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EXHIBIT 99.36
THE BORROWERS HEREUNDER
$200,000,000
LOAN AGREEMENT
Dated as of January 21, 1992
with
The Financial Institutions Signatory Hereto
and
XXXXXXXXXX, As Managing Agent
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Accounting Terms; Financial Statements . . . . . . . . . . . . . . . 20
ARTICLE II
LOAN PROVISIONS
Section 2.1 Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.2 Obligations; Notes; Loan Register; Waiver;
Application of Initial Loans . . . . . . . . . . . . . . . . . . . . 21
Section 2.3 Allocation of Total Commitment . . . . . . . . . . . . . . . . . . . 23
Section 2.4 Terms of Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 2.5 Notice of Borrowing; Roll-Over Borrowings. . . . . . . . . . . . . . 24
Section 2.6 Disbursement of Funds. . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.7 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.8 Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 2.9 Increased Costs, Illegality, etc. . . . . . . . . . . . . . . . . . 30
Section 2.10 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 2.11 Responsibility for Making Loans. . . . . . . . . . . . . . . . . . . 34
ARTICLE III
TERMINATION OF LOAN COMMITMENTS, PREPAYMENTS
AND FEES
Section 3.1 Mandatory Reduction of the Loan Commitments. . . . . . . . . . . . . 35
Section 3.2 Voluntary Reduction of the Total Commitment or
any Project Commitment . . . . . . . . . . . . . . . . . . . . . . . 35
Section 3.3 Voluntary Prepayments of the Loan Obligations. . . . . . . . . . . . 36
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Section 3.4 Mandatory Prepayment of the Loan Obligations . . . . . . . . . . . . . . . . 36
Section 3.5 Other Provisions With Respect to Prepayments. . . . . . . . . . . . . . . . . 37
Section 3.6 Order of Prepayments and Payments . . . . . . . . . . . . . . . . . . . . . . 37
Section 3.7 Unused Commitment Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 3.8 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 3.9 Net Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 3.10 Options to Extend Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of the
Borrowers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE V
COVENANTS
Section 5.1 Affirmative Covenants of each Borrower . . . . . . . . . . . . . . . . . . . . 45
Section 5.2 Negative Covenants of each Borrower. . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE VI
CONDITIONS OF CREDIT
Section 6.1 Conditions Precedent to the Initial Borrowing . . . . . . . . . . . . . . . . 53
Section 6.2 Conditions Precedent to any Initial Project
Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.3 Conditions Precedent to All Borrowings (other
than a Roll-Over Borrowing) . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.4 Conditions Precedent to All Roll-Over
Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
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ARTICLE VII
EVENTS OF DEFAULT
Section 7.1 Guarantor Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 7.2 Borrower Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE VIII
THE MANAGING AGENT
Section 8.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 8.2 Nature of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 8.3 Rights, Exculpation, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 8.4 Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 8.5 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 8.6 The Managing Agent Individually . . . . . . . . . . . . . . . . . . . . . . . 65
Section 8.7 Resignation by the Managing Agent . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE IX
MISCELLANEOUS
Section 9.1 No Waiver; Modifications in Writing . . . . . . . . . . . . . . . . . . . . . 66
Section 9.2 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 9.3 Notices, etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 9.4 Costs, Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 9.5 Confirmations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 9.6 Adjustment; Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 9.7 Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 9.8 Binding Effect; Assignment; Addition and
Substitution of Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 9.9 Consent to Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
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Section 9.10 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 9.11 Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 9.12 Borrower Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 9.13 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 9.14 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
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Exhibits
Exhibit A - Form of Additional Borrower Agreement
Exhibit B-1 - Form of Initial Note
Exhibit B-2 - Form of Amended Note
Exhibit B-3 - Form of Extension Note
Exhibit C - Form of Allocation Request
Exhibit D - Form of Allocation Increase/Decrease Request
Exhibit E - Form of Notice of Borrowing
Exhibit F - Form of Additional Conditions
Schedules
Schedule 1.1(a) - Amounts of Loan Commitments of the Banks
Schedule 2.5(a) - Timing Examples for Notices of Borrowing
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LOAN AGREEMENT
This LOAN AGREEMENT, dated as of January 21, 1992, among the
Borrowers (as hereinafter defined), the undersigned financial institutions,
including XXXXXXXXXX, in their capacities as lenders hereunder (collectively,
the "Banks," and each individually, a "Bank") and XXXXXXXXXX, as managing
agent (the "Managing Agent") for the Banks.
W I T N E S S E T H
WHEREAS, the Borrowers have requested the Banks to make loans
to one or more of the Borrowers in an aggregate principal amount not to exceed
$200 million to be used to develop, manage and lease shopping centers in the
United States to be anchored by Kmart and/or Kmart Affiliates; and
WHEREAS, the Banks are willing to extend commitments to make
loans to the Borrowers for the purposes specified above and on the terms and
subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained and the Guaranty (as hereinafter defined),
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Definitions. As used herein, and unless the
context requires a different meaning, the following terms have the meanings
indicated:
"Additional Borrower Agreement" means an Additional
Borrower Agreement in the form of Exhibit A hereto.
"Affected Bank" has the meaning assigned to that term in
Section 2.9(d).
"Affiliate" means, with respect to any Person, any Person or group
acting in concert in respect of the Person in question that, directly or
indirectly, controls or is controlled by or is under common control with such
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person or group of Persons, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of management and policies of such Person, whether through (i) the
ownership of voting securities or (ii) by contract or otherwise. Neither
XXXXXXXXXX nor XXXXXXXXXX nor any of their respective Subsidiaries nor any
other Bank or its Subsidiaries and any corporation of which any
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Bank is a Subsidiary shall, for purposes of this Agreement, be deemed to be
Affiliates of any Borrower.
"Agreement" means this Loan Agreement, as the same may at any
time and from time to time be amended, supplemented or modified and in effect.
"Allocation Increase/Decrease Request" has the meaning
assigned to that term in Section 2.3(b).
"Allocation Request" has the meaning assigned to that
term in Section 2.3(a).
"Amended Note" has the meaning assigned to that term in
Section 2.2(b).
"XXXXXXXXXX" means XXXXXXXXXX, a Michigan general partnership.
"Assignees" has the meaning assigned to that term in
Section 9.8(c).
"Banks" and "Bank" have the respective meanings assigned
to those terms in the introduction to this Agreement.
"Board" means the Board of Governors of the Federal
Reserve System.
"Borrower" means any of XXXXXXXXXX and any Eligible Borrower
as to which an Additional Borrower Agreement shall, after the date of this
Agreement, have been delivered to the Managing Agent, duly executed by such
Eligible Borrower, the Guarantor and the Managing Agent on behalf of the Banks
and shall have become effective in accordance with its terms, until such time,
if any, as such Borrower shall have satisfied the conditions set forth in
Section 9.12, and "Borrowers" means all of the foregoing.
"Borrower Event of Default" has the meaning assigned to
that term in Section 7.2.
"Borrower Termination Agreement" means an agreement by and
between the Managing Agent and any Borrower on terms satisfactory to the
Managing Agent to be executed and delivered following the payment in full of
all obligations of such Borrower and the termination of all Project Commitments
with respect to such Borrower.
"Borrowing" means the incurrence of a Loan on a given
date pursuant to Section 2.5.
"Borrowing Margin" means one-half of one percent (.50%)
provided, however, that in the event that, and during any period
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that the long-term Indebtedness of the Guarantor shall be rated BBB or lower by
Standard & Poor's Corporation or Baa2 or lower by Xxxxx'x Investors Service,
Inc., the Borrowing Margin shall mean three quarters of one percent (.75%)
during such period.
"Bridge Borrowers" has the meaning assigned to that term
in Section 2.2(e).
"Bridge Agreement" has the meaning assigned to that term in
Section 2.2(e).
"XXXXXXXXXX" means XXXXXXXXXX, a New York banking corporation.
"Business Day" means (i) a day on which the Managing Agent is
open in New York, New York at its address specified in or for the purposes of
this Agreement for the purpose of conducting commercial banking business, and
(ii) with respect to a Eurodollar Rate Loan, also a day on which dealings in
foreign currencies and exchange between banks may be carried out in London,
England.
"Capital Expenditures" means, without duplication, with
respect to any Person: any amounts expended, incurred or obligated to be
expended during or in respect of a period for any purchase or other acquisition
for value of any asset that is classified on a consolidated balance sheet of
such Person prepared in accordance with generally accepted accounting
principles as a fixed or capital asset including, without limitation, the
direct or indirect acquisition of such assets or improvements by way of
increased product or service charges, offset items or otherwise, and shall
include Financing Lease Obligations.
"Code" means the Internal Revenue Code of 1986, as from time
to time amended, including the regulations proposed or promulgated thereunder,
or any successor statute and the regulations proposed or promulgated
thereunder.
"Completion Date" means, with respect to any Project, the date
on which a certificate of completion, in form satisfactory to the Managing
Agent, shall have been delivered to the Managing Agent.
"Contaminant" means any waste, pollutant (as that term is
defined in 42 U.S.C. 9601(33) or in 33 U.S.C. 1362(13)), hazardous substance
(as that term is defined in 42 U.S.C. 9601(14)), hazardous chemical (as that
term is defined by 29 CFR Section 1910.1200(c)), toxic substance, hazardous
waste (as that term is defined in 42 U.S.C. 6901), radioactive material,
special waste, petroleum, including crude oil or any petroleum-derived
substance, waste, or breakdown or decomposition product thereof, or any
constituent of any such substance or waste, including but not limited to
polychlorinated biphenyls, and asbestos.
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"Credit Exposure" has the meaning assigned to that term
in Section 9.8(b).
"Default Rate" has the meaning assigned to such term in
Section 2.7(c).
"Deposited Monies" has the meaning assigned to that term
in Section 3.5.
"Dollar" and "$" shall mean lawful money of the United States
of America.
"Eligible Assignee" means any of:
(a) a commercial bank organized under the laws of the
United States, or any state thereof, and having total assets in excess
of $500,000,000 and a combined capital and surplus of at least
$100,000,000;
(b) a savings and loan association or savings bank
organized under the laws of the United States, or any state thereof,
and having total assets in excess of $500,000,000 and a combined
capital and surplus of at least $100,000,000;
(c) a commercial bank organized under the laws of any
other country that is at such time a member of organization for
Economic Cooperation and Development (the "OECD") or has concluded
special lending arrangements with the International Monetary Fund
associated with its General Arrangements to Borrow or of the Cayman
Islands, or a political subdivision of any such country, and having
total assets in excess of $500,000,000 and a combined capital and
surplus of at least $100,000,000; provided that such bank is acting
through a branch or agency located in the United States or the Cayman
Islands;
(d) the central bank of any country that is a member of
the OECD;
(e) a finance company, insurance company or other
financial institution or fund (whether a corporation, partnership or
other entity) that is engaged in making, purchasing or otherwise
investing in commercial loans in the ordinary course of its business,
and having total assets in excess of $500,000,000 and (other than in
the case of a fund) combined capital and surplus of at least
$100,000,000; and
(f) any Affiliate of any Bank acceptable to the
Guarantor; provided that such acceptance by the Guarantor shall not be
unreasonably withheld (and shall be deemed to be given if the
Guarantor fails to respond to a written request
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therefor within ten (10) Business Days after its receipt thereof).
"Eligible Borrower" means any of the following Persons
organized for the purpose of developing and managing a Project:
(a) a general partnership or joint venture organized
under the laws of the United States or a state thereof all of the
general partners of which shall consist of:
(i) Guarantor or any wholly-owned Subsidiary of
Guarantor, and
(ii) any of the following:
(A) XXXXXXXXXX or an Affiliate of
XXXXXXXXXX (including a partnership in which
XXXXXXXXXX or an Affiliate of XXXXXXXXXX is
general partner),
(B) XXXXXXXXXX or an Affiliate of
XXXXXXXXXX, (including a partnership in which
XXXXXXXXXX or an Affiliate of XXXXXXXXXX is
general partner),
(C) XXXXXXXXXX or an Affiliate of
XXXXXXXXXX (including a partnership in which
XXXXXXXXXX or an Affiliate of XXXXXXXXXX is
general partner), or
(D) such other Person or Persons as may
be approved by the Managing Agent (which
approval shall not be unreasonably withheld)
and which, in all other respects, shall be
reasonably satisfactory to the Managing
Agent; and
(b) Guarantor or a general partnership, limited
partnership, corporation or other entity organized under the laws of
the United States or a state thereof which is wholly-owned, directly
or indirectly, by Guarantor and which Guarantor has designated in
writing to the Managing Agent to become an additional Borrower
hereunder and which is otherwise in all respects reasonably
satisfactory to the Managing Agent.
"Environmental Lien" means a Lien in favor of any governmental
authority for (i) any liability under federal or state environmental lave or
regulations, or (ii) damages arising from, or costs incurred by such
governmental authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as from time to time amended.
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"Eurodollar Rate" means, with respect to each Interest Period
to be applicable to a Eurodollar Rate Loan, the rate obtained by dividing (i)
the arithmetic average (rounded upward to the nearest 1/16th of 1% if such
average is not such a multiple) of the offered quotation, if any, to
first-class banks in the interbank Eurodollar market by XXXXXXXXXX for U.S.
dollar deposits of amounts in immediately available funds comparable to the
principal amount of the Eurodollar Rate Loan to be made by XXXXXXXXXX with
maturities comparable to such Interest Period, determined as of approximately
10:00 A.M. (New York City time) two Business Days prior to the commencement of
such Interest Period, by (ii) a percentage equal to 100% minus the stated
maximum rate (expressed as a percentage) as prescribed by the Board of all
reserve requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves and all reserves required to be
maintained against "Eurocurrency liabilities" as specified in Regulation D)
applicable on the first day of such Interest Period to any member bank of the
Federal Reserve System in respect of Eurodollar funding or liabilities. The
determination of the Eurodollar Rate by the Managing Agent shall be conclusive
and binding on each Borrower absent manifest error.
"Eurodollar Rate Loan" means any Loan which bears interest at
a rate determined with reference to the Eurodollar Rate.
"Eurodollar Tranche" means all or a portion of a Eurodollar
Loan as to which a Borrower has, in any Notice of Borrowing or Rate Selection
Notice, specified a distinct Interest Period for a stated principal amount.
"Extension Notes" has the meaning assigned to that term
in Section 3.10(c).
"Facility Termination Date" shall mean the earliest to
occur of:
(i) January 20, 1995, or such later date as may be
elected pursuant to the provisions of Section 3.10 hereof, or
(ii) the date on which the Total Commitment shall have been
reduced to $0 pursuant to this Agreement, or
(iii) the date, if any, of the acceleration of all of the
Loans in accordance with Section 7.1 or 7.2. hereof.
"Federal Funds Rate" means on any one day the weighted average
of the rate on overnight Federal funds transactions with members of the Federal
Reserve System only arranged by Federal funds brokers as published as of such
day (or, if such day is not a Business Day, as of the immediately preceding
Business Day) by
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the Federal Reserve Bank of New York, or if not so published, the rate then
used by first class banks in extending overnight loans to other first class
banks.
"Fee Letter" means that certain letter by and among each of
the Borrowers and the Managing Agent dated as of October 31, 1991.
"Financing Lease" means, at the time any determination thereof
is to be made, any lease of property, real or personal, in respect of which the
present value of the minimum rental commitment is capitalized on the balance
sheet of the lessee in accordance with generally accepted accounting
principles.
"Financing Lease Obligation" means, at the time any
determination thereof is to be made, the amount of the liability in respect of
a Financing Lease which would at such time be so required to be capitalized on
such a balance sheet in accordance with generally accepted accounting
principals.
"Guarantor" means Kmart Corporation, a Michigan corporation.
"Guarantor Event of Default" has the meaning assigned to
that term in Section 7.1.
"Guarantor Restructuring" means any disposition of assets of
Guarantor or corporate restructuring of Guarantor (including, without
limitation, any leveraged buy-out, recapitalization, grant of security
interest, merger or consolidation, reverse merger, sale of assets, "spin-off"
or other transfer of assets) pursuant to which all or a substantial portion of
the' business, operations or assets of Guarantor shall be transferred, assigned
or pledged to one or more other Persons, including, without limitation, any
such transfer to a wholly-owned Subsidiary of Guarantor.
"Guaranty" means that certain Guaranty Agreement dated the
date hereof made by Guarantor in favor of Managing Agent and the Banks.
"Indebtedness" means, without duplication, all obligations of
a Person or a Subsidiary of such Person which are classified upon a balance
sheet of such Person or such Subsidiary in accordance with generally accepted
accounting principles as liabilities of such Person or such Subsidiary or as
indebtedness of any other individual or entity for which such Person or such
Subsidiary is liable, in each case other than as excepted below in clauses (i)
through (v) of this definition, and in any event shall include, without
limitation:
(i) all indebtedness guaranteed, directly or indirectly, in
any manner by such Person or such Subsidiary or endorsed
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(otherwise than for collection or deposit in the ordinary course of
business) or discounted with recourse;
(ii) all indebtedness in effect guaranteed, directly or
indirectly, by such Person or such Subsidiary through an agreement,
contingent or otherwise, (a) to purchase such indebtedness, or (b) to
purchase, sell or lease (as lessee or lessor) property, products,
materials or supplies, or to purchase or sell transportation or
services, for the purpose of enabling the debtor to make payment of
such indebtedness or to assure the owner of such indebtedness against
loss, regardless of the delivery or non-delivery for any reason of
the property, products, materials or supplies or the furnishing or
nonfurnishing for any reason of the transportation or services, except
supply contracts for goods or inventory to be used by such Person or
such Subsidiary in its business entered into in the ordinary course of
business of such Person or such Subsidiary and not having a term or,
if in effect on the date hereof, not having a remaining term (in each
case including all extensions or renewals thereof which are not in the
sole control of such Person or any Subsidiary of such Person) in
excess of three years, or (c) other than as permitted by this
Agreement, to make any loan, advance, capital contribution or other
investment in any debtor for the purpose of assuring a minimum equity,
asset base, working capital or other balance sheet condition for any
date, or to provide funds for the payment of any liability, dividend
or stock liquidation payment, or otherwise to supply funds to or in
any manner invest in any debtor;
(iii) all indebtedness of any joint venture, partnership or
other person or entity for which such Person or such Subsidiary is
liable, other than guarantees to the extent excluded in clauses (i) or
(ii) above by such Person or such Subsidiary;
(iv) all indebtedness, including Financing Lease
Obligations, of such Person or such Subsidiary created or arising
under any conditional sale agreement or other title retention
agreement or under any Financing Lease, even though the rights and
remedies of the seller or lender or lessor under such agreement or
lease in the event of default are limited repossession or sale of
property; and
(v) all indebtedness secured by any mortgage, lien,
pledge, charge, security interest, option or other encumbrance upon or
in property owned by such Person or such Subsidiary, even though such
Person or such Subsidiary has not assumed or become liable for the
payment of such indebtedness.
For the purpose of computing the "Indebtedness" of such Person or
a Subsidiary of such Person there shall be excluded any particular
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Indebtedness if, upon or prior to the maturity thereof, there shall have been
irrevocably deposited with the proper depositary in trust the necessary funds
(or evidences of such Indebtedness, or other securities, if permitted by the
instrument creating such Indebtedness or otherwise consented to by the relevant
Person to which such Indebtedness is owed) to repay indefeasibly in full such
Indebtedness, and thereafter such funds, evidences of Indebtedness and
securities so deposited shall not be included in any computation of the assets
of such Person or a Subsidiary of such Person except to the extent that such
funds are subject to any writ, judgment, warrant of attachment, execution or
similar process, for the payment, redemption or satisfaction of such
Indebtedness.
"Indebtedness for Money Borrowed" means, without
duplication:
(i) all Indebtedness of a Person or a Subsidiary of such
Person, current or funded, secured or unsecured, incurred in
connection with borrowings (including the sale of debt securities) by
such Person or a Subsidiary or the making available of credit or funds
by such Person or a Subsidiary of such Person on behalf of another
Person other than (a) trade and intercompany accounts receivable owed
to such Person or any Subsidiary of such Person, and other than (b)
any forbearance by such Person or any Subsidiary of such Person with
respect to any accounts receivable owed to such Person or any
Subsidiary of such Person;
(ii) all Indebtedness of such Person or a Subsidiary of
such Person, as the case may be, issued, incurred or assumed in
respect of the purchase price of property except for trade and
intercompany accounts payable;
(iii) all Financing Lease Obligations of such Person or a
Subsidiary of such Person; and
(iv) any guarantee or other obligation specified in clause
(i) or (ii) of the definition of "Indebtedness" in respect of
Indebtedness of any other Person of any of the types specified in the
preceding clauses (i), (ii) and (iii).
"Initial Borrowing" means the first Borrowing by any Borrower
under this Agreement.
"Initial Borrowing Date" means the date of the Initial
Borrowing.
"Initial Loan" means the first Loan made by the Banks
under this Agreement.
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"Initial Note" has the meaning assigned to that term in
Section 2.2(b).
"Initial Project Borrowing" means, with respect to any
Project, the first Borrowing made by a Borrower for such Project.
"Initial Project Borrowing Date" means, with respect to
any Project, the date of the Initial Project Borrowing.
"Initial Project Loan" means, with respect to any
Project, the first Loan made by the Banks for such Project.
"Interest Borrowing" has the meaning assigned to that
term in Section 2.7(h).
"Interest Period" has the meaning assigned to that term
in Section 2.8.
"Interest Rate Agreement" means any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or other
similar agreement or arrangement designed to protect a Borrower or any of its
Subsidiaries against fluctuations in interest rates.
"Interim Maturity Date" means the last day of any
Interest Period.
"Investment" means, with respect to any Person (such
Person being referred to in this definition as the "Investor"):
(i) any amount paid by the Investor, directly or
indirectly, or any transfer of property, directly or indirectly, by
the Investor to any other Person for capital stock of, or as a capital
contribution to, or any amount which the Investor has advanced,
directly or indirectly to, any other Person;
(ii) the equity interest of the Investor in any Person;
(iii) any Indebtedness of any Person which is owed to the
Investor and which has been acquired for value by the Investor; and
(iv) any guarantee or other obligation specified in clause
(i) or (ii) of the definition of "Indebtedness" in respect of any
Indebtedness of any other Person.
"XXXXXXXXXX" means XXXXXXXXXX, a Delaware corporation.
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"Kmart Affiliate" means PACE Membership Warehouse, Builders Square,
Pay Less Drug Stores, Xxxxxx Book Company, the Sports Authority or Office Max.
"Kmart General Partner" means, with respect to any Borrower, any
wholly-owned Subsidiary of Guarantor which owns any interest in such Borrower.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien, charge or deposit arrangement of any kind (including, without limitation,
any conditional sale or other title retention agreement or lease in the nature
thereof, any sale of receivables or chattel paper with recourse against the
seller or any Affiliate of the seller, any filing or agreement to file a
financing statement as debtor under the Uniform Commercial Code or any similar
statute other than to reflect ownership by a third party of property leased to
a Borrower or any of its Subsidiaries under a lease which is not in the nature
of a conditional sale or title retention agreement, and any subordination
arrangement in favor of another Person).
"Loan" means, with respect to any Borrower, collectively, the loans
by each of the Banks to such Borrower in accordance with Section 2.1 and, with
respect to any Bank, the loans made by such Bank to a Borrower or all the
Borrowers, as the context may require and "Loans" means all of such Loans to
all Borrowers collectively.
"Loan Commitment" means, with respect to any Bank, the principal
amount set forth opposite such Bank's name in Schedule 1.1(a) under the caption
"Amount of Loan Commitment."
"Loan Documents" means, collectively, this Agreement, the Notes, the
Guaranty, any Additional Borrower Agreement, the Fee Letter and all other
agreements, instruments and documents executed and delivered by or on behalf of
any Borrower or Guarantor in connection with this Agreement.
"Loan Obligations" means, with respect to each Borrower, the
obligations of such Borrower to repay principal of, and to pay interest on the
Loans made to such Borrower pursuant to Section 2.1.
"Managing Agent" has the meaning assigned to that term in the
introduction to this Agreement.
"Managing Partner" means with respect to any Borrower, the managing
partner of such Borrower, which shall initially be XXXXXXXXXX or XXXXXXXXXX or
XXXXXXXXXX or a partnership in which XXXXXXXXXX and/or XXXXXXXXXX and/or
Affiliates of XXXXXXXXXX and/or XXXXXXXXXX are the general partners.
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"Material Asset Sale" means (i) a Project Sale or (ii) the sale or
other disposition or a refinancing of any other assets of any Borrower or any
of its Subsidiaries to any Person (other than leases of space in Projects in
the ordinary course of business); provided that there shall be excluded from
the definition of Material Asset Sale, any sale or related series of sales (or
part of a sale or related series of sales) of the type described in subdivision
(ii) above to the extent that the Net Proceeds of all such sales or related
series of sales (or parts of all such sales or related series of sales) do not
exceed $100,000 in any one calendar year.
"Material Subsidiary" means, with respect to a Subsidiary of
Guarantor, any Subsidiary which, at the date of this Agreement or at any time
thereafter, has a consolidated Net Worth in excess of $100,000,000.
"Monthly Borrowing Date" means the 20th day of each month, provided,
however that if such day is not a Business Day, then the Monthly Borrowing Date
for such month shall be the next succeeding Business Day in such month.
"Multiemployer Plan" means any plan described in Section 4001(a)(3)
of ERISA to which contributions are or have been made by any Borrower or any of
its Related Persons or any Subsidiary of any Borrower, or Related Persons to
such Subsidiary.
"Net Proceeds" means, with respect to any Material Asset Sale, at any
date of determination, cash proceeds (including any cash received by way of
deferred payment pursuant to a note receivable or otherwise, but only as and
when so received) through that date from such Material Asset Sale by a Borrower
or any of its Subsidiaries, net of the expenses of such Material Asset Sale and
net of income taxes payable in respect of such Material Asset Sale.
"Net Worth" means, as to any Person as of the date of determination
thereof, total assets less total liabilities of such Person.
"XXXXXXXXXX" means XXXXXXXXXX, a Michigan corporation.
"Note" means any Initial Note, any Amended Note, any Extension Note,
and any note issued in replacement of, exchange for, or amendment or
restatement of, any thereof, and "Notes" means all such notes, collectively.
"Notice of Borrowing" has the meaning assigned to that term in
Section 2.5.
"Obligations" means, with respect to any Borrower at any time, the
aggregate of such Borrower's Loan Obligations at such
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time and all other obligations and liabilities of such Borrower under the Loan
Documents at such time.
"Organizational Documents" means, with respect to any Borrower, the
partnership or joint venture agreement or, if applicable, the certificate of
incorporation and bylaws of such Borrower.
"Participants" has the meaning assigned to that term in Section
9.8(h).
"Partner" means, with respect to any Borrower organized as a
partnership or joint venture, any general partner or joint venturer of such
Borrower.
"Payment Office" has the meaning assigned to that term in Section 2.6.
"Permitted Investments" means (i) any evidence of indebtedness,
maturing not more than one year after the date of issue, issued by the United
States of America or any instrumentality or agency thereof the principal,
interest and premium, if any, of which is guaranteed fully by, or backed with
the full faith and credit of, the United States of America, (ii) any
certificate of deposit, maturing not more than 90 days after the date of
purchase, issued by the Managing Agent, or by another commercial banking
institution which is a member of the Federal Reserve System, has a combined
capital and surplus and undivided profits of not less than $200,000,000 and at
the time has a credit rating of AA or better from Standard & Poor's Corporation
or Aa or better from Xxxxx'x Investors Service, Inc., (iii) commercial paper,
maturing not more than 90 days after the date of purchase, issued by a
corporation (other than Guarantor, any Borrower or any Subsidiary of any
Borrower or any of their respective Affiliates) organized and existing under
the laws of any state within the United States of America with a rating, at the
time as of which any determination thereof is to be made, of "P-1" (or higher)
according to Xxxxx'x Investors Service, Inc. or "A-1" (or higher) according to
Standard & Poor's Corporation, (iv) shares or other evidences of participation
in any mutual fund which invests exclusively in one or more of the foregoing
and (v) demand deposits with any bank or trust company.
"Permitted Liens" means:
(i) Liens for taxes not yet due and payable or which are
being contested in good faith by appropriate proceedings diligently pursued,
provided that (a) if any proceedings shall have been commenced for the
enforcement of such Liens, no adverse judgment or order of foreclosure or other
similar order, writ or relief shall have been granted or issued, the effect of
which is to permit such Lien to be foreclosed or otherwise satisfied; and (b)
full
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provision for the payment of all such taxes known to such Person has been made
on the books of such Person to the extent required by generally accepted
accounting principles;
(ii) mechanics', materialmen's, carriers', warehousemen's and
similar Liens arising by operation of law and arising in the ordinary course of
business and securing obligations of such Person that are not overdue for a
period of more than 30 days or are being contested in good faith by appropriate
proceedings diligently pursued, provided that in the case of any such contest
(a) if any proceedings shall have been commenced for the enforcement of such
Liens, no adverse judgement or order of foreclosure or other similar order,
writ or relief shall have been granted or issued, the effect of which is to
permit such Lien to be foreclosed or otherwise satisfied; and (b) full
provision for the payment of such Liens has been made on the books of such
Person to the extent required by generally accepted accounting principles;
(iii) Liens arising in connection with worker's compensation,
unemployment insurance, old age pensions and social security benefits which are
not overdue or are being contested in good faith by appropriate proceedings
diligently pursued, provided that in the case of any such contest (a) any
proceedings commenced for the enforcement of such Liens shall have been duly
suspended; and (b) full provision for the payment of such Liens has been made
on the books of such Person to the extent required by generally accepted
accounting principles;
(iv) (a) Liens incurred or deposits made in the ordinary
course of business to secure the performance of bids, tenders, statutory
obligations, fee and expense arrangements with trustees and fiscal agents
(exclusive of obligations incurred in connection with the borrowing of money or
the payment of the deferred purchase price of property) and (b) Liens securing
surety, indemnity, performance, appeal and release bonds, in the case of either
clause (a) or clause (b), securing such bonds in an amount not to exceed
individually or in the aggregate $250,000 at any time outstanding, provided
that full provision for the payment of all such obligations has been made on
the books of such Person to the extent required by generally accepted
accounting principles;
(v) Permitted Mortgage Liens;
(vi) Permitted Third Party Mortgage Liens, if at the time such
Lien is incurred, no Guarantor Event of Default or Unmatured Guarantor Event of
Default exists; or
(vii) such other imperfections of title, covenants,
restrictions, easements and encumbrances shown on the title reports (as redated
and recertified as commitments to issue title insurance, if applicable) and
such other imperfections of title, covenants, restrictions, easements and other
encumbrances on real
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property which in each case do not arise out of the incurrence of any
Indebtedness for Money Borrowed and which do not interfere with or impair in
any material respect the utility, operation, value or marketability of the real
property on which such Lien is imposed; and
provided, however, to the extent that the amount of obligations of a Borrower
arising from claims being contested in good faith secured by such Liens in
clauses (i), (ii), (iii) and (iv) above exceeds $1,000,000 in the aggregate,
such Borrower shall have set aside full cash reserves in the amount of the
excess over $1,000,000 of such obligations or there shall be availability under
the applicable Project Commitment for an amount equal to the excess amount of
such obligations minus the cash reserves so set aside.
"Permitted Mortgage Lien" means a mortgage created by a Borrower in
favor of Guarantor which encumbers such Borrower's ownership interest in a
Project solely for the purposes of:
(1) securing such Borrower's reimbursement obligations to
Guarantor with respect to any amounts actually paid by Guarantor under
the Guaranty, or
(2) securing any other obligations of such Borrower to
Guarantor under such Borrower's Organizational Documents;
provided, however, that such mortgage instrument shall expressly provide that:
(a) Guarantor shall have no right to foreclose such mortgage,
or to enforce any other rights thereunder which conflict with or are
inconsistent with Managing Agent's and the Banks' rights under this Loan
Agreement (including, without limitation, any rights to collect insurance
proceeds), without Managing Agent's prior written consent unless:
(i) no Guarantor Event of Default has occurred
and is continuing and such foreclosure or other exercise of rights
is solely for the purpose of, and does in fact have the effect of,
causing title to the relevant Project to be vested in another
Borrower hereunder and concurrently therewith such other Borrower
assumes, in accordance with the provisions of Section 9.8(e) hereof,
all of the transferring Borrower's Obligations with respect to all
Project Loans outstanding with respect to such Project, or
(ii) all Project Loans with respect to such
Project have been paid in full and the applicable Project
Commitments have been terminated;
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(b) the mortgage Lien, and all rights of Guarantor under
such mortgage, shall be subordinate to any Lien with respect to such
Project at any time created in favor of Managing Agent or the Banks
(including, without limitation, any judgment Lien); and
(c) Guarantor shall have no rights with respect to the
rental income from such Project prior to foreclosure of such mortgage.
"Permitted Third Party Mortgage Lien" means a mortgage created by a
Borrower in favor of any Person other than Guarantor which encumbers such
Borrower's ownership interest in a Project for the purpose of refinancing all
or a portion of the Project Loans with respect to such Project, provided, that
all proceeds of such refinancing (net of costs of such refinancing) are
applied by such Borrower to the prepayment of such Project Loans.
"Person" means any of an individual, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
government (or an agency or political subdivision thereof) or other entity of
any kind.
"Plan" means any plan described in Section 4021(a) of ERISA and not
excluded pursuant to Section 4021(b) thereof, which may be or has been
established or maintained, or to which contributions are or have been made, by
any Borrower or any of its Related Persons or any Subsidiary of any Borrower or
any Related Persons to such Subsidiary, but not including any Multiemployer
Plan.
"Prime Rate" means the greater of (i) the rate which XXXXXXXXXX
announces from time to time as its prime lending rate, as in effect from time
to time, or (ii) the Federal Funds Rate in effect from time to time plus one
half of one percent (1/2 of 1%). The Prime Rate is a reference rate and does
not necessarily represent the lowest or best rate actually charged to any
customer. XXXXXXXXXX may make commercial loans or other loans at rates of
interest at, above or below the Prime Rate.
"Prime Rate Loan" means any Loan which bears interest at a rate
determined with reference to the Prime Rate.
"Project" means a development by a Borrower of a shopping center, to
be located in the United States and anchored by a Kmart store and/or the
store(s) of one or more Kmart Affiliates, identified as a project by any
Borrower in an Allocation Request and for which the Managing Agent has
established a Project Commitment.
"Project Budget" means, with respect to any Project, a budget,
approved by Guarantor, in such detail as may be reasonably
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required by Managing Agent setting forth the various cost categories of all
hard and soft costs to be incurred by the relevant Borrower in connection with
the land acquisition, ownership, development and construction of the applicable
Project in each instance approved by Guarantor and as the same may from time to
time, upon ten (10) days prior notice to the Managing Agent, be modified by the
relevant Borrower with the prior written approval of the Guarantor; provided,
however, that the amount of the Project Budget, as so modified, shall not
exceed the Project Commitment with respect to such Project.
"Project Commitment" means, with respect to any Project, for all
Banks, the portion of the Total Commitment allocated to said Project pursuant
to Section 2.3 hereof and with respect to any Project for each Bank, such
Bank's Pro Rata Share of the portion of the Total Commitment allocated to such
Project, in each case, as such amount may be reduced or increased from time to
time pursuant to the terms hereof.
"Project Loan" means with respect to any Project, at any time, the
aggregate amount of all Loans made with respect to such Project.
"Project Sale" means the sale, lease (other than leases of space in
a Project) or other disposition (including, without limitation, any sale and
leaseback transaction) to any Person (other than to an Affiliate of the
affected Borrower) of:
(i) any of the capital stock or partnership or other
ownership interests of any Borrower;
(ii) substantially all the assets of any Borrower; or
(iii) all or substantially all of any Project.
"Pro Rata Share" means, when used with reference to any Bank and any
described aggregate or total amount, an amount equal to the result obtained by
multiplying such described aggregate or total amount by a fraction the
numerator of which shall be such Bank's Loan Commitment at such time and the
denominator of which shall be the Total Commitment at such time.
"Rate Selection Notice" means, with respect to any Borrowing or
Roll-Over Borrowing by any Borrower, an irrevocable telecopied notice given
by such Borrower to the Managing Agent (not later than 11:00 A.M. (New York
time) on the date required to be given) specifying whether such Borrowing or
Roll-over Borrowing is to consist of Prime Rate Loans or Eurodollar Rate Loans
and if such Loans are to be a Eurodollar Rate Loans, specifying, the desired
Interest Period with respect thereto.
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"Regulation D" means Regulation D of the Board as from time to time
in effect and any successor to all or a portion thereof establishing reserve
requirements.
"Related Person" means, with respect to any Person, any trade
or business (whether or not incorporated) which, together with such Person, is
under common control as described in Section 414 (c) of the Code or is a member
of a controlled group, as defined in Section 414(b) of the Code, which includes
such Person.
"Release" means release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment or into or out of any property of any
Borrower or any of its Subsidiaries, including the movement of Contaminants
through or in the air, soil, surface water, groundwater or property of such
Borrower or its Subsidiaries.
"Remedial Action" means actions required to (i) clean up, remove,
treat or in any other way address Contaminants in the indoor or outdoor
environment; (ii) prevent the Release or threat of Release or minimize the
further Release of Contaminants so they do not migrate or endanger or threaten
to endanger public health or welfare or the indoor or outdoor environment; or
(iii) perform pre-remedial studies and investigations and post-remedial
monitoring and care.
"Required Banks" means, as of the date of determination thereof, the
holders of at least fifty one percent (51%) of the aggregate of (i) the
principal amount of the Loans then outstanding and (ii) the Total Unused
Commitment at that time.
"Responsible Officer" means, as to any Borrower, any of the Chairman
of the Board of Directors, President, Executive Vice President, Treasurer or
Chief Financial Officer of such Borrower or such Borrower's Managing Partner
at such time.
"Roll-Over Borrowing" means a Loan to a Borrower which, after giving
effect to such Loan and the application of the proceeds thereof, does not
increase the aggregate amount of outstanding Loans to such Borrower. Roll-over
Borrowings do not constitute either new borrowings or disbursements by the
Banks of additional monies, the term "Roll-Over Borrowing" being used merely
for convenience of definition and to denote changes in interest rates.
"Solvent" shall mean, when used with respect to any Borrower, that
(i) after giving effect to the Borrowings which will be permitted by such
Borrower hereunder, it is able to pay its debts or obligations in the ordinary
course as they mature; and (ii) such Borrower has capital sufficient to carry
on its business and all business in which it is about to engage.
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"Subsidiary" of any Person shall mean any corporation, partnership
(limited or general), trust or other entity of which a majority of the stock
(or equivalent ownership or controlling interest) having voting power to
elect a majority of the Board of Directors (if a corporation) or to select the
trustee or equivalent controlling interest, shall, at the time such reference
becomes operative, be directly or indirectly owned or controlled by such Person
or one or more of the other subsidiaries of such Person or any combination
thereof.
"Taxes" has the meaning assigned to that term in Section 3.9(a).
"Total Commitment" means, at the time any determination thereof is
to be made, the sum of the respective Loan Commitments of the Banks at such
time.
"Total Project Commitment" means, at any time any determination
thereof is to be made, the sum of the respective Project Commitments for all
Projects at such time.
"Total Unused Commitment" means, at the time any determination
thereof is to be made, the sum of the respective Unused Commitments of the
Banks at such time.
"Unallocated Total Commitment" means, at any time, the lesser of (i)
the Total Commitment less the Total Project Commitments or (ii) the Total
Unused Commitment.
"Unmatured Borrower Event of Default" means an event of default or
event, act or occurrence which with the giving of notice or the lapse of time
(or both) would become a Borrower Event of Default.
"Unmatured Guarantor Event of Default" means an event of default or
event, act or occurrence which with the giving of notice or the lapse of time
(or both) would become a Guarantor Event of Default.
"Unused Commitment" means, when used with reference to any Bank at
the time any determination thereof is to be made, the excess, if any, of (i)
such Bank's Loan Commitment at such time over (ii) such Bank's Utilized
Commitment at such time.
"Unused Project Commitment" means, when used with reference to any
Bank at the time any determination thereof is to be made, the excess, if any,
of (i) such Bank's Project Commitment at such time and with reference to any
Project over (ii) such Bank's Pro Rata Share of the Project Loans for such
Project.
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"Utilized Commitment" means, when used with reference to any Bank at
the time any determination thereof is to be made, the then outstanding
principal amount of all Loans made by such Bank pursuant to this Agreement.
"XXXXXXXXXX" means XXXXXXXXXX, a Delaware corporation.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms. The words "herein," "hereof"
and words of similar import as used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision in the Agreement.
Section 1.2 Accounting Terms: Financial Statements. All accounting
terms used herein but not expressly defined in this Agreement shall have
the respective meanings given to them in accordance with generally accepted
accounting principles in effect on the date hereof (except with respect to
financial statements delivered to the Managing Agent or the Banks after the
date hereof, as to which generally accepted accounting principles shall be such
as are in effect on the respective dates of such financial statements) in the
United States of America. Except as otherwise expressly provided herein, (i)
all computations and determinations for purposes of determining compliance with
the financial requirements of this Agreement shall be made in accordance with
the generally accepted accounting principles set forth in the preceding
sentence as in effect on the date of this Agreement; and (ii) wherever any
computation is to be made with respect to any Person and its Subsidiaries, such
computation shall be made so as to exclude all items of income, assets and
liabilities attributable to any Person which is not a Subsidiary.
ARTICLE II
LOAN PROVISIONS
Section 2.1 Loans. Each Bank, severally and for itself alone,
hereby agrees, on the terms and subject to the conditions hereinafter set
forth, to make loans to one or more of the Borrowers, on the date requested
from time to time from and after the date of this Agreement to, but not
including, the Facility Termination Date, in the Pro Rata Share of such Bank of
such amounts as a Borrower may request, but not exceeding: (i) in the aggregate
at any one time outstanding, the Loan Commitment of such Bank; or (ii) with
respect to any Project, such Bank's Project Commitment for such Project.
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Section 2.2 Obligations; Notes; Loan Register; Waiver; Application of
Initial Loans.
(a) Loan Obligations. Each Borrower hereby severally and not jointly
agrees to repay to each Bank the principal amount of, and to pay to each Bank
interest on, such Bank's Loans to such Borrower (with payments hereunder to be
made to Managing Agent for the benefit of the Banks as set forth in Section
3.9 (b) hereof). Each Borrower shall pay interest on the principal balance of
its Loans from time to time outstanding as provided in this Agreement.
Subject to Section 2.5 and to the earlier acceleration or prepayment of the
Loans as permitted or required by this Agreement, each Borrower shall repay
the principal of its Loans in full on the Facility Termination Date with
respect to Prime Rate Loans and on the earlier of the Facility Termination
Date or each relevent Interim Maturity Date with respect to Eurodollar Rate
Loans.
(b) Notes. Each Borrower's obligation to pay the principal of, and
interest on, each Bank's Loans to such Borrower hereunder shall be evidenced by
a promissory note of such Borrower (each an "Initial Note") duly executed and
delivered by such Borrower to each such Bank at the time when the Initial
Project Loan pursuant to which such Initial Note is issued as requested by the
applicable Borrower. Each Initial Note shall:
(i) be payable to the order of the Bank to which it is issued;
(ii) be dated the date of the Initial Project Loan pursuant to which
such Note is issued;
(iii) be in original principal amount equal to such Bank's Pro Rata
Share of the Project Commitment in effect with respect to the Project to
which such Note relates; and
(iv) otherwise be in substantially the form of Exhibit B-1 hereto,
duly completed.
Notwithstanding that the stated principal amount of each Note shall be equal
to such Bank's Pro Rata Share of the Project Commitment to which such Note
relates, such Note shall be enforceable with respect to the applicable
Borrower's obligation to pay the principal amount thereof only to the extent of
the Loans evidenced thereby, and such Note shall bear interest from time to
time only on the unpaid principal amount of the Loans evidenced thereby.
In the event that any Borrower requests an increase in any Project
Commitment pursuant to Section 2.3(b) hereof, such Borrower shall concurrently
therewith execute and deliver to the Banks amended and restated Notes
evidencing such increases in each Bank's Project Commitment in respect of the
affected Project (each
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an "Amended Note"), which shall each be in substantially the form of Exhibit
B-2 hereto, duly completed, dated the date of such increased Project
Commitment and with a principal amount equal to the applicable Bank's Pro
Rata Share of the revised Project Commitment. Upon receipt of such Amended
Notes and acceptance thereof by the Managing Agent, the Initial Notes which
have been amended and restated thereby shall be deemed cancelled and of no
further effect and shall be returned to the Borrower which issued the same.
(c) Loan Register. The Managing Agent shall maintain a register (the
"Loan Register") on which it will record the Loan Commitment of each Bank, the
Loans from time to time made to each Borrower, the Borrowings made by each
Borrower from each Bank and each repayment in respect of any Loan made to each
Bank. Any such recordation by the Managing Agent on the Loan Register shall
be conclusive, absent manifest error. Each Bank shall record on its internal
records, and on the schedule attached to each Note for such purpose, or
otherwise in accordance with such Bank's customary business practice, the
amount of each Borrowing made by each Borrower from such Bank and each
repayment to it in respect thereof, which recordation shall be conclusive
absent manifest error. Notwithstanding the foregoing, the failure to make a
notation in the Loan Register or such internal records or upon the schedule
attached to any Note with respect to any Borrowing or principal payment, or
any error with respect to any such notation, shall not limit or otherwise
affect the obligation of any Borrower hereunder or under any Note with respect
to the Loans, and payments of principal by any Borrower shall not be affected
by the failure to make a notation thereof or by an error in such notation, nor
shall such failure or error affect any rights of any Borrower hereunder or
under applicable law.
(d) Waiver of Presentment, etc. Each Borrower waives presentment,
demand, protest and notice of dishonor in connection with the payment of its
Obligations.
(e) Application of Certain Initial Project Loans. Borrowers
acknowledge that Arlington and Kmart Corporation (the "Bridge Borrowers") are
parties to that certain Loan Agreement dated as of October 31, 1991 among
such Borrowers and XXXXXXXXXX as agent and lender thereunder (as amended, the
"Bridge Agreement"), pursuant to which the Bridge Borrowers borrowed funds
from XXXXXXXXXX to commence certain of the Projects (the "Bridged Projects").
The Banks and the Managing Agent hereby agree with each of the Bridge
Borrowers that the Indebtedness of the Bridge Borrowers to XXXXXXXXXX under the
Bridge Agreement shall be repaid in full under this Agreement and further agree
that such portion of the proceeds of the Initial Project Loan made to each
Bridge Borrower hereunder with respect to a Bridged Project as is necessary to
pay in full all Indebtedness of such Bridge Borrower to XXXXXXXXXX under the
Bridge Agreement in respect of such Bridged Project shall be applied to
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repayment of such Indebtedness to XXXXXXXXXX, and that no Loan shall be
made to any Bridge Borrower hereunder for any other purpose until all
Indebtedness of such Borrower to XXXXXXXXXX under the Bridge Agreement shall be
repaid in full.
Section 2.3 Allocation of Total Commitment. (a) Each Borrower
hereunder shall, on the date of the Notice of Borrowing with respect to the
Initial Project Borrowing for any Project, submit to the Managing Agent a
written request (an "Allocation Request") to establish a Project Commitment.
Each Allocation Request shall:
(i) be in the form of Exhibit C hereto,
(ii) be approved by Guarantor,
(iii) specify the aggregate amount of the then Unallocated Total
Commitment which such Borrower desires to be allocated to such Project
(which amount shall not be less than the Project Budget submitted
therewith),
(iv) be accompanied by a copy of the Project Budget for such Project
(which shall also be approved by Guarantor), and
(vi) be accompanied by Notes issued by such Borrower payable to each of
the Banks in their respective Pro Rata Shares of the Project Commitment
requested.
(b) Any Borrower may, at any time, submit to the Managing Agent a
written request (an "Allocation Increase/Decrease Request") to increase or
decrease an established Project Commitment. Each Allocation Increase/Decrease
Request shall:
(i) be in the form of Exhibit D hereto,
(ii) be in a minimum amount of $100,000,
(iii) be approved by Guarantor,
(iv) be accompanied by a copy of the revised Project Budget for such
Project (which shall also be approved by Guarantor),
(v) specify the aggregate amount of the then Unallocated Total
Commitment which such Borrower desires to be added to such Project
Commitment then in effect with respect to the related Project or, if such
request is for a decrease in such Project Commitment, specify the aggregate
amount of such decrease (which amount shall then be added back to the then
Unallocated Total Commitment), provided that in no case may a decrease
reduce the Project Commitment to an amount less
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than the aggregate outstanding principal balance of all Loans then
outstanding with respect to the related Project,
(vi) specify the revised Project Commitment requested (which amount
shall not be less than the revised Project Budget submitted therewith, but
may not be less than the aggregate outstanding principal balance of all
Loans then outstanding with respect to the related Project), and
(vi) be accompanied by Amended Notes issued by such Borrower payable to
each of the Banks in their respective Pro Rata Shares of the requested
increased Project Commitment.
(c) The Managing Agent shall consider Allocation Requests and
Allocation Increase/Decrease Requests in the order received or if received on
the same day, in the order so directed by Guarantor or, if no such direction
is given, in the Managing Agent's sole discretion. Subject to the foregoing,
the Managing Agent, within five (5) Business Days, either shall establish a
Project Commitment in the amount set forth in the Allocation Request or
Allocation Increase/Decrease Request, as the case may be, or, if the
Unallocated Total Commitment at such time is insufficient or the conditions
precedent to any Borrowing requested in connection with such request are not
otherwise satisfied (or waived), shall notify the applicable Borrower and the
Banks that such commitment cannot be established.
Section 2.4 Terms of Borrowing. The Loans shall, except as otherwise
provided in this Agreement, be Prime Rate Loans or Eurodollar Rate Loans. As
to any Eurodollar Rate Loan, any Bank may, if it so elects, fulfill its
commitment by causing a foreign branch or Affiliate to make or continue such
Loan, provided that in such event that Bank's Loan shall, for the purposes of
this Agreement, be considered to have been made by that Bank and the
obligation of the applicable Borrower to repay that Bank's Loan shall
nevertheless be to that Bank and shall be deemed held by that Bank, for the
account of such branch or affiliate.
Section 2.5 Notice of Borrowing; Roll-Over Borrowings.
(a) Each Borrower hereunder shall be entitled to request only one
Borrowing (other than Roll-Over Borrowings) per month, and all Loans to all
Borrowers in any month shall be funded on the same date, which shall be a
Monthly Borrowing Date. Subject to Section 2.5(c) hereof, on or before ten
(10) Business Days prior to the Monthly Borrowing Date in any month in which
any Borrower desires to obtain a Eurodollar Rate Loan hereunder or a Prime
Rate Loan hereunder, such Borrower shall give the Managing Agent, at its
office located at XXXXXXXXXX, telecopied notice (given not later than 11:00
A.M. (New York time) and confirmed in writing) of the amount which such
Borrower desires to borrow as a
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Borrowing hereunder during such month. Each such notice (each a "Notice of
Borrowing") , which shall be in the form of Exhibit E hereto, shall become
irrevocable on the date which is three (3) Business Days prior to the
applicable borrowing date and shall specify the Project for which such
Borrowing will be used, the amount of such Borrowing, the date of Borrowing
(which shall be a Monthly Borrowing Date), and shall (i) certify that
construction of the Project has proceeded to such date within the overall
Project Budget and Borrower reasonably believes that completion of the
construction of the Project within the overall Project Budget will occur,
(ii) provide by line item in the Project Budget a summary of amounts expended
prior to the date of such requested Borrowing and amounts intended to be
expended from proceeds of such Borrowing and (iii) certify as such other
matters with respect to the relevant Project and the applicable Borrower as
may from time to time be required by the Managing Agent. In the event that
the applicable Borrower is unable to certify as to any of the matters
required to be set forth in the Notice of Borrowing and certified by such
Borrower, or in the event of any inaccuracy or discrepancy contained therein,
the Managing Agent and the Banks shall not be required to make the Borrowing
so requested unless and until such certifications, inaccuracies or
discrepancies are remedied to the Managing Agent's satisfaction. On or
before three (3) Business Days prior to any date of Borrowing hereunder, the
applicable Borrower shall give to the Managing Agent at its address specified
in this Section 2.5(a), a Rate Selection Notice with respect to such
Borrowing. The Managing Agent shall promptly give each Bank telephonic
notice (confirmed in writing) of each proposed Borrowing, of such Bank's
proportionate share thereof and of the other relevant matters covered by the
Notice of Borrowing and Rate Selection Notice. Without in any way limiting
each Borrower's obligation to confirm in writing any telephonic notice, the
Managing Agent may act without liability upon the basis of telephonic notice
believed by the Managing Agent in good faith to be from such Borrower prior to
receipt of written confirmation, each Borrower hereby waiving the right to
dispute the Managing Agent's record of the terms of such telephonic notice.
Schedule 2.5(a) hereto sets forth, by way of example, the dates of notices and
actions required by this Section 2.5(a).
(b) On the last day of an Interest Period for an outstanding
Eurodollar Rate Loan, the principal amount of the Loan represented by such
outstanding Borrowing shall, subject to the conditions precedent set forth in
Section 6.4 hereof, be reborrowed (unless otherwise paid or prepaid) by the
applicable Borrower as a Roll-Over Borrowing and having such an Interest
Period as specified in the relevant Rate Selection Notice given or deemed given
pursuant to Section 2.8(b) unless such Loan shall be converted to a Prime Rate
Loan pursuant to Section 2.7 (b) or Section 2.7(c) hereof. Notwithstanding
anything in this Agreement to the contrary, it is understood that Roll-Over
Borrowings do not constitute either new borrowings or disbursements by the
Banks of
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additional monies, the term "Roll-Over Borrowing" being used merely for
convenience of definition and to denote changes in interest rates.
(c) The aggregate principal amount of each Borrowing (except for
Roll-Over Borrowings and Interest Borrowings) by a Borrower hereunder shall
not be less than (i) in the case of a Prime Rate Loan, $25,000 and (ii) in
the case of a Eurodollar Rate Loan, $1 million; provided, however, that,
subject to the other terms and conditions hereof, on the date of any Roll-Over
Borrowing of a Eurodollar Rate Loan, such Loan may be increased by $25,000 or
more on the date of reborrowing thereof pursuant to the preceding subsection.
Section 2.6 Disbursement of Funds. Subject to the terms hereof, no
later than 1:00 P.M. (New York time) on the date specified in each Notice
of Borrowing, each Bank will make available its Pro Rata Share of each
Borrowing (except with respect to any Borrowing representing a Roll-Over
Borrowing in which case each Bank will be deemed to have made available its Pro
Rata Share of such Borrowing) requested to be made on such date in U.S.
Dollars and in immediately available funds, at the office (the "Payment
Office") of the Managing Agent located at XXXXXXXXXX (for the account of
such non-U.S. office of the Managing Agent as the Managing Agent may direct
in the case of Eurodollar Rate Loans) and the Managing Agent will make
available to the applicable Borrower at its Payment Office the aggregate of
the amounts so made available by the Banks. Unless the Managing Agent shall
have been notified by any Bank prior to the date of Borrowing that such Bank
does not intend to make available to the Managing Agent such Bank's Pro Rata
Share of the Borrowing to be made on such date, the Managing Agent may assume
that such Bank has made such amount available to the Managing Agent on such
date of Borrowing and the Managing Agent may, in reliance upon such
assumption, make available to the applicable Borrower a corresponding amount.
If such corresponding amount is not in fact made available to the Managing
Agent by such Bank on the date of Borrowing, the Managing Agent shall be
entitled to recover such corresponding amount on demand from such Bank. If
such Bank does not pay such corresponding amount forthwith upon the Managing
Agent's demand therefor, the Managing Agent shall promptly notify the
applicable Borrower and the applicable Borrower shall immediately pay such
corresponding amount to the Managing Agent. The Managing Agent shall also be
entitled to recover from the applicable Borrower interest on such
corresponding amount in respect of each day from the date such
corresponding amount was made available by the Managing Agent to the Borrower
to the date such corresponding amount is recovered by the Managing Agent, at
a rate per annum equal to the rate for Prime Rate Loans or Eurodollar Rate
Loans, as the case may be, applicable during the period in question. Any
amounts due hereunder to the Managing Agent from the Banks which are not paid
when due shall bear
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interest, from the date due until the date paid, at the Federal Funds Rate.
Nothing in this Section 2.6 shall be deemed to relieve any Bank from its
obligation to fulfill its Loan Commitment hereunder or to prejudice any rights
which any Borrower may have against the Bank as a result of any default by such
Bank hereunder.
Section 2.7 Interest. (a) Each Borrower agrees to pay interest in
respect of the unpaid principal amount of each Prime Rate Loan made to such
Borrower from the date the proceeds thereof are made available to such
Borrower until maturity (whether by acceleration or otherwise) of such Prime
Rate Loan, or until such Prime Rate Loan is converted into a Eurodollar Rate
Loan, at a fluctuating rate per annum equal to the Prime Rate in effect from
time to time.
(b) Each Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Rate Loan made to such Borrower from the
date the proceeds thereof are made available to such Borrower (whether
pursuant to a new Borrowing or a Roll-Over Borrowing) until maturity (whether
at the Interim Maturity Date, the Facility Termination Date or by
acceleration or otherwise) of such Eurodollar Rate Loan at a rate per annum
which, unless otherwise provided herein, shall be the relevant Eurodollar
Rate plus the Borrowing Margin. In the event that the Interim Maturity Date
applicable to any Eurodollar Rate Loan shall occur less than one month prior to
the Facility Termination Date, then from and after such Interim Maturity Date
such Loan shall be a Prime Rate Loan hereunder.
(c) Notwithstanding the rates of interest specified in clauses (a)
and (b) above and the payment dates specified below, effective immediately
upon the occurrence of any Guarantor Event of Default and for so long
thereafter as any such Guarantor Event of Default shall be continuing, the
principal balance of each Loan then outstanding and, to the extent permitted
by applicable law, any interest payment on each Loan not paid when due, shall
bear interest payable upon demand, after as well as before judgment, at a rate
per annum equal to two percent (2%) above the greater of (i) the Prime Rate
as specified in clause (a) above or as otherwise provided herein or, (ii) if
applicable, the rate at which a Eurodollar Rate Loan bears interest as
specified in clause (b) above (such rate of interest being the "Default
Rate").
(d) Interest shall accrue from and including the date of any Borrowing
to but excluding the date of any repayment thereof. Interest on Eurodollar Rate
Loans shall be payable by each Borrower in arrears on the applicable Interim
Maturity Date and in the case of an Interest Period in excess of three months
at intervals of every three months after the initial date of such Interest
Period, provided, however, that after the occurrence and during the continuance
of a Guarantor Event of Default with respect
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to each Borrower or a Borrower Event of Default with respect to any Borrower,
interest shall be payable by such Borrower or Borrowers monthly in arrears
every month after the initial date of such Interest Period. Notwithstanding
the above, interest shall be payable on any amount prepaid on the date of such
prepayment and upon final maturity of such Loan and after maturity, on demand.
Interest on each Prime Rate Loan shall be payable monthly in arrears on the
20th day of each calendar month or if such day is not a Business Day on the
next succeeding Business Day in such month, on the date on which such Prime
Rate Loan is converted to a Eurodollar Rate Loan, upon any prepayment to the
extent accrued on the amount prepaid, on maturity and, after maturity, on
demand. Interest on all Loans shall be computed on the basis of a year
consisting of 360 days and actual days elapsed.
(e) The Managing Agent, upon determining the Eurodollar Rate for any
Interest Period, shall promptly notify by telephone or in writing the
applicable Borrower and the other Banks thereof.
(f) If any interest payment or other charge or fee payable hereunder
exceeds the maximum amount then permitted by applicable law, the applicable
Borrower shall be obligated to pay the maximum amount then permitted by
applicable law and the applicable Borrower shall continue to pay the maximum
amount from time to time permitted by applicable law until all such interest
payments and other charges and fees otherwise due hereunder (in the absence of
such restraint imposed by applicable law) have been paid in full.
(g) When and as interest is due hereunder, the Managing Agent will
invoice each Borrower for accrued interest or otherwise provide each Borrower
with a written statement as to outstanding Borrowings hereunder and interest
accruing thereon, and the Managing Agent will concurrently mail a copy of each
such invoice or statement to the Guarantor; provided that the failure of the
Managing Agent to provide any such invoice shall not affect the obligations of
any Borrower to pay any such amounts when and as due hereunder.
(h) If any Borrower shall fail to pay interest when due hereunder, the
Managing Agent may, in its sole discretion, to the extent of the Unused
Project Commitment relating to the Loan or Loans for which interest is then
due, and as long as no Guarantor Event of Default shall then exist, advance
all or a part of the amount of such unpaid interest as a Loan to such
Borrower and upon notification to each Bank, each Bank severally and for
itself alone, hereby agrees, on the terms and subject to the conditions
hereinafter set forth, to make a loan (an "Interest Borrowing") to such
Borrower in the lesser of the amount of interest then due such Bank or the
applicable Unused Project Commitment. Any Interest Borrowing made hereunder
shall be made on the Monthly Borrowing Date corresponding to the date such
interest is due and if such
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Borrower has a Roll-Over Borrowing of a Eurodollar Rate Loan with an
interest period of approximately one month, such Borrowing shall be applied
to increase the principal amount of such Loan. In the event such
Borrower does not have a Roll-Over Borrowing of a Eurodollar Rate Loan with
an interest period of approximately one month, then such Interest Borrowing
shall be made as a Prime Rate Loan.
Section 2.8 Interest Periods. (a) Subject to Section 2.8(b), at the
time it gives any Notice of Borrowing of a Eurodollar Rate Loan, a Borrower
shall elect, by giving the Managing Agent written notice, the interest period
(each an "Interest Period") applicable to the related Borrowing, which
Interest Period shall, at the option of such Borrower, be an approximate period
of a one, two, three, six, or if available, nine or twelve months, with the
Interim Maturity Date for such Eurodollar Rate Loan corresponding to the
applicable Monthly Borrowing Date in the month of maturity so elected, provided
that:
(i) the Interest Period for any Eurodollar Rate Loan shall commence on
the date of such Borrowing and each Interest Period occurring thereafter in
respect of such Loan shall commence on the day on which the next preceding
Interest Period expires;
(ii) if any Interest Period would otherwise expire on a day which is not
a Business Day, such Interest Period shall expire on the next succeeding
Business Day, provided, however, that if any Interest Period in respect of
a Eurodollar Rate Loan would otherwise expire on a day which is not a
Business Day and after which no Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iii) no Interest Period shall extend beyond the Facility Termination
Date; and
(iv) no Borrower may have more than two (2) Eurodollar Tranches at any
one time outstanding one of which shall have an Interest Period of
approximately one month.
A Prime Rate Loan shall have no Interest Period but may (subject to the other
terms and conditions hereof), on any Monthly Borrowing Date and upon the
delivery by the applicable Borrower to the Managing Agent of a Rate Selection
Notice be converted to a Eurodollar Rate Loan as a Roll-Over Borrowing.
(b) Subject to the restrictions set forth in Sections 2.7(b) and (c)
and Section 2.8(a) above, on or before three (3) Business Days prior to the
date of any Interim Maturity Date, the applicable Borrower shall give the
Managing Agent a Rate Selection Notice with respect to the principal amount of
each Loan maturing
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on such Interim Maturity Date, provided, however, that if such Borrower fails
to provide such notice on a timely basis, such Borrower shall be deemed to
have requested a new Interest Period for such Loan equal to the number of
days until the next successive Monthly Borrowing Date, or if such new Interest
Period would violate clause (iii) of Section 2.8(a) above, equal to the longest
Interest Period which would be permitted at such time without violating such
clause.
Section 2.9 Increased Costs, Illegality, etc. (a) In the event that any
Bank shall have determined (which determination shall, absent manifest error,
be final and conclusive and binding upon all parties):
(i) on any date for determining the Eurodollar Rate for any
Interest Period, that by reason of any changes arising after the date of
this Agreement affecting the interbank Eurodollar market, adequate means
do not exist for ascertaining the applicable interest rate on the basis
provided for in the definition of Eurodollar Rate; or
(ii) at any time, that by reason of (A) any change since the date
of this Agreement in any applicable law or governmental rule, regulation,
guideline or order (or any official interpretation thereof and including
the introduction of any new law or governmental rule, regulation,
guideline or order) and/or (B) in the case of Eurodollar Rate Loans,
other circumstances affecting such Bank, the interbank Eurodollar market
or the position of such Bank in such market (such as, for example but
not limited to, a change in official reserve requirements, but excluding
reserve requirements which have been included in calculating the
Eurodollar Rate for a given Interest Period specified in the definition
of "Eurodollar Rate") or otherwise as to any Loan such Bank shall be
subject to any tax, duty or other charge with respect to its Loans or
there shall have been a change in the basis of taxation of payments to
such Bank (or its applicable lending office) of the principal of or
interest on its Loans or any other amounts due under this Agreement in
respect of its Loans (except for changes in the rate of tax on the overall
net income of such Bank or its applicable lending office imposed by the
jurisdiction in which such Bank's principal executive office or lending
office is located) such that the Eurodollar Rate shall not represent the
effective cost to such Bank for funding or maintaining the affected
Eurodollar Rate Loan; or
(iii) at any time, that the making or continuance of any Eurodollar
Rate Loan has become unlawful as a result of compliance by such Bank in
good faith with any law, governmental rule, regulation, guideline or
order, or has become impracticable as a result of a contingency occurring
after the date of this Agreement; or
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(iv) any reserve, deposit or similar requirement is or
shall be applicable, imposed or modified in respect of any Loans or
commitments to make Loans (but excluding reserve requirements which
have been included in calculating any interest rate with respect
thereto);
then and in any such event, such Bank shall promptly give notice (by telephone
confirmed in writing) to the appropriate Borrower and to the Managing Agent of
such determination (which notice the Managing Agent shall promptly transmit to
each of the other Banks). Thereafter (A) in the case of clauses (ii) and (iv),
each Borrower shall pay to such Bank, upon written demand therefor, such
additional amounts (in the form of an increased rate of, or a different method
of calculating, interest or otherwise as such Bank in its sole discretion shall
determine) as shall be required to cause such Bank to receive interest with
respect to its affected Loans at a rate per annum which shall be an amount
equal to the applicable interest rate plus the Borrowing Margin then in effect,
if any, with respect to such Loans plus such additional amounts as will
compensate such Bank for the effective cost to the Bank to make or maintain
such Loans and (B) in the case of clause (iii) take one of the actions
specified in Section 2.9(b) as promptly as possible and, in any event, within
the time period required by law.
(b) At any time that any of its Eurodollar Rate Loans are affected
by any of the circumstances described in Section 2.9(a)(i) or (iii), the
relevant Borrower may (and in the case of a Eurodollar Rate Loan affected
pursuant to Section 2.9(a)(i) or (iii) shall):
(i) if the affected Eurodollar Rate Loans are yet
to be made pursuant to a Notice of Borrowing, either:
(A) withdraw the related Notice of Borrowing by
giving the Managing Agent telephonic (confirmed in writing)
notice thereof on the same date that such Borrower was
notified by any Bank pursuant to Section 2.9(a) hereof, or
(B) borrow such Borrowing as a Prime Rate Loan;
and
(ii) if the affected Eurodollar Rate Loan or Loans are
then outstanding, reborrow each Eurodollar Rate Loan so affected on
the next following Interim Maturity Date as a Prime Rate Loan or Prime
Rate Loans;
provided that if more than one Bank is affected at any time, then all affected
Banks must be treated the same pursuant to this Section 2.9(b). Until the
Managing Agent notifies such Borrower that the circumstances described in
Section 2.9(a)(i) or (iii) no longer exist, the obligations of the Banks to
make Eurodollar Rate
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Loans, as the case may be, shall be suspended, but, subject to the other terms
and conditions of this Agreement, the Banks' obligations to make Prime Rate
Loans shall not be suspended.
(c) Promptly after giving any notice to any Borrower pursuant to
Section 2.9(a), any Bank giving such notice will use its best efforts to
designate one of its offices located at an address other than that set forth in
Section 9.3 as the office from which its Pro Rata Share of any Borrowings will
be made after such designation if such designation will avoid the need for, or
reduce the amount of, any payment to which such Bank would otherwise be
entitled pursuant to Section 2.9(a) and will not, in the sole discretion of
such Bank, be otherwise disadvantageous to such Bank or contrary to its
internal policies.
(d) Without limiting the foregoing, in the event that any Bank (an
"Affected Bank") shall have determined that the adoption of any law, treaty, or
governmental (or quasi-governmental) rule, regulation, guideline or order
regarding capital adequacy, or any change therein or in the interpretation or
application thereof, or compliance by any Bank with any request or directive
regarding capital adequacy (whether or not having the force of law and whether
or not failure to comply therewith would be unlawful) from any central bank or
governmental agency or body having jurisdiction (a "Change in Law"), does or
shall have the effect of increasing the amount of capital required to be
maintained by such Bank or reducing the rate of return on such Bank's capital
as a consequence of its obligations hereunder to a level below that which such
Bank could have achieved but for such adoption, change or compliance (taking
into consideration such Bank's policies with respect to capital adequacy), then
each Borrower shall from time to time, within five (5) Business Days after
written notice and demand from such Bank, pay to such Bank, additional amounts
sufficient to compensate such Bank for the cost of such additional required
capital to the extent not otherwise reflected in the calculation of the Prime
Rate and Eurodollar Rate, as applicable, or such additional amount or amounts
as will compensate such Bank for such reduced rate of return, provided,
however, that if (i) a Bank has advance knowledge of a Change in Law, (ii) such
Bank is or becomes aware that such Change in Law will result in a determination
of increased cost under this Section 2.9(d) and (iii) the amount of such
increased cost is determinable in advance, then such Bank shall use reasonable
efforts to provide at least thirty (30) days (or such shorter period when each
of (i), (ii) and (iii) above are true) advance notice and demand for such
additional amounts. A certificate as to the amount of such cost, submitted to
such Borrower by such Bank, shall, absent manifest error, be final, conclusive
and binding for all purposes.
(e) In the event any Borrower shall be required to pay any
increased cost to any Bank pursuant to the foregoing provisions of this Section
2.9, such Borrower shall be entitled, by so
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notifying the Managing Agent and such Bank within thirty (30) days after such
Bank notifies such Borrower of any such increased cost, to arrange for the
substitution of another lender (which shall be an Eligible Assignee) for such
Bank within sixty (60) days thereafter pursuant to the relevant provisions of
Section 9.8(c), whereupon, upon the effectiveness of such substitution, the
affected Loans and the Loan Commitment and Project Commitments of such Bank
shall be assigned to such assignee; provided, however, that:
(i) the Bank shall be entitled to withdraw its notice of
increased taxes or costs within a period of thirty (30) days from the
date of notice by such Borrower, whereupon such Borrower shall no
longer be entitled to substitute for the Bank as described above;
(ii) in no event shall such Borrower be entitled to
substitute for an Bank unless the net present value of the additional
cost to such Borrower (including closing costs) of such substitution
is less than the net present value of the additional cost (including
increased taxes and costs payable pursuant to this Section 2.9) to
such Borrower of maintaining such Loans of the Bank (discounted to the
time in question using the same assumed rate of interest); and
(iii) in all events (other than that described in clause
(i) above), such Borrower shall remain liable for the increased
taxes and costs of the Bank for the period prior to such prepayment of
the Bank's Loans or the substitution of the assignee.
Section 2.10 Compensation. Each Borrower shall compensate
each Bank, upon its written request (which request shall set forth the basis
for requesting such amounts), for all losses, expenses and liabilities
(including, without limitation, any interest paid by such Bank to lenders of
funds borrowed by it to make or carry its Eurodollar Rate Loans to the extent
not recovered by the Bank in connection with the re-employment of such funds
and including the compensation payable by such Bank to a Person to which the
Bank has participated all or a portion of such Borrowing) and any loss
sustained by such Bank in connection with the re-employment of such funds
(including, without limitation, a return on such reemployment that would result
in such Bank receiving less than it would have received had such Eurodollar
Rate Loan remained outstanding until the last day of the Interest Period
applicable to such Eurodollar Rate Loan) which the Bank may sustain as a result
of:
(i) for any reason (other than a default by such Bank or the
Managing Agent) a Borrowing of Eurodollar Rate Loans does not occur on
a date specified therefor in a Notice of Borrowing (whether or not
withdrawn);
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(ii) any payment, prepayment or reborrowing of any
Eurodollar Rate Loan occurring for any reason whatsoever on a date
which is not the last day of an Interest Period applicable thereto; or
(iii) any other failure by such Borrower to repay its Loans
when required by the terms of this Agreement.
Section 2.11 Responsibility for Making Loans. No Bank shall be
responsible for any default by any other Bank in its obligation to make Loans
hereunder and each Bank shall be obligated to make the Loans provided to be
made by it hereunder, regardless of the failure of any other Bank to fulfill
its Loan Commitment hereunder.
Section 2.12 Withholding Tax Exemption. At least five Business Days
prior to the first date on which interest or fees are payable hereunder for the
account of any Bank, each Bank that is not incorporated under the laws of the
United States of America, or a state thereof, agrees that it will deliver to
the Managing Agent two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224, certifying in either case that such Bank is entitled
to receive payments under this Agreement and the Notes without deduction or
withholding of any United States federal income taxes. Each Bank which so
delivers a Form 1001 or 4224 further undertakes to deliver to the Managing
Agent two additional copies of such form (or a successor form) on or before the
date that such form expires (currently, three successive calendar years for
Form 1001 and one calendar year for Form 4224) or becomes obsolete or after the
occurrence of any event requiring a change in the most recent forms so
delivered by it, and such amendments thereto or extensions or renewals thereof
as may be reasonably requested by the Managing Agent, in each case certifying
that such Bank is entitled to receive payments under this Agreement and the
Notes without deduction or withholding of any United States federal income
taxes, unless an event (including without limitation any change in treaty, law
or regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Bank from duly completing and delivering any such form with
respect to it and such Bank advises the Managing Agent that it is not capable
of receiving payments without any deduction or withholding of United States
federal income tax.
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ARTICLE III
TERMINATION OF LOAN COMMITMENTS, PREPAYMENTS AND FEES
Section 3.1 Mandatory Reduction of the Loan Commitments. If at any
time for any Project, the principal amount of a Loan by any Bank for such
Project exceeds the Project Commitments of such Bank then in effect with
respect to such Project, the applicable Borrower shall immediately prepay the
Loan Obligations incurred with respect to such Project, and the Notes
evidencing such Loan Obligations, in an aggregate principal amount equal to
such excess. If any Guarantor Event of Default shall have occurred and the
Managing Agent shall have notified the Borrowers of the election of the
Required Banks to take any action specified in Section 7.1, the Loan Commitment
and each Project Commitment of each Bank shall be automatically reduced to $0
without any action on the part of or the giving of notice to any Borrower by
the Managing Agent or any Bank. If a Borrower Event of Default shall have
occurred and the Managing Agent shall have notified the relevant Borrower of
the election of the Required Banks to take any action specified in Section 7.2,
the Project Commitment of each Bank for all Projects of such Borrower shall be
automatically reduced to $0 without any action on the part of or the giving of
notice to such Borrower by the Managing Agent or any Bank.
Section 3.2 Voluntary Reduction of the Total Commitment or any Project
Commitment. (a) After the Initial Borrowing Date, the Guarantor (which the
Borrowers hereby jointly and severally irrevocably designate as their
collective agent for such purpose) shall have the right, upon at least five (5)
Business Days' prior written notice to the Banks, without premium or penalty,
to permanently reduce or terminate the unutilized portion of the Unallocated
Total Commitment of the Banks, in whole at any time or in part from time to
time, in a minimum amount of $5 million (unless the amount of such Unallocated
Total Commitment at such time is less than $5 million, in which case, in an
amount equal to the amount of such Total Commitment at such time) and, if such
reduction is greater than $5 million, in an integral multiple of $1 million,
provided that any such reduction shall apply proportionately to the Loan
Commitment of each of the Banks. The Total Commitment shall not be so reduced
below the aggregate principal amount of outstanding Loans nor shall the Total
Commitment be reduced below the amount of the Total Project Commitment at such
time.
(b) After the Completion Date with respect to any Project, the
Guarantor (which the Borrowers hereby jointly and severally irrevocably
designate as their agent for such purpose) shall have the right, upon at least
five (5) Business Days' prior written notice to the Banks, without premium or
penalty, to permanently reduce or terminate the unutilized portion of the
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Project Commitment of the Banks with respect to such Project, or to reallocate
the unutilized portion of such Project Commitment to any other Project. The
Project Commitment for any Project shall not be so reduced below the aggregate
principal amount of outstanding Loans for such Project.
Section 3.3 Voluntary Prepayments of the Loan Obligations. Any
Borrower may, as hereinafter provided, prepay the Loan Obligations of such
Borrower, and the Notes evidencing the same, in whole at any time or in part
from time to time as provided herein, without premium or penalty, but subject
to the provisions of Section 2.10. Any partial prepayment of the Loan
Obligations of such Borrower pursuant to this Section 3.3 shall be in a minimum
aggregate amount of not less than $1 million. The relevant Borrower shall
irrevocably give notice (by telegram or telecopier, or by telephone (confirmed
in writing promptly thereafter)) to the Managing Agent (which shall promptly
advise each other Bank) of each proposed prepayment hereunder, prior to 10:00
A.M., New York time, on the second Business Day prior to the proposed
prepayment date, which notice shall specify the proposed prepayment date (which
shall be a Business Day) and the aggregate principal amount of the proposed
prepayment and the Project or Projects (and the Notes) to which such prepayment
applies. Upon giving of such irrevocable notice, the amount specified to be
prepaid shall become due and payable in full on the date specified in such
notice. Neither the Total Commitment nor the Loan Commitment of any Bank shall
be reduced pursuant to any such prepayment, unless the Borrowers shall have
requested such a reduction in compliance with the provisions of Section 3.2.
Section 3.4 Mandatory Prepayment of the Loan Obligations.
(a) If any Borrower or any of its Subsidiaries receives any Net
Proceeds with respect to any Project (whether in cash or securities), then such
Borrower shall prepay any outstanding Loans relating to such Project, and the
Notes evidencing the same, promptly (but in any event within five (5) Business
Days) to the extent of such proceeds for the ratable benefit of the Banks;
(b) If any Borrower receives any proceeds of a refinancing
incurred in connection with a Permitted Third Party Mortgage, then such
Borrower shall immediately prepay any outstanding Loans relating to the Project
encumbered by such mortgage, and the Notes evidencing such Loans, to the extent
of such proceeds (net of the cost of such refinancing) and, in the event such
proceeds are not sufficient to pay in full all of the Project Loans (and Notes
evidencing such Loans) for such Project, then such Borrower shall, not later
than twenty-four months after the date such Permitted Third Party Mortgage is
incurred or at such earlier date, as required by this Agreement, pay in full
the unpaid principal balance of the Project Loans for such Project and the
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Notes evidencing such Loans, together with accrued interest thereon, and any
unused Project Commitment with respect to such Project shall thereupon
terminate.
(c) Prepayments made pursuant to this Section 3.4 shall be treated
according to Section 3.5 to the extent that they are to be applied to
Eurodollar Rate Loans for which the relevant Interest Period has not expired at
the time of prepayment. Prepayments made pursuant to this Section 3.4 shall be
treated according to Section 3.6 for determining the order of application of
prepayments to the Loans.
Section 3.5 Other Provisions With Respect to Prepayments. Except as
otherwise provided herein, any repayment of a Eurodollar Rate Loan which shall
be made prior to the end of the applicable Interest Period for such Loan shall
be subject to the provisions of Section 2.10 hereof. Subject to the
obligations of the Managing Agent provided for in this Section 3.5, at the
option of the affected Borrower, any monies otherwise required to be used to
repay such Eurodollar Rate Loan may be so applied provided that such Borrower
concurrently pays any amount due under Section 2.10 hereof in respect of such
prepayment; otherwise if the relevant Interest Period for such Eurodollar Loan
has not expired such funds (the "Deposited Monies") shall, until the end of the
applicable Interest Period when the Deposited Monies shall be applied to make
such prepayment, be held in trust by the Managing Agent (or, at the Managing
Agent's option, as cash collateral) for the Banks in a noninterest bearing
account and the relevant Borrower shall have no right to or interest in such
funds and such funds shall be used to prepay such Eurodollar Rate Loan at the
end of the applicable Interest Period; provided, however, that any funds held
in such account shall be invested by the Managing Agent (to the extent the
Managing Agent is able to do so) on behalf of the relevant Borrower at the
direction of such Borrower in Permitted Investments selected by such Borrower
and having a maturity not exceeding the Business Day prior to the end of the
relevant Interest Period. Interest on the applicable Project Loan Obligations
shall continue to accrue until the Deposited Monies are applied to the
prepayment thereof. Any such investments shall be held by the Managing Agent
or under the control of the Managing Agent. The interest accruing on such
investments and any profits realized from such investments shall be, after
giving effect to such repayment of such Loans with the Deposited Monies, paid
to the relevant Borrower; provided that any loss resulting from such
investments shall be charged to and be immediately payable by such Borrower
upon demand of the Managing Agent. A prepayment so made by the Managing Agent
from such Deposited Monies shall be treated as a prepayment by such Borrower
pursuant to Section 3.3 (except that such prepayment shall not be subject to
the minimum prepayment amount requirements of Section 3.3) and shall be
otherwise governed by such Section.
Section 3.6 Order of Prepayments and Payments.
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(a) All prepayments of principal made by any Borrower pursuant to
Sections 3.3 and 3.4 shall be applied to the payment of the outstanding balance
of the applicable Project Loan and the Note evidencing the same as directed by
such Borrower with respect to breakage of Interest Periods, provided that no
Guarantor Event of Default and no Borrower Event of Default as to such Borrower
has occurred and is then continuing. Any prepayment of principal made after
the occurrence and during the continuance of a Guarantor Event of Default or a
Borrower Event of Default as to the applicable Borrower shall be applied
against the Loan Obligations of such Borrower and the Notes evidencing the same
as the Managing Agent shall, in its sole discretion, determine.
(b) Except as set forth in Section 5.1(g) any prepayments of a
Loan pursuant to Sections 3.3 and 3.4 shall permanently reduce by a like amount
the pro rata Project Commitment of each of the Banks corresponding to the
Project Loan so prepaid.
Section 3.7 Unused Commitment Fees. From and after the date hereof
the Borrowers shall pay to the Managing Agent for the pro rata distribution to
each Bank a fee in an amount in the aggregate equal to (a) the Total Unused
Commitments multiplied by (b) one quarter of one percent (.25%) per annum;
provided, however that such fee shall be increased to .35% per annum in the
event that the long-term Indebtedness of the Guarantor shall be rated BBB or
lower by Standard & Poor's Corporation or Baa2 or lower by Xxxxx'x Investors
Service, Inc. Such fee shall be calculated on the basis of a 360-day year for
the actual number of days elapsed. Such fee shall be payable in arrears on the
Monthly Borrowing Date occurring on each quarterly anniversary of the first
Monthly Borrowing Date following the Closing Date and at maturity, whether on
the termination of this Agreement or earlier and shall be allocated among the
Borrowers as follows: (i) if no Guarantor Event of Default has occurred and is
continuing, in such manner as Guarantor shall designate from time to time or,
if no designation is made, pro rata to each Borrower in proportion to its
aggregate Project Commitments outstanding as of the date such fee is payable;
and (ii) if a Guarantor Event of Default shall have occurred and be continuing,
then pro rata to each Borrower, in proportion to its respective Project
Commitments as of the date such fee is payable or, if no Project Commitments
are then outstanding, equally to each Borrower.
Section 3.8 Fees. Each Borrower shall pay to the Managing Agent the
fees due and owing as set forth in the Fee Letter.
Section 3.9 Net Payments. (a) All payments by any Borrower under this
Agreement or under any Note shall be made without set-off or counterclaim and
in such amounts as may be necessary in order that all such payments (after
deduction or withholding for or on account of any present or future taxes,
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levies, imposts, duties or other charges of whatsoever nature imposed by any
government or any political subdivision or taxing authority thereof, other than
any tax on or measured by the overall net income of a Bank pursuant to the
income tax laws of the United States of America or the jurisdictions where such
Bank's principal or lending offices are located (collectively the "Taxes"))
shall not be less than the amounts otherwise specified to be paid under this
Agreement or such Note, as applicable. A certificate as to any additional
amounts payable to a Bank under this Section 3.9 submitted to the appropriate
Borrower by such Bank shall show in reasonable detail the amount payable and
the calculations used to determine in good faith such amount and shall, absent
manifest error, be final, conclusive and binding upon all parties hereto. With
respect to each deduction or withholding for or on account of any Taxes, the
appropriate Borrower shall promptly furnish to each Bank such certificates,
receipts and other documents as may be reasonably required (in the judgment of
such Bank) to establish any tax credit to which such Bank may be entitled.
(b) All payments to be made by any Borrower on account of
principal and interest of any Loan shall be made to the Managing Agent at its
Payment Office in New York, New York for the ratable account of the Banks not
later than 11:00 A.M. (New York time) on the date when due in each case in
lawful money of the United States of America and in immediately available
funds. If any payment hereunder or under any Note becomes due and payable on a
day other than a Business Day, such payment shall be extended to the next
succeeding Business Day (except in the case of a payment made with respect to
an Interest Period which expires on the next preceding Business Day pursuant to
Section 2.8(a) , in which case such payment shall be made on such next
preceding Business Day), and, with respect to payments of principal and
interest thereon, interest thereon shall be payable at the then applicable rate
during such extension. Each determination by the Managing Agent of an interest
rate or fee under this Agreement or any Note, absent manifest error, shall be
final, conclusive and binding for all purposes.
Section 3.10 Options to Extend Term. (a) Provided that no Guarantor
Event of Default and no Unmatured Guarantor Event of Default shall have
occurred and be continuing on January 20, 1995, and provided further that the
long-term Indebtedness of the Guarantor shall not then be rated BBB or lower by
Standard & Poor's Corporation or Baa2 or lower by Xxxxx'x Investors Service,
Inc., Borrowers, acting through Guarantor (which Borrowers hereby jointly and
severally irrevocably designate as their collective agent for such purpose)
shall have the option to extend the Facility Termination Date for an additional
year from January 20, 1995 to but not including January 21, 1996, exercisable
by written notice given by Guarantor, acting as agent for all Borrowers, which
notice shall be delivered to Managing Agent not earlier than ninety (90) days
and not later than thirty (30) days prior to January 20, 1995. Upon exercise
of such option to extend, a fee equal to one tenth
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of one percent (0.1%) of the Total Commitment in effect at the time such
extension becomes effective shall be payable jointly and severally by the
Borrowers to Managing Agent for the benefit of the Banks in proportion to their
respective Loan Commitments then in effect. Such fee shall be in addition to
all other fees payable hereunder and shall payable in full not later than
January 20, 1995.
(b) Provided that no Guarantor Event of Default and no Unmatured
Guarantor Event of Default shall have occurred and be continuing on January 21,
1996, and provided further that the option to extend the Facility Termination
Date set forth in Section 3.10(a) above shall have been exercised, and provided
further that the long-term Indebtedness of the Guarantor shall not then be
rated BBB or lower by Standard & Poor's Corporation or Baa2 or lower by Xxxxx'x
Investors Service, Inc., Borrowers, acting through Guarantor (which Borrowers
hereby jointly and severally irrevocably designate as their collective agent
for such purpose) shall have the option to extend the Facility Termination Date
for an additional year from January 21, 1996 to but not including January 20,
1997, exercisable by written notice given by Guarantor, acting as agent for all
Borrowers, which notice shall be delivered to Managing Agent not earlier than
ninety (90) days and not later than thirty (30) days prior to January 21, 1996.
Upon exercise of such option to extend, a fee equal to one tenth of one percent
(0.1%) of the Total Commitment in effect at the time such extension becomes
effective shall be payable jointly and severally by the Borrowers to Managing
Agent for the benefit of the Banks in proportion to their respective Loan
Commitments then in effect. Such fee shall be in addition to all other fees
payable hereunder and shall be payable in full not later than January 21, 1996.
(c) In the event that the Facility Termination Date is extended
pursuant to either Section 3.10(a) or Section 3.10(b) hereof, each Borrower
with outstanding Loans hereunder shall concurrently therewith execute and
deliver to the Banks amended Notes evidencing such extension of the maturity of
the Loans evidenced thereby ("Extension Notes"), which shall each be in
substantially the form of Exhibit B-3 hereto, duly completed. Upon receipt of
such amended Notes, the Notes which have been amended thereby shall be deemed
superseded and of no further effect and shall be returned to the Borrowers
which issued the same.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of the Borrowers. Each
Borrower represents and warrants to the Managing Agent and to each Bank with
respect to itself and its partners or joint venturers, as follows:
(a) Organization, Standing, etc. Such Borrower is a general
partnership or corporation duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of organization and is
an Eligible Borrower. Each such Borrower which is a corporation is duly
qualified and in good standing as a foreign corporation, and is duly authorized
to do business, in each jurisdiction in which the failure to so qualify would
have a material adverse effect on the business, condition, assets or operations
of such Borrower. Such Borrower and its subsidiaries have all requisite
partnership or corporate power and authority to own, operate and encumber its
property and assets and to carry on its business as presently conducted and as
proposed to be conducted. Such Borrower has all requisite power and authority
(partnership, corporate or otherwise) (i) to execute, deliver and perform its
obligations under each of the Loan Documents to which it is a party, and (ii)
to execute, deliver and perform its obligations under all other agreements and
instruments executed and delivered by it pursuant to or in connection with any
Loan Document to which it is a party. Since its organization to the date
hereof, such Borrower has not engaged in any business activity other than that
related to the Projects.
(b) Organization Documents. A complete and correct copy of
each of the Organizational Documents of such Borrower in effect on the date of
this Agreement or the date when such Borrower became a party to this Agreement
has been delivered to the Managing Agent.
(c) Subsidiaries. Such Borrower has no direct or indirect
Subsidiaries except such as may be or have been established in accordance with
Section 5.2(m).
(d) Conflicting Agreements and Other Matters. The execution,
delivery and performance by such Borrower of each of the Loan Documents to
which it is a party and all other agreements and instruments to be executed and
delivered by such Borrower pursuant thereto or in connection herewith or
therewith do not and will not:
(i) violate any provisions of any law, rule,
regulation, order, writ, judgment, decree, determination or award
presently in effect having applicability to such Borrower or any of
its Subsidiaries;
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(ii) conflict with or result in a breach of or
constitute a tortious interference with or constitute a default under
the Organizational Documents of either such Borrower or any of its
Subsidiaries or any indenture or loan or credit agreement, or any
other agreement or instrument, to which such Borrower or any of its
Subsidiaries is a party or by which such Borrower or any of its
Subsidiaries or any of their respective properties may be bound or
affected, or any governmental permit, license or order;
(iii) result in (except for Permitted Liens) or
require the creation or imposition of any Lien of any nature upon or
with respect to any of the properties now owned or hereafter acquired
by such Borrower or any of its Subsidiaries; or
(iv) require any approval of stockholders or any
approval or consent of any Person, except for such approvals or
consents which will have been obtained before the Initial Borrowing
Date for such Borrower.
Neither such Borrower nor any of its Subsidiaries is in default under or in
violation of any such law, rule, regulation, license, order, permit, writ,
judgment, decree, determination, award, indenture, agreement or instrument
described above or under its certificate of incorporation or by-laws, or other
organizational documents, as the case may be, in each case the consequences of
which default or violation, either in any one case or in the aggregate, would
materially and adversely affect the condition (financial or otherwise),
properties, business, prospects or results of operations of such Borrower and
its Subsidiaries taken as a whole.
(e) Due Execution, etc. The execution, delivery and
performance of each of the Loan Documents to which such Borrower is a party and
the consummation of the transactions on its part contemplated thereby, have
been duly authorized by all necessary partnership or corporate proceedings and
no other proceedings on the part of such Borrower are necessary to authorize
each of the Loan Documents to which such Borrower is a party. Each of the Loan
Documents to which it is a party and each other agreement or instrument
executed and delivered by such Borrower pursuant hereto or thereto or in
connection herewith or therewith has been duly executed and delivered by such
Borrower and constitutes or will constitute a legal, valid and binding
obligation of such Borrower, enforceable against such Borrower in accordance
with its respective terms (subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other similar laws affecting the enforcement of
creditors' rights generally and general equitable principles which may limit
the right to obtain the remedy of specific performance of executory covenants
and other equitable remedies). Each of the Loan Documents to which it is a
party is in full force and effect and no term or condition thereof has been
amended, modified or
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waived from the terms and conditions of the Loan Documents delivered to the
Managing Agent pursuant to Section 6.1 hereof without the prior written consent
of the Managing Agent, and such Borrower and the other parties thereto have
performed and complied in all material respects with all the terms, provisions,
agreements and conditions set forth therein and required to be performed or
complied with by such parties on or before the Initial Borrowing Date, and no
default by such Borrower or any of the other parties thereto exists thereunder.
(f) Indebtedness for Money Borrowed. Except for such
Borrower's obligations hereunder and except as permitted by Section 5.2(b),
such Borrower has no Indebtedness for Money Borrowed.
(g) Title to and Condition of Properties. Such Borrower has
good and marketable title to, or a subsisting leasehold interest in, all items
of real and personal property reflected in any balance sheet of such Borrower
delivered to the Banks from time to time pursuant to Section 5.1(a) of this
Agreement or acquired by it after the date of such balance sheet, except for
assets sold, transferred or otherwise disposed of in the ordinary course of
business since the date of such balance sheet, in each case (except as to
leasehold interests) free and clear of all Liens, except Permitted Liens and
other Liens permitted by Section 5.2 hereof. To the knowledge of such Borrower
after due inquiry, there are no actual, threatened or alleged defaults of a
material nature with respect to any leases of real property under which such
Borrower or any of its Subsidiaries is lessee or lessor.
(h) Litigation, Proceedings, Licenses, Permits; etc. There
are no actions, suits, proceedings or investigations pending or, to the
knowledge of such Borrower after due inquiry, threatened against or affecting
it or any of its Subsidiaries or any of its or their respective properties
before any court, governmental agency or regulatory authority (foreign,
Federal, state or local), which, if determined adversely to such Borrower or
any of its Subsidiaries, (i) would enjoin or otherwise materially interfere
with the satisfactory completion of any Project, the transactions contemplated
by the Loan Documents or have a material adverse effect on the condition
(financial or otherwise), properties, business, or results of operations of
such Borrower and its Subsidiaries taken as a whole, or (ii) would
(individually or in the aggregate) materially impair such Borrower's or any of
its Subsidiaries' ability to perform fully any obligations on a timely basis
which any of them has under or in connection with any Loan Document. Neither
such Borrower nor any of its Subsidiaries, (i) is in default with respect to
any order of any court, arbitrator or governmental body or is subject to or
party to any order of any court or governmental authority arising out of any
action, suit or proceeding against it under any statute or other law respecting
antitrust, monopoly, restraint of trade, unfair competition or similar matters,
or (ii) has violated or is in violation of any
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statute, rule or regulation of any governmental authority in each case where
such violation or default would materially and adversely affect the condition
(financial or otherwise), properties, business, or results of operations of
such Borrower and its Subsidiaries taken as a whole. Such Borrower and each of
its Subsidiaries have been and are current and in good standing with respect to
all governmental approvals, permits, certificates, licenses, inspections,
consents and franchises necessary to continue to conduct their respective
businesses and to own or lease and operate their respective properties as
heretofore conducted, owned, leased or operated.
(i) Governmental Consents, etc. Except as already received
by such Borrower as of the date hereof, no authorization, consent, approval,
license, qualification or formal exemption from, nor any filing, declaration or
registration with, any court, governmental agency or regulatory authority or
any securities exchange or any other Person is required in connection with the
execution, delivery and performance by such Borrower of this Agreement.
(j) No Material Adverse Change. As of the date hereof, since
the end of its most recently ended fiscal year, there has been no material
adverse change in the condition (financial or otherwise), properties,
business, or results of operations of Guarantor and its Subsidiaries taken as a
whole.
(k) Compliance with Laws. The operations of such Borrower
and each of its Subsidiaries comply in all material respects with all
applicable environmental, health and safety requirements under federal, state
and local laws and with all other laws and regulations where such failure to so
comply could have a material adverse effect on such Borrower or its assets.
(l) ERISA. No Borrower has or will at any time have any
Plans.
(m) Governmental Regulation. Neither such Borrower nor any
of its respective Subsidiaries is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, the Interstate
Commerce Act, the Investment Company Act of 1940 or any other federal or state
statute or regulation such that its ability to incur indebtedness is limited or
its ability to consummate the transactions contemplated hereby is materially
impaired.
(n) Federal Reserve Regulations. Neither such Borrower nor
any of its respective Subsidiaries is engaged, directly or indirectly,
principally, or as one of its important activities, in the business of
extending, or arranging for the extension of, credit for the purpose of
purchasing or carrying any margin stock within the meaning of Regulation G, T,
U or X of the Board.
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(o) Disclosure. The Loan Documents and any other document,
certificate or statement furnished or to be furnished to the Managing Agent or
any Bank by or on behalf of such Borrower or any of its Subsidiaries in
connection herewith or therewith do not and will not contain any untrue
statement of a material fact and do not and will not omit to state a material
fact necessary in order to make the statements made by such Borrower or any of
its Subsidiaries contained herein and therein not misleading in light of the
circumstances in which made.
(p) Solvency. Such Borrower is Solvent and will continue to
be Solvent after giving effect to the transactions contemplated by the Loan
Documents.
(q) Bridge Agreement. As of the date hereof, no "Guarantor
Event of Default", "Borrower Event of Default", "Unmatured Guarantor Event of
Default" or "Unmatured Borrower Event of Default" (as such terms are defined in
the Bridge Agreement) exists under the Bridge Agreement.
(r) Survival of Warranties. All representations and
warranties contained in this Agreement shall survive the execution and delivery
of this Agreement and the termination hereof. Any modifications or supplements
to the disclosures contained in this Agreement and provided by such Borrower
after the date hereof shall not be deemed a part of the Agreement until
accepted in writing by the Managing Agent.
ARTICLE V
COVENANTS
Section 5.1 Affirmative Covenants of each Borrower. Each Borrower
will:
(a) Furnish to each Bank:
(i) Within three (3) days after such Borrower shall have
obtained knowledge of the occurrence of a Guarantor Event of Default
and/or an Unmatured Guarantor Event of Default and/or a Borrower Event of
Default and/or an Unmatured Borrower Event of Default, the written statement of
a Responsible Officer of such Borrower setting forth the details of each such
Guarantor Event of Default, Unmatured Guarantor Event of Default, Borrower
Event of Default or Unmatured Borrower Event of Default which has occurred and
is continuing and the action which such Borrower or the Guarantor, as the case
may be, proposes to take with respect thereto,
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(ii) Copies of any annual financial statements required
to be provided by such Borrower to its equity holders or partners by
law or under its Organizational Documents, as and when the same are
provided to such equity holders. If so requested by the Managing
Agent, such Borrower shall also provide to the Managing Agent any
monthly and quarterly financial statements required to be provided by
such Borrower to its equity holders under its Organizational
Documents (as in effect from time to time), within the time periods
required thereunder. Each Borrower shall also send copies of all
financial statements delivered to the Managing Agent hereunder to
XXXXXXXXXX,
(iii) Promptly following such Borrower's receipt
thereof, copies of all financial or other reports or statements
submitted to such Borrower or any Subsidiary of such Borrower by
independent public accountants relating to any annual or interim
audit of the books of such Borrower or any Subsidiary of such
Borrower,
(iv) Promptly upon obtaining knowledge thereof,
notice of any action, suit, proceeding or investigation pending or
threatened against or affecting such Borrower or any Subsidiary of
such Borrower or any of its or their respective properties before any
court, governmental agency or regulatory authority (foreign, Federal,
state or local), which, if determined adversely to such Borrower or
any Subsidiary of such Borrower could have a material adverse effect
on the condition (financial or otherwise), business, properties (or
affecting title thereto), or results of operations of such Borrower
and its Subsidiaries individually or in the aggregate, or could
materially impair such Borrower's ability to perform its obligations
under the Loan Documents, and
(v) Such other information respecting the
properties, business affairs, financial condition and/or operations
of any Borrower or any Subsidiary of such Borrower as the Managing
Agent or any Bank may from time to time reasonably request.
(b) Preserve and maintain, and cause its
Subsidiaries to preserve and maintain, its and their lawful
partnership or corporate existence and all of its material rights,
privileges and franchises.
(c) Comply, and cause its Subsidiaries to comply,
with all laws, rules, regulations and governmental orders
(foreign, Federal, state and local) having applicability to it or
them or to the business or businesses at any time conducted by it,
where the failure to so comply would have a material adverse effect,
on the business, condition (financial or otherwise), assets or
operations of such Borrower and its Subsidiaries taken as a whole.
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(d) Duly and punctually pay and perform its obligations and cause
its Subsidiaries to pay and perform their respective obligations under the Loan
Documents in accordance with the terms thereof.
(e) Permit, and cause each of its Subsidiaries to permit, any
Bank or its respective representatives, at any reasonable time, and from time
to time upon written notice of such Bank, to visit and inspect its and their
respective properties, to examine and make copies of and take abstracts from
its and their respective records and books of account, and to discuss its and
their respective affairs, finances and accounts with its and their respective
principal officers and, with the written consent of such Borrower, their
respective independent public accountants and other agents.
(f) Keep, or cause to be kept, and cause its Subsidiaries to
keep or cause to be kept, adequate records and books of account, in which
complete entries are to be made reflecting its and their businesses and
financial transactions, such entries to be made in accordance with generally
accepted accounting principles consistently applied.
(g) Maintain, at its expense, such public liability and third
party property damage insurance in such amounts and with such deductibles as
the Managing Agent may reasonably require from time to time. Such Borrower
shall, at its expense, keep and maintain its assets and the assets of its
Subsidiaries insured (with an insurance company maintaining a rating of A or
better by A.M. Best Company) against loss or damage by fire, theft, explosion,
spoilage and all other hazards and risks ordinarily insured against by other
owners or users of such properties in similar businesses in amounts at least
equal to the full replacement value thereof. All such policies of insurance
shall be in the form and substance satisfactory to the Managing Agent. Upon
the request of the Managing Agent, such Borrower shall deliver to the Managing
Agent the original (or a certified copy) of each policy of insurance and
evidence of the prepayment of all premiums therefor. Such policies of insurance
shall contain an endorsement naming the Managing Agent (for the ratable benefit
of the Banks) as loss payee and additional insured and shall provide for no
cancellation without at least thirty (30) days prior written notice to the
Managing Agent. Such Borrower hereby directs all insurers under such policies
of insurance to pay all proceeds of such insurance policies to the Managing
Agent for the ratable benefit of the Banks; provided that so long as no
Guarantor Event of Default shall have occurred and be continuing, all proceeds
of such insurance as to any Project which in the aggregate are less than an
amount equal to five percent (5%) of the Project Budget then in effect for such
Project per occurrence shall be delivered to such Borrower. With respect to
occurrences giving rise to insurance proceeds in respect of a Project in excess
of five percent (5%) of the Project Budget then in effect for such Project
("Material Insurance Proceeds") , the Managing Agent shall
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apply such amount to the prepayment of the related Project Loans in accordance
with Section 3.3 unless the Guarantor and the affected Borrower shall in
writing direct the Managing Agent to release such proceeds to such Borrower to
pay for the repair, replacement or reconstruction of the assets subject to
such casualty, in which case such proceeds shall be so released, provided that:
(i) at the time of any requested release of funds no
Guarantor Event of Default or Unmatured Guarantor Event of Default
shall have occurred and be continuing; and
(ii) the relevant Borrower shall have submitted a revised
Project Budget and, if necessary, Allocation Increase Request for
the affected Project.
Prior to the occurrence and continuance of a Guarantor Event of
Default or Unmatured Guarantor Event of Default, any prepayment made pursuant
to this Section 5.1(q) shall be applied to the Project Loan in accordance with
Section 3.3 without regard to the minimum amount or integral multiple
requirements set forth therein. Notwithstanding the provision of Section
3.6(b), any such prepayment shall not constitute a permanent reduction in the
pro rata Project Commitment of each Bank hereunder. After the occurrence and
during the continuance of a Guarantor Event of Default or Unmatured Guarantor
Event of Default, all insurance proceeds may be applied by the Managing Agent,
upon the direction of the Required Banks, to the prepayment of the Loan
Obligations and the Notes with respect to the Project giving rise to such
proceeds and shall constitute a permanent reduction of the pro rata Project
Commitment of each of the Banks corresponding to the Project Loan so prepaid.
If a Guarantor Event of Default or Unmatured Guarantor Event of Default or
Borrower Event of Default shall have occurred and be continuing hereunder, such
Borrower irrevocably makes, constitutes and appoints the Managing Agent (and
all officers, employees or agents designated by the Managing Agent) as such
Borrower's true and lawful attorney-in-fact for the purpose of making, settling
and adjusting claims under all such policies of insurance, endorsing the name
of such Borrower on any check, draft, instrument or other item of payment
received by such Borrower or the Managing Agent pursuant to any such policies
of insurance and for making all determinations and decisions with respect to
such policies of insurance. If such Borrower, at any time or times hereafter,
shall fail to obtain or maintain any of the policies of insurance required
above or to pay any premium in whole or in part relating thereto, then the
Managing Agent, without waiving or releasing any Loan obligations, Guarantor
Event of Default or Unmatured Guarantor Event of Default or Borrower Event of
Default by such Borrower hereunder, may at any time or times thereafter (but
shall be under no obligation to do so) obtain and maintain such policies of
insurance and pay such premiums and take any other action with respect thereto
which the Managing Agent deems advisable and such payments shall be Loans.
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(h) Use the proceeds of the Loans only for the purposes specified in
the introduction to this Agreement.
(i) Maintain or cause to be maintained, and cause each of its
Subsidiaries to maintain or cause to be maintained, in good repair, working
order and condition, excepting ordinary wear and tear and damage due to
casualty or condemnation, all of its properties material to its operations and
will make or cause to be made all appropriate repairs, renewals and
replacements thereof, consistent with past practice.
(j) Maintain, and cause each of its Subsidiaries to maintain,
in full force and effect all licenses, permits, governmental approvals,
franchises, authorizations or other rights necessary for the operation of its
business, except where the failure to obtain any of the foregoing would not
have or is not reasonably likely to have a material adverse effect on the
condition (financial or otherwise), properties, business, or results of
operations of such Borrower and its Subsidiaries taken as a whole; and notify
the Managing Agent in writing, promptly after learning thereof, of the
suspension, cancellation, revocation or discontinuance of or of any pending or
threatened action or proceeding seeking to suspend, cancel, revoke or
discontinue any such license, permit, governmental approval, franchise
authorization or right.
(k)(i) Notify the Managing Agent, in writing, promptly, and in any
event within twenty (20) days after such Borrower's learning thereof, of any:
(A) notice or claim to the effect that such Borrower or any of its
Subsidiaries is or may be liable to any Person as a result of
the Release or threatened Release of any Contaminant into the
environment;
(B) notice that such Borrower or any of its Subsidiaries is
subject to investigation by any governmental authority
evaluating whether any Remedial Action is needed to respond to the
Release or threatened Release of any Contaminant into the
environment;
(C) notice that any property of such Borrower or its Subsidiaries
is subject to an Environmental Lien;
(D) notice of violation to such Borrower or any of its
Subsidiaries or awareness by such Borrower or any of its
Subsidiaries of a condition which might reasonably result in a notice
of violation of any environmental, health or safety requirement under
federal, state or local laws, which could have a material adverse
effect on the condition (financial or otherwise), properties,
business,
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prospects or results of operations of such Borrower and
its Subsidiaries taken as a whole;
(E) commencement or threat of any
judicial or administrative proceeding alleging a
violation of any environmental, health or safety
requirement under federal, state or local laws;
(F) new or proposed changes to any
existing environmental, health or safety requirement
under federal, state or local laws that could have a
material adverse effect on the operations of such
Borrower or its Subsidiaries; or
(G) any proposed acquisition of
stock, assets, real estate, or leasing of property, or
any other action by such Borrower or its Subsidiaries
that could subject such Borrower or its Subsidiaries to
environmental, health or safety liabilities, obligations
or costs that could have a material adverse effect on the
condition (financial or otherwise) , properties,
business, prospects or results of operations of such
Borrower and its Subsidiaries taken as a whole.
(ii) On December 31 of each calendar year,
commencing on December 31, 1992, submit to the Managing Agent a
report providing an update of the status of each environmental,
health or safety compliance, hazard or liability issue, if any,
identified in any notice or report required pursuant to clause (k)
(i) above and any other environmental, health and safety compliance
obligation, remedial obligation or liability that could have a
material adverse effect on the condition (financial or otherwise),
properties, business, prospects or results of operations of such
Borrower and its Subsidiaries taken as a whole.
Section 5.2 Negative Covenants of each Borrower. Such
Borrower will not nor will it permit any of its Subsidiaries to:
(a) Except for Permitted Liens:
(i) create, incur, assume or permit to exist any
Lien on any existing or future property, asset (including stock of
subsidiaries), income or rights in any thereof; or
(ii) take, cause or permit to be taken or cause
any action to be taken, which could create a Lien, or suffer to exist
any Lien, on the capital stock or other ownership interest of any
Subsidiary of such Borrower which would require the sharing of an
interest in such capital stock or other ownership interest with any
Person; or
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(iii) enter into or assume any other agreement containing a negative
pledge with respect to its property.
(b) Create, incur, assume or suffer to exist any Indebtedness for Money
Borrowed except for the Notes. Notwithstanding the foregoing, a Borrower may
create, incur, assume or suffer to exist after the date of this Agreement:
(i) Indebtedness for Money Borrowed consisting of Financing Lease
Obligations not exceeding $100,000 in any one case and not exceeding
$250,000 in the aggregate at any time outstanding;
(ii) Indebtedness for Money Borrowed issued, incurred or assumed in
respect of the purchase price of property not to exceed $1 million
principal amount of Indebtedness for Money Borrowed in the aggregate at
any time outstanding; and
(iii) Indebtedness for Money Borrowed secured by Permitted Third Party
Mortgage Liens or Permitted Mortgage Liens not to exceed the value of the
property so securing such Indebtedness.
Any Indebtedness for Money Borrowed used in the calculations of whether any
threshold amount specified in either clause (i) or (ii) immediately preceding
have been exceeded shall not be used to calculate whether the threshold in the
other of such thresholds specified in such clause (i) or (ii) has been
exceeded.
(c) Assume, guarantee or endorse, or otherwise become directly or
contingently liable in respect of, any obligation of any Person, except,
without duplication, guarantees of such Borrower of Indebtedness for Money
Borrowed constituting Financing Leases of such Borrower or any Subsidiary of
such Borrower permitted by Section 5.2(b) hereof or enter into any Interest
Rate Agreements other than those entered into by any Borrower with respect to
the dollar amount of any Loan or Loans made hereunder.
(d) Engage in any business or business activity except with respect to
such Borrower's Projects.
(e) After the occurrence and during the continuance of a Guarantor
Event of Default or a Borrower Event of Default with respect to such Borrower,
declare or pay any dividend or distribution, or purchase or redeem any shares
of any equity interest or class of capital stock of such Borrower, or make any
other payment or distribution on or in respect of any class of capital stock or
ownership interest of such Borrower or any of its Subsidiaries or set aside any
amounts for any such purposes, except that any Subsidiary may pay dividends to
such Borrower.
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(f) Have or make any loan or advance to or Investment in any
Subsidiary or other Affiliate or any other Person except for:
(i) Permitted Investments;
(ii) Investments by a Borrower in Persons as permitted by Section
5.2(h) hereof; and
(iii) guarantees permitted by Section 5.2(c) hereof.
(g) Merge or consolidate with or into any Person except that any
Subsidiary of a Borrower may merge or consolidate with or into such Borrower.
(h) Acquire any assets or capital stock of any Person except that a
Borrower may (i) acquire assets used in the ordinary course of business, (ii)
acquire the assets or capital stock of any Subsidiary, and (iii) make Capital
Expenditures in connection with such Borrower's Projects.
(i) Issue or distribute its partnership interests, capital stock or
other ownership interests to any Person or permit any Subsidiary to issue, sell
or otherwise dispose of any such interests to any Person except to the relevant
Borrower, provided, that the foregoing shall not be construed to prohibit the
transfer of all or part of any existing ownership interest by the owner thereof
to an Affiliate of such owner, provided, further that such transfer does not
result in a breach of any other provision of this Agreement and that such
transfer does not change the respective Borrower's status as an Eligible
Borrower hereunder.
(j) Without the prior written consent of the Managing Agent, enter
into any transaction with an Affiliate of such Borrower including, without
limitation, the purchase, sale or exchange of property or the rendering of any
service to or by an Affiliate, except for:
(i) transactions on terms no less favorable to such Borrower than if
negotiated at arm's length and for a term not to exceed two years;
(ii) the "Management Agreement" and "Leasing Agreement" contemplated
by such Borrower's joint venture agreement; and
(iii)payment of fees and expenses included in the Project Budget in
effect for a Project.
Except as set forth in clauses (ii) and (iii) of the immediately preceding
sentence, all transactions by any Borrower with any Affiliate shall be on terms
no less favorable to such Borrower or such Affiliate than could be obtained in
a comparable arms-length transaction with a Person not an Affiliate and be
reasonably
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necessary or desirable for such Borrower or such Affiliate in the conduct of
its business.
(k) Issue any power of attorney or other contract or agreement giving
any Person power or control over the day-to-day operations of its business
except as expressly contemplated by this Agreement.
(l) Modify or amend any of such Borrower's Organizational Documents
without the prior written consent of the Managing Agent.
(m) Without the prior written consent of the Managing Agent, take any
action which causes any Person to become a direct or indirect Subsidiary of
such Borrower or which results in the creation of a Subsidiary of such
Borrower.
ARTICLE VI
CONDITIONS OF CREDIT
Section 6.1 Conditions Precedent to the Initial Borrowing. The right
of any Borrower to make the Initial Borrowing and the obligation of the Banks
to make the Initial Loan under this Agreement shall be subject to the
fulfillment, at or prior to the time of the making of such Initial Loan, of
each of the following conditions:
(a) Each Borrower shall have executed and delivered to each Bank this
Agreement (including all schedules, exhibits, certificates, opinions and
financial statements delivered pursuant hereto) , which shall be in full force
and effect (without any waiver of, or other forbearance to exercise any rights
with respect to, any term or provision hereof, unless consented to in writing
by the Required Banks).
(b) All of the Loan Documents (excluding any Notes relating to
Borrowings which have not been requested at such time) shall have been duly
executed and delivered in form and substance satisfactory to the Managing Agent
and shall be in full force and effect; and there shall be no Guarantor Event of
Default or Unmatured Guarantor Event of Default which shall have occurred and
be continuing under this Agreement.
(c) The Managing Agent shall have received (with a signed copy for each
Bank):
(i) the signed opinion of Messrs. Dickinson, Wright, Moon, Van Dusen &
Xxxxxxx, special counsel to each Borrower and the
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Guarantor, dated the date hereof in form and substance satisfactory to
Managing Agent;
(ii) the signed opinion of A. N. Xxxxxxx, counsel to the Guarantor,
dated the date hereof in form and substance satisfactory to Managing Agent;
(iii) such opinions of counsel to the general partners of the
Borrowers, dated the date hereof, in form and substance satisfactory to
Managing Agent, as may be reasonably requested by Managing Agent; and
(iv) a letter from the Guarantor and/or the applicable Borrower
requesting counsel rendering an opinion pursuant to this Agreement to
issue the opinion to Managing Agent and the Banks.
(d) Certified copies of the Organizational Documents for each Borrower,
and each general partner of each Borrower.
(e) A certificate of Guarantor and each Managing Partner of each
Borrower certifying as to the names, offices and signatures of each Person (i)
who is authorized to sign this Agreement or any Loan Document on such Person's
behalf and (ii) who will, until replaced by another Person or Persons duly
authorized for that purpose, act as its representative for the purposes of
signing documents and giving notices and other communications in connection
with this Agreement and the transactions contemplated hereby. The Managing
Agent and each Bank may conclusively rely on such certificate until they
receive notice in writing from such Person to the contrary.
(f) Each Borrower shall have paid the Managing Agent the fees then due
pursuant to Section 3.8 hereof.
(g) The Managing Agent shall have received a Notice of Borrowing with
respect to the Initial Loan, and duly executed Initial Notes in accordance with
Section 2.2(b) hereof.
(h) The Managing Agent shall have received (with a signed copy for each
Bank) the signed opinion of Messrs. XXXXXXXXXX, counsel to the Banks,
dated the date of the Initial Borrowing, in form and substance satisfactory to
the Managing Agent.
(i) The Managing Agent shall have received a list of all of Guarantor's
Material Subsidiaries as of the date hereof.
(j) All corporate and other proceedings taken in connection with the
transactions hereunder at or prior to the date of this Agreement, and all
documents incident thereto will be reasonably satisfactory in form and
substance to the Managing Agent; and the Banks shall have received such other
instruments and
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documents as the Managing Agent shall reasonably request in connection with the
Loans, and all such instruments and documents shall be reasonably satisfactory
in form and substance to the Managing Agent.
Section 6.2 Conditions Precedent to any Initial Project Borrowing.
In addition to the conditions set forth in Section 6.1, the right of any
Borrower to make an Initial Project Borrowing and the Obligation of the Banks
to make the Initial Project Loan under this Agreement to such Borrower shall be
subject to the fulfillment, at or prior to the time of the making of such
Initial Project Loan, of each of the following conditions:
(a) The Managing Agent shall have received an Allocation Request with
respect to such Project and shall have established a Project Commitment Amount
in accordance with the terms of this Agreement.
(b) The Managing Agent shall have received a Project Budget for such
Project.
(c) The Managing Agent shall have received executed Initial Notes
evidencing such Loan in accordance with Section 2.2(b) hereof.
(d) The long-term Indebtedness of the Guarantor shall be rated BBB or
above by Standard & Poor's Corporation and Baa2 or above by Xxxxx'x Investors
Service, Inc.
(e) Since the date hereof, there shall have been no material adverse
change in the condition (financial or otherwise), properties, business or
results of operations of Guarantor and its Subsidiaries, taken as a whole.
(f) The Managing Agent shall have received such other instruments,
documents and opinions as the Managing Agent shall reasonably request in
connection with such Loan, and all such instruments, documents and opinions
shall be reasonably satisfactory to the Managing Agent.
Section 6.3 Conditions Precedent to All Borrowings (other than a
Roll-Over Borrowing). In addition to the conditions set forth in Sections 6.1
and 6.2, the right of any Borrower to make any Borrowing (other than a
Roll-Over Borrowing) hereunder and the obligation of each Bank to make a Loan
in respect of any such Borrowing hereunder in each case shall be subject to the
fulfillment at or prior to the time of the making of such Borrowing of each of
the following conditions:
(a) The representations and warranties contained in this Agreement with
respect to such Borrower and such Project shall each be true and correct in all
material respects at and as of such time,
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as though made on and as of such time; each of the Loan Documents shall be in
full force and effect.
(b) No Guarantor Event of Default or Unmatured Guarantor Event of
Default or Borrower Event of Default or Unmatured Borrower Event of Default
with respect to such Borrower shall have occurred and shall then be continuing
on such date or will occur after giving effect to such Borrowing.
(c) No change shall have occurred or become known with respect to the
condition (financial or otherwise), business, prospects or results of
operations of the applicable Borrower or any of its Subsidiaries since the date
of this Agreement, which the Managing Agent deems to be material and adverse to
the condition (financial or otherwise), business or results of operations of
such Borrower and its Subsidiaries taken as a whole.
(d) The Managing Agent shall be reasonably satisfied as to the matters
set forth on Exhibit F hereto as such Exhibit may be modified from time to time
by the Managing Agent and the Guarantor.
(e) The Banks shall have received such other instruments, documents and
opinions (including Amended Notes and/or Extension Notes if applicable) as the
Managing Agent may reasonably request in connection with the Loans, and all
such instruments, documents and opinions shall be reasonably satisfactory in
form and substance to the Managing Agent.
Each Borrowing by any Borrower shall be deemed to constitute a
representation and warranty by it as to itself to the effect of clauses (a),
(b) and (c) of this Section 6.3.
Section 6.4 Conditions Precedent to All Roll-Over Borrowings. The
right of any Borrower to make any Roll-Over Borrowing hereunder and the
obligation of each Bank to make any Roll-Over Borrowing hereunder shall be
subject to the condition that the Loan Obligations of such Borrower shall not
have been accelerated.
ARTICLE VII
EVENTS OF DEFAULT
Section 7.1 Guarantor Events of Default. If any of the following
events, acts, occurrences or state of facts (herein called a "Guarantor Event
of Default") shall occur or exist (for any reason whatsoever, and whether such
happening shall be voluntary or involuntary or come about or be effected by
operation of law pursuant to or in accordance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
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(a) Indebtedness of the Guarantor shall be rated BBB- or lower by
Standard & Poor's Corporation or Baa3 or lower by Xxxxx'x Investors Service,
Inc. or shall not be rated by either of such entities;
(b) The Guarantor or any of its Material Subsidiaries, shall default in
the payment when due, whether at stated maturity or otherwise, of any
Indebtedness for Money Borrowed of the Guarantor or any of its Material
Subsidiaries, whether individually or in the aggregate, equal to or in excess
of $40 million, whether such Indebtedness now exists or shall hereafter be
created, and such default shall be uncured or unwaived after the expiration of
all applicable grace periods with respect thereto; or breach or default by
Guarantor or any of its Material Subsidiaries with respect to any other
material term of any evidence of any Indebtedness for Money Borrowed in excess
of $40 million or of any loan agreement, mortgage, indenture or other agreement
relating thereto, if the effect of such default or breach is to cause, or to
permit the holder or holders (or a trustee on behalf of such holder or holders)
of such Indebtedness for Money Borrowed to cause such Indebtedness for Money
Borrowed to become or be declared due prior to its stated maturity (upon the
giving or receiving of notice but after the expiration of all applicable grace
periods with respect thereto) provided, however, that with respect to
Indebtedness for Money Borrowed in respect of real property leases, no such
breach or default shall be deemed to exist if the Guarantor or Material
Subsidiary, as the case may be, is contesting in good faith the existence of
such breach or default by appropriate means and if the existence of such breach
or default, if determined adversely to Guarantor or the Material Subsidiary, as
the case may be, would not have a material adverse effect on Guarantor and its
Subsidiaries on a consolidated basis;
(c) The Guarantor or any of its Material Subsidiaries shall become
insolvent or generally fail to pay, or admit in writing its inability to pay,
its debts as they become due, or shall voluntarily commence any proceeding or
file any petition under any bankruptcy, insolvency or similar law or seeking
dissolution or reorganization or the appointment of a receiver, trustee,
custodian or liquidator for it or a substantial portion of its property, assets
or business or to effect a plan or other arrangement with its creditors, or
shall file any answer admitting the jurisdiction of the court and the material
allegations of an involuntary petition filed against it in any bankruptcy,
insolvency or similar proceeding, or shall be adjudicated bankrupt, or shall
consent to, or acquiesce in the appointment of, a receiver, trustee, custodian
or liquidator for a substantial portion of its property, assets or business,
shall call a meeting of its creditors with a view to arranging a composition or
adjustment of its debts or shall take any corporate action authorizing any of
the foregoing;
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(d) Involuntary proceedings or an involuntary petition shall be
commenced or filed against the Guarantor or any of its Material Subsidiaries
under any bankruptcy, insolvency or similar law or seeking the dissolution or
reorganization of it or the appointment of a receiver, trustee, custodian or
liquidator for it or of a substantial part of its property, assets or business,
or any writ, judgment, warrant of attachment, execution or similar process
shall be issued or levied against a substantial part of its property, assets or
business, and such proceedings or petition shall not be dismissed, or such
writ, judgment, warrant of attachment, execution or similar process shall not
be released, vacated or fully bonded, within sixty (60) days after
commencement, filing or levy, as the case may be, or any order for relief shall
be entered in any such proceeding;
(e) This Agreement or the Guaranty shall cease for any reason to be in
full force and effect or there shall exist any event of default or breach of
any of Guarantor's representations or warranties, covenants or obligations
under the Guaranty or the Guarantor shall disavow any of its obligations under
the Guaranty;
(f) Any Guarantor Restructuring shall occur, other than a Guarantor
Restructuring in which:
(i) the obligations of Guarantor under the Guaranty shall continue in
full force and effect following such transaction, and
(ii) the following additional conditions shall be met:
(A) any transferee or pledgee of assets of Guarantor in
or pursuant to such Guarantor Restructuring (a "Transferee") shall
become an additional guarantor of the Obligations hereunder pursuant to
the terms of a written guaranty agreement in form and substance
satisfactory to the Managing Agent;
(B) after giving effect to such Guarantor Restructuring, and all
related transactions (including, without limitation, any
related financing), the long term Indebtedness of the Transferee shall
be rated BBB or above by Standard & Poor's Corporation and Baa2 or
above by Xxxxx'x Investors Service, Inc.; and
(C) this Agreement shall be amended in a manner satisfactory to the
Managing Agent to reflect the existence of such additional
guarantor and guaranty, including, without limitation, to provide that
occurrences with respect to the Transferee similar to those set forth
in clauses (a) through (g) of this Section 7.1 shall also be Guarantor
Events of Default hereunder; or
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(g) The Guarantor shall directly or indirectly create or otherwise
cause or suffer to exist or become effective any limitation (except as required
by applicable law or the Loan Agreement) on the ability of any of its Material
Subsidiaries to (A) pay dividends or make any other distributions on its
capital stock or any other interest or participation in, or measured by, its
profits owned by, or pay any Indebtedness owed to, the Guarantor or (B) make
loans or advances to the Guarantor;
then, and in any such event and at any time thereafter, the Managing Agent may
and, at the direction of the Required Banks shall, take one or more of the
following actions: (i) by written or oral or telephonic notice (in the case of
oral or telephonic notice confirmed in writing immediately thereafter) to
Guarantor, as agent for the Borrowers, declare the Total Commitment and each
Project Commitment to be terminated whereupon the Total Commitment and each
Project Commitment shall forthwith terminate, and/or (ii) by written or oral or
telephonic notice (in the case of oral or telephonic notice confirmed in
writing immediately thereafter) to each Borrower declare all sums then owing by
such Borrower hereunder and under any Notes to be forthwith due and payable,
whereupon all such sums shall become and be immediately due and payable without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived by each Borrower. In cases of any occurrence of any event of
default described in clause (c) or (d) of this Section 7.1, the Notes, together
with accrued interest thereon, shall become due and payable forthwith without
the requirement of any such acceleration or request, and without presentment,
demand, protest or other notice of kind, all of which are expressly waived, any
provision of this Agreement or the Notes to the contrary notwithstanding and
other amounts payable by any Borrower hereunder or under any Notes shall also
become immediately due and payable all without notice of any kind.
Anything in this Section 7.1 to the contrary notwithstanding, the
Managing Agent shall, at the request of the Required Banks, rescind and annul
any acceleration of the Notes by written instrument filed with each Borrower;
provided that at the time such acceleration is so rescinded and annulled: (A)
all past due interest and principal, if any, on the Notes and all other sums
payable under this Agreement and the Notes (except any principal and interest
which has become due and payable solely by reason of such acceleration pursuant
to this Section 7.1) shall have been duly paid in full, and (B) no other
Guarantor Event of Default shall have occurred and be continuing which shall
not have been waived pursuant to Section 9.1 hereof.
Section 7.2 Borrower Events of Default. If any of the following
events, acts, occurrences or state of facts (herein called a "Borrower Event of
Default") shall occur or exist (for any reason whatsoever, and whether such
happening shall be voluntary or involuntary or come about or be effected by
operation of law
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pursuant to or in accordance with any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) Any Borrower shall default in the payment of principal of its Loan
obligations or Notes when due, or in the payment of interest or any other
amount owing hereunder or under any Note within three (3) Business Days after
notice of such failure is given to Guarantor and such Borrower; or
(b) Any representation or warranty on the part of any Borrower or any
of its Subsidiaries, as the case may be, contained in any Loan Document or any
document, instrument or certificate delivered pursuant thereto shall have been
incorrect in any material respect when made or deemed made; or
(c) Any Borrower shall default in the performance or observance of any
term, covenant, condition or agreement on its part to be performed or observed
under Section 5.2 hereof and such default shall continue unremedied for five
(5) days after written or telephonic (immediately confirmed in writing) notice
thereof has been given to such Borrower by the Managing Agent or any Bank (with
a copy of such Notice to Guarantor); or
(d) Any Borrower or any of its Subsidiaries shall default in the
performance or observance of any term, covenant, condition or agreement on its
part to be performed or observed hereunder or under any Loan Document (and not
constituting a Borrower Event of Default under any other clause of this Section
7.2) and such default shall continue unremedied for a period of thirty (30)
days after written or telephonic (immediately confirmed in writing) notice
thereof has been given to such Borrower by the Managing Agent or any Bank (with
a copy of such notice to Guarantor); or
(e) Any Borrower or any of its Subsidiaries or the Kmart General
Partner of such Borrower shall become insolvent or generally fail to pay, or
admit in writing its inability to pay, its debts as they become due, or shall
voluntarily commence any proceeding or file any petition under any bankruptcy,
insolvency or similar law or seeking dissolution or reorganization or the
appointment of a receiver, trustee, custodian or liquidator for it or a
substantial portion of its property, assets or business or to effect a plan or
other arrangement with its creditors, or shall file any answer admitting the
jurisdiction of the court and the material allegations of an involuntary
petition filed against it in any bankruptcy, insolvency or similar proceeding,
or shall be adjudicated bankrupt, or shall make a general assignment for the
benefit of creditors, or shall consent to, or acquiesce in the appointment of,
a receiver, trustee, custodian or liquidator for a substantial portion of its
property, assets or business, shall call a meeting of its creditors with a view
to arranging a composition or adjustment of its debts
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or shall take any corporate action authorizing any of the foregoing; or
(f) Involuntary proceedings or an involuntary petition
shall be commenced or filed against any Borrower or any of its Subsidiaries or
the Kmart General Partner of such Borrower under any bankruptcy, insolvency or
similar law or seeking the dissolution or reorganization of it or the
appointment of a receiver, trustee, custodian or liquidator for it or of a
substantial part of its property, assets or business, or any writ, judgment,
warrant of attachment, execution or similar process shall be issued or levied
against a substantial part of its property, assets or business, and such
proceedings or petition shall not be dismissed, or such writ, judgment, warrant
of attachment, execution or similar process shall not be released, vacated or
fully bonded, within sixty (60) days after commencement, filing or levy, as the
case may be, or any order for relief shall be entered in any such proceeding;
or
(g) One or more judgments or decrees shall be entered
against any Borrower or any of its Subsidiaries involving, individually or in
the aggregate, a liability of $50,000 or more and all such judgments or decrees
shall not have been vacated, discharged, satisfied or stayed pending appeal
within thirty (30) days from the entry thereof; or
(h) Any Borrower or any of its Subsidiaries shall disavow
its obligations under this Agreement or any Note as the Loan Obligations or
shall deny that it has any or further obligations hereunder or thereunder (in
each case other than by reason of the satisfaction of all of such Borrower's
obligations hereunder and thereunder or the unlawful disavowal by any other
party to such agreements of their respective obligations thereunder); or
(i) Any Borrower shall cease for any reason to be an
Eligible Borrower hereunder;
(j) Any order, judgment or decree shall be entered
against any Borrower or any of its Subsidiaries decreeing its involuntary
dissolution or split up and such order shall remain undischarged and unstayed
for a period in excess of thirty (30) days; or any Borrower or any of its
Subsidiaries shall otherwise dissolve or cease to exist; or
(k) Any Additional Borrower Agreement shall cease for any
reason to be in full force and effect as to any Borrower;
(l) Guarantor shall sell, assign, transfer or otherwise
dispose of any shares of capital stock of the Kmart General Partner of such
Borrower (except to the extent, if any, required to qualify directors of such
Subsidiary under any applicable law);
(m) The Kmart General Partner for any Borrower shall:
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(i) merge or consolidate with any other
Person, other than the Guarantor or a wholly-owned Subsidiary of
the Guarantor;
(ii) create, incur, assume or suffer to exist
or agree to create, incur or assume any Lien in, upon or with
respect to any of its ownership interest in any Borrower, whether
now owned or hereafter acquired; or
(iii) directly or indirectly create or otherwise
cause or suffer to exist or become effective any limitation (except
as required by applicable law or the Loan Agreement) on its ability
to (A) pay dividends or make any other distributions on its capital
stock or any other interest or participation in, or measured by,
its profits owned by, or pay any Indebtedness owed to, the
Guarantor, or (B) make loans or advances to the Guarantor.
then, and in any such event and at any time thereafter, the Managing Agent may
and, at the direction of the Required Banks shall, take one or more of the
following actions: (i) by written or oral or telephonic notice (in the case of
oral or telephonic notice confirmed in writing immediately thereafter) to the
Borrower or Borrowers as to which such Borrower Event of Default has occurred
declare any Project Commitment for such Borrower to be terminated whereupon
such Project Commitment shall forthwith terminate, and/or (ii) by written or
oral or telephonic notice (in the case of oral or telephonic notice confirmed
in writing immediately thereafter) to such Borrower declare all sums then owing
by such Borrower hereunder and under any Notes of such Borrower to be forthwith
due and payable, whereupon all such sums shall become and be immediately due
and payable without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived by such Borrower. In cases of any occurrence
of any event of default described in clause (e) or (f) of this Section 7.2,
such Borrower's Notes, together with accrued interest thereon, shall become due
and payable forthwith without the requirement of any such acceleration or
request, and without presentment, demand, protest or other notice of any kind,
all of which are expressly waived, any provision of this Agreement or the Notes
to the contrary notwithstanding and other amounts payable by such Borrower
hereunder or under any Notes shall also become immediately due and payable all
without notice of any kind.
Anything in this Section 7.2 to the contrary notwithstanding, the
Managing Agent shall, at the request of the Required Banks, rescind and annul
any acceleration of such Borrower's Notes by written instrument filed with such
Borrower; provided that at the time such acceleration is so rescinded and
annulled: (A) all past due interest and principal, if any, on such Borrower's
Notes and all other sums payable by such Borrower under
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this Agreement and the Notes (except any principal and interest on such
Borrower's Loan Obligations which has become due and payable solely by reason
of such acceleration pursuant to this Section 7.2) shall have been duly paid in
full and (B) no other Borrower Event of Default shall have occurred and be
continuing with respect to such Borrower which shall not have been waived
pursuant to Section hereof.
ARTICLE VIII
THE MANAGING AGENT
In this Article VIII, the Banks agree among themselves as follows:
Section 8.1 Appointment. The Banks hereby appoint XXXXXXXXXX as
Managing Agent to act as herein specified. Each Bank hereby irrevocably
authorizes and each holder of any Note by the acceptance thereof shall be
deemed irrevocably to authorize the Managing Agent to take such action on its
behalf under the provisions of the Loan Documents (including, without
limitation, to give notices and take such actions on behalf of the Required
Banks as are consented to in writing by the Required Banks) and any other
instruments, documents and agreements referred to therein and to exercise such
powers hereunder and thereunder as are specifically delegated to the Managing
Agent by the terms hereof and thereof and such other powers as are reasonably
incidental thereto. The Managing Agent may perform any of its duties hereunder,
or under the Loan Documents, by or through its agents or employees.
Section 8.2 Nature of Duties. The Managing Agent shall have no
duties or responsibilities except those expressly set forth in this Agreement.
The duties of the Managing Agent shall be mechanical and administrative in
nature. Without limiting the effect of the foregoing sentence, the Managing
Agent shall not have by reason of this Agreement a fiduciary relationship in
respect of any Bank. Nothing in any of the Loan Documents, expressed or
implied, is intended to or shall be so construed as to impose upon the Managing
Agent any obligations in respect of any of the Loan Documents except as
expressly set forth herein or therein. Each Bank shall make its own
independent investigation of the financial condition and affairs of each
Borrower in connection with the making and the continuance of the Loans
hereunder and shall make its own appraisal of the creditworthiness of each
Borrower, and the Managing Agent shall have no duty or responsibility, either
initially or on a continuing basis, to provide any Bank with any credit or
other information with respect to any Borrower, whether coming into its
possession before making of the Loans or at any time or times thereafter
provided, however, upon the request of any Bank, the Managing Agent shall use
reasonable efforts to provide to such Bank, copies of any information required
to be furnished under Section
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5.1(a)(ii) or 5.1(k)(ii) by any Borrower to the Managing Agent and not to each
Bank. The Managing Agent will promptly notify each Bank at any time that the
Required Banks have instructed it to act or refrain from acting pursuant to
Article VII.
Section 8.3 Rights, Exculpation, etc. Neither the Managing Agent
nor any of its officers, directors, employees or agents shall be liable to any
Bank for any action taken or omitted by it hereunder or under any of the Loan
Documents, or in connection herewith or therewith, unless caused by its or
their gross negligence or willful misconduct. The Managing Agent shall not be
responsible to any Bank for any recitals, statements, representations or
warranties herein or for the execution, effectiveness, genuineness, validity,
enforceability, collectibility, or sufficiency of any of the Loan Documents or
the financial condition of any Borrower. The Managing Agent shall not be
required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions of this Agreement, any of the Notes
or any of the other Loan Documents or the financial condition of any Borrower,
or the existence or possible existence of any Unmatured Guarantor Event of
Default, Guarantor Event of Default, Unmatured Borrower Event of Default or
Borrower Event of Default unless requested to do so by the Required Banks. The
Managing Agent may at any time request instructions from the Banks with respect
to any actions or approvals which by the terms of any of the Loan Documents the
Managing Agent is permitted or required to take or to grant, and if such
instructions are requested, the Managing Agent shall be absolutely entitled to
refrain from taking any action or to withhold any approval and shall not be
under any liability whatsoever to any Person for refraining from any action or
withholding any approval under any of the Loan Documents until it shall have
received such instructions from the Required Banks. Without limiting the
foregoing, no Bank shall have any right of action whatsoever against the
Managing Agent as a result of the Managing Agent acting or refraining from
acting under any of the Loan Documents in accordance with the instructions of
the Required Banks.
Section 8.4 Reliance. The Managing Agent shall be entitled to rely
upon any written notice, statement, certificate, order or other document or any
telephone message reasonably believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person, and, with respect to all
matters pertaining to any of the Loan Documents and its duties hereunder or
thereunder, upon advice of counsel selected by it.
Section 8.5 Indemnification. To the extent that the Managing Agent
is not reimbursed and indemnified by the Borrowers or the Guarantor, the Banks
will reimburse and indemnify the Managing Agent for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may
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be imposed on, incurred by, or asserted against the Managing Agent, acting
pursuant hereto, in any way relating to or arising out of any of the Loan
Documents or any action taken or omitted by the Managing Agent under any of the
Loan Documents, in proportion to each Bank's respective Pro Rata Share of the
Total Commitment; provided, however, that no Bank shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Managing
Agent's gross negligence or willful misconduct. The obligations of the Banks
under this Section 8.5 shall survive the payment in full of the Notes and the
termination of this Agreement.
Section 8.6 The Managing Agent Individually. With respect to its
Pro Rata Share of the Total Commitment hereunder and the Loans made by it and
any Notes issued to or held by it, the Managing Agent shall have and may
exercise the same rights and powers hereunder and is subject to the same
obligations and liabilities as and to the extent set forth herein for any other
Bank or holder of a Note. The terms "Banks" or "Required Banks" or "holders of
Notes" or any similar terms shall, unless the context clearly otherwise
indicates, include the Managing Agent in its individual capacity as a Bank, one
of the Required Banks or a holder of a Note. The Managing Agent may accept
deposits from, lend money to, and generally engage in any kind of banking,
trust or other business with any Borrower or any Subsidiary of any Borrower as
if it were not acting as Managing Agent pursuant hereto.
Section 8.7 Resignation by the Managing Agent; Removal.
(a) The Managing Agent may resign from the performance of
all its functions and duties hereunder at any time by giving 15 Business Days'
prior written notice to the Borrowers and the Banks. Such resignation shall
take effect upon the acceptance by a successor Managing Agent of appointment
pursuant to clauses (b) or (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Required
Banks shall appoint a successor Managing Agent who shall be satisfactory to the
Guarantor and shall be an incorporated bank or trust company.
(c) If a successor Managing Agent shall not have been so
appointed within said 15 Business Day period, the Managing Agent, with the
consent of the Borrowers, shall then appoint a successor Managing Agent who
shall serve as Managing Agent until such time, if any, as the Required Banks,
with the consent of the Guarantor, appoint a successor Managing Agent as
provided above.
(d) If no successor Managing Agent has been appointed
pursuant to clause (b) or (c) by the 30th day after the date such notice of
resignation was given by the managing Agent, the Managing Agent's resignation
shall become effective and the Required Banks
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shall thereafter perform all the duties of the Managing Agent hereunder until
such time, if any, as the Required Banks, with the consent of the Guarantor,
appoint a successor Managing Agent as provided above.
(e) The Managing Agent may be removed from the
performance of its functions and duties hereunder for cause (as defined herein)
upon written notice received by the Managing Agent from the Required Banks and
the Guarantor. For purposes of this Section 8.7(e), "cause" shall mean gross
negligence or willful misconduct by the Managing Agent in the performance of
its functions and duties hereunder.
ARTICLE IX
MISCELLANEOUS
Section 9.1 No Waiver: Modifications in Writing. No failure or
delay on the part of the Managing Agent or any Bank in exercising any right,
power or remedy hereunder or under any Note shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right, power or remedy
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. The remedies provided for herein are cumulative and
are not exclusive of any remedies that may be available to the Managing Agent
or any Bank at law or in equity or otherwise. No amendment, modification,
supplement, termination or waiver of or to any provision of this Agreement, nor
consent to any departure by any Borrower or any Subsidiary of any Borrower
therefrom, shall be effective unless the same shall be in writing and signed by
or on behalf of the Required Banks; provided, however, that no such amendment,
modification, supplement, termination, waiver or consent, as the case may be,
which has the effect of:
(i) reducing the rate or amount, or extending
the stated maturity or due date, of any sum payable by any Borrower
to any Bank hereunder or under any Loan Obligation;
(ii) changing this Section 9.1 or the
definitions of the terms "Required Banks" and "Pro Rata Share";
(iii) changing the Loan Commitment of any Bank
hereunder; or
(iv) amend, waive, modify, release or
terminate the Guaranty;
shall be effective unless the same shall be signed by or on behalf of each Bank
hereunder; provided, further, that no such amendment, modification, supplement,
termination, waiver or consent, as the case may be, which has the effect of (i)
increasing the duties or
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obligations of the Managing Agent hereunder, (ii) increasing the standard of
care or performance required on the part of the Managing Agent hereunder, (iii)
reducing or eliminating the fees, indemnities or immunities to which the
Managing Agent is entitled hereunder (including, without limitation, any
amendment or modification of this Section 9.1) or (iv) amending any provision
which requires action by all the Banks hereunder, shall be effective
unless the same shall be signed by or on behalf of the Managing Agent and
provided still further that the Managing Agent and the Guarantor may by mutual
agreement, amend or modify Exhibit F hereto without the consent of any Borrower
or any other Bank. Any amendment, modification or supplement of or to any
provision of this Agreement, any waiver of any provision of this Agreement, and
any consent to any departure by any Borrower from the terms of any provision of
this Agreement, shall be effective only in the specific instance and for the
specific purpose for which made or given. Except where notice is specifically
required by any Loan Document, no notice to or demand on any Borrower in any
case shall entitle such Borrower to any other or further notice or demand in
similar or other circumstances. The Managing Agent will provide to Guarantor a
copy of any proposed amendment, modification or waiver relating to this
Agreement not less than three (3) Business Days prior to the anticipated date
of execution thereof provided, however, that the failure of the Managing Agent
to provide such copy shall not affect the validity of the Guaranty or any
amendment, modification or waiver otherwise properly executed.
Section 9.2 Further Assurances. Each Borrower agrees to do such
further acts and things and to execute and deliver to the Managing Agent such
additional assignments, agreements, powers and instruments, as the Managing
Agent may reasonably require or deem advisable to carry into effect the
purposes of this Agreement or to better assure and confirm unto the Managing
Agent its rights, powers and remedies hereunder.
Section 9.3 Notices, etc. Except where telephonic instructions or
notices are authorized herein to be given, all notices, demands, instructions
and other communications required or permitted to be given to or made upon any
party hereto or any other Person shall be in writing and shall be personally
delivered or sent by registered or certified mail, postage prepaid, return
receipt requested, or by a reputable overnight or courier delivery service, or
by prepaid telegram (with messenger delivery specified in the case of a
telegram), or by telecopier, and shall be deemed to be given for purposes of
this Agreement, if by overnight or courier delivery service, on the day that
such writing is delivered, if by telecopy, on the day that such writing is sent
and if by mail, on the day which is two Business Days after the day such
writing is sent to the intended recipient thereof in accordance with the
provisions of this Section 9.3. Unless otherwise specified in a notice sent or
delivered in accordance with the foregoing provisions of this Section 9.3,
notices, demands, instructions and other
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communications in writing shall be given to or made upon the respective parties
hereto at their respective addresses (or to their respective telecopier
numbers) indicated below and, in the case of telephonic instructions or
notices, by calling the telephone number or numbers indicated for such party
below:
If to a particular Borrower, at its address as set forth on the
signature page hereto or on the most recent Additional Borrower
Agreement executed by such Borrower.
If to XXXXXXXXXX, in its individual capacity and as
Managing Agent:
XXXXXXXXXX
XXXXXXXXXX
XXXXXXXXXX
XXXXXXXXXX
Attention: XXXXXXXXXX
Tel. No.: XXXXXXXXXX
Telecopier No.: XXXXXXXXXX
With copies to:
XXXXXXXXXX
XXXXXXXXXX
XXXXXXXXXX
Attention: XXXXXXXXXX
Tel. No. XXXXXXXXXX
Telecopier No.: XXXXXXXXXX
If to a particular Bank, at its address as set forth on the
signature page hereto or in any notice of assignment delivered to
each Borrower pursuant to Section 9.8(c) hereof.
Section 9.4 Costs, Expenses and Taxes. Each Borrower agrees
(without duplication) to pay all reasonable costs and expenses in connection
with the negotiation, preparation, printing, typing, reproduction, execution
and delivery of this Agreement, the Notes and the other Loan Documents, any
amendment or modifications of (or supplements to) any of the foregoing and any
and all other documents furnished pursuant hereto or thereto or in connection
herewith or therewith, including without limitation the reasonable fees and
out-of-pocket expenses of XXXXXXXXXX, special counsel to the Banks, and
any local counsel retained by the Managing Agent relative thereto or (but not
as well as) the reasonable allocated costs of staff counsel as well as the fees
and out-of-pocket expenses of counsel, independent public accountants and other
outside experts retained by the Managing Agent in connection with
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the administration of this Agreement, and all search fees, appraisal fees and
expenses, title insurance policy fees, costs and expenses and filing and
recording fees and all costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses or (but not as well as) the reasonable
allocated costs of staff counsel), if any, in connection with the enforcement
of this Agreement, the Loan Obligations, the Notes, any other Loan Document or
any other agreement furnished pursuant hereto or thereto or in connection
herewith or therewith. In addition, the appropriate Borrower shall pay any and
all stamp, transfer and other similar taxes payable or determined to be payable
in connection with the execution and delivery of this Agreement, the Notes, any
other Loan Document or the making of any Loan, and each Borrower agrees to save
and hold the Managing Agent and each Bank harmless from and against any and all
liabilities with respect to or resulting from any delay in paying, or omission
to pay, such taxes. Any portion of the foregoing fees, costs and expenses
which remains unpaid within two (2) days of the next Monthly Borrowing Date
which is at least ten (10) Business Days after any Bank's statement and request
for payment thereof shall bear interest from the date of such statement and
request to the date of payment at the Default Rate. The appropriate Borrower
will indemnify and hold harmless each Bank and the Managing Agent and each
director, officer, employee and Affiliate of each Bank and the Managing Agent
from and against all losses, claims, damages, expenses or liabilities to which
such Bank or the Managing Agent or such director, officer, employee or
affiliated Person may become subject, insofar as such losses, claims, damages,
expenses or liabilities (or actions, suits or proceedings including any inquiry
or investigation or claims in respect thereof) arise out of, in any way relate
to, or result from the transactions contemplated by this Agreement or any of
the other Loan Documents and to reimburse each of the Banks and the Managing
Agent and each such director, officer, employee or affiliated Person, upon
their demand, for any reasonable legal or other expenses (or (but not as well
as) the reasonable allocated costs of staff counsel) incurred in connection
with investigating, preparing to defend or defending any such loss, claim,
damage, liability, action or claim; provided, however:
(i) that no Bank shall have the right to be so
indemnified hereunder for its own gross negligence or willful
misconduct or bad faith or breach of this Agreement as finally
determined by a court of competent jurisdiction after all appeals
and the expiration of time to appeal, and
(ii) that nothing contained herein shall affect
the obligations and liabilities of the Banks to each Borrower
contained herein.
If any action, suit or proceeding arising from any of the foregoing is brought
against the Managing Agent, any Bank or any other Person indemnified or
intended to be indemnified pursuant to this
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Section 9.4, the appropriate Borrower will, if requested by the Managing Agent,
any Bank or any such indemnified Person, resist and defend such action, suit or
proceeding or cause the same to be resisted and defended by counsel reasonably
satisfactory to the Person or Persons indemnified or intended to be
indemnified. Each indemnified Person shall, if the Managing Agent, a Bank or
other indemnified Person has made the request described in the preceding
sentence and such request has not been complied with, have the right to employ
its own counsel (or (but not as well as) staff counsel) to investigate and
control the defense of any matter covered by such indemnity and the reasonable
fees and expenses of such counsel shall be at the expense of the indemnifying
party. If any Borrower shall fail to do any act or thing which it has
covenanted to do hereunder or any representation or warranty on the part of any
Borrower contained herein shall be breached, the Managing Agent may (but shall
not be obligated to) do the same or cause it to be done or remedy any such
breach, and may expend its funds for such purpose, and will use its best
efforts to give prompt written notice to the appropriate Borrower and the
Guarantor that it proposes to take such action. Any and all amounts so
expended by the Managing Agent shall be repayable to it by the appropriate
Borrower promptly upon the Managing Agent's demand therefor and shall be
considered a Loan hereunder; provided that, such Borrower may request
reasonable supporting information with respect to any such payment demanded.
If any such amount is not reimbursed to the Managing Agent within two (2) days
of the next Monthly Borrowing Date which is at least ten (10) Business Days
after demand therefor, or, if such supporting information is so requested,
within the date when such supporting information is provided to the applicable
Borrower, the unpaid amount outstanding and due shall bear interest for all
periods thereafter until paid at the Prime Rate in effect from time to time.
Notwithstanding the foregoing, during any period while a Guarantor Event of
Default or a Borrower Event of Default with respect to such Borrower shall have
occurred and be continuing, any amounts repayable to the Managing Agent which
are outstanding after demand therefore shall bear interest at the Default Rate
in effect from time to time. The obligations of each Borrower under this
Section 9.4 shall survive the termination of this Agreement and the discharge
of such Borrower's other obligations hereunder.
Section 9.5 Confirmations. Each Borrower and each holder of any
Note agree from time to time, upon written request received by one from the
other or from Guarantor, to confirm to the other or Guarantor, as the case may
be, in writing (with a copy of each such confirmation to the Managing Agent)
the aggregate unpaid principal amount of any Loan Obligation then outstanding.
Section 9.6 Adjustment; Set-off. (a) If any Bank (a "Benefitted
Bank") shall at any time receive any payment of all or part of its Loans, or
interest thereon, or receive any collateral (or proceeds thereof) in respect
thereof (whether voluntarily or involuntarily, by set-off, pursuant to events
or proceedings of the
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nature referred to in Sections 7.1(c), 7.1(d), 7.2(e) or 7.2(f), hereof, or
otherwise) in a greater proportion than any such payment to and collateral (or
proceeds thereof) received by any other Bank in respect of such other Bank's
Loans or interest thereon, such Benefitted Bank shall purchase for cash from
the other Banks such portion of each such other Bank's Loans, or shall provide
such other Banks with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such Benefitted Bank to share the
excess payment or benefits of such collateral or proceeds ratably with each of
the Banks; provided, however, that if all or any portion of such excess payment
or benefits is thereafter recovered from such Benefitted Bank, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest. Each Borrower agrees that each Bank so
purchasing a portion of another Bank's Loans may exercise all rights of payment
(including, without limitation, rights of set-off) with respect to such portion
as fully as if such Bank were the direct holder of such portion.
(b) In addition to any rights and remedies of the Banks provided
by law, each Bank shall have the right, without prior notice to any Borrower,
any such notice being expressly waived by each Borrower, upon the filing of a
petition under any of the provisions of the federal bankruptcy act or
amendments thereto, by or against, or the occurrence of a Guarantor Event of
Default or Borrower Event of Default with respect to, the making of an
assignment for the benefit of creditors by, the application for the
appointment, or the appointment, of any receiver of, or of any of the property
of, the issuance of any execution against any of the property of, the issuance
of a subpoena or order, in supplementary proceedings, against or with respect
to any of the property of, or the issuance of a warrant of attachment against
the property of, the appropriate Borrower, to set-off and apply against any
Indebtedness, whether matured or unmatured, of the appropriate Borrower to such
Bank, any amount owing from such Bank to each such Borrower, at or at any time
after, the happening of any of the above-mentioned events, and the aforesaid
right of set-off may be exercised by such Bank against each such Borrower or
against any trustee in bankruptcy, debtor in possession, assignee for the
benefit of creditors, receivers, or execution, judgment or attachment creditor
of each such Borrower, or against anyone else claiming through or against each
such Borrower or such trustee in bankruptcy, debtor in possession, assignee for
the benefit of creditors, receivers, or execution judgment or attachment
creditor, notwithstanding the fact that such right of set-off shall not have
been exercised by such Bank prior to the making, filing or issuance, or service
upon such Bank of, or of notice of, any such petition, assignment for the
benefit of creditors, appointment or application for the appointment of a
receiver, or issuance of execution, subpoena, order or warrant. Each Bank
agrees promptly to notify the appropriate Borrower, as the case may be, and the
Managing Agent after any such set-off and application made by such Bank,
provided that the failure to give
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such notice shall not affect the validity of such set-off and application.
Each Borrower expressly agrees that to the extent such Borrower makes
a payment or payments hereunder or under any Note and such payment or payments,
or any part thereof, are subsequently invalidated, declared to be fraudulent or
preferential, set aside or are required to be repaid to a trustee, receiver, or
any other party under any bankruptcy act, state or federal law, common law or
equitable cause, then to the extent of such payment or repayment, the
Indebtedness to the Banks or part thereof intended to be satisfied shall be
revived and continued in full force and effect as if said payment or payments
had not been made.
Section 9.7 Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original and all of which counterparts, taken together,
shall constitute but one and the same Agreement.
Section 9.8 Binding Effect; Assignment; Addition and Substitution of
Banks.
(a) This Agreement shall be binding upon, and inure to the benefit
of, each Borrower, the Managing Agent, the Banks, all future holders of the
Notes and their respective successors and assigns; provided, however, that,
except as set forth in Section 9.8(e) below, no Borrower may assign its rights
or obligations hereunder or in connection herewith or any interest herein
(voluntarily, by operation of law or otherwise) without the prior written
consent of all of the Banks.
(b) Each Bank may at any time sell to one or more banks or other
entities ("Participants") participating interests in all or any portion of its
Loan Commitment and Loans made pursuant to this Agreement or any other interest
of such Bank hereunder or under any Note (in respect of any Bank, its "Credit
Exposure"), provided that it sells participating interests in its Credit
Exposure ratably according to all facilities comprising its Credit Exposure,
and provided, further that, notwithstanding the foregoing, any Bank may at any
time sell participating interests in all or a part of its Credit Exposure to
any Affiliate of such Bank or to any other Bank. In the event of any such sale
by a Bank of participating interests to a Participant, such Bank's obligations
under this Agreement shall remain unchanged, such Bank shall remain solely
responsible for the performance thereof, such Bank shall remain the holder of
any such Notes for all purposes under this Agreement and each Borrower and the
Managing Agent shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement. Each
Borrower agrees that if amounts outstanding under this Agreement and the Notes
are due or unpaid,
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or shall have been declared or shall have become due and payable upon the
occurrence of a Guarantor Event of Default or Borrower Event of Default, each
Participant shall be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement and any Note to
the same extent as if the amount of its participating interest were owing
directly to it as a Bank under this Agreement or any Note, provided that such
right of setoff shall be subject to the obligation of such Participant to share
with the Banks, and the Banks agree to share with such Participant, as provided
in Section 9.6. Each Borrower also agrees that each Participant shall be
entitled to the benefits of Sections 2.9 and 2.10 with respect to its
participation in the Loans outstanding from time to time. Each Bank agrees
that any agreement between such Bank and any such Participant in respect of
such participating interest shall not restrict such Bank's right to agree to
any amendment, supplement or modification to the Agreement or any of the Loan
Documents except to extend the final maturity of any Note or reduce the rate or
extend the time of payment of interest thereon or reduce the principal amount
thereof.
(c) Any Bank may at any time assign to one or more Eligible
Assignees all or any part of its Credit Exposure, provided that (i) it assigns
its Credit Exposure ratably according to all facilities comprising its Credit
Exposure, (ii) it assigns its Credit Exposure in an amount not less than $5
million, and (iii) such Eligible Assignee pays to the Managing Agent an
assignment fee of $3,000. Each Borrower and the Banks agree that to the extent
of any assignment to an Eligible Assignee in accordance with the foregoing
sentence, the assignee (the "Assignee") shall be deemed to have the same rights
and benefits with respect to each Borrower under this Agreement and any Notes
and the same rights of setoff and obligation to share pursuant to Section 9.6
as it would have had if it were a Bank hereunder, provided that each Borrower
and the Managing Agent shall be entitled to continue to deal solely and
directly with the assignor Bank in connection with the interests so assigned to
the Assignee until written notice of such assignment, together with payment
instructions, addresses and related information with respect to the Assignee,
shall have been given to each Borrower and the Managing Agent by the assignor
Bank and the Assignee (accompanied, in the case of the Managing Agent, by
payment of the assignment fee). Upon the assignment of Credit Exposure
provided for hereby, the assignor Bank shall be relieved of its obligations
hereunder to the extent of such assignment and the assignee shall become a
Bank hereunder. In the event that the holder of any Note (including any Bank)
shall assign or transfer such Note as permitted hereby, or any part of the
obligations evidenced thereby, the applicable Borrower shall, upon surrender of
such Note, issue new Notes to reflect such transfer or assignment payable to
the order of the relevant parties as their respective interests may appear;
provided that such Borrower and the Managing Agent shall be entitled to
continue to deal solely and directly with the assignor holder of such Note in
connection with the interests
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so assigned until written notice of such assignment shall have been given to
such Borrower and the Managing Agent by the assignor and the assignee of such
Note or interest therein.
(d) Each Borrower authorizes each Bank to disclose to any
Participant or Assignee and any prospective Participant or Assignee the terms
and provisions of the Loan Documents and any and all financial information in
such Bank's possession concerning such Borrower and any Subsidiary of such
Borrower which has been delivered to such Bank by such Borrower pursuant to
this Agreement or which has been delivered to such Bank by such Borrower in
connection with such Bank's credit evaluation of such Borrower prior to
entering into this Agreement.
(e) Any Borrower may, upon not less than thirty (30) days prior
written notice to the Managing Agent, at any time prior to the occurrence and
continuance of a Guarantor Event of Default, assign to another Borrower
hereunder ("Assignee Borrower") all, but not less than all of the assigning
Borrower's rights and obligations with respect to any Project Loan hereunder,
provided, that: (i) such Assignee Borrower shall have assumed all of the
assigning Borrower's Obligations hereunder and shall have received good and
marketable title to all of the assets of such Borrower with respect to such
Project (subject only to Permitted Liens); (ii) such Assignee Borrower shall
have executed and delivered to each affected Bank Notes of such Assignee
Borrower evidencing the obligations being assumed, which Notes shall be in
substantially the form of the Notes previously issued by the transferor
Borrower evidencing such obligations, with such changes and additions thereto
as the Banks may reasonably require; (iii) the representations and warranties
contained in this Agreement with respect to such Assignee Borrower shall each
be true and correct in all material respects at and as of such time of
assignment, as though made on and as of such time; (iv) no Borrower Event of
Default or Unmatured Borrower Event of Default with respect to such Assignee
Borrower shall have occurred and be continuing on such date or will occur after
giving effect to such assignment; (v) the Managing Agent shall have received an
assignment and assumption agreement with respect to such assignment executed by
the relevant Borrowers in form and substance satisfactory to the Managing
Agent; (vi) the Managing Agent shall have received the written consent of
Guarantor to such assignment; and (vi) such assignment and assumption shall, in
all other respects be reasonably satisfactory to the Managing Agent. The
Borrowers, the Managing Agent and the Banks agree that to the extent of any
assignment to an Assignee Borrower in accordance with the terms of this Section
9.8(e), the Assignee Borrower shall be deemed to have the same rights, benefits
and obligations as the Borrower assigning such rights, benefits and obligations
as if such Assignee Borrower had originally incurred the Loan Obligations so
assigned.
(f) In the event that the holder of any Note (including any Bank)
shall transfer such Note in accordance with the terms
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hereof, it shall immediately advise the Managing Agent and the applicable
Borrower of such transfer, and the Managing Agent and the applicable Borrower
shall be entitled conclusively to assume that no transfer of any Note has been
made by any holder (including any Bank) unless and until Managing Agent and
such Borrower shall have received written notice to the contrary. Except as
otherwise provided in this Agreement or as otherwise expressly agreed in
writing by all of the other parties hereto, no Bank shall, by reason of the
transfer of a Note or otherwise, be relieved of any of its obligations
hereunder. Each transferee of any Note shall take such Note subject to the
provisions of this Agreement and to any request made, waiver or consent given
or other action taken hereunder, prior to the receipt by the Managing Agent and
the applicable Borrower of written notice of such transfer, by each previous
holder of such Note, and, except as expressly otherwise provided in such
transfer by each previous holder of such Note, and, except as expressly
otherwise provided in such notice, the Managing Agent and the applicable
Borrower shall be entitled conclusively to assume that the transferee named in
such notice shall thereafter be vested with all rights and powers under this
Agreement with respect to the Pro Rata Share of the Loans of the Bank named as
the payee of the Note which is the subject of such transfer.
(g) Notwithstanding any other language in this Agreement, a Bank
may at any time assign all or any portion of its rights under this Agreement
and the Notes to a Federal Reserve Bank as collateral in accordance with
Regulation A of the Board of Governors of the Federal Reserve System and the
applicable operating circular of such Federal Reserve Bank, provided, however,
the Bank shall remain solely and exclusively responsible for its obligations
under this Agreement and the Notes.
Section 9.9 Consent to Jurisdiction. Each Borrower hereby irrevocably
submits to the nonexclusive jurisdiction of any United States Federal or New
York State court sitting in New York City in any action or proceeding arising
out of or relating to this Agreement or any other Loan Document, and each
Borrower hereby irrevocably agrees that all claims in respect of such action or
proceeding shall be heard and determined in any such United States Federal or
New York State court and each Borrower irrevocably waives any objection,
including, without limitation, any objection to the laying of venue or based on
the grounds of forum non conveniens which it may now or hereafter have to the
bringing of any such action or proceeding in such respective jurisdictions.
Nothing herein shall affect the right of the Managing Agent or any of the Banks
to serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against any Borrower in any other
jurisdiction. As a method of service, each Borrower also irrevocably consents
to the service of any and all process in any such action or proceeding brought
in any court in or of the State of New York by the delivery of copies of such
process to such
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Borrower, at its address specified in Section 9.4 hereof or by certified mail
direct to such address.
Section 9.10 Governing Law. This Agreement, the Notes and each Loan
Obligation shall be deemed to be a contract made under the laws of the State of
New York, and for all purposes shall be construed in accordance with the laws
of said State, without regard to principles of conflicts of law. Nothing
contained in this Agreement and no action taken by the Managing Agent or any
Bank pursuant hereto shall be deemed to constitute the Managing Agent or the
Banks a partnership, an association, a joint venture or other entity.
Section 9.11 Severability of Provisions. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 9.12 Borrower Termination. Any Borrower may, upon the
delivery to the Managing Agent of a Borrower Termination Agreement, cease to be
a party hereto, if such Borrower's Obligations hereunder and all Notes
evidencing the same have been paid in full or assigned to another Borrower in
accordance with the provisions of Section 9.8(e) and all Project Commitments
with respect to such Borrower have been terminated; provided, however, that
such Borrower's obligations under Sections 2.10, 8.5, 9.4, 9.6, 9.9 and 9.13
shall survive the termination of such Borrower.
Section 9.13 Waiver of Jury Trial. THE PARTIES HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN CONNECTION WITH ANY
ACTION UNDER OR COUNTERCLAIM RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT.
Section 9.14 Headings. The Table of Contents and Article and Section
headings used in this Agreement are for convenience of reference only and shall
not affect the construction of this Agreement.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
ADDRESS FOR NOTICES
XXXXXXXXXX XXXXXXXXXX, A MICHIGAN
XXXXXXXXXX GENERAL PARTNERSHIP
XXXXXXXXXX
XXXXXXXXXX By: BIG BEAVER DEVELOPMENT
Attn: XXXXXXXXXX CORPORATION, a Michigan
corporation, and its general
with a copy to: partner
/s/
Kmart Corporation By: --------------------------
3100 West Big Beaver Road Its: President
Xxxx, XX 00000 -------------------------
Attn: Xxxxxxx X. Xxxxxx and
---
By: XXXXXXXXXX, a Michigan
limited partnership and its
managing general partner
By: XXXXXXXXXX, a Michigan
corporation and its sole
general partner
/s/
By: --------------------------
Its: President
-------------------------
Kmart Corporation KMART CORPORATION
0000 Xxxx Xxx Xxxxxx Xxxx /x/
Xxxx, XX 00000 By: ------------------------------
Attn: Xxxxxxx X. Xxxxxx Its: Senior Vice President
-----------------------------
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[BANK SIGNATURE PAGES INTENTIONALLY DELETED]
85
[Exhibits and Schedules Intentionally Omitted]
