
interest accrued on and after the date of payment by any Lender pursuant to
paragraphs (d) or (e) of this Section to reimburse the Issuing Bank shall be for
the account of such Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be replaced at
any time by written agreement among the Company, the Administrative Agent, the
replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent
shall notify the Lenders of any such replacement of the Issuing Bank. At the
time any such replacement shall become effective, the Borrowers shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.12(b). From and after the effective date of any such replacement, (i)
the successor Issuing Bank shall have all the rights and obligations of the
Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term "Issuing Bank" shall be deemed
to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain
a party hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of Credit issued by it
prior to such replacement, but shall not be required to issue additional Letters
of Credit.
-84-
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Company or the Company on behalf of any
of the Borrowers receives notice from the Administrative Agent or the Required
Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC
Exposure representing at least 51% of the total LC Exposure) demanding the
deposit of cash collateral pursuant to this paragraph, the Borrowers shall
deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in cash equal
to the LC Exposure as of such date plus any accrued and unpaid interest thereon;
provided that the obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any
Event of Default with respect to any of the Borrowers described in clause (h) or
(i) of Article VII. Such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Borrowers
under this Agreement. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account. Other
than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of the Administrative Agent and
at the Borrowers' risk and expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the Administrative Agent to
reimburse the Issuing Bank for LC Disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held for the satisfaction
of the reimbursement obligations of the Borrowers for the LC Exposure at such
time or, if the maturity of the Loans has been accelerated (but subject to the
consent of Required Lenders with LC Exposure representing at least 51% of the
total LC Exposure), be applied to satisfy other obligations of the Borrowers
under this Agreement. If the Borrowers are required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default, such
amount (to the extent not applied as aforesaid) shall be returned to the
Borrowers within three Business Days after all Events of Default have been cured
or waived.
SECTION 2.7. Funding of Borrowings. (a) Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. The Administrative Agent will make such Loans available
to the Borrowers by promptly crediting the amounts so received, in like funds,
to an account of the Company maintained with the Administrative Agent in New
York City and designated by the Borrowers in the applicable Borrowing Request or
Competitive Bid Request; provided that ABR
-85-
Revolving Loans made to finance the reimbursement of an LC Disbursement as
provided in Section 2.6(e) shall be remitted by the Administrative Agent to the
Issuing Bank.
(b) Unless the Administrative Agent shall have received written notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrowers a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrowers severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrowers to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrowers,
the interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing as of the date of such Borrowing. If any interest is
paid by the Borrowers as described above for any period with respect to any
amount funded by the Administrative Agent pursuant to this paragraph, the
Borrowers shall not be required to pay interest on such amount pursuant to
Section 2.13 in respect of such period.
SECTION 2.8. Interest Elections. (a) Each Revolving Borrowing initially shall be
of the Type specified in the applicable Borrowing Request and, in the case of a
Eurodollar Revolving Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request. Thereafter, the Borrowers may elect to
convert such Revolving Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrowers may
elect different options with respect to different portions of the affected
Revolving Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing. This
Section shall not apply to Competitive Borrowings, which may not be converted or
continued.
(b) To make an election pursuant to this Section, the Borrowers shall
notify the Administrative Agent of such election by telephone by the
-86-
time that a Borrowing Request would be required under Section 2.3 if the
Borrowers were requesting a Revolving Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed promptly
by hand delivery or telecopy to the Administrative Agent of a written Interest
Election Request in a form approved by the Administrative Agent and signed by
the Borrowers.
(c) Each telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.2:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Revolving Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Revolving Borrowing,
the Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Revolving Borrowing
but does not specify an Interest Period, then the Borrowers shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrowers fail to deliver a timely Interest Election Request
with respect to a Eurodollar Revolving Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrowers, then, so long
as an Event of Default is continuing (i) no
-87-
outstanding Revolving Borrowing may be converted to or continued as a Eurodollar
Borrowing and (ii) unless repaid, each Eurodollar Revolving Borrowing shall be
converted to an ABR Borrowing at the end of the Interest Period applicable
thereto.
SECTION 2.9. Termination and Reduction of Commitments. (a) Unless previously
terminated, the Commitments shall terminate on the Maturity Date.
(b) The Borrowers may at any time terminate, or from time to time reduce,
the Commitments; provided that (i) each reduction of the Commitments shall be in
an amount that is an integral multiple of $500,000 and not less than $5,000,000
and (ii) the Borrowers shall not terminate or reduce the Commitments if, after
giving effect to any concurrent prepayment of the Loans in accordance with
Section 2.11, the sum of the Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans would exceed the total
Commitments.
(c) The Borrowers shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under paragraph (b) of this Section at least
three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrowers pursuant
to this Section shall be irrevocable; provided that a notice of termination of
the Commitments delivered by the Borrowers may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrowers (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be permanent.
Each reduction of the Commitments shall be made ratably among the Lenders in
accordance with their respective Commitments.
SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) The Borrowers hereby
unconditionally and jointly and severally promise to pay (i) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Revolving Loan not later than the Maturity Date, and (ii) to the
Administrative Agent for the account of each applicable Lender the then unpaid
principal amount of each Competitive Loan on the last day of the Interest Period
applicable to such Loan.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrowers to such Lender
resulting from each Loan made by such Lender, including
-88-
the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrowers to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein, provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrowers to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a Note.
In such event, the Borrowers shall prepare, execute and deliver to such Lender a
Note payable to the order of such Lender (or, if requested by such Lender, to
such Lender and its registered assigns). Thereafter, the Loans evidenced by such
Note and interest thereon shall at all times (including after assignment
pursuant to Section 9.4) be represented by one or more Notes in such form
payable to the order of the payee named therein.
SECTION 2.11. Prepayment of Loans. (a) The Borrowers shall have the right at any
time and from time to time to prepay any Borrowing in whole or in part, subject
to prior notice in accordance with paragraph (b) of this Section; provided that,
unless otherwise provided in a Competitive Bid, the Borrowers shall not have the
right to prepay any Competitive Loan without the prior consent of the Lender
thereof.
(b) The Borrowers shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment and (ii) in
the case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m.,
New York City time, one Business Day before the date of prepayment. Each such
notice shall be irrevocable and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be prepaid; provided
that, if a notice of prepayment is given in connection with a conditional notice
of termination of the Commitments as contemplated by Section 2.9, then such
notice of prepayment may be revoked
-89-
if such notice of termination is revoked in accordance with Section 2.9.
Promptly following receipt of any such notice relating to a Revolving Borrowing,
the Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Revolving Borrowing shall be in an amount that would
be permitted in the case of an advance of a Revolving Borrowing of the same Type
as provided in Section 2.2. Each prepayment of a Revolving Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.13.
(c) If at any time from and after the Closing Date: (i) the Company merges
or consolidates with another Person and the Company is not the surviving entity,
or (ii) any Person and the Company or a Subsidiary merge into the Company or a
Subsidiary in a transaction in which the Company or a Subsidiary is the
surviving corporation and an Event of Default has occurred as a result thereof
(the date either such event shall occur being the "PREPAYMENT DATE"), the
Borrowers shall be required to prepay the Loans in their entirety as if the
Prepayment Date were the Maturity Date and the Commitments thereupon shall be
terminated. The Borrowers shall immediately make such prepayment together with
the interest accrued to the date of the prepayment on the principal amount
prepaid and shall return or cause to be returned all Letters of Credit to the
Issuing Bank. In connection with the prepayment of any Loan prior to the
maturity thereof, the Borrowers shall also pay any applicable expenses pursuant
to Section 2.16. Each such prepayment shall be applied to prepay ratably the
Loans of the Lenders. Amounts prepaid pursuant to this clause (c) may not be
reborrowed.
(d) If at any time from and after the Closing Date for any reason the sum
of the total Revolving Credit Exposures plus the aggregate amount of outstanding
Competitive Loans at any time exceeds the Borrowing Base, then the Borrowers
shall prepay a portion of the Loans in the amount of such excess within three
Business Days after such excess first occurs. If the prepayment of all Loans
does not suffice to eliminate such excess, then the Borrowers shall deposit cash
collateral in the same manner as is contemplated under Section 2.6(j) in the
amount of the remaining excess within such three Business Days. The Borrowers
shall also prepay Loans to the extent required by Section 5.2(b).
SECTION 2.12. Fees. (a) During the period from and including the Effective Date
to but excluding the date on which such Commitment terminates, the Borrowers
jointly and severally agree to pay to the Administrative Agent for the account
of each Lender (i) in the event that neither Xxxxx'x nor S&P has established a
rating which is in effect for the Company or for Index Debt, an unused
commitment
-90-
fee equal to the Unused Commitment Fee Rate on the daily amount of the Unused
Commitment of such Lender (the "UNUSED COMMITMENT FEE AMOUNT") or (ii) in the
event Xxxxx'x or S&P has established a rating which is in effect for the Company
or the Index Debt, a facility fee equal to the Facility Fee Rate on the full
amount of the Commitment of such Lender (the "FACILITY FEE AMOUNT"); provided
that, if such Lender continues to have any Revolving Credit Exposure after its
Commitment terminates, then the Facility Fee Amounts pursuant to clause (ii)
above shall continue to accrue on the daily amount of such Lender's Revolving
Credit Exposure from and including the date on which its Commitment terminates
to but excluding the date on which such Lender ceases to have any Revolving
Credit Exposure. Accrued Unused Commitment Fee Amounts pursuant to clause (i)
above and Facility Fee amounts pursuant to clause (ii) above shall be payable
quarterly in arrears on the last day of March, June, September and December of
each year commencing on the first such date after the Effective Date, and on the
date on which the Commitments terminate; provided that any fees pursuant to
clause (i) or (ii) accruing after the date on which the Commitments terminate
shall be payable on demand. All fees pursuant to clause (i) or (ii) shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).
(b) The Borrowers jointly and severally agree to pay (i) to the
Administrative Agent for the account of each Lender a participation fee with
respect to its participations in Letters of Credit, which shall accrue at the
same Applicable Rate as interest on Eurodollar Revolving Loans on the average
daily amount of such Lender's LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements during the period from and
including the Effective Date to but excluding the later of the date on which
such Lender's Commitment terminates and the date on which such Lender ceases to
have any LC Exposure, and (ii) to the Issuing Bank a fronting fee, which shall
accrue at the rate of 0.125% per annum on the average daily amount of the LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date of termination of the Commitments and the date
on which there ceases to be any LC Exposure, as well as the Issuing Bank's
standard fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder. Participation fees
and fronting fees accrued from and including the Effective Date or the last day
of the preceding March, June, September or December, as applicable, to and
excluding the last Business Day of March, June, September and December of each
year shall be payable on such last Business Day of such month, commencing on the
first such date to occur after the Effective Date; provided that all such
-91-
fees shall be payable on the date on which the Commitments terminate and any
such fees accruing after the date on which the Commitments terminate shall be
payable on demand. Any other fees payable to the Issuing Bank pursuant to this
paragraph shall be payable within 10 days after demand. All participation fees
and fronting fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
(c) The Borrowers jointly and severally agree to pay to the Administrative
Agent, for its own account, fees payable in the amounts and at the times
separately agreed upon between the Company and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of fees
pursuant to paragraph (a) above and participation fees, to the Lenders. Fees
paid shall not be refundable under any circumstances. SECTION 2.13. Interest.
(a) The Loans comprising each ABR Borrowing shall bear interest at the Alternate
Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest (i)
in the case of a Eurodollar Revolving Loan, at the Adjusted LIBO Rate for the
Interest Period in effect for such Borrowing plus the Applicable Rate, or (ii)
in the case of a Competitive Loan, at the Adjusted LIBO Rate for the Interest
Period in effect for such Borrowing plus (or minus, as applicable) the Margin
applicable to such Loan.
(c) Notwithstanding the foregoing, (i) if any principal of or interest on
any Loan or any fee or other amount payable by the Borrowers hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (A) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (B) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section and (ii)
for so long as an Event of Default has occurred and is continuing, the principal
balance of all Loans and other Obligations shall bear interest at a rate per
annum equal to 2% in excess of the rate otherwise applicable to such Loans and
other Obligations.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Commitments; provided that (i) interest accrued pursuant to
paragraph (c) of this Section shall be payable on
-92-
demand, (ii) in the event of any repayment or prepayment of any Loan (other than
a prepayment of an ABR Revolving Loan prior to the end of the Availability
Period), accrued interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment and (iii) in the event of
any conversion of any Eurodollar Revolving Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of 360
days, except that interest computed by reference to the Alternate Base Rate at
times when the Alternate Base Rate is based on the Prime Rate shall be computed
on the basis of a year of 365 days (or 366 days in a leap year), and in each
case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate, Adjusted
LIBO Rate or LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error
SECTION 2.14. Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders (or, in
the case of a Eurodollar Competitive Loan, the Lender that is required to make
such Loan) that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such
Interest Period will not adequately and fairly reflect the cost to such Lenders
(or Lender) of making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrowers and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrowers and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective, (ii) if any Borrowing Request requests a Eurodollar Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing and (iii) any
request by the Borrowers for a Eurodollar Competitive Borrowing shall be
ineffective; provided that if the circumstances giving rise to such notice do
not affect all the Lenders, then
-93-
requests by the Borrowers for Eurodollar Competitive Borrowings may be made to
Lenders that are not affected thereby.
SECTION 2.15. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrowers will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank,
as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the Issuing Bank's capital or on the capital of
such Lender's or the Issuing Bank's holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in Letters of Credit held
by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level
below that which such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company could have achieved but for such Change in Law (taking
into consideration such Lender's or the Issuing Bank's policies and the policies
of such Lender's or the Issuing Bank's holding company with respect to capital
adequacy), then from time to time the Borrowers will pay to such Lender or the
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the amount
or amounts necessary to compensate such Lender or the Issuing
-94-
Bank or its holding company, as the case may be, as specified in paragraph (a)
or (b) of this Section shall be delivered to the Borrowers and shall be
conclusive absent manifest error. The Borrowers shall pay such Lender or the
Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
that the Borrowers shall not be required to compensate a Lender or the Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 270 days prior to the date that such Lender or the Issuing Bank, as
the case may be, notifies the Borrowers of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the 270-day period referred to above shall be extended to include the period of
retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this Section, a Lender
shall not be entitled to compensation pursuant to this Section in respect of any
Competitive Loan if the Change in Law that would otherwise entitle it to such
compensation shall have been publicly announced prior to submission of the
Competitive Bid pursuant to which such Loan was made.
SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion of any Eurodollar Revolving Loan other than on the last day of
the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.11 (b) and is revoked in accordance therewith), (d) the failure
to borrow any Competitive Loan after accepting the Competitive Bid to make such
Loan, or (e) the assignment of any Eurodollar Loan other than on the last day of
the Interest Period applicable thereto as a result of a request by the Borrowers
pursuant to Section 2.19, then, in any such event, the Borrowers shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan, such loss, cost or expense to any
Lender shall include an amount determined by such Lender to be the excess, if
any, of (i) the amount of interest which would have accrued on the principal
amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that
would have been applicable to such Loan, for the
-95-
period from the date of such event to the last day of the then current Interest
Period therefor (or, in the case of a failure to borrow, convert or continue,
for the period that would have been the Interest Period for such Loan), over
(ii) the amount of interest which would accrue on such principal amount for such
period at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for dollar deposits of a comparable amount and
period from other banks in the eurodollar market. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Administrative Agent and
shall be conclusive absent manifest error. The Borrowers shall pay such Lender
the amount shown as due on any such certificate within 10 days after receipt
thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or on account of any obligation
of the Borrowers hereunder shall be made free and clear of and without deduction
for any Indemnified Taxes or Other Taxes; provided that if the Borrowers shall
be required to deduct any Indemnified Taxes or Other Taxes from such payments,
then (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section) the Administrative Agent, each Lender or the Issuing
Bank (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrowers shall make such
deductions and (iii) the Borrowers shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrowers shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrowers shall indemnify the Administrative Agent, each Lender
and the Issuing Bank, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent,
such Lender or the Issuing Bank, as the case may be, on or with respect to any
payment by or on account of any obligation of the Borrowers hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrowers by a Lender or the Issuing Bank,
or by the Administrative Agent on its own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive absent manifest error.
-96-
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrowers to a Governmental Authority, the Borrowers shall deliver
to the Administrative Agent the original or a certified copy of a receipt issued
by such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) As a condition to becoming a Lender hereunder, any Foreign Lender
(including any assignee), that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which any of the Borrowers
is located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrowers (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law, such
properly completed and executed documentation prescribed by applicable law or
reasonably requested by the Borrowers as will permit such payments to be made
without withholding or at a reduced rate.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a)
The Borrowers shall make each payment required to be made by them hereunder
(whether of principal, interest, fees or reimbursement of LC Disbursements, or
of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to
12:00 noon, New York City time, on the date when due, in immediately available
funds, without set-off or counterclaim. Any amounts received after such time on
any date may, in the discretion of the Administrative Agent, be deemed to have
been received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative Agent at
its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, except payments to be made
directly to the Issuing Bank as expressly provided herein and except that
payments pursuant to Sections 2.15, 2.16, 2.17 and 9.3 shall be made directly to
the Persons entitled thereto. The Administrative Agent shall distribute any such
payments received by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof. If any payment hereunder shall be
due on a day that is not a Business Day, the date for payment shall be extended
to the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
All payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of
-97-
interest and fees then due to such parties, and (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, except pursuant to Section 2.19, obtain payment in
respect of any principal of or interest on any of its Revolving Loans or
participations in LC Disbursements resulting to such Lender receiving payment of
a greater proportion of the aggregate amount of its Revolving Loans and
participations in LC Disbursements than the proportion received by any other
Lender, then the Lender receiving such greater proportion shall purchase (for
cash at face value) participations in the Revolving Loans and participations in
LC Disbursements of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
Revolving Loans and participations in LC Disbursements; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrowers pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to
the Borrowers or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). The Borrowers consent to the foregoing and
agree, to the extent they may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrowers rights of set-off and counterclaim with respect
to such participation as fully as if such Lender were a direct creditor of the
Borrowers in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the
Borrowers prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrowers will not make such payment, the Administrative Agent may assume that
the Borrowers have made such payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute to the Lenders or the Issuing
Bank, as the case may be, the amount due. In such event, if the Borrowers have
not in fact made such payment, then each of the Lenders or the Issuing Bank, as
the case may be, severally agrees to repay to the Administrative Agent forthwith
on
-98-
demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to be made by it
pursuant to Sections 2.6(d) or (e), 2.7(b) or 2.18(d), then the Administrative
Agent may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender's obligations under such Sections
until all such unsatisfied obligations are fully paid.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.15, or if the Borrowers are required to
pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.17, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.15 or 2.17, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. The Borrowers hereby agree to
pay all reasonable costs and expenses incurred by any Lender in connection with
any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if the
Borrowers are required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrowers may, at their sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.4), all its interests, rights and obligations under this Agreement
(other than any outstanding Competitive Loans held by it) to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) the Borrowers shall have received
the prior written consent of the Administrative Agent (and, if a Commitment is
being assigned, the Issuing Bank), which consent shall not unreasonably be
withheld, (ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its
-99-
Loans (other than Competitive Loans) and participations in LC Disbursements,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrowers (in the case of all other amounts)
and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.15 or payments required to be made pursuant to
Section 2.17, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrowers to require such assignment
and delegation cease to apply.
SECTION 2.20. Increase in Commitment.
(a) After the Closing Date, the Borrowers shall have the one time right to
request that the Administrative Agent obtain additional Commitments (the
"ADDITIONAL COMMITMENT") so that the Commitments aggregate an amount equal to
Two Hundred Twenty-Five Million Dollars ($225,000,000) (the "INCREASED FACILITY
AMOUNT"), which request shall be made by the Company on behalf of the Borrowers
giving written notice (the "ADDITIONAL COMMITMENT NOTICE") to the Administrative
Agent prior to the date which is 180 days prior to the Maturity Date setting
forth such details with respect thereto as are reasonably requested by the
Administrative Agent. Upon such request, the Administrative Agent shall, at the
Borrowers' sole cost and expense of documentation and legal fees in connection
therewith, use its reasonable efforts, in accordance with its customary
syndication procedures, with the assistance of the Borrowers, to arrange a
syndicate of Lenders with Commitments (including the initial Commitments),
aggregating the Increased Facility Amount on or before the date which is 150
days after the Additional Commitment Notice was received by the Administrative
Agent (the "SYNDICATION EXPIRATION DATE"). The Administrative Agent shall first
offer to the existing Lenders the option to participate in the proposed
Additional Commitment to the extent of each Lender's pro-rata share of the
proposed Additional Commitment prior to proposing additional bank syndicate
members. If any existing Lender shall not agree to provide its pro-rata share of
the proposed Additional Commitment within 10 days after receipt from the
Administrative Agent of a request to accept such pro-rata share of the proposed
Additional Commitment, prior to commencing syndication, the Administrative Agent
shall submit a list of proposed bank syndicate members (who indicate a
willingness to accept all or a portion of the amount of the proposed Additional
Commitment) to the Borrowers; provided, that, notwithstanding any existing
Lender's rejection of its pro-rata share of the proposed Additional Commitment,
such existing Lender shall remain a Lender hereunder, subject to the terms and
conditions hereof.
-100-
From and after the Syndication Expiration Date, the Administrative Agent shall
have no further obligation to syndicate the facility or to obtain or accept any
additional Commitments. Notwithstanding the foregoing, during the period after
the giving of the Additional Commitment Notice and prior to the Syndication
Expiration Date, the Lender which is the Administrative Agent shall have the
right, at its option, to commit to make the Additional Commitment available to
the Borrowers and, if the Lender which is the Administrative Agent shall so
elect to commit to making the Additional Commitment available to the Borrowers,
to arrange a syndicate of Lenders with Commitments aggregating the Increased
Facility Amount. In the event that lenders commit to any such increase, any new
lender shall execute an accession agreement to this Agreement, the Commitments
of the existing Lenders which have committed to provide any of the Additional
Commitment shall be increased, the pro-rata shares of the Lenders shall be
adjusted, the Borrowers shall make such borrowings and repayments as shall be
necessary to effect the reallocation of the Commitments, and other changes shall
be made to the Loan Documents as may be necessary to reflect the aggregate
amount, if any, by which Lenders have agreed to increase their respective
Commitments or make new Commitments in response to the Borrowers' request for an
increase in the aggregate Commitments pursuant to this Section 2.20 and which
other changes do not adversely affect the rights of those Lenders who do not
elect to increase their respective Commitments, in each case without the consent
of the Lenders other than those Lenders increasing their Commitments. The fees
payable by the Borrowers upon any such increase in the aggregate Commitments
shall be agreed upon by the Administrative Agent and the Borrowers at the time
of such increase.
(b) Notwithstanding the foregoing, an increase in the aggregate amount
of the Commitments shall be effective only if (i) no Default shall
have occurred and be continuing on the date of the Additional
Commitment Notice and the date such increase is to become effective;
(ii) each of the representations and warranties made by each of the
Borrowers in this Agreement and the other Loan Documents shall be
true and complete on and as of the date of the Additional Commitment
Notice and the date such increase is to become effective with the
same force and effect as if made on and as of such date (or, if any
such representation or warrant is expressly stated to have been made
as of a specific date, as of such specific date); (iii) the
Administrative Agent shall have received (x) such documents and
certificates as the Administrative Agent or its counsel may
reasonably request relating to the authorization of such increase
and (y) a favorable
-101-
written opinion (addressed to the Administrative Agent and the
Lenders) of counsel for the Borrowers substantially in the form of
EXHIBIT E-1, after giving effect to such increase; and (iv) the
Company and its Subsidiaries shall be in compliance with Article VI.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
The Company and each Borrower jointly and severally represent and warrant
to the Lenders, the Administrative Agent and the Issuing Bank that:
SECTION 3.1. Organization; Powers. Each of the Company, its Affiliates and the
other Borrowers is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required. Neither the Company nor any of the Borrowers is a "foreign person"
within the meaning of Section 1445 of the Code.
SECTION 3.2. Authorization; Enforceability. (a) The Transactions have been duly
authorized by all necessary limited liability company action of the Company and
by all necessary partnership, limited liability company or corporate action of
the Subsidiary Partnerships. Each of the Borrowers has the requisite power and
authority to perform this Agreement and the other Loan Documents. This Agreement
has been duly, authorized, executed and delivered by the Borrowers and
constitutes a legal, valid and binding obligation of the Borrowers, enforceable
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
(b) SCHEDULE 3.2 contains a diagram indicating the ownership structure of
the Company, and any other Person in which the Company holds a direct or
indirect partnership, joint venture or other equity interest, indicating the
nature of such interest with respect to each Person included in such diagram and
accurately sets forth (1) the correct legal name of such Person, the
jurisdiction of its incorporation or organization and, for each Borrower, the
jurisdictions in which it is qualified to transact business as a foreign
corporation, or otherwise, and (2) the authorized, issued and outstanding shares
or interests of each class of securities of the Company. None of such issued and
outstanding securities is subject to any vesting,
-102-
redemption, or repurchase agreement, and there are no warrants or options
outstanding with respect to such securities, except as noted on such Schedule.
The outstanding capital stock of the Company is duly authorized, validly issued,
fully paid and nonassessable.
(c) The Company's limited partnership, limited liability company or
corporate interest in each of the Subsidiary Partnerships is set forth on
SCHEDULE 3.2(A).
SECTION 3.3. Governmental Approvals; No Conflicts. Except as specified on
SCHEDULE 3.3, the Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect, (b)
will not violate, and will not require any consent or approval under, any
applicable law or regulation or the certificate of formation, limited liability
company agreement, certificate of limited partnership, limited partnership
agreement or other organizational documents of the Company or any of its
Subsidiaries or any order of any Governmental Authority, (c) will not violate or
result in a default under any indenture, agreement or other instrument binding
upon any of the Company or any of its Subsidiaries or its assets, or give rise
to a right thereunder to require any payment to be made by the Company or any of
its Subsidiaries, and (d) will not result in the creation or imposition of any
Lien on any asset of the Company or any of its Subsidiaries.
SECTION 3.4. Financial Condition; No Material Adverse Change. (a) The Company
has heretofore furnished to the Lenders (i) its audited balance sheet as of
December 31, 1999, reported on by PricewaterhouseCoopers LLP, independent public
accountants, (ii) its pro forma unaudited balance sheets and statements of
income as of September 30, 2000, certified by its chief financial officer, and
(iii) its pro forma unaudited statements of income for the year ended December
31, 2000, certified by its chief financial officer. Such financial statements
present fairly, in all material respects, the financial position and results of
operations of the Company and its consolidated Subsidiaries as of such dates and
for such periods in accordance with GAAP, subject to (y) normal and recurring
year-end audit adjustments and the absence of footnotes in the case of the
statements referred to in clause (ii) above and (z) any pro forma financial
statements contained in such consolidated financial statements are not
necessarily indicative of the consolidated financial position of the Company and
its Subsidiaries, as of the respective dates thereof and the consolidated
results of operations for the periods indicated.
(b) Neither the Company nor any of its Subsidiaries has any Contingent
Obligation or liability for any taxes, long-term leases or commitments, not
reflected in its audited financial statements delivered to
-103-
the Administrative Agent on or prior to the Closing Date or otherwise disclosed
to the Administrative Agent and the Lenders in writing, which will have or is
reasonably likely to have a Material Adverse Effect.
(c) SCHEDULE 3.4 sets forth, as of the date hereof, all Indebtedness of
the Company and its Subsidiaries and, except as set forth on SCHEDULE 3.4, there
are no defaults in the payment of principal or interest on any such Indebtedness
and no payments thereunder have been deferred or extended beyond their stated
maturity and there has been no material change in the type or amount of such
Indebtedness.
(d) Since September 30, 2000, there has been no material adverse change in
the business, assets, operations, prospects or condition, financial or
otherwise, of the Company and its Subsidiaries, taken as a whole.
SECTION 3.5. Properties. (a) Each of the Company and its Subsidiaries has good
title to, or valid leasehold interests in, all its real and personal property
material to its business, except for minor defects in title that do not
interfere with its ability to conduct its business as currently conducted or to
utilize such properties for their intended purposes. A Borrower is the owner of
each of the Unencumbered Eligible Projects described in clause (b)(i) of the
definition thereof.
(b) Each of the Company and its Subsidiaries owns, or is licensed to use,
all trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by the Company and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.6. Litigation and Environmental Matters. (a) There are no actions,
suits or proceedings by or before any arbitrator or Governmental Authority
pending against or, to the knowledge of the Company, threatened against or
affecting the Company or any of its Subsidiaries (i) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect (other than the Disclosed Matters) or (ii)
that involve this Agreement or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any other
matters that, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect, neither the Company nor any of its
Subsidiaries (i) has failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any
-104-
Environmental Liability, (iii) has received notice of any claim with respect to
any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
SECTION 3.7. Compliance with Laws and Agreements. Each of the Company and its
Subsidiaries is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.
SECTION 3.8. Investment and Holding Company Status. Neither the Company nor any
of its Subsidiaries is (a) an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940 or (b) a "holding company"
as defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935.
SECTION 3.9. Taxes. Each of the Company and its Subsidiaries has timely filed or
caused to be filed all Tax returns and reports required to have been filed and
has paid or caused to be paid all Taxes required to have been paid by it, except
(a) Taxes that are being contested in good faith by appropriate proceedings and
for which the Company or such Subsidiary, as applicable, has set aside on its
books adequate reserves with respect thereto in accordance with GAAP and (b) to
the extent that the failure to do so could not reasonably be expected to result
in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to
occur that, when taken together with all other ERISA Events for which liability
is reasonably expected to occur, could reasonably be expected to result in a
Material Adverse Effect. The present value of all accumulated benefit
obligations under each Plan (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the date of
the most recent financial statements reflecting such amounts, exceed by more
than $250,000 the fair market value of the assets of such Plan, and the present
value of all accumulated benefit obligations of all underfunded Plans (based on
the assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than $250,000 the fair market value of
the assets of all such underfunded Plans.
SECTION 3.11. Disclosure. The Company has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse
-105-
Effect. None of the SEC Reports (as defined hereafter) and none of the reports,
financial statements, certificates or other information furnished by or on
behalf of the Company and the Subsidiaries to the Administrative Agent or any
Lender in connection with the negotiation of this Agreement or delivered
hereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary, in the aggregate, to make the statements therein, in the light of the
circumstances under which they were made, not misleading, provided that, with
respect to projected financial information, the Company represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
SECTION 3.12. Insurance. The insurance policies and programs in effect as of the
Closing Date and thereafter with respect to the Property, assets and business of
the Company and its Subsidiaries are in compliance with Section 5.5.
SECTION 3.13. Leases. Except as set forth on SCHEDULE 3.13, each Lease pursuant
to which the Company or any of its Subsidiaries or Joint Ventures is lessor of a
Property (the "COMPANY LEASES") constitutes a Triple Net Lease. Except as set
forth on SCHEDULE 3.13, all Company Leases are in full force and effect and no
party to any of such Company Leases is in default of any payment obligation
thereunder or in default thereunder in any other material respect.
SECTION 3.14. SEC Reports. As of the Closing Date, the Company has filed all
forms, reports, statements (including proxy statements) and other documents
(such filings by the Company are collectively referred to as the "SEC REPORTS"),
required to be filed by it with the Securities and Exchange Commission. The SEC
Reports, including all SEC Reports filed after the Effective Date and on or
prior to the date of this Agreement, (i) were or will be prepared in all
material respects in accordance with the requirements of the Securities Act of
1933, as amended, and the Securities Exchange Act of 1934, as amended, as the
case may be, and the rules and regulations of the Securities Exchange Commission
thereunder applicable to such SEC Reports at the time of filing thereof and (ii)
did not at the time they were filed, or will not at the time they are filed,
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
SECTION 3.15. [Reserved].
SECTION 3.16. Representations and Warranties in Loan Documents. All
representations and warranties made by the Company and each other Borrower in
the Loan Documents are true and correct in all material respects as of the date
of this
-106-
Agreement and as of any date that the Borrowers are expressly obligated to
confirm the same under this Agreement.
SECTION 3.17. Organizational Documents. The documents delivered pursuant to
Section 4.1 constitute, as of the Closing Date, true and correct copies of all
of the organizational documents of the Company and the Subsidiary Partnerships.
ARTICLE IV.
CONDITIONS
SECTION 4.1. Closing Date. The obligations of the Lenders to make Loans and of
the Issuing Bank to issue Letters of Credit hereunder shall not become effective
until the date on which each of the following conditions is satisfied (or waived
in accordance with Section 9.2):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement and all
other Loan Documents to which it is a party, signed on behalf of such
party or (ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of
each such Loan Document) that such party has signed a counterpart of this
Agreement and all other Loan Documents required to be delivered to the
Administrative Agent.
(b) The Administrative Agent shall have received (i) a favorable
written opinion (addressed to the Administrative Agent and the Lenders and
dated the Closing Date) of Xxxx Xxxxx Xxxx & XxXxxx LLP, counsel for the
Company and certain of the Subsidiary Partnerships, and (ii) a favorable
written opinion (addressed to the Administrative Agent and the Lenders and
dated the Closing Date) of Xxxxx & Xxxxxx LLP, special counsel to the
Company and certain of the Subsidiary Partnerships), substantially in the
form of EXHIBIT E-1 and EXHIBIT E-2, respectively, and covering such other
matters relating to the Company, this Agreement or the Transactions as the
Required Lenders shall reasonably request. The Company hereby requests
such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of the
Company and its Affiliates, the authorization of the Transactions and any
other legal matters relating to the Company and its Affiliates, this
Agreement or the Transactions, all in form and substance satisfactory to
the Administrative Agent and its counsel.
-107-
(d) The Administrative Agent shall have received a certificate,
dated the Closing Date and signed by the President, a Vice President or a
Financial Officer of the Company, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.2.
(e) No change in the business, assets, management, operations,
financial condition or prospects of the Company, the other Borrowers or
any of their respective Properties shall have occurred since September 30,
2000 which change, in the judgment of the Administrative Agent, will have
or is reasonably likely to have a Material Adverse Effect.
(f) Except as disclosed on SCHEDULE 4.1(F), since September 30,
2000, the Company has not and shall not have (i) entered into any (as
determined in good faith by the Administrative Agent) commitment or
transaction, including, without limitation, transactions for borrowings
and capital expenditures, which are not in the ordinary course of the
Company's business, (ii) declared or paid any dividends or other
distributions, (iii) established compensation or employee benefit plans,
or (iv) redeemed or issued any equity Securities.
(g) Since September 30, 2000, no agreement or license relating to
the business, operations or employee relations of the Company or any of
its Properties shall have been terminated, modified, revoked, breached or
declared to be in default, the termination, modification, revocation,
breach or default under which, in the reasonable judgment of the
Administrative Agent, would result in a Material Adverse Effect.
(h) The Administrative Agent shall have received evidence
satisfactory to it in its sole discretion that the waivers or consents
specified in SCHEDULE 3.3 have been duly obtained.
(i) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Closing Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrowers hereunder.
(j) The Administrative Agent shall have received a completed
Borrowing Base Certificate duly executed by the President, a Vice
President or a Financial Officer of the Company.
-108-
(k) The Listed Shares shall be listed for trading on the New York
Stock Exchange, Inc.
(l) The Administrative Agent shall have received (i) all
certificates and other information it shall reasonably request to verify
that all Eligible Projects and Unencumbered Eligible Projects satisfy the
requirements set forth in the definitions thereof and any other provisions
of this Agreement and (ii) current certificates of insurance as to all of
the insurance maintained by the Company and its Subsidiaries on the
Properties from the insurer or an independent insurance broker,
identifying insurers, types of insurance, insurance limits, and policy
terms, and such further information and certificates from the Company, its
insurers and insurance brokers as the Administrative Agent may reasonably
request.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
SECTION 4.2. Each Credit Event. The obligation of each Lender to make a Loan on
the occasion of any Borrowing, and of the Issuing Bank to issue, amend, renew or
extend any Letter of Credit (such Borrowing, issuance, amendment, renewal or
extension referred to herein as a "CREDIT EVENT"), is subject to the
satisfaction of the following conditions:
(a) The representations and warranties set forth in this Agreement and the
other Loan Documents shall be true and correct on and as of the date of such
Credit Event.
(b) At the time of and immediately after giving effect to such Credit
Event, no Default shall have occurred and be continuing.
(c) The Borrowers shall not have received written notice from the Required
Lenders that an event has occurred since the date of this Agreement which has
had, and continues to have, or is reasonable likely to have, a Material Adverse
Effect.
(d) The Administrative Agent shall have received a completed pro forma
Borrowing Base Certificate duly executed by the President, a Vice President or a
Financial Officer of the Company giving effect to such Credit Event, and the
Officer's Certificate as to pro forma financial covenant compliance required by
Section 6.1(k).
(e) No law, regulation or order of any Governmental Authority shall
prohibit, enjoin or restrain any Lender from making such Borrowing or
-109-
participating in the issuance, amendment, renewal or extension of such Letter of
Credit, as reasonably determined by such Lender.
Each Credit Event shall be deemed to constitute a representation and
warranty by the Borrowers on the date thereof as to the matters specified in
paragraphs (a) and (b) of this Section.
ARTICLE V.
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal of
and interest on each Loan and all fees payable hereunder shall have been paid in
full and all Letters of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, the Company and each of the other
Borrowers covenant and agree with the Lenders that:
SECTION 5.1. Financial Statements and Other Information. The Company will
furnish to the Administrative Agent and each Lender:
(a) Quarterly Reports.
(i) Company Quarterly Financial Reports. As soon as practicable, and in
any event within forty-five (45) days after the end of each fiscal quarter in
each fiscal year (other than the last fiscal quarter in each fiscal year), the
Financial Statements of the Company and its subsidiaries on Form 10-Q as at the
end of such period and a report setting forth in comparative form the
corresponding figures for the corresponding period of the previous fiscal year,
certified by a Financial Officer of the Company as fairly presenting the
consolidated and, for so long as such statements are prepared in the ordinary
course of business, consolidating, financial position of the Company and its
Subsidiaries as at the date indicated and the results of their operations and
cash flow for the period indicated in accordance with GAAP, subject to normal
quarterly adjustments.
(ii) Quarterly Compliance Certificates. Together with each delivery of any
quarterly report pursuant to paragraph (a)(i) of this Section 5.1, an Officer's
Certificate of the Company (the "QUARTERLY COMPLIANCE CERTIFICATES"), signed by
a Financial Officer of the Company representing and certifying (1) that the
Financial Officer of the Company signatory thereto has reviewed the terms of the
Loan Documents, and has made, or caused to be made, under his/her supervision, a
review in reasonable detail of the Transactions and consolidated and, for so
long as such statements are prepared in the ordinary course of business,
consolidating financial condition
-110-
of the Company and its Subsidiaries during the fiscal quarter covered by such
reports, that such review has not disclosed the existence during or at the end
of such fiscal quarter, and that such officer does not have knowledge of the
existence as at the date of such Officer's Certificate, of any condition or
event which constitutes a Default or mandatory prepayment event, or, if any such
condition or event existed or exists, specifying the nature and period of
existence thereof and what action the Company of any of its Subsidiaries has
taken, is taking and proposes to take with respect thereto, (2) the calculations
(with such specificity as the Administrative Agent may reasonably request) for
the period then ended which demonstrate compliance with the covenants and
financial ratios set forth in Article VI and, when applicable, that no Event of
Default described in Section 7.1 exists, (3) a schedule of the Company's
outstanding Indebtedness, including the amount, maturity, interest rate and
amortization requirements, as well as such other information regarding such
Indebtedness as may be reasonably requested by the Administrative Agent, (4) a
schedule of Total Adjusted EBITDA, (5) a schedule of Adjusted Unencumbered NOI,
and (6) calculations, in the form of EXHIBIT F attached hereto, evidencing
compliance with each of the financial covenants set forth in Article VI.
(iii) Quarterly Borrowing Base Certificate. As soon as available and in
any event within 30 days after the end of each fiscal quarter of the Company, a
completed Borrowing Base Certificate executed by a Financial Officer of the
Company, as of the last day of such quarter.
(b) Annual Reports.
(i) Company Financial Statements. As soon as practicable, and in any event
within ninety (90) days after the end of each fiscal year, (i) the Financial
Statements of the Company and its Subsidiaries on Form 10-K as at the end of
such fiscal year and a report setting forth in comparative form the
corresponding figures from the consolidated Financial Statements of the Company
and its Subsidiaries for the prior fiscal year; (ii) a report with respect
thereto of PricewaterhouseCoopers LLP or other independent certified public
accountants acceptable to the Administrative Agent, which report shall be
unqualified and shall state that such financial statements fairly present the
consolidated and, for so long as such statements are prepared in the ordinary
course of business, consolidating financial position of each of the Company and
its Subsidiaries as at the dates indicated and the results of their operations
and cash flow for the periods indicated in conformity with GAAP applied on a
basis consistent with prior years (except for changes with which
PricewaterhouseCoopers LLP or any such other independent certified public
accountants, if applicable, shall concur and which shall have been disclosed in
the notes to such financial statements)
-111-
(which report shall be subject to the confidentiality limitations set forth
herein); and (iii) in the event that the report referred to in clause (ii) above
is qualified, a copy of the management letter or any similar report delivered to
the Company or to any officer or employee thereof by such independent certified
public accountants in connection with such financial statements. The
Administrative Agent and each Lender (through the Administrative Agent) may,
with the consent of the Company (which consent shall not be unreasonably
withheld), communicate directly with such accountants, with any such
communication to occur together with a representative of the Company, at the
expense of the Administrative Agent (or the Lender requesting such
communication), upon reasonable notice and at reasonable times during normal
business hours.
(ii) Annual Compliance Certificates. Together with each delivery of any
annual report pursuant to clause (i) of this Section 5.1(b), Officer's
Certificates of the Company (the "ANNUAL COMPLIANCE CERTIFICATE" and,
collectively with the Quarterly Compliance Certificate, the "COMPLIANCE
CERTIFICATES"), signed by the Company's Financial Officer, representing and
certifying (1) that the officer signatory thereto has reviewed the terms of the
Loan Documents, and has made, or caused to be made under his/her supervision, a
review in reasonable detail of the Transactions and consolidated and, for so
long as such statements are prepared in the ordinary course of business,
consolidating financial condition of the Company and its Subsidiaries, during
the accounting period covered by such reports, that such review has not
disclosed the existence during or at the end of such accounting period, and that
such officer does not have knowledge of the existence as at the date of such
Officer's Certificate, of any condition or event which constitutes a Default or
mandatory prepayment event, or, if any such condition or event existed or
exists, specifying the nature and period of existence thereof and what action
the Company or any of its Subsidiaries has taken, is taking and proposes to take
with respect thereto, (2) the calculations (with such specificity as the
Administrative Agent may reasonably request) for the period then ended which
demonstrate compliance with the covenants and financial ratios set forth in
Article VI and, when applicable, that no Event of Default described in Section
7.1 exists, (3) a schedule of the Company's outstanding Indebtedness including
the amount, maturity, interest rate and amortization requirements, as well as
such other information regarding such Indebtedness as may be reasonably
requested by the Administrative Agent, (4) a schedule of Total Adjusted EBITDA,
(5) a schedule of Adjusted Unencumbered NOI, and (6) calculations, in the form
of EXHIBIT F attached hereto, evidencing compliance with each of the financial
covenants set forth in Article VI hereof.
-112-
(c) Tenant Bankruptcy Reports. As soon as practicable, and in any event
within ninety (90) days after the end of each fiscal year, a written report, in
form reasonably satisfactory to the Administrative Agent, of all bankruptcy
proceedings filed by or against any tenant of any of the Projects, which tenant
occupies two percent (2%) or more of the gross leasable area in the Projects in
the aggregate. The Company shall deliver to the Administrative Agent and the
Lenders, promptly upon the Company's learning thereof, notice of any bankruptcy
proceedings filed by or against, or the cessation of business or operations of,
any tenant of any of the Projects which tenant occupies two percent (2%) or more
of the gross leasable area in the Projects in the aggregate.
(d) Concurrently with any delivery of financial statements under clause
(b) above, a certificate of the accounting firm that reported on such financial
statements stating whether they obtained knowledge during the course of their
examination of such financial statements of any Default (which certificate may
be limited to the extent required by accounting rules or guidelines).
(e) Promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Company or any Subsidiary, or compliance with the terms of this Agreement, as
the Administrative Agent may reasonably request including without limitation,
tax returns, title reports, insurance certificates and environmental site
assessments.
(f) Within 45 days after the end of each fiscal quarter of the Company, a
reasonably detailed description of each acquisition of any Real Property by the
Consolidated Businesses or any Joint Venture made during such preceding calendar
quarter, all certified by a Financial Officer.
SECTION 5.2. Notices of Material Events. (a) The Company will furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(i) the occurrence of any Default;
(ii) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting
the Company or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result to a Material Adverse Effect;
(iii) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be
-113-
expected to result in liability of the Company and its Subsidiaries in an
aggregate amount exceeding $250,000; and
(iv) the receipt or any notice or the occurrence of any event that
could reasonably be expected to result in an Environmental Liability of
the Company and its Subsidiaries in an aggregate amount exceeding
$1,000,000; and
(v) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
(b) The Company shall deliver to the Administrative Agent and the Lenders
written notice of each of the following events affecting the Company or its
Subsidiaries not less than five (5) Business Days prior to the occurrence
thereof: (i) a sale, transfer or other disposition of any Unencumbered Eligible
Project, (ii) a sale, transfer or other disposition of other assets, in a single
transaction or series of related transactions, for consideration in excess of
$50,000,000, (iii) an acquisition of assets, in a single transaction or series
of related transactions, for consideration in excess of $50,000,000, (iv) the
grant of a Lien securing obligations greater than $20,000,000 with respect to
any Unencumbered Eligible Project, and (v) the grant of a Lien with respect to
other assets, in a single transaction or series of related transactions, in
connection with Indebtedness aggregating an amount in excess of $50,000,000. In
addition, simultaneously with delivery of any such notice, the Company shall
deliver to the Administrative Agent a certificate of a Financial Officer
certifying that the Company is in compliance with this Agreement and the other
Loan Documents both on a historical basis and on a pro forma basis, exclusive of
the property sold, transferred or encumbered and inclusive of the property to be
acquired or the indebtedness to be incurred. To the extent such proposed
transaction would result in a failure to comply with the financial covenants set
forth herein, proceeds of such transaction (together with such additional
amounts as may be required), in an amount, as determined by the Administrative
Agent, equal to that which would be required to reduce the Obligations so that
Company will be in compliance with the covenants set forth herein upon the
consummation of the contemplated transaction, shall be paid by the Borrowers and
applied to prepay the Obligations.
(c) The Company shall promptly notify the Administrative Agent upon
obtaining knowledge of the bankruptcy or cessation of operations of any tenant
to which greater than two percent (2%) of the Company's share of annual base
rent is attributable.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Company setting forth
-114-
the details of the event or development requiring such notice and any action
taken or proposed to be taken with respect thereto.
SECTION 5.3. Existence; Conduct of Business. The Company will, and will cause
each of its Subsidiaries to, do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises material to the conduct of
its business. No Borrower will at any time cause or permit its certificate of
formation, limited liability company agreement, certificate of limited
partnership, partnership agreement, articles of incorporation, by-laws, or other
charter documents, as the case may be, to be modified, amended or supplemented
in any respect whatsoever, without, in each case, the express prior written
consent or approval of the Administrative Agent, if such changes would
materially adversely affect the rights of the Administrative Agent or the
Lenders hereunder or under any of the other Loan Documents; provided that if
such prior consent or approval is not required, such Borrower shall nonetheless
notify the Administrative Agent in writing promptly after such event.
SECTION 5.4. Payment of Obligations. The Company will, and will cause each of
its Subsidiaries to, pay its obligations, including Tax liabilities, that, if
not paid, could result in a Material Adverse Effect before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Company or
such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.5. Maintenance of Properties; Insurance. (a) The Company will, and
will cause each of its Subsidiaries to, keep and maintain (or cause to be kept
and maintained) all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted.
(b) The Company and its Subsidiaries will maintain, or will cause tenants
of Projects to maintain, with financially sound and reputable insurers,
insurance with respect to its properties and its business against general
liability, property casualty and such casualties and contingencies as shall be
commercially reasonable and in accordance with the customary and general
practices of businesses having similar operations and real estate portfolios in
similar geographic areas and in amounts, containing such terms, in such forms
and for such periods as may be reasonable and prudent for such businesses,
including without limitation, insurance policies and programs sufficient to
cover (i) the replacement value of the improvements at Projects owned by the
Company and its Subsidiaries (less commercially reasonable
-115-
deductible amounts) and (ii) liability risks associated with such ownership
(less commercially reasonable deductible amounts).
SECTION 5.6. Books and Records; Inspection Rights. The Company will, and will
cause each of its Subsidiaries to, keep proper books of record and account in
which full, true and correct entries are made of all dealings and transactions
in relation to its business and activities. The Company will, and will cause
each of its Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice, to visit and
inspect its properties, to examine and make extracts from its books and records,
and to discuss its affairs, finances and condition with its officers and
independent accountants, all at such reasonable times and as often as reasonably
requested.
SECTION 5.7. Compliance with Laws. The Company will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and orders of any
Governmental Authority applicable to it or its property, including all
Environmental Laws, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.8. Use of Proceeds and Letters of Credit. No Letters of Credit and no
part of the proceeds of any Loan will be used, whether directly or indirectly,
for any purpose that entails a violation of any of the Regulations of the Board,
including Regulations U and X. The proceeds of the Loans will be used only for
the purposes of:
(a) acquisition of Projects or Joint Venture Holdings;
(b) renovation of Properties owned by the Company or its
consolidated Subsidiaries;
(c) funding of TI Work and Tenant Allowances;
(d) financing expansions, renovations and new construction related
to Properties owned by the Company or its consolidated Subsidiaries;
(e) refinancing or repayment of existing or future Indebtedness for
borrowed money;
(f) working capital needs of the Company;
(g) investments in Mortgage Assets; and
(h) redemptions or purchases by the Company of Listed Shares.
-116-
SECTION 5.9. Company Status. The Company shall at all times (i) remain a
publicly traded company with securities listed on the New York Stock Exchange;
(ii) retain direct or indirect control of each of the Subsidiary Partnerships;
and (iii) retain 100% ownership of all other Borrowers hereunder.
SECTION 5.10. Additional Borrowers; Solvency of Borrowers. (a) If, after the
Closing Date, a Subsidiary that is not a Borrower acquires any Project
that then or thereafter would qualify under the definition of Unencumbered
Eligible Project if such Subsidiary were a Borrower, then the Company
shall cause such Subsidiary to become a Borrower under this Agreement and
to execute and deliver an instrument of adherence to this Agreement in
substantially the form of EXHIBIT I hereto.
(b) The Company and the other Borrowers are Solvent. The Company and
the other Borrowers each acknowledge that, subject to the indefeasible
payment and performance in full of the Obligations, the rights of
contribution among each of them are in accordance with applicable laws and
in accordance with each such Person's benefits under the Loans and this
Agreement.
(c) Other than during the continuance of a Default, at the request
of the Company following the delivery of the notice and certificate of a
Financial Officer in accordance with Section 5.2(b), a Borrower shall be
released by the Administrative Agent from its obligations as a borrower
hereunder if and when all of the Projects owned or ground-leased by such
Borrower shall cease (not thereby creating a Default) to be an
Unencumbered Eligible Project; provided the foregoing shall never permit
the release of the Company.
SECTION 5.11. Further Assurances. The Company and the other Borrowers will
cooperate with, and will cause each of the Subsidiaries to cooperate with, the
Administrative Agent and the Lenders and execute such further instruments and
documents as the Lenders or the Administrative Agent shall reasonably request to
carry out to their reasonable satisfaction the transactions contemplated by this
Agreement and the other Loan Documents.
SECTION 5.12. Distributions in the Ordinary Course. In the ordinary course of
business the Company causes all of its Subsidiaries to make transfers of net
cash and cash equivalents upstream to the Company, and the Company shall
continue to follow such ordinary course of business. The Company shall not make
net transfers of cash and cash equivalents downstream to its Subsidiaries except
in the ordinary course of business consistent with past practice.
SECTION 5.13. ERISA Compliance. The Borrowers shall, and shall cause each of the
Subsidiaries and ERISA Affiliates to, establish, maintain and operate all Plans
to comply
-117-
in all material respects with the provisions of ERISA, the Code, all other
applicable laws, and the regulations and interpretations thereunder and the
respective requirements of the governing documents for such Plans.
ARTICLE VI.
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of and
interest on each Loan and all fees payable hereunder have been paid in full and
all Letters of Credit have expired or terminated and all LC Disbursements shall
have been reimbursed, the Borrowers covenant and agree with the Lenders that:
SECTION 6.1. Indebtedness and Other Financial Covenants
(a) Indebtedness. As of the first day of each calendar quarter, (i)
Total Outstanding Indebtedness shall not exceed fifty-five percent (55%)
of Total Value, and (ii) the sum, without duplication, of (A) Secured
Indebtedness of the Company and of the Subsidiaries plus (B) Secured
Indebtedness of the Joint Ventures (with appropriate adjustments for
minority interests) allocable in accordance with GAAP to the Company or
any Subsidiary (with appropriate adjustments for minority interests) plus
(C) Indebtedness of the Subsidiaries which is permitted under clause (iv)
of the second sentence of Section 6.1(h), shall not exceed forty percent
(40%) of the Total Value.
(b) Minimum Combined Equity Value. The Combined Equity Value as of
the last day of each fiscal quarter shall be not less than $500,000,000,
plus an amount equal to eighty-five percent (85%) of the Fair Market Value
of all Net Offering Proceeds received by the Company after the Effective
Date.
(c) Minimum Consolidated Interest Coverage Ratio. As of the first
day of each calendar quarter for the immediately preceding calendar
quarter, the ratio of (i) the sum of Adjusted NOI for such preceding
calendar quarter, to (ii) Total Interest Expense for such quarter shall
not be less than 2.25 to 1.0.
(d) Minimum Unsecured Interest Coverage Ratio. As of the first day
of each calendar quarter, the ratio of (i) Adjusted Unencumbered NOI for
the preceding calendar quarter to (ii) Unsecured Interest Expense for the
preceding calendar quarter shall not be less than 2.5 to 1.0.
-118-
(e) Minimum Adjusted Unencumbered NOI. As of the first day of each
calendar quarter, Total Unsecured Outstanding Indebtedness shall not
exceed 55% of the sum of (i) Adjusted Unencumbered NOI in respect of
Unencumbered Eligible Projects owned for at least four fiscal quarters
prior to the date of determination for the immediately preceding four
fiscal quarters divided by .10; and (ii) for Unencumbered Eligible
Projects owned for less than four fiscal quarters at the date of
determination, the investment (at historical cost, without depreciation)
by the Company and its Subsidiaries (with appropriate adjustments for
minority interests).
(f) Minimum Fixed Charge Coverage Ratio. As of the first day of each
calendar quarter, the ratio of (i) Total Adjusted EBITDA for the preceding
calendar quarter, to (ii) Fixed Charges for the preceding calendar quarter
shall not be less than 2.0 to 1.0
(g) Maximum Dividend Payout Ratio. The Company shall not make any
Restricted Payment during any fiscal quarter, which, when added to all
Restricted Payments made during such fiscal quarter and the three
immediately preceding fiscal quarters, exceeds ninety percent (90%) of
Total Adjusted EBITDA for the four preceding fiscal quarters. For purposes
of this provision, "RESTRICTED PAYMENT" means (i) any dividend or other
distribution on any equity securities of the Company (except dividends
payable solely in equity securities of the Company or in rights to
subscribe for or purchase equity securities of the Company) or (ii) any
payment on account of the purchase, redemption, retirement or acquisition
of (a) any equity securities of the Company or (b) any option, warrant or
other right to acquire equity securities of the Company.
(h) Recourse Indebtedness. The Company will not create, incur,
assume or permit to exist any Secured Indebtedness other than (i)
Nonrecourse Indebtedness and (ii) Indebtedness that is recourse to the
Company in an aggregate amount not to exceed $25,000,000 outstanding at
any time. The Company will not permit any Subsidiary to, and no Subsidiary
shall, create, incur, assume or permit to exist any Indebtedness other
than (i) Indebtedness of any Subsidiary to the Company evidenced by a
promissory note (an "INTERCOMPANY NOTE") in the form of EXHIBIT G hereto,
(ii) Nonrecourse Indebtedness, (iii) Indebtedness of a Subsidiary (other
than a Subsidiary Partnership) to a Subsidiary (other than a Subsidiary
Partnership) and (iv) Indebtedness that is recourse to such Subsidiary,
but only if such Subsidiary is not a Borrower, was formed solely to own a
particular
-119-
Project, and does not engage in any business other than the ownership of
such Project.
(i) Leveraged Assets. Notwithstanding any other provision of this
Section 6.1, Lease Value, Non-Recourse Indebtedness, Adjusted NOI and
Adjusted EBITDA in respect of Leveraged Assets shall be excluded from the
calculations made pursuant Section 6.1(a) through (g), inclusive and the
definition of "Borrowing Base"; provided, that the exclusion of such
Leveraged Assets from such calculations shall in no event reduce the
amount of such Lease Value, Non-Recourse Indebtedness, Adjusted NOI and
Adjusted EBITDA by more than 10% of the amount of Lease Value,
Non-Recourse Indebtedness, Adjusted NOI and Adjusted EBITDA, as
applicable, that would have been derived had such Leveraged Assets not
been so excluded; and provided further, that, subject to the following
sentence, to the extent that a Leveraged Asset is excluded in accordance
with the foregoing, such Leveraged Asset shall be excluded for all
purposes of such calculations. For purposes of (i) the calculation set
forth in Section 6.1(c), Adjusted NOI attributable to Leveraged Assets,
reduced by the amount of all interest expense paid, accrued or capitalized
in respect of such Leveraged Assets, shall be included in the calculation
of total Adjusted NOI (such amount of Adjusted NOI from Leveraged Assets
(as so reduced by interest paid, accrued or capitalized in respect of such
Leveraged Assets) so included not to exceed 5% of total Adjusted NOI); and
(ii) the calculation set forth in Section 6.1(f), Adjusted EBITDA
attributable to Leveraged Assets, reduced by the amount of all interest
expense paid, accrued or capitalized in respect of such Leveraged Assets,
shall be included in the calculation of Total Adjusted EBITDA (such amount
of Adjusted EBITDA from Leveraged Assets (as so reduced by interest paid,
accrued or capitalized in respect of such Leveraged Assets) so included
not to exceed 5% of Total Adjusted EBITDA).
(j) Negative Pledge. From and after the date hereof, no Borrower
shall enter into or permit to exist, and the Company will not permit any
Subsidiary to enter into or permit to exist, and no Subsidiary shall enter
into or permit to exist, any agreement (i) containing any provision
prohibiting the creation or assumption of any Lien upon its properties
(other than mechanics liens or judgment liens not more than 30 days past
due and other than with respect to prohibitions on liens set forth in a
mortgage on a particular property), revenues or assets, whether now owned
or hereafter acquired, or (ii) restricting the ability of the Company or
any Borrower to amend or modify this Agreement or any other Loan Document,
or (iii) restricting
-120-
the ability of any Subsidiary to make or pay dividends or distributions to
the Company.
(k) Pro Forma Calculations. The Company shall comply with the
financial ratios set forth in this Section 6.1 as of the date of each
Credit Event. The Company shall recalculate the financial ratios by adding
the amount equal to the Indebtedness associated with such Credit Event to
the Indebtedness reflected on the most recently available financial
statements, and adding thereto any Indebtedness incurred since the date of
such financial statement and adding thereto the value of such assets
(determined at cost) acquired with such Indebtedness to Total Value. The
Company shall deliver an Officer's Certificate, signed by the Financial
Officer of the Company, certifying that the pro forma calculations as of
the date of such Credit Event demonstrate the Company's compliance with
the covenants and financial ratios set forth in this Section 6.1.
SECTION 6.2. Liens. No Borrower shall and the Company will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances;
(b) Liens with respect to Capital Leases of Equipment entered into
in the ordinary course of business of the Company pursuant to which the
aggregate Indebtedness under such Capital Leases does not exceed $50,000
for any Project; and
(c) Liens securing Secured Indebtedness, the incurrence of which is
not prohibited by Article VI.
SECTION 6.3. Fundamental Changes. (a) No Borrower shall, and the Company will
not permit any Subsidiary to, merge into or consolidate with any other Person,
or permit any other Person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of
transactions) all or substantially all of its assets, or all or substantially
all of the stock of any of its Subsidiaries (in each case, whether now owned or
hereafter acquired), or liquidate or dissolve, except (i) in connection with the
issuance, transfer, conversion or repurchase of limited liability company
interests in the Company, (ii) if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing, any
Person may merge into the Company or a Subsidiary in a transaction in which the
Company or a Subsidiary is the surviving corporation, (iii) any Subsidiary may
merge with any other Subsidiary; provided, that if any Subsidiary shall be
merged with a Subsidiary Partnership, the surviving Subsidiary shall
-121-
be the Subsidiary Partnership or shall become a Borrower under this Agreement,
and (iv) the sale of stock of a Subsidiary (other than a Subsidiary
Partnership), subject to the requirements set forth in Section 5.2(b).
(b) No Borrower shall, and the Company will not permit any of its
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Company and its Subsidiaries on the date
of execution of this Agreement and businesses reasonably related thereto.
SECTION 6.4. Investments, Loans, Advances, Guarantees and Acquisitions. No
Borrower shall, and the Company will not permit any of its Subsidiaries to,
purchase, hold or acquire (including pursuant to any merger with any Person that
was not a wholly owned Subsidiary prior to such merger) any capital stock,
evidences of indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to exist
any investment or any other interest in any other Person, or purchase or
otherwise acquire (in one transaction or a series of transactions) any assets of
any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments in Real Property;
(c) investments (including loans and advances) in or to the
Subsidiaries;
(d) investments in Joint Ventures which are not Subsidiaries;
(e) investments in notes secured by mortgages on any Real Property
of any Person;
(f) investments in Real Property under construction;
(g) investments in Permitted REIT Investments; provided that
aggregate amount of investments in Permitted REIT Investments
shall not exceed $50,000,000 (valued at historical cost);
(h) investments in Marketable Securities; provided that the
aggregate amount of investments in Marketable Securities shall
not exceed $50,000,000;
-122-
(i) investments in securities of tenants under Leases, including
any capital stock, warrants, stock options or other equity
securities of such tenants and any underlying security
thereof, acquired in connection with or arising out of a
leasing transaction with such tenant and any subsequent
exercise of such warrant or stock options and the ownership of
such underlying security thereof;
(j) Guarantees by the Company or one of its Subsidiaries of the
Indebtedness or other obligations of a wholly-owned
Subsidiary, so long as the Indebtedness under such Guarantees
is not otherwise prohibited by this Article VI (excluding this
Section 6.4);
(k) loans and advances by the Company to employees for moving,
travel and other business expenses and Guarantees by the
Company of the obligations of Joint Ventures and third
parties; provided that the aggregate outstanding amount of
such loans, advances and Guarantees does not exceed
$25,000,000 at any time; and
(l) advances or distributions not prohibited by Section 5.12.
Notwithstanding the foregoing, the investments set forth above shall be limited
in the following manner: the aggregate investments of the types set forth in
clauses (d) through (f) (other than, in the case of clause (f), Real Property
under construction that is being built to suit a tenant under an Eligible Lease,
which shall be without limitation), shall not exceed 15% of Total Value for any
single type of such investment or 20% of Total Value for all such types of
investments.
SECTION 6.5. Hedging Agreements. No Borrower shall, and the Company will not
permit any of its Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Company or any Subsidiary is exposed in the conduct
of its business or the management of its liabilities.
SECTION 6.6. ERISA. The Borrowers shall not, and shall not permit any of the
Subsidiaries or ERISA Affiliates to:
(a) engage in any prohibited transaction described in Sections 406
of ERISA or 4975 of the Code for which a statutory or
-123-
class exemption is not available or a private exemption has not been
previously obtained from the United States Department of Labor, except to
the extent engaging in such transaction would not have a Material Adverse
Effect;
(b) permit to exist any accumulated funding deficiency (as defined
in Sections 302 of ERISA and 412 of the Code), with respect to any Plan,
whether or not waived;
(c) fail to pay timely required contributions or annual installments
due with respect to any waived funding deficiency to any Plan;
(d) terminate any Plan which would result in any liability of any
Borrower or any ERISA Affiliate under Title IV of ERISA;
(e) fail to make any contribution or payment to any Multiemployer
Plan which any Borrower or any ERISA Affiliate may be required to make
under any agreement relating to such Multiemployer Plan, or any law
pertaining thereto, except to the extent such failure would not have a
Material Adverse Effect;
(f) fail to pay any required installment or any other payment
required under Section 412 of the Code on or before the due date for such
installment or other payment; or
(g) amend a Plan resulting in an increase in current liability for
the plan year such that any Borrower or any ERISA Affiliate is required to
provide security to such Plan under Section 401(a)(29) of the Code.
SECTION 6.7. Margin Regulations; Securities Laws. Neither the Company nor any of
its Subsidiaries shall use all or any portion of the proceeds of any credit
extended under this Agreement to purchase or carry Margin Stock.
SECTION 6.8. Transactions with Affiliates. Neither the Company nor any of its
Subsidiaries shall directly or indirectly enter into or permit to exist any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with any holder or
holders of more than five percent (5%) of any class of equity securities of the
Company, or with any Affiliate of the Company which is not its Subsidiary, on
terms that are determined by the board of directors of the Company to be less
favorable to the Company or any of its Subsidiaries, as applicable, than those
that might be obtained in an arm's length transaction at the time from Persons
who are not such a holder or Affiliate. Nothing contained in this Section 6.8
shall
-124-
prohibit (a) increases to compensation and benefits for officers and employees
of the Company or any of its Subsidiaries which are customary in the industry or
consistent with the past business practice of the Company or such Subsidiary,
provided that no Default has occurred and is continuing; (b) payment of
customary partners' indemnities; (c) performance of any obligations arising
under the Loan Documents; and (d) any Restricted Payment permitted by Section
6.1.
ARTICLE VII.
EVENTS OF DEFAULT
SECTION 7.1. If any of the following events ("EVENTS OF DEFAULT") shall occur:
(a) any Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement, when and as the same shall
become due and payable, and such failure shall continue unremedied for a
period of three Business Days;
(c) any representation or warranty made or deemed made by or on
behalf of the Company or any Subsidiary in or in connection with this
Agreement or any other Loan Document or any amendment or modification
hereof or thereof or waiver hereunder or thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to
or to connection with this Agreement or any other Loan Document or any
amendment or modification hereof or thereof or waiver hereunder or
thereunder, shall prove to have been incorrect when made or deemed made or
furnished;
(d) the Company or any Subsidiary shall fail to observe or perform
any covenant, condition or agreement contained in Article V or in Article
VI or any covenant, condition or agreement in any Loan Document that
becomes effective upon an Event of Default;
(e) the Company or any Subsidiary shall fail to observe or perform
any covenant, condition or agreement contained in this Agreement or any
other Loan Document (other than those specified in clause (a), (b) or (d)
of this Article), and such failure shall continue unremedied for a period
of 30 days after notice thereof from the
-125-
Administrative Agent to the Company (which notice will be given at the
request of any Lender);
(f) the Company or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of
any Material Indebtedness, when and as the same shall become due and
payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; provided that this clause (g)
shall not apply to Secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such
Indebtedness unless prohibited by this Agreement;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Company or any Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company or any
Subsidiary or for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be
entered;
(i) the Company or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or
other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to
the institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in clause (h) of this Article, (iii)
apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company or any
Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general
-126-
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) the Company or any Subsidiary shall become unable, admit in
writing or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $3,000,000 (excluding judgments entered in respect of
Nonrecourse Indebtedness and judgments entered in respect of Indebtedness
permitted under clause (iv) of the second sentence of Section 6.1(h))
shall be rendered against the Company, any Subsidiary or any combination
thereof and the same shall remain undischarged for a period of 30
consecutive days during which execution shall not be effectively stayed,
or any action shall be legally taken by a judgment creditor to attach or
levy upon any assets of the Company or any Subsidiary to enforce any such
judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that
have occurred, could reasonably be expected to result in liability of the
Company or any Subsidiary in an aggregate amount exceeding (i) $250,000 in
any year or (ii) $500,000 for all periods;
(m) a Change in Control shall occur;
(n) an event shall occur which has a Material Adverse Effect; or
(o) the Company shall merge or liquidate with or into any other
Person and, as a result thereof and after giving effect thereto, (i) the
Company is not the surviving Person or (ii) such merger or liquidation
would effect an acquisition of or investment in any Person not otherwise
permitted under the terms of this Agreement;
then, and in every such event (other than an event with respect to any of the
Borrowers described in clause (h) or (i) of this Article), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Borrowers,
take one or more of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable
in whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other
-127-
obligations of the Borrowers accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrowers, (iii) require cash collateral
as contemplated by Section 2.6(j), and (iv) enforce any rights and exercise any
rights and remedies available under any Loan Document or otherwise; and in the
case of any event with respect to any of the Borrowers described in clause (h)
or (i) of this Article, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest thereon
and all fees and other obligations of the Borrowers accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrowers.
ARTICLE VIII.
THE AGENTS
SECTION 8.1. Each of the Lenders and the Issuing Bank hereby irrevocably
appoints the Administrative Agent, the Documentation Agent and the Syndication
Agent as its agents, in each agent's capacity as such agent, and authorizes the
Administrative Agent, the Documentation Agent and the Syndication Agent to take
such actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent, the Documentation Agent and the Syndication Agent by the
terms hereof, together with such actions and powers as are reasonably incidental
thereto.
The bank serving as the Administrative Agent, the Documentation Agent and
the Syndication Agent, as the case may be, hereunder shall have the same rights
and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Administrative Agent, the Documentation Agent and
the Syndication Agent, and such bank and its Affiliates may accept deposits
from, lend money to and generally engage in any kind of business with the
Company or any Subsidiary or other Affiliate thereof as if it were not the
Administrative Agent, the Documentation Agent and the Syndication Agent
hereunder.
The Administrative Agent, the Documentation Agent or the Syndication
Agent, as the case may be, shall not have any duties or obligations except those
expressly set forth herein. Without limiting the generality of the foregoing,
(a) the Administrative Agent, the Documentation Agent or the Syndication Agent,
as the case may be, shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing, (b) the
Administrative Agent, the Documentation Agent or the Syndication Agent, as the
case may be, shall not have any duty to take any discretionary action or
exercise any discretionary powers, except
-128-
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent, the Documentation Agent or the Syndication Agent, as the
case may be, is required to exercise in writing by the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.2), and (c) except as expressly set forth
herein, the Administrative Agent, the Documentation Agent or the Syndication
Agent, as the case may be, shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Company or
any of its Subsidiaries that is communicated to or obtained by the bank serving
as Administrative Agent, the Documentation Agent or the Syndication Agent, as
the case may be, or any of its Affiliates in any capacity. The Administrative
Agent, the Documentation Agent or the Syndication Agent, as the case may be,
shall not be liable for any action taken or not taken by it with the consent or
at the request of the Required Lenders (or such other number or percentage of
the Lenders as shall be necessary under the circumstances as provided in Section
9.2) or in the absence of its own gross negligence or willful misconduct. The
Administrative Agent, the Documentation Agent or the Syndication Agent, as the
case may be, shall be deemed not to have knowledge of any Default unless and
until written notice thereof is given to the Administrative Agent by the
Borrowers or a Lender, and the Administrative Agent, the Documentation Agent or
the Syndication Agent, as the case may be, shall not be responsible for or have
any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents
of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent,
the Documentation Agent or the Syndication Agent, as the case may be.
The Administrative Agent, the Documentation Agent or the Syndication
Agent, as the case may be, shall be entitled to rely upon, and shall not incur
any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent,
the Documentation Agent or the Syndication Agent, as the case may be, also may
rely upon any statement made to it orally or by telephone and believed by it to
be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent, the Documentation Agent or the Syndication
Agent, as the case may be, may
-129-
consult with legal counsel (who may be counsel for the Company), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it to accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent, the Documentation Agent or the Syndication
Agent, as the case may be, may perform any and all its duties and exercise its
rights and powers by or through any one or more sub-agents appointed by the
Administrative Agent, the Documentation Agent or the Syndication Agent, as the
case may be. The Administrative Agent and any such sub-agent may perform any and
all its duties and exercise its rights and powers through their respective
Related Parties. The exculpatory provisions of the preceding paragraphs shall
apply to any such sub-agent and to the Related Parties of the Administrative
Agent, the Documentation Agent or the Syndication Agent, as the case may be, and
any such sub-agent, and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well as
activities as Administrative Agent, Documentation Agent or Syndication Agent, as
the case may be.
Subject to the appointment and acceptance of a successor Administrative
Agent, Documentation Agent or Syndication Agent, as the case may be, as provided
in this paragraph, (a) the Administrative Agent, the Documentation Agent or the
Syndication Agent may resign at any time by notifying the Lenders, the Issuing
Bank and the Company and (b) the Required Lenders may remove the Administrative
Agent in the event of the Administrative Agent's gross negligence or willful
misconduct. Upon any such resignation or removal, the Required Lenders shall
have the right, in consultation with the Company (so long as no Event of Default
has occurred and is continuing), to appoint a successor. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent,
Documentation Agent or Syndication Agent, as the case may be, gives notice of
its resignation, then the retiring Administrative Agent, Documentation Agent or
Syndication Agent, as the case may be, may, on behalf of the Lenders and the
Issuing Bank, appoint a successor Administrative Agent, Documentation Agent or
Syndication Agent, as the case may be, which shall be a bank with an office in
New York, New York, or an Affiliate of any such bank; provided that such
successor Administrative Agent shall have total assets of not less than
$10,000,000,000. Upon the acceptance of its appointment as Administrative Agent,
Documentation Agent or Syndication Agent, as the case may be, hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent,
Documentation Agent or Syndication Agent, as the case may be, and the retiring
Administrative
-130-
Agent, Documentation Agent or Syndication Agent, as the case may be, shall be
discharged from its duties and obligations hereunder. The fees payable by the
Company to a successor Administrative Agent, Documentation Agent or Syndication
Agent, as the case may be, shall be the same as those payable to its predecessor
unless otherwise agreed between the Company and such successor. After the
resignation of the Administrative Agent, Documentation Agent or Syndication
Agent, as the case may be, the provisions of this Article and Section 9.3 shall
continue in effect for the benefit of such retiring Administrative Agent,
Documentation Agent or Syndication Agent, as the case may be, its sub-agents and
their respective Related Parties in respect of any actions taken or omitted to
be taken by any of them while it was acting as Administrative Agent,
Documentation Agent or Syndication Agent, as the case may be.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent, the Documentation Agent or the Syndication Agent,
as the case may be, or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent, the
Documentation Agent or the Syndication Agent, as the case may be, or any other
Lender and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking
action under or based upon this Agreement, any related agreement or any document
furnished hereunder or thereunder.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1. Notices. Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other
communications provided for herein shall be, in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or
sent by telecopy, as follows:
(a) if to the Company or any Borrower, to it at W. P. Xxxxx & Co.
LLC, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxx X.
Xxxx, Chief Financial Officer (Telecopy No. 212-977-3022);
(b) if to the Administrative Agent, to The Chase Manhattan Bank, One
Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxx
Xx Xxxxx, Loan and Agency Services (Telecopy No. (000) 000-0000), with
copies to The Chase Manhattan Bank, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxx X. Xxxxxxxxxx
-131-
(Telecopy No. (000) 000-0000), and The Chase Manhattan Bank, 000 Xxxx
Xxxxxx, Xxx Xxxx 00000, Attention of Xxxxxxx X. Xxxxx, Esq. (Telecopy No
(000) 000-0000);
(c) if to the Issuing Bank, to The Chase Manhattan Bank, One Chase
Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx
Xx Xxxxx, Loan and Agency Services (Telecopy No. (000) 000-0000); and
(d) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.2. Waivers; Amendments. (a) No failure or delay by the Administrative
Agent, the Issuing Bank or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Issuing Bank and the Lenders hereunder are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of this Agreement or consent to any departure by the
Company or any Borrower therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) of this Section, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. Without limiting the generality of the foregoing, the making of
a Loan or issuance of a Letter of Credit shall not be construed as a waiver of
any Default, regardless of whether the Administrative Agent, any Lender or the
Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Borrowers and the Required Lenders or by the Borrowers and the
Administrative Agent with the consent of the Required Lenders; provided that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of
-132-
payment of the principal amount of any Loan or LC Disbursement, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.18(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, or (v)
change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent, the
Documentation Agent, the Syndication Agent, or the Issuing Bank hereunder
without, in addition, the prior written consent of the Administrative Agent, the
Documentation Agent, the Syndication Agent, or the Issuing Bank, as the case may
be; provided, further, (x) that SCHEDULE 3.13 may be amended by the Company
without the consent of the Required Lenders, solely to update such schedule to
include or exclude Leases listed therein which constitute or cease to constitute
Triple Net Leases, and (y) SCHEDULES 3.2 and 4.1(F) may be amended by the
Company without the consent of the Required Lenders solely to update the
information contained therein. Notwithstanding the foregoing, no amendment,
waiver or consent shall, unless in writing and signed by the Designating Lender
on behalf of its Designated Bank affected thereby, (a) subject such Designated
Bank to any additional obligations, (b) reduce the principal of, interest on, or
other amounts due with respect to, the Designated Bank Note made payable to such
Designated Bank, or (c) postpone any date fixed for any payment of principal of,
or interest on, or other amounts due with respect to, the Designated Bank Note
made payable to the Designated Bank.
SECTION 9.3. Expenses; Indemnity; Damage Waiver. (a) The Borrowers shall pay (i)
all reasonable out-of-pocket expenses incurred by the Administrative Agent and
its Affiliates, including the reasonable fees, charges and disbursements of
counsel for the Administrative Agent, in connection with the syndication of the
credit facilities provided for herein, the preparation and administration of
this Agreement or any amendments, modifications or waivers of the provisions
hereof (whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing
Bank in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank or
any Lender, including the fees, charges and disbursements of any counsel for the
Administrative Agent, the Issuing Bank or any Lender, in connection with the
enforcement or protection of its rights
-133-
in connection with this Agreement, including its rights under this Section, or
in connection with the Loans made or Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Borrowers shall indemnify the Administrative Agent, the Issuing
Bank and each Lender, and each Related Party of any of the foregoing Persons
(each such Person being called an "INDEMNITEE") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the Transactions or any other transactions contemplated hereby, (ii) any Loan
or Letter of Credit or the use of the proceeds therefrom (including any refusal
by the Issuing Bank to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged presence
or release of Hazardous Materials on or from any property owned or operated by
the Company or any of its Subsidiaries, or any Environmental Liability related
in any way to the Company or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses resulted from the gross
negligence or willful misconduct of such Indemnitee.
(c) To the extent that any Borrower fails to pay any amount required to be
paid by it to the Administrative Agent or the Issuing Bank under paragraph (a)
or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or the Issuing Bank, as the case may be, such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent or the Issuing Bank in its capacity as such.
(d) To the extent permitted by applicable law, the Borrowers shall not
assert, and hereby waive, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as
-134-
opposed to direct or actual damages) arising out of, in connection with, or as a
result of, this Agreement or any agreement or instrument contemplated hereby,
the Transactions, any Loan or Letter of Credit or the use of the proceeds
thereof.
(e) All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 9.4. Successors and Assigns. (a) The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any Affiliate of
the Issuing Bank that issues any Letter of Credit), except that the Borrowers
may not assign or otherwise transfer any of their rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrowers without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of the Issuing
Bank that issues any Letter of Credit) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Issuing
Bank and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it); provided that (i) except in
the case of an assignment to a Lender or a Lender Affiliate, each of the
Borrowers (so long as no Event of Default has occurred and is continuing) and
the Administrative Agent (and, in the case of an assignment of all or a portion
of a Commitment or any Lender's obligations in respect of its LC Exposure, the
Issuing Bank) must give their prior written consent to such assignment (which
consent shall not be unreasonably withheld), (ii) except in the case of an
assignment to a Lender or a Lender Affiliate or an assignment of the entire
remaining amount of the assigning Lender's Commitment, the amount of the
Commitment of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $5,000,000 unless
each of the Company (so long as no Event of Default has occurred and is
continuing) and the Administrative Agent otherwise consent, (iii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement, except that this
clause (iii) shall not apply to rights in respect of outstanding Competitive
Loans, (iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an
-135-
Assignment and Acceptance, together with a processing and recordation fee of
$3,500, and (v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire. Subject to acceptance and
recording thereof pursuant to paragraph (d) of this Section, from and after the
effective date specified in each Assignment and Acceptance the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement arising from and after the date of such
assignment (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.15, 2.16, 2.17 and 9.3). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section. If the consent of the Company or any of the other
Borrowers is required pursuant to this Section 9.4, and the Company or such
Borrower, as the case may be, does not respond to the Administrative Agent's
request for consent within five Business Days of such request, the consent shall
be deemed given.
(c) The Administrative Agent, acting for this purpose as an agent of the
Borrowers, shall maintain at one of its offices a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and principal amount of the
Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof
from time to time (the "REGISTER"). The entries in the Register shall be
conclusive, and the Borrowers, the Administrative Agent, the Issuing Bank and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Company, the Issuing Bank and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such
-136-
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of or notice to the Borrowers, the
Administrative Agent or the Issuing Bank, sell participations to one or more
banks or other entities (a "PARTICIPANT") in all or a portion of such Lender's
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrowers, the Administrative Agent, the Issuing
Bank and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver described in the first proviso to
Section 9.2(b) that affects such Participant. Subject to paragraph (f) of this
Section, the Borrowers agree that each Participant shall be entitled to the
benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 9.8 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.18(c) as though it were a
Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.15 or 2.17 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Company's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.17 unless the Company
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Company, to comply with Section 2.17(e) as though
it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment
-137-
of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(h) Any Lender (each, a "DESIGNATING LENDER") may at any time designate
one Designated Bank to fund Competitive Loans on behalf of such Designating
Lender subject to the terms of this Section 9.4(h) and the provisions in 9.4(b)
and (e) shall not apply to such designation. No Lender may designate more than
one (1) Designated Bank. The parties to each such designation shall execute and
deliver to the Administrative Agent for its acceptance a Designation Agreement.
Upon such receipt of an appropriately completed Designation Agreement executed
by a Designating Lender and a designee representing that it is a Designated
Bank, the Administrative Agent will accept such Designation Agreement and will
give prompt notice thereof to the Company, whereupon, (i) the Borrowers shall
execute and deliver to the Designating Bank a Designated Bank Note payable to
the order of the Designated Bank, (ii) from and after the effective date
specified in the Designation Agreement, the Designated Bank shall become a party
to this Agreement with a right to make Competitive Loans on behalf of its
Designating Lender pursuant to Section 2.4 after the Borrowers have accepted a
Competitive Loan (or portion thereof) of such Designating Lender, and (iii) the
Designated Bank shall not be required to make payments with respect to any
obligations in this Agreement except to the extent of excess cash flow of such
Designated Bank which is not otherwise required to repay obligations of such
Designated Bank which are then due and payable; provided, however, that
regardless of such designation and assumption by the Designated Bank, the
Designating Lender shall be and remain obligated to the Borrowers, the
Administrative Agent, the Syndication Agent, the Documentation Agent and the
other Lenders for each and every of the obligations of the Designating Lender
and its related Designated Bank with respect to this Agreement, including,
without limitation, any indemnification obligations hereunder and any sums
otherwise payable to the Borrowers by the Designated Bank. Each Designating
Lender shall serve as the administrative agent of the Designated Bank and shall
on behalf of, and to the exclusion of, the Designated Bank: (i) receive any and
all payments made for the benefit of the Designated Bank and (ii) give and
receive all communications and notices and take all actions hereunder,
including, without limitation, votes, approvals, waivers, consents and
amendments under or relating to this Agreement and the other Loan Documents. Any
such notice, communication, vote, approval, waiver, consent or amendment shall
be signed by the Designating Lender as administrative agent for the Designated
Bank and shall not be signed by the Designated Bank on its own behalf but shall
be binding on the Designated Bank to the same extent as if actually signed by
the Designated Bank. The Borrowers, the Administrative
-138-
Agent, the Documentation Agent, the Syndication Agent and Lenders may rely
thereon without any requirement that the Designated Bank sign or acknowledge the
same. No Designated Bank may assign or transfer all or any portion of its
interest hereunder or under any other Loan Document, other than assignments to
the Designating Lender which originally designated such Designated Bank.
SECTION 9.5. Survival. All covenants, agreements, representations and warranties
made by the Borrowers herein and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement shall be considered
to have been relied upon by the other parties hereto and shall survive the
execution and delivery of this Agreement and the making of any Loans and
issuance of any Letters of Credit, regardless of any investigation made by any
such other party or on its behalf and notwithstanding that the Administrative
Agent, the Issuing Bank or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid or any Letter of Credit
is outstanding and so long as the Commitments have not expired or terminated.
The provisions of Sections 2.15, 2.16, 2.17 and 9.3 and Article VIII shall
survive and remain in full force and effect regardless of the consummation of
the transactions contemplated hereby, the repayment of the Loans, the expiration
or termination of the Letters of Credit and the Commitments or the termination
of this Agreement or any provision hereof.
SECTION 9.6. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. This Agreement shall
become effective when it shall have been executed by the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns in accordance with Section
9.4. Delivery of an executed counterpart of a signature page of this Agreement
by telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 9.7. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective
-139-
to the extent of such invalidity, illegality or unenforceability without
affecting the validity, legality and enforceability of the remaining provisions
hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 9.8. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any
time and from time to time, 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) at any time held and other obligations at any time owing by such
Lender or Affiliate to or for the credit or the account of any or all of the
Borrowers against any of and all the obligations of the Borrowers now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
SECTION 9.9. Governing Law; Jurisdiction; Consent to Service of Process. (a)
This Agreement shall be construed in accordance with and governed by the law of
the State of New York.
(b) Each Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Administrative Agent, the Issuing Bank or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
against the Borrowers or their properties in the courts of any jurisdiction.
(c) Each of the Borrowers hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby
-140-
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.1. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of Contents
used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent, the Issuing
Bank and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any assignee
of or Participant in, or any prospective assignee of or Participant in, any of
its rights or obligations under this Agreement or (ii) any actual or prospective
-141-
counterparty (or its advisors) to any swap or derivatives transaction relating
to the Borrower and its obligations, (g) with the consent of the Company or (h)
to the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to the
Administrative Agent, the Issuing Bank or any Lender on a non-confidential basis
from a source other than the Company. For the purposes of this Section,
"INFORMATION" means all information received from the Company relating to the
Company or its business, other than any such information that is available to
the Administrative Agent, the Issuing Bank or any Lender on a non-confidential
basis prior to disclosure by the Company. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with
all fees, charges and other amounts which are treated as interest on such Loan
under applicable law (collectively the "CHARGES"), shall exceed the maximum
lawful rate (the "MAXIMUM RATE") which may be contracted for, charged, taken,
received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.14. Amendment and Restatement. (a) The Borrowers, the Administrative
Agent and the Lenders hereby agree that upon the effectiveness of this
Agreement, the terms and provisions of the Existing Credit Agreement shall be
and hereby are amended and restated in their entirety by the terms and
conditions of this Agreement and the terms and provisions of the Existing Credit
Agreement, except as otherwise provided in the next paragraph, shall be
superseded by this Agreement.
Notwithstanding the amendment and restatement of the Existing Credit
Agreement by this Agreement, the Company and all other obligors shall continue
to be liable to the Administrative Agent and the Lenders with
-142-
respect to agreements on the part of the Company and all other obligors,
respectively, under the Existing Credit Agreement to pay all principal,
interest, fees and other amounts that have accrued on or before the date hereof
and to indemnify and hold harmless the Administrative Agent and the Lenders from
and against all claims, demands, liabilities, damages, losses, costs, charges
and expenses to which the Administrative Agent and the Lenders may be subject
arising in connection with the Existing Credit Agreement and as to which the
Company or such obligors, as the case may be, have agreed under the Existing
Credit Agreement to indemnify and hold harmless the Administrative Agent and the
Lenders. This Agreement is given as a substitution of, and not as a payment of,
the obligations of the Borrowers under the Existing Credit Agreement and is not
intended to constitute a novation of the Existing Credit Agreement. Indebtedness
(other than with respect to Competitive Loans) evidenced by the notes issued
under the Existing Credit Agreement shall be allocated proportionally among the
Lenders based on their respective Commitments in order that after giving effect
thereto Lenders shall have outstanding loans representing their portion of the
aggregate Commitment, as described on SCHEDULE 2.1 and the Lenders shall make
appropriate payments to each other in order to accomplish such reallocation. On
the Closing Date all outstanding principal of all Eurodollar Loans then
outstanding under the Existing Credit Agreement shall be deemed to have been
prepaid and, except as otherwise selected by the Borrowers by delivery of a
Borrowing Notice on or prior to the Closing Date in accordance with the terms
hereof, upon the effectiveness of this Agreement all amounts outstanding and
owing by the Company under the Existing Credit Agreement as of the Closing Date
shall, solely for purposes of Section 2.16, constitute ABR Borrowings. Upon its
receipt of a Note hereunder, each Lender will promptly return to the Borrowers,
marked "Cancelled" or "Replaced", any notes of the Borrowers held by such Lender
pursuant to the Existing Credit Agreement.
By execution or acknowledgment of this Agreement all parties hereto agree
that each of the other Loan Documents is hereby amended such that all references
to the Existing Credit Agreement and the Loans thereunder shall be deemed to
refer to this Amended and Restated Credit Agreement and the continuation of the
Loans hereunder.
Section 9.15. No Bankruptcy Proceedings. Each of the Borrowers, the
Administrative Agent, the Documentation Agent, the Syndication Agent and the
Lenders hereby agrees that it will not institute against any Designated Bank or
join any other Person in instituting against any Designated Bank any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding under any
federal or state bankruptcy or similar law, until the later to occur of (i) one
-143-
year and one day after the payment in full of the latest maturing commercial
paper note issued by such Designated Bank and (ii) the Maturity Date.
ARTICLE X.
MULTIPLE BORROWERS
Each Borrower agrees that the representations and warranties made by, and
the liabilities, obligations and covenants of and applicable to, any and all of
the Borrowers under this Agreement, shall be in every case (whether or not
specifically so stated in each such case herein) joint and several in all
circumstances. Each Borrower accepts, as co-debtor and not merely as surety,
such joint and several liability with the other Borrowers and hereby waives any
and all suretyship defenses that it might otherwise have hereunder. If and to
the extent that any of the Borrowers shall fail to make any payment with respect
to any of the Obligations as and when due or to perform any of the Obligations
in accordance with the terms thereof, then in each such event the other
Borrowers will make such payment with respect to, or perform, such Obligation.
Every notice by or to the Company shall be deemed also to constitute
simultaneous notice by and to each other Borrower, every act or omission by any
Borrower also shall be deemed an act or omission of each other Borrower and
shall be binding upon each other Borrower, and the Administrative Agent. The
Administrative Agent, the Lenders and the Issuing Bank shall be entitled to
rely, and all of the Borrowers agree that the Administrative Agent, the Lenders
and the Issuing Bank may so rely, on any notice given or action taken or not
taken by the Company as being authorized by all of the Borrowers. The Issuing
Bank and the Lenders are fully authorized by each Borrower to act and rely also
upon the representations and warranties, covenants, notices, acts and omissions
of each other Borrower. Without limiting the generality of the foregoing, each
Borrower agrees that the obligations of such Borrower hereunder and under the
other Loan Documents shall be enforceable against such Borrower notwithstanding
that this Agreement or any other Loan Document may be unenforceable in any
respect against any other Borrower or that any other Borrower may have commenced
bankruptcy, reorganization, liquidation or similar proceedings.
ARTICLE XI.
REIT CONVERSION
The Company has advised the Lenders that the Company is contemplating a
transaction whereby the Company may become controlled by an entity which will
elect to become taxable as a REIT for federal income tax purposes. The Lenders
acknowledge that the Company may elect to pursue
-144-
such a transaction and that such transaction may require amendments to the
provisions contained herein relating to mergers or other business combinations
and relating to the payment of dividends by the Company or the Subsidiaries. To
the extent that any such contemplated transaction requires such amendments, the
Lenders shall not unreasonably withhold or condition their consent to such
amendments and shall not impose any fee for reviewing and approving any proposed
REIT conversion requiring only such amendments, although the Company
acknowledges that it will pay the Lenders' costs and expenses, including
attorneys fees and costs, in reviewing any such proposed transaction.
Notwithstanding the foregoing paragraph, it is understood by the parties
hereto that the Company has not made any request related to any particular
transaction, or otherwise related to the foregoing, to the Lenders or submitted
any plan or proposal with respect thereto to the Lenders. This Article shall not
constitute the consent of the Lenders to such a contemplated transaction, nor
the approval of such a transaction or the Lenders' agreement to modify, amend or
waive any provision hereof or any other Loan Document.
[Remainder of Page Intentionally Left Blank]
-145-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
BORROWERS
W. P. XXXXX & CO. LLC,
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President
CORPORATE PROPERTY ASSOCIATES,
By: W. P. Xxxxx & Co. LLC, a
Delaware limited liability
company, its general partner
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President
CORPORATE PROPERTY
ASSOCIATES 4 a California limited
partnership,
By W. P. Xxxxx & Co. LLC, a
Delaware limited liability
company, its general partner
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President
-146-
CORPORATE PROPERTY
ASSOCIATES 6- a California limited
partnership,
By: W. P. Xxxxx & Co. LLC, a
Delaware limited liability,
company its general partner
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President
CORPORATE PROPERTY
ASSOCIATES 9, L.P., a Delaware
limited partnership,
By: W. P. Xxxxx & Co. LLC, a
Delaware limited liability
company, its general partner
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President
CD UP LP, a Delaware limited
partnership
By: Xxxx CD LLC, a Delaware
limited liability company, its
general partner
By: W. P. Xxxxx & Co. LLC, its
managing member
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President
-147-
XXXXX ASSET MANAGEMENT
CORP.
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President
CALL LLC, a Delaware limited
liability company
By: W. P. Xxxxx & Co. LLC, its
managing member
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President
XXXXX TECHNOLOGY
PROPERTIES II LLC, a Delaware
limited liability company
By: W. P. Xxxxx & Co. LLC, its
managing member
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President
-148-
LENDERS:
THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
THE BANK OF NEW YORK,
individually and as Syndication Agent
By: /s/ Xxxxx X. Lastanis
------------------------------------
Name: Xxxxx X. Lastanis
Title: Vice President
PNC BANK, NATIONAL
ASSOCIATION, individually and as
Documentation Agent
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, individually and as
Managing Agent
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
-149-
XXXXX XXX COMMERCIAL BANK,
LTD., NEW YORK BRANCH
By: /s/ Wan-Tu Yeh
------------------------------------
Name: Wan-Tu Yeh
Title: Senior Vice President and
General Manager
CITIZENS BANK OF RHODE
ISLAND
By: /s/ Xxxxx X. Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxxxxx
Title: Vice President
KBC BANK, N.V.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: First Vice President
MANUFACTURERS AND TRADERS
TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
-150-
NATIONAL AUSTRALIA BANK
LIMITED
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
Name:
Title:
-151-
