1
Ex. 10.15
FACILITY II
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CREDIT AGREEMENT
by and among
NEW PLAN EXCEL REALTY TRUST, INC.
THE LENDERS PARTY HERETO,
AND
THE BANK OF NEW YORK
as Administrative Agent
BANK ONE, NA
as a Co-Documentation Agent
and
BANKBOSTON, N.A.
as a Co-Documentation Agent
Dated as of November 17, 1999
BNY CAPITAL MARKETS, INC.
as Sole Lead Arranger
and Bookrunner
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FACILITY II
TABLE OF CONTENTS
1. DEFINITIONS ........................................................................... 1
1.1. Defined Terms ...................................................................... 1
1.2. Other Definitional Provisions ...................................................... 25
2. AMOUNT AND TERMS OF LOANS AND LETTERS OF CREDIT ....................................... 26
2.1. Revolving Credit Loans ........................................................... 26
2.2. Facility Notes ................................................................... 26
2.3. Procedure for Revolving Credit Loan Borrowings Other than Swingline
Borrowings and Competitive Bid Borrowings ........................................ 27
2.4. Competitive Bid Borrowings and Procedure for Competitive Bid Borrowings .......... 29
2.5. Termination or Reduction of Commitments .......................................... 34
2.6. Repayment of Loans; Evidence of Debt ............................................. 34
2.7. Prepayments of the Loans ......................................................... 35
2.8. Swingline Loans .................................................................. 36
2.9. Letters of Credit ................................................................ 38
2.10. Conversions ...................................................................... 42
2.11. Interest Rate and Payment Dates .................................................. 43
2.12. Substituted Interest Rate ........................................................ 45
2.13. Taxes; Net Payments .............................................................. 46
2.14. Illegality ....................................................................... 46
2.15. Increased Costs .................................................................. 47
2.16. Indemnification for Break Funding Losses ......................................... 49
2.17. Use of Proceeds .................................................................. 50
2.18. Capital Adequacy ................................................................. 50
2.19. Administrative Agent's Records ................................................... 51
3. FEES; PAYMENTS ........................................................................ 51
3.1. Facility Fee ..................................................................... 51
3.2. Payments; Application of Payments ................................................ 52
4. REPRESENTATIONS AND WARRANTIES ........................................................ 53
4.1. Existence and Power .............................................................. 53
4.2. Authority ........................................................................ 54
4.3. Binding Agreement ................................................................ 54
4.4. Subsidiaries; DownREIT Partnerships .............................................. 54
4.5. Litigation ....................................................................... 55
4.6. Required Consents ................................................................ 55
4.7. No Conflicting Agreements ........................................................ 55
4.8. Compliance with Applicable Laws .................................................. 56
4.9. Taxes ............................................................................ 56
4.10. Governmental Regulations ......................................................... 56
4.11. Federal Reserve Regulations; Use of Loan Proceeds ................................ 56
4.12. Plans; Multiemployer Plans ....................................................... 57
4.13. Financial Statements ............................................................. 57
4.14. Property ......................................................................... 58
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4.15. Franchises, Intellectual Property, Etc ........................................... 58
4.16. Environmental Matters ............................................................ 58
4.17. Labor Relations .................................................................. 60
4.18. Burdensome Obligations ........................................................... 60
4.19. Solvency ......................................................................... 60
4.20. REIT Status ...................................................................... 61
4.21. Rent Roll and List of Unencumbered Assets ........................................ 61
4.22. Year 2000 ....................................................................... 61
4.23. Operation of Business ............................................................ 61
4.24. No Misrepresentation ............................................................. 61
5. CONDITIONS TO FIRST LOANS OR LETTERS OF CREDIT ........................................ 61
5.1. Evidence of Action ............................................................... 62
5.2. This Agreement ................................................................... 63
5.3. Notes ............................................................................ 63
5.4. Guaranty ......................................................................... 63
5.5. Other Credit Agreement ........................................................... 63
5.6. Litigation ....................................................................... 63
5.7. Opinion of Counsel to the Borrower ............................................... 64
5.8. Fees ............................................................................. 64
5.9. Fees and Expenses of Special Counsel ............................................. 64
5.10. Year 2000 Assurances ............................................................. 64
6. CONDITIONS OF LENDING - ALL LOANS ..................................................... 64
6.1. Compliance ....................................................................... 64
6.2. Loan Closings .................................................................... 65
6.3. Borrowing Request ................................................................ 65
6.4. Documentation and Proceedings .................................................... 65
6.5. Required Acts and Conditions ..................................................... 65
6.6. Approval of Special Counsel ...................................................... 66
6.7. Supplemental Opinions ............................................................ 66
6.8. Other Documents .................................................................. 66
7. AFFIRMATIVE COVENANTS ................................................................. 66
7.1. Financial Statements ............................................................. 66
7.2. Certificates; Other Information .................................................. 68
7.3. Legal Existence .................................................................. 71
7.4. Taxes ............................................................................ 71
7.5. Insurance ........................................................................ 72
7.6. Payment of Indebtedness and Performance of Obligations ........................... 72
7.7. Maintenance of Property; Environmental Investigations ............................ 72
7.8. Observance of Legal Requirements ................................................. 73
7.9. Inspection of Property; Books and Records; Discussions ........................... 73
7.10. Licenses, Intellectual Property .................................................. 74
7.11. Required Additional Guarantors ................................................... 74
7.12. REIT Status; Operation of Business ............................................... 74
7.13. Termination of Existing Credit Agreements ........................................ 74
8. NEGATIVE COVENANTS .................................................................... 75
8.1. Liens ............................................................................ 75
8.2. Merger, Consolidation and Certain Dispositions of Property ....................... 76
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8.3. Investments, Loans, Etc .......................................................... 76
8.4. Business Changes ................................................................. 78
8.5. Amendments to Organizational Documents ........................................... 78
8.6. Bankruptcy Proceedings ........................................................... 79
8.7. Sale and Leaseback ............................................................... 79
8.8. Transactions with Affiliates ..................................................... 79
8.9. Issuance of Additional Capital Stock by Subsidiary Guarantors .................... 79
8.10. Hedging Agreements ............................................................... 79
8.11. Restricted Payments .............................................................. 80
8.12. Unencumbered Assets Coverage Ratio ............................................... 81
8.13. Fixed Charge Coverage Ratio ...................................................... 81
8.14. Minimum Tangible Net Worth ....................................................... 81
8.15. Maximum Total Indebtedness ....................................................... 81
8.16. Liabilities to Assets Ratio ...................................................... 81
8.17. Maximum Book Value of Ancillary Assets ........................................... 81
9. DEFAULT ............................................................................... 82
9.1. Events of Default ................................................................ 82
10. THE AGENT ............................................................................. 85
10.1. Appointment ...................................................................... 85
10.2. Delegation of Duties ............................................................. 86
10.3. Exculpatory Provisions ........................................................... 86
10.4. Reliance by Administrative Agent ................................................. 86
10.5. Notice of Default ................................................................ 87
10.6. Non-Reliance on Administrative Agent and Other Lenders ........................... 87
10.7. Indemnification .................................................................. 88
10.8. Administrative Agent in Its Individual Capacity .................................. 88
10.9. Successor Administrative Agent ................................................... 88
11. OTHER PROVISIONS ...................................................................... 90
11.1. Amendments and Waivers ........................................................... 90
11.2. Notices .......................................................................... 91
11.3. No Waiver; Cumulative Remedies ................................................... 92
11.4. Survival of Representations and Warranties ....................................... 92
11.5. Payment of Expenses and Taxes .................................................... 93
11.6. Lending Offices .................................................................. 94
11.7. Successors and Assigns ........................................................... 94
11.8. Designated Lender ................................................................ 97
11.9. Counterparts ..................................................................... 97
11.10. Adjustments; Set-off ............................................................. 98
11.11. Lenders' Representations ......................................................... 99
11.12. Indemnity ........................................................................ 99
11.13. Governing Law ....................................................................100
11.14. Headings Descriptive .............................................................100
11.15. Severability .....................................................................100
11.16. Integration ......................................................................100
11.17. Consent to Jurisdiction ..........................................................100
11.18. Service of Process ...............................................................101
11.19. No Limitation on Service or Suit .................................................101
11.20. WAIVER OF TRIAL BY JURY ..........................................................101
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11.21. Termination ......................................................................102
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FACILITY II
LIST OF EXHIBITS AND SCHEDULES
EXHIBITS:
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Exhibit A - Assignment and Assumption
Exhibit B - Commitment Amounts
Exhibit C - Competitive Bid Borrowing Request
Exhibit D - Compliance Certificate
Exhibit E - Conventional Borrowing Request
Exhibit F - Guaranty
Exhibit G - Swingline Borrowing Request
Exhibit H - Facility Note
Exhibit I - Swingline Note
Exhibit J - Secretary's Certificate (Borrower)
Exhibit K - Secretary's Certificate (Guarantor)
Exhibit L - Points for Legal Opinions
Exhibit M - Designation Agreement
Exhibit N - Form of Notice of Conversion
SCHEDULES:
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Schedule I - Domestic and Eurodollar Lending Offices
Schedule 4.4 - Subsidiaries (including Subsidiary Guarantors)
Schedule 4.5 - Litigation
Schedule 4.12 - Plans
Schedule 4.21 - Rent Roll and List of Unencumbered Assets
Schedule 4.22 - Year 2000 Remediation
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FACILITY II
CREDIT AGREEMENT, dated as of November 17, 1999, by and among NEW PLAN
EXCEL REALTY TRUST, INC., a Maryland corporation (the "Borrower"), each lender
party hereto or which becomes a "Lender" or a "Designated Lender" pursuant to
the provisions of Section 11.7 or 11.8, respectively (each a "Lender" and,
collectively, the "Lenders"), THE BANK OF NEW YORK, as administrative agent (in
such capacity, the "Administrative Agent"), and BANK ONE, NA and BANKBOSTON,
N.A. (each a "Co-Documentation Agent" and, collectively, the "Co-Documentation
Agents").
1. DEFINITIONS
1.1. Defined Terms.
As used in this Agreement, terms defined in the preamble have
the meanings therein indicated, and the following terms have the following
meanings:
"ABR Advances": the Loans (or any portions thereof) at such
time as they (or such portions) are made and/or being maintained at a rate of
interest based upon the Alternate Base Rate.
"Accountants": PricewaterhouseCoopers LLP, or after the date
hereof, any of: Xxxxxx Xxxxxxxx LLP; Deloitte & Touche LLP; Ernst & Young LLP;
KPMG LLP; or any successor to any of the foregoing, or such other firm of
certified public accountants of recognized national standing selected by the
Borrower and satisfactory to the Administrative Agent.
"Adjusted Net Operating Income": for any period, the aggregate
amount of the Net Operating Income from each Unencumbered Asset during such
period, less the Capital Expense Reserve for such Unencumbered Asset during
such period.
"Advance": an ABR Advance, a Eurodollar Advance or a
Competitive Bid Advance, as the case may be.
"Affected Advance": as defined in Section 2.12.
"Affected Principal Amount": in the event that (i) the
Borrower shall fail for any reason to borrow or convert after it shall have
notified the Administrative Agent of its intent to do so in any instance in
which it shall have requested a Eurodollar Advance pursuant to Sections 2.3 or
2.10 or a Swingline Loan pursuant to Section 2.8, or shall have accepted one or
more offers of Competitive Bid Advances under Section 2.4, an amount equal to
the principal amount of such Eurodollar Advance,
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Swingline Loan or Competitive Bid Advance; (ii) a Eurodollar Advance, Swingline
Loan or Competitive Bid Advance shall terminate for any reason prior to the last
day of the Interest Period applicable thereto, an amount equal to the principal
amount of such Eurodollar Advance, Swingline Loan or Competitive Bid Advance; or
(iii) the Borrower shall prepay or repay all or any part of the principal amount
of a Eurodollar Advance, Swingline Loan or Competitive Bid Advance prior to the
last day of the Interest Period applicable thereto (including, without
limitation, any mandatory prepayment or a prepayment resulting from acceleration
or illegality), an amount equal to the principal amount of such Eurodollar
Advance, Swingline Loan or Competitive Bid Advance so prepaid or repaid.
"Affiliate": as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, control of a
Person shall mean the power, direct or indirect, (i) to vote 10% or more of the
securities having ordinary voting power for the election of directors of such
Person or (ii) to direct or cause the direction of the management and policies
of such Person, whether by contract or otherwise.
"Agreement": this Credit Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"Alternate Base Rate": on any date, a rate of interest per
annum equal to the higher of (i) the Federal Funds Rate in effect on such date
plus 1/2 of 1% or (ii) the BNY Rate in effect on such date.
"Ancillary Assets": at any time, all Real Property of the
Borrower and its Subsidiaries, or in which the Borrower or any Subsidiary of
the Borrower has an interest (either directly or indirectly), and which is (i)
a Development Asset, (ii) a mortgage, or (iii) any other Real Property other
than an open air shopping center (including single tenant retail properties) or
a residential apartment building or residential apartment community (and
appurtenant amenities).
"Applicable Facility Fee Percentage": at all times during which the
applicable Pricing Level set forth below is in effect, a rate per annum equal
to the following applicable percentage amount corresponding to such Pricing
Level:
Pricing Level Applicable Facility Fee Percentage
------------- ----------------------------------
Pricing Level I 0.125%
Pricing Level II 0.175%
Pricing Level III 0.175%
Pricing Level IV 0.200%
Pricing Level V 0.250%
Pricing Level VI 0.300%
Pricing Level VII 0.400%.
Changes in the Applicable Facility Fee Percentage resulting
from a change in a Pricing Level shall become effective as of the opening of
business upon the date of
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any change in the Borrower's Senior Debt Rating, as determined by S&P or
Xxxxx'x, as the case may be, which would affect the applicable Pricing Level.
"Applicable Lending Office": (i) in respect of any Lender, (A)
in the case of such Lender's ABR Advances and Competitive Bid Advances, its
Domestic Lending Office and (B) in the case of such Lender's Eurodollar
Advances, its Eurodollar Lending Office, and (ii) in respect of the Swingline
Lender and the Issuing Bank, the Domestic Lending Office of each thereof.
"Applicable Margin": with respect to the unpaid principal
balance of Eurodollar Advances, at all times during which the applicable
Pricing Level set forth below is in effect, and with respect to the
participation fee payable in respect of Letters of Credit pursuant to Section
3.1(b), the respective percentage set forth below next to such Pricing Level:
Pricing Level Applicable Margin
------------- -----------------
Pricing Level I 0.500%
Pricing Level II 0.575%
Pricing Level III 0.575%
Pricing Level IV 0.675%
Pricing Level V 0.875%
Pricing Level VI 0.950%
Pricing Level VII 1.100%.
Changes in the Applicable Margin resulting from a change in a
Pricing Level shall become effective as of the opening of business upon the
date of any change in the Senior Debt Rating of the Borrower, as determined by
S&P or Xxxxx'x, as the case may be, which would affect the applicable Pricing
Level.
"Assignment and Assumption Agreement": an assignment and
assumption agreement executed by an assignor and an assignee pursuant to which
such assignor assigns to such assignee all or any portion of such assignor's
Notes and Commitments, substantially in the form of Exhibit A.
"Assignment Fee": as defined in Section 11.7(b).
"Authorized Signatory": the chairman of the board, the
president, any vice president, the Chief Financial Officer or any other duly
authorized officer (acceptable to the Administrative Agent) of the Borrower.
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"Available Commitment Amount": on any day during the
Commitment Period, an amount equal to the Total Commitment Amount at such time
minus the total of all Competitive Bid Borrowings outstanding on such date.
"Benefited Lender": as defined in Section 11.10.
"BNY": The Bank of New York.
"BNY Rate": a rate of interest per annum equal to the rate of
interest publicly announced in New York City by BNY from time to time as its
prime commercial lending rate, such rate to be adjusted automatically (without
notice) on the effective date of any change in such publicly announced rate.
"Borrower's Interest": for any period, (i) with respect to
Unencumbered Assets owned by a DownREIT Partnership, a fraction, expressed as a
percentage, the numerator of which is the Net Operating Income of such
Unencumbered Assets for such period, less any distributions required to be made
to partners or members of such DownREIT Partnership, other than the Borrower and
its Subsidiaries, and the denominator of which is the Net Operating Income of
such Unencumbered Assets for such period, and (ii) with respect to any Ancillary
Asset, the percentage of profits and losses with respect thereto to which the
Borrower or its Subsidiaries, directly or indirectly, may be entitled to receive
for such period.
"Borrowing Date": any Business Day specified in a Borrowing
Request delivered pursuant to Section 2.3, 2.4 or 2.8, as the case may be, as a
date on which the Borrower requests the Lenders or the Swingline Lender to make
Loans.
"Borrowing Request": a Conventional Borrowing Request, a
Competitive Bid Borrowing Request, or a Swingline Borrowing Request, as the
case may be.
"Business Day": for all purposes other than as set forth in
clause (ii) below, (i) any day other than a Saturday, a Sunday or a day on
which commercial banks located in New York City are authorized or required by
law or other governmental action to close and (ii) with respect to all notices
and determinations in connection with, and payments of principal and interest
on, Eurodollar Advances, any day which is a Business Day described in clause
(i) above and which is also a day on which dealings in foreign currency and
exchange and Eurodollar funding between banks may be carried on in London,
England.
"Capital Leases": leases which have been, or under GAAP are
required to be, capitalized.
"Capital Expense Reserve": during any period, (i) with
respect to each Unencumbered Asset other than a residential apartment building
or residential apartment
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community, an amount equal to (A) a per annum rate of $.20 times (B) the total
Net Rentable Area of such Unencumbered Asset, and (ii) with respect to each
Unencumbered Asset that is a residential apartment building or residential
apartment community, an amount equal to (A) $150 times (B) the number of
apartment units in such residential apartment building or community (in each
case whether or not such reserves are actually established by the Borrower).
"Change of Control": the occurrence of any one of the
following events:
(a) any Person or Persons acting as a group shall acquire
direct or indirect ownership of 30% or more of Borrower's common Stock; or
(b) during any twelve month period on or after the
Effective Date, individuals who at the beginning of such period constituted the
Board of Directors of the Borrower (together with any new directors whose
election by the Board of Directors or whose nomination for election by the
shareholders of the Borrower was approved by a vote of at least a majority of
the members of the Board of Directors then in office who either were members of
the Board of Directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the members of the Board of Directors then in office;
or
(c) there occurs a change of control of the Borrower of a
nature that would be required to be reported in response to Item 1a of Form 8-K
filed pursuant to Section 13 or 15 under the Securities Exchange Act of 1934,
or in any other filing by the Borrower with the Securities and Exchange
Commission; or
(d) the Borrower consolidates with, is acquired by, or
merges into or with any Person (other than a merger permitted by Section 8.2).
"Chief Financial Officer": at any time, the chief financial
officer of the Borrower, or if the Borrower does not have a chief financial
officer at such time, the officer designated by the Borrower as its principal
financial officer or such other officer of the Borrower that is acceptable to
the Administrative Agent.
"Code": the Internal Revenue Code of 1986, as the same may be
amended from time to time, or any successor thereto, and the rules and
regulations issued thereunder, as from time to time in effect.
"Commitment": in respect of any Lender, such Lender's
undertaking during the Commitment Period to make Revolving Credit Loans and to
acquire participations in Letters of Credit and Swingline Loans, subject to the
terms and conditions hereof, in an aggregate outstanding principal amount not
exceeding such Lender's Commitment Amount.
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"Commitment Amount": the amount set forth next to the name of
such Lender in Exhibit B under the heading "Commitments" as such Lender's
Commitment Amount, as the same may be reduced pursuant to Section 2.5.
"Commitment Percentage": on any day, and as to any Lender, the
quotient of (i) such Lender's Commitment Amount on such day, divided by (ii)
the Commitments of all Lenders on such day.
"Commitment Period:" the period from the Effective Date
through the day preceding the Revolving Credit Expiration Date.
"Competitive Bid Advance": the Revolving Credit Loans (or any
portions thereof) at such time as they (or such portions) consist of
Competitive Bid Borrowings as provided for in Section 2.4.
"Competitive Bid Borrowing": a borrowing pursuant to Section
2.4 consisting of simultaneous Competitive Bid Advances from each Lender whose
offer to make a Competitive Bid Advance as part of such borrowing has been
accepted by the Borrower under the auction bidding procedure set forth in
Section 2.4.
"Competitive Bid Borrowing Request": a borrowing request in
the form of Exhibit C.
"Competitive Bid Ceiling": at any time, an amount equal to 50%
of the Total Commitment Amount at such time.
"Compliance Certificate": a certificate substantially in the
form of Exhibit D.
"Consolidated": the Borrower and its Subsidiaries which are
consolidated for financial reporting purposes.
"Consolidated EBITDA": for any period, net income for such
period of the Borrower and its Subsidiaries, determined on a Consolidated basis
in accordance with GAAP, plus, without duplication and to the extent deducted
in determining such net income, the sum of (i) Consolidated Interest Expense
for such period, (ii) the aggregate amount of any taxes paid during such
period, (iii) the aggregate amount attributable to depreciation and
amortization for such period, (iv) the aggregate amount of extraordinary
charges during such period and (v) the aggregate amount of non-cash expenses
during such period, and minus, without duplication and to the extent added in
determining such net income for such period, the aggregate amount of
extraordinary gains during such period.
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"Consolidated Fixed Charges": during any period, the sum of
each of the following with respect to the Borrower and its Subsidiaries
(without duplication), determined on a Consolidated basis in accordance with
GAAP: (i) the aggregate amount of all interest expense, both expensed and
capitalized (including Consolidated Interest Expense) for such period, (ii) the
aggregate of all scheduled principal amounts that become payable during such
period in respect of any Indebtedness of the Borrower or its Subsidiaries
(excluding balloon payments at maturity) and (iii) the aggregate amount of all
cash dividends paid during such period in respect of preferred stock of the
Borrower or its Subsidiaries.
"Consolidated Interest Expense": for any period, interest and
fees accrued, accreted or paid by the Borrower and its Subsidiaries during such
period in respect of Consolidated Total Indebtedness, determined in accordance
with GAAP, including (a) the amortization of debt discounts to the extent
included in interest expense in accordance with GAAP, (b) the amortization of
all fees (including fees with respect to interest rate cap agreements or other
agreements or arrangements entered into by the Borrower or any of its
Subsidiaries designed to protect the Borrower or such Subsidiaries, as
applicable, against fluctuations in interest rates) payable in connection with
the incurrence of any Indebtedness to the extent included in interest expense
in accordance with GAAP and (c) the portion of any rents payable under capital
leases allocable to interest expense in accordance with GAAP.
"Consolidated Total Indebtedness": as of any date, the
aggregate principal amount of all Indebtedness of the Borrower and its
Subsidiaries determined on a Consolidated basis in accordance with GAAP, plus,
if not otherwise required to be reflected in the Borrower's Consolidated
balance sheet (and without duplication) (i) Contingent Obligations of the
Borrower and its Subsidiaries on such date which are required in accordance
with GAAP to be disclosed in a footnote to any such balance sheet, and (ii) any
guarantee by the Borrower of any Indebtedness of an unconsolidated Subsidiary
or joint venture in which the Borrower is a direct or indirect investor (to the
full extent of the amount of such guaranteed Indebtedness on such date).
"Contingent Obligation": as to any Person, any obligation of
such Person guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations ("Primary Obligations") of any other Person (the
"Primary Obligor") in any manner, whether directly or indirectly, and whether
arising from partnership or keep-well agreements, including, without
limitation, any obligation of such Person, whether contingent or not contingent
(a) to purchase any such Primary Obligation or any Property constituting direct
or indirect security therefor, (b) to advance or supply funds (i) for the
purchase or payment of any such Primary Obligation or (ii) to maintain working
capital or equity capital of the Primary Obligor or otherwise to maintain net
worth, solvency or other financial statement condition of the Primary Obligor,
(c) to purchase Property, securities or services primarily for the purpose of
assuring the beneficiary of any such
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Primary Obligation of the ability of the Primary Obligor to make payment of such
Primary Obligation or (d) otherwise to assure, protect from loss or hold
harmless the beneficiary of such Primary Obligation against loss in respect
thereof; provided, however, that the term Contingent Obligation shall not
include the endorsement of instruments for deposit or collection in the ordinary
course of business. The term Contingent Obligation shall also include the
liability of a general partner in respect of the liabilities of the partnership
in which it is a general partner. The amount of any Contingent Obligation of a
Person shall be deemed to be an amount equal to the stated or determinable
amount of the Primary Obligation in respect of which such Contingent Obligation
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by such Person in good faith.
"Conventional Advance": an ABR Advance and/or a Eurodollar
Advance.
"Conventional Borrowing Request": a borrowing request in the
form of Exhibit E.
"Conversion Date": the date on which a Eurodollar Advance is
converted to an ABR Advance, or the date on which an ABR Advance is converted
to a Eurodollar Advance, or the date on which a Eurodollar Advance is converted
to a new Eurodollar Advance, all in accordance with Section 2.10.
"Credit Party": the Administrative Agent, the Lead Arranger,
the Co-Documentation Agents, the Issuing Bank, the Swingline Lender, each
Lender and their successors and assigns.
"Default": any event or condition which constitutes an Event
of Default or which, with the giving of notice, the lapse of time, or any other
condition, would, unless cured or waived, become an Event of Default.
"Defaulting Lender": at any time, any Lender that, at such
time, (i) has failed to comply with any of its obligations to make a Loan, fund
its share of any LC Disbursement or acquire a participation in any Swingline
Loan as required pursuant to Section 2.3, 2.4, 2.8 or 2.9 of this Agreement,
(ii) has failed to pay to the Administrative Agent or any Lender an amount owed
by such Lender pursuant to the terms of this Agreement or any of the other Loan
Documents, or (iii) has advised the Administrative Agent that it does not
intend to comply with its obligations under Section 2.3, 2.4, 2.8 or 2.9 by
reason of having been deemed insolvent or having become subject to a bankruptcy
or insolvency proceeding.
"Designated Lender": a special purpose corporation that is
engaged in making, purchasing, or otherwise investing in commercial loans in
the ordinary course of its business and that issues (or the parent of which
issues) commercial paper rated at least
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"Prime-1" (or the then equivalent grade) by Xxxxx'x or "A-1" (or the then
equivalent grade) by S&P that, in either case, (i) is organized under the laws
of the United States or any state thereof, (ii) shall have become a party to
this Agreement pursuant to Section 11.8 for the sole purposes of funding
Competitive Bid Advances on behalf of a Designating Lender and (iii) is not
otherwise a Lender.
"Designating Lender": as defined in Section 11.8.
"Designation Agreement": a designation agreement in
substantially the form of Exhibit M hereto entered into between a Lender (other
than a Designated Lender) and a Designated Lender, and accepted by the
Administrative Agent.
"Development Asset": any Property of the Borrower or its
Subsidiaries, or in which the Borrower or any of its Subsidiaries has an
interest (either directly or indirectly) (i) which is new construction, or
which is undergoing an expansion which will increase the Net Rentable Area of
such Property by 20,000 square feet or more (provided that with respect to any
Property which is under expansion, if the balance thereof is a fully
integrated, rentable property, then only the portion of such Property that is
under expansion shall be a Development Asset), and (ii) for which a certificate
of occupancy, whether temporary or permanent, or the functional equivalent
thereof, has not been issued with respect to such construction or expansion.
Notwithstanding the foregoing, any such new construction or expansion which
shall have been a Development Asset under the criteria of this definition shall
no longer be a Development Asset upon such time as (A) the same is an
income-producing Property in operating condition, and (B) at least 70% of the
Net Rentable Area (determined on an "as completed" basis) of such construction
or expansion is initially leased to tenants who have taken possession thereof.
"Dollars" and "$": lawful currency of the United States of
America.
"Domestic Lending Office": in respect of any Lender, the
Swingline Lender and the Issuing Bank, initially, the office or offices of such
Lender, the Swingline Lender and the Issuing Bank designated as such on
Schedule I; thereafter, such other office of such Lender, the Swingline Lender
and the Issuing Bank through which it shall be making or maintaining ABR
Advances or Competitive Bid Advances, making Swingline Loans or issuing Letters
of Credit, as reported by such Lender, the Swingline Lender or the Issuing Bank
to the Administrative Agent and the Borrower.
"DownREIT Partnership": Excel Realty Partners, L.P., E. H.
Properties, L.P. and any other partnership or limited liability company
hereafter created by the Borrower for the purpose of acquiring assets
qualifying as "real estate assets" under Section 856(c) of the Code through the
issuance of partnership or limited liability company units in such partnership
or limited liability company to third parties, provided that, in the case of
each such entity (including Excel Realty Partners, L.P. and E.H.
- 9 -
16
Properties, L.P.) (i) the Borrower or a wholly owned Subsidiary of the Borrower
is the sole general partner or managing member of such partnership or limited
liability company, as the case may be, and (ii) the Borrower or its wholly owned
Subsidiary shall be entitled to receive not less than 99% of the net income and
gains before depreciation, if any, from such partnership or limited liability
company after the limited partners or non-managing members of such partnership
or limited liability company receive a stipulated distribution. Any partnership
or limited liability company created after the Effective Date must be approved
by the Administrative Agent as a "DownREIT Partnership" for purposes of being
included in this definition.
"Effective Date": the date on which the conditions specified
in Section 5 are satisfied.
"Environmental Laws": any and all federal, state and local
laws relating to the environment, the use, storage, transporting,
manufacturing, handling, discharge, disposal or recycling of hazardous
substances, materials or pollutants or industrial hygiene and including,
without limitation, (i) the Comprehensive Environmental Response, Compensation
and Liability Act, as amended, 42 USCA Section 9601 et seq.; (ii) the Resource
Conservation and Recovery Act of 1976, as amended, 42 USCA Section 6901 et
seq.; (iii) the Toxic Substance Control Act, as amended, 15 USCA Section 2601
et seq.; (iv) the Water Pollution Control Act, as amended, 33 USCA Section 1251
et seq.; (v) the Clean Air Act, as amended, 42 USCA Section 7401 et seq.; (vi)
the Hazardous Material Transportation Act, as amended, 49 USCA Section 1801 et
seq. and (viii) all rules, regulations, judgments, decrees, injunctions and
restrictions thereunder and any analogous state law.
"Environmental Risk Property": any Real Property of the
Borrower, a Subsidiary Guarantor or a DownREIT Partnership in respect of which,
at any time:
(i) Hazardous Substances are (A) generated or
manufactured on, transported to or from, treated at, stored at or
discharged from such Real Property in violation of any Environmental
Laws; (B) discharged into subsurface waters under such Real Property
in violation of any Environmental Laws; or (C) discharged from such
Real Property on or into property or waters (including subsurface
waters) adjacent to such Real Property in violation of any
Environmental Laws, and any of the foregoing events in (A), (B) or (C)
has an Adverse Environmental Impact; or
(ii) there exists with respect to such Real
Property (A) a claim, demand, suit, action, proceeding, event,
condition, report, directive, lien, violation, or non-compliance
concerning any liability (including, without limitation, potential
liability for enforcement, investigatory costs, cleanup costs,
government response costs, removal costs, remedial costs, natural
resources damages, property damages, personal injuries or penalties)
arising in connection
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17
with: (x) any non-compliance with or violation of the requirements of
any applicable Environmental Laws, or (y) the presence of any Hazardous
Substance on such Real Property or the release of any Hazardous
Substance into the environment from such Real Property, or (B) any
actual liability in connection with the presence of any Hazardous
Substance on such Real Property or the release of any Hazardous
Substance into the environment from such Real Property, and any of the
foregoing events in (A) or (B) has an Adverse Environmental Impact.
For purposes of this definition, the term "Adverse
Environmental Impact" shall mean any event described in clauses (A),
(B) or (C) of paragraph (i) above or clauses (A) or (B) of paragraph
(ii) above which could reasonably be expected to have a material
adverse effect on (1) the value of such Real Property, (2) the
marketability of such Real Property, or (3) the ability to finance or
refinance such Real Property.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the rules and regulations issued thereunder,
as from time to time in effect.
"ERISA Affiliate": any Person which is a member of any group
of organizations (i) described in Section 414(b) or (c) of the Code of which
the Borrower is a member, or (ii) solely for purposes of potential liability
under Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code and the
Lien created under Section 302(f) of ERISA and Section 412(n) of the Code,
described in Section 414(m) or (o) of the Code of which the Borrower is a
member.
"ERISA Liabilities": without duplication, the aggregate of all
unfunded vested benefits under all Plans and all potential withdrawal
liabilities under all Multiemployer Plans.
"Eurodollar Advance": collectively, the Loans (or any portions
thereof), other than Competitive Bid Advances, at such time as they (or such
portions) are made and/or being maintained at a rate of interest based upon a
particular Eurodollar Rate; and "Eurodollar Advances" shall mean all such
Eurodollar Advances in the aggregate.
"Eurodollar Lending Office": in respect of any Lender,
initially, the office, branch or affiliate of such Lender designated as such on
Schedule I (or, if no such office branch or affiliate is specified, its
Domestic Lending Office); thereafter, such other office, branch or affiliate of
such Lender through which it shall be making or maintaining Eurodollar Advances,
as reported by such Lender to the Administrative Agent and the Borrower.
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"Eurodollar Rate": with respect to each Eurodollar Advance and
as determined by the Administrative Agent, the rate of interest per annum
(rounded, if necessary, to the nearest 1/100 of 1% or, if there is no nearest
1/100 of 1%, then to the next higher 1/100 of 1%) equal to a fraction, the
numerator of which is the rate per annum quoted by BNY at approximately 12:00
P.M. (or as soon thereafter as practicable) two Eurodollar Business Days prior
to the first day of such Interest Period to leading banks in the interbank
eurodollar market as the rate at which BNY is offering Dollar deposits in an
amount approximately equal to its Commitment Percentage of such Eurodollar
Advance and having a period to maturity approximately equal to the Interest
Period applicable to such Eurodollar Advance, and the denominator of which is
an amount equal to 1.00 minus the aggregate of the then stated maximum rates
during such Interest Period of all reserve requirements (including marginal,
emergency, supplemental and special reserves), expressed as a decimal,
established by the Board of Governors of the Federal Reserve System and any
other banking authority to which BNY and other major United States money center
banks are subject, in respect of eurocurrency liabilities.
"Event of Default": any of the events specified in Section 9,
provided that any requirement for the giving of notice, the lapse of time or
any other condition specified in Section 9 has been satisfied.
"Existing Credit Agreements" shall mean that (i) certain
Revolving Credit Agreement dated as of November 21, 1997 among New Plan Realty
Trust (as predecessor in interest to the Borrower), The Bank of New York, as
Administrative Agent, and the lenders signatory thereto, as the same has been
amended and assumed by the Borrower, (ii) that certain First Amended and
Restated Revolving Credit Agreement, dated as of March 31, 1998, among the
Borrower (successor by merger to Excel Realty Trust, Inc.), BankBoston, N.A.,
as Agent, and the lenders signatory thereto, as the same has been amended, and
(iii) that certain Term Loan Agreement, dated July 13, 1999, among the
Borrower, The Bank of New York, as agent, and the lenders party thereto.
"Facility Exposure": with respect to any Lender at any time,
the sum of the (i) aggregate outstanding principal amount of such Lender's
Revolving Credit Loans, (ii) LC Exposure and (iii) Swingline Exposure at such
time.
"Facility Note:" as defined in Section 2.2(a).
"Facility Fee": as defined in Section 3.1.
"Federal Funds Rate": for any day, a rate per annum (expressed
as a decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%),
equal to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers on such day, as published
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by the Federal Reserve Bank of New York on the Business Day next succeeding such
day, provided that (i) if the day for which such rate is to be determined is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (ii) if such rate is not so published for any day,
the Federal Funds Rate for such day shall be the average of the quotations for
such day on such transactions received by BNY as determined by BNY and reported
to the Administrative Agent.
"Financial Statements": as defined in Section 4.13.
"Fixed Charge Coverage Ratio": for any period, the ratio of
(i) Consolidated EBITDA during such period to (ii) Consolidated Fixed Charges
during such period.
"Fixed Rate Advance": A Eurodollar Advance, a Competitive Bid
Advance or a Swingline Loan.
"Funds from Operations": With respect to any Person for any
fiscal period, the sum of (i) the net income of such Person for such fiscal
period (computed in accordance with GAAP), excluding gains (or losses) from
debt restructuring and sales of property, (ii) depreciation and amortization,
and (iii) other non-cash items, and after adjustments for unconsolidated
partnerships and joint ventures. Adjustments for unconsolidated partnerships
and joint ventures will be calculated to reflect funds from operations on the
same basis.
"GAAP": generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statement by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination, consistently applied.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government and any court or arbitrator.
"Ground Lease": a ground lease in favor of the Borrower, a
wholly owned Subsidiary or a DownREIT Partnership which has an unexpired term
of 30 years or more (inclusive of any tenant-controlled renewal options) and
which includes within its terms those rights customarily required by mortgagees
making a loan secured by the interest of the holder of the leasehold estate
demised pursuant to such ground lease.
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20
"Guaranty": collectively, (i) a Guaranty, substantially in the
form of Exhibit F executed by each of the Subsidiary Guarantors identified on
Schedule 4.4 and delivered to the Administrative Agent for the benefit of the
Lenders on or prior to the Effective Date, and (ii) each additional Guaranty
substantially in the form of Exhibit F executed by each Required Additional
Guarantor and delivered to the Administrative Agent for the benefit of the
Lenders after the Effective Date.
"Hazardous Substance": any hazardous or toxic substance,
material or waste, including, but not limited to, (i) those substances,
materials, and wastes listed in the United States Department of Transportation
Hazardous Materials Table (49 CFR 172.101) or by the Environmental Protection
Agency as hazardous substances (40 CFR Part 302) and amendments thereto and
replacements therefor and (ii) any substance, pollutant or material defined as,
or designated in, any Environmental Law as a "hazardous substance," "toxic
substance," "hazardous material," "hazardous waste," "restricted hazardous
waste," "pollutant," "toxic pollutant" or words of similar import.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price
hedging arrangement.
"Highest Lawful Rate": with respect to any Lender and the
Swingline Lender, the maximum rate of interest, if any, that at any time or
from time to time may be contracted for, taken, charged or received by such
Lender or the Swingline Lender on its Note or which may be owing to such Lender
or the Swingline Lender pursuant to this Agreement under the laws applicable to
such Lender or the Swingline Lender and this Agreement.
"Indebtedness": as to any Person, at a particular time, all
items which constitute, without duplication, (a) indebtedness for borrowed
money (including, without limitation, indebtedness under this Agreement and the
Notes) or the deferred purchase price of Property (other than trade payables
incurred in the ordinary course of business), (b) indebtedness evidenced by
notes, bonds, debentures or similar instruments, (c) obligations with respect
to any conditional sale or title retention agreement, (d) indebtedness arising
under acceptance facilities and the amount available to be drawn under all
letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder to the extent such Person shall not
have reimbursed the issuer in respect of the issuer's payment of such drafts,
(e) all liabilities secured by any Lien on any Property owned by such Person
even though such Person has not assumed or otherwise become liable for the
payment thereof (other than carriers', warehousemen's, mechanics', repairmen's
or other like non-consensual statutory Liens arising in the ordinary course of
business), (f) obligations under Capital Leases, (g) Contingent Obligations and
(h) ERISA Liabilities.
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21
"Indemnified Person": as defined in Section 11.12.
"Intellectual Property": all copyrights, trademarks, patents,
trade names and service names.
"Interest Payment Date": (i) as to any ABR Advance, the first
day of each month commencing on the first such day to occur after such ABR
Advance is made or any Eurodollar Advance is converted to an ABR Advance, (ii)
as to any Eurodollar Advance in respect of which the Borrower has selected an
Interest Period of one, two or three months, the last day of such Interest
Period, (iii) as to any Eurodollar Advance in respect of which the Borrower has
selected an Interest Period of six months, the day which is three months after
the first day of such Interest Period and the last day of such Interest Period,
(iv) as to any Competitive Bid Advance in respect of which the Borrower has
selected an Interest Period of 90 days or less, the last day of the Interest
Period applicable thereto, (v) as to any Competitive Bid Advance in respect of
which the Borrower has selected an Interest Period of more than 90 days, the
day which is 90 days after the first day of such Interest Period and the last
day of such Interest Period, and (vi) as to any Swingline Loan, the last day of
the Interest Period applicable to such Swingline Loan.
"Interest Period": (i) with respect to any Eurodollar Advance
requested by the Borrower, the period commencing on, as the case may be, the
Borrowing Date or Conversion Date with respect to such Eurodollar Advance and
ending one, two, three or six months thereafter, as selected by the Borrower in
its irrevocable Borrowing Request as provided in Section 2.3 or its irrevocable
notice of conversion as provided in Section 2.10, (ii) with respect to any
Competitive Bid Advance, the period commencing on the Borrowing Date with
respect to such Competitive Bid Advance and ending on the maturity date thereof
specified in the Competitive Bid Borrowing Request with respect thereto given
pursuant to Section 2.4, and (iii) with respect to any Swingline Loan, the
period commencing on the Borrowing Date with respect to such Swingline Loan and
ending on the maturity date thereof specified in the Swingline Borrowing
Request given pursuant to Section 2.8(c); provided, however, that all of the
foregoing provisions relating to Interest Periods are subject to the following:
(a) if any Interest Period pertaining to a Eurodollar
Advance would otherwise end on a day which is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on the immediately
preceding Business Day;
(b) if, with respect to the borrowing of any Loan as a
Eurodollar Advance or the conversion of one Advance to another pursuant to
Section 2.10, the Borrower shall fail to give due notice as provided in Section
2.3 or 2.10, as the case may
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be, the Borrower shall be deemed to have elected that such Loan or Advance shall
be made as an ABR Advance;
(c) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month;
(d) no such Interest Period shall end after the last day
of the Commitment Period;
(e) the Borrower shall select Interest Periods so as not
to have more than six different Interest Periods outstanding at any one time
with respect to Eurodollar Advances and three different Interest Periods
outstanding at any one time with respect to Competitive Bid Advances;
(f) no Interest Period pertaining to a Competitive Bid
Advance shall be shorter than 7 days or longer than 180 days;
(g) no Interest Period pertaining to a Swingline Loan
shall be shorter than 7 days or longer than 30 days; and
(h) each Interest Period for a Competitive Bid Advance
and a Swingline Loan must commence and end on a Business Day.
"Investments": as defined in Section 8.3.
"Issuing Bank": BNY, in its capacity as issuer of Letters of
Credit.
"LC Disbursement": a payment made by the Issuing Bank pursuant
to a Letter of Credit.
"LC Exposure": at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by
or on behalf of the Borrower at such time. The LC Exposure of any Lender at
any time shall be its Commitment Percentage of the total LC Exposure at such
time.
"LC Sublimit": $10,000,000.00
"Lead Arranger": BNY Capital Markets, Inc.
"Letter of Credit": any letter of credit, and any successive
renewals thereof, issued or made pursuant to this Agreement.
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23
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit or preferential arrangement, encumbrance, lien (statutory or other), or
other security agreement or security interest of any kind or nature whatsoever,
including, without limitation, any conditional sale or other title retention
agreement and any capital or financing lease having substantially the same
economic effect as any of the foregoing.
"Loan" and "Loans": a Revolving Credit Loan (or Loans), a
Competitive Bid Borrowing (or Borrowings) or a Swingline Loan (or Loans), as
the case may be. All Loans shall be made in Dollars.
"Loan Documents": collectively, this Agreement, the Guaranty
(and each Guaranty subsequently delivered pursuant to Section 7.11) and the
Notes.
"Margin Stock": any "margin stock", as said term is defined in
Regulation U of the Board of Governors of the Federal Reserve System, as the
same may be amended or supplemented from time to time.
"Material Adverse Effect": a material adverse effect on (i)
the financial condition, operations, business, or Properties of (A) the
Borrower or (B) the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents or
(iii) the ability of the Administrative Agent and the Lenders to enforce the
Loan Documents.
"Maturity Date": (i) with respect to Revolving Credit Loans
made as Conventional Advances, the earlier of the Revolving Credit Termination
Date or the date on which the Notes shall become due and payable, whether by
acceleration or otherwise, (ii) with respect to Competitive Bid Borrowings, the
date each such Competitive Bid Borrowing is due in accordance with Section
2.4(f) or by acceleration, and (iii) with respect to each Swingline Loan, the
earlier of the last day of the Interest Period applicable to such Swingline
Loan or the date on which the Swingline Note shall become due and payable,
whether by acceleration or otherwise.
"Xxxxx'x": Xxxxx'x Investors Services, Inc.
"Multiemployer Plan": a plan defined as such Section 3(37) of
ERISA to which contributions have been made by the Borrower or any ERISA
Affiliate and which is covered by Title IV of ERISA.
"Net Operating Income": for any period, and with respect to
all assets which are Unencumbered Assets during such period, net-income for
such period, determined in accordance with GAAP, attributable to Unencumbered
Assets, plus depreciation and amortization, interest expense and any
extraordinary or non-recurring losses deducted in calculating such net income,
minus extraordinary or non-recurring
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24
gains and payments (including rent insurance proceeds and condemnation awards)
included in such net income, minus any portion of such net income attributable
to rents paid by any tenant which is an Affiliate of the Borrower, minus an
amount (but not less than zero) equal to the difference between (i) 3% of
Operating Income for such period, less (ii) management fees payable in respect
of such Unencumbered Assets during such period. For purposes of any calculation
of Net Operating Income, real estate taxes, ground rent and insurance, shall be
included only at their stabilized, recurring levels.
"Net Rentable Area": with respect to any Real Property, the
floor area of any buildings, structures or improvements thereof (expressed in
square feet) available for leasing to tenants, as determined in accordance with
the leases or site plans or leasing plans for such Real Property, or if such
leases or site plans do not set forth the floor area demised thereunder (or if
such Real Property is not subject to a lease), then as determined by the
Borrower in accordance with an industry-accepted protocol approved by the
Administrative Agent.
"Non-Recourse Exclusions": With respect to any Indebtedness of
any Person which is secured by one or more parcels of Real Property or
interests therein and which is not a general obligation of such Person, any
usual and customary exclusions from the non-recourse limitations governing such
Indebtedness, including, without limitation, exclusions for claims that (i) are
based on fraud, intentional misrepresentation or misapplication of funds, (ii)
result from intentional mismanagement of or waste at such Real Property, (iii)
arise from the presence of Hazardous Substances on such Real Property; or (iv)
are the result of any unpaid real estate taxes and assessments.
"Non-Recourse Indebtedness": At any time, Indebtedness of the
Borrower and of its Subsidiaries at such time which is secured by one or more
parcels of Real Property or interests therein and which is not a general
obligation of the Borrower or such Subsidiary, the holder of such Indebtedness
having recourse solely to the parcels of Real Property securing such
Indebtedness, the leases thereon and the rents and profits thereof (except for
recourse against the general credit of the Borrower or its Subsidiaries for any
Non-Recourse Exclusions), provided that in calculating the amount of
Non-Recourse Indebtedness at any time, the amount of any Non-Recourse
Exclusions which are the subject of a final judgment shall not be included in
Non-Recourse Indebtedness.
"Note" and "Notes": collectively, the Facility Notes and the
Swingline Note.
"Operating Property": Any Real Property which at any time (i)
is an income-producing property in operating condition and in respect of which
no material part thereof has been damaged by fire or other casualty (unless
such damage has been repaired) or condemned (unless such condemnation has been
restored), (ii) is a retail shopping center, residential apartment building,
office building or other operating
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Property, (iii) for which a certificate of occupancy, whether temporary or
permanent, or the functional equivalent thereof, has been issued for all
improvements comprising the same and are in full force and effect, and (iv) is
at least 60% occupied by tenants who have accepted the property and are paying
rent in accordance with the terms of their leases, and "Operating Properties"
means all such Operating Properties, collectively.
"Other Credit Agreement": that certain Credit Agreement of
even date herewith among the Borrower, the Administrative Agent, the
Co-Documentation Agents and the Lenders party thereto providing for a senior
364-day revolving credit facility in favor of the Borrower, as the same may be
amended from time to time.
"Participating Lender": defined in Section 2.4.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any Governmental Authority
succeeding to the functions thereof.
"Permitted Liens": Liens permitted to exist under Section 8.1.
"Person": an individual, a partnership, a corporation, a
business trust, a limited liability company, a joint stock company, a trust, an
unincorporated association, a joint venture, a Governmental Authority or any
other entity of whatever nature.
"Plan": any employee benefit or other plan established or
maintained by the Borrower or any ERISA Affiliate and which is covered by or
subject to the minimum funding standards of Title IV of ERISA, other than a
Multiemployer Plan.
"Pricing Level": one of the following seven pricing levels, as
applicable, provided that if the ratings by S&P and Xxxxx'x in any such Pricing
Level are split by more than one equivalent rating level, the operative rating
would be deemed to be one rating level higher than the lower of the two ratings,
and provided, further, that during any period that the Borrower has no Senior
Debt Rating, Pricing Level VII would be the applicable Pricing Level:
"Pricing Level I": the Pricing Level which would be
applicable for so long as the Senior Debt Rating is greater than or
equal to AA- by S&P or Aa3 by Xxxxx'x;
"Pricing Level II": the Pricing Level which would be
applicable for so long as the Senior Debt Rating is greater than or
equal to A by S&P or A2 by Xxxxx'x and Pricing Level I is not
applicable;
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00
"Xxxxxxx Xxxxx XXX": the Pricing Level which would be
applicable for so long as the Senior Debt Rating is greater than or
equal to A- by S&P or A3 by Xxxxx'x and Pricing Levels I and II are
not applicable;
"Pricing Level IV": the Pricing Level which would be
applicable for so long as the Senior Debt Rating is greater than or
equal to BBB+ by S&P or Baa1 by Xxxxx'x and Pricing Levels I, II and
III are not applicable;
"Pricing Level V": the Pricing Level which would be
applicable for so long as the Senior Debt Rating is equal to BBB by
S&P or Baa2 by Xxxxx'x and Pricing Levels I, II, III and IV are not
applicable;
"Pricing Level VI": the Pricing Level which would be
applicable for so long as the Senior Debt Rating is equal to BBB- by
S&P or Baa3 by Xxxxx'x and Pricing Levels I, II, III, IV and V are not
applicable; and
"Pricing Level VII": the Pricing Level which would be
applicable for so long as the Senior Debt Rating is less than or equal
to BB+ by S&P or Ba1 by Xxxxx'x and Pricing Levels I, II, III, IV, V
and VI are not applicable.
"Property": all types of real, personal, tangible, intangible
or mixed property.
"Proposed Bid Rate": as applied to any Remaining Interest
Period with respect to a Lender's Competitive Bid Advance, or the Swingline
Lender's Swingline Rate with respect to one or more Swingline Loans, the rate
per annum that such Lender or the Swingline Lender in good faith would have
quoted to the Borrower had the Borrower requested that such Lender or the
Swingline Lender offer to make a Competitive Bid Advance or Swingline Loan on
the first day of such Remaining Interest Period, assuming no Default or Event of
Default existed on such day and that the Borrower had the right to borrow
hereunder on such day; each such rate to be determined by such Lender or the
Swingline Lender, as the case may be, in good faith in its sole discretion.
"Rated Period": Any period during which S&P and Xxxxx'x are
maintaining a Senior Debt Rating and such Senior Debt Rating is at least BBB-
as determined by S&P, and at least Baa3, as determined by Xxxxx'x.
"Real Property": all real Property, and all interests in real
Property, owned, leased or held by the Borrower or any Subsidiary of the
Borrower.
"REIT": a Person qualifying as a real estate investment trust
under sections 856-859 of the Code and the regulations and rulings of the
Internal Revenue Service issued thereunder.
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"Remaining Interest Period": (i) in the event that the
Borrower shall fail for any reason to borrow a Loan in respect of which it
shall have requested a Eurodollar Advance or Swingline Loan or convert an
Advance to a Eurodollar Advance after it shall have notified the Administrative
Agent of its intent to do so pursuant to Section 2.3 or 2.10 or accepted one or
more offers of Competitive Bid Advances under Section 2.4, a period equal to
the Interest Period that the Borrower elected in respect of such Eurodollar
Advance, Swingline Loan or Competitive Bid Advance; or (ii) in the event that a
Eurodollar Advance or Competitive Bid Advance shall terminate for any reason
prior to the last day of the Interest Period applicable thereto, a period equal
to the remaining portion of such Interest Period if such Interest Period had
not been so terminated; or (iii) in the event that the Borrower shall prepay or
repay all or any part of the principal amount of a Eurodollar Advance,
Swingline Loan or Competitive Bid Advance (including, without limitation, any
mandatory prepayment or a prepayment resulting from acceleration or illegality)
prior to the last day of the Interest Period applicable thereto, or the
Swingline Rate in respect of any Swingline Loan shall have been converted to
the Alternate Base Rate pursuant to Section 2.11(a), a period equal to the
period from and including the date of such prepayment or repayment to but
excluding the last day of such Interest Period.
"Rent Roll": a schedule prepared by the Borrower from time to
time identifying (i) the Real Property owned by the Borrower or its
Subsidiaries and stating whether such items of Real Property are Unencumbered
Assets at such time, (ii) the annual base rent payable under each lease of Real
Property owned by the Borrower or any of its Subsidiaries, (iii) the
commencement and termination dates of the term of each such lease, (iv) any
renewal options with respect to such lease, (v) the Net Rentable Area of the
space demised under each such lease and (vi) such other information as the
Administrative Agent may reasonably require.
"Required Additional Guarantors": any Subsidiary required to
execute and deliver a Guaranty pursuant to Section 7.11.
"Required Lenders": means (a) so long as the Commitments
remain in effect (i) if no Loans are outstanding at such time or there are
Loans comprised of Conventional Advances or Swingline Loans and Competitive Bid
Advances, Lenders (other than Defaulting Lenders or Designated Lenders) having
Commitments equal to at least 51% of the Commitments of all Lenders at such
time; (ii) if Loans outstanding at such time are comprised of Conventional
Advances and/or Swingline Loans only, Lenders (other than Defaulting Lenders or
Designated Lenders) holding Notes having an unpaid principal balance equal to
at least 51% of the aggregate Loans then outstanding; and (iii) if Loans
outstanding at such time are comprised of Competitive Bid Advances only,
Lenders (other than Defaulting Lenders or Designated Lenders) having
Commitments equal to at least 51% of the Commitments of all Lenders at such
time (whether used or unused); and (b) if the Commitments have been terminated,
Lenders
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(other than Defaulting Lenders, but including Designated Lenders) whose Loans
have an unpaid principal balance equal to at least 51% of the aggregate Loans
then outstanding.
"Restricted Payment": as to any Person, any dividend or other
distribution by such Person (whether in cash, securities or other property)
with respect to any shares of any class of equity securities or beneficial
interests of such Person, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any such shares or beneficial interests or any option, warrant or other right to
acquire any such shares or beneficial interests.
"Revolving Credit Loan" and "Revolving Credit Loans": as
defined in Section 2.1.
"Revolving Credit Expiration Date": the earlier of the
Maturity Date with respect to the Revolving Credit Loans which are not
Competitive Bid Advances, or the Revolving Credit Termination Date.
"Revolving Credit Termination Date": November 17, 2002
"Senior Debt Rating": the senior unsecured
non-credit-enhanced debt rating of the Borrower as determined by S&P and/or
Xxxxx'x from time to time.
"Special Counsel": Xxxxx, Xxxxxx & Xxxxxx, LLP, special
counsel to BNY.
"S&P": Standard & Poor's Ratings Group.
"Stock": any and all shares, rights, interests,
participations, warrants, depositary receipts or other equivalents (however
designated) of corporate stock, including, without limitation, so-called
"phantom stock," preferred stock and common stock.
"Subsidiary": as to any Person, any corporation, association,
partnership, limited liability company, joint venture or other business entity
of which such Person, directly or indirectly, either (i) in respect of a
corporation, owns or controls more than 50% of the outstanding Stock having
ordinary voting power to elect a majority of the board of directors or similar
managing body, irrespective of whether a class or classes shall or might have
voting power by reason of the happening of any contingency, or (ii) in respect
of an association, partnership, limited liability company, joint venture or
other business entity, is entitled to share, either directly or indirectly
through an entity described in clause (i) above, in more than 50% of the
profits and losses, however determined.
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"Subsidiary Guarantor" means the Subsidiaries of the Borrower
listed on Schedule 4.4 and designated thereof as a Subsidiary Guarantor, each
Required Additional Guarantor, and their successors and assigns; and
"Subsidiary Guarantors" shall mean all such guarantors, collectively.
"Swingline Borrowing Request": a borrowing request in the form
of Exhibit G.
"Swingline Commitment" means, with respect to the Swingline
Lender, the commitment of the Swingline Lender to make Swingline Loans
hereunder, provided that the outstanding amount of Swingline Loans shall not at
any time exceed the Swingline Sublimit.
"Swingline Exposure": at any time, the aggregate principal
amount of all Swingline Loans advanced pursuant to Section 2.8 outstanding at
such time. The Swingline Exposure of each Lender at any time shall be its pro
rata percentage thereof based on its Commitment Percentage of the total of such
Swingline Loans at such time.
"Swingline Lender" means BNY in its capacity as lender of
Swingline Loans hereunder.
"Swingline Loan": a Revolving Credit Loan made by the
Swingline Lender pursuant to Section 2.8.
"Swingline Note": as defined in Section 2.8(b).
"Swingline Rate" means, with respect to each Swingline Loan,
the rate per annum proposed by the Borrower with respect to any requested
Swingline Loan and agreed to by the Swingline Lender in accordance with Section
2.8(c) as the interest rate applicable to such Swingline Loan.
"Swingline Sublimit": $25,000,000.00.
"Tangible Net Worth": as of any date of determination thereof
with respect to the Borrower and its Subsidiaries, determined on a Consolidated
basis in accordance with GAAP, the remainder of (i) the amounts which would, in
conformity with GAAP, be included under "shareholder's equity" (or any like
caption) on a Consolidated balance sheet of the Borrower and its Subsidiaries
as at such date, minus (ii) the net book value of all assets of the Borrower
and its Subsidiaries on a Consolidated basis (to the extent reflected in the
Consolidated balance sheet of the Borrower at such date) which would be treated
as intangibles under GAAP, including, without limitation, goodwill (whether
representing the excess cost over book value of assets acquired or otherwise),
patents, trademarks, trade names, franchises, copyrights, licenses, service
marks, rights with respect to the foregoing and deferred charges (including,
without
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limitation, unamortized debt discount and expense, organization costs and
research and development costs).
"Taxes": any present or future income, stamp or other taxes,
levies, imposts, duties, fees, assessments, deductions, withholdings, or other
charges of whatever nature, now or hereafter imposed, levied, collected,
withheld, or assessed by any Governmental Authority.
"Total Capital": on any date, the sum of, without duplication,
(i) all Indebtedness of the Borrower and its Subsidiaries on such date which,
in accordance with GAAP, is considered long term debt of the Borrower and its
Subsidiaries, (ii) the amounts which would, in conformity with GAAP, be
included under "shareholder's equity" (or any like caption) on a Consolidated
balance sheet of the Borrower and its Subsidiaries as at such date, (iii) the
value of all issued and outstanding preferred stock of the Borrower as set
forth on the balance sheet of the Borrower as at such date, and (iv) all Loans
outstanding on such date.
"Total Commitment Amount": on any day during the Commitment
Period, the sum of the Commitment Amounts of all Lenders on such day.
"Unencumbered Asset": Any Operating Property which at any time
(i) is wholly owned in fee simple by the Borrower, a wholly owned Subsidiary of
the Borrower or a DownREIT Partnership (or is the subject of a Ground Lease),
(ii) is free and clear of all Liens (other than Liens permitted under clauses
(i), (ii), (iii), (iv), (v) (vi), (viii) and (ix) of Section 8.1), (iii) does
not have applicable to it (or to any such Ground Lease) any restriction on the
pledge, transfer, mortgage or assignment of such Operating Property or Ground
Lease (including any restriction imposed by the organizational documents of any
such Subsidiary or DownREIT Partnership), (iv) if owned by any such Subsidiary
or DownREIT Partnership, the Stock, partnership interests or membership
interests, as the case may be, of such Subsidiary or DownREIT Partnership that
are owned by the Borrower or any Subsidiary are not subject to any pledge or
security interest in favor of any Person other than the Borrower or a
Subsidiary Guarantor, (v) is not an Environmental Risk Property; (vi) does not
have, to the best of the Borrower's knowledge, any title, survey, environmental
or other defect which could reasonably be expected to materially and adversely
affect the value, use or marketability thereof, and (vii) is located within the
contiguous 00 xxxxxx xx xxx xxxxxxxxxxx Xxxxxx Xxxxxx; and "Unencumbered
Assets" mean all such Unencumbered Assets, collectively.
"Unencumbered Assets Coverage Ratio": on any date of
determination the ratio of (i) the sum of all Adjusted Net Operating Income for
all Unencumbered Assets of the Borrower and its Subsidiaries on a Consolidated
basis, plus the Borrower's Interest in all Adjusted Net Operating Income for
all Unencumbered Assets owned by a DownREIT Partnership, in each case for the
fiscal quarter most recently then ending, to (ii) the
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portion of the Consolidated Interest Expense consisting of interest on all
unsecured Indebtedness of the Borrower and its Subsidiaries as of such fiscal
quarter end.
"Unencumbered Asset Value": as of any date the quotient of (i)
an amount equal to the Adjusted Net Operating Income for all Unencumbered
Assets in the aggregate for the four fiscal quarters of the Borrower most
recently ending as of such date, divided by (ii) 10%. For purposes of any
determination of Unencumbered Asset Value, the following limitations and
methodology shall apply: (A) the Adjusted Net Operating Income of any
Unencumbered Asset owned by a DownREIT Partnership shall be based on the
Borrower's Interest in the Adjusted Net Operating Income for each such
Unencumbered Asset for the four fiscal quarters having ended as of such date;
(B) in the event more than 10% of the gross base rents payable under all leases
for Properties of the Borrower, its Subsidiaries or a DownREIT Partnership
(including the Borrower's Interest in any Property) shall be payable by one
tenant and its Subsidiaries, then Unencumbered Asset Value shall be reduced by
the percentage amount of such excess multiplied by the Unencumbered Asset Value
attributable to the Properties leased or controlled by such tenant and its
Subsidiaries, and (C) in the event that the Borrower or a Subsidiary of the
Borrower shall not have owned an Unencumbered Asset for the entire previous
four fiscal quarters, then for the purposes of determining the Unencumbered
Asset Value with respect to such Unencumbered Asset, the Adjusted Net Operating
Income for such Unencumbered Asset shall be annualized in a manner reasonably
satisfactory to the Administrative Agent.
1.2. Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the
meanings given such terms herein when used in the Loan Documents or any
certificate, opinion or other document made or delivered pursuant hereto or
thereto, unless otherwise defined therein.
(b) As used in the Loan Documents and in any certificate,
opinion or other document made or delivered pursuant hereto or thereto,
accounting terms not defined in Section 1.1, and accounting terms partly
defined in Section 1.1, to the extent not defined, shall have the respective
meanings given to them under GAAP.
(c) The words "hereof", "herein", "hereto" and
"hereunder" and similar words when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section, schedule and exhibit references contained herein shall refer to
Sections hereof or schedules or exhibits hereto unless otherwise expressly
provided herein.
(d) The word "or" shall not be exclusive; "may not" is
prohibitive and not permissive.
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(e) Unless the context otherwise requires, words in the
singular number include the plural, and words in the plural include the
singular.
(f) Unless specifically provided in a Loan Document to
the contrary, references to time shall refer to New York City time.
2. AMOUNT AND TERMS OF LOANS AND LETTERS OF CREDIT.
2.1. Revolving Credit Loans.
Subject to the terms and conditions hereof, each Lender
severally agrees to make revolving credit loans (each a "Revolving Credit Loan"
and, as the context may require, collectively with all Revolving Credit Loans
of such Lender and with the Revolving Credit Loans of all other Lenders, the
"Revolving Credit Loans") to the Borrower from time to time during the
Commitment Period, in an aggregate principal amount such that at any one time
the Facility Exposure of such Lender (exclusive of any Competitive Bid Advances
of such Lender at such time) shall not exceed such Lender's Commitment Amount.
At no time shall the sum of (i) the aggregate outstanding principal amount of
the Revolving Credit Loans of all Lenders, (ii) all Lenders' LC Exposure and
(iii) all Lenders' Swingline Exposure, exceed the Total Commitment Amount.
During the Commitment Period, the Borrower may borrow, prepay in whole or in
part and reborrow under the Commitments, all in accordance with the terms and
conditions of this Agreement. Subject to the provisions of Sections 2.3, 2.4 and
2.10, Revolving Credit Loans (other than Swingline Loans) may be (a) ABR
Advances, (b) Eurodollar Advances, (c) Competitive Bid Advances or (d) any
combination thereof. Each Swingline Loan shall accrue interest at the Swingline
Rate applicable thereto in accordance with Section 2.11(a).
2.2. Facility Notes.
(a) Facility Notes. The Revolving Credit Loans of each
Lender made as Conventional Advances and the LC Exposure and the Swingline
Exposure (other than the Swingline Lender's Swingline Exposure which is
evidenced by the Swingline Note) of each Lender shall be evidenced by a
promissory note of the Borrower, substantially in the form of Exhibit H, with
appropriate insertions therein as to date and principal amount (each, as
endorsed or modified from time to time, a "Facility Note" and, collectively
with the Facility Notes of all other Lenders, the "Facility Notes"), payable to
the order of such Lender for the account of its Applicable Lending Office and
representing the obligation of the Borrower to pay the lesser of (a) the
original amount of the Commitment of such Lender and (b) the aggregate unpaid
principal balance of all Revolving Credit Loans of such Lender made as
Conventional Advances and such Lender's share of the LC Disbursements and
Swingline Exposure, plus interest and other amounts owing to the Lenders under
the Loan Documents.
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(b) The Facility Notes Generally. Each Facility Note
shall bear interest from the date thereof on the unpaid principal balance
thereof at the applicable interest rate or rates per annum determined as
provided in Section 2.11 and shall be stated to mature on the Maturity Date.
The following information shall be recorded by each Lender on its books and,
prior to any transfer of any such Notes, endorsed by such Lender on the
schedule attached thereto or any continuation thereof: (i) the date and amount
of each Revolving Credit Loan of such Lender made as a Conventional Advance;
(ii) its character as an ABR Advance, a Eurodollar Advance or a combination
thereof; (iii) the interest rate and Interest Period applicable to Eurodollar
Advances; and (iv) each payment and prepayment of the principal thereof;
provided that the failure of such Lender to make any such recordation or
endorsement shall not affect the obligations of the Borrower to make payment
when due of any amount owing under the Loan Documents.
2.3. Procedure for Revolving Credit Loan Borrowings Other than
Swingline Borrowings and Competitive Bid Borrowings.
(a) Revolving Credit Loans. Except for Revolving Credit
Loans which the Borrower has requested be made as Competitive Bid Advances or
which are Swingline Loans (as to which the provisions of Sections 2.4 or 2.8,
respectively, shall apply), and subject to the limitations set forth in Section
2.1 and 2.3(c), the Borrower may borrow under the Commitments on any Business
Day during the Commitment Period by providing notice thereof in accordance with
Section 2.3(b).
(b) Borrowing Requests. To request Revolving Credit
Loans pursuant to Section 2.3(a), the Borrower shall notify the Administrative
Agent of such request by telephone (a) in the case of a Eurodollar Advance, not
later than 12:00 P.M., New York City time, two Business Days before the date of
the proposed borrowing of Revolving Credit Loans or (b) in the case of an ABR
Advance, not later than 12:00 P.M., New York City time, one Business Day before
the date of such proposed advance. Each such telephonic Borrowing Request shall
be irrevocable and shall be confirmed promptly by hand delivery or telecopy to
the Administrative Agent of a written Borrowing Request signed by the Borrower.
Each such telephonic and written Borrowing Request shall specify the following
information: (i) the aggregate amount of the requested borrowing of Revolving
Credit Loans; (ii) the date of such borrowing of Revolving Credit Loans, which
shall be a Business Day; (iii) whether the requested Revolving Credit Loan is
to be an ABR Advance or a Eurodollar Advance; (iv) in the case of a Eurodollar
Advance, the initial Interest Period to be applicable thereto, which shall be a
period contemplated by the definition of the term "Interest Period"; and (v)
the location and number of the Borrower's account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.3(d).
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(c) Limits on Advances. Each borrowing of (i) ABR
Advances shall be in a minimum aggregate principal amount equal to $1,000,000
or such amount plus a whole multiple of $100,000 in excess thereof, or, if
less, the Available Commitment Amount, and (ii) Eurodollar Advances shall be in
an aggregate principal amount equal to $5,000,000 or such amount plus a whole
multiple of $100,000 in excess thereof, or, if less, the Available Commitment
Amount.
(d) Funding of Revolving Credit Loans. Upon receipt of
each notice of borrowing from the Borrower, the Administrative Agent shall
promptly notify each Lender of the contents thereof. Subject to its receipt of
the notice referred to in the preceding sentence, each Lender will make the
amount of its Commitment Percentage of each borrowing of Revolving Credit Loans
pursuant to this Section available to the Administrative Agent for the account
of the Borrower at the office of the Administrative Agent set forth in Section
11.2 not later than 12:30 P.M. on the relevant Borrowing Date requested by the
Borrower in funds immediately available to the Administrative Agent at such
office. The amounts so made available to the Administrative Agent on the
Borrowing Date will then, subject to the satisfaction of the terms and
conditions of this Agreement, as determined by the Administrative Agent, be
made available on such date to the Borrower by the Administrative Agent at the
office of the Administrative Agent specified in Section 11.2 by crediting the
account of the Borrower on the books of such office with the aggregate of said
amounts received by the Administrative Agent, provided that Revolving Credit
Loans made to finance the reimbursement of an LC Disbursement as provided in
Section 2.9 shall be remitted by the Administrative Agent to the Issuing Bank.
(e) Effect of Incomplete Borrowing Request. If no
election is made as to the whether the Revolving Credit Loans shall be ABR
Advances or Eurodollar Advances, then the requested Revolving Credit Loans
shall be an ABR Advance. If no Interest Period is specified with respect to any
requested borrowing of Eurodollar Advances, then the Borrower shall be deemed
to have selected an Interest Period of one month's duration.
(f) Administrative Agent's Assumption. Unless the
Administrative Agent shall have received prior notice from a Lender (by
telephone or otherwise, such notice to be promptly confirmed by telecopy or
other writing) that such Lender will not make available to the Administrative
Agent such Lender's pro rata share of the Revolving Credit Loans requested by
the Borrower, the Administrative Agent may assume that such Lender has made
such share available to the Administrative Agent on the Borrowing Date in
accordance with this Section, provided that such Lender received notice of the
proposed borrowing from the Administrative Agent, and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on the
Borrowing Date a corresponding amount. If and to the extent such Lender shall
not have so made such pro rata share available to the Administrative Agent,
such Lender and the
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Borrower severally agree to pay to the Administrative Agent forthwith on
demand such corresponding amount (to the extent not previously paid by the
other), together with interest thereon for each day from the date such amount is
made available to the Borrower until the date such amount is paid to the
Administrative Agent, at a rate per annum equal to, in the case of the Borrower,
the applicable interest rate set forth in Section 2.11 for ABR Advances or
Eurodollar Advances, as set forth in the applicable Conventional Borrowing
Request, and, in the case of such Lender, the Federal Funds Rate in effect on
each such day (as determined by the Administrative Agent). Such payment by the
Borrower, however, shall be without prejudice to its rights against such Lender.
If such Lender shall pay to the Administrative Agent such corresponding amount,
such amount so paid shall constitute such Lender's Revolving Credit Loan as part
of the Revolving Credit Loans for purposes of this Agreement, which Revolving
Credit Loan shall be deemed to have been made by such Lender on the Borrowing
Date applicable to such Revolving Credit Loans, but without prejudice to the
Borrower's rights against such Lender.
2.4. Competitive Bid Borrowings and Procedure for Competitive Bid
Borrowings.
(a) Competitive Bid Borrowings. Subject to the terms and
conditions of this Agreement, each Lender severally agrees that during any
Rated Period, the Borrower may effect Competitive Bid Borrowings under this
Section 2.4 from time to time on any Business Day during the Commitment Period
in the manner set forth below, provided, however, that the principal balance of
all Competitive Bid Advances outstanding hereunder shall not at any time exceed
the lesser of (x) the Competitive Bid Ceiling, and (y) the Total Commitment
Amount less the sum of (A) the outstanding principal balance of all
Conventional Advances, (B) the LC Exposure, and (C) the Swingline Exposure.
(b) Procedure for Competitive Bid Borrowings. The
Borrower may request a Competitive Bid Borrowing under this Section 2.4 during
the Commitment Period, by giving to the Administrative Agent, not later than
12:00 P.M. at least three Business Days prior to the date of the proposed
Competitive Bid Borrowing, a Competitive Bid Borrowing Request in the form of
Exhibit C, specifying (i) the proposed date of the Competitive Bid Borrowing,
(ii) the aggregate amount of the proposed Competitive Bid Borrowing (which
amount shall not be less than $5,000,000 or such amount plus a whole multiple
of $100,000 in excess thereof), (iii) the proposed Interest Period for the
Competitive Bid Advances to be made as part of such Competitive Bid Borrowing
(which Interest Period shall end not later than 5 days prior to the Revolving
Credit Termination Date, and shall otherwise comply with the applicable
provisions of the definition of "Interest Period"), and (iv) such other terms to
be applicable to such Competitive Bid Borrowing as the Borrower may specify. The
Administrative Agent shall promptly notify (by telephone or otherwise, to be
promptly confirmed by telecopy
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36
or other writing) each Lender of each Competitive Bid Borrowing Request received
by it and the terms contained in such Competitive Bid Borrowing Request. Such
notice shall not be delivered separately to any Designated Lender, but shall be
deemed delivered to a Designated Lender when delivered to the Designating Lender
responsible for having appointed such Designated Lender as its Designated
Lender.
(c) Decision of Lenders to make Competitive Bid Advances.
Each Lender may, if, in its sole discretion, it elects so to do, irrevocably
offer to make one or more Revolving Credit Loans as Competitive Bid Advances to
the Borrower as part of such proposed Competitive Bid Borrowing at a rate or
rates of interest specified by such Lender in its sole discretion, by notifying
(by telephone or otherwise, to be promptly confirmed by telecopy or other
writing) the Administrative Agent, before 12:00 P.M. two Business Days before
the Borrowing Date of such proposed Competitive Bid Borrowing of (i) the
minimum amount and maximum amount of each Competitive Bid Advance which such
Lender would be willing to make as part of such proposed Competitive Bid
Borrowing (which amounts may, subject to the proviso to the first sentence of
Section 2.4(a), exceed such Lender's Commitment), and (ii) the rate or rates of
interest therefor and such Lender's Applicable Lending Office with respect to
such Competitive Bid Advance, provided that any such offer made by a Designated
Lender shall be made solely through the Designating Lender responsible for
having appointed such Designated Lender as its Designated Lender. No Lender
shall be required to specify in its Competitive Bid Advance offer whether such
Competitive Bid Advance will be funded by its Designated Lender. The
Administrative Agent shall notify the Borrower of all such offers before 12:30
P.M. two Business Days before such proposed Borrowing Date, provided that if
BNY in its capacity as a Lender shall in its sole discretion elect to make any
such offer, it shall notify the Borrower of such offer before 11:30 A.M. two
Business Days before such proposed Borrowing Date. If any Lender other than BNY
shall fail to notify the Administrative Agent before 12:00 P.M., and if BNY in
its capacity as a Lender shall fail to notify the Borrower before 11:30 A.M. two
Business Days before the proposed Borrowing Date, that it elects to make such an
offer, such Lender shall be deemed to have elected not to make such an offer and
such Lender shall not be obligated to, and shall not, make any Competitive Bid
Advance as part of such Competitive Bid Borrowing. Any offer submitted after the
time required above shall be disregarded by the Administrative Agent unless such
offer is submitted to correct a manifest error in a prior offer.
(d) Borrower's Acceptance or Cancellation. The Borrower
shall, before 1:00 P.M. two Business Days before the date of such proposed
Competitive Bid Borrowing, either
(i) cancel such Competitive Bid Borrowing Request
by notice to the Administrative Agent to that effect, or
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(ii) in its sole discretion, irrevocably accept
one or more of the offers made by a Lender or Lenders pursuant to
paragraph (c) above in ascending order of the rates offered therefor,
by giving notice to the Administrative Agent of the amount of each
Competitive Bid Advance (which amount shall be equal to or greater
than the minimum amount, and equal to or less than the maximum amount,
notified to the Borrower by the Administrative Agent on behalf of such
Lender for such Competitive Bid Advance pursuant to paragraph (c)) to
be made by each Lender as part of such Competitive Bid Borrowing, and
reject any remaining offers made by Lenders pursuant to paragraph (c)
above, by giving the Administrative Agent notice to that effect,
provided, however, that the aggregate amount of such offers accepted
by the Borrower shall be equal at least to $5,000,000. If offers for
Competitive Bid Advances at the same interest rate are made by two or
more Lenders pursuant to paragraph (c) above for a greater aggregate
minimum principal amount than the amount in respect of which offers
for Competitive Bid Advances are accepted by the Borrower at such
interest rate, the principal amount of Competitive Bid Advances
accepted at such interest rate shall be allocated by the Borrower
among such Lenders as nearly as possible in proportion to the
respective minimum principal amounts offered by such Lenders. No such
Lender shall be obligated to make such Competitive Bid Advance in a
principal amount less than the minimum amount offered by such Lender
without consenting to such lesser amount. If any Lender declines to
make a Competitive Bid Advance at such lesser amount, the Borrower
shall be entitled in its sole discretion to determine which of such
offers at the same interest rate it shall accept.
If the Borrower notifies the Administrative Agent that a
Competitive Bid Borrowing Request is cancelled pursuant to paragraph
(d)(i) above, the Administrative Agent shall give prompt notice (by
telephone or otherwise, to be promptly confirmed by telecopy or other
writing) thereof to the Lenders and such Competitive Bid Borrowing
shall not be made.
If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (d)(ii) above, the
Administrative Agent shall, as promptly as practicable on the second
Business Day before such proposed Borrowing Date, notify (A) each
Lender that has made an offer as described in paragraph (c) above, of
the date and aggregate amount of such Competitive Bid Borrowing and
whether any offer or offers made by such Lender pursuant to paragraph
(c) above have been accepted by the Borrower and (B) each Lender whose
offer to make a Competitive Bid Advance as part of such Competitive
Bid Borrowing (a "Participating Lender") of the amount of each Loan to
be made by such Lender as part of such Competitive Bid Borrowing has
been accepted by the Borrower, together with a specification of the
interest rate and Interest Payment
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Date or Dates in respect of each such Competitive Bid Advance. Each
such Participating Lender shall, before 11:30 A.M. on the date of such
Competitive Bid Borrowing make available, or cause its Designated
Lender, if any, to make available, for the account of its Applicable
Lending Office to the Administrative Agent at its address specified in
Section 11.2 such Lender's portion of such Competitive Bid Borrowing,
in funds immediately available to the Administrative Agent at such
office. Competitive Bid Borrowings may be funded by a Lender's
Designated Lender as provided in Section 11.8, however, the Designating
Lender of such Designated Lender shall be responsible for making such
Competitive Bid Advance should such Designated Lender fail to do so.
Upon satisfaction of the applicable terms and conditions of this
Agreement and after receipt by the Administrative Agent of such amount
from each such Participating Lender, the Administrative Agent will make
such amount available on such date to the Borrower at the office of the
Administrative Agent specified in Section 11.2 by crediting the account
of the Borrower on the books of such office with the aggregate of such
amounts, in like funds as received by the Administrative Agent. After
each Competitive Bid Borrowing, if requested by any Lender, the
Administrative Agent shall within a reasonable time furnish to such
Lender such information in respect of such Competitive Bid Borrowing as
such Lender shall reasonably request. Unless the Administrative Agent
shall have received prior notice from a Participating Lender (by
telephone or otherwise, such notice to be promptly confirmed by
telecopy or other writing) that such Participating Lender will not make
available such Participating Lender's Competitive Bid Advance, the
Administrative Agent may assume that such Participating Lender has made
such Participating Lender's portion of such Competitive Bid Borrowing
available to the Administrative Agent on such Borrowing Date in
accordance with this Section, and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such
Borrowing Date a corresponding amount. If and to the extent such
Participating Lender shall not have made such portion available to the
Administrative Agent, such Participating Lender and the Borrower
severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount with interest thereon for each day from the
date such amount is made available to the Borrower until the date such
amount is paid to the Administrative Agent at a rate per annum equal
to, in the case of the Borrower, the rate of interest for such
Competitive Bid Advance accepted by the Borrower in its notice to the
Administrative Agent under Section 2.4(d)(ii), and, in the case of such
Lender, the Federal Funds Rate in effect on such day (as determined by
the Administrative Agent). Such payment by the Borrower, however, shall
be without prejudice to its rights against such Participating Lender.
If such Participating Lender shall pay to the Administrative Agent such
corresponding amount, such amount so paid shall constitute such
Lender's Competitive Bid Advance as a part of such Competitive Bid
Advances for
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purposes of this Agreement, which Competitive Bid Advance shall be
deemed to have been made by such Participating Lender on the Borrowing
Date applicable thereto, but without prejudice to the Borrower's rights
against such Participating Lender.
Notwithstanding its appointment of a Designated Lender, no
Lender which is a Designating Lender shall be relieved of its
obligation to fund a Competitive Bid Advance, and no Designated Lender
shall be deemed to assume such obligation, prior to the time such
Competitive Bid Advance is funded.
(e) Subsequent Competitive Bid Borrowings Permitted.
Within the limits and on the conditions set forth in this Section 2.4, the
Borrower may from time to time borrow under this Section 2.4, repay pursuant to
paragraph (f) below, and reborrow under this Section 2.4.
(f) Repayment of Competitive Bid Borrowings. The
Borrower shall repay to the Administrative Agent for the account of each
Participating Lender which has made a Competitive Bid Advance on the last day
of the Interest Period for such Competitive Bid Advance (such Interest Period
being that specified by the Borrower in the related Competitive Bid Borrowing
Request delivered pursuant to Section 2.4(b) above) the then unpaid principal
amount of such Competitive Bid Advance.
(g) Interest on Competitive Bid Borrowings. The Borrower
shall pay interest on the unpaid principal balance of each Competitive Bid
Advance from the date of such Competitive Bid Advance to the date the principal
amount of such Competitive Bid Advance is repaid in full, at the rate of
interest for such Competitive Bid Advance specified by the Participating Lender
making (or whose Designated Lender made) such Competitive Bid Advance in such
Participating Lender's notice with respect thereto delivered pursuant to
Section 2.4(c) above payable on the Interest Payment Date specified by the
Borrower for such Competitive Bid Advance in the related Competitive Bid
Borrowing Request delivered pursuant to Section 2.4(b) above. Any Designated
Lender which funds a Competitive Bid Advance shall on and after the time of
such funding become the obligee under such Competitive Bid Advance.
(h) Competitive Bid Notes. At the request of any Lender,
the Borrower will deliver to such Lender a note, in the form mutually agreeable
to such Lender and the Borrower, evidencing the obligation of the Borrower to
pay the Competitive Bid Advances of such Lender, and interest thereon, in
accordance with Section 2.4(f).
(i) In General. Each Competitive Bid Advance shall be
subject to all of the provisions of this Agreement generally, provided,
however, that a Competitive Bid
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Advance shall not reduce a Lender's obligation to fund its Commitment Percentage
of any ABR Advance or Eurodollar Advance.
2.5. Termination or Reduction of Commitments.
(a) Voluntary Reductions. The Borrower shall have the
right, upon at least three Business Days' prior written notice to the
Administrative Agent, at any time to terminate the Commitments or from time to
time to permanently reduce the Commitments, provided that the total of the
Commitments shall not be reduced below an amount equal to the sum of (i) the
aggregate principal balance of the Revolving Credit Loans then outstanding
thereunder, (ii) the then current LC Exposure and (iii) the then current
Swingline Exposure (in each case after giving effect to any contemporaneous
prepayment of Loans), and provided further that any such reduction of the
Commitments shall be in the minimum amount of $5,000,000 or such amount plus a
whole multiple of $100,000 in excess thereof. In the event that the total of
the Commitments are reduced below the Swingline Sublimit, the Swingline
Sublimit shall be deemed reduced to an amount equal to the total of the
Commitments, as reduced.
(b) In General. Reductions of the Commitments shall be
applied pro rata according to the Commitments of each Lender, as the case may
be. Simultaneously with each reduction of the Commitments under this Section,
the Borrower shall pay the Facility Fee accrued (but not yet paid) on the
amount by which the Commitments have been reduced and prepay the Loans
outstanding thereunder by the amount, if any, by which the aggregate unpaid
principal balance of such Loans exceeds the amount of the Commitments, as so
reduced. If any prepayment is made under this Section with respect to any
Fixed Rate Advances, in whole or in part, prior to the last day of the
applicable Interest Period, the Borrower agrees to indemnify the Lenders in
accordance with Section 2.16. No reduction or termination of the Commitments or
the Swingline Sublimit may be reinstated.
2.6. Repayment of Loans; Evidence of Debt
(a) Promise to Pay. The Borrower hereby unconditionally
promises to pay (i) to the Administrative Agent for the account of each Lender
the then unpaid principal amount of each Revolving Credit Loan on the Maturity
Date, and (ii) to the Swingline Lender the then unpaid principal amount of each
Swingline Loan on the earlier of (A) the last day of the Interest Period
applicable to such Swingline Loan and (B) the Maturity Date, subject to the
provisions of Section 2.8(d). Competitive Bid Borrowings and LC Disbursements
shall be paid pursuant to Sections 2.4 and 2.9, respectively.
(b) Lenders' Accounts. Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the debt
of the Borrower to
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such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) Administrative Agent's Accounts. The Administrative
Agent shall maintain accounts in which it shall record (i) the amount of each
Revolving Credit Loan, Competitive Bid Borrowing, and LC Disbursement made
hereunder, the type of Advance thereof and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder and (iii) the
amount of any other sum received by the Administrative Agent hereunder for the
account of the Lenders and each Lender's share thereof.
(d) Swingline Lenders' Accounts. The Swingline Lender
shall maintain accounts in which it shall record (i) the amount of each
Swingline Loan made hereunder, the Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and
payable from the Borrower to the Swingline Lender hereunder and (iii) the
amount of any sum received by the Swingline Lender in respect of payments of
the Swingline Loans and interest thereon.
(e) Entries Made in Accounts. The entries made in the
accounts maintained pursuant to paragraphs (b), (c) and (d) of this Section
shall, to the extent not inconsistent with any entries made in any Note and
absent manifest error, be prima facie evidence of the existence and amounts of
the obligations recorded therein, provided that the failure of any Lender, the
Swingline Lender or the Administrative Agent to maintain such accounts or any
error therein shall not in any manner affect the obligation of the Borrower to
repay the Loans or any LC Disbursement in accordance with the terms of this
Agreement.
(f) Loans Evidenced by Notes. The Loans and interest
thereon shall at all times (including after assignment pursuant to Section
11.7) be represented by one or more Notes in like form payable to the order of
the payee named therein and its registered assigns.
2.7. Prepayments of the Loans.
(a) Voluntary Prepayments. The Borrower may, at its
option, prepay the ABR Advances and Eurodollar Advances, in whole or in part,
without premium or penalty (other than any indemnification amounts, as provided
for in Section 2.16) at any time and from time to time by notifying the
Administrative Agent in writing at least one Business Day prior to the proposed
prepayment date in the case of Loans consisting of ABR Advances and at least
three Business Days prior to the proposed prepayment date in the case of Loans
consisting of Eurodollar Advances, specifying the Loans to be prepaid
consisting of ABR Advances, Eurodollar Advances or a combination thereof, the
amount to be prepaid and the date of prepayment. Such notice shall be
irrevocable and the
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amount specified in such notice shall be due and payable on the date specified,
together with accrued interest to the date of such payment on the amount
prepaid. Upon receipt of such notice, the Administrative Agent shall promptly
notify each Lender in respect thereof. Partial prepayments of ABR Advances
and/or Eurodollar Advances shall be in an aggregate minimum principal amount of
$1,000,000 or such amount plus a whole multiple of $100,000 in excess thereof,
or, if less, the outstanding principal balance thereof. After giving effect to
any partial prepayment with respect to Eurodollar Advances which were made
(whether as the result of a borrowing or a conversion) on the same date and
which had the same Interest Period, the outstanding principal amount of such
Eurodollar Advances shall be at least (subject to Section 2.3(c)) $1,000,000 or
such amount plus a whole multiple of $100,000 in excess thereof. Notwithstanding
anything in this Agreement to the contrary, voluntary prepayments by the
Borrower of Competitive Bid Advances or Swingline Loans are not permitted.
(b) In General. If any prepayment is made in respect of
any Fixed Rate Advance, in whole or in part, prior to the last day of the
applicable Interest Period, the Borrower agrees to indemnify the Lenders in
accordance with Section 2.16.
2.8. Swingline Loans
(a) Conditions of Swingline Loans. Subject to the terms
and conditions set forth herein, the Swingline Lender agrees to make Swingline
Loans to the Borrower from time to time on any Business Day during the period
from the Effective Date to the thirty-fifth Business Day preceding the
Revolving Credit Expiration Date in an aggregate principal amount at any time
outstanding that will not result in (i) the Swingline Exposure exceeding the
Swingline Sublimit or (ii) the total Facility Exposure exceeding the Total
Commitment Amount. Notwithstanding the foregoing, the Swingline Lender shall not
be required to make a Swingline Loan if (i) prior thereto or simultaneously
therewith the Borrower shall not have delivered a Borrowing Request in
compliance with the provisions of Section 2.8(c), (ii) the Borrower does not
accept the Swingline Rate proposed by the Swingline Lender with respect to such
requested Swingline Loan, (iii) any Lender shall be in default of its
obligations under this Agreement or (iv) any Lender shall have notified the
Swingline Lender and the Borrower in writing at least one Business Day prior to
the Borrowing Date with respect to such Swingline Loan, that the conditions set
forth in Section 6 have not been satisfied and such conditions remain
unsatisfied as of the requested time of the making such Swingline Loan. Each
Swingline Loan shall be due and payable on the maturity thereof, provided that
in no event shall such maturity be later than the fifth Business Day preceding
the Revolving Credit Expiration Date. Swingline Loans shall constitute
"Revolving Credit Loans" for all purposes hereunder, but shall not be considered
the utilization of any Commitment of the Swingline Lender.
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(b) Swingline Note. The Swingline Loans shall be
evidenced by a note (the "Swingline Note") in the form of Exhibit I in the
amount of the Swingline Sublimit and shall bear interest from the date thereof
on the unpaid principal balance thereof at the applicable interest rate or
rates per annum determined as provided in Section 2.11 and shall be stated to
mature on the Maturity Date. The following information shall be recorded by
the Swingline Lender on its books: (i) the date and amount of each Swingline
Loan, (ii) the interest rate and Interest Period applicable to such Swingline
Loan, and (iii) each payment and prepayment of the principal thereof; provided
that the failure of the Swingline Lender to make any such recordation shall not
affect the obligations of the Borrower to make payment when due of any amount
owing under the Loan Documents.
(c) Swingline Loan Borrowing Request. To request a
Swingline Loan, the Borrower shall notify the Administrative Agent and the
Swingline Lender by telephone no later than 12:00 p.m., New York City time, on
the day of the relevant Swingline Loan. Each such notice shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent and the Swingline Lender of a Borrowing Request, which
shall specify (i) the aggregate principal amount to be borrowed, (ii) the
requested Borrowing Date (which shall be a Business Day), and (iii) the
requested Swingline Rate and the Interest Period for the requested Swingline
Loan. Subject to its agreement with the Borrower on the applicable Swingline
Rate, the Swingline Lender will make the requested amount available promptly on
that same day, to the Administrative Agent (for the account of the Borrower),
who, thereupon, will promptly make such amount available to the Borrower in like
funds in the manner provided for in Section 2.3(d). Each Swingline Loan shall be
in an aggregate amount that is an integral multiple of $100,000 and not less
than $100,000.
(d) Participation in Swingline Loans. The Swingline
Lender may by written notice given to the Administrative Agent not later than
10:00 a.m., New York City time, on any Business Day require the Lenders to
acquire participations on such Business Day in all or a portion of the
Swingline Loans outstanding. Such notice shall specify the aggregate amount of
Swingline Loans in which the Lenders will participate. Promptly upon receipt
of such notice, the Administrative Agent will give notice thereof to each
Lender, specifying in such notice such Lender's Commitment Percentage of such
Swingline Loan or Swingline Loans. Each Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Lender, such Lender's
Commitment Percentage of such Swingline Loan or Swingline Loans. Each Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments,
and that each such payment shall be made without any offset, abatement,
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withholding or reduction whatsoever. Each Lender shall comply with its
obligation under this paragraph by wire transfer of immediately available funds,
in the same manner as provided in Section 2.3(e) with respect to Loans made by
such Lender (and Section 2.3(e) shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Administrative Agent shall promptly pay to
the Swingline Lender the amounts so received by it from the Lenders. The
Administrative Agent shall notify the Borrower of any participations in any
Swingline Loan acquired pursuant to this paragraph, and thereafter payments in
respect of such Swingline Loan shall be made to the Administrative Agent and not
to the Swingline Lender. Any amounts received by the Swingline Lender from the
Borrower (or other party on behalf of the Borrower) in respect of a Swingline
Loan after receipt by the Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Administrative Agent;
any such amounts received by the Administrative Agent shall be promptly remitted
by the Administrative Agent to the Lenders that shall have made their payments
pursuant to this paragraph and to the Swingline Lender, as their interests may
appear. The purchase of participations in a Swingline Loan pursuant to this
paragraph shall not relieve the Borrower of any default in the payment thereof.
2.9. Letters of Credit.
(a) General. Subject to the terms and conditions set
forth herein, the Borrower may request the issuance of Letters of Credit
denominated in Dollars for its own account, in a form reasonably acceptable to
the Administrative Agent and the Issuing Bank, at any time and from time to
time during the period from the Effective Date to the tenth Business Day prior
to the Maturity Date with respect to Revolving Credit Loans made as
Conventional Advances. In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any form of letter
of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance; Amendment; Certain Conditions. To
request the issuance of a Letter of Credit, the Borrower shall hand deliver or
telecopy (or transmit by electronic communication, if arrangements for doing so
have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance)
a notice requesting the issuance of a Letter of Credit and specifying the date
of issuance (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section),
the amount of such Letter of Credit, the name and address of the beneficiary
thereof and such other information as shall be necessary to prepare such Letter
of Credit. If requested by the Issuing Bank, the Borrower shall, for
informational purposes only, complete a letter of credit application on the
Issuing Bank's standard form in connection with any request for a Letter of
Credit. A Letter of Credit shall be issued only if (and,
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45
upon issuance, amendment, renewal or extension of each Letter of Credit, the
Borrower shall be deemed to represent and warrant that), after giving effect to
such issuance (i) the LC Exposure shall not exceed the LC Sublimit, and (ii) the
total Facility Exposure shall not exceed the Total Commitment Amount. Any Letter
of Credit issued may, at the request of the Borrower and with the consent of the
Letter of Credit Issuer and the Administrative Agent, be amended, renewed or
extended, provided that no Default then exists and that after giving effect
thereto, such Letter of Credit (if the same had been issued at such time) would
comply with all requirements of this Section.
(c) Expiration Date. Each Letter of Credit must expire at
or prior to the close of business on the earlier of (i) the date that is one
year after the date of the issuance of such Letter of Credit and (ii) the date
that is ten Business Days prior to the Revolving Credit Termination Date.
(d) Participations. By the issuance of a Letter of Credit
and without any further action on the part of the Issuing Bank or the Lenders,
the Issuing Bank hereby grants to each Lender, and each such Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Commitment Percentage of the aggregate amount available to be
drawn under such Letter of Credit. In consideration and in furtherance of the
foregoing, each such Lender hereby absolutely and unconditionally agrees to pay
to the Administrative Agent, for the account of the Issuing Bank, such Lender's
Commitment Percentage of each LC Disbursement made by the Issuing Bank and not
reimbursed by the Borrower on the date due as provided in paragraph (e) of this
Section, or of any reimbursement payment required to be refunded to the
Borrower for any reason. Each such Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including the occurrence and continuance of a
Default or reduction or termination of any of the Commitments, and that each
such payment shall be made without any offset, abatement, withholding or
reduction whatsoever; provided, however, that no Lender shall be obligated to
make any payment to the Administrative Agent for any wrongful LC Disbursement
made by the Issuing Bank as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of the Issuing Bank.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse
such LC Disbursement by paying to the Administrative Agent an amount equal to
such LC Disbursement not later than 1:00 p.m., New York City time, on the date
that such LC Disbursement is made, if the Borrower shall have received notice
of such LC Disbursement prior to 12:00 noon, New York City time, on such date,
or if such notice has not been received by the Borrower prior to such time on
such date, then not later than 1:00 p.m., New York City time, on (i) the
Business Day that the Borrower receives such notice, if such notice is received
prior to 12:00 noon, New York City time, on such day,
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46
or (ii) the Business Day immediately following the day that the Borrower
receives such notice, if such notice is not received prior to such time on such
day. If the Borrower fails to make such payment under this paragraph when due,
the Administrative Agent shall notify each Lender of the applicable LC
Disbursement, the payment then due from the Borrower in respect thereof and such
Lender's Commitment Percentage thereof. Promptly following receipt of such
notice, each Lender shall pay to the Administrative Agent its Commitment
Percentage of the payment then due from the Borrower, in the same manner as
provided in Section 2.3 with respect to Conventional Advances made by such
Lender (and Section 2.3 shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Administrative Agent shall promptly pay to
the Issuing Bank the amounts so received by it from the Lenders. Promptly
following receipt by the Administrative Agent of any payment from the Borrower
pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the Issuing Bank or, to the extent that Lenders have made payments
pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders
and the Issuing Bank as their interests may appear. Any payment made by a Lender
pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement
(other than the funding of a Revolving Credit Loan as contemplated above) shall
not constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section shall
be absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of
any Letter of Credit or this Agreement, or any term or provision therein or
herein, (ii) in the absence of the Issuing Bank's gross negligence or willful
misconduct, any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect, (iii) in the absence of the
Issuing Bank's gross negligence or willful misconduct, payment by the Issuing
Bank under a Letter of Credit against presentation of a draft or other document
that does not comply with the terms of such Letter of Credit or (iv) any other
event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section, constitute a
legal or equitable discharge of, or provide a right of setoff against, the
Borrower's obligations hereunder. The Lenders, the Administrative Agent and the
Co-Documentation Agents shall not have any liability or responsibility by reason
of or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence
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arising from causes beyond the control of the Issuing Bank. The parties hereto
expressly agree that, in the absence of gross negligence or willful misconduct
on the part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care in each
such determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents presented
which appear on their face to be in substantial compliance with the terms of a
Letter of Credit, the Issuing Bank may, in its sole discretion, either accept
and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. The Issuing Bank shall
promptly notify the Administrative Agent and the Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether the Issuing Bank
has made or will make an LC Disbursement thereunder; provided that any failure
to give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Lenders with respect to any
such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any
LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement
in full on the date such LC Disbursement is made, the unpaid amount thereof
shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the Borrower reimburses such
LC Disbursement, at the rate per annum then applicable to ABR Advances; provided
that, if the Borrower fails to reimburse such LC Disbursement for more than two
Business Days after the same is due pursuant to paragraph (e) of this Section,
then interest shall accrue at the rate provided for in Section 2.11(b). Interest
accrued pursuant to this paragraph shall be for the account of the Issuing Bank,
except that interest accrued on and after the date of payment by any Lender
pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be
for the account of such Lender to the extent of such payment.
(i) Cash Collateralization. If any Event of Default shall
occur and be continuing, then on the Business Day that the Borrower receives
notice from the Administrative Agent or the Required Lenders demanding the
deposit of cash collateral pursuant to this paragraph, the Borrower shall
deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in cash
equal to the LC Exposure with respect to Letters of Credit as of such date plus
any accrued and unpaid interest thereon; provided that the obligation to
deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other
notice of any kind, upon
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the occurrence of any Event of Default with respect to the Borrower described in
paragraphs (h) or (i) of Section 9. Such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative Agent shall
have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposit, which investments shall be in direct short-term obligations of,
or short-term obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America, in each case
maturing no later than the expiry date of the Letter of Credit giving rise to
the relevant LC Exposure, such deposit shall not bear interest. Interest or
profits, if any, on such investments shall accumulate in such account. Moneys in
such account shall be applied by the Administrative Agent to reimburse the
Issuing Bank for LC Disbursements for which it has not been reimbursed and, to
the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or,
if the maturity of the Loans has been accelerated, be applied to satisfy other
obligations of the Borrower under this Agreement. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence of
an Event of Default, such amount (to the extent not applied as aforesaid) shall
be returned to the Borrower within three Business Days after all Events of
Default have been cured or waived.
2.10. Conversions.
(a) Conversion Elections. The Borrower may elect from
time to time to convert Eurodollar Advances to ABR Advances by giving the
Administrative Agent at least one Business Day's prior irrevocable notice of
such election, specifying the amount to be so converted, provided, that any
such conversion of Eurodollar Advances shall only be made on the last day of
the Interest Period applicable thereto. In addition, the Borrower may elect
from time to time to convert ABR Advances to Eurodollar Advances or to convert
Eurodollar Advances to new Eurodollar Advances by giving the Administrative
Agent at least two Business Days' prior irrevocable notice of such election,
specifying the amount to be so converted and the initial Interest Period
relating thereto, provided that any such conversion of ABR Advances to
Eurodollar Advances shall only be made on a Business Day and any such
conversion of Eurodollar Advances to new Eurodollar Advances shall only be made
on the last day of the Interest Period applicable to the Eurodollar Advances
which are to be converted to such new Eurodollar Advances. Each such notice
shall be in the form of Exhibit N and must be delivered to the Administrative
Agent prior to 12:00 noon on the Business Day required by this Section for the
delivery of such notices to the Administrative Agent. The Administrative
Agent shall promptly provide the Lenders with notice of any such election. ABR
Advances and Eurodollar Advances may be converted pursuant to this Section in
whole or in part, provided that conversions of ABR Advances to Eurodollar
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Advances, or Eurodollar Advances to new Eurodollar Advances, shall be in an
aggregate principal amount of $5,000,000 or such amount plus a whole multiple of
$100,000 in excess thereof. This Section shall not apply to Swingline Loans or
Competitive Bid Borrowings, which may not be converted or continued beyond the
Interest Period applicable thereto.
(b) Effect on Conversions if an Event of Default.
Notwithstanding anything in this Section to the contrary, no ABR Advance may be
converted to a Eurodollar Advance, and no Eurodollar Advance may be converted
to a new Eurodollar Advance, if a Default or Event of Default has occurred and
is continuing either (i) at the time the Borrower shall notify the
Administrative Agent of its election to convert or (ii) on the requested
Conversion Date. In such event, such ABR Advance shall be automatically
continued as an ABR Advance or such Eurodollar Advance shall be automatically
converted to an ABR Advance on the last day of the Interest Period applicable to
such Eurodollar Advance. If an Event of Default shall have occurred and be
continuing, the Administrative Agent shall, at the request of the Required
Lenders, notify the Borrower (by telephone or otherwise) that all, or such
lesser amount as the Required Lenders shall designate, of the outstanding
Eurodollar Advances shall be automatically converted to ABR Advances, in which
event such Eurodollar Advances shall be automatically converted to ABR Advances
on the date such notice is given.
(c) Conversion not a Borrowing. Each conversion shall be
effected by each Lender by applying the proceeds of its new ABR Advance or
Eurodollar Advance, as the case may be, to its Advances (or portion thereof)
being converted (it being understood that such conversion shall not constitute
a borrowing for purposes of Sections 4, 5 or 6).
2.11. Interest Rate and Payment Dates.
(a) Prior to Maturity. Except as otherwise provided in
Section 2.11(b), prior to the Maturity Date, the Loans shall bear interest on
the outstanding principal balance thereof at the applicable interest rate or
rates per annum set forth below:
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ADVANCES RATE
-------- ----
Each ABR Advance Alternate Base Rate.
Each Eurodollar Eurodollar Rate for the applicable
Advance Interest Period plus the Applicable
Margin.
Competitive Bid The rate for the applicable Competitive
Advance Bid Advance determined pursuant to
Section 2.4.
Swingline Loans The Swingline Rate applicable to each
Swingline Loan, unless a participation is
required to be made pursuant Section
2.8(d), in which case such Swingline Loan
shall, from and after the date of such
participation, bear interest at the
Alternate Base Rate.
(b) Event of Default. After the occurrence and during the
continuance of an Event of Default, the outstanding principal balance of the
Loans and any overdue interest or other amount payable under the Loan Documents
shall bear interest, whether before or after the entry of any judgment thereon,
at a rate per annum equal to the Alternate Base Rate plus 2%.
(c) Interest Payment Dates. Accrued interest on each
Loan shall be payable in arrears on each Interest Payment Date for such Loan,
provided that (i) interest accrued pursuant to paragraph (b) of this Section
shall be payable on demand, (ii) in the event of any repayment or prepayment of
any Loan, accrued interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment and (iii) in the event of
any conversion of any Eurodollar Advance prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(d) General. Interest on (i) ABR Advances, to the extent
based on the BNY Rate, shall be calculated on the basis of a 365 or 366-day
year (as the case may be), and (ii) ABR Advances, to the extent based on the
Federal Funds Rate, Eurodollar Advances, Competitive Bid Advances and Swingline
Loans which accrue interest at the Swingline Rate shall be calculated on the
basis of a 360-day year, in each case for the
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51
actual number of days elapsed, including the first day but excluding the last.
Any change in the interest rate on the Loans resulting from a change in the
Alternate Base Rate or a Pricing Level shall become effective as of the opening
of business on the day on which such change shall become effective. The
Administrative Agent shall, as soon as practicable, notify the Borrower and the
Lenders of the effective date and the amount of each such change in the
Alternate Base Rate or a Pricing Level, but any failure to so notify shall not
in any manner affect the obligation of the Borrower to pay interest on the Loans
in the amounts and on the dates required. Each determination of the Alternate
Base Rate, a Eurodollar Rate or a Pricing Level by the Administrative Agent
pursuant to this Agreement shall be conclusive and binding on the Borrower and
the Lenders absent manifest error. At no time shall the interest rate payable on
the Loans of any Lender (including the Swingline Lender), together with the
Facility Fee and all other amounts payable under the Loan Documents, to the
extent the same are construed to constitute interest, exceed the Highest Lawful
Rate. If interest payable to a Lender (including the Swingline Lender) on any
date would exceed the maximum amount permitted by the Highest Lawful Rate, such
interest payment shall automatically be reduced to such maximum permitted
amount, and interest for any subsequent period, to the extent less than the
maximum amount permitted for such period by the Highest Lawful Rate, shall be
increased by the unpaid amount of such reduction. Any interest actually received
for any period in excess of such maximum allowable amount for such period shall
be deemed to have been applied as a prepayment of the Loans. The Borrower
acknowledges that to the extent interest payable on ABR Advances is based on the
BNY Rate, the BNY Rate is only one of the bases for computing interest on loans
made by the Lenders, and by basing interest payable on ABR Advances on the BNY
Rate, the Lenders have not committed to charge, and the Borrower has not in any
way bargained for, interest based on a lower or the lowest rate at which the
Lenders may now or in the future make loans to other borrowers.
2.12. Substituted Interest Rate.
In the event that (i) the Administrative Agent shall have
reasonably determined (which determination shall be conclusive and binding upon
the Borrower) that by reason of circumstances affecting the interbank
eurodollar market either adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate applicable pursuant to Section 2.11 or (ii)
the Required Lenders shall have notified the Administrative Agent that they
have reasonably determined (which determination shall be conclusive and binding
on the Borrower) that the applicable Eurodollar Rate will not adequately and
fairly reflect the cost to such Lenders of maintaining or funding loans bearing
interest based on such Eurodollar Rate, with respect to any portion of the
Loans that the Borrower has requested be made as Eurodollar Advances or
Eurodollar Advances that will result from the requested conversion of any
portion of the Advances into Eurodollar Advances (each, an "Affected Advance"),
the Administrative Agent shall
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52
promptly notify the Borrower and the Lenders (by telephone or otherwise, to be
promptly confirmed in writing) of such determination, on or, to the extent
practicable, prior to the requested Borrowing Date or Conversion Date for such
Affected Advances. If the Administrative Agent shall give such notice, (a) any
Affected Advances shall be made as ABR Advances, (b) the Advances (or any
portion thereof) that were to have been converted to Affected Advances shall be
converted to or continued as ABR Advances and (c) any outstanding Affected
Advances shall be converted, on the last day of the then current Interest Period
with respect thereto, to ABR Advances. Until any notice under clauses (i) or
(ii), as the case may be, of this Section has been withdrawn by the
Administrative Agent (by notice to the Borrower promptly upon either (x) the
Administrative Agent having determined that such circumstances affecting the
interbank eurodollar market no longer exist and that adequate and reasonable
means do exist for determining the Eurodollar Rate pursuant to Section 2.11 or
(y) the Administrative Agent having been notified by such Required Lenders that
circumstances no longer render the Advances (or any portion thereof) Affected
Advances), no further Eurodollar Advances shall be required to be made by the
Lenders nor shall the Borrower have the right to convert all or any portion of
the Loans to Eurodollar Advances.
2.13. Taxes; Net Payments.
(a) All payments made by the Borrower or any Subsidiary
Guarantor under the Loan Documents shall be made free and clear of, and without
reduction for or on account of, any taxes, levies, imposts, deductions, charges
or withholdings required by law to be withheld from any amounts payable under
the Loan Documents. A statement setting forth the calculations of any amounts
payable pursuant to this paragraph submitted by a Lender to the Borrower shall
be conclusive absent manifest error. The obligations of the Borrower under
this Section shall survive the termination of this Agreement and the
Commitments and the payment of the Notes and all other amounts payable under
the Loan Documents.
(b) Each Lender which is a foreign corporation within the
meaning of Section 1442 of the Code shall deliver to the Borrower such
certificates, documents or other evidence as the Borrower may reasonably
require from time to time as are necessary to establish that such Lender is not
subject to withholding under Section 1441 or 1442 of the Code or as may be
necessary to establish, under any law hereafter imposing upon the Borrower, an
obligation to withhold any portion of the payments made by the Borrower under
the Loan Documents, that payments to the Administrative Agent on behalf of such
Lender are not subject to withholding.
2.14. Illegality.
Notwithstanding any other provisions herein, if any law,
regulation, treaty or directive hereafter enacted, promulgated, approved or
issued, or any change in any
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53
presently existing law, regulation, treaty or directive, or in the
interpretation or application thereof, shall make it unlawful for any Lender to
make or maintain its Eurodollar Advances as contemplated by this Agreement, such
Lender shall so notify the Administrative Agent and the Administrative Agent
shall forthwith give notice thereof to the other Lenders and the Borrower,
whereupon (i) the commitment of such Lender hereunder to make Eurodollar
Advances or convert ABR Advances to Eurodollar Advances shall forthwith be
suspended and (ii) such Lender's Loans then outstanding as Eurodollar Advances
affected hereby, if any, shall be converted automatically to ABR Advances on the
last day of the then current Interest Period applicable thereto or within such
earlier period as required by law. If the commitment of any Lender with respect
to Eurodollar Advances is suspended pursuant to this Section and thereafter it
is once again legal for such Lender to make or maintain Eurodollar Advances,
such Lender's commitment to make or maintain Eurodollar Advances shall be
reinstated and such Lender shall notify the Administrative Agent and the
Borrower of such event. Notwithstanding the foregoing, to the extent that the
conditions giving rise to the notice requirement set forth in this Section can
be eliminated by the transfer of such Credit Party's Loans or Commitment to
another of its branches, and to the extent that such transfer is not
inconsistent with such Credit Party's internal policies of general application
and only if, as determined by such Credit Party in its sole discretion, the
transfer of such Loan or Commitment, as the case may be, would not otherwise
adversely affect such Loans or such Credit Party, the Borrower may request, and
such Lender shall use reasonable efforts to effect, such transfer.
2.15. Increased Costs.
In the event that any law, regulation, treaty or directive
hereafter enacted, promulgated, approved or issued or any change in any
presently existing law, regulation, treaty or directive therein or in the
interpretation or application thereof by any Governmental Authority charged
with the administration thereof or compliance by any Credit Party (or any
corporation directly or indirectly owning or controlling such Credit Party)
with any request or directive, whether or not having the force of law, from any
central bank or other Governmental Authority, agency or instrumentality:
(a) does or shall subject any Credit Party to any Taxes
of any kind whatsoever with respect to any Eurodollar Advances or any Letter of
Credit or participation therein, or its obligations under this Agreement to
make Eurodollar Advances, issue Letters of Credit or participate therein, or
change the basis of taxation of payments to any Credit Party of principal,
interest or any other amount payable hereunder in respect of its Eurodollar
Advances or Letters of Credit or participation's therein, including any Taxes
required to be withheld from any amounts payable under the Loan Documents
(except for imposition of, or change in the rate of, tax on the overall net
income of such Credit Party or its Applicable Lending Office for any of such
Advances by the jurisdiction in which such Credit Party is incorporated or has
its principal office or
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54
such Applicable Lending Office, including, in the case of Credit Parties
incorporated in any State of the United States such tax imposed by the United
States); or
(b) does or shall impose, modify or make applicable any
reserve, special deposit, compulsory loan, assessment, increased cost or
similar requirement against assets held by, or deposits of, or advances or
loans by, or other credit extended by, or any other acquisition of funds by,
any office of such Credit Party in respect of its Eurodollar Advances, Letters
of Credit or participations therein which, in the case of Eurodollar Advances,
is not otherwise included in the determination of the Eurodollar Rate;
and the result of any of the foregoing is to increase the cost to such Credit
Party of making, issuing, renewing, converting or maintaining its Eurodollar
Advances, Letters of Credit or participations therein, or its commitment to
make such Eurodollar Advances, issue such Letters of Credit or participate
therein, or to reduce any amount receivable hereunder in respect of its
Eurodollar Advances, Letters of Credit or participations therein, then, in any
such case, the Borrower shall pay such Credit Party, upon its demand, any
additional amounts necessary to compensate such Credit Party for such additional
cost or reduction in such amount receivable which such Credit Party deems to be
material as determined by such Credit Party; provided, however, that nothing in
this Section shall require the Borrower to indemnify the Credit Parties with
respect to withholding Taxes for which the Borrower has no obligation under
Section 2.13. No failure by any Credit Party to demand compensation for any
increased cost during any Interest Period shall constitute a waiver of such
Credit Party's right to demand such compensation at any time. A statement
setting forth the calculations of any additional amounts payable pursuant to the
foregoing sentence submitted by a Credit Party to the Borrower shall be
conclusive absent manifest error. The obligations of the Borrower under this
Section shall survive the termination of this Agreement and any of the
Commitments or the payment of the Notes and all other amounts payable under the
Loan Documents. Failure to demand compensation pursuant to this Section shall
not constitute a waiver of such Credit Party's right to demand such
compensation. To the extent that any increased costs of the type referred to in
this Section are being incurred by a Credit Party and such costs can be
eliminated or reduced by the transfer of such Credit Party's Loans or Commitment
to another of its branches, and to the extent that such transfer is not
inconsistent with such Credit Party's internal policies of general application
and only if, as determined by such Credit Party in its sole discretion, the
transfer of such Loan or Commitment, as the case may be, would not otherwise
materially adversely affect such Loan or such Credit Party, the Borrower may
request, and such Lender shall use reasonable efforts to effect, such transfer.
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55
2.16. Indemnification for Break Funding Losses.
Notwithstanding anything contained herein to the contrary, if
(i) the Borrower shall fail to borrow or convert on a Borrowing Date or
Conversion Date after it shall have given notice to do so in which it shall
have requested a Eurodollar Advance pursuant to Section 2.3 or 2.9, (ii) the
Borrower shall fail to borrow after having accepted one or more offers of
Competitive Bid Advances under Section 2.4, (iii) the Borrower shall fail to
borrow after having requested a Swingline Loan pursuant to Section 2.8, (iv) a
Eurodollar Advance, Competitive Bid Advance or Swingline Loan shall be
terminated or prepaid for any reason prior to the last day of the Interest
Period applicable thereto (including, without limitation, any mandatory
prepayment or a prepayment resulting from acceleration or illegality), or (v)
the Swingline Rate applicable to any Swingline Loan shall be converted to the
Alternate Base Rate pursuant to Section 2.11(a) and, at the time of such
conversion, an Event of Default exists, the Borrower agrees to indemnify each
Credit Party against, and to pay on demand directly to such Credit Party, any
loss or expense suffered by such Credit Party as a result of such failure to
borrow or convert, or such termination or repayment, including, without
limitation, an amount, if greater than zero, equal to:
A x (B-C) x D
---
360
where:
"A" equals such Credit Party's pro rata share of the Affected
Principal Amount;
"B" equals the applicable Eurodollar Rate, the rate which such
Competitive Bid Advance bears to such Loan or the applicable
Swingline Rate (in each case expressed as a decimal), as the
case may be;
"C" equals the applicable Eurodollar Rate or Proposed Bid Rate
(in each case expressed as a decimal), as the case may be, in
effect on or about the first day of the applicable Remaining
Interest Period, based on the applicable rates offered or bid,
as the case may be, on or about such date, for deposits (or in
the case of a Proposed Bid Rate, based on the rate such Credit
Party would have quoted) in an amount equal approximately to
such Credit Party's pro rata share of the Affected Principal
Amount with an Interest Period equal approximately to the
applicable Remaining Interest Period, as determined by such
Credit Party;
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"D" equals the number of days from and including the first day
of the applicable Remaining Interest Period to but excluding
the last day of such Remaining Interest Period;
and any other out-of-pocket loss or expense (including any internal processing
charge customarily charged by such Credit Party) suffered by such Credit Party
in connection with such Eurodollar Advance, Competitive Bid Advance or
Swingline Loan, including, without limitation, in liquidating or employing
deposits acquired to fund or maintain the funding of its pro rata share of the
Affected Principal Amount, or redeploying funds prepaid or repaid, in amounts
which correspond to its pro rata share of the Affected Principal Amount. A
statement setting forth the calculations of any amounts payable pursuant to
this Section submitted by a Credit Party to the Borrower shall be conclusive and
binding on the Borrower absent manifest error. The obligations of the Borrower
under this Section shall survive the termination of this Agreement and the
Commitments and the payment of the Notes and all other amounts payable under the
Loan Documents.
2.17. Use of Proceeds.
The proceeds of Loans and the Letters of Credit shall be used
solely for general business purposes, and such use shall conform to the
provisions of Section 4.11, provided that the first Loans hereunder shall be
applied to pay in full any loans outstanding under the Existing Credit
Agreements, together with all interest, fees, breakage costs and other amounts
outstanding thereunder.
2.18. Capital Adequacy.
If (i) after the date hereof, the enactment or promulgation
of, or any change or phasing in of, any United States or foreign law or
regulation or in the interpretation thereof by any Governmental Authority
charged with the administration thereof, (ii) compliance with any directive or
guideline from any central bank or United States or foreign Governmental
Authority (whether or not having the force of law) promulgated or made after
the date hereof, or (iii) compliance with the Risk-Based Capital Guidelines of
the Board of Governors of the Federal Reserve System as set forth in 12 CFR
Parts 208 and 225, or of the Comptroller of the Currency, Department of the
Treasury, as set forth in 12 CFR Part 3, or similar legislation, rules,
guidelines, directives or regulations under any applicable United States or
foreign Governmental Authority affects or would affect the amount of capital
required to be maintained by a Credit Party (or any lending office of such
Credit Party) or any corporation directly or indirectly owning or controlling
such Credit Party or imposes any restriction on or otherwise adversely affects
such Credit Party (or any lending office of such Credit Party) or any
corporation directly or indirectly owning or controlling such Credit Party and
such Credit Party shall have reasonably determined that such enactment,
promulgation, change or compliance has the effect of reducing the rate of
return on such Credit Party's capital or
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57
the asset value to such Credit Party of any Loan made by such Credit Party as a
consequence, directly or indirectly, of its obligations to make and maintain the
funding of its Loans at a level below that which such Credit Party could have
achieved but for such enactment, promulgation, change or compliance (after
taking into account such Credit Party's policies regarding capital adequacy) by
an amount deemed by such Credit Party to be material, then, upon demand by such
Credit Party, the Borrower shall promptly pay to such Credit Party such
additional amount or amounts as shall be sufficient to compensate such Credit
Party for such reduction in such rate of return or asset value. A certificate in
reasonable detail as to such amounts submitted to the Borrower and the
Administrative Agent setting forth the determination of such amount or amounts
that will compensate such Credit Party for such reductions shall be presumed
correct absent manifest error. No failure by any Credit Party to demand
compensation for such amounts hereunder shall constitute a waiver of such Credit
Party's right to demand such compensation at any time. Such Credit Party shall,
however, use reasonable efforts to notify the Borrower of such claim within 90
days after the officer of such Credit Party having primary responsibility for
this Agreement has obtained knowledge of the events giving rise to such claim.
The obligations of the Borrower under this Section shall survive the termination
of this Agreement and the Commitments and the payment of the Notes and all other
amounts payable under the Loan Documents.
2.19. Administrative Agent's Records.
The Administrative Agent's records with respect to the Loans,
the interest rates applicable thereto, each payment by the Borrower of
principal and interest on the Loans, and fees, expenses and any other amounts
due and payable in connection with this Agreement shall be presumptively
correct absent manifest error as to the amount of the Loans, and the amount of
principal and interest paid by the Borrower in respect of such Loans and as to
the other information relating to the Loans, and amounts paid and payable by
the Borrower hereunder and under the Notes. The Administrative Agent will when
requested by the Borrower advise the Borrower of the principal and interest
outstanding under the Loans as of the date of such request and the dates on
which such payments are due.
3. FEES; PAYMENTS
3.1. Facility Fee.
(a) The Borrower agrees to pay to the Administrative
Agent, for the account of the Lenders in accordance with each Lender's
Commitment Percentage, a fee (the "Facility Fee"), from the Effective Date
through the Maturity Date for Revolving Credit Loans made as Conventional
Advances, computed as follows: an amount, determined periodically as hereinafter
set forth, equal to the product of (i) the Applicable
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58
Facility Fee Percentage times (ii) the average daily Total Commitment Amount
during such period. The Facility Fee shall be payable quarterly in arrears on
the last day of each March, June, September and December of each year,
commencing on the first such day following the Effective Date, on any optional
reduction of the Total Commitment Amount, and on the Maturity Date for Revolving
Credit Loans made as Conventional Advances. The Facility Fee (and the Applicable
Facility Fee Percentage) shall be calculated on the basis of a 360 day year for
the actual number of days elapsed without regard to the amount of Loans
outstanding during any period for which the Facility Fee is computed.
(b) The Borrower agrees to pay (i) to the Administrative
Agent for the account of each Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at rate per annum equal
to the Applicable Margin on the average daily amount of such Lender's LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date but
excluding the later of the date on which such Lender's Commitment terminates
and the date on which such Lender ceases to have any LC Exposure and (ii) to
the Issuing Bank, for its own account, the Issuing Bank's standard fronting
fees with respect to the issuance, amendment, renewal or extension of any
Letter of Credit or processing of drawings thereunder. Accrued participation
fees and fronting fees shall be payable in arrears on the last day of March,
June, September and December of each year, commencing on the first such date to
occur after the date hereof; provided that all such fees shall be payable on
the date on which the Commitments terminate and any such fees accruing after
the date on which the Commitments terminate shall be payable on demand. All
other fees payable to the Issuing Bank pursuant to this paragraph shall also be
payable on demand. All participation fees and fronting fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number
of days elapsed.
(c) The Borrower agrees to pay any other fees payable to
any Credit Party under any separate agreement at the times so agreed upon in
such separate agreements.
(d) All fees and other amounts payable under paragraphs
(a) and (b) of this Section shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, in the case of
the Facility Fee and participation fees described therein, and other fees and
amounts payable under this Section shall be paid directly to the Credit Party to
whom such fees and other amounts are payable. Fees and other amounts paid shall
not be refundable under any circumstances.
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59
3.2. Payments; Application of Payments.
Each payment, including each prepayment, of principal and
interest on the Loans, LC Disbursements and the Facility Fee shall be made by
the Borrower to the Administrative Agent, without set-off, deduction or
counterclaim, at its office set forth in Section 11.2 in funds immediately
available to the Administrative Agent at such office by 12:00 noon on the due
date for such payment. Promptly upon receipt thereof by the Administrative
Agent, the Administrative Agent shall remit, in like funds as received, (i) to
the Lenders who maintain any of their Loans as ABR Advances or Eurodollar
Advances, each such Lender's pro rata share of such payments which are in
respect of principal or interest due on such ABR Advances or Eurodollar
Advances, (ii) to the Lenders who maintain any of their Revolving Credit Loans
as Competitive Bid Advances, each such Lender's pro rata share of such payments
which are in respect of principal or interest due on such Competitive Bid
Advances in accordance with Sections 2.4(c) and (d), (iii) to the Swingline
Lender, each payment which is in respect of principal or interest due on any
Swingline Loan and (iv) in the case of the Facility Fee, to all Lenders pro
rata according to each Lender's Commitment Percentage thereof. The failure of
the Borrower to make any such payment by such time shall not constitute a
default hereunder, provided that such payment is made on such due date, but any
such payment made after 12:00 noon on such due date shall be deemed to have
been made on the next Business Day for the purpose of calculating interest on
amounts outstanding on the Loans. If any payment hereunder or under the Notes
shall be due and payable on a day which is not a Business Day, the due date
thereof (except as otherwise provided in the definition of Interest Period)
shall be extended to the next Business Day and (except with respect to payments
in respect of the Facility Fee) interest shall be payable at the applicable
rate specified herein during such extension. If any payment is made with
respect to any Eurodollar Advance or Competitive Bid Advance prior to the last
day of the applicable Interest Period, the Borrower shall indemnify each Lender
in accordance with Section 2.16.
4. REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans the Borrower makes the following
representations and warranties to the Administrative Agent and each Lender:
4.1. Existence and Power.
(a) The Borrower is a Maryland corporation duly organized
and validly existing and in good standing under the laws of Maryland, has all
requisite power and authority to own its Property and to carry on its business
as now conducted, and is in good standing and authorized to do business in each
jurisdiction in which the nature of
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60
the business conducted therein or the Property owned therein make such
qualification necessary, except where such failure to qualify could not
reasonably be expected to have a Material Adverse Effect.
(b) Each Subsidiary of the Borrower (including each
Subsidiary Guarantor) is a corporation, partnership, limited liability company,
real estate investment trust or business trust, is validly existing and in good
standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to own its Property and to carry on its business
as now conducted, and is in good standing and authorized to do business in each
other jurisdiction in which the nature of the business conducted therein or the
Property owned therein make such qualification necessary, except where such
failure to qualify could not reasonably be expected to have a Material Adverse
Effect.
4.2. Authority.
The Borrower has full legal power and authority to enter into,
execute, deliver and perform the terms of the Loan Documents to which it is a
party and to make the borrowings contemplated thereby, to execute, deliver and
carry out the terms of the Notes and to incur the obligations provided for
herein and therein, all of which have been duly authorized by all proper and
necessary corporate action.
4.3. Binding Agreement.
(a) The Loan Documents to which the Borrower is a party
constitute the valid and legally binding obligations of the Borrower,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally.
(b) The execution, delivery and performance by the
Borrower of the Loan Documents to which it is a party does not violate the
provisions of any applicable statute, law (including, without limitation, any
applicable usury or similar law), rule or regulation of any Governmental
Authority.
4.4. Subsidiaries; DownREIT Partnerships.
As of the Effective Date, the Borrower has only the
Subsidiaries set forth on Schedule 4.4. Schedule 4.4 sets forth the name of,
and the ownership interest of the Borrower in, each Subsidiary of the Borrower
and identifies each Subsidiary that is a Subsidiary Guarantor, in each case as
of the Effective Date. The shares of each corporate Subsidiary of the Borrower
that are owned by the Borrower are duly authorized, validly issued, fully paid
and nonassessable and are owned free and clear of any Liens. The
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interest of the Borrower in each non-corporate Subsidiary is owned free and
clear of any Liens (other than Liens applicable to a partner under the terms of
any partnership agreement to secure the Borrower's obligation to make capital
contributions or similar payments thereunder). As of the Effective Date, the
only DownREIT Partnerships are Excel Realty Partners, L.P. and E.H. Properties,
L.P.
4.5. Litigation.
(a) There are no actions, suits or proceedings at law or
in equity or by or before any Governmental Authority (whether or not
purportedly on behalf of the Borrower or any Subsidiary of the Borrower)
pending or, to the knowledge of the Borrower, threatened against the Borrower
or any Subsidiary of the Borrower or any of their respective Properties or
rights, which (i) if adversely determined, could reasonably be expected to have
a Material Adverse Effect, (ii) call into question the validity or
enforceability of any of the Loan Documents, or (iii) could reasonably be
expected to result in the rescission, termination or cancellation of any
franchise, right, license, permit or similar authorization held by the Borrower
or any Subsidiary of the Borrower, which rescission, termination or
cancellation could reasonably be expected to have a Material Adverse Effect.
(b) As of the date hereof, Schedule 4.5 sets forth all
actions, suits and proceedings at law or in equity or by or before any
Governmental Authority (whether or not purportedly on behalf of the Borrower or
any Subsidiary of the Borrower) pending or, to the knowledge of the Borrower,
threatened against the Borrower, any Subsidiary of the Borrower or any of their
respective Properties or rights, which, if adversely determined, could have a
Material Adverse Effect.
4.6. Required Consents.
No consent, authorization or approval of, filing with, notice
to, or exemption by, stockholders, any Governmental Authority or any other
Person not obtained is required to be obtained by the Borrower to authorize, or
is required in connection with the execution, delivery and performance of the
Loan Documents or is required to be obtained by the Borrower as a condition to
the validity or enforceability of the Loan Documents.
4.7. No Conflicting Agreements.
Neither the Borrower nor any Subsidiary of the Borrower is in
default beyond any applicable grace or cure period under any mortgage,
indenture, contract or agreement to which it is a party or by which it or any
of its Property is bound, the effect of which default could reasonably be
expected to have a Material Adverse Effect. The execution, delivery or
carrying out of the terms of the Loan Documents will not
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constitute a default under, or result in the creation or imposition of, or
obligation to create, any Lien upon any Property of the Borrower or any
Subsidiary of the Borrower pursuant to the terms of any such mortgage,
indenture, contract or agreement.
4.8. Compliance with Applicable Laws.
Neither the Borrower nor any Subsidiary of the Borrower is in
default with respect to any judgment, order, writ, injunction, decree or
decision of any Governmental Authority which default could reasonably be
expected to have a Material Adverse Effect. The Borrower and each Subsidiary of
the Borrower is in compliance in all material respects with all statutes,
regulations, rules and orders applicable to Borrower or such Subsidiary of all
Governmental Authorities, including, without limitation, (i) Environmental Laws
and ERISA, a violation of which could reasonably be expected to have a Material
Adverse Effect; and (ii) Sections 856-860 of the Code, compliance with which is
required to preserve the Borrower's status as a REIT.
4.9. Taxes.
Each of the Borrower and its Subsidiaries has filed or caused
to be filed all tax returns required to be filed and has paid, or has filed
appropriate extensions and has made adequate provision for the payment of, all
taxes shown to be due and payable on said returns or in any assessments made
against it (other than those being contested as permitted under Section 7.4) in
which the failure to pay could reasonably be expected to have a Material
Adverse Effect, and no tax Liens have been filed with respect thereto. The
charges, accruals and reserves on the books of the Borrower and each Subsidiary
of the Borrower with respect to all federal, state, local and other taxes are,
to the best knowledge of the Borrower, adequate for the payment of all such
taxes, and the Borrower knows of no unpaid assessment which is due and payable
against it or any of its Subsidiaries or any claims being asserted which could
reasonably be expected to have a Material Adverse Effect.
4.10. Governmental Regulations.
Neither the Borrower nor any Subsidiary of the Borrower is
subject to regulation under the Public Utility Holding Company Act of 1935, as
amended, the Federal Power Act, as amended, or the Investment Company Act of
1940, as amended, and neither the Borrower nor any Subsidiary of the Borrower
is subject to any statute or regulation which prohibits or restricts the
incurrence of Indebtedness under the Loan Documents, including, without
limitation, statutes or regulations relative to common or contract carriers or
to the sale of electricity, gas, steam, water, telephone, telegraph or other
public utility services.
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4.11. Federal Reserve Regulations; Use of Loan Proceeds.
Neither the Borrower nor any Subsidiary of the Borrower is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any Margin Stock.
No part of the proceeds of the Loans will be used, directly or indirectly, for
a purpose which violates any law, rule or regulation of any Governmental
Authority, including, without limitation, the provisions of Regulations T, U or
X of the Board of Governors of the Federal Reserve System, as amended. No part
of the proceeds of the Loans will be used, directly or indirectly, to purchase
or carry Margin Stock or to extend credit to others for the purpose of
purchasing or carrying Margin Stock.
4.12. Plans; Multiemployer Plans.
As of the Effective Date, each of the Borrower and its ERISA
Affiliates maintains or makes contributions only to the Plans and Multiemployer
Plans listed on Schedule 4.12. Each Plan, and, to the best knowledge of the
Borrower, each Multiemployer Plan, is in compliance in all material respects
with, and has been administered in all material respects in compliance with,
the applicable provisions of ERISA, the Code and any other applicable Federal
or state law, and no event or condition is occurring or exists concerning which
the Borrower would be under an obligation to furnish a report to the
Administrative Agent and each Lender as required by Section 7.2(d). As of
December 31, 1998, each Plan was "fully funded", which for purposes of this
Section means that the fair market value of the assets of such Plan is not less
than the present value of the accrued benefits of all participants in the Plan,
computed on a plan termination basis. To the best knowledge of the Borrower,
no Plan has ceased being fully funded.
4.13. Financial Statements.
The Borrower has heretofore delivered to the Administrative
Agent and the Lenders (i) copies of the audited Consolidated Balance Sheet of
the Borrower and its Consolidated Subsidiaries as of December 31, 1998, and the
related Consolidated Statements of Operations, Stockholders' Equity and Cash
Flows for the Borrower and its Consolidated Subsidiaries for the five months
ended December 31, 1998 and the 12 months ended July 31, 1998, and (ii) the
Consolidated Statements of Income and Cash Flows for the Borrower and its
Consolidated Subsidiaries for the fiscal quarters of the Borrower ending March
31, 1999 and June 30, 1999, certified by its Chief Financial Officer
(collectively, with the related notes and schedules, the "Financial
Statements"). The Financial Statements fairly present the Consolidated
financial condition and results of the operations of the Borrower and its
Consolidated Subsidiaries as of the dates and for the periods indicated therein
and have been prepared in conformity with GAAP. Except as reflected in the
Financial Statements or in the notes thereto, neither the
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Borrower nor any Subsidiary of the Borrower has any obligation or liability of
any kind (whether fixed, accrued, contingent, unmatured or otherwise) which, in
accordance with GAAP, should have been shown on the Financial Statements and was
not. Since June 30, 1999 through the Effective Date there has been no material
adverse change in the financial condition or business of the Borrower and its
Subsidiaries taken as a whole.
4.14. Property.
Each of the Borrower and its Subsidiaries has good and
marketable title to all of its Property, title to which is material to the
Borrower or such Subsidiary, subject to no Liens, except Permitted Liens.
There are no unpaid or outstanding real estate or similar taxes or assessments
on or against any Real Property other than (i) real estate or other taxes or
assessments that are not yet due and payable, and (ii) such taxes as the
Borrower or any Subsidiary of the Borrower is contesting in good faith or which
individually or in the aggregate could not reasonably be expected to have a
Materially Adverse Effect. There are no pending eminent domain proceedings
against any Real Property, and, to the knowledge of the Borrower, no such
proceedings are presently threatened or contemplated by any Governmental
Authority against any Real Property, which individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect. None of the
Real Property is now damaged as a result of any fire, explosion, accident,
flood or other casualty which individually or in the aggregate could reasonably
be expected to have a Material Adverse Effect.
4.15. Franchises, Intellectual Property, Etc.
Each of the Borrower and its Subsidiaries possesses or has the
right to use all franchises, Intellectual Property, licenses and other rights,
in each case that are material and necessary for the conduct of its business,
with no known conflict with the valid rights of others which could reasonably
be expected to have a Material Adverse Effect. No event has occurred which
permits or, to the best knowledge of the Borrower, after notice or the lapse of
time or both, or any other condition, could reasonably be expected to permit,
the revocation or termination of any such franchise, Intellectual Property,
license or other right and which revocation or termination could reasonably be
expected to have a Material Adverse Effect.
4.16. Environmental Matters.
(a) The Borrower and each of its Subsidiaries is in
compliance with the requirements of all applicable Environmental Laws except
for such non-compliance which could not, either individually or in the
aggregate, be reasonably expected to have a Material Adverse Effect.
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(b) No Hazardous Substances have been (i) generated or
manufactured on, transported to or from, treated at, stored at or discharged
from any Real Property in violation of any Environmental Laws; (ii) discharged
into subsurface waters under any Real Property in violation of any
Environmental Laws; or (iii) discharged from any Real Property on or into
property or waters (including subsurface waters) adjacent to any Real Property
in violation of any Environmental Laws, which violation, in the case of either
(i), (ii) or (iii) could, either individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(c) Neither the Borrower nor any of its Subsidiaries (i)
has received notice (written or oral) or otherwise learned of any claim,
demand, suit, action, proceeding, event, condition, report, directive, lien,
violation, non-compliance or investigation indicating or concerning any
potential or actual liability (including, without limitation, potential
liability for enforcement, investigatory costs, cleanup costs, government
response costs, removal costs, remedial costs, natural resources damages,
property damages, personal injuries or penalties) arising in connection with
(x) any non-compliance with or violation of the requirements of any applicable
Environmental Laws, or (y) the presence of any Hazardous Substance on any Real
Property (or any Real Property previously owned by the Borrower or any
Subsidiary of the Borrower) or the release or threatened release of any
Hazardous Substance into the environment which, in either case, could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, (ii) has any threatened or actual liability in connection with
the presence of any Hazardous Substance on any Real Property (or any Real
Property previously owned by the Borrower or any Subsidiary of the Borrower) or
the release or threatened release of any Hazardous Substance into the
environment which, in either case, could, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, (iii) has
received notice of any federal or state investigation evaluating whether any
remedial action is needed to respond to the presence of any Hazardous Substance
on any Real Property (or any Real Property previously owned by the Borrower or
any Subsidiary of the Borrower) or a release or threatened release of any
Hazardous Substance into the environment for which the Borrower or any
Subsidiary of the Borrower is or may be liable the results of which could, in
either case, either individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect, or (iv) has received notice that the Borrower or
any Subsidiary of the Borrower is or may be liable to any Person under any
Environmental Law which liability could, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(d) To the best of the Borrower's knowledge, no Real
Property is located in an area identified by the Secretary of Housing and Urban
Development as an area having special flood hazards, or if any such Real
Property is located in such a special flood hazard area, then the Borrower has
obtained all insurance that is required to
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be maintained by law or which is customarily maintained by Persons engaged in
similar businesses and owning similar Properties in the same general areas in
which the Borrower operates.
4.17. Labor Relations.
Neither the Borrower nor any of its Subsidiaries is a party to
any collective bargaining agreement, other than the collective bargaining
agreement covering fewer than 10 employees at the Roosevelt Mall Shopping
Center in Philadelphia, Pennsylvania, and, to the best knowledge of the
Borrower, no petition has been filed or proceedings instituted by any employee
or group of employees with any labor relations board seeking recognition of a
bargaining representative with respect to the Borrower or such Subsidiary.
There are no material controversies pending between the Borrower or any
Subsidiary and any of their respective employees, which could reasonably be
expected to have a Material Adverse Effect.
4.18. Burdensome Obligations.
Neither the Borrower nor any of its Subsidiaries is a party to
or bound by any franchise, agreement, deed, lease or other instrument, or
subject to any corporate restriction which, in the opinion of the management of
the Borrower or such Subsidiary, is so unusual or burdensome, in the context of
its business, as in the foreseeable future might adversely affect or impair the
revenue or cash flow of the Borrower or such Subsidiary in such a manner as
could reasonably be expected to have a Material Adverse Effect, or materially
and adversely affect or impair the ability of the Borrower or such Subsidiary
to perform its obligations under the Loan Documents. The Borrower does not
presently anticipate that future expenditures by the Borrower or any Subsidiary
of the Borrower needed to meet the provisions of federal or state statutes,
orders, rules or regulations will be so burdensome as to result in a Material
Adverse Effect.
4.19. Solvency.
On the Effective Date and immediately following the making of
each Loan, and after giving effect to the application of the proceeds of such
Loan: (a) the fair value of the assets of the Borrower and its Subsidiaries,
taken as a whole, at a fair valuation, will exceed the debts and liabilities,
including Contingent Obligations, of the Borrower and its Subsidiaries, taken
as a whole; (b) the present fair saleable value of the property of the Borrower
and its Subsidiaries, taken as a whole, will be greater than the amount that
will be required to pay the probable liability of the debts and other
liabilities, subordinated, contingent or otherwise of the Borrower and its
Subsidiaries, as such debts and other liabilities become absolute and matured;
(c) the Borrower and its Subsidiaries, taken as a whole, will be able to pay
its debts and liabilities, subordinated, contingent or otherwise, as such debts
and liabilities become absolute and matured; and (d) the
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Borrower and its Subsidiaries, taken as a whole, will not have unreasonably
small capital with which to conduct the business in which it is engaged as such
business is now conducted and is proposed to be conducted hereafter.
4.20. REIT Status.
The Borrower (i) has made an election pursuant to Section 856
of the Code to qualify as a REIT, (ii) has satisfied and continues to satisfy
all of the requirements under Sections 856-859 of the Code and the regulations
and rulings issued thereunder which must be satisfied for the Borrower to
maintain its status as a REIT, and (iii) is in compliance in all material
respects with all Code sections applicable to REITs generally and the
regulations and rulings issued thereunder.
4.21. Rent Roll and List of Unencumbered Assets.
A true, correct and complete Rent Roll, dated not earlier than
30 days prior to the date of this Agreement, and a list of all the Unencumbered
Assets of the Borrower as of such date is attached hereto as Schedule 4.21.
4.22. Year 2000.
The Borrower has completed its assessment of its centralized
corporate business and technical information systems as to Year 2000 compliance
and functionality and has completed its remediation of such systems as more
particularly set forth on Schedule 4.22. In addition, the Company has completed
the identification and review of major computer hardware and software suppliers
and has verified the Year 2000 preparedness of these suppliers as more
particularly set forth on Schedule 4.22. All statements and disclosures on
Schedule 4.22 are true and correct in all material respects and fairly present
the Year 2000 preparedness of the Borrower.
4.23. Operation of Business.
The Borrower is a self-advised and self-managed REIT.
4.24. No Misrepresentation.
No representation or warranty contained herein and no
certificate or report furnished or to be furnished by the Borrower or any
Subsidiary of the Borrower in connection with the transactions contemplated
hereby, contains or will contain a misstatement of material fact, or, to the
best knowledge of the Borrower, omits or will omit to state a material fact
required to be stated in order to make the statements herein or therein
contained not misleading in the light of the circumstances under which made.
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5. CONDITIONS TO FIRST LOANS OR LETTERS OF CREDIT
In addition to the conditions precedent set forth in Section
6, the obligation of each Lender to make its first Loan, the Swingline Lender
to make the first Swingline Loan or the Issuing Bank to issue the first Letter
of Credit shall be subject to the fulfillment of the following conditions
precedent:
5.1. Evidence of Action.
(a) The Administrative Agent shall have received a
certificate, dated the first Borrowing Date, of the Secretary or Assistant
Secretary of the Borrower substantially in the form of Exhibit J (i) attaching
a true and complete copy of the resolutions of its Board of Directors
authorizing the execution and delivery of the Loan Documents by the Borrower
and the performance of the Borrower's obligations thereunder, and of all other
documents evidencing other necessary action (in form and substance reasonably
satisfactory to the Administrative Agent) taken by it to authorize the Loan
Documents and the transactions contemplated thereby, (ii) attaching a true and
complete copy of its articles of incorporation and by-laws, (iii) setting forth
the incumbency of its officer or officers who may sign the Loan Documents,
including therein a signature specimen of such officer or officers, and (iv)
certifying that said corporate charter and by-laws are true and complete copies
thereof, are in full force and effect and have not been amended or modified.
(b) The Administrative Agent shall have received a
certificate, dated the first Borrowing Date, of the Secretary or Assistant
Secretary of each Subsidiary Guarantor substantially in the form of Exhibit K
(i) attaching a true and complete copy of the resolutions of its Board of
Directors or Trustees, as the case may be, authorizing its execution and
delivery of the Guaranty and the performance of its obligations thereunder, and
of all other documents evidencing other necessary action (in form and substance
reasonably satisfactory to the Administrative Agent) taken by it to authorize
the Guaranty and the transactions contemplated thereby, (ii) attaching a true
and complete copy of its articles of incorporation or corporate charter or
declaration of trust and, if applicable, by-laws, (iii) setting forth the
incumbency of its officer or officers who may sign the Guaranty, including
therein a signature specimen of such officer or officers, and (iv) certifying
that said articles of incorporation, corporate charter or declaration of trust
and, if applicable, by-laws, are true and complete copies thereof, is in full
force and effect and has not been amended or modified.
(c) The Administrative Agent shall have received
certificates of good standing for the Borrower from the Maryland State
Department of Assessments and Taxation and for each Subsidiary Guarantor from
the Secretary of State for the state in which such Subsidiary Guarantor is
incorporated, and for the Borrower from each
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jurisdiction other than Maryland in which the Borrower is qualified to do
business, provided that such Secretaries issue such certificates with respect to
the Borrower.
5.2. This Agreement.
The Administrative Agent shall have received counterparts of
this Agreement signed by each of the parties hereto (or receipt by the
Administrative Agent from a party hereto of a facsimile signature page signed
by such party which shall have agreed to promptly provide the Administrative
Agent with originally executed counterparts hereof).
5.3. Notes.
The Administrative Agent shall have received the Notes, duly
executed by an Authorized Signatory of the Borrower.
5.4. Guaranty.
The Administrative Agent shall have received counterparts of
the Guaranty signed by each of the Subsidiary Guarantors (or receipt by the
Administrative Agent from a party hereto of a facsimile signature page signed
by such party which shall have agreed to promptly provide the Administrative
Agent with originally executed counterparts hereof).
5.5. Other Credit Agreement.
The Administrative Agent shall have received counterparts of
the Other Credit Agreement signed by each of the parties thereto (or receipt by
the Administrative Agent from a party thereto of a facsimile signature page
signed by such party which shall have agreed to promptly provide the
Administrative Agent with originally executed counterparts hereof), and the
Borrower shall have complied with all other conditions of Article 5 of the
Other Credit Agreement which are conditions precedent to the first loan
thereunder.
5.6. Litigation.
There shall be no injunction, writ, preliminary restraining
order or other order of any nature issued by any Governmental Authority in any
respect affecting the transactions provided for herein and no action or
proceeding by or before any Governmental Authority shall have been commenced
and be pending or, to the knowledge of the Borrower, threatened, seeking to
prevent or delay the transactions contemplated by the Loan Documents or
challenging any other terms and provisions hereof or thereof or seeking any
damages in connection therewith and the Administrative
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Agent shall have received a certificate of an Authorized Signatory of the
Borrower to the foregoing effects.
5.7. Opinion of Counsel to the Borrower.
The Administrative Agent shall have received an opinion of (i)
Xxxxx & Xxxxxxx, L.L.P., outside counsel to the Borrower, and (ii) Xxxxxx X.
Xxxxxx, Esq., in-house counsel to the Borrower, and (iii) counsel to each
Subsidiary Guarantor, each addressed to the Administrative Agent and the
Lenders, and each dated the first Borrowing Date, covering the matters set
forth in Exhibit L.
5.8. Fees.
The Facility Fee, to the extent then due and payable, and all
fees payable to the Administrative Agent, the Lead Arranger, the
Co-Documentation Agents and the Lenders shall have been paid.
5.9. Fees and Expenses of Special Counsel.
The fees and expenses of Special Counsel in connection with
the preparation, negotiation and closing of the Loan Documents shall have been
paid.
5.10. Year 2000 Assurances.
On the Effective Date, the Administrative Agent shall have
received such documentation and information from the Borrower and its
Subsidiaries as may be reasonably satisfactory to the Administrative Agent
demonstrating that the representations of the Borrower in Section 4.22 are true
and correct as of the Effective Date.
6. CONDITIONS OF LENDING - ALL LOANS
The obligation of each Lender to make any Revolving Credit Loan, of
the Swingline Lender to make a Swingline Loan or the Issuing Bank to issue a
Letter of Credit is subject to the satisfaction of the following conditions
precedent as of the date of such Loan:
6.1. Compliance.
On each Borrowing Date and after giving effect to the Loans to
be made or created or Letter of Credit issued: (a) the Borrower shall be in
compliance with all of the terms, covenants and conditions hereof, (b) there
shall not exist and be continuing any Default or Event of Default, (c) the
representations and warranties contained in the Loan Documents shall be true
and correct with the same effect as though such
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representations and warranties had been made on such Borrowing Date (except for
representations and warranties that speak as of a specific date, which need only
be true and correct as of such date), (d) the sum of the Revolving Credit Loans,
the LC Exposure and the Swingline Exposure shall not exceed the Total Commitment
Amount, and (e) the total outstanding Swingline Loans shall not exceed the
Swingline Sublimit. Each notice requesting a Revolving Credit Loan, a
Competitive Bid Borrowing, a Swingline Loan or the issuance of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof that each of the foregoing matters is true and
correct in all respects.
6.2. Loan Closings.
All documents required by the provisions of the Loan Documents
to be executed or delivered to the Administrative Agent on or before the
applicable Borrowing Date or prior to the issuance of a Letter of Credit shall
have been executed and shall have been delivered at the office of the
Administrative Agent set forth in Section 11.2 on or before such Borrowing
Date.
6.3. Borrowing Request.
With respect to each borrowing of a Revolving Credit Loan or a
Swingline Loan, the Administrative Agent shall have received a Conventional
Borrowing Request, a Competitive Bid Borrowing Request, or a Swingline
Borrowing Request, as the case may be, duly executed by an Authorized Signatory
of the Borrower. With respect to the issuance of a Letter of Credit, the
Administrative Agent shall have received the documents required pursuant to
Section 2.9(b).
6.4. Documentation and Proceedings.
All corporate matters and legal proceedings and all documents
and papers in connection with the transactions contemplated by the Loan
Documents shall be reasonably satisfactory in form and substance to the
Administrative Agent and the Administrative Agent shall have received all
information and copies of all documents which the Administrative Agent or the
Required Lenders may reasonably have requested in connection therewith, such
documents (where appropriate) to be certified by an Authorized Signatory of the
Borrower or proper Governmental Authorities.
6.5. Required Acts and Conditions.
All acts, conditions and things (including, without
limitation, the obtaining of any necessary regulatory approvals and the making
of any filings, recordings or registrations) required to be done or performed by
the Borrower and to have happened on or prior to such Borrowing Date and which
are necessary for the
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continued effectiveness of the Loan Documents, shall have been done or performed
and shall have happened in due compliance with all applicable laws.
6.6. Approval of Special Counsel.
All legal matters in connection with the making of each Loan
and issuance of each Letter of Credit shall be reasonably satisfactory to
Special Counsel.
6.7. Supplemental Opinions.
If reasonably requested by the Administrative Agent with
respect to the applicable Borrowing Date, there shall have been delivered to
the Administrative Agent favorable supplementary opinions of counsel to the
Borrower, addressed to the Administrative Agent and the Lenders and dated such
Borrowing Date, covering such matters incident to the transactions contemplated
herein as the Administrative Agent may reasonably request.
6.8. Other Documents.
The Administrative Agent shall have received such other
documents and information with respect to the Borrower and its Subsidiaries or
the transactions contemplated hereby as the Administrative Agent or the Lenders
shall reasonably request.
7. AFFIRMATIVE COVENANTS
The Borrower agrees that, so long as any Loan remains outstanding and
unpaid, there exists any LC exposure, any other amount is owing under any Loan
Document to any Lender or the Administrative Agent, or any Lender, the
Swingline Lender or the Issuing Bank shall have any obligation to make Loans or
Swingline Loans, or issue Letters of Credit, the Borrower shall:
7.1. Financial Statements.
Maintain a standard system of accounting in accordance with
GAAP, and furnish or cause to be furnished to the Administrative Agent and each
Lender:
(a) Annual Statements. As soon as available, but in any
event within 120 days after the end of each fiscal year of the Borrower, a copy
of its Consolidated Balance Sheet as at the end of such fiscal year, together
with the related Consolidated Statements of Income, Stockholders' Equity and
Cash Flows as of and through the end of such fiscal year, setting forth in each
case in comparative form the figures for the preceding fiscal year. The
Consolidated Balance Sheets and Consolidated Statements of
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Income, Stockholders' Equity and Cash Flows shall be audited and certified
without qualification by the Accountants, which certification shall (i) state
that the examination by such Accountants in connection with such Consolidated
financial statements has been made in accordance with generally accepted
auditing standards and, accordingly, includes the examination, on a test basis,
of evidence supporting the amounts and disclosures in such Consolidated
financial statements, and (ii) include the opinion of such Accountants that such
Consolidated financial statements present fairly, in all material respects, the
Consolidated financial position of the Borrower and its Subsidiaries, as of the
date of such Consolidated financial statements, and the Consolidated results of
their operations and their cash flows for each of the years identified therein
in conformity with GAAP (subject to any change in the requirements of GAAP).
(b) Annual Operating Statements and Rent Roll. As soon
as available, but in any event within 60 days after the end of each fiscal year
of the Borrower, copies of (i) the operating statements (in a form reasonably
satisfactory to the Administrative Agent) for all Real Property of the
Borrower, and (ii) a Rent Roll, each of which shall be certified by the Chief
Financial Officer to be true, correct and complete in all material respects.
(c) Quarterly Statements. As soon as available, but in
any event within 60 days after the end of the first three fiscal quarters of
the Borrower, a copy of the unaudited Consolidated Balance Sheet of the
Borrower as at the end of each such quarterly period, together with the related
unaudited Consolidated Statements of Income and Cash Flows for the elapsed
portion of the fiscal year through the end of such period, setting forth in
each case in comparative form the figures for the corresponding periods of the
preceding fiscal year, certified by the Chief Financial Officer as being true,
correct and complete in all material respects and as presenting fairly the
Consolidated financial condition and the Consolidated results of operations of
the Borrower and its Subsidiaries.
(d) Quarterly Information Regarding Unencumbered Assets.
As soon as available, but in any event 60 days after the end of each of the
first three fiscal quarters of the Borrower (120 days after the end of the last
fiscal quarter of the Borrower), a list of all the Unencumbered Assets owned by
the Borrower, any wholly owned Subsidiary of the Borrower and each DownREIT
Partnership as of the last day of such fiscal quarter setting forth the
following information with respect to each such Unencumbered Asset as of such
date: (i) asset type (i.e., retail shopping center or residential apartment
building); (ii) location; (iii) percentage of the Unencumbered Asset owned by
the Borrower, any wholly owned Subsidiary of the Borrower and each DownREIT
Partnership; and (iv) the Net Operating Income for such Unencumbered Asset
during such fiscal quarter.
(e) Compliance Certificate. Within 60 days after the end
of each of the first three fiscal quarters of the Borrower (120 days after the
end of the last fiscal
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quarter of the Borrower), a Compliance Certificate, certified by the Chief
Financial Officer, setting forth in reasonable detail the computations
demonstrating the Borrower's compliance with the provisions of Sections 8.12,
8.13, 8.14, 8.15, 8.16 and 8.17.
(f) Other Information. Such other information as the
Administrative Agent or any Lender may reasonably request from time to time.
7.2. Certificates; Other Information.
Furnish to the Administrative Agent and each Lender:
(a) Defaults Under Other Indebtedness. Prompt written
notice if: (i) any Indebtedness of the Borrower or any Subsidiary of the
Borrower is declared or shall become due and payable prior to its stated
maturity, or called and not paid when due, or (ii) a default that extends
beyond any applicable notice or grace period shall have occurred under any note
(other than the Notes) or the holder of any such note, or other evidence of
Indebtedness, certificate or security evidencing any such Indebtedness or any
obligee with respect to any other Indebtedness of the Borrower or any
Subsidiary of the Borrower has the right to declare any such Indebtedness due
and payable prior to its stated maturity, and, in the case of either (i) or
(ii), the Indebtedness that is the subject of (i) or (ii) is, in the aggregate,
$7,500,000 or more;
(b) Action of Governmental Authorities. Prompt written
notice of: (i) any citation, summons, subpoena, order to show cause or other
document naming the Borrower or any Subsidiary of the Borrower a party to any
proceeding before any Governmental Authority which could reasonably be expected
to have a Material Adverse Effect or which calls into question the validity or
enforceability of any of the Loan Documents, and include with such notice a
copy of such citation, summons, subpoena, order to show cause or other
document; (ii) any lapse or other termination of any Intellectual Property,
license, permit, franchise or other authorization issued to the Borrower or any
Subsidiary of the Borrower by any Person or Governmental Authority, which lapse
or termination could reasonably be expected to have a Material Adverse Effect;
and (iii) any refusal by any Person or Governmental Authority to renew or
extend any such material Intellectual Property, license, permit, franchise or
other authorization, which refusal could reasonably be expected to have a
Material Adverse Effect;
(c) SEC or other Governmental Reports and Filings.
Promptly upon becoming available, copies of all regular, periodic or special
reports which the Borrower or any Subsidiary of the Borrower may now or
hereafter be required to file with or deliver to any securities exchange or the
Securities and Exchange Commission, or any other Governmental Authority
succeeding to the functions thereof, pursuant to the Securities Exchange Act of
1934, as amended.
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(d) ERISA Information. Promptly, and in any event within
ten Business Days after the Borrower knows or has reason to know that any of
the events or conditions enumerated below with respect to any Plan or
Multiemployer Plan has occurred or exists, a statement signed by the Chief
Financial Officer, setting forth details with respect to such event or
condition and the action, if any, which the Borrower or an ERISA Affiliate
proposes to take with respect thereto; provided, however, that if such event or
condition is required to be reported or noticed to the PBGC, such statement,
together with a copy of the relevant report or notice to the PBGC, shall be
furnished promptly and in any event not later than ten days after it is
reported or noticed to the PBGC:
(i) any reportable event, as defined in Section
4043(b) of ERISA with respect to a Plan, as to which the PBGC has not
by regulation waived the requirement of Section 4043(a) of ERISA that
it be notified within thirty days of the occurrence of such event
(provided that a failure to meet the minimum funding standard of
Section 412 of the Code or of Section 302 of ERISA, including, without
limitation, the failure to make, on or before its due date, a required
installment under Section 412(m) of the Code or Section 302(e) of ERISA
or the disqualification of such Plan for purposes of Section 4043(b)(1)
of ERISA, shall be a reportable event regardless of the issuance of any
waivers in accordance with Section 412(d) of the Code) and any request
for a waiver under Section 412(d) of the Code for any Plan;
(ii) the distribution under Section 4041 of ERISA
of a notice of intent to terminate any Plan or any action taken by the
Borrower or any ERISA Affiliate to terminate any Plan;
(iii) the institution by the PBGC of proceedings
under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan, or the receipt by the Borrower
or any ERISA Affiliate of a notice from a Multiemployer Plan that such
action has been taken by the PBGC with respect to such Multiemployer
Plan;
(iv) the complete or partial withdrawal from a
Multiemployer Plan by the Borrower or any ERISA Affiliate that results
in liability under Section 4201 or 4204 of ERISA (including the
obligation to satisfy secondary liability as a result of a purchaser
default) or the receipt of the Borrower or any ERISA Affiliate of
notice from a Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA or that it
intends to terminate or has terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a
fiduciary of any Multiemployer Plan against the Borrower or any ERISA
Affiliate to enforce
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Section 515 of ERISA, which proceeding is not dismissed within thirty
days from its commencement;
(vi) the adoption of an amendment to any Plan
pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA
that would result in the loss of the tax-exempt status of the trust of
which such Plan is a part or the Borrower or any ERISA Affiliate fails
to timely provide security to such Plan in accordance with the
provisions of said Sections; and
(vii) any event or circumstance exists which may
reasonably be expected to constitute grounds for the incurrence of
material liability by the Borrower or any ERISA Affiliate under Title
IV of ERISA or under Sections 412(c)(11) or 412(n) of the Code with
respect to any employee benefit plan;
(e) ERISA Reports. Promptly after the request of the
Administrative Agent or any Lender therefor, copies of each annual report filed
pursuant to Section 104 of ERISA with respect to each Plan (including, to the
extent required by Section 104 of ERISA, the related financial and actuarial
statements and opinions and other supporting statements, certifications,
schedules and information referred to in Section 103 of ERISA) and each annual
report filed with respect to each Plan under Section 4065 of ERISA; provided,
however, that in the case of a Multiemployer Plan, such annual reports shall be
furnished only if they are available to the Borrower or any ERISA Affiliate;
(f) Notice of Proposed Sales or Transfers. Quarterly, on
each date that a Compliance Certificate is to be delivered pursuant to Section
7.1(e), a list of all sales or transfers of any Unencumbered Assets (including
any agreements for the sale or transfer of any Unencumbered Asset entered into
during such fiscal quarter but not yet consummated); provided that, if during
any such fiscal quarter of the Borrower any sale or transfer of an Unencumbered
Asset, which combined with all other such sales or transfers of Unencumbered
Assets during such fiscal quarter, would exceed $100,000,000 in the aggregate,
then the Borrower shall promptly provide such list and a certification of the
Chief Financial Officer as to the Borrower's compliance with Sections 8.12 and
8.16;
(g) Casualties or Condemnations. Prompt written notice
of any casualty or condemnation of any Real Property, if such casualty or
condemnation could reasonably be expected to have a Material Adverse Effect;
(h) Environmental Law Notices. Prompt written notice of
any order, notice, claim or proceeding received by, or brought against, the
Borrower or any Subsidiary of the Borrower, or with respect to any of the Real
Property, under any Environmental Law, which could reasonably be expected to
have a Material Adverse Effect;
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(i) Management Letters and Reports. Promptly after the
same are received by the Borrower, copies of all management letters and similar
reports provided to the Borrower by the Accountants;
(j) New Subsidiaries. Notice of any Subsidiary that, as
of the end of any fiscal quarter of the Borrower, satisfies the criteria in
Section 7.11 with respect to Required Additional Guarantors, such notice to be
delivered to the Administrative Agent concurrently with the delivery of the
Compliance Certificate with respect to such quarter;
(k) Changes in Name or Fiscal Year. Prompt written
notice of (i) any change in the Borrower's name, with copies of all filings
with respect to such name change attached thereto, and (ii) any change in its
fiscal year from that in effect on the Effective Date;
(l) Defaults or Events of Default. Prompt written notice
if there shall occur and be continuing a Default or an Event of Default; and
(m) Other Information. Such other information as the
Administrative Agent or any Lender shall reasonably request from time to time.
7.3. Legal Existence.
(a) Borrower's Legal Existence. Maintain its status as a
Maryland corporation in good standing in the State of Maryland and in each
other jurisdiction in which the failure so to do could reasonably be expected
to have a Material Adverse Effect.
(b) Legal Existence of Subsidiaries. Cause each
Subsidiary of the Borrower to maintain its status as a real estate investment
trust, business trust, corporation, limited liability company or partnership,
as the case may be, in good standing in its state of formation and in each
other jurisdiction in which the failure so to do either (i) would result in the
occurrence of a Default, or (ii) could reasonably be expected to have a
Material Adverse Effect.
7.4. Taxes.
Pay and discharge when due, and cause each Subsidiary of the
Borrower so to do, all Taxes, assessments and governmental charges, license
fees and levies upon, or with respect to, the Borrower or such Subsidiary and
all Taxes upon the income, profits and Property of the Borrower and its
Subsidiaries, which if unpaid, could reasonably be expected to have a Material
Adverse Effect, unless and to the extent only that such Taxes, assessments,
governmental charges, license fees and levies shall be contested in good faith
and by appropriate proceedings diligently conducted by the Borrower or such
Subsidiary and such contest has the effect of staying the collection of
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any Lien from any Property of the Borrower or its Subsidiaries arising from such
non-payment, and provided that the Borrower shall give the Administrative Agent
prompt notice of such contest and that such reserve or other appropriate
provision as shall be required in accordance with GAAP (as determined by the
Accountants) shall have been made therefor.
7.5. Insurance.
Maintain, and cause each Subsidiary of the Borrower to
maintain, insurance on its Property against such risks and in such amounts as
is customarily maintained by Persons engaged in similar businesses and owning
similar Properties in the same general areas in which the Borrower or the
relevant Subsidiary operates, and file with the Administrative Agent within 10
Business Days after request therefor a detailed list of such insurance then in
effect, stating the names of the carriers thereof, the policy numbers, the
insureds thereunder, the amounts of insurance, dates of expiration thereof, and
the Property and risks covered thereby, together with a certificate of the
Chief Financial Officer certifying that in the opinion of such officer such
insurance complies with the obligations of the Borrower under this Section, and
is in full force and effect.
7.6. Payment of Indebtedness and Performance of Obligations.
Pay and discharge when due, and cause each Subsidiary of the
Borrower to pay and discharge, all lawful Indebtedness, obligations and claims
for labor, materials and supplies or otherwise which, if unpaid, (i) would
result in a Default, or (ii) could reasonably be expected to have a Material
Adverse Effect, unless (with respect to clause (ii)) such Indebtedness shall be
contested in good faith and by appropriate proceedings diligently conducted by
the Borrower or such Subsidiary and such contest has the effect of staying the
collection of any Lien from any Property of the Borrower or its Subsidiaries
arising from such non-payment, and provided that the Borrower shall give the
Administrative Agent prompt notice of such contest and that such reserve or
other appropriate provision as shall be required in accordance with GAAP (as
determined by the Accountants) shall have been made therefor.
7.7. Maintenance of Property; Environmental Investigations.
(a) In all material respects, at all times, maintain,
protect and keep in good repair, working order and condition (ordinary wear and
tear excepted), and cause each Subsidiary of the Borrower so to do, all
Property necessary to the operation of the Borrower's or such Subsidiary's
business.
(b) In the event that the Administrative Agent shall have
a reasonable basis for believing that Hazardous Substances may be on, at, under
or around any Real Property in violation of any applicable Environmental Law
which, individually or in the
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aggregate could reasonably be expected to have a Material Adverse Effect,
promptly conduct and complete (at the Borrower's expense) all investigations,
studies, samplings and testings relative to such Hazardous Substances as the
Administrative Agent may reasonably request.
7.8. Observance of Legal Requirements.
(a) Observe and comply in all respects, and cause each
Subsidiary of the Borrower so to do, with all laws, ordinances, orders,
judgments, rules, regulations, certifications, franchises, permits, licenses,
directions and requirements of all Governmental Authorities, which now or at
any time hereafter may be applicable to it, except (i) where noncompliance with
any of the foregoing (individually or in the aggregate) could not reasonably be
expected to have a Material Adverse Effect, or (ii) such thereof as shall be
contested in good faith and by appropriate proceedings diligently conducted by
it and such contest has the effect of staying the collection of any Lien from
any Property of the Borrower or its Subsidiaries arising from such
noncompliance, and provided that the Borrower shall give the Administrative
Agent prompt notice of such contest and that such reserve or other appropriate
provision as shall be required in accordance with GAAP (as determined by the
Accountants) shall have been made therefor.
(b) Use and operate all of its facilities and property in
compliance with all Environmental Laws and cause each of its Subsidiaries so to
do, and keep all necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and remain in
compliance therewith and cause each of its Subsidiaries so to do, and handle
all Hazardous Materials in compliance with all applicable Environmental Laws
and cause each of its Subsidiaries so to do, except where noncompliance with any
of the foregoing (individually or in the aggregate) could not reasonably be
expected to have a Material Adverse Effect.
7.9. Inspection of Property; Books and Records; Discussions.
Keep proper books of record and account in which full, true
and correct entries in conformity with GAAP and all requirements of law shall
be made of all dealings and transactions in relation to its business and
activities and permit representatives of the Administrative Agent and any
Lender during normal business hours and on reasonable prior notice to visit its
offices, to inspect any of its Property and to examine and make copies or
abstracts from any of its books and records as often as may reasonably be
desired, and to discuss the business, operations, prospects, licenses, Property
and financial condition of the Borrower or and its Subsidiaries with the
officers thereof and the Accountants.
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7.10. Licenses, Intellectual Property.
Maintain, and cause each Subsidiary of the Borrower to
maintain, in full force and effect, all material licenses, franchises,
Intellectual Property, permits, authorizations and other rights as are
necessary for the conduct of its business.
7.11. Required Additional Guarantors.
At any time after the date hereof, and with respect to any
Subsidiary of the Borrower, whether presently existing or hereafter formed or
acquired (other than Excel Realty Partners, L.P. and E. H. Properties, L.P.)
which is not a Subsidiary Guarantor at such time, cause such Subsidiary to
execute and deliver a Guaranty to the Administrative Agent, for the benefit of
the Lenders, promptly after the Administrative Agent's request therefor, duly
executed by such Subsidiary (together with the certificates and attachments
described in Section 5.1(b) and (c) with respect to such Subsidiary and an
opinion of counsel in the form required pursuant to Section 5.7(iii)) if at
such time such Subsidiary owns Property having a book value of $75,000,000 or
more. Notwithstanding the foregoing, the foregoing book value conditions of
this Section shall not be applicable from and after the occurrence of, and
during the continuance of, an Event of Default (it being understood that at
such time, the Administrative Agent can require any Subsidiary of the Borrower
which has not executed a Guaranty to immediately comply with requirements of
this Section).
7.12. REIT Status; Operation of Business.
(a) Maintain its status under Sections 856 et seq. of the
Code as a REIT.
(b) Carry on all business operations of the Borrower as a
self-advised, self-managed REIT.
(c) Manage, or cause one or more of its Subsidiaries at
all times to manage, at least 90% of all Properties of the Borrower and its
Subsidiaries.
7.13. Termination of Existing Credit Agreements.
On the Effective Date, the Borrower shall qualify for, and shall
request, a Loan for the purpose of paying all loans outstanding under the
Existing Credit Agreements, together with all interest, fees, breakage costs
and other amounts outstanding thereunder, and shall terminate any commitment,
or right to borrow, under the Existing Credit Agreements.
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8. NEGATIVE COVENANTS
The Borrower agrees that, so long as any Loan remains outstanding and
unpaid, there exists any LC exposure, any other amount is owing under any Loan
Document to any Lender or the Administrative Agent, or any Lender, the
Swingline Lender or the Issuing Bank shall have any obligation to make Loans or
Swingline Loans, or issue Letters of Credit, the Borrower shall not, directly
or indirectly:
8.1. Liens.
Create, incur, assume or suffer to exist any Lien upon any of
its Property, whether now owned or hereafter acquired, or permit any Subsidiary
of the Borrower so to do, except (i) Liens for Taxes, assessments or similar
charges incurred in the ordinary course of business which are not delinquent or
the existence of which do not otherwise violate the representations in Section
7.4, (ii) Liens in connection with workers' compensation, unemployment
insurance or other social security obligations (but not ERISA), (iii) deposits
or pledges to secure bids, tenders, contracts (other than contracts for the
payment of money), leases, statutory obligations, surety and appeal bonds and
other obligations of like nature arising in the ordinary course of business,
(iv) zoning ordinances, easements, rights of way, use restrictions, exclusive
use limitations in any lease of Real Property, reciprocal easement agreements,
minor defects, irregularities, and other similar restrictions and encumbrances
affecting Real Property, which do not materially adversely affect the value of
such Real Property or the financial condition of the Borrower or such Subsidiary
of the Borrower or materially impair its use for the operation of the business
of the Borrower or such Subsidiary, (v) statutory Liens arising by operation of
law such as mechanics', materialmen's, carriers', warehousemen's liens incurred
in the ordinary course of business which are not delinquent or the existence of
which do not otherwise violate the representations in Section 7.6, (vi) Liens
arising out of judgments or decrees which are being contested in accordance with
Section 7.8 or the existence of which do not otherwise violate the
representations in Section 7.8 or result in a default pursuant to Section
9.1(j), (vii) mortgages on Real Property, provided that the existence of such
mortgages, and the indebtedness secured thereby, does not cause the Borrower to
be in violation of Section 8.12 or 8.16, (viii) Liens in favor of the Borrower
or any Subsidiary Guarantor, provided that the Indebtedness secured by any such
Lien is held by the Borrower or such Subsidiary Guarantor, (ix) the interests of
lessees and lessors under leases of real or personal property made in the
ordinary course of business which could not reasonably be expected (individually
or in the aggregate) to have a Material Adverse Effect and (x) Liens not
otherwise permitted by clauses (i) through (ix) of this Section which do not in
the aggregate exceed $5,000,000.
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8.2. Merger, Consolidation and Certain Dispositions of Property.
(a) Consolidate with, be acquired by, or merge into or
with any Person, or sell, lease or otherwise dispose of all or substantially
all of its Property (in one transaction or a series of transactions), or permit
any Subsidiary Guarantor of the Borrower so to do, or liquidate or dissolve,
except (i) the merger or consolidation of any Subsidiary Guarantor of the
Borrower into or with the Borrower, (ii) the merger or consolidation of any two
or more Subsidiary Guarantors, or (iii) the merger or consolidation of the
Borrower or Subsidiary Guarantor with any other Person, provided that (A) the
Borrower or such Subsidiary Guarantor is the surviving entity in such merger or
consolidation, (B) the total book value of the assets of the entity which is
merged into or consolidated with the Borrower or such Subsidiary Guarantor is
less than 20% of the total book value of the assets of the Borrower immediately
following such merger or consolidation, (C) immediately prior to such merger or
consolidation the Borrower shall have provided to the Administrative Agent and
each of the Lenders a Compliance Certificate prepared on a pro-forma basis (and
adjusted in the best good faith estimate of the Borrower, based on the advice of
the Accountants, to give effect to such merger or consolidation) demonstrating
that after giving effect to such merger or consolidation, no Default shall exist
with respect to any of the covenants set forth in Sections 8.12, 8.13, 8.14,
8.15, 8.16 and 8.17 and (D) after giving effect to such merger or consolidation,
no Event of Default shall exist.
(b) Sell, transfer, master lease or dispose of any of its
Property, either directly or indirectly, except that if at the time thereof and
immediately after giving effect thereto, no Default shall have occurred, (i)
any Subsidiary of the Borrower may sell, transfer, master lease or otherwise
dispose of its assets to the Borrower or to any other Subsidiary, and (ii) the
Borrower or any Subsidiary of the Borrower may sell Property in an arm's length
transaction (or, if the transaction involves an Affiliate of the Borrower or a
Subsidiary of the Borrower, if the transaction complies with Section 8.8) for
the fair market value thereof, as reasonably determined by the Borrower,
provided that such sale could not reasonably be expected to have a Material
Adverse Effect and provided further that for any fiscal year of the Borrower,
any sale, transfer, master lease or disposition of Property in reliance on this
clause (ii) which when combined with all other such sales, transfers, master
leases or dispositions made in such fiscal year shall not exceed 25% of the
total book value of all Property of the Borrower and its Subsidiaries
determined as of the first day of such fiscal year.
8.3. Investments, Loans, Etc.
At any time, purchase or otherwise acquire, hold or invest in
the Stock of, or any other interest in, any Person, or make any loan or advance
to, or enter into any arrangement for the purpose of providing funds or credit
to, or make any other investment, whether by way of capital contribution, time
deposit or otherwise, in or with
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any Person, or permit any Subsidiary of the Borrower so to do, (all of which are
sometimes referred to herein as "Investments") except the following (to the
extent that maintaining any thereof would not at any time violate the
requirements of Section 856(c) of the Code):
(a) demand deposits, certificates of deposit, bankers
acceptances and domestic and eurodollar time deposits with any Lender, or any
other commercial bank, trust company or national banking association
incorporated under the laws of the United States or any State thereof and
having undivided capital, surplus and undivided profits exceeding $500,000,000
and a long term debt rating of A or A2, as determined, respectively, by S&P and
Xxxxx'x;
(b) short-term direct obligations of the United States of
America or agencies thereof whose obligations are guaranteed by the United
States of America;
(c) securities commonly known as "commercial paper"
issued by a corporation organized and existing under the laws of the United
States or any State thereof which at the time of purchase are rated by S&P or
Xxxxx'x at not less than "A1" or "P1," respectively;
(d) mortgage-backed securities guaranteed by the
Governmental National Mortgage Association, the Federal National Mortgage
Association or the Federal Home Loan Mortgage Corporation and other
mortgage-backed bonds which at the time of purchase are rated by S&P or Xxxxx'x
at not less than "Aa" or "AA," respectively;
(e) repurchase agreements having a term not greater than
90 days and fully secured by securities described in the foregoing paragraph
(b) or (d) with banks described in the foregoing paragraph (a) or with
financial institutions or other corporations having total assets in excess of
$50,000,000;
(f) shares of "money market funds" registered with the
SEC under the Investment Company Act of 1940 which maintain a level per-share
value, invest principally in the investments described in one or more of the
foregoing paragraphs (a) through (e) and have total assets of in excess of
$50,000,000;
(g) Real Property and loans secured by mortgages on Real
Property;
(h) equity investments in any Person (other than
Subsidiaries) and notes receivable investments in any Person (other than
Subsidiaries), the aggregate principal amount of which (combined with any other
equity investments and notes receivable investments in any Person permitted
pursuant to this paragraph (h)) do not exceed 25% of the Total Capital of the
Borrower;
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(i) Investments (debt or equity) in Subsidiaries of the
Borrower;
(j) investments in respect of (1) equipment, inventory
and other tangible personal property acquired in the ordinary course of
business, (2) current trade and customer accounts receivable for services
rendered in the ordinary course of business, (3) advances to employees for
travel expenses other company-related expenses, and (4) prepaid expenses made
in the ordinary course of business;
(k) Hedging Agreements made in connection with any
Indebtedness;
(l) repurchases of any common or preferred stock or other
equity interests (or securities convertible into such interests) in the
Borrower or any Subsidiary that have been previously issued by the Borrower or
such Subsidiary, which do not exceed, in any calendar year, (1) 10% of the
outstanding shares of common or preferred stock or other equity interests in
Borrower or such Subsidiary, as applicable, as of the date hereof, plus (2) 10%
of any additional shares of common or preferred stock or other equity interests
in Borrower or such Subsidiary, as applicable, issued after the date hereof;
(m) redemptions of preferred stock of the Borrower in
accordance with the terms thereof;
(n) redemptions for cash or common Stock of the Borrower
of units of limited partner interests or limited liability company interests in
a DownREIT Partnership;
(o) loans to employees of the Borrower, provided that all
such loans in the aggregate do not at any time exceed $15,000,000 in the
aggregate; and
(p) any other Investments not included in paragraphs (a)
through (o) deemed appropriate by the Borrower, provided that in no event shall
Investments made in reliance upon the exception set forth in this paragraph (p)
exceed $50,000,000 at any one time;
8.4. Business Changes.
Change in any material respect the nature of the business of
the Borrower or its Subsidiaries as conducted on the Effective Date.
8.5. Amendments to Organizational Documents.
Amend or otherwise modify its corporate charter or by-laws in
any way (other than in connection with the issuance or classification of
preferred stock of the Borrower) which would adversely affect the interests of
the Administrative Agent and
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the Lenders under any of the Loan Documents, or permit any Subsidiary of the
Borrower to amend its organizational documents in a manner which could have the
same result.
8.6. Bankruptcy Proceedings.
Institute against the Administrative Agent, the
Co-Documentation Agents or any Lender, or join any other Person in instituting
against the Administrative Agent, the Co-Documentation Agents or any Lender,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other proceeding under any federal or state bankruptcy or similar
law, for one year and a day after the payment or prepayment in full of the
Indebtedness due hereunder.
8.7. Sale and Leaseback.
Enter into any arrangement with any Person providing for the
leasing by it of Property which has been or is to be sold or transferred by it
to such Person or to any other Person to whom funds have been or are to be
advanced by such Person on the security of such Property or its rental
obligations, or permit any Subsidiary of the Borrower so to do, except for sale
and leasing transactions described herein for which the combined selling price
of all Property subject to all such transactions does not exceed $50,000,000 in
the aggregate.
8.8. Transactions with Affiliates.
Become a party to any transaction in an amount that exceeds
$60,000 with an Affiliate unless the terms and conditions relating thereto (i)
have been approved by a majority of the disinterested directors of the
Borrower, (ii) have been approved by a majority of votes cast by the
stockholders of the Borrower, or (iii) are fair and reasonable to the Borrower,
or permit any Subsidiary of the Borrower so to do.
8.9. Issuance of Additional Capital Stock by Subsidiary Guarantors.
Permit any Subsidiary Guarantor to issue any additional Stock
or other equity interest of such Subsidiary Guarantor, other than the issuance
of partnership or limited liability company units in a DownREIT Partnership
which is a Subsidiary Guarantor, provided that such units are issued in
consideration of the contribution to the DownREIT Partnership of assets
qualifying as "real estate assets" under Section 856(c) of the Code.
8.10. Hedging Agreements
Enter into, or permit any of its Subsidiaries so to do, any
Hedging Agreement, other than Hedging Agreements entered into in the ordinary
course of business to hedge or mitigate interest rate risks to which the
Borrower or any Subsidiary
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of the Borrower is exposed in the conduct of its business or the management of
its liabilities.
8.11. Restricted Payments.
(a) Permit the Borrower to make Restricted Payments,
except that:
(i) except as set forth in clause (ii) below, the
Borrower may declare and pay dividends payable with respect to its
equity securities in any fiscal quarter of the Borrower if after
giving effect to such dividend, such dividend, when added to the
amount of all other such dividends paid in the same fiscal quarter and
the preceding three (3) fiscal quarters, would not exceed the greater
of (A) ninety percent (90%) of its Funds from Operations for the four
consecutive fiscal quarters ending prior to the quarter in which such
dividend is paid, or (B) the minimum amount of such dividends required
under the Code to enable the Borrower to continue to maintain its
status under the Code as a REIT, as evidenced (in the case of clause
(B)) by a certification of Chief Financial Officer containing
calculations in reasonable detail satisfactory in form and substance
to Administrative Agent;
(ii) if an Event of Default under Section 9.1(a)
or (b) has occurred and is continuing, the Borrower may declare and
pay dividends with respect to its equity securities which shall not
exceed the minimum such dividends required under the Code to enable
the Borrower to continue to maintain its status under the Code as a
REIT, as evidenced by a certification of Chief Financial Officer
containing calculations in reasonable detail satisfactory in form and
substance to Administrative Agent;
(iii) the Borrower may effect Stock repurchases to
the extent permitted by Section 8.3(l);
(iv) the Borrower may effect "cashless exercises"
of options granted under the Borrower's stock option plans;
(v) the Borrower may distribute rights or equity
securities under any rights plan adopted by the Borrower; and
(vi) the Borrower may declare and pay dividends
(or effect Stock splits or reverse Stock splits) with respect to its
equity securities payable solely in additional shares of its equity
securities.
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8.12. Unencumbered Assets Coverage Ratio.
Permit the Unencumbered Assets Coverage Ratio to be less than
2.0:1.0 at any time.
8.13. Fixed Charge Coverage Ratio.
Permit the Fixed Charge Coverage Ratio to be less than
1.75:1.0 at any time.
8.14. Minimum Tangible Net Worth.
Permit the Tangible Net Worth of the Borrower and its
Subsidiaries on a Consolidated basis at any time to be less than the sum of (i)
$1,200,000,000, plus (ii) 80% of the aggregate net proceeds received by the
Borrower from and after the Effective Date, in connection with the issuance of
any capital stock of the Borrower.
8.15. Maximum Total Indebtedness.
Permit at any time either (i) all Consolidated Total
Indebtedness at such time to be more than 55% of Total Capital at such time, or
(ii) the Consolidated Total Indebtedness secured by mortgages on Real Property
owned by the Borrower and its Subsidiaries at such time to exceed 40% of Total
Capital at such time.
8.16. Liabilities to Assets Ratio.
Permit, at any time, the portion of the Consolidated Total
Indebtedness consisting of Consolidated unsecured Indebtedness of the Borrower
and its Subsidiaries at such time to be more than 50% of Unencumbered Asset
Value at such time.
8.17. Maximum Book Value of Ancillary Assets.
Permit the book value of the Ancillary Assets at any time to
be more than 20% of the book value of all assets of the Borrower and its
Subsidiaries on a Consolidated basis at such time. For purposes of this
Section 8.17 the book value of any Ancillary Asset not owned 100%, directly or
indirectly, by the Borrower or any of its Subsidiaries shall be adjusted by
multiplying the same by the Borrower's Interest in such Ancillary Asset during
the fiscal quarter of the Borrower ending as of any date of determination of
such book value.
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9. DEFAULT
9.1. Events of Default.
The following shall each constitute an "Event of Default"
hereunder:
(a) The failure of the Borrower to pay any installment of
principal on any Note on the date when due and payable; or
(b) The failure of the Borrower to pay any installment of
interest or any other fees, expenses or other charges payable under any Loan
Document within five Business Days of the date when due and payable; or
(c) The use of the proceeds of any Loan in a manner
inconsistent with or in violation of Section 2.17; or
(d) The failure of the Borrower to observe or perform any
covenant or agreement contained in Section 7.3, 7.12(a), 7.12(b), or 8 (other
than Section 8.1, as to which the provisions of paragraph (e) below shall
apply); or
(e) The failure to observe or perform any other term,
covenant, or agreement contained in any Loan Document and such failure shall
have continued unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Borrower; or
(f) Any representation or warranty of the Borrower (or of
any officer of the Borrower on its behalf) made in any Loan Document to which
it is a party or in any certificate, report, opinion (other than an opinion of
counsel) or other document delivered or to be delivered pursuant thereto, shall
prove to have been incorrect or misleading (whether because of misstatement or
omission) in any material respect when made; or
(g) Any obligation of the Borrower (other than its
obligations under the Notes) or any Subsidiary of the Borrower, whether as
principal, guarantor, surety or other obligor, for the payment of any
Indebtedness shall (i) become or shall be declared to be due and payable prior
to the expressed maturity thereof, or (ii) shall not be paid when due or within
any grace period for the payment thereof, or (iii) shall be subject, by the
holder of the obligation evidencing such Indebtedness, to acceleration (after
the expiration of any applicable notice and cure periods) prior to the
expressed maturity thereof, and the sum of all such Indebtedness which is the
subject of paragraphs (i) - (iii) inclusive exceeds (A) at any time, in the
case of Indebtedness other than Non-Recourse Indebtedness, $7,500,000, and (B)
in any calendar year, in the case of Non-Recourse Indebtedness, $50,000,000 in
the aggregate during such year; or
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(h) The Borrower or any Subsidiary Guarantor of the
Borrower shall (i) suspend or discontinue its business, (ii) make an assignment
for the benefit of creditors, (iii) generally not be paying its debts as such
debts become due, (iv) admit in writing its inability to pay its debts as they
become due, (v) file a voluntary petition in bankruptcy, (vi) become insolvent
(however such insolvency shall be evidenced), (vii) file any petition or answer
seeking for itself any reorganization, arrangement, composition, readjustment
of debt, liquidation or dissolution or similar relief under any present or
future statute, law or regulation of any jurisdiction, (viii) petition or apply
to any tribunal for any receiver, custodian or any trustee for any substantial
part of its Property, (ix) be the subject of any such proceeding filed against
it which remains undismissed for a period of 60 days, (x) file any answer
admitting or not contesting the material allegations of any such petition filed
against it or any order, judgment or decree approving such petition in any such
proceeding, (xi) seek, approve, consent to, or acquiesce in any such
proceeding, or in the appointment of any trustee, receiver, custodian,
liquidator, or fiscal agent for it, or any substantial part of its Property, or
an order is entered appointing any such trustee, receiver, custodian,
liquidator or fiscal agent and such order remains in effect for 60 days, or
(xii) take any formal action for the purpose of effecting any of the foregoing;
or
(i) An order for relief is entered under the United
States bankruptcy laws or any other decree or order is entered by a court
having jurisdiction (i) adjudging the Borrower or any Subsidiary Guarantor
bankrupt or insolvent, (ii) approving as properly filed a petition seeking
reorganization, liquidation, arrangement, adjustment or composition of or in
respect of the Borrower or any Subsidiary Guarantor under the United States
bankruptcy laws or any other applicable Federal or state law, (iii) appointing
a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of the Borrower or any Subsidiary Guarantor or of any
substantial part of the Property thereof, or (iv) ordering the winding up or
liquidation of the affairs of the Borrower or any Subsidiary Guarantor, and any
such decree or order continues unstayed and in effect for a period of 60 days;
or
(j) Judgments or decrees against the Borrower or any
Subsidiary of the Borrower aggregating in excess of $5,000,000 shall not be
paid, stayed on appeal, discharged, bonded or dismissed for a period of 45
days; or
(k) Any Loan Document shall cease, for any reason, to be
in full force and effect, or the Borrower shall so assert in writing or shall
disavow any of its obligations thereunder; or
(l) An event or condition specified in Section 7.2(d)
shall occur or exist with respect to any Plan or Multiemployer Plan and, as a
result of such event or condition, together with all other such events or
conditions, the Borrower shall be reasonably likely to incur a liability to a
Plan, a Multiemployer Plan, the PBGC, or any
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combination thereof which would constitute, in the reasonable opinion of the
Required Lenders, a Material Adverse Effect; or
(m) There shall occur a Change of Control; or
(n) If any Loan Document (i) is determined by any court
or Governmental Authority to be illegal, invalid or unenforceable in accordance
with its terms, or (ii) shall be canceled, terminated, revoked or rescinded
other than in accordance with its terms or with the written consent or approval
of the Lenders; or
(o) (i) Any Subsidiary Guarantor shall fail to comply in
any material respect with any covenant made by it in the Guaranty or if at any
time any representation or warranty made by any Subsidiary Guarantor in the
Guaranty or in any other document, statement or writing made to the Agent, the
Co-Documentation Agents, the Lead Arranger or the Lenders shall prove to have
been incorrect or misleading in any material respect when made, or (ii) if a
default by any Subsidiary Guarantor shall occur under the Guaranty after the
expiration of any applicable notice and grace period; or (iii) if any Subsidiary
Guarantor shall revoke or attempt to revoke, contest, commence any action or
raise any defense (other than the defense of payment) against its obligations
under the Guaranty; or
(p) There shall occur an Event of Default under and as
defined in the Other Credit Agreement.
Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof, (a) if such event is an Event of
Default specified in clause (h) or (i) above, the Commitments shall immediately
and automatically terminate and the Loans, all accrued and unpaid interest
thereon, and all other amounts owing under the Loan Documents shall immediately
become due and payable, and the Administrative Agent may, and upon the
direction of the Required Lenders shall, exercise any and all remedies and
other rights provided in the Loan Documents, and (b) if such event is any other
Event of Default, any or all of the following actions may be taken: (i) with
the consent of the Required Lenders, the Administrative Agent may, and upon the
direction of the Required Lenders shall, by notice to the Borrower, declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the consent of the Required Lenders, the
Administrative Agent may, and upon the direction of the Required Lenders shall,
by notice of default to the Borrower, declare the Loans, all accrued and unpaid
interest thereon and all other amounts owing under the Loan Documents to be due
and payable forthwith, whereupon the same shall immediately become due and
payable, and the Administrative Agent may, and upon the direction of the
Required Lenders shall, exercise any and all remedies and other rights provided
pursuant to the Loan Documents. Except as otherwise provided in this Section,
presentment, demand, protest and all other
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notices of any kind are hereby expressly waived. The Borrower hereby further
expressly waives and covenants not to assert any appraisement, valuation, stay,
extension, redemption or similar laws, now or at any time hereafter in force
which might delay, prevent or otherwise impede the performance or enforcement of
any Loan Document.
In the event that the Commitments shall have been terminated
or the Notes shall have been declared due and payable pursuant to the
provisions of this Section, any funds received by the Administrative Agent and
the Lenders from or on behalf of the Borrower shall be applied by the
Administrative Agent and the Lenders in liquidation of the Loans and the
obligations of the Borrower under the Loan Documents in the following manner
and order: (i) first, to the payment of interest on and then the principal
portion of any Loans which the Administrative Agent may have advanced on behalf
of any Lender for which the Administrative Agent has not then been reimbursed
by such Lender or the Borrower; (ii) second, to the payment of any fees or
expenses due the Administrative Agent from the Borrower; (iii) third, to
reimburse the Administrative Agent and the Lenders for any expenses (to the
extent not paid pursuant to clause (ii)), due from the Borrower pursuant to the
provisions of Section 11.5; (iv) fourth, to the payment of accrued Facility
Fees, and all other fees, expenses and amounts due under the Loan Documents
(other than principal and interest on the Notes); (v) fifth, to the payment of
interest due on the Notes; (vi) sixth, to the payment of principal outstanding
on the Notes; and (vii) seventh, to the payment of any other amounts owing to
the Administrative Agent, the Co-Documentation Agents, the Lead Arranger and
the Lenders under any Loan Document or other document or agreement entered into
in connection with the transactions contemplated thereby.
10. THE AGENT
10.1. Appointment.
Each Lender hereby irrevocably designates and appoints BNY as
the Administrative Agent of such Lender under the Loan Documents and each such
Lender hereby irrevocably authorizes BNY, as the Administrative Agent for such
Lender, to take such action on its behalf under the provisions of the Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of the Loan Documents,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in any Loan Document,
the Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth therein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into the Loan Documents or otherwise
exist against the Administrative Agent.
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10.2. Delegation of Duties.
The Administrative Agent may execute any of its duties under
the Loan Documents by or through agents or attorneys-in-fact and shall be
entitled to rely upon the advice of counsel concerning all matters pertaining
to such duties.
10.3. Exculpatory Provisions.
Neither the Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with the Loan Documents (except for its own gross
negligence or willful misconduct), or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by
the Borrower or any officer thereof contained in the Loan Documents or in any
certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent under or in connection with, the
Loan Documents or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of any of the Loan Documents or for any failure
of the Borrower or any other Person to perform its obligations thereunder. The
Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, the Loan Documents, or to inspect
the properties, books or records of the Borrower. The Administrative Agent
shall not be under any liability or responsibility whatsoever, as
Administrative Agent, to the Borrower or any other Person as a consequence of
any failure or delay in performance, or any breach, by any Lender of any of its
obligations under any of the Loan Documents.
10.4. Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, opinion, letter, cablegram, telegram, telecopy, telex
or teletype message, statement, order or other document or conversation
reasonably believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrower),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may treat each Lender, or the Person designated in the
last notice filed with it under this Section, as the holder of all of the
interests of such Lender in its Loans and in its Note until written notice of
transfer, signed by such Lender (or the Person designated in the last notice
filed with the Administrative Agent) and by the Person designated in such
written notice of transfer, in form and substance satisfactory to the
Administrative Agent, shall have been filed with the Administrative Agent. The
Administrative Agent shall not be under any duty to examine or pass upon the
validity,
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effectiveness or genuineness of the Loan Documents or any instrument, document
or communication furnished pursuant thereto or in connection therewith, and the
Administrative Agent shall be entitled to assume that the same are valid,
effective and genuine, have been signed or sent by the proper parties and are
what they purport to be. The Administrative Agent shall be fully justified in
failing or refusing to take any action under the Loan Documents unless it shall
first receive such advice or concurrence of the Required Lenders as it deems
appropriate. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under the Loan Documents in accordance
with a request or direction of the Required Lenders, and such request or
direction and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Notes.
10.5. Notice of Default.
The Administrative Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default unless the
Administrative Agent has received written notice thereof from a Lender or the
Borrower. In the event that the Administrative Agent receives such a notice,
the Administrative Agent shall promptly give notice thereof to the Lenders.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders,
provided, however, that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem to be in the best
interests of the Lenders.
10.6. Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representations or warranties to
it and that no act by the Administrative Agent hereinafter, including any
review of the affairs of the Borrower, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
evaluation of and investigation into the business, operations, Property,
financial and other condition and creditworthiness of the Borrower and made its
own decision to enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, evaluations
and decisions in taking or not taking action under any Loan Document, and to
make such investigation as it deems necessary to inform itself as to the
business, operations, Property, financial and other condition and
creditworthiness of the
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Borrower. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
Property, financial and other condition or creditworthiness of the Borrower
which may come into the possession of the Administrative Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates.
10.7. Indemnification.
Each Lender agrees to indemnify and reimburse the
Administrative Agent in its capacity as such (to the extent not promptly
reimbursed by the Borrower and without limiting the obligation of the Borrower
to do so), pro rata according to its Commitment, from and against any and all
liabilities, obligations, claims, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever
including, without limitation, any amounts paid to the Lenders (through the
Administrative Agent) by the Borrower pursuant to the terms of the Loan
Documents, that are subsequently rescinded or avoided, or must otherwise be
restored or returned) which may at any time (including, without limitation, at
any time following the payment of the Notes) be imposed on, incurred by or
asserted against the Administrative Agent in any way relating to or arising out
of the Loan Documents or any other documents contemplated by or referred to
therein or the transactions contemplated thereby or any action taken or omitted
to be taken by the Administrative Agent under or in connection with any of the
foregoing; provided, however, that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements to the extent
resulting solely from the gross negligence or willful misconduct of the
Administrative Agent. The agreements in this Section shall survive the payment
of all amounts payable under the Loan Documents.
10.8. Administrative Agent in Its Individual Capacity.
BNY and its affiliates may make loans to, accept deposits
from, issue letters of credit for the account of, and generally engage in any
kind of business with, the Borrower as though BNY was not Administrative Agent
hereunder. With respect to the Commitment made or renewed by BNY and the Note
issued to BNY, BNY shall have the same rights and powers under the Loan
Documents as any Lender and may exercise the same as though it was not the
Administrative Agent, and the terms "Lender" and "Lenders" shall in each case
include BNY.
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10.9. Successor Administrative Agent.
If at any time the Administrative Agent deems it advisable, in
its sole discretion, it may submit to each of the Lenders a written notice of
its resignation as Administrative Agent under this Agreement, such resignation
to be effective upon the earlier of (i) the written acceptance of the duties of
the Administrative Agent under the Loan Documents by a successor Administrative
Agent and (ii) on the 60th day after the date of such notice. Upon any such
notice of resignation, the Required Lenders shall have the right to appoint
from among the Lenders a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders and
accepted such appointment in writing within 45 days after the retiring
Administrative Agent's giving of notice of resignation, then the retiring
Administrative Agent shall, in consultation with the Borrower, appoint a
successor Administrative Agent on behalf of the Lenders prior to the end of the
60th day from such notice from among any of the Lenders who shall have at such
time a Commitment of at least $15,000,000 (an "Approved Successor"). If no
Lender has a Commitment of at least $15,000,000 (or no Lender whose Commitment
is at least $15,000,000 shall agree to accept such appointment), then the
retiring Administrative Agent shall, in consultation with the Borrower, appoint
any other Lender or any other commercial bank organized under the laws of the
United States of America or any State thereof and having a combined capital and
surplus of at least $100,000,000 as a successor Administrative Agent. Any
appointment of a successor Administrative Agent shall be subject to the approval
of the Borrower, which approval shall not be unreasonably withheld or delayed,
and shall be given in any event prior to the end of the 60th day from the date
of the retiring Administrative Agent's notice of resignation, provided that
during any period in which either (i) a Competitive Bid Advance is outstanding,
or (ii) there exists and is continuing an Event of Default, no approval from the
Borrower to the appointment of an Approved Successor shall be required. Upon the
acceptance of an appointment as Administrative Agent hereunder by a successor
Administrative Agent and any required approval of such successor Administrative
Agent by the Borrower in accordance with the terms of this Section, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent's rights, powers, privileges and
duties as Administrative Agent under the Loan Documents shall be terminated. The
Borrower and the Lenders shall execute such documents as shall be necessary to
effect such appointment. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of the Loan Documents shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under the Loan Documents.
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10.10. Exculpation of Co-Documentation Agents.
Neither of the Co-Documentation Agents has any rights,
obligations, liabilities, responsibilities or duties under the Agreement other
than those applicable to all Lenders as such.
11. OTHER PROVISIONS.
11.1. Amendments and Waivers.
With the written consent of the Required Lenders, the
Administrative Agent and the Borrower may, from time to time, enter into
written amendments, supplements or modifications of the Loan Documents and, with
the consent of the Required Lenders, the Administrative Agent on behalf of the
Lenders may execute and deliver to any such parties a written instrument waiving
or a consent to a departure from, on such terms and conditions as the
Administrative Agent may specify in such instrument, any of the requirements of
the Loan Documents or any Default or Event of Default and its consequences;
provided, however, that no such amendment, supplement, modification, waiver or
consent shall, without the consent of all of the Lenders: (i) change the
Commitments of any Lender or the Total Commitment Amount, (ii) extend the
Revolving Credit Termination Date; (iii) decrease the rate, or extend the time
of payment, of interest of, or change or forgive the principal amount of, or
change the requirement that payments and prepayments of principal of, and
payments of interest on, the Notes be made pro rata to the Lenders on the basis
of the outstanding principal amount of the Loans, (iv) amend the definition of
"Required Lender", (v) amend the definition of "Applicable Facility Fee
Percentage" or "Applicable Margin," (vi) release any Subsidiary Guarantor from
its obligations under any Guaranty, or (vii) change the provisions of Section
2.11, 2.12, 2.13, 2.14, 2.15, 2.16, 2.17, 2.18, 3.1 or 11.1; and provided
further that no change of Section 2.8 may be effected without the consent of the
Swingline Lender, and no change of Section 2.9 may be effected without the
consent of the Issuing Bank; and provided further that no such amendment,
supplement, modification, waiver or consent shall amend, modify, waive or
consent to a departure from any provision of Section 10 or otherwise change any
of the rights or obligations of the Administrative Agent under the Loan
Documents without the written consent of the Administrative Agent; and provided
further that no such amendment, supplement, modification, waiver or consent
shall, unless in writing and signed by the Designating Lender on behalf of each
Designated Lender affected thereby, (a) subject such Designated Lender to any
additional obligations, (b) reduce the principal of, interest on, or other
amounts due with respect to, the Competitive Bid Borrowings made payable to such
Designated Lender, (c) postpone any date fixed for any payment of principal of,
or interest on, or other amounts due with respect to, Competitive Bid Borrowings
made payable to such Designated Lender, or (d) amend the definition of Required
Lenders
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hereunder in a manner which adversely affects the rights of such Designated
Lender. The Administrative Agent shall cause a copy of each written request for
such an amendment, supplement or modification delivered by the Borrower to it to
be delivered to each Lender. Any such amendment, supplement, modification,
waiver or consent shall apply equally to each of the Lenders and shall be
binding upon the parties to the applicable agreement, the Lenders, the
Administrative Agent and all future holders of the Notes. In the case of any
waiver, the parties to the applicable agreement, the Lenders and the
Administrative Agent shall be restored to their former position and rights under
the Loan Documents, and any Default or Event of Default waived shall not extend
to any subsequent or other Default or Event of Default, or impair any right
consequent thereon.
11.2. Notices.
All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made when
delivered by hand, or if sent by certified mail (return receipt requested),
when the return receipt is signed on behalf of the party to whom such notice is
given, or in the case of telecopier notice, when sent, or if sent by overnight
nationwide commercial courier, the Business Day following the date such notice
is deposited with said courier, and in any case addressed as follows in the
case of the Borrower or the Administrative Agent, and at the Domestic Lending
Office in the case of each Lender, or to such other addresses as to which the
Administrative Agent may be hereafter notified by the respective parties hereto
or any future holders of the Notes:
The Borrower:
New Plan Excel Realty Trust, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxx,
Senior Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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98
with a copy to:
New Plan Excel Realty Trust, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.,
General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Administrative Agent:
The Bank of Xxx Xxxx
Xxx Xxxx Xxxxxx
Agency Function Administration
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Agency Function Administrator
Telephone: (000) 000-0000
Telecopy: (000) 000-0000 or 6366 or 6367
with a copy to:
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000,
except that any notice, request or demand by the Borrower to or upon the
Administrative Agent, the Swingline Lender, the Issuing Bank or the Lenders
pursuant to Section 2.3, 2.4, 2.8, 2.9 or 2.10 shall not be effective until
received. Any party to a Loan Document may rely on signatures of the parties
thereto which are transmitted by telecopier or other electronic means as fully
as if originally signed.
11.3. No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising any right,
remedy, power or privilege under any Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege under any Loan
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Document preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges under the Loan Documents are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
11.4. Survival of Representations and Warranties.
All representations and warranties made under the Loan
Documents and in any document, certificate or statement delivered pursuant
hereto or in connection therewith shall survive the execution and delivery of
the Loan Documents. After the termination of this Agreement in accordance with
its terms, without any extension thereof, the payment in full of all obligations
of the Borrower under the Loan Documents and the expiration of any obligations
of the Borrower hereunder which survive the termination of this Agreement, the
Borrower shall have no liability to the Lenders under such representations and
warranties, except that the foregoing shall not apply with respect to any claim,
action or proceeding made or brought under any such representations or
warranties prior to such termination or payment.
11.5. Payment of Expenses and Taxes.
The Borrower agrees, promptly upon presentation of a statement
or invoice therefor, and whether any Loan is made (i) to pay or reimburse each
Credit Party for all of its out-of-pocket costs and expenses reasonably
incurred in connection with the development, preparation, negotiation and
execution of, the Loan Documents, the syndication of the loan transaction
evidenced by this Agreement (whether or not such syndication is completed) and
any amendment, supplement or modification hereto (whether or not executed), any
documents prepared in connection therewith and the consummation of the
transactions contemplated thereby, including, without limitation, the
reasonable fees and disbursements of Special Counsel, (ii) to pay or reimburse
each Credit Party for all of its respective costs and expenses, including,
without limitation, reasonable fees and disbursements of counsel, incurred in
connection with (x) any Default or Event of Default and any enforcement or
collection proceedings resulting therefrom (including, without limitation, any
costs incurred after the entry of judgment in an attempt to collect money due
in the judgment) or in connection with the negotiation of any restructuring or
"work-out" (whether consummated or not) of the obligations of the Borrower
under any of the Loan Documents and (y) the enforcement of this Section, (iii)
to pay, indemnify, and hold each Credit Party harmless from and against, any and
all recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other similar taxes, if
any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, the Loan Documents and any such other
documents, and (iv) to pay, indemnify and hold each
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Credit Party and each of their respective officers, directors,
employees, affiliates, agents, controlling persons and attorneys (as used in
this Section, each an "Indemnified Person") harmless from and against any and
all other liabilities, obligations, claims, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever (including, without limitation, reasonable counsel fees and
disbursements) with respect to any claim, investigation or proceeding from any
third party relating to this Agreement or the Loan Documents, including the
enforcement and performance of the Loan Documents and the use of the proceeds of
the Loans (all the foregoing, collectively, the "indemnified liabilities"),
whether or not any such indemnified person is a party to this Agreement or the
Loan Documents, and to reimburse each indemnified person for all legal and other
expenses incurred in connection with investigating or defending any indemnified
liabilities, and, if and to the extent that the foregoing indemnity may be
unenforceable for any reason, the Borrower agrees to make the maximum payment
permitted or not prohibited under applicable law; provided, however, that the
Borrower shall have no obligation hereunder to pay indemnified liabilities to
any Credit Party arising from (A) the gross negligence or willful misconduct of
such Credit Party or (B) disputes solely between the Credit Parties and which
are not related to any act or failure to act on the part of the Borrower or the
failure of the Borrower to perform any of its obligations under this Agreement
or the Loan Documents.
Notwithstanding the foregoing, the fees and expenses referred
to in clause (iv) of the preceding paragraph shall not be payable by the
Borrower if (x) any such enforcement action brought by such Credit Party is
dismissed, with prejudice, on the pleadings or pursuant to a motion made by the
Borrower for summary judgment, and (y) if such Credit Party appeals such
dismissal, such dismissal is affirmed and the time for any further appeals has
expired. The obligations of the Borrower under this Section shall survive the
termination of this Agreement and the Commitments and the payment of the Notes
and all other amounts payable under the Loan Documents.
11.6. Lending Offices.
Each Lender shall have the right at any time and from time to
time to transfer its Loans to a different office, provided that such Lender
shall promptly notify the Administrative Agent and the Borrower of any such
change of office. Such office shall thereupon become such Lender's Domestic
Lending Office or Eurodollar Lending Office, as the case may be, provided,
however, that no such Lender shall be entitled to receive any greater amount
under Sections 2.15, 2.16 or 2.18 as a result of a transfer of any such Loans to
a different office of such Lender than it would be entitled to immediately prior
thereto unless such claim would have arisen even if such transfer had not
occurred.
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11.7. Successors and Assigns.
(a) The Loan Documents shall be binding upon and inure to
the benefit of the Borrower, the Lenders, the Issuing Bank, the Administrative
Agent, all future holders of the Notes and their respective successors and
assigns, except that the Borrower may not assign, delegate or transfer any of
its rights or obligations under the Loan Documents without the prior written
consent of the Administrative Agent and all of the Lenders.
(b) Each Lender (other than a Designated Lender) shall
have the right at any time, upon written notice to the Administrative Agent of
its intent to do so, to sell, assign, transfer or negotiate all or any part of
such Lender's rights and/or obligations under the Loan Documents (subject to
paragraph (c) below) to one or more of its Affiliates, to one or more of the
other Lenders (or to Affiliates of such other Lenders) or, with the prior
written consent of the Borrower, the Administrative Agent and the Swingline
Lender (which consent, from each of them, shall not be unreasonably withheld or
delayed and shall not be required from the Borrower upon the occurrence and
during the continuance of an Event of Default), to sell, assign, transfer or
negotiate all or any part of such Lender's rights and obligations under the
Loan Documents to any other bank, insurance company, pension fund, mutual fund
or other financial institution, provided that there shall be paid to the
Administrative Agent by the assigning Lender a fee (the "Assignment Fee") of
$3,500. A Designated Lender shall not assign any of its Loans to any Person at
any time, other than an assignment of all or part of such Loans to its
Designating Lender. Simultaneously with each assignment by a Lender of all or
any part of its and Revolving Credit Loans, such Lender shall assign, pursuant
to the terms of the Other Credit Agreement, an equal percentage of its
Commitment and Revolving Credit Loans under, and as defined in, the Other
Credit Agreement. For each assignment, the parties to such assignment shall
execute and deliver to the Administrative Agent for its acceptance and
recording an Assignment and Assumption Agreement. Upon such execution,
delivery, acceptance and recording by the Administrative Agent, from and after
the effective date specified in such Assignment and Assumption Agreement, the
assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Assumption Agreement, the assignor Lender thereunder shall be
released from its obligations under the Loan Documents. The Borrower agrees upon
written request of the Administrative Agent and at the Borrower's expense to
execute and deliver (1) to such assignee, a Note, dated the effective date of
such Assignment and Assumption Agreement, in an aggregate principal amount equal
to the Loans assigned to, and Commitments assumed by, such assignee and (2) to
such assignor Lender, a Note, dated the effective date of such Assignment and
Assumption Agreement, in an aggregate principal amount equal to the balance of
such assignor Lender's Loans and Commitment, if any, and each assignor Lender
shall cancel and return to the Borrower its existing Note. Upon any such sale,
assignment or other transfer, the Commitment Amounts set
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forth in Exhibit B shall be adjusted accordingly by the Administrative Agent and
a new Exhibit B shall be distributed by the Administrative Agent to the Borrower
and each Lender.
(c) Each Lender shall maintain an equal Commitment
Percentage in (i) all Revolving Credit Loans (other than Competitive Bid
Borrowings) and L/C Exposure hereunder, and (ii) all Revolving Credit Loans
(other than Competitive Bid Borrowings) and Term Loans under, and as defined
in, the Other Credit Agreement. Accordingly, each sale, assignment, transfer
or negotiation by a Lender of all or any part of its rights and/or obligations
under the Loan Documents shall include an equal pro rata share of its rights
and/or obligations under Loan Documents under, and as defined in, the Other
Credit Agreement.
(d) Each Lender may grant participations in all or any
part of its Loans, its Note and its Commitment to one or more banks, insurance
companies, financial institutions, pension funds or mutual funds, provided that
(i) such Lender's obligations under the Loan Documents shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties to the
Loan Documents 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 the Loan Documents, (iv) no sub-participations shall be
permitted and (v) the voting rights of any holder of any participation shall be
limited to decisions that only do any of the following: (A) subject the
participant to any additional obligation, (B) reduce the principal of, or
interest on the Notes or any fees or other amounts payable hereunder, and (C)
postpone any date fixed for the payment of principal of, or interest on the
Notes or any fees or other amounts payable hereunder. The Borrower acknowledges
and agrees that any such participant shall for purposes of Sections 2.13, 2.14,
2.15, 2.16, and 2.18 be deemed to be a "Lender"; provided, however, the Borrower
shall not, at any time, be obligated to pay any participant in any interest of
any Lender hereunder any sum in excess of the sum which the Borrower would have
been obligated to pay to such Lender in respect of such interest had such Lender
not sold such participation.
(e) If any (i) assignment is made pursuant to paragraph
(b) above or (ii) any participation granted pursuant to paragraph (d) above,
shall be made to any Person that is organized under the laws of any
jurisdiction other than the United States of America or any State thereof, such
Person shall furnish such certificates, documents or other evidence to the
Borrower and the Administrative Agent, in the case of clause (i) and to the
Borrower and the Lender which sold such participation in the case of clause
(ii), as shall be required by Section 2.13(b) to evidence such Person's
exemption from U.S. withholding taxes with respect to any payments under or
pursuant to the Loan Documents because such Person is eligible for the benefits
of a tax treaty which provides for a zero % rate of tax on any payments under
the Loan Documents or because any such
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payments to such Person are effectively connected with the conduct by such
Person of a trade or business in the United States.
(f) No Lender shall, as between and among the Borrower,
the Administrative Agent and such Lender, be relieved of any of its obligations
under the Loan Documents as a result of any sale, assignment, transfer or
negotiation of, or granting of participations in, all or any part of its Loans,
its Commitment or its Note, except that a Lender shall be relieved of its
obligations to the extent of any such sale, assignment, transfer, or
negotiation of all or any part of its Loans, its Commitment or its Note
pursuant to paragraph (b) above.
(g) Notwithstanding anything to the contrary contained in
this Section, any Lender may at any time or from time to time assign all or any
portion of its rights under the Loan Documents to a Federal Reserve Bank,
provided that any such assignment shall not release such assignor from its
obligations thereunder.
11.8. Designated Lender.
(a) Each Lender (each a "Designating Lender") may at any
time designate one or more Designated Lenders to fund Competitive Bid Advances
which the Designating Lender is required to fund subject to the terms of
Section 2.4. No Lender shall be entitled to make more than one such
designation. The parties to each such designation shall execute and deliver to
the Administrative Agent, for its acceptance, a Designation Agreement. Upon
its receipt of an appropriately completed Designation Agreement executed by a
Designating Lender and a designee representing that it is a Designated Lender,
the Administrative Agent will accept such Designation Agreement and give prompt
notice thereof to the Borrower, whereupon, from and after the effective date
specified in the Designation Agreement, the Designated Lender shall become a
party to this Agreement with a right to make Competitive Bid Advances on behalf
of its Designating Lender pursuant to Section 2.4 after the Borrower has
accepted an offer to make the Competitive Bid Advance (or a portion thereof)
from the Designating Lender. Each Designating Lender shall serve as the agent
of the Designated Lender and shall on behalf of the Designated Lender give and
receive all communications and notices and take all actions hereunder,
including without limitation votes, approvals, waivers, consents and amendments
under or relating to this Agreement or the other Loan Documents. Any such
notice, communication, vote approval, waiver, consent or amendment shall be
signed by the Designating Lender as agent for its Designated Lender. The
Borrower, the Administrative Agent and the Lenders may rely thereon without any
requirement that the Designated Lender sign or acknowledge the same.
(b) A Designated Lender shall not make or participate in
Revolving Credit Loans made as Conventional Advances or Term Loans of any
Designating Lender, nor shall any Designated Lender have a Commitment or share
in or be obligated under
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the Commitment of any Lender, it being understood that each Designated Lender
shall be entitled to make only Competitive Bid Advances offered by the
Designating Lender of such Designated Lender pursuant to Section 2.4(c), to the
extent the offer of such Competitive Bid Advances has been accepted by the
Borrower pursuant to Section 2.4(d).
11.9. Counterparts.
Each Loan Document (other than the Notes) may be executed by
one or more of the parties thereto on any number of separate counterparts and
all of said counterparts taken together shall be deemed to constitute one and
the same document. It shall not be necessary in making proof of any Loan
Document to produce or account for more than one counterpart signed by the party
to be charged. A telecopied counterpart of any Loan Document or to any document
evidencing, and of any an amendment, modification, consent or waiver to or of
any Loan Document shall be deemed to be an originally executed counterpart. A
set of the copies of the Loan Documents signed by all the parties thereto shall
be deposited with each of the Borrower and the Administrative Agent. Any party
to a Loan Document may rely upon the signatures of any other party thereto which
are transmitted by telecopier or other electronic means to the same extent as if
originally signed.
11.10. Adjustments; Set-off.
(a) If any Lender (a "Benefited Lender") shall at any
time receive any payment of all or any part of its Loans or participations in
LC Disbursements or Swingline Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in Section
9.1 (h) or (i), or otherwise) in a greater proportion than any such payment to
and collateral received by any other Lender in respect of such other Lender's
Loans or participations in LC Disbursements or Swingline Loans, or interest
thereon, such Benefited Lender shall purchase for cash from each of the other
Lenders such portion of each such other Lender's Loans and participations in LC
Disbursements or Swingline Loans, and shall provide each of such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such Benefited Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Lenders,
provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such Benefited Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest. The Borrower agrees that each Lender
so purchasing a portion of another Lender's Loans or participations in LC
Disbursements or Swingline Loans may exercise all rights of payment (including,
without limitation, rights of set-off, to the extent not prohibited by law)
with respect to such portion as fully as if such Lender were the direct holder
of such portion.
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(b) In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence of an Event of Default and the
acceleration of the obligations owing in connection with the Loan Documents, or
at any time upon the occurrence and during the continuance of an Event of
Default under Section 9.1(a) or (b), each Lender shall have the right, without
prior notice to the Borrower, any such notice being expressly waived by the
Borrower to the extent not prohibited by applicable law, to set-off and apply
against any indebtedness, whether matured or unmatured, of the Borrower to such
Lender, any amount owing from such Lender to the Borrower, at, or at any time
after, the happening of any of the above-mentioned events. To the extent not
prohibited by applicable law, the aforesaid right of set-off may be exercised by
such Lender against the Borrower or against any trustee in bankruptcy,
custodian, debtor in possession, assignee for the benefit of creditors,
receiver, or execution, judgment or attachment creditor of the Borrower, or
against anyone else claiming through or against the Borrower or such trustee in
bankruptcy, custodian, debtor in possession, assignee for the benefit of
creditors, receivers, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Lender prior to the making, filing or issuance, or service
upon such Lender of, or of notice of, any such petition, assignment for the
benefit of creditors, appointment or application for the appointment of a
receiver, or issuance of execution, subpoena, order or warrant. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any
such set-off and application made by such Lender, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
11.11. Lenders' Representations.
Each Lender represents to the Administrative Agent that, in
acquiring its Note, it is acquiring the same for its own account for the
purpose of investment and not with a view to selling the same in connection
with any distribution thereof, provided that the disposition of each Lender's
own Property shall at all times be and remain within its control.
11.12. Indemnity.
The Borrower agrees to indemnify and hold harmless each Credit
Party and its affiliates, directors, officers, employees, affiliates, agents,
controlling persons and attorneys (each an "Indemnified Person") from and
against any loss, cost, liability, damage or expense (including the reasonable
fees and disbursements of counsel of such Indemnified Person, including all
local counsel hired by any such counsel) incurred by such Indemnified Person in
investigating, preparing for, defending against, or providing evidence,
producing documents or taking any other action in respect of, any commenced or
threatened litigation, administrative proceeding or investigation under any
federal securities or tax laws or any other statute of any jurisdiction, or any
regulation, or at common law or otherwise, which is alleged to arise out of or
is based upon: (i) any
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untrue statement of any material fact by the Borrower in any document or
schedule executed or filed with any Governmental Authority by or on behalf of
the Borrower; (ii) any omission to state any material fact required to be stated
in such document or schedule, or necessary to make the statements made therein,
in light of the circumstances under which made, not misleading; or (iii) any
acts, practices or omissions of the Borrower or its agents relating to the use
of the proceeds of any or all borrowings made by the Borrower which are alleged
to be in violation of Section 2.17, or in violation of any federal securities or
tax laws or of any other statute, regulation or other law of any jurisdiction
applicable thereto, whether or not such Indemnified Person is a party thereto.
The indemnity set forth herein shall be in addition to any other obligations,
liabilities or other indemnifications of the Borrower to each Indemnified Person
under the Loan Documents or at common law or otherwise, and shall survive any
termination of the Loan Documents, the expiration of the Commitments and the
payment of all indebtedness of the Borrower under the Loan Documents, provided
that the Borrower shall have no obligation under this Section to an Indemnified
Person with respect to any of the foregoing to the extent found in a final
judgment of a court having jurisdiction to have resulted primarily out of the
gross negligence or willful misconduct of such Indemnified Person or arising
solely from claims between one such Indemnified Person and another such
Indemnified Person.
11.13. Governing Law.
The Loan Documents and the rights and obligations of the
parties thereunder shall be governed by, and construed and interpreted in
accordance with, the internal laws of the State of New York, without regard to
principles of conflict of laws.
11.14. Headings Descriptive.
Section headings have been inserted in the Loan Documents for
convenience only and shall not be construed to be a part thereof.
11.15. Severability.
Every provision of the Loan Documents is intended to be
severable, and if any term or provision thereof shall be invalid, illegal or
unenforceable for any reason, the validity, legality and enforceability of the
remaining provisions thereof shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction shall not affect
the validity, legality or enforceability of any such term or provision in any
other jurisdiction.
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11.16. Integration.
All exhibits to a Loan Document shall be deemed to be a part
thereof. The Loan Documents embody the entire agreement and understanding
among the Borrower, the Administrative Agent and the Lenders with respect to
the subject matter thereof and supersede all prior agreements and
understandings among the Borrower, the Administrative Agent and the Lenders
with respect to the subject matter thereof.
11.17. Consent to Jurisdiction.
The Borrower and each of the Credit Parties hereby irrevocably
submit to the jurisdiction of any New York State or Federal court sitting in
the City of New York over any suit, action or proceeding arising out of or
relating to the Loan Documents. The Borrower and each of the Credit Parties
hereby irrevocably waive, to the fullest extent permitted or not prohibited by
law, any objection which any of them may now or hereafter have to the laying of
the venue of any such suit, action or proceeding brought in such a court and
any claim that any such suit, action or proceeding brought in such a court has
been brought in an inconvenient forum.
11.18. Service of Process.
The Borrower hereby agrees that process may be served against
it in any suit, action or proceeding referred to in Section 11.17 by sending
the same by first class mail, return receipt requested or by overnight courier
service, to the address of the Borrower set forth in Section 11.2 or in the
applicable Loan Document executed by the Borrower. The Borrower hereby agrees
that any such service (i) shall be deemed in every respect effective service of
process upon it in any such suit, action, or proceeding, and (ii) shall to the
fullest extent enforceable by law, be taken and held to be valid personal
service upon and personal delivery to it.
11.19. No Limitation on Service or Suit.
Nothing in the Loan Documents or any modification, waiver,
consent or amendment thereto shall affect the right of the Administrative Agent
or any Lender to serve process in any manner permitted by law or limit the
right of the Administrative Agent or any Lender to bring proceedings against
the Borrower in the courts of any jurisdiction or jurisdictions in which the
Borrower may be served.
11.20. WAIVER OF TRIAL BY JURY.
THE ADMINISTRATIVE AGENT, THE CO-DOCUMENTATION AGENTS, THE
LENDERS AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
ARISING
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OUT OF, UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED THEREIN. FURTHER, THE BORROWER HEREBY CERTIFIES THAT NO
REPRESENTATIVE OR AGENT OF THE ADMINISTRATIVE AGENT, THE CO-DOCUMENTATION
AGENTS, THE LENDERS, OR COUNSEL TO THE ADMINISTRATIVE AGENT THE CO-DOCUMENTATION
AGENTS OR THE LENDERS, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE
ADMINISTRATIVE AGENT, THE CO-DOCUMENTATION AGENTS OR THE LENDERS WOULD NOT, IN
THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL
PROVISION. THE BORROWER ACKNOWLEDGES THAT THE ADMINISTRATIVE AGENT, THE
CO-DOCUMENTATION AGENTS, AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS SECTION.
11.21. Termination
After the termination of this Agreement in accordance with its
terms, without any extension thereof, and the payment in full of all
obligations of the Borrower under the Loan Documents (including without
limitation, all principal, interest, Facility Fees and other amounts payable
hereunder and under the Notes), the obligations of the Borrower hereunder
(other than those which are stated herein to survive any termination of this
Agreement) shall terminate, except that the foregoing shall not apply with
respect to any claim, action or proceeding made or brought under any other
provision of the Loan Documents prior to such termination or payment. At the
request of the Borrower, each Lender whose obligations under the Notes have
been fully paid shall promptly return to the Borrower its Note marked "paid" or
shall deliver other evidence that such Lender has received full payment of such
obligations.
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IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
NEW PLAN EXCEL REALTY
TRUST, INC.
By: /s/ Xxxx Xxxxxxxxx
------------------------
Xxxx Xxxxxxxxx
Senior Vice President
THE BANK OF NEW YORK,
as Administrative Agent, Swingline Lender,
Issuing Bank and a Lender
By: /s/ Xxxxxxxxx Xxxxxxx
-------------------------
Xxxxxxxxx Xxxxxxx
Vice President
BANK ONE, NA
as Co-Documentation Agent
and a Lender
By: /s/ Xxxxxxxx Xxxxx
-------------------------
Name: Xxxxxxxx Xxxxx
Title: Senior Vice President
BANKBOSTON, N. A.
as Co-Documentation Agent
and a Lender
By: /s/ Xxxxxx X. Xxxxxxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxxxxxx
Title: Vice President
110
ARGENTARIA, CAJA POSTAL Y
BANCO HIPOTECARIO S.A.
By: /s/ Xxxxxxx Xxxxx
-------------------------
Name: Xxxxxxx Xxxxx
Title: General Manager
BANK OF AMERICA, N. A.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------
Name:
Title:
XXXXX XXX COMMERCIAL
BANK, LTD., NEW YORK BRANCH
By: /s/ Wan-Tu Yeh
-------------------------
Name: Wan-Tu Yeh
Title: VP & General Manager
ERSTE BANK
By: /s/ Xxxx Xxxxxxx
-------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxx X. Xxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxx
Title: First Vice President
ISRAEL DISCOUNT BANK OF
NEW YORK
By: /s/ Xxxx X. Xxxxxx
-------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxx Xxxxx
-------------------------
Name: Xxxx Xxxxx
Title: First Vice President
111
PNC BANK, N. A.
By: /s/ Xxxxxx Xxxxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
KEY BANK
By: /s/ XXXXXXX X. XXXXXXXX, XX.
------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Vice President
