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EXHIBIT 10.36
CONFORMED COPY
$250,000,000
CREDIT AGREEMENT
dated as of
June 26, 1996
among
CORPORATE PROPERTY INVESTORS
The BANKS Listed Herein
and
CHEMICAL BANK - A SUBSIDIARY OF THE
CHASE MANHATTAN CORPORATION,
as Documentation Agent
and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Administrative Agent
--------------------------
CHEMICAL BANK - A SUBSIDIARY OF THE
CHASE MANHATTAN CORPORATION
and
X.X. XXXXXX SECURITIES INC.
Co-Arrangers
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TABLE OF CONTENTS(1)
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions................................... 1
SECTION 1.02. Accounting Terms and
Determinations................................ 18
SECTION 1.03. Types of Borrowings........................... 18
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend........................... 18
SECTION 2.02. Notice of Committed Borrowing................. 19
SECTION 2.03. Money Market Borrowings....................... 19
SECTION 2.04. Notice to Banks; Funding of Loans............. 24
SECTION 2.05. Notes......................................... 25
SECTION 2.06. Maturity of Loans............................. 25
SECTION 2.07. Interest Rates................................ 25
SECTION 2.08. Fees.......................................... 28
SECTION 2.09. Optional Termination or Reduction
of Commitment................................. 28
SECTION 2.10. Mandatory Termination of
Commitment.................................... 28
SECTION 2.11. Mandatory Prepayments and
Termination of Commitment..................... 28
SECTION 2.12. Optional Prepayments.......................... 32
SECTION 2.13. General Provisions as to Payments............. 32
SECTION 2.14. Funding Losses................................ 33
SECTION 2.15. Computation of Interest and Fees.............. 33
SECTION 2.16. Withholding Tax Exemption..................... 34
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(1) The Table of Contents is not a part of this Agreement.
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Page
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness................................. 35
SECTION 3.02. Borrowings.................................... 36
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Existence and Power........................... 37
SECTION 4.02. Authorization; No Contravention............... 37
SECTION 4.03. Binding Effect................................ 38
SECTION 4.04. Financial Information......................... 38
SECTION 4.05. Litigation.................................... 38
SECTION 4.06. Compliance with ERISA......................... 39
SECTION 4.07. Environmental Matters......................... 39
SECTION 4.08. Taxes......................................... 40
SECTION 4.09. Not an Investment Company..................... 40
SECTION 4.10. Full Disclosure............................... 40
SECTION 4.11. Qualification as a REIT....................... 40
SECTION 4.12. Real Estate Operating Company................. 41
SECTION 4.13. Insurance..................................... 41
SECTION 4.14. Subsidiaries.................................. 41
ARTICLE V
COVENANTS
SECTION 5.01. Information................................... 41
SECTION 5.02. Payment of Obligations........................ 45
SECTION 5.03. Maintenance of Property; Insurance............ 45
SECTION 5.04. Conduct of Business and Maintenance
of Existence.................................. 46
SECTION 5.05. Compliance with Laws.......................... 46
SECTION 5.06. Inspection of Property, Books and
Records....................................... 46
SECTION 5.07. Limitations on Debt........................... 47
SECTION 5.08. Minimum Net Worth............................. 47
SECTION 5.09. Value of Unleveraged Assets................... 47
SECTION 5.10. Debt Service Coverage......................... 47
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Page
SECTION 5.11. Use of Proceeds............................... 48
SECTION 5.12. Real Property Appraisals...................... 48
SECTION 5.13. Transactions with Affiliates.................. 48
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default.............................. 48
SECTION 6.02. Notice of Default.............................. 51
ARTICLE VII
THE AGENTS
SECTION 7.01. Appointment and Authorization................. 51
SECTION 7.02. Agents and Affiliates......................... 51
SECTION 7.03. Action by Agents.............................. 52
SECTION 7.04. Consultation with Experts..................... 52
SECTION 7.05. Liability of Agents........................... 52
SECTION 7.06. Indemnification............................... 52
SECTION 7.07. Credit Decision............................... 53
SECTION 7.08. Successor Agents.............................. 53
SECTION 7.09. Agents' Fee................................... 53
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or................................. 53
SECTION 8.02. Illegality.................................... 54
SECTION 8.03. Increased Cost and Reduced Return............. 55
SECTION 8.04. Base Rate Loans Substituted for
Affected Fixed Rate Loans..................... 57
SECTION 8.05. Election to Terminate......................... 58
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices....................................... 58
SECTION 9.02. No Waivers.................................... 59
SECTION 9.03. Expenses; Documentary Taxes;
Indemnification............................... 59
SECTION 9.04. Amendments and Waivers........................ 60
SECTION 9.05. Successors and Assigns........................ 60
SECTION 9.06. Collateral.................................... 62
SECTION 9.07. Offer to Secure the Obligations............... 63
SECTION 9.08. Governing Law; Submission to
Jurisdiction.................................. 64
SECTION 9.09. Counterparts; Integration..................... 64
SECTION 9.10. WAIVER OF JURY TRIAL.......................... 64
SECTION 9.11. Limitation of Liability....................... 64
SECTION 9.12. Confidentiality............................... 65
SECTION 9.13. Adjustments................................... 65
SECTION 9.14. Existing Credit Agreement..................... 66
PRICING SCHEDULE
Exhibit A - Note
Exhibit B - Form of Money Market Quote Request
Exhibit C - Form of Invitation for Money Market Quotes
Exhibit D - Form of Money Market Quote
Exhibit E - Opinion of General Counsel for the Borrower
Exhibit F - Opinion of Peabody & Xxxxxx, Special Counsel for the Borrower
Exhibit G - Opinion of Cravath, Swaine & Xxxxx, Special Counsel for the
Borrower
Exhibit H - Opinion of Xxxxx Xxxx & Xxxxxxxx, Special Counsel for the
Administrative Agent
Exhibit I - Leasing Status Report
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Exhibit J - Leasing Status Summary
Exhibit K - Assignment and Assumption Agreement
Exhibit L - Subordination Provisions
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CREDIT AGREEMENT
AGREEMENT dated as of June 26, 1996 among CORPORATE PROPERTY
INVESTORS, the BANKS listed on the signature pages hereof, CHEMICAL BANK, as
Documentation Agent, and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have
the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.03.
"Adjusted London Interbank Offered Rate" has the meaning set forth
in Section 2.07(b).
"Administrative Agent" means Xxxxxx Guaranty Trust Company of New
York in its capacity as Administrative Agent for the Banks hereunder, and its
successors in such capacity.
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Borrower) duly
completed by such Bank.
"Affiliate" means, with respect to any Person (the "Subject
Person"), (i) any Person that directly, or indirectly through one or more
intermediaries, controls the Subject Person (a "Controlling Person") or (ii) any
Person (other than the Subject Person) which is controlled by or is under common
control with a Controlling Person or the Subject Person. As used herein, the
term "control" means possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a
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Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agents" means the Administrative Agent and the Documentation Agent.
"Applicable Lending Office" means, with respect to any Bank, (i) in
the case of its Base Rate Loans, its Domestic Lending Office, (ii) in the case
of its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case
of its Money Market Loans, its Money Market Lending Office.
"Appraised Value" of any Real Property means at any time the fair
market value of the equity interests in all such Real Property held at such time
by the Borrower and its Consolidated Subsidiaries, as set forth in the most
recent real property appraisal of the Borrower and its Consolidated Subsidiaries
by the Appraiser referred to in Section 5.12, to which has been added related
debt secured by such Real Property, which debt had been deducted in determining
such fair market value.
"Appraiser" means Xxxxxxxx Associates, Inc., or any other nationally
recognized, independent appraiser that is experienced in the appraisal of
regional and super-regional shopping centers and is a member of the Appraisal
Institute selected by the Borrower and acceptable to the Required Banks, which
acceptance shall be deemed given unless Banks having more than 33-1/3% of the
aggregate amount of the Commitments reasonably object in writing to the
selection delivered within 90 days after notice of such selection.
"Asset Acquisition" means any acquisition of assets by the Borrower
or any of its Subsidiaries.
"Asset Disposition" means any sale, lease, transfer or other
disposition of any asset, directly or indirectly (by merger or otherwise), by
the Borrower or any of its Subsidiaries other than (i) any lease of space in
Real Property entered into in the ordinary course of business, (ii) any sale,
lease, transfer or other disposition of any asset other than Real Property
entered into in the ordinary course of business, (iii) any sale, lease, transfer
or other disposition of any asset to the Borrower or to any Wholly-Owned
Consolidated Subsidiary, (iv) any transfer of cash or any sale or other
disposition of a short-term investment and (v) any grant of a Lien on any
property of the Borrower or any Subsidiary.
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"Assignee" has the meaning set forth in Section 9.05(c).
"Bank" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 9.05(c), and their respective
successors.
"Bank Affiliate" means, with respect to any Bank, (i) any Person
that directly, or indirectly through one or more intermediaries, controls such
Bank (a "Controlling Entity") or (ii) any Person (other than such Bank) which is
controlled by or is under common control with a Controlling Entity or such Bank.
As used in the immediately preceding sentence, the term "control" means
beneficial ownership of not less than 80% of the outstanding shares of common
stock of a Person.
"Base Rate" means, for any day, a rate per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"Base Rate Loan" means a Committed Loan to be made by a Bank as a
Base Rate Loan pursuant to the applicable Notice of Committed Borrowing or
Article VIII.
"Base Rate Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Board of Trustees" means the Board of Trustees of the Borrower or
the executive or any other committee of such Board authorized to exercise the
powers and authority of such Board.
"Borrower" means Corporate Property Investors, an unincorporated
Massachusetts business trust, and its successors.
"Borrowing" has the meaning set forth in Section 1.03.
"Capitalized Lease" means any lease of property (real, personal or
mixed) which in accordance with generally accepted accounting principles should
be capitalized on the lessee's balance sheet.
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"Cash Flow" means for any period Consolidated Net Income for such
period plus depreciation and amortization expense for such period to the extent
deducted in determining Consolidated Net Income for such period.
"Cash Flow Before Debt Service" means at any date (i) Cash Flow for
the four consecutive fiscal quarters ended on or most recently prior to such
date plus (ii) Consolidated Interest Expense for such four fiscal quarters (but
only to the extent such Consolidated Interest Expense shall have been deducted
in computing Consolidated Net Income).
"Code" means the internal Revenue Code of 1986, as amended, and the
regulations and rulings promulgated thereunder.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof, as such amount may
be reduced from time to time pursuant to Sections 2.09, 2.10 and 2.11.
"Commitment Pee Rate" means a rate per annum determined in
accordance with the Pricing Schedule.
"Committed Loan" means a loan made by a Bank pursuant to Section
2.01.
"Consolidated Debt" means at any date the Debt of the Borrower and
its Consolidated Subsidiaries, determined on a consolidated basis as of such
date.
"Consolidated Interest Expense" means for any period the
consolidated interest expense (whether accrued or paid) on the Consolidated Debt
for such period, including, without limitation, (i) any interest accrued or paid
during such period which is capitalized in accordance with generally accepted
accounting principles, (ii) the portion of any obligation under Capitalized
Leases allocable to interest expense during such period in accordance with
generally accepted accounting principles and (iii) any dividends paid in cash
during such period on preferred stock of a Consolidated Subsidiary held by a
Person other than the Borrower or a Wholly-Owned Consolidated Subsidiary.
"Consolidated Net Income" means for any period consolidated income
(or loss) before nonrecurring items of the Borrower and its Consolidated
Subsidiaries for such period.
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"Consolidated Net Worth" means at any date Gross Assets at such date
less the aggregate outstanding amount of Consolidated Debt.
"Consolidated Secured Debt" means at any date that portion of
Consolidated Debt at such date that is attributable to (i) Secured Debt of the
Borrower at such date and (ii) Debt of any Subsidiary at such date.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity (including, without limitation, a partnership) the accounts of which
would be consolidated with those of the Borrower in its consolidated financial
statements if such statements were prepared as of such date.
"Debt" of any Person (the "Obligor") means at any date, without
duplication, (i) all obligations of the Obligor for borrowed money or for the
unpaid purchase price of property or services or for unpaid taxes, (ii) all
obligations of any other Person for borrowed money or for the unpaid purchase
price of property or services or for unpaid taxes in respect of which the
Obligor is liable, contingently, or otherwise to pay or advance money or
property as guarantor, endorser or otherwise (except as endorser for collection
in the ordinary course of business) or which the Obligor has agreed to purchase
or otherwise acquire, (iii) all obligations of any other Person for borrowed
money or for the unpaid purchase price of property or services or for unpaid
taxes secured by (or for which the holder of such obligation has an existing
right, contingent or otherwise, to be secured by) any mortgage, deed of trust,
pledge, lien, security interest or other charge or encumbrance upon or in
property (including, without limitation, accounts and contract rights) owned by
the Obligor whether or not the Obligor has assumed or become liable for the
payment or such obligations, (iv) any lease of property, real or personal, by
the Obligor, as lessee, to the extent that, in accordance with generally
accepted accounting principles, it is required to be capitalized on a balance
sheet of the lessee, and (v) all contingent obligations of the Obligor to the
extent that in accordance with generally accepted accounting principles such
contingent obligations are required or would be required to be disclosed in the
financial statements or notes thereto of the Obligor, including, without
limitation, all commitments for future real estate acquisitions and other
similar contingent obligations of the Obligor, provided, however, that with
respect to obligations set forth in clause (iii) above involving the Obligor's
subordination of (a) the payment of lease rentals on Real Property owned by the
Obligor or (b) the Obligor's interest in Real Property, to
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the payment of a mortgage or other secured indebtedness which is solely the
obligation of any other Person, the amount of obligations of any other Person to
be included in Debt shall not be deemed to exceed the amount of the obligor's
interest in such Real Property as determined in accordance with the most recent
real property appraisal delivered pursuant to Section 5.12.
"Debt for Borrowed Money" of any Person (the "Obligor") means at any
date, without duplication, (i) all obligations of the Obligor for borrowed money
or evidenced by bonds, notes, debentures or other similar instruments or
securities, (ii) any lease of property, real or personal, by the Obligor, as
lessee, to the extent that, in accordance with generally accepted accounting
principles, it is required to be capitalized on a balance sheet of the lessee
and (iii) all obligations of. any other Person of the type described in clauses
(i) and (ii) in respect of which the Obligor is liable, contingently or
otherwise, to pay or advance money or property as guarantor, endorser or
otherwise (except as endorser for collection in the ordinary course of
business), or which the Obligor has agreed to purchase or otherwise acquire.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Delivery Time" has the meaning set forth in Section 9.07(b).
"Documentation Agent" means Chemical Bank, in its capacity as
Documentation Agent for the Banks hereunder, and its successors in such
capacity.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close.
"Domestic Lending Office" means, as to each Bank, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Administrative Agent.
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 3.01.
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"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, or any successor statute.
"ERISA Group" means the Borrower and all members of a controlled
group of corporations and all trades or businesses (whether or not incorporated)
under common control which, together with the Borrower, are treated as a single
employer under Section 414(b) or (c) of the Code, or, solely for the purposes of
Section 302 of ERISA and Section 412 of the Code, are treated as a single
employer under Section 414 of the Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Borrower and the Administrative Agent.
"Euro-Dollar Loan" means a Committed Loan to be made by a Bank as a
Euro-Dollar Loan pursuant to the applicable Notice of Committed Borrowing.
"Euro-Dollar Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.07(b).
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"Event of Default" has the meaning set forth in Section 6.01.
"Existing Shareholders" means, collectively, the Persons owning,
directly or indirectly, shares of beneficial interest in the Borrower
representing 100% of the voting power of the shares of beneficial interest in
the Borrower outstanding as of the date of this Agreement.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Xxxxxx Guaranty Trust Company of New
York on such day on such transactions as determined by the Administrative Agent.
"Fixed Rate Loans" means Euro-Dollar Loans or Money Market Loans
(excluding Money Market LIBOR Loans bearing interest at the Base Rate pursuant
to Section 8.01(a)) or any combination of the foregoing.
"Gross Assets" means at any date the sum of (i) the consolidated
Appraised Value of all interests in Real Property held at such time by the
Borrower and its Consolidated Subsidiaries, (ii) cash and all other assets of
the Borrower and its Consolidated Subsidiaries which, in accordance with
generally accepted accounting principles, at such time would be included on a
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries
(other than Real Property and any asset which is classified as an intangible
asset under generally accepted accounting principles, including, without
limitation, goodwill, patents, trademarks, trade names, copyrights and
franchises), all as set forth in the most recent real property appraisal of the
Borrower and its Consolidated Subsidiaries delivered pursuant to Section 5.12,
and (iii) if not included in the assets set forth in clause (ii), the value of
any notes and contract receivables held by the Borrower pursuant to its Employee
Share Purchase Plan as indicated in the most recent real property appraisal
delivered pursuant to Section 5.12.
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"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending one,
two, three or six months thereafter (or, if the Administrative Agent determines
that deposits of such maturities are generally available to all of the Banks in
the London interbank market for such period, nine months or one year
thereafter), as the Borrower may elect in the applicable Notice of Borrowing;
provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(2) with respect to each Base Rate Borrowing, the period commencing on the date
of such Borrowing and ending 30 days thereafter; provided that:
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) below) which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(3) with respect to each Money Market LIBOR Borrowing, the period commencing on
the date of such Borrowing and ending such whole number of months thereafter, as
the Borrower may elect in accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
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another calendar month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(4) with respect to each Money Market Absolute Rate Borrowing, the period
commencing on the date of such Borrowing and ending such number of days
thereafter (but not less than 14 days) as the Borrower may elect in accordance
with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"Investment" means any investment in any Person, whether by means of
share purchase, capital contribution, loan, time deposit or otherwise.
"LIBOR Auction" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate pursuant
to Section 2.03.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, the Borrower or any Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"Loan" means a Base Rate Loan, a Euro-Dollar Loan or a Money Market
Loan and "Loans" means Base Rate Loans, Euro-Dollar Loans or Money Market Loans
or any combination of the foregoing.
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"London Interbank Offered Rate" has the meaning set forth in Section
2.07(b).
"Mandatory Prepayment Event" has the meaning set forth in Section
2.11(f).
"Mandatory Prepayment Transaction" has the meaning set forth in
Section 2.11(e).
"Material Debt" means Debt (other than the Notes and other than
Non-Recourse Debt) of the Borrower and/or one or more of its Subsidiaries,
arising in one or more related or unrelated transactions, in an aggregate
principal amount exceeding $10,000,000.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $10,000,000.
"Minority Ownership Interest" means any equity interest in any
Person other than a Consolidated Subsidiary.
"Money Market Absolute Rate" has the meaning set forth in Section
2.03(d).
"Money Market Absolute Rate Loan" means a loan to be made by a Bank
pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its Domestic
Lending Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the Borrower
and the Administrative Agent; provided that any Bank may from time to time by
notice to the Borrower and the Administrative Agent designate separate Money
Market Lending Offices for its Money Market LIBOR Loans, on the one hand, and
its Money Market Absolute Rate Loans, on the other hand, in which case all
references herein to the Money Market Lending Office of such Bank shall be
deemed to refer to either or both of such offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made by a Bank pursuant
to a LIBOR Auction (including such a loan bearing interest at the Base Rate
pursuant to Section 8.01(a)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section 2.03(d).
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"Money Market Quote" means an offer by a Bank to make a Money Market
Loan in accordance with Section 2.03.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"Non-Recourse Debt" of any Person means at any time all Debt secured
by a Lien in or upon property owned by such Person where the rights and remedies
of the holder of such Debt do not extend to assets other than the property
constituting security therefor. Notwithstanding the foregoing, Debt of any
Person shall not fail to constitute Non-Recourse Debt by reason of the inclusion
in any document evidencing, governing, securing or otherwise relating to such
Debt of provisions to the effect that such Person shall be liable, beyond the
assets securing such Debt, for (i) misapplied moneys, including insurance and
condemnation proceeds and security deposits, (ii) indemnification by such Person
in favor of holders of such Debt and their affiliates in respect of liabilities
to third parties, including environmental liabilities, (iii) breaches of
customary representations and warranties given to the holders of such Debt and
(iv) such other obligations as are customarily excluded from the exculpation
provisions of so-called "non-recourse" loans made by commercial lenders to
institutional borrowers.
"Notes" means promissory notes of the Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of the Borrower to repay the
Loans, and "Note" means any one of such promissory notes issued hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing (as
defined in Section 2.02) or a Notice of Money Market Borrowing (as defined in
Section 2.03(f)).
"Obligations" means the obligations of the Borrower under this
Agreement including (a) all principal of and interest (including, without
limitation, any interest which accrues after the commencement of any case,
proceeding or other action relating to the bankruptcy, insolvency or
reorganization of the Borrower, whether or not an allowable
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claim in any such proceeding) on any Loan or Note, (b) all other amounts payable
by the Borrower hereunder and (c) any renewals or extensions of any of the
foregoing.
"Parent" means, with respect to any Bank, any Controlling Entity (as
defined in the definition of Bank Affiliate) of such Bank.
"Participant" has the meaning set forth in Section 9.05(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other
than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Code and either (i) is
maintained, or contributed to, by any member of the ERISA Group for employees of
any member of the ERISA Group or (ii) has at any time within the preceding five
years been maintained, or contributed to, by any Person which was at such time a
member of the ERISA Group for employees of any Person which was at such time a
member of the ERISA Group.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Prime Rate" means the rate of interest publicly announced by Xxxxxx
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"Real Property" means land, rights in land, and any buildings,
structures, improvements, furnishings, fixtures and equipment located on or used
in connection with land and rights in lands, or interests therein, including,
without limitation, fee ownership of land or improvements, options, leaseholds,
joint venture, limited liability company or partnership interests in land or
improvements, or notes, debentures, bonds or other evidences of indebtedness
collateralized by or otherwise secured in any way by mortgages, deeds of trust
or interests in any of the foregoing instruments.
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"Reference Banks" means the principal London offices of Chemical
Bank and Xxxxxx Guaranty Trust Company of New York, and "Reference Bank" means
either one of such Reference Banks.
"Refunding Borrowing" means a Committed Borrowing which, after
application of the proceeds thereof, results in no net increase in the aggregate
outstanding principal amount of the Loans (including, without limitation, any
Money Market Loans repaid with such proceeds).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having at least 66-2/3% of
the aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing at least 66-2/3% of the aggregate unpaid
principal amount of the Loans.
"Restricted Payment" means, without duplication, (i) any payment on
account of the purchase, redemption, retirement or acquisition of (a) any shares
of beneficial interest in the Borrower or (b) any option, warrant or other right
to acquire shares of beneficial interest in the Borrower, (ii) any dividend or
other distribution with respect to shares of beneficial interest in the Borrower
(except dividends payable solely in shares of beneficial interest in the
Borrower) or (iii) any payment in respect of Subordinated Securities, other than
payment of current interest on Subordinated Securities that are Debt.
"Restricted Payment Threshold" means, at any date (the
"Determination Date") the sum of (i) consolidated net income of the Borrower and
its Consolidated Subsidiaries during the period commencing on April 1, 1996 and
ending on the last day of the fiscal quarter most recently ended on or before
the Determination Date, taken as a single accounting period, plus depreciation
and amortization expense for such period to the extent deducted in determining
such consolidated net income for such period plus (ii) $500,000,000 plus (iii)
the aggregate net proceeds of any Subordinated Securities sold by the Borrower
after the Effective Date and on or before the Determination Date.
"Revolving Credit Period" means the period from and including the
Effective Date to, but excluding, the Termination Date.
"S&P" means Standard & Poor's Rating Services.
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"Secured Debt" means, with respect to the Borrower, any Debt of the
Borrower that is secured by a Lien on any of its assets.
"Security Acceptance" has the meaning set forth in Section 9.07(b).
"Security Offer" has the meaning set forth in Section 9.07(a).
"Significant Subsidiary" means any Subsidiary as to which the sum of
(i) the Appraised Value of all interests in Real Property held at such time by
such Subsidiary and (ii) the aggregate value of all other net assets at such
time of such Subsidiary, valued in accordance with the most recent real property
appraisal delivered pursuant to Section 5.12, exceeds $250,000,000.
"Significant Tenant" means a Person (including Affiliates of that
Person) that is (i) the lessee of Real Property owned by the Borrower or any
Subsidiary or (ii) a department store that is the occupant of Real Property
forming part of a shopping center owned by the Borrower or any Subsidiary but
which Real Property is owned by a Person or Persons other than the Borrower or
any Subsidiary, in any case if the aggregate of the net rentable area leased by
such Person and the gross floor area of department store space occupied by such
Person, is in excess of 150,000 square feet.
"Specified Assets" means each of the following assets of the
Borrower or any of its Subsidiaries, provided that such asset is wholly-owned by
the Borrower or any of its Subsidiaries at the time the Borrower proposes to
grant to the Administrative Agent for the ratable benefit of the Banks a
continuing security interest in such asset in accordance with Section 9.07: Town
Center at Boca Raton; Brea Mall in Orange County, California; Lenox Square in
Atlanta, Georgia; Burlington Mall in Burlington, Massachusetts; Xxxxxxxxxx Mall
in Livingston, New Jersey; Rockaway Townsquare in Rockaway, New Jersey;
Roosevelt Field in Garden City, New York; Xxxx Xxxxxxx Mall in Huntington, New
York and Westminster Mall in Orange County, California; or, with the approval of
the Required Banks, such other substitute asset with an Appraised Value equal to
or greater than the Specified Asset being substituted for.
"Subordinated Securities" means shares of stock or other equity
interests in the Borrower (whether common or preferred, voting or nonvoting,
redeemable or non-redeemable) and Debt of the Borrower which (x) shall have
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been expressly subordinated in right of payment at maturity, upon acceleration
or otherwise by the instrument creating such Debt to the Obligations by
provisions no less favorable to the holders of the Obligations than those set
forth in Exhibit L and (y) shall have a maturity date not earlier than June 27,
2002.
"Subsidiary" means (i) any corporation, trust or other entity
governed by a board of directors, board of trustees or other body exercising
similar authority over the affairs thereof, the securities or ownership
interests of which having ordinary voting power to elect a majority of such
board or body are at the time directly or indirectly owned by the Borrower and
(ii) any limited liability company, partnership (general or limited) or joint
venture of which the Borrower directly or indirectly owns the interest of a
general partner or venturer; provided, however, that (A) for purposes of each
subsection of Sections 2.10(e) and 6.01, such limited liability company,
partnership or venture shall be deemed not to be a "Subsidiary" unless, pursuant
to applicable law and the instruments and agreements governing the organization
of such limited liability company, partnership or venture, the Borrower directly
or indirectly shall have the right to cause such limited liability company,
partnership or venture to take, or to refrain from taking, the action described
in such subsection, (B) for purposes of each Section of Article IV, such limited
liability company, partnership or venture shall be deemed not to be a
"Subsidiary" unless, pursuant to applicable law and the instruments and
agreements governing the organization of such limited liability company,
partnership or venture, the Borrower directly or indirectly shall have the right
(1) to obtain the information necessary to determine the accuracy of the
representation set forth in such Section and (2) to cause such representation to
be accurate and (C) for purposes of each Section of Article V, such limited
liability company, partnership or venture shall be deemed not to be a
"Subsidiary" unless, pursuant to applicable law and the instruments and
agreements governing the organization of such limited liability company,
partnership or venture, the Borrower directly or indirectly shall have the right
to cause compliance by such limited liability company, partnership or venture
with such Section. For purposes of the preceding sentence, the right to take or
refrain from taking any action shall include the right to cause the subject
partnership or venture to obtain the necessary funds required for it to take or
refrain from taking such action.
"Super Required Banks" means at any time Banks having at least 80%
of the aggregate amount of the
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Commitments or, if the Commitments shall have been terminated, holding Notes
evidencing at least 80% of the aggregate unpaid principal amount of the Loans.
"Termination Date" means June 26, 2001 or if such day is not a
Euro-Dollar Business Day, the next succeeding Euro-Dollar Business Day.
"Unfunded Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the present value of all benefits under such
Plan exceeds (ii) the fair market value of all Plan assets allocable to such
benefits (excluding any accrued but unpaid contributions), at any such time, but
only to the extent that such excess represents a potential liability of a member
of the ERISA Group to the PBGC or any other Person under Title IV of ERISA.
"Unleveraged Assets" means at any time the sum of (i) (x) the
Appraised Value at such time of all Real Property owned by the Borrower that is
not subject to a Lien securing Debt for Borrowed Money plus (y) the value at
such time, determined in accordance with generally accepted accounting
principles, of all assets of the Borrower (other than Real Property and
intangible assets (determined in accordance with generally accepted accounting
principles)) that are not subject to any Lien securing Debt for Borrowed Money
and (ii) for each Consolidated Subsidiary that does not have Debt for Borrowed
Money (other than Debt for Borrowed Money owing to the Borrower or any
Wholly-Owned Consolidated Subsidiary and other than Non-Recourse Debt) the sum
of: (s) the Appraised Value at such time of Real Property owned by such
Consolidated Subsidiary that is not subject to a Lien securing Debt for Borrowed
Money and (t) the value at such time, determined in accordance with generally
accepted accounting principles, of all assets of such Consolidated Subsidiary
(other than Real Property and intangible assets (determined in accordance with
generally accepted accounting principles)) that are not subject to any Lien
securing Debt for Borrowed Money. For purposes of the preceding sentence only,
the term "Non-Recourse Debt" of any Person (the "Obligor") will be deemed to
include any lease of office equipment by the Obligor, as lessee, to the extent
that, in accordance with generally accepted accounting principles, it is
required to be capitalized on a balance sheet of the lessee, regardless of
whether such obligation may be enforced out of assets other than such office
equipment.
"Wholly-Owned Consolidated Subsidiary" means any Consolidated
Subsidiary all of the shares of capital stock
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or beneficial interest or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the Borrower.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time, applied
on a basis consistent (except for changes concurred in by the Borrower's
independent public accountants) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Banks.
SECTION 1.03. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to the Borrower pursuant to
Article II on a single date and for a single Interest Period. Borrowings are
classified for purposes of this Agreement either by reference to the pricing of
Loans comprising such Borrowing (e.g., a "Fixed Rate Borrowing" is a Euro-Dollar
Borrowing or a Money Market Borrowing (excluding any such Borrowing consisting
of Money Market LIBOR Loans bearing interest at the Base Rate pursuant to
Section 8.01(a)), and a "Euro-Dollar Borrowing" is a Borrowing comprised of
Euro-Dollar Loans) or by reference to the provisions of Article II under which
participation therein is determined (i.e., a "Committed Borrowing" is a
Borrowing under Section 2.01 in which all Banks participate in proportion to
their Commitments, while a "Money Market Borrowing" is a Borrowing under Section
2.03 in which the Bank participants are determined on the basis of their bids in
accordance therewith).
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. During the Revolving Credit
Period each Bank severally agrees, on the terms and conditions set forth in this
Agreement, to lend to the Borrower from time to time amounts not to exceed in
the aggregate at any one time outstanding the amount of its Commitment. Each
Borrowing under this Section shall be in an aggregate principal amount of
$5,000,000 or any larger multiple of $1,000,000 (except that any such Borrowing
may be in the aggregate amount of the unused Commitments). Within the foregoing
limits, the Borrower may borrow under
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this Section, repay, or to the extent permitted by Section 2.12, prepay Loans
and reborrow at any time during the Revolving Credit Period under this Section.
SECTION 2.02. Notice of Committed Borrowing. The Borrower shall give
the Administrative Agent and the Documentation Agent notice (a "Notice of
Committed Borrowing") at least three Domestic Business Days before each Base
Rate Borrowing and at least three Euro-Dollar Business Days before each
Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic Business
Day in the case of a Base Rate Borrowing or a Euro-Dollar Business Day in
the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are to be Base
Rate Loans or Euro-Dollar Loans,
(iv) in the case of a Fixed Rate Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period, and
(v) the purpose of such Borrowing.
Notwithstanding the foregoing, no more than ten Committed Borrowings shall be
outstanding at any one time.
SECTION 2.03. Money Market Borrowings. (a) The Money Market Option.
In addition to Committed Borrowings pursuant to Section 2.01, the Borrower may,
as set forth in this Section, request the Banks during the Revolving Credit
Period to make offers to make Money Market Loans to the Borrower, provided that
prior to the first such request the Borrower shall obtain the unanimous consent
of the Banks to the inclusion of the facility under this Section 2.03 for the
making of Money Market Loans (which consent may be granted or withheld in each
Bank's sole discretion and which may be conditioned on satisfactory revision of
the fees referred to in Section 2.08(b)). At any time after such unanimous
consent, if any, is granted, the Banks may, but shall have no obligation to,
make such offers and the Borrower may, but shall have no obligation to, accept
any such offers in the manner set forth in this Section.
(b) Money Market Quote Request. When the Borrower wishes to request
offers to make Money Market Loans under this Section, it shall transmit to the
Administrative
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Agent by telex or facsimile transmission a Money Market Quote Request
substantially in the form of Exhibit B hereto so as to be received no later than
10:30 A.M. (New York City time) on (x) the fifth Euro-Dollar Business Day prior
to the date of Borrowing proposed therein, in the case of a LIBOR Auction or (y)
the Domestic Business Day next preceding the date of Borrowing proposed therein,
in the case of an Absolute Rate Auction (or, in either case, such other time or
date as the Borrower and the Administrative Agent shall have mutually agreed and
shall have notified to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate Auction for which
such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day in the case of a LIBOR Auction or a Domestic Business Day in
the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be
$5,000,000 or a larger multiple of $1,000,000,
(iii) the duration, of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set forth a
Money Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within five Euro-Dollar Business Days (or such other
number of days as the Borrower and the Administrative Agent may agree) of any
other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt of a
Money Market Quote Request, the Administrative Agent shall send to the Banks by
telex or facsimile transmission an Invitation for Money Market Quotes
substantially in the form of Exhibit C hereto, which shall constitute an
invitation by the Borrower to each Bank to submit Money Market Quotes offering
to make the Money Market Loans to which such Money Market Quote Request relates
in accordance with this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each Bank
may submit a Money Market Quote containing an offer or offers to make Money
Market Loans in
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response to any Invitation for Money Market Quotes. Each Money Market Quote must
comply with the requirements of this subsection (d) and must be submitted to the
Administrative Agent by telex or facsimile transmission at its offices specified
in or pursuant to Section 9.01 not later than (x) 2:00 P.M. (New York City time)
on the fourth Euro-Dollar Business Day prior to the proposed date of Borrowing,
in the case of a LIBOR Auction or (y) 9:30 A.M. (New York City time) on the
proposed date of Borrowing, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrower and the Administrative
Agent shall have mutually agreed and shall have notified to the Banks not later
than the date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective); provided that
Money Market Quotes submitted by the Administrative Agent (or any affiliate of
the Administrative Agent) in the capacity of a Bank may be submitted, and may
only be submitted, if the Administrative Agent or such affiliate notifies the
Borrower of the terms of the offer or offers contained therein not later than
(x) one hour prior to the deadline for the other Banks, in the case of a LIBOR
Auction or (y) 15 minutes prior to the deadline for the other Banks, in the case
of an Absolute Rate Auction. Subject to Articles III and VI, any Money Market
Quote so made shall be irrevocable except with the written consent of the
Administrative Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall be in substantially the form of
Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which each
such offer is being made, which principal amount (w) may be greater than
or less than the Commitment of the quoting Bank, (x) must be $5,000,000 or
a larger multiple of $1,000,000, (y) may not exceed the principal amount
of Money Market Loans for which offers were requested, and (z) may be
subject to an aggregate limitation as to the principal amount of Money
Market Loans for which offers being made by such quoting Bank may be
accepted,
(C) in the case of a LIBOR Auction, the margin above or below the
applicable London Interbank Offered Rate (the "Money Market Margin")
offered for each such Money Market Loan, expressed as a percentage
(specified
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to the nearest 1/10,000th of 1%) to be added to or subtracted from such
base rate,
(D) in the case of an Absolute Rate Auction, the rate of interest
per annum (specified to the nearest 1/10,000th of 1%) (the "Money Market
Absolute Rate") offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D hereto or does
not specify all of the information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set forth in
the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (d)(i).
(e) Notice to the Borrower. The Administrative Agent shall promptly
notify the Borrower of the terms (x) of any Money Market Quote submitted by a
Bank that is in accordance with subsection (d) and (y) of any Money Market Quote
that amends, modifies or is otherwise inconsistent with a previous Money Market
Quote submitted by such Bank with respect to the same Money Market Quote
Request. Any such subsequent Money Market Quote shall be disregarded by the
Administrative Agent unless such subsequent Money Market Quote is submitted
solely to correct a manifest error in such former Money Market Quote. The
Administrative Agent's notice to the Borrower shall specify (A) the aggregate
principal amount of Money Market Loans for which offers have been received for
each Interest Period specified in the related Money Market Quote Request, (B)
the respective principal amounts and Money Market Margins or Money Market
Absolute Rates, as the case may be, so offered and (C) if applicable,
limitations on the aggregate principal amount of
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Money Market Loans for which offers in any single Money Market Quote may be
accepted.
(f) Acceptance and Notice by Borrower. Not later than 10:30 A.M.
(New York City time) on (x) the third Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) the proposed
date of Borrowing, in the case of an Absolute Rate Auction (or, in either case,
such other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and notified to the Banks not later than the date of the Money
Market Quote Request for the first LIBOR Auction or Absolute Rate Auction for
which such change is to be effective), the Borrower shall notify the
Administrative Agent of its acceptance or non-acceptance of the offers so
notified to it pursuant to subsection (e). In the case of acceptance, such
notice (a "Notice of Money Market Borrowing") shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
Borrower may accept any Money Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money Market Borrowing
may not exceed the applicable amount set forth in the related Money Market
Quote Request;
(ii) the principal amount of each Money Market Borrowing must be
$5,000,000 or a larger multiple of $1,000,000;
(iii) acceptance of offers may only be made on the basis of
ascending Money Market Margins or Money Market Absolute Rates, as the case
may be, and;
(iv) the Borrower may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(g) Allocation by Administrative Agent. If offers are made by two
or more Banks with the same Money Market Margins or Money Market Absolute Rates,
as the case may be, for a greater aggregate principal amount than the amount in
respect of which such offers are accepted for the related Interest Period, the
principal amount of Money Market Loans in respect of which such offers are
accepted shall be allocated by the Administrative Agent among such, Banks as
nearly as possible (in multiples of $1,000,000 as the Administrative Agent may
deem appropriate) in proportion to the aggregate principal amounts of such
offers.
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Determinations by the Administrative Agent of the amounts of Money Market Loans
shall be conclusive in the absence of manifest error.
SECTION 2.04. Notice to Banks: Funding of Loans. (a) Upon receipt of
a Notice of Borrowing, the Administrative Agent shall promptly notify each Bank
of the contents thereof and of such Bank's share of such Borrowing and such
Notice of Borrowing shall not thereafter be revocable by the Borrower.
(b) Not later than 11:00 A.M. (New York City time) on the date of
each Borrowing, each Bank shall (except as provided in subsection (c) of this
Section) make available its ratable share of such Borrowing, in Federal or other
funds immediately available in New York City, to the Administrative Agent at its
address specified in or pursuant to Section 9.01. Unless the Administrative
Agent determines, or is notified by the Documentation Agent prior to the date of
such Borrowing that the Documentation Agent has determined, that any applicable
condition specified in Article III has not been satisfied, the Administrative
Agent will make the funds so received from the Banks available to the Borrower
at the Administrative Agent's aforesaid address.
(c) If any Bank makes a new Loan hereunder on a day on which the
Borrower is to repay all or any part of an outstanding Loan from such Bank, such
Bank shall apply the proceeds of its new Loan to make such repayment and only an
amount equal to the difference (if any) between the amount being borrowed and
the amount being repaid shall be made available by such Bank to the
Administrative Agent as provided in subsection (b) of this Section, or remitted
by the Borrower to the Administrative Agent as provided in Section 2.12, as the
case may be.
(d) Unless the Administrative Agent shall have received notice from
a Bank prior to the date of any Borrowing that such Bank will not make available
to the Administrative Agent such Bank's share of such Borrowing, the
Administrative Agent may assume that such Bank has made such share available to
the Administrative Agent on the date of such Borrowing in accordance with
subsections (b) and (c) of this Section and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so made
such share available to the Administrative Agent, such Bank and the Borrower
severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together
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with interest thereon, for each day from the date such amount is made available
to the Borrower until the date such amount is repaid to the Administrative
Agent, at (i) in the case of the Borrower, a rate per annum equal to the higher
of the Federal Funds Rate and the interest rate applicable thereto pursuant to
Section 2.07 and (ii) in the case of such Bank, the Federal Funds Rate. If such
Bank shall repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Bank's Loan included in such Borrowing
for purposes of this Agreement.
SECTION 2.05. Notes. (a) The Loans of each Bank shall be evidenced
by a single Note payable to the order of such Bank for the account of its
Applicable Lending Office in an amount equal to the aggregate unpaid principal
amount of such Bank's Loans.
(b) Each Bank may, by notice to the Borrower and the Administrative
Agent, request that its Loans of a particular type be evidenced by a separate
Note in an amount equal to the aggregate unpaid principal amount of such Loans.
Each such Note shall be in substantially the form of Exhibit A hereto with
appropriate modifications to reflect the fact that it evidences solely Loans of
the relevant type. Each reference in this Agreement to the "Note" of such Bank
shall be deemed to refer to and include any or all of such Notes, as the context
may require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.01(b),
the Administrative Agent shall mail such Note to such Bank. Each Bank shall
record the date, amount, type and maturity of each Loan made by it and the date
and amount of each payment of principal made by the Borrower with respect
thereto, and prior to any transfer of its Note shall endorse on the schedule
forming a part thereof appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding; provided that the
failure of any Bank to make any such recordation or endorsement shall not affect
the obligations of the Borrower hereunder or under the Notes. Each Bank is
hereby irrevocably authorized by the Borrower so to endorse its Note and to
attach to and make a part of its Note a continuation of any such schedule as and
when required.
SECTION 2.06. Maturity of Loans. Each Loan included in any Borrowing
shall mature, and the principal amount thereof shall be due and payable, on the
last day of the Interest Period applicable to such Borrowing.
SECTION 2.07. Interest Rates. (a) Each Base Rate Loan shall bear
interest on the outstanding principal
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amount thereof, for each day from the date such Loan is made until it becomes
due, at a rate per annum equal to the sum of (x) the Base Rate Margin for such
day plus (y) the Base Rate for such day. Such interest shall be payable for each
Interest period on the last day thereof. Any overdue principal of or interest on
any Base Rate Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 3% plus the rate otherwise
applicable to Base Rate Loans for such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Euro-Dollar Margin for such
day plus the applicable Adjusted London Interbank Offered Rate. Such interest
shall be payable for each Interest Period on the last day thereof and, if such
Interest Period is longer than three months, at intervals of three months after
the first day thereof.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upward, if necessary, to the next higher 1/100 of 1%) by dividing (i) the
applicable London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar
Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Interest
Period means the average (rounded upward, if necessary, to the next higher 1/16
of 1%) of the respective rates per annum at which deposits in dollars are
offered to each of the Reference Banks in the London interbank market at
approximately 11:00 A.M. (London time) two Euro-Dollar Business Days before the
first day of such Interest Period in an amount approximately equal to the
principal amount of the Euro-Dollar Loan of such Reference Bank to which such
Interest Period is to apply and for a period of time comparable to such Interest
Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to
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United States residents). The Adjusted London Interbank Offered Rate shall be
adjusted automatically on and as of the effective date of any change in the
Euro-Dollar Reserve Percentage.
(c) Any overdue principal of or interest on any Euro-Dollar Loan
shall bear interest, payable on demand, for each day from and including the date
payment thereof was due to but excluding the date of actual payment, at a rate
per annum equal to the sum of 3% plus the sum of the Euro-Dollar Margin plus the
Adjusted London Interbank Offered Rate applicable to such Loan on the date such
default shall have occurred.
(d) Subject to Section 8.01(a), each Money Market LIBOR Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the sum of the London
Interbank Offered Rate for such Interest Period (determined in accordance with
Section 2.07(b) as if the related Money Market LIBOR Borrowing were a Committed
Euro-Dollar Borrowing) plus (or minus) the Money Market Margin quoted by the
Bank making such Loan in accordance with Section 2.03. Each Money Market
Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the Money Market Absolute Rate quoted by the Bank making such Loan in
accordance with Section 2.03. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day thereof. Any overdue
principal of or interest on any Money Market Loan shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to the sum of 3%
plus the Base Rate for such day.
(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to the Borrower and the Banks by telex, cable or facsimile of each rate
of interest so determined, and its determination thereof shall be conclusive in
the absence of manifest error.
(f) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Administrative Agent as contemplated hereby. If any Reference
Bank does not furnish a timely quotation, the Administrative Agent shall
determine the relevant interest rate on the basis of the quotation or quotations
furnished by the remaining Reference Bank or
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Banks or, if none of such quotations is available on a timely basis, the
provisions of Section 8.01 shall apply.
SECTION 2.08. Fees. (a) On or before the Effective Date, the
Borrower shall pay to the Administrative Agent for the account of the Banks a
participation fee in an amount equal to (x) if such Bank's initial bid for a
commitment (as set forth in such Bank's commitment letter) was less than
$25,000,000, 0.15% of the amount of such Bank's Commitment or (y) if such Bank's
initial bid for a commitment (as set forth in such Bank's commitment letter) was
greater than or equal to $25,000,000, 0.20% of the amount of such Bank's
Commitment.
(b) During the Revolving Credit Period, the Borrower shall pay to
the Administrative Agent for the account of each Bank ratably in accordance with
their respective Commitments a commitment fee at the Commitment Fee Rate
(determined daily in accordance with the Pricing Schedule) on the daily amount
by which the aggregate amount of the Commitments exceeds the aggregate
outstanding principal amount of the Loans. Such commitment fees shall accrue
from and including the Effective Date to but excluding the last day of the
Revolving Credit Period and shall be payable quarterly in arrears on each
January 15, April 15, July 15 and October 15 during the Revolving Credit Period
(commencing October 15, 1996) and on the date of the termination of the
Commitments in their entirety.
SECTION 2.09. Optional Termination or Reduction of Commitment.
During the Revolving Credit Period, the Borrower may, upon at least 15 calendar
days' notice to the Administrative Agent, (a) terminate the Commitments at any
time, if no Loans are outstanding at such time or (b) ratably reduce from time
to time by an aggregate amount of $1,000,000 or any larger multiple of
$1,000,000, the unused portion of the Commitments. If the Commitments are
terminated in their entirety, all accrued commitment fees shall be payable on
the effective date of such termination.
SECTION 2.10. Mandatory Termination of Commitment. The Commitments
shall terminate on the Termination Date, and any Loans then outstanding
(together with accrued interest thereon) shall be due and payable on such date.
SECTION 2.11. Mandatory Prepayments and Termination of Commitment.
(a) Promptly following any determination by the Borrower or any of its
Subsidiaries to consummate a Mandatory Prepayment Transaction, and in any event
at least 90 days prior to the consummation by the
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Borrower or any of its Subsidiaries of a Mandatory Prepayment Transaction, the
Borrower shall send a notice prepared by its chief financial officer to each of
the Banks (i) specifying the date on which the Borrower or its Subsidiary, as
the case may be, proposes to consummate such Mandatory Prepayment Transaction
and (ii) describing such Mandatory Prepayment Transaction in reasonable detail.
(b) Prior to, or simultaneously with, the consummation by the
Borrower or any of its Subsidiaries of any Mandatory Prepayment Transaction, and
upon five Domestic Business Days' notice to each of the Banks stating the
proposed date of the prepayment, the Borrower shall prepay the outstanding
principal amount of the Loans in full, together with accrued interest thereon to
the date of such prepayment and any amounts payable to the Banks as a result of
such prepayment pursuant to Section 2.14 and all accrued fees pursuant to
Section 2.08(b). The Commitments shall terminate on the earlier of (i) the date
of such prepayment and (ii) the date of consummation by the Borrower or any of
the Subsidiaries of such Mandatory Prepayment Transaction.
(c) Promptly, and in any event within two Domestic Business Days,
following the occurrence of a Mandatory Prepayment Event, the Borrower shall
give notice thereof to each of the Banks and the Administrative Agent.
(d) The Borrower shall, on a date specified by the Administrative
Agent following the occurrence of a Mandatory Prepayment Event (which date shall
be no less than two Domestic Business Days and no more than twenty Domestic
Business Days after the date the Administrative Agent receives the notice
referred to in subsection (c) above), prepay the outstanding principal amount of
the Loans in full, together with accrued interest thereon to the date of such
prepayment and any amounts payable to the Banks as a result of such prepayment
pursuant to Section 2.14 and all accrued fees pursuant to Section 2.08(b). The
Commitments shall terminate on the date of such prepayment.
(e) The term "Mandatory Prepayment Transaction" means:
(i) (x) any consolidation or merger by the Borrower with or
into any other Person or (y) any sale, lease or other transfer by
the Borrower, directly or indirectly, in one or a series of related
transactions, of all or substantially all of the assets of the
Borrower and its Subsidiaries, taken as a whole, to any Person
(other than the Borrower or any Wholly-Owned
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Consolidated Subsidiary of the Borrower); provided that a merger by
the Borrower with another Person shall not constitute a Mandatory
Prepayment Transaction if (A) the Borrower is the entity surviving
such merger and (B) immediately after giving effect to such merger,
neither a Default, a Mandatory Prepayment Transaction (other than
one referred to in this clause (i)) nor a Mandatory Prepayment Event
shall have occurred and be continuing;
(ii) the making of any Restricted Payment by the Borrower or
any of its Subsidiaries if, after giving effect thereto, the
aggregate amount of all Restricted Payments made by the Borrower and
its Subsidiaries on or subsequent to the date hereof and on or
before the date of such Restricted Payment, would equal or exceed
the Restricted Payment Threshold;
(iii) the making of any Asset Disposition by the Borrower or
any of its Subsidiaries prior to the date (if any) on which the
Security Acceptance shall occur if, after giving effect thereto, (A)
the aggregate amount of Gross Assets allocable to Real Property
disposed of by the Borrower or any of its Subsidiaries on or after
the Effective Date (determined in each case as of the date of such
disposition) equals or exceeds (B) 50% of the sum of (i)
$4,230,000,000 (Four Billion Two Hundred and Thirty Million Dollars)
plus (ii) the excess, if any, of (x) the net proceeds received by
the Borrower of any Subordinated Securities issued after the
Effective Date over (y) the sum of (I) the portion of such proceeds
not invested by the Borrower in Real Property (for purposes of
clause (y)(I), proceeds used to repay Debt incurred to invest in
Real Property being deemed to have been invested in Real Property)
plus (II) the aggregate amount of Restricted Payments made by the
Borrower and its Subsidiaries in respect of redemptions or
repurchases of Subordinated Securities issued by the Borrower after
the Effective Date; or the making of any Restricted Payment referred
to in clause (y)(II) at any time prior to the date (if any) on
which the Security Acceptance shall occur, if, after giving effect
thereto, the amount determined pursuant to clause (A) above equals
or exceeds the amount determined pursuant to clause (B) above at
such time;
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(iv) the making by the Borrower or any Consolidated Subsidiary
of any Investment (other than an Investment in the Borrower or in a
Wholly-Owned Consolidated Subsidiary) in any Person if, after giving
effect thereto, the aggregate fair market value of all Investments
of the Borrower and its Consolidated Subsidiaries (A) in such Person
(and its Affiliates (other than the Borrower and its Subsidiaries))
would exceed 25% of Gross Assets or (B) in such Person (and its
Affiliates (other than the Borrower and its Subsidiaries)) and any
two other Persons (and their respective Affiliates (other than the
Borrower and its Subsidiaries)) would exceed 50% of Consolidated Net
Worth;
(v) the making by the Borrower or any Consolidated Subsidiary
of any Investment in Real Property if, after giving effect
thereto, the Appraised Value of any single or contiguous Real
Property held by the Borrower and its Consolidated Subsidiaries
would exceed 25% of Gross Assets; or
(vi) the making by the Borrower or any Consolidated Subsidiary
of any Investment in any Person if, after giving effect thereto, the
aggregate fair market value of all Investments of the Borrower and
its Consolidated Subsidiaries that constitute Minority Ownership
Interests would exceed 10% of Gross Assets.
(f) The term "Mandatory Prepayment Event" means:
(i) failure by the Borrower or any of its Subsidiaries (other
than Subsidiaries that are considered, for Federal income tax
purposes, partnerships, non-entities or joint ventures) to qualify,
at any time, as a "real estate investment trust" or "qualified REIT
subsidiary", as the case may be, under Sections 856-859 of the Code,
or any successor provision;
(ii) failure by the Borrower to qualify, at any time, as
either a "real estate operating company" or a "venture capital
operating company", in each case, as defined in Section 2510.3-101
of the Regulations of the Department of Labor;
(iii) the Existing Shareholders shall cease, for any reason,
to own, directly or indirectly,
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shares of beneficial interest in the Borrower representing at least
55% of the voting power of all then outstanding shares of beneficial
interest of the Borrower; or
(iv) during any period of 12 consecutive calendar months,
individuals who were members of the Board of Trustees of the
Borrower on the first day of such period shall cease to constitute a
majority of the Board of Trustees of the Borrower, other than as a
result of death, incapacity or mandatory retirement based on age.
SECTION 2.12. Optional Prepayments. (a) The Borrower may (i) upon at
least three Domestic Business Days' notice (or with respect to a Base Rate
Borrowing made pursuant to Sections 8.01, 8.02 or 8.04, upon at least one
Domestic Business Day's notice) to the Administrative Agent, prepay any Base
Rate Borrowing (or any Money Market Borrowing bearing interest at the Base Rate
pursuant to Section 8.01(a)) and (ii) upon at least three Euro-Dollar Business
Days' notice to the Administrative Agent, subject to Section 2.14, prepay any
Euro-Dollar Borrowing, in whole at any time, or from time to time in part in
amounts aggregating $1,000,000 or any larger multiple of $1,000,000, by paying
the principal amount to be prepaid together with accrued interest thereon to the
date of prepayment. Each such optional prepayment shall be applied to prepay
ratably the Loans of the several Banks included in such Borrowing.
(b) Except as provided in Subsection (a) above, the Borrower may not
prepay all or any portion of the principal amount of any Money Market Loan prior
to the maturity thereof.
SECTION 2.13. General Provisions as to Payments. (a) The Borrower
shall make each payment of principal of, and interest on, the Loans and of
commitment fees hereunder, not later than 11:00 A.M. (New York City time) on the
date when due, in Federal or other funds immediately available in New York City,
to the Administrative Agent at its address referred to in Section 9.01. The
Administrative Agent will promptly distribute to each Bank its ratable share of
each such payment received by the Administrative Agent for the account of the
Banks. Whenever any payment of principal of, or interest on, the Base Rate Loans
or of commitment fees shall be due on a day which is not a Domestic Business
Day, the date for payment thereof shall be extended to the next succeeding
Domestic Business Day. Whenever any payment of principal of, or interest on, the
Euro-Dollar Loans shall be due on a day which is not a Euro-Dollar Business Day,
the
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date for payment thereof shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day falls in another calendar
month, in which case the date for payment thereof shall be the next preceding
Euro-Dollar Business Day. Whenever any payment of principal of, or interest on,
the Money Market Loans shall be due on a day which is not a Euro-Dollar Business
Day, the date for payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day. If the date for any payment of principal is extended
by operation of law or otherwise, interest thereon shall be payable for such
extended time.
(b) The Banks agree that, unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which any payment is due
to the Banks hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent that
the Borrower shall not have so made such payment, each Bank shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 2.14. Funding Losses. If the Borrower makes any payment of
principal with respect to any Fixed Rate Loan (pursuant to Article II, VI or
VIII or otherwise) on any day other than the last day of the Interest Period
applicable thereto or if the Borrower fails to borrow any Fixed Rate Loans after
notice has been given to any Bank in accordance with Section 2.02, the Borrower
shall reimburse each Bank within 15 days after demand for any resulting loss or
expense incurred by such Bank (or by an existing or prospective Participant in
the related Fixed Rate Loan), including (without limitation) any loss incurred
in obtaining, liquidating or employing deposits from third parties, but
excluding loss of margin for the period after any such payment or failure to
borrow, provided that such Bank shall have delivered to the Borrower a
certificate as to the amount of such loss or expense, which certificate shall be
conclusive in the absence of manifest error.
SECTION 2.15. Computation of Interest and Fees. Interest based on
the Prime Rate hereunder shall be computed on the basis of a year of 365 days
(or 366 days in a leap
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year) and paid for the actual number of days elapsed (including the first day
but excluding the last day). All other interest and fees shall be computed on
the basis of a year of 360 days and paid for the actual number of days elapsed
(including the first day but excluding the last day).
SECTION 2.16. Withholding Tax Exemption. At least five Domestic
Business Days prior to the first date on which any amount is 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 will deliver to each of the
Borrower and the Administrative 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 all payments under this Agreement and the Notes
without deduction or withholding of any United States federal income taxes. Each
Bank which is required so to deliver a Form 1001 or 4224 will, in addition,
deliver to each of the Borrower and the Administrative Agent two additional
copies of such form (or a successor form) on or before the date that such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form so delivered by it, and such amendments thereto
or extensions or renewals thereof as may be reasonably requested by the Borrower
or the Administrative Agent, in each case certifying that such Bank is entitled
to receive all payments under this Agreement and the Notes without deduction or
withholding of any United States federal income taxes, unless any change in a
tax treaty to which the United States is a party or any change in law or
regulation of the United States has occurred after the Effective Date (or, in
the case of any bank that is not a Bank on the Effective Date, after the date
such bank becomes a Bank hereunder) and 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 Borrower and the
Administrative Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax. Notwithstanding
any provision in this Agreement to the contrary, the Borrower shall not be
obliged to pay any additional amount in respect of any United States federal
income tax (including, without limitation, pursuant to Section 8.03 hereof) if
the obligation to withhold with respect to such tax results from, or would not
have occurred but for, the failure of any Bank to deliver the forms specified in
this Section 2.16 in the manner and at the times specified herein (unless such
failure is due to a
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change in treaty, law or regulation occurring subsequent to the date on which
such form originally was required to be provided).
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness. This Agreement shall become effective
on the date that each of the following conditions shall have been satisfied (or
waived in accordance with Section 9.04, provided that the conditions set forth
in Sections 3.01(g) and (i) may not be waived except by all of the Banks):
(a) receipt by the Administrative Agent and the Documentation Agent
of counterparts hereof signed by each of the parties hereto (or, in the
case of any Bank from which an executed counterpart shall not have been
received, receipt by the Administrative Agent or Documentation Agent in
form satisfactory to it of telegraphic, telex or other written
confirmation from such Bank of execution of a counterpart hereof by such
Bank);
(b) receipt by the Administrative Agent for the account of each Bank
of a duly executed Note dated on or before the Effective Date complying
with the provisions of Section 2.05;
(c) receipt by the Administrative Agent and the Documentation Agent
of an opinion of the general counsel for the Borrower, substantially in
the form of Exhibit E hereto and covering such additional matters relating
to the transactions contemplated hereby as the Required Banks may
reasonably request;
(d) receipt by the Administrative Agent and the Documentation Agent
of an opinion of Peabody & Xxxxxx, special Massachusetts counsel for the
Borrower, substantially in the form of Exhibit F hereto and covering such
matters relating to the transactions contemplated hereby as the Required
Banks may reasonably request;
(e) receipt by the Administrative Agent and the Documentation Agent
of an opinion of Cravath, Swaine & Xxxxx, special counsel for the
Borrower, substantially in the form of Exhibit G hereto and covering such
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matters relating to the transactions contemplated hereby as the Required
Banks may reasonably request;
(f) receipt by the Administrative Agent and the Documentation Agent
of an opinion of Xxxxx Xxxx & Xxxxxxxx, special counsel for the
Administrative Agent, substantially in the form of Exhibit H hereto and
covering such additional matters relating to the transactions contemplated
hereby as the Required Banks may reasonably request;
(g) the "Commitment" (as defined therein) under the $135,000,000
Credit Agreement dated January 15, 1993 among the Borrower, the banks
listed therein, Chemical Bank, as Co-Agent and Xxxxxx Guaranty Trust
Company of New York, as Administrative Agent (the "Existing Credit
Agreement") shall have been terminated and all amounts due and payable
thereunder shall have been paid in full;
(h) receipt by the Administrative Agent and the Documentation Agent
of all documents either of them may reasonably request relating to the
existence of the Borrower, the Borrower's authority for and the validity
of this Agreement and the Notes, and any other matters relevant hereto,
all in form and substance satisfactory to the Administrative Agent and the
Documentation Agent; and
(i) the Borrower shall have paid the fees referred to in Sections
2.08(a) and 7.09;
provided that this Agreement shall not become effective or be binding on any
party hereto unless all of the foregoing conditions are satisfied not later than
June 30, 1996. The Administrative Agent shall promptly notify the Borrower and
the Banks of the Effective Date, and such notice shall be conclusive and binding
on all parties hereto.
SECTION 3.02. Borrowings. The obligation of any Bank to make a Loan
on the occasion of any Borrowing is subject to the satisfaction of the following
conditions:
(a) receipt by the Administrative Agent of a Notice of Borrowing as
required by Section 2.02 or 2.03, as the case may be;
(b) the fact that, immediately after such Borrowing, the aggregate
outstanding principal amount of the Loans will not exceed the aggregate
amount of the Commitments;
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(c) the fact that, immediately before and after such Borrowing, (i)
in the case of a Borrowing other than a Refunding Borrowing, no Default
shall have occurred and be continuing, (ii) in the case of a Refunding
Borrowing, no Event of Default shall have occurred and be continuing and
(iii) in the case of any Borrowing, (x) no Mandatory Prepayment Event
shall have occurred and (y) no Mandatory Prepayment Transaction shall have
occurred; and
(d) the fact that the representations and warranties of the Borrower
contained in this Agreement (except, in the case of a Refunding Borrowing,
the representations and warranties set forth in Sections 4.04(c), 4.05 and
4.07 as to any matter which has theretofore been disclosed in writing by
the Borrower to the Banks) shall be true on and as of the date of such
Borrowing.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the facts specified in clauses
(b), (c) and (d) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Existence and Power. The Borrower is an unincorporated
Massachusetts business trust duly organized, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts, and has all power
and all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
SECTION 4.02. Authorization; No Contravention. The execution,
delivery and performance by the Borrower of this Agreement and the Notes are
within the Borrower's powers, have been duly authorized by all necessary action
on the part of the Borrower, require no action by or in respect of, or filing
with, any governmental body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the Declaration of Trust (including, without limitation, Section 3.2(f) thereof)
or Trustee's Regulations of the Borrower or of any agreement, judgment,
injunction, order,
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decree or other instrument binding upon the Borrower or result in the creation
or imposition of (or the obligation to create or impose) any Lien on any asset
of the Borrower or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Borrower and the Note, when executed and delivered in
accordance with this Agreement, will constitute a valid and binding obligation
of the Borrower.
SECTION 4.04. Financial Information. (a) The consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as of December 31, 1995
and the related consolidated statements of cash flows, income and shareholders'
equity for the fiscal year then ended, reported on by Ernst & Young and set
forth in the Borrower's 1995 Annual Report, a copy of which has been delivered
to the Banks, fairly present, in conformity with generally accepted accounting
principles, the consolidated financial position of the Borrower and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such fiscal year.
(b) The unaudited consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of March 31, 1996 and the related unaudited
consolidated statements of cash flows, income and shareholders' equity for the
three months then ended, set forth in the Borrower's quarterly report for the
fiscal quarter ended March 31, 1996, a copy of which has been delivered to the
Banks, fairly present, in conformity with generally accepted accounting
principles, the consolidated financial position of the Borrower and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such three-month period (subject to normal
year-end adjustments).
(c) Since March 31, 1996, there has been no material adverse change
in the business, financial position, results of operations or prospects of the
Borrower and its Consolidated Subsidiaries, considered as a whole.
SECTION 4.05. Litigation. Except as described in subparagraph (2) of
Commitments, Contingencies and Other Comments of Notes to Unaudited Consolidated
Financial Statements of the Borrower and its Consolidated Subsidiaries for the
three months ended March 31, 1996, there is no action, suit or proceeding
pending against, or to the knowledge of the Borrower threatened against or
affecting, the Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official in
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which there is a reasonable possibility of an adverse decision which could
materially adversely affect the business, consolidated financial position or
consolidated results of operations of the Borrower and its Consolidated
Subsidiaries, considered as a whole, or which in any manner draws into question
the validity of this Agreement or the Note.
SECTION 4.06. Compliance with ERISA. Except for any of the
following, the failure to fulfill or comply with which would not in the
aggregate materially adversely affect the business, financial condition or
results of operations of the Borrower and its Consolidated Subsidiaries,
considered as a whole, each member of the ERISA Group has fulfilled its
obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and is in compliance in all material respects with the
presently applicable provisions of ERISA and the Code with respect to each Plan.
No member of the ERISA Group has (i) sought a waiver of the minimum funding
standard under Section 412 of the Code in respect of any Plan, (ii) failed to
make any required contribution or payment to any Plan or Multiemployer Plan or
in respect of any Benefit Arrangement, or made any amendment to any Plan or
Benefit Arrangement, which has resulted or could result in the imposition of a
Lien or the posting of a bond or other security under ERISA or the Code (except
for such a failure with respect to a Multiemployer Plan which has resulted or
could result in the posting of a bond or other security which would not be
material to the Borrower and its Consolidated Subsidiaries, considered as a
whole) or (iii) incurred any liability under Title IV of ERISA material to the
Borrower and its Consolidated Subsidiaries, considered as a whole, other than a
liability to the PBGC for premiums under Section 4007 of ERISA.
SECTION 4.07. Environmental Matters. In the ordinary course of its
business, the Borrower conducts an ongoing review of the effect of Environmental
Laws on the business, operations and properties of the Borrower and its
Subsidiaries, in the course of which it identifies and evaluates associated
liabilities and costs (including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties presently or
previously owned, any capital or operating expenditures required to achieve or
maintain compliance with environmental protection standards imposed by law or as
a condition of any license, permit or contract, any related constraints on
operating activities, including any periodic or permanent shutdown of any
facility or reduction in the level of or change in the nature of operations
conducted
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thereat and any actual or potential liabilities to third parties, including
employees, and any related costs and expenses). On the basis of this review, the
Borrower has reasonably concluded that Environmental Laws are unlikely to have a
material adverse effect on the business, financial condition or results of
operations of the Borrower and its Consolidated Subsidiaries, considered as a
whole.
SECTION 4.08. Taxes. All United States Federal income tax returns of
the Borrower and its Subsidiaries (other than Subsidiaries that are
partnerships, non-entities or joint ventures and that have a fiscal year that
does not correspond to the calendar year) that have been required to be filed
have been filed. All years through December 31, 1991 are closed and no
subsequent notice of audit has been received. The charges, accruals and reserves
on the books of the Borrower and its Subsidiaries in respect of taxes or other
governmental charges are, in the opinion of the Borrower, adequate.
SECTION 4.09. Not an Investment Company. The Borrower is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 4.10. Full Disclosure. All information heretofore furnished
by the Borrower to the Administrative Agent or any Bank for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Borrower to the Administrative
Agent or any Bank will be, true and accurate in all material respects on the
date as of which such information is stated or certified; provided that no such
representation and warranty is made with respect to any projections or
forecasts. The Borrower has disclosed to the Banks in writing any and all facts
known to it which materially and adversely affect or may affect (to the extent
the Borrower can now reasonably foresee), the business, operations or financial
condition of the Borrower and its Consolidated Subsidiaries, taken as a whole,
or the ability of the Borrower to perform its obligations under this Agreement.
SECTION 4.11. Qualification as a REIT. The organization of each of
the Borrower and its Subsidiaries and their respective methods of operation have
permitted (i) the Borrower to qualify as a "real estate investment trust" under
Sections 856-859 of the Code and (ii) the Subsidiaries of the Borrower (other
than Subsidiaries that are considered, for Federal income tax purposes,
partnerships, non-entities or joint ventures) to qualify as "real estate
investment trusts" or "qualified REIT subsidiaries", as the
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case may be, under Sections 856-859 of the Code for the Borrower's tax years
through December 31, 1994.
SECTION 4.12. Real Estate Operating Company. As of the date of this
Agreement, the Borrower is a "real estate operating company" as defined in
Section 2510.3-101 of the Regulations of the Department of Labor.
SECTION 4.13. Insurance. The Borrower maintains the insurance
required by Section 5.03(b).
SECTION 4.14. Subsidiaries. Each of the Borrower's Subsidiaries was
duly organized, is validly existing and is in good standing under the laws of
its jurisdiction of incorporation or association (to the extent such concepts
are applicable in light of the organizational form of such Subsidiary), and has
all powers and all governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted, except where the failure to
have such licenses, authorizations, consents or approvals would not have a
material adverse effect on the business, financial position, results of
operations or prospects of the Borrower and its Consolidated Subsidiaries,
considered as a whole.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under any Note:
SECTION 5.01. Information. The Borrower will deliver to each of the
Banks:
(a) as soon as available and in any event within 90 days after the
end of each fiscal year of the Borrower, a consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of the end of such
fiscal year and the related consolidated statements of cash flows, income
and shareholders' equity for such fiscal year, setting forth in each case
in comparative form the figures for the previous fiscal year, all reported
on by Ernst & Young or other independent public accountants of nationally
recognized standing;
(b) as soon as available and in any event within 45 days after the
end of each of the first three quarters of each fiscal year of the
Borrower, a
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consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such quarter and the related consolidated
statements of cash flows, income and shareholders' equity for such quarter
and for the portion of the Borrower's fiscal year ended at the end of such
quarter, setting forth in each case in comparative form the figures for
the corresponding quarter and the corresponding portion of the Borrower's
previous fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, generally accepted accounting
principles and consistency by the chief financial officer or the chief
accounting officer of the Borrower (it being understood that the format of
such balance sheet and related statements of income, cash flows and
shareholders' equity shall be substantially that of the financial
statements referred to in Section 4.04(b));
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, (i) a certificate of
the chief financial officer chief accounting officer of the Borrower (A)
setting forth in reasonable detail the calculations required to establish
whether the Borrower was in compliance with the requirements of Sections
5.07 to 5.10, inclusive, on the date of such financial statements, (B)
stating whether any Default or Mandatory Prepayment Event exists on the
date of such certificate and, if any Default or Mandatory Prepayment Event
then exists, setting forth the details thereof and the action which the
Borrower is taking or proposes to take with respect thereto, (C) setting
forth the amount of Debt of the Borrower of the type described in clause
(v) of the definition of Debt that is outstanding as of the date of such
financial statements and (D) setting forth separately for the Borrower and
each Consolidated Subsidiary that owns any asset included in the most
recent determination of Unleveraged Assets, (x) the Appraised Value at
such time of each piece of Real Property owned by the Borrower or such
Consolidated Subsidiary, as the case may be, that is not subject to a Lien
securing Debt for Borrowed Money and (y) the value at such time,
determined in accordance with generally accepted accounting principles, of
each asset of the Borrower or such Consolidated Subsidiary, as the case
may be, (other than Real Property and intangible assets (determined in
accordance with generally accepted accounting principles)) that is not
subject to any Lien securing Debt for Borrowed Money, and (ii) a leasing
status report and a leasing status summary,
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substantially in the form of Exhibits I and J hereto, respectively;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements (i)
whether anything has come to their attention in the course of conducting
their audit to cause them to believe that any Default (other than a
Default arising out of Section 6.01(c) or (d)) or Mandatory Prepayment
Event of the type described in Section 2.11(f)(i), (iii) or (iv) existed
on the date of such statements and (ii) comparing each element of the
calculations set forth in the officer's certificate delivered
simultaneously therewith pursuant to clauses (c)(i)(A) and (c)(i)(C)
above to the most recent financial statements delivered pursuant to clause
(a) above or to the most recent real property appraisal delivered pursuant
to Section 5.12, as the case may be;
(e) within five days after the Chairman or the chief financial
officer of the Borrower obtains knowledge of any Default, if such Default
is then continuing, a certificate of the Chairman or the chief financial
officer or the chief accounting officer of the Borrower setting forth the
details thereof and the action which the Borrower is taking or proposes to
take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly upon the filing thereof, copies of any documents filed
with the Securities and Exchange Commission with respect to the Borrower
or any of its Subsidiaries or Affiliates;
(h) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined
in Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC; (ii) receives
notice of complete or partial withdrawal liability under Title IV of ERISA
or notice
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that any Multiemployer Plan is in reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives notice from the PBGC
under Title IV of ERISA of an intent to terminate, impose liability (other
than for premiums under Section 4007 of ERISA) in respect of, or appoint a
trustee to administer any Plan, a copy of such notice; (iv) applies for a
waiver of the minimum funding standard under Section 412 of the Code, a
copy of such application; (v) gives notice of intent to terminate any Plan
under Section 4041(c) of ERISA, a copy of such notice and other
information filed with the PBGC; (vi) gives notice of withdrawal from any
Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii)
fails to make any required payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement, or makes any
amendment to any Plan or Benefit Arrangement, which has resulted or could
result in the imposition of a Lien or the posting of a bond or other
security, a certificate of the chief financial officer or the chief
accounting officer of the Borrower setting forth details as to such
occurrence and action, if any, which the Borrower or applicable member of
the ERISA Group is required or proposes to take;
(i) within five days after the chief financial officer of the
Borrower obtains knowledge of any material adverse change with respect to
any Significant Tenant (including, without limitation, (i) the
commencement of any proceeding with respect to such Significant Tenant
under any bankruptcy, insolvency, receivership, conservatorship or similar
law now or hereafter in effect, (ii) a change in control with respect to
such Significant Tenant, or (iii) the commencement of one or more lawsuits
in which a claim or claims aggregating $100,000,000 or more are asserted
against such Significant Tenant) notice of such material adverse change;
(j) as soon as practicable after, and in any event no more than five
Domestic Business Days after, the Board of Trustees or the investment
committee of the Board of Trustees of the Borrower has voted to approve
(i) any Asset Acquisition or Asset Disposition for consideration of
$100,000,000 or more, notice of such approval, together with a description
in reasonable detail of such Asset Acquisition or Asset Disposition or
(ii) any Asset Acquisition or Asset Disposition such that the aggregate
amount of all Asset Acquisitions and Asset Dispositions for any calendar
year (other than any Asset Acquisition or Xxxxx
00
00
Disposition referred to in clause (i) above) is equal to or exceeds
$100,000,000, notice of such approval, together with a description in
reasonable detail of all Asset Acquisitions and Asset Dispositions which
occurred during such calendar year;
(k) upon request of the Administrative Agent or the Documentation
Agent from time to time (at the request of any Bank), full information as
to the amount of insurance carried by the Borrower and its Subsidiaries;
(l) promptly upon receipt thereof, a copy of the summary letter
prepared by the Appraiser showing the Appraised Value of the Borrower's
and its Consolidated Subsidiaries' real estate assets determined in each
appraisal of the type referred to in Section 5.12; and
(m) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries as the
Administrative Agent or the Documentation Agent, at the request of any
Bank, may reasonably request.
SECTION 5.02. Payment of Obligations. The Borrower will pay and
discharge, and will cause each Subsidiary to pay and discharge, at or before
maturity, all of their respective material obligations and liabilities,
including, without limitation, tax liabilities, except where the same may be
contested in good faith by appropriate proceedings, and will maintain, and will
cause each Subsidiary to maintain, in accordance with generally accepted
accounting principles, appropriate reserves for the accrual of any of the same
(it being understood and agreed that the term "material obligations and
liabilities", as used in this Section 5.02 with respect to Debt, shall mean
Material Debt).
SECTION 5.03. Maintenance of Property; Insurance. (a) The Borrower
will keep, and will cause each Subsidiary to keep, all property useful and
necessary in its business in good working order and condition, ordinary wear and
tear excepted.
(b) The Borrower will, and will cause each of its Subsidiaries to,
maintain (either in the name of the Borrower or in such Subsidiary's own name)
with financially sound and responsible insurance companies, insurance on all
their respective properties in at least such amounts, against at least such
risks and with such risk retention as are usually maintained, insured against or
retained, as the
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case may be, in the same general area by companies of established repute engaged
in the same or a similar business; and will furnish to the Banks, upon request
from the Administrative Agent, information presented in reasonable detail as to
the insurance so carried.
SECTION 5.04. Conduct of Business and Maintenance of Existence. The
Borrower will continue, directly or through Subsidiaries, to engage in business
of the same general type and character as now conducted by the Borrower and its
Subsidiaries (as described in the Borrower's 1995 Annual Report) and will
preserve, renew and keep in full force and effect, and will cause each
Subsidiary to preserve, renew and keep in full force and effect, their
respective existences and their respective rights, privileges and franchises
necessary or desirable in the normal conduct of business; provided that nothing
in this Section 5.04 shall prohibit (i) the merger of a Subsidiary into the
Borrower or the merger or consolidation of a Subsidiary with or into another
Person if the entity surviving such consolidation or merger is a Subsidiary and
if, in each case, after giving effect thereto, no Default shall have occurred
and be continuing, (ii) the termination of the existence of any Subsidiary if
the Borrower in good faith determines that such termination is in the best
interest of the Borrower and is not materially disadvantageous to the Banks or
(iii) the failure to preserve, renew or keep in full force or effect any rights,
privileges or franchises where such failures would not, in the aggregate,
reasonably be expected to have a material adverse effect on the assets, business
or operations of the Borrower and its Consolidated Subsidiaries, taken as a
whole.
SECTION 5.05. Compliance with Laws. The Borrower will comply, and
will cause each Subsidiary to comply, in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation, Environmental Laws and
ERISA and the rules and regulations thereunder) except (i) where the necessity
of compliance therewith is contested in good faith by appropriate proceedings or
(ii) the failure to comply therewith, would not, together with all other such
failures, reasonably be expected to have a material adverse effect on the
assets, business or operations of the Borrower and its Consolidated
Subsidiaries, taken as a whole.
SECTION 5.06. Inspection of Property, Books and Records. The
Borrower will keep, and will cause each Subsidiary to keep, proper books of
record and account in
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which full, true and correct entries shall be made of all dealings and
transactions in relation to its business and activities; and will permit, and
will cause each Subsidiary to permit, representatives of any Bank at such Bank's
expense to visit and inspect any of their respective properties, to examine and
make abstracts from any of their respective books and records and each appraisal
of the type referred to in Section 5.12, and to discuss their respective
affairs, finances and accounts with their respective officers, employees and
independent public accountants, all at such reasonable times and as often as may
reasonably be desired.
SECTION 5.07. Limitations on Debt. The Borrower shall not, at any
time, permit:
(a) Consolidated Debt to exceed 50% of the sum of (i) Gross Assets
plus (ii) 50% of the aggregate amount of all contingent liabilities of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated basis,
of the type referred to in clause (v) of the definition of Debt, but only to the
extent that such contingent liabilities represent commitments of the Borrower or
any of its Consolidated Subsidiaries to acquire Real Property, or
(b) Consolidated Secured Debt to exceed 35% of the Gross Assets.
SECTION 5.08. Minimum Net Worth. The Borrower shall not, at any
time, permit Consolidated Net Worth to be less than $2,000,000,000 (Two Billion
Dollars).
SECTION 5.09. Value of Unleveraged Assets. The Borrower shall not
permit Unleveraged Assets at any time prior to the date (if any) on which the
Security Acceptance shall occur to be less than 175% of the aggregate amount of
Consolidated Debt that is not attributable to Consolidated Secured Debt or Debt
evidenced by Subordinated Securities.
SECTION 5.10. Debt Service Coverage. The Borrower shall not, at the
end of any fiscal quarter, permit Cash Flow Before Debt Service to be less than
150% of the sum of (x) Consolidated Interest Expense for such four fiscal
quarters plus (y) all payments of principal with respect to Consolidated Debt
payable during such four fiscal quarters (other than optional prepayments and
any other non-periodic payments, including lump sum or bullet payments), except
that, in the event that the rating by Xxxxx'x or S&P of the Borrower's Senior
unsecured long-term Debt is, at the end of such fiscal quarter, Baa2 (or less
favorable) or BBB
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(or less favorable), respectively, Borrower shall not, at the end of such fiscal
quarter, permit Cash Flow Before Debt Service to be less than 200% of the sum of
clauses (x) and (y) above.
SECTION 5.11. Use of Proceeds. The proceeds of the Loans made under
this Agreement will be used by the Borrower for general business purposes. None
of such proceeds will be used in violation of any applicable law or regulation,
including without limitation Regulation U.
SECTION 5.12. Real Property Appraisals. Prior to February 28 in each
year and at any other time at the Borrower's option, the Borrower will (i) cause
the fair market value of the equity of the Borrower and its Subsidiaries in all
interests in Real Property as of the December 31 next preceding such February 28
or, in the case of an optional appraisal, a date not more than 60 days preceding
the date of such appraisal (the "as of" date for any such appraisal, the
"Valuation Date"), to be appraised by the Appraiser in conformity with and
subject to the Code of Ethics and Standards of Professional Conduct of the
Appraisal Institute, (ii) calculate as of such Valuation Date the value of Gross
Assets, (iii) cause the Appraiser to review such calculation of Gross Assets and
(iv) cause to be filed with each Bank a report from the Appraiser containing the
Appraiser's opinion on the value of Gross Assets as of such Valuation Date and
its opinion on the reasonableness of the Borrower's calculation of the value of
Gross Assets as of such Valuation Date and stating that the appraisal referred
to in clause (i) above was made in conformity with and subject to the Code of
Ethics and Standards of Professional Conduct of the Appraisal Institute.
SECTION 5.13. Transactions with Affiliates. The Borrower will not,
and will not permit any Subsidiary to, directly or indirectly, enter into or
consummate any transaction prohibited by the Borrower's "Trustees" under Section
6.06 of the Borrower's Second Amended and Restated Declaration of Trust, as in
effect on the date hereof.
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ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following
events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of any
Loan, or shall fail to pay within five Domestic Business Days of the due
date thereof any interest, fees or any other amount payable hereunder;
(b) the Borrower shall fail to observe or perform any covenant
contained in Section 2.11 or in Sections 5.07 to 5.10, inclusive;
(c) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause
(a) or (b) above) for ten days after written notice thereof has been given
to the Borrower by the Administrative Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made by
the Borrower in this Agreement or in any certificate, financial statement
or other document delivered pursuant to this Agreement shall prove to have
been, incorrect in any material respect when made (or deemed made);
(e) the Borrower or any Subsidiary shall fail to make any payment in
respect of any Material Debt when due or within any applicable grace
period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables the holder of
such Debt or any Person acting on such holder's behalf to accelerate the
maturity thereof;
(g) the Borrower or any Significant Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its
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property, or shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action to authorize any of the
foregoing;
(h) an involuntary case or other proceeding shall be commenced
against the Borrower or any Significant Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief shall be entered
against the Borrower or any Significant Subsidiary under the federal
bankruptcy laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $10,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any combination of
the foregoing; or the PBGC shall institute proceedings under Title IV of
ERISA to terminate, to impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or to cause a trustee to be
appointed to administer any Material Plan; or a condition shall exist by
reason of which the PBGC would reasonably be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the
meaning of Section 4219(c) (5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more members of the ERISA
Group to incur a current payment obligation in excess of $30,000,000; or
(j) a judgment or order for the payment of money (other than a
judgment of foreclosure or similar judgment solely with respect to assets
securing Non-Recourse Debt) in excess of $10,000,000 shall be rendered
against the Borrower or any Subsidiary and
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such judgment or order shall continue unsatisfied and unstayed for a
period of 10 days;
then, and in every such event, the Administrative Agent shall (i) if requested
by Banks having more than 50% in aggregate amount of the Commitments, by notice
to the Borrower terminate the Commitments and they shall thereupon terminate,
and (ii) if requested by Banks holding Notes evidencing more than 50% in
aggregate principal amount of the Loans, by notice to the Borrower declare the
Notes (together with accrued interest thereon) to be, and the Notes shall
thereupon become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower; provided that in the case of any of the Events of Default specified in
clause (g) or (h) above with respect to the Borrower, without any notice to the
Borrower or any other act by the Administrative Agent or the Banks, the
Commitments shall thereupon terminate and the Notes (together with accrued
interest thereon) shall become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.
SECTION 6.02. Notice of Default. The Administrative Agent shall give
notice to the Borrower under Section 6.01(c) promptly upon being requested to do
so by any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENTS
SECTION 7.01. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes each Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement and the Notes as are delegated
to such Agent by the terms hereof or thereof, together with all such powers as
are reasonably incidental thereto.
SECTION 7.02. Agents and Affiliates. Xxxxxx Guaranty Trust Company
of New York and Chemical Bank shall have the same rights and powers under this
Agreement as any other Bank and may exercise or refrain from exercising the same
as though it were not an Agent, and Xxxxxx Guaranty Trust Company of New York
and Chemical Bank and their respective affiliates may accept deposits from, lend
money to, and generally engage in any kind of business with the Borrower or any
Subsidiary or affiliate of the Borrower as if it were not an Agent hereunder.
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SECTION 7.03. Action by Agents. The obligations of the Agents
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, neither Agent shall be required to take any action
with respect to any Default, except as expressly provided in Article VI.
SECTION 7.04. Consultation with Experts. Either Agent may consult
with legal counsel (who may be counsel for the borrower), independent public
accountants and other experts selected by it and neither Agent shall be liable
for any action taken or omitted to be taken by it in good faith in accordance
with the advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agents. Neither Agent shall be liable for
any action taken or not taken by it in connection herewith (i) with the consent
or at the request of the Required Banks (or, when expressly required hereby,
such different number of Banks required to consent to or request such action or
inaction) or (ii) in the absence of its own gross negligence or willful
misconduct, and no director, officer, agent or employee of either Agent shall be
liable for any action taken or not taken by it in connection with this
Agreement. Neither an Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into
or verify (i) any statement, warranty or representation made in connection with
this Agreement or any borrowing hereunder; (ii) the performance or observance of
any of the covenants or agreements of the Borrower; (iii) the satisfaction of
any condition specified in Article III, except, in the case of the
Administrative Agent, receipt of items required to be delivered to the
Administrative Agent; or (iv) the validity, effectiveness or genuineness of this
Agreement, the Notes or any other instrument or writing furnished in connection
herewith. Neither Agent shall incur any liability by acting in reliance upon any
notice, consent, certificate, statement, or other writing (which may be a bank
wire, telex or similar writing) believed by it to be genuine or to be signed by
the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in
accordance with its Commitment, indemnify each Agent (to the extent not
reimbursed by the Borrower) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from such Agent's gross negligence or willful misconduct) that such Agent
may suffer or incur in connection with this Agreement or any action taken or
omitted by such Agent hereunder.
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SECTION 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon either Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon either Agent
or any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 7.08. Successor Agents. Either Agent (including the
Administrative Agent) may resign at any time by giving written notice thereof to
the Banks and the Borrower. Upon any such resignation, the Required Banks shall
have the right to appoint a successor Agent. If no successor Agent shall have
been so appointed by the Required Banks, and shall have accepted such
appointment, within 30 days after the retiring Agent gives notice of
resignation, then the retiring Agent may, on behalf of the Banks, appoint a
successor Agent, which shall be a commercial bank organized or licensed under
the laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least $50,000,000. Upon the acceptance of its
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent.
SECTION 7.09. Agents' Fee. On or prior to the Effective Date, the
Borrower shall pay to each Agent for its own account fees in the amounts and at
the times previously agreed upon between the Borrower and the Agents.
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ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for any Fixed
Rate Borrowing or Money Market LIBOR Loan:
(a) the Administrative Agent is advised by the Reference Banks that
deposits in dollars (in the applicable amounts) are not being offered to
the Reference Banks in the relevant market for such Interest Period, or
(b) in the case of a Committed Borrowing, Banks having, 50% or more
of the aggregate amount of the Commitments advise the Administrative Agent
that the Adjusted London Interbank Offered Rate as determined by the
Administrative Agent will not adequately and fairly reflect the cost to
such Banks of funding their Euro-Dollar Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Banks, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, the
obligations of the Banks to make Euro-Dollar Loans shall be suspended. Unless
the Borrower notifies the Administrative Agent at least two Domestic Business
Days before the date of any Fixed Rate Borrowing for which a Notice of Borrowing
has previously been given that it elects not to borrow on such date, (i) if such
Fixed Rate Borrowing is a Committed Borrowing, such Borrowing shall instead be
made as a Base Rate Borrowing and (ii) if such Fixed Rate Borrowing is a Money
Market LIBOR Borrowing, the Money Market LIBOR Loans comprising such Borrowing
shall bear interest for each day from and including the first day to but
excluding the last day of the Interest Period applicable thereto at the rate
applicable to Base Rate Loans for such day.
SECTION 8.02. Illegality. If, on or after the date of this
Agreement, the adoption of any applicable law, rule or regulation, or any change
therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Euro-Dollar Lending Office) with any request or directive (whether or not having
the force of law) of any such authority, central bank or
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comparable agency shall make it unlawful or impossible for any Bank (or its
Euro-Dollar Lending Office) to make, maintain or fund its Euro-Dollar Loans and
such Bank shall so notify the Administrative Agent, the Administrative Agent
shall forthwith give notice thereof to the other Banks and the Borrower,
whereupon until such Bank notifies the Borrower and the Administrative Agent
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans shall be suspended. Before
giving any notice to the Administrative Agent pursuant to this Section, such
Bank shall use reasonable efforts to designate a different Euro-Dollar Lending
Office if such designation will avoid the need for giving such notice and will
not, in the judgment of such Bank, be otherwise disadvantageous to such Bank. If
such Bank shall determine that it may not lawfully continue to maintain and fund
any of its outstanding Euro-Dollar Loans to maturity and shall so specify in
such notice, the Borrower shall immediately prepay in full the then outstanding
principal amount of each such Euro-Dollar Loan, together with accrued interest
thereon. Concurrently with prepaying each such Euro-Dollar Loan, the Borrower
shall borrow a Base Rate Loan in an equal. principal amount from such Bank (on
which interest and principal shall be payable contemporaneously with the related
Euro-Dollar Loans of the other Banks), and such Bank shall make such a Base Rate
Loan.
SECTION 8.03. Increased Cost and Reduced Return. (a) If on or after
(x) the date hereof in the case of any Committed Loan or any obligation to make
Committed Loans or (y) the date of the related Money Market Quote, in the case
of any Money Market Loan, the adoption of any applicable law, rule or
regulation, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank (or its Applicable Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency with which it shall not have been required (or requested or
directed, as the case may be) to comply prior to the date hereof:
(i) shall subject any Bank (or its Applicable Lending Office) to any
tax, duty or other charge imposed by the United States or any other
jurisdiction from which payment is made by the Borrower (or any political
subdivision of any of the foregoing thereof) with respect to its Fixed
Rate Loans, its Note or its obligation to make Fixed Rate Loans, or shall
change the basis of taxation by the United States (or any
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political subdivision thereof) of payments to any Bank (or its Applicable
Lending Office) of the principal of or interest on its Fixed Rate Loans or
any other amounts due under this Agreement in respect of its Fixed Rate
Loans or its obligation to make Fixed Rate Loans (but excluding in any
event any changes in any tax on or measured by the income of such Bank or
its Applicable Lending Office imposed by the jurisdiction in which
such Bank is organized or such Bank's principal executive office or
Applicable Lending Office is located or any political subdivision of any
such jurisdiction); or
(ii) shall impose, modify or deem applicable any reserve (including,
without limitation, any such requirement imposed by the Board of Governors
of the Federal Reserve System, but excluding with respect to any
Euro-Dollar Loan any such requirement included in an applicable
Euro-Dollar Reserve Percentage), special deposit, insurance assessment or
similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Bank (or its Applicable Lending. Office) or
shall impose on any Bank (or its Applicable Lending Office) or the London
interbank market any other condition affecting its Fixed Rate Loans, its
Note or its obligation to make Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Applicable Lending Office) of making or maintaining any Fixed Rate Loan, or
to reduce the amount of any sum received or receivable by such Bank (or its
Applicable Lending Office) under this Agreement or under its Note with respect
thereto, by an amount deemed by such Bank to be material, then, within 15 days
after demand by such Bank (with a copy to the Administrative Agent), the
Borrower shall pay to such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that, after the date hereof,
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or any request
or directive regarding capital adequacy (whether or not having the force of law)
of any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on capital of such Bank (or its Parent)
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as a consequence of such Bank's obligations hereunder to a level below that
which such Bank (or its Parent) could have achieved but for such adoption,
change, request or directive (taking into consideration its policies with
respect to capital adequacy) by an amount deemed by such Bank to be material,
then from time to time, within 15 days after demand by such Bank (with a copy to
the Administrative Agent), the Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank (or its Parent) for such
reduction.
(c) Each Bank will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Bank to compensation pursuant to this
Section and will use reasonable efforts to designate a different Applicable
Lending Office if such designation will avoid the need for, or reduce the amount
of, such compensation and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. A certificate of any Bank claiming compensation
under this Section and setting forth in reasonable detail its calculation of the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods. Notwithstanding anything to the
contrary in this Section 8.03, the Borrower shall only be obligated to
compensate any Bank for any amount arising or accruing during (i) any time or
period commencing not more than six months prior to the date (or, if earlier,
commencing the first day of any Interest Period in effect on such date) on which
such Bank notifies the Administrative Agent and the Borrower that it proposes to
demand such compensation and identifies the statute, regulation or other basis
upon which the claimed compensation is or will be based and (ii) any time or
period during which, because of the retroactive application of such statute,
regulation or other basis, such Bank did not know that such amount would arise
or accrue.
SECTION 8.04. Base Rate Loans Substituted for Affected Fixed Rate
Loans. If (i) the obligation of any Bank to make Euro-Dollar Loans has been
suspended pursuant to Section 8.02 or (ii) any Bank has demanded compensation
under Section 8.03(a) and the Borrower shall, by at least five Euro-Dollar
Business Days' prior notice to such Bank through the Administrative Agent, have
elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer apply:
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(a) all Loans which would otherwise be made by such Bank as
Euro-Dollar Loans shall be made instead as Base Rate Loans (on which
interest and principal shall be payable contemporaneously with the related
Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans has been repaid, all
payments of principal which would otherwise be applied to repay such
Euro-Dollar Loans shall be applied to repay its Base Rate Loans instead.
SECTION 8.05. Election to Terminate. (a) If any Bank has demanded
compensation under Section 8.03 with respect to United States Federal income
tax, or the Borrower reasonably believes that such compensation will be demanded
or required by any Bank on the next date for payment of any relevant amount
hereunder, the Borrower shall have the right, with the assistance of the Agents,
to cause a mutually satisfactory substitute bank or banks (which may be one or
more of the Banks) to purchase the Note and assume the Commitment of such Bank.
(b) If any Bank has demanded compensation under Section 8.03 with
respect to United States Federal income tax and no substitute bank or banks has
purchased the Note and assumed the Commitment of such Bank pursuant to clause
(a) above, the Borrower may elect to terminate this Agreement as to such Bank
and to repay or prepay all Loans made by such Bank, provided that the Borrower
(i) notifies such Bank through the Administrative Agent of such election at
least three Euro-Dollar Business Days before any further Borrowings or payments
of any Loan hereunder, (ii) repays or prepays all of such Bank's outstanding
Loans on the dates specified by the Borrower in such notice, which dates shall
be not later than the end of the respective Interest Periods applicable thereto
and (iii) the Borrower shall reimburse such Bank for any loss or expense
incurred by it in accordance with Section 2.14 as a result of any prepayment of
a Fixed Rate Loan on a date other than the last day of an Interest Period. Upon
receipt by the Administrative Agent of such notice, the Commitment of such Bank
shall terminate.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
facsimile transmission or
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similar writing) and shall be given to such party: (x) in the case of the
Borrower or either Agent, at its address or facsimile transmission number set
forth on the signature pages hereof, (y) in the case of any Bank, at its address
or facsimile transmission number set forth in its Administrative Questionnaire
or (z) in the case of any party, such other address or facsimile transmission
number as such party may hereafter specify for the purpose by notice to either
Agent and the Borrower. Each such notice, request or other communication shall
be effective (i) if given by facsimile transmission, when such facsimile is
transmitted to the facsimile transmission number specified in this Section and
telephonic confirmation of receipt thereof is received, (ii) if given by mail,
72 hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iii) if given by any other means,
when delivered at the address specified in this Section; provided that notices
to the Administrative Agent under Article II or Article VIII shall not be
effective until received.
SECTION 9.02. No Waivers. No failure or delay by either Agent or any
Bank in exercising any right, power or privilege hereunder or under any Note
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes; Indemnification. (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses of the Agents,
including reasonable fees and disbursements of special counsel for the Agents,
in connection with the preparation of this Agreement, any waiver or consent
hereunder or any amendment hereof or any Default or alleged Default hereunder or
any consideration of a Security Offer and (ii) if an Event of Default occurs,
all out-of-pocket expenses incurred by the Agents and each Bank, including fees
and disbursements of counsel, in connection with such Event of Default and
collection, bankruptcy, insolvency and other enforcement proceedings resulting
therefrom. The Borrower shall indemnify each Bank against any transfer `taxes,
documentary taxes, assessments or charges made by any governmental authority
with respect to the execution and delivery of this Agreement or the Notes,
except for transfer taxes imposed as a result of a voluntary transfer,
assignment or granting of a participation pursuant to Section 9.05.
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(b) The Borrower agrees to indemnify each Bank and hold each Bank
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by any Bank (or by each Agent in
connection with its actions as Agent hereunder) in connection with any
investigative, administrative or judicial proceeding (whether or not such Bank
shall be designated a party thereto) relating to or arising out of this
Agreement or any actual or proposed use of proceeds of Loans hereunder; provided
that no Bank shall have the right to be indemnified hereunder for its own gross
negligence or willful misconduct as determined by a court of competent
jurisdiction.
SECTION 9.04. Amendments and Waivers. Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Borrower and the Required Banks
(and, if the rights or duties of the Administrative Agent or the Documentation
Agent are affected thereby, by the Administrative Agent or the Documentation
Agent, as the case may be); provided that (i) no such amendment or waiver shall,
unless signed by all the Banks, (A) increase or decrease the Commitment of any
Bank (except for a ratable decrease in the Commitments of all Banks) or subject
any Bank to any additional obligation, (B) reduce the principal of or rate of
interest on any Loan or any fees hereunder, (C) postpone the date fixed for any
scheduled payment of principal of or interest on any Loan or any fees hereunder
or for any reduction or termination of any Commitment, provided that the date on
which Loans must be prepaid pursuant to Section 2.11 is not a "date fixed" for
purposes of this Section 9.04, (D) change the aggregate amount by which or to
which the Commitments are required to be reduced on or prior to any date set
forth in Section 2.10 or (E) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the number of Banks, which
shall be required for the Banks or any of them to take any action under this
Section or any other provision of this Agreement (including without limitation
Section 2.03) and (ii) no such amendment or waiver shall, unless signed by all
of the Banks, result in the waiver of the condition to Borrowing set forth in
Section 3.02(c) if the failure to satisfy such condition is the result of a
Default under Section 6.01(a) with respect to the payment of principal of or
interest on any Loan.
SECTION 9.05. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective
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successors and assigns, except that the Borrower may not assign or otherwise
transfer any of its rights under this Agreement without the prior written
consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans with (and subject to) the written consent of the
Borrower. In the event of any such grant by a Bank of a participating interest
to a Participant, whether or not upon notice to the Borrower and the Agents,
such Bank shall remain responsible for the performance of its obligations
hereunder, and the Borrower and the Agents shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and obligations
under this Agreement as if such grant of a participating interest has not
occurred. Any agreement pursuant to which any Bank may grant such a
participating interest shall provide that such Bank shall retain the sole right
and responsibility to enforce the obligations of the Borrower hereunder
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; provided that such participation
agreement may provide that such Bank will not agree to any modification,
amendment or waiver of this Agreement described in subclauses (A), (B), (C) or
(D) of clause (i) of Section 9.04 without the consent of the Participant. The
Borrower agrees that each Participant shall, to the extent provided in its
participation agreement, be entitled to the benefits of Article VIII with
respect to its participating interest.
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all, of its
rights and obligations under this Agreement and the Notes, and such Assignee
shall assume such rights and obligations, pursuant to an Assignment and
Assumption Agreement in substantially the form of Exhibit H hereto executed by
such Assignee and such transferor Bank, with (and subject to) the subscribed
consent of the Borrower and the Administrative Agent and the Documentation
Agent; provided that if (i) an Event of Default has occurred and is continuing
or (ii) an Assignee (x) is a bank and a Bank Affiliate of such transferor Bank
and (y) has a rating from one or more of S&P and Xxxxx'x of its senior unsecured
public debt or commercial paper, or from Duff & Xxxxxx, Inc. or Fitch Investors
Service, Inc. not less than that of such transferor Bank at the time of such
transfer, no such consent shall be required and provided further that such
assignment may, but need not, include rights of the transferor Bank in respect
of outstanding Money Market Loans. Upon execution and delivery
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of such instrument and payment by such Assignee to such transferor Bank of an
amount equal to the purchase price agreed between such transferor Bank and such
Assignee, such Assignee shall be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank with a Commitment as set forth in such
instrument of assumption, and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the Administrative Agent
and the Borrower shall make appropriate arrangements so that, if required, a new
Note is issued to the Assignee. In connection with any such assignment, the
transferor Bank shall pay to the Administrative Agent an administrative fee f or
processing such assignment in the amount of $2,000. If the Assignee is not
incorporated under the laws of the United States of America or a state thereof,
it shall, prior to the first date on which interest or fees are payable
hereunder for its account, deliver to the Borrower and the Administrative Agent
certification as to exemption from deduction or withholding of any United States
federal income taxes in accordance with Section 2.16.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Note to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section 8.03 than
such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrower's prior written
consent or by reason of the provisions of Section 8.02 or 8.03 requiring such
Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
(f) Any consent of the Borrower provided for in this Section 9.05
may be withheld in the Borrower's sole discretion.
SECTION 9.06. Collateral. Each of the Banks represents to the
Administrative Agent and each of the other Banks that it in good faith is not
relying upon any "margin stock" (as defined in Regulation U) as collateral in
the extension or maintenance of the credit provided for in this Agreement.
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SECTION 9.07. Offer to Secure the Obligations. (a) The Borrower may
offer (a "Security Offer") to grant to the Administrative Agent for the ratable
benefit of the Banks a continuing security interest in one or more Specified
Assets in order to secure the full and punctual payment of the Obligations in
accordance with the terms thereof and to secure the performance of all of the
obligations of the Borrower under this Agreement.
(b) If at the time such Security Offer is delivered to the
Administrative Agent, (i) the Appraised Value of the Specified Assets subject to
such proposed Security Offer exceeds 175% of the aggregate amount of
Commitments, and (ii) the aggregate income (or loss) before nonrecurring items
for the four fiscal quarters then most recently ended, plus depreciation and
amortization expense for such quarters (to the extent deducted in determining
such income or loss for such quarters) of such Specified Assets (determined on a
stand-alone basis) exceeds 150% of the aggregate interest expense of the
Borrower in respect of the Loans during such four fiscal quarters plus (if the
Commitments were not fully utilized at all times during such period) the amount
of additional interest expense that would have accrued during such four fiscal
quarters on a pro forma basis, determined as if the aggregate principal amount
of Loans outstanding during such period had been equal to the aggregate amount
of the Commitments in effect from time to time during such period and assuming
that such additional principal amount of Loans accrued interest during such
period at the rate that would have been applicable to Euro-Dollar Loans with
Interest Periods of three months, each beginning on the first day of such fiscal
quarter (such rate to be determined by the Administrative Agent using any
reasonable method and notified to the Borrower promptly upon any request
therefor, and which determination shall be conclusive in the absence of manifest
error), then the Administrative Agent shall notify each of the Banks of such
Security Offer. If within 45 days after delivery of such Security Offer to the
Banks, the Super Required Banks have accepted such Security Offer by notice to
the Administrative Agent (the "Delivery Time"), and if the Borrower and any
relevant Subsidiary owning any relevant Specified Asset shall have (w) entered
into and delivered to the Administrative Agent mortgages or deeds of trust
securing the Obligations, together with appropriate guarantees of the
Obligations by any such Subsidiary, (x) caused appropriate filings and
recordings to be made, and other actions to be taken, to perfect the security
interests of the Banks in such Specified Assets, (y) delivered to the Banks
opinions of counsel covering the transactions contemplated by such documents and
other documents relating to the existence of
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the Borrower and any such Subsidiary and the authority for such transactions and
(z) delivered to the Banks any other documents or information that either Agent
may reasonably request, including but not limited to mortgagee title insurance
policies in an amount equal to the Appraised Value of such Specified Assets,
environmental reports, surveys and appraisals, all of the foregoing in form and
substance satisfactory to the Super Required Banks, then upon such delivery
there shall have occurred the "Security Acceptance".
SECTION 9.08. Governing Law; Submission to Jurisdiction. This
Agreement and each Note shall be governed by and construed in accordance with
the laws of the State of New York. The Borrower and each Bank hereby submits to
the nonexclusive jurisdiction of the United States District Court for the
Southern District of New York and of any New York State court sitting in New
York City for purposes of all legal proceedings arising out of or relating to
this Agreement or the transactions contemplated hereby. The Borrower irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum.
SECTION 9.09. Counterparts; Integration. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENTS
AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.11. Limitation of Liability. Corporate Property Investors
is the designation of the Trustees under a Second Amended and Restated
Declaration of Trust, as amended, on file with the Secretary of State of the
Commonwealth of Massachusetts, and neither the shareholders nor the Board of
Trustees, officers, employees or agents of the Borrower, nor any of their
personal assets, shall be liable hereunder, and all Persons dealing with the
Borrower shall look solely to the assets of the Borrower for the
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payment of any claims hereunder or for the performance hereof.
SECTION 9.12. Confidentiality. Each of the Agents and Banks
represents that it will maintain the confidentiality of any written or oral
information provided under this Agreement by or on behalf of the Borrower that
has been identified by its source as confidential (hereinafter collectively
called "Confidential Information"), subject to such Agent's or Bank's (a)
obligation to disclose any such Confidential Information pursuant to a request
or order under applicable laws and regulations or pursuant to a subpoena or
other legal process, (b) right to disclose any such Confidential Information to
its bank examiners, Bank Affiliates, auditors, counsel and other professional
advisors and to other Banks, (c) right to disclose any such Confidential
Information in connection with any litigation or dispute involving the Banks and
the Borrower or any of its Subsidiaries and Affiliates and (d) right to provide
such information to Participants, prospective Participants to which sales of
participating interests are permitted pursuant to subsection 9.05(b) and
prospective Assignees to which assignments of interests are permitted pursuant
to subsection 9.05(c) if such Participant, prospective Participant or
prospective Assignee agrees to maintain the confidentiality of such information
on terms substantially similar to those of this Section as if it were a "Bank"
party hereto (and, unless an assignment to any such prospective Assignee does
not require the consent of the Borrower, with the prior written consent of the
Borrower). Notwithstanding the foregoing, any such information supplied to an
Agent, Bank, Participant, prospective Participant or prospective Assignee under
this Agreement shall cease to be Confidential Information if it is or becomes
known to such Person by other than unauthorized disclosure, or if it becomes a
matter of public knowledge.
SECTION 9.13. Adjustments. If any Bank (a "Benefitted Bank") shall
at any time receive payment of a proportion of the aggregate amount of principal
and interest then due and payable with respect to its Committed Loans, or
receive any collateral in respect thereof (whether voluntarily or involuntarily,
by set-off, pursuant to events or proceedings of the nature referred to in
Section 6.01(g) or (h) or otherwise), which is greater than the proportion
thereof received by any other Bank in respect of the aggregate amount of
principal and interest then due and payable with respect to the Committed Loans
of such other Bank, the Benefitted Bank shall purchase for cash from such other
Bank a participating interest in such portion of such
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other Bank's Committed Loans, or shall provide such other Bank with the benefits
of any such collateral, or the proceeds thereof, as may be required so that all
such payments of principal and interest with respect to the Committed Loans or
the benefits of such collateral shall be shared by the Banks pro rata in
accordance with their respective Commitments; provided 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; and
provided further that nothing in this Section shall impair the right of any Bank
to exercise any right of set-off or counterclaim it may have and to apply the
amount subject to such exercise to the payment of indebtedness of the Borrower
other than its indebtedness under the Notes.
SECTION 9.14. Existing Credit Agreement. The Borrower, Xxxxxx
Guaranty Trust Company of New York, as Administrative Agent hereunder and as
agent under the Existing Credit Agreement and each of the Banks, as a bank
hereunder and, to the extent applicable, as a bank party to the Existing Credit
Agreement (the banks party to the Existing Credit Agreement, the "Existing
Credit Agreement Banks"), agree that, notwithstanding anything to the contrary
herein or in the Existing Credit Agreement, the "Commitments" (as defined
therein) of the Existing Credit Agreement Banks under the Existing Credit
Agreement shall terminate on the Effective Date (any advance notice of such
termination being hereby waived by each Bank which is an Existing Credit
Agreement Bank).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day and
year first above written.
CORPORATE PROPERTY INVESTORS
By /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Title: Sr. Vice President and
Chief Financial Officer
Address: Three Xxx Xxxxxxxxxxxx Plaza
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Financial Officer
Telecopy No.: 212-759-2003
with a copy to the same address;
Attn: General Counsel
Telecopy No.: 000-000-0000
Commitments
-----------
$23,000,000 XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Xxxxxxx X'Xxxxxxx
---------------------------
Title: Vice President
$23,000,000 CHEMICAL BANK
By /s/ Xxxxx X. Xxxxxxx
---------------------------
Title: Vice President
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$21,000,000 BANK OF MONTREAL, CHICAGO BRANCH
By /s/ Xxxxx X. Xxxxxxxx
---------------------------
Title: Director
$21,000,000 COMMERZBANK AG, NEW YORK BRANCH
By /s/ Xxxxx X. Xxxxx
---------------------------
Title: Vice President
By /s/ Xxxxxxxxx X. Xxxxxx
---------------------------
Title: Assistant Vice President
$21,000,000 FLEET NATIONAL BANK
By /s/ Xxxxxx X. Xxxxx
---------------------------
Title: Vice President
$21,000,000 BAYERISCHE HYPOTHEKEN- UND WECHSEL-
BANK AKTIENGESELLSCHAFT, ACTING
THROUGH ITS NEW YORK BRANCH
By /s/ Xxxxx X. Xxxxxxxx
---------------------------
Title: First Vice President
By /s/ Xxxxxx X. Xxxxxxx
---------------------------
Title: Assistant Vice President
$21,000,000 MIDLANTIC BANK, N.A., A SUBSIDIARY
OF PNC BANK CORP.
By /s/ Xxxxxxx X. XxXxxxxxxxx
---------------------------
Title: Assistant Vice President
68
75
$21,000,000 THE SUMITOMO BANK, LIMITED, NEW
YORK BRANCH
By /s/ Takeo Yamori
---------------------------
Title: Joint General Manager
$21,000,000 UNION BANK OF CALIFORNIA, N.A.
By /s/ Xxxxxxx Xxxx
---------------------------
Title: Assistant Vice President
By /s/ D. Xxx Xxxxxxx
---------------------------
Title: Vice President/Regional
Manager
$21,000,000 WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By /s/ Xxxx X. Xxxxxx
---------------------------
Title: Vice President
By /s/ Xxxxxxxxx Xxxxxxxxxx
---------------------------
Title: Vice President
$21,000,000 WESTLAND\UTRECHT HYPOTHEEKBANK N.V.
By /s/ M.B. Bolle
---------------------------
Title: Chief Executive Officer
$10,000,000 ISTITUTO BANCARIO SAN PAOLO DI
TORINO, S.P.A.
By /s/ X. Xxxxx
---------------------------
Title: Vice President
By /s/ Xxxxxx Xxxxxxx
---------------------------
Title: First Vice President
69
76
$5,000,000 BANCO XXXXX & ACORES
By /s/ Xxxxxxx Xxxxxxxx
---------------------------
Title: Vice President
By /s/ Xxxx Xxxxxx
---------------------------
Title: Vice President & Treasurer
-----------------
Total Commitments
$250,000,000
=================
CHEMICAL BANK, as Documentation
Agent
By /s/ Xxxxx X. Xxxxxxx
---------------------------
Title: Vice President
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attn: Xxxxxxxx Xxxxxx
Telecopy No.: 000-000-0000
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as
Administrative Agent
By /s/ Xxxxxxx X'Xxxxxxx
---------------------------
Title: Vice President
Address: 00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Ms. Xxxxxxxx Xxxxx
Telecopy No.: (000) 000-0000
70
77
PRICING SCHEDULE
Each of "Euro-Dollar Margin", "Base Rate Margin", and "Commitment
Fee Rate" means, for any date, the rates set forth below in the row opposite
such term and in the column corresponding to the "Pricing Level" that applies at
such date:
------------------------------------------------------------------------------------
Level I Xxxxx XX Xxxxx XXX Xxxxx XX Xxxxx X Xxxxx XX
------------------------------------------------------------------------------------
Euro-Dollar
Margin 0.625% 0.75% 1.20% 1.325% 1.50% 2.125%
------------------------------------------------------------------------------------
Base Rate
Margin 0% 0% 0% 0% 0% 0.25%
------------------------------------------------------------------------------------
Commitment
Fee Rate If
Utilization
is less than
or equal to
33.3% 0.20% 0.25% 0.30% 0.30% 0.30% 0.35%
------------------------------------------------------------------------------------
Commitment
Fee Rate If
Utilization
exceeds
33.3% 0.125% 0.15% 0.20% 0.20% 0.20% 0.25%
------------------------------------------------------------------------------------
For purposes of this Schedule, the following terms have the
following meanings:
"Level I Pricing" applies at any date if, at such date, the
Borrower's long-term debt is rated A+ or higher by S&P or Al or higher by
Xxxxx'x.
"Level II Pricing" applies at any date if, at such date, the
Borrower's long-term debt is rated A- or higher by S&P and A3 or higher by
Xxxxx'x and Level I Pricing does not apply.
"Level III Pricing" applies at any date if, at such date, the
Borrower's long-term debt is rated BBB+ or higher by S&P or Baal or higher by
Xxxxx'x and neither Level I nor II Pricing applies.
"Level IV Pricing" applies at any date if, at such date, the
Borrower's long-term debt is rated BBB or higher by S&P or Baa2 or higher by
Xxxxx'x and none of Level I, II, and III Pricing applies.
"Level V Pricing" applies at any date if, at such date, the
Borrower's long-term debt is rated BBB- or higher
78
by S&P or Baa3 or higher by Xxxxx'x and none of Level I, II, III and IV Pricing
applies.
"Level VI Pricing" applies at any date if, at such date, the
Borrower's long-term debt is rated BB+ or lower by S&P or Bal or lower by
Xxxxx'x.
"Pricing Level" refers to the determination of which of Level I,
Level II, Level III, Level IV, Level V or Level VI Pricing applies at any date.
"Utilization" means at any date the percentage equivalent of a
fraction (i) the numerator of which is the aggregate outstanding principal
amount of the Loans at such date, after giving effect to any borrowing or
payment on such date, and (ii) the denominator of which is the aggregate amount
of the Commitments at such date, after giving effect to any reduction of the
Commitments on such date.
The credit ratings to be utilized for purposes of this Schedule are those
assigned by S&P or Xxxxx'x to the senior unsecured long-term debt securities of
the Borrower without third-party credit enhancement, and any rating assigned to
any other debt security of the Borrower shall be disregarded. The rating in
effect at any date is that in effect at the close of business on such date. For
the avoidance of doubt, in the case of split ratings from S&P and Xxxxx'x, the
rating to be used to determine Pricing Level is the higher of the two (e.g.
BBB+/Baa2 results in Level III Pricing), except that if either rating falls
below investment grade (e.g. below BBB-/Baa3), the rating to be used to
determine Pricing Level is the lower of the two (e.g. BBB-/Ba1 results in Level
VI Pricing).
2
79
EXHIBIT A
NOTE
New York, New York
____________, 19__
For value received, Corporate Property Investors, a Massachusetts
unincorporated business trust (the "Borrower"), promises to pay to the order of
(the "Bank"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Loan made by the Bank to the Borrower pursuant to the
Credit Agreement referred to below on the last day of the Interest Period
relating to such Loan. The Borrower promises to a interest on the unpaid
principal amount of each such Loan on the dates and at the rate or rates
provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or other
immediately available funds at the office of Xxxxxx Guaranty Trust Company of
New York, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
All Loans made by the Bank, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Bank and, prior to any transfer hereof, appropriate notations to evidence the
foregoing information with respect to each such Loan then outstanding shall be
endorsed by the Bank on the schedule attached hereto, or on a continuation of
such schedule attached to and made a part hereof; Provided that the failure of
the Bank to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit Agreement.
Corporate Property Investors is the designation of the Board of
Trustees under a Second Amended and Restated Declaration of Trust, as amended,
on file with the Secretary of State of the Commonwealth of Massachusetts, and
neither the shareholders nor the Board of Trustees, officers, employees or
agents of the Borrower, nor any of their personal assets, shall be liable
hereunder, and all Persons dealing with the Borrower shall look solely to the
assets of the Borrower for the payment of any claims hereunder or for the
performance hereof.
80
This note is one of the Notes referred to in the Credit Agreement
dated as of June 26, 1996 among the Borrower, the banks listed on the signature
pages thereof, Chemical Bank, as Documentation Agent and Xxxxxx Guaranty Trust
Company of New York, as Administrative Agent (as the same may be amended from
time to time, the "Credit Agreement"). Terms defined in the Credit Agreement are
used herein with the same meanings. Reference is made to the Credit Agreement
for provisions for the prepayment hereof and the acceleration of the maturity
hereof.
CORPORATE PROPERTY INVESTORS
By __________________________
Title:
2
81
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------------------------------
Amount Type Amount of
of of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
3
82
EXHIBIT B
Form of Money Market Quote Request
[Date]
To: Xxxxxx Guaranty Trust Company of New York
(the "Administrative Agent")
From: Corporate Property Investors
Re: Credit Agreement (as amended, the "Credit
Agreement") dated as of June 26, 1996 among Corporate Property
Investors, the Banks listed on the signature pages thereof, the
Administrative Agent and the Documentation
Agent.
We hereby give notice pursuant to Section 2.03 of the Credit
Agreement that we request Money Market Quotes for the following proposed Money
Market Borrowing(s):
Date of Borrowing: ________________________
Principal Amount(1) Interest Period(2)
------------------- ------------------
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.]
Terms used herein have the meanings assigned to them in the Credit
Agreement.
Corporate Property Investors is the designation of the Trustees under a
Second Amended and Restated Declaration of Trust, as amended, on file with the
Secretary of State of the Commonwealth of Massachusetts, and neither the
shareholders nor the Board of Trustees, officers, employees
----------
(1) Amount must be $5,000,000 or a larger multiple of $1,000,000.
(2) Not less than one month (LIBOR Auction) or not less than 7 days
(Absolute Rate Auction), subject to the provisions of the definition of Interest
Period.
83
or agents of the Borrower, nor any of their personal assets, shall be liable
hereunder, and all Persons dealing with the Borrower shall look solely to the
assets of the Borrower for the payment of any claims hereunder or for the
performance hereof.
CORPORATE PROPERTY INVESTORS
By ________________________
Title:
2
84
EXHIBIT C
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes to Corporate
Property Investors (the "Borrower")
Pursuant to Section 2.03 of the Credit Agreement dated as of June
26, 1996 among the Borrower and the Banks parties thereto and the undersigned,
as Administrative Agent, we are pleased on behalf of the Borrower to invite you
to submit Money Market Quotes to the Borrower for the following proposed Money
Market Borrowing(s):
Date of Borrowing: _______________________
Principal Amount Interest Period
---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.]
Please respond to this invitation by no later than [2:00 P.M.] [9:30 A.M.]
(New York City time) on [date].
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By ________________________
Authorized Officer
85
EXHIBIT D
Form of Money Market Quote
To: XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
Re: Money Market Quote to Corporate Property Investors
(the "Borrower")
In response to your invitation on behalf of the Borrower dated
____________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank: ____________________________
2. Person to contact at Quoting Bank: __________________
3. Date of Borrowing: ___________________________*
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
----------
* As specified in the related Invitation.
86
Principal Interest Money Market
Amount* Period** [Margin***] [Rate****]
------- -------- ----------- ----------
$
$
[Provided, that the aggregate principal amount of Money Market Loans for which
the above offers may be accepted shall not exceed $________]*
We understand and agree that the offer(s) set forth above, subject
to the satisfaction of the applicable conditions set forth in the Credit
Agreement dated as of June 26, 1996 among the Borrower, the Banks party thereto
and yourselves, as Administrative Agent, irrevocably obligates us to make the
Money Market Loan(s) for which any offer(s) are accepted, in whole or in part.
Very truly yours,
(NAME OF BANK]
Dated: ____________ By: ______________________
Authorized Officer
----------
* Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitations if the sum of the individual
offers exceeds the amount the Lender is willing to lend. Bids must be made for
$5,000,000 or a larger multiple of $l,000,000.
** Not less than one month (LIBOR Auction) or not less than 7 days as
specified in the related Invitation. No more than five bids are permitted for
each Interest Period.
*** Margin over or under the London Interbank Offered Rate determined for
the applicable Interest Period. Specify Percentage (rounded to the nearest
1/10,000 of 1%) and specify whether "PLUS" or "MINUS".
**** Specify rate of interest per annum (rounded to the nearest 1/10,000th
of 1%).
2
87
EXHIBIT E
[LETTERHEAD OF CORPORATE PROPERTY INVESTORS]
June 26, 1996
To the Banks and the
Agents Referred to Below
c/x Xxxxxx Guaranty Trust Company
of New York, as Administrative Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs;
I am the Vice President and General Counsel of Corporate Property
Investors (the Borrower) and have acted in such capacity in connection with the
Credit Agreement (the Credit Agreement") dated as of June 26, 1996, among the
Borrower, the Banks listed therein, Chemical Bank, as Documentation Agent, and
Xxxxxx Guaranty Trust Company of New York, as Administrative Agent (the
"Agents") Terms defined in the Credit Agreement are used herein as therein
defined. This opinion is being rendered to you pursuant to Section 3.01(c) of
the Credit Agreement.
In connection with the rendering of this opinion, I have examined
originals or copies, certified or otherwise identified to my satisfaction, of
such documents, business records, certificates of public officials and other
instruments and have conducted such other investigations of fact and law as I
have deemed necessary or advisable for purposes of this opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. The Borrower is an unincorporated Massachusetts business trust duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Massachusetts and has all powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
2. The execution, delivery and performance by the Borrower of the Credit
Agreement and the Notes are within the Borrower's powers, have been duly
authorized by all necessary action on the part of the Borrower, require no
action by or in respect of, or
88
CORPORATE PROPERTY INVESTORS
filing with, any governmental body, agency or official (other than such reports
to United States governmental authorities regarding international capital and
foreign currency transactions as may be required pursuant to 31 C.F.R. Part 128)
and do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the Second Amended and Restated Declaration
of Trust or Trustees' Regulations of the Borrower or of any debt or other
material agreement, judgment, injunction, order, decree or other instrument
binding upon the Borrower or result in the creation or imposition of any Lien on
any asset of the Borrower or any of its Subsidiaries. In connection with the
foregoing, I wish to point out that certain of the debt and other material
agreements referred to in the preceding sentence are or may be governed by laws
other than those of the State of New York; for purposes of this opinion,
however, I have assumed that all such debt and other material agreements would
be governed by the laws of the State of New York.
3. The Credit Agreement and the Notes have been duly executed and
delivered by the Borrower. The Credit Agreement constitutes a valid and binding
agreement of the Borrower and each Note constitutes a valid and binding
obligation of the Borrower, in each case enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws relating to or affecting creditor's
rights generally from time to time in effect and to general principles of equity
(including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing), regardless of whether considered in a proceeding in
equity or at law. With respect to the foregoing opinion, (i) insofar as
provisions contained in the Credit Agreement provide for indemnification, the
enforceability thereof may be limited by public policy considerations, (ii) the
availability of a decree for specific performance or an injunction is subject to
the discretion of the court requested to issue any such decree or injunction and
(iii) I express no opinion as to the effect of the laws of any jurisdiction
other than the State of New York where any lender may be located or where
enforcement of the Credit Agreement or the Notes may be sought that limits the
rates of interest legally chargeable or collectible.
4. Except as described in subparagraph (2) of Commitments, Contingencies
and Other Comments of Notes of Unaudited Consolidated Financial Statements of
the Borrower arid its Consolidated Subsidiaries for the three months ended March
31, 1996, there is no action, suit or proceeding pending against, or to the best
of my knowledge threatened against or affecting, the Borrower or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency or
official, in which there is a reasonable possibility of an adverse decision
which
2
89
CORPORATE PROPERTY INVESTORS
could materially adversely affect the business, consolidated financial position
or consolidated results of operations of the Borrower and its Consolidated
Subsidiaries, considered as a whole, or which in any manner draws into question
the validity of the Credit Agreement or the Notes.
I express no opinion herein as to (i) Section 9.09 of the Credit Agreement
insofar as such Section relates to the subject matter jurisdiction of the United
States District Court for the Southern District of New York to adjudicate any
controversy related to the Credit Agreement or the Notes, (ii) the waiver of an
inconvenient forum set forth in Section 9.08 of the Credit Agreement or (iii)
Section 9.13 of the Credit Agreement insofar as it relates to setoffs in respect
to participations purchased in Loans.
I am a member of the Bar of the State of New York and express no opinion
as to any laws other than the laws of the State of New York and the Commonwealth
of Massachusetts and the federal laws of the United States of America. In giving
the opinions in paragraphs 1, 2 and 3 above, I have relied, as to all matters
governed by the laws of the Commonwealth of Massachusetts, upon the opinion of
Peabody & Xxxxxx dated of even date herewith, a copy of which has been delivered
to you.
Very truly yours,
/s/ Xxxxxx Xxxxx
3
90
EXHIBIT F
[LETTERHEAD OF PEABODY & XXXXXX]
June 26, 1996
To the Banks and the
Agents Referred to Below,
c/x Xxxxxx Guaranty Trust Company
of New York, as Administrative Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We have acted as special counsel for Corporate Property Investors (the
"Borrower') for the purpose of rendering this opinion pursuant to Section
3.01(d) of the Credit Agreement (the "Credit Agreement") dated as of June 26,
1996 among the Borrower, the Banks listed therein, Chemical Bank, as
Documentation Agent and Xxxxxx Guaranty Trust Company of New York, as
Administrative Agent (the "Agents"). Terms defined in the Credit Agreement are
used herein as therein defined.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, business records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for purposes of this
opinion. In rendering this opinion, we have assumed the authenticity and
completeness of all documents submitted to us as originals, the conformity to
the originals of all documents submitted to us as copies, and the accuracy of
all statements contained in all documents reviewed by us. We express no opinion
as to the enforceability of the Credit Agreement or the Notes or any document
executed in connection therewith.
Upon the basis of the foregoing, we are of the opinion that:
1. The Borrower is an unincorporated Massachusetts business trust duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Massachusetts, and has all powers required to carry on its
business as now conducted.
2. The execution, delivery and performance by the Borrower of the Credit
Agreement and the Notes are within the Borrower's powers, have been duly
authorized by all
91
PEABODY & XXXXXX
Xxxx 26, 1996
Page 2
necessary action on the part of the Borrower, require no action by or in respect
of, or filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the Declaration of Trust or Trustee's Regulations of the
Borrower.
3. The Credit Agreement and the Notes have been duly executed and
delivered by the Borrower.
We are members of the Bar of the Commonwealth of Massachusetts and the
foregoing opinion is limited to the laws of the Commonwealth of Massachusetts.
We are furnishing this opinion to you solely for your benefit. This
opinion is not to be relied upon for any other purpose without prior written
consent. This opinion is given as of the date hereof, and we assume no
obligation to advise you of any facts or circumstances which may hereafter be
brought to our attention or any changes in the law which may hereafter occur.
Very truly yours,
/s/ Peabody & Xxxxxx
92
EXHIBIT G
[LETTERHEAD OF CRAVATH, SWAINE & XXXXX]
June 26, 1996
Corporate Property Investors
$250,000,000 Credit Agreement
Dear Sirs:
We have acted as special counsel for Corporate Property Investors
(the "Borrower") for the purpose of rendering this opinion pursuant to Section
3.01(e) of the Credit Agreement (the Credit Agreement") dated as of June 26,
1996 among the Borrower, the Banks listed therein, Chemical Bank, as
Documentation Agent and Xxxxxx Guaranty Trust Company of New York, as
Administrative Agent (the "Agents"). Terms defined in the Credit Agreement are
used herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, business records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing and certain information as to
matters of fact furnished to us by officers of the Borrower, we are of the
opinion that:
1. The organization of each of the Borrower and its Subsidiaries and
their respective methods of operation will permit (i) the Borrower to meet the
requirements of the Internal Revenue Code of 1986, as amended to date, and the
regulations and rulings thereunder as in effect on the date hereof (the "Code"),
for qualification as a "real estate investment trust" within the meaning of
Section 856 of the
93
2
Code and (ii) the Subsidiaries of the Borrower (other than subsidiaries that are
considered, for Federal income tax purposes, as partnerships, non-entities or
joint ventures) to meet the requirements of the Code for qualification as "real
estate investment trusts" or "qualified REIT subsidiaries"), as the case may be.
Each of the Borrower and its Subsidiaries (other than Subsidiaries that were
considered, for tax purposes, as partnerships, non-entities or joint ventures)
was qualified as a real estate investment trust or a qualified REIT subsidiary,
as the case may be, for the Borrower's tax years through December 31, 1994.
2. The Borrower is a "real estate operating company" as defined in
Section 2510.3-101 of the Regulations of the Department of Labor, as currently
in effect.
Very truly yours,
/s/ Cravath, Swaine & Xxxxx
To the Banks and the
Agents Referred to Below,
In care of Xxxxxx Guaranty Trust Company
of New York, as Administrative Agent
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
II
0
00
XXXXXXX X
XXXXXXX XX
XXXXX XXXX & XXXXXXXX, SPECIAL COUNSEL
FOR THE ADMINISTRATIVE AGENT
[Effective Date]
To the Banks and the Agents Referred to Below,
c/x Xxxxxx Guaranty Trust Company
of New York, as Administrative Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We have participated in the preparation of the Credit Agreement (the
"Credit Agreement") dated as of June 26, 1996 among Corporate Property
Investors, an unincorporated Massachusetts business trust (the "Borrower"), the
Banks listed therein (the "Banks"), Chemical Bank, as Documentation Agent (the
"Documentation Agent") and Xxxxxx Guaranty Trust Company of New York, as
Administrative Agent (the "Administrative Agent" and, together with the
Documentation Agent, the "Agents"), and have acted as special counsel for the
Administrative Agent for the purpose of rendering this opinion pursuant to
Section 3.01(f) of the Credit Agreement. Terms defined in the Credit Agreement
are used herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, business records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that,
assuming that the execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes are within the Borrower's powers and have been
duly
95
authorized by all necessary action on the part of the Borrower and that the
Credit Agreement and the Notes have been duly executed and delivered by the
Borrower (as to which matters you have received the opinions of Xxxxxx X. Xxxxx,
Esq., general counsel to the Borrower, and Peabody & Xxxxxx, special
Massachusetts counsel to the Borrower, each dated of even date herewith), the
Credit Agreement constitutes a valid and binding agreement of the Borrower and
the Notes constitute valid and binding obligations of the Borrower in each case
enforceable in accordance with its respective terms, except as any of the
foregoing may be limited by bankruptcy, insolvency or other similar laws
affecting creditor's rights generally and by general principles of equity.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York and the federal laws of
the United States of America. In giving the foregoing opinion, we express no
opinion as to the effect (if any) of any law of any jurisdiction (except the
State of New York) in which any Bank is located which limits the rate of
interest that such Bank may charge or collect.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,
2
96
Exhibit I
CPI LEASING STATUS
HELD FOR LEASED* COMMITTED COMMITTED
TOTAL EXPANSION NET VACANT & (OCCUP. OR % (REVISED % (DRAFT %
GLA NOT LSBLE. GLA LEASABLE LSE.SIGNED) LEASED DRAFT) COMMITTED SENT) COMMITTED
AURORA
BREA
BURLINGTON
BURNSVILLE
COUNTRYSIDE
GWINNETT
XXXXXXX
XXXXX
LENOX EXPANSION
XXXXXXXXXX
MAPLEWOOD
MAPLEWOOD
EXPANSION
NANUET
NORTHLAKE
OCEAN COUNTY
ROCKAWAY
ROOSEVELT FIELD
SANTA XXXX
SOUTH SHORE
[ILLEGIBLE] FOOD
COURT
TOWN CTR AT BOCA
TOWN CTR AT XXXX
XXXX XXXXXXX
WESTMINSTER
TOTAL RETAIL
OTHER
TOTAL GLA
97
Exhibit J
CORPORATE PROPERTY INVESTORS
LEASING STATUS SUMMARY
AT 6/04/96 THRU 11/30/97
SQUARE FEET COMMITTED SQUARE FEET
% OF
% OF % OF TOTAL
PROPERTY GLA VACANT RENEWAL TURNOVER TOTAL GLA VACANT RENEWAL TURNOVER TOTAL GLA ACTIVITY
AURORA
BREA
BURLINGTON
BURNSVILLE
COUNTRYSIDE
GWINNETT
XXXXXXX
XXXXX
LENOX EXPANSION
XXXXXXXXXX
MAPLEWOOD
MAPLEWOOD
EXPANSION
NANUET
NORTHLAKE
OCEAN COUNTY
ROCKAWAY TOWNSQUARE
ROOSEVELT FIELD
SANTA XXXX
SOUTH SHORE
[ILLEGIBLE] FOOD
COURT
TOWN CTR AT BOCA
TOWN CTR AT XXXX
XXXX XXXXXXX
WESTMINSTER
TOTAL RETAIL
OTHER
TOTAL
PRIOR MONTH
INCREASE/DECREASE
98
EXHIBIT K
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), CORPORATE PROPERTY INVESTORS (the
"Borrower"), CHEMICAL BANK, as Documentation Agent (the "Documentation Agent")
and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent (the
"Administrative Agent" and, together with the Documentation Agent, the
"Agents").
W I T N E S E T H
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the Credit Agreement (the "Credit Agreement") dated as of _________,
19__ among the Borrower, the Assignor and the other Banks party thereto, as
Banks, the Documentation Agent and the Administrative Agent;
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrower in an aggregate principal amount at any
time outstanding not to exceed $___________;
WHEREAS, Committed Loans made to the Borrower by the Assignor under
the Credit Agreement in the aggregate principal amount of $___________ are
outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $__________ (the "Assigned Amount"),
together with a corresponding portion of its outstanding Committed Loans, and
the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
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NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, including the purchase
from the Assignor of the corresponding portion of the principal amount of the
Committed Loans made by the Assignor outstanding at the date hereof. Upon the
execution and delivery hereof by the Assignor, the Assignee, the Borrower and
each of the Agents and the payment of the amounts specified in Section 3
required to be paid on the date hereof (i) the Assignee shall, as of the date
hereof, succeed to the rights and be obligated to perform the obligations of a
Bank under the Credit Agreement with a Commitment in an amount equal to the
Assigned Amount, and (ii) the Commitment of the Assignor shall, as of the date
hereof, be reduced by a like amount and the Assignor released from its
obligations under the Credit Agreement to the extent such obligations have been
assumed by the Assignee. The assignment provided for herein shall be without
recourse to the Assignor.
SECTION 3. Payments As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds an amount equal to $__________*. It is understood
that commitment fees accrued to the date hereof are for the account of the
Assignor and such fees accruing from and including the date hereof are for the
account of the Assignee. Each of the Assignor and the Assignee hereby agrees
that if it receives any amount under the Credit Agreement which is for the
account of the other party hereto, it shall receive the same for the account of
such other party to the extent of such other party's interest therein and shall
promptly pay the same to such other party.
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* Amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any portion of
any upfront fee to be paid by the Assignor to the Assignee.
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SECTION 4. Consent of the Borrower and the Agents. This Agreement is
conditioned upon the consent of the Borrower and each of the Agents pursuant to
Section 9.05(c) of the Credit Agreement. The execution of this Agreement by the
Borrower and the Agents is evidence of this consent. Pursuant to Section 9.05(c)
the Borrower agrees to execute and deliver a Note payable to the order of the
Assignee to evidence the assignment and assumption provided for herein.
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the obligations of the Borrower
in respect of the Credit Agreement or any Note. The Assignee acknowledges that
it has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Limitation of Liability. Corporate Property Investors is
the designation of the Board of Trustees under a Declaration of Trust, as
amended and restated, on file with the Secretary of the Commonwealth of
Massachusetts, and neither the shareholders nor the Board of Trustees, officers,
employees or agents of the Borrower, nor any of their personal assets, shall be
liable under the Credit Agreement, and all Persons dealing with the Borrower
shall look solely to the assets of the Borrower for the payment of any claims
hereunder or for the performance hereof.
SECTION 8. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
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[ASSIGNOR]
By_________________________
Title:
[ASSIGNEE]
By___________________________
Title:
CORPORATE PROPERTY INVESTORS
By__________________________
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as
Administrative Agent
By___________________________
Title:
CHEMICAL BANK, as
Documentation Agent
By__________________________
Title:
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EXHIBIT L
SUBORDINATION PROVISIONS
Subordinated Securities that are Debt ("Subordinated Debt") shall be
expressly made subordinate and junior in right of payment to the "Obligations"
referred to in the Credit Agreement dated as of June 26, 1996 among Corporate
Property Investors (the "Borrower"), the banks listed on the signature pages
thereof, Chemical Bank, as Documentation Agent and Xxxxxx Guaranty Trust Company
of New York, as Administrative Agent (as the sane may be amended from time to
time, the "Credit Agreement") (such obligations, the "Senior Debt") by
provisions no less favorable to the holders of the Senior Debt than the
following:
(i) No payment or prepayment of any principal, premium (if any) or
interest on account of and no repurchase, redemption or other retirement
(whether at the option of the holder or otherwise) of Subordinated Debt
(other than the conversion of any convertible Subordinated Debt into
common stock of the Borrower) shall be made, if at the time of such
payment, prepayment, repurchase, redemption or retirement or immediately
after giving effect thereto (1) there shall exist a default in the payment
or prepayment of any principal, interest, fees or any other amount then
due with respect to any Senior Debt or (2) a Standstill Period shall be in
effect;
(ii) In the event of any insolvency or bankruptcy proceedings, and
any receivership, liquidation, reorganization or other similar proceedings
in connection therewith, relative to the Borrower or to its creditors, as
such, or to its property, and in the event of any proceedings for
voluntary liquidation, dissolution or other winding up of the Borrower,
whether or not involving insolvency or bankruptcy, then the holders of
Senior Debt shall be entitled to receive payment in full in cash of all
principal, premium (if any), interest and fees on all Senior Debt
(including interest thereon accruing after the commencement of any such
proceedings, whether or not allowed or allowable as a claim in such
proceedings) before the holders of the Subordinated Debt are entitled to
receive any
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payment or other distribution on account of principal, premium (if any) or
interest upon the Subordinated Debt, and to that end the holders of Senior
Debt shall be entitled to receive distributions of any kind or character,
whether in cash or property or securities, which may be payable or
deliverable in any such proceedings in respect of the Subordinated Debt,
except for distributions in the form of securities which are subordinate
and junior in right of payment to the payment of all Senior Debt then
outstanding to the same or a greater extent than the Subordinated Debt
hereunder;
(iii) In the event that any Subordinated Debt is declared due and
payable before its expressed maturity because of the occurrence of an
event of default (under circumstances when the provisions of the foregoing
paragraphs (i) or (ii) are not applicable), the holders of the Senior Debt
outstanding at the time such Subordinated Debt so becomes due and payable
because of such occurrence of such an event of default shall be entitled
to receive payment in full in cash of all principal, premium (if any),
interest and fees on all Senior Debt before the holders of the
Subordinated Debt are entitled to receive any payment or other
distribution on account of the principal, premium (if any) or interest
upon the Subordinated Debt;
(iv) In the event that, notwithstanding the occurrence of any of the
events described in paragraphs (i), (ii) and (iii), any such payment or
distribution of assets of the Borrower of any kind or character, whether
in cash, property or securities, shall be received by the holders of
Subordinated Debt before all Senior Debt is paid in full in cash, such
payment or distribution shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of such Senior Debt or
their representative or representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidencing any of
such Senior Debt may have been issued, as their respective interests may
appear, for application to the payment of all Senior Debt remaining unpaid
to the extent necessary to pay such Senior Debt in full in cash, including
principal, premium (if any), interest and fees thereon, in accordance with
its terms, after giving effect to any concurrent payment or distribution
to the holders of such Senior Debt; and
(v) No holder of Senior Debt shall be prejudiced in his right to
enforce subordination of the
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Subordinated Debt by any act or failure to act on the part of the
Borrower;
provided, that the Subordinated Debt may provide that the foregoing provisions
are solely for the purpose of defining the relative rights of the holders of
Senior Debt, on the one hand, and the holders of Subordinated Debt, on the other
hand, and that nothing therein shall impair, as between the Borrower and the
holders of the Subordinated Debt, the obligation of the Borrower, which may be
unconditional and absolute, to pay to the holders of the Subordinated Debt the
principal and premium (if any) thereof and interest thereon in accordance with
its terms, nor shall anything therein prevent the holders of the Subordinated
Debt from exercising all remedies otherwise permitted by applicable law or the
instruments pursuant to which the Subordinated Debt was issued upon default
thereunder, subject to the rights under paragraphs (i), (ii), (iii), (iv) and
(v) above of holders of Senior Debt to receive cash, property or securities
otherwise payable or deliverable to the holders of the Subordinated Debt.
As used herein, a "Standstill Period" means the period beginning on
the date on which the Administrative Agent shall have notified the Borrower (as
well as any trustee or representative of holders of Subordinated Debt and any
original holder of at least $5,000,000 principal amount of Subordinated Debt, in
each case only if such trustee, representative or holder was notified to the
Administrative Agent at the time such Debt was issued, and at the address
specified in the Borrower's notice to the Administrative Agent) of the existence
of an event of default under the Senior Debt, other than an event of default
referred to in clause (1) of paragraph (i) above (a "Nonpayment Default"), and
the determination of the holders of the Senior Debt to initiate a Standstill
Period by reason thereof, and ending on the earlier of (x) the date on which
such Nonpayment Default shall have been cured and (y) the close of business on
the 180th day after the commencement of such period; provided that Standstill
Periods shall not be in effect for more than 180 days in any consecutive 360-day
period. If a Nonpayment Default has occurred and is continuing but no Standstill
Period is in effect, no holder of Subordinated Debt will demand, accept or
receive, and the Borrower shall not make, any payment with respect to the
Subordinated Debt without giving the Administrative Agent at least 10 business
days' prior written notice of such action.
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