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CREDIT AGREEMENT
Dated as of July 23, 1998
among
RECKSON OPERATING PARTNERSHIP, L.P.
and
XXXXXXX XXXXXX OPERATING PARTNERSHIP, L.P.,
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS LENDERS
and
THE CHASE MANHATTAN BANK
AS ARRANGER, BOOK MANAGER AND ADMINISTRATIVE AGENT,
UBS AG, NEW YORK BRANCH
AS ARRANGER, BOOK MANAGER AND SYNDICATION AGENT,
and
PNC BANK, NATIONAL ASSOCIATION
AS DOCUMENTATION AGENT
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms.......................................
1.2. Computation of Time Periods.................................
1.3. Accounting Terms............................................
1.4. Other Terms.................................................
ARTICLE II
AMOUNTS AND TERMS OF LOANS
2.1. Committed Loans.............................................
2.2. Competitive Bid Loans.......................................
2.3. Use of Proceeds of Loans and Letters
of Credit...................................................
2.4. Revolving Credit Termination Date; Maturity
of Competitive Bid Loans..................................
2.5. Maximum Credit Facility.....................................
2.6. Authorized Agents...........................................
ARTICLE III
LETTERS OF CREDIT
3.1. Letters of Credit...........................................
3.2. Obligations Several.........................................
ARTICLE IV
PAYMENTS AND PREPAYMENTS
4.1. Prepayments; Reductions in Revolving
Credit Commitments........................................
4.2. Payments....................................................
4.3. Promise to Repay; Evidence of
Indebtedness.............................................
ARTICLE V
INTEREST AND FEES
5.1. Interest on the Loans and other
Obligations...............................................
5.2. Special Provisions Governing Eurodollar
Rate Loans and Competitive Bid Loans......................
5.3. Fees........................................................
ARTICLE VI
CONDITIONS TO LOANS AND LETTERS OF CREDIT
6.1. Conditions Precedent to the Initial Loans
and Letters of Credit.....................................
6.2. Conditions Precedent to All Subsequent
Loans and Letters of Credit...............................
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1. Representations and Warranties of the
Borrower..................................................
ARTICLE VIII
REPORTING COVENANTS
8.1. Borrower Accounting Practices...............................
8.2. Financial Reports...........................................
8.3. Events of Default...........................................
8.4. Lawsuits....................................................
8.5. Insurance...................................................
8.6. ERISA Notices...............................................
8.7. Environmental Notices.......................................
8.8. Labor Matters...............................................
8.9. Notices of Asset Sales and/or
Acquisitions..............................................
8.10. Notices of Minority Holdings................................
8.11. Tenant Notifications........................................
8.12. Other Reports...............................................
8.13. Other Information...........................................
ARTICLE IX
AFFIRMATIVE COVENANTS
9.1. Existence, Etc..............................................
9.2. Powers; Conduct of Business.................................
9.3. Compliance with Laws, Etc...................................
9.4. Payment of Taxes and Claims.................................
9.5. Insurance...................................................
9.6. Inspection of Property; Books and
Records; Discussions......................................
9.7. ERISA Compliance............................................
9.8. Maintenance of Property.....................................
9.9. Company Status..............................................
9.10. Ownership of Projects, Minority
Holdings and Property.....................................
9.11. Maintenance of Operating Accounts...........................
ARTICLE X
NEGATIVE COVENANTS
10.1. Intentionally Omitted.......................................
10.2. Liens.......................................................
10.3. Intentionally Omitted.......................................
10.4. Conduct of Business.........................................
10.5. Transactions with Partners and
Affiliates................................................
10.6. Restriction on Fundamental Changes..........................
10.7. Margin Regulations; Securities Laws.........................
10.8. ERISA.......................................................
10.9. Organizational Documents....................................
10.10. Fiscal Year.................................................
10.11. Financial Covenants.........................................
10.12. Negative Covenants with respect to the
Company...................................................
ARTICLE XI
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.1. Events of Default...........................................
11.2. Rights and Remedies.........................................
ARTICLE XII
THE AGENTS
12.1. Appointment.................................................
12.2. Nature of Duties............................................
12.3. Right to Request Instructions...............................
12.4. Reliance....................................................
12.5. Indemnification.............................................
12.6. Agents Individually.........................................
12.7. Successor Agents............................................
12.8. Relations Among the Lenders.................................
ARTICLE XIII
YIELD PROTECTION
13.1. Taxes.......................................................
13.2. Increased Capital...........................................
13.3. Changes; Legal Restrictions.................................
13.4. Replacement of Certain Lenders..............................
13.5. Mitigation..................................................
ARTICLE XIV
14.1. Assignments and Participations..............................
14.2. Expenses....................................................
14.3. Indemnity...................................................
14.4. Change in Accounting Principles.............................
14.5. Intentionally Omitted.......................................
14.6. Ratable Sharing.............................................
14.7. Amendments and Waivers......................................
14.8. Notices.....................................................
14.9. Survival of Warranties and Agreements.......................
14.10. Failure or Indulgence Not Waiver;
Remedies Cumulative.......................................
14.11. Payments Set Aside..........................................
14.12. Severability................................................
14.13. Headings....................................................
14.14. Governing Law...............................................
14.15. Limitation of Liability.....................................
14.16. Successors and Assigns......................................
14.17. Certain Consents and Waivers of the
Borrower and RMOP.........................................
14.18. Counterparts; Effectiveness;
Inconsistencies...........................................
14.19. Limitation on Agreements....................................
14.20. Disclaimers.................................................
14.21. Entire Agreement............................................
14.22. Confidentiality.............................................
14.23. No Bankruptcy Proceedings...................................
LIST OF EXHIBITS AND SCHEDULES
Exhibit A-- Form of Assignment and Acceptance
Exhibit B-1 Form of Note
Exhibit B-2 Form of Designated Bank Note
Exhibit B-3 Form of RMOP Note
Exhibit C-- Form of Notice of Borrowing
Exhibit D-- Form of Notice of Conversion/Continuation
Exhibit E-- List of Closing Documents
Exhibit F-- Form of Officer's Certificate
Exhibit G-- Sample Calculations of Financial Covenants
Exhibit H-- Form of Competitive Bid Quote Request
Exhibit I-- Form of Invitation for Competitive Bid Quote
Exhibit J-- Form of Competitive Bid Quote
Exhibit K-- Form of Designation Agreement
Schedule 1.1.1-- Existing Permitted Liens
Schedule 1.1.2-- Permitted Securities Options
Schedule 7.1-A-- Organizational Documents
Schedule 7.1-C-- Corporate Structure; Outstanding Capital
Stock and Partnership Interests; Partner-
ship Agreement
Schedule 7.1-H-- Indebtedness for Borrowed Money; Contin-
gent Obligations
Schedule 7.1-I-- Pending Actions
Schedule 7.1-P-- Environmental Matters
Schedule 7.1-Q-- ERISA Matters
Schedule 7.1-5- Securities Activities
Schedule 7.1-T-- Insurance Policies
CREDIT AGREEMENT
This Credit Agreement dated as of July 23, 1998 (as amended, supplemented
or modified from time to time, the "Agreement") is entered into among RECKSON
OPERATING PARTNERSHIP, L.P., a Delaware limited partnership ("Reckson"), XXXXXXX
XXXXXX OPERATING PARTNERSHIP, L.P., a Delaware limited partnership ("RMOP"), the
institutions from time to time a party hereto as Lenders, whether by execution
of this Agreement or an Assignment and Acceptance, and THE CHASE MANHATTAN BANK,
as Arranger, Book Manager and Administrative Agent, UBS AG, NEW YORK BRANCH, as
Arranger, Book Manager and Syndication Agent, and PNC BANK, NATIONAL
ASSOCIATION, as Documentation Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms. The following terms used in this Agreement
shall have the following meanings, applicable both to the singular and the
plural forms of the terms defined:
"Adjusted Unencumbered NOI" means, for any period, the sum of (i) the NOI
from the Consolidated Businesses, less the Unencumbered Capital Expenditure
Reserve Amounts for such period; and (ii) the portion of NOI of the Minority
Holdings allocable to the Borrower, in accordance with GAAP less the
Unencumbered Capital Expenditure Reserve Amounts allocable to the Borrower for
such period; which amounts represent revenues earned from Real Property that is
not subject to or encumbered by Secured Indebtedness and which revenues are not
subject to any pledge, negative pledge, Lien or other hypothecation. The sum of
(x) NOI from the Consolidated Businesses included in clause (i) hereof from
other than office and industrial Real Property, and (y) NOI included in clause
(ii) hereof, shall in no event be more than twenty-five percent (25%) of
Adjusted Unencumbered NOI. In addition, (a) the NOI from RMOP included in clause
(i) hereof shall in no event exceed an amount equal to $3,750,000 per quarter,
and (b) no NOI attributable to Investment Funds shall be included in Adjusted
Unencumbered NOI.
"Adjustment Date" means the date that the Borrower receives an Investment
Grade Rating for its unsecured senior long term indebtedness from at least two
(2) Rating Agencies, at least one (1) of which shall be either S&P or Xxxxx'x.
"Administrative Agent" means Chase.
"Affiliate", as applied to any Person, means any other Person that directly
or indirectly controls, is controlled by, or is under common control with, that
Person. For purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling", "controlled by" and "under common control
with"), as applied to any Person, means the possession, directly or indirectly,
of the power to vote ten percent (10.0%) or more of the equity Securities having
voting power for the election of directors of such Person or otherwise to direct
or cause the direction of the management and policies of that Person, whether
through the ownership of voting equity Securities or by contract or otherwise.
"Agents" means, collectively, UBS in its capacity as Syndication Agent,
Chase in its capacity as Administrative Agent, PNC in its capacity as
Documentation Agent, each Arranger, and each successor agent appointed pursuant
to the terms of Article XII of this Agreement.
"Agreement" has the meaning set forth in the preamble hereto.
"Applicable Lending Office" means, with respect to a particular Lender, (i)
its Eurodollar Lending Office in respect of provisions relating to Eurodollar
Rate Loans, (ii) its Domestic Lending Office in respect of provisions relating
to Base Rate Loans, and (iii) its Competitive Bid Lending Office in respect of
provisions relating to Competitive Bid Loans.
"Applicable Margin" means, with respect to each Loan, the respective
percentages per annum determined based on the range into which the rating on the
Borrower's senior long-term unsecured debt then falls, in accordance with the
following table. Any change in the Borrower's Investment Grade Rating causing it
to move to a different range on the table shall to the extent set forth below
effect an immediate change in the Applicable Margin. In the event that the
Borrower receives two (2) Investment Grade Ratings that are not equivalent, the
Applicable Margin shall be determined by the lower of such two (2) Investment
Grade Ratings, at least one of which shall be an Investment Grade. In the event
the Borrower receives more than two (2) ratings (from S&P, Xxxxx'x, Xxxx &
Xxxxxx or Fitch) and such ratings are not equivalent, the Applicable Margin
shall be determined by the lower of the two highest ratings; provided that each
of said two (2) highest ratings shall be Investment Grade Ratings and at least
one of which shall be an Investment Grade Rating from S&P or Xxxxx'x.
Range of Applicable
the Borrower's Margin for Applicable
Credit Rating Base Rate Margin for Euro
(S&P/Xxxxx'x Loans Dollar Loans
Ratings) (% per annum) (% per annum)
BBB-/Baa3 0 .90
BBB/Baa2 0 .80
BBB+/Baa1 0 .75
A-/A3 or higher 0 .65
The Administrative Agent shall notify the Banks in writing promptly after
it obtains knowledge of any change in the Borrower's Investment Grade Rating
which shall effect a change in the Applicable Margin.
The Applicable Margin until the Adjustment Date or after the Borrower loses
its Investment Grade Rating, means, with respect to each Loan, the respective
percentages per annum determined, at any time, based on the range into which the
Leverage Ratio then falls, in accordance with the following table. Any change in
the Applicable Margin shall be effective as of the financial reporting dates set
forth in Section 8.2 hereof.
Applicable Applicable
Margin for Margin for
Eurodollar Base Rate
Loans Loans
Leverage Ratio (% per annum) (% per annum)
30% or less 1.125% 0.00%
greater than 30%-40% 1.20% 0.00%
greater than 40%-50% 1.375% 0.00%
"Arrangers" means UBS and Chase, each appointed pursuant to the terms of
Article XII of this Agreement.
"Assignment and Acceptance" means an Assignment and Acceptance in
substantially the form of Exhibit A attached hereto and made a part hereof (with
blanks appropriately completed) delivered to the Administrative Agent in
connection with an assignment of a Lender's interest under this Agreement in
accordance with the provisions of Section 14.1.
"Authorized Financial Officer" means a chief executive officer, president,
chief financial officer, treasurer or other qualified senior officer acceptable
to the Administrative Agent.
"Base Rate" means, for any period, a fluctuating interest rate per annum as
shall be in effect from time to time, which rate per annum shall at all times be
equal to the higher of:
(i) the rate of interest announced publicly by Chase in New York, New York
from time to time, as Chase's prime rate; and
(ii) the sum of (A) one-half of one percent (0.50%) per annum plus (B) the
Federal Funds Rate in effect from time to time during such period.
"Base Rate Loan" means (i) a Committed Loan which bears interest at a rate
determined by reference to the Base Rate and the Applicable Margin as provided
in Section 5.1(a) or (ii) an overdue amount which was a Base Rate Loan
immediately before it became due.
"Borrower" means Reckson.
"Borrower Notes" has the meaning set forth in Section 4.3(a).
"Borrower Partnership Agreement" means the Reckson Partnership Agreement as
such agreement may be amended, restated, modified or supplemented from time to
time with the consent of the Agents or as permitted under Section 10.9.
"Borrowing" means a borrowing consisting of Loans of the same type made,
continued or converted on the same day.
"Business Day" means a day, in the applicable local time, which is not a
Saturday or Sunday or a legal holiday and on which banks are not required or
permitted by law or other governmental action to close (i) in New York, New York
and (ii) in the case of Eurodollar Rate Loans, in London, England and (iii) in
the case of Letter of Credit transactions for a particular Lender, in the place
where its office for issuance or administration of the pertinent Letter of
Credit is located.
"Capital Expenditures" means, for any period, the aggregate of all
expenditures (whether payable in cash or other Property or accrued as a
liability (but without duplication)) during such period that, in conformity with
GAAP, are required to be included in or reflected by the Company's, the
Borrower's or any of its Subsidiaries' fixed asset accounts as reflected in any
of their respective balance sheets; provided, however, Capital Expenditures
shall include the sum of all expenditures by the Consolidated Businesses and the
portion of expenditures of Minority Holdings allocable to the Consolidated
Businesses for tenant improvements, leasing commissions, property level capital
expenditures (e.g., roof replacement, parking lot repairs, etc., but not capital
expenditures in connection with expansions).
"Capital Expenditure Reserve Amounts" means the greater of (i) the sum of
(a) an amount per annum equal to $0.72 multiplied by the number of square feet
for office properties owned, directly or indirectly by any of the Consolidated
Businesses or Minority Holdings; and (b) an amount per annum equal to $0.28
multiplied by the number of square feet for industrial properties owned,
directly or indirectly by any of the Consolidated Businesses or Minority
Holdings and (ii) as of the first day of each calendar quarter, an amount equal
to the actual Capital Expenditures for the immediately preceding consecutive
four calendar quarters.
"Capital Lease" means any lease of any property (whether real, personal or
mixed) by a Person as lessee which, in conformity with GAAP, is accounted for as
a capital lease on the balance sheet of that Person.
"Capital Stock" means, with respect to any Person, any capital stock of
such Person, regardless of class or designation, and all warrants, options,
purchase rights, conversion or exchange rights, voting rights, calls or claims
of any character with respect thereto.
"Cash and Cash Equivalents" means unrestricted (i) cash, (ii) marketable
direct obligations issued or unconditionally guaranteed by the United States
government and backed by the full faith and credit of the United States
government; and (iii) domestic and Eurodollar certificates of deposit and time
deposits, bankers' acceptances and floating rate certificates of deposit issued
by any commercial bank organized under the laws of the United States, any state
thereof, the District of Columbia, any foreign bank, or its branches or agencies
(fully protected against currency fluctuations), which, at the time of
acquisition, are rated A-1 (or better) by S&P or P-1 (or better) by Xxxxx'x
provided that the maturities of such Cash and Cash Equivalents shall not exceed
one year.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Sections 9601 et seq., any amendments thereto,
any successor statutes, and any regulations or guidance promulgated thereunder.
"Chase" means The Chase Manhattan Bank.
"Claim" means any claim or demand, by any Person, of whatsoever kind or
nature for any alleged Liabilities and Costs, whether based in contract, tort,
implied or express warranty, strict liability, criminal or civil statute,
Permit, ordinance or regulation, common law or otherwise.
"Closing Date" means July 23, 1998.
"Combined Equity Value" means Total Value, less Total Outstanding
Indebtedness.
"Commercial Letter of Credit" means any documentary letter of credit issued
by an Issuing Bank pursuant to Section 3.1 for the account of the Borrower or
RMOP, which is drawable upon presentation of documents evidencing the sale or
shipment of goods purchased by the Borrower or RMOP in the ordinary course of
its business.
"Commission" means the Securities and Exchange Commission and any Person
succeeding to the functions thereof.
"Committed Loan" means a loan made by a Lender pursuant to Section 2.1;
provided, that if any such loan or loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Conversion/Continuation, the term "Committed
Loan" shall refer to the combined principal amount resulting from such
combination or to each of the separate principal amounts resulting from such
subdivision, as the case may be.
"Company" means Reckson Associates Realty Corp., a Maryland corporation.
"Competitive Bid Lender" means, as to each Competitive Bid Loan, the Lender
funding such Competitive Bid Loan.
"Competitive Bid Lending Office" means, as to each Lender, its Domestic
Lending Office or such other office, branch or affiliate of such Lender as it
may hereafter designate as its Competitive Bid Lending Office by notice to the
Borrower and the Agent.
"Competitive Bid Loan" means a loan to be made by a Lender pursuant to a
LIBOR Auction (including such a loan bearing interest at the Base Rate pursuant
to Section 5.2).
"Competitive Bid Margin" has the meaning set forth in Section
2.2(d)(ii)(C).
"Competitive Bid Quote" means an offer by a Lender to make a Competitive
Bid Loan in accordance with Section 2.2(d).
"Competitive Bid Quote Request" has the meaning set forth in Section
2.2(a).
"Competitive Bid Rate" has the meaning set forth in Section 2.2.
"Compliance Certificate" has the meaning set forth in Section 8.2(b).
"Consolidated" means consolidated, in accordance with GAAP.
"Consolidated Businesses" means the Company, the Borrower, Reckson FS
Limited Partnership, RMOP and their wholly-owned Subsidiaries.
"Construction Asset Cost" means, with respect to Property on
which construction of Improvements has commenced (such commencement evidenced by
foundation excavation) but has not yet been completed (as such completion shall
be evidenced by a temporary or permanent certificate of occupancy permitting use
of such Property by the general public), the aggregate sums expended on the
construction of such Improvements (including land acquisition costs and other
soft costs).
"Contaminant" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, radioactive materials, asbestos containing materials (in any
form or condition), polychlorinated biphenyls (PCBs), or any constituent of any
such substance or waste, and includes, but is not limited to, these terms as
defined in federal, state or local laws or regulations.
"Contingent Obligation" as to any Person means, without duplication, (i)
any contingent obligation of such Person required to be shown on such Person's
balance sheet in accordance with GAAP, and (ii) any obligation required to be
disclosed in the footnotes to such Person's financial statements in accordance
with GAAP, guaranteeing partially or in whole any non-recourse Indebtedness,
lease, dividend or other obligation, exclusive of contractual indemnities
(including, without limitation, any indemnity or price-adjustment provision
relating to the purchase or sale of securities or other assets) and guarantees
of non-monetary obligations (other than guarantees of completion) which have not
yet been called on or quantified, of such Person or of any other Person.
Notwithstanding the foregoing, any litigation required to be disclosed in the
footnotes to such Person's financial statements in accordance with GAAP shall
not be included as a "Contingent Obligation" unless the same shall have been
reserved for in accordance with GAAP. The amount of any Contingent Obligation
described in clause (ii) shall be deemed to be (a) with respect to a guaranty of
interest or interest and principal, or operating income guaranty, the sum of all
payments required to be made thereunder (which in the case of an operating
income guaranty shall be deemed to be equal to the debt service for the note
secured thereby), calculated at the interest rate applicable to such
Indebtedness, through (i) in the case of an interest or interest and principal
guaranty, the stated date of maturity of the obligation (and commencing on the
date interest could first be payable thereunder), or (ii) in the case of an
operating income guaranty, the date through which such guaranty will remain in
effect, and (b) with respect to all guarantees not covered by the preceding
clause (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such guaranty is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as recorded on the
balance sheet and on the footnotes to the most recent financial statements of
the Borrower required to be delivered pursuant hereto. Notwithstanding anything
contained herein to the contrary, guarantees of completion shall not be deemed
to be Contingent Obligations unless and until a claim for payment has been made
thereunder, at which time any such guaranty of completion shall be deemed to be
a Contingent Obligation in an amount equal to any such claim. Subject to the
preceding sentence, (i) in the case of a joint and several guaranty given by
such Person and another Person (but only to the extent such guaranty is
recourse, directly or indirectly to the Borrower), the amount of the guaranty
shall be deemed to be 100% thereof unless and only to the extent that (X) such
other Person has delivered Cash or Cash Equivalents to secure all or any part of
such Person's guaranteed obligations or (Y) such other Person holds an
Investment Grade Credit Rating from either Xxxxx'x or S&P, and (ii) in the case
of a guaranty, (whether or not joint and several) of an obligation otherwise
constituting Debt of such Person, the amount of such guaranty shall be deemed to
be only that amount in excess of the amount of the obligation constituting
Indebtedness of such Person. Notwithstanding anything contained herein to the
contrary, "Contingent Obligations" shall not be deemed to include guarantees of
loan commitments or of construction loans to the extent the same have not been
drawn.
"Contractual Obligation", as applied to any Person, means any provision of
any Securities issued by that Person or any indenture, mortgage, deed of trust,
security agreement, pledge agreement, guaranty, contract, undertaking, agreement
or instrument to which that Person is a party or by which it or any of its
properties is bound, or to which it or any of its properties is subject.
"Credit Rating" means the ratings assigned by not less than two of the
Rating Agencies (at least one of which shall be S&P or Xxxxx'x) to the
Borrower's senior long-term unsecured indebtedness.
"Cure Loans" has the meaning set forth in Section 4.2(b)(v)(C).
"Customary Permitted Liens" means
(i) Liens (other than Environmental Liens and Liens in favor of the PBGC)
with respect to the payment of taxes, assessments or governmental
charges or levies in all cases which are not yet due or which are
being contested in good faith by appropriate proceedings in accordance
with Section 9.4 and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with GAAP;
(ii) statutory and common law Liens of landlords against any Property of
the Borrower or any of its Subsidiaries;
(iii)Liens against any Property of the Borrower or any of its Subsidiaries
in favor of suppliers, mechanics, carriers, materialmen, warehousemen
or workmen and other Liens against any Property of the Borrower or any
of its Subsidiaries imposed by law created in the ordinary course of
business for amounts which could not reasonably be expected to result
in a Material Adverse Effect;
(iv) Liens (other than any Lien in favor of the PBGC) incurred or deposits
made in the ordinary course of business in connection with worker's
compensation, unemployment insurance or other types of social security
benefits or to secure the performance of bids, tenders, sales,
contracts (other than for the repayment of borrowed money), surety,
appeal and performance bonds; provided that (A) all such Liens do not
in the aggregate materially detract from the value of the Borrower's
or such Subsidiary's assets or Property or materially impair the use
thereof in the operation of their respective businesses, and
(B) all Liens of attachment or judgment and Liens securing bonds to
stay judgments or in connection with appeals which do not secure at
any time an aggregate amount of recourse Indebtedness exceeding
$10,000,000; and
(v) Liens against any Property of the Borrower or any Subsidiary of the
Borrower arising with respect to zoning restrictions, easements,
licenses, reservations, covenants, rights-of-way, utility easements,
building restrictions and other similar charges or encumbrances on the
use of Real Property which do not materially interfere with the
ordinary conduct of the business of the Borrower or any of its
Subsidiaries;
(vi) leases or subleases granted to other Persons not materially
interfering with the conduct of the business of the Borrower and its
Subsidiaries taken as a whole;
(vii)Liens placed upon equipment or machinery used in the ordinary course
of business of the Borrower or any of its Subsidiaries at the time of
acquisition thereof by the Borrower or any such Subsidiary or within
180 days thereafter to secure Indebtedness incurred to pay all or a
portion of the purchase price thereof, provided that the Lien
encumbering the equipment or machinery so acquired does not encumber
any other asset of the Borrower or such Subsidiary;
(viii) customary restrictions imposed by licensors of software or
trademarks on users thereof;
(ix) interests of licensees and sublicensees in any trademarks or other
intellectual property license or sublicense by the Borrower or any of
its Subsidiaries; and
(x) Environmental Liens less than $5,000,000, which are being contested in
good faith by appropriate proceedings.
"Designated Bank" means a special purpose corporation that (i) shall have
become a party to this Agreement pursuant to Section 14.1(f), and (ii) is not
otherwise a Lender.
"Designated Bank Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit B-2 hereto, evidencing the obligation of
the Borrower to repay Competitive Bid Loans made by Designated Banks, as the
same may be amended, supplemented, modified or restated from time to time, and
"Designated Bank Note" means any one of such promissory notes issued under
Section 14.1(f) hereof.
"Designated Lender" has the meaning set forth in Section 13.4.
"Designating Lender" shall have the meaning set forth in Section 14.1(f)
hereof.
"Designation Agreement" means a designation agreement in substantially the
form of Exhibit K attached hereto, entered into by a Lender and a Designated
Bank and accepted by the Agent.
"DOL" means the United States Department of Labor and any Person succeeding
to the functions --- thereof.
"Dollars" and "$" mean the lawful money of the United States.
"Domestic Lending Office" means, with respect to any Lender, such Lender's
office, located in the United States, specified as the "Domestic Lending Office"
under its name on the signature pages hereof or on the Assignment and Acceptance
by which it became a Lender or such other United States office of such Lender as
it may from time to time specify by written notice to the Borrower and the
Administrative Agent.
"Duff & Xxxxxx" means Duff & Xxxxxx Credit Rating Co. or any successor
thereto.
"Eligible Assignee" means (i) a Lender or any Affiliate thereof; (ii) a
commercial bank having total assets in excess of $5,000,000,000; (iii) the
central bank of any country which is a member of the Organization for Economic
Cooperation and Development having total assets in excess of $10,000,000,000; or
(iv) a finance company or other financial institution reasonably acceptable to
the Administrative Agent, which is regularly engaged in making, purchasing or
investing in loans and having total assets in excess of $1,000,000,000 or is
otherwise reasonably acceptable to the Administrative Agent.
"Environmental, Health or Safety Requirements of Law" means all
Requirements of Law derived from or relating to any federal, state or local law,
ordinance, rule, regulation, Permit, license or other binding determination of
any Governmental Authority relating to, imposing liability or standards
concerning, or otherwise addressing the environment, health and/or safety,
including, but not limited to the Clean Air Act, the Clean Water Act, CERCLA,
RCRA, any so-called "Superfund" or "Superlien" law, the Toxic Substances Control
Act and OSHA, and public health codes, each as from time to time in effect.
"Environmental Lien" means a Lien in favor of any Governmental Authority
for any (i) liabilities under any Environmental, Health or Safety Requirement of
Law, or (ii) damages arising from, or costs incurred by such Governmental
Authority in response to, a Release or threatened Release of a Contaminant into
the environment.
"Environmental Property Transfer Act" means any applicable Requirement of
Law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the transfer, sale, lease or closure of any Property or
deed or title for any Property for environmental reasons, including, but not
limited to, any so-called "Environmental Cleanup Responsibility Act" or
"Responsible Property Transfer Act".
"Equipment" means equipment used in connection with the maintenance of
Projects and Properties.
"ERISA" means the Employee Retirement Income Security Act of 1974, 29
U.S.C. xx.xx. 1000 et seq., any amendments thereto, any successor statutes, and
any regulations or guidance promulgated thereunder.
"ERISA Affiliate" means (i) any corporation which is a member of the same
controlled group of corporations (within the meaning of Section 414(b) of the
Internal Revenue Code) as the Borrower; (ii) a partnership or other trade or
business (whether or not incorporated) which is under common control (within the
meaning of Section 414(c) of the Internal Revenue Code) with the Borrower; and
(iii) a member of the same affiliated service group (within the meaning of
Section 414(m) of the Internal Revenue Code) as the Borrower, any corporation
described in clause (i) above or any partnership or trade or business described
in clause (ii) above.
"ERISA Termination Event" means (i) a Reportable Event with respect to any
Plan or Multiemployer Plan; (ii) the withdrawal of the Borrower or any ERISA
Affiliate from a Benefit Plan during a plan year in which the Borrower or such
ERISA Affiliate was a "substantial employer" as defined in Section 4001(a)(2) of
ERISA or the cessation of operations which results in the termination of
employment of 20% of Benefit Plan participants who are employees of the Borrower
or any ERISA Affiliate; (iii) the imposition of an obligation on the Borrower or
any ERISA Affiliate under Section 4041 of ERISA to provide affected parties
written notice of intent to terminate a Benefit Plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the institution by the PBGC of
proceedings to terminate a Benefit Plan; (v) any event or condition which might
constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Benefit Plan; or (vi) the partial or
complete withdrawal of the Borrower or any ERISA Affiliate from a Multiemployer
Plan.
"Eurodollar Affiliate" means, with respect to each Lender, the Affiliate of
such Lender (if any) set forth below such Lender's name under the heading
"Eurodollar Affiliate" on the signature pages hereof or on the Assignment and
Acceptance by which it became a Lender or such Affiliate of a Lender as it may
from time to time specify by written notice to the Borrower and the
Administrative Agent.
"Eurodollar Interest Period" has the meaning set forth in Section 5.2(b).
"Eurodollar Interest Rate Determination Date" has the meaning set forth in
Section 5.2(c). "Eurodollar Lending Office" means, with respect to any Lender,
such Lender's office (if any) specified as the "Eurodollar Lending Office" under
its name on the signature pages hereof or on the Assignment and Acceptance by
which it became a Lender or such other office or offices of such Lender as it
may from time to time specify by written notice to the Borrower and the
Administrative Agent.
"Eurodollar Rate" means, for any Eurodollar Interest Period with respect to
any Eurodollar Rate Loan or a Competitive Bid Loan, an interest rate per annum
equal to the rate per annum obtained by multiplying (a) a rate per annum equal
to the rate for U.S. dollar deposits with maturities comparable to such
Eurodollar Interest Period which appears on Telerate Page 3750 as of 11:00 a.m.,
London time, two (2) Business Days prior to the commencement of such Eurodollar
Interest Period, provided, however, that if such rate does not appear on
Telerate Page 3750, the "Eurodollar Rate" applicable to a particular Eurodollar
Interest Period shall mean a rate per annum equal to the rate at which U.S.
dollar deposits in an amount approximately equal to the principal balance (or
the portion thereof which will bear interest at a rate determined by reference
to the Eurodollar Rate during the Eurodollar Interest Period to which such
Eurodollar Rate is applicable in accordance with the provisions hereof), and
with maturities comparable to the last day of the Eurodollar Interest Period
with respect to which such Eurodollar Rate is applicable, are offered in
immediately available funds in the London Interbank Market to the London office
of Chase by leading banks in the Eurodollar market at 11:00 a.m., London time,
two (2) Business Days prior to the commencement of the Eurodollar Interest
Period to which such Eurodollar Rate is applicable, by (b) a fraction (expressed
as a decimal) the numerator of which shall be the number one and the denominator
of which shall be the number one minus the Eurodollar Reserve Percentage for
such Eurodollar Interest Period.
"Eurodollar Rate Loan" means (i) a Committed Loan which bears interest at a
rate determined by reference to the Eurodollar Rate and the Applicable Margin
for Eurodollar Rate Loans, as provided in Section 5.1(a) or (ii) an overdue
amount which was a Eurodollar Loan immediately before it became due.
"Eurodollar Reserve Percentage" means, for any day, that percentage which
is in effect on such day, as prescribed by the Federal Reserve Board for
determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York, New York 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 Eurodollar Rate 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 United States residents).
"Event of Default" means any of the occurrences set forth in Section 11.1
after the expiration of any applicable grace period and the giving of any
applicable notice, in each case as expressly provided in Section 11.1.
"Existing Permitted Liens" means each of the Liens set forth on Schedule
1.1.1 hereto.
"FAD" means "funds available for distribution" and shall mean, for any
period, FFO less (i) Capital Expenditures, for such period, whether payable or
accrued as a liability, (ii) adjustments to account for rents on an accrual
(rather than GAAP) basis for such period, and (iii) free rent and accrued rent
with respect to tenants that are more than 90 days in arrears in the payment of
rent for such period.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such day (or, if such
day is not a Business Day in New York, New York, for the next preceding Business
Day) in New York, New York by the Federal Reserve Bank of New York, or if such
rate is not so published for any day which is a Business Day in New York, New
York, the average of the quotations for such day on transactions by the
Reference Bank, as determined by the Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve
System or any Governmental Authority succeeding to its functions.
"FFO" means "funds from operations" as defined in the National Association
of Real Estate Investment Trusts ("NAREIT") White Paper on Funds From Operations
as approved by the NAREIT Board of Governors on March 3, 1995.
"Financial Statements" means (i) quarterly and annual consolidated
statements of income and retained earnings, statements of cash flow, and balance
sheets, prepared in accordance with GAAP, consistently applied, and (ii) such
other financial statements of the Borrower, the Company and the other
Consolidated Businesses or Minority Holdings that the Company shall routinely
and regularly prepare and that the Arrangers or the Requisite Lenders may from
time to time reasonably request.
"Fiscal Year" means the fiscal year of the Company and the Borrower for
accounting and tax purposes, which shall be the 12-month period ending on
December 31 of each calendar year.
"Fitch" means Fitch IBCA, Inc. or any successor thereto.
"Fixed Charges" means, with respect to any fiscal period, the sum of (a)
Total Interest Expense and (b) the aggregate of all scheduled principal payments
on Total Outstanding Indebtedness according to GAAP made or required to be made
during such fiscal period for the Consolidated Businesses and Minority Holdings
(but excluding balloon payments of principal due upon the stated maturity of an
Indebtedness), and (c) the aggregate of all dividends incurred (whether paid or
accrued) on the Company's or any of its consolidated Subsidiaries' preferred
stock not owned by the Company or any of its Affiliates.
"Funding Date" means, with respect to any Loan, the date of funding of such
Loan.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the American Institute of Certified Public
Accountants' Accounting Principles Board and Financial Accounting Standards
Board or in such other statements by such other entity as may be in general use
by significant segments of the accounting profession as in effect on the Closing
Date (unless otherwise specified herein as in effect on another date or dates).
"General Partner" means the Company and any successor general partner(s) of
the Borrower.
"Governmental Approval" means all right, title and interest in
any existing or future certificates, licenses, permits, variances,
authorizations and approvals issued by any Governmental Authority having
jurisdiction with respect to any Project.
"Governmental Authority" means any nation or government, any
federal, state, local or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guaranty" means the Guaranty Agreement, dated as of the date hereof, made
by the Borrower, the Company, Reckson FS Limited Partnership, RMIT and Xxxxxxx
Xxxxxx Industrial Interim GP LLC for the benefit of the Lenders.
"Improvements" means all buildings, fixtures, structures, parking areas,
landscaping and all other improvements whether existing now or hereafter
constructed, together with all machinery and mechanical, electrical, HVAC and
plumbing systems presently located thereon and used in the operation thereof,
excluding (a) any such items owned by utility service providers, (b) any such
items owned by tenants or other third-parties unaffiliated with the Borrower and
(c) any items of personal property.
"Indebtedness", as applied to any Person, means, at any time, without
duplication, (a) all indebtedness, obligations or other liabilities of such
Person (whether consolidated or representing the proportionate interest in any
other Person) (i) for borrowed money (including construction loans) or evidenced
by debt securities, debentures, acceptances, notes or other similar instruments,
and any accrued interest and fees relating thereto, (ii) under profit payment
agreements or in respect of obligations to redeem, repurchase or exchange any
Securities of such Person or to pay dividends in respect of any preferred stock
(but only to the extent that such Person shall be contractually obligated to pay
the same), (iii) with respect to letters of credit issued for such Person's
account, (iv) to pay the deferred purchase price of property or services, except
accounts payable and accrued expenses arising in the ordinary course of
business, (v) in respect of Capital Leases, (vi) which are Contingent
Obligations or (vii) under indemnities but only at such time as a claim shall
have been made thereunder; (b) all indebtedness, obligations or other
liabilities of such Person or others secured by a Lien on any property of such
Person, whether or not such indebtedness, obligations or liabilities are assumed
by such Person, all as of such time; (c) all indebtedness, obligations or other
liabilities of such Person in respect of interest rate contracts and foreign
exchange contracts, net of liabilities owed to such Person by the counterparties
thereon; (d) all preferred stock subject (upon the occurrence of any contingency
or otherwise) to mandatory redemption; and (e) all Contractual Obligations with
respect to any of the foregoing.
"Indemnified Matters" has the meaning set forth in Section 14.3.
"Indemnitees" has the meaning set forth in Section 14.3.
"Initial Funding Date" means the date on or after the Closing Date, on
which all of the conditions described in Section 6.1 have been satisfied (or
waived) in a manner satisfactory to the Administrative Agent and the Lenders and
on which the initial Loans under this Agreement are made by the Lenders to the
Borrower.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
to the date hereof and from time to time hereafter, any successor statute and
any regulations or guidance promulgated thereunder.
"Investment" means, with respect to any Person, (i) any purchase or other
acquisition by that Person of Securities, or of a beneficial interest in
Securities, issued by any other Person, (ii) any purchase by that Person of all
or substantially all of the assets of a business conducted by another Person,
(iii) any loan, advance (other than deposits with financial institutions
available for withdrawal on demand, prepaid expenses, accounts receivable,
advances to employees and similar items made or incurred in the ordinary course
of business) or capital contribution by that Person to any other Person,
including all Indebtedness to such Person arising from a sale of property by
such Person other than in the ordinary course of its business, and (iv) any
purchase or other acquisition by that Person of Real Property, whether directly
or indirectly. The amount of any Investment shall be the original cost of such
Investment, without any adjustments for increases or decreases in value or
write-ups, write-downs or write-offs with respect to such Investment.
"Investment Fund" means (i) Reckson Strategic Venture Partners LLC, and
(ii) a Person in which Reckson Service Industries Inc. or a Subsidiary thereof
is a general partner or a managing member, in the case of a partnership or
limited liability company, and which, in the case of a corporation, has the
right to elect a majority of the board of directors.
"Investment Grade Rating" means a rating for a Person's senior long-term
unsecured debt of BBB or better from S&P, and a rating of Baa3 or better from
Moody's or a rating equivalent to the foregoing from either Duff & Xxxxxx or
Fitch.
"Invitation for Competitive Bid Quotes" means an Invitation for Competitive
Bid Quotes substantially in the form of Exhibit I hereto.
"IRS" means the Internal Revenue Service and any Person succeeding to the
functions thereof.
"Issuing Bank" means Chase and UBS and such alternative Lender selected to
issue a Letter of Credit pursuant to Section 3.1(c)(ii) hereof.
"knowledge" with reference to the Company, the Borrower, RMOP or any
Subsidiary of any of them, means the actual knowledge of such Person after
reasonable inquiry (which reasonable inquiry shall include, without limitation,
interviewing and questioning such other Persons as the Company, the Borrower,
RMOP or such Subsidiary, as applicable, deems reasonably necessary).
"Lease" means a lease, license, concession agreement or other agreement
providing for the use or occupancy of any portion of any Project, including all
amendments, supplements, modifications and assignments thereof and all side
letters or side agreements relating thereto.
"Lender" means (i) each of the Arrangers, the Administrative Agent, the
Syndication Agent, the Documentation Agent, and each financial institution a
signatory hereto as a Lender as of the Closing Date and, at any other given
time, each financial institution which is a party hereto as a Arranger,
Administrative Agent, Syndication Agent, Documentation Agent or Lender, whether
as a signatory hereto or pursuant to an Assignment and Acceptance, and
regardless of the capacity in which such entity is acting (i.e. whether as
Administrative Agent, Syndication Agent, Documentation Agent, Arranger, or
Lender), and (ii) each Designated Bank; provided, however, that the term
"Lender" shall exclude each Designated Bank when used in reference to a
Committed Loan, the Revolving Credit Commitments or terms relating to the
Committed Loans and the Revolving Credit Commitments and shall further exclude
each Designated Bank for all other purposes hereunder except that any Designated
Bank which funds a Competitive Bid Loan shall, subject to Section 14.1(f), have
the rights (including, without limitation, the rights given to a Lender
contained in Section 14.2 and otherwise in Article XIV) and obligations of a
Lender associated with holding such Competitive Bid Loan.
"Letter of Credit" means any Commercial Letter of Credit or Standby Letter
of Credit.
"Letter of Credit Fee" has the meaning set forth in Section 5.3(a).
"Letter of Credit Obligations" means, at any particular time, the sum of
(i) all outstanding Reimbursement Obligations, and (ii) the aggregate undrawn
face amount of all outstanding Letters of Credit, and (iii) the aggregate face
amount of all Letters of Credit requested by the Borrower or RMOP but not yet
issued.
"Letter of Credit Reimbursement Agreement" means, with respect to a Letter
of Credit, such form of application therefor and form of reimbursement agreement
therefor (whether in a single or several documents, taken together) as an
Issuing Bank may employ in the ordinary course of business for its own account,
with such modifications thereto as may be agreed upon by such Issuing Bank and
the Borrower and as are not materially adverse (in the judgment of such Issuing
Bank and the Administrative Agent) to the interests of the Lenders; provided,
however, in the event of any conflict between the terms of any Letter of Credit
Reimbursement Agreement and this Agreement, the terms of this Agreement shall
control.
"Leverage Ratio" means the ratio, expressed as a percentage, of the Total
Outstanding Indebtedness to the Total Value.
"Liabilities and Costs" means all liabilities, obligations,
responsibilities, losses, damages, personal injury, death, punitive damages,
economic damages, consequential damages, treble damages, intentional, willful or
wanton injury, damage or threat to the environment, natural resources or public
health or welfare, costs and expenses (including, without limitation, attorney,
expert and consulting fees and costs of investigation, feasibility or Remedial
Action studies), fines, penalties and monetary sanctions, interest, direct or
indirect, known or unknown, absolute or contingent, past, present or future.
"LIBOR Auction" means a solicitation of Competitive Bid Quotes
setting forth Competitive Bid Margins based on the Eurodollar Rate pursuant to
Section 2.2.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, conditional sale agreement, deposit arrangement,
security interest, encumbrance, lien (statutory or other and including, without
limitation, any Environmental Lien), preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever in
respect of any property of a Person, whether granted voluntarily or imposed by
law, and includes the interest of a lessor under a Capital Lease or under any
financing lease having substantially the same economic effect as any of the
foregoing and the filing of any financing statement or similar notice (other
than a financing statement filed by a "true" lessor pursuant to ss. 9-408 of the
Uniform Commercial Code), naming the owner of such property as debtor, under the
Uniform Commercial Code or other comparable law of any jurisdiction.
"Limited Partners" means those Persons who from time to time are limited
partners of the Borrower or RMOP, as the case may be; and "Limited Partner"
means each of the Limited Partners, individually.
"Loan Account" has the meaning set forth in Section 4.3(b).
"Loan Documents" means this Agreement, the Notes and the Guaranty.
"Loans" means Committed Loans and Competitive Bid Loans.
"Management Company" means, collectively (i) Reckson Management Group,
Inc., a Delaware corporation, and its wholly-owned or controlled Subsidiaries
and (ii) such other property management companies controlled (directly or
indirectly) by the Company or the Borrower and which property management
companies manage properties owned by the Company, the Borrower and its
Subsidiaries and for which the Borrower has previously provided the
Administrative Agent with: (1) notice of such property management company, (2)
evidence reasonably satisfactory to the Administrative Agent that such property
management company is controlled (directly or indirectly) by the Company or the
Borrower, and (3) evidence reasonably satisfactory to the Administrative Agent
that such property management company manages properties owned, in whole or in
part by the Company or the Borrower or its Subsidiaries.
"Margin Stock" means "margin stock" as such term is defined in Regulation
U.
"Material Adverse Effect" means a material adverse effect upon (i) the
financial condition or assets of the Company, the Borrower, RMOP and their
Subsidiaries taken as a whole, (ii) the ability of the Borrower to perform its
material obligations under the Loan Documents, (iii) the ability of the Company,
Reckson FS Limited Partnership, RMIT or Xxxxxxx Xxxxxx Industrial Interim GP LLC
to perform its material obligations under the Guaranty, or (iv) the ability of
the Lenders or the Administrative Agent to enforce any of the Loan Documents.
"Maximum Revolving Credit Amount" means, at any particular time, the Revolving
Credit Commitments at such time.
"Minority Holdings" means any interests in partnerships, joint ventures,
limited liability companies, trusts, associations and corporations held or owned
directly or indirectly by the Borrower and/or the Company which are not
wholly-owned by the Borrower and/or the Company.
"Moody's" means Xxxxx'x Investor Services, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years
was, contributed to by either the Borrower or any ERISA Affiliate or in respect
of which the Borrower or any ERISA Affiliate has assumed any liability.
"Net Cash Proceeds" means all cash when and as received in connection with
the sale or refinancing of any asset, less reasonable costs and expenses,
repayment of secured indebtedness with respect to the applicable asset, and net
of an amount equal to taxable capital gains and real estate transfer taxes
payable in connection with any asset sale.
"Net Offering Proceeds" means all cash or other assets received by the
Company as a result of the sale of common shares, preferred shares, partnership
interests, limited liability company interests, convertible securities or other
ownership or equity interests in the Company, less customary costs, expenses and
discounts of issuance paid by the Company.
"NOI" means (x) net operating income determined in accordance with GAAP,
before gains or losses from extraordinary items relating to any Real Property,
plus (y) (i) any interest expense relating to such Real Property, (ii)
depreciation and amortization relating to such Real Property, and (iii) Property
Level G&A to the extent included in the calculation of net operating income,
less (z) (i) free rent and accrued rent with respect to tenants that are more
than 90 days in arrears in the payment of rent, and further adjusted to omit the
straight line treatment of rent, so as to account for rent on an accrual basis,
(ii) any interest income relating to such Real Property, and (iii) the greater
of Property Level G&A to the extent included in the calculation of net operating
income and an amount equal to 3% of gross revenues with respect to a Real
Property.
"Non Pro Rata Loan" has the meaning set forth in Section 4.2 (b)(v).
"Note" means the Borrower Notes, the RMOP Notes and the Designated Lender
Notes; "Notes" means, collectively, all of such Notes outstanding at any given
time.
"Notice of Borrowing" means a Notice of Committed Borrowing or a Notice of
Competitive Bid Borrowing.
"Notice of Committed Borrowing" means a notice substantially in the form of
Exhibit C attached hereto and made a part hereof.
"Notice of Conversion/Continuation" means a notice substantially in the
form of Exhibit D attached hereto and made a part hereof with respect to a
proposed conversion or continuation of a Loan pursuant to Section 5.1(c).
"Notice of Competitive Bid Borrowing" has the meaning set forth in Section
2.2(b).
"Obligations" means all Loans, advances, debts, liabilities
and monetary obligations owing by the Borrower or RMOP to the Administrative
Agent, the Syndication Agent, the Documentation Agent, any other Lender, or any
Person entitled to indemnification pursuant to Section 14.3 of this Agreement,
of any kind or nature, arising under this Agreement, the Notes or any other Loan
Document. The term includes, without limitation, all interest, charges,
reasonable expenses, fees, reasonable attorneys' fees and disbursements and any
other sum chargeable to the Borrower under this Agreement or any other Loan
Document.
"Officer's Certificate" means, as to a corporation, a certificate executed
on behalf of such corporation by the chairman of its board of directors (if an
officer of such corporation) or its chief executive officer, president, any of
its vice-presidents, its chief financial officer, or its treasurer and, as to a
partnership, a certificate executed on behalf of such partnership by the
chairman of the board of directors (if an officer of such corporation) or chief
executive officer, president, any vice-president, or treasurer of the general
partner of such partnership.
"Operating Account" has the meaning set forth in Section 9.11 hereof.
"Operating Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee which is not
a Capital Lease.
"Organizational Documents" means, with respect to any corporation, limited
liability company, or partnership (i) the articles/certificate of incorporation
(or the equivalent organizational documents) of such corporation or limited
liability company, (ii) the partnership agreement executed by the partners in
the partnership, (iii) the by-laws (or the equivalent governing documents) of
the corporation, limited liability company or partnership, and (iv) any document
setting forth the designation, amount and/or relative rights, limitations and
preferences of any class or series of such corporation's Capital Stock or such
limited liability company's or partnership's equity or ownership interests.
"OSHA" means the Occupational Safety and Health Act of 1970, 29 U.S.C.
xx.xx. 651 et seq., any amendments thereto, any successor statutes and any
regulations or guidance promulgated thereunder.
"Other Management Company" means property management companies controlled
(directly or indirectly) by the Company or the Borrower which may manage
properties owned by third parties.
"PBGC" means the Pension Benefit Guaranty Corporation and any Person
succeeding to the functions thereof.
"Permits" means any permit, consent, approval, authorization license,
variance, or permission required from any Person, including any Governmental
Approvals.
"Permitted Securities Options" means the subscriptions, options, warrants,
rights, convertible Securities and other agreements or commitments relating to
the issuance of the Borrower's Securities or the Company's Capital Stock
identified as such on Schedule 1.1.2.
"Person" means any natural person, corporation, limited liability company,
limited partnership, general partnership, joint stock company, joint venture,
association, company, trust, bank, trust company, land trust, business trust or
other organization, whether or not a legal entity, and any Governmental
Authority.
"Plan" means an employee benefit plan defined in Section 3(3) of ERISA in
respect of which the Borrower or any ERISA Affiliate (i) is, or within the
immediately preceding six (6) years was, an "employer" as defined in Section
3(5) of ERISA or (ii) has assumed or is otherwise subject to any liability.
"PNC" means PNC Bank, National Association
"Potential Event of Default" means an event which, with the giving of
notice or the lapse of time, or both, would constitute an Event of Default.
"Prepayment Date" has the meaning set forth in Section 4.1(d).
"Project" means any office or industrial properties owned, directly or
indirectly, by any of the Consolidated Businesses or Minority Holdings.
"Property" means any Real Property or personal property, plant, building,
facility, structure, equipment, general intangible, receivable, or other asset
owned or leased by any Consolidated Business or any Minority Holding. The
definition of "Property" shall specifically exclude items of Real Property or
personal property owned or leased by members of the Reckler family.
"Property Level G&A" means general and administrative expenses allocated to
the Properties.
"Pro Rata Share" means, with respect to any Lender, the percentage obtained
by dividing (i) the sum of such Lender's Revolving Credit Commitment (in each
case, as adjusted from time to time in accordance with the provisions of this
Agreement or any Assignment and Acceptance to which such Lender is a party) by
(ii) the aggregate amount of all of the Revolving Credit Commitments.
"Quarterly Capital Expenditure Reserve Amounts" means, as of the first day
of any calendar quarter for the immediately preceding quarter, one quarter of
the Capital Expenditure Reserve Amounts.
"RCRA" means the Resource Conservation and Recovery Act of 1976, 42 U.S.C.
xx.xx. 6901 et seq., any amendments thereto, any successor statutes, and any
regulations or guidance promulgated thereunder.
"Real Property" means all of the Borrower's, RMOP's and the consolidated
Subsidiaries' present and future right, title and interest (including, without
limitation, any leasehold estate) in (i) any plots, pieces or parcels of land,
(ii) any Improvements of every nature whatsoever (the rights and interests
described in clauses (i) and (ii) above being the "Premises"), (iii) all
easements, rights of way, gores of land or any lands occupied by streets, ways,
alleys, passages, sewer rights, water courses, water rights and powers, and
public places adjoining such land, and any other interests in property
constituting appurtenances to the Premises, or which hereafter shall in any way
belong, relate or be appurtenant thereto and (iv) all other rights and
privileges thereunto belonging or appertaining and all extensions, additions,
improvements, betterments, renewals, substitutions and replacements to or of any
of the rights and interests described in clause (iii) above.
"Reckson" means Reckson Operating Partnership, L.P., a Delaware limited
partnership.
"Recourse Secured Indebtedness Limitation" has the meaning set forth in
Section 10.11 hereof.
"Reference Bank" means Chase.
"Register" has the meaning set forth in Section 14.1(c).
"Regulation A" means Regulation A of the Federal Reserve Board
as in effect from time to time.
"Regulation T" means Regulation T of the Federal Reserve Board as in effect
from time to time.
"Regulation U" means Regulation U of the Federal Reserve Board as in effect
from time to time.
"Regulation X" means Regulation X of the Federal Reserve Board as in effect
from time to time.
"Reimbursement Date" has the meaning set forth in Section 3.1(d)(i)(A).
"Reimbursement Obligations" means the aggregate non-contingent
reimbursement or repayment obligations of the Borrower and RMOP with respect to
amounts drawn under Letters of Credit.
"REIT" means a domestic trust or corporation that qualifies as a real
estate investment trust under the provisions of Sections 856, et seq. of the
Internal Revenue Code.
"Release" means any release, spill, emission, leaking, pumping, pouring,
dumping, injection, deposit, disposal, abandonment, or discarding of barrels,
containers or other receptacles, discharge, emptying, escape, dispersal,
leaching or migration into the indoor or outdoor environment or into or out of
any Property, including the movement of Contaminants through or in the air,
soil, surface water, groundwater or Property.
"Remedial Action" means actions required to (i) clean up, remove, treat or
in any other way address Contaminants in the indoor or outdoor environment; (ii)
prevent the Release or threat of Release or minimize the further Release of
Contaminants; or (iii) investigate and determine if a remedial response is
needed and to design such a response and post-remedial investigation,
monitoring, operation and maintenance and care.
"Reportable Event" means any of the events described in Section 4043(c) of
ERISA and the regulations promulgated thereunder as in effect from time to time
but not including any such event as to which the thirty (30) day notice
requirement has been waived by applicable PBGC regulations.
"Requirements of Law" means, as to any Person, the charter and by-laws or
other organizational or governing documents of such Person, and any law, rule or
regulation, or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject including,
without limitation, the Securities Act, the Securities Exchange Act, Regulations
T, U and X, ERISA, the Fair Labor Standards Act, the Worker Adjustment and
Retraining Notification Act, Americans with Disabilities Act of 1990, and any
certificate of occupancy, zoning ordinance, building, environmental or land use
requirement or Permit and Environmental, Health or Safety Requirement of Law.
"Requisite Lenders" means Lenders whose Pro Rata Shares, in the aggregate,
are equal to or greater than sixty-six and two-thirds percent (66.67%);
provided, however, that, in the event any of the Lenders shall have failed to
fund its Pro Rata Share of any Loan requested by the Borrower which such Lenders
are obligated to fund under the terms of this Agreement and any such failure has
not been cured as provided in Section 4.2(b)(v)(B), then for so long as such
failure continues, "Requisite Lenders" means Lenders (excluding all Lenders
whose failure to fund their respective Pro Rata Shares of such Loans have not
been so cured) whose Pro Rata Shares represent sixty-six and two-thirds percent
(66.67%) or more of the aggregate Pro Rata Shares of such Lenders; provided,
further, however, that, in the event that the Revolving Credit Commitments have
been terminated pursuant to the terms of this Agreement, "Requisite Lenders"
means Lenders (without regard to such Lenders' performance of their respective
obligations hereunder) whose aggregate ratable shares (stated as a percentage)
of the aggregate outstanding principal balance of all Loans are sixty six and
two thirds percent (66.67%) or more.
"Revolving Credit Availability" means, at any particular time, the amount
by which the Maximum Revolving Credit Amount at such time exceeds the Revolving
Credit Obligations at such time.
"Revolving Credit Commitment" means with respect to any Lender, the
obligation of such Lender to make Committed Loans and to participate in Letters
of Credit pursuant to the terms and conditions of this Agreement, and which
shall not exceed the principal amount set forth opposite such Lender's name
under the heading "Revolving Credit Commitment" on the signature pages hereof or
the signature page of the Assignment and Acceptance by which it became a Lender,
as modified from time to time pursuant to the terms of this Agreement or to give
effect to any applicable Assignment and Acceptance, and "Revolving Credit
Commitments" means the aggregate principal amount of the Revolving Credit
Commitments of all the Lenders, the maximum amount of which shall be
$500,000,000 as reduced from time to time pursuant to Section 4.1.
"Revolving Credit Obligations" means, at any particular time, the sum of
(i) the outstanding principal amount of the Committed Loans at such time, plus
(ii) the Letter of Credit Obligations at such time, plus (iii) the outstanding
principal amount of the Competitive Bid Loans at such time.
"Revolving Credit Period" means the period from the Initial Funding Date to
the Business Day next preceding the Revolving Credit Termination Date.
"Revolving Credit Termination Date" means the earlier to occur of (i) July
23, 2001 (or, if not a Business Day, the next preceding Business Day); and (ii)
the date of termination of the Revolving Credit Commitments pursuant to the
terms of this Agreement.
"RMIT" means Xxxxxxx Xxxxxx Industrial Trust, a Maryland real estate
investment trust.
"RMOP" means Xxxxxxx Xxxxxx Operating Partnership, L.P., a Delaware limited
partnership.
"RMOP Note" has the meaning set forth in Section 4.3(a).
"RMOP Partnership Agreement"
"RMOP Revolving Credit Obligations" means, at any particular time the sum
of (i) the outstanding principal balance of the Committed Loans made to RMOP at
such time, (ii) the Letter of Credit Obligations at such time in respect of
Letters of Credit issued for the account of RMOP, plus (iii) the outstanding
principal balance of Competitive Bid Loans made to RMOP at such time.
"RMOP Share" means as of the date of determination the percentage obtained
by dividing (i) the sum of the RMOP Revolving Credit Obligations due and owing
by RMOP by (ii) the sum of all Revolving Credit Obligations due and owing
hereunder.
"S&P" means Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc.
"Secured Indebtedness" means any Indebtedness secured by a Lien.
"Secured Loan-to-Value Ratio" means, the ratio, expressed as a percentage,
of the aggregate amount of any Secured Indebtedness as of the date of the
determination to the value with respect to such Real Property encumbered thereby
as of such date, which value shall be determined by reference to the formula set
forth in the definition of "Total Value" with respect to each such Real
Property.
"Securities" means any stock, shares, voting trust certificates,
partnership interests, bonds, debentures, notes or other evidences of
indebtedness, secured or unsecured, convertible, subordinated or otherwise, or
in general any instruments commonly known as "securities", including, without
limitation, any "security" as such term is defined in Section 8-102 of the
Uniform Commercial Code, or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing, but shall not include the Notes or any other evidence of the
Obligations.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, and any successor statute.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"Servicing EBITDA" means, with respect to the Management Company or any
other service company owned by the Borrower or the Company, as of the first day
of each fiscal quarter for the immediately preceding fiscal quarter, an amount,
determined in accordance with GAAP, equal to (i) total earnings relating to such
companies' operations adjusted to exclude amounts that are more than 90 days
delinquent, less (ii) total operating expenses relating to such operations,
including corporate marketing, general and administrative expenses.
"Solvent", when used with respect to any Person, means that at the time of
determination:
(i) the fair saleable value of its assets is in excess of the total
amount of its liabilities (including, without limitation, contingent
liabilities); and
(ii) the present fair saleable value of its assets is greater than its
probable liability on its existing debts as such debts become
absolute and matured; and
(iii) it is then able and expects to be able to pay its debts (including,
without limitation, contingent debts and other commitments) as they
mature; and
(iv) it has capital sufficient to carry on its business as conducted and
as proposed to be conducted.
"Standby Letter of Credit" means any letter of credit issued by an Issuing
Bank pursuant to Section 3.1 for the account of the Borrower or RMOP, which is
not a Commercial Letter of Credit.
"Subsidiary" of a Person means any corporation, limited liability company,
general or limited partnership, or other entity of which securities or other
ownership interests having ordinary voting power to elect a majority of the
board of directors or other persons performing similar functions are at the time
directly or indirectly owned or controlled by such Person, one or more of the
other subsidiaries of such Person or any combination thereof.
"Taxes" has the meaning set forth in Section 13.1(a).
"Telerate Page 3750" means the display designated as "Page 3750" on the
Associated Press-Dow Xxxxx Market Service (or such other page as may replace
Page 3750 on the Associated Press-Dow Xxxxx Market Service or such other service
as may be nominated by the British Bankers' Association as the information
vendor for the purpose of displaying British Bankers' Association interest
settlement rates for U.S. Dollar deposits). Any Eurodollar Rate determined on
the basis of the rate displayed on Telerate Page 3750 in accordance with the
provisions hereof shall be displayed by the Associated Press-Dow Xxxxx Telerate
Service within one hour of the time when such rate is first displayed by such
service.
"Tenant Allowance" means a cash allowance paid to a tenant by the landlord
pursuant to a Lease.
"TI Work" means any construction or other "build-out" of tenant leasehold
improvements to the space demised to such tenant under Leases (excluding such
tenant's furniture, fixtures and equipment) performed pursuant to the terms of
such Leases, whether or not such tenant improvement work is performed by or on
behalf of the landlord or as part of a Tenant Allowance.
"Total Adjusted EBITDA" means, for any period, (i) net income determined in
accordance with GAAP, plus (ii) depreciation and amortization deducted in the
calculation of net income, plus (iii) taxes on income deducted in the
calculation of such net income, less (iv) the gains (and plus the losses) from
extraordinary items, asset sales, write-ups, or debt forgiveness included in the
calculation of such net income, less (v) the aggregate Quarterly Capital
Expenditure Reserve Amounts for such period.
"Total Interest Expense" means, for any period, the sum of (i) interest
expense of the Consolidated Businesses paid during such period and (ii) interest
expense of the Consolidated Businesses accrued and/or capitalized for such
period and (iii) the portion of the interest expense of Minority Holdings
allocable to the Borrower in accordance with GAAP and paid during such period
and (iv) the portion of the interest expense of Minority Holdings allocable to
the Borrower in accordance with GAAP and accrued and/or capitalized for such
period, in each case including participating interest expense but excluding
extraordinary interest expense, and net of amortization of deferred costs
associated with new financings or refinancings of existing Indebtedness.
"Total Outstanding Indebtedness" means, for any period, the sum of (i) the
amount of Indebtedness of the Consolidated Businesses set forth on the then most
recent quarterly financial statements of the Borrower, prepared in accordance
with GAAP, plus any additional Indebtedness incurred by the Consolidated
Businesses since the time of such statements, less any Indebtedness repaid by
the Consolidated Businesses since the time of such statements, and (ii) the
outstanding amount of Minority Holding Indebtedness set forth on the then most
recent quarterly financial statements of the Borrower or the applicable Minority
Holding, prepared in accordance with GAAP and allocable in accordance with GAAP
to any of the Consolidated Businesses, plus any additional Minority Holding
Indebtedness incurred by the Minority Holdings allocable in accordance with GAAP
to any of the Consolidated Businesses since the time of such statements, less
any Indebtedness repaid by the Minority Holdings allocable in accordance with
GAAP to any of the Consolidated Businesses since the time of such statements,
and (iii) the Contingent Obligations of the Consolidated Businesses and, to the
extent allocable to the Consolidated Businesses in accordance with GAAP, of the
Minority Holdings.
"Total Outstanding Indebtedness Limitation" has the meaning set forth in
Section 10.11 hereof.
"Total Secured Outstanding Indebtedness Limitation" has the meaning set
forth in Section 10.11 hereof.
"Total Unsecured Outstanding Indebtedness" means that portion of Total
Outstanding Indebtedness that is not secured by a Lien.
"Total Value" means (A) the sum of (i) Valuation NOI divided by 9.5%; (ii)
the Investment in office and industrial Projects owned by the Consolidated
Businesses for less than four fiscal quarters which have not achieved an
occupancy rate of 85% for one fiscal quarter; (iii) unrestricted Cash and Cash
Equivalents; (iv) land (at book value) and Construction Asset Cost, which credit
will be limited to fifteen percent (15%)(exclusive of build-to-suit Projects
that are 75% pre-leased or Projects which are less than 75% pre-leased but have
a pro-forma yield of 12% or more, based upon executed leases and the cost of
acquisition plus the estimated cost to complete the same, which estimated cost
to complete shall be determined in a manner reasonably acceptable to the
Administrative Agent and the Syndication Agent) of Total Value; (v) NOI not
otherwise set forth in this definition, divided by twelve percent (12%); (vi)
Servicing EBITDA of the Management Company or other such service companies for
the immediately preceding four consecutive quarters divided by twenty percent
(20%); and (vii) any investment in or loan to (based on the actual cash
investment in or loan to), directly or indirectly, an affiliated or unaffiliated
operating company and investments in or loans to Investment Funds either
directly or indirectly or joint venture arrangements with Investment Funds,
which credit will be limited to $250,000,000, less (B) the quotient of (x) the
Capital Expenditure Reserve Amounts for such period, divided by (y) 9.5%.
"Treasury Rate" means, as of any date, a rate equal to the annual yield to
maturity on the U.S. Treasury Constant Maturity Series with a ten year maturity,
as such yield is reported in Federal Reserve Statistical Release H.15 --
Selected Interest Rates, published most recently prior to the date the
applicable Treasury Rate is being determined. Such yield shall be determined by
straight line linear interpolation between the yields reported in Release H.15,
if necessary. In the event Release H.15 is no longer published, the
Administrative Agent shall select, in its reasonable discretion, an alternate
basis for the determination of Treasury yield for U.S. Treasury Constant
Maturity Series with ten year maturities.
"UBS" means UBS AG, New York Branch.
"Unencumbered Capital Expenditure Reserve Amounts" means, for any period,
the aggregate of Capital Expenditures Reserve Amounts with respect to Real
Property that is not subject to or encumbered by Secured Indebtedness.
"Uniform Commercial Code" means the Uniform Commercial Code as enacted in
the State of New York, as it may be amended from time to time.
"Unsecured Interest Expense" means the interest expense paid, accrued or
capitalized on the Total Unsecured Outstanding Indebtedness for the applicable
period.
"Unused Commitment Fee Percentage" means the applicable percentage per
annum determined, at any time, based on the range into which the Leverage Ratio
then falls, in accordance with the following table.
Leverage Ratio Percentage Fee
40% or less 0.15%
greater than 40% 0.20%
"Unused Facility" shall mean the amount, calculated daily, by which the
Revolving Credit Commitments exceed the sum of (i) the outstanding principal
amount of the Loans, plus (ii) the outstanding Reimbursement Obligations, plus
(iii) the aggregate undrawn face amount of all outstanding Letters of Credit.
"Valuation NOI" means, the sum of (x) with respect to any office or
industrial Project or any office or industrial Minority Holding, which has been
owned by the Borrower for not less than four consecutive quarters, as of the
first day of each fiscal quarter for the immediately preceding consecutive four
fiscal quarters, an amount equal to NOI relating to such Project or the
Borrower's pro rata share of such Minority Holding for such period, and (y) with
respect to any office or industrial Project or Minority Holding, which has been
owned by the Borrower for less than four consecutive quarters but which has
achieved an occupancy rate of not less than 85% for the immediately preceding
quarter (exclusive of projects under development), as of the first day of each
quarter until such time as such Project or Minority Holding shall qualify under
clause (x) hereof, an amount equal to the product of (i) the NOI relating to
such Project or the Borrower's pro rata share of such Minority Holding for the
immediately preceding quarter, and (ii) four (4). An example of the foregoing
calculation is set forth on Exhibit G hereto.
1.2. Computation of Time Periods. In this Agreement, in the computation of
periods of time from a specified date to a later specified date, the word "from"
means "from and including" and the words "to" and "until" each mean "to but
excluding". Periods of days referred to in this Agreement shall be counted in
calendar days unless Business Days are expressly prescribed. Any period
determined hereunder by reference to a month or months or year or years shall
end on the day in the relevant calendar month in the relevant year, if
applicable, immediately preceding the date numerically corresponding to the
first day of such period, provided that if such period commences on the last day
of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month during which such period is to end), such period
shall, unless otherwise expressly required by the other provisions of this
Agreement, end on the last day of the calendar month.
1.3. Accounting Terms. Subject to Section 14.4, for purposes of this
Agreement, all accounting terms not otherwise defined herein shall have the
meanings assigned to them in conformity with GAAP.
1.4. Other Terms. All other terms contained in this Agreement shall, unless
the context indicates otherwise, have the meanings assigned to such terms by the
Uniform Commercial Code to the extent the same are defined therein.
ARTICLE II
AMOUNTS AND TERMS OF LOANS
2.1. Committed Loans
(a) Availability. Subject to the terms and conditions set forth in this
Agreement, each Lender hereby severally and not jointly agrees to make revolving
loans, in Dollars (each individually, a "Committed Loan" and, collectively, the
"Committed Loans") to the Borrower and RMOP from time to time during the
Revolving Credit Period, in an amount not to exceed such Lender's Pro Rata Share
of the Revolving Credit Availability at such time. The aggregate amount of Loans
to be made hereunder together with the Letter of Credit Obligations with respect
to the Borrower and RMOP, shall not exceed Five Hundred Million Dollars
($500,000,000); provided that the aggregate amount of Loans to be made hereunder
together with the Letter of Credit Obligations with respect to RMOP shall not
exceed One Hundred Million Dollars ($100,000,000). All Committed Loans
comprising the same Borrowing under this Agreement shall be made by the Lenders
simultaneously and proportionately to their then respective Pro Rata Shares, it
being understood that no Lender shall be responsible for any failure by any
other Lender to perform its obligation to make a Committed Loan hereunder nor
shall the Revolving Credit Commitment of any Lender be increased or decreased as
a result of any such failure. Subject to the provisions of this Agreement, the
Borrower and/or RMOP may repay any outstanding Committed Loan on any day which
is a Business Day and any amounts so repaid may be reborrowed, up to the amount
available under this Section 2.1(a) at the time of such Borrowing, until the
Business Day next preceding the Revolving Credit Termination Date. Each
requested Borrowing of Committed Loans funded on any Funding Date shall be in a
principal amount of at least $3,000,000 and with integral multiples of $500,000;
provided, however, that if the aggregate Revolving Credit Commitments
outstanding at the time of such requested Borrowing is less than $3,000,000,
then the requested Borrowing shall be for the total amount of such outstanding
aggregate Revolving Credit Commitments.
(b) Notice of Borrowing. When the Borrower or RMOP desires to borrow under
this Section 2.1, the Borrower shall deliver to the Administrative Agent a
Notice of Borrowing, signed by it (x) no later than 12:00 noon (New York time)
on the Business Day immediately preceding the proposed Funding Date, in the case
of a Borrowing of Base Rate Loans and (y) no later than 11:00 a.m. (New York
time) at least three (3) Business Days in advance of the proposed Funding Date,
in the case of a Borrowing of Eurodollar Rate Loans; provided, however, that no
more than two (2) Borrowings may be made within any five (5) Business Day
period. Such Notice of Borrowing shall specify (i) the proposed Funding Date
(which shall be a Business Day), (ii) the amount of the proposed Borrowing,
(iii) the Revolving Credit Availability as of the date of such Notice of
Borrowing, (iv) whether the proposed Borrowing will be of Base Rate Loans or
Eurodollar Rate Loans, (v) in the case of Eurodollar Rate Loans, the requested
Eurodollar Interest Period, (vi) instructions for the disbursement of the
proceeds of the proposed Borrowing, (vii) an Officer's Certificate of the
Borrower with respect to compliance with (including calculation thereof)
Sections 10.11(a) and 10.11(e), (viii) whether the Base Rate Loans and/or
Eurodollar Rate Loans shall be attributable to the Borrower or RMOP, and if
attributable in part to each, the portions attributable to the Borrower or RMOP,
and (ix) that no Event of Default shall have occurred and be outstanding. Any
Notice of Borrowing (or telephonic notice in lieu thereof) given pursuant to
this Section 2.1(b) shall be irrevocable.
(c) Making of Loans. Promptly after receipt of a Notice of Borrowing under
Section 2.1(b), the Administrative Agent shall notify each Lender by facsimile
transmission, or other similar form of transmission, of the proposed Borrowing
(which notice to the Lenders, in the case of a Borrowing of Eurodollar Rate
Loans, shall be at least three (3) Business Days in advance of the proposed
Funding Date for such Loans). Each Lender shall deposit an amount equal to its
Pro Rata Share of the Borrowing requested by the Borrower with the
Administrative Agent at its office in New York, New York, in immediately
available funds, not later than 12:00 noon. (New York time) on the respective
Funding Date therefor. Subject to the fulfillment of the conditions precedent
set forth in Section 6.1 or Section 6.2, as applicable, the Administrative Agent
shall make the proceeds of such amounts received by it available to the Borrower
at the Administrative Agent's office in New York, New York on such Funding Date
(or on the date received if later than such Funding Date) and shall disburse
such proceeds in accordance with the Borrower's disbursement instructions set
forth in the applicable Notice of Borrowing. The failure of any Lender to
deposit the amount described above with the Administrative Agent on the
applicable Funding Date shall not relieve any other Lender of its obligations
hereunder to make its Loan on such Funding Date. In the event the conditions
precedent set forth in Section 6.1 or 6.2 are not fulfilled as of the proposed
Funding Date for any Borrowing, the Administrative Agent shall promptly return,
by wire transfer of immediately available funds, the amount deposited by each
Lender to such Lender.
(ii) Unless the Administrative Agent shall have been notified by any Lender
on the Business Day immediately preceding the applicable Funding Date in respect
of any Borrowing that such Lender does not intend to fund its Loan requested to
be made on such Funding Date, the Administrative Agent may assume that such
Lender has funded its Loan and is depositing the proceeds thereof with the
Administrative Agent on the Funding Date therefor, and the Administrative Agent
in its sole discretion may, but shall not be obligated to, disburse a
corresponding amount to the Borrower or RMOP on the applicable Funding Date. If
the Loan proceeds corresponding to that amount are advanced to the Borrower or
RMOP by the Administrative Agent but are not in fact deposited with the
Administrative Agent by such Lender on or prior to the applicable Funding Date,
such Lender agrees to pay, and in addition the Borrower or RMOP as the case may
be, agrees to repay, to the Administrative Agent forthwith on demand such
corresponding amount, together with interest thereon, for each day from the date
such amount is disbursed to or for the benefit of the Borrower or RMOP, as the
case may be, until the date such amount is paid or repaid to the Administrative
Agent, at the interest rate applicable to such Borrowing. If such Lender shall
pay to the Administrative Agent the corresponding amount, the amount so paid
shall constitute such Lender's Loan, and if both such Lender and the Borrower or
RMOP shall pay and repay such corresponding amount, the Administrative Agent
shall promptly pay to the Borrower such corresponding amount. This Section
2.1(c)(ii) does not relieve any Lender of its obligation to make its Loan on any
applicable Funding Date.
2.2. Competitive Bid Loans.
(a) The Competitive Bid Option. From and after the Adjustment Date and for
so long as the Borrower shall maintain an Investment Grade Rating, from time to
time during the Revolving Credit Period, the Borrower or RMOP may, as set forth
in this Section 2.2, request the Lenders during the Revolving Credit Period to
make offers to make Competitive Bid Loans to the Borrower or RMOP (a
"Competitive Bid Quote Request"), not to exceed, at such time, the lesser of (i)
$250,000,000 (which amount shall be decreased by an amount equal to 50% of any
decrease in the Commitments pursuant to Sections 4.1(b) or (d)),and (ii) the
Revolving Credit Availability. Subject to the provisions of this Agreement, the
Borrower or RMOP may repay any outstanding Competitive Bid Loan on any day which
is a Business Day and any amounts so repaid may be reborrowed, up to the amount
available under this Section 2.2(a) at the time of such Borrowing, until the
Business Day next preceding the Revolving Credit Termination Date. The Lenders
may, but shall have no obligation to, make such offers and the Borrower or RMOP
may, but shall have no obligation to, accept any such offers in the manner set
forth in this Section 2.2.
(b) Competitive Bid Quote Request. When the Borrower or RMOP wishes to
request offers to make Competitive Bid Loans under this Section, the Borrower
shall transmit to the Administrative Agent by telex or facsimile transmission a
Competitive Bid Quote Request substantially in the form of Exhibit H hereto so
as to be received not later than 10:30 A.M. (New York City time) on the fifth
(5th) Business Day prior to the date of Borrowing proposed therein (or such
other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Lenders not later than the date
of the Competitive Bid Quote Request for the first LIBOR Auction for which such
change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a Business Day,
(ii) the aggregate amount of such Borrowing, which shall be $20,000,000 or
a larger multiple of $1,000,000,
(iii) the duration of the Eurodollar Interest Period applicable thereto,
subject to the provisions of Section 5.2(b),
(iv) the amount of all Competitive Bid Loans then outstanding (which,
together with the requested Borrowing shall not exceed, in the aggregate, the
lesser of $250,000,000 (which amount shall be decreased by an amount equal to
50% of any decrease in the Commitments pursuant to Sections 4.1(b) or (d)) or
the Revolving Credit Availability), and
(v) whether the Competitive Bid Loans shall be attributable to the Borrower
or RMOP, and if attributable in part to each, the portions attributable to the
Borrower or RMOP.
The Borrower may request offers to make Competitive Bid Loans for more than
one Eurodollar Interest Period in a single Competitive Bid Quote Request.
Borrower may not make more than two (2) Competitive Bid Quote Requests whether
for its account or the account of RMOP in any thirty-day Eurodollar Interest
Period.
(c) Invitation for Competitive Bid Quotes. Promptly upon receipt of a
Competitive Bid Quote Request, the Administrative Agent shall send to the
Lenders by telex or facsimile transmission an Invitation for Competitive Bid
Quotes substantially in the form of Exhibit I hereto, which shall constitute an
invitation by the Borrower to each Lender to submit Competitive Bid Quotes
offering to make the Competitive Bid Loans to which such Competitive Bid Quote
Request relates in accordance with this Section.
(d) Submission and Contents of Competitive Bid Quotes. Each Lender may
submit a Competitive Bid Quote containing an offer or offers to make Competitive
Bid Loans in response to any Invitation for Competitive Bid Quotes. Each
Competitive Bid Quote must comply with the requirements of this subsection (d)
and must be submitted to the Administrative Agent by telex or facsimile
transmission not later than 1:00 P.M. (New York City time) on the fourth (4th)
Business Day prior to the proposed date of Borrowing, in the case of a LIBOR
Auction (or such other time or date as the Borrower and the Administrative Agent
shall have mutually agreed and shall have notified the Lenders not later than
the date of the Competitive Bid Quote Request for the first LIBOR Auction for
which such change is to be effective); provided that Competitive Bid Quotes
submitted by the Administrative Agent (or any affiliate of the Administrative
Agent) in the capacity of a Lender 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 one hour prior to the
deadline for the other Lenders, in the case of a LIBOR Auction. Any Competitive
Bid Quote so made shall be irrevocable except with the written consent of the
Administrative Agent given on the instructions of the Borrower. Competitive Bid
Loans to be funded pursuant to a Competitive Bid Quote may, as provided in
Section 14.1(f), be funded by a Lender's Designated Bank. A Lender making a
Competitive Bid Quote may, but shall not be required to, specify in its
Competitive Bid Quote whether the related Competitive Bid Loans are intended to
be funded by such Lender's Designated Bank, as provided in Section 14.1(f).
(ii) Each Competitive Bid Quote shall be in substantially the form of
Exhibit J hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Competitive Bid Loan for which each such
offer is being made, which principal amount (w) may be greater than or less than
the Revolving Credit Commitment of the quoting Lender, (x) must be $5,000,000 or
a larger multiple of $1,000,000 (or, if the Revolving Credit Availability then
is less than $5,000,000, such lesser amount), (y) may not exceed the principal
amount of Competitive Bid Loans for which offers were requested and (z) may be
subject to an aggregate limitation as to the principal amount of Competitive Bid
Loans for which offers being made by such quoting Lender may be accepted,
(C) either (1) the margin above or below the applicable Eurodollar Rate
(the "Competitive Bid Margin") offered for each such Competitive Bid Loan,
expressed as a percentage (specified to the nearest 1/10,000th of 1%) to be
added to or subtracted from such base rate, or (2) a flat rate of interest
(each, a "Competitive Bid Rate") offered for each Competitive Bid Loan, and
(D) the identity of the quoting Lender.
A Competitive Bid Quote may set forth up to five separate offers by the
quoting Lender with respect to each Eurodollar Interest Period specified in the
related Invitation for Competitive Bid Quotes.
(iii) Any Competitive Bid Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit J hereto or does not
specify all of the information required by subsection (d)(ii) above;
(B) proposes terms other than or in addition to those set forth in the
applicable Invitation for Competitive Bid Quotes; or
(C) arrives after the time set forth in subsection (d)(i).
(e) Notice to Borrower. The Administrative Agent shall promptly notify the
Borrower, of the terms (x) of any Competitive Bid Quote submitted by a Lender
that is in accordance with subsection (d) and (y) of any Competitive Bid Quote
that amends, modifies or is otherwise inconsistent with a previous Competitive
Bid Quote submitted by such Lender with respect to the same Competitive Bid
Quote Request. Any such subsequent Competitive Bid Quote shall be disregarded by
the Administrative Agent unless such subsequent Competitive Bid Quote is
submitted solely to correct a manifest error in such former Competitive Bid
Quote. The Administrative Agent's notice to the Borrower shall specify (A) the
aggregate principal amount of Competitive Bid Loans for which offers have been
received for each Interest Period specified in the related Competitive Bid Quote
Request, (B) the principal amounts and Competitive Bid Margin or Competitive Bid
Rate, as the case may be, so offered and (C) if applicable, limitations on the
aggregate principal amount of Competitive Bid Loans for which offers in any
single Competitive Bid Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 5:00 P.M. (New York
City time) on the fourth (4th) Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction (or such other time or date as the
Borrower and the Administrative Agent shall have mutually agreed and shall have
notified the Lenders not later than the date of the Competitive Bid Quote
Request for the first LIBOR Auction for which such change is to be effective),
the Borrower shall telephonically notify the Administrative Agent of its
acceptance or non-acceptance of the offers so notified to it pursuant to
subsection (e), and the Borrower shall confirm such telephonic notification in
writing not later than the third Business Day prior to the proposed date of
Borrowing. In the case of acceptance, such notice (a "Notice of Competitive Bid
Borrowing"), whether telephonic or in writing, shall specify the aggregate
principal amount of offers for each Eurodollar Interest Period that are
accepted. The Borrower may accept any Competitive Bid Quote in whole or in part;
provided that:
(i) the aggregate principal amount of each Competitive Bid Rate Borrowing
may not exceed the applicable amount set forth in the related Competitive Bid
Quote Request;
(ii) the principal amount of each Competitive Bid Rate Borrowing must be
$20,000,000 or a larger multiple of $1,000,000 (or, if the Revolving Credit
Availability then is less than $20,000,000, such lesser amount);
(iii) acceptance of offers may only be made on the basis of ascending
Competitive Bid Quotes;
(iv) the Borrower may not accept any offer that is described in subsection
or that otherwise fails to comply with the requirements of this Agreement; and
(v) the Borrower shall specify whether the Competitive Bid Loans shall be
allocated to RMOP or the Borrower or any combination thereof.
(g) Allocation by Administrative Agent. If offers are made by two or more
Lenders with the same Competitive Bid Margins and/or Competitive Bid Rates, for
a greater aggregate principal amount than the amount in respect of which such
offers are accepted for the related Eurodollar Interest Period, the principal
amount of Competitive Bid Loans in respect of which such offers are accepted
shall be allocated by the Administrative Agent among such Lenders 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;
provided, that the principal amount of such Competitive Bid Loans shall be
allocated among such Lenders in ascending order from those subject to the lowest
Competitive Bid Margin and/or Competitive Bid Rate to those subject to the
highest Competitive Bid Margin and/or Competitive Bid Rate, as applicable to
provide to the Borrower or RMOP the lowest effective cost based on offers
accepted. Determinations by the Administrative Agent of the amounts of
Competitive Bid Loans shall be conclusive in the absence of manifest error. The
Administrative Agent shall notify the Borrower of all offers.
(h) Notification by Administrative Agent. Upon receipt of the Borrower's
Notice of Competitive Bid Borrowing in accordance with Section 2.2(f) hereof,
the Administrative Agent shall, on the date such Notice of Competitive Bid
Borrowing is received by the Administrative Agent, notify each Lender of the
principal amount of the Competitive Bid Rate Borrowing accepted by the Borrower
and of such Lender's share (if any) of such Competitive Bid Rate Borrowing and
such Notice of Competitive Bid Borrowing shall not thereafter be revocable by
the Borrower or RMOP. A Lender who is notified that it has been selected to make
a Competitive Bid Loan may designate its Designated Bank (if any) to fund such
Competitive Bid Loan on its behalf, as described in Section 14.1(f). Any
Designated Bank which funds a Competitive Bid Loan shall on and after the time
of such funding become the obligee under such Competitive Bid Loan and be
entitled to receive payment thereof when due. No Lender shall be relieved of its
obligation to fund a Competitive Bid Loan, and no Designated Bank shall assume
such obligation, prior to the time the applicable Competitive Bid Loan is
funded.
2.3. Use of Proceeds of Loans and Letters of Credit. The proceeds of the
Loans and the Letters of Credit issued for the account of the Borrower or RMOP
hereunder may be used for the purposes of:
(a) investments in direct or indirect interests in industrial and office
properties (and notes secured by such properties) located in the United States;
(b) renovation and redevelopment of Properties owned and operated by the
Borrower or RMOP;
(c) funding of TI Work and Tenant Allowances;
(d) financing expansions, renovations and new construction related to
Properties owned and operated by the Borrower or RMOP;
(e) refinancing of existing Indebtedness for borrowed money secured by
Projects;
(f) funding, directly or indirectly, of investments in and loans to
Investment Funds, Reckson Service Industries Inc., Subsidiaries, Affiliates and
Minority Holdings;
(g) working capital needs of the Borrower and RMOP; and
(h) loans to Persons in connection with such Person's contribution of real
property to the Consolidated Businesses or Minority Holdings.
2.4. Revolving Credit Termination Date; Maturity of Competitive Bid Loans.
(a) The Revolving Credit Commitments shall terminate, and all outstanding
Revolving Credit Obligations shall be paid in full (or, in the case of unmatured
Letter of Credit Obligations, provision for payment in cash shall be made to the
satisfaction of the Issuing Banks actually issuing Letters of Credit and the
Requisite Lenders), on the Revolving Credit Termination Date. Each Lender's
obligation to make Loans shall terminate on the Business Day next preceding the
Revolving Credit Termination Date.
(b) Each Competitive Bid Loan included in any Competitive Bid Rate
Borrowing shall mature, and the principal amount thereof shall be due and
payable, together with the accrued interest thereon, on the last day of the
Eurodollar Interest Period applicable to such Borrowing.
2.5. Maximum Credit Facility. Notwithstanding anything in this Agreement to
the contrary, in no event shall the aggregate principal Revolving Credit
Obligations exceed the Maximum Revolving Credit Amount.
2.6. Authorized Agents. On the Closing Date and from time to time
thereafter, the Borrower shall deliver to the Administrative Agent an Officer's
Certificate setting forth the names of the employees and agents authorized to
request Loans and Letters of Credit and to request a conversion/continuation of
any Loan and containing a specimen signature of each such employee or agent. The
employees and agents so authorized shall also be authorized to act for the
Borrower and RMOP in respect of all other matters relating to the Loan
Documents. The Administrative Agent, the Documentation Agent, the Syndication
Agent, the Arrangers, the Lenders and any Issuing Bank shall be entitled to rely
conclusively on such employee's or agent's authority to request such Loan or
Letter of Credit or such conversion/continuation until the Administrative Agent
and the Arrangers receive written notice to the contrary. None of the
Administrative Agent or the Arrangers shall have any duty to verify the
authenticity of the signature appearing on any written Notice of Borrowing or
Notice of Conversion/Continuation or any other document, and, with respect to an
oral request for such a Loan or Letter of Credit or such
conversion/continuation, the Administrative Agent and the Arrangers shall have
no duty to verify the identity of any person representing himself or herself as
one of the employees or agents authorized to make such request or otherwise to
act on behalf of the Borrower or RMOP. None of the Administrative Agent, the
Arrangers or the Lenders shall incur any liability to the Borrower or RMOP or
any other Person in acting upon any telephonic or facsimile notice referred to
above which the Administrative Agent or the Arrangers believes to have been
given by a person duly authorized to act on behalf of the Borrower and the
Borrower and RMOP each hereby indemnifies and holds harmless the Administrative
Agent, each Arranger and each other Lender from any loss or expense the
Administrative Agent, the Arrangers or the Lenders might incur in acting in good
faith as provided in this Section 2.6; provided, however, that Borrower and RMOP
shall not indemnify the applicable party for acts resulting from its own gross
negligence or wilful misconduct.
ARTICLE III
LETTERS OF CREDIT
3.1. Letters of Credit. Subject to the terms and conditions set forth in
this Agreement, including, without limitation, Section 3.1(c)(ii), each Issuing
Bank hereby severally agrees to issue for the account of the Borrower or RMOP
one or more Letters of Credit, subject to the following provisions:
(a) Types and Amounts. An Issuing Bank shall not have any obligation to
issue, amend or extend, and shall not issue, amend or extend, any Letter of
Credit at any time:
(i) if the aggregate Letter of Credit Obligations with respect to
such Issuing Bank, after giving effect to the issuance, amendment
or extension of the Letter of Credit requested hereunder, shall
exceed any limit imposed by law or regulation upon such Issuing
Bank;
(ii) if, immediately after giving effect to the issuance, amendment or
extension of such Letter of Credit, (1) the Letter of Credit
Obligations at such time would exceed $50,000,000 or (2) the
Revolving Credit Obligations at such time would exceed the
Maximum Revolving Credit Amount at such time, or (3) one or more
of the conditions precedent contained in Sections 6.1 or 6.2, as
applicable, would not on such date be satisfied, unless such
conditions are thereafter satisfied and written notice of such
satisfaction is given to such Issuing Bank by the Administrative
Agent (and such Issuing Bank shall not otherwise be required to
determine that, or take notice whether, the conditions precedent
set forth in Sections 6.1 or 6.2, as applicable, have been
satisfied);
(iii)which has an expiration date later than the earlier of (A) the
date one (1) year after the date of issuance (without regard to
any automatic renewal provisions thereof) or (B) the Business Day
next preceding the scheduled Revolving Credit Termination Date;
or
(iv) which is in a currency other than Dollars.
(b) Conditions. In addition to being subject to the satisfaction of the
conditions precedent contained in Sections 6.1 and 6.2, as applicable, the
obligation of an Issuing Bank to issue, amend or extend any Letter of Credit is
subject to the satisfaction in full of the following conditions:
(i) if the Issuing Bank so requests, the Borrower or RMOP shall
have executed and delivered to such Issuing Bank and the
Administrative Agent a Letter of Credit Reimbursement Agreement and
such other documents and materials as may be required pursuant to the
terms thereof; and
(ii) the terms of the proposed Letter of Credit shall be
satisfactory to the Issuing Bank in its sole discretion.
(c) Issuance of Letters of Credit. (i) The Borrower shall give the
Administrative Agent written notice that it requires the issuance a Letter of
Credit not later than 11:00 a.m. (New York time) on the third (3rd) Business Day
preceding the requested date for issuance thereof under this Agreement. Such
notice shall be irrevocable unless and until such request is denied by the
Issuing Bank and shall specify (A) that the requested Letter of Credit is either
a Commercial Letter of Credit or a Standby Letter of Credit, (B) the stated
amount of the Letter of Credit requested, (C) the effective date (which shall be
a Business Day) of issuance of such Letter of Credit, (D) the date on which such
Letter of Credit is to expire (which shall be a Business Day and no later than
the Business Day immediately preceding the scheduled Revolving Credit
Termination Date), (E) the Person for whose benefit such Letter of Credit is to
be issued, (F) other relevant terms of such Letter of Credit, (G) the Revolving
Credit Availability at such time, (H) whether such Letter of Credit shall be for
the account of the Borrower or RMOP and (I) the amount of the then outstanding
Letter of Credit Obligations.
(ii) The Arrangers shall jointly select one Arranger to act as Issuing Bank
with respect to such Letter of Credit, which selection shall be in the sole
discretion of the Arrangers. If such Arranger declines to issue the Letter of
Credit, the Arrangers shall jointly select an alternative Lender to issue such
Letter of Credit, subject to such Lender's agreement to act as Issuing Bank.
(iii) The selected Arranger (if not the Administrative Agent) shall give
the Administrative Agent written notice, or telephonic notice confirmed promptly
thereafter in writing, of the issuance, amendment or extension of a Letter of
Credit (which notice the Administrative Agent shall promptly transmit by
telegram, facsimile transmission, or similar transmission to the Borrower and
each Lender).
(d) Reimbursement Obligations; Duties of Issuing Banks and other Lenders.
(i) Notwithstanding any provisions to the contrary in any Letter of Credit
Reimbursement Agreement:
(A) the Borrower and/or RMOP shall reimburse the Issuing Bank for
amounts drawn under its Letter of Credit, in Dollars, no later than
the date (the "Reimbursement Date") which is the earlier of (I) the
time specified in the applicable Letter of Credit Reimbursement
Agreement and (II) three (3) Business Days after the Borrower receives
written notice from the Issuing Bank that payment has been made under
such Letter of Credit by the Issuing Bank; provided that RMOP shall
not be liable for payment of any Reimbursement Obligations other than
those in respect of Letters of Credit issued for its account; and
(B) all Reimbursement Obligations with respect to any Letter of
Credit shall bear interest at the rate applicable to Base Rate Loans
in accordance with Section 5.1(a) from the date of the relevant
drawing under such Letter of Credit until the Reimbursement Date and
thereafter at the rate applicable to Base Rate Loans in accordance
with Section 5.1(d).
(ii) The Issuing Bank shall give the Administrative Agent written notice,
or telephonic notice confirmed promptly thereafter in writing, of all drawings
under a Letter of Credit and the payment (or the failure to pay when due) by the
Borrower or RMOP, as the case may be, on account of a Reimbursement Obligation
(which notice the Administrative Agent shall promptly transmit by telegram,
facsimile transmission or similar transmission to each Lender).
(iii) Solely as between the Issuing Banks and the other Lenders, in
determining whether to pay under any Letter of Credit, the Issuing Bank shall
have no obligation to the other Lenders other than to confirm that any documents
required to be delivered under a respective Letter of Credit appear to have been
delivered and that they appear on their face to comply with the requirements of
such Letter of Credit.
(e) Participations. (i) Immediately upon issuance by an Issuing Bank of any
Letter of Credit in accordance with the procedures set forth in this Section
3.1, each Lender shall be deemed to have irrevocably and unconditionally
purchased and received from that Issuing Bank, without recourse or warranty, an
undivided interest and participation in such Letter of Credit to the extent of
such Lender's Pro Rata Share, including, without limitation, all obligations of
the Borrower or RMOP with respect thereto (other than amounts owing to the
Issuing Bank under Section 3.1(g)) and any security therefor and guaranty
pertaining thereto.
(ii) If any Issuing Bank makes any payment under any Letter of Credit and
the Borrower or RMOP, as the case may be, does not repay such amount to the
Issuing Bank on the Reimbursement Date, the Issuing Bank shall promptly notify
the Administrative Agent, which shall promptly notify each other Lender, and
each Lender shall promptly and unconditionally pay to the Administrative Agent
for the account of such Issuing Bank, in immediately available funds, the amount
of such Lender's Pro Rata Share of such payment (net of that portion of such
payment, if any, made by such Issuing Bank in its capacity as an issuer of a
Letter of Credit), and the Administrative Agent shall promptly pay to such
Issuing Bank such amounts received by it, and any other amounts received by the
Administrative Agent for such Issuing Bank's account, pursuant to this Section
3.1(e). If a Lender does not make its Pro Rata Share of the amount of such
payment available to the Administrative Agent, such Lender agrees to pay to the
Administrative Agent for the account of the Issuing Bank, forthwith on demand,
such amount together with interest thereon at the interest rate then applicable
to Base Rate Loans in accordance with Section 5.1(a). The failure of any Lender
to make available to the Administrative Agent for the account of an Issuing Bank
its Pro Rata Share of any such payment shall neither relieve any other Lender of
its obligation hereunder to make available to the Administrative Agent for the
account of such Issuing Bank such other Lender's Pro Rata Share of any payment
on the date such payment is to be made nor increase the obligation of any other
Lender to make such payment to the Administrative Agent.
(iii) Whenever an Issuing Bank receives a payment on account of a
Reimbursement Obligation, including any interest thereon, as to which the
Administrative Agent has previously received payments from any other Lender for
the account of such Issuing Bank pursuant to this Section 3.1(e), such Issuing
Bank shall promptly pay to the Administrative Agent and the Administrative Agent
shall promptly pay to each other Lender an amount equal to such other Lender's
Pro Rata Share thereof. Each such payment shall be made by such reimbursed
Issuing Bank or the Administrative Agent, as the case may be, on the Business
Day on which such Person receives the funds paid to such Person pursuant to the
preceding sentence, if received prior to 11:00 a.m. (New York time) on such
Business Day, and otherwise on the next succeeding Business Day.
(iv) The Issuing Banks shall furnish the Lenders copies of any Letter of
Credit, Letter of Credit Reimbursement Agreement, and related amendment to which
such Issuing Bank is party and such other documentation as may be deemed
reasonable.
(v) The obligations of a Lender to make payments to the Administrative
Agent for the account of any Issuing Bank with respect to a Letter of Credit
shall be irrevocable, shall not be subject to any qualification or exception
whatsoever except willful misconduct or gross negligence of such Issuing Bank,
and shall be honored in accordance with this Article III (irrespective of the
satisfaction of the conditions described in Sections 6.1 and 6.2, as applicable)
under all circumstances, including, without limitation, any of the following
circumstances:
(A) any lack of validity or enforceability of this Agreement or
any of the other Loan Documents;
(B) the existence of any claim, setoff, defense or other right
which the Borrower or RMOP may have at any time against a beneficiary
named in a Letter of Credit or any transferee of a beneficiary named
in a Letter of Credit (or any Person for whom any such transferee may
be acting), any Lender, or any other Person, whether in connection
with this Agreement, any Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any
underlying transactions between the account party and beneficiary
named in any Letter of Credit);
(C) any draft, certificate or any other document presented under
the Letter of Credit having been determined to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
(D) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents;
(E) any failure by that Issuing Bank to make any reports required
pursuant to Section 3.1(h) or the inaccuracy of any such report; or
(F) the occurrence of any Event of Default or Potential Event of
Default.
(f) Payment of Reimbursement Obligations. (i) The Borrower and RMOP each
unconditionally agrees to pay to each Issuing Bank, in Dollars, the amount of
all Reimbursement Obligations, interest and other amounts payable to such
Issuing Bank under or in connection with the Letters of Credit when such amounts
are due and payable, irrespective of any claim, setoff, defense or other right
which the Borrower or RMOP may have at any time against any Issuing Bank or any
other Person; provided that RMOP shall not be liable for any Reimbursement
Obligations, interest and other amounts payable to such Issuing Bank under or in
connection with the Letters of Credit other than those in respect of Letters of
Credit issued for its account.
(ii) In the event any payment by the Borrower or RMOP received by an
Issuing Bank with respect to a Letter of Credit and distributed by the
Administrative Agent to the Lenders on account of their participations is
thereafter set aside, avoided or recovered from such Issuing Bank in connection
with any receivership, liquidation or bankruptcy proceeding, each Lender which
received such distribution shall, upon demand by such Issuing Bank, contribute
such Lender's Pro Rata Share of the amount set aside, avoided or recovered
together with interest at the rate required to be paid by such Issuing Bank upon
the amount required to be repaid by it.
(g) Letter of Credit Fee Charges. In connection with each Letter of Credit,
Borrower and RMOP each hereby covenants to pay to the Administrative Agent the
following fees each payable quarterly in arrears (on the first Banking Day of
each calendar quarter following the issuance of each Letter of Credit): (1) a
fee for the account of the Lenders, computed daily on the amount of the Letter
of Credit issued and outstanding at a rate per annum equal to the "Banks' L/C
Fee Rate" (as hereinafter defined) and (2) a fee, for the Issuing Bank's own
account, computed daily on the amount of the Letter of Credit issued and
outstanding at a rate per annum equal to 0.125; provided that RMOP shall not be
liable for any such fees other than those relating to Letters of Credit issued
for its account. For purposes of this Agreement, the "Banks' L/C Fee Rate" shall
mean, at any time, a rate per annum equal to the Applicable Margin for
Eurodollar Rate Loans. It is understood and agreed that the last installment of
the fees provided for in this paragraph (g) with respect to any particular
Letter of Credit shall be due and payable on the first day of the fiscal quarter
following the return, undrawn, or cancellation of such Letter of Credit. In
addition, the Borrower and RMOP shall pay to each Issuing Bank, solely for its
own account, the standard charges assessed by such Issuing Bank in connection
with the issuance, administration, amendment and payment or cancellation of
Letters of Credit and such compensation in respect of such Letters of Credit for
the Borrower's or RMOP's account as may be agreed upon by the Borrower and such
Issuing Bank in writing from time to time; provided that RMOP shall not be
liable for any such charges and compensation other than those relating to
Letters of Credit issued for its account.
(h) Letter of Credit Reporting Requirements. Each Issuing Bank shall, no
later than the tenth (10th) Business Day following the last day of each calendar
quarter, provide to the Administrative Agent, the Borrower, RMOP, and each other
Lender separate schedules for Commercial Letters of Credit and Standby Letters
of Credit issued as Letters of Credit, in form and substance reasonably
satisfactory to the Administrative Agent, setting forth the aggregate Letter of
Credit Obligations outstanding to it at the end of each month and, to the extent
not otherwise provided in accordance with the provisions of Section 3.1(c)(ii),
any information requested by the Administrative Agent or the Borrower relating
to the date of issue, account party, amount, expiration date and reference
number of each Letter of Credit issued by it.
(i) Indemnification; Exoneration. (i) In addition to all other amounts
payable to an Issuing Bank, the Borrower and RMOP each hereby agrees to defend,
indemnify, and save the Administrative Agent, each Issuing Bank, and each other
Lender harmless from and against any and all claims, demands, liabilities,
penalties, damages, losses (other than loss of profits), reasonable costs,
reasonable charges and reasonable expenses (including reasonable attorneys' fees
but excluding taxes) which the Administrative Agent, the Issuing Banks, or such
other Lender may incur or be subject to as a consequence, direct or indirect, of
(A) the issuance of any Letter of Credit other than as a result of the gross
negligence or willful misconduct of the Issuing Bank, as determined by a court
of competent jurisdiction, or (B) the failure of the Issuing Bank to honor a
drawing under such Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto government or
Governmental Authority; provided that RMOP shall not be liable for any of the
foregoing except to the extent arising out of or in connection with any Letter
of Credit issued for its account.
(ii) As between the Borrower and RMOP on the one hand and the Lenders on
the other hand, the Borrower and RMOP assume all risks of the acts and omissions
of, or misuse of Letters of Credit by, the respective beneficiaries of the
Letters of Credit. In furtherance and not in limitation of the foregoing,
subject to the provisions of the Letter of Credit Reimbursement Agreements, the
Administrative Agent, the Issuing Banks and the other Lenders shall not be
responsible for: (A) the form, validity, legality, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in connection
with the application for and issuance of the Letters of Credit, even if it
should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (B) the validity, legality or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason;
(C) failure of the beneficiary of a Letter of Credit to duly comply with
conditions required in order to draw upon such Letter of Credit; (D) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(E) errors in interpretation of technical terms; (F) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit or of the proceeds thereof; (G) the misapplication by
the beneficiary of a Letter of Credit of the proceeds of any drawing under such
Letter of Credit; and (H) any consequences arising from causes beyond the
control of the Administrative Agent, the Issuing Banks or the other Lenders,
other than any of the foregoing resulting from the gross negligence or wilful
misconduct of the Issuing Bank. (
3.2. Obligations Several. The obligations of the Administrative Agent, each
Issuing Bank, and each other Lender under this Article III are several and not
joint, and no Issuing Bank or other Lender shall be responsible for the
obligation to issue Letters of Credit or participation obligation hereunder,
respectively, of any other Issuing Bank or other Lender.
ARTICLE IV
PAYMENTS AND PREPAYMENTS
4.1. Prepayments; Reductions in Revolving Credit Commitments
(a) Voluntary Prepayments. The Borrower and RMOP may, at any time and from
time to time, prepay the Loans, other than Competitive Bid Loans, in part or in
their entirety, subject to the following limitations. The Borrower or RMOP, as
the case may be, shall give at least five (5) Business Days' prior written
notice to the Administrative Agent (which the Administrative Agent shall
promptly transmit to each Lender) of any prepayment in the entirety to be made
prior to the occurrence of an Event of Default, which notice of prepayment shall
specify the date (which shall be a Business Day) of prepayment. When notice of
prepayment is delivered as provided herein, the outstanding principal amount of
the Loans on the prepayment date specified in the notice shall become due and
payable on such prepayment date. Each voluntary partial prepayment of the Loans
shall be in a minimum amount of $1,000,000 and in integral multiples of $500,000
in excess of that amount (or such lesser amount in the event the unpaid
principal amount of any Loan is less than such minimum prepayment amount).
Eurodollar Rate Loans may be prepaid in part or in their entirety only upon
payment of the amounts described in Section 5.2(f). Notwithstanding anything
contained in this Agreement to the contrary, Competitive Bid Loans may not be
voluntarily prepaid.
(b) Voluntary Reductions In Revolving Credit Commitments. The Borrower may,
upon at least five (5) days' prior written notice to the Administrative Agent
(which the Administrative Agent shall promptly transmit to each Lender), at any
time and from time to time, terminate in whole or permanently reduce in part the
Revolving Credit Commitments, provided that (i) the Borrower and RMOP shall have
made whatever payment may be required to reduce the Revolving Credit Obligations
to an amount less than or equal to the Revolving Credit Commitments as reduced,
which amount shall become due and payable on the date specified in such notice
and (ii) in the case of a reduction, the minimum Revolving Credit Commitments
that shall remain outstanding shall be $100,000,000. Any partial reduction of
the Revolving Credit Commitments shall be in an aggregate minimum amount of
$1,000,000 and integral multiples of $1,000,000 in excess of that amount, and
shall reduce the Revolving Credit Commitment of each Lender proportionately in
accordance with its Pro Rata Share. Any notice of termination or reduction given
to the Administrative Agent under this Section 4.1(b) shall specify the date
(which shall be a Business Day) of such termination or reduction and, with
respect to a partial reduction, the aggregate principal amount thereof, as well
as whether such reduction shall be attributable to the Loans to the Borrower
and/or Loans to RMOP.
(c) No Penalty. The prepayments and payments in respect of reductions and
terminations described in clauses (a) and (b) of this Section 4.1 may be made
without premium or penalty (except as provided in Section 5.2(f)).
(d) Mandatory Prepayment. If at any time from and after the Closing Date,
the Company, RMOP, the Borrower, or any of its Consolidated Subsidiaries
receives proceeds from the sale or refinancing of an unencumbered Project, the
Borrower and/or RMOP shall be required to prepay a portion of the Loan in an
amount equal to the Net Cash Proceeds received; provided that RMOP shall only be
obligated to apply Net Cash Proceeds from the sale or refinancing of an
unencumbered Project owned by RMOP to prepay RMOP Revolving Credit Obligations.
If at any time from and after the Closing Date: (i) the Company, RMOP or the
Borrower merges or consolidates with another Person and the Company, RMOP or
Borrower, as the case may be, is not the surviving entity, or (ii) the Company,
the Borrower, any of its Affiliates or consolidated Subsidiaries or the
Management Company ceases to provide property management and leasing services to
at least 80% of the total number of Projects in which the Borrower has a direct
ownership interest (the date any such event shall occur being the "Prepayment
Date"), the Borrower and/or RMOP, as the case may be, shall be required to
prepay the Loans in their entirety as if the Prepayment Date were the Revolving
Credit Termination Date and, the Revolving Credit Commitment thereupon shall be
terminated; provided that RMOP shall not be liable to make any payment in excess
of the RMOP Revolving Credit Obligations, and provided further that in the case
of a merger or consolidation of RMOP pursuant to clause (i), RMOP shall have no
further right to request Loans or Letters of Credit hereunder. The Borrower and
RMOP shall immediately make such prepayment together with interest accrued to
the date of the prepayment on the principal amount prepaid and shall return or
cause to be returned all Letters of Credit to the applicable Lender; provided
that RMOP shall not be liable to make any payment in excess of the RMOP
Revolving Credit Obligations together with interest thereon, and RMOP shall not
be responsible to return or cause to be returned any Letters of Credit other
than Letters of Credit issued for its account. In connection with the prepayment
of any Loan prior to the maturity thereof, the Borrower and RMOP shall also pay
any applicable expenses pursuant to Section 5.2(f); provided that RMOP shall not
be liable for any such payment other than any such payments incurred in
connection with the RMOP Revolving Credit Obligations. Each such prepayment
shall be applied to prepay ratably the Loans of the Lenders. Amounts prepaid
pursuant to this Section 4.1(d) (other than amounts prepaid pursuant to the
first sentence of this Section 4.1(d)) may not be reborrowed. As used in this
Section 4.1(d) only, the phrase "sells, transfers, assigns or conveys" shall not
include (i) sales or conveyances among Borrower or RMOP and any of their
consolidated Subsidiaries, or (ii) mortgages or other security interests secured
by Real Property or other Property.
4.2. Payments.
(a) Manner and Time of Payment. All payments of principal of and interest
on the Loans and Reimbursement Obligations and other Obligations (including,
without limitation, fees and expenses) which are payable to the Administrative
Agent, the Arrangers or any other Lender shall be made without condition or
reservation of right, in immediately available funds, delivered to the
Administrative Agent not later than 12:00 noon (New York time) on the date and
at the place due, to such account of the Administrative Agent (or such Arranger)
as it may designate, for the account of the Administrative Agent, an Arranger,
or such other Lender, as the case may be; and funds received by the
Administrative Agent (or such Arranger), including, without limitation, funds in
respect of any Loans to be made on that date, not later than 12:00 noon (New
York time) on any given Business Day shall be credited against payment to be
made that day and funds received by the Administrative Agent (or such Arranger)
after that time shall be deemed to have been paid on the next succeeding
Business Day. Payments actually received by the Administrative Agent for the
account of the Documentation Agent, the Syndication Agent and the Lenders, or
any of them, shall be paid to them by the Administrative Agent promptly after
receipt thereof.
(b) Apportionment of Payments. (i) Subject to the provisions of Section
4.2(b)(v), all payments of principal and interest in respect of outstanding
Loans, all payments in respect of Reimbursement Obligations, all payments of
fees and all other payments in respect of any other Obligations, shall be
allocated among such of the Lenders as are entitled thereto, in proportion to
their respective Pro Rata Shares or otherwise as provided herein. Subject to the
provisions of Section 4.2(b)(ii), all such payments and any other amounts
received by the Administrative Agent from or for the benefit of the Borrower and
RMOP shall be applied in the following order:
(A) to pay principal of and interest on any portion of the Loans
which the Administrative Agent may have advanced on behalf of any
Lender other than Chase for which the Administrative Agent has not
then been reimbursed by such Lender or the Borrower or RMOP, as the
case may be,
(B) to pay all other Obligations then due and payable, and
(C) as the Borrower or RMOP so designates.
Unless otherwise designated by the Borrower or RMOP, all principal payments in
respect of its Committed Loans shall be applied first, to repay its outstanding
Base Rate Loans, and then to repay its outstanding Eurodollar Rate Loans with
those Eurodollar Rate Loans which have earlier expiring Eurodollar Interest
Periods being repaid prior to those which have later expiring Eurodollar
Interest Periods.
(ii) After the occurrence of an Event of Default and while the same is
continuing which results in an acceleration of the Obligations in accordance
with Section 11.2, the Administrative Agent shall apply all payments in respect
of any Obligations in the following order:
(A) first, to pay principal of and interest on any portion of the
Loans which the Administrative Agent may have advanced on behalf of
any Lender other than Chase for which the Administrative Agent has not
then been reimbursed by such Lender or the Borrower or RMOP, as the
case may be;
(B) second, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Administrative Agent;
(C) third, to pay principal of and interest on Letter of Credit
Obligations (or, to the extent such Obligations are contingent,
deposited with the Administrative Agent to provide cash collateral in
respect of such Obligations);
(D) fourth, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Lenders;
(E) fifth, to pay interest due in respect of Loans;
(F) sixth, to the ratable payment or prepayment of principal
outstanding on Loans; and
(G) seventh, to the ratable payment of all other Obligations.
The order of priority set forth in this Section 4.2(b)(ii) and the related
provisions of this Agreement are set forth solely to determine the rights and
priorities of the Administrative Agent and the other Lenders as among
themselves. The order of priority set forth in clauses (A) and (B) of this
Section 4.2(b)(ii) may be changed only with the prior written consent of the
Administrative Agent.
(iii) The Administrative Agent, in its sole discretion subject only to the
terms of this Section 4.2(b)(iii), may pay from the proceeds of Loans made to
the Borrower or RMOP hereunder, whether made following a request by the Borrower
pursuant to Section 2.1 or a deemed request as provided in this Section
4.2(b)(iii), all amounts payable by the Borrower and RMOP hereunder, including,
without limitation, amounts payable with respect to payments of principal,
interest, Reimbursement Obligations and fees; provided that in the case of RMOP
any such payment by the Administrative Agent for Loans requested on behalf of or
deemed requested on behalf of RMOP shall not exceed, and shall only be applied
to, the amounts payable hereunder in respect of the RMOP Revolving Credit
Obligations. The Borrower and RMOP (subject to the proviso of the immediately
preceding sentence) hereby irrevocably authorize the Lenders to make Loans,
which Loans shall be Base Rate Loans, in each case, upon notice from the
Administrative Agent as described in the following sentence for the purpose of
paying principal, interest, Reimbursement Obligations and fees due from the
Borrower or RMOP, and agrees that all such Loans so made shall be deemed to have
been requested by it pursuant to Section 2.1 as of the date of the
aforementioned notice. The Administrative Agent shall request Loans on behalf of
the Borrower or RMOP as described in the preceding sentence by notifying the
Lenders by facsimile transmission or other similar form of transmission (which
notice the Administrative Agent shall thereafter promptly transmit to the
Borrower), of the amount and Funding Date of the proposed Borrowing and that
such Borrowing is being requested on the Borrower's or RMOP's behalf pursuant to
this Section 4.2(b)(iii). On the proposed Funding Date, the Lenders shall make
the requested Loans in accordance with the procedures and subject to the
conditions specified in Section 2.1.
(iv) Subject to Section 4.2(b)(v), the Administrative Agent shall promptly
distribute to each Arranger and each other Lender at its primary address set
forth on the appropriate signature page hereof or the signature page to the
Assignment and Acceptance by which it became a Lender, or at such other address
as a Lender may request in writing, such funds as such Person may be entitled to
receive, subject to the provisions of Article XII; provided that the
Administrative Agent shall under no circumstances be bound to inquire into or
determine the validity, scope or priority of any interest or entitlement of any
Lender and may suspend all payments or seek appropriate relief (including,
without limitation, instructions from the Requisite Lenders or an action in the
nature of interpleader) in the event of any doubt or dispute as to any
apportionment or distribution contemplated hereby.
(v) In the event that any Lender fails to fund its Pro Rata Share of any
Loan requested by the Borrower on its behalf or on behalf of RMOP which such
Lender is obligated to fund under the terms of this Agreement (the funded
portion of such Loan being hereinafter referred to as a "Non Pro Rata Loan"),
until the earlier of such Lender's cure of such failure and the termination of
the Revolving Credit Commitments, the proceeds of all amounts thereafter repaid
to the Administrative Agent by the Borrower or RMOP and otherwise required to be
applied to such Lender's share of all other Obligations pursuant to the terms of
this Agreement shall be advanced to the Borrower or RMOP by the Administrative
Agent on behalf of such Lender to cure, in full or in part, such failure by such
Lender, but shall nevertheless be deemed to have been paid to such Lender in
satisfaction of such other Obligations. Notwithstanding anything in this
Agreement to the contrary:
(A) the foregoing provisions of this Section 4.2(b)(v) shall
apply only with respect to the proceeds of payments of Obligations
and shall not affect the conversion or continuation of Loans pursuant
to Section 5.1(c);
(B) a Lender shall be deemed to have cured its failure to fund
its Pro Rata Share of any Loan at such time as an amount equal to such
Lender's original Pro Rata Share of the requested principal portion of
such Loan is fully funded to the Borrower or RMOP, whether made by
such Lender itself or by operation of the terms of this Section
4.2(b)(v), and whether or not the Non Pro Rata Loan with respect
thereto has been repaid, converted or continued;
(C) amounts advanced to the Borrower or RMOP to cure, in full or
in part, any such Lender's failure to fund its Pro Rata Share of any
Loan ("Cure Loans") shall bear interest at the Base Rate in effect
from time to time, and for all other purposes of this Agreement shall
be treated as if they were Base Rate Loans; and
(D) regardless of whether or not an Event of Default has occurred
or is continuing, and notwithstanding the instructions of the Borrower
or RMOP as to its desired application, all repayments of principal
which, in accordance with the other terms of this Section 4.2, would
be applied to its outstanding Base Rate Loans shall be applied first,
ratably to its Base Rate Loans constituting Non Pro Rata Loans,
second, ratably to its Base Rate Loans other than those constituting
Non Pro Rata Loans or Cure Loans and, third, ratably to its Base Rate
Loans constituting Cure Loans.
(c) Payments on Non-Business Days. Whenever any payment to be made by the
Borrower or RMOP hereunder or under the Notes is stated to be due on a day which
is not a Business Day, the payment shall instead be due on the next succeeding
Business Day (or, as set forth in Section 5.2(b)(iv), the next preceding
Business Day).
4.3. Promise to Repay; Evidence of Indebtedness.
(a) Promise to Repay. (i) The Borrower hereby agrees to pay when due the
principal amount of each Loan which is made to it and, to the extent not paid
when due (after giving effect to any grace period as more particularly set forth
in Section 11.1(a)) by RMOP, each loan made to RMOP, and further agrees to pay
all unpaid interest accrued thereon, in accordance with the terms of this
Agreement and the Notes. The Borrower shall execute and deliver to each Lender
on the Closing Date, a promissory note, in the form of Exhibit B-1 attached
hereto with blanks appropriately completed, evidencing the Loans and thereafter
shall execute and deliver such other promissory notes as are necessary to
evidence the Loans made to it owing to the Lenders after giving effect to any
assignment thereof pursuant to Section 14.1, all in the form of Exhibit B-1
attached hereto with blanks appropriately completed (all such promissory notes
and all amendments thereto, replacements thereof and substitutions therefor
being collectively referred to as the "Borrower Notes"; and "Borrower Note"
means any one of the Borrower Notes).
(ii) RMOP hereby agrees to pay when due the principal amount of each Loan
which is made to it, and further agrees to pay all unpaid interest accrued
thereon, in accordance with the terms of this Agreement and the RMOP Notes. RMOP
shall execute and deliver to each Lender on the Closing Date, a promissory note,
in the form of Exhibit B-3 attached hereto with blanks appropriately completed,
evidencing the Loans made to it and thereafter shall execute and deliver such
other promissory notes as are necessary to evidence the Loans owing to the
Lenders after giving effect to any assignment thereof pursuant to Section 14.1,
all in the form of Exhibit B-3 attached hereto with blanks appropriately
completed (all such promissory notes and all amendments thereto, replacements
thereof and substitutions therefor being collectively referred to as the "RMOP
Notes"; and "RMOP Note" means any one of the RMOP Notes).
(b) Loan Account. Each Lender shall maintain in accordance with its usual
practice an account or accounts (a "Loan Account") evidencing the Indebtedness
of the Borrower and RMOP, as the case may be, to such Lender resulting from each
Loan owing to such Lender from time to time, including the amount of principal
and interest payable and paid to such Lender from time to time hereunder and
under the Notes.
(c) Control Account. The Register maintained by the Administrative Agent
pursuant to Section 14.1(c) shall include a control account, and a subsidiary
account for each Lender, in which accounts (taken together) shall be recorded
(i) the date and amount of each Borrowing made hereunder, the type of Loan
comprising such Borrowing and any Eurodollar Interest Period applicable thereto,
(ii) the effective date and amount of each Assignment and Acceptance delivered
to and accepted by it and the parties thereto, (iii) the amount of any principal
or interest due and payable or to become due and payable from the Borrower or
RMOP, as the case may be, to each Lender hereunder or under the Notes and (iv)
the amount of any sum received by the Administrative Agent from the Borrower or
RMOP, as the case may be, hereunder and each Lender's share thereof.
(d) Entries Binding. The entries made in the Register and each Loan Account
shall be conclusive and binding for all purposes, absent manifest error.
(e) No Recourse. Notwithstanding anything contained in this Agreement, any
Note, or the Guaranty to the contrary, it is expressly understood and agreed
that nothing herein or therein shall be construed as creating any liability on
any Limited Partner or the general partner of Reckson FS Limited Partnership or
any member of Xxxxxxx Xxxxxx Industrial Interim GP LLC (other than the
Borrower), or any partner, officer, shareholder or director of any Limited
Partner or any officer, trustee, member, director, or employee of the Borrower
or RMOP or any Guarantor, to pay any of the Obligations other than liability
arising under applicable law from or in connection with (i) its own fraud or
(ii) the misappropriation or misapplication by it of proceeds of the Loans; but
nothing contained in this Section 4.3(e) shall be construed to prevent the
exercise of any remedy allowed to the Administrative Agent, the Arrangers or the
Lenders by law or by the terms of this Agreement or the other Loan Documents
which does not relate to or result in such an obligation by any Limited Partner
or the general partner of Reckson FS Limited Partnership or any member of
Xxxxxxx Xxxxxx Industrial Interim GP LLC (other than the Borrower) or such other
Persons to pay money. In addition, notwithstanding anything contained in this
Agreement, any Note, or the Guaranty to the contrary, (i) the Borrower shall be
liable for all Obligations arising hereunder in connection with the Loans, and
(ii) RMOP shall not be liable for any Obligations other than those arising in
connection with the RMOP Revolving Credit Obligations and the Letters of Credit
issued for its account.
ARTICLE V
INTEREST AND FEES
5.1. Interest on the Loans and other Obligations.
(a) Rate of Interest. All Loans and the outstanding principal balance of
all other Obligations shall bear interest on the unpaid principal amount thereof
from the date such Loans are made and such other Obligations are due and payable
until paid in full, except as otherwise provided in Section 5.1(d), as follows:
(i) If a Base Rate Loan or such other Obligation, at a rate per
annum equal to the sum of (A) the Base Rate, as in effect from time to
time as interest accrues, plus (B) the then Applicable Margin for Base
Rate Loans;
(i) If a Eurodollar Rate Loan, at a rate per annum equal to the
sum of (A) the Eurodollar Rate determined for the applicable
Eurodollar Interest Period, plus (B) the then Applicable Margin for
Eurodollar Loans; and
(ii) If a Competitive Bid Loan, at a rate per annum equal to
either (A) the sum of (1) the Eurodollar Rate determined for the
applicable Eurodollar Interest Period (determined as if the related
Competitive Bid Borrowing were a Committed Eurodollar Rate Borrowing)
plus (2) the Competitive Bid Margin quoted by the Lender making such
Competitive Bid Loan in accordance with Section 2.2. or (B) the
Competitive Bid Rate, as applicable.
The applicable basis for determining the rate of interest on the Loans shall be
selected by the Borrower on its behalf and on behalf of RMOP at the time a
Notice of Borrowing or a Notice of Conversion/Continuation is delivered by the
Borrower or RMOP to the Administrative Agent; provided, however, neither the
Borrower may not select the Eurodollar Rate as the applicable basis for
determining the rate of interest on such a Loan if at the time of such selection
an Event of Default has occurred and is continuing. If on any day any Loan is
outstanding with respect to which notice has not been timely delivered to the
Administrative Agent in accordance with the terms of this Agreement specifying
the basis for determining the rate of interest on that day, then for that day
interest on that Loan shall be determined by reference to the Base Rate.
(b) Interest Payments. Interest accrued on each Loan, whether a Base Rate
Loan, a Eurodollar Loan or a Competitive Bid Loan shall be calculated on the
last day of each calendar month and shall be payable in arrears (A) on the first
day of each calendar month, commencing on the first such day following the
making of such Loan, and on the last day of the applicable Eurodollar Interest
Period with respect to a Competitive Bid Loan, (B) upon the payment or
prepayment thereof in full or in part, and (C) if not theretofore paid in full,
at maturity (whether by acceleration or otherwise) of such Loan.
(ii) Interest accrued on the principal balance of all other Obligations
shall be calculated on the last day of each calendar month and shall be payable
in arrears (A) on the first day of each calendar month, commencing on the first
such day following the incurrence of such Obligation, (B) upon repayment thereof
in full or in part, and (C) if not theretofore paid in full, at the time such
other Obligation becomes due and payable (whether by acceleration or otherwise).
(C) Conversion or Continuation. The Borrower on its behalf and on behalf of
RMOP shall have the option (A) to convert at any time all or any part of
outstanding Base Rate Loans to Eurodollar Rate Loans; (B) to convert all or any
part of outstanding Eurodollar Rate Loans having Eurodollar Interest Periods
which expire on the same date to Base Rate Loans on such expiration date; or (C)
to continue all or any part of outstanding Eurodollar Rate Loans having
Eurodollar Interest Periods which expire on the same date as Eurodollar Rate
Loans, and the succeeding Eurodollar Interest Period of such continued Loans
shall commence on such expiration date; provided, however, no such outstanding
Loan may be continued as, or be converted into, a Eurodollar Rate Loan (i) if
the continuation of, or the conversion into, would violate any of the provisions
of Section 5.2 or (ii) if an Event of Default has occurred and is continuing.
Any conversion into or continuation of Eurodollar Rate Loans under this Section
5.1(c) shall be in a minimum amount of $3,000,000 and in integral multiples of
$500,000 in excess of that amount, except in the case of a conversion into or a
continuation of an entire Borrowing of Non Pro Rata Loans.
(ii) To convert or continue a Loan under Section 5.1(c)(i), the Borrower or
RMOP, as the case may be, shall deliver a Notice of Conversion/Continuation to
the Administrative Agent no later than 11:00 a.m. (New York time) at least three
(3) Business Days in advance of the proposed conversion/continuation date. A
Notice of Conversion/Continuation shall specify (A) the proposed
conversion/continuation date (which shall be a Business Day), (B) the principal
amount of the Loan to be converted/continued, (C) whether such Loan shall be
converted and/or continued, (D) in the case of a conversion to, or continuation
of, a Eurodollar Rate Loan, the requested Eurodollar Interest Period and (E)
whether such loan is for the account of the Borrower or RMOP. Promptly after
receipt of a Notice of Conversion/Continuation under this Section 5.1(c)(ii),
the Administrative Agent shall notify each Lender by facsimile transmission, or
other similar form of transmission, of the proposed conversion/continuation. Any
Notice of Conversion/Continuation for conversion to, or continuation of, a Loan
(or telephonic notice in lieu thereof) given pursuant to this Section 5.1(c)(ii)
shall be irrevocable, and the Borrower or RMOP, as the case may be, shall be
bound to convert or continue in accordance therewith. In the event no Notice of
Conversion/Continuation is delivered as and when specified in this Section
5.1(c)(ii) with respect to outstanding Eurodollar Rate Loans, upon the
expiration of the Eurodollar Interest Period applicable thereto, such Loans
shall automatically be converted to a Base Rate Loan.
(d) Default Interest. Notwithstanding the rates of interest specified in
Section 5.1(a) or elsewhere in this Agreement, effective immediately upon the
occurrence of an Event of Default, and for as long thereafter as such Event of
Default shall be continuing, the principal balance of all Loans and other
Obligations shall bear interest at a rate equal to (A) in the case of any
Eurodollar Rate Loans outstanding as of the date of occurrence of any Event of
Default, the sum of (x) the applicable Eurodollar Rate, plus (y) six percent
(6.0%) per annum, and (B) in the case of any Base Rate Loan (including any
Eurodollar Loan that is converted to a Base Rate Loan at maturity) the sum of
(x) the Base Rate, as in effect from time to time as interest accrues, plus (y)
five percent (5.0%) per annum.
(e) Computation of Interest. Interest on all Obligations shall be computed
on the basis of the actual number of days elapsed in the period during which
interest accrues and a year of 360 days. In computing interest on any Loan, the
date of the making of the Loan or the first day of a Eurodollar Interest Period,
as the case may be, shall be included and the date of payment or the expiration
date of a Eurodollar Interest Period, as the case may be, shall be excluded;
provided, however, if a Loan is repaid on the same day on which it is made, one
(1) day's interest shall be paid on such Loan.
(f) Eurodollar Rate Information. Upon the request of the Borrower or RMOP,
the Administrative Agent shall promptly provide to the Borrower or RMOP, as the
case may be, such information with respect to the applicable Eurodollar Rate as
may be so requested.
5.2. Special Provisions Governing Eurodollar Rate Loans and Competitive Bid
Loans.
(a) Amount of Eurodollar Rate Loans. Each Eurodollar Rate Loan shall be in
a minimum principal amount of $3,000,000 and in integral multiples of $500,000
in excess of that amount.
(b) Determination of Eurodollar Interest Period. By giving notice as set
forth in Section 2.1(b) (with respect to a Borrowing of Eurodollar Rate Loans),
Section 2.2 (with respect to a Borrowing of Competitive Bid Loans) or Section
5.1(c) (with respect to a conversion into or continuation of Eurodollar Rate
Loans), the Borrower on its behalf or on behalf of RMOP, as the case may be,
shall have the option, subject to the other provisions of this Section 5.2, to
select an interest period (each, a "Eurodollar Interest Period") to apply to the
Loans described in such notice, subject to the following provisions:
(i) The Borrower may only select, as to a particular Borrowing of
Eurodollar Rate Loans, a Eurodollar Interest Period of one, two, three
or six months in duration;
(ii) The Borrower may only select, as to a particular Borrowing
of Competitive Bid Loans, a Eurodollar Interest Period of one, two, or
three months in duration;
(iii) In the case of immediately successive Eurodollar Interest
Periods applicable to a Borrowing of Eurodollar Rate Loans, each
successive Eurodollar Interest Period shall commence on the day on
which the next preceding Eurodollar Interest Period expires;
(iv) If any Eurodollar Interest Period would otherwise expire on
a day which is not a Business Day, such Eurodollar Interest Period
shall be extended to expire on the next succeeding Business Day if the
next succeeding Business Day occurs in the same calendar month, and if
there will be no succeeding Business Day in such calendar month, the
Eurodollar Interest Period shall expire on the immediately preceding
Business Day;
(v) The Borrower may not select a Eurodollar Interest Period as
to any Loan if such Eurodollar Interest Period terminates later than
the Revolving Credit Termination Date;
(vi) The Borrower may not select a Eurodollar Interest Period
with respect to any portion of principal of a Loan which extends
beyond a date on which the Borrower or RMOP, as the case may be, is
required to make a scheduled payment of such portion of principal of
which the Borrower or RMOP, as the case may be, is aware on the date
of such request, in the case of a payment pursuant to Section 4.1(d)
hereof; and
(vii) There shall be no more than ten (10) Eurodollar Interest
Periods in effect at any one time with respect to Eurodollar Rate
Loans.
(c) Determination of Eurodollar Interest Rate. As soon as practicable on
the second Business Day prior to the first day of each Eurodollar Interest
Period (the "Eurodollar Interest Rate Determination Date"), the Administrative
Agent shall determine (pursuant to the procedures set forth in the definition of
"Eurodollar Rate") the interest rate which shall apply to the Eurodollar Rate
Loans or Competitive Bid Loans for which an interest rate is then being
determined for the applicable Eurodollar Interest Period and shall promptly give
notice thereof (in writing or by telephone or by facsimile confirmed in writing)
to the Borrower and RMOP and to each Lender. The Administrative Agent's
determination shall be presumed to be correct, absent manifest error, and shall
be binding upon the Borrower and RMOP.
(d) Interest Rate Unascertainable, Inadequate or Unfair. In the event that
at least one (1) Business Day before the Eurodollar Interest Rate Determination
Date:
(i) the Administrative Agent is advised by the Reference Bank
that deposits in Dollars (in the applicable amounts) are not being
offered by the Reference Bank in the London interbank market for such
Eurodollar Interest Period; or
(ii) the Administrative Agent determines that adequate and fair
means do not exist for ascertaining the applicable interest rates by
reference to which the Eurodollar Rate then being determined is to be
fixed;
(iii) the Requisite Lenders advise the Administrative Agent that
the Eurodollar Rate for Eurodollar Rate Loans comprising such
Borrowing will not adequately reflect the cost to such Requisite
Lenders of obtaining funds in Dollars in the London interbank market
in the amount substantially equal to such Lenders' Eurodollar Rate
Loans in Dollars and for a period equal to such Eurodollar Interest
Period; or
(iv) the applicable Lender(s) advise the Administrative Agent
that the Eurodollar Rate for Competitive Bid Loans comprising such
Borrowing will not adequately reflect the cost to such Lender(s) of
obtaining funds in Dollars in the London interbank market in the
amount substantially equal to such Lender(s)' Competitive Bid Loans in
Dollars and for a period equal to such Eurodollar Interest Period;
then the Administrative Agent shall forthwith give notice thereof to the
Borrower and RMOP, whereupon (until the Administrative Agent notifies the
Borrower and RMOP that the circumstances giving rise to such suspension no
longer exist) the right of the Borrower and RMOP to elect to have Loans bear
interest based upon the Eurodollar Rate shall be suspended and each outstanding
Eurodollar Rate Loan and Competitive Bid Loan shall be converted into a Base
Rate Loan on the last day of the then current Eurodollar Interest Period
therefor, notwithstanding any prior election by the Borrower on its behalf or on
behalf of RMOP as the case may be, to the contrary.
(e) Illegality. (i) If at any time any Lender determines (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties) that the making or continuation of any Eurodollar Rate Loan or
Competitive Bid Loan has become unlawful or impermissible by compliance by that
Lender with any law, governmental rule, regulation or order of any Governmental
Authority (whether or not having the force of law and whether or not failure to
comply therewith would be unlawful or would result in costs or penalties), then,
and in any such event, such Lender may give notice of that determination, in
writing, to the Borrower and RMOP and the Administrative Agent, and the
Administrative Agent shall promptly transmit the notice to each other Lender.
(ii) When notice is given by a Lender under Section 5.2(e)(i), (A) the
Borrower's right to request from such Lender and such Lender's obligation, if
any, to make Eurodollar Rate Loans to the Borrower or RMOP shall be immediately
suspended, and such Lender shall make a Base Rate Loan as part of any requested
Borrowing of Eurodollar Rate Loans and (B) if the affected Eurodollar Rate Loan
or Loans or Competitive Bid Loans are then outstanding, the Borrower or RMOP, as
the case may be, shall immediately, or if permitted by applicable law, no later
than the date permitted thereby, upon at least one (1) Business Day's prior
written notice to the Administrative Agent and the affected Lender, convert each
such Loan into a Base Rate Loan.
(iii) If at any time after a Lender gives notice under Section 5.2(e)(i)
such Lender determines that it may lawfully make Eurodollar Rate Loans, such
Lender shall promptly give notice of that determination, in writing, to the
Borrower and RMOP and the Administrative Agent, and the Administrative Agent
shall promptly transmit the notice to each other Lender. The Borrower's right to
request, and such Lender's obligation, if any, to make Eurodollar Rate Loans to
the Borrower or RMOP shall thereupon be restored.
(f) Compensation. In addition to all amounts required to be paid by the
Borrower or RMOP, as the case may be, pursuant to Section 5.1 and Article XIII,
the Borrower or RMOP, as the case may be, shall compensate each Lender, upon
demand, for all losses, expenses and liabilities (including, without limitation,
any loss or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund or maintain such
Lender's Eurodollar Rate Loans or Competitive Bid Loans to the Borrower or RMOP,
as the case may be, but excluding any loss of Applicable Margin on the relevant
Loans) which that Lender may sustain (i) if for any reason a Borrowing,
conversion into or continuation of Eurodollar Rate Loans and/or Competitive Bid
Loans does not occur on a date specified therefor in a Notice of Borrowing or a
Notice of Conversion/Continuation given by the Borrower on its behalf or on
behalf of RMOP, as the case may be, or in a telephonic request by it for
borrowing or conversion/continuation or a successive Eurodollar Interest Period
does not commence after notice therefor is given pursuant to Section 5.1(c),
other than pursuant to Sections 5.2(d) or (e), or (ii) if for any reason any
Eurodollar Rate Loan is prepaid (other than pursuant to Section 4.1(d) or
Section 5.2(d) or (e)) on a date which is not the last day of the applicable
Eurodollar Interest Period or (iii) as a consequence of any failure by the
Borrower or RMOP, as the case may be, to repay a Eurodollar Rate Loan or
Competitive Bid Loan when required by the terms of this Agreement; provided that
RMOP shall not be liable for any amounts under this clause (f) other than in
respect of the Loans made or to be made to RMOP. The Lender making demand for
such compensation shall deliver to the Borrower and RMOP concurrently with such
demand a written statement in reasonable detail as to such losses, expenses and
liabilities, and this statement shall be conclusive as to the amount of
compensation due to that Lender, absent manifest error.
(g) Booking of Eurodollar Rate Loans and Competitive Bid Loans. Any Lender
may make, carry or transfer Eurodollar Rate Loans and Competitive Bid Loans at,
to, or for the account of, its Eurodollar Lending Office or Eurodollar Affiliate
or its other offices or Affiliates. No Lender shall be entitled, however, to
receive any greater amount under Sections 4.2 or 5.2(f) or Article XIII as a
result of the transfer of any such Eurodollar Rate Loan or Competitive Bid Loan
to any office (other than such Eurodollar Lending Office) or any Affiliate
(other than such Eurodollar Affiliate) than such Lender would have been entitled
to receive immediately prior thereto, unless (i) the transfer occurred at a time
when circumstances giving rise to the claim for such greater amount did not
exist and (ii) such claim would have arisen even if such transfer had not
occurred.
(h) Affiliates Not Obligated. No Eurodollar Affiliate or other Affiliate of
any Lender shall be deemed a party to this Agreement or shall have any liability
or obligation under this Agreement.
(i) Adjusted Eurodollar Rate. Any failure by any Lender to take into
account the Eurodollar Reserve Percentage when calculating interest due on
Eurodollar Rate Loans or Competitive Bid Loans shall not constitute, whether by
course of dealing or otherwise, a waiver by such Lender of its right to collect
such amount for any future period.
(j) Application of Mandatory Prepayments. The principal amount of any
mandatory prepayment pursuant to Section 4.1(d) hereof, shall be applied, first,
to the outstanding Base Rate Loans and then, to the outstanding Eurodollar Rate
Loans. The Administrative Agent shall hold such principal amounts allocated for
prepayment of Eurodollar Rate Loans until the end of the applicable Eurodollar
Interest Period(s) and, during the interim period, shall invest said sums in
Cash Equivalents. Interest earned thereon shall be forwarded to the Borrower or
RMOP, as the case may be, upon the payment of the Eurodollar Rate Loans at the
end of said Eurodollar Interest Period.
5.3. Fees
(a) Letter of Credit Fee. The Borrower or RMOP, as the case may be, shall
pay to the Administrative Agent, for the account of the Lenders in proportion to
their interests in respective undrawn Letters of Credit, a Letter of Credit Fee
as more particularly set forth in Section 3.1(g) hereof; provided that RMOP
shall not be liable for any Letter of Credit Fees other than in connection with
Letters of Credit issued for its account.
(b) Unused Commitment/Facility Fee. The Borrower and RMOP shall pay,
without duplication, to the Administrative Agent, for the account of the Lenders
based on their respective Pro Rata Shares, a fee determined as follows (it being
understood and agreed that RMOP shall not be liable for any such fees
attributable to any excess of the difference between $100,000,000 and the RMOP
Revolving Credit Obligations:)
(i) prior to the Adjustment Date, the Borrower and RMOP shall pay to the
Administrative Agent a commitment fee on the Unused Facility based upon the
Unused Commitment Fee Percentage.
(ii) from and after the Adjustment Date, the Borrower and RMOP shall pay to
the Administrative Agent a facility fee on the Revolving Credit Commitments at
the respective percentages per annum based upon the Borrower's Credit Rating in
accordance with the following table:
-------------------------------- ----------------------------------------
Borrower's Credit Rating Applicable Facility Fee (% per annum)
-------------------------------- ----------------------------------------
BBB+/Baa1 and higher 0.15%
-------------------------------- ----------------------------------------
BBB/Baa2 0.20%
-------------------------------- ----------------------------------------
BBB-/Baa3 0.20%
-------------------------------- ----------------------------------------
The commitment/facility fee shall be payable monthly, in arrears, commencing on
the first day of the fiscal month next succeeding the Closing Date, and on the
first day of each fiscal month thereafter. Any change in the Borrower's Credit
Rating causing it to move into a different range on the table shall effect an
immediate change in the applicable percentage per annum. In the event that the
Borrower's Credit Rating is such that the Rating Agencies' ratings are split
between a higher and a lower rating, the applicable percentage per annum shall
be based upon the lower of such two (2) Credit Ratings. In the event that the
Borrower receives more than two (2) credit ratings and such credit ratings are
not equivalent, the applicable fee shall be determined by the lower of the two
(2) highest ratings provided that each of said two (2) highest ratings shall be
Investment Grade Ratings and at least one of which shall be an Investment Grade
Rating from S&P or Xxxxx'x.
Notwithstanding the foregoing, in the event that any Lender fails to fund
its Pro Rata Share of any Loan requested by the Borrower on its behalf or on
behalf of RMOP which such Lender is obligated to fund under the terms of this
Agreement, (A) such Lender shall not be entitled to any portion of the
commitment/facility fee with respect to its Revolving Credit Commitment until
such failure has been cured in accordance with Section 4.2(b)(v)(B) and (B)
until such time, the commitment/facility fee shall accrue in favor of the
Lenders which have funded their respective Pro Rata Shares of such requested
Loan, shall be allocated among such performing Lenders ratably based upon their
relative Revolving Credit Commitments, and shall be calculated based upon the
average amount by which the aggregate Revolving Credit Commitments of such
performing Lenders exceeds the sum of (I) the outstanding principal amount of
the Loans owing to such performing Lenders, and (II) the outstanding
Reimbursement Obligations owing to such performing Lenders, and (III) the
aggregate participation interests of such performing Lenders arising pursuant to
Section 3.1(e) with respect to undrawn and outstanding Letters of Credit.
(c) Competitive Bid Fee. Simultaneously with the delivery of each Notice of
Competitive Bid Borrowing, the Borrower or RMOP, as the case may be, shall pay
to the Administrative Agent for its own account, a fee equal to $2,500.
(d) Calculation and Payment of Fees. All fees shall be calculated on the
basis of the actual number of days elapsed in a 360-day year. All fees shall be
payable in addition to, and not in lieu of, interest, compensation, expense
reimbursements, indemnification and other Obligations. Fees shall be payable to
the Administrative Agent at its office in New York, New York in immediately
available funds unless otherwise set forth herein. All fees shall be fully
earned and nonrefundable when paid. All fees due to any Arranger or any other
Lender, including, without limitation, those referred to in this Section 5.3,
shall bear interest, if not paid when due, at the interest rate specified in
Section 5.1(d) and shall constitute Obligations.
ARTICLE VI
CONDITIONS TO
LOANS AND LETTERS OF CREDIT
6.1. Conditions Precedent to the Initial Loans and Letters of Credit. The
obligation of each Lender on the Initial Funding Date to make any Loan requested
to be made by it, and to issue Letters of Credit, shall be subject to the
satisfaction of all of the following conditions precedent:
(a) Documents. The Administrative Agent shall have received on or before
the Initial Funding Date all of the following:
(i) this Agreement, the Notes, and, to the extent not otherwise
specifically referenced in this Section 6.1(a), all other Loan
Documents and agreements, documents and instruments described in the
List of Closing Documents attached hereto as Exhibit E and made a part
hereof, each duly executed, and in form and substance satisfactory to
the Agents; without limiting the foregoing, the Borrower and RMOP
hereby directs its counsel, Xxxxx & Wood LLP to prepare and deliver to
the Agents, the Lenders, and Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
the legal opinions referred to in such List of Closing Documents; and
(ii) such additional documentation as the Agents may reasonably
request.
(b) No Legal Impediments. No law, regulation, order, judgment or decree of
any Governmental Authority shall, and the Administrative Agent shall not have
received any notice that litigation is pending or threatened which is likely to
(i) enjoin, prohibit or restrain the making of the Loans and/or the issuance of
Letters of Credit on the Initial Funding Date or (ii) impose or result in the
imposition of a Material Adverse Effect.
(c) No Change in Condition. No change in the business, assets, management,
operations, financial condition or prospects of the Borrower, RMOP or any of
their Properties shall have occurred since March 31, 1998 which change, in the
judgment of the Administrative Agent and the Syndication Agent, will have a
Material Adverse Effect.
(d) Interim Liabilities and Equity. Except as disclosed to the Arrangers
and the Lenders, since March 31, 1998, neither the Borrower, RMOP nor the
Company shall have (i) entered into any (as determined in good faith by the
Administrative Agent and the Syndication Agent) commitment or transaction,
including, without limitation, transactions for borrowings and capital
expenditures, which are not in the ordinary course of the Borrower's and RMOP's
business, (ii) declared or paid any dividends or other distributions other than
in the ordinary course of business, (iii) established compensation or employee
benefit plans, or (iv) redeemed or issued any equity Securities, other than
those described on Schedule 6.1(d) hereto.
(e) No Loss of Material Agreements and Licenses. Since March 31, 1998, no
agreement or license relating to the business, operations or employee relations
of the Borrower, RMOP or any of their Real Properties shall have been
terminated, modified, revoked, breached or declared to be in default, the
termination, modification, revocation, breach or default under which, in the
reasonable judgment of the Administrative Agent and the Syndication Agent, would
result in a Material Adverse Effect.
(f) No Market Changes. Since the Closing Date no material adverse change
shall have occurred in the conditions in the capital markets.
(g) No Default. No Event of Default or Potential Event of Default shall
have occurred and be continuing or would result from the making of the Loans or
the issuance of any Letter of Credit.
(h) Representations and Warranties. All of the representations and
warranties contained in Section 7.1 and in any of the other Loan Documents shall
be true and correct in all material respects on and as of the Initial Funding
Date.
(i) Termination Of Existing Facility. The Credit Agreement, dated as of
April 30, 1997, as amended by First Amendment to Credit Agreement, dated as of
June 27, 1997, and by Second Amendment to Credit Agreement, dated as of July 15,
1998, as well as the Credit Agreement, dated as of January 2, 1998, shall have
been repaid in full and terminated.
(j) Fees and Expenses Paid. There shall have been paid to the
Administrative Agent, for the accounts of the Agents and the other Lenders, as
applicable, all fees due and payable on or before the Initial Funding Date and
all expenses due and payable on or before the Initial Funding Date, including,
without limitation, reasonable attorneys' fees and expenses, and other costs and
expenses incurred in connection with the Loan Documents.
6.2. Conditions Precedent to All Subsequent Loans and Letters of Credit.
The obligation of each Lender to make any Loan requested to be made by it on any
date after the Initial Funding Date and the agreement of each Lender to issue
any Letter of Credit on any date after the Initial Funding Date is subject to
the following conditions precedent as of each such date:
(a) Representations and Warranties. As of such date, both before and after
giving effect to the Loans to be made or the Letter of Credit to be issued on
such date, all of the representations and warranties of the Borrower and RMOP
contained in Section 7.1 and all of the representations of the Borrower, RMOP
and the parties to the Guaranty or in any other Loan Document (other than
representations and warranties which expressly speak as of a different date)
shall be true and correct in all material respects.
(b) No Defaults. No Event of Default or Potential Event of Default shall
have occurred and be continuing or would result from the making of the requested
Loan or issuance of the requested Letter of Credit.
(c) No Legal Impediments. No law, regulation, order, judgment or decree of
any Governmental Authority shall, and the Administrative Agent shall not have
received from such Lender notice that, in the reasonable judgment of such
Lender, litigation is pending or threatened which is likely to, enjoin, prohibit
or restrain such Lender's making of the requested Loan or participation in or
issuance of the requested Letter of Credit.
(d) No Material Adverse Effect. The Borrower has not received written
notice from the Requisite Lenders that an event has occurred since the date of
this Agreement which has had and continues to have, or is reasonably likely to
have, a Material Adverse Effect.
Each submission by the Borrower on its behalf or on behalf of RMOP to the
Administrative Agent of a Notice of Borrowing with respect to a Loan, each
acceptance by the Borrower or RMOP of the proceeds of each Loan made hereunder,
each submission by the Borrower on its behalf or on behalf of RMOP to a Lender
of a request for issuance of a Letter of Credit and the issuance of such Letter
of Credit, shall constitute a representation and warranty by the Borrower and
RMOP as of the Funding Date in respect of such Loan and the date of issuance of
such Letter of Credit, that all the conditions contained in this Section 6.2
have been satisfied or waived in accordance with Section 14.7 (it being
understood that with respect to the condition set forth in Section 6.2(c), the
same shall constitute a representation and warranty by the Borrower and RMOP
only to the extent that the Borrower or RMOP shall have knowledge of any of the
events set forth therein).
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1. Representations and Warranties of the Borrower and RMOP. In order to
induce the Lenders to enter into this Agreement and to make the Loans and the
other financial accommodations to the Borrower and RMOP and to issue the Letters
of Credit described herein, the Borrower and RMOP each hereby represents and
warrants to each Lender that the following statements are true, correct and
complete:
(a) Organization; Powers. (i) The Borrower (A) is a limited partnership
duly organized, validly existing and in good standing under the laws of the
State of Delaware, (B) is duly qualified to do business and is in good standing
under the laws of each jurisdiction in which failure to be so qualified and in
good standing will have a Material Adverse Effect, (C) has all requisite power
and authority to own, operate and encumber its Property and to conduct its
business as presently conducted and as proposed to be conducted in connection
with and following the consummation of the transactions contemplated by this
Agreement, and (D) is a partnership for federal income tax purposes.
(ii) The Company (A) is a corporation duly organized, validly existing and
in good standing under the laws of the State of Maryland (B) is duly authorized
and qualified to do business and is in good standing under the laws of each
jurisdiction in which failure to be so qualified and in good standing will have
a Material Adverse Effect, and (C) has all requisite corporate power and
authority to own, operate and encumber its Property and to conduct its business
as presently conducted.
(iii) RMOP (A) is a limited partnership duly organized, validly existing
and in good standing under the laws of the State of Delaware, (B) is duly
qualified to do business and is in good standing under the laws of each
jurisdiction in which failure to be so qualified and in good standing will have
a Material Adverse Effect, (C) has all requisite power and authority to own,
operate and encumber its Property and to conduct its business as presently
conducted and as proposed to be conducted in connection with and following the
consummation of the transactions contemplated by this Agreement, and (D) is a
partnership for federal income tax purposes.
(iv) True, correct and complete copies of the Organizational Documents of
the Borrower, the Company and RMOP identified on Schedule 7.1-A have been
delivered to the Administrative Agent, each of which is in full force and
effect, has not been modified or amended except to the extent set forth
indicated therein or as otherwise permitted hereby and, to the best of the
Borrower's and RMOP's knowledge, there are no defaults under such Organizational
Documents and no events which, with the passage of time or giving of notice or
both, would constitute a default under such Organizational Documents. Borrower
shall update Schedule 7.1-A from time to time in order to keep said Schedule
true and correct.
(v) Neither the Borrower, RMOP nor the Company are "foreign persons" within
the meaning of Section 1445 of the Internal Revenue Code.
(b) Authority. (i) The Company has the requisite power and authority to
execute and deliver this Agreement on behalf of the Borrower and each of the
other Loan Documents which are required to be executed on behalf of the Borrower
as required by this Agreement. The Company is the Person who has executed this
Agreement and such other Loan Documents on behalf of the Borrower and is the
sole general partner of the Borrower.
(ii) Xxxxxxx Xxxxxx Industrial Interim GP LLC has the requisite power and
authority to execute and deliver this Agreement on behalf of RMOP and each of
the other Loan Documents which are required to be executed on behalf of RMOP as
required by this Agreement. Xxxxxxx Xxxxxx Industrial Interim GP LLC is the
Person who has executed this Agreement and such other Loan Documents on behalf
of RMOP and, together with RMIT, are the sole general partners of RMOP.
(iii) The execution, delivery and performance of each of the Loan Documents
which must be executed in connection with this Agreement by the Borrower and to
which the Borrower is a party and the consummation of the transactions
contemplated thereby are within the Borrower's partnership powers, have been
duly authorized by all necessary partnership action (and, in the case of the
Company acting on behalf of the Borrower in connection therewith, all necessary
corporate action of the Company) and such authorization has not been rescinded.
No other partnership or corporate action or proceedings on the part of the
Borrower or the Company is necessary to consummate such transactions.
(iv) The execution, delivery and performance of each of the Loan Documents
which must be executed in connection with this Agreement by RMOP and to which
RMOP is a party and the consummation of the transactions contemplated thereby
are within RMOP's partnership powers, have been duly authorized by all necessary
partnership action (and, in the case of Xxxxxxx Xxxxxx Industrial Interim GP LLC
acting on behalf of RMOP in connection therewith, all necessary limited
liability company action of Xxxxxxx Xxxxxx Industrial Interim GP LLC) and such
authorization has not been rescinded. No other partnership or limited liability
company action or proceedings on the part of RMOP or Xxxxxxx Xxxxxx Industrial
Interim GP LLC is necessary to consummate such transactions.
(v) Each of the Loan Documents to which the Borrower is a party has been
duly executed and delivered on behalf of the Borrower and constitutes the
Borrower's legal, valid and binding obligation, enforceable against the Borrower
in accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally or by general principles of equity regardless of
whether enforcement is considered in a proceeding at law or in equity. Each of
the Loan Documents to which Borrower is a party is in full force and effect and
all the terms, provisions, agreements and conditions set forth therein and
required to be performed or complied with by the Company, the Borrower and the
Borrower's Subsidiaries on or before the Initial Funding Date have been
performed or complied with, and no Potential Event of Default or Event of
Default exists hereunder.
(vi) Each of the Loan Documents to which RMOP is a party has been duly
executed and delivered on behalf of RMOP and constitutes RMOP's legal, valid and
binding obligation, enforceable against the Borrower in accordance with its
terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally or by general principles of equity regardless of whether enforcement
is considered in a proceeding at law or in equity. Each of the Loan Documents to
which RMOP is a party is in full force and effect and all the terms, provisions,
agreements and conditions set forth therein and required to be performed or
complied with by RMOP on or before the Initial Funding Date have been performed
or complied with, and no Potential Event of Default or Event of Default exists
hereunder.
(c) Subsidiaries; Ownership of Capital Stock and Partnership Interests. (i)
Schedule 7.1-C (A) contains a diagram indicating the corporate structure of the
Company, the Borrower, RMOP, and any other Person in which the Company, the
Borrower or RMOP holds a direct or indirect partnership, joint venture or other
equity interest indicating the nature of such interest with respect to each
Person included in such diagram; and (B) accurately sets forth (1) the correct
legal name of such Person, the jurisdiction of its incorporation or organization
and the jurisdictions in which it is qualified to transact business as a foreign
corporation, or otherwise, and (2) the authorized, issued and outstanding shares
or interests of each class of equity Securities of the Company, the Borrower,
RMOP and the Subsidiaries of the Borrower and RMOP, and (3) the ownership
interest of the Borrower, the Company, RMOP and the Subsidiaries of the Borrower
and RMOP in all Minority Holdings. None of such issued and outstanding
Securities is subject to any vesting, redemption, or repurchase agreement, and
there are no warrants or options (other than Permitted Securities Options)
outstanding with respect to such Securities, except as noted on Schedule 7.1-C.
The outstanding Capital Stock of the Company is duly authorized, validly issued,
fully paid and nonassessable and the outstanding Securities of the Borrower,
RMOP and their Subsidiaries are duly authorized and validly issued. Attached
hereto as part of Schedule 7.1-C is a true, accurate and complete copy of the
Borrower Partnership Agreement as in effect on the Closing Date and such
Partnership Agreement has not been amended, supplemented, replaced, restated or
otherwise modified in any respect since the Closing Date, except as otherwise
permitted hereby. Attached hereto as part of Schedule 7.1-C is a true, accurate
and complete copy of RMOP Partnership Agreement as in effect on the Closing Date
and such RMOP Partnership Agreement has not been amended, supplemented,
replaced, restated or otherwise modified in any respect since the Closing Date,
except as otherwise permitted hereby. Borrower shall update Schedule 7.1-C as of
the first day of each fiscal quarter, and shall deliver the same together with
the Quarterly Compliance Certificates, to the extent required, in order to keep
said Schedule true and correct.
(ii) Except where failure would not have a Material Adverse Effect on the
Borrower or RMOP, as the case may be, each of its Subsidiary: (A) is a
corporation or partnership, as indicated on Schedule 7.1-C, duly organized or
formed, validly existing and, if applicable, in good standing under the laws of
the jurisdiction of its organization, (B) is duly qualified to do business and,
if applicable, is in good standing under the laws of each jurisdiction in which
failure to be so qualified and in good standing would have a Material Adverse
Effect, and (C) has all requisite power and authority to own, operate and
encumber its Property and to conduct its business as presently conducted and as
proposed to be conducted hereafter.
(d) No Conflict. The execution, delivery and performance of each of the
Loan Documents to which the Borrower or RMOP is a party, respectively, do not
and will not (i) conflict with the Organizational Documents of the Borrower, of
the Company, RMOP, Xxxxxxx Xxxxxx Industrial Interim GP LLC or RMIT, as the case
may be, (ii) conflict with, result in a breach of or constitute (with or without
notice or lapse of time or both) a default under any Requirement of Law or
material Contractual Obligation of the Borrower, the Company, RMOP, Xxxxxxx
Xxxxxx Industrial Interim GP LLC or RMIT, as the case may be, or require
termination of any such material Contractual Obligation which would subject the
Administrative Agent or any of the other Lenders to any liability, (iii) result
in or require the creation or imposition of any Lien whatsoever upon any of the
Property or assets of the Borrower, the Company, RMOP, Xxxxxxx Xxxxxx Industrial
Interim GP LLC or RMIT, as the case may be, or (iv) require any approval of
shareholders of the Company or the members of Xxxxxxx Xxxxxx Industrial Interim
GP LLC or the trustees of RMIT (other than such approvals that have been
obtained and are in full force and effect).
(e) Governmental Consents. The execution, delivery and performance of each
of the Loan Documents to which the Borrower and/or RMOP, as the case may be, is
a party do not and will not require any registration with, consent or approval
of, or notice to, or other action to, with or by any Governmental Authority,
except filings, consents or notices which have been made, obtained or given.
(f) Governmental Regulation. None of the Borrower, the Company, RMOP or
Xxxxxxx Xxxxxx Industrial Interim GP LLC is subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, or the Investment Company Act of 1940, or any other
federal or state statute or regulation which limits its ability to incur
indebtedness as contemplated by this Agreement.
(g) Financial Position. Complete and accurate copies of the following
financial statements and materials have been delivered to the Administrative
Agent: annual unaudited financial statements of the Borrower and annual audited
financial statements of the Company for the fiscal year ended December 31, 1997.
All annual financial statements of the Borrower shall be accompanied by an
Officer's Certificate of the Borrower, and shall be certified by the Chief
Financial Officer of the Borrower as fairly presenting in all material respects
the financial position of the Borrower. All financial statements included in
such materials were prepared in all material respects in conformity with GAAP,
except as otherwise noted therein, and fairly present in all material respects
the respective consolidated financial positions, and the consolidated results of
operations and cash flows for each of the periods covered thereby of the
Borrower and the Company as at the respective dates thereof. Neither the
Borrower or the Company has any Contingent Obligation, contingent liability or
liability for any taxes, long-term leases or commitments, not reflected in its
financial statements delivered to the Administrative Agent on or prior to the
Closing Date or otherwise disclosed to the Administrative Agent and the Lenders
in writing on or prior to the Closing Date, which will have a Material Adverse
Effect. The Lenders hereby acknowledge that no financial statements of RMOP will
be delivered as of the Closing Date and that the first financial statements of
RMOP to be delivered hereunder will be with respect to the quarter ending
September 30, 1998.
(h) Indebtedness. Schedule 7.1-H sets forth, as of March 31, 1998, all
Indebtedness for borrowed money of each of the Borrower, RMOP, Company, Xxxxxxx
Xxxxxx Industrial Interim GP LLC, RMIT and their respective Subsidiaries and,
except as set forth on Schedule 7.1-H, there are no defaults in the payment of
principal or interest on any such Indebtedness and no payments thereunder have
been deferred or extended beyond their stated maturity and there has been no
material change in the type or amount of such Indebtedness (except for the
repayment of certain Indebtedness) since March 31, 1998.
(i) Litigation; Adverse Effects. Except as set forth in Schedule 7.1-I, as
of the Closing Date, there is no action, suit, proceeding, investigation or
arbitration before or by any Governmental Authority or private arbitrator
pending or, to the knowledge of the Borrower, threatened against the Company,
the Borrower, RMOP, Xxxxxxx Xxxxxx Industrial Interim GP LLC, RMIT or any of
their respective Subsidiaries, or any Property of any of them (i) challenging
the validity or the enforceability of any of the Loan Documents, (ii) which will
result in any Material Adverse Effect, or (iii) under the Racketeering
Influenced and Corrupt Organizations Act or any similar federal or state statute
where such Person is a defendant in a criminal indictment that provides for the
forfeiture of assets to any Governmental Authority as a potential criminal
penalty. There is no material loss contingency within the meaning of GAAP which
has not been reflected in the consolidated financial statements of the Company
and the Borrower. None of the Company, the Borrower, RMOP, Xxxxxxx Xxxxxx
Industrial Interim GP LLC, RMIT or any Subsidiary of the Borrower is (A) in
violation of any applicable Requirements of Law which violation will have or is
reasonably likely to have a Material Adverse Effect, or (B) in default with
respect to any final judgment, writ, injunction, restraining order or order of
any nature, decree, rule or regulation of any court or Governmental Authority
which will have a Material Adverse Effect.
(j) No Material Adverse Effect. Since March 31, 1998, there has occurred no
event which has had a Material Adverse Effect.
(k) Intentionally Omitted.
(l) Payment of Taxes. All material tax returns, reports and similar
statements or filings of the Company, the Borrower, RMOP, Xxxxxxx Xxxxxx
Industrial Interim GP LLC, RMIT and their respective Subsidiaries required to be
filed have been timely filed (or extensions to file have been obtained), and,
except for Customary Permitted Liens, all material taxes, assessments, fees and
other charges of Governmental Authorities thereupon and upon or relating to
their respective Properties, assets, receipts, sales, use, payroll, employment,
income, licenses and franchises which are shown in such returns or reports to be
due and payable have been paid, except to the extent (i) such taxes,
assessments, fees and other charges of Governmental Authorities are being
contested in good faith by an appropriate proceeding diligently pursued as
permitted by the terms of Section 9.4 and (ii) such taxes, assessments, fees and
other charges of Governmental Authorities pertain to Property of the Borrower or
any of its Subsidiaries and the non-payment of the amounts thereof would not,
individually or in the aggregate, result in a Material Adverse Effect. All other
material taxes (including, without limitation, real estate taxes), assessments,
fees and other governmental charges upon or relating to the respective
Properties of the Borrower and its Subsidiaries which are due and payable have
been paid, except for Customary Permitted Liens and except to the extent
described in clauses (i) and (ii) hereinabove. The Borrower has no knowledge of
any proposed tax assessment against the Borrower, any of its Subsidiaries, or
any of the Projects that will have or is reasonably likely to have a Material
Adverse Effect. RMOP has no knowledge of any proposed tax assessment against
RMOP, any of its Subsidiaries, or any of the Projects that will have or is
reasonably likely to have a Material Adverse Effect.
(m) Performance. To the knowledge of the Borrower or RMOP, neither the
Company, RMOP, Xxxxxxx Xxxxxx Industrial Interim GP LLC, RMIT, the Borrower nor
any of their Subsidiaries has received any written notice or citation, nor has
actual knowledge, that (i) it is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in any
Contractual Obligation applicable to it, or (ii) any condition exists which,
with the giving of notice or the lapse of time or both, would constitute a
default with respect to any such Contractual Obligation, in each case, except
where such default or defaults, if any, will not have a Material Adverse Effect.
(n) Disclosure. The representations and warranties of the Borrower and RMOP
contained in the Loan Documents, and all certificates and other documents
delivered to the Administrative Agent pursuant to the terms thereof, do not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained herein or therein, in light
of the circumstances under which they were made, taken as a whole, not
misleading. Notwithstanding the foregoing, the Lenders acknowledge that neither
the Borrower nor RMOP shall have liability under this clause (n) with respect to
its projections of future events or for any financial projections.
(o) Requirements of Law. The Borrower, RMOP and each of their Subsidiaries
is in compliance with all Requirements of Law applicable to it and its
respective businesses and Properties, in each case where the failure to so
comply individually or in the aggregate will have a Material Adverse Effect.
(p) Environmental Matters.
(i) Except as disclosed on Schedule 7.1-P (the Borrower and RMOP shall
update Schedule 7.1-P as of the first day of each fiscal quarter, and deliver
the same together with the Quarterly Compliance Certificates, to the extent
required, in order to keep said Schedule true and correct):
(A) the operations of the Borrower, RMOP, each of their Subsidiaries, and
their respective Properties comply with all applicable Environmental, Health or
Safety Requirements of Law, except to the extent any failure to do so would not
have a Material Adverse Effect;
(B) the Borrower, RMOP and each of their Subsidiaries have obtained all
material environmental, health and safety Permits necessary for their respective
operations, and all such Permits are in good standing and the holder of each
such Permit is currently in compliance with all terms and conditions of such
Permits, except to the extent any failure to do so would not have a Material
Adverse Effect;
(C) to the knowledge of the Borrower or RMOP, none of the Borrower, RMOP
nor any of their Subsidiaries or any of their respective present or past
Property or operations are subject to or are the subject of any investigation of
any Governmental Authority, judicial or administrative proceeding, order,
judgment or decree, negotiations, agreement or settlement respecting (I) any
Remedial Action, (II) any Claims or Liabilities and Costs arising from the
Release or threatened Release of a Contaminant into the environment, or (III)
any violation of or liability under any Environmental, Health or Safety
Requirement of Law, except to the extent none of the foregoing would have a
Material Adverse Effect;
(D) none of Borrower, RMOP or any of their Subsidiaries has filed any
notice under any applicable Requirement of Law (I) reporting a Release of a
Contaminant; (II) indicating past or present treatment, storage or disposal of a
hazardous waste, as that term is defined under 40 C.F.R. Part 261 or any state
equivalent; or (III) reporting a violation of any applicable Environmental,
Health or Safety Requirement of Law with respect to any of the foregoing, the
substance of which would have a Material Adverse Effect;
(E) none of the Borrower's, RMOP's or any of their Subsidiaries' present or
past Property is listed or, to the knowledge of the Borrower or RMOP, proposed
for listing on the National Priorities List ("NPL") pursuant to CERCLA or on the
Comprehensive Environmental Response Compensation Liability Information System
List ("CERCLIS") or any similar state list of sites requiring Remedial Action;
(F) to the knowledge of the Borrower or RMOP, none of the Borrower, RMOP or
any of their Subsidiaries has sent or directly arranged for the transport of any
waste to any site listed or proposed for listing on the NPL, CERCLIS or any
similar state list;
(G) to the best of Borrower's or RMOP's knowledge, there is not now, and to
Borrower's knowledge there has never been on or in any Project, (I) any
treatment, recycling, storage away from the site of generation or disposal of
any hazardous waste, as that term is defined under 40 C.F.R. Part 261 or any
state equivalent, (II) any solid waste management facility, (III) any
underground storage tanks the presence or use of which is in violation of
applicable Environmental, Health or Safety Requirements of Law, (IV) any
asbestos-containing material which, in its present state, such Person has any
reason to believe could subject such Person or its Property to Liabilities and
Costs arising out of or relating to environmental, health or safety matters that
would result in a Material Adverse Effect; or (V) any polychlorinated biphenyls
(PCB) used in hydraulic oils, electrical transformers or other Equipment, which,
in any such case, would subject the Borrower or RMOP or their Property to
Liabilities and Costs arising out of or relating to environmental, health or
safety matters that would result in a Material Adverse Effect;
(H) to the knowledge of the Borrower, none of the Borrower, RMOP or any of
their Subsidiaries has received any notice or Claim to the effect that any of
such Persons is or may be liable to any Person as a result of the Release or
threatened Release of a Contaminant into the environment which would result in a
Material Adverse Effect;
(I) none of the Borrower, RMOP or any of their Subsidiaries has any
contingent liability in connection with any Release or threatened Release of any
Contaminants into the environment which will result in a Material Adverse
Effect;
(J) no Environmental Lien has attached to any Property of the Borrower,
RMOP or any Subsidiary of either (other than those otherwise permitted
hereunder) or which do not constitute an Event of Default; and
(K) no Property of the Borrower, RMOP or any Subsidiary of either is
subject to any Environmental Property Transfer Act, or to the extent such acts
are applicable to any such Property, the Borrower and/or such Subsidiary whose
Property is subject thereto has complied in all material respects with the
requirements of such acts.
(q) ERISA. Neither the Borrower nor any ERISA Affiliate maintains or
contributes to any Benefit Plan or Multiemployer Plan other than those listed on
Schedule 7.1-Q hereto. Each Plan which is intended to be qualified under Section
401(a) of the Internal Revenue Code as currently in effect has been determined
by the IRS to be so qualified, and each trust related to any such Plan has been
determined to be exempt from federal income tax under Section 501(a) of the
Internal Revenue Code as currently in effect. Except as disclosed in Schedule
7.1-Q, neither the Borrower nor any of its Subsidiaries maintains or contributes
to any employee welfare benefit plan within the meaning of Section 3(1) of ERISA
that provides benefits to employees after termination of employment other than
as required by Section 601 of ERISA. The Borrower and each of its Subsidiaries
is in compliance in all material respects with the responsibilities, obligations
and duties imposed on it by ERISA, the Internal Revenue Code and regulations
promulgated thereunder with respect to all Plans. No Benefit Plan has incurred
any accumulated funding deficiency (as defined in Sections 302(a)(2) of ERISA
and 412(a) of the Internal Revenue Code) whether or not waived. Neither the
Borrower nor any ERISA Affiliate nor any fiduciary of any Plan which is not a
Multiemployer Plan (i) has engaged in a nonexempt prohibited transaction
described in Sections 406 of ERISA or 4975 of the Internal Revenue Code or (ii)
has taken or failed to take any action which would constitute or result in a
Termination Event. Neither the Borrower nor any ERISA Affiliate is subject to
any liability under Sections 4063, 4064, or 4204 of ERISA which would have a
Material Adverse Effect. Neither the Borrower nor any ERISA Affiliate is subject
to any liability under Sections 4069 or 4212(c) of ERISA or has incurred any
liability to the PBGC which remains outstanding other than the payment of
premiums, and there are no premium payments which have become due which are
unpaid. Schedule B to the most recent annual report filed with the IRS with
respect to each Benefit Plan has been furnished to the Administrative Agent and
is complete and accurate in all material respects. Since the date of each such
Schedule B, there has been no material adverse change in the funding status or
financial condition of the Benefit Plan relating to such Schedule B. Neither the
Borrower nor any ERISA Affiliate has (i) failed to make a required contribution
or payment to a Multiemployer Plan or (ii) made a complete or partial withdrawal
under Sections 4203 or 4205 of ERISA from a Multiemployer Plan which would have
a Material Adverse Effect. Neither the Borrower, nor any ERISA Affiliate has
failed to make a required installment or any other required payment under
Section 412 of the Internal Revenue Code on or before the due date for such
installment or other payment. Neither the Borrower nor any ERISA Affiliate is
required to provide security to a Benefit Plan under Section 401(a)(29) of the
Internal Revenue Code due to a Benefit Plan amendment that results in an
increase in current liability for the plan year. Except as disclosed on Schedule
7.1-Q, which shall be updated by Borrower as of the first day of each fiscal
quarter, to the extent required, neither the Borrower nor any of its
Subsidiaries has, by reason of the transactions contemplated hereby, any
obligation to make any payment to any employee pursuant to any Plan or existing
contract or arrangement.
(r) Securities Activities. Neither the Borrower nor RMOP is engaged in the
business of extending credit for the purpose of purchasing or carrying Margin
Stock except as described on Schedule 7.1(r).
(s) Solvency. After giving effect to the Loans to be made on the Initial
Funding Date or such other date as Loans requested hereunder are made, and the
disbursement of the proceeds of such Loans pursuant to the Borrower's or RMOP's
instructions, each of the Borrower and RMOP is Solvent.
(t) Insurance. Schedule 7.1-T accurately sets forth as of the Closing Date
all insurance policies and programs currently in effect with respect to the
respective Property and assets and business of the Borrower and its
Subsidiaries, specifying for each such policy and program, (i) the amount
thereof, (ii) the risks insured against thereby, (iii) the name of the insurer
and each insured party thereunder, (iv) the policy or other identification
number thereof, and (v) the expiration date thereof. The Borrower has delivered
to the Administrative Agent copies of all insurance policies set forth on
Schedule 7.1-T. Such insurance policies and programs are currently in full force
and effect, in compliance with the requirements of Section 9.5 hereof and,
together with payment by the insured of scheduled deductible payments, are, to
the knowledge of the Borrower, in amounts which should reasonably be expected to
be sufficient to cover the replacement value of the respective Property and
assets of the Borrower and/or its Subsidiaries. Borrower shall update Schedule
7.1-T, which shall be updated by Borrower annually, to the extent required, in
order to keep said Schedule true and correct (or more frequently if an insurance
policy or program shall be terminated and/or replaced).
(u) REIT Status. The Company qualifies as a REIT under the Internal Revenue
Code.
(v) Ownership of Projects, Minority Holdings and Property. Ownership of all
wholly owned Projects, Minority Holdings and other Property of the Consolidated
Businesses is held by the Borrower and its Subsidiaries and is not held directly
by the Company.
(w) Year 2000 Compliance. The Borrower has commenced a comprehensive review
and assessment of the Borrower's computer applications and has commenced inquiry
of the Borrower's key suppliers, vendors and customers with respect to the "year
2000 problem" (that is, the risk that computer applications may not be able to
properly perform date sensitive functions after December 31, 1999) and, based on
that review and inquiry, the Borrower does not believe the year 2000 problem
will result in a Material Adverse Effect. The Borrower will complete such
review, assessment and inquiry on or before [June 30], 1999.
ARTICLE VIII
REPORTING COVENANTS
The Borrower and RMOP each covenants and agrees that so long as any
Revolving Credit Commitments are outstanding and thereafter until payment in
full of all of the Obligations (other than indemnities pursuant to Section 14.3
not yet due), unless the Requisite Lenders shall otherwise give prior written
consent thereto:
8.1. Borrower Accounting Practices. The Borrower and RMOP each shall
maintain, and cause each of its consolidated Subsidiaries to maintain, a system
of accounting established and administered in accordance with sound business
practices to permit preparation of consolidated financial statements in
conformity with GAAP.
8.2. Financial Reports. The Borrower and RMOP each shall deliver or cause
to be delivered to the Administrative Agent (with copies for each of the
Lenders):
(a) Quarterly Reports.
(i) Borrower and RMOP Quarterly Financial Reports. As soon as practicable,
and in any event within forty-five (45) days after the end of each fiscal
quarter in each Fiscal Year (other than the last fiscal quarter in each Fiscal
Year), a consolidated balance sheet of the Borrower and the related consolidated
statements of income and cash flow of the Borrower or RMOP (to be prepared and
delivered quarterly in conjunction with the other reports delivered hereunder at
the end of each fiscal quarter) for each such fiscal quarter, and, in
comparative form, the corresponding figures for the corresponding periods of the
previous Fiscal Year, certified by an Authorized Financial Officer of the
Borrower or RMOP, as the case may be, as fairly presenting in all material
respects the consolidated financial position of the Borrower or RMOP as of the
dates indicated and the results of their operations and cash flow for the months
indicated in accordance with GAAP, subject to normal quarterly adjustments.
(ii) Company Quarterly Financial Reports. As soon as practicable, and in
any event within forty-five (45) days after the end of each fiscal quarter in
each Fiscal Year (other than the last fiscal quarter in each Fiscal Year), the
Financial Statements of the Company and its consolidated Subsidiaries on Form
10-Q as at the end of such period and a report setting forth in comparative form
the corresponding figures for the corresponding period of the previous Fiscal
Year, certified by an Authorized Financial Officer of the Company as fairly
presenting in all material respects the consolidated financial position of the
Company and its consolidated Subsidiaries as at the date indicated and the
results of their operations and cash flow for the period indicated in accordance
with GAAP, subject to normal adjustments.
(iii) Quarterly Compliance Certificates. Together with each delivery of any
quarterly report pursuant to paragraph (a)(i) of this Section 8.2, the Borrower,
RMOP and RMOP each shall deliver Officer's Certificates of the Borrower and the
Company (the "Quarterly Compliance Certificates"), signed by the Borrower's,
RMOP's and the Company's respective Authorized Financial Officers representing
and certifying (1) that the Authorized Financial Officer signatory thereto has
reviewed the terms of the Loan Documents, and has made, or caused to be made
under his/her supervision, a review in reasonable detail of the consolidated
financial condition of the Company and its Consolidated Subsidiaries, for the
fiscal quarter covered by such reports, that such review has not disclosed the
existence during or at the end of such fiscal quarter, and that such officer
does not have knowledge of the existence as at the date of such Officer's
Certificate, of an Event of Default or Potential Event of Default or mandatory
prepayment event, or, if any such condition or event existed or exists, the
nature and period of existence thereof and what action the Company and/or the
Borrower and/or RMOP or any of their Subsidiaries has taken, is taking and
proposes to take with respect thereto; (2) the calculations in the form of
Exhibit G hereto for the period then ended which demonstrate compliance with the
covenants and financial ratios set forth in Sections 9.9, 9.11, 10.2, 10.6,
10.7, 10.11, and 10.12 hereof and, when applicable, that no Event of Default
described in Section 11.1 exists, (3) a schedule of the Borrower's and RMOP's
outstanding Indebtedness, including the amount, maturity, interest rate and
amortization requirements, as well as such other information regarding such
Indebtedness as may be reasonably requested by the Administrative Agent, (4) a
schedule of Total Adjusted EBITDA, and (5) a schedule of Adjusted Unencumbered
NOI.
(b) Annual Reports.
(i) Borrower and RMOP Financial Statements. As soon as practicable, and in
any event within ninety (90) days after the end of each Fiscal Year, the
Financial Statements of the Borrower and RMOP and their respective Subsidiaries
as at the end of such Fiscal Year, accompanied by an Officer's Certificate of
the Borrower or RMOP, certified by the Chief Financial Officer of the Borrower
or RMOP, as the case may be, that the Financial Statements fairly present in all
material respects the consolidated financial position of each of the Borrower
and RMOP and their respective Subsidiaries as of the dates indicated and the
results of their operations and cash flow for the periods indicated in
conformity with GAAP consistently applied, and which Officer's Certificate shall
explain any inconsistencies between the Financial Statements of the Borrower,
RMOP and the Financial Statements of the Company.
(ii) Company Financial Statements. As soon as practicable, and in any event
within ninety (90) days after the end of each Fiscal Year, (i) the Financial
Statements of the Company and its consolidated Subsidiaries on Form 10-K as at
the end of such Fiscal Year and a report setting forth in comparative form the
corresponding figures from the consolidated Financial Statements of the Company
and its Subsidiaries for the prior Fiscal Year; (ii) a report with respect
thereto of Ernst & Young LLP or other independent certified public accountants
acceptable to the Administrative Agent (it being understood that any "Big Six"
certified public accountants are acceptable to the Administrative Agent), which
report shall be unqualified and shall state that such financial statements
fairly present the consolidated financial position of each of the Company and
its consolidated Subsidiaries as at the dates indicated and the results of their
operations and cash flow for the periods indicated in conformity with GAAP
(except for changes with which Ernst & Young LLP or any such other independent
certified public accountants, if applicable, shall concur and which shall have
been disclosed in the notes to the financial statements)(which report shall be
subject to the confidentiality limitations set forth herein); and (iii) in the
event that the report referred to in clause (ii) above is qualified, a copy of
the management letter or any similar report delivered to the Company or to any
officer or employee thereof by such independent certified public accountants in
connection with such financial statements. The Administrative Agent and each
Lender (through the Administrative Agent) may, with the consent of the Company
(which consent shall not be unreasonably withheld), communicate directly with
such accountants, with any such communication to occur together with a
representative of the Company, at the expense of the Administrative Agent (or
the Lender requesting such communication), upon reasonable notice and at
reasonable times during normal business hours.
(iii) Annual Compliance Certificates. Together with each delivery of any
annual report pursuant to clauses (i) and (ii) of this Section 8.2(b), the
Borrower and RMOP each shall deliver Officer's Certificates of the Borrower and
the Company (the "Annual Compliance Certificates" and, collectively with the
Quarterly Compliance Certificates, the "Compliance Certificates"), signed by the
Borrower's, RMOP's and the Company's respective Authorized Financial Officers,
representing and certifying (1) that the officer signatory thereto has reviewed
the terms of the Loan Documents, and has made, or caused to be made under
his/her supervision, a review in reasonable detail of the consolidated financial
condition of the Company and its consolidated Subsidiaries, for the accounting
period covered by such reports, that such review has not disclosed the existence
at the end of such accounting period, and that such officer does not have
knowledge of the existence as at the date of such Officer's Certificate, of an
Event of Default or Potential Event of Default or mandatory prepayment event,
or, if any such condition or event existed or exists, the nature and period of
existence thereof and what action the Company and/or the Borrower and/or RMOP or
any of their Subsidiaries has taken, is taking and proposes to take with respect
thereto; (2) the calculations in the form of Exhibit G hereto for the period
then ended which demonstrate compliance with the covenants and financial ratios
set forth in Sections 9.9, 9.11, 10.2, 10.6, 10.7, 10.11, and 10.12 hereof and,
when applicable, that no Event of Default described in Section 11.1 exists, (3)
a schedule of the Borrower's and RMOP's outstanding Indebtedness including the
amount, maturity, interest rate and amortization requirements, as well as such
other information regarding such Indebtedness as may be reasonably requested by
the Administrative Agent, (4) a schedule of Total Adjusted EBITDA and (5) a
schedule of Adjusted Unencumbered NOI.
(iv) Tenant Bankruptcy Reports. As soon as practicable, and in any event
within ninety (90) days after the end of each Fiscal Year, the Borrower and RMOP
shall deliver a written report, in form reasonably satisfactory to the
Administrative Agent, of all bankruptcy proceedings filed by or against any
tenant of any of the Projects, which tenant occupies three and one half percent
(3.5%) or more of the gross leasable area in the Projects in the aggregate. The
Borrower and RMOP shall deliver to the Administrative Agent and the Lenders,
immediately upon the Borrower's or RMOP's learning thereof, of any bankruptcy
proceedings filed by or against, or the cessation of business or operations of,
any tenant of any of the Projects which tenant occupies three and one half
percent (3.5%) or more of the gross leasable area in the Projects in the
aggregate.
(v) Property Reports. Simultaneously with the delivery of the Compliance
Certificates, a rent roll.
8.3. Events of Default. Promptly upon the Borrower or RMOP obtaining
knowledge (a) of any condition or event which constitutes an Event of Default or
Potential Event of Default; (b) that any Person has given any notice to the
Borrower or RMOP or any Subsidiary of the Borrower or RMOP or taken any other
action with respect to a claimed default or event or condition of the type
referred to in Section 11.1(e); or (c) or of any condition or event which has a
Material Adverse Effect, the Borrower and/or RMOP shall deliver to the
Administrative Agent (with copies for each of the Lenders) an Officer's
Certificate specifying (i) the nature and period of existence of any such
claimed default, Event of Default, Potential Event of Default, condition or
event, (ii) the notice given or action taken by such Person in connection
therewith, and (iii) what action the Borrower or RMOP, as the case may be, has
taken, is taking and proposes to take with respect thereto.
8.4. Lawsuits. (i) Promptly upon the Borrower's or RMOP's obtaining
knowledge of the institution of, or written threat of, any action, suit,
proceeding, governmental investigation or arbitration against or affecting the
Borrower, RMOP or any of their Subsidiaries not previously disclosed pursuant to
Section 7.1(i), which action, suit, proceeding, governmental investigation or
arbitration exposes, or in the case of multiple actions, suits, proceedings,
governmental investigations or arbitrations arising out of the same general
allegations or circumstances which expose, in the Borrower's or RMOP's
reasonable judgment, the Borrower, RMOP or any of their Subsidiaries to
liability in an amount aggregating $1,000,000 or more and is not covered by the
Borrower's, RMOP's or such Subsidiary's insurance, the Borrower and/or RMOP
shall give written notice thereof to the Administrative Agent (with copies for
each of the Lenders) and provide such other information as may be reasonably
available to enable each Lender and the Administrative Agent and its counsel to
evaluate such matters; (ii) as soon as practicable and in any event within
forty-five (45) days after the end of each fiscal quarter of the Borrower or
RMOP, the Borrower or RMOP shall provide a written quarterly report to the
Administrative Agent and the Lenders covering the institution of, or written
threat of, any action, suit, proceeding, governmental investigation or
arbitration in an amount equal to or in excess of $50,000,000 to the extent not
previously reported) against or affecting the Borrower, RMOP or any of their
Subsidiaries or any Property of the Borrower, RMOP or any of their Subsidiaries
not previously disclosed by the Borrower or RMOP to the Administrative Agent and
the Lenders, and shall provide such other information at such time as may be
reasonably available to enable each Lender and the Administrative Agent and its
counsel to evaluate such matters; and (iii) in addition to the requirements set
forth in clauses (i) and (ii) of this Section 8.4, the Borrower and RMOP upon
request of the Administrative Agent or the Requisite Lenders shall promptly give
written notice of the status of any action, suit, proceeding, governmental
investigation or arbitration covered by a report delivered pursuant to clause
(i) or (ii) above and provide such other information as may be reasonably
requested and available to it to enable each Lender and the Administrative Agent
and its counsel to evaluate such matters. Notwithstanding the foregoing, neither
the Borrower nor RMOP shall be not required to disclose any information which is
subject to the attorney-client privilege.
8.5. Insurance. As soon as practicable and in any event by January 31st of
each calendar year, the Borrower shall deliver to the Administrative Agent (with
copies for each of the Lenders) (i) a report in form and substance reasonably
satisfactory to the Administrative Agent outlining all insurance coverage
maintained as of the date of such report by the Borrower and its Subsidiaries
and the duration of such coverage and (ii) an Officer's Certificate of signed by
an Authorized Financial Officer of the Borrower certifying that all premiums
with respect to such coverage have been paid when due.
8.6. ERISA Notices. The Borrower shall deliver or cause to be delivered to
the Administrative Agent (with copies for each of the Lenders), at the
Borrower's expense, the following information and notices as soon as reasonably
possible, and in any event: 1.10.
(a) within fifteen (15) Business Days after the Borrower or any
ERISA Affiliate knows or has reason to know that a Termination Event
has occurred, a written statement of an Authorized Financial Officer
of the Borrower describing such Termination Event and the action, if
any, which the Borrower or any ERISA Affiliate has taken, is taking or
proposes to take with respect thereto, and when known, any action
taken or threatened by the IRS, DOL or PBGC with respect thereto;
(b) within fifteen (15) Business Days after the Borrower knows or
has reason to know that a non-exempt prohibited transaction (as
defined in Sections 406 of ERISA and Section 4975 of the Internal
Revenue Code) has occurred with respect to the Borrower, any ERISA
Affiliate or any Plan, a statement of an Authorized Financial Officer
of the Borrower describing such transaction with respect to the
Borrower any ERISA Affiliate or any Plan and the action which the
Borrower or any ERISA Affiliate has taken, is taking or proposes to
take with respect thereto;
(c) within fifteen (15) Business Days after the filing of the
same with the DOL, IRS or PBGC, copies of each annual report (Form
5500 series), including Schedule B thereto, filed with respect to each
Benefit Plan;
(d) within fifteen (15) Business Days after receipt by the
Borrower or any ERISA Affiliate of each actuarial report for any
Benefit Plan or Multiemployer Plan and each annual report for any
Multiemployer Plan, copies of each such report;
(e) within fifteen (15) Business Days after the filing of the
same with the IRS, a copy of each funding waiver request filed with
respect to any Benefit Plan and all written communications received by
the Borrower or any ERISA Affiliate with respect to such request;
(f) within fifteen (15) Business Days after the occurrence of any
material increase in the benefits of any existing Benefit Plan or
Multiemployer Plan or the establishment of any new Benefit Plan or the
commencement of contributions to any Benefit Plan or Multiemployer
Plan to which the Borrower or any ERISA Affiliate to which the
Borrower or any ERISA Affiliate was not previously contributing,
notification of such increase, establishment or commencement;
(g) within fifteen (15) Business Days after the Borrower or any
ERISA Affiliate receives notice of the PBGC's intention to terminate a
Benefit Plan or to have a trustee appointed to administer a Benefit
Plan, copies of each such notice;
(h) within fifteen (15) Business Days after the Borrower or any
of its Subsidiaries receives notice of any unfavorable determination
letter from the IRS regarding the qualification of a Plan under
Section 401(a) of the Internal Revenue Code, copies of each such
letter to the extent any of the foregoing would have a Material
Adverse Effect;
(i) within fifteen (15) Business Days after the Borrower or any
ERISA Affiliate receives notice from a Multiemployer Plan regarding
the imposition of withdrawal liability, copies of each such notice;
(j) within fifteen (15) Business Days after the Borrower or any
ERISA Affiliate fails to make a required installment or any other
required payment under Section 412 of the Internal Revenue Code on or
before the due date for such installment or payment which failure has
not been cured, a notification of such failure; and
(k) within fifteen (15) Business Days after the Borrower or any
ERISA Affiliate knows or has reason to know (i) a Multiemployer Plan
has been terminated, (ii) the administrator or plan sponsor of a
Multiemployer Plan intends to terminate a Multiemployer Plan, or (iii)
the PBGC has instituted or has given written notice that it will
institute proceedings under Section 4042 of ERISA to terminate a
Multiemployer Plan, notification of such termination, intention to
terminate, or institution of proceedings.
For purposes of this Section 8.6, the Borrower and any ERISA Affiliate shall be
deemed to know all facts known by the "Administrator" of any Plan of which the
Borrower or any ERISA Affiliate is the plan sponsor.
8.7. Environmental Notices. The Borrower or RMOP shall notify the
Administrative Agent (with copies for each of the Lenders) in writing, promptly
upon any Officer of the Borrower or RMOP responsible for the environmental
matters at any Property of the Borrower or RMOP learning thereof, of any of the
following (together with any material documents and correspondence received or
sent in connection therewith):
(a) notice or claim to the effect that the Borrower, RMOP or any
of their Subsidiaries is or may be liable to any Person as a result of
the Release or threatened Release of any Contaminant into the
environment, if such liability would result in a Material Adverse
Effect;
(b) notice that the Borrower, RMOP or any of their Subsidiaries
is subject to investigation by any Governmental Authority evaluating
whether any Remedial Action is needed to respond to the Release or
threatened Release of any Contaminant into the environment which would
have a Material Adverse Effect;
(c) notice that any Property of the Borrower or RMOP or any of
their Subsidiaries is subject to an Environmental Lien if the claim to
which such Environmental Lien relates would result in a Material
Adverse Effect;
(d) notice of violation by the Borrower, RMOP or any of their
Subsidiaries of any Environmental, Health or Safety Requirement of Law
which violation would have a Material Adverse Effect;
(e) commencement or written threat of any judicial or
administrative proceeding alleging a violation by the Borrower, RMOP
or any of their Subsidiaries of any Environmental, Health or Safety
Requirement of Law, which would result in a Material Adverse Effect;
or
(f) any proposed acquisition of stock, assets, real estate, or
leasing of Property by the Borrower, RMOP or any of their Subsidiaries
that would subject the Borrower or any of its Subsidiaries to
environmental, health or safety Liabilities and Costs which would
result in a Material Adverse Effect.
8.8. Labor Matters. The Borrower or RMOP shall notify the Administrative
Agent (with copies for each of the Lenders) in writing, promptly upon the
Borrower's or RMOP's learning thereof, of any labor dispute to which the
Borrower, RMOP or any of their Subsidiaries is reasonably expected to become a
party (including, without limitation, any strikes, lockouts or other disputes
relating to any Property of such Persons' and other facilities) which would
result in a Material Adverse Effect.
8.9. Notices of Asset Sales and/or Acquisitions. The Borrower or RMOP shall
deliver to the Administrative Agent and the Lenders written notice of each of
the following not less than five (5) Business Days prior to the occurrence
thereof: (a) a sale, transfer or other disposition of assets, in a single
transaction or series of related transactions, (b) an acquisition of assets, in
a single transaction or series of related transactions within the two preceding
calendar quarter period, for consideration in excess of $50,000,000, and (c) the
grant of a Lien with respect to assets, in a single transaction or series of
related transactions. In addition, simultaneously with delivery of any such
notice, the Borrower or RMOP shall deliver to the Administrative Agent a
certificate of an Authorized Officer certifying that Borrower and RMOP are in
compliance with this Agreement and the other Loan Documents both on a historical
basis and on a pro forma basis, exclusive of the property sold, transferred
and/or encumbered and inclusive of the property to be acquired or the
indebtedness to be incurred.
To the extent such proposed transaction would result in a failure to comply
with the financial covenants set forth herein, proceeds of such transaction
(together with such additional amounts as may be required), in an amount, as
determined by the Administrative Agent, equal to that which would be required to
reduce the Obligations so that Borrower and RMOP will be in compliance with the
covenants set forth herein upon the consummation of the contemplated
transaction, shall be applied to prepay the Obligations.
8.10. Notice of Minority Holdings. The Borrower and RMOP shall deliver to
the Administrative Agent and the Lenders written notice of each of the following
not less than two (2) Business Days prior to the occurrence thereof: (a) the
acquisition of an interest in a Minority Holding in excess of $1,000,000, (b)
the investment of an amount in excess of $1,000,000 in a Minority Holding of
which the Administrative Agent and the Lenders have not previously received
notice, and (c) the sale of an interest in a Subsidiary that results in the same
becoming a Minority Holding. Simultaneously with the delivery of the Compliance
Certificates, the Borrower shall deliver to the Administrative Agent and the
Lenders written notice of the formation of any other Minority Holding.
8.11. Tenant Notifications. The Borrower shall promptly notify the
Administrative Agent upon obtaining knowledge of the bankruptcy or cessation of
operations of any tenant to which greater than three and one half percent (3.5%)
of the Borrower's share of consolidated minimum rent is attributable to such
tenant.
8.12. Other Reports. The Borrower or RMOP shall deliver or cause to be
delivered to the Administrative Agent (with copies for each of the other
Lenders) copies of all financial statements and reports, if any, sent or made
available generally by the Company and/or the Borrower or RMOP to its respective
Securities holders, including, without limitation, supplemental quarterly forms,
or (to the extent not otherwise provided hereunder), all press releases made
available generally by the Company and/or the Borrower or RMOP or any of their
Subsidiaries to the public concerning material adverse developments in the
business of the Company, the Borrower or RMOP or any such Subsidiary and all
material notifications received by the Company, the Borrower or RMOP or their
Subsidiaries pursuant to the Securities Exchange Act and the rules promulgated
thereunder.
8.13. Other Information. Promptly upon receiving a request therefor from
the Administrative Agent or any Arranger, the Borrower or RMOP shall prepare and
deliver to the Administrative Agent (with copies for each of the other Lenders)
such other information with respect to the Company, the Borrower, RMOP, or any
of their Subsidiaries, as from time to time may be reasonably requested by the
Administrative Agent or any Arranger.
ARTICLE IX
AFFIRMATIVE COVENANTS
Borrower and RMOP each covenants and agrees that so long as any Revolving
Credit Commitments are outstanding and thereafter until payment in full of all
of the Obligations (other than indemnities pursuant to Section 14.3 not yet
due), unless the Requisite Lenders shall otherwise give prior written consent:
9.1. Existence, Etc. The Borrower and RMOP each shall, and shall cause each
of its Subsidiaries to, at all times maintain its corporate existence or
existence as a limited partnership or joint venture, as applicable, and preserve
and keep, or cause to be preserved and kept, in full force and effect its rights
and franchises material to its businesses, except where the loss or termination
of such rights and franchises will not have a Material Adverse Effect.
9.2. .Powers; Conduct of Business. The Borrower and RMOP shall remain
qualified, and shall cause each of its Subsidiaries to qualify and remain
qualified, to do business and maintain its good standing in each jurisdiction in
which the nature of its business and the ownership of its Property requires it
to be so qualified and in good standing if the failure to do so will have a
Material Adverse Effect.
9.3. Compliance with Laws, Etc. The Borrower and RMOP shall, and shall
cause each of its Subsidiaries to, (a) comply with all Requirements of Law and
all restrictive covenants affecting such Person or the business, Property or
operations of such Person, and (b) obtain and maintain as needed all Permits
necessary for its operations (including, without limitation, the operation of
the Projects) and maintain such Permits in good standing, except where
noncompliance with either clause (a) or (b) above will not have a Material
Adverse Effect.
9.4. Payment of Taxes and Claims. (a) The Borrower and RMOP shall pay, and
cause each of its Subsidiaries to pay, (i) all material taxes, assessments and
other governmental charges imposed upon it or on any of its Property or assets
or in respect of any of its franchises, licenses, receipts, sales, use, payroll,
employment, business, income or Property before any penalty or interest accrues
thereon, and (ii) all material Claims (including, without limitation, claims for
labor, services, materials and supplies) for sums which have become due and
payable and which by law have or may become a Lien (other than a Lien permitted
by Section 10.2 or a Customary Permitted Lien for property taxes and assessments
not yet due upon any of the Borrower's or RMOP's or any of the Borrower's or
RMOP's Subsidiaries' Property, prior to the time when any penalty or fine shall
be incurred with respect thereto; provided, however, that no such taxes,
assessments, fees and governmental charges referred to in clause (i) above or
Claims referred to in clause (ii) above need be paid if being contested in good
faith by appropriate proceedings diligently instituted and conducted and if such
reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor.
9.5. Insurance. The Borrower and RMOP each shall maintain for itself and
its Subsidiaries, or shall cause each of its Subsidiaries to maintain in full
force and effect the insurance policies and programs listed on Schedule 7.1-T or
substantially similar policies and programs or other policies and programs as
are reasonably acceptable to the Administrative Agent. All such policies and
programs shall be maintained with insurers having an Xxxxxx X. Best Company,
Inc. rating of "A" or better and a financial size category of not less than IX.
9.6. Inspection of Property; Books and Records; Discussions. The Borrower
and RMOP shall permit, and cause each of its Subsidiaries and the Company,
Xxxxxxx Xxxxxx Industrial Interim GP LLC and RMIT to permit, any authorized
representative(s) designated by the Administrative Agent or any Arranger or
other Lender to visit and inspect any of the Projects, to examine, audit, and
check their respective financial and accounting records, books, journals,
orders, receipts and any correspondence and other data relating to their
respective businesses or the transactions contemplated hereby (including,
without limitation, in connection with environmental compliance, hazard or
liability), and to discuss their affairs, finances and accounts with their
officers and independent certified public accountants, upon reasonable notice
and at such reasonable times during normal business hours, as often as may be
reasonably requested. Each such visitation and inspection shall be at such
visitor's expense. The Borrower and RMOP shall keep and maintain, and cause its
Subsidiaries to keep and maintain, in all material respects proper books of
record and account in which entries in conformity with GAAP.
9.7. ERISA Compliance. The Borrower shall, and shall cause each of its
Subsidiaries and ERISA Affiliates to, establish, maintain and operate all Plans
to comply in all material respects with the provisions of ERISA, the Internal
Revenue Code, all other applicable laws, and the regulations and interpretations
thereunder and the respective requirements of the governing documents for such
Plans.
9.8. Maintenance of Property. The Borrower and RMOP shall, and shall cause
each of its Subsidiaries to, maintain in all material respects all of their
respective owned and leased Property in good, safe and insurable condition and
repair (ordinary wear and tear excepted), and not permit, commit or suffer any
waste or abandonment of any such Property and from time to time shall make or
cause to be made all material repairs, renewal and replacements thereof,
including, without limitation, any capital improvements which may be required to
maintain the same; provided, however, that such Property may be altered or
renovated in the ordinary course of business of the Borrower or RMOP or such
applicable Subsidiary. Without any limitation on the foregoing, the Borrower and
RMOP shall maintain the Projects in a manner such that each Project can be used
in the manner and substantially for the purposes such Project is used on the
Closing Date, including, without limitation, maintaining all utilities, access
rights, zoning and necessary Permits for such Project.
9.9. Company Status. The Company shall at all times (1) remain a publicly
traded company listed on the New York Stock Exchange; (2) maintain its status as
a REIT under the Internal Revenue Code, and (3) retain direct or indirect
management and control of the Borrower.
9.10. Ownership of Projects, Minority Holdings and Property. The ownership
of substantially all wholly owned Projects, Minority Holdings and other Property
of the Consolidated Businesses shall be held by the Borrower and its
Subsidiaries and shall not be held directly by the Company.
9.11. Maintenance of Operating Accounts. The Borrower shall at all times
during the Revolving Credit Period maintain and cause RMOP to maintain a demand
deposit account held by Administrative Agent (the "Operating Account") and shall
cause funds to be deposited therein in an amount sufficient to permit the
Administrative Agent to automatically deduct therefrom the respective interest
payments on the Obligations at 12:00 p.m. on the first day of each month.
ARTICLE X
NEGATIVE COVENANTS
Borrower covenants and agrees that it shall comply with the following
covenants so long as any Revolving Credit Commitments are outstanding and
thereafter until payment in full of all of the Obligations (other than
indemnities pursuant to Section 14.3 not yet due), unless the Requisite Lenders
shall otherwise give prior written consent:
10.1 Intentionally Omitted
10.2. Liens. Neither of the Borrower nor any of its Subsidiaries shall
directly or indirectly create, incur, assume or permit to exist any Lien on or
with respect to any Property, except:
(a) Liens with respect to Capital Leases of Equipment entered
into in the ordinary course of business of the Borrower or its
Subsidiaries pursuant to which the aggregate Indebtedness under such
Capital Leases does not exceed $1,000,000 for any Project;
(b) Existing Permitted Liens;
(c) Liens securing permitted Secured Indebtedness; and
(d) Customary Permitted Liens.
10.3. Intentionally Omitted
10.4. Conduct of Business. Neither the Borrower nor any of its Subsidiaries
shall engage in any business, enterprise or activity other than (a) the
businesses of acquiring, developing, re-developing and managing predominantly
office and industrial Projects and portfolios of like Projects, (b) any business
or activities which are substantially similar, related or incidental thereto,
and (c) investments in and loans to Investment Funds, Reckson Service Industries
Inc., Subsidiaries, Affiliates and Minority Holdings.
10.5. Transactions with Partners and Affiliates. Neither the Borrower, RMOP
nor any of their respective Subsidiaries shall directly or indirectly enter into
or permit to exist any transaction (including, without limitation, the purchase,
sale, lease or exchange of any property or the rendering of any service) with
any holder or holders of more than five percent (5%) of any class of equity
Securities of the Borrower, or in the case of RMOP, of RMOP, or with any
Affiliate of the Borrower or in the case of RMOP, of RMOP which is not its
Subsidiary, unless such transaction is determined by the respective Boards of
Directors (or managers or trustees) of the Company or Xxxxxxx Xxxxxx Industrial
Interim GP LLC or RMIT to be no less favorable to the Borrower, RMOP or any of
their Subsidiaries, as applicable, than those that might be obtained in an arm's
length transaction at the time from Persons who are not such a holder or
Affiliate (other than transactions permitted by Section 2.3). Nothing contained
in this Section 10.5 shall prohibit (a) increases in compensation and benefits
for officers and employees of the Borrower, RMOP or any of their Subsidiaries;
(b) payment of officers', managers', trustees', directors', partners' and other
similar indemnities; (c) performance of any obligations arising under the Loan
Documents; or (d) loans to Persons in connection with such Person's contribution
of Real Property to the Consolidated Businesses or Minority Holdings.
10.6. Restriction on Fundamental Changes. Neither the Borrower nor RMOP
shall enter into any merger or consolidation, or liquidate, wind-up or dissolve
(or suffer any liquidation or dissolution), or convey, lease, sell, transfer or
otherwise dispose of, in one transaction or series of transactions, all or
substantially all of the Borrower's or RMOP's business or Property, whether now
or hereafter acquired, except in connection with issuance, transfer, conversion
or repurchase of limited partnership interests in the Borrower. Notwithstanding
the foregoing, the Borrower and RMOP shall be permitted to merge with another
Person so long as the Borrower or RMOP, as the case may be, is the surviving
Person following such merger.
10.7. Margin Regulations; Securities Laws. None of the Borrower, RMOP nor
any of their Subsidiaries, shall use all or any portion of the proceeds of any
credit extended under this Agreement to purchase or carry Margin Stock.
10.8. ERISA. The Borrower shall not and shall not permit any of its
Subsidiaries or ERISA Affiliates to:
(a) engage in any prohibited transaction described in Sections
406 of ERISA or 4975 of the Internal Revenue Code for which a
statutory or class exemption is not available or a private exemption
has not been previously obtained from the DOL, except to the extent
engaging in such transaction would not have a Material Adverse Effect;
(b) permit to exist any accumulated funding deficiency (as
defined in Sections 302 of ERISA and 412 of the Internal Revenue
Code), with respect to any Benefit Plan, whether or not waived;
(c) fail to pay timely required contributions or annual
installments due with respect to any waived funding deficiency to any
Benefit Plan;
(d) terminate any Benefit Plan which would result in any
liability of Borrower or any ERISA Affiliate under Title IV of ERISA;
(e) fail to make any contribution or payment to any Multiemployer
Plan which Borrower or any ERISA Affiliate may be required to make
under any agreement relating to such Multiemployer Plan, or any law
pertaining thereto, except to the extent such failure would not have a
Material Adverse Effect;
(f) fail to pay any required installment or any other payment
required under Section 412 of the Internal Revenue Code on or before
the due date for such installment or other payment; or
(g) amend a Benefit Plan resulting in an increase in current
liability for the plan year such that the Borrower or any ERISA
Affiliate is required to provide security to such Plan under Section
401(a)(29) of the Internal Revenue Code.
10.9. Organizational Documents. Neither the Company nor the Borrower shall,
and the Borrower shall not permit RMOP, Xxxxxxx Xxxxxx Industrial Interim GP LLC
or RMIT to amend, modify or otherwise change any of the terms or provisions in
any of their respective Organizational Documents as in effect on the Closing
Date, except amendments to effect (a) a change of name of the Borrower or RMOP,
provided that the Borrower shall have provided the Administrative Agent with
thirty (30) days prior written notice of any such name change, or (b) changes
that would not affect such Organizational Documents in any material manner not
otherwise permitted under this Agreement.
10.10. Fiscal Year. Neither the Company, the Borrower, RMOP nor any of
their Subsidiaries shall change its Fiscal Year for accounting or tax purposes
from a period consisting of the 12-month period ending on December 31 of each
calendar year.
10.11. Financial Covenants
(a) Indebtedness. Neither the Borrower nor any of its Subsidiaries shall
directly or indirectly create, incur, assume or otherwise become or remain
directly or indirectly liable with respect to any Indebtedness, except
Indebtedness which, when aggregated with Indebtedness of the Borrower or any of
its Subsidiaries and Minority Holdings Indebtedness allocable in accordance with
GAAP to the Borrower or any Subsidiary of the Borrower as of the time of
determination, would not exceed (i) fifty percent (50%) of Total Value as of the
date of incurrence ("Total Outstanding Indebtedness Limitation"), (ii) in the
case of Secured Indebtedness of the Consolidated Businesses and the Borrower's
proportionate share of Secured Indebtedness of its Minority Holdings, as well as
unsecured recourse Indebtedness of the Consolidated Subsidiaries, thirty-five
percent (35%) of the Total Value ("Total Secured Outstanding Indebtedness
Limitation") or (iii) in the case of recourse Secured Indebtedness of the
Consolidated Businesses, ten percent (10%) of the Total Value ("Recourse Secured
Indebtedness Limitation").
(b) Minimum Combined Equity Value. The Combined Equity Value shall at no
time be less than $750,000,000, plus an amount equal to seventy percent (70%) of
all Net Offering Proceeds received by the Company after the date hereof.
(c) Intentionally Omitted.
(d) Minimum Unsecured Interest Coverage Ratio. As of the first day of each
calendar quarter for the immediately preceding calendar quarter, the ratio of
(i) Adjusted Unencumbered NOI to (ii) Unsecured Interest Expense shall not be
less than 2.25 to 1.0.
(e) Minimum Unsecured Debt Yield. As of the first day of each calendar
quarter for the immediately preceding calendar quarter, the ratio of Adjusted
Unencumbered NOI for such calendar quarter, multiplied by 4 to Total Unsecured
Outstanding Indebtedness shall not be less than the greater of (i) either (a)
15%, if Adjusted Unencumbered NOI is derived from the office and industrial
properties wholly-owned by the Borrower, the Company and the Consolidated
Businesses, or (b) 16%, if Adjusted Unencumbered NOI is derived from both office
and industrial properties both wholly-owned by the Borrower, the Company and the
Consolidated Businesses and from Minority Holdings; and (ii) a percentage equal
to an interest rate constant equal to the product of (x) the sum of the then
Treasury Rate and two percent (2%), and a thirty year mortgage-style
amortization schedule, and (y) 125%.
(f) Minimum Adjusted Unencumbered NOI. As of the first day of each calendar
quarter, the Adjusted Unencumbered NOI for the immediately preceding calendar
quarter multiplied by 4 shall not be less than $35,000,000.
(g) Minimum Fixed Charge Coverage Ratio. As of the first day of each
calendar quarter for the immediately preceding calendar quarter, the ratio of
(i) Total Adjusted EBITDA, to (ii) Fixed Charges shall not be less than 2.0 to
1.0.
(h) Maximum Dividend Payout Ratio. The Company shall not make any
Restricted Payment during any of its fiscal quarters, which, when added to all
Restricted Payments made during the three immediately preceding fiscal quarters,
exceeds the greater of (i) 90% of FFO, and 100% of FAD, and (ii) the amounts
required to maintain its status as a REIT under the Internal Revenue Code, and,
provided an Event of Default shall not have occurred and be continuing, to avoid
federal income and excise tax liability. For purposes of this provision,
"Restricted Payment" means (i) any dividend or other distribution on any shares
of the Company's capital stock (except dividends payable solely in shares of its
capital stock or in rights to subscribe for or purchase shares of its capital
stock), or (ii) any payment on account of the purchase, redemption, retirement
or acquisition of (a) any shares of the Company's capital stock, or (b) any
option, warrant or other right to acquire shares of the Company's capital stock.
(i) Recourse Secured Indebtedness. The Secured Loan-to-Value Ratio with
respect to any Project for which the Consolidated Businesses shall create or
assume recourse Secured Indebtedness, shall at no time exceed seventy five
percent (75%).
(j) Negative Pledge. From and after the date hereof, neither the Borrower,
RMOP, RMIT nor the Company will, and will not permit any Subsidiary, to enter
into any agreement containing any provision prohibiting the creation or
assumption of any Lien upon its properties (other than with respect to
prohibitions on subordinate liens set forth in a mortgage on a particular
property), revenues or assets, whether now owned or hereafter acquired, or
restricting the ability of the Borrower or RMOP to amend or modify this
Agreement or any other Loan Document.
(k) Pro Forma Calculations. The Borrower shall comply with the financial
ratios set forth in this Section 10.11 as of the date of each Borrowing. The
Borrower shall recalculate the financial ratios by adding the deemed amount
equal to the Borrowing to the Indebtedness reflected on the most recently
available financial statements, and adding thereto any Indebtedness incurred
since the date of such financial statement and adding thereto the value of such
assets (determined at cost) acquired with such Indebtedness to Total Value. For
the purposes of calculating the Minimum Unsecured Debt Yield, the Borrower shall
add to the annualized Adjusted Unencumbered NOI for the previous quarter, for
any Real Property acquired during the quarter or with a Borrowing made
hereunder, the lesser of (x) the product of .095 and the purchase price of any
such Real Property, and (y) the annualized Adjusted Unencumbered NOI with
respect thereto. The Borrower shall deliver an Officer's Certificate, signed by
the Borrower representing and certifying that the pro forma calculations as of
the date of the draw demonstrate Borrower's compliance with the covenants and
financial ratios set forth in this Section 10.11.
10.12 Negative Covenants with respect to the Company.
(a) From and after the date hereof, the Company will not acquire any assets
of any nature whatsoever other than additional units in the Borrower.
(b) From and after the date hereof, the Company will not incur any
Indebtedness or any other obligations or liabilities except (x) as the general
partner of the Borrower in connection with trade payable incurred in the
ordinary course of business, (y) Indebtedness, the net proceeds of which are
contributed to the Borrower simultaneously with the incurrence thereof by the
Company, and (z) guarantees of Indebtedness which is recourse to the Borrower.
(c) From and after the date hereof, the Company will not retain any Net
Offering Proceeds, and the same will be contributed by the Company to the
Borrower simultaneously with receipt thereof by the Company.
(d) The Company shall not enter into any merger or consolidation, or
liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or
convey, lease, sell, transfer or otherwise dispose of, in one transaction or
series of transactions, any of its business or assets, including its interests
in the Borrower. Notwithstanding the foregoing, the Company shall be permitted
to merge with another Person so long as the Company is the surviving Person
following such merger.
ARTICLE XI
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.1. Events of Default. Each of the following occurrences shall constitute
an Event of Default under this Agreement:
(a) Failure to Make Payments When Due. The Borrower and/or RMOP, as the
case may be, shall fail to pay (i) when due any principal payment on the
Obligations which is due on the Revolving Credit Termination Date or pursuant to
the terms of Section 2.1(a), Section 2.4, Section 4.1(a), or Section 4.1(d) or
(ii) when due, any interest payment on the Obligations, provided, however, that
the Borrower and RMOP shall be entitled to a five (5) day grace period with
respect to any interest payment but not more than one time in any twelve (12)
month period during the term hereof, or (iii) when due, any principal payment on
the Obligations not referenced in clauses (i) or (ii) hereinabove or (iv) when
due, any fees due pursuant to the terms of Section 5.3 and such default shall
continue for five (5) days' provided that no Event of Default shall be deemed to
occur under this clause (a) from a failure of RMOP to make any payment required
to be made by RMOP hereunder if such payment is made by the Borrower prior to
the lapse of any grace period contemplated hereby (it being understood and
acknowledged that the foregoing shall not be deemed to grant the Borrower any
additional grace period to cure any such failure by RMOP, and that the same must
be cured within the time periods set forth above).
(b) Breach of Certain Covenants. The Borrower and/or RMOP shall fail duly
and punctually to perform or observe any agreement, covenant or obligation
binding on such Person under Sections 9.1, 9.4, 9.5, 9.10, 9.11 or Article X.
(c) Breach of Representation or Warranty. Any representation or warranty
made by the Borrower, RMOP or any of the parties to the Guaranty to the
Administrative Agent, any Arranger or any other Lender herein or by the
Borrower, RMOP or any of the parties to the Guaranty or any of their
Subsidiaries in any of the other Loan Documents or in any statement or
certificate at any time given by any such Person pursuant to any of the Loan
Documents shall be false or misleading in any material respect on the date as of
which made.
(d) Other Defaults. The Borrower or RMOP shall default in the performance
of or compliance with any term contained in this Agreement (other than as
identified in paragraphs (a), (b) or (c) of this Section 11.1), or any default
or event of default shall occur under any of the other Loan Documents, and such
default or event of default shall continue for thirty (30) days after receipt of
written notice from the Administrative Agent thereof.
(e) Acceleration of Other Indebtedness. Any breach, default or event of
default shall occur and be continuing, or any other condition shall exist under
any instrument, agreement or indenture pertaining to any recourse Indebtedness
(other than the Obligations) of the Company, the Borrower, RMOP or their
Subsidiaries aggregating more than $10,000,000, and the effect thereof is to
cause an acceleration, mandatory redemption or other required repurchase of such
Indebtedness, or permit the holder(s) of such Indebtedness to accelerate the
maturity of any such Indebtedness or require a redemption or other repurchase of
such Indebtedness; or any such Indebtedness shall be otherwise declared to be
due and payable (by acceleration or otherwise) or required to be prepaid,
redeemed or otherwise repurchased by the Borrower, RMOP or any of their
Subsidiaries (other than by a regularly scheduled required prepayment) prior to
the stated maturity thereof.
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against the Company, the
Borrower, RMOP, or any of their Subsidiaries to which $25,000,000 or more of the
Combined Equity Value is attributable, and the petition shall not be dismissed,
stayed, bonded or discharged within sixty (60) days after commencement of the
case; or a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company, the Borrower, RMOP or any such
Subsidiaries of the Borrower or RMOP in an involuntary case, under any
applicable bankruptcy, insolvency or other similar law now or hereinafter in
effect; or any other similar relief shall be granted under any applicable
federal, state, local or foreign law; or the respective board of directors of
the Company, or Limited Partners of the Borrower, RMOP or the board of directors
or partners of any such Subsidiaries of the Borrower or RMOP (or any committee
thereof) adopts any resolution or otherwise authorizes any action to approve any
of the foregoing.
(ii) A decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over the Company, the Borrower, RMOP or any
of their Subsidiaries to which $25,000,000 or more of the Combined Equity Value
is attributable, or over all or a substantial part of the Property of the
Company, the Borrower, RMOP or any of such Subsidiaries shall be entered; or an
interim receiver, trustee or other custodian of the Company, the Borrower, RMOP
or any of such Subsidiaries or of all or a substantial part of the Property of
the Company, the Borrower, RMOP or any of such Subsidiaries shall be appointed
or a warrant of attachment, execution or similar process against any substantial
part of the Property of any of the Company, the Borrower, RMOP, or any of such
Subsidiaries shall be issued and any such event shall not be stayed, dismissed,
bonded or discharged within sixty (60) days after entry, appointment or
issuance; or the respective board of directors of any of the Company or Limited
Partners of the Borrower or the board of directors or partners of any of
Borrower's Subsidiaries (or any committee thereof) adopts any resolution or
otherwise authorizes any action to approve any of the foregoing.
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. The Company, the
Borrower, RMOP or any of their Subsidiaries to which $25,000,000 or more of the
Combined Equity Value is attributable, shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in an involuntary
case, or to the conversion of an involuntary case to a voluntary case, under any
such law, or shall consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of its
Property; or the Company, the Borrower, RMOP or any of such Subsidiaries shall
make any assignment for the benefit of creditors or shall be unable or fail, or
admit in writing its inability, to pay its debts as such debts become due.
(h) Judgments and Unpermitted Liens.
(i) Any money judgment (other than a money judgment covered by insurance as
to which the insurance company has acknowledged coverage), writ or warrant of
attachment, or similar process against the Borrower, RMOP or any of their
Subsidiaries or any of their respective assets involving in any case an amount
in excess of $5,000,000 (other than with respect to Claims arising out of
non-recourse Indebtedness) is entered and shall remain undischarged, unvacated,
unbonded or unstayed for a period of sixty (60) days or in any event later than
five (5) days prior to the date of any proposed sale thereunder.
(ii) A federal, state, local or foreign tax Lien is filed against the
Borrower or RMOP which is not discharged of record, bonded over or otherwise
secured to the satisfaction of the Administrative Agent within sixty (60) days
after the filing thereof or the date upon which the Administrative Agent
receives actual knowledge of the filing thereof for an amount which, either
separately or when aggregated with the amount of any judgments described in
clause (i) above, equals or exceeds $5,000,000.
(iii) An Environmental Lien is filed against any Project with respect to
Claims in an amount which, either separately or when aggregated with the amount
of all other such Environmental Liens, equals or exceeds $5,000,000.
(i) Dissolution. Any order, judgment or decree shall be entered against
the Borrower or RMOP decreeing its involuntary dissolution or split up; or
the Borrower or RMOP shall otherwise dissolve or cease to exist except
as specifically permitted by this Agreement.
(j) Loan Documents. At any time, for any reason, any Loan Document ceases
to be in full force and effect or the Borrower or RMOP seeks to repudiate its
obligations thereunder.
(k) ERISA Termination Event. Any ERISA Termination Event occurs which the
Administrative Agent believes could subject any of the Borrower or any ERISA
Affiliate to liability in excess of $500,000.
(l) Waiver Application. The plan administrator of any Benefit Plan applies
under Section 412(d) of the Code for a waiver of the minimum funding standards
of Section 412(a) of the Internal Revenue Code and the Administrative Agent
believes that the substantial business hardship upon which the application for
the waiver is based could subject either the Borrower or any ERISA Affiliate to
liability in excess of $500,000.
(m) Material Adverse Effect. An event shall occur which has a Material
Adverse Effect.
(n) Certain Defaults Pertaining to the Company. The Company shall fail to
comply with Sections 9.9, or 7.1(a)(ii), (b), (d), (l), or (o).
(o) Merger or Liquidation of the Company, the Borrower or RMOP. The Company
shall merge or liquidate with or into any other Person and, as a result thereof
and after giving effect thereto, (i) the Company is not the surviving Person or
(ii) such merger or liquidation would effect an acquisition of or Investment in
any Person not otherwise permitted under the terms of this Agreement. The
Borrower shall merge or liquidate with or into any other Person and, as a result
thereof and after giving effect thereto, (i) the Borrower is not the surviving
Person or (ii) such merger or liquidation would effect an acquisition of or
Investment in any Person not otherwise permitted under the terms of this
Agreement. RMOP shall merge or liquidate with or into any other Person and, as a
result thereof and after giving effect thereto, (i) RMOP is not the surviving
Person or (ii) such merger or liquidation would effect an acquisition of or
Investment in any Person not otherwise permitted under the terms of this
Agreement, and, in any such case, the Loans made to RMOP have not been repaid
and the Letters of Credit issued for RMOP's account have not been returned to
the Fronting Bank.
An Event of Default shall be deemed "continuing" until cured or waived in
writing in accordance with Section 14.7.
11.2. Rights and Remedies
(a) Acceleration and Termination. Upon the occurrence of any Event of
Default described in Sections 11.1(f) or 11.1(g), the Revolving Credit
Commitments shall automatically and immediately terminate and the unpaid
principal amount of, and any and all accrued interest on, the Obligations and
all accrued fees shall automatically become immediately due and payable, without
presentment, demand, or protest or other requirements of any kind (including,
without limitation, valuation and appraisement, diligence, presentment, notice
of intent to demand or accelerate and of acceleration), all of which are hereby
expressly waived by the Borrower and RMOP, and, upon the occurrence and during
the continuance of any other Event of Default, the Administrative Agent shall at
the request, or may with the consent, of the Lenders whose Pro Rata Shares, in
the aggregate, are greater than fifty-one percent (51%), by written notice to
the Borrower and RMOP, (i) declare that the Revolving Credit Commitments are
terminated, whereupon the Revolving Credit Commitments and the obligation of
each Lender to make any Loan hereunder and of each Lender to issue or
participate in any Letter of Credit not then issued shall immediately terminate,
and/or (ii) declare the unpaid principal amount of and any and all accrued and
unpaid interest on the Obligations to be, and the same shall thereupon be,
immediately due and payable, without presentment, demand, or protest or other
requirements of any kind (including, without limitation, valuation and
appraisement, diligence, presentment, notice of intent to demand or accelerate
and of acceleration), all of which are hereby expressly waived by the Borrower
and RMOP.
(b) Rescission. If at any time after termination of the Revolving Credit
Commitments and/or acceleration of the maturity of the Loans, the Borrower
and/or RMOP, as the case may be, shall pay all arrears of interest and all
payments on account of principal of the Loans and Reimbursement Obligations
which shall have become due otherwise than by acceleration (with interest on
principal and, to the extent permitted by law, on overdue interest, at the rates
specified in this Agreement) and all Events of Default and Potential Events of
Default (other than nonpayment of principal of and accrued interest on the Loans
due and payable solely by virtue of acceleration) shall be remedied or waived
pursuant to Section 14.7, then upon the written consent of the Requisite Lenders
and written notice to the Borrower and RMOP, the termination of the Revolving
Credit Commitments and/or the acceleration and their consequences may be
rescinded and annulled; but such action shall not affect any subsequent Event of
Default or Potential Event of Default or impair any right or remedy consequent
thereon. The provisions of the preceding sentence are intended merely to bind
the Lenders to a decision which may be made at the election of the Requisite
Lenders; they are not intended to benefit the Borrower or RMOP and do not give
the Borrower or RMOP the right to require the Lenders to rescind or annul any
acceleration hereunder, even if the conditions set forth herein are met.
(c) Enforcement. The Borrower and RMOP acknowledge that in the event the
Borrower, RMOP or any of their Subsidiaries fails to perform, observe or
discharge any of their respective obligations or liabilities under this
Agreement or any other Loan Document, any remedy of law may prove to be
inadequate relief to the Administrative Agent, the Arrangers and the other
Lenders; therefore, the Borrower and RMOP agree that the Administrative Agent,
the Arrangers and the other Lenders shall be entitled to temporary and permanent
injunctive relief in any such case without the necessity of proving actual
damages.
ARTICLE XII
THE AGENTS
12.1. Appointment (a) Each Lender hereby designates and appoints Chase as
the Administrative Agent, UBS as the Syndication Agent, PNC as the Documentation
Agent and the Arrangers as the Arrangers of such Lender under this Agreement,
and each Lender hereby irrevocably authorizes the Administrative Agent and the
Arrangers to take such actions on its behalf under the provisions of this
Agreement and the Loan Documents and to exercise such powers as are set forth
herein or therein together with such other powers as are reasonably incidental
thereto. The Administrative Agent and the Arrangers each agrees to act as such
on the express conditions contained in this Article XII.
(b) The provisions of this Article XII are solely for the benefit of the
Administrative Agent, the Syndication Agent, the Documentation Agent, the
Arrangers and the other Lenders, and neither the Borrower, RMOP, the Company nor
any Subsidiary of the Borrower or RMOP shall have any rights to rely on or
enforce any of the provisions hereof (other than as expressly set forth in
Section 12.7). In performing its respective functions and duties under this
Agreement, the Administrative Agent, the Documentation Agent, the Syndication
Agent, and each Arranger shall act solely as agents of the Lenders and do not
assume and shall not be deemed to have assumed any obligation or relationship of
agency, trustee or fiduciary with or for the Company, the Borrower, RMOP or any
Subsidiary of the Borrower or RMOP. The Administrative Agent, the Documentation
Agent, the Syndication Agent and each Arranger may perform any of their
respective duties hereunder, or under the Loan Documents, by or through their
respective agents or employees.
12.2. Nature of Duties. The Administrative Agent, the Documentation Agent,
the Syndication Agent and the Arrangers shall not have any duties or
responsibilities except those expressly set forth in this Agreement or in the
Loan Documents. The duties of the Administrative Agent, the Documentation Agent,
the Syndication Agent and the Arrangers shall be mechanical and administrative
in nature. None of the Administrative Agent, the Documentation Agent, the
Syndication Agent or any Arranger shall have by reason of this Agreement a
fiduciary relationship in respect of any Lender. Nothing in this Agreement or
any of the Loan Documents, expressed or implied, is intended to or shall be
construed to impose upon the Administrative Agent, the Documentation Agent or
any Arranger any obligations in respect of this Agreement or any of the Loan
Documents except as expressly set forth herein or therein. The Administrative
Agent, the Documentation Agent, the Syndication Agent and each Arranger each
hereby agrees that its duties shall include providing copies of documents
received by such Agent from the Borrower and RMOP which are reasonably requested
by any Lender, furnishing copies of documents to each Lender, upon request, of
documents sent by such Agent to the Borrower and RMOP and promptly notifying
each Lender upon its obtaining actual knowledge of the occurrence of any Event
of Default hereunder. In addition, the Administrative Agent shall deliver to
each Lender, promptly after receipt thereof, copies of those documents and
reports received by it pursuant to Sections 8.2 (other than clause (b)(iv)) and
8.3.
12.3. Right to Request Instructions. The Administrative Agent, the
Documentation Agent, the Syndication Agent and each Arranger may at any time
request instructions from the Lenders with respect to any actions or approvals
which by the terms of any of the Loan Documents such Agent is permitted or
required to take or to grant, and such Agent shall be absolutely entitled to
refrain from taking any action or to withhold any approval and shall not be
under any liability whatsoever to any Person for refraining from any action or
withholding any approval under any of the Loan Documents until it shall have
received such instructions from those Lenders from whom such Agent is required
to obtain such instructions for the pertinent matter in accordance with the Loan
Documents. Without limiting the generality of the foregoing, such Agent shall
take any action, or refrain from taking any action, which is permitted by the
terms of the Loan Documents upon receipt of instructions from those Lenders from
whom such Agent is required to obtain such instructions for the pertinent matter
in accordance with the Loan Documents, provided, that no Lender shall have any
right of action whatsoever against the Administrative Agent, the Documentation
Agent, the Syndication Agent or any Arranger as a result of such Agent acting or
refraining from acting under the Loan Documents in accordance with the
instructions of the Requisite Lenders or, where required by the express terms of
this Agreement, a greater proportion of the Lenders.
12.4. Reliance. The Administrative Agent, the Documentation Agent, the
Syndication Agent and each Arranger shall each be entitled to rely upon any
written notices, statements, certificates, orders or other documents believed by
it in good faith to be genuine and correct and to have been signed, sent or made
by the proper Person, and with respect to all matters pertaining to this
Agreement or any of the Loan Documents and its duties hereunder or thereunder,
upon advice of legal counsel (including counsel for the Borrower and RMOP),
independent public accountants and other experts selected by it.
12.5. Indemnification. To the extent that the Administrative Agent, the
Documentation Agent, the Syndication Agent or any Arranger is not reimbursed and
indemnified by the Borrower and/or RMOP, as the case may be, the Lenders will
reimburse and indemnify such Agent for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, and
reasonable costs, expenses or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by, or asserted against it in any way relating
to or arising out of the Loan Documents or any action taken or omitted by such
Agent under the Loan Documents, in proportion to each Lender's Pro Rata Share.
Notwithstanding anything to the contrary contained herein, the Administrative
Agent, the Documentation Agent, the Syndication Agent or any Arranger shall not
be indemnified to the extent such liabilities, obligations, losses, damages,
penalties, actions, judgments, suite, costs and expenses result from such
Person's gross negligence, willful misconduct or breach of this Article XII.
Such Agent agrees to refund to the Lenders any of the foregoing amounts paid to
it by the Lenders which amounts are subsequently recovered by such Agent from
the Borrower and RMOP or any other Person on behalf of the Borrower and RMOP.
The obligations of the Lenders under this Section 12.5 shall survive the payment
in full of the Loans, the Reimbursement Obligations and all other Obligations
and the termination of this Agreement.
12.6. Agents Individually. With respect to their respective Pro Rata Share
of the Revolving Credit Commitments hereunder, if any, and the Loans made by
them, if any, the Administrative Agent, the Documentation Agent, the Syndication
Agent and the Arrangers shall have and may exercise the same rights and powers
hereunder and are subject to the same obligations and liabilities as and to the
extent set forth herein for any other Lender. The terms "Lenders" or "Requisite
Lenders" or any similar terms shall, unless the context clearly otherwise
indicates, include Chase and UBS, and each other Arranger in its respective
individual capacity as a Lender or as one of the Requisite Lenders. Chase and
UBS and each other Arranger and each of their respective Affiliates may accept
deposits from, lend money to, and generally engage in any kind of banking, trust
or other business with the Borrower and RMOP or any of their Subsidiaries as if
Chase, PNC and UBS were not respectively acting as the Administrative Agent, the
Documentation Agent and the Syndication Agent and the other Arrangers were not
acting as Arrangers pursuant hereto.
12.7. Successor Agents
(a) Resignation. Any Agent may resign from the performance of all its
functions and duties hereunder at any time by giving at least thirty (30)
Business Days' prior written notice to the Borrower and RMOP and the other
Lenders, unless applicable law requires a shorter notice period or that there be
no notice period, in which instance such applicable law shall control. Such
resignation shall take effect upon the acceptance by a successor Agent of
appointment pursuant to this Section 12.7.
(b) Appointment by Requisite Lenders. Upon any such resignation becoming
effective, (i) if a Arranger shall then be acting with respect to this
Agreement, such Arranger shall become the Administrative Agent or (ii) if no
Arranger shall then be acting with respect to this Agreement, the Requisite
Lenders shall have the right to appoint a successor Administrative Agent
selected from among the Lenders with the prior written consent of the Borrower
which shall not be unreasonably withheld.
(c) Appointment by Retiring Agent. If a successor Administrative Agent
shall not have been appointed within the thirty (30) Business Day or shorter
period provided in paragraph (a) of this Section 12.7, the retiring Agent shall
then appoint a successor Agent who shall serve as Administrative Agent until
such time, if any, as the Requisite Lenders appoint a successor Agent as
provided above with the prior written consent of the Borrower which shall not be
unreasonably withheld, provided, however, that such successor Administrative
Agent shall have total assets of not less than $10,000,000,000.
(d) Rights of the Successor and Retiring Agents. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under this Agreement.
After any retiring Agent's resignation hereunder as Agent, the provisions of
this Article XII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was the Agent under this Agreement.
12.8. Relations Among the Lenders. Each Lender agrees that it will not take
any legal action, nor institute any actions or proceedings, against the
Borrower, RMOP or any other obligor hereunder with respect to any of the
Obligations, without the prior written consent of the Lenders. Without limiting
the generality of the foregoing, no Lender may accelerate or otherwise enforce
its portion of the Obligations, or unilaterally terminate its Revolving Credit
Commitment except in accordance with Section 11.2(a).
12.9. Standard of Care. The Administrative Agent, the Documentation Agent,
the Syndication Agent and each Arranger shall administer the Loans in the same
manner that such Agent administers loans made for its own account.
ARTICLE XIII
YIELD PROTECTION
13.1. Taxes
(a) Payment of Taxes. Any and all payments by the Borrower and RMOP
hereunder or under its respective Notes or other document evidencing any
Obligations of such Person shall be made, in accordance with Section 4.2, free
and clear of and without reduction for any and all present or future taxes,
levies, imposts, deductions, charges, withholdings, and all stamp or documentary
taxes, excise taxes, ad valorem taxes and other taxes which arise from the
execution, delivery or registration, or from payment or performance under, or
otherwise with respect to, any of the Loan Documents or the Revolving Credit
Commitments and all other liabilities with respect thereto excluding, in the
case of each Lender, taxes imposed on or measured by net income or overall gross
receipts and capital and franchise taxes imposed on it by (i) the United States,
(ii) the Governmental Authority of the jurisdiction in which such Lender's
Applicable Lending Office is located or any political subdivision thereof or
(iii) the Governmental Authority in which such Person is organized, managed and
controlled or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges and withholdings being hereinafter referred
to as "Taxes"). Except as otherwise provided herein, if the Borrower or RMOP
shall be required by law to withhold or deduct any Taxes from or in respect of
any sum payable hereunder or under any such Note or document to any Lender, (x)
the sum payable to such Lender shall be increased as may be necessary so that
after making all required withholding or deductions (including withholding or
deductions applicable to additional sums payable under this Section 13.1) such
Lender receives an amount equal to the sum it would have received had no such
withholding or deductions been made, (y) the Borrower or RMOP, as the case may
be, shall make such withholding or deductions, and (z) the Borrower or RMOP, as
the case may be, shall pay the full amount withheld or deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(b) Indemnification. Except as otherwise provided herein, the Borrower and
RMOP will indemnify each Lender against, and reimburse each within ten (10)
Business Days after written demand for, the full amount of all Taxes (including,
without limitation, any Taxes imposed by any Governmental Authority on amounts
payable under this Section 13.1 and any additional income or franchise taxes
resulting therefrom) incurred or paid by such Lender and any liability
(including penalties, interest, and out-of-pocket expenses paid to third
parties) arising therefrom or with respect thereto, whether or not such Taxes
were lawfully payable, to the extent not paid by the Borrower or RMOP pursuant
to Section 13.1 hereof; provided that RMOP shall not be liable for Taxes imposed
other than those in connection with the RMOP Revolving Credit Obligations. A
certificate as to any additional amount payable to any Person under this Section
13.1 submitted by it to the Borrower and RMOP shall, absent manifest error, be
final, conclusive and binding upon all parties hereto. Each Lender agrees,
within a reasonable time after receiving a written request from the Borrower or
RMOP, to provide the Borrower, RMOP and the Administrative Agent with such
certificates and other documents as are reasonably required, and take such other
actions as are reasonably necessary to claim such exemptions as such Lender may
be entitled to claim in respect of all or a portion of any Taxes which are
otherwise required to be paid or deducted or withheld pursuant to this Section
13.1 in respect of any payments under this Agreement or under the other Loan
Documents. If any Lender receives any refund with respect to any Taxes, such
Lender shall promptly remit such refund to the Borrower and/or RMOP, as the case
may be.
(c) Receipts. Within thirty (30) days after the date of any payment of
Taxes by the Borrower or RMOP, as the case may be, the Borrower or RMOP as
applicable, will furnish to the Administrative Agent, at its address referred to
in Section 14.8, the original or a certified copy of a receipt evidencing
payment thereof.
(d) Foreign Bank Certifications. (i) Each Lender that is not created or
organized under the laws of the United States or a political subdivision thereof
shall deliver to each of the Borrower, RMOP and the Administrative Agent on the
Closing Date or the date on which such Lender becomes a Lender pursuant to
Section 14.1 hereof a true and accurate certificate executed in duplicate by a
duly authorized officer of such Lender to the effect that such Lender is
eligible to receive payments hereunder and under the Notes without deduction or
withholding of United States federal income tax (I) under the provisions of an
applicable tax treaty concluded by the United States (in which case the
certificate shall be accompanied by two duly completed copies of IRS Form 1001
(or any successor or substitute form or forms)) or (II) under Sections
1442(c)(1) and 1442(a) of the Internal Revenue Code (in which case the
certificate shall be accompanied by two duly completed copies of IRS Form 4224
(or any successor or substitute form or forms)).
(ii) Each Lender further agrees to deliver to each of the Borrower, RMOP
and the Administrative Agent from time to time, a true and accurate certificate
executed in duplicate by a duly authorized officer of such Lender before or
promptly upon the occurrence of any event requiring a change in the most recent
certificate previously delivered by it to the Borrower and RMOP and the
Administrative Agent pursuant to this Section 13.1(d). Each certificate required
to be delivered pursuant to this Section 13.1(d)(ii) shall certify as to one of
the following:
(A) that such Lender can continue to receive payments hereunder
and under the Notes without deduction or withholding of United States
federal income tax;
(B) that such Lender cannot continue to receive payments
hereunder and under the Notes without deduction or withholding of
United States federal income tax as specified therein but does not
require additional payments pursuant to Section 13.1(a) because it is
entitled to recover the full amount of any such deduction or
withholding from a source other than the Borrower or RMOP; or
(C) that such Lender is no longer capable of receiving payments
hereunder and under the Notes without deduction or withholding of
United States federal income tax as specified therein and that it is
not capable of recovering the full amount of the same from a source
other than the Borrower or RMOP.
Each Lender agrees to deliver to each of the Borrower, RMOP and the
Administrative Agent further duly completed copies of the above-mentioned IRS
forms on or before the earlier of (x) the date that any such form expires or
becomes obsolete or otherwise is required to be resubmitted as a condition to
obtaining an exemption from withholding from United States federal income tax
and (y) fifteen (15) days after the occurrence of any event requiring a change
in the most recent form previously delivered by such Lender to the Borrower,
RMOP and Administrative Agent, unless any change in treaty, law, regulation, or
official interpretation thereof which would render such form inapplicable or
which would prevent the Lender from duly completing and delivering such form has
occurred prior to the date on which any such delivery would otherwise be
required and the Lender promptly advises the Borrower and RMOP that it is not
capable of receiving payments hereunder and under the Notes without any
deduction or withholding of United States federal income tax.
(iii) Notwithstanding anything to the contrary contained in this Section
13.1, neither the Borrower nor RMOP will be required to make any additional
payment to or for the account of any Lender under Section 13.1(a) or (b) by
reason of (x) a breach by such Lender of any certification or representation set
forth in any form furnished to the Borrower and RMOP under Section 13.1(d), or
(y) such Lender's failure or inability to furnish under Section 13.1(d) an
original of an extension or renewal of a Form 1001 or Form 4224 (or successor
form), as applicable, unless such failure or inability results from a change
(after the date such Lender became a Lender party hereto) in any applicable law
or regulation or in the interpretation thereof by any regulatory authority
(including without limitation any change in any applicable tax treaty).
13.2. Increased Capital. If after the date hereof any Lender determines
that (i) the adoption or implementation of or any change in or in the
interpretation or administration of any law or regulation or any guideline or
request from any central bank or other Governmental Authority or
quasi-governmental authority exercising jurisdiction, power or control over any
Lender or banks or financial institutions generally (whether or not having the
force of law), compliance with which affects the amount of capital required or
expected to be maintained by such Lender or any corporation controlling such
Lender and (ii) the amount of such capital is increased by or based upon (A) the
making or maintenance by any Lender of its Loans, any Lender's participation in
or obligation to participate in the Loans, Letters of Credit or other advances
made hereunder or the existence of any Lender's obligation to make Loans or (B)
the issuance or maintenance by any Lender of, or the existence of any Lender's
obligation to issue, Letters of Credit, then, in any such case, within ten (10)
Business Days after written demand by such Lender (with a copy of such demand to
the Administrative Agent), the Borrower and RMOP shall immediately pay to the
Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender or such corporation therefor; provided that RMOP shall not be liable for
any additional amounts other than those relating to the RMOP Revolving Credit
Obligations or Letters of Credit issued for its account. Such demand shall be
accompanied by a statement as to the amount of such compensation and include a
brief summary of the basis for such demand. Such statement shall be conclusive
and binding for all purposes, absent manifest error.
13.3. Changes; Legal Restrictions. If after the date hereof any Lender
determines that the adoption or implementation of or any change in or in the
interpretation or administration of any law or regulation or any guideline or
request from any central bank or other Governmental Authority or
quasi-governmental authority exercising jurisdiction, power or control over any
Lender, or over banks or financial institutions generally (whether or not having
the force of law), compliance with which:
(a) subjects a Lender (or its Applicable Lending Office or
Eurodollar Affiliate) to charges (other than taxes) of any kind which
such Lender reasonably determines to be applicable to the Revolving
Credit Commitments of the Lenders to make Eurodollar Rate Loans or
issue and/or participate in Letters of Credit or change the basis of
taxation of payments to that Lender of principal, fees, interest, or
any other amount payable hereunder with respect to Eurodollar Rate
Loans, Competitive Bid Loans or Letters of Credit (other than taxes
excluded in Section 13.1(a) hereof); or
(b) imposes, modifies, or holds applicable, in the determination
of a Lender, any reserve, special deposit, compulsory loan, FDIC
insurance or similar requirement against assets held by, or deposits
or other liabilities (including those pertaining to Letters of Credit)
in or for the account of, advances or loans by, commitments made, or
other credit extended by, or any other acquisition of funds by, a
Lender or any Applicable Lending Office or Eurodollar Affiliate of
that Lender in respect of Eurodollar Loans or Letters of Credit;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining the Loans or its Revolving Credit Commitment or
issuing or participating in the Letters of Credit or to reduce any amount
receivable thereunder; then, in any such case, within ten (10) Business Days
after written demand by such Lender (with a copy of such demand to the
Administrative Agent), the Borrower and RMOP shall immediately pay to the
Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, such amount or amounts as may be necessary to
compensate such Lender or its Eurodollar Affiliate for any such additional cost
incurred or reduced amount received; provided that RMOP shall not be liable for
any additional amounts other than those relating to the RMOP Revolving Credit
Obligations or Letters of Credit issued for its account. Such demand shall be
accompanied by a statement as to the amount of such compensation and include a
brief summary of the basis for such demand. Such statement shall be conclusive
and binding for all purposes, absent manifest error.
13.4. Replacement of Certain Lenders. In the event a Lender (a "Designated
Lender") shall have (i) requested additional compensation from the Borrower
and/or RMOP under Section 13.1 or under Section 13.2 or under Section 13.3, (ii)
failed to make its Pro Rata Share of any Loan requested to be made hereby or
(iii) failed to make any Loan at the Eurodollar Rate, the Borrower and RMOP may,
at their sole election, make written demand on such Designated Lender (with a
copy to the Administrative Agent) for the Designated Lender to assign, and such
Designated Lender shall assign pursuant to one or more duly executed Assignment
and Acceptances to one or more Eligible Assignees which the Borrower, RMOP or
the Administrative Agent shall have identified for such purpose, all of such
Designated Lender's right and obligations under this Agreement, the Notes and
the other Loan Documents (including, without limitation, its Revolving Credit
Commitment, all Loans owing to it, and all of its participation interests in
Letters of Credit) in accordance with Section 14.1. All out-of-pocket expenses
incurred by the Administrative Agent in connection with the foregoing shall be
for the sole account of the Borrower and shall constitute Obligations hereunder.
In no event shall Borrower's or RMOP's election under the provisions of this
Section 13.4 affect its obligation to pay the additional compensation required
under either Section 13.1, Section 13.2 or Section 13.3.
13.5. Mitigation. Each Lender shall notify the Borrower and RMOP of any
event occurring after the date of this Agreement entitling such Lender to
compensation under Sections 13.1, 13.2 or 13.3 as promptly as practicable, but
in any event, within 45 days, after such Lender obtains actual knowledge
thereof; provided that (i) if any Lender fails to give such notice within 45
days after it obtains actual knowledge of such an event, such Lender shall, with
respect to compensation payable pursuant to Sections 13.1, 13.2 or 13.3 in
respect of any costs resulting from such event, only be entitled to payment
under Sections 13.1, 13.2 or 13.3 for costs incurred from and after the date 45
days prior to the date that such Lender does give such notice and (ii) each
Lender will designate a different Applicable Lending Office for the Loans of
such Lender affected by such event if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the reasonable
judgment of such Lender, be disadvantageous to such Lender.
ARTICLE XIV
MISCELLANEOUS
14.1. Assignments and Participations
(a) Assignments. No assignments or participations of any Lender's rights or
obligations under this Agreement shall be made except in accordance with this
Section 14.1. Each Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including all of its
rights and obligations with respect to the Loans and the Letters of Credit) in
accordance with the provisions of this Section 14.1.
(b) Limitations on Assignments. For so long as no Event of Default has
occurred and is continuing, each assignment shall be subject to the following
conditions: (i) each assignment shall be of a constant, and not a varying,
ratable percentage of all of the assigning Lender's rights and obligations under
this Agreement and, in the case of a partial assignment, shall be in a minimum
principal amount of $10,000,000 (and the assignor shall maintain a minimum
amount of $10,000,000 for its own account unless the assignor shall assign or
participate its entire interest), (ii) each such assignment shall be to an
Eligible Assignee, (iii) each assignment shall be subject to the reasonable
approval of the Agent and the Borrower, (iv) the parties to each such assignment
shall execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, and (v) each Agent
shall maintain a minimum Revolving Credit Commitment in an amount greater than
the Revolving Credit Commitment of any other Lender (other than the other
Arrangers) or an amount sufficient to maintain such Arranger's Pro Rata Share as
of the Closing Date, whichever is less. Upon the occurrence and continuance of
an Event of Default, none of the foregoing restrictions on assignments shall
apply, provided, however, that while an Event of Default (other than an Event of
Default that shall have required that the Administrative Agent shall have
delivered a notice of the underlying default) shall be continuing but prior to
acceleration of the Loans, the applicable Lender shall give the Borrower five
(5) days' written notice by telecopy of its intention to assign any or all of
its interest in this Agreement. Upon such execution, delivery, acceptance and
recording in the Register, from and after the effective date specified in each
Assignment and Acceptance and agreed to by the Administrative Agent, (A) the
assignee thereunder shall, in addition to any rights and obligations hereunder
held by it immediately prior to such effective date, if any, have the rights and
obligations hereunder that have been assigned to it pursuant to such Assignment
and Acceptance and shall, to the fullest extent permitted by law, have the same
rights and benefits hereunder as if it were an original Lender hereunder, (B)
the assigning Lender shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of such assigning Lender's rights and obligations under this Agreement, the
assigning Lender shall cease to be a party hereto) and (C) the Borrower and RMOP
shall execute and deliver to the assignee thereunder a Note evidencing its
obligations to such assignee with respect to the Loans.
(c) The Register. The Administrative Agent shall maintain at its address
referred to in Section 14.8 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register (the "Register") for the recordation of the
names and addresses of the Lenders, the Revolving Credit Commitment of, and the
principal amount of the Loans under the Revolving Credit Commitments owing to,
each Lender from time to time and whether such Lender is an original Lender or
the assignee of another Lender pursuant to an Assignment and Acceptance. The
entries in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, RMOP, the Administrative Agent and the other
Lenders and each other party to a Loan Document may treat each Person whose name
is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower, RMOP
or any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(d) Fee. Upon its receipt of an Assignment and Acceptance executed by the
assigning Lender and an Assignee and a processing and recordation fee of $3,500
(payable by the assignee to the Administrative Agent), the Administrative Agent
shall, if such Assignment and Acceptance has been completed and is in compliance
with this Agreement and in substantially the form of Exhibit A hereto, (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Borrower and
RMOP and the other Lenders.
(e) Participations. Each Lender may sell participations to one or more
other financial institutions or other Person (for Competitive Bid Loans) in or
to all or a portion of its rights and obligations under and in respect of any
and all facilities under this Agreement (including, without limitation, all or a
portion of any or all of its Revolving Credit Commitment hereunder and the
Committed Loans owing to it and its undivided interest in the Letters of
Credit); provided, however, that (i) such Lender's obligations under this
Agreement (including, without limitation, its Revolving Credit Commitment
hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the Borrower, RMOP the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, (iv) each participation
shall be in a minimum amount of $10,000,000, and (v) such participant's rights
to agree or to restrict such Lender's ability to agree to the modification,
waiver or release of any of the terms of the Loan Documents, to consent to any
action or failure to act by any party to any of the Loan Documents or any of
their respective Affiliates, or to exercise or refrain from exercising any
powers or rights which any Lender may have under or in respect of the Loan
Documents, shall be limited to the right to consent to (A) increase in the
Revolving Credit Commitment of the Lender from whom such participant purchased a
participation, (B) reduction of the principal of, or rate or amount of interest
on the Loans subject to such participation (other than by the payment or
prepayment thereof), (C) postponement of any date fixed for any payment of
principal of, or interest on, the Loan(s) subject to such participation and (D)
release of any guarantor of the Obligations (provided that no such consent shall
be required to release the Borrower, RMIT and/or Xxxxxxx Xxxxxx Industrial
Interim GP LLC as a guarantor if RMOP is no longer a borrower hereunder).
Participations by a Person in a Competitive Bid Loan of any Lender shall not be
deemed "participations" for purposes of this Section 15.1(e) and shall not be
subject to the restrictions on "participations" contained herein.
(f) Any Lender (each, a "Designating Lender") may at any time designate one
Designated Bank to fund Competitive Bid Loans on behalf of such Designating
Lender subject to the terms of this Section 14.1(f) and the provisions in
Section 14.1 (b) and (e) shall not apply to such designation. No Lender may
designate more than one (1) Designated Bank. The parties to each such
designation shall execute and deliver to the Administrative Agent for its
acceptance a Designation Agreement. Upon such receipt of an appropriately
completed Designation Agreement executed by a Designating Lender and a designee
representing that it is a Designated Bank, the Administrative Agent will accept
such Designation Agreement and will give prompt notice thereof to the Borrower
and RMOP, whereupon, (i) the Borrower and RMOP shall execute and deliver to the
Designating Bank a Designated Bank Note payable to the order of the Designated
Bank, (ii) from and after the effective date specified in the Designation
Agreement, the Designated Bank shall become a party to this Agreement with a
right to make Competitive Bid Loans on behalf of its Designating Lender pursuant
to Section 2.2 after the Borrower and RMOP has accepted a Competitive Bid Loan
(or portion thereof) of the Designating Lender, and (iii) the Designated Bank
shall not be required to make payments with respect to any obligations in this
Agreement except to the extent of excess cash flow of such Designated Bank which
is not otherwise required to repay obligations of such Designated Bank which are
then due and payable; provided, however, that regardless of such designation and
assumption by the Designated Bank, the Designating Lender shall be and remain
obligated to the Borrower, RMOP, the Administrative Agent, the Syndication
Agent, the Documentation Agent and the other Lenders for each and every of the
obligations of the Designating Lender and its related Designated Bank with
respect to this Agreement, including, without limitation, any indemnification
obligations under Section 12.5 hereof and any sums otherwise payable to the
Borrower and RMOP by the Designated Bank. Each Designating Lender shall serve as
the administrative agent of the Designated Bank and shall on behalf of, and to
the exclusion of, the Designated Bank: (i) receive any and all payments made for
the benefit of the Designated Bank and (ii) give and receive all communications
and notices and take all actions hereunder, including, without limitation,
votes, approvals, waivers, consents and amendments under or relating to this
Agreement and the other Loan Documents. Any such notice, communication, vote,
approval, waiver, consent or amendment shall be signed by the Designating Lender
as administrative agent for the Designated Bank and shall not be signed by the
Designated Bank on its own behalf but shall be binding on the Designated Bank to
the same extent as if actually signed by the Designated Bank. The Borrower,
RMOP, the Administrative Agent, the Documentation Agent, the Syndication Agent
and Lenders may rely thereon without any requirement that the Designated Bank
sign or acknowledge the same. No Designated Bank may assign or transfer all or
any portion of its interest hereunder or under any other Loan Document, other
than assignments to the Designating Lender which originally designated such
Designated Bank.
(g) Information Regarding the Borrower and RMOP. Any Lender may, subject to
the provisions of Section 14.22, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
14.1, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower, RMOP or their
Subsidiaries furnished to such Lender by the Administrative Agent or by or on
behalf of the Borrower and RMOP.
(h) Payment to Participants. Anything in this Agreement to the contrary
notwithstanding, in the case of any participation, all amounts payable by the
Borrower and/or RMOP, as the case may be, under the Loan Documents shall be
calculated and made in the manner and to the parties required hereby as if no
such participation had been sold.
(i) Lenders' Creation of Security Interests. Notwithstanding any other
provision set forth in this Agreement, any Lender may at any time create a
security interest in all or any portion of its rights under this Agreement
(including, without limitation, Obligations owing to it and any Note held by it)
in favor of any Federal Reserve bank in accordance with Regulation A of the
Federal Reserve Board.
14.2. Expenses
(a) Generally. Each of the Borrower and RMOP agrees promptly upon demand to
pay, or reimburse the Administrative Agent for the reasonable fees, expenses and
disbursements of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP (but not of other
legal counsel) and for all other reasonable out-of-pocket costs and expenses
incurred by the Administrative Agent or each Arranger in connection with (i) the
preparation, negotiation, and execution of the Loan Documents; (ii) the
preparation, negotiation, execution and interpretation of this Agreement
(including, without limitation, the satisfaction or attempted satisfaction of
any of the conditions set forth in Article VI), the Loan Documents, and the
making of the Loans hereunder; (iii) any amendments, consents, waivers,
assignments, restatements, or supplements to any of the Loan Documents and the
preparation, negotiation, and execution of the same; and (iv) any other
amendments, modifications, agreements, assignments, restatements or supplements
to any of the Loan Documents requested by Borrower and RMOP and the preparation,
negotiation, and execution of the same; provided that RMOP shall not be liable
for any amounts under this clause(a) in excess of the RMOP Share of such
amounts.
(b) After Default. Each of the Borrower and RMOP further agrees to pay or
reimburse the Administrative Agent, the Arrangers and each of the Lenders upon
demand for all reasonable out-of-pocket costs and expenses, including, without
limitation, reasonable attorneys' fees (including allocated costs of internal
counsel and costs of settlement) incurred by the such entity after the
occurrence and during the continuance of an Event of Default (i) in enforcing
any Loan Document or Obligation, the collection of any Obligation or exercising
or enforcing any other right or remedy available by reason of such Event of
Default; or (ii) in connection with any refinancing or restructuring of the
credit arrangements provided under this Agreement in the nature of a "work-out"
or in any insolvency or bankruptcy proceeding; (iii) in commencing, defending or
intervening in any litigation or in filing a petition, complaint, answer, motion
or other pleadings in any legal proceeding relating to the Obligations, a
Project, any of the Consolidated Businesses and related to or arising out of the
transactions contemplated hereby or by any of the other Loan Documents; and (iv)
in taking any other action in or with respect to any suit or proceeding
(bankruptcy or otherwise) described in clauses (i) through (iii) above; provided
that RMOP shall not be liable for any amounts under this clause (b) in excess of
the RMOP Share of such amounts and without duplication amounts relating to RMOP.
14.3. Indemnity. Each of the Borrower and RMOP further agrees (a) to
defend, protect, indemnify, and hold harmless the Administrative Agent, the
Arrangers and each and all of the other Lenders and each of their respective
officers, directors, employees, attorneys and agents (collectively, the
"Indemnitees") from and against any and all liabilities, obligations, losses
(other than loss of profits), damages, penalties, actions, judgments, suits,
claims, reasonable costs, reasonable expenses and reasonable disbursements
(excluding any taxes and including, without limitation, the reasonable fees and
disbursements of counsel for such Indemnitees in connection with any
investigative, administrative or judicial proceeding, whether or not such
Indemnitees shall be designated a party thereto), imposed on, incurred by, or
asserted against such Indemnitees in any manner relating to or arising out of
(i) this Agreement or the other Loan Documents, the making of the Loans and the
issuance of and participation in Letters of Credit hereunder, the use or
intended use of the proceeds of the Loans or Letters of Credit hereunder, or any
of the other transactions contemplated by the Loan Documents, or (ii) any
Liabilities and Costs relating to violation of any Environmental, Health or
Safety Requirements of Law, the past, present or future operations of the
Borrower and RMOP, any of its Subsidiaries or any of their respective
predecessors in interest, or, the past, present or future environmental, health
or safety condition of any respective Property of the Borrower, RMOP or any of
their Subsidiaries, the presence of asbestos-containing materials at any
respective Property of the Borrower, RMOP or any of their Subsidiaries, or the
Release or threatened Release of any Contaminant into the environment
(collectively, the "Indemnified Matters"); provided, however, the Borrower and
RMOP shall have no obligation to an Indemnitee hereunder with respect to
Indemnified Matters caused by or resulting from the willful misconduct or gross
negligence of such Indemnitee, as determined by a court of competent
jurisdiction in a non-appealable final judgment; and (b) not to assert any claim
against any of the Indemnitees, on any theory of liability, for consequential or
punitive damages arising out of, or in any way in connection with, the Revolving
Credit Commitments, the Revolving Credit Obligations, or the other matters
governed by this Agreement and the other Loan Documents; and provided, further,
that RMOP shall not be liable for any amounts under this Section 14.3 in excess
of the RMOP Share of such amounts and without duplication amounts attributable
to RMOP. To the extent that the undertaking to indemnify, pay and hold harmless
set forth in the preceding sentence may be unenforceable because it is violative
of any law or public policy, the Borrower and RMOP shall contribute the maximum
portion which it is permitted to pay and satisfy under applicable law, to the
payment and satisfaction of all Indemnified Matters incurred by the Indemnitees.
14.4. Change in Accounting Principles. If any change in the accounting
principles used in the preparation of the most recent financial statements
referred to in Sections 8.1 or 8.2 are hereafter required or permitted by the
rules, regulations, pronouncements and opinions of the Financial Accounting
Standards Board or the American Institute of Certified Public Accountants (or
successors thereto or agencies with similar functions) and are adopted by the
Company or the Borrower as applicable, with the agreement of its independent
certified public accountants and such changes result in a change in the method
of calculation of any of the covenants, standards or terms found in Article X,
the parties hereto agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating compliance with such covenants, standards and terms
by the Borrower and RMOP shall be the same after such changes as if such changes
had not been made; provided, however, no change in GAAP that would affect the
method of calculation of any of the covenants, standards or terms shall be given
effect in such calculations until such provisions are amended, in a manner
satisfactory to the Administrative Agent and the Borrower and RMOP, to so
reflect such change in accounting principles.
14.5. Intentionally Omitted
14.6. Ratable Sharing. The Lenders agree among themselves that (i) with
respect to all amounts received by them which are applicable to the payment of
the Obligations (excluding the repayment of Competitive Bid Loans to a
particular Competitive Bid Lender and the costs and fees described in Sections
3.1(g), 5.2(f), and 5.3 and Article XIII) equitable adjustment will be made so
that, in effect, all such amounts will be shared among them ratably in
accordance with their Pro Rata Shares, whether received by voluntary payment, by
the exercise of the right of setoff or banker's lien, by counterclaim or
cross-action or by the enforcement of any or all of the Obligations (excluding
the repayment of Competitive Bid Loans to a particular Competitive Bid Lender
and the costs and fees described in Sections 3.1(g), 5.2(f), and 5.3 and Article
XIII), (ii) if any of them shall by voluntary payment or by the exercise of any
right of counterclaim, setoff, banker's lien or otherwise, receive payment of a
proportion of the aggregate amount of the Obligations held by it, which is
greater than the amount which such Lender is entitled to receive hereunder, the
Lender receiving such excess payment shall purchase, without recourse or
warranty, an undivided interest and participation (which it shall be deemed to
have done simultaneously upon the receipt of such payment) in such Obligations
owed to the others so that all such recoveries with respect to such Obligations
shall be applied ratably in accordance with their Pro Rata Shares; provided,
however, that if all or part of such excess payment received by the purchasing
party is thereafter recovered from it, those purchases shall be rescinded and
the purchase prices paid for such participations shall be returned to such party
to the extent necessary to adjust for such recovery, but without interest except
to the extent the purchasing party is required to pay interest in connection
with such recovery. The Borrower and RMOP each agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 14.6
may, to the fullest extent permitted by law, exercise all its rights of payment
with respect to such participation as fully as if such Lender were the direct
creditor of the Borrower and/or RMOP, as the case may be, in the amount of such
participation.
14.7. Amendments and Waivers
(a) General Provisions. Unless otherwise provided for or required in this
Agreement, no amendment or modification of any provision of this Agreement or
any of the other Loan Documents shall be effective without the written agreement
of the Requisite Lenders (which the Requisite Lenders shall have the right to
grant or withhold in their sole discretion) and the Borrower and RMOP; provided,
however, that the Borrower's and RMOP's agreement shall not be required for any
amendment or modification of Sections 12.1 through 12.8 (other than Section
12.7). In the event that the Administrative Agent shall request the agreement of
the Lenders to any amendment, modification or waiver, if any Lender shall fail
to respond to any such request within fifteen (15) days after receipt of such
request, such Lender's approval thereto shall be deemed to have been given;
provided, however, that such request shall state, in capital letters that
"FAILURE TO RESPOND TO THIS REQUEST WITHIN FIFTEEN (15) DAYS AFTER RECEIPT,
SHALL BE DEEMED CONSENT TO THE ENCLOSED REQUEST". No termination or waiver of
any provision of this Agreement or any of the other Loan Documents, or consent
to any departure by the Borrower and RMOP therefrom, shall be effective without
the written concurrence of the Requisite Lenders, which the Requisite Lenders
shall have the right to grant or withhold in their sole discretion. All
amendments, waivers and consents not specifically reserved to the Administrative
Agent, the Arrangers or the other Lenders in Section 14.7(b), 14.7(c), and in
other provisions of this Agreement shall require only the approval of the
Requisite Lenders. Any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or
demand on the Borrower or RMOP in any case shall entitle the Borrower or RMOP to
any other or further notice or demand in similar or other circumstances.
Notwithstanding the foregoing, no amendment, waiver or consent shall, unless in
writing and signed by the Designating Lender on behalf of its Designated Bank
affected thereby, (a) subject such Designated Bank to any additional
obligations, (b) reduce the principal of, interest on, or other amounts due with
respect to, the Designated Bank Note made payable to such Designated Bank, or
(c) postpone any date fixed for any payment of principal of, or interest on, or
other amounts due with respect to the Designated Bank Note made payable to the
Designated Bank.
(b) Amendments, Consents and Waivers by Affected Lenders. Any amendment,
modification, termination, waiver or consent with respect to any of the
following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender affected thereby as described below:
(i) waiver of any of the conditions specified in Sections 6.1 and
6.2 (except with respect to a condition based upon another provision
of this Agreement, the waiver of which requires only the concurrence
of the Requisite Lenders),
(ii) increase in the amount of such Lender's Revolving Credit
Commitment,
(iii) reduction of the principal of, rate or amount of interest
on the Loans, the Reimbursement Obligations, or any fees or other
amounts payable to such Lender (other than by the payment or
prepayment thereof), and
(iv) postponement or extension of any date (other than the
Revolving Credit Termination Date postponement or extension of which
is governed by Section 14.7(c)(i)) fixed for any payment of principal
of, or interest on, the Loans, the Reimbursement Obligations or any
fees or other amounts payable to such Lender (except with respect to
any modifications of the application provisions relating to
prepayments of Loans and other Obligations which are governed by
Section 4.2(b)).
(c) Amendments, Consents and Waivers by All Lenders. Any amendment,
modification, termination, waiver or consent with respect to any of the
following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender:
(i) postponement of the Revolving Credit Termination Date, or
increase in the Maximum Revolving Credit Amount to any amount in
excess of $500,000,000,
(ii) change in the definition of Requisite Lenders or in the
aggregate Pro Rata Share of the Lenders which shall be required for
the Lenders or any of them to take action hereunder or under the other
Loan Documents,
(iii) amendment of Section 14.6 or this Section 14.7,
(iv) assignment of any right or interest in or under this
Agreement or any of the other Loan Documents by the Borrower or RMOP,
(v) waiver of any Event of Default under Section 11.1(a),
Section 11.1(f) or Section 11.1(g), and
(vi) amendment or release of the Guaranty; provided that if RMOP
ceases to be a Borrower hereunder, the Borrower, RMIT and Xxxxxxx
Xxxxxx Industrial Interim GP LLC may be released from the Guaranty.
(d) Administrative Agent Authority. Subject to the second succeeding
sentence of this subsection (d), the Administrative Agent may, but shall have no
obligation to, with the written concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of that Lender. Notwithstanding
anything to the contrary contained in this Section 14.7, no amendment,
modification, waiver or consent shall affect the rights or duties of the
Administrative Agent under this Agreement and the other Loan Documents, unless
made in writing and signed by the Administrative Agent in addition to the
Lenders required above to take such action. Notwithstanding anything herein to
the contrary, in the event that the Borrower on its behalf or on behalf of RMOP
shall have requested, in writing, that any Lender agree to an amendment,
modification, waiver or consent with respect to any particular provision or
provisions of this Agreement or the other Loan Documents, and such Lender shall
have failed to state, in writing, that it either agrees or disagrees (in full or
in part) with all such requests (in the case of its statement of agreement,
subject to satisfactory documentation and such other conditions it may specify)
within fifteen (15) days after such request, then such Lender hereby irrevocably
authorizes the Administrative Agent to agree or disagree, in full or in part,
and in the Administrative Agent's sole discretion, to such requests on behalf of
such Lender as such Lenders' attorney-in-fact and to execute and deliver any
writing approved by the Administrative Agent which evidences such agreement as
such Lender's duly authorized agent for such purposes.
14.8. Notices. Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be in writing
and may be personally served, sent by facsimile transmission or by courier
service or United States certified mail and shall be deemed to have been given
when delivered in person or by courier service, upon receipt of a facsimile
transmission, or four (4) Business Days after deposit in the United States mail
with postage prepaid and properly addressed. Notices to the Administrative Agent
pursuant to Articles II, IV or XII shall not be effective until received by the
Administrative Agent. For the purposes hereof, the addresses of the parties
hereto (until notice of a change thereof is delivered as provided in this
Section 14.8) shall be as set forth below each party's name on the signature
pages hereof or the signature page of any applicable Assignment and Acceptance,
or, as to each party, at such other address as may be designated by such party
in a written notice to all of the other parties to this Agreement.
14.9. Survival of Warranties and Agreements. All representations and
warranties made herein and all obligations of the Borrower and RMOP in respect
of taxes, indemnification and expense reimbursement shall survive the execution
and delivery of this Agreement and the other Loan Documents, the making and
repayment of the Loans, the issuance and discharge of Letters of Credit
hereunder and, in the case of any Lender that may assign any interest in its
Revolving Credit Commitment, Loans or participation interests in Letters of
Credit hereunder, shall survive the making of such assignment, notwithstanding
that such assigning Lender may cease to be a "Lender" hereunder, and, except for
the representations and warranties, the termination of this Agreement other than
any of the foregoing set forth in Section 13.1 or Section 13.2 or Section 13.3
or Section 5.2(f) shall survive for thirty (30) days after termination of this
Agreement.
14.10. Failure or Indulgence Not Waiver; Remedies Cumulative. No failure or
delay on the part of the Administrative Agent or any other Lender in the
exercise of any power, right or privilege under any of the Loan Documents shall
impair such power, right or privilege or be construed to be a waiver of any
default or acquiescence therein, nor shall any single or partial exercise of any
such power, right or privilege preclude other or further exercise thereof or of
any other right, power or privilege. All rights and remedies existing under the
Loan Documents are cumulative to and not exclusive of any rights or remedies
otherwise available.
14.11. Payments Set Aside. To the extent that the Borrower or RMOP makes a
payment or payments to the Administrative Agent, any Arranger or any other
Lender or any such Person exercises its rights of setoff, and such payment or
payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, receiver or any other party, then to the
extent of such recovery, the obligation or part thereof originally intended to
be satisfied, and all right and remedies therefor, shall be revived and
continued in full force and effect as if such payment had not been made or such
enforcement or setoff had not occurred.
14.12. Severability. In case any provision in or obligation under this
Agreement or the other Loan Documents shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
14.13. Headings. Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
or be given any substantive effect.
14.14. Governing Law. THIS AGREEMENT SHALL BE INTERPRETED, AND THE RIGHTS
AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAWS
PRINCIPLES.
14.15. Limitation of Liability. No claim may be made by any Lender, any
Arranger, the Administrative Agent, or any other Person against any Lender
(acting in any capacity hereunder) or the Affiliates, directors, officers,
employees, attorneys or agents of any of them for any consequential or punitive
damages in respect of any claim for breach of contract or any other theory of
liability arising out of or related to the transactions contemplated by this
Agreement, or any act, omission or event occurring in connection therewith; and
each Lender, each Arranger and the Administrative Agent hereby waives, releases
and agrees not to xxx upon any such claim for any such damages, whether or not
accrued and whether or not known or suspected to exist in its favor.
14.16. Successors and Assigns. This Agreement and the other Loan Documents
shall be binding upon the parties hereto and their respective successors and
assigns and shall inure to the benefit of the parties hereto and the successors
and permitted assigns of the Lenders. Except as otherwise provided in Section
10.7, the rights hereunder of the Borrower and RMOP, or any interest therein,
may not be assigned without the written consent of all Lenders.
14.17. Certain Consents and Waivers of the Borrower and RMOP
(a) Personal Jurisdiction. (i) EACH OF THE AGENTS, THE LENDERS, THE
BORROWER AND RMOP IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR
FEDERAL COURT SITTING IN NEW YORK, NEW YORK, AND ANY COURT HAVING JURISDICTION
OVER APPEALS OF MATTERS HEARD IN SUCH COURTS, IN ANY ACTION OR PROCEEDING
ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING IN
CONTRACT, TORT, EQUITY OR OTHERWISE, OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH
FEDERAL COURT. EACH OF THE AGENTS, THE LENDERS, THE BORROWER AND RMOP AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. EACH OF THE AGENTS, THE LENDERS, THE BORROWER AND RMOP
WAIVES IN ALL DISPUTES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE
COURT CONSIDERING THE DISPUTE.
(ii) THE BORROWER AND RMOP EACH AGREES THAT THE ADMINISTRATIVE AGENT SHALL HAVE
THE RIGHT TO PROCEED AGAINST THE BORROWER, RMOP OR ITS RESPECTIVE PROPERTY IN A
COURT IN ANY LOCATION NECESSARY OR APPROPRIATE TO ENABLE THE ADMINISTRATIVE
AGENT AND THE OTHER LENDERS TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED
IN FAVOR OF THE ADMINISTRATIVE AGENT OR ANY OTHER LENDER. THE BORROWER AND RMOP
EACH WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH
THE ADMINISTRATIVE AGENT OR ANY LENDER MAY COMMENCE A PROCEEDING DESCRIBED IN
THIS SECTION.
(b) Service of Process. THE BORROWER AND RMOP EACH IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE PROCESS AGENT OR THE BORROWER'S OR RMOP'S NOTICE ADDRESS
SPECIFIED BELOW, SUCH SERVICE TO BECOME EFFECTIVE UPON RECEIPT. THE BORROWER AND
RMOP EACH IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY
OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
IN ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF
THE ADMINISTRATIVE AGENT OR THE OTHER LENDERS TO BRING PROCEEDINGS AGAINST THE
BORROWER OR RMOP IN THE COURTS OF ANY OTHER JURISDICTION.
(c) WAIVER OF JURY TRIAL. EACH OF THE AGENTS AND THE OTHER LENDERS AND THE
BORROWER AND RMOP IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
14.18. Counterparts; Effectiveness; Inconsistencies. This Agreement and any
amendments, waivers, consents, or supplements hereto may be executed in
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. This Agreement shall become effective against the Borrower and
RMOP and each Agent and Lender on the Closing Date. This Agreement and each of
the other Loan Documents shall be construed to the extent reasonable to be
consistent one with the other, but to the extent that the terms and conditions
of this Agreement are actually inconsistent with the terms and conditions of any
other Loan Document, this Agreement shall govern.
14.19. Limitation on Agreements. All agreements between the Borrower, RMOP,
the Administrative Agent, each Arranger and each Lender in the Loan Documents
are hereby expressly limited so that in no event shall any of the Loans or other
amounts payable by the Borrower and RMOP under any of the Loan Documents be
directly or indirectly secured (within the meaning of Regulation U) by Margin
Stock.
14.20. Disclaimers. The Administrative Agent, the Arrangers and the other
Lenders shall not be liable to any contractor, subcontractor, supplier, laborer,
architect, engineer, tenant or other party for services performed or materials
supplied in connection with any work performed on the Projects, including any TI
Work. The Administrative Agent, the Arrangers and the other Lenders shall not be
liable for any debts or claims accruing in favor of any such parties against the
Borrower and RMOP or others or against any of the Projects. Neither the Borrower
nor RMOP is not and shall not be an agent of any Agent, the Arrangers or the
other Lenders for any purposes and none of the Lenders, the Arrangers, or the
Agents shall be deemed partners or joint venturers with Borrower or RMOP. None
of the Administrative Agent, the Arrangers or the other Lenders shall be deemed
to be in privity of contract with any contractor or provider of services to any
Project, nor shall any payment of funds directly to a contractor or
subcontractor or provider of services be deemed to create any third party
beneficiary status or recognition of same by any of the Administrative Agent,
the Arrangers or the other Lenders and the Borrower and RMOP each agrees to hold
the Administrative Agent, the Arrangers and the other Lenders harmless from any
of the damages and expenses resulting from such a construction of the
relationship of the parties or any assertion thereof.
14.21. Entire Agreement. This Agreement, taken together with all of the
other Loan Documents, embodies the entire agreement and understanding among the
parties hereto and supersedes all prior agreements and understandings, written
and oral, relating to the subject matter hereof.
14.22. Confidentiality. Each of the Agents, the Arrangers and the Lenders
agrees to keep confidential all non-public information provided to it by the
Borrower or RMOP pursuant to this Agreement that is designated by the Borrower
or RMOP as confidential; provided that nothing herein shall prevent the Agents
or the Lenders from disclosing any such information (a) to the Agents, any other
Lender or any Affiliate of any Lender (provided such Affiliate is made aware of
the confidentiality of such information and agrees to keep such information
confidential), (b) to any Assignee, Participant or prospective Assignee or
Participant (provided such Person is made aware of the confidentiality of such
information and agrees to keep such information confidential), (c) to the
employees, directors, agents, attorneys, accountants and other professional
advisors of any Lender, Assignee, Participant, prospective Assignee or
Participant who are advised of the provisions of this Section, (d) upon the
request or demand of any Governmental Authority having or asserting jurisdiction
over either Agent or any Lender, (e) in response to any order of any court or
other Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (f) if requested or required to do so in connection with the
exercise of any remedy hereunder or under any other Loan Document or (i) upon
the advice of counsel that such disclosure is required by law.
14.23. No Bankruptcy Proceedings. Each of the Borrower, RMOP, the
Administrative Agent, the Documentation Agent, the Syndication Agent and the
other Lenders hereby agrees that it will not institute against any Designated
Bank or join any other Person in instituting against any Designated Bank any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding
under any federal or state bankruptcy or similar law, until the later to occur
of (i) one year and one day after the payment in full of the latest maturing
commercial paper note issued by such Designated Bank and (ii) the Revolving
Credit Termination Date.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the date
first above written.
BORROWER:
RECKSON OPERATING PARTNERSHIP, L.P.
a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY CORP.
By: _____________________________________
Name:
Title:
Notice Address:
RMOP:
XXXXXXX XXXXXX OPERATING
PARTNERSHIP, L.P. a Delaware
limited partnership
By: _____________________________________
Name:
Title:
Notice Address:
SYNDICATION AGENT,
ARRANGER AND LENDER:
UBS AG, NEW YORK BRANCH
By:________________________
Name:______________________
Title:_____________________
By:________________________
Name:______________________
Title:_____________________
Notice Address, Domestic Lending
Office and EuroDollar Lending Office:
Union Bank of Switzerland
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
Pro Rata Share: 10.75%
Revolving Credit Commitment: $50,000,000
ADMINISTRATIVE AGENT,
ARRANGER AND LENDER: THE CHASE MANHATTAN BANK
By:________________________
Name:
Title: Vice President
Notice Address, Domestic and
Eurodollar Lending Office:
The Chase Manhattan Bank
000 Xxxxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopy: 000-000-0000
Reference:
with copy of all Notices to:
The Chase Manhattan Bank
000 Xxxxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxx
Telecopy: 000-000-0000
Reference:
Pro Rata Share: 10.75%
Revolving Credit Commitment: $50,000,000
DOCUMENTATION AGENT
AND LENDER: PNC BANK, NATIONAL ASSOCIATION
By:________________________
Name:
Title:
Notice Address, Domestic and Eurodollar Lending Office:
Attention:
Telecopy:
Reference:
Pro Rata Share: 10.75%
Revolving Credit Commitment: $50,000,000
CO-AGENT AND LENDER: BAYERISCHE VEREINSBANK
By:________________________
Name:
Title:
By:________________________
Name:
Title:
Pro Rata Share: 10.75%
Revolving Credit Commitment: $50,000,000
CO-AGENT AND LENDER: BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION
By:________________________
Name:
Title:
Pro Rata Share: 8.60%
Revolving Credit Commitment: $40,000,000
CO-AGENT AND LENDER: BANKERS TRUST COMPANY
By:________________________
Name:
Title:
Pro Rata Share: 7.53%
Revolving Credit Commitment: $35,000,000
LENDER: THE BANK OF NEW YORK
By:________________________
Name:
Title:
Pro Rata Share: 5.38%
Revolving Credit Commitment: $25,000,000
LENDER: FIRST UNION NATIONAL BANK
By:________________________
Name:
Title:
Pro Rata Share: 5.38%
Revolving Credit Commitment: $25,000,000
LENDER: KEYBANK, N.A.
By:________________________
Name:
Title:
Pro Rata Share: 5.00%
Revolving Credit Commitment: $25,000,000
LENDER: LASALLE NATIONAL BANK
By:________________________
Name:
Title:
Pro Rata Share: 5.38%
Revolving Credit Commitment: $25,000,000
LENDER: SUMMIT BANK
By:________________________
Name:
Title:
Pro Rata Share: 5.38%
Revolving Credit Commitment: $25,000,000
LENDER: FIRST NATIONAL BANK OF MARYLAND
By:________________________
Name:
Title:
Pro Rata Share: 4.30%
Revolving Credit Commitment: $20,000,000
LENDER: FLEET NATIONAL BANK
By:________________________
Name:
Title:
Pro Rata Share: 4.30%
Revolving Credit Commitment: $20,000,000
LENDER: MELLON BANK, N.A.
By:________________________
Name:
Title:
Pro Rata Share: 4.30%
Revolving Credit Commitment: $20,000,000
LENDER: BANK LEUMI USA
By:________________________
Name:
Title:
Pro Rata Share: 1.07%
Revolving Credit Commitment: $5,000,000
EXHIBIT A
to
Credit Agreement dated as of July 23, 1998
FORM OF ASSIGNMENT AND ACCEPTANCE
ASSIGNMENT AND ACCEPTANCE
---------------------------------------------
This ASSIGNMENT AND ACCEPTANCE dated as of ____________, 199_, among [Names
of Assignor Lenders] (each, an "Assignor" and collectively, the "Assignors")
and, ________________, __________________, ____________________,(etc.) (each, an
"Assignee" and collectively, the "Assignees").
PRELIMINARY STATEMENTS
A. Reference is made to the Credit Agreement dated as of July 23, 1998 (as
the same may be amended, supplemented, restated or otherwise modified from time
to time, the "Credit Agreement") among Reckson Operating Partnership, L.P.,
Xxxxxxx Xxxxxx Operating Partnership, L.P., the institutions from time to time
party thereto as Lenders, and The Chase Manhattan Bank, as Arranger and
Administrative Agent, and UBS AG, New York Branch, as Arranger and Syndication
Agent. Capitalized terms used herein and not otherwise defined herein are used
as defined in the Credit Agreement.
B. The Assignors are Lenders under the Credit Agreement and each desires to
sell and assign to the Assignees a portion of such Assignor's existing Revolving
Credit Commitment, as set forth on Schedule 2 attached hereto (each, an
"Assigned Commitment") in the aggregate amount of $ of the Revolving Credit
Commitments (the "Aggregate Assigned Amount"), and each Assignee desires to
purchase and assume from each Assignor, on terms and conditions set forth below,
an interest in such Assignor's respective Assigned Commitment and related
outstanding Loans (the "Assigned Percentages"), together with the Assignors'
respective rights and obligations under the Credit Agreement with respect to the
Assigned Percentages, such that each Assignee shall, from and after the
Effective Date (as defined below), become a Lender under the Credit Agreement
with the respective Revolving Credit Commitment and Pro Rata Share listed on the
signature pages attached hereto.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Assignors and the Assignees
hereby agree as follows:
1. In consideration of the payments of each Assignee to each Assignor, to
be made by wire transfer to the Administrative Agent of immediately available
funds on the Effective Date in accordance with Schedule 3 attached hereto, each
Assignor hereby sells and assigns to each Assignee, and each Assignee hereby
purchases and assumes from such Assignor, the Assigned Percentage set forth on
Schedule 1 attached hereto, together with such Assignor's rights and obligations
under the Credit Agreement and all of the other Loan Documents with respect to
the Assigned Percentages as of the date hereof (after giving effect to any other
assignments thereof made prior to the date hereof, whether or not such
assignments have become effective, but without giving effect to any other
assignments thereof also made on the date hereof), including, without
limitation, the obligation to make Loans and the obligation to participate in
Letters of Credit.
2. Each Assignor (i) represents and warrants that as of the date hereof
its Revolving Credit Commitment is as set forth on Schedule 2 attached hereto
(in each case, after giving effect to any other assignments thereof made prior
to the date hereof, whether or not such assignments have become effective, but
without giving effect to any other assignments thereof made as of the date
hereof); (ii) represents and warrants that it is the legal and beneficial owner
of the interest being assigned by it hereunder and that such interest is free
and clear of any adverse claim and that such Assignor is legally authorized to
enter into this Assignment and Acceptance; (iii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or any of the other Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or any
of the other Loan Documents or any other instrument or document furnished
pursuant thereto; and (iv) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any obligations under the Credit
Agreement or any of the other Loan Documents or any other instrument or document
furnished pursuant thereto.
3. Each Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Credit Agreement, together with copies of such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (iii) agrees
that it shall have no recourse against the Assignor with respect to any matter
relating to the Credit Agreement, any of the other Loan Documents, or this
Assignment and Acceptance (except with respect to the representations or
warranties made by the Assignors in clauses (i) and (ii) of paragraph 2 above);
(iv) agrees that it will, independently and without reliance upon the
Administrative Agent, the Assignors or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (v) confirms that it is an Eligible Assignee; (vi) appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under the Credit Agreement as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (vii) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender; (viii) confirms that,
to the best of its knowledge, as of the date hereof, it is not subject to any
law, regulation or guideline from any central bank or other Governmental
Authority or quasi-governmental authority exercising jurisdiction, power or
control over it, which would subject the Borrower to the payment of additional
compensation under Section 13.2 or under Section 13.3 of the Credit Agreement;
(ix) specifies as its Domestic Lending Office (and address for notices) and
Eurodollar Lending Office(s) the offices set forth beneath its name on the
signature pages hereof; (x) if such Assignee is organized under the laws of a
jurisdiction outside the United States, attaches the forms described in Section
13.1(d) of the Credit Agreement or any successor forms prescribed by the
Internal Revenue Service of the United States certifying as to the Assignee's
exemption from United States withholding taxes with respect to all payments to
be made to the Assignee under the Credit Agreement and the Notes or such other
documents as are necessary to indicate that all such payments are subject to
such rates at a rate reduced by an applicable tax treaty; and (xi) represents
and warrants that none of the funds, monies, assets or other consideration being
used to purchase pursuant to this Assignment and Acceptance are "plan assets" as
defined under ERISA and that its rights, benefits, and interests in and under
the Loan Documents will not be "plan assets" under ERISA.
4. Following the execution of this Assignment and Acceptance by each of
the Assignors and the Assignees, it will be delivered to the Administrative
Agent for acceptance and recording by the Administrative Agent. The effective
date of this Assignment and Acceptance shall be , 199 (the "Effective Date").
5. As of the Effective Date, (i) each Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder and (ii) each Assignor
shall, to the extent provided in this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement with
respect to its Assigned Commitment.
6. From and after the Effective Date, the Administrative Agent shall
make all payments under the Credit Agreement and the Notes in respect of the
Aggregate Assigned Amount (including, without limitation, all payments of
principal, interest and fees with respect thereto) to the appropriate Assignees.
The Administrative Agent shall make all appropriate adjustments in payments
under the Credit Agreement and the Notes for periods prior to the Effective
Date.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. This Assignment and Acceptance may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
[9. The Assignor represents and warrants that it has given the Borrower
five (5) days written notice by telecopy of its intention to enter into
this Assignment and Acceptance in accordance with the provisions of Section
14.1(b) of the Credit Agreement.]1
_________________________
1 Applies only during the continuance of an Event of
(continued)...)
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
ASSIGNORS: _____________________________
By:____________________________
Name:_______________________
Title:______________________
By:____________________________
Name:_______________________
Title:______________________
Notice Address, Domestic
Lending Office and Eurodollar
Lending Office:
Adjusted Pro Rata Share: _______%
Adjusted Revolving Credit Commitment: $___________
_____________________________
1(...continued)
Default and prior to an acceleration of the Loans.
ASSIGNEES:
By:_______________________
Name:
Title:
By:_______________________
Name:
Title:
Notice Address, Domestic
Lending Office and Eurodollar
Lending Office:
Pro Rata Share: _________%
Revolving Credit Commitment: $___________
Accepted as of this ___ day
of ___________, 199_
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:______________________
Name:
Title:
By:______________________
Name:
Title:
Consented and agreed to
as of this ___ day of ________________, 199_
RECKSON OPERATING PARTNERSHIP, L.P.,2
a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY CORP.,
a Maryland corporation, its
general partner
By:_______________________________
Name:
Title:
_________________________
2 Consent not required if the circumstances described in Section 14.1(b) of the
Credit Agreement have occurred and are continuing.
SCHEDULE 1
Assigned New Pro
Assignee Percentage Rata Share
-------- ---------- ----------
SCHEDULE 2
EXISTING REVOLVING CREDIT COMMITMENTS AND
PRO RATA SHARES OF ASSIGNORS
Existing Existing
Revolving Credit Pro Rata Assigned
Assignor Commitment Share Commitment
---------- ----- ----------
SCHEDULE 3
PAYMENTS3
Funding Fee to
Facility Amount/Repay- Administrative
Lender Fee ment to Assignors Agent4
------ --- ----------------- --------------
______________________
3 Payments to the Lenders are shown without parentheses; payments from the
Lenders to the Administrative Agent, on its own behalf or on behalf of the
Lenders, are shown in parentheses.
4 Pursuant to Section 14.1(d) of the Credit Agreement.
EXHIBIT B-1
to
Credit Agreement dated as of July 23, 1998
FORM OF PROMISSORY NOTE
---------------------------------------------------------
________________________ New York, New York
July __, 1998
For value received, Reckson Operating Partnership, L.P., a Delaware limited
partnership (the "Borrower"), promises to pay to the order of
____________________________ (the "Lender"), the unpaid principal amount of each
Loan made by the Lender to the Borrower pursuant to the Credit Agreement
referred to below on the Revolving Credit Termination Date (as such term is
defined in the Credit Agreement). The Borrower promises to pay 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 the Administrative Agent (as such
term is defined in the Credit Agreement).
All Loans made by the Lender, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Lender and,
if the Lender so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Lender 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 Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement, dated as
of July 23, 1998, among the Borrower, the institutions from time to time party
thereto, The Chase Manhattan Bank, as Arranger and Administrative Agent, UBS AG,
New York Branch, as Arranger and Syndication Agent and PNC Bank, National
Association, as Documentation Agent (as the same may be amended, supplemented,
restated, or otherwise modified 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 upon the happening of certain
events.
THIS NOTE SHALL BE INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE
PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
BORROWER:
RECKSON OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY CORP.,
a Maryland corporation, its
general partner
By:______________________________
Name:
Title:
LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
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EXHIBIT B-2
to
Credit Agreement dated as of July 23, 1998
FORM OF PROMISSORY NOTE
---------------------------------------------------------
______________ New York, New York
July __, 1998
For value received, [Reckson Operating Partnership, L.P.][Xxxxxxx Xxxxxx
Operating Partnership, L.P.], a Delaware limited partnership (the "Borrower"),
promises to pay to the order of ____________________________ (the "Lender"), the
unpaid principal amount of each Loan made by the Lender to the Borrower pursuant
to the Credit Agreement referred to below on the Revolving Credit Termination
Date (as such term is defined in the Credit Agreement). The Borrower promises to
pay 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 the Administrative
Agent (as such term is defined in the Credit Agreement).
All Loans made by the Lender, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Lender and,
if the Lender so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Lender 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 Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Designated Bank Notes referred to in the Credit
Agreement, dated as of July 23, 1998, among the Borrower, the institutions from
time to time party thereto, The Chase Manhattan Bank, as Arranger and
Administrative Agent, UBS AG, New York Branch, as Arranger and Syndication
Agent, and PNC Bank, National Association, as Documentation Agent (as the same
may be amended, supplemented, restated, or otherwise modified 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 upon the
happening of certain events.
THIS NOTE SHALL BE INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE
PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
BORROWER:
[RECKSON OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY CORP.,
a Maryland corporation, its
general partner]
By:______________________________
Name:
Title:
[XXXXXXX XXXXXX OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: XXXXXXX XXXXXX INDUSTRIAL INTERIM GP LLC
a Delaware limited liability company,
its general partner]
By:________________________________
Name:
Title:
LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
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EXHIBIT B-3
to
Credit Agreement dated as of July 23, 1998
FORM OF PROMISSORY NOTE
---------------------------------------------------------
______________ New York, New York
July __, 1998
For value received, Xxxxxxx Xxxxxx Operating Partnership, L.P., a Delaware
limited partnership ("RMOP"), promises to pay to the order of
____________________________ (the "Lender"), the unpaid principal amount of each
Loan made by the Lender to RMOP pursuant to the Credit Agreement referred to
below on the Revolving Credit Termination Date (as such term is defined in the
Credit Agreement). RMOP promises to pay 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 the Administrative Agent (as such term is defined in the
Credit Agreement).
All Loans made by the Lender, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Lender and,
if the Lender so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Lender 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 Lender to make any such
recordation or endorsement shall not affect the obligations of RMOP hereunder or
under the Credit Agreement.
This note is one of the RMOP Notes referred to in the Credit Agreement,
dated as of July 23, 1998, among RMOP, the institutions from time to time party
thereto, The Chase Manhattan Bank, as Arranger and Administrative Agent, UBS AG,
New York Branch, as Arranger and Syndication Agent, and PNC Bank, as
Documentation Agent (as the same may be amended, supplemented, restated, or
otherwise modified 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 upon the happening of certain events.
THIS NOTE SHALL BE INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE
PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
BORROWER:
XXXXXXX XXXXXX OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: XXXXXXX XXXXXX INDUSTRIAL INTERIM GP LLC
a Delaware limited liability company,
its general partner
By:________________________________
Name:
Title:
LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
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EXHIBIT C
to
Credit Agreement dated as of July 23, 1998
---------------------------------------------------------
FORM OF NOTICE OF BORROWING
_______, 199_
The Chase Manhattan Bank, as Administrative Agent
for the Lenders party to the Credit Agreement
referred to below
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxx
Ladies and Gentlemen:
Reference is hereby made to that certain Credit Agreement dated as of July
23, 1998 (as the same may be amended, supplemented, restated or otherwise
modified from time to time, the "Credit Agreement", the terms defined therein
being used herein as therein defined), among Reckson Operating Partnership,
L.P., a Delaware limited partnership (the "Borrower"), Xxxxxxx Xxxxxx Operating
Partnership, L.P. ("RMOP"), the institutions from time to time party thereto as
Lenders, and The Chase Manhattan Bank, as Arranger and Administrative Agent, UBS
AG, New York Branch, as Arranger and Syndication Agent, and PNC Bank, National
Association, as Documentation Agent.
The Borrower hereby gives you notice, irrevocably, pursuant to Section
2.1(b) of the Credit Agreement that the Borrower/RMOP hereby requests a
Borrowing under the Credit Agreement and, in that connection, sets forth below
the information relating to such Borrowing (the "Proposed Borrowing") as
required pursuant to the terms of the Credit Agreement:
The Funding Date (which shall be a Business Day) of the Proposed Borrowing
is __________, 199_.
The amount of the Proposed Borrowing is $_____________.1
__________________
1 Such amount must be in a minimum amount of $3,000,000 and in integral
multiples of $500,000 in excess of that amount.
The Revolving Credit Availability as of the date of this Notice of
Borrowing is $--------------.
The Proposed Borrowing will be of [Eurodollar Rate Loans] [Base Rate
Loans].
The requested Eurodollar Interest Period for the Proposed
Borrowing is from ____________ and ending ___________ (for a
total of _______ months).2
The Loan is for the account of [Borrower][RMOP].
The Borrower (by its signature below) hereby directs the Administrative
Agent to disburse the proceeds of the Loans comprising the Proposed Borrowing on
the Funding Date therefor as set forth on Schedule 1 attached hereto and made a
part hereof, whereupon the proceeds of such Loans shall be deemed received by or
for the benefit of the Borrower/RMOP.
The Borrower (by its signature below) hereby certifies that the conditions
precedent contained in Section [6.1] [6.2] are satisfied on the date hereof and
will be satisfied on the Funding Date of the Proposed Borrowing.
RECKSON OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY CORP.,
a Maryland corporation,
its general partner
By:_____________________
Name:
Title:
______________________
2 To be specified if the Proposed Borrowing is of Eurodollar Rate Loans. Such
Eurodollar Interest Period must comply with the provisions of Section 5.2(b) of
the Credit Agreement.
SCHEDULE 1
to
Notice of Borrowing
dated ______, 199_
[Insert disbursement directions]
EXHIBIT D
to
Credit Agreement dated as of July 23, 1998
---------------------------------------------------------
FORM OF NOTICE OF CONVERSION/CONTINUATION
________, 199_
The Chase Manhattan Bank, as Administrative Agent
for the Lenders party to the Credit Agreement
referred to below
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxx
Ladies and Gentlemen:
Reference is hereby made to that certain Credit Agreement dated as of July
23, 1998 (as the same may be amended, supplemented, restated or otherwise
modified from time to time, the "Credit Agreement", the terms defined therein
being used herein as therein defined), among Reckson Operating Partnership,
L.P., a Delaware limited partnership (the "Borrower"), Xxxxxxx Xxxxxx Operating
Partnership, L.P. ("RMOP"), the institutions from time to time party thereto as
Lenders, The Chase Manhattan Bank, as Arranger and Administrative Agent, UBS AG,
New York Bank, as Arranger and Syndication Agent, and PNC Bank, National
Association, as Documentation Agent.
The Borrower by its signature below hereby gives you notice pursuant to
Section 5.1(c)(ii) of the Credit Agreement that the Borrower hereby elects to1:
1. Convert $_________2 in aggregate principal amount of Base Rate Loans
_____________________
1 Include those items that are applicable, completed appropriately for the
circumstances.
2 Such amount of conversion to or continuation of Eurodollar rate Loans must
be in a minimum amount of $3,000,000 and in integral multiples of $500,000 in
excess of that amount, except in the case of a conversion into or a conversion
of an entire Borrowing of Non Pro Rata Loans.
from Base Rate Loans to Eurodollar Rate Loans on _______________, 199_3. The
Eurodollar Interest Period for such Eurodollar Rate Loans is requested to be
______ month[s].4
2. Convert $________ in aggregate principal amount of Eurodollar Rate Loans
with a current Eurodollar Interest Period ending ___________, 199_5 to Base Rate
Loans.
3. Continue as Eurodollar Rate Loans $_________6 in aggregate principal
amount of Eurodollar Rate Loans with a current Eurodollar Interest Period from
_____________ and ending _____________, 199_. The succeeding Eurodollar Interest
period for such Eurodollar Rate Loans is requested to be _______ month[s].7
4. The above Loans are for the account of [the Borrower] [RMOP].
______________________
3 Date of conversion must be a Business Day.
4 Such Eurodollar Interest Period must comply with the provisions of Section
5.2(b) of the Credit Agreement.
5 The Conversion of Eurodollar Rate Loans to Base Rate Loans shall be made on,
and only on, the last day of the Eurodollar Interest Period for such Eurodollar
Rate Loans.
6 See footnote 2.
7 See footnote 4.
The Borrower by its signature below hereby certifies that on the date
hereof there are no prohibitions under the Credit Agreement to the requested
conversion/continuation, and no such prohibitions will exist on the date of the
requested conversion/continuation.
RECKSON OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY CORP.,
a Maryland corporation,
its general partner
By:_____________________
Name:
Title:
EXHIBIT E
to
Credit Agreement dated as of July 23, 1998
---------------------------------------------------------
LIST OF CLOSING DOCUMENTS
$500,000,000
REVOLVING CREDIT FACILITY
among
RECKSON OPERATING PARTNERSHIP, L.P.,
XXXXXXX XXXXXX OPERATING PARTNERSHIP, L.P.
THE LENDERS,
THE CHASE MANHATTAN BANK,
UBS AG, NEW YORK BRANCH, AND
PNC BANK, NATIONAL ASSOCIATION
JULY 23, 1998
LIST OF CLOSING DOCUMENTS1
-------------------------
1. Credit Agreement (the "Credit Agreement"), among Reckson Operating
Partnership, L.P. (the "Borrower"), Xxxxxxx Xxxxxx Operating Partnership, L.P.
("RMOP"), certain financial institutions listed on the signature pages thereof
as lenders (collectively referred to herein, together with their respective
successors and assigns, as the "Lenders"), The Chase Manhattan Bank, as Arranger
and Administrative Agent ("Chase"), UBS AG, New York Branch, as Arranger and
Syndication Agent ("UBS"), and PNC Bank, National Association, as Documentation
Agent.
2. Exhibits and Schedules to the Credit Agreement as described on
Schedule 1 attached hereto.
3. Promissory Notes (the "Borrower Notes")
executed by the Borrower and payable to each Lender evidencing the Loans made by
such Lender under the Credit Agreement.
4. Promissory Notes (the "RMOP
Notes") executed by RMOP and payable to each Lender evidencing the Loans made by
such Lender under the Credit Agreement.
______________________
1 Capitalized terms used herein but not otherwise defined herein have the
meanings assigned to such terms in the Credit Agreement.
5. Guaranty Agreement by the Borrower, Reckson Associates Realty Corp. (the
"Company"), Reckson FS Limited Partnership ("Reckson FS"), and Xxxxxxx Xxxxxx
Industrial Interim GP LLC ("GP LLC") for the benefit of Chase and UBS.
6. Certificate of the Company dated the Closing Date (a) in its capacity as
general partner of the Borrower certifying (1) the names and true signatures of
the incumbent officers of the Company authorized to sign the Credit Agreement,
the Borrower Notes, and the other Loan Documents on behalf of the Borrower, (2)
the resolutions of the Company's Board of Directors approving and authorizing
the execution, delivery and performance of the Credit Agreement, the Borrower
Notes and all other Loan Documents executed by the General Partner on behalf of
the Borrower, and (3) a copy of the Partnership Agreement of the Borrower as in
effect on the date of such certification, and (2) a copy of the Certificate of
Incorporation of the Company, together with all amendments thereto, if any,
certified by the Secretary of State of Maryland.
7. Certificate of GP LLC dated the Closing Date (a) in its capacity as
general partner of RMOP certifying (1) the names and true signatures of the
incumbent officers of GP LLC authorized to sign the Credit Agreement, the RMOP
Notes, and the other Loan Documents on behalf of RMOP, (2) the resolutions of GP
LLC's Board of Managers approving and authorizing the execution, delivery and
performance of the Credit Agreement, the RMOP Notes and all other Loan Documents
executed by GP LLC on behalf of RMOP, and (3) a copy of the Partnership
Agreement of RMOP as in effect on the date of such certification, and (2) a copy
of the Certificate of Formation of GP LLC, together with all amendments thereto,
if any, certified by the Secretary of State of Delaware.
8. Copy of the Certificate of Limited Partnership of the Borrower, together
with all amendments thereto, if any certified by the Secretary of State of
Delaware.
9. Copy of the Articles of Incorporation of the Company, together with all
amendments thereto, if any certified by the Secretary of State of Maryland.
10. Copy of the Certificate of Limited Partnership of RMOP, together with
all amendments thereto, if any certified by the Secretary of State of Delaware.
11. Copy of the Certificate of Formation of GP LLC, together with all
amendments thereto, if any certified by the Secretary of State of Delaware.
12. Certificate of Reckson FS, Inc. dated the Closing Date (a) in its
capacity as general partner of Reckson FS certifying (1) the names and true
signatures of the incumbent officers of Reckson FS, Inc. authorized to sign the
Guaranty Agreement on behalf of Reckson FS, (2) the resolutions of Reckson FS,
Inc.'s Board of Directors approving and authorizing the execution, delivery and
performance of the Guaranty Agreement executed by Reckson FS, Inc. on behalf of
the Borrower, and (3) a copy of the Partnership Agreement of the Reckson FS as
in effect on the date of such certification, and (2) a copy of the Certificate
of Incorporation of Reckson FS, Inc., together with all amendments thereto, if
any, certified by the Secretary of State of Delaware.
13. Certificate of GP LLC dated the Closing Date certifying (1) the names
and true signatures of the incumbent officers of GP LLC authorized to sign the
Guaranty Agreement, and (2) the resolutions of GP LLC's Board of Managers
approving and authorizing the execution, delivery and performance of the
Guaranty Agreement executed by GP LLC on behalf of the Borrower.
14. Good Standing Certificates of the Borrower, the Company, RMOP, GP LLC,
Reckson FS and Reckson FS, Inc.
15. Opinion of Xxxxx & Xxxx LLP, counsel for the Borrower and the Company.
16. Notice of Borrowing executed by the Borrower and/or RMOP with respect to
the Loans to be made on the Initial Funding Date.
17. Disbursement Direction Authorization executed by the Borrower and/or
RMOP pursuant to which Chase is directed to disburse the proceeds of the Loans
to be made on the Initial Funding Date as described therein.
18. Officer's Certificate of the General Partners dated the Initial Funding
Date, signed by the President of the Company, certifying, among other things,
satisfaction of the conditions precedent to funding set forth in Section 6.1 of
the Credit Agreement.
EXHIBIT F
to
Credit Agreement dated as of July 23, 1998
---------------------------------------------------------
FORM OF [QUARTERLY/ANNUAL] COMPLIANCE CERTIFICATE TO
ACCOMPANY REPORTS
______, 199_
The Chase Manhattan Bank, as Administrative Agent
for the Lenders party to the Credit Agreement
referred to below
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxx
Ladies and Gentlemen:
Pursuant to Section [8.2(a)(iii)][8.2(b)(iii)] of that certain Credit
Agreement dated as of July 23, 1998 (as the same may be amended, supplemented,
restated or otherwise modified from time to time, the "Credit Agreement", the
terms defined therein being used herein as therein defined) among Reckson
Operating Partnership, L.P., a Delaware limited partnership (the "Borrower"),
Xxxxxxx Xxxxxx Operating Partnership, L.P., a Delaware limited partnership
("RMOP"), the institutions from time to time party thereto as Lenders, and The
Chase Manhattan Bank, as Arranger and Administrative Agent, UBS AG, New York
Branch, as Arranger and Syndication Agent, and PNC Bank, National Association,
as Documentation Agent, the undersigned, , the of [Reckson Operating
Partnership, L.P., a Delaware limited partnership][Reckson Associates Realty
Corp., a Maryland corporation (the "Company")], hereby certifies that:
1. The undersigned has reviewed the terms of the Loan Documents, and has
made, or caused to be made under [his/her] supervision, a review in reasonable
detail of the consolidated financial condition of the Company and its
consolidated Subsidiaries during the accounting period covered by the financial
statements identified below. To the best of the undersigned's knowledge, such
review has not disclosed the existence during or at the end of such accounting
period, and as of the date hereof the undersigned does not have knowledge, of
the existence of any condition or event which constitutes an Event of Default or
Potential Event of Default.1
2. The financial statements, reports and copies of certain instruments and
documents attached hereto, namely,
A. Compliance Certificate, dated _____________________
B. _______________________, dated _____________________
C. _______________________, dated _____________________
D. ________________________, dated _____________________
are true and complete copies of the aforesaid which
constitute part of or are based upon the customary books and records of the
Company, and, to the best of the undersigned's knowledge and belief, there exist
no facts or circumstances which would have a Material Adverse Effect.
___________________________
Name:
Title:
______________________
1 If such condition or event exists or existed, specify (i) the nature and
period of such condition or event and (ii) the action taken, being taken or
proposed to be taken with respect thereto.
EXHIBIT G
SAMPLE CALCULATIONS OF FINANCIAL COVENANTS
EXHIBIT H
to
Credit Agreement
dated as of July 23, 1998
---------------------------------------------------------
FORM OF COMPETITIVE BID QUOTE REQUEST
[Date]
To: THE CHASE MANHATTAN BANK, as Administrative Agent
From: RECKSON OPERATING PARTNERSHIP, L.P.
Re: Credit Agreement (the "Credit Agreement") dated as of July 23, 1998
among Reckson Operating Partnership, L.P., Xxxxxxx Xxxxxx Operating
Partnership, L.P., and the Lenders, Agents and Arrangers parties thereto
We hereby give notice pursuant to Section 2.2 of the Credit Agreement that
we request Competitive Bid Quotes for the following proposed Competitive Bid
Borrowing(s):
Date of Borrowing: __________________
Principal Amount1 Interest Period2
$
Such Competitive Bid Quotes should offer either a Competitive Bid
Margin or a Competitive Bid Rate. Terms used herein have the meanings assigned
to them in the Credit Agreement.
________________________
1 Amount must be $20,000,000 or a larger multiple of $1,000,000, with all
outstanding Competitive Bid Loans not to exceed fifty percent of the Maximum
Revolving Credit Amount.
2 In the case of Eurodolloar Competitive Bid Loans: 30, 60 or 90 days, subject
to the provisions of the definition of Eurodollar Interest Period.
Competitive Bid Loans in the amount of $_________ are currently
outstanding.
RECKSON OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY CORP.,
a Maryland corporation,
its general partner
By:_____________________
Name:
Title:
EXHIBIT I
to
Credit Agreement
dated as of July 23, 1998
---------------------------------------------------------
FORM OF INVITATION FOR COMPETITIVE BID QUOTE
To: [Name of Bank]
Re: Invitation for Competitive Bid Quotes to Reckson Operating Partnership,
L.P./Xxxxxxx Xxxxxx Operating partnership, L.P.
Pursuant to Section 2.2 of the Credit Agreement (the "Credit Agreement")
dated as of July 23, 1998 among Reckson Operating Partnership, L.P., Xxxxxxx
Xxxxxx Operating Partnership, L.P., and the Lenders, Agents and Arrangers
parties thereto, we are pleased on behalf of the Borrower/RMOP to invite you to
submit Competitive Bid Quotes to the Borrower/RMOP for the following proposed
Competitive Bid Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
---------------- ---------------
$
Such Competitive Bid Quotes should offer either a Competitive Bid Margin or
a Competitive Bid Rate. Terms used herein have the meanings assigned to them in
the Credit Agreement.
Please respond to this invitation by no later than 2:00 P.M. (New York City
time) on [date].
THE CHASE MANHATTAN BANK, as Administrative
Agent
By______________________
Authorized Officer
EXHIBIT J
to
Credit Agreement
dated as of July 23, 1998
---------------------------------------------------------
FORM OF COMPETITIVE BID QUOTE
To: THE CHASE MANHATTAN BANK, as Administrative Agent
Re: Competitive Bid Quote to Reckson Operating Partnership, L.P. and/or
Xxxxxxx Xxxxxx Operating Partnership, L.P. (collectively, the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 19__, we hereby make the following Competitive Bid 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 Competitive Bid Loan(s) in the following
principal amounts, for the following Interest Periods and at the
following rates:
Principal Interest Competitive Bid or Money
Amount** Period*** [Margin****] Market Rate
-------- --------- ------------ -----------
$
$
[Provided, that the aggregate principal amount of Competitive Bid Loans for
which the above offers may be accepted shall not exceed $____________.]**
----------
* As specified in the related Invitation.
** Principal amount bid for each Interest Period may not exceed principal amount
requested. Specify aggregate limitation 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 $1,000,000.
*** Not less than one month or not less than 30 days, as specified in the
related Invitation in the case of Competitive Bid Loans based on the Eurodollar
Rate.
**** Margin over or under the Eurodollar Rate determined for the applicable
Interest Period. Specify percentage (to the nearest 1/10,000 of 1%) and specify
whether "PLUS" or "MINUS".
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 July 23, 1998 among Reckson Operating Partnership, L.P., Xxxxxxx
Xxxxxx Operating Partnership, L.P., and the Lenders, Agents and Arrangers
parties thereto, irrevocably obligates us to make the Competitive Bid Loan(s)
for which any offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF LENDER]
Dated:_______________
By:__________________________
Authorized Officer
EXHIBIT K
to
Credit Agreement
dated as of July 23, 1998
---------------------------------------------------------
FORM OF DESIGNATION AGREEMENT
Dated _____________, 199___
Reference is made to that certain Credit Agreement dated as of July 23,
1998 (as the same may be amended, supplemented, restated or otherwise modified
from time to time, the "Credit Agreement", the terms defined therein being used
herein as therein defined) among Reckson Operating Partnership, L.P., Xxxxxxx
Xxxxxx Operating Partnership, L.P. (collectively, the "Borrower"), the
institutions from time to time party thereto as Lenders and Agents, and The
Chase Manhattan Bank, as Administrative Agent, UBS AG, as Syndication Agent, and
PNC Bank, National Association, as Documentation Agent. Terms defined in the
Credit Agreement are used herein with the same meaning.
[NAME OF DESIGNOR] (the "Designor"), [NAME OF DESIGNEE] (the "Designee"),
and the Administrative Agent agree as follows:
1. The Designor hereby designates the Designee, and the Designee hereby
accepts such designation, to have a right to make Competitive Bid Loans pursuant
to Article II of the Credit Agreement. Any assignment by Designor to Designee of
its rights to make a Competitive Bid Loan pursuant to such Article II shall be
effective at the time of the funding of such Competitive Bid Loan and not before
such time.
2. Except as set forth in Section 7 below, the Designor makes no
representation or warranty and assumes no responsibility pursuant to this
Designation Agreement with respect to (a) any statements, warranties or
representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Loan Document or any other instrument and document furnished pursuant
thereto and (b) the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under any Loan Document or
any other instrument or document furnished pursuant thereto.
3. The Designee (a) confirms that it has received a copy of each Loan
Document, together with copies of the financial statements referred to the
Credit Agreement and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Designation Agreement; (b) agrees that it will independently and without
reliance upon the Administrative Agent, the Designor or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under any Loan Document; (c) confirms that it is a Designated Bank; (d) appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under any Loan Document as are
delegated to the Payment and Disbursement Agent by the terms thereof, together
with such powers and discretion as are reasonably incidental thereto; and (e)
agrees to be bound by each and every provision of each Loan Document and further
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of any Loan Document are required to be performed
by it as a Lender, including any and all obligations set forth in Section
15.1(f).
4. The Designee hereby appoints Designor as Designee's agent and attorney
in fact, and grants to Designor an irrevocable power of attorney, to receive
payments made for the benefit of Designee under the Credit Agreement, to deliver
and receive all communications and notices under the Credit Agreement and other
Loan Documents and to exercise on Designee's behalf all rights to vote and to
grant and make approvals, waivers, consents of amendments to or under the Credit
Agreement or other Loan Documents. Any document executed by the Designor on the
Designee's behalf in connection with the Credit Agreement or other Loan
Documents shall be binding on the Designee to the same extent as if actually
signed by the Designee. The Borrower, the Administrative Agent and each of the
other Lenders may rely on and are beneficiaries of the preceding provisions.
5. Following the execution of this Designation Agreement by the Designor
and its Designee, it will be delivered to the Administrative Agent for
acceptance and recording by the Administrative Agent. The effective date for
this Designation Agreement (the "Effective Date") shall be the date of
acceptance hereof by the Administrative Agent, unless otherwise specified on the
signature page thereto.
6. The Administrative Agent hereby agrees that it will not institute
against any Designated Bank or join any other Person in instituting against any
Designated Bank any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding under any federal or state bankruptcy or similar law,
until the later to occur of (i) one year and one day after the payment in full
of the latest maturing commercial paper note issued by such Designated Bank and
(ii) the Revolving Credit Termination Date.
7. The Designor unconditionally agrees to pay or reimburse the Designee and
save the Designee harmless against all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed or asserted by any of the
parties to the Loan Documents against the Designee, in its capacity as such, in
any way relating to or arising out of this Agreement or any other Loan Documents
or any action taken or omitted by the Designee hereunder or thereunder, provided
that the Designor shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements if the same results from the Designee's gross
negligence or willful misconduct.
8. Upon such acceptance and recording by the Administrative Agent, as of
the Effective Date, the Designee shall be a party to the Credit Agreement with a
right to make Competitive Bid Loans as a Lender pursuant to Section 2.2 of the
Credit Agreement and the rights and obligations of a Lender related thereto;
provided, however, that the Designee shall not be required to make payments with
respect to such obligations except to the extent of excess cash flow of such
Designee which is not otherwise required to repay obligations of such Designated
Bank which are then due and payable. Notwithstanding the foregoing, the
Designor, as administrative agent for the Designee, shall be and remain
obligated to the Borrower and the other Lenders for each and every of the
obligations of the Designee and its Designor with respect to the Credit
Agreement, including, without limitation, any indemnification obligations under
Section 12.5 of the Credit Agreement and any sums otherwise payable to the
Borrower by the Designee.
9. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
10. This Designation Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Designation Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Designation Agreement.
IN WITNESS WHEREOF, the Designor and the Designee, intending to be legally
bound, have caused this Designation Agreement to be executed by their officers
thereunto duly authorized as of the date first above written.
Effective Date: ____________________,
199__
[NAME OF DESIGNOR], as Designor
By:_________________________________
Title:______________________________
[NAME OF DESIGNEE] as Designee
By:__________________________________
Title:_______________________________
Applicable Lending Office (and address
for notices):
[ADDRESS]
Accepted this _____ day
of _______________, 19__
THE CHASE MANHATTAN BANK
as Administrative Agent
By:________________________
Title:_____________________
SCHEDULE 1.1.1
EXISTING PERMITTED LIENS
That certain security interest granted by Reckson Operating
Partnership L.P. in favor of Odyssey Partners L.P. and Odyli, Inc. pursuant to
Section 14.3 of the Third Amended and Restated Agreement of Limited
Partnership of Omni, Partners L.P. and all amounts, payments and proceeds
becoming distributable or payable to Reckson Operating Partnership, L.P. by
Omni.
SCHEDULE 1.1.2
PERMITTED SECURITIES OPTIONS
1. Company
- Articles of Amendment and Restatement of Reckson Associates Realty
Corp. filed with the Maryland Department of Assessments and Taxation
on May 22, 1995.
- 1995 Stock Option Plan.
- 1996 Employee Stock Option Plan.
- 1997 Stock Option Plans.
- 1998 Stock Option Plans.
2. Borrower
- Certificate of Limited Partnership of Reckson Operating Partnership,
L.P. filed with the Secretary of State of Delaware on September 28,
1994.
- Amended and Restated Agreement of Limited Partnership of Reckson
Operating Partnership, L.P. dated June 2, 1995 (as amended December
6, 1995, April 13, 1998 and June 30, 1998).
3. RMOP
- Restated Certificate of Limited Partnership filed with the Secretary
of State of Delaware on December 10, 1997.
- Amended and Restated Agreement of Limited Partnership dated January
6, 1998.
SCHEDULE 6.01(D)
EQUITY CHANGES
Company Borrower
Common shares Preferred shares Common Preferred
units units
29-Apr-98 1,979 Property
Acquisition
15-Jun-98 2,000 (2,000) Conversion
02-Jul-98 6,990 (8,000) Conversion
02-Jul-98 6,000 Property
acquisition
Various 40,186 Stock options
and gift shares
SCHEDULE 7.1-A
ORGANIZATION DOCUMENTS
1. Reckson Associates Realty Corp.
- Articles of Amendment and Restatement filed with the Maryland
Department of Assessments and Taxation on May 22, 1995.
- Articles Supplementary filed with the Maryland Department of
Assessments and Taxation on April 9, 1998.
2. Reckson Operating Partnership, L.P.
- Certificate of Limited Partnership filed with the Secretary of State
of Delaware on September 28, 1994.
- Amended and Restated Agreement of Limited Partnership dated June 2,
1995 (as amended on December 6, 1995, April 13, 1998 and June 30,
1998).
3. Xxxxxxx Xxxxxx Industrial Trust
- Amended and Restated Declaration of Trust filed with the Maryland
Department of Assessments and Taxation on January 6, 1998.
4. Xxxxxxx Xxxxxx Industrial GP LLC
- Certificate of Formation filed with the Secretary of State of
Delaware on November 24, 1997.
- Limited liability company operating agreement dated January 6, 1998.
5. Xxxxxxx Xxxxxx Operating Partnership, L.P.
- Restated Certificate of Limited Partnership filed with the Secretary
of State of Delaware on December 10, 1997.
- Amended and Restated Agreement of Limited Partnership dated January 6,
1998.
6. Reckson Financing LLC
- Certificate of Formation filed with the Secretary of State of
Delaware on July 1, 1998.
- Limited liability company operating agreement dated July 7, 1998
7. Reckson FS Limited Partnership.
- Amended and Restated Certificate of Limited Partnership filed with
the Secretary of State of Delaware on July 21, 1998.
- Third Amended and Restated Agreement of Limited Partnership dated
July 21, 1998.
SCHEDULE 7.1-C
SUBSIDIARIES; OWNERSHIP OF CAPITAL
STOCK AND PARTNERSHIP INTERESTS
1. Diagram of Entities
See Exhibit A attached hereto.
2. List of Entities
JURISDICTION WHERE EQUITY SECURITIES
JURISDICTION OF QUALIFIED TO TRANSACT
LEGAL NAME ORGANIZATION BUSINESS AS A FOREIGN NUMBER NUMBER ISSUED
OF SUCH PERSON TYPE OF ENTITY OR FORMATION CORPORATION OR OTHERWISE AUTHORIZED AND OUTSTANDING OWNERS
------------------ -------------- --------------- ------------------------ ------------- --------------- -------
Reckson Associates Corp. MD NY 100,000,000 39,998,735 Public
Realty Corp. ("RA") NJ (Common)
CT 25,000,000 9,192,000
(Preferred)
Reckson Operating LP DE NY RA (82%)
Partnership, L.P. NJ LPs (18%)
CT of common units
Reckson Executive LLC NY See Diagram
Center, LLC
Reckson Management Corp. NY NY 1,000 1,000 See Diagram
Group, Inc. NJ (Common)
CT 1,000 1,000
(Preferred)
Reckson Corp. NY NY 1,000 1,000 See Diagram
Construction Group, NJ (Common)
Inc. CT 1,000 1,000
(Preferred)
Reckson FS Limited Corp. DE NY See Diagram
Partnership NJ
Reckson LLC DE See Diagram
Financing LLC
Omni Partners, L.P. LP DE NY See Diagram
360 Xxxxxxxx LLC DE NY Borrower (50%);
Ave, LLC Xxxxxxxx Plaza
of White Plains,
Inc. (50%)
RM Square LLC LLC NY NY 100% owned by
Reckson Operating
Partnership, L.P.
Reckson 120 White LLC NY NY 100% owned by
Plains Road LLC Reckson Operating
Partnership, L.P.
520 LLC LLC DE NY Borrower (60%);
Tarrytown
Corporate Center
III, L.P. (40%)
Reckson/Matrix LLC NJ NJ Reckson Operating
Cabbot Drive, LLC Partnership, L.P.
(99%); Reckson
Construction
Group, Inc. (1%)
Xxxxxxx Xxxxxx Real Estate MD NJ See Diagram
Industrial Trust Investment
Trust
Xxxxxxx Xxxxxx Ltd. DE NJ See Diagram
Operating Partnership
Partnership, L.P.
Xxxxxxx Xxxxxx LLC DE NJ See Diagram
Interim GP LLC
Exhibit A to Schedule 7.1-C
[Reckson Associates Realty Corp. Organizational Chart]
SCHEDULE 7.1-H
INDEBTEDNESS FOR BORROWED MONEY
See Exhibit A attached hereto.
SCHEDULE 7.1-I
PENDING ACTIONS
NONE.
SCHEDULE 7.1-P
ENVIRONMENTAL MATTERS
Section 7.1(p)(i)(e)
- o 000 Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx, a property formerly owned
by Vanderbilt Associates is listed on the Registry of Active Hazardous
Waste Disposal Sites in New York State.
SCHEDULE 7.1-Q
ERISA MATTERS
- Reckson 401 K Plan.
SCHEDULE 7.1-R
SECURITIES ACTIVITIES
Loans in connection with each of the Stock Option Plans listed on
Schedule 1.1.2.
SCHEDULE 7.1-T
INSURANCE POLICIES
See Exhibit A attached hereto.
GUARANTY AGREEMENT
UNCONDITIONAL GUARANTY OF PAYMENT (this "Guaranty"), is made as of July 23,
1998 by RECKSON OPERATING PARTNERSHIP, L.P. (the "Borrower"), RECKSON ASSOCIATES
REALTY CORP. ("RAR"), a Maryland corporation, RECKSON FS LIMITED PARTNERSHIP
("RFS" and together with RAR, the "Borrower Guarantors"), a Delaware limited
partnership, XXXXXXX XXXXXX INDUSTRIAL INTERIM GP LLC ("RMIIGP LLC"), a Delaware
limited liability company, XXXXXXX XXXXXX INDUSTRIAL TRUST ("RMIT" and together
with RMIIGP LLC and the Borrower, the "RMOP Guarantors"), a Maryland real estate
investment trust, (the Borrower Guarantors and the RMOP Guarantors,
collectively, "Guarantor"), in favor of THE CHASE MANHATTAN BANK, as arranger
and administrative agent and UBS AG, NEW YORK BRANCH, as arranger and
syndication agent (collectively, "Agents") for the benefit of the banks (the
"Lenders") that are from time to time parties to that certain Credit Agreement
(the "Credit Agreement"), dated as of July 23, 1998, among Guarantor, the
Lenders and the Agents.
Capitalized terms not otherwise defined in this Guaranty shall have the
meanings ascribed to them in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to the terms of the Credit Agreement, the Borrower and
XXXXXXX XXXXXX OPERATING PARTNERSHIP, L.P. ("RMOP") have requested that the
Lenders make a Loan to the Borrower and RMOP, to be guaranteed by Guarantor and
to be evidenced by certain Promissory Notes (the "Notes"), each dated as of July
, 1998, in the aggregate principal amount of $500,000,000, payable by the
Borrower to the order of the Agents;
WHEREAS, this Guaranty is the "Guaranty" referred to in the Credit
Agreement;
WHEREAS, Reckson Associates Realty Corp. owns a one percent (1%) general
partnership interest and an eighty-two percent (82%) limited partnership
interest in the Borrower and Reckson Financing LLC, a wholly-owned subsidiary of
Reckson Operating Partnership, L.P., is the general partner of Reckson FS
Limited Partnership; and
WHEREAS, Xxxxxxx Xxxxxx Industrial Interim GP LLC owns a .01% general
partnership interest in RMOP; and
WHEREAS, RMIT owns a 71.995% general partnership interest in RMOP; and
WHEREAS, in order to induce the Agents and the Lenders to make the Loans to
the Borrower and RMOP, and to satisfy one of the conditions contained in the
Credit Agreement with respect thereto, the Guarantor has agreed to enter into
this Guaranty.
NOW THEREFORE, in consideration of the premises and the direct and indirect
benefits to be derived from the making of the Loans by the Lenders to the
Borrower and RMOP, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, Guarantor hereby agrees as
follows:
1. (a) The Borrower Guarantors, on behalf of themselves and their
successors and assigns, each hereby irrevocably, absolutely, and unconditionally
jointly and severally guarantees the full and punctual payment when due, whether
at stated maturity or otherwise, of all obligations of the Borrower now or
hereafter existing under the Note, under any Letter of Credit or Letter of
Credit Reimbursement Agreement or under any of the other Loan Documents to which
the Borrower is a party (including, without limitation, all obligations of RMOP
under the Credit Agreement); and
(b) The RMOP Guarantors, on behalf of themselves and their successors and
assigns, each hereby irrevocably, absolutely, and unconditionally jointly and
severally guarantees the full and punctual payment when due, whether at stated
maturity or otherwise, of all obligations of RMOP now or hereafter existing
under the Note, under any Letter of Credit or Letter of Credit Reimbursement
Agreement or under any of the other Loan Documents to which RMOP is a party;
(c) Guarantor, on behalf of itself and its successors and assigns, hereby
irrevocably, absolutely, and unconditionally jointly and severally guarantees
the full and punctual payment when due of any and all reasonable costs and
expenses (including, without limitation, reasonable attorneys' fees and
disbursements) incurred by the Agents in enforcing its rights under this
Guaranty (all such obligations set forth in this Paragraph 1 being referred to
as the "Guaranteed Obligations").
2. It is agreed that the obligations of Guarantor hereunder are primary and
this Guaranty shall be enforceable against Guarantor and its successors and
assigns without the necessity for any suit or proceeding of any kind or nature
whatsoever brought by the Agents against the Borrower, RMOP or their respective
successors or assigns or any other party or against any security for the payment
and performance of the Guaranteed Obligations and, to the extent permitted by
applicable law, without the necessity of any notice of non-payment or
non-observance or of any notice of acceptance of this Guaranty or of any notice
or demand to which Guarantor might otherwise be entitled (including, without
limitation, diligence, presentment, notice of maturity, extension of time,
change in nature or form of the Guaranteed Obligations, acceptance of further
security, release of further security, imposition or agreement arrived at as to
the amount of or the terms of the Guaranteed Obligations, notice of adverse
change in the Borrower's or RMOP's financial condition and any other fact which
might materially increase the risk to Guarantor), all of which Guarantor, to the
extent permitted by applicable law, hereby expressly waives; and, to the extent
permitted by applicable law, Guarantor hereby expressly agrees that the validity
of this Guaranty and the obligations of the Guarantor hereunder shall in no way
be terminated, affected, diminished, modified or impaired by reason of the
assertion of, or the failure to assert by the Agents against the Borrower or its
respective successors or assigns, any of the rights or remedies reserved to the
Agents pursuant to the provisions of the Loan Documents. Guarantor hereby agrees
that, to the extent permitted by applicable law, any notice or directive given
at any time to the Agents which is inconsistent with the waiver in the
immediately preceding sentence shall be void and may be ignored by the Agents,
and, in addition, may not be pleaded or introduced as evidence in any litigation
relating to this Guaranty for the reason that such pleading or introduction
would be at variance with the written terms of this Guaranty, unless the Agents
have specifically agreed otherwise in writing, signed by a duly authorized
officer. Guarantor specifically acknowledges and agrees that the foregoing
waivers are of the essence of this transaction and that, but for this Guaranty
and such waivers, the Agents, the Lenders would not make the requested Loan to
the Borrower and RMOP.
3. To the extent permitted by applicable law, Guarantor hereby waives, and
covenants and agrees that it will not at any time insist upon, plead or in any
manner whatsoever claim or take the benefit or advantage of, any and all
appraisal, valuation, stay, extension, marshalling-of-assets or redemption laws,
or right of homestead exemption, whether now or at any time hereafter in force,
which may delay, prevent or otherwise affect the performance by Guarantor of its
obligations under, or the enforcement by the Agents of, this Guaranty. To the
extent permitted by applicable law, Guarantor further covenants and agrees not
to set up or claim any defense, counterclaim, offset, set-off or other objection
of any kind to any action, suit or proceeding in law, equity or otherwise, or to
any demand or claim that may be instituted or made by the Agents other than the
defense of the actual timely payment and performance by the Borrower or RMOP, as
applicable, of the Guaranteed Obligations hereunder. Guarantor represents,
warrants and agrees that, as of the date hereof, its obligations under this
Guaranty are not subject to any counterclaims, offsets or defenses against the
Agents of any kind.
4. The provisions of this Guaranty are for the benefit of the Agents on
behalf of the Lenders and their successors and permitted assigns, and nothing
herein contained shall impair as among the Borrower, RMOP and the Agents the
obligations of the Borrower and RMOP under the Loan Documents.
5. This Guaranty shall be a continuing, unconditional and absolute guaranty
and, to the extent permitted by applicable law, the liability of Guarantor
hereunder shall in no way be terminated, affected, modified, impaired or
diminished by reason of the happening, from time to time, of any of the
following, although without notice or the further consent of Guarantor: 14.
(a) any assignment, amendment, modification or waiver of or change in any
of the terms, covenants, conditions or provisions of any of the
Guaranteed Obligations or the Loan Documents or the invalidity or
unenforceability of any of the foregoing; or
(b) any extension of time that may be granted by the Agents to the
Borrower, RMOP, any guarantor, or their respective successors or
assigns; or
(c) any action which the Agents may take or fail to take under or in
respect of any of the Loan Documents or by reason of any waiver of, or
failure to enforce any of the rights, remedies, powers or privileges
available to the Agents under this Guaranty or available to the Agents
at law, in equity or otherwise, or any action on the part of the
Agents granting indulgence or extension in any form whatsoever; or
(d) any sale, exchange, release, or other disposition of any property
pledged, mortgaged or conveyed, or any property in which the Agents
and/or the Lenders have been granted a lien or security interest to
secure any indebtedness of the Borrower or RMOP to the Agents and/or
the Lenders; or
(e) any release of any person or entity who may be liable in any manner
for the payment and collection of any amounts owed by the Borrower or
RMOP to the Agents and/or the Lenders; or
(f) the application of any sums by whomsoever paid or however realized to
any amounts owing by the Borrower or RMOP to the Agents and/or the
Lenders under the Loan Documents in such manner as the Agents shall
determine in its sole discretion; or
(g) the Borrower's, RMOP's or any guarantor's voluntary or involuntary
liquidation, dissolution, sale of all or substantially all of their
respective assets and liabilities, appointment of a trustee, receiver,
liquidator, sequestrator or conservator for all or any part of the
Borrower's, RMOP's or guarantor's assets, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment, or the commencement of other similar
proceedings affecting the Borrower, RMOP or any guarantor or any of
the assets of any of them, including, without limitation, (i) the
release or discharge of the Borrower, RMOP or any guarantor from the
payment and performance of their respective obligations under any of
the Loan Documents by operation of law, or (ii) the impairment,
limitation or modification of the liability of the Borrower, RMOP or
any guarantor in bankruptcy, or of any remedy for the enforcement of
the Guaranteed Obligations under any of the Loan Documents, or
Guarantor's liability under this Guaranty, resulting from the
operation of any present or future provisions of the Bankruptcy Code
or other present or future federal, state or applicable statute or law
or from the decision in any court; or
(h) any improper disposition by the Borrower or RMOP of the proceeds of
the Loans, it being acknowledged by Guarantor that the Agents shall be
entitled to honor any request made by the Borrower or RMOP for a
disbursement of such proceeds and that the Agents shall have no
obligation to see the proper disposition by the Borrower or RMOP of
such proceeds.
6. Guarantor hereby agrees that if at any time all or any part of any
payment at any time received by the Agents from the Borrower or RMOP under any
of the Notes or other Loan Documents or Guarantor under or with respect to this
Guaranty is or must be rescinded or returned by the Agents for any reason
whatsoever (including, without limitation, the insolvency, bankruptcy or
reorganization of the Borrower or RMOP or Guarantor), then Guarantor's
obligations hereunder shall, to the extent of the payment rescinded or returned,
be deemed to have continued in existence notwithstanding such previous receipt
by the Agents, and Guarantor's obligations hereunder shall continue to be
effective or reinstated, as the case may be, as to such payment, as though such
previous payment to the Agents had never been made.
7. Until this Guaranty is terminated pursuant to the terms hereof, the
Guarantor (i) shall have no right of subrogation against the Borrower or RMOP or
any entity comprising same by reason of any payments or acts of performance by
Guarantor in compliance with the obligations of Guarantor hereunder; (ii) hereby
waives any right to enforce any remedy which Guarantor now or hereafter shall
have against the Borrower, RMOP or any entity comprising the same by reason of
any one or more payment or acts of performance in compliance with the
obligations of Guarantor hereunder; and (iii) shall subordinate any liability or
indebtedness of the Borrower or any entity comprising same now or hereafter held
by Guarantor to the obligations of the Borrower or RMOP, as applicable, under
the Loan Documents; provided that nothing contained herein shall limit the right
of the Guarantor to receive any amount from the Borrower or RMOP, as applicable,
or any entity comprising the same that is not prohibited by the terms of the
Loan Documents.
8. Guarantor hereby represents and warrants on its own behalf to the Agents
with the knowledge that the Agents are relying upon the same, as follows:
(a) as of the date hereof, Reckson Associates Realty Corp. owns a one
percent (1%) general partnership interest and an eighty-two percent
(82%) limited partnership interest in the Borrower, and Reckson
Financing LLC (a wholly-owned subsidiary of Reckson Operating
Partnership, L.P.) is the general partner of Reckson FS Limited
Partnership, and Guarantor is familiar with the financial condition of
Borrower;
(b) as of the date hereof, Xxxxxxx Xxxxxx Industrial Interim GP LLC owns a
.01% managing general partnership interest in RMOP and Guarantor is
familiar with the financial condition of Borrower;
(c) as of the date hereof, RMIT owns a 71.995% general partnership
interest in RMOP and Guarantor is familiar with the financial
condition of Borrower;
(d) based upon such relationship, Guarantor has determined that it is in
its best interest to enter into this Guaranty; (a)
(e) this Guaranty is necessary and convenient to the conduct, promotion
and attainment of Guarantor's business, and is in furtherance of
Guarantor's business purposes;
(f) the benefits to be derived by Guarantor from the Borrower's and RMOP's
access to funds made possible by the Loan Documents are at least equal
to the obligations of Guarantor undertaken pursuant to this Guaranty;
(g) each Guarantor is Solvent and has full corporate, partnership, limited
liability company or trust power, as the case may be, and legal right
to enter into this Guaranty and to perform its obligations under the
terms hereof and (i) Guarantor is organized or formed and validly
existing under the laws of the state of its establishment or
formation, (ii) Guarantor has complied with all provisions of
applicable law in connection with all aspects of this Guaranty, and
(iii) the person executing this Guaranty on behalf of Guarantor has
all the requisite power and authority to execute and deliver this
Guaranty; and
(h) this Guaranty has been duly executed by Guarantor and constitutes the
legal, valid and binding obligation of Guarantor, enforceable against
it in accordance with its terms except as enforceability may be
limited by applicable insolvency, bankruptcy or other laws affecting
creditors' rights generally or general principles of equity whether
such enforceability is considered in a proceeding in equity or at law.
9. Guarantor and the Agents acknowledge and agree that this Guaranty is a
guaranty of payment and not of collection and enforcement in respect of any
obligations which may accrue to the Agents and/or the Lenders from the Borrower
under the provisions of any Loan Document.
10. Subject to the terms and conditions of the Credit Agreement, and only
in conjunction with a transfer permitted thereunder, the Agents may assign any
or all of its rights under this Guaranty.
11. Guarantor agrees, upon the written request of the Agents, to execute
and deliver to the Agents, from time to time, any modification or amendment
hereto or any additional instruments or documents reasonably considered
necessary by the Agents or its counsel to cause this Guaranty to be, become or
remain valid and effective in accordance with its terms or in order to implement
more fully the intent of this Guaranty, provided, that, any such modification,
amendment, additional instrument or document shall not increase Guarantor's
obligation's or diminish its rights hereunder and shall be reasonably
satisfactory as to form to Guarantor and to Guarantor's counsel.
12. The representation and warranties of the Guarantor set forth in this
Guaranty shall survive until this Guaranty shall terminate in accordance with
the terms hereof.
13. This Guaranty together with the Credit Agreement and the other Loan
Documents contains the entire agreement among the parties with respect to the
Loans being made to the Borrower and/or RMOP simultaneously with the execution
and delivery hereof, and supersedes all prior agreements relating to such Loan
and may not be modified, amended, supplemented or discharged except by a written
agreement signed by Guarantor and the Agents.
14. If all or any portion of any provision contained in this Guaranty shall
be determined to be invalid, illegal or unenforceable in any respect for any
reason, such provision or portion thereof shall be deemed stricken and severed
from this Guaranty and the remaining provisions and portions thereof shall
continue in full force and effect.
15. In order for any demand, request or notice to the respective parties
hereto to be effective, such demand, request or notice shall be given, in
writing, by delivering the same personally or by nationally recognized overnight
courier service or by mailing, by certified or registered mail, postage prepaid
or by telecopying the same, addressed to such party at the address set forth
below or to such other address as may be identified by any party in a written
notice to the others. Any such demand, request or notice sent as aforesaid shall
be deemed to have been received by the party to whom it is addressed upon
delivery, if personally delivered and on the actual receipt thereof, if sent by
certified or registered mail or by telecopier, and when transmitted, if sent by
telex:
If to the Borrower:
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
If to Guarantor:
Reckson Associates Realty Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
Guarantor:
Reckson FS Limited Partnership
Xxxxxxx Xxxxxx Operating Partnership, L.P.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
With Copies of
Notices to the
Borrower or
Guarantor to: Xxxxx & Wood LLP
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
If to the Agents: The Chase Manhattan Bank
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxx
Telecopy: (000) 000-0000
and
Union Bank of Switzerland, AG
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
With Copies to: Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxxxx, Esq.
Telecopy: (000) 000-0000
16. This Guaranty shall be binding upon Guarantor and its successors and
assigns and shall inure to the benefit of the Agents and its successors and
assigns.
17. The failure of the Agents to enforce any right or remedy hereunder, or
promptly to enforce any such right or remedy, shall not constitute a waiver
thereof, nor give rise to any estoppel against the Agents, nor excuse Guarantor
from its obligations hereunder. Any waiver of any such right or remedy to be
enforceable against the Agents must be expressly set forth in a writing signed
by the Agents.
18. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.
(b) Any legal action or proceeding with respect to this Guaranty and any
action for enforcement of any judgment in respect thereof may be brought in the
courts of the State of New York or of the United States of America for the
Southern District of New York, and, by execution and delivery of this Guaranty,
Guarantor hereby accepts for itself and in respect of its property, generally
and unconditionally, the non-exclusive jurisdiction of the aforesaid courts and
appellate courts from any thereof. Guarantor irrevocably consents to the service
of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to Guarantor at the address for notices set forth herein.
Guarantor hereby irrevocably waives any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Guaranty brought in the courts
referred to above and hereby further irrevocably waives and agrees not to plead
or claim in any such court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum. Nothing herein shall
affect the right of the Agents to serve process in any other manner permitted by
law or to commence legal proceedings or otherwise proceed against Guarantor in
any other jurisdiction.
(c) GUARANTOR AND AGENTS BY THEIR EXECUTION HEREOF AND THE LENDERS
ACCEPTANCE HEREOF EACH HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY AND ALL
CLAIMS OR CAUSES OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY. IT IS
HEREBY ACKNOWLEDGED BY GUARANTOR THAT THE WAIVER OF A JURY TRIAL IS A MATERIAL
INDUCEMENT FOR THE AGENTS TO ACCEPT THIS GUARANTY AND THAT THE LOANS MADE BY THE
LENDERS ARE MADE IN RELIANCE UPON SUCH WAIVER. GUARANTOR FURTHER WARRANTS AND
REPRESENTS THAT SUCH WAIVER HAS BEEN KNOWINGLY AND VOLUNTARILY MADE, FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, THIS GUARANTY MAY
BE FILED BY THE AGENTS IN COURT AS A WRITTEN CONSENT TO A NON-JURY TRIAL.
(d) Guarantor does hereby further covenant and agree to and with the Agents
that Guarantor may be joined in any action against the Borrower or RMOP in
connection with the Loan Documents and that recovery may be had against
Guarantor in such action or in any independent action against Guarantor (with
respect to the Guaranteed Obligations), without the Agents first pursuing or
exhausting any remedy or claim against the Borrower, RMOP or their successors or
assigns. Guarantor also agrees that, in an action brought with respect to the
Guaranteed Obligations in any jurisdiction, it shall be conclusively bound by
the judgment in any such action by the Agents (wherever brought) against the
Borrower, RMOP or their successors or assigns, as if Guarantor were a party to
such action, even though Guarantor was not joined as parties in such action.
(e) Guarantor hereby agrees to pay all expenses (including, without
limitation, reasonable attorneys' fees and disbursements) which may be incurred
by the Agents in connection with the enforcement of its rights under this
Guaranty, whether or not suit is initiated; provided, however, that such
expenses shall be paid by the Agents if a final judgment in favor of Guarantor
is rendered by a court of competent jurisdiction. Moreover, Guarantor covenants
and agrees to indemnify and save the Agents harmless of and from, and defend it
against, all losses, out-of-pocket costs and expenses, liabilities, damages or
claims arising by reason of Guarantor's failure to perform its obligations
hereunder.
19. Subject to the terms of Section 6 hereof, this Guaranty shall terminate
and be of no further force or effect upon the full performance and payment of
the Guaranteed Obligations hereunder. Upon termination of this Guaranty in
accordance with the terms of this Guaranty, the Agents promptly shall deliver to
Guarantor such documents as Guarantor or Guarantor's counsel reasonably may
request in order to evidence such termination.
20. All of the Agents' rights and remedies under each of the Loan Documents
or under this Guaranty are intended to be distinct, separate and cumulative and
no such right or remedy therein or herein mentioned is intended to be in
exclusion of or a waiver of any other right or remedy available to the Agents.
21. Recourse with respect to any claim arising under or in connection with
this Guaranty by Agents, the Arrangers and the Lenders shall be limited to the
same extent as is provided in Section 4.3(e) of the Credit Agreement with
respect to claims against the Guarantor and the other parties named therein and
the terms, covenants and conditions of Section 4.3(e) of the Credit Agreement
are hereby incorporated by reference as if fully set forth herein.
22. By executing and delivering this Guaranty, RAR hereby agrees that it
shall be bound by, and shall comply with, all warranties and covenants
applicable to it set forth in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned have caused this Guaranty to be duly
executed and delivered as of the date first set forth above.
GUARANTOR:
RECKSON OPERATING PARTNERSHIP, L.P.
a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY CORP.
By: ___________________________________
Name:
Title:
RECKSON ASSOCIATES REALTY CORP.,
a Maryland corporation
By:______________________________________
Name:
Title:
RECKSON FS LIMITED PARTNERSHIP,
a Delaware limited partnership
By: RECKSON Financing LLC,
a Delaware limited liability company,
its general partner
By:______________________________________
Name:
Title:
By: Reckson Operating Partnership, L.P.,
its sole member
By:_____________________________________
Name:
Title:
By: Reckson Associates Realty Corp,
its General Partner
By:_____________________________________
Name:
Title:
XXXXXXX XXXXXX INDUSTRIAL INTERIM GP LLC,
a Delaware limited liability company
By: ______________________________________
Name:
Title:
XXXXXXX XXXXXX INDUSTRIAL TRUST,
a Maryland real estate investment trust
By: ______________________________________
Name:
Title:
