EXHIBIT 10.7
EXECUTION COPY
$100,000,000
CREDIT AGREEMENT
Dated as of June 27, 2003
Among
XXXXXXX PROPERTIES, L.P.,
as Borrower,
XXXXXXX PROPERTIES, INC.,
as Parent Guarantor,
THE SUBSIDIARY GUARANTORS NAMED HEREIN,
as Guarantors,
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders,
WACHOVIA BANK, NA,
as Initial Issuing Bank,
CITICORP NORTH AMERICA, INC.,
as Administrative Agent and as Collateral Agent,
WACHOVIA SECURITIES, INC.,
as Syndication Agent,
BANK ONE, NA, COMMERZBANK AG and FLEET NATIONAL BANK,
as Co-Documentation Agents,
BANK OF THE WEST,
as Senior Managing Agent.
and
CITIGROUP GLOBAL MARKETS INC. and WACHOVIA SECURITIES, INC.,
as Joint Lead Arrangers and Joint Book Running Managers
TABLE OF CONTENTS
SECTION PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms................................................ 1
SECTION 1.02. Computation of Time Periods; Other Definitional Provisions........... 23
SECTION 1.03. Accounting Terms..................................................... 23
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit............................... 24
SECTION 2.02. Making the Advances.................................................. 25
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit... 26
SECTION 2.04. Repayment of Advances................................................ 27
SECTION 2.05. Termination or Reduction of the Commitments.......................... 28
SECTION 2.06. Prepayments.......................................................... 28
SECTION 2.07. Interest............................................................. 29
SECTION 2.08. Fees................................................................. 30
SECTION 2.09. Conversion of Advances............................................... 31
SECTION 2.10. Increased Costs, Etc................................................. 32
SECTION 2.11. Payments and Computations............................................ 33
SECTION 2.12. Taxes................................................................ 35
SECTION 2.13. Sharing of Payments, Etc............................................. 37
SECTION 2.14. Use of Proceeds...................................................... 38
SECTION 2.15. Evidence of Debt..................................................... 38
SECTION 2.16. Extension of Termination Date........................................ 38
ARTICLE III
CONDITIONS OF LENDING AND ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of Credit.................. 39
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance.................. 44
SECTION 3.03. Determinations Under Section 3.01.................................... 45
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Loan Parties................... 45
ARTICLE V
COVENANTS OF THE LOAN PARTIES
SECTION 5.01. Affirmative Covenants................................................ 49
SECTION 5.02. Negative Covenants................................................... 54
SECTION 5.03. Reporting Requirements............................................... 60
SECTION 5.04. Financial Covenants.................................................. 62
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default ................................................... 63
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default ............ 65
ARTICLE VII
GUARANTY
SECTION 7.01. Guaranty; Limitation of Liability.................................... 65
SECTION 7.02. Guaranty Absolute.................................................... 66
SECTION 7.03. Waivers and Acknowledgments.......................................... 67
SECTION 7.04. Subrogation.......................................................... 68
SECTION 7.05. Guaranty Supplements................................................. 69
SECTION 7.06. Indemnification by Guarantors ....................................... 69
SECTION 7.07. Subordination........................................................ 69
SECTION 7.08. Continuing Guaranty.................................................. 70
ARTICLE VIII
THE AGENTS
SECTION 8.01. Authorization and Action............................................. 70
SECTION 8.02. Agents' Reliance, Etc................................................ 71
SECTION 8.03. CNAI and Affiliates.................................................. 71
SECTION 8.04. Lender Party Credit Decision......................................... 71
SECTION 8.05. Indemnification by Lender Parties.................................... 71
SECTION 8.06. Successor Agents..................................................... 72
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc...................................................... 73
SECTION 9.02. Notices, Etc......................................................... 74
SECTION 9.03. No Waiver; Remedies.................................................. 75
SECTION 9.04. Costs and Expenses................................................... 75
SECTION 9.05. Right of Set-off..................................................... 76
SECTION 9.06. Binding Effect....................................................... 77
SECTION 9.07. Assignments and Participations....................................... 77
SECTION 9.08. Execution in Counterparts............................................ 79
SECTION 9.09. No Liability of the Issuing Banks.................................... 80
SECTION 9.10. Confidentiality...................................................... 80
SECTION 9.11. Release of Collateral................................................ 80
SECTION 9.12. Jurisdiction, Etc.................................................... 81
SECTION 9.13. Governing Law........................................................ 81
SECTION 9.14. Waiver of Jury Trial................................................. 1
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SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Eligible Real Estate Assets
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Authorizations, Approvals, Actions, Notices and Filings
Schedule 4.0l(f) - Disclosed Litigation
Schedule 4.01(n) - Existing Debt
Schedule 4.01(o) - Surviving Debt
Schedule 4.01(p) - Existing Liens
Schedule 4.01(q) - Owned Real Property
Schedule 4.01(r) - Leased Real Property
Schedule 4.01(s) - Environmental Concerns
Schedule 4.0l(w) - Existing Loans to Directors and Executive Officers
Schedule 4.0l(x) - Excluded Subsidiaries and Excluded Subsidiary Agreements
EXHIBITS
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Guaranty Supplement
Exhibit D - Form of Assignment and Acceptance
Exhibit E-l - Form of Opinion of Counsel to the Loan Parties
Exhibit E-2 - Form of Opinion of Maryland Counsel to the Loan Parties
Exhibit F-l - Form of Security Agreement (Xxxxxxx Partners-Plaza Las Xxxxxxx, LLC
and Xxxxxxx/Cerritos I, LLC)
Exhibit F-2 - Form of Security Agreement (Xxxxxxx Properties Services, Inc.)
Exhibit G - Form of Mortgage
Exhibit H - Form of Borrowing Base Certificate
Exhibit I - Form of Letter of Credit
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CREDIT AGREEMENT
CREDIT AGREEMENT dated as of June 27,2003 among XXXXXXX
PROPERTIES, L.P., a Maryland limited partnership (the "BORROWER"), XXXXXXX
PROPERTIES, INC., a Maryland corporation (the "GENERAL PARTNER" or the "PARENT
GUARANTOR"), the entities listed on the signature pages hereof as the guarantors
(together with any Additional Guarantors (as hereinafter defined) acceding
hereto pursuant to Section 7.05, the "SUBSIDIARY GUARANTORS" and, together with
the Parent Guarantor, the "GUARANTORS") the banks, financial institutions and
other institutional lenders listed on the signature pages hereof as the initial
lenders (the "INITIAL LENDERS"), WACHOVIA BANK, NA, as the initial issuer of
Letters of Credit (as hereinafter defined) (the "INITIAL ISSUING BANK"),
CITICORP NORTH AMERICA, INC. ("CNAI"), as administrative agent (together with
any successor administrative agent appointed pursuant to Article VII, the
"ADMINISTRATIVE AGENT") for the Lender Parties (as hereinafter defined), CNAI,
as collateral agent (together with any successor collateral agent appointed
pursuant to Article VIII, the "COLLATERAL AGENT", and together with the
Administrative Agent, the "AGENTS") for the Lender Parties, WACHOVIA SECURITIES,
INC. ("WSI), as syndication agent, BANK ONE, NA, COMMERZBANK AG AND FLEET
NATIONAL BANK, as co-documentation agents, BANK OF THE WEST, as senior managing
agent, and CITIGROUP GLOBAL MARKETS INC. ("CITIGROUP") and WSI, as joint lead
arrangers and joint book running managers (the "ARRANGERS").
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"ADDITIONAL GUARANTOR" has the meaning specified in Section
7.05.
"ADJUSTED EBITDA" means, for the fiscal quarter of the Parent
Guarantor most recently ended for which financial statements are
required to be delivered to the Lender Parties pursuant to Section
5.03(b) or (c), as the case may be, (a) EBITDA less (b) an amount equal
to 25% of the Capital Expenditure Reserve for all Real Property;
provided, however, that for purposes of this definition, in the case of
any acquisition or disposition of any direct or indirect interest in
any Real Property (including through the acquisition of Equity
Interests) by the Parent Guarantor or any of its Subsidiaries during
any fiscal quarter, Adjusted EBITDA will include with respect to such
Real Property an adjustment to include, in the case of an acquisition,
and to exclude, in the case of a disposition, an amount equal to the
product of (y) the actual Adjusted EBITDA generated by the Real
Property so acquired or disposed of during such fiscal quarter,
multiplied by (z) a fraction the numerator of which is the total number
of days in such fiscal quarter and the denominator of which is the
actual number of days in such fiscal quarter that such Real Property
was owned by the Parent Guarantor or such Subsidiary.
"ADJUSTED NET OPERATING INCOME" means, for any Eligible Real
Estate Asset, the Net Operating Income attributable to such Eligible
Real Estate Asset less the sum of (a) the amount, if any, by which (i)
3% of all rental and other income from the operation of such Eligible
Real Estate Asset for the consecutive four fiscal quarters of the
Parent Guarantor most recently ended for which financial statements are
required to be delivered to the Lender Parties pursuant to Section
5.03(b) or (c), as the case may be, exceeds (ii) all management fees
payable in respect of such Eligible Real Estate Asset during such
fiscal period and (b) the total Capital Expenditure Reserve for such
Eligible Real Estate Asset.
"ADMINISTRATIVE AGENT" has the meaning specified in the
recital of parties to this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means the account of the
Administrative Agent maintained by the Administrative Agent with
Citibank, N.A., at its office at 0 Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx,
Xxxxxxxx 00000, ABA No. 000000000, Account No. 00000000, Ref: Xxxxxxx
Properties, Attention: Xxxxx Xxxxxx, or such other account as the
Administrative Agent shall specify in writing to the Lender Parties.
"ADVANCE" means a Revolving Credit Advance or a Letter of
Credit Advance.
"AFFILIATE" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 10% or more of the Voting Interests of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Interests, by contract or
otherwise.
"AGENTS" has the meaning specified in the recital of parties
to this Agreement.
"AGREEMENT VALUE" means, for each Hedge Agreement, on any date
of determination, an amount determined by the Administrative Agent
equal to: (a) in the case of a Hedge Agreement documented pursuant to
the Master Agreement (Multicurrency-Cross Border) published by the
International Swap and Derivatives Association, Inc. (the "MASTER
AGREEMENT"), the amount, if any, that would be payable by any Loan
Party or any of its Subsidiaries to its counterparty to such Hedge
Agreement, as if (i) such Hedge Agreement was being terminated early on
such date of determination, (ii) such Loan Party or Subsidiary was the
sole "Affected Party", and (iii) the Administrative Agent was the sole
party determining such payment amount (with the Administrative Agent
making such determination pursuant to the provisions of the form of
Master Agreement); or (b) in the case of a Hedge Agreement traded on an
exchange, the xxxx-to-market value of such Hedge Agreement, which will
be the unrealized loss on such Hedge Agreement to the Loan Party or
Subsidiary of a Loan Party party to such Hedge Agreement determined by
the Administrative Agent based on the settlement price of such Hedge
Agreement on such date of determination, or (c) in all other cases, the
xxxx-to-market value of such Hedge Agreement, which will be the
unrealized loss on such Hedge Agreement to the Loan Party or Subsidiary
of a Loan Party party to such Hedge Agreement determined by the
Administrative Agent as the amount, if any, by which (i) the present
value of the future cash flows to be paid by such Loan Party or
Subsidiary exceeds (ii) the present value of the future cash flows to
be received by such Loan Party or Subsidiary pursuant to such Hedge
Agreement; capitalized terms used and not otherwise defined in this
definition shall have the respective meanings set forth in the above
described Master Agreement.
"ANNUALIZED EBITDA" means, for any period, the product of (a)
Adjusted EBITDA for such period multiplied by (b) four; provided,
however, that for purposes of determining Asset Values for the
calculation of the Leverage Ratio, "ANNUALIZED EBITDA" means (i) for
the fiscal quarter of the Parent Guarantor ending June 30,2003, the
product of (A) Adjusted EBITDA for such fiscal quarter multiplied by
(B) four, (ii) for the fiscal quarter of the Parent Guarantor ending
September 30, 2003, the product of (A) the sum of (1) Adjusted EBITDA
for the fiscal quarter of the Parent Guarantor ending June 30,2003 and
(2) Adjusted EBITDA for the fiscal quarter of the Parent Guarantor
ending September 30, 2003, multiplied by (B) two, (iii) for the fiscal
quarter of
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the Parent Guarantor ending December 31,2003, the product of (A) the
sum of (1) Adjusted EBITDA for the fiscal quarter of the Parent
Guarantor ending June 30,2003, (2) Adjusted EBITDA for the fiscal
quarter of the Parent Guarantor ending September 30,2003 and (3)
Adjusted EBITDA for the fiscal quarter of the Parent Guarantor ending
December 31,2003, multiplied by (B) 1.333, and (iv) for each fiscal
quarter of the Parent Guarantor ending on or after March 31,2004, the
sum of Adjusted EBITDA for each of the four consecutive fiscal quarters
of the Parent Guarantor then ended.
"APPLICABLE CAPITALIZATION RATE" means, with respect to any
Eligible Real Estate Asset, a percentage determined with reference to
the type of Real Property comprising such Eligible Real Estate Asset as
set forth below:
----------------------------------------------------------
APPLICABLE
ASSET TYPE CAPITALIZATION RATE
----------------------------------------------------------
Class A CBD Office Real Property 8.50%
----------------------------------------------------------
Non-Class A CBD Office Real Property 9.50%
----------------------------------------------------------
Non-CBD Office Real Property 9.50%
----------------------------------------------------------
Non-Office Real Property 10.50%
----------------------------------------------------------
"APPLICABLE LENDING OFFICE" means, with respect to each Lender
Party, such Lender Party's Domestic Lending Office in the case of a
Base Rate Advance and such Lender Party's Eurodollar Lending Office in
the case of a Eurodollar Rate Advance.
"APPLICABLE MARGIN" means, at any date of determination, a
percentage per annum determined by reference to the Borrower's Debt
Rating as set forth below:
-------------------------------------------------------------------------------------
APPLICABLE APPLICABLE MARGIN
PRICING DEBT RATINGS MARGIN FOR BASE FOR EURODOLLAR RATE
LEVEL (S&P/XXXXX'X) RATE ADVANCES ADVANCES
-------------------------------------------------------------------------------------
I > or = BBB-/Baa3 but < BBB/Baa2 0.10% 1.10%
-------------------------------------------------------------------------------------
II > or = BBB/Baa2 0% 0.90%
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; provided, however, that if on any date of determination the Borrower
shall not maintain a Debt Rating established by S&P and Xxxxx'x of at
least BBB- or Baa3, the Applicable Margin at such date shall mean a
percentage per annum determined by reference to the Borrower's Leverage
Ratio as set forth below:
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APPLICABLE APPLICABLE MARGIN
PRICING MARGIN FOR BASE FOR EURODOLLAR RATE
LEVEL LEVERAGE RATIO RATE ADVANCES ADVANCES
----------------------------------------------------------------------------------
III > 55% 1.00% 2.00%
----------------------------------------------------------------------------------
IV > 45% BUT < or = 55% 0.75% 1.75%
----------------------------------------------------------------------------------
V > 35% BUT < or = 45% 0.50% 1.50%
----------------------------------------------------------------------------------
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VI < or = 35% 0.375% 1.375%
----------------------------------------------------------------------------------
The Applicable Margin for each Base Rate Advance shall be determined by
reference to the Borrower's Debt Rating or the Borrower's Leverage
Ratio, as applicable, in effect from time to time and the Applicable
Margin for any Interest Period for all Eurodollar Rate Advances
comprising part of the same Borrowing shall be determined by reference
to the Borrower's Debt Rating or the Borrower's Leverage Ratio, as
applicable, in effect on the first day of such Interest Period;
provided, however, that (a)(i) no change in the Applicable Margin
resulting from the Borrower's Leverage Ratio shall be effective until
three Business Days after the date on which the Administrative Agent
receives (y) the financial statements required to be delivered pursuant
to Section 5.03(b) or (c), as the case may be, and (z) a certificate of
the Chief Financial Officer of the Borrower demonstrating the
Borrower's Leverage Ratio, and (b) the Applicable Margin shall be at
Pricing Level in for so long as the Borrower has not submitted to the
Administrative Agent as and when required under Section 5.03(b) or (c),
as applicable, the information described in clause (a)(i) of this
proviso.
"APPLICABLE PERCENTAGE" means (a) for any period in which the
average daily Facility Exposure for such period exceeds 50% of the
aggregate Revolving Credit Commitments, 0.15% per annum and (b) in all
other cases, 0.25% per annum.
"APPRAISAL" means an appraisal complying with the requirements
of the Federal Financial Institutions Reform, Recovery and Enforcement
Act of 1989, prepared for the account of the Collateral Agent (for the
benefit of the Lenders) by Xxxxxxx & Xxxxxxxxx, Inc. or another MAI
appraiser selected by the Collateral Agent in consultation with the
Borrower, and otherwise in scope, form and substance satisfactory to
the Collateral Agent.
"APPRAISED VALUE" means, for any Eligible Real Estate Asset,
the market value of such Eligible Real Estate Asset, determined by the
Administrative Agent based on an Appraisal of such Eligible Real Estate
Asset, after discretionary adjustments of the value shown in such
Appraisal following a review by the Administrative Agent's appraisal
review department.
"ARRANGERS" has the meaning specified in the recital of
parties to this Agreement.
"ASSET VALUE" means, at any date of determination, (a) in the
case of any Real Property (other than any Development Property), (i)
the Annualized EBITDA for such Real Property less the amount, if any,
by which (x) 3% of all rental and other income from the operation of
any Real Property for the period for which Annualized EBITDA has been
calculated exceeds (y) all management fees payable in respect of such
Real Property during such period, divided by (ii) the Applicable
Capitalization Rate, provided that for Gas Company Tower, KPMG Tower,
US Bank Tower and Xxxxx Fargo Tower, Annualized EBITDA shall include an
upward adjustment (in an amount determined in the reasonable discretion
of the Administrative Agent) for non-cancellable Tenancy Leases
executed and in place on the Closing Date with rent thereunder
commencing on or before July 1, 2003, to the extent not otherwise
included in the calculation of Annualized EBITDA, less, in the case of
US Bank Tower, a downward adjustment (in an amount determined in the
reasonable discretion of the Administrative Agent) for the cancelled
Tenancy Lease with Xxxxxx Xxxxxxxx LLP, to the extent not otherwise
excluded in the calculation of Annualized EBITDA, provided further that
in the case of any Real Property (other than any Development Property)
in which the Parent Guarantor or any of its Subsidiaries has acquired
any direct or indirect interest (including through the acquisition of
Equity Interests) during any fiscal quarter, "ASSET VALUE" shall be the
lesser of (1) the Annualized EBITDA for such Real Property divided by
the Applicable Capitalization Rate and (2) the purchase price of such
Real Property, and (b) in
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the case of any Development Property, the book value of such
Development Property as determined pursuant to GAAP.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender Party and an Eligible Assignee, and accepted
by the Administrative Agent, in accordance with Section 9.07 and in
substantially the form of Exhibit D hereto,
"AVAILABLE AMOUNT" of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit at
such time (assuming compliance at such time with all conditions to
drawing).
"BANKRUPTCY LAW" means any applicable law governing a
proceeding of the type referred to in Section 6.01(f) or Title 11, U.S.
Code, or any similar foreign, federal or state law for the relief of
debtors.
"BASE RATE" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the higher of (a) the rate of interest announced publicly by
Citibank, N.A. in New York, New York, from time to time, as Citibank,
N.A.'s base rate and (b) 1/2 of 1% per annum above the Federal Funds
Rate.
"BASE RATE ADVANCE" means an Advance that bears interest as
provided in Section 2.07(a)(i).
"BORROWER" has the meaning specified in the recital of parties
to this Agreement.
"BORROWER'S ACCOUNT" means the account of the Borrower
maintained by the Borrower with Bank of the West, at its office at 0000
Xxxxx Xxxxxxxxx, Xxxxxx Xxxxx, Xxxxxxxxxx 00000, ABA No. 000000000,
Account No. 729-003749, for credit to A/C No. [_________________], Ref:
Xxxxxxx Properties, LP, or such other account as the Borrower shall
specify in writing to the Administrative Agent.
"BORROWING" means a borrowing consisting of simultaneous
Revolving Credit Advances of the same Type made by the Lenders.
"BORROWING BASE ASSET VALUE" means, at any date of
determination, for any Eligible Real Estate Asset, the lesser of (a)
the Appraised Value of such Eligible Real Estate Asset, and (b) the
Adjusted Net Operating Income of such Eligible Real Estate Asset
divided by the Applicable Capitalization Rate.
"BORROWING BASE CERTIFICATE" means a certificate in
substantially the form of Exhibit H hereto, duly certified by the Chief
Financial Officer of the Parent Guarantor.
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
"CAPITAL EXPENDITURE RESERVE" means, on any date of
determination, (a) in the case of Non-Hotel Real Property, the greater
of (i) the product of (A) U.S.$0.25 times (B) the total number of
rentable square feet of such Non-Hotel Real Property and (ii) capital
expenditures actually made for the purpose of maintenance of such
Non-Hotel Real Property and not reimbursable by the lessee of such
Non-Hotel Real Property for the consecutive four fiscal
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quarters of the Parent Guarantor most recently ended for which
financial statements are required to be delivered pursuant to Section
5.03(b) or (c), as the case may be, and (b) in the case of Hotel Real
Property, 4.0% of all rental and other income from the operation of
such Hotel Real Property for the consecutive four fiscal quarters of
the Parent Guarantor most recently ended for which financial statements
are required to be delivered pursuant to Section 5.03(b) or (c), as the
case may be.
"CAPITALIZED LEASES" means all leases that have been or should
be, in accordance with GAAP, recorded as capitalized leases.
"CASH EQUIVALENTS" means any of the following, to the extent
owned by the Borrower or any of its Subsidiaries free and clear of all
Liens other than Liens created under the Collateral Documents and
having a maturity of not greater than 90 days from the date of issuance
thereof: (a) readily marketable direct obligations of the Government of
the United States or any agency or instrumentality thereof or
obligations unconditionally guaranteed by the full faith and credit of
the Government of the United States, (b) insured certificates of
deposit of or time deposits with any commercial bank that is a Lender
Party or a member of the Federal Reserve System, issues (or the parent
of which issues) commercial paper rated as described in clause (c)
below, is organized under the laws of the United States or any State
thereof and has combined capital and surplus of at least $1,000,000,000
or (c) commercial paper in an aggregate amount of not more than
$50,000,000 per issuer outstanding at any time, issued by any
corporation organized under the laws of any State of the United States
and rated at least "Prime-1" (or the then equivalent grade) by Xxxxx'x
or "A-l" (or the then equivalent grade) by S&P.
"CBD OFFICE REAL PROPERTY" means Real Property (exclusive of
any Development Property) located in a metropolitan district with a
high concentration of office buildings and other structures from which
commercial businesses operate and that is an office building or a
structure from which commercial businesses operate.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency.
"CHANGE OF CONTROL" means the occurrence of any of the
following: (a) any Person or two or more Persons acting in concert
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of Voting Interests of
the General Partner (or other securities convertible into such Voting
Interests) representing 35% or more of the combined voting power of all
Voting Interests of the General Partner; or (b) during any period of up
to 24 consecutive months, commencing after the date of this Agreement,
individuals who at the beginning of such 24-month period were directors
of the General Partner shall cease for any reason to constitute a
majority of the board of directors of the General Partner; or (c) any
Person or two or more Persons acting in concert shall have acquired by
contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their
acquisition of the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the General
Partner; or (d) the General Partner ceases to be the general partner of
the Borrower; or (e) the General Partner ceases to be the legal and
beneficial owner of all of the general partnership interests in the
Borrower and of Voting Interests of the Borrower representing at least
35% of the combined voting power of all Voting Interests of the
Borrower.
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"CITIGROUP" has the meaning specified in the recital of
parties to this Agreement.
"CLOSING DATE" means June 27,2003 or such other date as may be
agreed upon by the Borrower and the Administrative Agent.
"CNAI" has the meaning specified in the recital of parties to
this Agreement.
"COLLATERAL" means all "Collateral" referred to in the
Collateral Documents and all other property that is or is intended to
be subject to any Lien in favor of the Collateral Agent for the benefit
of the Secured Parties and will include, without limitation, all
Eligible Real Estate Assets.
"COLLATERAL ACCOUNT" has the meaning specified in the Security
Agreements.
"COLLATERAL AGENT has the meaning specified in the recital of
parties to this Agreement.
"COLLATERAL DOCUMENTS" means the Security Agreements, the
Mortgages, and any other agreement that creates or purports to create a
Lien in favor of the Collateral Agent for the benefit of the Secured
Parties.
"COMMITMENT" means a Revolving Credit Commitment or a Letter
of Credit Commitment.
"COMMUNICATIONS" has the meaning specified in Section 9.02(b).
"CONFIDENTIAL INFORMATION" means information that any Loan
Party furnishes to any Agent or any Lender Party in a writing
designated as confidential, but does not include any such information
that is or becomes generally available to the public or that is or
becomes available to such Agent or such Lender Party from a source
other than the Loan Parties.
"CONSOLIDATED" refers to the consolidation of accounts in
accordance with GAAP.
"CONTINGENT OBLIGATION" means, with respect to any Person, any
Obligation or arrangement of such Person to guarantee or intended to
guarantee any Debt, leases, dividends or other payment Obligations
("PRIMARY OBLIGATIONS") of any other Person (the "PRIMARY OBLIGOR") in
any manner, whether directly or indirectly, including, without
limitation, (a) the direct or indirect guarantee, endorsement (other
than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such
Person of the Obligation of a primary obligor, (b) the Obligation to
make take-or-pay or similar payments, if required, regardless of
nonperformance by any other party or parties to an agreement or (c) any
Obligation of such Person, whether or not contingent, (i) to purchase
any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (A) for the
purchase or payment of any such primary obligation or (B) to maintain
working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, assets, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the holder of
such primary obligation against loss in respect thereof. The amount of
any Contingent Obligation 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 less, the maximum
amount of such primary obligation for which such Person may be liable
pursuant to the terms of the instrument evidencing such Contingent
Obligation) or, if not stated or determinable,
7
the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder), as determined
by such Person in good faith.
"CONVERSION", "CONVERT" and "CONVERTED" each refer to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.07(d), 2.09 or 2.10.
"CURRENT ASSETS" of any Person means all assets of such Person
that would, in accordance with GAAP, be classified as current assets of
a company conducting a business the same as or similar to that of such
Person, after deducting adequate reserves in each case in which a
reserve is proper in accordance with GAAP.
"CURRENT LIABILITIES" of any Person means (a) all Debt of such
Person that by its terms is payable on demand or matures within one
year after the date of its creation (excluding any Debt renewable or
extendible, at the option of such Person, to a date more than one year
from such date or arising under a revolving credit or similar agreement
that obligates the lender or lenders to extend credit during a period
of more than one year from such date) and (b) all other items
(including taxes accrued as estimated) that in accordance with GAAP
would be classified as current liabilities of such Person.
"DEBT" of any Person means, without duplication for purposes
of calculating financial ratios, (a) all indebtedness of such Person
for borrowed money, (b) all Obligations of such Person for the deferred
purchase price of property or services other than trade payables
incurred in the ordinary course of business and not overdue by more
than 60 days, (c) all Obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all Obligations of
such Person created or arising under any conditional sale or other
title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender
under such agreement in the event of default are limited to
repossession or sale of such property), (e) all Obligations of such
Person as lessee under Capitalized Leases, (f) all Obligations of such
Person under acceptance, letter of credit or similar facilities, (g)
all Obligations of such Person to purchase, redeem, retire, defease or
otherwise make any payment in respect of any Equity Interests in such
Person or any other Person or any warrants, rights or options to
acquire such capital stock, valued, in the case of Redeemable Preferred
Interests, at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends, (h) all Obligations of
such Person in respect of Hedge Agreements, valued at the Agreement
Value thereof, (i) all Contingent Obligations of such Person and (j)
all indebtedness and other payment Obligations referred to in clauses
(a) through (i) above of another Person secured by (or for which the
holder of such Debt has an existing right, contingent or otherwise, to
be secured by) any Lien on property (including, without limitation,
accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such
indebtedness or other payment Obligations.
"DEBT FOR BORROWED MONEY" of any Person means all items that,
in accordance with GAAP, would be classified as indebtedness on a
Consolidated balance sheet of such Person, provided, that in the case
of the Parent Guarantor and its Subsidiaries "Debt for Borrowed Money"
shall also include, without duplication, the JV Pro Rata Share of Debt
for Borrowed Money for each Joint Venture.
"DEBT RATING" means, as of any date, the lowest rating that
has been most recently assigned by S&P and Xxxxx'x, as the case may be,
to the long-term senior unsecured non-credit enhanced indebtedness of
the Borrower or, if applicable, to the "implied rating" of the
Borrower's long-term senior unsecured credit enhanced debt. For
purposes of the foregoing, (a) if the ratings
8
established by S&P and Xxxxx'x shall fall within different levels, the
Applicable Margin shall be based upon (i) the lower rating, in the
event such ratings are no more than one level apart or (ii) the average
of the two ratings, in the event such ratings are more than one level
apart; (b) if any rating established by S&P or Xxxxx'x shall be
changed, such change shall be effective as of the date on which such
change is first announced publicly by the rating agency making such
change; and (c) if S&P or Xxxxx'x shall change the basis on which
ratings are established, each reference to the Borrower's Debt Rating
announced by S&P or Xxxxx'x, as the case may be, shall refer to the
then equivalent rating by S&P or Xxxxx'x, as the case may be.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"DEFAULT TERMINATION NOTICE" has the meaning specified in
Section 2.0 l(b).
"DEVELOPMENT PROPERTIES" means all Real Property that, in
accordance with GAAP, would be classified as development properties on
a Consolidated balance sheet of the Parent Guarantor and its
Subsidiaries.
"DISCLOSED LITIGATION" has the meaning specified in Section
3.01(f).
"DOMESTIC LENDING OFFICE" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party,
as the case may be, or such other office of such Lender Party as such
Lender Party may from time to time specify to the Borrower and the
Administrative Agent.
"EBITDA" means, for any period, (a) the sum, determined on a
Consolidated basis, of (i) net income (or net loss), (ii) interest
expense, (iii) income tax expense, (iv) depreciation expense and (v)
amortization expense, in each case of the Parent Guarantor and its
Subsidiaries, determined in accordance with GAAP for such period, plus
(b) with respect to each Joint Venture, the JV Pro Rata Share of the
sum, determined on a Consolidated basis, of (i) net income (or net
loss), (ii) interest expense, (iii) income tax expense, (iv)
depreciation expense and (v) amortization expense of such Joint
Venture, determined in accordance with GAAP for such period.
"EFFECTIVE DATE" means the first date on which the conditions
set forth in Article III shall be satisfied.
"ELIGIBLE ASSIGNEE" means (a) with respect to the Revolving
Credit Facility, (i) a Lender; (ii) an Affiliate or Fund Affiliate of a
Lender; and (iii) any other Person approved by the Administrative Agent
and, unless a Default has occurred and is continuing at the time any
assignment is effected pursuant to Section 9.07, the Borrower, such
approval not to be unreasonably withheld or delayed, and (b) with
respect to the Letter of Credit Facility, a Person that is approved by
the Administrative Agent (such approval not to be unreasonably withheld
or delayed) and, unless a Default has occurred and is continuing at the
time any assignment is effected pursuant to Section 9.07, the Borrower,
such approval not to be unreasonably withheld or delayed; provided,
however, that neither any Loan Party nor any Affiliate of a Loan Party
shall qualify as an Eligible Assignee under this definition.
"ELIGIBLE REAL ESTATE ASSETS" means only such Real Property
(a) for which the applicable conditions (as determined by the
Collateral Agent in its reasonable discretion) in Section 3.01 or
9
5.01(j) have been satisfied and as all of the Lenders, in their
reasonable discretion, shall from time to time elect to consider
Eligible Real Estate Assets for purposes of this Agreement and (b) that
is listed on Schedule II hereto.
"ENVIRONMENTAL ACTION" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, any Environmental Permit or Hazardous Material or arising from
alleged injury or threat to health, safety or the environment,
including, without limitation, (a) by any governmental or regulatory
authority for enforcement, cleanup, removal, response, remedial or
other actions or damages and (b) by any governmental or regulatory
authority or third party for damages, contribution, indemnification,
cost recovery, compensation or injunctive relief.
"ENVIRONMENTAL LAW" means any Federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, writ, judgment,
injunction, decree or judicial or agency interpretation, policy or
guidance relating to pollution or protection of the environment,
health, safety or natural resources, including, without limitation,
those relating to the use, handling, transportation, treatment,
storage, disposal, release or discharge of Hazardous Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"EQUITY INTERESTS" means, with respect to any Person, shares
of capital stock of (or other ownership or profit interests in) such
Person, warrants, options or other rights for the purchase or other
acquisition from such Person of shares of capital stock of (or other
ownership or profit interests in) such Person, securities convertible
into or exchangeable for shares of capital stock of (or other ownership
or profit interests in) such Person or warrants, rights or options for
the purchase or other acquisition from such Person of such shares (or
such other interests), and other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust
interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are
authorized or otherwise existing on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title
IV of ERISA is a member of the controlled group of any Loan Party, or
under common control with any Loan Party, within the meaning of Section
414 of the Internal Revenue Code.
"ERISA EVENT" means (a)(i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC or (ii) the requirements of Section 4043(b)
of ERISA apply with respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043 (c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan, pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 404l(e) of ERISA); (d) the cessation
of operations at a facility of any Loan Party or any ERISA Affiliate in
the circumstances described in Section 4062(e) of ERISA; (e) the
withdrawal by any Loan Party or any ERISA Affiliate from a Multiple
Employer Plan during a
10
plan year for which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA; (f) the conditions for imposition of a
lien under Section 302(f) of ERISA shall have been met with respect to
any Plan; (g) the adoption of an amendment to a Plan requiring the
provision of security to such Plan pursuant to Section 307 of ERISA; or
(h) the institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition described in Section 4042 of ERISA that constitutes grounds
for the termination of, or the appointment of a trustee to administer,
such Plan.
"EUROCURRENCY LIABILITIES" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Eurodollar
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party
(or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender Party as such Lender Party may from
time to time specify to the Borrower and the Administrative Agent.
"EURODOLLAR RATE" means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum (rounded upward, if necessary, to the
nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor
page) as the London interbank offered rate for deposits in U.S. Dollars
at 1:00 P.M. (London time) two Business Days before the first day of
such Interest Period for a period equal to such Interest Period or, if
for any reason such rate is not available, the average (rounded upward,
if necessary, to the nearest 1/100 of 1% , if such average is not such
a multiple) of the rate per annum at which deposits in U.S. Dollars are
offered by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank market at 1:00
P.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such Reference
Bank's Eurodollar Rate Advance comprising part of such Borrowing to be
outstanding during such Interest Period (or, if such Reference Bank
shall not have such a Eurodollar Rate Advance, U.S.$1,000,000) and for
a period equal to such Interest Period by (b) a percentage equal to
100% minus the Eurodollar Rate Reserve Percentage for such Interest
Period.
"EURODOLLAR RATE ADVANCE" means an Advance that bears interest
as provided in Section 2.07(a)(ii).
"EURODOLLAR RATE RESERVE PERCENTAGE" means, for any Interest
Period for all Eurodollar Rate Advances comprising part of the same
Borrowing, the reserve percentage applicable two Business Days before
the first day of such Interest Period under regulations issued from
time to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference
to which the interest rate on Eurodollar Rate Advances is determined)
having a term equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXISTING DEBT" means Debt of each Loan Party and its
Subsidiaries outstanding immediately before giving effect to the
Recapitalization.
11
"EXCLUDED SUBSIDIARY" at any time means any direct or indirect
Subsidiary of the Borrower that is unable to guaranty the Obligations
of the Loan Parties under the Loan Documents at such time because it is
party to one or more Excluded Subsidiary Agreements that prohibit such
Excluded Subsidiary from entering into the Guaranty set forth in
Article VII or a Guaranty Supplement.
"EXCLUDED SUBSIDIARY AGREEMENT" for each Excluded Subsidiary
means any agreement set forth opposite the name of such Excluded
Subsidiary on Schedule 4.01(x) hereto and any agreement pursuant to
which such Excluded Subsidiary incurs Refinancing Debt with regard to
the Debt, if any, incurred pursuant to such Excluded Subsidiary
Agreement.
"EXTENSION DATE" has the meaning specified in Section 2.16.
"FACILITY" means the Revolving Credit Facility or the Letter
of Credit Facility.
"FACILITY EXPOSURE" means, at any date of determination, the
sum of the aggregate principal amount of all outstanding Advances and
the Available Amount under all outstanding Letters of Credit.
"FACILITY FEE" has the meaning specified in Section 2.08(a).
"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"FEE LETTER" means the fee letter dated as of May 19, 2003
among the Borrower, CNAI and Citigroup.
"FISCAL YEAR" means a fiscal year of the Parent Guarantor and
its Consolidated Subsidiaries ending on December 31 in any calendar
year.
"FIXED CHARGE COVERAGE RATIO" means, at any date of
determination, the ratio of (a) Adjusted EBITDA, divided by (b) the sum
of (i) interest payable on, and amortization of debt discount in
respect of, all Debt for Borrowed Money plus (ii) principal amounts of
all Debt for Borrowed Money payable plus (iii) all dividends payable on
any Preferred Interests, in each case, of or by the Parent Guarantor
and its Subsidiaries for the consecutive four fiscal quarters of the
Parent Guarantor most recently ended for which financial statements are
required to be delivered to the Lender Parties pursuant to Section
5.03(b) or (c), as the case may be.
"FUND AFFILIATE" means, with respect to any Lender that is a
fund that invests in bank loans, any other fund that invests in bank
loans and is advised or managed by the same investment advisor as such
Lender or by an Affiliate of such investment advisor.
"FUNDS FROM OPERATIONS" means net income (computed in
accordance with GAAP), excluding gains (or losses) from sales of
property plus depreciation and amortization, and after
12
adjustments for unconsolidated Joint Ventures. Adjustments for
unconsolidated Joint Ventures will be calculated to reflect funds from
operations on the same basis.
"GAAP" has the meaning specified in Section 1.03.
"GAS COMPANY TOWER" means that Real Property located at 000
Xxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
"GENERAL PARTNER" has the meaning specified in the recital of
parties to this Agreement.
"GUARANTEED OBLIGATIONS" has the meaning specified in Section
7.01.
"GUARANTORS" means the Parent Guarantor and the Subsidiary
Guarantors.
"GUARANTY" means the Guaranty by the Guarantors pursuant to
Article VII, together with any and all Guaranty Supplements required to
be delivered pursuant to Section 5.01(j).
"GUARANTY SUPPLEMENT" means a supplement entered into by an
Additional Guarantor in substantially the form of Exhibit C hereto.
"HAZARDOUS MATERIALS" means (a) petroleum or petroleum
products, by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"HEDGE AGREEMENTS" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other hedging
agreements.
"HEDGE BANK" means any Lender Party or an Affiliate of a
Lender Party in its capacity as a party to a Secured Hedge Agreement.
"HOTEL REAL PROPERTY" means Real Property that operates or is
intended to be operated as a hotel, motel or other lodging for
transient use of rooms or is a structure from which a hotel, motel or
other lodging for transient use of rooms is operated or intended to be
operated.
"IMPLIED DEBT SERVICE COVERAGE RATIO" means, at any date of
determination, the ratio of (a) the aggregate Adjusted Net Operating
Income for all Eligible Real Estate Assets for the consecutive four
fiscal quarters of the Parent Guarantor most recently ended for which
financial statements are required to be delivered to the Lender Parties
pursuant to Section 5.03(b) or (c), as the case may be, to (b) the
greater of (i) the actual interest expense for such fiscal period and
(ii) the interest (including capitalized interest) and principal
amortization payments that would be required to be paid for such fiscal
period on an assumed Debt in a aggregate principal amount equal to the
sum of all outstanding Advances plus the Available Amount of all
Letters of Credit that fully amortizes on a level payment 25-year
amortization schedule and assuming an interest rate equal to the yield
to maturity of the then current ten-year U.S. Treasury obligations plus
1.75%.
"INDEMNIFIED COSTS" has the meaning specified in Section
8.05(a).
13
"INDEMNIFIED PARTY" has the meaning specified in Section
7.06(a).
"INFORMATION MEMORANDUM" means the information memorandum
dated May 2003 used by the Arrangers in connection with the syndication
of the Commitments.
"INITIAL EXTENSION OF CREDIT" means the earlier to occur of
the initial Borrowing and the initial issuance of a Letter of Credit
hereunder.
"INITIAL ISSUING BANK" has the meaning specified in the
recital of parties to this Agreement.
"INITIAL LENDERS" has the meaning specified in the recital of
parties to this Agreement.
"INSUFFICIENCY" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"INTEREST COVERAGE RATIO" means, at any date of determination,
the ratio of (a) Adjusted EBITDA to (b) interest (including capitalized
interest) payable on, and amortization of debt discount in respect of,
all Debt for Borrowed Money, in each case, of or by the Borrower and
its Subsidiaries and Joint Ventures for the consecutive four fiscal
quarters of the Parent Guarantor most recently ended for which
financial statements are required to be delivered to the Lender Parties
pursuant to Section 5.03(b) or (c), as the case may be.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance, and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be
one, two, three or six months, as the Borrower may, upon notice
received by the Administrative Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the first day of
such Interest Period, select; provided, however, that:
(a) the Borrower may not select any Interest
Period with respect to any Eurodollar Rate Advance that ends
after the Termination Date;
(b) Interest Periods commencing on the same date
for Eurodollar Rate Advances comprising part of the same
Borrowing shall be of the same duration;
(c) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day; provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(d) whenever the first day of any Interest
Period occurs on a day of an initial calendar month for which
there is no numerically corresponding day in the calendar
month that succeeds such initial calendar month by the number
of months equal to the
14
number of months in such Interest Period, such Interest Period
shall end on the last Business Day of such succeeding calendar
month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"INVESTMENT" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any Equity Interests or
Debt or the assets comprising a division or business unit or a
substantial part or all of the business of such Person, any capital
contribution to such Person or any other direct or indirect investment
in such Person, including, without limitation, any acquisition by way
of a merger or consolidation and any arrangement pursuant to which the
investor incurs Debt of the types referred to in clause (i) or (j) of
the definition of "DEBT" in respect of such Person.
"IPO" means the initial public offering of common stock in the
General Partner and its registration as a public company with the
Securities and Exchange Commission.
"ISSUING BANK" means the Initial Issuing Bank and any other
Lender approved as an Issuing Bank by the Administrative Agent and the
Borrower and any Eligible Assignee to which a Letter of Credit
Commitment hereunder has been assigned pursuant to Section 9.07 so long
as each such Lender or each such Eligible Assignee expressly agrees to
perform in accordance with their terms all of the obligations that by
the terms of this Agreement are required to be performed by it as an
Issuing Bank and notifies the Administrative Agent of its Applicable
Lending Office and the amount of its Letter of Credit Commitment (which
information shall be recorded by the Administrative Agent in the
Register) for so long as such Initial Issuing Bank, Lender or Eligible
Assignee, as the case may be, shall have a Letter of Credit Commitment.
"JOINT VENTURE" means any joint venture (a) in which the
Parent Guarantor or any of its Subsidiaries holds any Equity Interest,
(b) that is not a Subsidiary of the Parent Guarantor or any of its
Subsidiaries and (c) the accounts of which would not appear on the
Consolidated financial statements of the Parent Guarantor.
"JV PRO RATA SHARE" means, with respect to any Joint Venture
at any time, the fraction, expressed as a percentage, obtained by
dividing (a) the total value of all Equity Interests in such Joint
Venture held by the Parent Guarantor and any of its Subsidiaries by (b)
the total value of all outstanding Equity Interests in such Joint
Venture at such time.
"KPMG TOWER" means that Real Property located at 000 Xxxxx
Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
"L/C CASH COLLATERAL ACCOUNT" means the account of the
Borrower maintained with the Administrative Agent, in the name of the
Administrative Agent and under the sole control and dominion of the
Administrative Agent and subject to the terms of this Agreement.
"L/C RELATED DOCUMENTS" has the meaning specified in Section
2.04(b)(ii)(A).
"LENDER PARTY" means any Lender or any Issuing Bank.
"LENDERS" means the Initial Lenders and each Person that shall
become a Lender hereunder pursuant to Section 9.07 for so long as such
Initial Lender or Person, as the case may be, shall be a party to this
Agreement.
15
"LETTER OF CREDIT ADVANCE" means an advance made by any
Issuing Bank or any Lender pursuant to Section 2.03(c).
"LETTER OF CREDIT AGREEMENT" has the meaning specified in
Section 2.03(a).
"LETTER OF CREDIT COMMITMENT" means, with respect to any
Issuing Bank at any time, the amount set forth opposite such Issuing
Bank's name on Schedule I hereto under the caption "Letter of Credit
Commitment" or, if such Issuing Bank has entered into one or more
Assignment and Acceptances, set forth for such Issuing Bank in the
Register maintained by the Administrative Agent pursuant to Section
9.07(d) as such Issuing Bank's "Letter of Credit Commitment", as such
amount may be reduced at or prior to such time pursuant to Section
2.05.
"LETTER OF CREDIT FACILITY" means, at any time, an amount
equal to the lesser of (a) the aggregate amount of the Issuing Banks'
Letter of Credit Commitments at such time, and (b) $25,000,000, as such
amount may be reduced at or prior to such time pursuant to Section
2.05.
"LETTERS OF CREDIT" has the meaning specified in Section
2.01(b).
"LEVERAGE RATIO" means, at any date of determination, the
ratio, expressed as a percentage, of (a) the sum of Consolidated Debt
of the Parent Guarantor and its Subsidiaries plus the applicable JV Pro
Rata Share of the Consolidated Debt of each Joint Venture to (b) Total
Asset Value, in each case as at the end of the most recently ended
fiscal quarter of the Parent Guarantor for which financial statements
are required to be delivered to the Lender Parties pursuant to Section
5.03(b) or (c), as the case may be.
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"LOAN DOCUMENTS" means (a) this Agreement, (b) the Notes, (c)
the Fee Letter, (d) each Letter of Credit Agreement, (e) each Guaranty
Supplement, (f) the Collateral Documents and (g) each Secured Hedge
Agreement, in each case as amended.
"LOAN PARTIES" means the Borrower and the Guarantors.
"LOAN VALUE" means the sum of (a) with respect to each
Eligible Real Estate Asset that is Non-Hotel Real Property, the amount
determined by the Administrative Agent equal to 60% of the Borrowing
Base Asset Value of such Eligible Real Estate Asset and (b) with
respect to each Eligible Real Estate Asset that is Hotel Real Property,
the amount determined by the Administrative Agent equal to 55% of the
Borrowing Base Asset Value of such Eligible Real Estate Asset.
"MARKETABLE SECURITIES" means any of the following, to the
extent owned by the Borrower or any of its Subsidiaries free and clear
of all Liens and having a maturity of not greater than 360 days from
the date of acquisition thereof: (a) readily marketable direct
obligations of the Government of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by
the full faith and credit of the Government of the United States, (b)
insured certificates of deposit of or time deposits with any commercial
bank that is a Lender or a member of the Federal Reserve System, issues
(or the parent of which issues) commercial paper rated as described in
clause (c), is organized under the laws of the United States or any
16
State thereof and has combined capital and surplus of at least
$1,000,000,000 or (c) commercial paper in an aggregate amount of no
more than $50,000,000 per issuer outstanding at any time, issued by any
corporation organized under the laws of any State of the United States
and rated at least "Prime-1" (or the then equivalent grade) by Xxxxx'x
or "A-l" (or the then equivalent grade) by S&P.
"MARGIN STOCK" has the meaning specified in Regulation U.
"MATERIAL ADVERSE CHANGE" means any material adverse change in
the business, condition (financial or otherwise) or results of
operations of the Loan Parties and their Subsidiaries, taken as a
whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, condition (financial or otherwise) or results of
operations of the Loan Parties and their Subsidiaries, taken as a
whole, (b) the rights and remedies of any Agent or any Lender Party
under any Loan Document, (c) the ability of any Loan Party to perform
its Obligations under any Loan Document to which it is or is to be a
party or (d) the value of the Collateral.
"MATERIAL CONTRACT" means, with respect to any Loan Party,
each contract to which such Loan Party is a party involving aggregate
consideration payable to or by such Loan Party in an amount of
$25,000,000 or more per annum or otherwise material to the business,
condition (financial or otherwise), operations, performance, properties
or prospects of such Loan Party.
"MATERIAL DEBT" has the meaning specified in Section 6.01(e).
"XXXXX'X" means Xxxxx'x Investors Services, Inc. and any
successor thereto.
"MORTGAGE POLICIES" has the meaning specified in Section
3.01(a)(iii)(B).
"MORTGAGES" has the meaning specified in Section 3.01(a)(iii).
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and at least one
Person other than the Loan Parties and the ERISA Affiliates or (b) was
so maintained and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
"NET OPERATING INCOME" means, with respect to any of the
Eligible Real Estate Assets, the total rental and other income from the
operation of the Eligible Real Estate Assets, after deducting all
expenses and other proper charges incurred by the Borrower in
connection with the operation and maintenance of such Eligible Real
Estate Assets during such fiscal period, including, without limitation,
management fees, real estate taxes and bad debt expenses, but before
payment or provision for debt service charges, income taxes and
depreciation, amortization and other non-cash expenses, in each case
for the consecutive four fiscal quarters of the Parent Guarantor most
recently ended for which financial statements are required to be
17
delivered to the Lender Parties pursuant to Section 5.03(b) or (c), as
the case may be, all as determined in accordance with GAAP, provided
that there shall be no rent leveling adjustments made when computing
Net Operating Income.
"NON-CBD OFFICE REAL PROPERTY" means Real Property located
outside of any metropolitan district with a high concentration of
office buildings and other structures from which commercial businesses
operate and that is an office building or a structure from which
commercial businesses operate.
"NON-HOTEL REAL PROPERTY" means Real Property that is not
Hotel Real Property.
"NON-OFFICE REAL PROPERTY" means Real Property wherever
located that is not an office building or a structure from which
commercial businesses operate.
"NON-RECOURSE DEBT" means Debt for Borrowed Money with respect
to which recourse for payment is limited to (a) any building(s) or
parcel(s) of Real Property or any related assets encumbered by a Lien
securing such Debt for Borrowed Money and/or (b) the general credit of
any Property-Level Subsidiary and/or the Equity Interests therein, it
being understood that the instruments governing such Debt may include
customary carve-outs to such limited recourse such as, for example,
personal recourse of the Parent Guarantor or any Subsidiary of the
Parent Guarantor for fraud, misrepresentation, misapplication of cash,
waste, environmental claims and liabilities and other circumstances
customarily excluded by lenders from exculpation provisions and/or
included in separate indemnification agreements in non-recourse
financings of real estate.
"NOTE" means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of Exhibit A hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Revolving Credit Advances and Letter of Credit
Advances made by such Lender.
"NOTICE" has the meaning specified in Section 9.02(c).
"NOTICE OF BORROWING" has the meaning specified in Section
2.02(a).
"NOTICE OF ISSUANCE" has the meaning specified in Section
2.03(a).
"NOTICE OF RENEWAL" has the meaning specified in Section
2.01(b).
"NOTICE OF TERMINATION" has the meaning specified in Section
2.01(b).
"NPL" means the National Priorities List under CERCLA.
"OBLIGATION" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether
or not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured,
and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 6.01(f). Without
limiting the generality of the foregoing, the Obligations of any Loan
Party under the Loan Documents include (a) the obligation to pay
principal, interest, Letter of Credit commissions, charges, expenses,
fees, attorneys' fees and disbursements, indemnities and other amounts
payable by such Loan Party under any Loan Document and (b) the
obligation of such Loan Party to reimburse any amount in
18
respect of any of the foregoing that any Lender Party, in its sole
discretion, may elect to pay or advance on behalf of such Loan Party.
"OECD" means the Organization for Economic Cooperation and
Development.
"OTHER TAXES" has the meaning specified in Section 2.12(b).
"PARENT GUARANTOR" has the meaning specified in the recital of
parties to this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"PERMITTED LIENS" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies not yet delinquent; (b) Liens imposed by
law, such as materialmen's, mechanics', carriers', workmen's and
repairmen's Liens and other similar Liens arising in the ordinary
course of business securing obligations that (i) are not overdue for a
period of more than 30 days and (ii) individually or together with all
other Permitted Liens outstanding on any date of determination do not
materially adversely affect the use of the property to which they
relate; (c) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or
statutory obligations; (d) easements, rights of way and other
encumbrances on title to real property that do not render title to the
property encumbered thereby unmarketable or materially adversely affect
the use of such property for its present purposes; (e) any Permitted
Encumbrances (as defined in the Mortgages); and (f) Tenancy Leases.
"PERSON" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer
Plan.
"PLATFORM" has the meaning specified in Section 9.02(b).
"POST PETITION INTEREST" has the meaning specified in Section
7.07(c).
"PREFERRED INTERESTS" means, with respect to any Person,
Equity Interests issued by such Person that are entitled to a
preference or priority over any other Equity Interests issued by such
Person upon any distribution of such Person's property and assets,
whether by dividend or upon liquidation.
"PROPERTY-LEVEL SUBSIDIARY" means any Subsidiary of the
Borrower that holds a direct fee or leasehold interest in any single
building (or group of related buildings) or parcel (or group of related
parcels) of Real Property and related assets and not in any other
building or parcel of Real Property.
"PROPOSED BORROWING BASE PROPERTY" has the meaning specified
in Section 5.01(j)(iii).
"PRO RATA SHARE" of any amount means, with respect to any
Lender at any time, the product of such amount times a fraction the
numerator of which is the amount of such Lender's Revolving Credit
Commitment at such time (or, if the Commitments shall have been
terminated pursuant to Section 2.05 or 6.01, such Lender's Revolving
Credit Commitment as in effect
19
immediately prior to such termination) and the denominator of which is
the Revolving Credit Facility at such time (or, if the Commitments
shall have been terminated pursuant to Section 2.05 or 6.01, the
Revolving Credit Facility as in effect immediately prior to such
termination).
"REAL PROPERTY" means all right, title and interest of the
Borrower and each of its Subsidiaries in and to any land and any
improvements located thereon, together with all equipment, furniture,
materials, supplies and personal property in which such Person has an
interest now or hereafter located on or used in connection with such
land and improvements, and all appurtenances, additions, improvements,
renewals, substitutions and replacements thereof now or hereafter
acquired by such Person.
"RECAPITALIZATION" means the acquisition by the Borrower of
full or partial interests in a portfolio of commercial real estate
properties from Affiliates of Xxxxxxx Partners Development, Ltd. and
other Persons in exchange for consideration of cash, common stock of
the Parent Guarantor, units and assumption of debt and other
obligations, all as more fully described in the Parent Guarantor's Form
S-l1 Registration Statement filed with the Securities and Exchange
Commission in connection with the IPO.
"REDEEMABLE" means, with respect to any Equity Interest, any
Debt or any other right or Obligation, any such Equity Interest, Debt,
right or Obligation that (a) the issuer has undertaken to redeem at a
fixed or determinable date or dates, whether by operation of a sinking
fund or otherwise, or upon the occurrence of a condition not solely
within the control of the issuer or (b) is redeemable at the option of
the holder.
"REFERENCE BANKS" means Citibank, N.A. and Wachovia Bank, NA.
"REFINANCING DEBT" means, with respect to any Debt, any Debt
extending the maturity of, or refunding or refinancing, in whole or in
part, such Debt, provided that (i) the terms of any Refinancing Debt,
and of any agreement entered into and of any instrument issued in
connection therewith, are otherwise permitted by the Loan Documents,
(ii) the principal amount of such Debt shall not be increased above the
principal amount thereof outstanding immediately prior to such
extension, refunding or refinancing, and the direct and contingent
obligors therefor shall not be changed, as a result of or in connection
with such extension, refunding or refinancing, (iii) the terms relating
to principal amount, amortization, maturity, collateral (if any) and
subordination (if any), and other material terms taken as a whole, of
any such Refinancing Debt, and of any agreement entered into and of any
instrument issued in connection therewith, are no less favorable in any
material respect to the Loan Parties or the Lender Parties than the
terms of any agreement or instrument governing the Debt being extended,
refunded or refinanced and the interest rate applicable to any such
Refinancing Debt does not exceed the then applicable market interest
rate, and (iv) such Refinancing Debt shall be issued pursuant to the
same type of instrument or agreement and the same form of financing as
that evidencing the Debt.
"REGISTER" has the meaning specified in Section 9.07(d).
"REGULATION U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"REIT" means a Person that is qualified to be treated for tax
purposes as a real estate investment trust under Sections 856-860 of
the Internal Revenue Code.
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"REQUIRED LENDERS" means, at any time, Lenders owed or holding
greater than 66 2/3% of the sum of (a) the aggregate principal amount
of the Advances outstanding at such time, (b) the aggregate Available
Amount of all Letters of Credit outstanding at such time and (c) the
aggregate Unused Revolving Credit Commitments at such time. For
purposes of this definition, the aggregate principal amount of Letter
of Credit Advances owing to any Issuing Bank and the Available Amount
of each Letter of Credit shall be considered to be owed to the
Revolving Lenders ratably in accordance with their respective Revolving
Credit Commitments.
"RESPONSIBLE OFFICER" means any officer of, or any officer of
any general partner or managing member of, any Loan Party or any of its
Subsidiaries.
"REVOLVING CREDIT ADVANCE" has the meaning specified in
Section 2.01(a).
"REVOLVING CREDIT COMMITMENT" means, (a) with respect to any
Lender at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Revolving Credit Commitment" or
(b) if such Lender has entered into one or more Assignment and
Acceptances, set forth for such Lender in the Register maintained by
the Administrative Agent pursuant to Section 9.07(d) as such Lender's
"Revolving Credit Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.05.
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate
amount of the Lenders' Revolving Credit Commitments at such time.
"S&P" means Standard & Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc. and any successor thereto.
"XXXXXXXX-XXXXX" means the Xxxxxxxx-Xxxxx Act of 2002, as
amended.
"SECURED HEDGE AGREEMENT" means any Hedge Agreement required
or permitted under Article V that is entered into by and between any
Loan Party and any Hedge Bank and that is secured by the Collateral
Documents.
"SECURED OBLIGATIONS" has the meaning specified in Section 2
of the Security Agreements.
"SECURED PARTIES" means the Agents, the Lender Parties and the
Hedge Banks.
"SECURITY AGREEMENTS" have the meaning specified in Section
3.01(a)(ii).
"SINGLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and no Person other
than the Loan Parties and the ERISA Affiliates or (b) was so maintained
and in respect of which any Loan Party or any ERISA Affiliate could
have liability under Section 4069 of ERISA in the event such plan has
been or were to be terminated.
"SOLVENT" means, with respect to any Person on a particular
date, that on such date (a) the fair value of the property of such
Person, on a going-concern basis, is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of
such Person, (b) the present fair salable value of the assets of such
Person, on a going-concern basis, is not less than the amount that will
be required to pay the probable liability of such Person on its debts
as they become absolute and matured, (c) such Person does not intend
to, and does not believe that it will,
21
incur debts or liabilities beyond such Person's ability to pay such
debts and liabilities as they mature and (d) such Person is not engaged
in business or a transaction, and is not about to engage in business or
a transaction, for which such Person's property would constitute an
unreasonably small capital. The amount of contingent liabilities at any
time shall be computed as the amount that, in the light of all the
facts and circumstances existing at such time (including, without
limitation, after taking into account appropriate discount factors for
the present value of future contingent liabilities), represents the
amount that can reasonably be expected to become an actual or matured
liability.
"STANDBY LETTER OF CREDIT" means any Letter of Credit issued
under the Letter of Credit Facility, other than a Trade Letter of
Credit.
"SUBORDINATED OBLIGATIONS" has the meaning specified in
Section 7.07(a).
"SUBSIDIARY" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such partnership, joint
venture or limited liability company or (c) the beneficial interest in
such trust or estate, in each case, is at the time directly or
indirectly owned or controlled by such Person, by such Person and one
or more of its other Subsidiaries or by one or more of such Person's
other Subsidiaries.
"SUBSIDIARY GUARANTOR" has the meaning specified in the
recital of parties to this Agreement.
"SURVIVING DEBT" means Debt of each Loan Party and its
Subsidiaries outstanding immediately before and after giving effect to
the Recapitalization.
"TAXES" has the meaning specified in Section 2.12(a).
"TENANCY LEASES " means operating leases, subleases, licenses,
occupancy agreements and rights-of-use entered into by the Borrower or
any of its Subsidiaries in its capacity as a lessor or a similar
capacity in the ordinary course of business that do not materially and
adversely affect the use of the Real Property encumbered thereby for
its intended purpose.
"TERMINATION DATE" means the earlier of (a) the third
anniversary of the Closing Date, subject to the extension thereof
pursuant to Section 2.16, and (b) the date of termination in whole of
the Revolving Credit Commitments and the Letter of Credit Commitments
pursuant to Section 2.05 or 6.01.
"TOTAL ASSET VALUE" means, on any date of determination, the
sum of the Asset Values for all Real Property at such date.
"TOTAL BORROWING BASE ASSET Value" means, on any date of
determination, the sum of the Borrowing Base Asset Values for all
Eligible Real Estate Assets.
"TRADE LETTER OF CREDIT" means any Letter of Credit that is
issued under the Letter of Credit Facility for the benefit of a
supplier of inventory to the Borrower or any of its Subsidiaries to
effect payment for such Inventory.
22
"TRANSFER" has the meaning specified in Section 5.02(e).
"TRS SUBSIDIARIES" means Xxxxxxx Properties Services, Inc.,
Xxxxxxx Properties-Solana Services, L.P., MP-Solana Services GP, LLC
and MP-Solana Services LP, LLC.
"TYPE" refers to the distinction between Advances bearing
interest at the Base Rate and Advances bearing interest at the
Eurodollar Rate.
"UNUSED FEE" has the meaning specified in Section 2.08(b).
"UNUSED REVOLVING CREDIT COMMITMENT" means, with respect to
any Lender at any time, (a) such Lender's Revolving Credit Commitment
at such time minus (b) the sum of (i) the aggregate principal amount of
all Revolving Credit Advances and Letter of Credit Advances made by
such Lender (in its capacity as a Lender) and outstanding at such time
plus (ii) such Lender's Pro Rata Share of (A) the aggregate Available
Amount of all Letters of Credit outstanding at such time and (B) the
aggregate principal amount of all Letter of Credit Advances made by the
Issuing Banks pursuant to Section 2.03(c) and outstanding at such time.
"US BANK TOWER" means that Real Property located at 000 Xxxx
Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
"VOTING INTERESTS" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing
similar functions) of such Person, even if the right so to vote has
been suspended by the happening of such a contingency.
"WELFARE PLAN" means a welfare plan, as defined in Section
3(1) of ERISA, that is maintained for employees of any Loan Party or in
respect of which any Loan Party could have liability.
"XXXXX FARGO TOWER" means that Real Property located at 000
Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
"WITHDRAWAL LIABILITY" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods; Other Definitional
Provisions. In this Agreement and the other Loan Documents in the computation of
periods of time from a specified date to a later specified date, the word "FROM"
means "from and including" and the words "TO" and "UNTIL" each mean "to but
excluding". References in the Loan Documents to any agreement or contract "AS
AMENDED" shall mean and be a reference to such agreement or contract as amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with its terms.
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.0l(g) ("GAAP').
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ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit. (a) The
Revolving Credit Advances. Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make advances (each a "REVOLVING CREDIT
ADVANCE") to the Borrower from time to time on any Business Day during the
period from the date hereof until the Termination Date in an amount for each
such Advance not to exceed such Lender's Unused Revolving Credit Commitment at
such time. Each Borrowing shall be in an aggregate amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof and shall consist of Revolving
Credit Advances made simultaneously by the Lenders ratably according to their
Revolving Credit Commitments. Within the limits of each Lender's Unused
Revolving Credit Commitment in effect from time to time and prior to the
Termination Date, the Borrower may borrow under this Section 2.01(a), prepay
pursuant to Section 2.06(a) and reborrow under this Section 2.01(a).
(b) Letters of Credit. Each Issuing Bank severally
agrees, on the terms and conditions hereinafter set forth, to issue (or cause
its Affiliate that is a commercial bank to issue on its behalf) letters of
credit in substantially the form of Exhibit I hereto, or such other form
required by the Issuing Banks in their sole discretion (the "LETTERS OF
CREDIT"), for the account of the Borrower from time to time on any Business Day
during the period from the date hereof until 60 days before the Termination Date
in an aggregate Available Amount (i) for all Letters of Credit not to exceed at
any time the Letter of Credit Facility at such time, (ii) for all Letters of
Credit issued by such Issuing Bank not to exceed such Issuing Bank's Letter of
Credit Commitment at such time, and (iii) for each such Letter of Credit not to
exceed the Unused Revolving Credit Commitments of the Lenders at such time. No
Letter of Credit shall have an expiration date (including all rights of the
Borrower or the beneficiary to require renewal) later than the earlier of 60
days before the Termination Date and (A) in the case of a Standby Letter of
Credit one year after the date of issuance thereof, but may by its terms be
renewable annually upon notice (a "Notice of Renewal") given to the Issuing Bank
that issued such Standby Letter of Credit and the Administrative Agent on or
prior to any date for notice of renewal set forth in such Letter of Credit but
in any event at least three Business Days prior to the date of the proposed
renewal of such Standby Letter of Credit and upon fulfillment of the applicable
conditions set forth in Article III unless such Issuing Bank has notified the
Borrower (with a copy to the Administrative Agent) on or prior to the date for
notice of termination set forth in such Letter of Credit but in any event at
least 30 Business Days prior to the date of automatic renewal of its election
not to renew such Standby Letter of Credit (a "NOTICE OF TERMINATION") and (B)
in the case of a Trade Letter of Credit, 60 days after the date of issuance
thereof; provided, however, that the terms of each Standby Letter of Credit that
is automatically renewable annually shall (x) require the Issuing Bank that
issued such Standby Letter of Credit to give the beneficiary named in such
Standby Letter of Credit notice of any Notice of Termination, (y) permit such
beneficiary, upon receipt of such notice, to draw under such Standby Letter of
Credit prior to the date such Standby Letter of Credit otherwise would have been
automatically renewed and (z) not permit the expiration date (after giving
effect to any renewal) of such Standby Letter of Credit in any event to be
extended to a date later than 60 days before the Termination Date. If either a
Notice of Renewal is not given by the Borrower or a Notice of Termination is
given by the relevant Issuing Bank pursuant to the immediately preceding
sentence, such Standby Letter of Credit shall expire on the date on which it
otherwise would have been automatically renewed; provided, however, that even in
the absence of receipt of a Notice of Renewal the relevant Issuing Bank shall,
unless instructed to the contrary by the Administrative Agent or the Borrower,
deem that a Notice of Renewal had been timely delivered and in such case, a
Notice of Renewal shall be deemed to have been so delivered for all purposes
under this Agreement. Each Standby Letter of Credit shall contain a provision
authorizing the Issuing Bank that issued such Letter of Credit to deliver to the
beneficiary of such Letter of Credit, upon the occurrence and during the
continuance of an Event of Default, a notice (a "DEFAULT TERMINATION NOTICE")
terminating such Letter of Credit and giving such beneficiary 15 days to draw
such Letter of Credit. Within the limits of the Letter of Credit Facility,
24
and subject to the limits referred to above, the Borrower may request the
issuance of Letters of Credit under this Section 2.01(b), repay any Letter of
Credit Advances resulting from drawings thereunder pursuant to Section 2.03(c)
and request the issuance of additional Letters of Credit under this Section 2.0l
(b).
SECTION 2.02. Making the Advances. (a) Except as otherwise
provided in Section 2.03, each Borrowing shall be made on notice, given not
later than 2:00 P.M. (New York City time) on the third Business Day prior to the
date of the proposed Borrowing in the case of a Borrowing consisting of
Eurodollar Rate Advances, or not later than 11:00 A.M. (New York City time) on
the Business Day of the proposed Borrowing in the case of a Borrowing consisting
of Base Rate Advances, by the Borrower to the Administrative Agent, which shall
give to each Lender prompt notice thereof by telex or telecopier. Each such
notice of a Borrowing (a "NOTICE OF BORROWING") shall be by telephone, confirmed
immediately in writing, or telex or telecopier, in substantially the form of
Exhibit B hereto, specifying therein the requested (i) date of such Borrowing,
(ii) Type of Advances comprising such Borrowing, (iii) aggregate amount of such
Borrowing and (iv) in the case of a Borrowing consisting of Eurodollar Rate
Advances, initial Interest Period for each such Advance. Each Lender shall,
before 11:00 A.M. (New York City time) on the date of such Borrowing in the case
of a Borrowing consisting of Eurodollar Rate Advances and 1:00 P.M. (New York
City time) on the date of such Borrowing in the case of a Borrowing consisting
of Base Rate Advances, make available for the account of its Applicable Lending
Office to the Administrative Agent at the Administrative Agent's Account, in
same day funds, such Lender's ratable portion of such Borrowing in accordance
with the respective Commitments of such Lender and the other Lenders. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the Borrower by crediting the Borrower's Account;
provided, however, that the Administrative Agent shall first make a portion of
such funds equal to the aggregate principal amount of any Letter of Credit
Advances made by any Issuing Bank and by any other Lender and outstanding on the
date of such Borrowing, plus interest accrued and unpaid thereon to and as of
such date, available to such Issuing Bank and such other Lenders for repayment
of such Letter of Credit Advances.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
the initial Borrowing hereunder or for any Borrowing if the aggregate amount of
such Borrowing is less than $5,000,000 or if the obligation of the Lenders to
make Eurodollar Rate Advances shall then be suspended pursuant to Section
2.07(d)(ii), 2.09 or 2.10 and (ii) there may not be more than 10 separate
Borrowings outstanding at any time.
(c) Each Notice of Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower
shall indemnify each Lender against any loss, cost or expense incurred by such
Lender as a result of any failure to fulfill on or before the date specified in
such Notice of Borrowing for such Borrowing the applicable conditions set forth
in Article III, including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Advance to be made by such Lender as part of
such Borrowing when such Advance, as a result of such failure, is not made on
such date.
(d) Unless the Administrative Agent shall have received
notice from a Lender prior to (x) the date of any Borrowing consisting of
Eurodollar Rate Advances or (y) 12:00 Noon (New York City time) on the date of
any Borrowing consisting of Base Rate Advances that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the
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Borrower on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such ratable portion available to the
Administrative Agent, such Lender and the Borrower severally agree to repay or
pay to the Administrative Agent forthwith on demand such corresponding amount
and to pay interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid or paid to the
Administrative Agent, at (i) in the case of the Borrower, the interest rate
applicable at such time under Section 2.07 to Advances comprising such Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender
shall pay to the Administrative Agent such corresponding amount, such amount so
paid shall constitute such Lender's Advance as part of such Borrowing for all
purposes.
(e) The failure of any Lender to make the Advance to be
made by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under
Letters of Credit. (a) Request for Issuance. Each Letter of Credit shall be
issued upon notice, given not later than 11:00 A.M. (New York City time) on the
fifth Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the Borrower to any Issuing Bank, which shall give to the
Administrative Agent and each Lender prompt notice thereof by telex or
telecopier. Each such notice of issuance of a Letter of Credit (a "NOTICE OF
ISSUANCE") shall be by telephone, confirmed immediately in writing, or telex or
telecopier, specifying therein the requested (i) date of such issuance (which
shall be a Business Day), (ii) Available Amount of such Letter of Credit, (iii)
expiration date of such Letter of Credit, (iv) name and address of the
beneficiary of such Letter of Credit and (v) form of such Letter of Credit, and
shall be accompanied by such application and agreement for letter of credit as
such Issuing Bank may specify to the Borrower for use in connection with such
requested Letter of Credit (a "LETTER OF CREDIT AGREEMENT"). If (y) the
requested form of such Letter of Credit is acceptable to such Issuing Bank in
its sole discretion and (z) it has not received notice of objection to such
issuance from the Required Lenders, such Issuing Bank will, upon fulfillment of
the applicable conditions set forth in Article III, make such Letter of Credit
available to the Borrower at its office referred to in Section 9.02 or as
otherwise agreed with the Borrower in connection with such issuance. In the
event and to the extent that the provisions of any Letter of Credit Agreement
shall conflict with this Agreement, the provisions of this Agreement shall
govern.
(b) Letter of Credit Reports. Each Issuing Bank shall
furnish (i) to each Lender on the first Business Day of each month a written
report summarizing issuance and expiration dates of Letters of Credit issued by
such Issuing Bank during the preceding month and drawings during such month
under all Letters of Credit issued by such Issuing Bank and (ii) to the
Administrative Agent and each Lender on the first Business Day of each calendar
quarter a written report setting forth the average daily aggregate Available
Amount during the preceding calendar quarter of all Letters of Credit issued by
such Issuing Bank.
(c) Drawing and Reimbursement. The payment by any Issuing
Bank of a draft drawn under any Letter of Credit shall constitute for all
purposes of this Agreement the making by such Issuing Bank of a Letter of Credit
Advance, which shall be a Base Rate Advance, in the amount of such draft. Upon
written demand by any Issuing Bank with an outstanding Letter of Credit Advance,
with a copy of such demand to the Administrative Agent, each Lender shall
purchase from such Issuing Bank, and such Issuing Bank shall sell and assign to
each such Lender, such Lender's Pro Rata Share of such outstanding Letter of
Credit Advance as of the date of such purchase, by making available for the
account of its Applicable Lending Office to the Administrative Agent for the
account of such Issuing Bank, by deposit to the Administrative Agent's Account,
in same day funds, an amount equal to the portion of the outstanding principal
amount of such Letter of Credit Advance to be purchased by such Lender.
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Promptly after receipt thereof, the Administrative Agent shall transfer such
funds to such Issuing Bank. The Borrower hereby agrees to each such sale and
assignment. Each Lender agrees to purchase its Pro Rata Share of an outstanding
Letter of Credit Advance on (i) the Business Day on which demand therefor is
made by the Issuing Bank which made such Advance, provided that notice of such
demand is given not later than 11:00 A.M. (New York City time) on such
Business Day, or (ii) the first Business Day next succeeding such demand if
notice of such demand is given after such time. Upon any such assignment by an
Issuing Bank to any Lender of a portion of a Letter of Credit Advance, such
Issuing Bank represents and warrants to such other Lender that such Issuing Bank
is the legal and beneficial owner of such interest being assigned by it, free
and clear of any liens, but makes no other representation or warranty and
assumes no responsibility with respect to such Letter of Credit Advance, the
Loan Documents or any Loan Party. If and to the extent that any Lender shall not
have so made the amount of such Letter of Credit Advance available to the
Administrative Agent, such Lender agrees to pay to the Administrative Agent
forthwith on demand such amount together with interest thereon, for each day
from the date of demand by such Issuing Bank until the date such amount is paid
to the Administrative Agent, at the Federal Funds Rate for its account or the
account of such Issuing Bank, as applicable. If such Lender shall pay to the
Administrative Agent such amount for the account of such Issuing Bank on any
Business Day, such amount so paid in respect of principal shall constitute a
Letter of Credit Advance made by such Lender on such Business Day for purposes
of this Agreement, and the outstanding principal amount of the Letter of Credit
Advance made by such Issuing Bank shall be reduced by such amount on such
Business Day.
(d) Failure to Make Letter of Credit Advances. The
failure of any Lender to make the Letter of Credit Advance to be made by it on
the date specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
SECTION 2.04. Repayment of Advances. (a) Revolving Credit
Advances. The Borrower shall repay to the Administrative Agent for the ratable
account of the Lenders on the Termination Date the aggregate outstanding
principal amount of the Revolving Credit Advances then outstanding.
(b) Letter of Credit Advances. (i) The Borrower shall
repay to the Administrative Agent for the account of each Issuing Bank and each
other Lender that has made a Letter of Credit Advance on the same day on which
such Advance was made the outstanding principal amount of each Letter of Credit
Advance made by each of them.
(ii) The Obligations of the Borrower under this Agreement,
any Letter of Credit Agreement and any other agreement or instrument relating to
any Letter of Credit (and the obligations of each Lender to reimburse the
Issuing Bank with respect thereto) shall be unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement, such
Letter of Credit Agreement and such other agreement or instrument under all
circumstances, including, without limitation, the following circumstances:
(A) any lack of validity or enforceability of any Loan
Document, any Letter of Credit Agreement, any Letter of Credit or any
other agreement or instrument relating thereto (all of the foregoing
being, collectively, the "L/C RELATED DOCUMENTS");
(B) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Obligations of the
Borrower in respect of any L/C Related Document or any
27
other amendment or waiver of or any consent to departure from all or
any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other
right that the Borrower may have at any time against any beneficiary or
any transferee of a Letter of Credit (or any Persons for which any such
beneficiary or any such transferee may be acting), any Issuing Bank or
any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;
(D) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(E) payment by any Issuing Bank under a Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any
Collateral or other collateral, or any release or amendment or waiver
of or consent to departure from the Guaranties or any other guarantee,
for all or any of the Obligations of the Borrower in respect of the L/C
Related Documents; or
(G) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including, without
limitation, any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Borrower or a guarantor.
SECTION 2.05. Termination or Reduction of the Commitments. (a)
Optional. The Borrower may, upon at least three Business Days' notice to the
Administrative Agent, terminate in whole or reduce in part the unused portions
of the Letter of Credit Facility and the Unused Revolving Credit Commitments;
provided, however, that each partial reduction of a Facility (i) shall be in an
aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof and (ii) shall be made ratably among the Lenders in accordance with
their Commitments with respect to such Facility.
(b) Mandatory. The Letter of Credit Facility shall be
permanently reduced from time to time on the date of each reduction in the
Revolving Credit Facility by the amount, if any, by which the amount of the
Letter of Credit Facility exceeds the Revolving Credit Facility after giving
effect to such reduction of the Revolving Credit Facility.
SECTION 2.06. Prepayments. (a) Optional. The Borrower may,
upon same day notice in the case of Base Rate Advances and two Business Days'
notice in the case of Eurodollar Rate Advances, in each case to the
Administrative Agent stating the proposed date and aggregate principal amount of
the prepayment, and if such notice is given the Borrower shall, prepay the
outstanding aggregate principal amount of the Advances comprising part of the
same Borrowing in whole or ratably in part, together with accrued interest to
the date of such prepayment on the aggregate principal amount prepaid; provided,
however, that (i) each partial prepayment shall be in an aggregate principal
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof or,
if less, the amount of the Advances outstanding and (ii) if any prepayment of a
Eurodollar Rate Advance is made on a date other than the last day of an Interest
Period for such Advance, the Borrower shall also pay any amounts owing pursuant
to Section 9.04(c).
(b) Mandatory. (i) The Borrower shall, on each Business
Day, prepay an aggregate principal amount of the Revolving Credit Advances
comprising part of the same Borrowings and the
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Letter of Credit Advances and deposit an amount in the L/C Cash Collateral
Account in an amount equal to the amount by which (A) the sum of the aggregate
principal amount of (1) the Revolving Credit Advances then outstanding and (2)
the Letter of Credit Advances then outstanding plus the aggregate Available
Amount of all Letters of Credit then outstanding exceeds (B) the lesser of the
Revolving Credit Facility and the Loan Value on such Business Day.
(ii) The Borrower shall, on each Business Day, pay to the
Administrative Agent for deposit in the L/C Cash Collateral Account an amount
sufficient to cause the aggregate amount on deposit in the L/C Cash Collateral
Account to equal the amount by which the aggregate Available Amount of all
Letters of Credit then outstanding exceeds the Letter of Credit Facility on such
Business Day.
(iii) Prepayments of the Revolving Credit Facility made
pursuant to clause (i) above shall be first applied to prepay Letter of Credit
Advances then outstanding until such Advances are paid in full, second applied
to prepay Revolving Credit Advances then outstanding comprising part of the same
Borrowings until such Advances are paid in full and third deposited in the L/C
Cash Collateral Account to cash collateralize 100% of the Available Amount of
the Letters of Credit then outstanding. Upon the drawing of any Letter of Credit
for which funds are on deposit in the L/C Cash Collateral Account, such funds
shall be applied to reimburse the relevant Issuing Bank or Lenders, as
applicable.
(iv) All prepayments under this subsection (b) shall be
made together with accrued interest to the date of such prepayment on the
principal amount prepaid.
SECTION 2.07. Interest. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each
Lender from the date of such Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such
Advance is a Base Rate Advance, a rate per annum equal at all times to
the sum of (A) the Base Rate in effect from time to time plus (B) the
Applicable Margin in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (A)
the Eurodollar Rate for such Interest Period for such Advance plus (B)
the Applicable Margin in effect on the first day of such Interest
Period, payable in arrears on the last day of such Interest Period and,
if such Interest Period has a duration of more than three months, on
each day that occurs during such Interest Period every three months
from the first day of such Interest Period and on the date such
Eurodollar Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of a Default of the type described in Section 6.01 (a) or (i) or, at
the election of the Administrative Agent or the Required Lenders, upon the
occurrence and during the continuance of an Event of Default, the Borrower shall
pay interest on (i) the unpaid principal amount of each Advance owing to each
Lender, payable in arrears on the dates referred to in clause (a)(i) or (a)(ii)
above and on demand, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid on such Advance pursuant to clause
(a)(i) or (a)(ii) above and (ii) to the fullest extent permitted by law, the
amount of any interest, fee or other amount payable under the Loan Documents
that is not paid when due, from the date such amount shall be due until such
amount shall be paid in full, payable in arrears on the date such amount shall
be paid in full and on demand, at a rate per annum equal at all times to 2% per
annum above the rate per annum required to be paid, in the case of interest, on
the Type of Advance on which such interest has accrued pursuant to
29
clause (a)(i) or (a)(ii) above and, in all other cases, on Base Rate Advances
pursuant to clause (a)(i) above.
(c) Notice of Interest Period and Interest Rate. Promptly
after receipt of a Notice of Borrowing pursuant to Section 2.02(a), a notice of
Conversion pursuant to Section 2.09 or a notice of selection of an Interest
Period pursuant to the terms of the definition of "Interest Period", the
Administrative Agent shall give notice to the Borrower and each Lender of the
applicable Interest Period and the applicable interest rate determined by the
Administrative Agent for purposes of clause (a)(i) or (a)(ii) above, and the
applicable rate, if any, furnished by each Reference Bank for the purpose of
determining the applicable interest rate under clause (a)(ii) above.
(d) Interest Rate Determination. (i) Each Reference Bank
agrees to furnish to the Administrative Agent timely information for the purpose
of determining each Eurodollar Rate. If either of the Reference Banks shall not
furnish such timely information to the Administrative Agent for the purpose of
determining any such interest rate, the Administrative Agent shall determine
such interest rate on the basis of timely information furnished by the other
Reference Bank.
(ii) If Telerate Page 3750 is unavailable and neither
Reference Bank is able to furnish timely information to the Administrative Agent
for determining the Eurodollar Rate for any Eurodollar Rate Advances,
(A) the Administrative Agent shall forthwith notify the
Borrower and the Lenders that the interest rate cannot be determined
for such Eurodollar Rate Advances,
(B) each such Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate
Advance (or if such Advance is then a Base Rate Advance, will continue
as a Base Rate Advance), and
(C) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.08. Fees. (a) Facility Fee. The Borrower shall pay
to the Administrative Agent for the account of the Lenders a facility fee (the
"FACILITY FEE"), from the date hereof in the case of each Initial Lender and
from the effective date specified in the Assignment and Acceptance pursuant to
which it became a Lender in the case of each other Lender until the Termination
Date, payable quarterly in arrears on the last day of each March, June,
September and December, commencing June 30,2003, and on the Termination Date.
The Facility Fee payable in respect of each Lender shall be calculated for each
quarterly period for which the Facility Fee is payable on the average daily
Revolving Credit Commitment of such Lender during such period at a rate equal to
0.20% per annum. If on the last day of any fiscal quarter the Borrower shall not
maintain a Debt Rating established by S&P and Xxxxx'x of at least BBB-and Baa3,
respectively, the Facility Fee for such fiscal quarter shall be zero.
(b) Unused Fee. The Borrower shall pay to the
Administrative Agent for the account of the Lenders an unused commitment fee
(the "UNUSED FEE"), from the date hereof in the case of each Initial Lender and
from the effective date specified in the Assignment and Acceptance pursuant to
which it became a Lender in the case of each other Lender until the Termination
Date, payable in arrears on the date of the initial Borrowing hereunder, and
thereafter quarterly on the last day of each March, June, September and
December, commencing June 30,2003, and on the Termination Date. The Unused Fee
payable for the account of each Lender shall be calculated for each period for
which the Unused Fee is payable on the average daily Unused Revolving Credit
Commitment of such Lender during such period at
30
a per annum rate equal to the Applicable Percentage on the first day of such
period. If on the last day of any fiscal quarter the Borrower shall maintain a
Debt Rating established by S&P and Xxxxx'x of at least BBS- and Baa3,
respectively, the Unused Fee shall be zero for such fiscal quarter.
(c) Letter of Credit Fees, Etc, (i) The Borrower shall
pay to the Administrative Agent for the account of each Lender a commission,
payable in arrears, (a) quarterly on the last day of each March, June, September
and December, commencing June 30,2003, and (b) on the earliest to occur of the
full drawing, expiration, termination or cancellation of any Letter of Credit,
and (c) on the Termination Date, on such Lender's Pro Rata Share of the average
daily aggregate Available Amount during such quarter of all Letters of Credit
outstanding from time to time at the rate per annum equal to the Applicable
Margin for Eurodollar Rate Advances in effect from time to time.
(ii) The Borrower shall pay to each Issuing Bank, for its
own account, (A) a fronting fee for each Letter of Credit issued by such Issuing
Bank in an amount equal to 0.125% of the Available Amount of such Letter of
Credit on the date of issuance of such Letter of Credit, payable on such date
and (B) such other commissions, issuance fees, transfer fees and other fees and
charges in connection with the issuance or administration of each Letter of
Credit as the Borrower and such Issuing Bank shall agree.
(d) Agents' Fees. The Borrower shall pay to each Agent
for its own account such fees as may from time to time be agreed between the
Borrower and such Agent.
SECTION 2.09. Conversion of Advances. (a) Optional. The
Borrower may on any Business Day, upon notice given to the Administrative Agent
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of Sections
2.07 and 2.10, Convert all or any portion of the Advances of one Type comprising
the same Borrowing into Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(b), no
Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(b) and each Conversion of Advances comprising part
of the same Borrowing under any Facility shall be made ratably among the Lenders
in accordance with their Commitments under such Facility. Each such notice of
Conversion shall, within the restrictions specified above, specify (i) the date
of such Conversion, (ii) the Advances to be Converted and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for such Advances, Each notice of Conversion shall be
irrevocable and binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate
unpaid principal amount of Eurodollar Rate Advances comprising any Borrowing
shall be reduced, by payment or prepayment or otherwise, to less than
$5,000,000, such Advances shall automatically Convert into Base Rate Advances.
(ii) If the Borrower shall fail to select the duration of
any Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders,
whereupon each such Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate Advance.
(iii) Upon the occurrence and during the continuance of any
Event of Default, (y) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance and (z) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended.
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SECTION 2.10. Increased Costs. Etc, (a) If, due to either (i)
the introduction after the date hereof of or any change after the date hereof in
or in the interpretation of any law or regulation or (ii) the compliance with
any guideline or request after the date hereof from any central bank or other
governmental authority (whether or not having the force of law), there shall be
any increase in the cost to any Lender Party of agreeing to make or of making,
funding or maintaining Eurodollar Rate Advances or of agreeing to issue or of
issuing or maintaining or participating in Letters of Credit or of agreeing to
make or of making or maintaining Letter of Credit Advances (excluding, for
purposes of this Section 2.10, any such increased costs resulting from (y) Taxes
or Other Taxes (as to which Section 2.12 shall govern) and (z) changes in the
basis of taxation of overall net income or overall gross income by the United
States or by the foreign jurisdiction or state under the laws of which such
Lender Party is organized or has its Applicable Lending Office or any political
subdivision thereof), then the Borrower shall from time to time, upon demand by
such Lender Party (with a copy of such demand to the Administrative Agent), pay
to the Administrative Agent for the account of such Lender Party additional
amounts sufficient to compensate such Lender Party for such increased cost;
provided, however, that a Lender Party claiming additional amounts under this
Section 2.10(a) agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such a designation would avoid the
need for, or reduce the amount of, such increased cost that may thereafter
accrue and would not, in the reasonable judgment of such Lender Party, be
otherwise disadvantageous to such Lender Party. A certificate as to the amount
of such increased cost, submitted to the Borrower by such Lender Party, shall be
conclusive and binding for all purposes, absent manifest error.
(b) If any Lender Party determines that compliance with
any law or regulation after the date hereof or any guideline or request after
the date hereof from any central bank or other governmental authority (whether
or not having the force of law) affects or would affect the amount of capital
required or expected to be maintained by such Lender Party or any corporation
controlling such Lender Party and that the amount of such capital is increased
by or based upon the existence of such Lender Party's commitment to lend or to
issue or participate in Letters of Credit hereunder and other commitments of
such type or the issuance or maintenance of or participation in the Letters of
Credit (or similar contingent obligations), then, upon demand by such Lender
Party or such corporation (with a copy of such demand to the Administrative
Agent), the Borrower shall pay to the Administrative Agent for the account of
such Lender Party, from time to time as specified by such Lender Party,
additional amounts sufficient to compensate such Lender Party in the light of
such circumstances, to the extent that such Lender Party reasonably determines
such increase in capital to be allocable to the existence of such Lender Party's
commitment to lend or to issue or participate in Letters of Credit hereunder or
to the issuance or maintenance of or participation in any Letters of Credit. A
certificate as to such amounts submitted to the Borrower by such Lender Party
shall be conclusive and binding for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Administrative Agent that the Eurodollar Rate for
any Interest Period for such Advances will not adequately reflect the cost to
such Lenders of making, funding or maintaining their Eurodollar Rate Advances
for such Interest Period, the Administrative Agent shall forthwith so notify the
Borrower and the Lenders, whereupon (i) each such Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make,
or to Convert Advances into, Eurodollar Rate Advances shall be suspended until
the Administrative Agent shall notify the Borrower that such Lenders have
determined that the circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this
Agreement, if the introduction of or any change in or in the interpretation of
any law or regulation shall make it unlawful, or any central bank
32
or other governmental authority shall assert that it is unlawful, for any Lender
or its Eurodollar Lending Office to perform its obligations hereunder to make
Eurodollar Rate Advances or to continue to fund or maintain Eurodollar Rate
Advances hereunder, then, on notice thereof and demand therefor by such Lender
to the Borrower through the Administrative Agent, (i) each Eurodollar Rate
Advance will automatically, upon such demand, Convert into a Base Rate Advance
and (ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent shall
notify the Borrower that such Lender has determined that the circumstances
causing such suspension no longer exist; provided, however, that, before making
any such demand, such Lender agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to designate a
different Eurodollar Lending Office if the making of such a designation would
allow such Lender or its Eurodollar Lending Office to continue to perform its
obligations to make Eurodollar Rate Advances or to continue to fund or maintain
Eurodollar Rate Advances and would not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender.
SECTION 2.11. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes, irrespective of any right
of counterclaim or set-off (except as otherwise provided in Section 2.13), not
later than 11:00 A.M. (New York City time) on the day when due in U.S. dollars
to the Administrative Agent at the Administrative Agent's Account in same day
funds, with payments being received by the Administrative Agent after such time
being deemed to have been received on the next succeeding Business Day. The
Administrative Agent will promptly thereafter cause like funds to be distributed
(i) if such payment by the Borrower is in respect of principal, interest,
commitment fees or any other Obligation then payable hereunder and under the
Notes to more than one Lender Party, to such Lender Parties for the account of
their respective Applicable Lending Offices ratably in accordance with the
amounts of such respective Obligations then payable to such Lender Parties and
(ii) if such payment by the Borrower is in respect of any Obligation then
payable hereunder to one Lender Party, to such Lender Party for the account of
its Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 9.07(d), from and after the effective date of such Assignment and
Acceptance, the Administrative Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the Lender Party
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender Party and
each of its Affiliates, if and to the extent payment owed to such Lender Party
is not made when due hereunder or, in the case of a Lender, under the Note held
by such Lender, to charge from time to time, to the fullest extent permitted by
law, against any or all of the Borrower's accounts with such Lender Party any
amount so due.
(c) All computations of interest based on the Base Rate
shall be made by the Administrative Agent on the basis of a year of 365 or 366
days, as the case may be, and all computations of interest based on the
Eurodollar Rate or the Federal Funds Rate and of fees and Letter of Credit
commissions shall be made by the Administrative Agent on the basis of a year of
360 days, in each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest,
fees or commissions are payable. Each determination by the Administrative Agent
of an interest rate, fee or commission hereunder shall be conclusive and binding
for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes
shall be stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or
33
commitment fee, as the case may be; provided, however, that, if such extension
would cause payment of interest on or principal of Eurodollar Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(e) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to any
Lender Party hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender Party
on such due date an amount equal to the amount then due such Lender Party. If
and to the extent the Borrower shall not have so made such payment in full to
the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.
(f) Whenever any payment received by the Administrative
Agent under this Agreement or any of the other Loan Documents is insufficient to
pay in full all amounts due and payable to the Agents and the Lender Parties
under or in respect of this Agreement and the other Loan Documents on any date,
such payment shall be distributed by the Administrative Agent and applied by the
Agents and the Lender Parties in the following order of priority:
(i) first, to the payment of all of the fees,
indemnification payments, costs and expenses that are due and payable
to the Agents (solely in their respective capacities as Agents) under
or in respect of this Agreement and the other Loan Documents on such
date, ratably based upon the respective aggregate amounts of all such
fees, indemnification payments, costs and expenses owing to the Agents
on such date;
(ii) second, to the payment of all of the fees,
indemnification payments, costs and expenses that are due and payable
to the Issuing Banks (solely in their respective capacities as such)
under or in respect of this Agreement and the other Loan Documents on
such date, ratably based upon the respective aggregate amounts of all
such fees, indemnification payments, costs and expenses owing to the
Issuing Banks on such date;
(iii) third, to the payment of all of the indemnification
payments, costs and expenses that are due and payable to the Lenders
under Section 9.04, Section 22 of the Security Agreements and any
similar section of any of the other Loan Documents on such date,
ratably based upon the respective aggregate amounts of all such
indemnification payments, costs and expenses owing to the Lenders on
such date;
(iv) fourth, to the payment of all of the amounts that are
due and payable to the Administrative Agent and the Lender Parties
under Sections 2.10 and 2.12 on such date, ratably based upon the
respective aggregate amounts thereof owing to the Administrative Agent
and the Lender Parties on such date;
(v) fifth, to the payment of all of the fees that are due
and payable to the Lenders under Section 2.08(a) and (b) on such date,
ratably based upon the respective aggregate Commitments of the Lenders
under the Facilities on such date;
(vi) sixth, to the payment of all of the accrued and
unpaid interest on the Obligations of the Borrower under or in respect
of the Loan Documents that is due and payable to the Administrative
Agent and the Lender Parties under Section 2.07(b) on such date,
ratably based
34
upon the respective aggregate amounts of all such interest owing to the
Administrative Agent and the Lender Parties on such date;
(vii) seventh, to the payment of all of the accrued and
unpaid interest on the Advances that is due and payable to the
Administrative Agent and the Lender Parties under Section 2.07(a) on
such date, ratably based upon the respective aggregate amounts of all
such interest owing to the Administrative Agent and the Lender Parties
on such date;
(viii) eighth, to the payment of the principal amount of all
of the outstanding Advances and any reimbursement obligations that are
due and payable to the Administrative Agent and the Lender Parties on
such date, ratably based upon the respective aggregate amounts of all
such principal and reimbursement obligations owing to the
Administrative Agent and the Lender Parties on such date, and to
deposit into the L/C Cash Collateral Account any contingent
reimbursement obligations in respect of outstanding Letters of Credit
to the extent required by Section 6.02; and
(ix) ninth, to the payment of all other Obligations of the
Loan Parties owing under or in respect of the Loan Documents that are
due and payable to the Administrative Agent and the other Secured
Parties on such date, ratably based upon the respective aggregate
amounts of all such Obligations owing to the Administrative Agent and
the other Secured Parties on such date.
SECTION 2.12. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.11,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender Party and the
Administrative Agent, taxes that are imposed on its overall net income by the
United States and taxes that are imposed on its overall net income (and
franchise or other similar taxes imposed in lieu thereof) by the state or
foreign jurisdiction under the laws of which such Lender Party or the
Administrative Agent, as the case may be, is organized or any political
subdivision thereof and, in the case of each Lender Parry, taxes that are
imposed on its overall net income (and franchise or other similar taxes imposed
in lieu thereof) by the state or foreign jurisdiction of such Lender Party's
Applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "TAXES"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Lender Party or the Administrative Agent, (i) the sum payable by the
Borrower shall be increased as may be necessary so that after the Borrower and
the Administrative Agent have made all required deductions (including deductions
applicable to additional sums payable under this Section 2.12) such Lender Party
or the Administrative Agent, as the case may be, receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
shall make all such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, the Borrower shall pay any present or
future stamp, documentary, excise, property, intangible, mortgage recording or
similar taxes, charges or levies that arise from any payment made hereunder or
under the Notes or from the execution, delivery or registration of, performance
under, or otherwise with respect to, this Agreement, or any other Loan Document
(hereinafter referred to as "OTHER TAXES"). Each Lender Party represents as of
the date hereof that, to the best of its knowledge without having conducted any
investigation, except for any Other Taxes that may be imposed under the federal,
state or local laws of the United States (or any political subdivision thereof),
it is not aware of the imposition of any Other Taxes with respect to this
Agreement or any other Loan Document.
35
(c) The Borrower shall indemnify each Lender Party and
the Administrative Agent for and hold them harmless against the full amount of
Taxes and Other Taxes, and for the full amount of taxes of any kind imposed by
any jurisdiction (taking into account any available credits, as determined in
the sole discretion of the Lender Party or the Administrative Agent (as the case
may be), arising from the imposition of the underlying Taxes or Other Taxes) on
amounts payable under this Section 2. 12, imposed on or paid by such Lender
Party or the Administrative Agent (as the case may be) and any liability
(including penalties, additions to tax, interest and expenses) arising therefrom
or with respect thereto. This indemnification shall be made within 30 days from
the date such Lender Party or the Administrative Agent (as the case may be)
makes written demand therefor, provided, however, that the Borrower shall not be
obligated to make payment to any Lender Party or the Administrative Agent (as
the case may be) pursuant to this Section 2.12 in respect of penalties, interest
and other liabilities attributable to any Taxes or Other Taxes, if such
penalties, interest and other liabilities are attributable to the gross
negligence or willful misconduct of such Lender Party or the Administrative
Agent.
(d) Within 30 days after the date of any payment of
Taxes, the Borrower shall furnish to the Administrative Agent, at its address
referred to in Section 9.02, the original or a certified copy of a receipt
evidencing such payment or, if such receipts are not obtainable, other evidence
of such payments by the Borrower reasonably satisfactory to the Administrative
Agent.
(e) Each Lender Party organized under the laws of a
jurisdiction outside the United States shall, on or prior to the date of its
execution and delivery of this Agreement in the case of each Initial Lender
Party, and on the date of the Assignment and Acceptance pursuant to which it
becomes a Lender Party in the case of each other Lender Party, and from time to
time thereafter as requested in writing by the Borrower (but only so long
thereafter as such Lender Party remains lawfully able to do so), provide each of
the Administrative Agent and the Borrower with two original Internal Revenue
Service forms W8-ECI or W8-BEN, as appropriate, or any successor or other form
prescribed by the Internal Revenue Service, certifying that such Lender Party is
exempt from or entitled to a reduced rate of United States withholding tax on
payments pursuant to this Agreement or the Notes. If the forms provided by a
Lender Party at the time such Lender Party first becomes a parry to this
Agreement indicate a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from Taxes
unless and until such Lender Party provides the appropriate forms certifying
that a lesser rate applies, whereupon withholding tax at such lesser rate only
shall be considered excluded from Taxes for periods governed by such forms;
provided, however, that if, at the effective date of the Assignment and
Acceptance pursuant to which a Lender Party becomes a parry to this Agreement,
the Lender Party assignor was entitled to payments under subsection (a) of this
Section 2.12 in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender Party assignee on such date. If any form
or document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form W8-ECI
or W8-BEN, that the applicable Lender Party reasonably considers to be
confidential, such Lender Party shall give notice thereof to the Borrower and
shall not be obligated to include in such form or document such confidential
information.
(f) For any period with respect to which a Lender Party
has failed to provide the Borrower with the appropriate form described in
subsection (e) above (other than if such failure is due to a change in law
occurring after the date on which a form originally was required to be provided
or if such form otherwise is not required under subsection (e) above), such
Lender Party shall not be entitled to indemnification under subsection (a) or
(c) of this Section 2.12 with respect to Taxes imposed by the United States by
reason of such failure; provided, however, that should a Lender Party become
subject to
36
Taxes because of its failure to deliver a form required hereunder, the Borrower
shall take such steps as such Lender Party shall reasonably request to assist
such Lender Party to recover such Taxes.
(g) Any Lender Party claiming any additional amounts
payable pursuant to this Section 2.12 agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Eurodollar Lending Office if the making of such a
change would avoid the need for, or reduce the amount of, any such additional
amounts that may thereafter accrue and would not, in the reasonable judgment of
such Lender Party, be otherwise disadvantageous to such Lender Party.
(h) If any Lender Party or the Administrative Agent
receives a refund of Taxes or Other Taxes paid by the Borrower or for which the
Borrower has indemnified any Lender Party or the Administrative Agent, as the
case may be, pursuant to this Section 2.12, then such Lender Party or the
Administrative Agent, as applicable, shall pay such amount, net of any expenses
incurred by such Lender Party or the Administrative Agent, to the Borrower
within 30 days of the receipt of such Taxes or Other Taxes. Notwithstanding the
foregoing, (i) the Borrower shall not be entitled to review the tax records or
financial information of any Lender Party or the Administrative Agent and (ii)
neither the Administrative Agent nor any Lender Party shall have any obligation
to pursue (and no Loan Party shall have any right to assert) any refund of Taxes
or Other Taxes that may be paid by the Borrower.
SECTION 2.13. Sharing of Payments. Etc. If any Lender Party
shall obtain at any time any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise, other than as a result of an
assignment pursuant to Section 9.07) (a) on account of Obligations due and
payable to such Lender Party hereunder and under the Notes at such time in
excess of its ratable share (according to the proportion of (i) the amount of
such Obligations due and payable to such Lender Party at such time to (ii) the
aggregate amount of the Obligations due and payable to all Lender Parties
hereunder and under the Notes at such time) of payments on account of the
Obligations due and payable to all Lender Parties hereunder and under the Notes
at such time obtained by all the Lender Parties at such time or (b) on account
of Obligations owing (but not due and payable) to such Lender Party hereunder
and under the Notes at such time in excess of its ratable share (according to
the proportion of (i) the amount of such Obligations owing to such Lender Party
at such time to (ii) the aggregate amount of the Obligations owing (but not due
and payable) to all Lender Parties hereunder and under the Notes at such time)
of payments on account of the Obligations owing (but not due and payable) to all
Lender Parties hereunder and under the Notes at such time obtained by all of the
Lender Parties at such time, such Lender Party shall forthwith purchase from the
other Lender Parties such interests or participating interests in the
Obligations due and payable or owing to them, as the case may be, as shall be
necessary to cause such purchasing Lender Party to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender Party, such
purchase from each other Lender Party shall be rescinded and such other Lender
Party shall repay to the purchasing Lender Party the purchase price to the
extent of such Lender Party's ratable share (according to the proportion of (i)
the purchase price paid to such Lender Party to (ii) the aggregate purchase
price paid to all Lender Parties) of such recovery together with an amount equal
to such Lender Party's ratable share (according to the proportion of (i) the
amount of such other Lender Party's required repayment to (ii) the total amount
so recovered from the purchasing Lender Party) of any interest or other amount
paid or payable by the purchasing Lender Party in respect of the total amount so
recovered. The Borrower agrees that any Lender Party so purchasing an interest
or participating interest from another Lender Party pursuant to this Section
2.13 may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such interest or
participating interest, as the case may be, as fully as if such Lender Party
were the direct creditor of the Borrower in the amount of such interest or
participating interest, as the case may be.
37
SECTION 2.14. Use of Proceeds. The proceeds of the Advances
and issuances of Letters of Credit shall be available (and the Borrower agrees
that it shall use such proceeds and Letters of Credit) solely for the
acquisition and development of Real Property, to refinance certain Existing
Debt, and the general corporate purposes of the Borrower and its Subsidiaries.
SECTION 2.15. Evidence of Debt. (a) Each Lender Party shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender Party resulting from each
Advance owing to such Lender Party from time to time, including the amounts of
principal and interest payable and paid to such Lender Party from time to time
hereunder. The Borrower agrees that upon notice by any Lender Party to the
Borrower (with a copy of such notice to the Administrative Agent) to the effect
that a promissory note or other evidence of indebtedness is required or
appropriate in order for such Lender Party to evidence (whether for purposes of
pledge, enforcement or otherwise) the Advances owing to, or to be made by, such
Lender Party, the Borrower shall promptly execute and deliver to such Lender
Party, with a copy to the Administrative Agent, a Note, in substantially the
form of Exhibit A hereto, payable to the order of such Lender Party in a
principal amount equal to the Revolving Credit Commitment of such Lender Party.
All references to Notes in the Loan Documents shall mean Notes, if any, to the
extent issued hereunder.
(b) The Register maintained by the Administrative Agent
pursuant to Section 9.07(d) shall include a control account, and a subsidiary
account for each Lender Party, in which accounts (taken together) shall be
recorded (i) the date and amount of each Borrowing made hereunder, the Type of
Advances comprising such Borrowing and, if appropriate, the Interest Period
applicable thereto, (ii) the terms of each Assignment and Acceptance delivered
to and accepted by it, (iii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender Party
hereunder, and (iv) the amount of any sum received by the Administrative Agent
from the Borrower hereunder and each Lender Party's share thereof.
(c) Entries made in good faith by the Administrative
Agent in the Register pursuant to subsection (b) above, and by each Lender Party
in its account or accounts pursuant to subsection (a) above, shall be prima
facie evidence of the amount of principal and interest due and payable or to
become due and payable from the Borrower to, in the case of the Register, each
Lender Party and, in the case of such account or accounts, such Lender Party,
under this Agreement, absent manifest error; provided, however, that the failure
of the Administrative Agent or such Lender Party to make an entry, or any
finding that an entry is incorrect, in the Register or such account or accounts
shall not limit or otherwise affect the obligations of the Borrower under this
Agreement.
SECTION 2.16. Extension of Termination Date. (a) At least 30
days but not more than 60 days prior to the Termination Date, the Borrower, by
written notice to the Administrative Agent, may request, with respect to the
Revolving Credit Commitments and the Letter of Credit Commitments then
outstanding, a single one-year extension of the Termination Date. The
Administrative Agent shall promptly notify each Lender of such request and the
Termination Date in effect at such time shall, effective as at the Termination
Date (the "EXTENSION DATE"), be extended for an additional one year period,
provided that (i) the Collateral Agent shall have received no later than 10 days
prior to the Extension Date a recent Appraisal of each Eligible Real Estate
Asset (it being understood and agreed that any Appraisals previously delivered
to the Collateral Agent in satisfaction of a request made pursuant to Section
5.01(k)(iii) shall satisfy the requirements of this subsection (i)) and (ii) on
the Extension Date, the following statements shall be true in all material
respects and the Administrative Agent shall have received for the account of
each Lender Party a certificate signed by a duly authorized officer of the
Borrower, dated the Extension Date, stating that: (x) the representations and
warranties contained in Section 4.01 are true and correct on and as of the
Extension Date, and (y) no Default has occurred and is continuing or would
result from such extension. In the event that an extension is effected pursuant
to this
38
Section 2.16, the aggregate principal amount of all Advances shall be repaid in
full ratably to the Lenders on the Termination Date as so extended. As of the
Extension Date, any and all references in this Agreement, the Notes, if any, or
any of the other Loan Documents to the 'Termination Date" shall refer to the
Termination Date as so extended.
(b) The Borrower shall pay to the Administrative Agent
for the account of the Lenders a Facility extension fee in an amount equal to
0.25% of the total Revolving Credit Commitments then outstanding, payable on the
Extension Date.
ARTICLE III
CONDITIONS OF LENDING AND ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of
Credit. The obligation of each Lender to make an Advance or of any Issuing Bank
to issue a Letter of Credit on the occasion of the Initial Extension of Credit
hereunder is subject to the satisfaction of the following conditions precedent
before or concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or
before the day of the Initial Extension of Credit the following, each
dated such day (unless otherwise specified), in form and substance
satisfactory to the Administrative Agent (unless otherwise specified)
and (except for the Notes) in sufficient copies for each Lender Party:
(i) A Note payable to the order of each Lender
that has requested a Note prior to the Effective Date.
(ii) A security agreement in substantially the
form of (x) Exhibit F-1 hereto, duly executed by each Loan
Party that owns Eligible Real Estate Assets, and (y) Exhibit
F-2 hereto, duly executed by Xxxxxxx Properties Services, Inc.
(such security agreements, together with each other security
agreement and security agreement supplement delivered pursuant
to Section 5.01(j), in each case as amended, being the
"SECURITY AGREEMENTS"), together with:
(A) acknowledgment copies of proper
financing statements, duly filed on or before the day
of the Initial Extension of Credit under the Uniform
Commercial Code of all jurisdictions that the
Collateral Agent may deem necessary or desirable in
order to perfect and protect the first priority liens
and security interests created under the Security
Agreements, covering the Collateral described in the
Security Agreements,
(B) completed requests for information,
dated on or before the date of the Initial Extension
of Credit, listing all effective financing statements
filed in the jurisdictions referred to in clause (A)
above and in such other jurisdictions specified by
the Administrative Agent that name any Loan Party as
debtor, together with copies of such other financing
statements,
(C) evidence of the completion of all
other recordings and filings of or with respect to
the Security Agreements that the Collateral Agent may
deem necessary or desirable in order to perfect and
protect the Liens created thereby,
(D) copies of the Assigned Agreements
referred to in the Security Agreements, together
with, except to the extent contemplated in Section
5.01(s)
39
to occur after the Closing Date, a consent to such
assignment, in substantially the form of Exhibit B to
the Security Agreements, duly executed by each party
to such Assigned Agreements other than the Loan
Parties, and
(E) evidence that all other action that
the Collateral Agent may deem necessary or desirable
in order to perfect and protect the first priority
liens and security interests created under the
Security Agreements has been taken (including,
without limitation, receipt of duly executed payoff
letters, UCC termination statements and landlords'
and bailees' waiver and consent agreements).
(iii) Deeds of trust, trust deeds and mortgages,
in substantially the form of Exhibit G hereto (with such
changes as may be required to account for local law matters
and otherwise satisfactory in form and substance to the
Collateral Agent) and covering the properties comprising
Eligible Real Estate Assets (together with the Assignments of
Leases and Rents referred to therein and each other deed of
trust, trust deed and mortgage delivered pursuant to Section
5.01(j), in each case as amended, the "MORTGAGES"), duly
executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the
Mortgages have been duly executed, acknowledged and
delivered on or before the day of the Initial
Extension of Credit and are in form suitable for
filing or recording in all filing or recording
offices that the Collateral Agent may deem necessary
or desirable in order to create a valid first and
subsisting Lien on the property described therein in
favor of the Collateral Agent for the benefit of the
Secured Parties and that all filing and recording
taxes and fees have been paid,
(B) fully paid American Land Title
Association Lender's Extended Coverage title
insurance policies (the "MORTGAGE POLICIES") in form
and substance, with endorsements and in amount
acceptable to the Collateral Agent, issued, coinsured
and reinsured by title insurers acceptable to the
Collateral Agent, insuring the Mortgages to be valid
first and subsisting Liens on the property described
therein, free and clear of all defects (including,
but not limited to, mechanics' and materialmen's
Liens) and encumbrances, excepting only Permitted
Encumbrances, and providing for such other
affirmative insurance (including endorsements for
future advances under the Loan Documents and for
mechanics' and materialmen's Liens) and such
coinsurance and direct access reinsurance as the
Collateral Agent may deem necessary or desirable,
(C) American Land Title
Association/American Congress on Surveying and
Mapping form surveys for which all necessary fees
have been paid, dated no more than 30 days before the
day of the Initial Extension of Credit, certified to
the Collateral Agent and the issuer of the Mortgage
Policies in a manner satisfactory to the Collateral
Agent by a land surveyor duly registered and licensed
in the States in which the property described in such
surveys is located and acceptable to the Collateral
Agent, showing all buildings and other improvements,
any off-site improvements, the location of any
easements, parking spaces, rights of way, building
set-back lines and other dimensional regulations and
the absence of encroachments, either by such
improvements or on to such property, and other
defects, other than encroachments and other defects
acceptable to the Xxxxxxxxxx Xxxxx,
00
(X) engineering, soils, environmental
and other reports as to the properties described in
the Mortgages, in form and substance and from
professional firms acceptable to the Collateral
Agent,
(E) the Assignments of Leases and Rents
referred to in the Mortgages, duly executed by the
appropriate Loan Party,
(F) estoppel and consent agreements, in
form and substance satisfactory to the Administrative
Agent, executed by each of the lessors of the leased
Eligible Real Property Assets listed on Schedule 4.0
l(q) hereto, along with (1) a memorandum of lease in
recordable form with respect to such leasehold
interest, executed and acknowledge by the owner of
the affected Real Property, as lessor, or (2)
evidence that the applicable lease with respect to
such leasehold interest or memorandum thereof has
been recorded in all places necessary or desirable,
in the Administrative Agent's reasonable judgment, to
give constructive notice to third-party purchasers of
such leasehold interest or (3) if such leasehold
interest was acquired or subleased from the holder of
a recorded leasehold interest, the applicable
assignment or sublease document, executed and
acknowledged by such holder, in each case in form
sufficient to give such constructive notice upon
recordation and otherwise in form satisfactory to the
Administrative Agent,
(G) evidence of the insurance required
by the terms of the Mortgages,
(H) estoppel certificates executed by
all tenants of the Eligible Real Estate Assets,
(I) an Appraisal of each of the Real
Property assets described in the Mortgages, and
(J) such other consents, agreements and
confirmations of lessors and third parties as the
Administrative Agent may deem necessary or desirable
and evidence that all other action that the
Collateral Agent may deem necessary or desirable in
order to create valid first and subsisting Liens on
the property described in the Mortgages has been
taken.
(iv) Certified copies of the resolutions of the
Board of Directors, general partner or managing member, as
applicable, of each Loan Party and of each general partner or
managing member (if any) of each Loan Party approving the
transactions contemplated by the Loan Documents and each Loan
Document to which it is or is to be a party, and of all
documents evidencing other necessary corporate action and
governmental and other third party approvals and consents, if
any, with respect to the transactions under the Loan Documents
and each Loan Document to which it is or is to be a party.
(v) A copy of a certificate of the Secretary of
State (or equivalent authority) of the jurisdiction of
incorporation, organization or formation of each Loan Party
and of each general partner or managing member (if any) of
each Loan Party, dated reasonably near the date of the Initial
Extension of Credit, certifying (A) as to a true and correct
copy of the charter, certificate of limited partnership,
limited liability company agreement or other organizational
document of such Loan Party, general partner or managing
member,
41
as the case may be, and each amendment thereto on file in such
Secretary's office and (B) that (1) such amendments are the
only amendments to the charter, certificate of limited
partnership, limited liability company agreement or other
organizational document, as applicable, of such Loan Party,
general partner or managing member, as the case may be, on
file in such Secretary's office and (2) such Loan Party,
general partner or managing member, as the case may be, has
paid all franchise taxes to the date of such certificate and
(C) such Loan Party, general partner or managing member, as
the case may be, is duly incorporated, organized or formed and
in good standing or presently subsisting under the laws of the
jurisdiction of its incorporation, organization or formation.
(vi) A copy of a certificate of the Secretary of
State (or equivalent authority) of each jurisdiction in which
any Loan Party or any general partner or managing member of a
Loan Party owns or leases property or in which the conduct of
its business requires it to qualify or be licensed as a
foreign corporation except where the failure to so qualify or
be licensed would not be reasonably likely to have a Material
Adverse Effect, dated reasonably near (but prior to) the date
of the Initial Extension of Credit, stating, with respect to
each such Loan Party, general partner or managing member, that
such Loan Party, general partner or managing member, as the
case may be, is duly qualified and in good standing as a
foreign corporation, limited partnership or limited liability
company in such State and has filed all annual reports
required to be filed to the date of such certificate.
(vii) A certificate of each Loan Party and of each
general partner or managing member (if any) of each Loan
Party, signed on behalf of such Loan Party, general partner or
managing member, as applicable, by its President or a Vice
President and its Secretary or any Assistant Secretary (or
those of its general partner or managing member, if
applicable), dated the date of the Initial Extension of Credit
(the statements made in which certificate shall be true on and
as of the date of the Initial Extension of Credit), certifying
as to (A) the absence of any amendments to the constitutive
documents of such Loan Party, general partner or managing
member, as applicable, since the date of the certificate
referred to in Section 3.01(a)(v), (B) a true and correct copy
of the bylaws, operating agreement, partnership agreement or
other governing document of such Loan Party, general partner
or managing member, as applicable, as in effect on the date on
which the resolutions referred to in Section 3.01(a)(iv) were
adopted and on the date of the Initial Extension of Credit,
(C) the due incorporation, organization or formation and good
standing or valid existence of such Loan Party, general
partner or managing member, as applicable, as a corporation,
limited liability company or partnership organized under the
laws of the jurisdiction of its incorporation, organization or
formation and the absence of any proceeding for the
dissolution or liquidation of such Loan Party, general partner
or managing member, as applicable, (D) the truth of the
representations and warranties contained in the Loan Documents
as though made on and as of the date of the Initial Extension
of Credit and (E) the absence of any event occurring and
continuing, or resulting from the Initial Extension of Credit,
that constitutes a Default.
(viii) A certificate of the Secretary or an
Assistant Secretary of each Loan Party (or Responsible Officer
of the general partner or managing member of any Loan Party)
and of each general partner or managing member (if any) of
each Loan Party certifying the names and true signatures of
the officers of such Loan Party, or of the general partner or
managing member of such Loan Party, authorized to sign each
Loan
42
Document to which it is or is to be a party and the other
documents to be delivered hereunder and thereunder.
(ix) Such financial, business and other
information regarding each Loan Party and its Subsidiaries as
the Lender Parties shall have requested, including, without
limitation, information as to possible contingent liabilities,
tax matters, environmental matters, obligations under Plans,
Multiemployer Plans and Welfare Plans, collective bargaining
agreements and other arrangements with employees, audited
annual financial statements for the year ending December 31,
2002, interim financial statements dated the end of the most
recent fiscal quarter for which financial statements are
available (or, in the event the Lender Parties' due diligence
review reveals material changes since such financial
statements, as of a later date within 45 days of the day of
the Initial Extension of Credit).
(x) Evidence of insurance naming the
Administrative Agent as loss payee and additional insured with
such responsible and reputable insurance companies or
associations, and in such amounts and covering such risks, as
is satisfactory to the Lender Parties.
(xi) An opinion of Xxxxxx and Xxxxxxx LLP,
counsel for the Loan Parties, in substantially the form of
Exhibit E-l hereto and as to such other matters as any Lender
Party through the Administrative Agent may reasonably request.
(xii) An opinion of Xxxxxxx, Baetjer and Xxxxxx,
LLP, Maryland counsel for the Loan Parties, in substantially
the form of Exhibit E-2 hereto and as to such other matters as
any Lender Party through the Administrative Agent may
reasonably request.
(xiii) An opinion of Shearman & Sterling LLP,
counsel for the Administrative Agent, in form and substance
satisfactory to the Administrative Agent.
(xiv) A Notice of Borrowing or Notice of Issuance,
as applicable, and a Borrowing Base Certificate relating to
the Initial Extension of Credit.
(b) The Lender Parties shall be satisfied with the
corporate and legal structure and capitalization of each Loan Party and
its Subsidiaries, including the terms and conditions of the charter and
bylaws, operating agreement, partnership agreement or other governing
document of each of them.
(c) The Lender Parties shall be satisfied that all
Existing Debt, other than Surviving Debt, has been prepaid, redeemed or
defeased in full or otherwise satisfied and extinguished and that all
Surviving Debt shall be on terms and conditions satisfactory to the
Lender Parties.
(d) (i) The Recapitalization and the IPO shall have been,
substantially concurrently herewith, consummated, (ii) the Parent
Guarantor shall have received net cash proceeds from the IPO in an
amount not less than $600,000,000, and (iii) the common shares of the
Parent Guarantor shall have been listed on the New York Stock Exchange.
(e) Before and after giving effect to the transactions
contemplated by the Loan Documents, there shall have occurred no
Material Adverse Change since December 31,2002.
43
(f) There shall exist no action, suit, investigation,
litigation or proceeding affecting any Loan Party or any of its
Subsidiaries pending or threatened before any court, governmental
agency or arbitrator that (i) would be reasonably likely to have a
Material Adverse Effect other than the matters described on Schedule
4.01(f) hereto (the "DISCLOSED LITIGATION") or (ii) purports to affect
the legality, validity or enforceability of any Loan Document or the
consummation of the transactions contemplated thereby, and there shall
have been no adverse change in the status, or financial effect on any
Loan Party or any of its Subsidiaries, of the Disclosed Litigation from
that described on Schedule 4.0 l(f) hereto.
(g) All governmental and third party consents and
approvals necessary in connection with the transactions contemplated by
the Loan Documents shall have been obtained (without the imposition of
any conditions that are not acceptable to the Lender Parties) and shall
remain in effect, and no law or regulation shall be applicable in the
reasonable judgment of the Lender Parties that restrains, prevents or
imposes materially adverse conditions upon the transactions
contemplated by the Loan Documents.
(h) The Borrower shall have entered into the Hedge
Agreements required under Section 5.01(p).
(i) The Borrower shall have paid all accrued fees of the
Administrative Agent and the Lender Parties and all reasonable,
out-of-pocket expenses of the Administrative Agent (including the
reasonable fees and expenses of counsel to the Administrative Agent).
SECTION 3.02. Conditions Precedent to Each Borrowing and
Issuance and Renewal. The obligation of each Lender to make an Advance (other
than a Letter of Credit Advance made by an Issuing Bank or a Lender pursuant to
Section 2.03(c)) on the occasion of each Borrowing (including the initial
Borrowing), the obligation of each Issuing Bank to issue a Letter of Credit
(including the initial issuance) or renew a Letter of Credit and the extension
of Commitments pursuant to Section 2.16 shall be subject to the further
conditions precedent that on the date of such Borrowing, issuance or renewal or
extension (a) the following statements shall be true and the Administrative
Agent shall have received for the account of such Lender or such Issuing Bank a
certificate signed by a duly authorized officer of the Borrower, dated the date
of such Borrowing, issuance or renewal or extension, stating that:
(i) the representations and warranties contained in each
Loan Document are true and correct on and as of such date, before and
after giving effect to (A) such Borrowing, issuance or renewal or
extension and (B) in the case of any Borrowing or issuance or renewal,
the application of the proceeds therefrom, as though made on and as of
such date;
(ii) no Default has occurred and is continuing, or would
result from (A) such Borrowing, issuance or renewal or extension or (B)
in the case of any Borrowing or issuance or renewal, from the
application of the proceeds therefrom; and
(iii) for each Revolving Credit Advance or issuance or
renewal of any Letter of Credit, (A) the Loan Value equals or exceeds
the aggregate principal amount of the Revolving Credit Advances plus
Letter of Credit Advances to be outstanding plus the aggregate
Available Amount of all Letters of Credit to be outstanding after
giving effect to such Advance or issuance or renewal, respectively, and
(B) before and after giving effect to such Advance or issuance or
renewal, the Parent Guarantor shall be in compliance with Sections
5.04(b)(i) and (ii);
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender Party through the Administrative Agent may
reasonably request in order to confirm (i) the
44
accuracy of the Loan Parties' representations and warranties contained in the
Loan Documents, (ii) the Loan Parties' timely compliance with the terms,
covenants and agreements set forth in the Loan Documents, (iii) the absence of
any Default and (iv) the rights and remedies of the Secured Parties or the
ability of the Loan Parties to perform their Obligations, in each case under the
Loan Documents following a change in law occurring after the date hereof that
the Administrative Agent, in its reasonable discretion, believes may negatively
affect such rights, remedies or ability to perform.
SECTION 3.03. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Initial Extension of Credit specifying its objection thereto
and, if the Initial Extension of Credit consists of a Borrowing, such Lender
Party shall not have made available to the Administrative Agent such Lender
Party's ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Loan
Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each of its Subsidiaries and each
general partner or managing member, if any, of each Loan Party (i) is a
corporation, limited liability company or partnership duly
incorporated, organized or formed, validly existing and in good
standing under the laws of the jurisdiction of its incorporation,
organization or formation, (ii) is duly qualified and in good standing
as a foreign corporation, limited liability company or partnership in
each other jurisdiction in which it owns or leases property or in which
the conduct of its business requires it to so qualify or be licensed
except where the failure to so qualify or be licensed would not be
reasonably likely to have a Material Adverse Effect and (iii) has all
requisite corporate, limited liability company or partnership power and
authority (including, without limitation, all governmental licenses,
permits and other approvals) to own or lease and operate its properties
and to carry on its business as now conducted and as proposed to be
conducted. Commencing with its taxable year ending December 31,2003,
the Parent Guarantor will be organized in conformity with the
requirements for qualification as a REIT, and its proposed method of
operation will enable it to meet the requirements for qualification and
taxation as a REIT under the Internal Revenue Code. All of the
outstanding Equity Interests in the Parent Guarantor have been validly
issued, are fully paid and non-assessable and are owned by the General
Partner free and clear of all Liens.
(b) Set forth on Schedule 4.01(b) hereto is a complete and
accurate list as of the date hereof of all Subsidiaries of each Loan
Party, showing as of the date hereof (as to each such Subsidiary) the
jurisdiction of its incorporation, organization or formation, the
number of shares (or the equivalent thereof) of each class of its
Equity Interests authorized, and the number outstanding, on the date
hereof and the percentage of each such class of its Equity Interests
owned (directly or indirectly) by such Loan Party and the number of
shares (or the equivalent thereof) covered by all outstanding options,
warrants, rights of conversion or purchase and similar rights at the
date hereof. All of the outstanding Equity Interests in each Loan
Party's Subsidiaries has been validly issued, are fully paid and
non-assessable and are owned by such Loan Party or one or more of its
Subsidiaries free and clear of all Liens.
45
(c) The execution, delivery and performance by each Loan Party
and of each general partner or managing member (if any) of each Loan
Party of each Loan Document to which it is or is to be a party are
within the corporate, limited liability company or partnership powers
of such Loan Party, general partner or managing member, have been duly
authorized by all necessary corporate, limited liability company or
partnership action, and do not (i) contravene the charter or bylaws,
operating agreement, partnership agreement or other governing document
of such Loan Party, general partner or managing member, (ii) violate
any law, rule, regulation (including, without limitation, Regulation X
of the Board of Governors of the Federal Reserve System), order, writ,
judgment, injunction, decree, determination or award, (iii) conflict
with or result in the breach of, or constitute a default or require any
payment to be made under, any material contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument binding
on or affecting any Loan Party, any of its Subsidiaries or any of their
properties, or any general partner or managing member of any Loan Party
or (iv) except for the Liens created under the Loan Documents, result
in or require the creation or imposition of any Lien upon or with
respect to any of the properties of any Loan Party or any of its
Subsidiaries. No Loan Party or any of its Subsidiaries is in violation
of any such law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award or in breach of any such contract, loan
agreement, indenture, mortgage, deed of trust, lease or other
instrument, the violation or breach of which would be reasonably likely
to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for (i) the due execution,
delivery, recordation, filing or performance by any Loan Party or any
general partner or managing member of any Loan Party of any Loan
Document to which it is or is to be a party or for the consummation of
the transactions contemplated thereby, (ii) the grant by any Loan Party
of the Liens granted by it pursuant to the Collateral Documents, (iii)
the perfection or maintenance of the Liens created under the Collateral
Documents (including the first priority nature thereof) or, (iv) the
exercise by the Administrative Agent or any Lender Party of its rights
under the Loan Documents or the remedies in respect of the Collateral
pursuant to the Collateral Documents, except for the authorizations,
approvals, actions, notices and filings listed on Schedule 4.0l(d)
hereto, all of which have been duly obtained, taken, given or made and
are in full force and effect.
(e) This Agreement has been, and each other Loan Document when
delivered hereunder will have been, duly executed and delivered by each
Loan Party and general partner or managing member (if any) of each Loan
Party party thereto. This Agreement is, and each other Loan Document
when delivered hereunder will be, the legal, valid and binding
obligation of each Loan Party and general partner or managing member
(if any) of each Loan Party party thereto, enforceable against such
Loan Party, general partner or managing member, as the case may be, in
accordance with its terms.
(f) There is no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries or any
general partner or managing member (if any) of any Loan Party,
including any Environmental Action, pending or threatened before any
court, governmental agency or arbitrator that (i) would be reasonably
likely to have a Material Adverse Effect (other than the Disclosed
Litigation) or (ii) purports to affect the legality, validity or
enforceability of any Loan Document or the consummation of the
transactions contemplated thereby, and there has been no adverse change
in the status, or financial effect on any Loan Party or any of its
Subsidiaries or any general partner or managing member (if any) of any
Loan Party, of the Disclosed Litigation from that described on Schedule
4.0l(f) hereto.
46
(g) The Consolidated balance sheets of the Parent Guarantor
and its Subsidiaries as at December 31, 2002 and the related
Consolidated statements of income and Consolidated statement of cash
flows of the Parent Guarantor and its Subsidiaries for the fiscal year
then ended, accompanied by an unqualified opinion of KPMG LLP,
independent public accountants, and the Consolidated balance sheets of
the Parent Guarantor and its Subsidiaries as at March 31,2003, and the
related Consolidated statements of income and Consolidated statement of
cash flows of the Parent Guarantor and its Subsidiaries for the three
months then ended, duly certified by the Chief Financial Officer of the
Parent Guarantor, copies of which have been furnished to each Lender
Party, fairly present, subject, in the case of said balance sheet as at
March 31, 2003, and said statements of income and cash flows for the
three months then ended, to year-end audit adjustments, the
Consolidated financial condition of the Parent Guarantor and its
Subsidiaries as at such dates and the Consolidated results of
operations of the Parent Guarantor and its Subsidiaries for the periods
ended on such dates, all in accordance with generally accepted
accounting principles applied on a consistent basis, and since December
31,2002, there has been no Material Adverse Change.
(h) The Consolidated forecasted balance sheets, statements of
income and statements of cash flows of the Parent Guarantor and its
Subsidiaries delivered to the Lender Parties pursuant to Section
3.01(a)(ix) or 5.03 were prepared in good faith on the basis of the
assumptions stated therein, which assumptions were fair in light of the
conditions existing at the time of delivery of such forecasts, and
represented, at the time of delivery, the Parent Guarantor's best
estimate of its future financial performance.
(i) Neither the Information Memorandum nor any other
information, exhibit or report furnished by or on behalf of any Loan
Party to the Administrative Agent or any Lender Party in connection
with the negotiation and syndication of the Loan Documents or pursuant
to the terms of the Loan Documents contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements made therein not misleading.
(j) No Loan Party is engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock, and no
proceeds of any Advance or drawings under any Letter of Credit will be
used to purchase or carry any Margin Stock or to extend credit to
others for the purpose of purchasing or carrying any Margin Stock.
(k) Neither any Loan Party nor any of its Subsidiaries nor any
general partner or managing member of any Loan Party, as applicable, is
an "investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended. Without
limiting the generality of the foregoing, each Loan Party and each of
its Subsidiaries and each general partner or managing member of any
Loan Party, as applicable: (i) is primarily engaged, directly or
through a wholly-owned subsidiary or subsidiaries, in a business or
businesses other than that of (A) investing, reinvesting, owning,
holding or trading in securities or (B) issuing face-amount
certificates of the installment type; (ii) is not engaged in, does not
propose to engage in and does not hold itself out as being engaged in
the business of (A) investing, reinvesting, owning, holding or trading
in securities or (B) issuing face-amount certificates of the
installment type; (iii) does not own or propose to acquire investment
securities (as defined in the Investment Company Act of 1940, as
amended) having a value exceeding forty percent (40%) of the value of
such company's total assets (exclusive of government securities and
cash items) on an unconsolidated basis; (iv) has not in the past been
engaged in the business of issuing face-amount certificates of the
installment type; and (v) does not have any outstanding face-amount
certificates of the installment type. Neither any Loan Party nor any of
its Subsidiaries nor any general partner or
47
managing member of any Loan Party or Subsidiary of a Loan Party that is
a partnership or a limited liability company, as applicable, is a
"holding company", or a "subsidiary company" of a "holding company", or
an "affiliate" of a "holding company" or of a "subsidiary company" of a
"holding company", as such terms are defined in the Public Utility
Holding Company Act of 1935, as amended. Neither the making of any
Advances, nor the issuance of any Letters of Credit, nor the
application of the proceeds or repayment thereof by the Borrower, nor
the consummation of the other transactions contemplated by the Loan
Documents, will violate any provision of any such Act or any rule,
regulation or order of the Securities and Exchange Commission
thereunder.
(1) Neither any Loan Party nor any of its Subsidiaries is a
party to any indenture, loan or credit agreement or any lease or other
agreement or instrument or subject to any charter, corporate,
partnership, membership or other governing restriction that would be
reasonably likely to have a Material Adverse Effect.
(m) All filings and other actions necessary to perfect and
protect the security interest in the Collateral created under the
Collateral Documents have been duly made or taken and are in full force
and effect, and the Collateral Documents create in favor of the
Administrative Agent for the benefit of the Secured Parties a valid
and, together with such filings and other actions, perfected first
priority security interest in the Collateral, securing the payment of
the Secured Obligations, and all filings and other actions necessary or
desirable to perfect and protect such security interest have been duly
taken. The Loan Parties are the legal and beneficial owners of the
Collateral free and clear of any Lien, except for the liens and
security interests created or permitted under the Loan Documents.
(n) Set forth on Schedule 4.0l(n) hereto is a complete and
accurate list of all Existing Debt (other than Surviving Debt), showing
as of the date hereof the obligor and the principal amount outstanding
thereunder.
(o) Set forth on Schedule 4.0l(o) hereto is a complete and
accurate list of all Surviving Debt, showing as of the date hereof the
obligor and the principal amount outstanding thereunder, the maturity
date thereof and the amortization schedule therefor.
(p) Set forth on Schedule 4.0l(p) hereto is a complete and
accurate list of all Liens on the property or assets of any Loan Party
or any of its Subsidiaries, showing as of the date hereof the
lienholder thereof, the principal amount of the obligations secured
thereby and the property or assets of such Loan Party or such
Subsidiary subject thereto.
(q) Set forth on Schedule 4.0l(q) hereto is a complete and
accurate list of all Real Property owned by any Loan Party or any of
its Subsidiaries, showing as of the date hereof the street address,
county or other relevant jurisdiction, state, record owner and book
value thereof. Each Loan Party or such Subsidiary has good, marketable
and insurable fee simple title to such Real Property, free and clear of
all Liens, other than Liens created or permitted by the Loan Documents.
(r) Set forth on Schedule 4.0l(r) hereto is a complete and
accurate list of all leases of real property under which any Loan Party
or any of its Subsidiaries is the lessee, showing as of the date hereof
the street address, county or other relevant jurisdiction, state,
lessor, lessee, expiration date and annual rental cost thereof. Each
such lease is the legal, valid and binding obligation of the lessor
thereof, enforceable in accordance with its terms.
48
(s) Except as otherwise set forth in the environmental reports
listed on Schedule 4.0l(s) hereto (correct copies of which have been
made available to the Administrative Agent), the operations and
properties of each Loan Party and each of its Subsidiaries comply in
all material respects with all applicable Environmental Laws and
Environmental Permits, all past non-compliance with such Environmental
Laws and Environmental Permits has been resolved without ongoing
obligations or costs, and no circumstances exist that could be
reasonably likely to (i) form the basis of an Environmental Action
against any Loan Party or any of its Subsidiaries or any of their
properties that could have a Material Adverse Effect or (ii) cause any
such property to be subject to any restrictions on ownership,
occupancy, use or transferability under any Environmental Law.
(t) Neither the business nor the properties of any Loan Party
or any of its Subsidiaries are affected by any fire, explosion,
accident, strike, lockout or other labor dispute, drought, storm, hail,
earthquake, embargo, act of God or of the public enemy or other
casualty (whether or not covered by insurance) that could be reasonably
likely to have a Material Adverse Effect.
(u) Each Loan Party has, independently and without reliance
upon the Administrative Agent or any other Lender Party and based on
such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement (and in
the case of the Guarantors, to give the guaranty under this Agreement)
and each other Loan Document to which it is or is to be a party, and
each Loan Party has established adequate means of obtaining from each
other Loan Party on a continuing basis information pertaining to, and
is now and on a continuing basis will be completely familiar with, the
business, condition (financial or otherwise), operations, performance,
properties and prospects of such other Loan Party.
(v) Each Loan Party is individually and together with its
Subsidiaries, Solvent.
(w) Except as set forth on Schedule 4.0l(w), no Loan Party
has made any extension of credit to any of its directors or executive
officers in contravention of the restrictions set forth in Section
402(a) of Xxxxxxxx-Xxxxx.
(x) Set forth on Schedule 4.0l(x) hereto is a complete and
accurate list of all Excluded Subsidiaries and their respective
Excluded Subsidiary Agreements existing on the date hereof.
ARTICLE V
COVENANTS OF THE LOAN PARTIES
SECTION 5.01. Affirmative Covenants. So long as any Advance or
any other Obligation of any Loan Party under any Loan Document shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender Party shall have
any Commitment hereunder, each Loan Party will:
(a) Compliance with Laws. Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with ERISA and the Racketeer Influenced
and Corrupt Organizations Chapter of the Organized Crime Control Act of
1970.
(b) Payment of Taxes. Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and other material governmental
charges or levies imposed upon it or upon its property and (ii) all
lawful claims that, if unpaid, might by law become a Lien upon its
property; provided, however, that neither the Loan Parties nor any of
their Subsidiaries shall be required to pay or discharge any
49
such tax, assessment, charge or claim that is being contested in good
faith and by proper proceedings and as to which appropriate reserves
are being maintained, unless and until any Lien resulting therefrom
attaches to its property and becomes enforceable against its other
creditors.
(c) Compliance with Environmental Laws. Comply, and cause each
of its Subsidiaries and all lessees and other Persons operating or
occupying its properties to comply, in all material respects, with all
applicable Environmental Laws and Environmental Permits; obtain and
renew and cause each of its Subsidiaries to obtain and renew all
Environmental Permits necessary for its operations and properties; and
conduct, and cause each of its Subsidiaries to conduct, any
investigation, study, sampling and testing, and undertake any cleanup,
removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the
requirements of all Environmental Laws; provided, however, that neither
the Loan Parties nor any of their Subsidiaries shall be required to
undertake any such cleanup, removal, remedial or other action to the
extent that its obligation to do so is being contested in good faith
and by proper proceedings and appropriate reserves are being maintained
with respect to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance (including, with respect to the
Eligible Real Estate Assets, the insurance required by the terms of the
Mortgages) with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which such Loan Party or such
Subsidiaries operate.
(e) Preservation of Partnership or Corporate Existence, Etc.
Preserve and maintain, and cause each of its Subsidiaries to preserve
and maintain, its existence, legal structure, legal name, rights
(charter and statutory), permits, licenses, approvals, privileges and
franchises; provided, however, that (x) Xxxxxxx Partners - Glendale,
LLC may be dissolved so long as such Subsidiary is dissolved no later
than 90 days following the Closing Date and all of the assets of such
Subsidiary are transferred to a Loan Party or a Person that
simultaneously with such dissolution becomes a Loan Party and (y) the
Loan Parties and their Subsidiaries may consummate any merger,
consolidation or other transaction permitted under Section 5.02(d) or
any Transfer not prohibited under Section 5.02(e), and provided further
that no Excluded Subsidiary shall be required to preserve its existence
or be prevented from winding-up or dissolving, if, in either case, (i)
the non-preservation, winding-up or dissolution of such Excluded
Subsidiary, as applicable, is (A) as a result of a transaction
permitted under Section 5.02(d) or (B) upon or following any Transfer
not prohibited under Section 5.02(e) in which substantially all of the
assets of such Excluded Subsidiary were sold or otherwise disposed of
and (ii) the failure to preserve such Excluded Subsidiary's existence
is not otherwise disadvantageous in any material respect to the Loan
Parties and their Subsidiaries taken as a whole.
(f) Visitation Rights. At any reasonable time and from time to
time, permit any of the Agents or Lender Parties, or any Agent or
representatives thereof, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
any Loan Party and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of any Loan Party and any of its Subsidiaries
with any of their general partners, managing members, officers or
directors and with their independent certified public accountants.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions
50
and the assets and business of such Loan Party and each such Subsidiary
in accordance with GAAP.
(h) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted and
will from time to time make or cause to be made all appropriate
repairs, renewals and replacement thereof except where failure to do so
would not have a Material Adverse Effect.
(i) Transactions with Affiliates and Excluded Subsidiaries.
Conduct, and cause each of its Subsidiaries to conduct, all
transactions otherwise permitted under the Loan Documents with any of
their Affiliates or with any Excluded Subsidiary on terms that are fair
and reasonable and no less favorable to such Loan Party or such
Subsidiary than it would obtain in a comparable arm's-length
transaction with a Person not an Affiliate.
(j) Covenant to Guarantee Obligations and Give Security. (i)
Upon the occurrence and during the continuance of any Default of the
type described in Section 6.01(a) or in Section 6.0l(c) relating to
Section 5.04, within 10 days after the request of the Collateral Agent,
furnish to the Collateral Agent account control agreements duly
executed by each bank or other financial institution at which the
Borrower or any of its Subsidiaries maintains an account.
(ii) Within 10 days after any Excluded Subsidiary
Agreement terminates or otherwise becomes ineffective as to
the Excluded Subsidiary party to such agreement, cause such
Excluded Subsidiary to duly execute and deliver to the
Administrative Agent a Guaranty Supplement in substantially
the form of Exhibit C hereto, or such other guaranty
supplement in form and substance satisfactory to the
Administrative Agent, guaranteeing the Obligations of the
other Loan Parties under the Loan Documents.
(iii) Within 10 days after the formation or
acquisition of any new direct or indirect Subsidiary by any
Loan Party, cause each such Subsidiary (other than a
Subsidiary that is prohibited by the terms of any loan
agreement or indenture or other material agreement to which it
is a party from providing guarantees of the Obligations of the
Loan Parties under the Loan Documents), and cause each direct
and indirect parent of such Subsidiary (if it has not already
done so), to duly execute and deliver to the Administrative
Agent a Guaranty Supplement in substantially the form of
Exhibit C hereto, or such other guaranty supplement in form
and substance satisfactory to the Administrative Agent,
guaranteeing the other Loan Parties' Obligations under the
Loan Documents.
(iv) Upon the request by the Borrower that any
additional Real Property and related assets (a "PROPOSED
BORROWING BASE PROPERTY") be included as an Eligible Real
Estate Asset, and such Proposed Borrowing Base Property shall
not already be subject to a perfected first priority Lien in
favor of the Collateral Agent for the benefit of the Secured
Parties, in each case at the Borrower's expense:
(A) within 10 days after such request,
furnish to the Collateral Agent (I) a description, in
detail satisfactory to the Collateral Agent, of the
Proposed Borrowing Base Property and (II) a revised
Schedule II hereto reflecting the addition of such
Proposed Borrowing Base Property, which schedule
shall become effective only upon satisfaction of each
of the conditions set forth in this Section 5.01(j).
51
(B) within 15 days after such request,
duly execute and deliver, or cause the applicable
Subsidiary to duly execute and deliver, to the
Collateral Agent mortgages, pledges, assignments,
security agreement supplements and other security
agreements, as specified by and in form and substance
reasonably satisfactory to the Collateral Agent
(including, without limitation, a Mortgage, together
with the Assignment of Leases and Rents referred to
therein, and a Security Agreement in substantially
the form of Exhibit F-1 hereto with respect to such
Proposed Borrowing Base Property), securing payment
of all the Obligations of the applicable Loan Party
under the Loan Documents and sufficient in the
judgment of the Collateral Agent to create Liens on
such Proposed Borrowing Base Property.
(C) within 30 days after such request,
take, and cause such Subsidiary or such parent to
take, whatever action (including; without limitation,
the recording of mortgages, the filing of Uniform
Commercial Code financing statements and the giving
of notices) may be necessary or advisable in the
reasonable opinion of the Collateral Agent to vest in
and perfect for the benefit of the Collateral Agent
(or in any representative of the Collateral Agent
designated by it) valid and subsisting Liens on such
Proposed Borrowing Base Property such that the same
shall be enforceable against all third parties in
accordance with their terms.
(D) as promptly as practicable after
such request (and in any event within 60 days after
such request), deliver, to the Administrative Agent
with respect to each parcel of such Proposed
Borrowing Base Property (I) a signed copy of a
favorable opinion, addressed to the Collateral Agent
and the other Secured Parties, of counsel for the
Loan Parties acceptable to the Collateral Agent as to
the mortgages, pledges, assignments, security
agreement supplements and security agreements (as
applicable) described in clause (B) above being
legal, valid and binding obligations of the
applicable Subsidiary party thereto enforceable in
accordance with their terms, as to the recordings,
filings, notices and other actions described in
clause (C) above being sufficient to create valid
perfected Liens on such Proposed Borrowing Base
Property and as to such other matters as the
Collateral Agent may reasonably request, (II) title
insurance policies, surveys and engineering, soils
and other reports, environmental assessment reports
and such other documents and deliveries as more fully
described in Section 3.01 as determined by the
Collateral Agent in its reasonable discretion, each
in scope, form and substance satisfactory to the
Collateral Agent, and (III) an Appraisal of such
Proposed Borrowing Base Property.
(v) At any time and from time to time, promptly
execute and deliver any and all further instruments and
documents and take all such other action as any Agent may deem
necessary or desirable in obtaining the full benefits of, or
in perfecting and preserving the Liens of, such guaranties,
mortgages, pledges, assignments, security agreement
supplements and security agreements.
(vi) In the event that the Borrower has not
delivered to the Collateral Agent satisfactory evidence that
Xxxxxxx Partners - Glendale, LLC has been dissolved in
compliance with Section 5.01(e), duly execute and deliver to
the Administrative Agent no later than the 95th day following
the Closing Date a Guaranty Supplement in substantially the
form of Exhibit C hereto, or such other guaranty supplement in
form and substance
52
satisfactory to the Administrative Agent, guaranteeing the
Obligations of the other Loan Parties under the Loan
Documents.
(k) Further Assurances. (i) Promptly upon request by any
Agent, or any Lender Party through the Administrative Agent, correct,
and cause each of its Subsidiaries promptly to correct, any material
defect or error that may be discovered in any Loan Document or in the
execution, acknowledgment, filing or recordation thereof.
(ii) Promptly upon request by any Agent, or any
Lender Party through the Administrative Agent, do, execute,
acknowledge, deliver, record, re-record, file, re-file,
register and re-register any and all such further acts, deeds,
conveyances, pledge agreements, mortgages, deeds of trust,
trust deeds, assignments, financing statements and
continuations thereof, termination statements, notices of
assignment, transfers, certificates, assurances and other
instruments as any Agent, or any Lender Party through the
Administrative Agent, may reasonably require from time to time
in order to (A) carry out more effectively the purposes of the
Loan Documents, (B) to the fullest extent permitted by
applicable law, subject any Loan Party's or any of its
Subsidiaries' properties, assets, rights or interests to the
Liens now or hereafter intended to be covered by any of the
Collateral Documents, (C) perfect and maintain the validity,
effectiveness and priority of any of the Collateral Documents
and any of the Liens intended to be created thereunder and (D)
assure, convey, grant, assign, transfer, preserve, protect and
confirm more effectively unto the Secured Parties the rights
granted or now or hereafter intended to be granted to the
Secured Parties under any Loan Document or under any other
instrument executed in connection with any Loan Document to
which any Loan Party or any of its Subsidiaries is or is to be
a party, and cause each of its Subsidiaries to do so.
(iii) Promptly upon the request of the Required
Lenders through the Administrative Agent, deliver to the
Collateral Agent a recent Appraisal of each Eligible Real
Estate Asset, provided, that the Loan Parties shall be
required to comply with only one such request by the Required
Lenders, provided further that the Loan Parties shall not be
required to comply with any such request if the Collateral
Agent shall have previously received the Appraisals
contemplated by Section 2.16(a).
(l) Cash Concentration Accounts. Upon the occurrence and
during the continuance of any Default of the type described in Section
6.01(a) or in Section 6.01(c) relating to Section 5.04, maintain, and
cause each of its Subsidiaries to maintain, cash concentration accounts
with Citibank, N.A. and lockbox accounts into which all proceeds of
Collateral are paid with Citibank, N.A. or one or more banks acceptable
to the Administrative Agent that have accepted the assignment of such
accounts to the Administrative Agent for the benefit of the Secured
Parties pursuant to the Security Agreements.
(m) Performance of Material Contracts. Perform and observe all
the terms and provisions of each Material Contract to be performed or
observed by it, maintain each such Material Contract in full force and
effect, enforce each such Material Contract in accordance with its
terms, take all such action to such end as may be from time to time
requested by the Administrative Agent and, upon request of the
Administrative Agent, make to each other party to each such Material
Contract such demands and requests for information and reports or for
action as any Loan Party or any of its Subsidiaries is entitled to make
under such Material Contract, and cause each of its Subsidiaries to do
so.
53
(n) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real
property to which the Borrower or any of its Subsidiaries is a party as
a lessee, keep such leases in full force and effect and not allow such
leases or lapse or be terminated or any rights to renew such leases to
be forfeited or cancelled, notify the Administrative Agent of any
default by any party with respect to such leases and cooperate with the
Administrative Agent in all respects to cure any such default, and
cause each of its Subsidiaries to do so.
(o) Interest Rate Hedging. Enter into prior to the Closing
Date, and maintain at all times thereafter, interest rate Hedge
Agreements (i) with Persons acceptable to the Administrative Agent,
(ii) providing an interest-rate swap for a fixed rate of interest
acceptable to the Administrative Agent, (iii) covering a notional
amount of not less than an amount equal to 66 2/3% of Consolidated Debt
for Borrowed Money of the Parent Guarantor and (iv) otherwise on terms
and conditions acceptable to the Administrative Agent.
(p) Maintenance of REIT Status. In the case of the General
Partner, at all times, conduct its affairs and the affairs of its
Subsidiaries in a manner so as to continue to qualify as a REIT and
elect to be treated as a REIT.
(q) NYSE Listing. In the case of the General Partner, at all
times (i) cause its common shares to be duly listed on the New York
Stock Exchange and (ii) timely file all reports required to be filed by
it in connection therewith.
(r) Xxxxxxxx-Xxxxx. Comply at all times with Section 402(a) of
Xxxxxxxx-Xxxxx.
(s) Consents to Assignment of Assigned Agreements. Deliver to
the Collateral Agent within 45 days after the Closing Date the consents
to the assignment of the Assigned Agreements referred to in the
Security Agreements in substantially the form of Exhibit B to the
Security Agreements or otherwise in form and substance satisfactory to
the Collateral Agent, duly executed by each party to such Assigned
Agreements other than the Loan Parties.
SECTION 5.02. Negative Covenants. So long as any Advance or
any other Obligation of any Loan Party under any Loan Document shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender Party shall have
any Commitment hereunder, no Loan Party will, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to
exist, any Lien on or with respect to any of its properties of any
character (including, without limitation, accounts) whether now owned
or hereafter acquired, or sign or file or suffer to exist, or permit
any of its Subsidiaries to sign or file or suffer to exist, under the
Uniform Commercial Code of any jurisdiction, a financing statement that
names such Loan Party or any of its Subsidiaries as debtor, or sign or
suffer to exist, or permit any of its Subsidiaries to sign or suffer to
exist, any security agreement authorizing any secured party thereunder
to file such financing statement, or assign, or permit any of its
Subsidiaries to assign, any accounts or other right to receive income,
except, in the case of the Loan Parties (other than the Parent
Guarantor) and their respective Subsidiaries:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
54
(iii) Liens existing on the date hereof and
described on Schedule 4.01(p) hereto;
(iv) purchase money Liens upon or in equipment
acquired or held by such Loan Party or any of its Subsidiaries
in the ordinary course of business to secure the purchase
price of such equipment or to secure Debt incurred solely for
the purpose of financing the acquisition of any such equipment
to be subject to such Liens, or Liens existing on any such
equipment at the time of acquisition (other than any such
Liens created in contemplation of such acquisition that do not
secure the purchase price), or extensions, renewals or
replacements of any of the foregoing for the same or a lesser
amount; provided, however, that no such Lien shall extend to
or cover any property other than the equipment being acquired,
and no such extension, renewal or replacement shall extend to
or cover any property not theretofore subject to the Lien
being extended, renewed or replaced; and provided further that
the aggregate principal amount of the Debt secured by Liens
permitted by this clause (iv) shall not exceed the amount
permitted under Section 5.02(b)(iii)(B) at any time
outstanding;
(v) Liens arising in connection with Capitalized
Leases permitted under Section 5.02(b)(iii)(C), provided that
no such Lien shall extend to or cover any Collateral or assets
other than the assets subject to such Capitalized Leases;
(vi) Liens on property of a Person existing at
the time such Person is merged into or consolidated with any
Loan Party or any Subsidiary of any Loan Party or becomes a
Subsidiary of any Loan Party, provided that such Liens were
not created in contemplation of such merger, consolidation or
acquisition and do not extend to any assets other than those
of the Person so merged into or consolidated with such Loan
Party or such Subsidiary or acquired by such Loan Party or
such Subsidiary;
(vii) other Liens securing Non-Recourse Debt
permitted under Section 5.02(b)(iii)(G), provided that no such
Lien shall extend to or cover any Collateral; and
(viii) the replacement, extension or renewal of any
Lien permitted by clause (iii) above upon or in the same
property theretofore subject thereto or the replacement,
extension or renewal (without increase in the amount or change
in any direct or contingent obligor) of the Debt secured
thereby.
(b) Debt. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist,
any Debt, except:
(i) in the case of each Loan Party (other than
the Parent Guarantor), Debt owed to any other Loan Party
(other than the Parent Guarantor) or any wholly-owned
Subsidiary of any Loan Party, provided that, in each case,
such Debt (y) shall be on terms acceptable to the
Administrative Agent and (z) shall be evidenced by promissory
notes in form and substance satisfactory to the Administrative
Agent, which promissory notes shall (unless payable to the
Borrower) by their terms be subordinated to the Obligations of
the Loan Parties under the Loan Documents;
(ii) in the case of any Subsidiary of a Loan
Party, Debt owed to any Loan Party (other than the Parent
Guarantor) or to any wholly-owned Subsidiary of any Loan
Party, provided that, in each case, such Debt (y) shall be on
terms acceptable to the Administrative Agent and (z) shall be
evidenced by promissory notes in form and
55
substance satisfactory to the Administrative Agent, which
promissory notes shall (unless payable to the Borrower) by
their terms be subordinate to the Obligations of the Loan
Parties under the Loan Documents;
(iii) in the case of each Loan Party (other than
the Parent Guarantor) and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by
Section 5.02(a)(iv) not to exceed in the aggregate
$25,000,000 at any time outstanding,
(C) (1) Capitalized Leases not to
exceed in the aggregate $50,000,000 at any time
outstanding, and (2) in the case of Capitalized
Leases to which any Subsidiary of a Loan Party is a
party, Debt of such Loan Party of the type described
in clause (i) of the definition of "DEBT"
guaranteeing the Obligations of such Subsidiary under
such Capitalized Leases,
(D) the Surviving Debt described on
Schedule 4.01(o) hereto and any Refinancing Debt
extending, refunding or refinancing such Surviving
Debt,
(E) Debt in respect of Hedge Agreements
entered into by the Borrower and designed to hedge
against fluctuations in interest rates or foreign
exchange rates incurred in the ordinary course of
business and consistent with prudent business
practice with the aggregate Agreement Value thereof
not to exceed $25,000,000 at any time outstanding,
(F) unsecured Debt incurred in the
ordinary course of business for borrowed money,
maturing within one year from the date created, and
aggregating, on a Consolidated basis, not more than
$50,000,000 at any one time outstanding, and
(G) Non-Recourse Debt the incurrence of
which would not result in a Default under Section
5.04 or any other provision of this Agreement,
provided that neither the Borrower nor any of its
Subsidiaries is obligated for the payment of such
Debt other than to the extent of (i) any security
therefor and (ii) customary carve-outs, including,
without limitation, fraud, criminal activity,
misapplication of funds, ad valorem taxes and
environmental matters;
(iv) in the case of the Parent Guarantor, Debt
under the Loan Documents; and
(v) in the case of the TRS Subsidiaries,
Contingent Obligations incurred in the ordinary course of
business of the TRS Subsidiaries arising under management,
leasing and development agreements entered into by the TRS
Subsidiaries relating to the provision of administrative and
operational, management, leasing and/or development services,
so long as the aggregate amount of such Contingent Obligations
does not at any time exceed 5% of Total Asset Value at such
time.
(c) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business
as carried on at the date hereof; or engage in, or permit any of its
Subsidiaries to engage in, any business other than ownership,
development and
56
management of commercial real estate properties in the United States
consistent in quality with the Real Property, and other business
activities incidental thereto.
(d) Mergers, Etc. Merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of
its assets (whether now owned or hereafter acquired) to, any Person, or
permit any of its Subsidiaries to do so; provided, however, that (i)
any Subsidiary of a Loan Party may merge or consolidate with or into,
or dispose of assets to, any other Subsidiary of such Loan Party
(provided that if one or more Subsidiaries is also a Loan Party, any
such Loan Party shall be the surviving entity) or any other Loan Party
(provided that such Loan Party or, in the case of any Loan Party other
than the Borrower, another Loan Party shall be the surviving entity),
and (ii) any Loan Party may merge with any other Person so long as such
Loan Party or another Loan Party is the surviving entity, provided, in
each case, that no Default shall have occurred and be continuing at the
time of such proposed transaction or would result therefrom.
(e) Sales, Etc. of Real Property. (i) In the case of the
Parent Guarantor, sell, lease (other than enter into Tenancy Leases),
transfer or otherwise dispose of, or grant any option or other right to
purchase, lease (other than any option or other right to enter into
Tenancy Leases) or otherwise acquire any assets and (ii) in the case of
the Loan Parties (other than the Parent Guarantor), sell, lease (other
than enter into Tenancy Leases), transfer or otherwise dispose of, or
grant any option or other right to purchase, lease (other than any
option or other right to enter into Tenancy Leases) or otherwise
acquire, or permit any of its Subsidiaries to sell, lease, transfer or
otherwise dispose of, or grant any option or other right to purchase,
lease or otherwise acquire (each action described in clauses (i) and
(ii) of this subsection (e) being a "TRANSFER"), any Real Property or
Real Properties (or any Equity Interests in connection therewith) in
any six month period for an amount greater than $50,000,000, unless the
Loan Parties are in compliance with the covenants contained in Section
5.04, calculated based on the financial statements most recently
delivered to the Lender Parties pursuant to Section 5.03 (A) as though
such transaction had occurred at the beginning of the four-quarter
period covered thereby and (B) on a pro forma basis (excluding in each
instance from such calculation the Real Property or Real Properties
that are the subject of the transaction), as evidenced by a certificate
of the Chief Financial Officer (or such person performing similar
functions) of the Borrower delivered to the Administrative Agent prior
to such transaction demonstrating such compliance, provided, that there
shall be no Transfer of any Eligible Real Estate Asset without the
prior written consent of all of the Lenders.
(f) Investments in Other Persons. Make or hold, or permit any
of its Subsidiaries to make or hold, any Investment in any Person other
than:
(i) Investments by the Loan Parties and their
Subsidiaries in their Subsidiaries outstanding on the date
hereof and additional investments in wholly-owned Subsidiaries
and, in the case of the Loan Parties (other than the Parent
Guarantor) and their respective Subsidiaries, Investments in
Real Property (including by asset or Equity Interest
acquisitions) of which an amount not to exceed 10% of Total
Asset Value at any time shall be invested in Non-Office Real
Property, in each case subject, where applicable, to the
limitations set forth in Section 5.02(f)(iv);
(ii) Investments in Cash Equivalents;
(iii) Investments consisting of intercompany Debt
permitted under Section 5.02(b)(i) or (ii);
57
(iv) Investments consisting of the following
items so long as (y) the aggregate amount outstanding, without
duplication, of all Investments described in this subsection
does not exceed, at any time, 25% of Total Asset Value at such
time, and (z) the aggregate amount of each of the following
items of Investments does not exceed the specified percentage
of Total Asset Value set forth below:
(A) Loans, advances and extensions of
credit to any Person (other than an officer or
director of the Parent Guarantor and its
Subsidiaries) so long as the aggregate amount of such
Investments does not at any time exceed 10% of Total
Asset Value at such time, in each case after giving
effect to such Investments,
(B) unimproved real estate, so long as
the aggregate amount of such Investment, calculated
on the basis of cost, does not at any time exceed
5.0% of Total Asset Value at such time,
(C) Development Property that is being
constructed or developed as CBD Office Real Property,
but is not yet completed (including such assets that
such Person has contracted to purchase for
development with or without options to terminate the
purchase agreement), so long as the aggregate amount
of such Investment, calculated on the basis of the
greater of actual cost or budgeted cost, does not at
any time exceed 15% of Total Asset Value at such
time,
(D) Investments in Subsidiaries that
are not wholly-owned Subsidiaries of any Loan Party
so long as the aggregate amount of such Investments
outstanding does not at any time exceeds 15% of Total
Asset Value at such time; and
(v) Investments by the Borrower in Hedge
Agreements permitted under Section 5.02(b)(iii)(E).
(g) Restricted Payments. In the case of the Parent Guarantor,
declare or pay any dividends, purchase, redeem, retire, defease or
otherwise acquire for value any of its Equity Interests now or
hereafter outstanding, return any capital to its stockholders, partners
or members (or the equivalent Persons thereof) as such, make any
distribution of assets, Equity Interests, obligations or securities to
its stockholders, partners or members (or the equivalent Persons
thereof) as such or issue or sell any Equity Interests; provided,
however, so long as (i) no Default of the type described in Section
6.01 (a) or (e) shall have occurred and be continuing and (ii) the
Notes and all interest and other amounts payable under Loan Documents
shall not have been declared due and payable pursuant to Section 6.01,
then the Parent Guarantor may declare and pay dividends (y) to the
extent the aggregate amount of such payments over the preceding twelve
months is less than 95% of Funds From Operations or (z) as may
otherwise be required in order to comply with Section 5.01(p) and to
avoid the imposition of income or excise taxes on the Parent Guarantor.
(h) Amendments of Constitutive Documents. Amend, or permit any
of its Subsidiaries to amend, its limited partnership agreement,
certificate of incorporation or bylaws or other constitutive documents.
58
(i) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in (i) accounting policies
or reporting practices, except as required by generally accepted
accounting principles, or (ii) Fiscal Year.
(j) Speculative Transactions. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity options
or futures contracts or any similar speculative transactions.
(k) Payment Restrictions Affecting Subsidiaries. Directly or
indirectly, enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement or
arrangement limiting the ability of any of its Subsidiaries to declare
or pay dividends or other distributions in respect of its Equity
Interests or repay or prepay any Debt owed to, make loans or advances
to, or otherwise transfer assets to or invest in, the Borrower or any
Subsidiary of the Borrower (whether through a covenant restricting
dividends, loans, asset transfers or investments, a financial covenant
or otherwise), except (i) the Loan Documents, (ii) any agreement or
instrument evidencing Surviving Debt, and (iii) any agreement in effect
at the time such Subsidiary becomes a Subsidiary of the Borrower, so
long as such agreement was not entered into solely in contemplation of
such Person becoming a Subsidiary of the Borrower.
(l) Amendment, Etc., of Material Contracts. Cancel or
terminate any Material Contract or consent to or accept any
cancellation or termination thereof, amend or otherwise modify any
Material Contract or give any consent, waiver or approval thereunder,
waive any default under or breach of any Material Contract, agree in
any manner to any other amendment, modification or change of any term
or condition of any Material Contract or take any other action in
connection with any Material Contract that would impair the value of
the interest or rights of any Loan Party thereunder or that would
impair the interest or rights of the Administrative Agent or any Lender
Party, or permit any of its Subsidiaries to do any of the foregoing.
(m) Negative Pledge. Enter into or suffer to exist, or permit
any Subsidiary Guarantor to enter into or suffer to exist, any
agreement prohibiting or conditioning the creation or assumption of any
Lien upon any of its property or assets except (i) in favor of the
Secured Parties or (ii) in connection with (A) any Surviving Debt and
any Refinancing Debt extending, refunding or refinancing such Surviving
Debt, (B) any purchase money Debt permitted by Section 5.02(b)(iii)(B)
solely to the extent that the agreement or instrument governing such
Debt prohibits a Lien on the property acquired with the proceeds of
such Debt, (C) any Capitalized Lease permitted by Section
5.02(b)(iii)(C) solely to the extent that such Capitalized Lease
prohibits a Lien on the property subject thereto, or (D) any Debt
outstanding on the date any Subsidiary of the Borrower becomes such a
Subsidiary (so long as such agreement was not entered into solely in
contemplation of such Subsidiary becoming a Subsidiary of the
Borrower).
(n) Parent Guarantor as Holding Company. In the case of the
Parent Guarantor, not enter into or conduct any business, or engage in
any activity (including, without limitation, any action or transaction
that is required or restricted with respect to the Borrower and its
Subsidiaries under Sections 5.01 and 5.02 without regard to any of the
enumerated exceptions to such covenants), other than (i) the holding of
the Equity Interests of the Borrower; (ii) the performance of its
duties as general partner of the Borrower; (iii) the performance of its
Obligations (subject to the limitations set forth in the Loan
Documents) under each Loan Document to which it is a party; (iv) the
making of equity Investments in the Borrower and its Subsidiaries,
provided each such Investment (A) shall be on terms acceptable to the
Agent and (B) shall be evidenced by stock certificates, promissory
notes or instruments in form and substance satisfactory to the Agent;
(v) the maintenance of any deposit accounts required in connection with
the conduct by the Parent
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Guarantor of business or activities otherwise permitted under the Loan
Documents; and (vi) activities incidental to each of the foregoing.
(o) Excluded Subsidiaries. Enter into or suffer to exist, or
permit any Excluded Subsidiary to enter into or suffer to exist, any
agreement prohibiting or conditioning (i) the guaranty by such Excluded
Subsidiary of the Obligations of the Loan Parties under the Loan
Documents or (ii) the creation or assumption of any Lien upon any of
such Excluded Subsidiary's property or assets except (x) as would be
permitted under Section 5.02(m) hereof or (y) pursuant to an Excluded
Subsidiary Agreement in effect on the later of the Effective Date and
the date on which such Excluded Subsidiary becomes a Subsidiary of such
Loan Party.
SECTION 5.03. Reporting Requirements. So long as any Advance
or any other Obligation of any Loan Party under any Loan Document shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender Party shall have
any Commitment hereunder, the Borrower will furnish to the Administrative Agent
and the Lender Parties:
(a) Default Notice. As soon as possible and in any event
within two days after the Borrower has or should have had knowledge of
the occurrence of each Default or any event, development or occurrence
reasonably likely to have a Material Adverse Effect continuing on the
date of such statement, a statement of the Chief Financial Officer (or
person performing similar functions) of the Parent Guarantor setting
forth details of such Default or such event, development or occurrence
and the action that the Parent Guarantor has taken and proposes to take
with respect thereto.
(b) Annual Financials. As soon as available and in any event
within 90 days after the end of each Fiscal Year, a copy of the annual
audit report for such year for the Parent Guarantor and its
Subsidiaries, including therein Consolidated balance sheets of the
Parent Guarantor and its Subsidiaries as of the end of such Fiscal Year
and Consolidated statements of income and a Consolidated statement of
cash flows of the Parent Guarantor and its Subsidiaries for such Fiscal
Year, in each case accompanied by an opinion acceptable to the Required
Lenders of KPMG LLP or other independent public accountants of
recognized standing acceptable to the Required Lenders, together with
(i) a certificate of such accounting firm to the Lender Parties stating
that in the course of the regular audit of the business of the Parent
Guarantor and its Subsidiaries, which audit was conducted by such
accounting firm in accordance with generally accepted auditing
standards, such accounting firm has obtained no knowledge that a
Default has occurred and is continuing, or if, in the opinion of such
accounting firm, a Default has occurred and is continuing, a statement
as to the nature thereof, (ii) a schedule in form satisfactory to the
Administrative Agent of the computations used by such accountants in
determining, as of the end of such Fiscal Year, compliance with the
covenants contained in Section 5.04, provided that in the event of any
change in GAAP used in the preparation of such financial statements,
the Parent Guarantor shall also provide, if necessary for the
determination of compliance with Section 5.04, a statement of
reconciliation conforming such financial statements to GAAP and (iii) a
certificate of the Chief Financial Officer (or person performing
similar functions) of the Parent Guarantor stating that no Default has
occurred and is continuing or, if a default has occurred and is
continuing, a statement as to the nature thereof and the action that
the Parent Guarantor has taken and proposes to take with respect
thereto.
(c) Quarterly Financials. As soon as available and in any
event within 45 days after the end of each of the first three quarters
of each Fiscal Year, Consolidated balance sheets of the Parent
Guarantor and its Subsidiaries as of the end of such quarter and
Consolidated statements of income and a Consolidated statement of cash
flows of the Parent Guarantor and its Subsidiaries
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for the period commencing at the end of the previous fiscal quarter and
ending with the end of such fiscal quarter and Consolidated statements
of income and a Consolidated statement of cash flows of the Parent
Guarantor and its Subsidiaries for the period commencing at the end of
the previous Fiscal Year and ending with the end of such quarter,
setting forth in each case in comparative form the corresponding
figures for the corresponding date or period of the preceding Fiscal
Year, all in reasonable detail and duly certified (subject to normal
year-end audit adjustments) by the Chief Financial Officer (or person
performing similar functions) of the Parent Guarantor as having been
prepared in accordance with GAAP, together with (i) a certificate of
said officer stating that no Default has occurred and is continuing or,
if a Default has occurred and is continuing, a statement as to the
nature thereof and the action that the Parent Guarantor has taken and
proposes to take with respect thereto and (ii) a schedule in form
satisfactory to the Administrative Agent of the computations used by
the Parent Guarantor in determining compliance with the covenants
contained in Section 5.04, provided that in the event of any change in
GAAP used in the preparation of such financial statements, the Parent
Guarantor shall also provide, if necessary for the determination of
compliance with Section 5.04, a statement of reconciliation conforming
such financial statements to GAAP.
(d) Borrowing Base Certificate. As soon as available and in
any event within 10 days after the end of each month, a Borrowing Base
Certificate, as at the end of the previous month, certified by the
Chief Financial Officer (or person performing similar functions) of the
Parent Guarantor.
(e) Annual Budgets. As soon as available and in any event no
later than 30 days after the end of each Fiscal Year, forecasts
prepared by management of the Parent Guarantor, in form satisfactory to
the Administrative Agent, of balance sheets, income statements and cash
flow statements on a monthly basis for the then current Fiscal Year and
on an annual basis for each Fiscal Year thereafter until the
Termination Date.
(f) Material Litigation. Promptly after the commencement
thereof, notice of all actions, suits, investigations, litigation and
proceedings before any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign,
affecting any Loan Party or any of its Subsidiaries of the type
described in Section 4.0l(f), and promptly after the occurrence
thereof, notice of any adverse change in the status or the financial
effect on any Loan Party or any of its Subsidiaries of the Disclosed
Litigation from that described on Schedule 4.01(f) hereto.
(g) Securities Reports. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and
reports that any Loan Party or any of its Subsidiaries sends to its
stockholders, and copies of all regular, periodic and special reports,
and all registration statements, that any Loan Party or any of its
Subsidiaries files with the Securities and Exchange Commission or any
governmental authority that may be substituted therefor, or with any
national securities exchange.
(h) Real Property. As soon as available and in any event
within 30 days after the end of each Fiscal Year, a report
supplementing Schedules 4.01(p) and 4.01(q) hereto, including an
identification of all owned and leased real property disposed of by any
Loan Party or any of its Subsidiaries during such Fiscal Year, a list
and description (including the street address, county or other relevant
jurisdiction, state, record owner, book value thereof and, in the case
of leases of property, lessor, lessee, expiration date and annual
rental cost thereof) of all Real Property acquired or leased during
such Fiscal Year and a description of such other changes in the
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information included in such Schedules as may be necessary for such
Schedules to be accurate and complete.
(i) Environmental Conditions. Promptly after the assertion or
occurrence of any Environmental Action against any Loan Party or any of
its Subsidiaries or of any noncompliance in any material respect by any
Loan Party or any of its Subsidiaries with any Environmental Law or
Environmental Permit, provide the Administrative Agent with notice
thereof.
(j) Other Information. Promptly, such other information
respecting the business, condition (financial or otherwise),
operations, performance, properties or prospects of any Loan Party or
any of its Subsidiaries as the Administrative Agent, or any Lender
Party through the Administrative Agent, may from time to time
reasonably request.
SECTION 5.04. Financial Covenants. So long as any Advance or
any other Obligation of any Loan Party under any Loan Document shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender Party shall have
any Commitment hereunder, the Parent Guarantor will:
(a) Parent Guarantor Financial Covenants.
(i) Maximum Total Leverage Ratio: Maintain at
all times a Leverage Ratio of not more than 60%.
(ii) Minimum Tangible Net Worth: Maintain at all
times an excess of Consolidated total tangible assets (without
giving effect, after the Closing Date, to depreciation, if
any, of land and any improvements located thereon) over
Consolidated total liabilities, in each case, of the Parent
Guarantor and its Subsidiaries of not less than the sum of
$250,000,000 plus an amount equal to 75% of the proceeds of
all issuances or sales of Equity Interests of the Parent
Guarantor or any of its Subsidiaries consummated following the
Closing Date.
(iii) Minimum Interest Coverage Ratio: Maintain at
the end of each fiscal quarter of the Parent Guarantor an
Interest Coverage Ratio of not less than 2.0:1.0.
(iv) Minimum Fixed Charge Coverage Ratio.
Maintain at the end of each fiscal quarter of the Parent
Guarantor a Fixed Charge Coverage Ratio of not less than
1.75:1.00.
(b) Borrowing Base Financial Covenants.
(i) Maximum Facility Exposure to Borrowing Base
Asset Value: Not permit at any time the Facility Exposure at
such time to exceed the Loan Value at such time.
(ii) Minimum Implied Debt Service Coverage Ratio:
Maintain at the end of each fiscal quarter of the Parent
Guarantor an Implied Debt Service Coverage Ratio of not less
than 1.5:1.0.
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("EVENTS OF DEFAULT") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any
Advance when the same shall become due and payable or (ii) the Borrower
shall fail to pay any interest on any Advance, or any Loan Party shall
fail to make any other payment under any Loan Document, in each case
under this clause (ii) within three Business Days after the same
becomes due and payable; or
(b) any representation or warranty made by any Loan Party (or
any of its officers or the officers of its general partner or managing
member, as applicable) under or in connection with any Loan Document
shall prove to have been incorrect in any material respect when made;
or
(c) the Borrower shall fail to perform or observe any term,
covenant or agreement contained in Xxxxxxx 0.00, 0.00 (x), (x), (x),
(x), (x), (x), (x), (q) or (r), 5.02, 5.03 or 5.04; or
(d) any Loan Party shall fail to perform or observe any other
term, covenant or agreement contained in any Loan Document on its part
to be performed or observed if such failure shall remain unremedied for
15 days after the earlier of the date on which (i) a Responsible
Officer becomes aware of such failure or (ii) written notice thereof
shall have been given to the Borrower by the Administrative Agent or
any Lender Party; or
(e) any Loan Party or any of its Subsidiaries shall fail to
pay any principal of, premium or interest on or any other amount
payable in respect of any Debt of such Loan Party or such Subsidiary
(as the case may be) that is outstanding in a principal amount (or, in
the case of any Hedge Agreement, an Agreement Value) of at least
$10,000,000 either individually or in the aggregate (such Debt, whether
the obligation of one or more of the Loan Parties or their respective
Subsidiaries, and whether the subject of one or more separate debt
instruments or agreements, exclusive of Debt outstanding hereunder is
referred to herein as "MATERIAL DEBT") but excluding Debt outstanding
hereunder), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise); or
any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Material Debt, if the
effect of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Material Debt or otherwise to
cause, or to permit the holders thereof to cause, such Material Debt to
mature; or any such Material Debt shall be declared to be due and
payable or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such
Material Debt shall be required to be made, in each case prior to the
stated maturity thereof; or
(f) any Loan Party or any of its Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against any Loan Party or any of its Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, or other similar official for it or for any
substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that is
being diligently contested
63
by it in good faith, either such proceeding shall remain undismissed or
unstayed for a period of 30 days or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for
relief against, or the appointment of a receiver, trustee, custodian or
other similar official for, it or any substantial part of its property)
shall occur; or any Loan Party or any of its Subsidiaries shall take
any corporate action to authorize any of the actions set forth above in
this subsection (f); or
(g) any judgments or orders, either individually or in the
aggregate, for the payment of money in excess of $10,000,000 shall be
rendered against any Loan Party or any of its Subsidiaries and either
(i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(h) any non-monetary judgment or order shall be rendered
against any Loan Party or any of its Subsidiaries that could have a
Material Adverse Effect, and there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(i) any provision of any Loan Document after delivery thereof
pursuant to Section 3.01 or 5.01(j) shall for any reason cease to be
valid and binding on or enforceable against any Loan Party party to it,
or any such Loan Party shall so state in writing; or
(j) any Collateral Document or financing statement after
delivery thereof pursuant to Section 3.01 or 5.01(j) shall for any
reason (other than pursuant to the terms thereof) cease to create a
valid and perfected first priority lien on and security interest in the
Collateral purported to be covered thereby; or
(k) a Change of Control shall occur; or
(l) any ERISA Event shall have occurred with respect to a Plan
and the sum (determined as of the date of occurrence of such ERISA
Event) of the Insufficiency of such Plan and the Insufficiency of any
and all other Plans with respect to which an ERISA Event shall have
occurred and then exist (or the liability of the Loan Parties and the
ERISA Affiliates related to such ERISA Event) exceeds $10,000,000; or
(m) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan in an amount that, when
aggregated with all other amounts required to be paid to Multiemployer
Plans by the Loan Parties and the ERISA Affiliates as Withdrawal
Liability (determined as of the date of such notification), exceeds
$10,000,000 or requires payments exceeding $2,000,000 per annum; or
(n) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of
Title IV of ERISA, and as a result of such reorganization or
termination the aggregate annual contributions of the Loan Parties and
the ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or being terminated have been or will be increased over
the amounts contributed to such Multiemployer Plans for the plan years
of such Multiemployer Plans immediately preceding the plan year in
which such reorganization or termination occurs by an amount exceeding
$2,000,000;
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then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of each Lender Party and the obligation of each Lender
Party to make Advances (other than Letter of Credit Advances by an Issuing Bank
or a Lender pursuant to Section 2.03(c)) and of each Issuing Bank to issue
Letters of Credit to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the
Required Lenders, (A) by notice to the Borrower, declare the Notes, all interest
thereon and all other amounts payable under this Agreement and the other Loan
Documents to be forthwith due and payable, whereupon the Notes, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower, (B) by notice to each party
required under the terms of any agreement in support of which a Letter of Credit
is issued, request that all Obligations under such agreement be declared to be
due and payable and (C) by notice to each Issuing Bank, direct such Issuing Bank
to deliver a Default Termination Notice to the beneficiary of each Letter of
Credit issued by it, and each Issuing Bank shall deliver such Default
Termination Notices; provided, however, that in the event of an actual or deemed
entry of an order for relief with respect to the Borrower under any Bankruptcy
Law, (y) the Commitments of each Lender Party and the obligation of each Lender
Party to make Advances (other than Letter of Credit Advances by an Issuing Bank
or a Lender pursuant to Section 2.03(c)) and of each Issuing Bank to issue
Letters of Credit shall automatically be terminated and (z) the Notes, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, pay to the Administrative Agent on behalf of the
Lender Parties in same day funds at the Administrative Agent's office designated
in such demand, for deposit in the L/C Cash Collateral Account, an amount equal
to the aggregate Available Amount of all Letters of Credit then outstanding. If
at any time the Administrative Agent or the Issuing Bank determines that any
funds held in the L/C Cash Collateral Account are subject to any right or claim
of any Person other than the Administrative Agent and the Lender Parties with
respect to the Obligations of the Loan Parties under the Loan Documents, or that
the total amount of such funds is less than the aggregate Available Amount of
all Letters of Credit, the Borrower will, forthwith upon demand by the
Administrative Agent, pay to the Administrative Agent, as additional funds to be
deposited and held in the L/C Cash Collateral Account, an amount equal to the
excess of (a) such aggregate Available Amount over (b) the total amount of
funds, if any, then held in the L/C Cash Collateral Account that the
Administrative Agent, as the case may be, determines to be free and clear of any
such right and claim. Upon the drawing of any Letter of Credit for which funds
are on deposit in the L/C Cash Collateral Account, such funds shall be applied
to reimburse the relevant Issuing Bank or Lenders, as applicable, to the extent
permitted by applicable law.
ARTICLE VII
GUARANTY
SECTION 7.01. Guaranty; Limitation of Liability. (a) Each
Guarantor hereby absolutely, unconditionally and irrevocably guarantees the
punctual payment when due, whether at scheduled maturity or on any date of a
required prepayment or by acceleration, demand or otherwise, of all Obligations
of the Borrower and each other Loan Party now or hereafter existing under or in
respect of the Loan Documents (including, without limitation, any extensions,
modifications, substitutions, amendments or renewals of any or all of the
foregoing Obligations), whether direct or indirect, absolute or contingent, and
whether for principal, interest, premiums, fees, indemnities, contract causes of
action, costs, expenses or otherwise (such Obligations being the "GUARANTEED
OBLIGATIONS"), and agrees to pay
65
any and all expenses (including, without limitation, fees and expenses of
counsel) incurred by the Administrative Agent or any other Secured Party in
enforcing any rights under this Agreement or any other Loan Document. Without
limiting the generality of the foregoing, each Guarantor's liability shall
extend to all amounts that constitute part of the Guaranteed Obligations and
would be owed by any other Loan Party to any Secured Party under or in respect
of the Loan Documents but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving such other Loan Party.
(b) Each Guarantor, the Administrative Agent and each other
Lender Party and, by its acceptance of the benefits of this Guaranty, each other
Secured Party, hereby confirms that it is the intention of all such Persons that
this Guaranty and the Obligations of each Guarantor hereunder not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
foreign, federal or state law to the extent applicable to this Guaranty and the
Obligations of each Guarantor hereunder. To effectuate the foregoing intention,
the Guarantors, the Administrative Agent, the other Lenders Parties and, by
their acceptance of the benefits of this Guaranty, the other Secured Parties
hereby irrevocably agree that the Obligations of each Guarantor under this
Guaranty at any time shall be limited to the maximum amount as will result in
the Obligations of such Guarantor under this Guaranty not constituting a
fraudulent transfer or conveyance.
(c) Each Guarantor hereby unconditionally and irrevocably
agrees that in the event any payment shall be required to be made to any Secured
Party under this Guaranty or any other guaranty, such Guarantor will contribute,
to the maximum extent permitted by law, such amounts to each other Guarantor and
each other guarantor so as to maximize the aggregate amount paid to the Secured
Parties under or in respect of the Loan Documents.
SECTION 7.02. Guaranty Absolute. Each Guarantor guarantees
that the Guaranteed Obligations will be paid strictly in accordance with the
terms of this Agreement and the other Loan Documents, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of the Administrative Agent or any other Secured
Party with respect thereto. The Obligations of each Guarantor under or in
respect of this Guaranty are independent of the Guaranteed Obligations or any
other Obligations of any other Loan Party under or in respect of this Agreement
or the other the Loan Documents, and a separate action or actions may be brought
and prosecuted against each Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against the Borrower or any other Loan Party or
whether the Borrower or any other Loan Party is joined in any such action or
actions. The liability of each Guarantor under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and each Guarantor
hereby irrevocably waives any defenses it may now have or hereafter acquire in
any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan
Document or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations or any
other Obligations of any other Loan Party under or in respect of the
Loan Documents, or any other amendment or waiver of or any consent to
departure from any Loan Document, including, without limitation, any
increase in the Guaranteed Obligations resulting from the extension of
additional credit to the Borrower, any other Loan Party or any of their
Subsidiaries or otherwise;
66
(c) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of, or
consent to departure from, any other guaranty, for all or any of the
Guaranteed Obligations;
(d) any manner of application of collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any collateral for all or any of the
Guaranteed Obligations or any other Obligations of any Loan Party under
the Loan Documents or any other assets of any Loan Party or any of its
Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of its Subsidiaries;
(f) any failure of the Administrative Agent or any other
Secured Party to disclose to any Loan Party any information relating to
the business, condition (financial or otherwise), operations,
performance, properties or prospects of any other Loan Party now or
hereafter known to the Administrative Agent or such other Secured Party
(each Guarantor waiving any duty on the part of the Administrative
Agent and each other Secured Party to disclose such information);
(g) the failure of any other Person to execute or deliver this
Agreement, any other Loan Document, any Guaranty Supplement (as
hereinafter defined) or any other guaranty or agreement or the release
or reduction of liability of any Guarantor or other guarantor or surety
with respect to the Guaranteed Obligations; or
(h) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by the Administrative Agent or any other Secured Party
that might otherwise constitute a defense available to, or a discharge
of, any Loan Party or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by any Secured Party or any other Person upon the
insolvency, bankruptcy or reorganization of the Borrower or any other Loan Party
or otherwise, all as though such payment had not been made.
SECTION 7.03. Waivers and Acknowledgments. (a) Each Guarantor
hereby unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that the
Administrative Agent or any other Secured Party protect, secure, perfect or
insure any Lien or any property subject thereto or exhaust any right or take any
action against any Loan Party or any other Person or any collateral.
(b) Each Guarantor hereby unconditionally and irrevocably
waives any right to revoke this Guaranty and acknowledges that this Guaranty is
continuing in nature and applies to all Guaranteed Obligations, whether existing
now or in the future.
(c) Each Guarantor hereby unconditionally and irrevocably
waives (i) any defense arising by reason of any claim or defense based upon an
election of remedies by the Administrative Agent or any other Secured Party that
in any manner impairs, reduces, releases or otherwise adversely affects the
subrogation, reimbursement, exoneration, contribution or indemnification rights
of such Guarantor or other rights of such Guarantor to proceed against any of
the other Loan Parties, any other guarantor or any
67
other Person or any collateral and (ii) any defense based on any right of
set-off or counterclaim against or in respect of the Obligations of such
Guarantor hereunder.
(d) Each Guarantor acknowledges that the Administrative Agent
may, without notice to or demand upon such Guarantor and without affecting the
liability of such Guarantor under this Guaranty, foreclose under any mortgage by
nonjudicial sale, and each Guarantor hereby waives any defense to the recovery
by the Administrative Agent and the other Secured Parties against such Guarantor
of any deficiency after such nonjudicial sale and any defense or benefits that
may be afforded by Sections 580a and 580d of the California Code of Civil
Procedure or any statute or law in any other jurisdiction having similar effect.
Each Guarantor irrevocably waives any right (including without limitation any
such right arising under California Civil Code Section 2815) to revoke this
Guaranty as to future transactions giving rise to any Guaranteed Obligations.
(e) Each Guarantor hereby unconditionally and irrevocably
waives any duty on the part of the Administrative Agent or any other Secured
Party to disclose to such Guarantor any matter, fact or thing relating to the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower, any other Loan Party or any of their
Subsidiaries now or hereafter known by the Administrative Agent or such other
Secured Party.
(f) Each Guarantor acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by this Agreement and the other Loan Documents and that the waivers
set forth in Section 7.02 and this Section 7.03 are knowingly made in
contemplation of such benefits.
SECTION 7.04. Subrogation. Each Guarantor hereby
unconditionally and irrevocably agrees not to exercise any rights that it may
now have or hereafter acquire against the Borrower, any other Loan Party or any
other insider guarantor that arise from the existence, payment, performance or
enforcement of such Guarantor's Obligations under or in respect of this
Guaranty, this Agreement or any other Loan Document, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution
or indemnification and any right to participate in any claim or remedy of any
Secured Party against the Borrower, any other Loan Party or any other insider
guarantor or any collateral, whether or not such claim, remedy or right arises
in equity or under contract, statute or common law, including, without
limitation, the right to take or receive from the Borrower, any other Loan Party
or any other insider guarantor, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account of
such claim, remedy or right, unless and until all of the Guaranteed Obligations
and all other amounts payable under this Guaranty shall have been paid in full
in cash, all Letters of Credit shall have expired or been terminated and the
Commitments shall have expired or been terminated. If any amount shall be paid
to any Guarantor in violation of the immediately preceding sentence at any time
prior to the latest of (a) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty, (b) the
Termination Date and (c) the latest date of expiration or termination of all
Letters of Credit, such amount shall be received and held in trust for the
benefit of the Secured Parties, shall be segregated from other property and
funds of such Guarantor and shall forthwith be paid or delivered to the
Administrative Agent in the same form as so received (with any necessary
endorsement or assignment) to be credited and applied to the Guaranteed
Obligations and all other amounts payable under this Guaranty, whether matured
or unmatured, in accordance with the terms of the Loan Documents. If (i) any
Guarantor shall make payment to any Secured Party of all or any part of the
Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other
amounts payable under this Guaranty shall have been paid in full in cash, (iii)
the Termination Date shall have occurred and (iv) all Letters of Credit shall
have expired or been terminated, the Administrative Agent and the other Secured
Parties will, at such Guarantor's request and expense, execute and deliver to
such Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to
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evidence the transfer by subrogation to such Guarantor of an interest in the
Guaranteed Obligations resulting from such payment made by such Guarantor
pursuant to this Guaranty.
SECTION 7.05. Guaranty Supplements. Upon the execution and
delivery by any Person of a Guaranty Supplement, (i) such Person shall be
referred to as an "ADDITIONAL GUARANTOR" and shall become and be a Guarantor
hereunder, and each reference in this Agreement to a "Guarantor" or a "Loan
Party" shall also mean and be a reference to such Additional Guarantor, and each
reference in any other Loan Document to a "Guarantor" shall also mean and be a
reference to such Additional Guarantor, and (ii) each reference herein to "this
Agreement", "this Guaranty", "hereunder", "hereof or words of like import
referring to this Agreement and this Guaranty, and each reference in any other
Loan Document to the "Loan Agreement", "Guaranty", "thereunder", "thereof or
words of like import referring to this Agreement and this Guaranty, shall mean
and be a reference to this Agreement and this Guaranty as supplemented by such
Guaranty Supplement.
SECTION 7.06. Indemnification by Guarantors. (a) Without
limitation on any other Obligations of any Guarantor or remedies of the
Administrative Agent or the Secured Parties under this Agreement, this Guaranty
or the other Loan Documents, each Guarantor shall, to the fullest extent
permitted by law, indemnify, defend and save and hold harmless the
Administrative Agent, each Secured Party and each of their Affiliates and their
respective officers, directors, employees, agents and advisors (each, an
"INDEMNIFIED PARTY") from and against, and shall pay on demand, any and all
claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel) that may be incurred by or
asserted or awarded against any Indemnified Party in connection with or as a
result of any failure of any Guaranteed Obligations to be the legal, valid and
binding obligations of any Loan Party enforceable against such Loan Party in
accordance with their terms.
(b) Each Guarantor hereby also agrees that none of the
Indemnified Parties shall have any liability (whether direct or indirect, in
contract, tort or otherwise) to any of the Guarantors or any of their respective
Affiliates or any of their respective officers, directors, employees, agents and
advisors, and each Guarantor hereby agrees not to assert any claim against any
Indemnified Party on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to the
Facilities, the actual or proposed use of the proceeds of the Advances or the
Letters of Credit, the Loan Documents or any of the transactions contemplated by
the Loan Documents.
SECTION 7.07. Subordination. (a) Each Guarantor hereby
subordinates any and all debts, liabilities and other Obligations owed to such
Guarantor by each other Loan Party (the "SUBORDINATED OBLIGATIONS") to the
Guaranteed Obligations to the extent and in the manner hereinafter set forth in
this Section 7.07.
(b) Prohibited Payments, Etc. Except during the
continuance of a Default (including the commencement and continuation of any
proceeding under any Bankruptcy Law relating to any other Loan Party), each
Guarantor may receive regularly scheduled payments from any other Loan Party on
account of the Subordinated Obligations. After the occurrence and during the
continuance of any Default (including the commencement and continuation of any
proceeding under any Bankruptcy Law relating to any other Loan Party), however,
unless the Administrative Agent otherwise agrees, no Guarantor shall demand,
accept or take any action to collect any payment on account of the Subordinated
Obligations.
(c) Prior Payment of Guaranteed Obligations. In any
proceeding under any Bankruptcy Law relating to any other Loan Party, each
Guarantor agrees that the Secured Parties shall be entitled to receive payment
in full in cash of all Guaranteed Obligations (including all interest and
expenses accruing after the commencement of a proceeding under any Bankruptcy
Law, whether or not
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constituting an allowed claim in such proceeding ("POST PETITION INTEREST"))
before such Guarantor receives payment of any Subordinated Obligations.
(d) Turn-Over. After the occurrence and during the
continuance of any Default (including the commencement and continuation of any
proceeding under any Bankruptcy Law relating to any other Loan Party), each
Guarantor shall, if the Administrative Agent so requests, collect, enforce and
receive payments on account of the Subordinated Obligations as trustee for the
Secured Parties and deliver such payments to the Administrative Agent on account
of the Guaranteed Obligations (including all Post Petition Interest), together
with any necessary endorsements or other instruments of transfer, but without
reducing or affecting in any manner the liability of such Guarantor under the
other provisions of this Guaranty.
(e) Administrative Agent Authorization. After the
occurrence and during the continuance of any Default (including the commencement
and continuation of any proceeding under any Bankruptcy Law relating to any
other Loan Party), the Administrative Agent is authorized and empowered (but
without any obligation to so do), in its discretion, (i) in the name of each
Guarantor, to collect and enforce, and to submit claims in respect of,
Subordinated Obligations and to apply any amounts received thereon to the
Guaranteed Obligations (including any and all Post Petition Interest), and (ii)
to require each Guarantor (A) to collect and enforce, and to submit claims in
respect of, Subordinated Obligations and (B) to pay any amounts received on such
obligations to the Administrative Agent for application to the Guaranteed
Obligations (including any and all Post Petition Interest).
SECTION 7.08. Continuing Guaranty. This Guaranty is a
continuing guaranty and shall (a) remain in full force and effect until the
latest of (i) the payment in full in cash of the Guaranteed Obligations and all
other amounts payable under this Guaranty, (ii) the Termination Date and (iii)
the latest date of expiration or termination of all Letters of Credit, (b) be
binding upon the Guarantors, their successors and assigns and (c) inure to the
benefit of and be enforceable by the Administrative Agent and the other Secured
Parties and their successors, transferees and assigns.
ARTICLE VIII
THE AGENTS
SECTION 8.01. Authorization and Action. Each Lender Party (in
its capacities as a Lender and as an Issuing Bank (if applicable) and on behalf
of itself and its Affiliates as potential Hedge Banks) hereby appoints and
authorizes each Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement and the other Loan Documents as
are delegated to such Agent by the terms hereof and thereof, together with such
powers and discretion as are reasonably incidental thereto. As to any matters
not expressly provided for by the Loan Documents (including, without limitation,
enforcement or collection of the Notes), no Agent shall be required to exercise
any discretion or take any action, but shall be required to act or to refrain
from acting (and shall be fully protected in so acting or refraining from
acting) upon the instructions of the Required Lenders, and such instructions
shall be binding upon all Lender Parties and all holders of Notes; provided,
however, that no Agent shall be required to take any action that exposes such
Agent to personal liability or that is contrary to this Agreement or applicable
law. Each Agent agrees to give to each Lender Party prompt notice of each notice
given to it by the Borrower pursuant to the terms of this Agreement.
Notwithstanding anything to the contrary in any Loan Document, no Person
identified as a syndication agent, documentation agent, senior manager, lead
arranger or book running manager, in such Person's capacity as such, shall have
any obligations or duties to any Loan Party, the Administrative Agent or any
other Secured Party under any of such Loan Documents.
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SECTION 8.02. Agents' Reliance, Etc. Neither any Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with the Loan
Documents, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, each Agent: (a) in the
case of the Administrative Agent, may treat the payee of any Note as the holder
thereof until the Administrative Agent receives and accepts an Assignment and
Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, or, in the case of any other
Agent, such Agent has received notice from the Administrative Agent that it has
received and accepted such Assignment and Acceptance, in each case as provided
in Section 9.07; (b) may consult with legal counsel (including counsel for any
Loan Party), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (c)
makes no warranty or representation to any Lender Party and shall not be
responsible to any Lender Party for any statements, warranties or
representations (whether written or oral) made in or in connection with the Loan
Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance, observance or satisfaction of any of the terms, covenants or
conditions of any Loan Document on the part of any Loan Party or the existence
at any time of any Default under the Loan Documents or to inspect the property
(including the books and records) of any Loan Party; (e) shall not be
responsible to any Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; and (f) shall incur no liability under or
in respect of any Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telegram, telecopy or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 8.03. CNAI and Affiliates. With respect to its
Commitments, the Advances made by it and the Notes issued to it, CNAI shall have
the same rights and powers under the Loan Documents as any other Lender Party
and may exercise the same as though it were not the Administrative Agent or the
Collateral Agent; and the term "Lender Party" or "Lender Parties" shall, unless
otherwise expressly indicated, include CNAI in its individual capacity. CNAI and
its affiliates may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from and generally engage
in any kind of business with, any Loan Party, any Subsidiary of any Loan Party
and any Person that may do business with or own securities of any Loan Party or
any such Subsidiary, all as if CNAI were not the Administrative Agent or the
Collateral Agent and without any duty to account therefor to the Lender Parties.
SECTION 8.04. Lender Party Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon any Agent or
any other Lender Party and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and
without reliance upon any Agent or any other Lender Party and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement.
SECTION 8.05. Indemnification by Lender Parties, (a) Each
Lender Party severally agrees to indemnify each Agent (to the extent not
promptly reimbursed by the Borrower) from and against such Lender Party's
ratable share (determined as provided below) of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against such Agent in any way relating to or
arising out of the Loan Documents or any action taken or omitted by such Agent
under the Loan Documents (collectively, the "INDEMNIFIED COSTS"); provided,
however, that no Lender Party shall
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be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from any Agent's gross negligence or willful misconduct as found in a final,
non-appealable judgment by a court of competent jurisdiction. Without limitation
of the foregoing, each Lender Party agrees to reimburse each Agent promptly upon
demand for its ratable share of any costs and expenses (including, without
limitation, fees and expenses of counsel) payable by the Borrower under Section
9.04, to the extent that such Agent is not promptly reimbursed for such costs
and expenses by the Borrower. In the case of any investigation, litigation or
proceeding giving rise to any Indemnified Costs, this Section 8.05 applies
whether any such investigation, litigation or proceeding is brought by any
Lender Party or any other Person.
(b) Each Lender Party severally agrees to indemnify each
Issuing Bank (to the extent not promptly reimbursed by the Borrower) from and
against such Lender Party's ratable share (determined as provided below) of any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against such Issuing
Bank in any way relating to or arising out of the Loan Documents or any action
taken or omitted by such Issuing Bank under the Loan Documents; provided,
however, that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from such Issuing Bank's gross
negligence or willful misconduct as found in a final, non-appealable judgment by
a court of competent jurisdiction. Without limitation of the foregoing, each
Lender Party agrees to reimburse such Issuing Bank promptly upon demand for its
ratable share of any costs and expenses (including, without limitation, fees and
expenses of counsel) payable by the Borrower under Section 9.04, to the extent
that such Issuing Bank is not promptly reimbursed for such costs and expenses by
the Borrower.
(c) For purposes of this Section 8.05, the Lender
Parties' respective ratable shares of any amount shall be determined, at any
time, according to their respective Revolving Credit Commitments at such time.
The failure of any Lender Party to reimburse any Agent or any Issuing Bank, as
the case may be, promptly upon demand for its ratable share of any amount
required to be paid by the Lender Parties to such Agent or such Issuing Bank, as
the case may be, as provided herein shall not relieve any other Lender Party of
its obligation hereunder to reimburse such Agent or such Issuing Bank, as the
case may be, for its ratable share of such amount, but no Lender Party shall be
responsible for the failure of any other Lender Party to reimburse such Agent or
such Issuing Bank, as the case may be, for such other Lender Party's ratable
share of such amount. Without prejudice to the survival of any other agreement
of any Lender Party hereunder, the agreement and obligations of each Lender
Party contained in this Section 8.05 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the other
Loan Documents.
SECTION 8.06. Successor Agents. Any Agent may resign at any
time by giving written notice thereof to the Lender Parties and the Borrower and
may be removed at any time with or without cause by the Required Lenders;
provided, however, that any removal of the Administrative Agent will not be
effective until it has been replaced as Collateral Agent and released from all
obligations in respect thereof. Anything herein to the contrary notwithstanding,
the Administrative Agent shall resign if at any time the Administrative Agent is
not a Lender having a Revolving Credit Commitment equal to the lesser of
$10,000,000 or the Revolving Credit Commitment of the next highest Lender (or
such ratably lesser amount if the Revolving Credit Commitments have been reduced
in accordance with this Agreement). Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Agent, which
appointment shall, provided that no Default has occurred and is continuing, be
subject to the consent of the Borrower, such consent not to be unreasonably
withheld or delayed. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Required Lenders'
removal
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of the retiring Agent, then the retiring Agent may, on behalf of the Lender
Parties, appoint a successor Agent, which shall be a commercial bank organized
under the laws of the United States or of any State thereof and having a
combined capital and surplus of at least $250,000,000, which appointment shall,
provided that no Default has occurred and is continuing, be subject to the
consent of the Borrower, such consent not to be unreasonably withheld or
delayed. Upon the acceptance of any appointment as an Agent hereunder by a
successor Agent, and, in the case of a successor Collateral Agent, upon the
execution and filing or recording of such financing statements, or amendments
thereto, and such amendments or supplements to the Mortgages, and such other
instruments or notices, as may be necessary or desirable, or as the Required
Lenders may request, in order to continue the perfection of the Liens granted or
purported to be granted by the Collateral Documents, such successor Agent shall
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations under the Loan Documents. If within 45 days
after written notice is given of the retiring Agent's resignation or removal
under this Section 8.06 no successor Agent shall have been appointed and shall
have accepted such appointment, then on such 45th day (i) the retiring Agent's
resignation or removal shall become effective, (ii) the retiring Agent shall
thereupon be discharged from its duties and obligations under the Loan Documents
and (iii) the Required Lenders shall thereafter perform all duties of the
retiring Agent under the Loan Documents until such time, if any, as the Required
Lenders appoint a successor Agent as provided above. After any retiring Agent's
resignation or removal hereunder as an Agent shall have become effective, the
provisions of this Article VIII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was an Agent under this Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes or any other Loan Document, nor consent
to any departure by any Loan Party therefrom, shall in any event be effective
unless the same shall be in writing and signed (or, in the case of the
Collateral Documents, consented to) by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all of the Lenders (other than
any Lender Party that is, at such time, a Defaulting Lender), do any of the
following at any time: (i) waive any of the conditions specified in Section 3.01
or, in the case of the Initial Extension of Credit, Section 3.02, (ii) change
the number of Lenders or the percentage of (x) the Commitments, (y) the
aggregate unpaid principal amount of the Advances or (z) the aggregate Available
Amount of outstanding Letters of Credit that, in each case, shall be required
for the Lenders or any of them to take any action hereunder, (iii) release the
Borrower with respect to the Obligations or reduce or limit the obligations of
any Guarantor under Article VII or release such Guarantor or otherwise limit
such Guarantor's liability with respect to the Guaranteed Obligations, (iv)
release any individual Eligible Real Estate Asset or all or substantially all of
the Collateral, in each case in any transaction or series of related
transactions, or permit the creation, incurrence, assumption or existence of any
Lien on any individual Eligible Real Estate Asset or all or substantially all of
the Collateral, in each case in any transaction or series of related
transactions, to secure any Obligations other than Obligations owing to the
Secured Parties under the Loan Documents, (v) amend this Section 9.01, (vi)
increase the Commitments of the Lenders or subject the Lenders to any additional
obligations, (vii) reduce the principal of, or interest on, the Notes or any
fees or other amounts payable hereunder, (vii) postpone any date fixed for any
payment of principal of, or interest on, the Notes or any fees or other amounts
payable hereunder or amend Section 2.06, or (ix) limit the liability of any Loan
Party under any of the Loan Documents; provided further that no amendment,
waiver or consent shall, unless in writing and signed by each Issuing Bank, as
the case may be, in addition to the Lenders required above to take such action,
affect the rights or obligations of the Issuing Banks, as the case may be, under
this Agreement; and provided further that no amendment, waiver or
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consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above to take such action, affect the rights or
duties of the Administrative Agent under this Agreement or the other Loan
Documents.
SECTION 9.02. Notices, Etc, (a) All notices and other
communications provided for hereunder shall be either (x) in writing (including
telecopier or telegraphic communication) and mailed, telecopied, telegraphed or
delivered or (y) as and to the extent set forth in Section 9.02(b) and in the
proviso to this Section 9.02(a), in an electronic medium and delivered as set
forth in Section 9.02(b), if to the Borrower, at its address at 000 Xxxx Xxxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, XX 00000-0000, Attention: Xxxxxx Xxxxx, Chief
Financial Officer; if to any Initial Lender, at its Domestic Lending Office
specified opposite its name on Schedule I hereto; if to any other Lender Party,
at its Domestic Lending Office specified in the Assignment and Acceptance
pursuant to which it became a Lender Party; if to the Initial Issuing Bank, at
its address at One Wachovia Center, 6th Floor, 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: Xxx Xxxx; and if to the
Administrative Agent or the Collateral Agent, at its address at Xxx Xxxxx Xxx,
Xxx Xxxxxx, Xxxxxxxx 00000, Attention: Bank Loan Syndications Department; or, as
to the Borrower or any Agent, at such other address as shall be designated by
such party in a written notice to the other parties and, as to each other party,
at such other address as shall be designated by such party in a written notice
to the Borrower and the Administrative Agent. All such notices and
communications shall, when mailed, telecopied, telegraphed or e-mailed, be
effective when deposited in the mails, telecopied, delivered to the telegraph
company or confirmed by e-mail, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II, III or VIII
shall not be effective until received by the Administrative Agent. Delivery by
telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or the Notes or of any Exhibit hereto to be executed
and delivered hereunder shall be effective as delivery of an original executed
counterpart thereof. The Collateral Agent shall notify each of the Ground
Lessors (as defined in the Mortgages) of the occurrence of any Event of Default
hereunder of which the Collateral Agent has actual knowledge by registered or
certified mail to such Ground Lessor's address set forth in the Participation
Agreement or Subject Lease to which it is a party; on the Closing Date the
addresses of such Ground Lessors are: The Pasadena Community Development
Commission, 000 X. Xxxxxxxx Xxx., Xx. 000, Xxxxxxxx, Xxxxxxxxxx 00000; and The
Cerritos Redevelopment Agency, Civic Center, Bloomfield Avenue at 183rd Street,
Cerritos, California 90703, Attention: Executive Director. Notwithstanding
anything herein to the contrary, the failure of the Collateral Agent to provide
such notice to such Ground Lessors shall not impair or otherwise affect any of
the rights and remedies of the Secured Parties under the Loan Documents or
applicable law.
(b) So long as CNAI is the Administrative Agent,
materials required to be delivered pursuant to Section 5.03(a), (b), (c) and (f)
shall be delivered to the Administrative Agent in an electronic medium in a
format acceptable to the Administrative Agent and the Lender Parties by e-mail
at xxxxxxxxxxxxxxx@xxxxxxxxx.xxx. The Borrower agrees that the Administrative
Agent may make such materials, as well as any other written information,
documents, instruments and other material relating to the Borrower, any Loan
Party, any of their Subsidiaries or any other materials or matters relating to
this Agreement, the Notes or any of the transactions contemplated hereby
(collectively, the "COMMUNICATIONS") available to the Lender Parties by posting
such notices on "e-Disclosure" (the "PLATFORM"), the Administrative Agent's
internet delivery system that is part of Fixed Income Direct, Global Fixed
Income's primary web portal. Although the primary web portal is secured with a
dual firewall and a User ID/Password Authorization System and the Platform is
secured through a single user per deal authorization method whereby each user
may access the Platform only on a deal-by-deal basis, the Borrower acknowledges
that (i) the distribution of material through an electronic medium is not
necessarily secure and that there are confidentiality and other risks associated
with such distribution, (ii) the Platform is provided "as is" and "as available"
and (iii) neither the Administrative Agent nor any of its Affiliates warrants
the accuracy, adequacy or completeness of the Communications or the Platform and
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each expressly disclaims liability for errors or omissions in the Communications
or the Platform. No warranty of any kind, express, implied or statutory,
including, without limitation, any warranty of merchantability, fitness for a
particular purpose, non-infringement of third party rights or freedom from
viruses or other code defects, is made by the Administrative Agent or any of its
Affiliates in connection with the Platform.
(c) Each Lender Party agrees that notice to it (as
provided in the next sentence) (a "NOTICE") specifying that any Communications
have been posted to the Platform shall constitute effective delivery of such
information, documents or other materials to such Lender Party for purposes of
this Agreement, provided that, if requested by any Lender Party, the
Administrative Agent shall deliver a copy of the Communications to such Lender
Party by e-mail or telecopier. Each Lender Party agrees (i) to notify the
Administrative Agent in writing of such Lender Party's e-mail address to which a
Notice may be sent by electronic transmission (including by electronic
communication) on or before the date such Lender Party becomes a party to this
Agreement (and from time to time thereafter to ensure that the Administrative
Agent has on record an effective e-mail address for such Lender Party) and (ii)
that any Notice may be sent to such e-mail address.
SECTION 9.03. No Waiver; Remedies. No failure on the part of
any Lender Party or the Administrative Agent to exercise, and no delay in
exercising, any right hereunder or under any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 9.04. Costs and Expenses. (a) Each Loan Party agrees
jointly and severally to pay on demand (i) all reasonable out-of-pocket costs
and expenses of each Agent in connection with the preparation, execution,
delivery, administration, modification and amendment of the Loan Documents
(including, without limitation, (A) all due diligence, collateral review,
syndication, transportation, computer, duplication, appraisal, audit, insurance,
consultant, search, filing and recording fees and expenses and (B) the
reasonable fees and expenses of counsel for such Agent with respect thereto,
with respect to advising such Agent as to its rights and responsibilities, or
the perfection, protection or preservation of rights or interests, under the
Loan Documents, with respect to negotiations with any Loan Party or with other
creditors of any Loan Party or any of its Subsidiaries arising out of any
Default or any events or circumstances that may give rise to a Default and with
respect to presenting claims in or otherwise participating in or monitoring any
bankruptcy, insolvency or other similar proceeding involving creditors' rights
generally and any proceeding ancillary thereto) and (ii) all reasonable
out-of-pocket costs and expenses of each Agent and each Lender Party in
connection with the enforcement (whether through negotiations, legal proceedings
or otherwise) of the Loan Documents, whether in any action, suit or litigation,
or any bankruptcy, insolvency or other similar proceeding affecting creditors'
rights generally (including, without limitation, the reasonable fees and
expenses of counsel for such Agent and each Lender Party with respect thereto).
(b) Each Loan Party agrees to indemnify, defend and save
and hold harmless each Indemnified Party from and against, and shall pay on
demand, any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party, in each
case arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) (i) the Facilities, the actual
or proposed use of the proceeds of the Advances or the Letters of Credit, the
Loan Documents or any of the transactions contemplated thereby or (ii) the
actual or alleged presence of Hazardous Materials on any property of any Loan
Party or any of its Subsidiaries or any Environmental Action relating in any way
to any Loan Party or any of its Subsidiaries, except to the extent such claim,
damage, loss, liability or
75
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 9.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any Loan Party, its directors, shareholders or
creditors or an Indemnified Party, whether or not any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated by
the Loan Documents are consummated. Each Loan Party also agrees not to assert
any claim against any Agent, any Lender Party or any of their Affiliates, or any
of their respective officers, directors, employees, agents and advisors, on any
theory of liability, for special, indirect, consequential or punitive damages
arising out of or otherwise relating to the Facilities, the actual or proposed
use of the proceeds of the Advances or the Letters of Credit, the Loan Documents
or any of the transactions contemplated by the Loan Documents.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender Party other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion pursuant to Section 2.06, 2.09(b)(i) or
2.10(d), acceleration of the maturity of the Notes pursuant to Section 6.01 or
for any other reason, or if the Borrower fails to make any payment or prepayment
of an Advance for which a notice of prepayment has been given or that is
otherwise required to be made, whether pursuant to Section 2.04, 2.06 or 6.01 or
otherwise, the Borrower shall, upon demand by such Lender Party (with a copy of
such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender Party any amounts required to compensate such Lender
Party for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment or Conversion or such failure to pay or prepay, as
the case may be, including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender Party to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document, including,
without limitation, fees and expenses of counsel and indemnities, such amount
may be paid on behalf of such Loan Party by any Agent or any Lender Party, in
its sole discretion.
(e) Without prejudice to the survival of any other
agreement of any Loan Party hereunder or under any other Loan Document, the
agreements and obligations of the Borrower and the other Loan Parties contained
in Sections 2.10 and 2.12, Section 7.06 and this Section 9.04 shall survive the
payment in full of principal, interest and all other amounts payable hereunder
and under any of the other Loan Documents.
SECTION 9.05. Right of Set-off. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the request
or the granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Agent and each Lender Party and each of their
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Agent, such Lender Party
or such Affiliate to or for the credit or the account of the Borrower or any
other Loan Party against any and all of the Obligations of the Borrower or such
Loan Party now or hereafter existing under the Loan Documents, irrespective of
whether such Agent or such Lender Party shall have made any demand under this
Agreement or such Note or Notes and although such obligations may be unmatured.
Each Agent and each Lender Party agrees promptly to notify the Borrower or such
Loan Party after any such set-off and application; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Agent and each Lender Party and their respective
Affiliates
76
under this Section 9.05 are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that such Agent, such Lender Party
and their respective Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower, each Guarantor named
on the signature pages hereto and each Agent and the Administrative Agent shall
have been notified by each Initial Lender, each Initial Issuing Bank and each
Arranger that such Initial Lender, such Initial Issuing Bank or such Arranger,
as the case may be, has executed it and thereafter shall be binding upon and
inure to the benefit of the Borrower, the Guarantors named on the signature
pages hereto and each Agent and each Lender Party and their respective
successors and assigns, except that neither the Borrower nor any other Loan
Party shall have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Lender Parties.
SECTION 9.07. Assignments and Participations. (a) Each Lender
may assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment or Commitments, the Advances owing to it and the Note
or Notes held by it); provided, however, that (i) each such assignment shall be
of a uniform, and not a varying, percentage of all rights and obligations under
and in respect of one or more of the Facilities, (ii) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a Lender,
an Affiliate of any Lender or a Fund Affiliate of any Lender or an assignment of
all of a Lender's rights and obligations under this Agreement, the aggregate
amount of the Commitments being assigned to such Eligible Assignee pursuant to
such assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000 under each
Facility or an integral multiple of $1,000,000 in excess thereof (or such lesser
amount as shall be approved by the Administrative Agent and, so long as no
Default shall have occurred and be continuing at the time of effectiveness of
such assignment, the Borrower), (iii) each such assignment shall be to an
Eligible Assignee, (iv) no such assignments shall be permitted without the
consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) until the Administrative Agent shall have notified the
Lender Parties that syndication of the Commitments hereunder has been completed
and (v) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Note or Notes subject to such
assignment and, except if such assignment is being made by a Lender to an
Affiliate or Fund Affiliate of such Lender, a processing and recordation fee of
$3,500.
(b) Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in such Assignment and
Acceptance, (i) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing
Bank assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights (other than its rights under Sections 2.10, 2.12, 7.06,
8.05 and 9.04 to the extent any claim thereunder relates to an event arising
prior to such assignment) and be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
remaining portion of an assigning Lender's or Issuing Bank's rights and
obligations under this Agreement, such Lender or Issuing Bank shall cease to be
a party hereto).
(c) By executing and delivering an Assignment and
Acceptance, each Lender Party assignor thereunder and each assignee thereunder
confirm to and agree with each other and the other parties thereto and hereto as
follows: (i) other than as provided in such Assignment and Acceptance, such
assigning Lender Party makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with any Loan Document or the
77
execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant thereto; (ii) such assigning
Lender Party makes no representation or warranty and assumes no responsibility
with respect to the financial condition of any Loan Party or the performance or
observance by any Loan Party of any of its obligations under any Loan Document
or any other instrument or document furnished pursuant thereto; (iii) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon the Administrative Agent,
such assigning Lender Party or any other Lender Party and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such
assignee appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers and discretion under the Loan
Documents as are delegated to the Administrative Agent by the terms hereof and
thereof, together with such powers and discretion as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Agreement are
required to be performed by it as a Lender or Issuing Bank, as the case may be.
(d) The Administrative Agent shall maintain at its
address referred to in Section 9.02 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Lender Parties and the Commitment under each Facility of,
and principal amount of the Advances owing under each Facility to, each Lender
Party from time to time (the "REGISTER"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Administrative Agent and the Lender Parties may treat each Person
whose name is recorded in the Register as a Lender Party hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or the Administrative Agent or any Lender Party at any reasonable
time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender Party and an assignee, together with any Note or
Notes subject to such assignment, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the form of
Exhibit D hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower and each other Agent. In the case of any assignment by a
Lender, within five Business Days after its receipt of such notice, the
Borrower, at its own expense, shall, if requested by the applicable Lender,
execute and deliver to the Administrative Agent in exchange for the surrendered
Note or Notes a new Note to the order of such Eligible Assignee in an amount
equal to the Commitment assumed by it under each Facility pursuant to such
Assignment and Acceptance and, if any assigning Lender has retained a Commitment
hereunder under such Facility, a new Note to the order of such assigning Lender
in an amount equal to the Commitment retained by it hereunder. Such new Note or
Notes, if any, shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note or Notes, shall be dated the effective
date of such Assignment and Acceptance and shall otherwise be in substantially
the form of Exhibit A hereto.
(f) Each Issuing Bank may assign to one or more Eligible
Assignees all or a portion of its rights and obligations under the undrawn
portion of its Letter of Credit Commitment at any time; provided, however, that
(i) except in the case of an assignment to a Person that immediately prior to
such assignment was an Issuing Bank or an assignment of all of an Issuing Bank's
rights and obligations under this Agreement, the amount of the Letter of Credit
Commitment of the assigning Issuing Bank being
78
assigned pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event be
less than $10,000,000 and shall be in an integral multiple of $1,000,000 in
excess thereof, (ii) each such assignment shall be to an Eligible Assignee and
(iii) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with a processing and recordation fee of
$3,500, provided, that such fee shall not be payable if the assigning Issuing
Bank is making such assignment simultaneously with the assignment in its
capacity as a Lender of all or a portion of its Revolving Credit Commitment to
the same Eligible Assignee.
(g) Each Lender Party may sell participations to one or
more Persons (other than any Loan Party or any of its Affiliates) in or to all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitments, the Advances owing to
it and the Note or Notes (if any) held by it);provided, however, that (i) such
Lender Parry's obligations under this Agreement (including, without limitation,
its Commitments) shall remain unchanged, (ii) such Lender Party shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender Party shall remain the holder of any such Note
for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent
and the other Lender Parties shall continue to deal solely and directly with
such Lender Party in connection with such Lender Party's rights and obligations
under this Agreement, (v) no participant under any such participation shall have
any right to approve any amendment or waiver of any provision of any Loan
Document, or any consent to any departure by any Loan Party therefrom, except to
the extent that such amendment, waiver or consent would reduce the principal of,
or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation or postpone any date fixed
for any payment of principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, or release all or substantially all of the Collateral and (vi)
if, at the time of such sale, such Lender Party was entitled to payments under
Section 2.12(a) in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to such participant on such date, provided, that such
participant complies with the requirements of Section 2.12(e).
(h) Any Lender Party may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 9.07, disclose to the assignee or participant or proposed assignee
or participant any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this
Agreement, any Lender Party may at any time create a security interest in all or
any portion of its rights under this Agreement (including, without limitation,
the Advances owing to it and the Note or Notes held by it) in favor of any
Federal Reserve Bank in accordance with Regulation A of the Board of Governors
of the Federal Reserve System.
SECTION 9.08. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of an original executed
counterpart of this Agreement.
79
SECTION 9.09. No Liability of the Issuing Banks. The Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
any Issuing Bank nor any of its officers or directors shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by such Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that the
Borrower shall have a claim against such Issuing Bank, and such Issuing Bank
shall be liable to the Borrower, to the extent of any direct, but not
consequential, damages suffered by the Borrower that the Borrower proves were
caused by (i) such Issuing Bank's willful misconduct or gross negligence as
determined in a final, non-appealable judgment by a court of competent
jurisdiction in determining whether documents presented under any Letter of
Credit comply with the terms of the Letter of Credit or (ii) such Issuing Bank's
willful failure to make lawful payment under a Letter of Credit after the
presentation to it of a draft and certificates strictly complying with the terms
and conditions of the Letter of Credit. In furtherance and not in limitation of
the foregoing, such Issuing Bank may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary.
SECTION 9.10. Confidentiality. Neither the Administrative
Agent nor any Lender Party shall disclose any Confidential Information to any
Person without the consent of the Borrower, other than (a) to such
Administrative Agent's or such Lender Party's Affiliates and their officers,
directors, employees, agents and advisors and to actual or prospective Eligible
Assignees and participants, and then only on a confidential basis, (b) as
required by any law, rule or regulation or judicial process, (c) as requested or
required by any state, Federal or foreign authority or examiner regulating such
Lender Party and (d) to any rating agency when required by it, provided that,
prior to any such disclosure, such rating agency shall undertake to preserve the
confidentiality of any Confidential Information relating to the Loan Parties
received by it from such Lender Party. Notwithstanding anything herein or in any
other written or oral understanding or agreement to which the Loan Parties, the
Administrative Agent and the Lender Parties are parties or by which they are
bound, the Loan Parties, the Administrative Agent and the Lender Parties
acknowledge and agree that (i) any obligations of confidentiality contained
herein and therein do not apply and have not applied from the commencement of
discussions between the parties to the tax treatment and tax structure of the
transactions contemplated by this Agreement (and any related transactions or
arrangements), and (ii) the Loan Parties, the Administrative Agent and the
Lender Parties may disclose to any and all Persons, without limitation of any
kind, the U.S. tax treatment of and tax structure of the transactions
contemplated hereby and all materials of any kind (including opinions or other
tax analyses) that are provided to the Loan Parties, the Administrative Agent or
the Lender Parties, as the case may be, relating to such U.S. tax treatment and
tax structure, all within the meaning of Treasury regulations Section 1.6011-4;
provided, however, that each of the Loan Parties, the Administrative Agent
and the Lender Parties recognizes that the privilege each has to maintain, in
its sole discretion, the confidentiality of a communication relating to the
transactions contemplated by this Agreement, including a confidential
communication with its attorney or a confidential communication with a federally
authorized tax practitioner under Section 7525 of the Internal Revenue Code, is
not intended to be affected by the foregoing.
SECTION 9.11. Release of Collateral. Upon the sale, lease,
transfer or other disposition of any item of Collateral of any Loan Party
(including, without limitation, as a result of the sale, in accordance with the
terms of the Loan Documents, of the Loan Party that owns such Collateral) in
accordance with the terms of the Loan Documents, the Collateral Agent will, at
the Borrower's expense,
80
execute and deliver to such Loan Party such documents as such Loan Party may
reasonably request to evidence the release of such item of Collateral from the
assignment and security interest granted under the Collateral Document in
accordance with the terms of the Loan Documents.
SECTION 9.12. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any of the other Loan Documents to which it is a
party, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any such
New York State court or, to the extent permitted by law, in such Federal court.
Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any parry may otherwise have to bring any
action or proceeding relating to this Agreement or any of the other Loan
Documents in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any of the other Loan Documents to which it is a party in any New York State or
Federal court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
SECTION 9.13. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
[Balance of page intentionally left blank]
81
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
BORROWER:
XXXXXXX PROPERTIES, L.P.
By Xxxxxxx Properties, Inc., its General
Partner
By /s/ Xxxx X. Lammas
---------------------------------------------
Name: XXXX X. LAMMAS
Title: S.V.P.
GUARANTORS:
XXXXXXX PROPERTIES, INC.
By /s/ Xxxx X. Lammas
---------------------------------------------
Name: XXXX X. LAMMAS
Title: S.V.P.
XXXXXXX PROPERTIES SERVICES, INC.
By /s/ Xxxx X. Lammas
---------------------------------------------
Name: XXXX X. LAMMAS
Title: SECRETARY
XXXXXXX PROPERTIES-SOLANA SERVICES, L.P.
By MP-Solana Services GP, LLC, its General
Partner
By Xxxxxxx Properties Services, Inc., its Member
By /s/ Xxxx X. Lammas
---------------------------------------------
Name: XXXX X. LAMMAS
Title: SECRETARY
MP-SOLANA SERVICES GP, LLC
By Xxxxxxx Properties Services, Inc., its Member
By /s/ Xxxx X. Lammas
---------------------------------------------
Name: XXXX X. LAMMAS
Title: SECRETARY
MP-SOLANA SERVICES LP, LLC
By Xxxxxxx Properties Services, Inc., its Member
By /s/ Xxxx X. Lammas
---------------------------------------------
Name: XXXX X. LAMMAS
Title: SECRETARY
XXXXXXX/CERRITOS I, LLC
By Xxxxxxx Properties, L.P., its Member
By Xxxxxxx Properties, Inc., its General Partner
By /s/ Xxxx X. Lammas
---------------------------------------------
Name: XXXX X. LAMMAS
Title: S.V.P.
XXXXXXX PARTNERS-GLENDALE II, LLC
By Xxxxxxx Properties, L.P., its Member
By Xxxxxxx Properties, Inc., its General Partner
By /s/ Xxxx X. Lammas
---------------------------------------------
Name: XXXX X. LAMMAS
Title: S.V.P.
XXXXXXX PARTNERS-PLAZA LAS XXXXXXX, LLC
By Xxxxxxx Properties, L.P., its Member
By Xxxxxxx Properties, Inc., its General Partner
By /s/ Xxxx X. Lammas
---------------------------------------------
Name: XXXX X. LAMMAS
Title: S.V.P.
CITICORP NORTH AMERICA, INC., as
Administrative Agent, as Collateral Agent and as
Initial Lender
By /s/ Xxxxx Xxxxxx
---------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
WACHOVIA BANK, NA, as Initial Issuing Bank and
as Initial Lender
By /s/ Xxx X. Xxxx
---------------------------------------------
Name: Xxx X. Xxxx
Title: Director
FLEET NATIONAL BANK, as Initial Under
By /s/ Xxxx Xxxx
---------------------------------------------
Name:Xxxx Xxxx
Title: Vice President
BANK ONE, NA, as Initial Lender
By /s/ [ILLEGIBLE]
---------------------------------------------
Name: [ILLEGIBLE]
Title: Director, Capital Markets
CREDIT SUISSE FIRST BOSTON
CAYMAN ISLANDS BRANCH, as Initial Lender
By /s/ Xxxxxxx X' Xxxx
---------------------------------------------
Name: Xxxxxxx X' Xxxx
Title: Director
By /s/ Xxxxxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Associate
COMMERZBANK, AG, NEW YORK AND GRAND CAYMAN
BRANCHES, as Initial Leader
By /s/ R. Xxxxxxx Xxxxxxxxxxxxx
---------------------------------------------
Name: R. Xxxxxxx Xxxxxxxxxxxxx
Title: Vice President
By /s/ E. Xxxxxx Xxxxx
---------------------------------------------
Name: E. Xxxxxx Xxxxx
Title: Assistant Vice President
BANK OF AMERICA, N.A., as Initial Lender
By /s/ Xxxxx X. Xxxxxx
---------------------------------------------
Name: XXXXX X. XXXXXX
Title: PRINCIPAL
UBS AG, CAYMAN ISLANDS BRANCH, as Initial Lender
By /s/ Xxxxxxxx X'Xxxxx
----------------------------------------------
Name: Xxxxxxxx X'Xxxxx
Title: Director
By /s/ Xxxxxxx Saint
----------------------------------------------
Name: Xxxxxxx Saint
Title: Associate Director
BANK OF THE WEST, as Initial Lender
By /s/ Xxxx Xxxxxx
---------------------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President & Manager
SCHEDULE I
COMMITMENTS AND APPLICABLE LENDING OFFICES
------------------------------------------------------------------------------------------------------------------------------------
NAME OF INITIAL REVOLVING
LENDER/ CREDIT LETTER OF CREDIT
INITIAL ISSUING BANK COMMITMENT COMMITMENT DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE
------------------------------------------------------------------------------------------------------------------------------------
Citicorp North $ 14,500,000 0 Xxxxx Xxx, Xxxxx 000 2 Penns Way, Suite 200
America, Inc. Xxx Xxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
Attn: Xxxxx Zambeano Attn: Xxxxx Zambeano
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Wachovia Bank, NA $ 14,500,000 $ 25,000,000 000 X. Xxxxxxx Xxxxxx, 0xx Xx. 000 X. Xxxxxxx Xxxxxx, 0xx Xx.
Mailcode NC 5708 Mailcode NC 5708
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx Attn: Xxxxxx Xxxxxxxxx
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Fleet National Bank $ 14,000,000 Xxxxx 000 Xxxxx 000
115 Perimeter Center Pl. 000 Xxxxxxxxx Xxxxxx Xx.
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxxxxx Xxxxxxx Attn: Xxxxxxxxx Xxxxxxx
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Bank One, NA $ 14,000,000 1 Bank Xxx Xxxxx 0 Xxxx Xxx Xxxxx
XX0-0000 IL1-0318
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxx Attn: Xxxx Xxxxxxxxx
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax:000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Bank of the West $ 14,000,000 0000 Xxxxx Xxxx. 0000 Xxxxx Xxxx.
XX-XXX-00-X XX-XXX-00-X
Xxxxxx Xxxxx, XX 00000 Xxxxxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxxxxxx Attn: Xxxx Xxxxxxxxxx
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Commerzbank AG, New $ 14,000,000 2 World Financial Center 2 World Financial Center
York and Grand Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Cayman Branches Attn: Xxxxxxx Xxxxxxxx Attn: Xxxxxxx Xxxxxxxx
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Credit Suisse First $ 5,000,000 One Madison Avenue One Madison Avenue
Boston Cayman Island Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Branch Attn: Xx Xxxxxxxxx Attn: Xx Xxxxxxxxx
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Sch.I
------------------------------------------------------------------------------------------------------------------------------------
Bank of America, N.A. $ 5,000,000 000 Xxxx Xxxxxx, 00xx Xxxxx 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx Attn: Xxxxxx Xxxxxxxx
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
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UBS AG, Cayman $ 5,000,000 000 Xxxxxxxxxx Xxxxxxxxx 000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxx Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: Vladimira Holeckova Attn: Vladimira Holeckova
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
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Total $ 100,000,000 $ 25,000,000
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Sch.I
SCHEDULE II
ELIGIBLE REAL ESTATE ASSETS
(a) AT&T Wireless Western Regional Headquarters, located at 00000 Xxxx
Xxxxx Xxxxx and 00000 000xx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx;
(b) Plaza Las Xxxxxxx Office located at 99,111,135 and 000 Xxxxx Xxx
Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx; and
(c) Plaza Las Xxxxxxx Westin Hotel, located at 99,111,135 and 000 Xxxxx
Xxx Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx.
Sch.II
