Exhibit 10.3
EXECUTION VERSION
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TERM LOAN AGREEMENT
Dated as of May 12, 2005
among
RECKSON OPERATING PARTNERSHIP, L.P.
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS LENDERS
and
CITICORP NORTH AMERICA, INC.,
AS ADMINISTRATIVE AGENT
and
CITIGROUP GLOBAL MARKETS INC.,
AS LEAD ARRANGER AND SOLE BOOKRUNNER
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ARTICLE I. DEFINITIONS.......................................................................1
1.1. Certain Defined Terms.................................................................1
1.2. Computation of Time Periods..........................................................26
1.3. Accounting Terms.....................................................................26
1.4. Other Terms..........................................................................26
1.5. Rules of Interpretati................................................................26
ARTICLE II. AMOUNTS AND TERMS OF LOANS.......................................................27
2.1. Loans................................................................................27
2.2. Use of Proceeds of Loans.............................................................28
2.3. Term Loan Maturity Date..............................................................28
2.4. Authorized Agents....................................................................28
ARTICLE III. Intentionally Omitted............................................................28
ARTICLE IV. PAYMENTS AND PREPAYMENTS.........................................................29
4.1. Prepayments..........................................................................29
4.2. Payments.............................................................................30
4.3. Promise to Repay; Evidence of Indebtedness...........................................32
ARTICLE V. INTEREST AND FEES................................................................33
5.1. Interest on the Loans and other Obligations..........................................33
5.2. Special Provisions Governing Eurodollar Rate Loans...................................35
5.3. Fees.................................................................................38
ARTICLE VI. CONDITIONS TO LOANS..............................................................38
6.1. Conditions Precedent to the Loans....................................................38
ARTICLE VII. REPRESENTATIONS AND WARRANTIES...................................................40
7.1. Representations and Warranties of the Borrower.......................................40
ARTICLE VIII. REPORTING COVENANTS..............................................................47
8.1. Borrower Accounting Practices........................................................48
8.2. Financial Reports....................................................................48
8.3. Events of Default....................................................................50
8.4. Lawsuits.............................................................................50
8.5. Intentionally Omitted................................................................51
8.6. ERISA Notices........................................................................51
8.7. Environmental Notices................................................................53
8.8. Labor Matters........................................................................53
8.9. Notices of Asset Sales and/or Acquisitions...........................................53
8.10. Notices of Joint Ventures............................................................54
8.11. Tenant Notifications.................................................................54
8.12. Other Reports........................................................................54
8.13. Other Information....................................................................55
ARTICLE IX. AFFIRMATIVE COVENANTS............................................................55
9.1. Existence. Etc.......................................................................55
9.2. Powers; Conduct of Business..........................................................55
9.3. Compliance with Laws. Etc............................................................55
9.4. Payment of Taxes and Claims..........................................................55
9.5. Insurance............................................................................56
9.6. Inspection of Property, Books and Records Discussions................................56
9.7. ERISA Compliance.....................................................................56
9.8. Maintenance of Property..............................................................56
9.9. Company Status.......................................................................57
9.10. Ownership of Projects, Joint Ventures and Property...................................57
9.11. Intentionally Omitted................................................................57
9.12. Additional Guarantors; Solvency of Guarantors........................................57
9.13. Further Assurances...................................................................57
9.14. Distributions in the Ordinary Course.................................................58
ARTICLE X. NEGATIVE COVENANTS...............................................................58
10.1. Intentionally Omitted................................................................58
10.2. Liens................................................................................58
10.3. Intentionally Omitted................................................................58
10.4. Conduct of Business..................................................................58
10.5. Transactions with Partners and Affiliates............................................58
10.6. Restriction on Fundamental Changes...................................................59
10.7. Margin Regulations; Securities Laws..................................................59
10.8. ERISA................................................................................59
10.9. Organizational Documents.............................................................60
10.10. Fiscal Year..........................................................................60
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10.11. Financial Covenants..................................................................60
10.12. Negative Covenants with respect to the Company.......................................61
ARTICLE XI. EVENTS OF DEFAULT; RIGHTS AND REMEDIES...........................................62
11.1. Events of Default....................................................................62
11.2. Rights and Remedies..................................................................65
ARTICLE XII. THE AGENTS.......................................................................66
12.1. Appointment..........................................................................66
12.2. Nature of Duties.....................................................................66
12.3. Right to Request Instructions........................................................67
12.4. Reliance.............................................................................67
12.5. Indemnification......................................................................67
12.6. Agents Individually..................................................................67
12.7. Successor Agents.....................................................................68
12.8. Relations Among the Lenders..........................................................68
12.9. Standard of Care.....................................................................68
ARTICLE XIII. YIELD PROTECTION.................................................................69
13.1. Taxes................................................................................69
13.2. Increased Capital....................................................................71
13.3. Changes; Legal Restrictions..........................................................71
13.4. Replacement of Certain Lenders.......................................................72
13.5. Mitigation...........................................................................72
ARTICLE XIV. MISCELLANEOUS....................................................................72
14.1. Assignments and Participations.......................................................72
14.2. Expenses.............................................................................74
14.3. Indemnity............................................................................75
14.4. Change in Accounting Principles......................................................75
14.5. Intentionally Omitted................................................................76
14.6. Ratable Sharing......................................................................76
14.7. Amendments and Waivers...............................................................76
14.8. Notices..............................................................................78
14.9. Survival of Warranties and Agreements................................................78
14.10. Failure or Indulgence Not Waiver; Remedies Cumulative................................79
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14.11. Payments Set Aside...................................................................79
14.12. Severability.........................................................................79
14.13. Headings.............................................................................79
14.14. Governing Law........................................................................79
14.15. Limitation of Liability..............................................................79
14.16. Successors and Assigns...............................................................79
14.17. Certain Consents and Waivers of the Borrower.........................................80
14.18. Counterparts; Effectiveness; Inconsistencies.........................................81
14.19. Limitation on Agreements.............................................................81
14.20. Disclaimers..........................................................................81
14.21. Entire Agreement.....................................................................81
14.22. Confidentiality......................................................................81
14.23. Intentionally Omitted................................................................82
14.24. USA Patriot Act......................................................................82
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LIST OF EXHIBITS AND SCHEDULES
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of 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 Compliance Certificate to Accompany Reports
Exhibit G Sample of Calculations of Financial Covenants
Exhibit H Form of Guaranty
Schedule EEP Eligible Encumbered Properties
Schedule EG Eligible Ground Lease
Schedule LC Lenders' Commitments and Notice Addresses
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; Partnership Agreement
Schedule 7.1-H Indebtedness for Borrowed Money; Contingent Obligations
Schedule 7.1-I Pending Actions
Schedule 7.1-P Environmental Matters
Schedule 7.1-Q ERISA Matters
Schedule 7.1-R Securities Activities
Schedule 7.1-T Insurance Policies
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TERM LOAN AGREEMENT
This Term Loan Agreement, dated as of May 12, 2005 (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"), the institutions from time to time a party hereto as Lenders,
whether by execution of this Agreement or an Assignment and Acceptance,
CITICORP NORTH AMERICA, INC., as Administrative Agent, and CITIGROUP GLOBAL
MARKETS INC. as Lead Arranger and Sole Bookrunner.
RECITALS
WHEREAS, Reckson desires that the Administrative Agent and the Lenders
party hereto provide a term loan facility in an aggregate amount of
$470,000,000; and
WHEREAS, the Administrative Agent and the other Lenders party hereto
have agreed to make the requested term loan facility available to Reckson in
accordance with the terms and provisions contained herein.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, 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:
"Acquisition" means that certain purchase by Reckson Court Square,
LLC, of Xxx Xxxxx Xxxxxx, Xxxx Xxxxxx Xxxx, Xxx Xxxx from Citibank, N.A.
pursuant to that certain Purchase and Sale Agreement, dated as of May 4, 2005,
by and between Citibank, N.A., as seller, and Reckson Court Square, LLC, as
purchaser.
"Adjusted Unencumbered NOI" means, for the prior calendar quarter,
the sum of (i) NOI from the Consolidated Businesses attributable to
Unencumbered Projects and Unencumbered New York City Assets which are
wholly-owned or ground-leased by a Consolidated Business; plus (ii) the
Borrower's pro rata share of NOI from Joint Ventures attributable to
Unencumbered Projects and Unencumbered New York City Assets in which the
Borrower's beneficial economic interest in such Joint Ventures is 51% or
greater, provided the sale or financing of any Property owned or ground-leased
by such Joint Venture is substantially controlled by the Borrower, subject to
customary provisions set forth in the organizational documents of such Joint
Venture with respect to financings, sales or rights of first refusal granted
to other members of such Joint Venture; plus (iii) the Borrower's pro rata
share of NOI from Joint Ventures attributable to Unencumbered Projects and
Unencumbered New York City Assets in which the Borrower's beneficial economic
interest is less than 51%, provided that a majority of the beneficial economic
interests in such Joint Ventures that is not owned by the Consolidated
Businesses is owned or controlled by Qualified Joint Venture Partners; plus
(iv) the Borrower's
pro rata share of Net Income attributable to other Unencumbered assets
including Performing Notes (exclusive of Investment Funds, land and
development, and service company income); plus (v) NOI from Eligible
Encumbered Properties; less (vi) the quotient of Capital Expenditure Coverage
Reserve Amounts for such period relating to such Unencumbered assets and
Eligible Encumbered Properties, divided by four (4);
provided, clause (ii) above shall not exceed twenty percent (20%) of Adjusted
Unencumbered NOI; clause (iii) above shall not exceed five percent (5%) of
Adjusted Unencumbered NOI; and clause (iv) above shall not exceed fifteen
percent (15%) of Adjusted Unencumbered NOI.
"Administrative Agent" means CNAI, in its capacity as administrative
agent for the Lenders.
"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%) 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, together, CNAI in its capacity as Administrative
Agent, the 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, and (ii) its Domestic Lending Office in respect of
provisions relating to Base Rate Loans.
"Applicable Margin" means, with respect to each Loan, the respective
percentages per annum determined based on the range into which the Borrower's
Credit Rating then falls, in accordance with the following table. Any change
in the Borrower's Credit 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. The Borrower shall notify the Administrative Agent in
writing promptly after becoming aware of any change in any of its Credit
Ratings. The Borrower shall maintain Credit Ratings from at least two (2)
Rating Agencies, one of which must be Xxxxx'x or S&P so long as such Persons
are in the business of providing debt ratings for the REIT industry; provided
that if the Borrower fails to maintain at least two Credit Ratings, the
Applicable Margin shall be based upon an S&P rating of less than BBB- in the
table below. In the event that the Borrower receives two (2) Credit Ratings
that are not equivalent, the Applicable Margin shall be determined by the
lower of such two (2) Credit Ratings, at least one of which shall be an
Investment Grade Rating. In the event the Borrower receives more than two (2)
Credit Ratings and such Credit 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.
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Range of Applicable
the Borrower's Applicable Margin for
Credit Rating Margin for Euro Base Rate
(S&P/Xxxxx'x Dollar Loans Loans
or other Ratings) (% per annum) (% per annum)
------------------------------ ---------------- -------------
A-/A3 or their equivalent or
higher 0.60 0
BBB+/Baa1 or their equivalent 0.625 0
BBB/Baa2 or their equivalent 0.70 0
BBB-/Baa3 or their equivalent 0.90 0
Below BBB-/Baa3 or their 1.20 0
equivalent or unrated
The Administrative Agent shall notify the Lenders in writing promptly after it
obtains knowledge of any change in the Borrower's Credit Rating which shall
effect a change in the Applicable Margin.
"Arranger" means Citigroup Global Markets Inc., 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 Citibank, N.A.
in New York, New York from time to time, as Citibank, N.A.'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.
Any change in the Base Rate shall result in a corresponding change on the same
day in the rate of interest accruing from and after such day on the unpaid
balance of any Base Rate Loan.
"Base Rate Loan" means (i) a 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.
"Benefit 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
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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.
"Borrower" means Reckson.
"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.
"Budgeted Construction Cost" means, with respect to Property on which
vertical construction of Improvements (including redevelopments consisting of
or described as vacant buildings, but excluding TI Work and excluding work
prior to erection of the structure of the building) has commenced and is
proceeding to completion in the ordinary course 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 full-budgeted costs of construction of such Improvements (including
land acquisition costs and other soft costs and TI Work relating to such
Property, in accordance with GAAP); provided that Budgeted Construction Cost
shall exclude build-to-suit Projects that are seventy-five percent (75%)
pre-leased or Projects which are less than seventy-five percent (75%)
pre-leased but have a pro-forma yield of ten percent (10%) 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.
"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.
"Capital Expenditure Valuation Reserve Amounts" means the sum of (a)
an amount per annum equal to $0.40 multiplied by the number of square feet for
office properties (other than New York City Assets) owned or ground leased,
directly or indirectly, by any of the Consolidated Businesses or Joint
Ventures; (b) an amount per annum equal to $0.15 multiplied by the number of
square feet for industrial properties owned or ground leased, directly or
indirectly, by any of the Consolidated Businesses or Joint Ventures; and (c)
an amount per annum equal to $0.50 multiplied by the number of square feet for
New York City Assets.
"Capital Expenditure Coverage Reserve Amounts" means the sum of (a)
an amount per annum equal to $1.25 multiplied by the number of square feet for
office properties (other than New York City Assets) owned or ground leased,
directly or indirectly, by any of the Consolidated Businesses or Joint
Ventures; (b) an amount per annum equal to $0.40 multiplied by the number of
square feet for industrial properties owned or ground leased, directly or
indirectly, by any of the Consolidated Businesses or Joint Ventures; and (c)
an amount per annum equal to $1.75 multiplied by the number of square feet for
New York City Assets.
"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.
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"Capital Markets Transaction" means the issuance by the Company, the
Borrower or any of their respective Subsidiaries after the Closing Date of (a)
of debt securities (excluding mortgage financings or borrowings under the
Existing Revolving Credit Agreement or this Agreement) or (b) common or
preferred equity or equity equivalent securities, including partnership
interests, limited liability company interests and convertible securities
(however designated, and whether voting or non-voting, but excluding equity
not issued for the purpose of raising cash (including, but not limited to,
equity issued upon exercise of options or upon awards to company executives or
trustees, equity issued under any dividend reinvestment plan and equity
securities issued in private placements to a limited number of institutional
investors in connection with joint venture transactions)) issued in the public
or private capital markets pursuant to an underwriting or placement agreement
(or similar agreement performing the same function as an underwriting or
placement agreement).
"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. xx.xx. 9601 et seq., any amendments
thereto, any successor statutes, and any regulations or guidelines promulgated
thereunder.
"CNAI" means Citicorp North America, Inc.
"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 May 12, 2005.
"Combined Equity Value" means Total Value, less Total Outstanding
Indebtedness.
"Commission" means the Securities and Exchange Commission and any
Person succeeding to the functions thereof.
"Company" means Reckson Associates Realty Corp., a Maryland
corporation.
"Compliance Certificate" has the meaning set forth in Section 8.2(b).
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"Consolidated" means consolidated, in accordance with GAAP, but
excluding the effects of consolidation under Interpretation No. 46 of the
Financial Accounting Standards Board.
"Consolidated Businesses" means the Company, the Borrower, Reckson FS
Limited Partnership, Metropolitan, MOP and their wholly-owned Subsidiaries.
"Construction Asset Cost" means, with respect to Property on which
vertical construction of Improvements (including redevelopments consisting of
or described as vacant buildings, but excluding TI Work and excluding work
prior to erection of the structure of the building) has commenced and is
proceeding to completion in the ordinary course 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 incurred and paid on the construction of such Improvements
(including land acquisition costs and other soft costs and TI Work relating to
such Property, in accordance with GAAP). Any such Property shall continue to
be valued (for financial covenant compliance purposes) at its Construction
Asset Cost until the end of four (4) consecutive quarters following such
completion (as such completion shall be evidenced by a temporary or permanent
certificate of occupancy permitting use of such Property by the general
public).
"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, which obligation guarantees partially or
in whole any non-recourse Indebtedness, lease, dividend or other obligation,
exclusive of contractual indemnities (including, without limitation, any
Non-Recourse Carve-Outs, 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; provided that in no
event shall the amount
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of Contingent Obligations with respect to any guaranties relating to a loan
exceed the principal amount of such loan. 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 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. The decision on which two,
or in certain cases three, Rating Agencies to use shall be made by the
Borrower so long as one of such Rating Agencies shall be Xxxxx'x or S&P.
"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
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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;
(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 $5,000,000, which are being
contested in good faith by appropriate proceedings.
"Designated Lender" has the meaning set forth in Section 13.4.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"Dollars" and "$" 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 Schedule LC hereto or as set forth in 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.
"Eligible Assignee" means (i) a Lender or a Lender Affiliate; (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
-8-
investing in loans and having total assets in excess of $1,000,000,000 or
is otherwise reasonably acceptable to the Administrative Agent.
"Eligible Cash 1031 Proceeds" means the cash proceeds held by a
"qualified intermediary" from the sale of Real Property, which proceeds are
intended to be used by such qualified intermediary to acquire one or more
"replacement properties" that are of "like-kind" to such Real Property in an
exchange that qualifies as a tax-free exchange under Section 1031 of the
Internal Revenue Code, and no portion of which proceeds the Borrower, the
Company or any Affiliate has the right to receive, pledge, borrow or otherwise
obtain the benefits of until such time as provided under the applicable
"exchange agreement" (as such terms in quotations are defined in Treasury
Regulations Section 1.1031(k)-1(g)(4) (the "Regulations")) or until such
exchange is terminated. Upon the cash proceeds no longer being held by such
qualified intermediary pursuant to the Regulations or otherwise no longer
qualifying under the Regulations for like-kind exchange treatment, such
proceeds shall cease being Eligible Cash 1031 Proceeds.
"Eligible Encumbered Properties" means the Projects and New York City
Assets listed on Schedule EEP, so long as (a) such Projects and New York City
Assets are owned or ground-leased by the Borrower or a Guarantor and would
otherwise satisfy the requirements of an Unencumbered Project or an
Unencumbered New York City Asset, except that such Project or New York City
Asset is subject to a lien which is not a Customary Permitted Lien, (b) the
Indebtedness secured by the Lien on such Project or New York City Asset that
exists on the Closing Date is not (x) amended or modified in any manner that
would increase the principal amount or postpone the maturity date thereof or
(y) refinanced or replaced with new Indebtedness having a principal amount
greater than or a maturity date later than the Indebtedness being refinanced
or replaced, (c) the Indebtedness secured by the Lien on such Project or New
York City Asset has not been accelerated, unless such acceleration is
rescinded and (d) no default or event of default under any mortgage or other
loan document relating to the Indebtedness secured by the Lien on such Project
or New York City Asset has occurred and is continuing, which default or event
of default then subjects such Indebtedness to acceleration or then permits
such Indebtedness to be accelerated under any such mortgage or other loan
document, unless such default or event of default is cured or waived.
"Eligible Ground Lease" means a ground lease that (a) has a minimum
remaining term of twenty-five (25) years, including tenant controlled options,
as of any date of determination, (b) has customary notice rights, default cure
rights, new lease rights in the event of bankruptcy of the tenant and other
customary provisions for the benefit of a leasehold mortgagee or has
equivalent protection for a leasehold permanent mortgagee by a subordination
to such leasehold permanent mortgagee of the landlord's fee interest, and (c)
is otherwise acceptable for non-recourse leasehold mortgage financing under
customary lending requirements. The Eligible Ground Leases as of the date of
this Agreement are listed on Schedule EG.
"Eligible Net Cash Proceeds" means all Net Cash Proceeds from any
Asset Sale that results in $50,000,000 or more of Net Cash Proceeds, other
than the Net Cash Proceeds from the proposed sale by the Borrower or its
Subsidiaries of Properties in Parsippany, New Jersey and Princeton, New Jersey
to Normandy Holdings, LLC.
"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,
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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 guidelines 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 Benefit 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 Schedule LC hereto or as set forth in the
Assignment and Acceptance by which it became a Lender or such Lender Affiliate
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).
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"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 Schedule LC hereto or as set forth in 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, an interest rate per annum equal to the
rate per annum obtained by multiplying (a) a rate per annum equal to the rate
for 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 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 Citibank, N.A. 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 each day during such Eurodollar Interest Period.
"Eurodollar Rate Loan" means (i) a 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 Rate 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.
"Existing Revolving Credit Agreement" means that certain Third
Amended and Restated Credit Agreement, dated as of August 6, 2004, among the
Borrower, the institutions from time to
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time a party thereto as Lenders, JPMorgan Chase Bank, as Administrative Agent,
Xxxxx Fargo Bank, National Association, as Syndication Agent, Citicorp North
America, Inc., Wachovia Bank, National Association, and Deutsche Bank Trust
Company Americas, Inc., as Co-Documentation Agents, Keybank, National
Association, The Bank of New York, The Bank of Nova Scotia, ING Real Estate
Finance (USA) LLC, and PNC Bank, National Association, as Co-Agents, and X.X.
Xxxxxx Securities Inc. and Citigroup Global Markets Inc., as Co-Lead Arrangers
and Joint Bookrunners.
"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 such 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 accordance with
resolutions adopted by the Board of Governors of the National Association of
Real Estate Investment Trusts as in effect from time to time; provided that
FFO shall (i) be based on net income after payment of distributions to holders
of preferred partnership units in the Borrower and distributions necessary to
pay holders of preferred stock of the Company and (ii) at all times exclude
(a) charges for impairment losses from property sales and (b) non-recurring
charges.
"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 Joint Ventures that the Company shall
routinely and regularly prepare and that the Arranger 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 Ratings, a division of Fitch, Inc. or any
successor thereto.
"Fixed Charges" means, with respect to any fiscal period, the sum of
(a) Total Interest Expense, (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 Joint
Ventures (but excluding balloon payments of principal due upon the stated
maturity of an Indebtedness), provided that only the Consolidated Businesses'
pro rata share of the Joint Ventures' scheduled principal payments are to be
included, and (c) the aggregate of all dividends or distributions payable
(whether paid or accrued) on all preferred stock and other preferred
securities or preferential arrangements of the Consolidated Businesses,
including, without limitation, preferred distributions payable to holders of
preferred OP Units. As used herein, "OP Units" means limited partnership
interests in Reckson.
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"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 Term Loans under this Agreement are made by the Lenders to the
Borrower.
"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.
"Guaranties" means, collectively, the Unconditional Guaranties of
Payment, made by each of the Company, Reckson FS Limited Partnership and the
other Guarantors for the benefit of the Lenders, in substantially the form of
Exhibit H hereto.
"Guarantors" means, collectively, the Company, Reckson FS Limited
Partnership, 000 Xxxxxxxx Xxxxx XXX, Xxxxxxxxxxxx, XXX, 275 Broadhollow LLC,
0000 Xxxxxxxxxx Xxxxxxxxx LLC, Reckson Court Square, LLC, Reckson 1 Giralda
LLC, Reckson 7 Giralda Owner LLC, Reckson 300 Broadhollow LLC, Reckson 1185
Avenue of the Americas LLC, Magnolia Associates, Ltd., and any other Affiliate
of the Borrower executing a Guaranty. Any Guarantor that is the owner or
ground lessor of an Unencumbered Project or Unencumbered New York City Asset
shall be a wholly-owned Subsidiary of the Borrower.
"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, bankers' acceptances or similar facilities issued for such Person's
account or for which such
-13-
Person otherwise has reimbursement obligations, (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 or so-called synthetic 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, but in a case of obligations of others not assumed by
such Person an amount not in excess of the value of such property; (c) all
indebtedness, obligations or other liabilities of such Person in respect of
interest rate contracts, derivatives contracts and foreign exchange contracts,
net of liabilities owed to such Person by the counterparties thereon; (d) all
preferred stock and preferred equity interests subject (upon the occurrence of
any contingency or otherwise) to mandatory redemption in cash by the holder of
such preferred stock or equity interest; (e) all preferred stock and preferred
equity interests in any Consolidated Business (other than the Company and the
Borrower) which has not provided a Guaranty of the Obligations; and (f) 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.
"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 guidelines 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 (together with all capital improvement costs
thereafter paid or incurred with respect to such Investment in accordance with
GAAP), without any adjustments for increases or decreases in value or
write-ups, write-downs or write-offs with respect to such Investment.
"Investment Funds" means (i) Reckson Strategic Venture Partners LLC,
and (ii) a Person in which FrontLine Capital Group 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 Xxxxx'x or a rating equivalent to the foregoing from Fitch or
another Rating Agency.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
-14-
"Joint Ventures" 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 (other than Investment Funds
or any affiliated or unaffiliated operating company that the Borrower includes
under clause (vii) of the definition of Total Value, subject to the limitation
of $100,000,000 investments (valued at the lower of cost or market in
accordance with GAAP)).
"Joint Venture Unencumbered Value" means the portion of Total
Unencumbered Value from Joint Ventures attributable to Unencumbered Projects
and Unencumbered New York City Assets.
"knowledge" with reference to the Company, the Borrower 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 or such Subsidiary, as applicable, deems reasonably necessary).
"Land/Development Unencumbered Value" means the portion of Total
Unencumbered Value which is attributable to Unencumbered assets consisting of
land and Projects under development.
"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 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 Lender, whether as a signatory hereto
or pursuant to an Assignment and Acceptance.
"Lender Affiliate" means with respect to any Lender an Affiliate of
such Lender.
"Letter Agreement" means the letter agreement dated as of the date
hereof among the Borrower, the Administrative Agent and the Arranger.
"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.
"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.
-15-
"Limited Partners" means those Persons who from time to time are
limited partners of the Borrower; and "Limited Partner" means each of the
Limited Partners, individually.
"Loan" means a Term 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 "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.
"Loan Account" has the meaning set forth in Section 4.3(b).
"Loan Documents" means this Agreement, the Notes and the Guaranties.
"Management Company" means, collectively (i) Reckson Management
Group, Inc., a Delaware corporation, RANY Management Group, Inc. and their
respective 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" or "margin security" as such
terms are defined in Regulation U and Regulation X.
"Material Adverse Effect" means a material adverse effect upon (i)
the financial condition or assets of the Company, the Borrower 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
Guarantors to perform their material obligations under the Guaranties, or (iv)
the ability of the Lenders or the Administrative Agent to enforce any of the
Loan Documents.
"Metropolitan" means Metropolitan Partners, LLC, a Delaware limited
liability company, in which the Borrower currently owns 100% of the common
equity interests.
"Moody's" means Xxxxx'x Investors Service, Inc.
"MOP" means Metropolitan Operating Partnership, L.P., a Delaware
limited partnership, and a Subsidiary of Metropolitan.
"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 (whether proceeds, dividends, or
distributions) when and as received in connection with the sale or refinancing
of any Property or other asset (including interests in Joint Ventures and
Subsidiaries) or multiple Properties or assets in a single
-16-
transaction (an "Asset Sale"), less reasonable costs and expenses, repayment
of secured indebtedness with respect to the applicable asset, repayment of
loans under the Existing Revolving Credit Agreement required by Section 8.9 of
the Existing Revolving Credit Agreement, and net of an amount equal to taxable
capital gains and real estate transfer taxes payable in connection with any
asset sale.
"Net Income" means, with respect to any Person, the net income of
such Person determined in accordance with GAAP.
"Net Offering Proceeds" means all cash or other assets received by
the Company or the Borrower or their respective Subsidiaries as a result of a
Capital Markets Transaction, less customary costs, expenses and discounts of
issuance paid by the Company, the Borrower or such Subsidiary, as the case may
be.
"New York City Asset" means Real Property which is Class A office
property located in the borough of Manhattan, New York, New York and which is
owned or ground-leased by one of the Consolidated Businesses or Joint
Ventures.
"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 2% of gross
revenues with respect to such Real Property.
"Non Pro Rata Loan" has the meaning set forth in Section 4.2(b)(iv).
"Non-Recourse Carve-Outs" means exceptions to non-recourse
obligations, such as fraud, misappropriation, waste, environmental
liabilities, improper transfer and breach of restrictions on further financing
and breach of single purpose entity covenants, which are usual and customary
in secured transactions involving institutional lenders or securitized
financings and recourse to single purpose entities that are Consolidated
Businesses which have no material assets other than the Real Property or
Properties which are the subject of the Secured Indebtedness.
"Note" has the meaning set forth in Section 4.3(a).
"Notice of 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).
"Obligations" means all Loans, advances, debts, liabilities and
monetary obligations owing by the Borrower to the Administrative Agent, any
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,
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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 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 such partnership, (iii) the by-laws (or the equivalent governing
documents) of such 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 guidelines 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.
"Performing Notes" means mortgage notes, notes receivable and other
investments in Real Property (other than investments in or loans to, directly
or indirectly, an Investment Fund, or joint venture arrangements with an
Investment Fund, or an affiliated or unaffiliated operating company in which
such Investment Fund or joint venture arrangements with an Investment Fund
owns an equity interest), valued at the lower of cost or market in accordance
with GAAP and which are not more than 30 days past due or otherwise in
default; provided, that, in the case of mortgage notes, notes receivable and
other investments in Real Property that generate cash and non-cash payments,
such mortgage notes, notes receivable and other investments in Real Property
shall be treated as Performing Notes whose value is determined solely by
reference to the cash payments and references to the income generated by the
Performing Notes shall include only the cash payments which have current
payments payable in cash.
"Permits" means any permit, consent, approval, authorization license,
variance, or permission required from any Person, including any Governmental
Approvals.
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"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 a Benefit Plan or a Multiemployer Plan.
"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(c).
"Project" means any office or industrial properties owned or
ground-leased, directly or indirectly, by any of the Consolidated Businesses
or Joint Ventures.
"Property" means any Real Property or personal property, plant,
building, facility, structure, equipment, general intangible, receivable, or
other asset owned or leased by any Consolidated Business or any Joint Venture.
The definition of "Property" shall specifically exclude items of Real Property
or personal property owned or leased by members of the Rechler family.
"Property Level G&A" means general and administrative expenses
allocated to the Properties.
"Pro Rata Share" means, with respect to any Lender, (a) prior to the
making of the Term Loan or the expiration of the Term Loan Commitments, the
percentage set forth on Schedule LC and (b) after the Funding Date, the
percentage obtained by dividing (i) the aggregate amount of such Lender's
Loans (as may be 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 Lenders' Loans.
"Qualified Joint Venture Partners" means (a) pension funds, insurance
companies, banks, investment banks or similar institutional entities, each
with significant experience in making investments in commercial real estate
and (b) commercial real estate companies of similar quality and experience.
"Quarterly Compliance Certificates" has the meaning set forth in
Section 8.2(a)(iii).
"Rating Agency" means Xxxxx'x, S&P, Fitch or another
nationally-recognized rating agency reasonably satisfactory to the
Administrative Agent.
"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 guidelines promulgated thereunder.
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"Real Property" means all of the Borrower's and the Consolidated
Businesses' 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.
"Reference Bank" means Citibank, N.A.
"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.
"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.
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"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 the Loans 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)(iv)(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.
"Restricted Payment" has the meaning set forth in Section 10.11(h).
"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.
"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:
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(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.
"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 known as "Telerate Page 3750"
(or such other page as may replace Telerate Page 3750 as the display of such
service (other than Telerate 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).
"Tenant Allowance" means a cash allowance paid to a tenant by the
landlord pursuant to a Lease.
"Term Loan" is defined in Section 2.1(a) hereof.
"Term Loan Commitment" means, with respect to any Lender, the
obligation of such Lender to make Loans pursuant to the terms and conditions
of this Agreement, and which shall not exceed the principal amount set forth
opposite such Lender's name on Schedule LC hereto or in 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 "Term Loan Commitments" means the aggregate principal
amount of the Term Loan Commitments of all the Lenders, the maximum amount of
which shall be $470,000,000.
"Term Loan Maturity Date" means May 11, 2006; provided, that if such
date shall fall on a day that is not a Business Day, then the Term Loan
Maturity Date shall be the preceding Business Day.
"Term Loan Obligations" means, at any particular time, the
outstanding principal amount of the Loans at such time.
"TI Work" means any construction or other "build out" of tenant
leasehold improvement to the space demised to the applicable tenant under a
Lease (excluding such tenant's furniture, fixtures and equipment) performed
pursuant to the terms of such Lease, whether or not such
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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 quarterly period, (i) net
income determined in accordance with GAAP, plus (ii) Total Interest Expense,
depreciation and amortization deducted in the calculation of such 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, debt forgiveness, asset impairments, xxxx to market
adjustments for marketable securities or fair market valuation adjustments for
derivatives included in the calculation of such net income, less (v) the
Capital Expenditure Coverage Reserve Amounts divided by four.
"Total Interest Expense" means 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 pro-rata portion of the interest expense of Joint Ventures allocable
to the Borrower and paid during such period and (iv) the pro-rata portion of
the interest expense of Joint Ventures allocable to the Borrower 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 Joint Venture Indebtedness set
forth on the then most recent quarterly financial statements of the Borrower
or the applicable Joint Venture, prepared in accordance with GAAP, plus any
additional Joint Venture Indebtedness incurred by the Joint Ventures since the
time of such statements, less any Indebtedness repaid by the Joint Ventures
since the time of such statements; provided that all of the foregoing shall
only include the Consolidated Businesses' pro rata share of the outstanding
and additional Indebtedness, as the case may be, with respect to any Joint
Venture, and (iii) the Contingent Obligations of the Consolidated Businesses
and the pro-rata portion of Contingent Obligations of the Joint Ventures
allocable to the Consolidated Businesses.
"Total Recourse Secured Outstanding Indebtedness" means Total Secured
Outstanding Indebtedness under the terms of which any of the Consolidated
Businesses guarantees or is directly obligated for any portion of such
Indebtedness or interest payments thereon (other than Non-Recourse
Carve-Outs), including, without limitation, the pro rata share of such
recourse Indebtedness of Joint Ventures allocable to any of the Consolidated
Businesses.
"Total Secured Outstanding Indebtedness" means the sum of (i) that
portion of Total Outstanding Indebtedness that is secured by a Lien,
including, without duplication, the pro rata share of such Indebtedness that
is Joint Venture Indebtedness allocable to any of the Consolidated Businesses,
plus (ii) that portion of Total Outstanding Indebtedness attributable to
Consolidated Subsidiaries of the Borrower (or the Joint Ventures) which is
recourse to the Borrower or any of the Consolidated Subsidiaries (other than
Non-Recourse Carve-Outs), regardless of whether it is secured by a Lien (it
being understood that this definition shall not include the Loans hereunder).
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"Total Unencumbered Value" means the portion of Total Value
attributable to (x) Unencumbered assets (including, without limitation, the
Unencumbered New York City Assets and the other Unencumbered Projects, but
excluding Investment Funds and service company income) owned or ground-leased
under an Eligible Ground Lease by the Consolidated Businesses and the Joint
Ventures and (y) the Eligible Encumbered Properties, subject to the
limitations set forth in the next paragraph and the following conditions and
limitations: (i) only the amount of unrestricted Cash and Cash Equivalents in
excess of $40,000,000 shall be included; (ii) Joint Venture Unencumbered Value
for Joint Ventures in which the Borrower's beneficial economic interest is
fifty-one percent (51%) or greater shall be included, provided the sale or
financing of any Property owned or ground-leased by such Joint Venture is
substantially controlled by the Borrower, subject to customary provisions set
forth in the organizational documents of such Joint Venture with respect to
financings, sales or rights of first refusal granted to other members of such
Joint Venture; (iii) Joint Venture Unencumbered Value for Joint Ventures in
which the Borrower's beneficial economic interest is less than fifty-one
percent (51%) shall be included, provided that a majority of the beneficial
economic interests in such Joint Ventures that are not owned by the
Consolidated Businesses is owned or controlled by Qualified Joint Venture
Partners; (iv) the portion of Total Unencumbered Value attributable to
Performing Notes shall be included; (v) Land/Development Unencumbered Value
shall be included; and (vi) the portion of Total Unencumbered Value
attributable to Unencumbered office and industrial Projects owned or
ground-leased under an Eligible Ground Lease by the Consolidated Businesses
for less than four (4) fiscal quarters and which have received a certificate
of occupancy shall be included.
Clause (ii) above shall not exceed twenty percent (20%) of Total
Unencumbered Value. Clause (iii) shall not exceed five percent (5%) of Total
Unencumbered Value. Clause (iv) above shall not exceed fifteen percent (15%)
of Total Unencumbered Value. Clause (v) above shall not exceed ten percent
(10%) of Total Unencumbered Value. The sum of clauses (iii), (iv) and (v)
above shall not exceed twenty percent (20%) of Total Unencumbered Value.
"Total Unsecured Outstanding Indebtedness" means the sum of (a) that
portion of Total Outstanding Indebtedness that is not secured by a Lien plus
(b) that portion of Total Outstanding Indebtedness that is secured by a Lien
on an Eligible Encumbered Property. Without limiting the foregoing, Total
Unsecured Outstanding Indebtedness shall include, without double counting, (i)
all amounts outstanding under this Agreement, (ii) all Indebtedness of the
Consolidated Businesses, including the Consolidated Businesses' pro rata share
of Indebtedness of Joint Ventures, which is not secured by a Lien, (iii) all
outstanding undrawn letters of credit of the Consolidated Businesses (and the
pro rata share of such letters of credit allocable to any of the Consolidated
Businesses) less those outstanding undrawn letters of credit for the benefit
of any tenant, prospective tenant or lender at any Real Property to secure the
Consolidated Businesses' leasing obligations relating to tenant improvement
work or third party leasing commissions which have previously been paid, as
evidenced by a schedule provided by the Borrower to the Administrative Agent
upon the request of the Administrative Agent.
"Total Value" means (a) the sum of (i) Valuation NOI divided by (A)
eight and one-half percent (8.50%) for all New York City Assets, (B) nine
percent (9.00%) for all other office Real Property, and (C) nine and one-half
percent (9.50%) for industrial Real Property; (ii) the Investment in office
and industrial Projects owned or ground-leased by the Consolidated Businesses
for less than four fiscal quarters; (iii) unrestricted Cash and Cash
Equivalents; (iv) land cost (at book value) and Construction Asset Cost, which
credit will be limited to fifteen percent (15%) of Total Value (exclusive of
build-to-suit Projects that are seventy-five percent
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(75%) pre-leased or Projects which are less than seventy-five percent (75%)
pre-leased but have a pro-forma yield of ten percent (10%) 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); (v) NOI from all other Real Property 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 (4) consecutive quarters, divided by twenty percent (20%);
(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 $100,000,000 (valued at the lower of cost or market in
accordance with GAAP), other than (x) investments in, loans to, or joint
venture arrangements with Joint Ventures and (y) Performing Notes; (viii)
Performing Notes, which credit will be limited in the aggregate to fifteen
percent (15%) of Total Value; and (ix) Eligible Cash 1031 Proceeds;
less (b) the quotient of the Capital Expenditure Valuation Reserve Amounts for
such period, divided by (A) eight and one-half percent (8.50%) for all New
York City Assets, (B) nine percent (9.00%) for all other office Property, and
(C) nine and one-half percent (9.50%) for industrial Property; and
provided, the sum of items (a) (iv), (vii) and (viii) above shall not exceed
twenty-five percent (25%) of Total Value.
"Unencumbered" means, with respect to any asset (other than a Project
or a New York City Asset) as of any date of determination, that such asset,
the equity interests in such asset and the revenues generated by such asset
are not subject to any Liens (excluding Customary Permitted Liens) or
preferred equity interests.
"Unencumbered New York City Asset" means any Unencumbered Project
that is a New York City Asset.
"Unencumbered Project" means any Project located in the United States
that on any date of determination: (a) is owned or ground-leased under an
Eligible Ground Lease, (b) is not subject (nor are any equity interests
therein subject) to any Liens (excluding Customary Permitted Liens) or
preferred equity interests, (c) has been improved with Improvements which
(except for any portions of the Project being restored or renovated) (1) have
been issued a certificate of occupancy (where available) or is otherwise
lawfully occupied for its intended use, and (2) are fully operational,
including in each case, an Unencumbered Project that is being renovated or
restored and such renovation is proceeding to completion without undue delay
from Permit denial, construction delays or otherwise, (d) has not been the
subject of an event or occurrence that has had a Material Adverse Effect, and
(e) if owned or ground leased by a wholly-owned Subsidiary of the Borrower,
such Subsidiary has executed and delivered a Guaranty.
"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.
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"Valuation NOI" means, with respect to any office or industrial
Project or any office or industrial Joint Venture (exclusive of projects under
development) which has been owned or ground-leased by the Borrower for not
less than four consecutive quarters, as of the first day of each fiscal
quarter, an amount equal to the NOI relating to such Project or the Borrower's
pro rata share of such Joint Venture for the immediately preceding consecutive
four fiscal quarters.
"wholly-owned" means, with respect to the ownership of any asset by
any Person, that such Person owns 100% of the voting and economic interests in
such asset; provided that, with the written approval of the Administrative
Agent, such Person may be deemed to wholly-own an asset if it owns less than
100% of the voting and economic interests in such asset so long as such Person
owns 100% of the interests generally having the right to vote with respect to
such asset and at least 90% of the economic interests in such asset.
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.
1.5. Rules of Interpretation. (a) A reference to any document or
agreement shall include such document or agreement as amended, modified or
supplemented from time to time in accordance with its terms and the terms of
this Agreement.
(a) The singular includes the plural and the plural includes
the singular.
(b) A reference to any law includes any amendment or
modification to such law.
(c) A reference to any Person includes its permitted successors
and permitted assigns.
(d) The words "include", "includes" and "including" are not
limiting.
(e) Reference to a particular "Section" refers to that section
of this Agreement unless otherwise indicated, and reference to a particular
"Exhibit" or "Schedule" refers to that exhibit or schedule to this Agreement
unless otherwise indicated.
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ARTICLE II.
AMOUNTS AND TERMS OF LOANS
2.1. Loans.
(a) Commitment to Lend. Subject to the terms and conditions set
forth in this Agreement, each Lender hereby severally and not jointly agrees
to make a term loan, in Dollars (the "Term Loan") to the Borrower on the
Funding Date, in an amount equal to such Lender's Pro Rata Share of the
principal amount of $470,000,000. The aggregate amount of the Term Loan to be
made hereunder shall not exceed Four Hundred Seventy Million Dollars
($470,000,000). The Term Loan 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 Term Loan hereunder nor shall the Term Loan
Commitment of any Lender be increased or decreased as a result of any such
failure. The Term Loan Commitments, with respect to the making of the Term
Loan (and not with respect to the obligations of the Lenders to convert or
continue any Loans), shall expire on May 30, 2005.
(b) Notice of Borrowing. The Borrower shall provide 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. The Notice of Borrowing shall specify (i) the proposed Funding
Date (which shall be a Business Day), (ii) the amount of the proposed
Borrowing, (iii) whether the proposed Borrowing will be of Base Rate Loans or
Eurodollar Rate Loans, (iv) in the case of Eurodollar Rate Loans, the
requested Eurodollar Interest Period, (v) instructions for the disbursement of
the proceeds of the proposed Borrowing, (vi) an Officer's Certificate of the
Borrower with respect to compliance with (including calculation thereof)
Sections 10.11(a) and 10.11(e), and (vii) that no Potential Event of Default
or Event of Default shall have occurred and be continuing or would result
therefrom. Any Notice of Borrowing given pursuant to this Section 2.1(b) shall
be irrevocable.
(c) Making of Term Loans. (i) Each Lender shall deposit an
amount equal to its Pro Rata Share of the Term Loan 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 Funding Date. Subject to the
fulfillment of the conditions precedent set forth in Section 6.1, 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 the 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 as set forth in the Notice of Borrowing.
The failure of any Lender to deposit the amount described above with the
Administrative Agent on the Funding Date shall not relieve any other Lender of
its obligations hereunder to make its Term Loan on the Funding Date. In the
event the conditions precedent set forth in Section 6.1 are not fulfilled as
of the Funding Date, the Administrative Agent shall promptly return, by wire
transfer of immediately available funds, the amount deposited by each Lender
to such Lender.
(ii) The Administrative Agent may assume that each Lender has
funded its Term Loan and is depositing the proceeds thereof with the
Administrative Agent on the Funding Date, and the Administrative
Agent in its sole discretion may, but shall not be obligated to,
disburse a corresponding amount to the Borrower on the Funding Date.
If the Term Loan
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proceeds corresponding to that amount are advanced to the Borrower by the
Administrative Agent but are not in fact deposited with the Administrative
Agent by such Lender on or prior to the Funding Date, such Lender agrees to
pay, and in addition the Borrower, 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 until the date such amount is paid or repaid to the
Administrative Agent, at the average Federal Funds Rate for such period. If
such Lender shall pay to the Administrative Agent the corresponding amount,
the amount so paid shall constitute such Lender's Term Loan as of the Funding
Date, and if both such Lender and the Borrower 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 Term Loan on the Funding Date.
2.2. Use of Proceeds of Loans. The proceeds of the Loans issued for
the account of the Borrower hereunder shall be used for the purposes of
general working capital needs of the Borrower and other general corporate
purposes, including acquisitions.
2.3. Term Loan Maturity Date. The Borrower promises to pay the Term
Loan Obligations and all other Obligations in full on the Term Loan Maturity
Date.
2.4. 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 the Term Loan 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 in respect of all other matters relating to the Loan
Documents. The Administrative Agent, the Arranger, and the Lenders shall be
entitled to rely conclusively on such employee's or agent's authority to
request the Term Loan or such conversion/continuation until the Administrative
Agent and the Arranger receive written notice to the contrary. Neither the
Administrative Agent nor the Arranger shall have any duty to verify the
authenticity of the signature appearing on the Notice of Borrowing or any
Notice of Conversion/Continuation or any other document, and, with respect to
an oral request for such conversion/continuation, the Administrative Agent and
the Arranger 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. None of
the Administrative Agent, the Arranger or the Lenders shall incur any
liability to the Borrower or any other Person in acting upon any telephonic or
facsimile notice referred to above which the Administrative Agent or the
Arranger believe to have been given by a person duly authorized to act on
behalf of the Borrower and the Borrower hereby indemnifies and holds harmless
the Administrative Agent, the Arranger and each Lender from any loss or
expense the Administrative Agent, the Arranger or the Lenders might incur in
acting in good faith as provided in this Section 2.4; provided, however, that
Borrower shall not indemnify the applicable party for acts resulting from its
own gross negligence or willful misconduct.
ARTICLE III.
INTENTIONALLY OMITTED
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ARTICLE IV.
PAYMENTS AND PREPAYMENTS
4.1. Prepayments.
(a) Voluntary Prepayments. The Borrower may, at any time and
from time to time, prepay the Loans, in part or in their entirety, subject to
the following limitations. The Borrower shall give at least three (3) 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 such 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). Any amounts repaid pursuant to this Agreement may
not be reborrowed.
(b) No Penalty. The prepayments and payments in respect of
reductions and terminations described in clause (a) of this Section 4.1 may be
made without premium or penalty (except as provided in Section 5.2(f)).
(c) Mandatory Prepayment.
(i) If at any time from and after the Closing Date: (i) the
Company or the Borrower merges or consolidates with another Person
and the Company or Borrower, as the case may be, is not the surviving
entity and does not control the management of such 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 shall prepay the Loans in their entirety as if
the Prepayment Date were the Term Loan Maturity Date. The Borrower
shall immediately make such prepayment together with interest accrued
to the date of the prepayment on the principal amount prepaid .
(ii) If the Borrower, the Company or any Subsidiary receives any
Net Offering Proceeds or any Eligible Net Cash Proceeds, the Borrower
shall prepay the Loans on the date such Eligible Net Offering
Proceeds or Net Cash Proceeds are received as follows:
(A) 100% of the Net Offering Proceeds of any Capital
Markets Transaction consisting of a convertible securities
offering shall be applied to the repayment of the Term Loan;
(B) 100% of the aggregate amount of (1) the Net Offering
Proceeds of all other Capital Markets Transactions (other than
the convertible securities offering described in clause (A)
above) and (2) the Eligible Net Cash Proceeds shall be applied
to the repayment of the Term Loan; provided that the Borrower
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may, at its option at any time, apply up to $200,000,000 in the
aggregate of such Net Offering Proceeds and Eligible Net Cash
Proceeds to repay the outstanding loans under the Existing
Revolving Credit Agreement, and amounts so applied to such
repayment of loans under the Existing Revolving Credit Agreement
shall not be required to be applied to the prepayment of the
Loans.
In connection with the prepayment of any Loan prior to the maturity thereof,
the Borrower shall also pay any applicable expenses pursuant to Section
5.2(f). Each such prepayment shall be applied to prepay ratably the Loans of
the Lenders. Amounts prepaid pursuant to this Section 4.1(c) may not be
reborrowed. Such prepayment shall not affect any rights and remedies that the
Agents and Lenders may otherwise have hereunder.
4.2. Payments.
(a) Manner and Time of Payment. All payments of principal of
and interest on the Loans and other Obligations (including, without
limitation, fees and expenses) which are payable to the Administrative Agent,
the Arranger or any 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 Arranger) as it may designate,
for the account of the Administrative Agent, the Arranger, or such Lender, as
the case may be; and funds received by the Administrative Agent (or Arranger)
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 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 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)(iv), all payments of principal and interest in respect of
outstanding Loans, 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 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 CNAI for which the
Administrative Agent has not then been reimbursed by such Lender
or the Borrower;
(B) to pay all other Obligations then due and payable,
and
(C) as the Borrower so designates.
Unless otherwise designated by the Borrower, all principal payments in respect
of its 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.
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(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 or der:
(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 CNAI for which the
Administrative Agent has not then been reimbursed by such Lender
or the Borrower;
(B) second, to pay Obligations in respect of any fees,
expense reimbursements or indemnities then due to the
Administrative Agent;
(C) third, to pay Obligations in respect of any fees,
expense reimbursements or indemnities then due to the Lenders;
(D) fourth, to pay interest due in respect of Loans;
(E) fifth, to the ratable payment or prepayment of
principal outstanding on Loans; and
(F) sixth, 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 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) Subject to Section 4.2(b)(iv), the Administrative Agent
shall promptly distribute to the Arranger and each Lender at its
primary address set forth on Schedule LC hereto or as set forth in
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.
(iv) In the event that any Lender fails to fund its Pro Rata
Share of the Term Loan which such Lender is obligated to fund under
the terms of this Agreement (the funded portion of the Term 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 Term Loan Commitments, the proceeds of all amounts thereafter
repaid to the Administrative Agent by the Borrower 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 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
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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)(iv)
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 the Term Loan at such time as an
amount equal to such Lender's original Pro Rata Share of the
requested principal portion of the Term Loan is fully funded to
the Borrower, whether made by such Lender itself or by operation
of the terms of this Section 4.2(b)(iv), and whether or not the
Non Pro Rata Loan with respect thereto has been repaid,
converted or continued; and
(C) regardless of whether or not an Event of Default has
occurred or is continuing, and notwithstanding the instructions
of the Borrower 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 and second, ratably to its Base
Rate Loans other than those constituting Non Pro Rata Loans.
(c) Payments on Non-Business Days. Whenever any payment to be
made by the Borrower 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)(iii), the next
preceding Business Day).
4.3. Promise to Repay; Evidence of Indebtedness.
(a) Promise to Repay. The Borrower hereby agrees to pay when
due, without setoff or counterclaim, the principal amount of the Term 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 Notes. The
Borrower shall execute and deliver to each Lender on or prior to the Closing
Date, a promissory note, in the form of Exhibit B attached hereto with blanks
appropriately completed, evidencing the Term Loans and thereafter shall
execute and deliver such other promissory notes as are necessary to evidence
the Term 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
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 "Notes"; and "Note" means any one of the
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 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 the Loans made
hereunder, any conversion or continuation of the Loans, including the type of
Loan and any
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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 to each Lender
hereunder or under the Notes and (iv) the amount of any sum received by the
Administrative Agent from the Borrower 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 Guaranties 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 any partner, officer,
shareholder or director of any Limited Partner or any officer, trustee,
member, director, or employee of the Borrower 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 Arranger 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 such other
Persons to pay money.
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 Funding Date 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; and
(ii) 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.
The applicable basis for determining the rate of interest on the Loans shall
be selected by the Borrower at the time the Notice of Borrowing or a Notice of
Conversion/Continuation is delivered by the Borrower to the Administrative
Agent; provided, however, 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
or if Eurodollar Rate Loans are not available pursuant to Section 5.2(d) or
(e). 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.
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(b) Interest Payments. (i) Interest accrued on each Loan,
whether a Base Rate Loan or a Eurodollar 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
Funding Date, (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 the 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 (1st) Business
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. (i) The Borrower 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 the entire Borrowing of Non Pro Rata
Loans.
(ii) To convert or continue a Loan under Section 5.1(c)(i), the
Borrower 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, and (D) in the case of a conversion to, or continuation
of, a Eurodollar Rate Loan, the requested Eurodollar Interest Period.
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 written 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 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 the Loans and other Obligations shall bear interest at a rate equal to (A)
in
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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 Funding Date 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.
(f) Eurodollar Rate Information. Upon the request of the
Borrower, the Administrative Agent shall promptly provide to the Borrower such
information with respect to the applicable Eurodollar Rate as may be so
requested.
5.2. Special Provisions Governing Eurodollar Rate 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 5.1(c), the Borrower 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 a Eurodollar Interest Period
of one, two, or three months in duration;
(ii) In the case of immediately successive Eurodollar Interest
Periods, each successive Eurodollar Interest Period shall commence on
the day on which the next preceding Eurodollar Interest Period
expires;
(iii) 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, such Eurodollar Interest Period shall expire on the
immediately preceding Business Day;
(iv) The Borrower may not select a Eurodollar Interest Period as
to any Loan if such Eurodollar Interest Period terminates later than
the Term Loan Maturity Date;
(v) 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 is required to make a scheduled
payment of such portion of principal of which the Borrower is aware
on the date of such request, in the case of a payment pursuant to
Section 4.1(c) hereof; and
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(vi) There shall be no more than ten (10) Eurodollar Interest
Periods in effect at any 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 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 to each Lender. The Administrative
Agent's determination shall be presumed to be correct, absent manifest error,
and shall be binding upon the Borrower.
(d) Interest Rate Unascertainable, Inadequate or Unfair. In the
event that at least one (1) Business Day before any 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;
(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; or
(iii) the Requisite Lenders advise the Administrative Agent that
the Eurodollar Rate for Eurodollar Rate Loans to be continued or
converted will not adequately reflect the cost to such Requisite
Lenders of obtaining funds in Dollars in the London interbank market
in an amount substantially equal to such Lenders' Eurodollar Rate
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 the Lenders, whereupon (until the Administrative Agent notifies
the Borrower that the circumstances giving rise to such suspension no longer
exist) the right of the Borrower to elect to have Loans bear interest based
upon the Eurodollar Rate shall be suspended and each outstanding Eurodollar
Rate 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 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 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 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 shall be immediately suspended, and (B) if
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the affected Eurodollar Rate Loan or Loans are then outstanding, the
Borrower 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 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 shall thereupon be restored.
(f) Compensation. In addition to all amounts required to be
paid by the Borrower pur suant to Section 5.1 and Article XIII, the Borrower
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 to
the Borrower, but excluding any loss of Applicable Margin on the relevant
Loans) which that Lender may sustain (i) if for any reason a conversion into
or continuation of Eurodollar Rate Loans does not occur on a date specified
therefor in a Notice of Conversion/Continuation given by the Borrower or in a
telephonic request by it for 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 5.2(d) or (e)) or converted 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 to repay a Eurodollar Rate Loan
when required by the terms of this Agreement. The Lender making demand for
such compensation shall deliver to the Borrower 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. Any Lender may make,
carry or transfer Eurodollar Rate 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 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 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.
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(j) Application of Mandatory Prepayments. The principal amount
of any mandatory prepayment pursuant to Section 4.1(c) hereof, shall be
applied, first, to the outstanding Base Rate Loans and then, to the
outstanding Eurodollar Rate Loans. Unless the Borrower otherwise pays breakage
costs in accordance with Section 5.2(f), the Administrative Agent shall hold
such principal amounts allocated for prepayment of Eurodollar Rate Loans until
the end of the applicable Eurodollar Interest Periods) and, during the interim
period, shall invest said sums in Cash Equivalents. Interest earned thereon
shall be forwarded to the Borrower upon the payment of the Eurodollar Rate
Loans at the end of said Eurodollar Interest Period. Interest shall continue
to accrue on the principal amount of such Eurodollar Rate Loans until so paid.
5.3. Fees.
(a) Upfront Fee. The Borrower shall pay to the Administrative
Agent, for the Administrative Agent's own account, an upfront fee as provided
in the Letter Agreement.
(b) 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 the
Arranger or any Lender, 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
6.1. Conditions Precedent to the Loans. The obligation of each Lender
on the Funding Date to make the Term Loan requested to be made by it 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 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 hereby directs its counsel, Fried Xxxxx Xxxxxx Xxxxxxx &
Xxxxxxxx LLP to prepare and deliver to the Agents, the Lenders, and
Xxxxxxx XxXxxxxxx 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
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notice that litigation is pending or threatened which is likely to (i) enjoin,
prohibit or restrain the making of the Term Loan on the 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 or
any of its Properties shall have occurred since December 31, 2004 which
change, in the judgment of the Administrative Agent, will have a Material
Adverse Effect.
(d) Interim Liabilities and Equity. Except as disclosed to the
Arranger and the Lenders, or as permitted under the Existing Revolving Credit
Agreement (including as set forth on Schedule 6.1(d) thereto), since December
31, 2004, neither the Borrower nor the Company shall have (i) entered into any
(as determined in good faith by the Administrative Agent) commitment or
transaction, including, without limitation, transactions for borrowings and
capital expenditures, which are not in the ordinary course of the Borrower'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.
(e) No Loss of Material Agreements and Licenses. Since December
31, 2004, no agreement or license relating to the business, operations or
employee relations of the Borrower or any of its 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, 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.
(h) Representations and Warranties. As of the Funding Date,
both before and after giving effect to the Loans, all of the representations
and warranties of the Borrower contained in Sections 7.1, 9.12(b) and 9.14 and
all of the representations of the Borrower and the Guarantors 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.
(i) Fees and Expenses Paid. There shall have been paid to the
Administrative Agent, for the accounts of the Agents and the Lenders, as
applicable, all fees due and payable on or before the Funding Date and all
expenses due and payable on or before the Funding Date, including, without
limitation, reasonable attorneys' fees and expenses, and other costs and
expenses incurred in connection with the Loan Documents.
(j) 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 Loan.
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(k) Acquisition. The Administrative Agent shall receive
evidence satisfactory to it of the closing of the Acquisition substantially
concurrently with the funding of the Term Loan on the Closing Date.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
7.1. Representations and Warranties of the Borrower. In order to
induce the Lenders to enter into this Agreement and to make the Loans and the
other financial accommodations to the Borrower described herein, the Borrower
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) True, correct and complete copies of the Organizational
Documents of the Borrower and the Company identified on Schedule 7.1-A have
been delivered to Administrative Agent, each of which is in full force and
effect, has not been modified or amended except to the extent set forth or
indicated therein or as otherwise permitted hereby and, to the best of the
Borrower'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.
(iv) Neither the Borrower nor the Company is a "foreign
person" 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) 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
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(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.
(iii) 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 Funding Date
have been performed or complied with, and no Potential Event of Default or
Event of Default exists.
(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 and any other Person in which the
Company or the Borrower 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 and the Subsidiaries of the Borrower, and (3) the
ownership interest of the Borrower, the Company and the Subsidiaries of the
Borrower in all Joint Ventures. 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
and its 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 the
Borrower 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, each of the Subsidiaries of the Borrower: (A) is a corporation,
limited liability company 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.
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(iii) As to each Guarantor, a provision similar, as applicable
to (a), (b) and (c) above shall be included in each such Subsidiary's
Guaranty, and the Borrower shall be deemed to make for itself and on behalf of
such Subsidiary a representation as to such provisions.
(d) No Conflict. The execution, delivery and performance of
each of the Loan Documents to which the Borrower, the Company or any Guarantor
is a party, and the consummation of the transactions expressly contemplated
thereby respectively, do not and will not (i) conflict with the Organizational
Documents of the Borrower, the Company or any Guarantor, (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 or any Guarantor, 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 or any Guarantor,
or (iv) require any approval of shareholders of the Company (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, the Company
or any Guarantor is a party and the consummation of the transactions expressly
contemplated thereby 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
or the Guarantors 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,
annual audited financial statements of the Company for the fiscal year ended
December 31, 2004 and unaudited financial statements of the Company for the
fiscal quarter ended March 31, 2005. 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 as of the date referred to therein, and the consolidated
results of operations and cash flows for each of the periods covered thereby
of the Borrower and the Company. Neither the Borrower nor 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.
(h) Indebtedness. Schedule 7.1-H sets forth, as of March 31,
2005, all Indebtedness for borrowed money of each of the Borrower, the Company
and their respective Subsidiaries and, except as set forth on Schedule 7.1-H,
there are no defaults in the payment of
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principal of 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, 2005.
(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 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 is reasonably likely to 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 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 December 31, 2004, 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 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.
(m) Performance. To the knowledge of the Borrower, neither the
Company, 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,
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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 the Guarantors contained in the Loan Documents, and all
certificates and other documents delivered to the Administrative Agent or any
Lender 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 the Borrower shall not have liability
under this clause (n) with respect to its projections of future events or for
any financial projections. (o) Requirements of Law. Each of the Borrower and
each of its 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 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, each of its
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 and each of its 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, none of the
Borrower, its Subsidiaries or any of their respective present or
past Properties 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 or any of its 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
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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 or any of its Subsidiaries'
present or past Property is listed or, to the knowledge of the
Borrower, 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, none of the
Borrower or any of its 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 the Borrower's knowledge, there is not
now, and to the 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 its Subsidiaries or
their respective Properties 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 or any of its 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 or any of its 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 or any of its Subsidiaries (other than those
otherwise permitted hereunder) or which do not constitute an
Event of Default; and
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(K) no Property of the Borrower or any of its
Subsidiaries 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. As of the date hereof, 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 an ERISA 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. The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or carrying Margin
Stock except as described on Schedule 7.l-R.
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(s) Solvency. After giving effect to the Term Loans to be made
on the Funding Date, the Acquisition, and the disbursement of the proceeds of
such Term Loan pursuant to the Borrower's instructions, each of the Borrower
and each Guarantor 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 certificates of insurance or other
satisfactory evidence of all insurance policies set forth on Schedule 7.1-T.
Such insurance policies and programs or their replacements obtained in
compliance with Section 9.5 are currently in full force and effect, in
compliance with the requirements of Section 9.5 hereof and provide coverage
against such casualties and contingencies as are commercially reasonable and
in accordance with the customary and general practices of businesses having
similar operations and real estate portfolios in similar geographic areas and
are in amounts, containing such terms, in such forms and for such periods as
are reasonable and prudent for such businesses. Borrower shall update Schedule
7.1-T, to the extent required, in order to keep said Schedule true and
correct.
(u) REIT Status. The Company qualifies as a REIT under the
Internal Revenue Code.
(v) Ownership of Projects, Joint Ventures and Property.
Ownership of all wholly owned Projects, Joint Ventures and other Property of
the Consolidated Businesses is held by the Borrower and its Subsidiaries and
is not held directly by the Company.
(w) Title to Properties. The Borrower, the Guarantors and their
respective Subsidiaries that own Real Property each has good title to all of
its respective Real Property purported to be owned by it, including, without
limitation, that:
(a) Either (i) the Borrower or (ii) a Guarantor is the owner of
or the holder of a fee or ground leasehold interest (under an Eligible Ground
Lease) in the Unencumbered Projects and Unencumbered New York City Assets
which are wholly-owned or ground-leased by the Borrower and the Consolidated
Businesses, free from any Lien, except for Customary Permitted Liens, or
preferred equity interest.
(b) The Company, the Borrower and their Consolidated
Subsidiaries will, as of the Closing Date, own all of the assets as reflected
in the financial statements of the Borrower and the Company described in
Section 7.1(g) or acquired since the date of such financial statements (except
property and assets sold or otherwise disposed of in the ordinary course of
business since that date).
ARTICLE VIII.
REPORTING COVENANTS
The Borrower covenants and agrees that so long as any Term Loan
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:
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8.1. Borrower Accounting Practices. The Borrower 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 shall deliver or cause to be
delivered to the Administrative Agent (with copies for each of the Lenders):
(a) Quarterly Reports.
(i) Borrower 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 (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
dates and periods of the previous Fiscal Year, certified by an
Authorized Financial Officer of the Borrower as fairly presenting in
all material respects the consolidated financial position of the
Borrower as of the dates indicated and the consolidated results of
its operations and cash flow for the months indicated in accordance
with GAAP, subject to normal 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 dates and 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 consolidated 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, Officer's Certificates of the Borrower and the Company
in the form of Exhibit F hereto (the "Quarterly Compliance
Certificates"), signed by the Borrower'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 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 whether there has been compliance with the
covenants and financial ratios set forth in Sections 9.9, 9.11, 10.2,
10.6, 10.7,
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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 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 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 its Subsidiaries
as at the end of such Fiscal Year, accompanied by an Officer's
Certificate of the Borrower, signed by the Chief Financial Officer of
the Borrower, that such Financial Statements fairly present in all
material respects the consolidated financial position of the Borrower
and its 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 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 as of the end of and 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 Four"
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 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), Officer's Certificates of the Borrower and the
Company in the form of Exhibit F hereto (the "Annual Compliance
Certificates" and, collectively with the Quarterly Compliance
Certificates,
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the "Compliance Certificates"), signed by the Borrower'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 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 whether there has been 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 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,
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 shall deliver to the
Administrative Agent and the Lenders, immediately upon the Borrower'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) Update of Schedule 7.1-C. As soon as practicable, and in
any event within ninety (90) days after the end of each Fiscal Year,
the Borrower shall deliver an update of Schedule 7.1-C.
8.3. Events of Default. Promptly upon the Borrower 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 any Subsidiary of the Borrower 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) of any condition or event which has a Material Adverse
Effect, the Borrower 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 has taken, is taking and proposes to take with respect thereto.
8.4. Lawsuits. (i) Promptly upon the Borrower's obtaining knowledge
of the institution of, or written threat of, any action, suit, proceeding,
governmental investigation or arbitration against or affecting the Borrower or
any of its Subsidiaries not previously disclosed pursuant to Section 7.1(i),
which action, suit, proceeding, governmental investigation or
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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 reasonable
judgment, the Borrower or any of its Subsidiaries to liability in an amount
aggregating $1,000,000 or more and is not covered by the Borrower's or such
Subsidiary's insurance, the Borrower 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, the Borrower 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 or
any of its Subsidiaries or any Property of the Borrower or any of its
Subsidiaries not previously disclosed by the Borrower 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 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, the Borrower shall not be 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 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:
(a) within fifteen (15) Business Days after the Borrower or any
ERISA Affiliate knows or has reason to know that an ERISA Termination Event
has occurred, a written statement of an Authorized Financial Officer of the
Borrower describing such ERISA 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;
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(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.
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8.7. Environmental Notices. The Borrower shall notify the
Administrative Agent (with copies for each of the Lenders) in writing,
promptly upon any officer of the Borrower responsible for the environmental
matters at any Property of the Borrower 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 or any of
its Subsidiaries is or may be liable to any Person as a result of the Release
or threatened Release of any Contaminant into the environment, if such
liability would result in a Material Adverse Effect;
(b) notice that the Borrower or any of its Subsidiaries is
subject to investigation by any Governmental Authority evaluating whether any
Remedial Action is needed to respond to the Release or threatened Release of
any Contaminant into the environment which would have a Material Adverse
Effect;
(c) notice that any Property of the Borrower or any of its
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 or any of its
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 or any of its
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 or any of its 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 shall notify the Administrative
Agent (with copies for each of the Lenders) in writing, promptly upon the
Borrower's learning thereof, of any labor dispute to which the Borrower or any
of its 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 shall
deliver to the Administrative Agent and the Lenders written notice of each of
the following events affecting the Company, the Borrower or their respective
Subsidiaries not less than five (5) Business Days prior to the occurrence
thereof: (a) a sale, transfer or other disposition of (i) an Unencumbered
Project or Unencumbered New York City Asset or (ii) other assets, in a single
transaction or series of related transactions within the two preceding
calendar quarter periods, for consideration in excess of $50,000,000, (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, (c) the grant of a Lien with respect
to (i) an Unencumbered Project or Unencumbered New York City Asset or (ii)
other assets, in a single transaction or series of related transactions within
the two preceding calendar quarter periods, for consideration in excess of
$50,000,000 and (d) a release
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from an escrow account of the proceeds of a qualified, deferred exchange under
ss.1031 of the Internal Revenue Code. In addition, simultaneously with
delivery of any such notice, the Borrower shall deliver to the Administrative
Agent a certificate of an Authorized Officer certifying that Borrower is in
compliance with this Agreement and the other Loan Documents both on a
historical basis and on a pro forma basis, exclusive of the property sold,
transferred 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 covenants set forth herein, the Borrower shall (i) apply the proceeds
of such transaction (together with such additional amounts as may be
required), to prepay the Obligations in an amount, as determined by the
Administrative Agent, equal to that which would be required to reduce the
Obligations so that Borrower will be in compliance with the covenants set
forth herein upon the consummation of the contemplated transaction, to the
extent such proceeds are not applied pursuant to clauses (ii) or (iii); (ii)
to the extent applicable, segregate the net proceeds of such transaction in an
escrow account with the Administrative Agent or with a financial institution
reasonably acceptable to the Administrative Agent and apply such net proceeds
solely to a qualified, deferred exchange under ss.1031 of the Internal Revenue
Code that results in compliance with the covenants set forth herein upon the
consummation of the contemplated transaction, or with the prior written
approval of the Requisite Lenders to another use, to the extent such proceeds
are not applied pursuant to clauses (i) or (iii); or (iii) to the extent
applicable, complete an exchange of such assets for other real property of
equivalent value under ss.1031 of the Internal Revenue Code that results in
compliance with the covenants set forth herein upon the consummation of the
contemplated transaction, to the extent such proceeds are not applied pursuant
to clauses (i) or (ii).
8.10. Notices of Joint Ventures. The Borrower 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 Joint Venture in excess of $5,000,000, (b) the
investment of an amount in excess of $5,000,000 in a Joint Venture 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 Joint Venture. 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 Joint Venture.
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 annual base rent (as reported in the
Borrower's most recent quarterly financial statements) is attributable to such
tenant.
8.12. Other Reports. The Borrower shall deliver or cause to be
delivered to the Administrative Agent (with copies for each of the Lenders)
copies of all financial statements and reports, if any, sent or made available
generally by the Company and/or the Borrower 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 any of its
Subsidiaries to the public concerning material adverse developments in the
business of the Company, the Borrower or any such Subsidiary and all material
notifications received by the Company, the Borrower or their Subsidiaries
pursuant to the Securities Exchange Act and the rules promulgated thereunder.
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8.13. Other Information. Promptly upon receiving a request therefor
from the Administrative Agent or the Arranger, the Borrower shall prepare and
deliver to the Administrative Agent (with copies for each of the Lenders) such
other information with respect to the Company, the Borrower, or any of their
Subsidiaries, as from time to time may be reasonably requested by the
Administrative Agent or the Arranger, including without limitation, rent
rolls, title reports, environmental site assessments, and tax returns.
ARTICLE IX.
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that so long as any Term Loan
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 shall, and shall cause each of its
Subsidiaries and the Company to, at all times maintain its corporate existence
or existence as a limited partnership, limited liability company 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 shall remain
qualified, and shall cause each of its Subsidiaries and the Company 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 shall, and shall cause
each of its Subsidiaries and the Company 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 shall pay, and
cause each of its Subsidiaries and the Company 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, the Company's or any of the Borrower'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.
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9.5. Insurance. The Borrower shall maintain for itself and its
Subsidiaries, or shall cause each of its Subsidiaries or tenants 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 (a) with insurers
having an Xxxxxx X. Best Company, Inc. rating of "A" or better (or if approved
by the Administrative Agent, a rating of "A-") and a financial size category
of not less than VIII or (b) in the case of (i) insurance maintained by
tenants, pursuant to insurance programs, including self-insurance, supported
by creditworthy entities which do not satisfy clause (a) above or (ii) a
program by which a tenant (or any guarantor of tenant) undertakes obligations
that are substantially the same as would be covered by the insurance referred
to in this Section, by a tenant (or any guarantor) that is a creditworthy
entity, in each case consistent with normal industry practice and reasonably
acceptable to the Administrative Agent; provided that a tenant (or any
guarantor) that is, or has senior unsecured long term debt that is, rated at
least "A" (or its equivalent) by any Rating Agency shall be deemed to have
acceptable creditworthiness by the Administrative Agent.
9.6. Inspection of Property, Books and Records Discussions. The
Borrower shall permit, and cause each of its Subsidiaries and the Company to
permit, any authorized representative(s) designated by the Administrative
Agent, the Arranger or any Lender (coordinated through the Administrative
Agent) 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 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 are made 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
Benefit 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 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, renewals 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 such
applicable Subsidiary. Without any limitation on the foregoing, the Borrower
shall maintain each Project that is an office or industrial Project as an
office or industrial Project.
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9.9. Company Status. The Borrower shall cause the Company to, and 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, Joint Ventures and Property. The
ownership of substantially all wholly owned Projects, Joint Ventures 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. [Intentionally Omitted.]
9.12. Additional Guarantors; Solvency of Guarantors.
(a) If, after the Closing Date, a Subsidiary of the Borrower
that is not a Guarantor acquires any Real Property that then or thereafter
qualifies under the definition of Unencumbered Project or Unencumbered New
York City Asset or any other Unencumbered asset and such Property or asset is
directly or indirectly wholly-owned or ground leased by the Borrower, the
Borrower shall cause such Person (which Person must be or become a
wholly-owned Subsidiary of the Borrower) to execute and deliver a Guaranty to
the Administrative Agent and the Lenders in substantially the form of Exhibit
H hereto. Such Guaranty shall evidence consideration and equivalent value.
(b) The Borrower, the Company, and each other Guarantor are
Solvent. The Borrower and the Company each acknowledge that, subject to the
indefeasible payment and performance in full of the Obligations, the rights of
contribution among each of them and the other Guarantors are in accordance
with applicable laws and in accordance with each such Person's benefits under
the Loans and this Agreement. The Borrower further acknowledges that, subject
to the indefeasible payment and performance in full of the Obligations, the
rights of subrogation of the Guarantors as against the Borrower and the
Company are in accordance with applicable laws.
(c) Other than during the continuance of a Potential Event of
Default or Event of Default, at the request of the Borrower following the
delivery of the certificate of an Authorized Officer in accordance with
Section 8.9 hereof, the Guaranty of any Guarantor shall be released by the
Administrative Agent if and when all of the Real Property owned or
ground-leased by such Guarantor shall cease (not thereby creating a Potential
Event of Default or Event of Default) to be an Unencumbered Project or
Unencumbered New York City Asset which is wholly-owned by a Consolidated
Business, provided the foregoing shall never permit the release of the
Company.
9.13. Further Assurances. The Borrower will, and will cause each
Guarantor to, cooperate with, and to cause each of its Subsidiaries to
cooperate with, the Administrative Agent and the Lenders and execute such
further instruments and documents as the Lenders or the Administrative Agent
shall reasonably request to carry out to their reasonable satisfaction the
transactions contemplated by this Agreement and the other Loan Documents.
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9.14. Distributions in the Ordinary Course. In the ordinary course of
business the Borrower causes all of its Subsidiaries to make net transfers of
cash and cash equivalents upstream to the Borrower and the Company, and shall
continue to follow such ordinary course of business. The Borrower shall not
make net transfers of cash and cash equivalents downstream to its Subsidiaries
except in the ordinary course of business consistent with past practice.
ARTICLE X.
NEGATIVE COVENANTS
Borrower covenants and agrees that it shall comply with the following
covenants so long as any Term Loan 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 the Borrower nor any of its Subsidiaries shall
directly or indirectly create, incur, assume or permit to exist any Lien (i)
that is not permitted under the Existing Revolving Credit Agreement or (ii) if
the Existing Revolving Credit Agreement is no longer in effect, 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; provided
that the incurrence of such Liens shall be subject to compliance with Section
4.1(c) and Section 8.9 hereof; 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, financing, leasing
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, (c) investments in and loans to Investment
Funds, FrontLine Capital Group, Subsidiaries, Affiliates and Joint Ventures
and unaffiliated entities (to the extent permitted hereunder) and (d) other
activities referred to in Section 2.2 hereof.
10.5. Transactions with Partners and Affiliates. Neither the Borrower
nor any of its Subsidiaries shall directly or indirectly enter into or permit
to exist any transaction (including, without limitation, the purchase, sale,
lease or exchange of any property or the rendering of any service) with any
holder or holders of more than five percent (5%) of any class of equity
Securities of the Borrower, or with any Affiliate of the Borrower which is not
its Subsidiary or the Company, unless such transaction is determined by the
Board of Directors of the Company to be no less favorable to the Borrower or
any of its Subsidiaries, as applicable, than those that
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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 referred to in
Section 2.2). Nothing contained in this Section 10.5 shall prohibit (a)
increases in compensation and benefits for officers and employees of the
Company, the Borrower or any of its 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 Joint Ventures.
10.6. Restriction on Fundamental Changes. The Borrower shall not, and
shall not permit any of the Guarantors to, enter into any merger,
consolidation or amalgamation, 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 such Guarantor'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, (a) the Borrower or a Guarantor shall be
permitted to merge, consolidate or amalgamate with another Person so long as
the Borrower or such Guarantor, as the case may be, is the surviving Person
following such merger, consolidation or amalgamation, (b) a Guarantor (other
than the Company) shall be permitted to merge, consolidate or amalgamate with
or into the Borrower or another Guarantor, and (c) so long as no Potential
Event of Default or Event of Default has occurred and is continuing and
following the delivery by the Borrower to the Administrative Agent of a
certificate of an Authorized Officer certifying that Borrower is in compliance
with this Agreement and the other Loan Documents on a pro forma basis,
exclusive of the properties owned by a Guarantor, such Guarantor (other than
the Company) shall be permitted to merge, consolidate or amalgamate with or
into another Person.
10.7. Margin Regulations; Securities Laws. Neither the Borrower nor
any of its Subsidiaries shall use all or any portion of the proceeds of any
credit extended under this Agreement to purchase or carry Margin Stock.
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
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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 any Guarantor 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 such Guarantor, 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 prohibited under this Agreement.
10.10. Fiscal Year. Neither the Company, the Borrower 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 (i) Total Outstanding Indebtedness which would not exceed
sixty percent (60%) of Total Value as of the date of incurrence, (ii) Total
Secured Outstanding Indebtedness which would not exceed forty percent (40%) of
Total Value as of the date of incurrence or (iii) Total Recourse Secured
Outstanding Indebtedness which would not exceed ten percent (10%) of Total
Value as of the date of incurrence.
(b) Minimum Combined Equity Value. The Combined Equity Value
shall at no time be less than $1,250,000,000, plus an amount equal to seventy
percent (70%) of all Net Offering Proceeds received by the Company after
August 6, 2004.
(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 2.0 to 1.0.
(e) Limitation on Total Unsecured Outstanding Indebtedness. As
of the first day of each calendar quarter for the immediately preceding
calendar quarter, the ratio of (i) Total Unsecured Outstanding Indebtedness to
(ii) Total Unencumbered Value (including Eligible Cash 1031 Proceeds, to the
extent not already included) shall not exceed 0.60 to 1.0.
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(f) Minimum Total Interest 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) Total Interest Expense shall not be
less than 2.0 to 1.0.
(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 1.60 to 1.0.
(h) Maximum Dividend Payout Ratio. The Borrower 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 of the Borrower, and (ii) the
amounts required to maintain the Company's 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 any cash dividend or other cash
distribution on any interest in the Borrower's common operating partnership
units or on any of the Borrower's common partnership interests or other common
equity interests (except dividends or distributions payable solely in
interests in operating partnership units, partnership interests, or other
equity interests or in rights to subscribe for or purchase interests in its
operating partnership units, partnership interests, or other equity interests
and except dividends or distributions which are necessary to pay dividends or
distributions on preferred stock or other preferred equity interests of the
Company).
(i) Development Activities. As of the first day of each
calendar quarter for the immediately preceding calendar quarter, the ratio of
(i) Budgeted Construction Cost to (ii) Total Value shall not exceed 0.20 to
1.0.
(j) Negative Pledge. From and after the date hereof, neither
the Borrower nor the Company will, and will not permit any of their respective
Subsidiaries, to enter into any agreement containing any provision prohibiting
the creation or assumption of any Lien upon its properties, revenues or assets
(other than with respect to (i) prohibitions on subordinate liens or
prohibitions on pledges of direct or indirect ownership interests (other than
pledges of direct ownership interests in the Borrower or any Subsidiary that
owns an Unencumbered Project or Unencumbered New York City Asset) set forth in
a mortgage on a particular property, (ii) customary restrictions contained in
the Organizational Documents of a Joint Venture, or (iii) restrictions
contained in the Organizational Documents of the Borrower on the ability of
its general partner and limited partner to pledge and transfer partnership
interests in the Borrower), whether now owned or hereafter acquired, or
restricting the ability of the Borrower to amend or modify this Agreement or
any other Loan Document.
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, Cash or Cash Equivalents in the ordinary course of business or in
connection with the payment of dividends.
(b) From and after the date hereof, the Company will not incur
any Indebtedness or any other obligations or liabilities except (i) as imposed
by operation of law on the Company in its capacity as the general partner of
the Borrower, (ii) Indebtedness, the net proceeds of which are contributed to
the Borrower simultaneously with the incurrence thereof by
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the Company, (iii) guarantees of Indebtedness which are recourse to the
Borrower, (iv) in connection with the payment of a declared dividend and (v)
otherwise as imposed by law.
(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 shall fail
to pay (i) when due any principal payment on the Obligations which is due on
the Term Loan Maturity Date or pursuant to the terms of Section 2.1(a),
Section 2.4, Section 4.1(a), or Section 4.1(c) or (ii) when due, any interest
payment on the obligations, provided, however, that the Borrower 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.
(b) Breach of Certain Covenants. The Borrower 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, or Article X.
(c) Breach of Representation or Warranty. Any representation or
warranty made or deemed made by the Borrower or any of the parties to the
Guaranties to the Administrative Agent, the Arranger or any Lender herein or
by the Borrower or any of the parties to the Guaranties 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 or deemed made or given.
(d) Other Defaults. The Borrower shall default in the
performance of or compliance with any terms 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
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the Company, the Borrower 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 or any of its Subsidiaries (other than by a
regularly scheduled required prepayment) prior to the stated maturity thereof;
or any such Indebtedness shall not be repaid at maturity (after taking into
account grace and cure periods).
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against the Company,
the Borrower or any of its 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 or any such Subsidiaries of the Borrower in an
involuntary case, under any applicable bankruptcy, insolvency or
other similar law now or hereafter 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
General Partner or Limited Partners of the Borrower or the board of
directors or partners of any such Subsidiaries of the Borrower (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 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 or any of such Subsidiaries, shall be entered; or an interim
receiver, trustee or other custodian of the Company, the Borrower or
any of such Subsidiaries or of all or a substantial part of the
Property of the Company, the Borrower 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, 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 General Partners 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 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
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Borrower 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 or any of its 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 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 any Guarantor decreeing its involuntary dissolution or
split up; or the Borrower or any Guarantor 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 any
Guarantor 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 Internal Revenue 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 Section 9.9, or any representation or warranty
contained in Section 7.1(a)(ii), (b), (d), (l), or (o) shall be false or
misleading in any material respect on the date as of which made.
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(o) Merger or Liquidation of the Company, the Borrower. 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 which is prohibited or results in a
Potential Event of Default or an Event of Default 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 which is prohibited or results in a
Potential Event of Default or an Event of Default under the terms of this
Agreement.
(p) Existing Revolving Credit Agreement. An "Event of Default"
shall occur under the Existing Revolving Credit Agreement.
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 Term Loan
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 and other Obligations 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,
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, (i) declare that the Term
Loan Commitments are terminated, whereupon the Term Loan Commitments and the
obligation of each Lender to convert or continue any Loan hereunder shall
immediately terminate, and/or (ii) declare the unpaid principal amount of and
any and all accrued and unpaid interest on the Obligations and all other
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.
(b) Rescission. If within ninety (90) days after termination of
the Term Loan Commitments and/or acceleration of the maturity of the Loans,
the Borrower shall pay all arrears of interest and all payments on account of
principal of the Loans 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, the termination of the Term Loan 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
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Borrower and do not give the Borrower 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 acknowledges that in the event
the Borrower, the Guarantors 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 Arranger and the Lenders;
therefore, the Borrower agrees that the Administrative Agent, the Arranger and
the 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
CNAI as the Administrative Agent, and the Arranger as the arrangers of such
Lender under this Agreement, and each Lender hereby irrevocably authorizes the
Administrative Agent, and the Arranger to take such actions on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers in each case only as are set forth herein or therein
together with such other powers as are reasonably incidental thereto. The
Administrative Agent and the Arranger 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 Arranger and the Lenders, and neither
the Borrower, the Company nor any Subsidiary of the Borrower 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 and the 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 or any Subsidiary of the
Borrower. The Administrative Agent and the Arranger may perform any of their
respective duties hereunder, or under the other Loan Documents, by or through
their respective agents or employees.
12.2. Nature of Duties. The Administrative Agent and the Arranger
shall not have any duties or responsibilities except those expressly set forth
in this Agreement or in the other Loan Documents. The duties of the
Administrative Agent and the Arranger shall be mechanical and administrative
in nature. Neither the Administrative Agent nor the Arranger shall have by
reason of this Agreement a fiduciary relationship in respect of any Lender.
Nothing in this Agreement or any of the other Loan Documents, expressed or
implied, is intended to or shall be construed to impose upon the
Administrative Agent or the Arranger any obligations in respect of this
Agreement or any of the other Loan Documents except as expressly set forth
herein or therein. The Administrative Agent and the Arranger each hereby
agrees that its duties shall include providing copies of documents received by
such Agent from the Borrower 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 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, 8.3, 8.4, 8.7 and 8.12.
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12.3. Right to Request Instructions. The Administrative Agent and the
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 or the 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 and the 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 other Loan Documents
and its duties hereunder or thereunder, upon advice of legal counsel
(including counsel for the Borrower), independent public accountants and other
experts selected by it.
12.5. Indemnification. To the extent that the Administrative Agent or
the Arranger is not reimbursed and indemnified by the Borrower, 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,
neither the Administrative Agent nor the Arranger shall be indemnified to the
extent such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, 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 or any other Person on behalf of the Borrower. The obligations of the
Lenders under this Section 12.5 shall survive the payment in full of the Loans
and all other Obligations and the termination of this Agreement.
12.6. Agents Individually. With respect to their respective Pro Rata
Share of the Term Loan Commitments hereunder, if any, and the Loans made by
them, if any, the Persons serving as the Administrative Agent and the Arranger
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 Lender. The terms "Lenders" or "Requisite Lenders" or any
similar terms shall, unless the context clearly otherwise indicates or such
Lender has assigned its interest hereunder, include CNAI in its individual
capacity as a Lender or as one of the Requisite Lenders. CNAI, Citigroup
Global Markets Inc. and each of their Affiliates may accept deposits from,
lend money to, and generally engage in any kind of banking, trust or other
business with the Borrower
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or any of its Subsidiaries as if CNAI and Citicorp Global Markets Inc. were
not acting as an Agent or Arranger 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 the 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, 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 (so long as no Event of Default then exists),
which consent 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 (so long as no Event of Default then exists) 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, or institute any actions or proceedings, against
the Borrower 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 Term Loan Commitment except in accordance with Section 11.2(a).
12.9. Standard of Care. The Administrative Agent and the Arranger
shall administer the Loans in the same manner that such Agent administers
loans made for its own account.
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ARTICLE XIII.
YIELD PROTECTION
13.1. Taxes.
(a) Payment of Taxes. Any and all payments by the Borrower
hereunder or under the Notes or other documents 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 Term Loan
Obligations 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 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 shall make such withholding or deductions, and (z) the
Borrower 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 will indemnify each Lender against, and reimburse each Lender 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
pursuant to this Section 13.1. A certificate as to any additional amount
payable to any Person under this Section 13.1 submitted by it to the Borrower
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, to provide the Borrower 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.
(c) Receipts. Within thirty (30) days after the date of any
payment of Taxes by the Borrower, the Borrower 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.
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(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 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 W-8BEN (or any successor or substitute form
or forms)) or (II) under Sections 1441(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 W-8ECI (or any successor or substitute form or
forms)).
(ii) Each Lender referred to in Section 13.1(d)(i) further
agrees to deliver to each of the Borrower 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 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
(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.
Each such Lender agrees to deliver to each of the Borrower 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
and Administrative Agent, unless any change in treaty, law, regulation, or
official interpretation thereof which would render such form inapplicable or
which would prevent such Lender from duly completing and delivering such form
has occurred prior to the date on which any such delivery would otherwise be
required and such Lender promptly advises the Borrower 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, the Borrower will not be required to make any additional
payment to or for the account of any
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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 under this Section 13.1(d), or (y) such Lender's failure or inability
to furnish, if required to do so, under this Section 13.1(d) an original or
renewal of a Form W-8ECI or Form W-8BEN (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 the making or maintenance by any Lender of its Loans, any Lender's
participation in or obligation to participate in the Loans or other advances
made hereunder or the existence of any Lender's obligation to make Loans 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
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. 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 Term Loan Commitments of
the Lenders to make Eurodollar Rate Loans 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 (other than taxes
covered by Section 13.1(a) hereof and 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 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;
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 Term Loan Commitment;
then, in any such case, within ten (10) Business Days after written demand by
such Lender (with a copy of such demand to the
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Administrative Agent), the Borrower 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. 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 under Section 13.1 or under Section 13.2 or under Section 13.3, (ii)
failed to make its Pro Rata Share of the Term Loan or (iii) failed to make any
Loan at the Eurodollar Rate, the Borrower may, at its 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 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 Term Loan Commitment, all Loans owing to
it and all other Obligations owing to it) 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 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 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) in accordance with the provisions of this Section 14.1.
(b) Limitations on Assignments. 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 to an assignee which is not a Lender or a Lender Affiliate,
shall be in
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a minimum principal amount of $5,000,000 (and the assignor shall maintain a
minimum amount of $5,000,000 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) (A) so long as no Event of Default has occurred
and is continuing, each assignment shall be subject to the approval of the
Administrative Agent (which approval shall not be unreasonably withheld);
provided that, no such consent of the Administrative Agent shall be required
for an assignment by any Lender to any of its Lender Affiliates, so long as
such Lender Affiliate is an Eligible Assignee, and (B) so long as no Event of
Default has occurred and is continuing, each assignment to an assignee which
is not a Lender or a Lender Affiliate shall be subject to the approval of the
Borrower (which approval shall not be unreasonably withheld and shall be
deemed to have been given if the Borrower fails to object to such proposed
assignment within five (5) Business Days of its receipt of a request for
approval), and (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. 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
(except as otherwise provided in Section 14.9) 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, except as otherwise provided in Section 14.9) and (C)
the Borrower 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 Term Loan
Commitment of, and the principal amount of the Loans 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, 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 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.
(e) Participations. Each Lender may sell participations to one
or more other financial institutions or other Persons 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
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portion of its Term Loan Commitment hereunder and the Loans owing to it);
provided, however, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Term Loan 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, 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 (other
than a participation to an Affiliate) shall be in a minimum amount of
$5,000,000, 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 any (A) increase in the Term Loan 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 Loans) subject to such participation and (D) release of any guarantor
of the Obligations.
(f) Information Regarding the Borrower. 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 or its Subsidiaries
furnished to such Lender by the Administrative Agent or by or on behalf of the
Borrower.
(g) Payment to Participants. Anything in this Agreement to the
contrary notwithstanding, in the case of any participation, all amounts
payable by the Borrower 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.
(h) 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 Person.
14.2. Expenses.
(a) Generally. The Borrower agrees promptly upon demand to pay,
or reimburse the Administrative Agent for the reasonable fees, expenses and
disbursements of counsel to the Administrative Agent (but not of other legal
counsel) and for all other reasonable out-of-pocket costs and expenses
incurred by the Administrative Agent or the Arranger in connection with (i)
the preparation, negotiation, and execution of the Loan Documents; (ii) the
preparation, negotiation, execution, syndication 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 and other extensions of credit
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 the preparation, negotiation, and
execution of the same.
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(b) After Default. The Borrower further agrees to pay or
reimburse the Administrative Agent, the Arranger 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, or 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.
14.3. Indemnity. The Borrower further agrees (a) to defend, protect,
indemnify, and hold harmless the Administrative Agent, the Arranger and each
and all of the 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, the use or
intended use of the proceeds of the Loans 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,
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 or any of its Subsidiaries, the
presence of asbestos-containing materials at any respective Property of the
Borrower or any of its Subsidiaries, or the Release or threatened Release of
any Contaminant into the environment (collectively, the "Indemnified
Matters"); provided, however, the Borrower 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 provided further that payment of the costs of preparation of the
Loan Documents shall be governed by Section 14.2(a) hereof; 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 Term Loan Commitments, the Obligations, or the other
matters governed by this Agreement and the other Loan Documents. 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 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
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(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 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, 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 costs, fees and other payments
described in Sections 5.2(f), and 5.3, Article XIII and Section 14.1)
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 costs, fees and other payments described
in Sections 5.2(f), and 5.3, Article XIII and Section 14.1), (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 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 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; provided, however, that the Borrower'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
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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 therefrom, shall be effective without the
written or deemed 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 Arranger or the 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 in any case shall entitle the Borrower to
any other or further notice or demand in similar or other circumstances.
(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
(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) change the amount of such Lender's Term Loan Commitment
(other than pursuant to an assignment permitted under Section
14.1),
(iii) reduction of the principal of, or the rate or amount of
interest on, the Loans, 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
Term Loan Maturity 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 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 Term Loan Maturity Date;
(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,
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(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 Guaranties, except in
connection with the permitted sale of an Unencumbered Project or
Unencumbered New York City Asset by a Guarantor.
(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 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 Lender's 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; 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 AUTHORIZATION TO THE ADMINISTRATIVE AGENT WITH RESPECT TO THE ENCLOSED
REQUEST".
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 (i) for the Borrower, as set forth
on its signature page to this Agreement, and (ii) for the Lenders, as set
forth on Schedule LC hereto or on the applicable Assignment and Acceptance by
which such party became a Lender hereunder, 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 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 and, in the case of any Lender that may assign any
interest in its Term Loan Commitment, or Loans 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
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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), which 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 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 any 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 makes a
payment or payments to the Administrative Agent, the Arranger or any 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,
the 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, the 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 10.6, the rights and obligations hereunder of the
Borrower, or any interest therein, may not be assigned without the written
consent of all Lenders (and any such attempted assignment without such consent
shall be null and void).
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14.17. Certain Consents and Waivers of the Borrower.
(a) Personal Jurisdiction. (i) EACH OF THE AGENTS, THE LENDERS,
AND THE BORROWER 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 AND THE BORROWER 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, AND THE BORROWER
WAIVES IN ALL DISPUTES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE
COURT CONSIDERING THE DISPUTE.
(ii) THE BORROWER AGREES THAT THE ADMINISTRATIVE AGENT SHALL
HAVE THE RIGHT TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A COURT IN
ANY LOCATION NECESSARY OR APPROPRIATE TO ENABLE THE ADMINISTRATIVE AGENT AND
THE LENDERS TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE
ADMINISTRATIVE AGENT OR ANY LENDER. THE BORROWER 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 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 BORROWER'S PROCESS AGENT OR THE BORROWER'S
NOTICE ADDRESS SPECIFIED IN SECTION 14.8 HEREOF, SUCH SERVICE TO BECOME
EFFECTIVE UPON RECEIPT. THE BORROWER 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 LENDERS TO BRING
PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
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(c) Waiver Of Jury Trial. EACH OF THE AGENTS AND THE LENDERS
AND THE BORROWER 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 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,
the Administrative Agent, the 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 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 Arranger and the
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 Arranger and the Lenders
shall not be liable for any debts or claims accruing in favor of any such
parties against the Borrower or others or against any of the Projects. The
Borrower is not and shall not be an agent of any Agent, the Arranger or the
Lenders for any purposes and none of the Lenders, the Arranger, or the Agents
shall be deemed partners or joint venturers with Borrower. None of the
Administrative Agent, the Arranger or the 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 Arranger or the Lenders and the Borrower agrees to hold the Administrative
Agent, the Arranger and the 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 Arranger and the
Lenders agrees to keep confidential all non-public information provided to it
by the Borrower pursuant to this Agreement that is designated by the Borrower
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 Lender Affiliate (provided such Lender 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 or any actual or prospective counterparty (or its advisors) to any
swap or derivative transactions relating to the Borrower and
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its Obligations (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, (g) upon the advice of counsel that such disclosure is required by
law, (h) with the consent of the Borrower, (i) in connection with any
litigation to which any Agent, Arranger or Lender is a party, or (j) to the
extent such information becomes publicly available other than as a result of a
breach of this Section 14.22 or becomes available to any Agent, Arranger or
Lender on a nonconfidential basis from a source other than the Borrower.
14.23. Intentionally Omitted.
14.24. USA Patriot Act. Each of the Lenders hereby notifies Borrower
that pursuant to the requirements of the USA Patriot Act (Title III of
Pub.L.107-56 (signed into law October 26, 2001)) (the "Act"), it is required
to obtain, verify and record information that identifies Borrower, which
information includes the name and address of Borrower and other information
that will allow such Bank to identify Borrower in accordance with the Act.
Neither the execution and delivery of the Notes and the other Loan Documents
by the Borrower nor the use of the proceeds of the Loans, will violate the
Trading with the Enemy Act, as amended, or any of the foreign assets control
regulations of the United States Treasury Department (31 CFR, Subtitle B,
Chapter V, as amended) or the Anti-Terrorism Order or any enabling legislation
or executive order relating to any of the same. Without limiting the
generality of the foregoing, none of the Borrower, the Company, nor any of
their respective Subsidiaries (a) is or will become a blocked person described
in Section 1 of the Anti-Terrorism Order or (b) engages or will engage in any
dealings or transactions or be otherwise associated with any such blocked
person in any manner which violates applicable law or regulation.
[Remainder of Page Intentionally Left Blank--Signature Pages to Follow]
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IN WITNESS WHEREOF the undersigned have duly executed this Agreement
as a sealed instrument as of the date first set forth above.
BORROWER:
---------
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp.
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Vice President
& General Counsel
Address for Notices:
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
Taxpayer Identification Number: 00-0000000
LENDERS:
CITICORP NORTH AMERICA, INC.,
individually and as Administrative Agent
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
SCHEDULE XX
X. ADMINISTRATIVE AGENT
Citicorp North America, Inc.
Notice Address: 0 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxx
Telecopy: 000-000-0000
II. LENDERS
a. Citicorp North America, Inc.
Notice Address, Domestic
and Eurodollar 0 Xxxxx Xxx, Xxxxx 000
Lending Office: Xxx Xxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxx
Telecopy: 000-000-0000
Eurodollar Affiliate: None
Pro Rata Share: 100%
Term Loan Commitment: $470,000,000.00
