Exhibit 4.1
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF JUNE 29, 2006
AMONG
DEVELOPERS DIVERSIFIED REALTY CORPORATION,
AND
DDR PR VENTURES LLC, S.E.
AS BORROWERS
JPMORGAN SECURITIES, INC.
AND
BANC OF AMERICA SECURITIES LLC
AS JOINT LEAD ARRANGERS/JOINT BOOK RUNNERS
AND
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT
AND
BANK OF AMERICA, N.A., AS SYNDICATION AGENT
AND
EUROHYPO AG, NEW YORK BRANCH, WACHOVIA BANK, N.A. AND XXXXX FARGO BANK, N.A.,
AS DOCUMENTATION AGENTS
AND
LASALLE BANK NATIONAL ASSOCIATION AND U.S. BANK NATIONAL ASSOCIATION,
AS SENIOR MANAGING AGENTS
DEUTSCHE BANK AG, NEW YORK BRANCH, ING REAL ESTATE FINANCE (USA) LLC,
MIZUHO CORPORATE BANK, LTD., XXXXXX XXXXXXX BANK, THE BANK OF NEW YORK, THE
BANK OF NOVA SCOTIA AND UBS LOAN FINANCE LLC
AS MANAGING AGENTS
AND
AMSOUTH BANK, KEYBANK NATIONAL ASSOCIATION, PNC BANK, NATIONAL ASSOCIATION,
SOVEREIGN BANK, SUNTRUST BANKS, INC. AND CHARTER ONE BANK, N.A.
AS CO-AGENTS
AND
THE SEVERAL LENDERS
FROM
TIME TO TIME PARTIES HERETO,
AS LENDERS
TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINITIONS.................................................... 1
1.1 DEFINED TERMS................................................. 1
1.2 CLASSIFICATION OF LOANS AND BORROWINGS........................ 27
1.3 TERMS GENERALLY............................................... 27
1.4 EXCHANGE RATES................................................ 28
1.5 CURRENCY CONVERSION........................................... 28
ARTICLE II THE CREDIT.................................................... 29
2.1 COMMITMENTS; REDUCTION OR INCREASE IN AGGREGATE COMMITMENT.... 29
2.2 LOANS AND BORROWINGS. (A)..................................... 31
2.3 REQUESTS FOR BORROWINGS....................................... 31
2.4 APPLICABLE MARGINS............................................ 32
2.5 FINAL PRINCIPAL PAYMENT AND EXTENSION OF FACILITY TERMINATION
DATE.......................................................... 33
2.6 FACILITY FEE.................................................. 34
2.7 OTHER FEES.................................................... 34
2.8 PRINCIPAL PAYMENTS............................................ 34
2.9 FUNDING OF BORROWINGS......................................... 34
2.10 INTEREST ELECTIONS............................................ 35
2.11 CHANGES IN INTEREST RATE, ETC................................. 36
2.12 RATES APPLICABLE AFTER DEFAULT................................ 36
2.13 METHOD OF PAYMENT............................................. 37
2.14 NOTES; TELEPHONIC NOTICES..................................... 37
2.15 INTEREST PAYMENT DATES; INTEREST AND FEE BASIS................ 38
2.16 NOTIFICATION OF BORROWINGS, INTEREST RATES AND PREPAYMENTS.... 38
2.17 LENDING INSTALLATIONS......................................... 38
2.18 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT.............. 38
2.19 REPLACEMENT OF LENDERS UNDER CERTAIN CIRCUMSTANCES............ 39
2.20 SWINGLINE LOANS............................................... 39
2.21 COMPETITIVE BID LOANS......................................... 40
2.22 AGENT ADMINISTERED COMPETITIVE BID LOANS...................... 41
2.23 BID LOANS ADMINISTERED BY BORROWER............................ 45
2.24 APPLICATION OF MONEYS RECEIVED................................ 48
2.25 USURY......................................................... 49
2.26 SPECIAL PROVISIONS REGARDING FOREIGN CURRENCY LOANS........... 49
ARTICLE IIA THE LETTER OF CREDIT SUBFACILITY............................. 51
2A.1 OBLIGATION TO ISSUE........................................... 51
2A.2 TYPES AND AMOUNTS............................................. 52
2A.3 CONDITIONS.................................................... 52
2A.4 PROCEDURE FOR ISSUANCE OF FACILITY LETTERS OF CREDIT.......... 53
2A.5 REIMBURSEMENT OBLIGATIONS; DUTIES OF ISSUING LENDER........... 54
2A.6 PARTICIPATION................................................. 56
2A.7 PAYMENT OF REIMBURSEMENT OBLIGATIONS.......................... 58
2A.8 COMPENSATION FOR FACILITY LETTERS OF CREDIT................... 59
2A.9 LETTER OF CREDIT COLLATERAL ACCOUNT........................... 59
2A.10 CONVERSION.................................................... 60
ARTICLE III CHANGE IN CIRCUMSTANCES...................................... 60
3.1 YIELD PROTECTION.............................................. 60
3.2 CHANGES IN CAPITAL ADEQUACY REGULATIONS....................... 61
3.3 AVAILABILITY OF TYPES OF BORROWINGS........................... 62
3.4 FUNDING INDEMNIFICATION....................................... 62
i
TABLE OF CONTENTS
(CONTINUED)
PAGE
----
3.5 TAXES......................................................... 63
3.6 LENDER STATEMENTS; SURVIVAL OF INDEMNITY...................... 65
3.7 CHANGE IN LAW................................................. 65
ARTICLE IV CONDITIONS PRECEDENT.......................................... 66
4.1 INITIAL BORROWING............................................. 66
4.2 EACH BORROWING................................................ 67
ARTICLE V REPRESENTATIONS AND WARRANTIES................................. 68
5.1 EXISTENCE..................................................... 68
5.2 AUTHORIZATION AND VALIDITY.................................... 68
5.3 NO CONFLICT; GOVERNMENT CONSENT............................... 68
5.4 FINANCIAL STATEMENTS; MATERIAL ADVERSE CHANGE................. 69
5.5 TAXES......................................................... 69
5.6 LITIGATION AND GUARANTEE OBLIGATIONS.......................... 69
5.7 ERISA......................................................... 69
5.8 ACCURACY OF INFORMATION....................................... 70
5.9 REGULATION U.................................................. 70
5.10 MATERIAL AGREEMENTS........................................... 70
5.11 COMPLIANCE WITH LAWS.......................................... 70
5.12 OWNERSHIP OF PROPERTIES....................................... 70
5.13 INVESTMENT COMPANY ACT........................................ 70
5.14 RESERVED...................................................... 70
5.15 SOLVENCY...................................................... 71
5.16 INSURANCE..................................................... 71
5.17 REIT STATUS................................................... 71
5.18 ENVIRONMENTAL MATTERS......................................... 72
5.19 UNENCUMBERED ASSETS........................................... 73
ARTICLE VI COVENANTS..................................................... 73
6.1 FINANCIAL REPORTING........................................... 73
6.2 USE OF PROCEEDS............................................... 74
6.3 NOTICE OF DEFAULT............................................. 75
6.4 CONDUCT OF BUSINESS........................................... 75
6.5 TAXES......................................................... 75
6.6 INSURANCE..................................................... 75
6.7 COMPLIANCE WITH LAWS.......................................... 75
6.8 MAINTENANCE OF PROPERTIES..................................... 75
6.9 INSPECTION.................................................... 75
6.10 MAINTENANCE OF STATUS......................................... 76
6.11 RESTRICTED PAYMENTS........................................... 76
6.12 MERGER; SALE OF ASSETS........................................ 76
6.13 SALE AND LEASEBACK............................................ 76
6.14 ACQUISITIONS AND INVESTMENTS.................................. 76
6.15 LIENS......................................................... 77
6.16 AFFILIATES.................................................... 77
6.17 FINANCIAL UNDERTAKINGS........................................ 78
6.18 INDEBTEDNESS AND CASH FLOW COVENANTS.......................... 78
6.19 ENVIRONMENTAL MATTERS......................................... 78
ARTICLE VII DEFAULTS..................................................... 79
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES.............. 81
ii
TABLE OF CONTENTS
(CONTINUED)
PAGE
----
8.1 ACCELERATION.................................................. 81
8.2 AMENDMENTS.................................................... 83
8.3 PRESERVATION OF RIGHTS........................................ 84
ARTICLE IX GENERAL PROVISIONS............................................ 84
9.1 SURVIVAL OF REPRESENTATIONS................................... 84
9.2 GOVERNMENTAL REGULATION....................................... 84
9.3 TAXES......................................................... 84
9.4 HEADINGS...................................................... 84
9.5 ENTIRE AGREEMENT.............................................. 84
9.6 SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT............... 85
9.7 EXPENSES; INDEMNIFICATION..................................... 85
9.8 NUMBERS OF DOCUMENTS.......................................... 85
9.9 ACCOUNTING.................................................... 85
9.10 SEVERABILITY OF PROVISIONS.................................... 85
9.11 NONLIABILITY OF LENDERS....................................... 86
9.12 CHOICE OF LAW................................................. 86
9.13 CONSENT TO JURISDICTION....................................... 86
9.14 WAIVER OF JURY TRIAL.......................................... 86
9.15 NO BANKRUPTCY PROCEEDINGS..................................... 86
9.16 JUDGMENT CURRENCY............................................. 86
9.17 RELEASE OF SUBSIDIARY GUARANTIES.............................. 87
ARTICLE X THE ADMINISTRATIVE AGENT....................................... 87
10.1 APPOINTMENT................................................... 87
10.2 POWERS........................................................ 88
10.3 GENERAL IMMUNITY.............................................. 88
10.4 NO RESPONSIBILITY FOR LOANS, RECITALS, ETC.................... 88
10.5 ACTION ON INSTRUCTIONS OF LENDERS............................. 89
10.6 EMPLOYMENT OF AGENTS AND COUNSEL.............................. 89
10.7 RELIANCE ON DOCUMENTS; COUNSEL................................ 89
10.8 ADMINISTRATIVE AGENT'S REIMBURSEMENT AND INDEMNIFICATION...... 89
10.9 RIGHTS AS A LENDER............................................ 90
10.10 LENDER CREDIT DECISION........................................ 90
10.11 SUCCESSOR ADMINISTRATIVE AGENT................................ 90
ARTICLE XI SETOFF; RATABLE PAYMENTS...................................... 91
11.1 SETOFF........................................................ 91
11.2 RATABLE PAYMENTS.............................................. 91
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS............ 92
12.1 SUCCESSORS AND ASSIGNS........................................ 92
12.2 PARTICIPATIONS................................................ 92
12.3 ASSIGNMENTS................................................... 93
12.4 DISSEMINATION OF INFORMATION.................................. 94
12.5 TAX TREATMENT................................................. 94
12.6 CONFIDENTIALITY............................................... 94
12.7 USA PATRIOT ACT............................................... 95
12.8 CO-AGENTS: LEAD MANAGERS; NO FIDUCIARY RELATIONSHIP........... 95
ARTICLE XIII NOTICES..................................................... 96
13.1 GIVING NOTICE................................................. 96
13.2 CHANGE OF ADDRESS............................................. 96
iii
TABLE OF CONTENTS
(CONTINUED)
PAGE
----
ARTICLE XIV COUNTERPARTS................................................. 96
iv
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
This Seventh Amended and Restated Credit Agreement, dated as of June 29,
2006, is among Developers Diversified Realty Corporation, a corporation
organized under the laws of the State of Ohio ("DDR" or "Parent Borrower"), DDR
PR Ventures LLC, S.E. ("DDRPR") (DDR, DDRPR, and any additional Qualified
Borrower that issues a Qualified Borrower Note in accordance with the terms
hereof are collectively referred to as the "Borrower"), JPMorgan Chase Bank,
N.A., a national banking association, and the several banks, financial
institutions and other entities from time to time parties to this Agreement
(collectively, the "Lenders"), JPMorgan Chase Bank, N.A., not individually, but
as "Administrative Agent", and Bank of America, N.A., not individually, but as
"Syndication Agent", Eurohypo AG, New York Branch, Wachovia Bank, N.A. and Xxxxx
Fargo Bank, N.A., not individually, but as "Documentation Agents", LaSalle Bank
National Association and U.S. Bank National Association, not individually, but
as "Senior Managing Agents", Deutsche Bank AG, New York Branch, ING Real Estate
Finance (USA) LLC, Mizuho Corporate Bank, Ltd., Xxxxxx Xxxxxxx Bank, The Bank
New York, The Bank of Nova Scotia and UBS Loan Finance LLC, not individually,
but as "Managing Agents", and AmSouth Bank, KeyBank National Association, PNC
Bank, National Association, Sovereign Bank, SunTrust Banks, Inc. and Charter One
Bank, N.A., not individually but as "Co-Agents."
RECITALS
A. The Borrower is primarily engaged in the business of purchasing,
developing, owning, operating, leasing and managing retail, office and
industrial properties.
B. DDR is listed on the New York Stock Exchange and is qualified as a real
estate investment trust under Section 856 of the Code.
C. The Borrower, the Administrative Agent, and certain of the Lenders
entered into a Sixth Amended and Restated Credit Agreement dated as of March 30,
2005, as amended (the "Prior Agreement"), pursuant to which the Lenders that are
parties thereto agreed to make loans to the Borrower in the aggregate amount of
up to $1,200,000,000. The Borrower has requested that the Lenders and the
Administrative Agent make certain changes to the Prior Agreement, including but
not limited to allowing for the Facility to be increased in the future to an
amount not to exceed $1,400,000,000. The Administrative Agent and the Lenders
have agreed to do so.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms
-1-
As used in this Agreement:
"ABR Applicable Margin" means, as of any date, the Applicable Margin in
effect on such date with respect to Floating Rate Borrowings and Floating Rate
Loans.
"Absolute Interest Period" means, with respect to a Competitive Bid Loan
made at an Absolute Rate, a period of up to 180 days as requested by Borrower
and confirmed by a Lender but in no event extending beyond the Facility
Termination Date. If an Absolute Interest Period would end on a day which is not
a Business Day, such Absolute Interest Period shall end on the next succeeding
Business Day.
"Absolute Rate" means a fixed rate of interest (rounded to the nearest
1/100 of 1%) for an Absolute Interest Period with respect to a Competitive Bid
Loan offered by a Lender and accepted by the Borrower at such rate.
"Acceptable Jurisdiction" means a place (in addition to the United States
and Puerto Rico) where Unencumbered Assets can be located, which shall be
subject to the approval of the Administrative Agent, based on satisfactory
advice received by it from local counsel in such jurisdiction with respect to
the procedure for enforcement of a U.S. judgment in such jurisdiction, and the
collection of such judgment from assets located there.
"Acquisition" means any transaction, or any series of related transactions,
consummated on or after the date of this Agreement, by which the Borrower or any
of its Subsidiaries (i) acquires any going business or all or substantially all
of the assets of any firm, corporation or division thereof, whether through
purchase of assets, merger or otherwise or (ii) directly or indirectly acquires
(in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency) or a majority (by percentage or voting power) of the outstanding
partnership interests of a partnership.
"Acquisition Asset" means an asset which has not been owned for at least a
period of eighteen months.
"Administrative Agent" or "Agent" means JPMorgan Chase Bank, N.A. in its
capacity as agent for the Lenders pursuant to Article X, and not in its
individual capacity as a Lender, and any successor Administrative Agent
appointed pursuant to Article X, it being understood that matters concerning
Qualified Foreign Global Currency Loans will be administered by X.X. Xxxxxx
Europe Limited.
"Administrative Office" means the New York Administrative Office or the
London Administrative Office, as applicable.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power
-2-
to direct or cause the direction of the management or policies of the controlled
Person, whether through ownership of stock, by contract or otherwise.
"Affiliated Qualified Institution" means one or more banks, finance
companies, insurance or other financial institutions which is an Affiliate of a
Lender and which (A) has (or, in the case of a bank or other financial
institution which is a subsidiary, such bank's or financial institution's parent
has) a rating of its senior unsecured debt obligations of not less than Baa-1 by
Xxxxx'x or a comparable rating by a rating agency acceptable to Administrative
Agent and (B) has total assets in excess of Five Hundred Million Dollars
($500,000,000).
"Aggregate Commitment" means, as of any date, the total of all Domestic
Revolving Commitments and Global Revolving Commitments, which as of the
Agreement Execution Date is $1,200,000,000.
"Agreement" means this Seventh Amended and Restated Credit Agreement, as it
may be amended or modified and in effect from time to time.
"Agreement Execution Date" means the date this Agreement has been fully
executed and delivered by all parties hereto.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day and (ii) the sum of
Federal Funds Effective Rate for such day plus 1/2% per annum.
"Alternative Currency" means any currency that is freely available, freely
transferable and freely convertible into Dollars and in which dealings in
deposits are carried on in the London interbank market, provided that such
currency is reasonably acceptable to the Administrative Agent and the applicable
Issuing Lender.
"Alternative Currency LC Exposure" means at any time, the sum of (a) the
Dollar Equivalent of the aggregate undrawn and unexpired amount of all
outstanding Alternative Currency Letters of Credit at such time plus (b) the
Dollar Equivalent of the aggregate principal amount of all LC Disbursements in
respect of Alternative Currency Letters of Credit that have not yet been
reimbursed at such time.
"Alternative Currency Letter of Credit" means a Facility Letter of Credit
denominated in an Alternative Currency.
"Applicable Margin" means the applicable margin set forth in the table in
Section 2.4 used in calculating the interest rate applicable to the various
Types of Borrowings, which shall vary from time to time in accordance with
Borrower's long term unsecured debt ratings.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Assets Under Development" means, as of any date of determination, all
Projects, expansion areas of existing Projects and redevelopments owned by the
Consolidated Group and the Investment Affiliates which are then treated as
assets under development under GAAP, plus,
-3-
at Borrower's option, assets that (A) previously had been Assets Under
Development and (B) have been placed in service for less than six months, to be
valued for purposes of this Agreement, for each Asset Under Development as
determined individually, at either (i) 100% of then-current book value, as
determined in accordance with GAAP, (a) for each Asset Under Development owned
by members of the Consolidated Group and (b) multiplied by the applicable
Consolidated Group Pro Rata Share for an Asset Under Development owned by an
Investment Affiliate; or (ii) 100% of the value of such Asset Under Development
determined by dividing (x) six months of income from signed leases, multiplied
by two, by (y) .0775 (I) for each Asset Under Development owned by members of
the Consolidated Group and (II) multiplied by the applicable Consolidated Group
Pro Rata Share for an Asset Under Development owned by an Investment Affiliate.
For purposes of the foregoing, income from signed leases shall be equal to 90%
of the revenues payable by the tenant. Once an election of (ii) above is chosen,
the asset will continue to be valued under that method until the asset is no
longer an Asset Under Development.
"Authorized Officer" means any of the Chief Executive Officer, President
and Chief Operating Officer, Executive Vice President, Senior Vice President,
Chief Financial Officer or Vice President and General Counsel of the Borrower,
or any other officer designated in writing by one of the foregoing, acting
singly.
"Borrower" has the meaning set forth in the preamble paragraph of this
Agreement.
"Borrowing" means (a) Loans of the same Class and Type, made, converted or
continued on the same date and, in the case of Eurocurrency Loans, as to which a
single Interest Period is in effect, (b) a Swingline Loan, or (c) a Competitive
Bid Loan.
"Borrowing Date" means a date on which a Borrowing is made hereunder.
"Borrowing Request" is a request by the relevant Borrower for a Borrowing
in accordance with Section 2.3.
"Business Day" means any day that is not a Saturday, Sunday or other day on
which commercial banks in New York City (with respect to Loans denominated in
Dollars) or London (with respect to Loans denominated in a Qualified Foreign
Global Currency and with respect to all LIBOR Rate elections) are authorized or
required by law to remain closed; provided that (a) with respect to any
borrowings, disbursements and payments in respect of and calculations, interest
rates and Interest Periods pertaining to Eurocurrency Loans, such day is also a
day on which banks are open for general business in the principal financial
center of the country of the relevant currency and (b) with respect to notices
and determinations in connection with, and payments of principal and interest
on, Loans denominated in Euros, such day is also a day on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer System
(TARGET) (or, if such clearing system ceases to be operative, such other
clearing system (if any) determined by the Administrative Agent to be a suitable
replacement) is open for settlement of payment in Euros.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests
-4-
in a Person which is not a corporation and any and all warrants or options to
purchase any of the foregoing.
"Capitalized Lease" of a Person means any lease of Property imposing
obligations on such Person, as lessee thereunder, which are required in
accordance with GAAP to be capitalized on a balance sheet of such Person.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with GAAP.
"Cash Equivalents" means, as of any date:
(i) securities issued or directly and fully guaranteed or insured by
the United States Government or any agency or instrumentality
thereof having maturities of not more than one year from such
date;
(ii) mutual funds organized under the United States Investment Company
Act rated AAm or AAm-G by S&P, P-1 by Xxxxx'x and A by Fitch;
(iii) certificates of deposit or other interest-bearing obligations of
a bank or trust company which is a member in good standing of the
Federal Reserve System having a short term unsecured debt rating
of not less than A-1 by S&P, not less than P-1 by Xxxxx'x and F-1
by Fitch (or in each case, if no bank or trust company is so
rated, the highest comparable rating then given to any bank or
trust company, but in such case only for funds invested overnight
or over a weekend) provided that such investments shall mature or
be redeemable upon the option of the holders thereof on or prior
to a date one month from the date of their purchase;
(iv) certificates of deposit or other interest-bearing obligations of
a bank or trust company which is a member in good standing of the
Federal Reserve System having a short term unsecured debt rating
of not less than A-1+ by S&P, and not less than P-1 by Xxxxx'x
and which has a long term unsecured debt rating of not less than
A1 by Xxxxx'x (or in each case, if no bank or trust company is so
rated, the highest comparable rating then given to any bank or
trust company, but in such case only for funds invested overnight
or over a weekend) provided that such investments shall mature or
be redeemable upon the option of the holders thereof on or prior
to a date three months from the date of their purchase;
(v) bonds or other obligations having a short term unsecured debt
rating of not less than A-1+ by S&P and P-1+ by Xxxxx'x and
having a long term debt rating of not less than A1 by Xxxxx'x
issued by or by authority of any state of the United States, any
territory or possession of the United States, including the
Commonwealth of Puerto Rico and agencies thereof, or any
political subdivision of any of the foregoing;
-5-
(vi) repurchase agreements issued by an entity rated not less than
A-1+ by S&P, and not less than P-1 by Xxxxx'x which are secured
by U.S. Government securities of the type described in clause (i)
of this definition maturing on or prior to a date one month from
the date the repurchase agreement is entered into;
(vii) short term promissory notes rated not less than A-1+ by S&P, and
not less than P-1 by Xxxxx'x maturing or to be redeemable upon
the option of the holders thereof on or prior to a date one month
from the date of their purchase; and
(viii) commercial paper (having original maturities of not more than
365 days) rated at least A-1+ by S&P and P-1 by Xxxxx'x and
issued by a foreign or domestic issuer who, at the time of the
investment, has outstanding long-term unsecured debt obligations
rated at least A1 by Xxxxx'x.
"Change in Law" has the meaning set forth in Section 3.1.
"Class" means when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Domestic
Revolving Loans, Global Revolving Loans, Swingline Loans or Competitive Bid
Loans, and, when used in reference to any Commitment, refers to whether such
Commitment is a Domestic Revolving Commitment or Global Revolving Commitment.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means, for each Lender, a Domestic Revolving Commitment, a
Global Revolving Commitment, or any combination thereof.
"Competitive Bid Borrowing Request" is defined in Section 2.22(e).
"Competitive Bid Lender" means a Lender which has a Competitive Bid Loan
outstanding.
"Competitive Bid Loan" is a Loan made pursuant to Section 2.21 hereof.
"Competitive Bid Note" means the new or amended and restated promissory
note payable to the order of each Lender in the form attached hereto as Exhibit
A-2 to be used to evidence any Competitive Bid Loans which such Lender elects to
make (collectively, the "Competitive Bid Notes").
"Competitive Bid Quote" means a response submitted by a Lender to the
Administrative Agent or the Borrower, as the case may be with respect to an
Invitation for Competitive Bid Quotes in the form attached as Exhibit I-3 or
J-2.
-6-
"Competitive Bid Quote Request" means a written request from Borrower to
Administrative Agent in the form attached as Exhibit I-1.
"Competitive LIBOR Margin" means, with respect to any Competitive Bid Loan
for a LIBOR Interest Period, the percentage established in the applicable
Competitive Bid Quote which is to be used to determine the interest rate
applicable to such Competitive Bid Loan.
"Consolidated Capitalization Value" means, as of any date, an amount equal
to the sum of (i) Consolidated Cash Flow for the most recent period of two
consecutive fiscal quarters for which the Borrower has reported results
(excluding any portion of Consolidated Cash Flow attributable to: (A) Assets
Under Development, (B) Projects owned by Investment Affiliates which are
encumbered by First Mortgage Receivables, and (C) Acquisition Assets) multiplied
by two, and divided by 0.0775, plus (ii) Acquisition Assets valued at the higher
of their acquisition cost or capitalization value, such value to be calculated
by dividing (x) the Net Operating Income for such Acquisition Assets for the
most recent period of two consecutive fiscal quarters for which the Borrower has
reported results multiplied by two, by (y) .0775, provided that once an
Acquisition Asset is valued by capitalizing Net Operating Income, that
Acquisition Asset can no longer be valued using its acquisition cost.
"Consolidated Cash Flow" means, for any period, an amount equal to (a)
Funds From Operations for such period plus (b) Consolidated Interest Expense for
such period.
"Consolidated Group" means the Borrower and all Subsidiaries which are
consolidated with it for financial reporting purposes under GAAP.
"Consolidated Group Pro Rata Share" means, with respect to any Investment
Affiliate, the percentage of the total equity ownership interests held by the
Consolidated Group in the aggregate, in such Investment Affiliate determined by
calculating the greater of (i) the percentage of the issued and outstanding
stock, partnership interests or membership interests in such Investment
Affiliate held by the Consolidated Group in the aggregate and (ii) the
percentage of the total book value of such Investment Affiliate that would be
received by the Consolidated Group in the aggregate, upon liquidation of such
Investment Affiliate, after repayment in full of all Indebtedness of such
Investment Affiliate.
"Consolidated Interest Expense" means, for any period without duplication,
the sum of (a) the amount of interest expense, determined in accordance with
GAAP, of the Consolidated Group for such period attributable to Consolidated
Outstanding Indebtedness during such period plus (b) the Consolidated Group Pro
Rata Share of any interest expense, determined in accordance with GAAP, of any
Investment Affiliate, for such period, whether recourse or non-recourse less (c)
with respect to each consolidated Subsidiary of the Borrower in which the
Borrower does not directly or indirectly hold a 100% ownership interest, a
percentage of the interest expense attributable to such consolidated Subsidiary
which is included under clause (a) of this definition and which is not related
to Indebtedness which is a Guarantee Obligation of the Borrower equal to the
percentage ownership in such consolidated Subsidiary which is not held either
(i) directly or indirectly by the Borrower, or (ii) by holders of operating
partnership units in such consolidated Subsidiary which are convertible into
stock of the Borrower.
-7-
"Consolidated Market Value" means, as of any date, an amount equal to the
sum of (a) the Consolidated Capitalization Value as of such date, plus (b) the
value of Unrestricted Cash and Cash Equivalents, plus (c) the lesser of (i) the
value of Assets Under Development, or (ii) ten percent (10%) of the Consolidated
Capitalization Value plus (d) the lesser of (i) 100% of the then-current value
under GAAP of all First Mortgage Receivables or (ii) five percent (5%) of the
Consolidated Capitalization Value, plus (e) the lesser of (i) 100% of the
then-current book value, as determined in accordance with GAAP, of Developable
Land, or (ii) 5% of total Consolidated Capitalization Value plus (f) cash from
like-kind exchanges on deposit with a qualified intermediary (provided that the
amount included in Consolidated Market Value pursuant to this clause (f) shall
not exceed 10% of the Consolidated Capitalization Value).
"Consolidated Net Income" means, for any period, consolidated net income
(or loss) of the Consolidated Group for such period determined on a consolidated
basis in accordance with GAAP; plus that portion of any amount deducted as
minority equity interest in calculating such consolidated net income which is
attributable to minority interest holders holding operating partnership units in
a member of the Consolidated Group which are convertible into stock in the
Borrower, but provided that there shall be excluded the income (or deficit) of
any other Person accrued prior to the date it becomes a Subsidiary of the
Borrower or is merged into or consolidated with the Borrower or any of its
Subsidiaries.
"Consolidated Outstanding Indebtedness" means, as of any date of
determination, without duplication, the sum of (a) all Indebtedness of the
Consolidated Group outstanding at such date, determined on a consolidated basis
in accordance with GAAP, plus (b) the applicable Consolidated Group Pro Rata
Share of any Indebtedness of each Investment Affiliate other than Indebtedness
of such Investment Affiliate to a member of the Consolidated Group, less (c)
with respect to each consolidated Subsidiary of the Borrower in which the
Borrower does not directly or indirectly hold a 100% ownership interest, a
percentage of any Indebtedness of such consolidated Subsidiary which is not a
Guarantee Obligation of the Borrower equal to the percentage ownership interest
in such consolidated Subsidiary which is not held directly or indirectly by the
Borrower.
"Consolidated Secured Indebtedness" means, as of any date of determination,
without duplication, the sum of (a) the aggregate principal amount of that
portion of the Consolidated Outstanding Indebtedness which is secured by any
Lien on the Property of Borrower or its Subsidiaries, without regard to
recourse, plus (b) the excess, if any, over $25,000,000, of the sum of (x) the
aggregate principal amount of all Unsecured Indebtedness for borrowed money
(including Guarantee Obligations for borrowed money) of the Subsidiaries of the
Borrower, determined on a consolidated basis in accordance with GAAP, excluding
(I) the Indebtedness identified on Schedule 4 and (II) any Indebtedness of a
Subsidiary that is a Qualified Borrower or a Subsidiary Guarantor and (y) a
percentage of the aggregate principal amount of all Indebtedness of each
Investment Affiliate that is secured by any Lien on the Property of that
Investment Affiliate equal to the greater of (i) the percentage of such
Indebtedness for which any member of the Consolidated Group is liable and (ii)
the Consolidated Group Pro Rata Share of such Investment Affiliate.
"Consolidated Unsecured Indebtedness" means, as of any date of
determination, the aggregate principal amount of all Unsecured Indebtedness of
the Consolidated Group
-8-
outstanding at such date, including without limitation all the outstanding
Indebtedness under this Agreement as of such date, determined on a consolidated
basis in accordance with GAAP.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower or any of its Subsidiaries, are treated as a
single employer under Section 414 of the Code.
"Conversion/Continuation Notice" is defined in Section 2.10.
"Currencies"; means the then lawful currency of a particular nation at such
time whether or not the name of such currency is the same as it was on the date
of this Agreement.
"Default" means an event described in Article VII.
"Defaulting Lender" means any Lender which fails or refuses to perform its
obligations under this Agreement within the time period specified for
performance of such obligation, or, if no time frame is specified, if such
failure or refusal continues for a period of five Business Days after written
notice from the Administrative Agent; provided that if such Lender cures such
failure or refusal, such Lender shall cease to be a Defaulting Lender.
"Default Rate" means the interest rate which may apply during the
continuance of a Default pursuant to Section 2.12.
"Designated Lender" means any Person who has been designated by a Lender to
fund Competitive Bid Loans pursuant to a Designation Agreement in the form
attached hereto as Exhibit L.
"Developable Land" means land which is appropriately zoned, has access to
all necessary utilities and has access to publicly dedicated streets.
"Dollar Equivalent" means, on any date of determination, (a) for the
purposes of determining compliance with Article VI or the existence of a Default
under Article VII (other than as set forth in clause (b) below) with respect to
any amount denominated in a currency other than Dollars, the equivalent in
Dollars of such amount, determined in good faith by the Parent Borrower in a
manner consistent with the way such amount is or would be reflected on the
Parent Borrower's audited consolidated financial statements for the fiscal year
in which such determination is made and (b) solely with respect to determining
the outstanding amount hereunder denominated in an Alternative Currency or a
Qualified Foreign Global Currency, the amount of Dollars that may be purchased
with such amount of such currency at the Exchange Rate (determined as of the
most recent Exchange Rate Date) with respect to such currency on such date.
"Dollars" or "$" refers to lawful money of the United States of America.
"Domestic Revolving Commitment" means with respect to each Lender, the
commitment, if any, of such Lender to make Domestic Revolving Loans and to
acquire participations in Facility Letters of Credit and Swingline Loans
hereunder, as such commitment
-9-
may be changed from time to time pursuant to this Agreement. The amount of each
Lender's Domestic Revolving Commitment as of the date hereof is set forth on
Schedule 1 or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Domestic Revolving Commitment, as applicable. The
aggregate amount of the Domestic Revolving Commitments is $1,000,000,000 as of
the Agreement Execution Date.
"Domestic Revolving Exposure" means with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Domestic Revolving
Loans and its LC Exposure and Swingline Exposure at such time.
"Domestic Revolving Facility" is defined in the definition of Facility.
"Domestic Revolving Lender" means a Lender with a Domestic Revolving
Commitment or with Domestic Revolving Exposure.
"Domestic Revolving Loan" means a Loan made pursuant to Section 2.1(i).
"Domestic Subsidiary" means any Subsidiary other than a Foreign Subsidiary.
"EMU" means Economic and Monetary Union as contemplated in the Treaty.
"Environmental Laws" means any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect, in each case to the extent the
foregoing are applicable to the Borrower or any Subsidiary or any of their
respective assets or Projects.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Equity Value" means, with respect to a Subsidiary owned and in operation
for a period of two or more consecutive full fiscal quarters after the Agreement
Execution Date, by the Borrower or one of its other Subsidiaries, an amount
equal to (A) the product of (i) the sum of net income (or loss) for the most
recent two consecutive fiscal quarters without giving effect to depreciation and
amortization, gains or losses from extraordinary items, gains or losses on sales
of real estate, and gains or losses on investments in marketable securities for
such period, plus the amount of interest expense for such period on the
aggregate principal amount of the Indebtedness of such Subsidiary, multiplied by
(ii) two, divided by (B) 0.0775, and then minus (C) Indebtedness of the
Subsidiary as of the date of determination. For any Subsidiary not owned and in
operation for two fiscal quarters, until it or its Properties have been owned
and operated by the Borrower or one of its other Subsidiaries for two or more
consecutive full fiscal quarters, "Equity Value" shall mean the Borrower's
estimated annual Net Operating Income for the Projects owned by such Subsidiary
based on leases in existence at the date such Subsidiary is formed or purchased
divided by 0.0775, and then minus the Indebtedness of such Subsidiary as of the
date of determination.
-10-
"Euro" means the single currency of participating member states introduced
in accordance with the provisions of Article 109(1)4 of the Treaty and, in
respect of all payments to be made under this Agreement in Euros, means
immediately available, freely transferable funds.
"Eurocurrency" means when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the LIBOR Rate.
"Exchange Rate" means, on any day, for purposes of determining the Dollar
Equivalent of any other currency, the rate at which such other currency may be
exchanged into Dollars at the time of determination on such day on the Reuters
WRLD Page for such currency. In the event that such rate does not appear on any
Reuters WRLD Page, the Exchange Rate shall be determined by reference to such
other publicly available service for displaying exchange rates as may be agreed
upon by the Administrative Agent and the Borrower, or, in the absence of such an
agreement, such Exchange Rate shall instead be the arithmetic average of the
spot rates of exchange of the Administrative Agent in the market where its
foreign currency exchange operations in respect of such currency are then being
conducted, at or about such time as the Administrative Agent shall elect after
determining that such rates shall be the basis for determining the Exchange
Rate, on such date for the purchase of Dollars for delivery two Business Days
later; provided that if at the time of any such determination, for any reason,
no such spot rate is being quoted, the Administrative Agent may use any
reasonable method it deems appropriate to determine such rate, and such
determination shall be conclusive absent manifest error.
"Exchange Rate Date" means, if on such date any outstanding Revolving
Exposure is (or any Revolving Exposure that has been requested at such time
would be) denominated in a currency other than Dollars, each of:
(a) the last Business Day of each calendar month,
(b) if a Default has occurred and is continuing, the date a Sharing
Event occurs and any other Business Day designated as an Exchange Rate Date
by the Administrative Agent in its sole discretion, and
(c) each date (with such date to be reasonably determined by the
Administrative Agent) that is on or about the effective date of (i) a
Borrowing Request or a Conversion/Continuation Notice with respect to any
Borrowing or (ii) each request for the issuance, amendment, renewal or
extension of any Facility Letter of Credit denominated in a currency other
than Dollars.
"Excluded Taxes" means, in the case of each Lender or applicable Lending
Installation and the Administrative Agent, taxes imposed on its overall net
income, and franchise taxes imposed on it, by any jurisdiction with taxing
authority over the Lender.
"Extension Request" is defined in Section 2.5.
"Facility" means each of (a) the Domestic Revolving Commitments and the
extensions of credit made thereunder (the "Domestic Revolving Facility") and (b)
the Global Revolving
-11-
Commitments and the Global Revolving Loans made hereunder (the "Global Revolving
Facility" and, together with the Domestic Revolving Facility, the "Revolving
Facility" or "Facility").
"Facility Fee" is defined in Section 2.6.
"Facility Fee Rate" is, as of any date, the percentage established in
accordance with the terms of Section 2.4.
"Facility Letter of Credit" means a Letter of Credit issued under the
Domestic Revolving Facility.
"Facility Letter of Credit Fee" is defined in Section 2A.8.
"Facility Termination Date" means June 29, 2010, subject to Borrower's
right to extend for a one (1) year period, as described in Section 2.5.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 11 a.m. (New York
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"Financeable Ground Lease" means, a ground lease satisfactory to the
Required Lenders and the Administrative Agent's counsel in their reasonable
discretion, which must provide protections for a potential leasehold mortgagee
("Mortgagee") which include, among other things (i) a remaining term, including
any optional extension terms exercisable unilaterally by the tenant, of no less
than 25 years from the Agreement Execution Date, (ii) that the ground lease will
not be terminated until the Mortgagee has received notice of a default, has had
a reasonable opportunity to cure or complete foreclosure, and has failed to do
so, (iii) provision for a new lease on the same terms to the Mortgagee as tenant
if the ground lease is terminated for any reason, (iv) non-merger of the fee and
leasehold estates, (v) transferability of the tenant's interest under the ground
lease without any requirement for consent of the ground lessor unless based on
reasonable objective criteria as to the creditworthiness or line of business of
the transferee or delivery of customary assignment and assumption agreements
from the transferor and transferee, and (vi) that insurance proceeds and
condemnation awards (from the fee interest as well as the leasehold interest)
will be applied pursuant to the terms of the applicable leasehold mortgage.
"Financial Contract" of a Person means (i) any exchange - traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics, or (ii) any Rate Management
Transaction.
"Financial Undertaking" of a Person means (i) any transaction which is the
functional equivalent of or takes the place of borrowing but which does not
constitute a liability on the consolidated balance sheet of such Person, or (ii)
any agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates,
-12-
exchange rates or forward rates applicable to such party's assets, liabilities
or exchange transactions, including, but not limited to, interest rate exchange
agreements, forward currency exchange agreements, interest rate cap or collar
protection agreements, forward rate currency or interest rate options.
"First Mortgage Receivable" means any Indebtedness owing to a member of the
Consolidated Group which is secured by a first-priority mortgage or deed of
trust on commercial real estate having a value in excess of the amount of such
Indebtedness and which has been designated by the Borrower as a "First Mortgage
Receivable" in its most recent compliance certificate.
"Fitch" means Fitch Investor Services, Inc. and its successors.
"Fixed Charges" shall mean, for any period, the sum of (i) Consolidated
Interest Expense, (ii) all scheduled principal payments due on account of
Consolidated Outstanding Indebtedness (excluding balloon payments), (iii) all
dividends payable on account of preferred stock or preferred operating
partnership units of the Borrower or any other Person in the Consolidated Group
and (iv) all ground lease payments to the extent not deducted as an expense in
calculating Consolidated Cash Flow.
"Fixed Rate" means the Absolute Rate or the LIBOR Rate.
"Fixed Rate Borrowing" means a Borrowing which bears interest at a Fixed
Rate.
"Fixed Rate Loan" means a Loan which bears interest at a Fixed Rate.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day plus (ii) ABR Applicable Margin for such day,
in each case changing when and as the Alternate Base Rate changes.
"Floating Rate Borrowing" means a Borrowing which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"Foreign Subsidiary" means any Subsidiary (a) that is organized under the
laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia or (b) that is a Foreign Subsidiary Holdco.
"Foreign Subsidiary Holdco" means any Domestic Subsidiary that has no
material assets other than the Capital Stock of one or more Foreign
Subsidiaries, and other assets relating to an ownership interest in any such
Capital Stock.
"Funded Percentage" means, with respect to any Lender at any time, a
percentage equal to a fraction the numerator of which is the amount actually
disbursed and outstanding to Borrower by such Lender at such time (including
Swingline Loans and Competitive Bid Loans), and the denominator of which is the
total amount disbursed and outstanding to Borrower by all of the Lenders at such
time (including Swingline Loans and Competitive Bid Loans).
-13-
"Funds From Operations" means, for any period, the sum of (i) Consolidated
Net Income for such period, excluding (A) gains (losses) on sales of property,
(B) non-recurring charges and extraordinary items, and (C) non-cash charges
(including, without limitation, depreciation and amortization, and equity gains
(losses) from each Investment Affiliate included therein, but excluding any
amortization of deferred finance costs), plus (ii) the applicable Consolidated
Group Pro Rata Share of funds from operations of each Investment Affiliate that
is due to the Consolidated Group for such period, all determined on a consistent
basis. With regard to the foregoing sentence, for each consolidated Subsidiary
of the Borrower in which the Borrower does not directly or indirectly hold a
100% ownership interest, each of clauses (A), (B) and (C) shall exclude the
prorata share of such item attributable to minority interest holders which do
not hold operating partnership units convertible to stock in the Borrower.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect from time to time, applied in a manner consistent with
that used in preparing the financial statements referred to in Section 6.1.
"Global Revolving Facility" is defined in the definition of Facility.
"Global Revolving Commitment" means with respect to each Lender, the
commitment, if any, of such Lender to make Global Revolving Loans hereunder,
expressed as an amount representing the maximum aggregate amount of such
Lender's Global Revolving Exposure hereunder, as such commitment may be changed
from time to time pursuant to this Agreement. The amount of each Lender's Global
Revolving Commitment as of the date hereof is set forth on Schedule 1, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Global Revolving Commitment, as applicable. The aggregate amount of the Global
Revolving Commitments is $200,000,000 as of the date hereof.
"Global Revolving Exposure" means with respect to any Lender at any time,
the sum of (a) the aggregate outstanding principal amount of such Lender's
Global Revolving Loans at such time that are denominated in Dollars plus (b) the
Dollar Equivalent of the aggregate outstanding principal amount of such Lender's
Global Revolving Loans at such time that are denominated in Qualified Foreign
Global Currencies.
"Global Revolving Lender" means a Lender with a Global Revolving Commitment
or with Global Revolving Exposure.
"Global Revolving Loan" means a Loan made pursuant to Section 2.1(ii).
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Guarantee Obligation" means, as to any Person (the "guaranteeing person"),
any obligation (determined without duplication) of (a) the guaranteeing person
or (b) another Person (including, without limitation, any bank under any Letter
of Credit) to induce the creation of which the guaranteeing person has issued a
reimbursement, counter-indemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or
other obligations (the "primary obligations") of any other third Person (the
"primary
-14-
obligor") in any manner, whether directly or indirectly, including, without
limitation, any obligation of the guaranteeing 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 (1) for the purchase or payment of any such primary obligation or (2) 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, 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 owner of any such primary obligation against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the maximum stated amount of the primary obligation
relating to such Guarantee Obligation (or, if less, the maximum stated liability
set forth in the instrument embodying such Guarantee Obligation), provided, that
in the absence of any such stated amount or stated liability, the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in good
faith.
"Indebtedness" of any Person at any date means without duplication, (a) all
indebtedness of such Person for borrowed money including without limitation any
repurchase obligation or liability of such Person with respect to securities,
accounts or notes receivable sold by such Person, (b) all obligations of such
Person for the deferred purchase price of property or services (other than
current trade liabilities incurred in the ordinary course of business and
payable in accordance with customary practices), to the extent such obligations
constitute indebtedness for the purposes of GAAP, (c) any other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar instrument,
(d) all Capitalized Lease Obligations, (e) all obligations of such Person in
respect of acceptances issued or created for the account of such Person, (f) all
Guarantee Obligations of such Person (excluding in any calculation of
consolidated Indebtedness of the Consolidated Group, Guarantee Obligations of
one member of the Consolidated Group in respect of primary obligations of any
other member of the Consolidated Group), (g) all reimbursement obligations of
such Person for letters of credit and other contingent liabilities, (h) any Net
Xxxx-to-Market Exposure and (i) all liabilities secured by any lien (other than
liens for taxes not yet due and payable) on any property owned by such Person
even though such Person has not assumed or otherwise become liable for the
payment thereof.
"Interest Period" means an Absolute Interest Period or a LIBOR Interest
Period.
"Investment" of a Person means any loan, advance (other than commission,
travel and similar advances to officers and employees made in the ordinary
course of business), extension of credit (other than accounts receivable arising
in the ordinary course of business on terms customary in the trade), deposit
account or contribution of capital by such Person to any other Person or any
investment in, or purchase or other acquisition of, the stock, partnership
interests, notes, debentures or other securities of any other Person made by
such Person.
"Investment Affiliate" means any Person in which the Consolidated Group,
directly or indirectly, has an ownership interest, whose financial results are
not consolidated under GAAP with the financial results of the Consolidated
Group.
-15-
"Invitation for Competitive Bid Quotes" means a written notice to the
Lenders from the Administrative Agent in the form attached as Exhibit I-2 for
Competitive Bid Loans made pursuant to Section 2.22, and a written notice to the
Lenders from the Borrower in the form of Exhibit J-1 for Competitive Bid Loans
made pursuant to Section 2.23.
"Issuance Date" is defined in Section 2A.4.
"Issuance Notice" is defined in Section 2A.4.
"Issuing Lender" means, with respect to each Facility Letter of Credit, the
Lender which issues such Facility Letter of Credit.
"Joint Lead Arranger" means JPMorgan Securities, Inc. and Banc of America
Securities LLC.
"JPMorgan Chase Bank" means JPMorgan Chase Bank, N.A., in its individual
capacity and its successors.
"Judgment Currency" is defined in Section 9.16(a).
"Judgment Currency Conversion Date" is defined in Section 9.16(a).
"LC Disbursement" means a payment made by the applicable Issuing Lender
pursuant to a Facility Letter of Credit.
"LC Exposure" means at any time, the Dollar Equivalent of the sum of (a)
the aggregate undrawn amount of all outstanding Facility Letters of Credit, plus
(b) the aggregate amount of all LC Disbursements that have not yet been
reimbursed by or on behalf of the relevant Borrower at such time. The LC
Exposure of any Domestic Revolving Lender at any time shall be its Percentage of
the total LC Exposure at such time.
"Lenders" means the lending institutions listed on the signature pages of
this Agreement, their respective successors and assigns, any other lending
institutions that subsequently become parties to this Agreement and the
Designated Lenders, if any, provided that the term "Lender" shall exclude each
such Designated Lender when used in the reference to the Commitments or terms
relating to the Commitments.
"Lending Installation" means, with respect to a Lender, any office, branch,
subsidiary or affiliate of such Lender.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Letter of Credit Collateral Account" is defined in Section 2A.9.
"Letter of Credit Request" is defined in Section 2A.4.
-16-
"LIBOR Applicable Margin" means, as of any date with respect to any LIBOR
Interest Period, the Applicable Margin in effect for such LIBOR Interest Period
as determined in accordance with Section 2.4 hereof.
"LIBOR Base Rate" means, with respect to any Eurocurrency Borrowing, for
any Interest Period, the rate appearing on the relevant page of the Telerate
screen (or any successor to or substitute for such screen, providing rate
quotations comparable to those currently provided on such page of such screen,
as determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to deposits in Dollars or the
relevant Qualified Global Currency, as the case may be, in the relevant
interbank market) at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period, as the rate for deposits in
such currency with a maturity comparable to such Interest Period. If such rate
is not available at such time for any reason, and in all cases with regard to
sterling-denominated Loans, the "LIBOR Base Rate" with respect to such
Eurocurrency Borrowing for such Interest Period shall be the rate at which
deposits in the lowest multiple of 1,000,000 units of the relevant currency, the
Dollar Equivalent of which is at least $5,000,000 and for a maturity comparable
to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"LIBOR Interest Period" means a period of one, two, three or six months (or
such shorter period as may be approved by the Lenders) commencing on a Business
Day selected by the Borrower pursuant to this Agreement. Such LIBOR Interest
Period shall end on (but exclude) the day which corresponds numerically to such
date one, two, three or six months thereafter (or such shorter period as may be
approved by the Lenders), provided, however, that if there is no such
numerically corresponding day in such next, second, third or sixth succeeding
month, such LIBOR Interest Period shall end on the last Business Day of such
next, second, third or sixth succeeding month. If a LIBOR Interest Period would
otherwise end on a day which is not a Business Day, such LIBOR Interest Period
shall end on the next succeeding Business Day, provided, however, that if said
next succeeding Business Day falls in a new calendar month, such LIBOR Interest
Period shall end on the immediately preceding Business Day.
"LIBOR Rate" means, with respect to a Eurocurrency Borrowing for the
relevant LIBOR Interest Period, the sum of (i) the quotient of (a) the LIBOR
Base Rate applicable to such LIBOR Interest Period, divided by (b) one minus the
Reserve Requirement (expressed as a decimal) applicable to such LIBOR Interest
Period, plus (ii) in the case of ratable Eurocurrency Borrowings, the LIBOR
Applicable Margin in effect from time to time during such LIBOR Interest Period,
or in the case of Eurocurrency Borrowings made as Competitive Bid Loans, the
Competitive LIBOR Margin established in the Competitive Bid Quote applicable to
such Competitive Bid Loan. The LIBOR Rate shall be rounded to the next higher
1/100 of 1% if the rate is not a multiple of 1/100 of 1%.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the
-17-
interest of a vendor or lessor under any conditional sale, Capitalized Lease or
other title retention agreement).
"Loan" means, with respect to a Lender, such Lender's portion of any
Borrowing.
"Loan Documents" means this Agreement, the Notes (including the Qualified
Borrower Notes), the Qualified Borrower Guaranty and any other document from
time to time evidencing or securing indebtedness incurred by the Borrower under
this Agreement, as any of the foregoing may be amended or modified from time to
time.
"Loan Party" means Parent Borrower, any Qualified Borrower, or any
Subsidiary providing a guaranty of the Obligations.
"London Administrative Office" means the Administrative Agent's office
located at 000 Xxxxxx Xxxx, Xxxxxx XX0X 0XX, Attention of Agency Department, or
such other office in London as may be designated by the Administrative Agent by
written notice to the Borrower and the Lenders.
"Management Fees" means, collectively, all fees and income earned by the
Borrower and any of its Wholly-Owned Subsidiaries for the applicable period in
connection with the management, development, and operations of a Property
including, without limitation, all property management fees, asset management
fees, leasing and sales commissions, development fees, construction management
fees, tenant coordination fees, legal fees, accounting fees, tax preparation
fees, consulting fees, and financing or debt placement fees.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property or condition (financial or otherwise) of the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the Borrower to perform its
obligations under the Loan Documents, or (iii) the validity or enforceability of
any of the Loan Documents.
"Materials of Environmental Concern" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Maximum Legal Rate" means the maximum nonusurious interest rate, if any,
that at any time or from time to time may be contracted for, taken, reserved,
charged or received on the indebtedness evidenced by the Note and as provided
for herein or in the Note or other Loan Documents, under the laws of such state
or states whose laws are held by any court of competent jurisdiction to govern
the interest rate provisions of the Loan.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
-18-
"Multi-Property Entity" is a Subsidiary that owns more than one Project,
either directly or indirectly through the ownership of Capital Stock in another
Subsidiary of Borrower, and owns an interest in any Capital Stock in a
Subsidiary of Borrower that owns fee simple title in, or ground leases an asset
that is not an Unencumbered Asset.
"Net Xxxx-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Management Transactions or any other
Financial Contract. "Unrealized losses" means the fair market value of the cost
to such Person of replacing such Rate Management Transaction or other Financial
Contract as of the date of determination (assuming the Rate Management
Transaction or other Financial Contract were to be terminated as of that date),
and "unrealized profits" means the fair market value of the gain to such Person
of replacing such Rate Management Transaction or other Financial Contract as of
the date of determination (assuming such Rate Management Transaction or other
Financial Contract were to be terminated as of that date).
"Net Operating Income" means, with respect to any Project for any period,
"property rental and other income" (as determined by GAAP) attributable to such
Project accruing for such period minus the amount of all expenses (as determined
in accordance with GAAP) incurred in connection with and directly attributable
to the ownership and operation of such Project for such period, including,
without limitation, Property Management Fees and amounts accrued for the payment
of real estate taxes and insurance premiums, but excluding interest expense or
other debt service charges and any non-cash charges such as depreciation or
amortization of financing costs. As used herein "Property Management Fees",
means, with respect to each Project for any period, an amount equal to three
percent (3%) of the aggregate base rent and percentage rent due and payable
under leases with tenants at such Project.
"New York Administrative Office" means the Administrative Agent's office
designated on its signature page to this Agreement or such other office in New
York City as may be designated by the Administrative Agent by written notice to
the Borrower and the Lenders.
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means a new (in the case of Lenders not parties to the Prior
Agreement) or an amended and restated (in the case of Lenders parties to the
Prior Agreement) promissory note, in substantially the form of Exhibit A-1
hereto, duly executed by the Borrower and payable to the order of a Lender and
in the case of a Qualified Borrower, a Qualified Borrower Note, including in
each case any amendment, modification, renewal or replacement of such promissory
note.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligation Currency" is defined in Section 9.16(a).
"Obligations" means the Borrowings, the LC Exposures and all accrued and
unpaid fees and all other obligations of Borrower to the Administrative Agent or
the Lenders, or any of them, arising under this Agreement or any of the other
Loan Documents.
"Other Taxes" is defined in Section 3.5(ii).
-19-
"Participants" is defined in Section 12.2.1.
"Passive Non-Real Estate Investments" means stock or other equity interests
in or debt of entities not primarily involved in commercial real estate
development or ownership.
"Payment Date" means, with respect to the payment of interest accrued on
any Borrowing, the first day of each calendar month.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Percentage" with respect to any Domestic Revolving Lender, the percentage
of the total Domestic Revolving Commitments represented by such Lender's
Domestic Revolving Commitment. If the Domestic Revolving Commitments have
terminated or expired, the Percentages shall be determined based upon the
Domestic Revolving Commitments most recently in effect, giving effect to any
assignments.
"Permitted Acquisitions" are defined in Section 6.14.
"Permitted Liens" are defined in Section 6.15.
"Person" means any natural person, corporation, firm, joint venture,
partnership, association, enterprise, trust or other entity or organization, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Portfolio Acquisition" means an acquisition by Borrower and/or a
Subsidiary of Projects with an aggregate purchase price in excess of
$250,000,000 in a single transaction or series of related transactions.
"Prime Rate" means a rate per annum equal to the prime rate of interest
publicly announced from time to time by JPMorgan Chase Bank or its parent as its
prime rate (which is not necessarily the lowest rate charged to any customer),
changing when and as said prime rate changes. In the event that there is a
successor to the Administrative Agent by merger, or the Administrative Agent
assigns its duties and obligations to an Affiliate, then the term "Prime Rate"
as used in this Agreement shall mean the prime rate, base rate or other
analogous rate of the new Administrative Agent.
"Prior Agreement" is defined in Recital C.
"Project" means any real estate asset owned by Borrower or any of its
Subsidiaries or any Investment Affiliate, and operated or intended to be
operated as a retail, office or industrial property.
"Property" of a Person means any and all property, whether real, personal,
tangible, intangible, or mixed, of such Person, or other assets owned, leased or
operated by such Person.
-20-
"Purchasers" is defined in Section 12.3.1.
"Qualified Borrower" means DDR PR Ventures LLC, S.E. and any other
Wholly-Owned Subsidiary of Borrower which has complied with the requirements set
forth in Section 2.1 for being a Borrower hereunder, the Indebtedness of which,
in all cases, shall be guaranteed by DDR.
"Qualified Borrower Competitive Bid Note" means a promissory note, in
substantially the same form of Exhibit O hereto, duly executed by the Qualified
Borrower and payable to the order of the Administrative Agent on behalf of the
Lenders to be used to evidence any Competitive Bid Loans which a Lender elects
to make to a Qualified Borrower, including any amendment, modification renewal
or replacement of such promissory note.
"Qualified Borrower Guaranty" means a full and unconditional guaranty of
payment in the form of Exhibit M attached hereto, enforceable against DDR for
the payment of a Qualified Borrower's debt or obligation to the Lenders pursuant
to this Agreement.
"Qualified Borrower Note" means a promissory note, in substantially the
same form of Exhibit N hereto, duly executed by the Qualified Borrower and
payable to the order of the Administrative Agent on behalf of a Lender,
including any amendment, modification renewal or replacement of such promissory
note.
"Qualified Foreign Global Currency" means any Qualified Global Currency
other than Dollars.
"Qualified Global Currency" means (a) Dollars (borrowed in New York City),
and Sterling, Euros and Yen (borrowed in London), and (b) any other eurocurrency
designated by the Borrower with the consent of the Administrative Agent and each
Global Revolving Lender.
"Qualified Global Currency Borrowing" means any Borrowing comprised of
Qualified Global Currency Loans.
"Qualified Global Currency Loan" means any Loan denominated in a Qualified
Global Currency.
"Qualified Jointly-Owned Subsidiary" means a Subsidiary which (i) is not a
Wholly-Owned Subsidiary, and (ii) is governed by organizational documents which
expressly authorize the Borrower or the Wholly-Owned Subsidiary which is its
general partner or managing member to cause such Subsidiary to guaranty, or
pledge such Subsidiary's assets to secure, indebtedness of the Borrower.
"Rate Management Transaction" means any transaction (including an agreement
with respect thereto) now existing or hereafter entered into by the Borrower
which is a rate swap, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap, equity or equity index option,
bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
these transactions) or any combination
-21-
thereof, whether linked to one or more interest rates, foreign currencies,
commodity prices, equity prices or other financial measures.
"Recourse Indebtedness" means any Indebtedness of Borrower or any of its
Subsidiaries with respect to which the liability of the obligor is not limited
to the obligor's interest in specified assets securing such Indebtedness,
subject to customary limited exceptions for certain acts or types of liability.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Reimbursement Obligations" means at any time, the aggregate of the
Obligations of the Borrower to the Lenders, the Issuing Lender and the
Administrative Agent in respect of all unreimbursed payments or disbursements
made by the Lenders, the Issuing Lender and the Administrative Agent under or in
respect of the Facility Letters of Credit.
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Required Facility Lenders" means with respect to any Facility, the holders
of more than 66 2/3% of the Revolving Commitments for the applicable Facility
(or, in the case of the termination of the Revolving Commitments, the holders of
more than 66 2/3% of the aggregate unpaid principal amount of Revolving Exposure
outstanding under such Facility, except that for purposes of determining
Required Facility Lenders for the Domestic Revolving Facility after the
termination of the Commitments, the outstanding Competitive Bid Loans of the
Lenders shall be included in their Revolving Exposures.
"Required Lenders" means at any time, Lenders having Revolving Exposures,
and unused Commitments representing at least 66-2/3% of the sum of the total
Revolving Exposures, and unused Commitments at such time, provided that, for
purposes of declaring the Loans to be due and payable pursuant to Article VIII,
and for all purposes after the Loans become due and payable pursuant to Article
VIII or the Commitments expire or terminate, the outstanding Competitive Bid
Loans of the Lenders shall be included in their respective Revolving Exposures
in determining the Required Lenders.
-22-
"Reserve Requirement" means, with respect to a Eurocurrency Loan and LIBOR
Interest Period, that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Federal Reserve Board or other governmental
authority or agency having jurisdiction with respect thereto for determining the
maximum reserves (including, without limitation, basic, supplemental, marginal
and emergency reserves) for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D) maintained by a member bank of the
Federal Reserve System.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any Capital Stock in the
Borrower or any Subsidiary, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any such Capital Stock in the Borrower or any option, warrant or other right to
acquire any such Capital Stock in the Borrower, or any transaction that has a
substantially similar effect.
"Revolving Commitments" means the aggregate of the Domestic Revolving
Commitments and the Global Revolving Commitments.
"Revolving Exposure" means with respect to any Lender at any time, the sum
of such Lender's Domestic Revolving Exposure and Global Revolving Exposure.
"Revolving Facility" is defined in the definition of Facility.
"Revolving Lenders" means Domestic Revolving Lenders and Global Revolving
Lenders.
"Revolving Loans" means Domestic Revolving Loans and Global Revolving
Loans.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Sharing Event" means (i) the occurrence of a Default under Section 7.7 or
7.8, (ii) the termination of the Commitments pursuant to Section 8.1, or (iii)
the acceleration of the maturity date of the Loans by the Administrative Agent
upon the occurrence of a Default.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"S&P" means Standard & Poor's Ratings Group and its successors.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, association, joint venture or similar business
organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of the Borrower.
-23-
"Subsidiary Guarantor" means a Subsidiary which has delivered a Subsidiary
Guaranty.
"Subsidiary Guaranty" means a guarantee of all obligations delivered by a
Subsidiary if necessary pursuant to the definition of Unencumbered Assets or
Consolidated Secured Indebtedness.
"Substantial Portion" means, with respect to the Property of the Borrower
and its Subsidiaries, Property which (i) represents more than 10% of the assets
of the Consolidated Group as would be shown in the consolidated financial
statements of the Consolidated Group as at the beginning of the twelve-month
period ending with the month immediately preceding the month in which such
determination is made, or (ii) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the Consolidated
Group as reflected in the financial statements referred to in clause (i) above.
"Swingline Borrowings" means, as of any date, collectively, all Swingline
Loans then outstanding under this Facility.
"Swingline Exposure" means the outstanding principal balance of all
Swingline Borrowings.
"Swingline Lender" shall mean Administrative Agent, in its capacity as a
Lender.
"Swingline Loans" means loans of up to $50,000,000 made by the Swingline
Lender in accordance with Section 2.20 hereof.
"Taxes" means any and all present or future taxes, duties, levies, imposts,
deductions, charges or withholdings, and any and all liabilities with respect to
the foregoing, but excluding Excluded Taxes and Other Taxes.
"Total Domestic Exposure" means at any time, the sum of the aggregate
Domestic Revolving Exposures for each of the Domestic Revolving Lenders.
"Total Global Exposure" means at any time, the sum of the aggregate Global
Revolving Exposures for each of the Global Revolving Lenders.
"Transferee" is defined in Section 12.4.
"Treaty" means the Treaty establishing the European Economic Community,
being the Treaty of Rome of March 25, 1957 as amended by the Single Xxxxxxxx Xxx
0000 and the Maastricht Treaty (which was signed on February 7, 1992 and came
into force on November 1, 1993) and as may from time to time be further amended,
supplemented or otherwise modified.
"Type" when used in reference to any Loan or Borrowing, refers to the rate
by reference to which interest on such Loan, or on the Loans comprising such
Borrowing, is determined and the currency in which such Loan, or the Loans
comprising such Borrowing, are denominated. For purposes hereof, "rate" shall
include the LIBOR Rate and the Alternate Base Rate, and "currency" shall include
Dollars and any Qualified Global Currency permitted hereunder.
-24-
"Unencumbered Asset" means, subject to clauses (a), (b) and (c) below, any
Project and any Asset Under Development located in the United States, Puerto
Rico or an Acceptable Jurisdiction 100% of which is owned in fee simple or
ground leased by the Borrower, a Wholly-Owned Subsidiary, or a Qualified
Jointly-Owned Subsidiary (provided that a Project which is ground leased shall
be included as an Unencumbered Asset only if such ground lease is a Financeable
Ground Lease) which, as of any date of determination, is not subject to any
Liens, claims, or restrictions on transferability or assignability of any kind
(including any such Lien, claim or restriction imposed by the organizational
documents of any Subsidiary) other than (i) Permitted Liens set forth in
Sections 6.15(i) through 6.15(iv)) and (ii) restrictions on transferability in
the case of a Qualified Jointly Owned Subsidiary.
(a) No Project or Asset Under Development will be an Unencumbered
Asset if Borrower, the owner of such Project or Asset Under Development (an
"Unencumbered Asset Ownership Entity") or any Subsidiary that is in the
direct chain of ownership between any Borrower and the Unencumbered Asset
Ownership Entity (a "Relevant Subsidiary") is subject to any agreement
(including (i) any agreement governing Indebtedness and (ii) if applicable,
the organizational documents of Borrower, any Relevant Subsidiary or
Unencumbered Asset Ownership Entity) that prohibits or limits the ability
of the Borrower, the Unencumbered Asset Ownership Entity or any Relevant
Subsidiary to create, incur, assume or suffer to exist any Lien upon that
Project or Asset Under Development or upon the Capital Stock of the
Unencumbered Asset Ownership Entity, or any Relevant Subsidiary, including,
without limitation, any negative pledge or similar covenant or restriction.
(b) No Project or Asset Under Development will be an Unencumbered
Asset if the Unencumbered Asset Ownership Entity or any Relevant Subsidiary
is subject to any agreement (including any agreement governing Indebtedness
incurred in order to finance or refinance the acquisition of such asset)
that entitles any Person to the benefit of any Lien (other than Permitted
Liens set forth in Sections 6.15(i) through 6.15(iv)) on any assets or
Capital Stock of the Unencumbered Asset Ownership Entity or any Relevant
Subsidiary or would entitle any Person to the benefit of any Lien (other
than Permitted Liens set forth in Sections 6.15(i) through 6.15(iv)) on
such assets or Capital Stock upon the occurrence of any contingency
(including, without limitation, pursuant to an "equal and ratable" clause),
except, in each case, for (x) Liens upon the assets of a Multi-Property
Entity, provided such assets are not Unencumbered Assets, and (y) Liens on
the Capital Stock of Subsidiaries of a Multi-Property Entity that do not
directly or indirectly own Unencumbered Assets.
(c) No Project or Asset Under Development will be an Unencumbered
Asset unless the Unencumbered Asset Ownership Entity and each Relevant
Subsidiary (to the extent such entity is not a Subsidiary Guarantor) does
not have any Indebtedness for borrowed money or any Guarantee Obligations,
other than (A) Guarantee Obligations or Indebtedness for which recovery is
limited to a Project or Asset Under Development that is not an Unencumbered
Asset or the Capital Stock of an entity that owns a Project or Asset Under
Development that is not an Unencumbered Asset, or (B) Guarantee Obligations
for nonrecourse carveouts, completion guarantees or environmental
guarantees provided that the obligations described in this clause (B) shall
be permitted
-25-
only if the Unencumbered Asset Ownership Entity or the Relevant Subsidiary
that has the Guarantee Obligation is a Qualified Borrower or has executed a
Subsidiary Guaranty. Notwithstanding the foregoing, during the first sixty
(60) days following the Agreement Execution Date only, a Multi-Property
Entity may have Indebtedness for borrowed money or Guarantee Obligations
without disqualifying a Project or Asset Under Development owned, directly
or indirectly, by such Multi-Property Entity from being an Unencumbered
Asset.
"Unfunded Liabilities" means the amount (if any) by which the present value
of all vested nonforfeitable benefits under all Single Employer Plans exceeds
the fair market value of all such Plan assets allocable to such benefits, all
determined as of the then most recent valuation date for such Plans.
"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"Unrestricted Cash and Cash Equivalents" means, in the aggregate, all cash
and Cash Equivalents which are not pledged or otherwise restricted for the
benefit of any creditor and which are owned by members of the Consolidated Group
or Investment Affiliates, to be valued for purposes of this Agreement at (i)
100% of its then-current book value, as determined under GAAP, for any such
items owned by a member of the Consolidated Group or (ii) the applicable
Consolidated Group Pro Rata Share of its then-current book value, as determined
under GAAP, for any such items owned by an Investment Affiliate.
"Unsecured Indebtedness" means all Indebtedness of any person that is not
secured by a Lien on any asset of such Person.
"Value of Unencumbered Assets" means, as of any date, the sum of (A) the
amount determined by dividing the Net Operating Income for each Project which is
an Unencumbered Asset (excluding the Net Operating Income for any Acquisition
Asset which is an Unencumbered Asset) as of such date for a calculation period
which shall be either the immediately preceding two (2) full fiscal quarters or,
if so requested by Borrower or the Administrative Agent, the one (1) immediately
preceding full fiscal quarter and the then current partial quarter (in all cases
as annualized) by 0.0775 (provided that not more than fifteen percent (15%) of
the Value of Unencumbered Assets with respect to Projects shall be attributable
to Unencumbered Assets which are ground leased and not more than fifteen percent
(15%) of the Value of Unencumbered Assets shall be attributable to Unencumbered
Assets not located in the United States or Puerto Rico) plus (B) cash from
like-kind exchanges on deposit with a qualified intermediary, provided that the
aggregate amount added to the Value of Unencumbered Assets under this clause (B)
shall not exceed ten percent (10%) of the total Value of Unencumbered Assets
plus (C) the amount by which the value of Unrestricted Cash and Cash Equivalents
exceeds $10,000,000, plus (D) the value of Assets Under Development which are
Unencumbered Assets, provided that the aggregate amount added to Value of
Unencumbered Assets under this clause (D) shall not exceed ten percent (10%) of
the total Value of Unencumbered Assets for each development project that is an
Unencumbered Asset, plus (E) the then-current value under GAAP of all First
Mortgage Receivables (excluding the portion of any First Mortgage Receivables
for which the ratio of the principal balance of the loan to the value of the
Project securing repayment of such First Mortgage Receivable exceeds eighty-five
percent (85%);
-26-
provided, however, that such ratio shall be determined (i) by Borrower in good
faith and (ii) at the time the First Mortgage Receivable is created) provided
that the aggregate amount added to Value of Unencumbered Assets under this
clause (E) shall not exceed ten percent (10%) of the total Value of Unencumbered
Assets plus (F) the then-current book value, as determined in accordance with
GAAP, of Developable Land which is an Unencumbered Asset, provided that the
aggregate amount added to the Value of Unencumbered Assets under this clause (F)
shall not exceed five percent (5%) of the total Value of Unencumbered Assets,
plus (G) the amount determined by taking seventy five percent (75%) of the
amount of Management Fees received by the Borrower or a Wholly-Owned Subsidiary
for a calculation period which shall be either the immediately preceding two (2)
full fiscal quarters or, if so requested by Borrower or the Administrative
Agent, the one (1) immediately preceding full fiscal quarter and the then
current partial quarter (in all cases as annualized) and dividing such amount by
0.20, plus (H) the value of each Acquisition Asset that is an Unencumbered Asset
determined in the same manner as is set forth in the definition of Consolidated
Capitalization Value. At no time shall the aggregate amount added to Value of
Unencumbered Assets under clauses (B), (D), (E), (F), and (G) exceed fifteen
percent (15%) of the total Value of Unencumbered Assets, provided that such
percentage may be up to twenty percent (20%) for up to two quarters during the
term of the Facility. If a Project is no longer owned as of the date of
determination, then no value shall be included from such Project.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of the
outstanding voting securities of which shall at the time be owned or controlled,
directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries
of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of
such Person, or (ii) any partnership, association, joint venture or similar
business organization 100% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
1.2 Classification of Loans and Borrowings. For purposes of this Agreement,
Loans may be classified and referred to by Class (e.g., a "Revolving Loan") or
by Type (e.g., a "Eurocurrency Loan") or by Class and Type (e.g., a
"Eurocurrency Revolving Loan"). Borrowings also may be classified and referred
to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a "Eurocurrency
Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving Borrowing").
1.3 Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". The word "will" shall be
construed to have the same meaning and effect as the word "shall". Unless the
context requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's
-27-
successors and assigns, (c) the words "herein", "hereof" and "hereunder", and
words of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, (d) all references herein
to Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, this Agreement, (e)
where applicable, any amount (including, without limitation, minimum borrowing,
prepayment or repayment amounts) expressed in Dollars shall, when referring to
any currency other than Dollars, be deemed to mean an amount of such currency
having a Dollar Equivalent approximately equal to such amount.
1.4 Exchange Rates. (a) Not later than 1:00 p.m., New York City time, on
each Exchange Rate Date on which there are any Loans denominated in a Qualified
Foreign Global Currency or as Alternative Currency Letters of Credit, the
Administrative Agent shall (i) determine the Exchange Rate as of such Exchange
Rate Date to be used for calculating the Dollar Equivalent amounts of each
currency in which a Global Revolving Loan, Alternative Currency Letter of Credit
or unreimbursed LC Disbursement is denominated and (ii) give notice thereof to
the Borrower and the Lenders. The Exchange Rates so determined shall remain
effective until the next succeeding Exchange Rate Date and shall (other than for
the purpose of converting into Dollars, under Sections 2A.5, 2A.6, 2A.8, 2A.9
and the obligations of the Borrowers and the Domestic Revolving Lenders in
respect of LC Disbursements that have not been reimbursed when due) be the
Exchange Rates employed in converting any amounts between the applicable
currencies pursuant to this Agreement.
(b) Not later than 5:00 p.m., New York City time, on each Exchange Rate
Date, the Administrative Agent shall (i) determine the Global Revolving Exposure
or the Alternative Currency LC Exposure, as the case may be, on such date (after
giving effect to any Global Revolving Loans to be made or any Alternative
Currency Letters of Credit to be issued, renewed, extended or terminated in
connection with such determination) and (ii) notify the Borrower and, if
applicable, each Issuing Lender of the results of such determination.
1.5 Currency Conversion. (a) If more than one currency or currency unit are
at the same time recognized by the central bank of any country as the lawful
currency of that country, then (i) any reference in the Loan Documents to, and
any obligations arising under the Loan Documents in, the currency of that
country shall be translated into or paid in the currency or currency unit of
that country designated by the Administrative Agent in consultation with
Borrower and (ii) any translation from one currency or currency unit to another
shall be at the official rate of exchange recognized by the central bank for
conversion of that currency or currency unit into the other, rounded up or down
by the Administrative Agent as it deems appropriate.
(b) If a change in any currency of a country occurs, this Agreement shall
be amended (and each party hereto agrees to enter into any supplemental
agreement necessary to effect any such amendment) to the extent that the
Administrative Agent specifies to be necessary to reflect the change in currency
and to put the Lenders in the same position, so far as possible, that they would
have been in if no change in currency had occurred.
-28-
ARTICLE II
THE CREDIT
2.1 Commitments; Reduction or Increase in Aggregate Commitment. Subject to
the terms and conditions of this Agreement, each Lender in the applicable
Facility severally and not jointly agrees (i) to make Domestic Revolving Loans
in Dollars to the Parent Borrower or any Qualified Borrower from time to time
prior to the Facility Termination Date in an aggregate principal amount that
will not result in such Lender's Domestic Revolving Exposure exceeding such
Lender's Domestic Revolving Commitment, or the Total Domestic Exposure plus the
amount of all outstanding Competitive Bid Loans to exceed the aggregate amount
of the Domestic Revolving Commitment, and (ii) to make Global Revolving Loans in
Dollars to Parent Borrower or any Qualified Borrower or in one or more Qualified
Global Currencies (as specified in the Borrowing Requests with respect thereto)
to any Foreign Subsidiary that is a Qualified Borrower from time to time prior
to the Facility Termination Date in an aggregate principal amount that will not
result in such Lender's Global Revolving Exposure exceeding such Lender's Global
Revolving Commitment. Notwithstanding the foregoing, in no event shall Lenders
be obligated to make a Swingline Loan or Competitive Bid Loan to a Foreign
Subsidiary or a Loan in any currency other than Dollars to Parent Borrower or
any Domestic Subsidiary. The Borrowings may be ratable Floating Rate Borrowings
(but only Loans in Dollars can be Floating Rate Borrowings), ratable
Eurocurrency Borrowings, non-pro rata Swingline Loans or non-pro rata
Competitive Bid Loans. This Facility is a revolving credit facility and, subject
to the provisions of this Agreement, Borrower may request Borrowings hereunder,
repay such Borrowings and reborrow Borrowings at any time prior to the Facility
Termination Date.
Subject to limitations set forth above with respect to which Borrowers can
request certain types of Loans, a Qualified Borrower shall have the right to
request Borrowings, subject to all of the same terms and conditions as are
applicable to the Parent Borrower provided that DDR gives Administrative Agent
thirty (30) days prior notice of its intention to have a Qualified Borrower,
other than DDR PR Ventures LLC, S.E. Following receipt of such a notice,
Administrative Agent agrees to promptly notify the Lenders of Borrower's
intention to have an additional Qualified Borrower. As a condition to any
initial Borrowing to a Qualified Borrower (including DDR PR Ventures LLC, S.E.)
such Qualified Borrower shall have executed and delivered a Qualified Borrower
Note to Administrative Agent for the benefit of each of the Lenders, and Parent
Borrower shall have executed and delivered a Qualified Borrower Guaranty
relating to amounts to be borrowed by such Qualified Borrower, and
Administrative Agent shall have received the items specified in Schedule 5
attached hereto with respect to such Qualified Borrower. If an initial Borrowing
is requested by a Qualified Borrower, the Credit Agreement shall be deemed
modified such that at any place where the term "Borrower" currently appears,
such provision shall be modified to also include and apply to any such Qualified
Borrower, as the context may require, and any reference to a "Note" shall
include and apply to any Qualified Borrower Note, as the context may require.
Following the giving of any notice designating a Qualified Borrower, if
such designation obligates the Administrative Agent or any Lender to comply with
"know your customer" or similar identification procedures in circumstances where
the necessary information is not already
-29-
available to it, the Borrower shall, promptly upon the request of the
Administrative Agent or any Lender, supply such documentation and other evidence
as is reasonably requested by the Administrative Agent or any Lender in order
for the Administrative Agent or such Lender to carry out and be satisfied it has
complied with the results of all necessary "know your customer" or other similar
checks under all applicable laws and regulations.
If DDR shall designate as a Qualified Borrower hereunder any Subsidiary not
organized under the laws of the United States or any State thereof or Puerto
Rico, any Lender may, with notice to the Administrative Agent and DDR, fulfill
its Commitment by causing an Affiliate of such Lender to act as the Lender in
respect of such Qualified Borrower (and such Lender shall, to the extent of
Borrowings made to and participations in Facility Letters of Credit issued for
the account of such Qualified Borrower, be deemed for all purposes hereof to
have pro tanto assigned such Borrowings and participations to such Affiliate)
provided that either such Affiliate is a permitted assignee pursuant to Section
12.3 or such Lender is not released from its funding obligations if such
Affiliate fails to fund.
The Borrower shall have the right, upon not less than five (5) Business
Days' irrevocable notice to the Administrative Agent, to terminate the
Commitments of any Class in their entirety or, from time to time, to reduce the
amount of the Commitments of any Class provided that no such termination or
reduction shall be permitted if, after giving effect thereto and to any payments
of Borrowings made on the effective date thereof, the Total Domestic Exposure
plus Competitive Bid Loans then outstanding would exceed the remaining aggregate
Domestic Revolving Commitments or the Total Global Exposure to exceed the
remaining aggregate Global Revolving Commitments, subject to the provisions of
the following grammatical paragraph. Any such reduction shall be in an amount
equal to $5,000,000 or a whole multiple thereof and shall reduce permanently the
Domestic Revolving Commitments or Global Revolving Commitments. Any such
reduction shall reduce the Commitments of all of the Lenders ratably in
proportion to their respective Commitments for that Class. Unless otherwise
agreed by the Swingline Lender, any reduction in the Domestic Revolving
Commitments shall reduce the maximum amount of Swingline Borrowings permitted
hereunder by the same proportion. The Administrative Agent shall promptly
forward to the Lenders any notice of termination or reduction of the Commitments
for any Class.
The Domestic Revolving Commitments may be increased from time to time by
the addition of a new Lender or the increase of the Commitment of an existing
Lender with the consent of only the Borrower, the Administrative Agent, and the
new or existing Lender providing such additional Commitment so long as the
Aggregate Commitment does not exceed $1,400,000,000 less any voluntary
reductions pursuant to this Section 2.1. Such increases shall be evidenced by
the execution and delivery of an Amendment Regarding Increase in the form of
Exhibit K attached hereto by the Borrower, the Administrative Agent and the new
Lender or existing Lender providing such additional Commitment, a copy of which
shall be forwarded to each Lender by the Administrative Agent promptly after
execution thereof. On the effective date of each such increase in the Domestic
Revolving Commitments, the Borrower and the Administrative Agent shall cause the
new or existing Lenders providing such increase to hold its or their Percentage
of all ratable Borrowings outstanding at the close of business on such day for
such Class, by either funding more than its or their Percentage of new ratable
Borrowings made on such date or purchasing shares of outstanding ratable
Domestic Revolving Loans held by the
-30-
other Lenders or a combination thereof. The Lenders agree to cooperate in any
required sale and purchase of outstanding ratable Borrowings to achieve such
result. Borrower agrees to pay all fees associated with the increase in the
Aggregate Commitment including any amounts due under Section 3.4 in connection
with any reallocation of Eurocurrency Borrowings. In no event will such new or
existing Lenders providing the increase be required to fund or purchase a
portion of any Competitive Bid Loan or Swingline Loan to comply with this
Section on such date.
2.2 Loans and Borrowings. (a) Each Loan (other than a Swingline Loan or
Competitive Bid Loan) shall be made as part of a Borrowing consisting of Loans
of the same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder.
(b) Subject to Section 3.3, (i) each Borrowing denominated in
Dollars shall be comprised entirely of Floating Rate Loans or
Eurocurrency Loans as the relevant Borrower may request in accordance
herewith and (ii) each Borrowing denominated in a Qualified Foreign
Global Currency shall be comprised entirely of Eurocurrency Loans.
Each Swingline Loan shall be a Floating Rate Loan under the Domestic
Revolving Facility. Each Competitive Bid Loan shall be deemed
outstanding under the Domestic Revolving Facility. Each Lender at its
option may make any Eurocurrency Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided
that any exercise of such option shall not affect the obligation of
the relevant Borrower to repay such Loan in accordance with the terms
of this Agreement.
(c) At the commencement of each Interest Period for any
Eurocurrency Borrowing, such Borrowing shall be in an aggregate amount
that is not less than $1,000,000. At the time that each Floating Rate
Borrowing is made, such Borrowing shall be in an aggregate amount that
is not less than $1,000,000; provided that (i) a Floating Rate
Borrowing under the Domestic Revolving Facility may be in an aggregate
amount that is equal to the entire unused balance of the aggregate
Domestic Revolving Commitments or that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2A.5
and (ii) a Floating Rate Borrowing in Dollars under the Global
Revolving Facility may be in an aggregate amount that is equal to the
unused balance of the aggregate Global Revolving Commitments. No more
than 20 Eurocurrency Borrowings may be outstanding at any one time
under the Facilities.
(d) Notwithstanding any other provision of this Agreement, a
Borrower shall not be entitled to request, or to elect to convert or
continue, any Borrowing if the Interest Period requested with respect
thereto would end after the Facility Termination Date.
2.3 Requests for Borrowings. To request a Revolving Borrowing, the relevant
Borrower shall notify the Administrative Agent of such request by telephone (a)
in the case of a Eurocurrency Borrowing, not later than 11:00 a.m., New York
City time (or if the request is
-31-
delivered in London, 11:00 a.m., London time), three Business Days before the
date of the proposed Borrowing or (b) in the case of a Floating Rate Borrowing,
not later than 9:00 a.m., New York City time, on the date of the proposed
Borrowing; provided that any such notice of a Floating Rate Borrowing to finance
the reimbursement of an LC Disbursement as contemplated by Section 2A.5 may be
given not later than 10:00 a.m., New York City time, on the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall
be confirmed promptly by delivery to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent. Each such
telephonic and written Borrowing Request shall specify the following information
in compliance with Section 2.2: (i) the Borrower requesting such Borrowing; (ii)
the Class and Type of the requested Borrowing; (iii) the aggregate amount of
such Borrowing; (iv) the date of such Borrowing, which shall be a Business Day;
(v) in the case of a Eurocurrency Borrowing, the initial Interest Period to be
applicable thereto; (vi) the location and number of the relevant Borrower's
account to which funds are to be disbursed, which shall comply with the
requirements of Section 2.10; and (vii) the currency of such Borrowing (which
shall be in Dollars in the case of Domestic Revolving Loans and Swingline Loans,
and Competitive Bid Loans, and otherwise shall be in a Qualified Global
Currency). If no election as to the currency of a Global Revolving Borrowing is
specified in any such notice, then the requested Borrowing shall be denominated
in Dollars. If no election as to the Type of Borrowing is specified, then the
requested Borrowing shall be a Floating Rate Borrowing if denominated in Dollars
or a Eurocurrency Borrowing if denominated in a Qualified Foreign Global
Currency. If no Interest Period is specified with respect to any requested
Eurocurrency Borrowing, then the relevant Borrower shall be deemed to have
selected an Interest Period of one month's duration. Promptly following receipt
of a Borrowing Request in accordance with this Section, the Administrative Agent
shall advise each relevant Lender of the details thereof and of the amount of
such Lender's Loan to be made as part of the requested Borrowing.
2.4 Applicable Margins. Each of the ABR Applicable Margin and the LIBOR
Applicable Margin to be used in calculating the interest rate applicable to
different Types of Borrowings and the Facility Fee Rate to be used in
calculating the Facility Fee shall vary from time to time in accordance with the
higher of Borrower's then applicable Xxxxx'x debt rating and S&P's debt rating
unless one of such two ratings is more than one rating category lower than the
other, in which case the Applicable Margins and the Facility Fee Rate shall be
based on the rating category which is in between such two ratings (or if there
is more than one rating category in between the two ratings, the higher rating
category in between the two ratings shall apply). The Applicable Margins shall
be adjusted effective on the next Business Day following any change in
Borrower's Xxxxx'x debt rating and/or S&P's debt rating, as the case may be. The
applicable debt ratings, the Applicable Margins and Facility Fee Rate are set
forth in the following table:
LIBOR ABR
APPLICABLE APPLICABLE FACILITY
S&P RATING XXXXX'X RATING MARGIN MARGIN FEE RATE
-------------- -------------- ---------- ---------- --------
A- or higher A3 or higher 0.375% -0.125% 0.125%
BBB+ Baa1 0.425% -0.125% 0.15%
-00-
XXXXX XXX
APPLICABLE APPLICABLE FACILITY
S&P RATING XXXXX'X RATING MARGIN MARGIN FEE RATE
-------------- -------------- ---------- ---------- --------
BBB Baa2 0.60% -0.125% 0.15%
BBB- Baa3 0.75% -0.125% 0.175%
Less than BBB- Less than Baa3 1.00% 0.125% 0.25%
In the event that either S&P or Xxxxx'x shall discontinue their ratings of the
REIT industry or the Borrower, the Borrower may seek a debt rating from another
substitute rating agency reasonably satisfactory to the Administrative Agent and
the Borrower. For the period from the date of such discontinuance until the
first to occur of (i) the date the Borrower receives a debt rating from such new
rating agency or (ii) a date 180 days after such discontinuance, the single
rating from S&P or Xxxxx'x, as the case may be, shall be used to determine the
Applicable Margin and the Facility Fee Rate. If the debt rating of the Borrower
from such new rating agency is not received within such 180 day period, or if
both S&P and Xxxxx'x shall discontinue their ratings of the REIT industry or the
Borrower, the Applicable Margin to be used for the calculation of interest on
Borrowings hereunder shall be the highest Applicable Margin for each Type and
the Facility Fee to be used for the calculation of the Facility Fee shall be the
highest rate shown above.
If a rating agency downgrade or discontinuance results in an increase in
the ABR Applicable Margin or the LIBOR Applicable Margin or in the Facility Fee
Rate and if such increase is reversed and the affected Applicable Margin or
Facility Fee Rate is restored within ninety (90) days thereafter, at Borrower's
request, Borrower shall receive a credit against interest next due the Lenders
equal to (i) interest accrued at the differential between such Applicable
Margins plus (ii) the differential in the Facility Fees accruing from time to
time during such period of downgrade or discontinuance.
If a rating agency upgrade results in decrease in the ABR Applicable Margin
or the LIBOR Applicable Margin or in the Facility Fee Rate and if such upgrade
is reversed and the affected Applicable Margin or Facility Fee Rate is restored
within ninety (90) days thereafter, Borrower shall be required to pay an amount
to the Lenders equal to the interest differential on the Borrowings and the
differential on the Facility Fees during such period of upgrade.
2.5 Final Principal Payment and Extension of Facility Termination Date. Any
outstanding Borrowings and all other unpaid Obligations shall be paid in full by
the Borrower on the Facility Termination Date. At Borrower's option, provided no
Default or Unmatured Default has occurred and is continuing, the Borrower may
request a one-year extension of the Facility Termination Date by submitting a
request for an extension to the Administrative Agent (an "Extension Request") no
more than 90 and no fewer than 30 days prior to the Facility Termination Date.
Promptly upon receipt of an Extension Request, the Administrative Agent shall
notify each Lender of the Extension Request. It shall be an additional condition
precedent to any extension of the Facility Termination Date pursuant hereto that
the Borrower shall have paid to the Administrative Agent for the ratable benefit
of the Lenders, on or before the original
-33-
Facility Termination Date a fee equal to 0.15% of the aggregate amount of the
Domestic Revolving Commitments and the Global Revolving Commitments.
2.6 Facility Fee. The Borrower agrees to pay to the Administrative Agent
for the account of each Lender a facility fee (the "Facility Fee") calculated
for each day after the Agreement Execution Date through the Facility Termination
Date at a per annum rate equal to the Facility Fee Rate in effect for such day
(converted to a per diem rate) times the Aggregate Commitment as of such day.
The Facility Fee shall be payable quarterly in arrears on the last day of each
calendar quarter hereafter beginning September 30, 2006 (for the period from the
Agreement Execution Date through September 30, 2006) and continuing on the last
day of each calendar quarter thereafter, with any accrued and unpaid Facility
Fee due and payable on the Facility Termination Date. Notwithstanding the
foregoing, all accrued Facility Fees shall be payable on the effective date of
any reduction in the Aggregate Commitment or any termination of the obligations
of the Lenders to make Loans hereunder.
2.7 Other Fees. The Borrower agrees to pay all fees payable to the
Administrative Agent and the Arranger pursuant to the Borrower's letter
agreement with the Administrative Agent and the Arranger dated June 27, 2006.
The Borrower shall also pay the fee due to the Administrative Agent in
connection with certain Competitive Bid Loans as provided in Section 2.22
hereof.
2.8 Principal Payments. (a) The Borrower may from time to time pay, without
penalty or premium, all or any part of outstanding Floating Rate Borrowings
without prior notice to the Administrative Agent. A Fixed Rate Borrowing may be
paid on the last day of the applicable Interest Period or, if and only if the
Borrower pays any amounts due to the Lenders under Sections 3.4 and 3.5 as a
result of such prepayment, on a day prior to such last day. Notwithstanding the
foregoing, in no event shall Borrower have the right to prepay a Competitive Bid
Loan without the consent of the applicable Competitive Bid Lender.
(b) If on any Exchange Rate Date relating to the Global Revolving Facility,
the Total Global Exposure exceeds 105% of the total Global Revolving
Commitments, the Parent Borrower shall, without notice or demand, within three
Business Days after such Exchange Rate Date, prepay (or cause the relevant
Qualified Borrower to prepay) Global Revolving Loans in an aggregate amount such
that, after giving effect thereto, the Total Global Exposure does not exceed the
total Global Revolving Commitments. If on any Exchange Rate Date relating to the
Domestic Revolving Facility, the Total Domestic Exposure plus the amount of all
outstanding Competitive Bid Loans exceeds 105% of the aggregate Domestic
Revolving Commitments, the Parent Borrower shall, without notice or demand,
within three Business Days after such Exchange Rate Date, prepay Borrowings or,
if no such Borrowings are outstanding, deposit cash collateral in an account
with the Administrative Agent pursuant to Section 2A.9 in an aggregate amount
such that, after giving effect thereto, the Total Domestic Exposure plus the
amount of all outstanding Competitive Bid Loans does not exceed the aggregate
Domestic Revolving Commitments.
2.9 Funding of Borrowings. Each Lender shall make each Loan to be made by
it hereunder on the proposed date thereof by wire transfer to the account of the
Administrative Agent most recently designated by it for such purpose by notice
to the Lenders, in immediately available funds, not later than 12:00 noon, New
York City time, in the case of fundings to an
-34-
account in New York City, or 12:00 noon, local time, in the case of fundings to
an account in another jurisdiction; provided that Swingline Loans shall be made
as provided in Section 2.20. The Administrative Agent will make such Loans
available to the relevant Borrower by promptly crediting the amounts so
received, in like funds, to an account designated by such Borrower in the
applicable Borrowing Request, which account must be in the name of such Borrower
provided that Floating Rate Loans made to finance the reimbursement of an LC
Disbursement as provided in Section 2A.5 shall be remitted by the Administrative
Agent to the applicable Issuing Lender.
2.10 Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in
the applicable Borrowing Request and, in the case of a Eurocurrency
Borrowing, shall have an initial Interest Period as specified in such
Borrowing Request. Thereafter, a Borrower may elect to convert such
Borrowing to a different Type or to continue such Borrowing and, in
the case of a Eurocurrency Borrowing, may elect Interest Periods
therefor, all as provided in this Section. A Borrower may elect
different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such Borrowing, and the
Loans comprising each such portion shall be considered a separate
Borrowing. Notwithstanding the foregoing, a Borrower may not (i) elect
to convert the currency in which any Loans are denominated, (ii) elect
to convert Qualified Foreign Global Currency Loans from Eurocurrency
Loans to Floating Rate Loans, (iii) elect an Interest Period for
Eurocurrency Loans that does not comply with Section 2.2(d), (iv)
elect to convert any Floating Rate Loans to Eurocurrency Loans that
would result in the number of Eurocurrency Borrowings exceeding the
maximum number of Eurocurrency Borrowings permitted under Section
2.2(c), (v) elect an Interest Period for Eurocurrency Loans unless the
aggregate outstanding principal amount of Eurocurrency Loans
(including any Eurocurrency Loans made to such Borrower in the same
currency on the date that such Interest Period is to begin) to which
such Interest Period will apply complies with the requirements as to
minimum principal amount set forth in Section 2.2(c) or (vi) elect to
convert or continue any Swingline Loans.
(b) To make an election pursuant to this Section (an "Interest
Election Request"), a Borrower shall notify the Administrative Agent
of such election by telephone by the time that a Borrowing Request
would be required under Section 2.3 if such Borrower were requesting a
Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed
promptly by delivery to the Administrative Agent of a written Interest
Election Request in a form approved by the Administrative Agent
(hereinafter referred to as a "Conversion/Continuation Notice").
(c) Each telephonic and written Conversion/Continuation Notice
shall specify the following information in compliance with Section 2.2
and paragraph
-35-
(a) of this Section: (i) the Borrowing to which such
Conversion/Continuation Notice applies; (ii) the effective date of the
election made pursuant to such Conversion/Continuation Notice, which
shall be a Business Day; (iii) whether the resulting Borrowing is to
be a Floating Rate Borrowing or a Eurocurrency Borrowing; and (iv) if
the resulting Borrowing is a Eurocurrency Borrowing, the Interest
Period to be applicable thereto after giving effect to such election.
If any such Conversion/Continuation Notice requests a Eurocurrency
Borrowing but does not specify an Interest Period, then the relevant
Borrower shall be deemed to have selected an Interest Period of one
month's duration.
(d) Promptly following receipt of a Conversion/Continuation
Notice, the Administrative Agent shall advise each relevant Lender of
the details thereof and of such Lender's portion of each resulting
Borrowing.
(e) If the relevant Borrower fails to deliver a timely
Conversion/Continuation Notice with respect to a Eurocurrency
Borrowing denominated in Dollars prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing
shall be converted to a Floating Rate Borrowing. If the relevant
Borrower fails to deliver a timely Conversion/Continuation Notice with
respect to a Eurocurrency Borrowing denominated in a Qualified Foreign
Global Currency prior to the end of the Interest Period applicable
thereto, then, unless such Borrowing is repaid as provided herein, at
the end of such Interest Period such Borrowing shall automatically
continue as a Eurocurrency Loan having an Interest Period of one
month.
2.11 Changes in Interest Rate, Etc. Each Floating Rate Borrowing shall bear
interest on the outstanding principal amount thereof, for each day from and
including the date such Borrowing is made or is converted from a Fixed Rate
Borrowing into a Floating Rate Borrowing pursuant to Section 2.10 to but
excluding the date it becomes due or is converted into a Fixed Rate Borrowing
pursuant to Section 2.10 hereof, at a rate per annum equal to the Floating Rate
for such day. Changes in the rate of interest on that portion of any Borrowing
maintained as a Floating Rate Borrowing will take effect simultaneously with
each change in the Alternate Base Rate. Each Fixed Rate Borrowing shall bear
interest from and including the first day of the Interest Period applicable
thereto to (but not including) the last day of such Interest Period at the
interest rate determined as applicable to such Fixed Rate Borrowing.
2.12 Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.9 or 2.10, during the continuance of a Default
or Unmatured Default the Required Lenders may, at their option, by notice to the
Borrower (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that (i) no Borrowing denominated
in Dollars may be made as, converted into or continued as a Fixed Rate
Borrowing, (ii) unless repaid, each Eurocurrency Borrowing denominated in
Dollars shall be converted to a Floating Rate Borrowing at the end of the
Interest Period applicable thereto and (iii) no Borrowing denominated in a
Qualified Foreign Global Currency having an Interest Period in excess of one
month may be made or continued. During the continuance of a Default the
-36-
Required Lenders may, at their option, by notice to the Borrower (which notice
may be revoked at the option of the Required Lenders notwithstanding any
provision of Section 8.2 requiring unanimous consent of the Lenders to changes
in interest rates), declare that (i) each Fixed Rate Borrowing shall bear
interest for the remainder of the applicable Interest Period at the rate
otherwise applicable to such Interest Period plus 2% per annum and (ii) each
Floating Rate Borrowing shall bear interest at a rate per annum equal to the
Floating Rate otherwise applicable to the Floating Rate Borrowing plus 2% per
annum.
2.13 Method of Payment.
(i) All payments of the Obligations hereunder shall be made, without
setoff, deduction, or counterclaim, in immediately available funds to the
Administrative Agent at the New York Administrative office for payments in
Dollars, and at the London Administrative Office for payments in currencies
other than Dollars, or at any other Lending Installation of the
Administrative Agent specified in writing by the Administrative Agent to
the Borrower, by 1:00 p.m. New York time (or if the payment is made to the
London Administrative Office, 3:00 p.m. London time) on the date when due
and shall be applied ratably by the Administrative Agent among the Lenders
in the Domestic Revolving Facility or Global Revolving Facility, as the
case may be. Except as otherwise specified in this Agreement, each such
payment (other than principal of and interest on Qualified Global Currency
Loans and LC Disbursements denominated in an Alternative Currency, which
shall be made in the applicable Qualified Global Currency or, except as
otherwise specified in Section 2A.5, Alternative Currency, as the case may
be) shall be made in Dollars.
(ii) As provided elsewhere herein, all Lenders' interests in the
Borrowings and the Loan Documents shall be ratable undivided interests and
none of such Lenders' interests shall have priority over the others. Each
payment delivered to the Administrative Agent for the account of any Lender
or amount to be applied or paid by the Administrative Agent to any Lender
shall be paid promptly (on the same day as received by the Administrative
Agent if received prior to 1:00 p.m. New York time or 1:00 p.m. London
time, as applicable, and otherwise on the next Business Day) by the
Administrative Agent to such Lender in the same type of funds that the
Administrative Agent received at its address specified pursuant to Article
XIII or at any Lending Installation specified in a notice received by the
Administrative Agent from such Lender. Payments received by the
Administrative Agent but not timely funded to the Lenders shall bear
interest payable by the Administrative Agent at the Federal Funds Effective
Rate from the date due until the date paid. The Administrative Agent is
hereby authorized to charge the account of the Borrower maintained with
JPMorgan Chase Bank for each payment of principal, interest and fees as it
becomes due hereunder.
2.14 Notes; Telephonic Notices. Each Lender is hereby authorized to record
the principal amount of each of its Loans and each repayment on the schedule
attached to its Note, provided, however, that the failure to so record shall not
affect the Borrower's obligations under such Note. The Borrower hereby
authorizes the Lenders and the Administrative Agent to extend, convert or
continue Borrowings, effect selections of Types of Borrowings and to transfer
funds based on telephonic notices made by any Authorized Officer. The Borrower
agrees to deliver
-37-
promptly to the Administrative Agent a written confirmation, if such
confirmation is requested by the Administrative Agent or any Lender, of each
telephonic notice. If the written confirmation differs in any material respect
from the action taken by the Administrative Agent and the Lenders, the records
of the Administrative Agent and the Lenders shall govern absent manifest error.
2.15 Interest Payment Dates; Interest and Fee Basis. Interest accrued on
each Borrowing (other than Competitive Bid Loans) shall be payable on each
Payment Date, commencing with the first such date to occur after the date
hereof, at maturity, whether by acceleration or otherwise, and upon any
termination of the Aggregate Commitment in its entirety under Section 2.1
hereof. Interest accrued on each Competitive Bid Loan shall be payable on the
last day of the Interest Period applicable to such Competitive Bid Loan (or, if
such Interest Period is in excess of three months, on the 90th day of such
Interest Period) or any earlier date on which such Competitive Bid Loan is
repaid, at maturity, whether by acceleration or otherwise, and upon any
termination of the Aggregate Commitment in its entirety under Section 2.1
hereof. Interest and Facility Fees shall be calculated for actual days elapsed
on the basis of a 360-day year, except interest on loans made in Sterling shall
be computed on the basis of a 365 day year. Interest shall be payable for the
day a Borrowing is made but not for the day of any payment on the amount paid if
payment is received prior to noon (local time) at the place of payment. If any
payment of principal of or interest on a Borrowing shall become due on a day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day and, in the case of a principal payment, such extension of time
shall be included in computing interest in connection with such payment.
2.16 Notification of Borrowings, Interest Rates and Prepayments. The
Administrative Agent will notify each Lender of the contents of each Borrowing
Request, Conversion/Continuation Notice, and repayment notice received by it
hereunder not later than the close of business on the Business Day such notice
is received by the Administrative Agent (or such earlier time as is required by
Section 2.3). The Administrative Agent will notify each Lender of the interest
rate applicable to each Fixed Rate Borrowing promptly upon determination of such
interest rate and will give each Lender prompt notice of each change in the
Alternate Base Rate.
2.17 Lending Installations. Subject to Section 3.6, each Lender may book
its Loans at any Lending Installation selected by such Lender and may change its
Lending Installation from time to time. All terms of this Agreement shall apply
to any such Lending Installation and the Notes shall be deemed held by each
Lender for the benefit of such Lending Installation. Each Lender may, by written
or telex notice to the Administrative Agent and the Borrower, designate a
Lending Installation through which Loans will be made by it and for whose
account Loan payments are to be made.
2.18 Non-Receipt of Funds by the Administrative Agent. Unless the Borrower
or a Lender, as the case may be, notifies the Administrative Agent prior to the
time at which it is scheduled to make payment to the Administrative Agent of (i)
in the case of a Lender, the proceeds of a Loan or (ii) in the case of the
Borrower, a payment of principal, interest or fees to the Administrative Agent
for the account of the Lenders, that it does not intend to make such payment,
the Administrative Agent may assume that such payment has been made. The
-38-
Administrative Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in the applicable currency in
reliance upon such assumption. If such Lender or the Borrower, as the case may
be, has not in fact made such payment to the Administrative Agent, the recipient
of such payment shall, on demand by the Administrative Agent, repay to the
Administrative Agent the amount so made available together with interest thereon
in respect of each day during the period commencing on the date such amount was
so made available by the Administrative Agent until the date the Administrative
Agent recovers such amount at a rate per annum equal to (i) in the case of
payment by a Lender, the Federal Funds Effective Rate for such day or (ii) in
the case of payment by the Borrower, the interest rate applicable to the
relevant Loan. If such Lender so repays such amount and interest thereon to the
Administrative Agent within one Business Day after such demand, all interest
accruing on the Loan not funded by such Lender during such period shall be
payable to such Lender when received from the Borrower.
2.19 Replacement of Lenders under Certain Circumstances. The Borrower shall
be permitted to replace any Lender which (a) is not capable of receiving
payments without any deduction or withholding of United States federal income
tax pursuant to Section 3.5, or (b) cannot maintain its Fixed Rate Loans at a
suitable Lending Installation pursuant to Section 3.3, with a replacement bank
or other financial institution; provided that (i) such replacement does not
conflict with any applicable legal or regulatory requirements affecting the
Lenders, (ii) no Default or (after notice thereof to Borrower) no Unmatured
Default shall have occurred and be continuing at the time of such replacement,
(iii) the Borrower shall repay (or the replacement bank or institution shall
purchase, at par) all Loans and other amounts owing to such replaced Lender
prior to the date of replacement, (iv) the Borrower shall be liable to such
replaced Lender under Sections 3.4 and 3.6 if any Fixed Rate Loan owing to such
replaced Lender shall be prepaid (or purchased) other than on the last day of
the Interest Period relating thereto, (v) the replacement bank or institution,
if not already a Lender, and the terms and conditions of such replacement, shall
be reasonably satisfactory to the Administrative Agent, (vi) the replaced Lender
shall be obligated to make such replacement in accordance with the provisions of
Section 12.3 (provided that the Borrower shall be obligated to pay the
processing fee referred to therein), (vii) until such time as such replacement
shall be consummated, the Borrower shall pay all additional amounts (if any)
required pursuant to Section 3.5 and (viii) any such replacement shall not be
deemed to be a waiver of any rights which the Borrower, the Administrative Agent
or any other Lender shall have against the replaced Lender.
2.20 Swingline Loans. In addition to the other options available to
Borrower hereunder, up to $50,000,000 of the Swingline Lender's Domestic
Revolving Commitment, shall be available for Swingline Loans subject to the
following terms and conditions. Swingline Loans shall be made available for same
day borrowings provided that notice is given in accordance with Section 2.9
hereof. Unless otherwise approved in writing by the Required Lenders, no
Swingline Loan may be made by the Swingline Lender if the Swingline Lender has
either given or received written notice that a Default has occurred prior to
making such Swingline Loan unless such Default has theretofore been cured or
waived in accordance with the terms hereof. All Swingline Loans shall bear
interest at the Floating Rate and shall be deemed to be Floating Rate
Borrowings. In no event shall the Swingline Lender be required to fund a
Swingline Loan if it would increase the Total Domestic Exposure to an amount in
excess of the aggregate Domestic Revolving Commitments. Upon request of the
Swingline Lender made to
-39-
all the Domestic Revolving Lenders, each Domestic Revolving Lender irrevocably
agrees to purchase its Percentage of any Swingline Loan made by the Swingline
Lender regardless of whether the conditions for disbursement are satisfied at
the time of such purchase, including the existence of a Default hereunder
provided no Lender shall be required to have total outstanding Domestic
Revolving Loans (other than Competitive Bid Loans) in an amount greater than its
Domestic Revolving Commitment. Such purchase shall take place on the date of the
request by Swingline Lender so long as such request is made by 1:00 p.m. (New
York time), otherwise on the Business Day following such request. All requests
for purchase shall be in writing. From and after the date it is so purchased,
each such Swingline Loan shall, to the extent purchased, (i) be treated as a
Loan made by the purchasing Lenders and not by the selling Lender for all
purposes under this Agreement and the payment of the purchase price by a Lender
shall be deemed to be the making of a Loan by such Lender and shall constitute
outstanding principal under such Lender's Note, and (ii) shall no longer be
considered a Swingline Loan except that all interest accruing on or attributable
to such Swingline Loan for the period prior to the date of such purchase shall
be paid when due by the Borrower to the Administrative Agent for the benefit of
the Swingline Lender and all such amounts accruing on or attributable to such
Loans for the period from and after the date of such purchase shall be paid when
due by the Borrower to the Administrative Agent for the benefit of the
purchasing Lenders. If prior to purchasing its Percentage of a Swingline Loan
one of the events described in Section 7.7 or 7.8 shall have occurred and such
event prevents the consummation of the purchase contemplated by preceding
provisions, each Domestic Revolving Lender will purchase an undivided
participating interest in the outstanding Swingline Loan in an amount equal to
its Domestic Revolving Percentage of such Swingline Loan. From and after the
date of each Lender's purchase of its participating interest in a Swingline
Loan, if the Swingline Lender receives any payment on account thereof, the
Swingline Lender will distribute to such Lender its participating interest in
such amount (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's participating interest was
outstanding and funded); provided, however, that in the event that such payment
was received by the Swingline Lender and is required to be returned to the
Borrower, each Lender will return to the Swingline Lender any portion thereof
previously distributed by the Swingline Lender to it. If any Domestic Revolving
Lender fails to so purchase its Percentage of any Swingline Loan, such Lender
shall be deemed to be a Defaulting Lender hereunder. No Swingline Loan shall be
outstanding for more than five (5) days at a time and Swingline Loans shall not
be outstanding for more than a total of ten (10) days during any month.
2.21 Competitive Bid Loans.
(a) Competitive Bid Option. In addition to ratable Borrowings
pursuant to Section 2.3, but subject to the terms and conditions of
this Agreement (including, without limitation the limitation set forth
in Section 2.1 as to the maximum amount of all outstanding Borrowings,
including Swingline Loans and Competitive Bid Loans), the Borrower
may, as set forth in Sections 2.22 or 2.23, request the Lenders, prior
to the Facility Termination Date, to make offers to make Competitive
Bid Loans to the Borrower. Each Lender may, but shall have no
obligation to, make such offers and the Borrower may, but shall have
no obligation to, accept any such offers in the manner set forth in
Section 2.22 or Section 2.23, as the case may be. Competitive Bid
Loans shall be evidenced by
-40-
the Competitive Bid Notes. Borrower shall not have the right to
request a Competitive Bid Loan at any time that a Default exists. If
Borrower elects to have Administrative Agent administer the
Competitive Bid Loan process, the procedures set forth in Section 2.22
shall apply. If Borrower elects to administer the Competitive Bid Loan
process itself, the procedures set forth in Section 2.23 shall apply.
(b) General Terms. Any Competitive Bid Loan shall not reduce the
Commitment of the Lender making such Competitive Bid Loan, and each
such Lender shall continue to be obligated to fund its full share of
all pro rata Borrowings under the Domestic Revolving Facility or
Global Revolving Facility as the case may be. In no event can the
aggregate amount of all Competitive Bid Loans at any time exceed fifty
percent (50%) of the then Aggregate Commitment. Notwithstanding
anything to the contrary in Section 2.10, Competitive Bid Loans may
not be continued or converted and, if not repaid at the end of the
Interest Period applicable thereto, shall (subject to the conditions
set forth in this Agreement) be replaced by new Competitive Bid Loans
made in accordance with Section 2.22 or Section 2.23 or by ratable
Borrowings in accordance with Section 2.3.
(c) Funding of Competitive Bid Loans. Each Lender that is to make
a Competitive Bid Loan shall, before 3:00 p.m. (New York time) on the
date of such Competitive Bid Loan specified in the notice received
from the Borrower make available the amount of such Competitive Bid
Loan to the Administrative Agent. If such Lender also has an
outstanding Competitive Bid Loan that is payable on such date, the
Borrower agrees that such Lender may fund only the net increase, if
any, in such new Competitive Bid Loan over the principal balance of
such outstanding Competitive Bid Loan and such outstanding Competitive
Bid Loan shall be deemed advanced by the Lender to the Borrower on the
terms of the new Competitive Bid Loan. Upon fulfillment of the
applicable conditions to disbursement and after receipt of such funds,
the Administrative Agent will make such funds available to the
Borrower at the Administrative Agent's aforesaid address.
2.22 Agent Administered Competitive Bid Loans.
(a) Competitive Bid Quote Request. When the Borrower wishes to
request offers to make Competitive Bid Loans under this Section 2.22,
it shall transmit to the Administrative Agent by telecopy a
Competitive Bid Quote Request substantially in the form of Exhibit I-1
hereto so as to be received no later than (i) 11:00 a.m. (New York
time) at least five Business Days prior to the Borrowing Date proposed
therein, in the case of a request for a Competitive LIBOR Margin or
(ii) 10:00 a.m. (New York time) at least one Business Day prior to the
Borrowing Date proposed therein, in the case of a request for an
Absolute Rate specifying:
(i) the proposed Borrowing Date for the proposed Competitive
Bid Loan,
-41-
(ii) the requested aggregate principal amount of such
Competitive Bid Loan which shall be at least $5,000,000 and in an
integral multiple of $1,000,000,
(iii) whether the Competitive Bid Quotes requested are to
set forth a Competitive LIBOR Margin or an Absolute Rate, or
both, and
(iv) the LIBOR Interest Period, if a Competitive LIBOR
Margin is requested, or the Absolute Interest Period, if an
Absolute Rate is requested.
The Borrower may request offers to make Competitive Bid Loans for more than
one (but not more than five) Interest Periods in a single Competitive Bid
Quote Request. A Competitive Bid Quote Request that does not conform
substantially to the form of Exhibit I-1 hereto shall be rejected, and the
Administrative Agent shall promptly notify the Borrower of such rejection
by telecopy.
(b) Invitation for Competitive Bid Quotes. Promptly and in any
event before the close of business on the same Business Day of receipt
of a Competitive Bid Quote Request that is not rejected pursuant to
Section 2.22(a), the Administrative Agent shall send to each of the
Lenders by telecopy an Invitation for Competitive Bid Quotes
substantially in the form of Exhibit I-2 hereto, which shall
constitute an invitation by the Borrower to each Lender to submit
Competitive Bid Quotes offering to make the Competitive Bid Loans to
which such Competitive Bid Quote Request relates in accordance with
this Section 2.22.
(c) Submission and Contents of Competitive Bid Quotes.
(i) Each Lender may, in its sole discretion, submit a
Competitive Bid Quote containing an offer or offers to make
Competitive Bid Loans in response to any Invitation for
Competitive Bid Quotes. Each Competitive Bid Quote must comply
with the requirements of this Section 2.22(c) and must be
submitted to the Administrative Agent by telex or telecopy at its
offices not later than (a) 3:00 p.m. (New York time) at least
four Business Days prior to the proposed Borrowing Date, in the
case of a request for a Competitive LIBOR Margin or (b) 10:00
a.m. (New York time) on the proposed Borrowing Date, in the case
of a request for an Absolute Rate (or, in either case upon
reasonable prior notice to the Lenders, such other time and date
as the Borrower and the Administrative Agent may agree); provided
that Competitive Bid Quotes submitted by JPMorgan Chase Bank may
only be submitted if the Administrative Agent or JPMorgan Chase
Bank notifies the Borrower of the terms of the offer or offers
contained therein no later than 30 minutes prior to the latest
time at which the relevant Competitive Bid Quotes must be
submitted by the other Lenders. Subject to the Borrower's
compliance with all other conditions to disbursement herein, any
Competitive Bid Quote so made shall be irrevocable except with
the written consent of the Administrative Agent given on the
instructions of the Borrower.
-42-
(ii) Each Competitive Bid Quote shall be in substantially
the form of Exhibit I-3 hereto and shall in any case specify:
(a) the proposed Borrowing Date, which shall be the
same as that set forth in the applicable Invitation for
Competitive Bid Quotes,
(b) the principal amount of the Competitive Bid Loan
for which each such offer is being made, which principal
amount (1) may be greater than, less than or equal to the
Commitment of the quoting Lender, (2) must be at least
$5,000,000 and an integral multiple of $1,000,000, and (3)
may not exceed the principal amount of Competitive Bid Loans
for which offers are requested,
(c) as applicable, the Competitive LIBOR Margin and
Absolute Rate offered for each such Competitive Bid Loan,
(d) the minimum amount, if any, of the Competitive Bid
Loan which may be accepted by the Borrower, and
(e) the identity of the quoting Lender, provided that
such Competitive Bid Loan may be funded by such Lender's
Designated Lender as provided in Section 2.22(h), regardless
of whether that is specified in the Competitive Bid Quote.
(iii) The Administrative Agent shall reject any Competitive
Bid Quote that:
(a) is not substantially in the form of Exhibit I-3
hereto or does not specify all of the information required
by Section 2.22(c)(ii),
(b) contains qualifying, conditional or similar
language, other than any such language contained in Exhibit
I-3 hereto,
(c) proposes terms other than or in addition to those
set forth in the applicable Invitation for Competitive Bid
Quotes, or
(d) arrives after the time set forth in Section
2.22(c)(i).
If any Competitive Bid Quote shall be rejected pursuant to this Section
2.22(c)(iii), then the Administrative Agent shall notify the relevant
Lender of such rejection as soon as practical.
(d) Notice to Borrower. The Administrative Agent shall promptly
notify the Borrower of the terms (i) of any Competitive Bid Quote
submitted by a Lender that is in accordance with Section 2.22(c) and
(ii) of any Competitive Bid Quote that amends, modifies or is
otherwise inconsistent with a previous
-43-
Competitive Bid Quote submitted by such Lender with respect to the
same Competitive Bid Quote Request. Any such subsequent Competitive
Bid Quote shall be disregarded by the Administrative Agent unless such
subsequent Competitive Bid Quote specifically states that it is
submitted solely to correct a manifest error in such former
Competitive Bid Quote. The Administrative Agent's notice to the
Borrower shall specify the aggregate principal amount of Competitive
Bid Loans for which offers have been received for each Interest Period
specified in the related Competitive Bid Quote Request and the
respective principal amounts and Competitive LIBOR Margins or Absolute
Rate, as the case may be, so offered.
(e) Acceptance and Notice by Borrower. Not later than (i) 7:00
p.m. (New York time) at least four Business Days prior to the proposed
Borrowing Date in the case of a request for a Competitive LIBOR Margin
or (ii) 11:00 a.m. (New York time) on the proposed Borrowing Date, in
the case of a request for an Absolute Rate (or, in either case upon
reasonable prior notice to the Lenders, such other time and date as
the Borrower and the Administrative Agent may agree), the Borrower
shall notify the Administrative Agent of its acceptance or rejection
of the offers so submitted to it pursuant to Section 2.22(d);
provided, however, that the failure by the Borrower to give such
notice to the Administrative Agent shall be deemed to be a rejection
of all such offers. In the case of acceptance, such notice (a
"Competitive Bid Borrowing Request") shall specify the aggregate
principal amount of offers for each Interest Period that are accepted
and the applicable interest rate. The Administrative Agent shall
immediately advise the Lenders making the accepted offers of the
contents of the Competitive Bid Borrowing Request. The Borrower may
accept any Competitive Bid Quote in whole or in part (subject to the
terms of Section 2.22(c)(iii)); provided that:
(i) the aggregate principal amount of all Competitive Bid
Loans to be disbursed on a given Borrowing Date may not exceed
the applicable amount set forth in the related Competitive Bid
Quote Request,
(ii) acceptance of offers may only be made on the basis of
ascending Competitive LIBOR Margins or Absolute Rates, as the
case may be, and
(iii) the Borrower may not accept any offer that is
described in Section 2.22(c)(iii) or that otherwise fails to
comply with the requirements of this Agreement.
(f) Allocation by Administrative Agent. If offers are made by two
or more Lenders with the same Competitive LIBOR Margins or Absolute
Rates, as the case may be, for a greater aggregate principal amount
than the amount in respect of which offers are accepted for the
related Interest Period, the principal amount of Competitive Bid Loans
in respect of which such offers are accepted shall be allocated by the
Administrative Agent among such Lenders as nearly as possible (in such
multiples, not greater than $1,000,000, as the Administrative Agent
may deem appropriate) in proportion to the aggregate principal amount
of
-44-
such offers provided, however, that no Lender shall be allocated any
Competitive Bid Loan which is less than the minimum amount which such
Lender has indicated that it is willing to accept. Allocations by the
Administrative Agent of the amounts of Competitive Bid Loans shall be
conclusive in the absence of manifest error. The Administrative Agent
shall promptly, but in any event on the same Business Day, notify each
Lender of its receipt of a Competitive Bid Borrowing Request and the
principal amounts of the Competitive Bid Loans allocated to each
participating Lender.
(g) Administrative Fee. The Borrower hereby agrees to pay to the
Administrative Agent an administration fee of $2,500 for each
Competitive Bid Quote Request regardless of whether or not Borrower
borrows such Competitive Bid Loan. Such administration fees, if not
paid at the time of the applicable Competitive Bid Quote Request shall
be payable monthly in arrears on the first Business Day of each month
and on the Facility Termination Date (or such earlier date on which
the Aggregate Commitment shall terminate or be cancelled).
(h) Designated Lenders. A Lender may designate its Designated
Lender to fund a Competitive Bid Loan on its behalf as described in
Section 2.22(c)(ii)(e). Any Designated Lender which funds a
Competitive Bid Loan shall on and after the time of such funding
become the obligee under such Competitive Bid Loan and be entitled to
receive payments thereof when due. No Lender shall be relieved of its
obligation to fund a Competitive Bid Loan, and no Designated Lender
shall assume such obligation, prior to the time such Competitive Bid
Loan is funded.
2.23 Bid Loans Administered by Borrower.
(a) Competitive Bid Quote Request. When the Borrower wishes to
request offers to make Competitive Bid Loans under this Section 2.23,
it shall transmit to the Lenders and Administrative Agent by telecopy
an Invitation for Competitive Bid Quote substantially in the form of
Exhibit J-1 hereto so as to be received no later than (i) 11:00 a.m.
(New York time) at least four Business Days prior to the Borrowing
Date proposed therein, in the case of a request for a Competitive
LIBOR Margin or (ii) 10:00 a.m. (New York time) at least one Business
Day prior to the Borrowing Date proposed therein, in the case of a
request for an Absolute Rate specifying:
(i) the proposed Borrowing Date for the proposed Competitive
Bid Loan,
(ii) the requested aggregate principal amount of such
Competitive Bid Loan which shall be at least $5,000,000 and in an
integral multiple of $1,000,000,
(iii) whether the Competitive Bid Quotes requested are to
set forth a Competitive LIBOR Margin or an Absolute Rate, or
both, and
-45-
(iv) the LIBOR Interest Period, if a Competitive LIBOR
Margin is requested, or the Absolute Interest Period, if an
Absolute Rate is requested.
The Borrower may request offers to make Competitive Bid Loans for more than
one (but not more than five) Interest Periods in a single Competitive Bid
Quote.
(b) Submission and Contents of Competitive Bid Quotes.
(i) Each Lender may, in its sole discretion, submit a
Competitive Bid Quote containing an offer or offers to make
Competitive Bid Loans in response to any Invitation for
Competitive Bid Quotes. Each Competitive Bid Quote must comply
with the requirements of this Section 2.23(b) and must be
submitted to the Borrower by telex or telecopy at its offices not
later than (a) 10:00 a.m. (New York time) at least three Business
Days prior to the proposed Borrowing Date, in the case of a
request for a Competitive LIBOR Margin or (b) 10:00 a.m. (New
York time) on the proposed Borrowing Date, in the case of a
request for an Absolute Rate (or, in either case upon reasonable
prior notice to the Lenders, such other time and date as the
Borrower and the Administrative Agent may agree). Subject to the
Borrower's compliance with all other conditions to disbursement
herein, any Competitive Bid Quote so made shall be irrevocable
except with the written consent of the Administrative Agent given
on the instructions of the Borrower.
(ii) Each Competitive Bid Quote shall be in substantially
the form of Exhibit J-2 hereto and shall in any case specify:
(a) the proposed Borrowing Date, which shall be the
same as that set forth in the applicable Invitation for
Competitive Bid Quotes,
(b) the principal amount of the Competitive Bid Loan
for which each such offer is being made, which principal
amount (1) may be greater than, less than or equal to the
Commitment of the quoting Lender, (2) must be at least
$5,000,000 and an integral multiple of $1,000,000, and (3)
may not exceed the principal amount of Competitive Bid Loans
for which offers are requested,
(c) as applicable, the Competitive LIBOR Margin and
Absolute Rate offered for each such Competitive Bid Loan,
(d) the minimum amount, if any, of the Competitive Bid
Loan which may be accepted by the Borrower, and
(e) the identity of the quoting Lender, provided that
such Competitive Bid Loan may be funded by such Lender's
-46-
Designated Lender as provided in Section 2.23(e), regardless
of whether that is specified in the Competitive Bid Quote.
(iii) The Borrower shall reject any Competitive Bid Quote
that:
(a) is not substantially in the form of Exhibit J-2
hereto or does not specify all of the information required
by Section 2.23(b)(ii),
(b) contains qualifying, conditional or similar
language, other than any such language contained in Exhibit
J-2 hereto,
(c) proposes terms other than or in addition to those
set forth in the applicable Invitation for Competitive Bid
Quotes, or
(d) arrives after the time set forth in Section
2.23(b)(i).
If any Competitive Bid Quote shall be rejected pursuant to this Section
2.23(b)(iii), then the Borrower shall notify the relevant Lender of such
rejection as soon as practical.
(c) Acceptance and Notice by Borrower. Not later than (i) 3:00
p.m. (New York time) at least three Business Days prior to the
proposed Borrowing Date in the case of a request for a Competitive
LIBOR Margin or (ii) 11:00 a.m. (New York time) on the proposed
Borrowing Date, in the case of a request for an Absolute Rate (or, in
either case upon reasonable prior notice to the Lenders, such other
time and date as the Borrower and the Administrative Agent may agree),
the Borrower shall notify the Lenders and Administrative Agent of its
acceptance or rejection of the offers submitted to it pursuant to
Section 2.23(b); provided, however, that the failure by the Borrower
to give such notice to the Lenders and Administrative Agent shall be
deemed to be a rejection of all such offers. In the case of
acceptance, such notice to each Lender and the Administrative Agent
shall specify the aggregate principal amount of offers for each
Interest Period that are accepted and the applicable interest rate.
The Borrower may accept any Competitive Bid Quote in whole or in part
(subject to the terms of Section 2.23(b)(iii)); provided that:
(i) the aggregate principal amount of all Competitive Bid
Loans to be disbursed on a given Borrowing Date may not exceed
the applicable amount set forth in the related Invitation for
Competitive Bid Quote,
(ii) acceptance of offers may only be made on the basis of
ascending Competitive LIBOR Margins or Absolute Rates, as the
case may be, and
(iii) the Borrower may not accept any offer that is
described in Section 2.23(b)(iii) or that otherwise fails to
comply with the requirements of this Agreement.
-47-
(d) Allocation by Borrower. If offers are made by two or more
Lenders with the same Competitive LIBOR Margins or Absolute Rates, as
the case may be, for a greater aggregate principal amount than the
amount in respect of which offers are accepted for the related
Interest Period, the principal amount of Competitive Bid Loans in
respect of which such offers are accepted shall be allocated by the
Borrower among such Lenders as nearly as possible (in such multiples,
not greater than $1,000,000, as the Administrative Agent may deem
appropriate) in proportion to the aggregate principal amount of such
offers provided, however, that no Lender shall be allocated any
Competitive Bid Loan which is less than the minimum amount which such
Lender has indicated that it is willing to accept. Allocations by the
Borrower of the amounts of Competitive Bid Loans shall be conclusive
in the absence of manifest error.
(e) Designated Lenders. A Lender may designate its Designated
Lender to fund a Competitive Bid Loan on its behalf as described in
Section 2.23(b)(ii)(e). Any Designated Lender which funds a
Competitive Bid Loan shall on and after the time of such funding
become the obligee under such Competitive Bid Loan and be entitled to
receive payments thereof when due. No Lender shall be relieved of its
obligation to fund a Competitive Bid Loan, and no Designated Lender
shall assume such obligation, prior to the time such Competitive Bid
Loan is funded.
2.24 Application of Moneys Received. All moneys collected or received by
the Administrative Agent on account of the Facility directly or indirectly,
shall be applied in the following order of priority:
(i) to the payment of all reasonable costs incurred in the collection
of such moneys of which the Administrative Agent shall have given notice to
the Borrower;
(ii) to the reimbursement of any yield protection due to any of the
Lenders in accordance with Section 3.1;
(iii) to the payment of any fee due pursuant to Section 2A.8(b) in
connection with the issuance of a Facility Letter of Credit to the Issuing
Lender, to the payment of the Facility Fee to the Lenders, if then due, and
to the payment of all fees to the Administrative Agent;
(iv) to payment of the full amount of interest and principal on the
Swingline Loans;
(v) first to interest and the Facility Letter of Credit Fee then due
to the Lenders until paid in full and then to principal for all Lenders
(other than Defaulting Lenders) (i) as allocated by the Borrower (unless a
Default exists) among the Facilities and between Competitive Bid Loans and
ratable Borrowings (the amount allocated to ratable Borrowings under either
of the Facilities to be distributed in accordance with the applicable pro
rata shares of the outstanding amounts of the Lenders for the applicable
Facility) or (ii) if a Default exists, in accordance with the respective
Funded Percentages of the Lenders until principal is paid in full, each
Lender's share of such payment to be
-48-
allocated pro rata among the outstanding Classes and Types of Loans owed to
such Lender and then to the Letter of Credit Collateral Account until the
full amount of LC Exposures is on deposit therein;
(vi) any other sums due to the Administrative Agent or any Lender
under any of the Loan Documents; and
(vii) to the payment of any sums due to each Defaulting Lender as
their respective Percentages appear (provided that Administrative Agent
shall have the right to set-off against such sums any amounts due from such
Defaulting Lender).
2.25 Usury. This Agreement and each Note and Competitive Bid Note are
subject to the express condition that at no time shall Borrower be obligated or
required to pay interest on the principal balance of the Loan at a rate which
could subject any Lender (including the Swingline Lender) to either civil or
criminal liability as a result of being in excess of the Maximum Legal Rate. If
by the terms of this Agreement or the Loan Documents, Borrower is at any time
required or obligated to pay interest on the principal balance due hereunder at
a rate in excess of the Maximum Legal Rate, the interest rate or the Default
Rate, as the case may be, shall be deemed to be immediately reduced to the
Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate
shall be deemed to have been payments in reduction of principal and not on
account of the interest due hereunder. All sums paid or agreed to be paid to
Lender for the use, forbearance, or detention of the sums due under the Loan,
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated, and spread throughout the full stated term of the Loan until payment
in full so that the rate or amount of interest on account of the Loan does not
exceed the Maximum Legal Rate of interest from time to time in effect and
applicable to the Loan for so long as the Loan is outstanding.
2.26 Special Provisions Regarding Foreign Currency Loans.
(a) Upon the occurrence of a Sharing Event, automatically (and
without the taking of any action) (i) all then outstanding
Eurocurrency Borrowings denominated in a currency other than Dollars
shall be automatically converted into Floating Rate Borrowings
denominated in Dollars (in an amount equal to the Dollar Equivalent of
the aggregate principal amount of the applicable Eurocurrency
Borrowings on the date such Sharing Event first occurred, which Loans
denominated in Dollars (1) shall thereafter continue to be deemed to
be Floating Rate Borrowings and (2) unless the Sharing Event resulted
solely from a termination of the Commitments, shall be immediately due
and payable on the date such Sharing Event has occurred) and (ii)
unless the Sharing Event resulted solely from a termination of the
Commitments, all accrued and unpaid interest and other amounts owing
with respect to such Loans shall be immediately due and payable in
Dollars, using the Dollar Equivalent of such accrued and unpaid
interest and other amounts.
(b) Upon the occurrence of a Sharing Event, and after giving
effect to any automatic conversion pursuant to Section 2.26(a), each
Lender shall (and hereby unconditionally and irrevocably agrees to)
purchase and sell (in each case in Dollars) undivided participating
interests in all such Loans outstanding so that
-49-
each Lender shall have a share of such outstanding Loans equal to its
pro rata share of the aggregate Domestic Revolving Commitments, and
aggregate Global Revolving Commitments (provided that if such purchase
of a participating interest would increase the Lender's Revolving
Exposure to an amount greater than its Revolving Commitment then the
amount of the participation it would be required to purchase would be
reduced by such excess amount). Upon any such occurrence, the
Administrative Agent shall notify each Lender and shall specify the
amount of Dollars required from such Lender in order to effect the
purchases and sales by the various Lenders of participating interests
in the amounts required above (together with accrued interest with
respect to the period for the last interest payment date through the
date of the Sharing Event plus any additional amounts payable by the
Borrower pursuant to this Section in respect of such accrued but
unpaid interest); provided, in the event that a Sharing Event shall
have occurred, each Lender shall be deemed to have purchased,
automatically and without request, such participating interests.
Promptly upon receipt of such request, each Lender shall deliver to
the Administrative Agent (in immediately available funds in Dollars)
the net amounts as specified by the Administrative Agent. The
Administrative Agent shall promptly deliver the amounts so received to
the various Lenders in such amounts as are needed to effect the
purchases and sales of participations as provided above. Promptly
following receipt thereof, each Lender which has sold participations
in any of its Loans (through the Administrative Agent) will deliver to
each Lender (through the Administrative Agent) which has so purchased
a participating interest a participation certificate dated the date of
receipt of such funds and in such amount. It is understood that the
amount of funds delivered by each Lender shall be calculated on a net
basis, giving effect to both the sales and purchases of participations
by the various Lenders as required above.
(c) Upon the occurrence of a Sharing Event all amounts from time
to time accruing with respect to, and all amounts from time to time
payable on account of, any outstanding Eurocurrency Borrowings
initially denominated in a Qualified Foreign Global Currency
(including, without limitation, any interest and other amounts which
were accrued but unpaid on the date of such purchase) shall be payable
in Dollars as if such Eurocurrency Borrowing had originally been made
in Dollars.
(d) If any amount required to be paid by any Lender pursuant to
Section 2.26(b) is not paid to the Administrative Agent within one (1)
Business Day following the date upon which such Lender receives notice
from the Administrative Agent of the amount of its participations
required to be purchased pursuant to Section 2.26(b), such Lender
shall also pay to the Administrative Agent on demand an amount equal
to the product of (i) the amount so required to be paid by such Lender
for the purchase of its participations multiplied by (ii) the daily
average Federal Funds Effective Rate during the period from and
including the date of request for payment to the date on which such
payment is immediately available to the Administrative Agent
multiplied by (iii) a fraction the numerator of which is the number of
days that elapsed during such period and the
-50-
denominator of which is 360. If any such amount required to be paid by
any Lender pursuant to Section 2.26(b) is not in fact made available
to the Administrative Agent within three (3) Business Days following
the date upon which such Lender receives notice from the
Administrative Agent as to the amount of participations required to be
purchased by it, the Administrative Agent shall be entitled to recover
from such Lender on demand, such amount with interest thereon
calculated from such request date at the rate per annum applicable to
Floating Rate Borrowings. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts payable by any
Lender pursuant to this Section shall be conclusive and binding.
(e) Each Lender's obligation to purchase participating interests
pursuant to this Section shall be absolute and unconditional and shall
not be affected by any circumstance including, without limitation, (i)
any setoff, counterclaim, recoupment, defense or other right which
such Lender may have against any other Lender, the Borrower or any
other Person for any reason whatsoever, (ii) the occurrence or
continuance of a Default, (iii) any adverse change in the condition
(financial or otherwise) of any Party or any other Person, (iv) any
breach of this Agreement by any Party, any Lender or any other Person,
or (v) any other circumstance, happening or event whatsoever, whether
or not similar to any of the foregoing.
(f) Notwithstanding anything to the contrary contained elsewhere
in this Agreement, upon any purchase of participations as required
above, each Lender which has purchased such participations shall be
entitled to receive from the Borrower any increased costs and
indemnities directly from the Borrower to the same extent as if it
were the direct Lender as opposed to a participant therein. The
Borrower acknowledges and agrees that, upon the occurrence of a
Sharing Event and after giving effect to the requirements of this
Section, increased Taxes may be owing by the Borrower pursuant to
Section 3.5, which Taxes shall be paid (to the extent provided in
Section 3.5 by the Borrower, without any claim that the increased
Taxes are not payable because same resulted from the participations
effected as otherwise required by this Section.
ARTICLE IIA
THE LETTER OF CREDIT SUBFACILITY
2A.1 Obligation to Issue. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of the
Borrower herein set forth, the Issuing Lender hereby agrees to issue for the
account of the Borrower, one or more Facility Letters of Credit in accordance
with this Article 2A, from time to time during the period commencing on the date
hereof and ending on the fifth Business Day prior to the Facility Termination
Date. Any
-51-
Lender shall have the right to decline to be the Issuing Lender for a Facility
Letter of Credit provided that if no other Lender agrees to be the Issuing
Lender then the Administrative Agent shall agree to do so.
2A.2 Types and Amounts. The Issuing Lender shall not:
(i) issue any Facility Letter of Credit if the aggregate maximum
amount then available for drawing under Letters of Credit issued by such
Issuing Lender, after giving effect to the Facility Letter of Credit
requested hereunder, shall exceed any limit imposed by law or regulation
upon such Issuing Lender;
(ii) issue any Facility Letter of Credit if, after giving effect
thereto, the LC Exposure would exceed $50,000,000 or the Total Domestic
Exposure plus the amount of all outstanding Competitive Bid Loans would
exceed the aggregate Domestic Revolving Commitments;
(iii) issue any Alternative Currency Letter of Credit if it has
determined that it is unlawful to fund obligations in the Alternative
Currency in which it is denominated, or
(iv) issue any Facility Letter of Credit having an expiration date, or
containing automatic extension provisions to extend such date, to a date
which is later than five (5) Business Days prior to the Facility
Termination Date (subject to the provisions set forth below).
Notwithstanding the foregoing conditions contained in 2.A. 2 (iv) above, a
Facility Letter of Credit may have an expiration date that is up to two (2)
years after the maturity of the Facility provided that not later than ninety
(90) days prior to such maturity, Borrower provides cash or other collateral
acceptable to all Lenders in the full amount available to be drawn (using the
Dollar Equivalent thereof in the case of any Alternative Currency Letters of
Credit) under all Facility Letters of Credit with expiration dates after the
maturity date of the Facility. Any such collateral shall be held in the Letter
of Credit Collateral Account.
2A.3 Conditions. In addition to being subject to the satisfaction of the
conditions contained in Section 4.2 hereof, the obligation of the Issuing Lender
to issue any Facility Letter of Credit is subject to the satisfaction in full of
the following conditions:
(i) the Borrower shall have delivered to the Issuing Lender at such
times and in such manner as the Issuing Lender may reasonably prescribe
such documents and materials as may be reasonably required pursuant to the
terms of the proposed Facility Letter of Credit (it being understood that
if any inconsistency exists between such documents and the Loan Documents,
the terms of the Loan Documents shall control) and the proposed Facility
Letter of Credit shall be reasonably satisfactory to the Issuing Lender as
to form and content; and
(ii) as of the date of issuance, no order, judgment or decree of any
court, arbitrator or governmental authority shall purport by its terms to
enjoin or restrain the Issuing Lender from issuing the requested Facility
Letter of Credit and no law, rule or regulation applicable to the Issuing
Lender and no request or derivative (whether or not
-52-
having the force of law) from any governmental authority with jurisdiction
over the Issuing Lender shall prohibit or request that the Issuing Lender
refrain from the issuance of Letters of Credit generally or the issuance of
the requested Facility Letter of Credit in particular.
2A.4 Procedure for Issuance of Facility Letters of Credit.
(a) Borrower shall give the Issuing Lender and the Administrative
Agent at least five (5) Business Days' prior written notice of any
requested issuance of a Facility Letter of Credit under this Agreement
(a "Letter of Credit Request") (except that, in lieu of such written
notice, the Borrower may give the Issuing Lender and the
Administrative Agent telephonic notice of such request if confirmed in
writing by delivery to the Issuing Lender and the Administrative Agent
immediately (A) of a telecopy of the written notice required
hereunder, or (B) of a telex containing all information required to be
contained in such written notice; such notice shall be irrevocable and
shall specify:
(i) the stated amount of the Facility Letter of Credit
requested (which stated amount shall not be less than $50,000);
and
(ii) the effective date (which day shall be a Business Day)
of issuance of such requested Facility Letter of Credit (the
"Issuance Date"); and
(iii) the date on which such requested Facility Letter of
Credit is to expire (which date shall be a Business Day and shall
in no event be later than the latest permissible date pursuant to
Section 2A.2; and
(iv) the purpose for which such Facility Letter of Credit is
to be issued; and
(v) the full name and the address of the Person for whose
benefit the requested Facility Letter of Credit is to be issued;
and
(vi) whether an Alternative Currency Letter of Credit is
being requested and, if so, in which Alternative Currency,
provided that if no Alternative Currency is requested, the
Facility Letter of Credit shall be issued in Dollars.
At the time such request is made, the Borrower shall also provide the
Administrative Agent and the Issuing Lender with a copy of the form of
the Facility Letter of Credit that the Borrower is requesting be
issued, which shall be subject to the approval of the Issuing Lender
and Administrative Agent. Such notice, to be effective, must be
received by such Issuing Lender and the Administrative Agent not later
than 3:00 p.m. (New York time) on the last Business Day on which
notice can be given under this Section 2A.4(a). Following receipt of
such notice and prior to the issuance of the requested Facility Letter
of Credit, the Administrative Agent shall calculate the Dollar
Equivalent of
-53-
such Facility Letter of Credit and shall notify the Parent Borrower,
the relevant Borrower and the applicable Issuing Lender of the amount
of the Total Domestic Exposure after giving effect to (i) the issuance
of such Facility Letter of Credit, (ii) the issuance or expiration of
any other Facility Letter of Credit that is to be issued or will
expire prior to the requested date of issuance of such Facility Letter
of Credit and (iii) the borrowing or repayment of any Domestic
Revolving Loans or Swingline Loans that (based upon notices delivered
to the Administrative Agent by the Parent Borrower) are to be borrowed
or repaid prior to the requested date of issuance of such Facility
Letter of Credit. A Facility Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Facility Letter of Credit the Parent
Borrower and the relevant Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment,
renewal or extension (i) the LC Exposure shall not exceed $50,000,000,
and (ii) the Total Domestic Exposure plus the amount of all
outstanding Competitive Bid Loans shall not exceed the aggregate
Domestic Revolving Commitments. A Facility Letter of Credit shall not
be issued, extended or renewed if the Issuing Lender has received
written notice from the Administrative Agent at least one (1) Business
Day prior to the date of such requested issuance, extension or
renewal, that one or more applicable conditions contained in Section
4.2 shall not be satisfied. Administrative Agent shall promptly give a
copy of the Letter of Credit Request to the other Lenders.
(b) Subject to the terms and conditions of this Article IIA and
provided that the applicable conditions set forth in Section 4.2
hereof have been satisfied, such Issuing Lender shall, on the Issuance
Date, issue a Facility Letter of Credit on behalf of the Borrower in
accordance with the Letter of Credit Request and the Issuing Lender's
usual and customary business practices unless the Issuing Lender has
actually received (i) written notice from the Borrower specifically
revoking the Letter of Credit Request with respect to such Facility
Letter of Credit, (ii) written notice from a Lender, which complies
with the provisions of Section 2A.6(a), or (iii) written or telephonic
notice from the Administrative Agent stating that the issuance of such
Facility Letter of Credit would violate Section 2A.2.
(c) The Issuing Lender shall give the Administrative Agent and
the Borrower written or telex notice, or telephonic notice confirmed
promptly thereafter in writing, of the issuance of a Facility Letter
of Credit (the "Issuance Notice") and the Administrative Agent shall
promptly give a copy of the Issuance Notice to the other Lenders.
(d) The Issuing Lender shall not extend or amend any Facility
Letter of Credit unless the requirements of this Section 2A.4 are met
as though a new Facility Letter of Credit was being requested and
issued.
2A.5 Reimbursement Obligations; Duties of Issuing Lender.
(a) If the applicable Issuing Lender shall make any LC
Disbursement in respect of a Facility Letter of Credit, the relevant
Borrower shall reimburse
-54-
such LC Disbursement by paying to the Administrative Agent an amount
equal to such LC Disbursement in Dollars, or (subject to the two
immediately succeeding sentences) the applicable Alternative Currency,
not later than 12:00 noon, New York City time, as applicable, on the
date that such LC Disbursement is made, if such Borrower shall have
received notice of such LC Disbursement prior to 10:00 a.m., New York
City time, as applicable, on such date, or, if such notice has not
been received by such Borrower prior to such time on such date, then
not later than 12:00 noon, New York City time, as applicable, on the
Business Day immediately following the day that such Borrower receives
such notice; provided that, in the case of any LC Disbursement made in
Dollars, the relevant Borrower may, subject to the conditions to
borrowing set forth herein, request in accordance with Section 2.3 or
2.4 that such payment be financed in Dollars with a Floating Rate
Borrowing under the Domestic Revolving Facility or Swingline Loan in
an equivalent amount and, to the extent so financed, such Borrower's
obligation to make such payment shall be discharged and replaced by
the resulting Floating Rate Borrowing or Swingline Loan. If the
relevant Borrower's reimbursement of, or obligation to reimburse, any
amounts in any Alternative Currency would subject the Administrative
Agent, the applicable Issuing Lender or any Lender to any stamp duty,
ad valorem charge or similar tax that would not be payable if such
reimbursement were made or required to be made in Dollars, such
Borrower shall, at its option, either (x) pay the amount of any such
tax requested by the Administrative Agent, the relevant Issuing Lender
or Lender or (y) reimburse each LC Disbursement made in such
Alternative Currency in Dollars, in an amount equal to the Dollar
Equivalent, calculated using the applicable Exchange Rate on the date
such LC Disbursement is made, of such LC Disbursement. If the relevant
Borrower fails to make such payment when due, then (i) if such payment
relates to an Alternative Currency Letter of Credit, automatically and
with no further action required, such Borrower's obligation to
reimburse the applicable LC Disbursement shall be permanently
converted into an obligation to reimburse the Dollar Equivalent,
calculated using the Exchange Rates on the date when such payment was
due, of such LC Disbursement and (ii) the Administrative Agent shall
promptly notify the applicable Issuing Lender and each other Domestic
Revolving Lender of the applicable LC Disbursement, the Dollar
Equivalent thereof (if such LC Disbursement relates to an Alternative
Currency Letter of Credit), the payment then due from such Borrower in
respect thereof and such Lender's Percentage thereof. Promptly
following receipt of such notice, each Domestic Revolving Lender shall
pay to the Administrative Agent in Dollars its Percentage of the
payment then due from the relevant Borrower (determined as provided in
clause (i) above, if such payment relates to an Alternative Currency
Letter of Credit), in the same manner as provided in Section 2.6 with
respect to Loans made by such Lender (and Section 2.10 shall apply,
mutatis mutandis, to the payment obligations of the Domestic Revolving
Lenders), and the Administrative Agent shall promptly pay to the
applicable Issuing Lender in Dollars the amounts so received by it
from the Domestic Revolving Lenders. Promptly following receipt by the
Administrative Agent of any payment from any Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to
the applicable Issuing Lender or, to the extent that Domestic
-55-
Revolving Lenders have made payments pursuant to this paragraph to
reimburse such Issuing Lender, then to such Lenders and such Issuing
Lender as their interests may appear. Any payment made by a Domestic
Revolving Lender pursuant to this paragraph to reimburse any Issuing
Lender for any LC Disbursement (other than the funding of Floating
Rate Domestic Revolving Loans or a Swingline Loan as contemplated
above) shall not constitute a Loan and shall not relieve any Borrower
of its obligation to reimburse such LC Disbursement.
(b) If an Issuing Lender shall make any LC Disbursement, then,
unless the relevant Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made (in the local time where
the LC Disbursement is made regardless of when such reimbursement is
due under Section 2A.5(a)), the unpaid amount thereof shall bear
interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that such Borrower
reimburses such LC Disbursement, at the rate per annum then applicable
to Floating Rate Borrowings; provided that, if such Borrower fails to
reimburse such LC Disbursement when due pursuant to paragraph (a) of
this Section, then Section 2.12 shall apply; provided further that, in
the case of an LC Disbursement made under an Alternative Currency
Letter of Credit, the amount of interest due with respect thereto
shall (i) in the case of any LC Disbursement that is reimbursed on or
before the Business Day immediately succeeding such LC Disbursement,
(A) be payable in the applicable Alternative Currency and (B) if not
reimbursed on the date of such LC Disbursement, bear interest at a
rate equal to the rate reasonably determined by the applicable Issuing
Lender to be the cost to such Issuing Lender of funding such LC
Disbursement plus the Applicable Margin applicable to Eurocurrency
Revolving Loans at such time and (ii) in the case of any LC
Disbursement that is reimbursed after the Business Day immediately
succeeding such LC Disbursement (A) be payable in Dollars, (B) accrue
on the Dollar Equivalent, calculated using the Exchange Rates on the
date such LC Disbursement was made, of such LC Disbursement and (C)
bear interest at the rate per annum then applicable to Floating Rate
Revolving Loans, subject to Section 2.12. Interest accrued pursuant to
this paragraph shall be for the account of the applicable Issuing
Lender, except that interest accrued on and after the date of payment
by any Domestic Revolving Lender pursuant to Section 2A.5 to reimburse
such Issuing Lender shall be for the account of such Lender to the
extent of such payment.
2A.6 Participation.
(a) Immediately upon issuance by the Issuing Lender of any
Facility Letter of Credit in accordance with the procedures set forth
in Section 2A.4, each Domestic Revolving Lender shall be deemed to
have irrevocably and unconditionally purchased and received from the
Issuing Lender, without recourse, representation or warranty, an
undivided interest and participation equal to such Lender's Percentage
in such Facility Letter of Credit (including, without limitation, all
obligations of the Borrower with respect thereto) and any security
therefor or guaranty pertaining thereto (using the Dollar Equivalent
thereof in the
-56-
case of any Alternative Currency Letters of Credit); provided that a
Facility Letter of Credit issued by the Issuing Lender shall not be
deemed to be a Facility Letter of Credit for purposes of this Section
2A.6 if the Issuing Lender shall have received written notice from any
Lender on or before the Business Day prior to the date of its issuance
of such Facility Letter of Credit that one or more of the conditions
contained in Section 2A.2 is not then satisfied, and in the event the
Issuing Lender receives such a notice it shall have no further
obligation to issue any Facility Letter of Credit until such notice is
withdrawn by that Lender or the Issuing Lender receives a notice from
the Administrative Agent that such condition has been effectively
waived in accordance with the provisions of this Agreement. Each
Domestic Revolving Lender's obligation to make further Domestic
Revolving Loans to the Borrower (other than any payments such Lender
is required to make under subparagraph (b) below) or issue any letters
of credit on behalf of Borrower shall be reduced by such Lender's
Percentage of each Facility Letter of Credit outstanding.
(b) In the event that the Issuing Lender makes any payment under
any Facility Letter of Credit and the Borrower shall not have repaid
such amount to the Issuing Lender pursuant to Section 2A.7 hereof, the
Issuing Lender shall promptly notify the Administrative Agent, which
shall promptly notify each Domestic Revolving Lender of such failure,
and each Domestic Revolving Lender shall promptly and unconditionally
pay to the Administrative Agent for the account of the Issuing Lender
the amount of such Lender's Percentage of (i) each LC Disbursement
made by such Issuing Lender in Dollars and (ii) the Dollar Equivalent,
using the Exchange Rates on the date such payment is required, of each
LC Disbursement made by such Issuing Lender in an Alternative Currency
and, in each case, not reimbursed by the relevant Borrower on the date
due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to such Borrower for any
reason (or, if such reimbursement payment was refunded in an
Alternative Currency, the Dollar Equivalent thereof using the Exchange
Rates on the date of such refund). The failure of any Domestic
Revolving Lender to make available to the Administrative Agent for the
account of any Issuing Lender its Percentage of the unreimbursed
amount of any such payment shall not relieve any other Lender of its
obligation hereunder to make available to the Administrative Agent for
the account of such Issuing Lender its Percentage of the unreimbursed
amount of any payment on the date such payment is to be made, but no
Lender shall be responsible for the failure of any other Lender to
make available to the Administrative Agent its Percentage of the
unreimbursed amount of any payment on the date such payment is to be
made. Any Lender which fails to make any payment required pursuant to
this Section 2A.6(b) shall be deemed to be a Defaulting Lender
hereunder.
(c) Whenever the Issuing Lender receives a payment on account of
a Reimbursement Obligation, including any interest thereon, the
Issuing Lender shall promptly pay to the Administrative Agent and the
Administrative Agent shall promptly pay to each Lender which has
funded its participating interest
-57-
therein, in immediately available funds, an amount equal to such
Lender's Percentage thereof.
(d) Upon the request of the Administrative Agent or any Lender,
an Issuing Lender shall furnish to the Administrative Agent or such
Lender copies of any Facility Letter of Credit to which that Issuing
Lender is party and such other documentation as may reasonably be
requested by the Administrative Agent or such Lender.
(e) The obligations of a Lender to make payments to the
Administrative Agent for the account of each Issuing Lender with
respect to a Facility Letter of Credit shall be absolute,
unconditional and irrevocable, not subject to any counterclaim,
set-off, qualification or exception whatsoever other than a failure of
any such Issuing Lender to comply with the terms of this Agreement
relating to the issuance of such Facility Letter of Credit and shall
be made in accordance with the terms and conditions of this Agreement
under all circumstances.
2A.7 Payment of Reimbursement Obligations.
(a) The Borrower agrees to pay to each Issuing Lender the amount
of all Reimbursement Obligations, interest and other amounts payable
to such Issuing Lender under or in connection with any Facility Letter
of Credit when due in accordance with Section 2A.5(a) above,
irrespective of any claim, set-off, defense or other right which the
Borrower may have at any time against any Issuing Lender or any other
Person, under all circumstances, including without limitation any of
the following circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower may have at any time against a
beneficiary named in a Facility Letter of Credit or any
transferee of any Facility Letter of Credit (or any Person for
whom any such transferee may be acting), the Administrative
Agent, the Issuing Lender, any Lender, or any other Person,
whether in connection with this Agreement, any Facility Letter of
Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transactions between the
Borrower and the beneficiary named in any Facility Letter of
Credit);
(iii) any draft, certificate or any other document presented
under the Facility Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect of any
statement therein being untrue or inaccurate in any respect;
-58-
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents; or
(v) the occurrence of any Default or Unmatured Default.
(b) In the event any payment by the Borrower received by the
Issuing Lender with respect to a Facility Letter of Credit and
distributed by the Administrative Agent to the Lenders on account of
their participations is thereafter set aside, avoided or recovered
from the Issuing Lender in connection with any receivership,
liquidation, reorganization or bankruptcy proceeding, each Lender
which received such distribution shall, upon demand by the Issuing
Lender, contribute such Lender's Percentage of the amount set aside,
avoided or recovered together with interest at the rate required to be
paid by the Issuing Lender upon the amount required to be repaid by
the Issuing Lender.
2A.8 Compensation for Facility Letters of Credit.
(a) The Borrower shall pay to the Administrative Agent, for the
ratable account of the Domestic Revolving Lenders, based upon such
Lenders' respective Percentages, a per annum fee (the "Facility Letter
of Credit Fee") with respect to the face amount of each Facility
Letter of Credit (taking into account any reductions from time to
time) that is equal to the LIBOR Applicable Margin. The Facility
Letter of Credit Fee relating to any Facility Letter of Credit shall
be due and payable in arrears in equal installments on each Payment
Date and, to the extent any such fees are then due and unpaid, on the
Facility Termination Date. The Administrative Agent shall promptly
remit such Facility Letter of Credit Fees, when paid, to the other
Domestic Revolving Lenders in accordance with their Percentages
thereof. The fee due in connection with a Facility Letter of Credit
issued in an Alternative Currency shall be calculated by multiplying
(x) the average daily balance of each Alternative Currency Letter of
Credit (expressed in the currency in which such Alternative Currency
Letter of Credit is denominated) by (y) the Exchange Rate for each
such Alternative Currency in effect on the last Business Day of such
period or by such other reasonable method that the Administrative
Agent deems appropriate.
(b) The Issuing Lender also shall have the right to receive
solely for its own account an issuance fee of 0.10% of the face amount
of each Facility Letter of Credit, payable by the Borrower on the
Issuance Date for each such Facility Letter of Credit. The Issuing
Lender shall also be entitled to receive its reasonable out-of-pocket
costs and the Issuing Lender's standard charges of issuing, amending
and servicing Facility Letters of Credit and processing draws
thereunder. The Borrower shall pay such issuance fee and other amounts
when due to the Issuing Lender.
2A.9 Letter of Credit Collateral Account. The Borrower hereby agrees that
it will, from the time a deposit is required pursuant to Section 8.1, Section
2A.2, or Section 2.8(b) until Obligations are satisfied and all Facility Letters
of Credit have expired or been terminated,
-59-
maintain a special collateral account (the "Letter of Credit Collateral
Account") at the Administrative Agent's office at the address specified pursuant
to Article XIII, in the name of the Borrower but under the sole dominion and
control of the Administrative Agent, for the benefit of the Domestic Revolving
Lenders, and in which the Borrower shall have no interest other than as set
forth in Section 8.1. Such Letter of Credit Collateral Account shall be funded
to the extent required by Section 8.1, Section 2A.2, or Section 2.8(b). In
addition to the foregoing, the Borrower hereby grants to the Administrative
Agent, for the benefit of the Lenders, a properly perfected security interest in
and to the Letter of Credit Collateral Account, any funds that may hereafter be
on deposit in such account and the proceeds thereof.
2A.10 Conversion. In the event that the Loans become immediately due and
payable on any date pursuant to Article VIII, all amounts (i) that a Borrower is
at the time or thereafter becomes required to reimburse or otherwise pay to the
Administrative Agent in respect of LC Disbursements made under any Alternative
Currency Letter of Credit (other than amounts in respect of which such Borrower
has deposited cash collateral pursuant to this Agreement, if such cash
collateral was deposited in the applicable Alternative Currency to the extent so
deposited or applied), (ii) that the Domestic Revolving Lenders are at the time
or thereafter become required to pay to the Administrative Agent and the
Administrative Agent is at the time or thereafter becomes required to distribute
to the applicable Issuing Lender pursuant to 2A.5 in respect of unreimbursed LC
Disbursements made under any Alternative Currency Letter of Credit and (iii) of
each Domestic Revolving Lender's participation in any Alternative Currency
Letter of Credit under which an LC Disbursement has been made shall,
automatically and with no further action required, be converted into the Dollar
Equivalent, calculated using the Exchange Rates on such date (or in the case of
any LC Disbursement made after such date, on the date such LC Disbursement is
made), of such amounts. On and after such conversion, all amounts accruing and
owed to the Administrative Agent, the applicable Issuing Lender or any Lender in
respect of the Obligations described in this paragraph shall accrue and be
payable in Dollars at the rates otherwise applicable hereunder.
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1 Yield Protection. If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation or the Issuing Lender with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency (collectively, "Change in Law"):
(i) subjects any Lender or any applicable Lending Installation or the
Issuing Lender to any Taxes, or changes the basis of taxation of payments
(other than with respect to Excluded Taxes) to any Lender or the Issuing
Lender in respect of its Eurocurrency Loans, Facility Letters of Credit or
participations therein, or
-60-
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Lender or
any applicable Lending Installation or the Issuing Lender (other than
reserves and assessments taken into account in determining the interest
rate applicable to Fixed Rate Borrowings), or
(iii) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation or the
Issuing Lender of making, funding or maintaining its Fixed Rate Loans, or
of issuing or participating in Facility Letters of Credit, or reduces any
amount receivable by any Lender or any applicable Lending Installation or
the Issuing Lender in connection with its Fixed Rate Loans, Facility
Letters of Credit or participations therein, or requires any Lender or any
applicable Lending Installation or the Issuing Lender to make any payment
calculated by reference to the amount of Fixed Rate Loans, Facility Letters
of Credit or participations therein held or interest or Facility Letter of
Credit Fees received by it, by an amount deemed material by such Lender or
the Issuing Lender as the case may be,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or the Issuing Lender, as the case may be, of
making or maintaining its Fixed Rate Loans or Commitment or of issuing or
participating in Facility Letters of Credit or to reduce the return receivable
by such Lender or applicable Lending Installation or the Issuing Lender, as the
case may be, in connection with such Fixed Rate Loans, Commitment, Facility
Letters of Credit or participations therein, then, within 30 days of demand by
such Lender or the Issuing Lender, as the case may be, the Borrower shall pay
such Lender or the Issuing Lender, as the case may be, such additional amount or
amounts as will compensate such Lender or the Issuing Lender, as the case may
be, for such increased cost or reduction in amount receivable.
3.2 Changes in Capital Adequacy Regulations. If a Lender or the Issuing
Lender in good faith determines the amount of capital required or expected to be
maintained by such Lender or the Issuing Lender, any Lending Installation of
such Lender or the Issuing Lender or any corporation controlling such Lender or
the Issuing Lender is increased as a result of a Change (as hereinafter
defined), then, within 30 days of demand by such Lender or the Issuing Lender,
the Borrower shall pay such Lender or the Issuing Lender the amount necessary to
compensate for any shortfall in the rate of return on the portion of such
increased capital which such Lender or the Issuing Lender in good faith
determines is attributable to this Agreement, its Outstanding Credit Exposure or
its obligation to make Loans and issue or participate in Facility Letters of
Credit, as the case may be, hereunder (after taking into account such Lender's
or the Issuing Lender's policies as to capital adequacy). "Change" means (i) any
change after the date of this Agreement in the Risk-Based Capital Guidelines (as
hereinafter defined) or (ii) any adoption of or change in any other law,
governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
date of this Agreement which affects the amount of capital required or expected
to be maintained by any Lender or the Issuing Lender or any Lending Installation
or any corporation controlling any Lender or the Issuing Lender. "Risk-Based
Capital Guidelines" means (i) the risk-based capital guidelines in effect in the
United States on the date of this Agreement, including transition rules, and
(ii) the corresponding capital regulations promulgated by regulatory authorities
outside the United States implementing the July 1988 report of the Basle
Committee
-61-
on Banking Regulation and Supervisory Practices Entitled "International
Convergence of Capital Measurements and Capital Standards," including transition
rules, and any amendments to such regulations adopted prior to the date of this
Agreement.
3.3 Availability of Types of Borrowings. If any Lender in good faith
determines that maintenance of any of its Fixed Rate Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation or directive,
whether or not having the force of law, the Administrative Agent shall suspend
the availability of the affected Type of Borrowing and require any Fixed Rate
Borrowings of the affected Type to be repaid; or if the Required Lenders in good
faith determine that (i) deposits of a type or maturity appropriate to match
fund Fixed Rate Borrowings are not available, the Administrative Agent shall
suspend the availability of the affected Type of Borrowing with respect to any
Fixed Rate Borrowings made after the date of any such determination, or (ii) an
interest rate applicable to a Type of Borrowing does not accurately reflect the
cost of making a Fixed Rate Borrowing of such Type, then, if for any reason
whatsoever the provisions of Section 3.1 are inapplicable, the Administrative
Agent shall suspend the availability of the affected Type of Borrowing with
respect to any Fixed Rate Borrowings made after the date of any such
determination. If the Borrower is required to so repay a Fixed Rate Borrowing,
the Borrower may concurrently with such repayment borrow from the Lenders, in
the amount of such repayment, a Loan bearing interest at the Alternate Base
Rate.
3.4 Funding Indemnification. If any payment of a ratable Fixed Rate
Borrowing or a Competitive Bid Loan occurs on a date which is not the last day
of the applicable Interest Period, whether because of acceleration, prepayment
or otherwise, or a ratable Fixed Rate Borrowing or a Competitive Bid Loan is not
made on the date specified by the Borrower for any reason other than default by
the Lenders or as a result of unavailability pursuant to Section 3.3, the
Borrower will indemnify each Lender for any loss or cost (only if and to the
extent that a Lender requests such indemnification from the Borrower) incurred
by it resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain the ratable Fixed
Rate Borrowing or Competitive Bid Loan, as the case may be, and shall pay all
such losses or costs within fifteen (15) days after written demand therefor.
Without limitation of any losses arising from changes in the Fixed Rate adverse
to the Lenders, in no event will the administrative fee payable by the Borrower
as a result of such early payment or failure to make an advance exceed $250 per
contract occurrence per Lender (such amount shall be payable only if and to the
extent that a Lender requests such an administrative fee from the Borrower) to
be billed by the Administrative Agent ten (10) Business Days following
quarter-end along with breakage costs. Only if and to the extent that a Lender
requests breakage costs from the Borrower, breakage costs for the Eurocurrency
Borrowings shall be determined by the Administrative Agent on behalf of that
Lender by multiplying the amount prepaid by the amount, if any, by which (x) a
LIBOR-based rate for a term quoted on page 3750 of the Dow Xxxxx Market Service
telerate screen and closest to (but at least as long as) the remaining duration
of the Interest Period as the case may be for the principal sum being prepaid,
and for an amount comparable to such principal sum, is less than (y) the LIBOR
Base Rate in effect for the principal sum being so prepaid, immediately prior to
the prepayment of such sum, all as determined as of the date of the occurrence
of the event giving rise to the LIBOR Rate break funding. Nothing in this
Section 3.4 shall authorize the prepayment of a Competitive Bid Loan prior to
the end of the applicable Interest Period.
-62-
3.5 Taxes.
(i) All payments by the Borrower to or for the account of any Lender
or the Administrative Agent hereunder or under any Note shall be made free
and clear of and without deduction for any and all Taxes. If the Borrower
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder to any Lender or the Administrative Agent, (a) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable
under this Section 3.5) such Lender 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, (b) the Borrower shall make such deductions,
(c) the Borrower shall pay the full amount deducted to the relevant
authority in accordance with applicable law and (d) the Borrower shall
furnish to the Administrative Agent the original copy of a receipt
evidencing payment thereof within 30 days after such payment is made.
(ii) In addition, the Borrower hereby agrees to pay any present or
future stamp or documentary taxes and any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or
under any Note or from the execution or delivery of, or otherwise with
respect to, this Agreement or any Note ("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the Administrative Agent
and each Lender for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed on amounts payable
under this Section 3.5) paid by the Administrative Agent or such Lender and
any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. Payments due under this indemnification
shall be made within 30 days of the date the Administrative Agent or such
Lender makes demand therefor pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof (each a "Non-U.S. Lender") agrees that
it will, not more than ten Business Days after the date of this Agreement,
(i) deliver to each of the Borrower and the Administrative Agent two duly
completed copies of United States Internal Revenue Service Form W-8BEN or
W-8ECI (or any successor or other applicable form prescribed by the IRS),
certifying in either case that such Lender is entitled to receive payments
under this Agreement without deduction or withholding of any United States
federal income taxes, and (ii) deliver to each of the Borrower and the
Administrative Agent a United States Internal Revenue Form W-8 or W-9, as
the case may be, and certify that it is entitled to an exemption from
United States backup withholding tax. Each Non-U.S. Lender further
undertakes to deliver to each of the Borrower and the Administrative Agent
(x) renewals or additional copies of such form (or any successor form) on
or before the date that such form expires or becomes obsolete, and (y)
after the occurrence of any event requiring a change in the most recent
forms so delivered by it, such additional forms or amendments thereto as
may be reasonably requested by the Borrower or the Administrative Agent.
All forms or amendments described in the preceding sentence shall certify
that such Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes,
unless an event (including without limitation any change in treaty, law or
-63-
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which
would prevent such Lender from duly completing and delivering any such form
or amendment with respect to it and such Lender advises the Borrower and
the Administrative Agent that it is not capable of receiving payments
without any deduction or withholding of United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to
provide the Borrower with an appropriate form pursuant to clause (iv),
above (unless such failure is due to a change in treaty, law or regulation,
or any change in the interpretation or administration thereof by any
governmental authority, occurring subsequent to the date on which a form
originally was required to be provided), such Non-U.S. Lender shall not be
entitled to indemnification under this Section 3.5 with respect to Taxes
imposed by the United States.
(vi) Each Non-U.S. Lender shall promptly notify the Borrower of any
event of which it has knowledge that will result in, and will use
reasonable commercial efforts available to it to mitigate or avoid, any
obligation by the Borrower to pay any amount pursuant to Section 3.5.
Without limiting the foregoing, each Non-U.S. Lender will designate a
different funding office if such designation will avoid (or reduce the cost
to the Borrower of) any event described above.
(vii) If any Lender or the Administrative Agent receives a refund or
credit in respect of any Taxes as to which it has been indemnified by the
Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section 3.5, such Lender or Administrative Agent shall
within 30 days from the date of such receipt pay over the amount of such
refund or credit to the Borrower, net of all reasonable out-of-pocket
expenses of such Lender or Administrative Agent and without interest (other
than interest paid by the relevant Governmental Authority with respect to
such refund or credit); provided, that the Borrower, upon request of such
Lender or Administrative Agent, agrees to repay the amount paid over to the
Borrower (plus penalties, interest or other reasonable charges) to such
Lender or Administrative Agent in the event such Lender or Administrative
Agent is required to repay such refund or credit to such Governmental
Authority. This paragraph shall not be construed to require the
Administrative Agent or Lender to make available its tax returns (or any
other information relating to its taxes that it deems confidential) to the
Borrower or any other Person.
(viii) Any Lender that is entitled to an exemption from or reduction
of withholding tax with respect to payments under this Agreement or any
Note pursuant to the law of any relevant jurisdiction or any treaty shall
deliver to the Borrower (with a copy to the Administrative Agent), at the
time or times prescribed by applicable law, such properly completed and
executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate following
receipt of such documentation.
(ix) If the U.S. Internal Revenue Service or any other governmental
authority of the United States or any other country or any political
subdivision thereof asserts a
-64-
claim that the Administrative Agent did not properly withhold tax from
amounts paid to or for the account of any Lender (because the appropriate
form was not delivered or properly completed, because such Lender failed to
notify the Administrative Agent of a change in circumstances which rendered
its exemption from withholding ineffective, or for any other reason), such
Lender shall indemnify the Administrative Agent fully for all amounts paid,
directly or indirectly, by the Administrative Agent as tax, withholding
therefor, or otherwise, including penalties and interest, and including
taxes imposed by any jurisdiction on amounts payable to the Administrative
Agent under this subsection, together with all costs and expenses related
thereto (including attorneys fees and time charges of attorneys for the
Administrative Agent, which attorneys may be employees of the
Administrative Agent). The obligations of the Lenders under this Section
3.5(vii) shall survive the payment of the Obligations and termination of
this Agreement and any such Lender obligated to indemnify the
Administrative Agent shall not be entitled to indemnification from the
Borrower with respect to such amounts, whether pursuant to this Article or
otherwise, except to the extent the Borrower participated in the actions
giving rise to such liability.
3.6 Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Fixed Rate Loans to reduce any liability of the Borrower to such
Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of Fixed
Rate Borrowings under Section 3.3, so long as such designation is not, in the
reasonable judgment of such Lender, disadvantageous to such Lender. Each Lender
shall deliver a written statement of such Lender to the Borrower (with a copy to
the Administrative Agent) as to the amount due, if any, under Section 3.1, 3.2,
3.4 or 3.5. Such written statement shall set forth in reasonable detail the
calculations upon which such Lender determined such amount and shall be final,
conclusive and binding on the Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a Fixed
Rate Loan shall be calculated as though each Lender funded its Fixed Rate Loan
through the purchase of a deposit of the type and maturity corresponding to the
deposit used as a reference in determining the Fixed Rate applicable to such
Loan, whether in fact that is the case or not. Unless otherwise provided herein,
the amount specified in the written statement of any Lender shall be payable on
demand after receipt by the Borrower of such written statement. The obligations
of the Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of
the Obligations and termination of this Agreement.
3.7 Change in Law. Notwithstanding any other provision of this Agreement,
if, after the date hereof, (a) any Change in Law shall make it unlawful for any
Issuing Lender to issue Facility Letters of Credit denominated in an Alternative
Currency, or any Global Revolving Lender to make Global Revolving Loans
denominated in a Qualified Foreign Global Currency, or (b) there shall have
occurred any change in national or international financial, political or
economic conditions (including the imposition of or any change in exchange
controls) or currency exchange rates that would make it impracticable for any
Issuing Lender to issue Facility Letters of Credit denominated in such
Alternative Currency for the account of a Borrower, or any Global Revolving
Lender to make Global Revolving Loans denominated in a Qualified Foreign Global
Currency, then by prompt written notice thereof to the Parent Borrower and to
the Administrative Agent (which notice shall be withdrawn whenever such
circumstances no longer exist), (i) such Issuing Lender may declare that
Facility Letters of Credit will not thereafter be
-65-
issued by it in the affected Alternative Currency or Alternative Currencies,
whereupon the affected Alternative Currency or Alternative Currencies shall be
deemed (for the duration of such declaration) not to constitute an Alternative
Currency for purposes of the issuance of Facility Letters of Credit by such
Issuing Lender, (ii) such Global Revolving Lender may declare that Global
Revolving Loans will not thereafter be made by it in the affected Qualified
Foreign Global Currency or Qualified Foreign Global Currencies, whereupon the
affected Qualified Global Currency or Qualified Foreign Global Currencies shall
be deemed (for the duration of such declaration) not to constitute a Qualified
Foreign Global Currency for purposes of the making of Global Revolving Loans by
such Global Revolving Lender.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 Initial Borrowing. The Lenders shall not be required to make the
initial Borrowing hereunder unless (a) the Borrower shall, prior to or
concurrently with such initial Borrowing, have paid all fees due and payable to
the Lenders and the Administrative Agent hereunder, and (b) the Borrower shall
have furnished to the Administrative Agent, with sufficient copies for the
Lenders, the following (the term "Borrower" being deemed to include any
Qualified Borrower as of the Agreement Execution Date):
(i) The duly executed originals of the Loan Documents, including the
Notes, payable to the order of each of the Lenders (including the Qualified
Borrower Note and Qualified Borrower Competitive Note from each Qualified
Borrower), this Agreement, and the Qualified Borrower Guaranty;
(ii) (A) Certificates of good standing for each Borrower from the
states of organization of each Borrower, certified by the appropriate
governmental officer and dated not more than thirty (30) days prior to the
Agreement Execution Date, and (B) current foreign qualification
certificates for the Borrower, certified by the appropriate governmental
officer, for each other jurisdiction where the failure of the Borrower to
so qualify or be licensed (if required) would have a Material Adverse
Effect;
(iii) Copies of the formation documents (including code of
regulations, if appropriate) of the Borrower certified by an officer of the
Borrower, together with all amendments thereto;
(iv) Incumbency certificates, executed by officers of the Borrower,
which shall identify by name and title and bear the signature of the
Persons authorized to sign the Loan Documents and to make borrowings
hereunder on behalf of the Borrower, upon which certificate the
Administrative Agent and the Lenders shall be entitled to rely until
informed of any change in writing by the Borrower;
(v) Copies, certified by a Secretary or an Assistant Secretary of the
Borrower of the Board of Directors' resolutions (and resolutions of other
bodies, if any are reasonably deemed necessary by counsel for any Lender)
authorizing the Borrowings
-66-
provided for herein, with respect to the Borrower, and the execution,
delivery and performance of the Loan Documents to be executed and delivered
by the Borrower;
(vi) A written opinion of the Borrower's counsel, addressed to the
Lenders in substantially the form of Exhibit B hereto or such other form as
the Administrative Agent may reasonably approve;
(vii) A certificate, signed by an officer of the Borrower, stating
that on the initial Borrowing Date no Default or Unmatured Default has
occurred and is continuing and that all representations and warranties of
the Borrower are true and correct as of the initial Borrowing Date provided
that such certificate is in fact true and correct;
(viii) The most recent financial statements of the Borrower;
(ix) UCC financing statement, judgment, and tax lien searches with
respect to each Borrower from its State of organization;
(x) Written money transfer instructions, in substantially the form of
Exhibit E hereto, addressed to the Administrative Agent and signed by an
Authorized Officer, together with such other related money transfer
authorizations as the Administrative Agent may have reasonably requested;
(xi) A compliance certificate in the form of Exhibit C as of the most
recent date available, executed by the Borrower's chief financial officer
or chief accounting officer prepared on the assumption that the other
Indebtedness of Borrower being repaid by the initial Borrowing hereunder
was replaced by Borrowings hereunder for the period covered by such
certificate;
(xii) Evidence that the Commitments of any lenders under the Prior
Agreement which are not Lenders under this Agreement (the "Exiting
Lenders") have been properly terminated and all amounts due to the Exiting
Lenders have been paid, or will be paid out of the proceeds of the initial
Borrowing hereunder;
(xiii) Evidence that all upfront fees due to each of the Lenders under
the terms of their respective commitment letters have been paid, or will be
paid out of the proceeds of the initial Borrowing hereunder; and
(xiv) Such other documents as any Lender or its counsel may have
reasonably requested, the form and substance of which documents shall be
reasonably acceptable to the parties and their respective counsel.
4.2 Each Borrowing. The Lenders shall not be required to make any Borrowing
and the Issuing Lender shall not be required to issue any Facility Letters of
Credit, unless on the applicable Borrowing Date or Issuance Date:
(i) There exists no Default or Unmatured Default; and
-67-
(ii) The representations and warranties contained in Article V are
true and correct as of such Borrowing Date with respect to Borrower and to
any Subsidiary in existence on such Borrowing Date, except to the extent
any such representation or warranty is stated to relate solely to an
earlier date, in which case such representation or warranty shall be true
and correct on and as of such earlier date.
Each Borrowing Request with respect to each such Borrowing shall constitute
a representation and warranty by the Borrower that the conditions contained in
Sections 4.2(i) and (ii) have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1 Existence. DDR is a corporation duly organized and validly existing
under the laws of the State of Ohio, with its principal place of business in
Beachwood, Ohio and is duly qualified as a foreign corporation, properly
licensed (if required), in good standing and has all requisite authority to
conduct its business in each jurisdiction in which its business is conducted,
except where the failure to be so qualified, licensed and in good standing and
to have the requisite authority would not have a Material Adverse Effect. Each
Qualified Borrower is duly organized and validly existing under the laws of its
state of organization, properly licensed (if required) in good standing, and has
requisite authority to conduct its businesses in each jurisdiction in which its
business is conducted except where the failure to be qualified, licensed and in
good standing and to have the requisite authority would not have a Material
Adverse Effect. Each of Borrower's Subsidiaries is duly organized, validly
existing and in good standing under the laws of its jurisdiction of organization
and has all requisite authority to conduct its business in each jurisdiction in
which its business is conducted.
5.2 Authorization and Validity. The Borrower has the corporate power and
authority and legal right to execute and deliver the Loan Documents and to
perform its obligations thereunder. The execution and delivery by the Borrower
of the Loan Documents and the performance of its obligations thereunder have
been duly authorized by proper corporate proceedings, and the Loan Documents
constitute legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their terms, except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally.
5.3 No Conflict; Government Consent. Neither the execution and delivery by
the Borrower of the Loan Documents, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
any law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on the Borrower or any of its Subsidiaries or the Borrower's or any
Subsidiary's articles of incorporation or by-laws, or the provisions of any
indenture, instrument or agreement to which the Borrower or any of its
Subsidiaries is a party or is subject, or by which it, or its Property, is
bound, or conflict with or
-68-
constitute a default thereunder, except where such violation, conflict or
default would not have a Material Adverse Effect, or result in the creation or
imposition of any Lien in, of or on the Property of the Borrower or a Subsidiary
pursuant to the terms of any such indenture, instrument or agreement. No order,
consent, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, any governmental or public body
or authority, or any subdivision thereof, is required to authorize, or is
required in connection with the execution, delivery and performance of, or the
legality, validity, binding effect or enforceability of, any of the Loan
Documents other than the filing of a copy of this Agreement, or the filing of
information concerning this Agreement, with the Securities and Exchange
Commission.
5.4 Financial Statements; Material Adverse Change. All consolidated
financial statements of the Borrower and its Subsidiaries heretofore or
hereafter delivered to the Lenders were prepared in accordance with GAAP in
effect on the preparation date of such statements and fairly present in all
material respects the consolidated financial condition and operations of the
Borrower and its Subsidiaries at such date and the consolidated results of their
operations for the period then ended, subject, in the case of interim financial
statements, to normal and customary year-end adjustments. From the preparation
date of the most recent audited financial statements delivered to the Lenders
through the Agreement Execution Date, there was no change in the business,
properties, or condition (financial or otherwise) of the Borrower and its
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect.
5.5 Taxes. The Borrower and its Subsidiaries have filed all United States
federal tax returns and all other tax returns which are required to be filed and
have paid all taxes due pursuant to said returns or pursuant to any assessment
received by the Borrower or any of its Subsidiaries except such taxes, if any,
as are being contested in good faith and as to which adequate reserves have been
provided. No tax liens have been filed and remain outstanding for amounts in
excess of $250,000. The charges, accruals and reserves on the books of the
Borrower and its Subsidiaries in respect of any taxes or other governmental
charges are adequate.
5.6 Litigation and Guarantee Obligations. Except as set forth on Schedule 3
hereto or as set forth in written notice to the Administrative Agent from time
to time, there is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the knowledge of any of their officers,
threatened against or affecting the Borrower or any of its Subsidiaries which
could reasonably be expected to have a Material Adverse Effect. Notwithstanding
the disclosure of the litigation identified on Schedule 3 or in a notice to
Administrative Agent, unless such disclosure has been approved by the Required
Lenders, the Borrower, based on consultation with its counsel, represents that
the Borrower is unlikely to suffer any material adverse result in such
litigation. The Borrower has no material contingent obligations not provided for
or disclosed in the financial statements referred to in Section 6.1 or as set
forth in written notices to the Administrative Agent given from time to time
after the Agreement Execution Date on or about the date such material contingent
obligations are incurred.
5.7 ERISA. The Unfunded Liabilities of all Single Employer Plans do not in
the aggregate exceed $1,000,000. Neither the Borrower nor any other member of
the Controlled Group has incurred, or is reasonably expected to incur, any
withdrawal liability to Multiemployer Plans in excess of $250,000 in the
aggregate. Each Plan complies in all material respects with all applicable
requirements of law and regulations, no Reportable Event has
-69-
occurred with respect to any Plan, neither the Borrower nor any other members of
the Controlled Group has withdrawn from any Plan or initiated steps to do so,
and no steps have been taken to reorganize or terminate any Plan.
5.8 Accuracy of Information. All factual information heretofore or
contemporaneously furnished by or on behalf of the Borrower or any of its
Subsidiaries to the Administrative Agent or any Lender for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all other such factual information hereafter furnished by or on behalf of the
Borrower or any of its Subsidiaries to the Administrative Agent or any Lender
will be, to the knowledge of Borrower, true and accurate (taken as a whole) on
the date as of which such information is dated or certified and not incomplete
by omitting to state any material fact necessary to make such information (taken
as a whole) not misleading in light of the circumstances and purposes for which
such information was provided at such time.
5.9 Regulation U. The Borrower has not used the proceeds of any Borrowing
to buy or carry any margin stock (as defined in Regulation U) in violation of
the terms of this Agreement.
5.10 Material Agreements. Neither the Borrower nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement to which it is a party, which default
could have a Material Adverse Effect, or (ii) any agreement or instrument
evidencing or governing Indebtedness, which default would constitute a Default
hereunder.
5.11 Compliance With Laws. The Borrower and its Subsidiaries have complied
with all applicable statutes, rules, regulations, orders and restrictions of any
domestic or foreign government or any instrumentality or agency thereof, having
jurisdiction over the conduct of their respective businesses or the ownership of
their respective Property, except for any non-compliance which would not have a
Material Adverse Effect. Neither the Borrower nor any Subsidiary has received
any notice to the effect that its operations are not in material compliance with
any of the requirements of applicable federal, state and local environmental,
health and safety statutes and regulations or the subject of any federal or
state investigation evaluating whether any remedial action is needed to respond
to a release of any toxic or hazardous waste or substance into the environment,
which non-compliance or remedial action could have a Material Adverse Effect.
5.12 Ownership of Properties. Except as set forth on Schedule 2 hereto, on
the date of this Agreement, the Borrower and its Subsidiaries will have good and
marketable title, free of all Liens other than those permitted by Section 6.15,
to all of the Property and assets reflected in the financial statements as owned
by it.
5.13 Investment Company Act. Neither the Borrower nor any Subsidiary is an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
5.14 Reserved.
-70-
5.15 Solvency.
(i) Immediately after the Agreement Execution Date and immediately
following the making of each Loan and after giving effect to the
application of the proceeds of such Loans, (a) the fair value of the assets
of the Borrower and its Subsidiaries on a consolidated basis, at a fair
valuation, will exceed the debts and liabilities, subordinated, contingent
or otherwise, of the Borrower and its Subsidiaries on a consolidated basis;
(b) the present fair saleable value of the Property of the Borrower and its
Subsidiaries on a consolidated basis will be greater than the amount that
will be required to pay the probable liability of the Borrower and its
Subsidiaries on a consolidated basis on their debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) the Borrower and its Subsidiaries on a
consolidated basis will be able to pay their debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (d) the Borrower and its Subsidiaries on a
consolidated basis will not have unreasonably small capital with which to
conduct the businesses in which they are engaged as such businesses are now
conducted and are proposed to be conducted after the date hereof.
(ii) The Borrower does not intend to, or to permit any of its
Subsidiaries to, and does not believe that it or any of its Subsidiaries
will, incur debts beyond its ability to pay such debts as they mature,
taking into account the timing of and amounts of cash to be received by it
or any such Subsidiary and the timing of the amounts of cash to be payable
on or in respect of its Indebtedness or the Indebtedness of any such
Subsidiary.
5.16 Insurance. The Borrower and its Subsidiaries carry insurance on their
Projects with financially sound and reputable insurance companies, in such
amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar Projects
in localities where the Borrower and its Subsidiaries operate, including,
without limitation:
(i) Property and casualty insurance (including coverage for flood and
other water damage for any Project located within a 100-year flood plain)
in the amount of the replacement cost of the improvements at the Project
(to the extent replacement cost insurance is maintained by companies
engaged in similar business and owning similar properties);
(ii) Builder's risk insurance for any Project under construction in
the amount of the construction cost of such Project;
(iii) Loss of rental income insurance in the amount not less than one
year's gross revenues from the Projects; and
(iv) Comprehensive general liability insurance in the amount of
$20,000,000 per occurrence.
5.17 REIT Status. The Borrower is in good standing on the New York Stock
Exchange, is qualified as a real estate investment trust under Section 856 of
the Code and
-71-
currently is in compliance in all material respects with all provisions of the
Code applicable to the qualification of the Borrower as a real estate investment
trust.
5.18 Environmental Matters. Each of the following representations and
warranties is true and correct on and as of the Agreement Execution Date except
to the extent that the facts and circumstances giving rise to any such failure
to be so true and correct, in the aggregate, could not reasonably be expected to
have a Material Adverse Effect:
(a) To the best knowledge of the Borrower, the Projects of the
Borrower and its Subsidiaries do not contain any Materials of
Environmental Concern in amounts or concentrations which constitute a
violation of, or could reasonably give rise to liability of the
Borrower or any Subsidiary under, Environmental Laws.
(b) To the best knowledge of the Borrower, (i) the Projects of
the Borrower and its Subsidiaries and all operations at the Projects
are in compliance with all applicable Environmental Laws, and (ii)
with respect to all Projects owned by the Borrower and/or its
Subsidiaries (x) for at least two (2) years, have in the last two
years, or (y) for less than two (2) years, have for such period of
ownership, been in compliance in all material respects with all
applicable Environmental Laws.
(c) Neither the Borrower nor any of its Subsidiaries has received
any notice of violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters or compliance
with Environmental Laws with regard to any of the Projects, nor does
the Borrower have knowledge or reason to believe that any such notice
will be received or is being threatened.
(d) To the best knowledge of the Borrower, Materials of
Environmental Concern have not been transported or disposed of from
the Projects of the Borrower and its Subsidiaries in violation of, or
in a manner or to a location which could reasonably give rise to
liability of the Borrower or any Subsidiary under, Environmental Laws,
nor have any Materials of Environmental Concern been generated,
treated, stored or disposed of at, on or under any of the Projects of
the Borrower and its Subsidiaries in violation of, or in a manner that
could give rise to liability of the Borrower or any Subsidiary under,
any applicable Environmental Laws.
(e) No judicial proceedings or governmental or administrative
action is pending, or, to the knowledge of the Borrower, threatened,
under any Environmental Law to which the Borrower or any of its
Subsidiaries is or, to the Borrower's knowledge, will be named as a
party with respect to the Projects of the Borrower and its
Subsidiaries, nor are there any consent decrees or other decrees,
consent orders, administrative order or other orders, or other
administrative of judicial requirements outstanding under any
Environmental Law with respect to the Projects of the Borrower and its
Subsidiaries.
-72-
(f) To the best knowledge of the Borrower, there has been no
release or threat of release of Materials of Environmental Concern at
or from the Projects of the Borrower and its Subsidiaries, or arising
from or related to the operations of the Borrower and its Subsidiaries
in connection with the Projects in violation of or in amounts or in a
manner that could give rise to liability under Environmental Laws.
5.19 Unencumbered Assets. Each of the assets included as an Unencumbered
Asset for purposes of the covenants contained herein, satisfies each of the
requirements for an Unencumbered Asset set forth in the definition thereof.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1 Financial Reporting. The Borrower will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance
with GAAP, and furnish to the Lenders:
(i) As soon as available, but in any event not later than 45 days
after the close of the first three fiscal quarters of each fiscal year,
commencing with the fiscal quarter ended June 30, 2006, for the Borrower
and its Subsidiaries, a copy of Borrower's Financial Statements in the form
filed under 10-Q which shall include an unaudited consolidated balance
sheet as of the close of each such period and the related unaudited
consolidated statements of income and retained earnings and of cash flows
of the Borrower and its Subsidiaries for such period and the portion of the
fiscal year through the end of such period, setting forth in each case in
comparative form the figures for the previous year, all certified by the
Borrower's chief financial officer or chief accounting officer;
(ii) As soon as available, but in any event not later than 45 days
after the close of the first three fiscal quarters, for the Borrower and
its Subsidiaries, a copy of the Borrower's Quarterly Financial Supplement
and other schedules as may be required containing the following reports in
form and substance reasonably satisfactory to the Lenders, which may be in
the form filed as its 10-Q, all certified by the entity's chief financial
officer or chief accounting officer: a statement of Funds From Operations,
a statement detailing Consolidated Outstanding Indebtedness, Consolidated
Secured Indebtedness, Consolidated Unsecured Indebtedness, Consolidated
Cash Flow and an Asset Schedule listing all assets and their net operating
income with a breakdown between Unencumbered Assets and other assets, and
newly acquired Projects, Borrower will provide such other information as
may be reasonably requested;
(iii) As soon as available, but in any event not later than 90 days
after the close of each fiscal year, for the Borrower and its Subsidiaries,
audited annual financial
-73-
statements in the form filed as 10-K, including a consolidated balance
sheet as at the end of such year and the related consolidated statements of
income and retained earnings and of cash flows for such year, setting forth
in each case in comparative form the figures for the previous year, without
a "going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, prepared by PricewaterhouseCoopers
(or other independent certified public accountants of nationally recognized
standing reasonably acceptable to Administrative Agent);
(iv) Together with the quarterly and annual financial statements
required hereunder, a compliance certificate in substantially the form of
Exhibit C hereto signed by the Borrower's chief financial officer or chief
accounting officer showing the calculations and computations necessary to
determine compliance with this Agreement and stating that, to such
officer's knowledge, no Default or Unmatured Default exists, or if, to such
officer's knowledge, any Default or Unmatured Default exists, stating the
nature and status thereof;
(v) As soon as possible and in any event within 10 days after a
responsible officer of the Borrower knows that any Reportable Event has
occurred with respect to any Plan, a statement, signed by the chief
financial officer of the Borrower, describing said Reportable Event and the
action which the Borrower proposes to take with respect thereto;
(vi) As soon as possible and in any event within 10 days after receipt
by a responsible officer of the Borrower, a copy of (a) any notice or claim
to the effect that the Borrower or any of its Subsidiaries is or may be
liable to any Person as a result of the release by the Borrower, any of its
Subsidiaries, or any other Person of any toxic or hazardous waste or
substance into the environment, and (b) any notice alleging any violation
of any federal, state or local environmental, health or safety law or
regulation by the Borrower or any of its Subsidiaries, which, in either
case, could have a Material Adverse Effect;
(vii) Promptly upon the furnishing thereof to the shareholders of the
Borrower, copies of all financial statements, reports and proxy statements
so furnished;
(viii) Promptly upon the filing thereof, copies of all registration
statements and annual, quarterly, monthly or other reports and any other
public information which the Borrower or any of its Subsidiaries files with
the Securities Exchange Commission; and
(ix) Such other information (including, without limitation, financial
statements for the Borrower and non-financial information) as the
Administrative Agent or any Lender may from time to time reasonably
request.
6.2 Use of Proceeds. The Borrower will, and will cause each of its
Subsidiaries to, use the proceeds of the Borrowings for the general corporate
purposes of the Borrower, including working capital needs, the repayment of
Indebtedness, financing for property acquisitions of new Projects, construction
of new improvements or expansions of existing improvements on Projects, and to
repay outstanding Borrowings. The Borrower will not, nor will it permit any
Subsidiary to, use any of the proceeds of the Borrowings and Facility Letters of
Credit (i) to purchase or
-74-
carry any "margin stock" (as defined in Regulation U) if such usage could
constitute a violation of Regulation U by any Lender, (ii) to fund any purchase
of, or offer for, any Capital Stock of any Person, unless such Person has
consented to such offer prior to any public announcements relating thereto, or
(iii) to make any Acquisition other than a Permitted Acquisition.
6.3 Notice of Default. The Borrower will give, and will cause each of its
Subsidiaries to give, prompt notice in writing to the Administrative Agent and
the Lenders of the occurrence of any Default or Unmatured Default and of any
other development, financial or otherwise, which could reasonably be expected to
have a Material Adverse Effect.
6.4 Conduct of Business. The Borrower will do, and will cause each of its
Subsidiaries to do, all things necessary to remain duly incorporated or duly
qualified, validly existing and in good standing as a real estate investment
trust, corporation, general partnership, limited partnership, or limited
liability company, as the case may be, in its jurisdiction of
incorporation/formation (except with respect to mergers permitted pursuant to
Section 6.12 and Permitted Acquisitions) and maintain all requisite authority to
conduct its business in each jurisdiction in which its business is conducted and
to carry on and conduct their businesses in substantially the same manner as
they are presently conducted where the failure to do so could reasonably be
expected to have a Material Adverse Effect and, specifically, neither the
Borrower nor its Subsidiaries may undertake any business other than the
acquisition, development, ownership, management, operation and leasing of
retail, office or industrial properties, and ancillary businesses specifically
related to such types of properties.
6.5 Taxes. The Borrower will pay, and will cause each of its Subsidiaries
to pay, when due all taxes, assessments and governmental charges and levies upon
them of their income, profits or Projects, except those which are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves have been set aside.
6.6 Insurance. The Borrower will, and will cause each of its Subsidiaries
to, maintain insurance which is consistent with the representation contained in
Section 5.16 on all their Property and the Borrower will furnish to any Lender
upon reasonable request full information as to the insurance carried.
6.7 Compliance with Laws. The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which they may be subject, the
violation of which could reasonably be expected to have a Material Adverse
Effect.
6.8 Maintenance of Properties. The Borrower will, and will cause each of
its Subsidiaries to, do all things necessary to maintain, preserve, protect and
keep their respective Projects and Properties, reasonably necessary for the
continuous operation of the Projects, in good repair, working order and
condition, ordinary wear and tear excepted.
6.9 Inspection. The Borrower will, and will cause each of its Subsidiaries
to, permit the Lenders upon reasonable notice, by their respective
representatives and agents, to inspect any of the Projects, corporate books and
financial records of the Borrower and each of its Subsidiaries, to examine and
make copies of the books of accounts and other financial records of the Borrower
and each of its Subsidiaries, and to discuss the affairs, finances and accounts
of the
-75-
Borrower and each of its Subsidiaries with officers thereof, and to be advised
as to the same by, their respective officers at such reasonable times and
intervals as the Lenders may designate.
6.10 Maintenance of Status. The Borrower shall at all times (i) remain a
corporation listed and in good standing on the New York Stock Exchange, and (ii)
maintain its status as a real estate investment trust in compliance with all
applicable provisions of the Code relating to such status.
6.11 Restricted Payments. Except as otherwise set forth in this Agreement,
the Borrower will not, and will not permit any of its Subsidiaries to, declare
or make, or agree to pay or make, directly or indirectly, any Restricted
Payment, except (a) the Borrower may declare and pay dividends with respect to
its Capital Stock payable solely in additional shares of its common stock, (b)
Subsidiaries may declare and pay dividends ratably with respect to their Capital
Stock, (c) the Borrower may make Restricted Payments pursuant to and in
accordance with stock option plans or other benefit plans for management or
employees of the Borrower and its Subsidiaries, and (d) the Borrower may make
Restricted Payments if there is no then existing Default or Unmatured Default
hereunder (after notice thereof to Borrower) and either (i) Restricted Payments
paid on account of any fiscal quarter, in the aggregate, would not exceed 95% of
Funds From Operations for such fiscal quarter, or (ii) Restricted Payments paid
on account of any fiscal year, in the aggregate, would not exceed 90% of Funds
From Operations for such fiscal year. Notwithstanding the foregoing, the
Borrower shall be permitted at all times to distribute whatever amount of
dividends is necessary to maintain its tax status as a real estate investment
trust.
6.12 Merger; Sale of Assets. The Borrower will not, nor will it permit any
of its Subsidiaries to, enter into any merger (other than mergers in which such
entity is the survivor and mergers of Subsidiaries (but not the Borrower) as
part of transactions that are Permitted Acquisitions provided that following
such merger the target entity becomes a Wholly-Owned Subsidiary of Borrower),
consolidation, reorganization or liquidation or transfer or otherwise dispose of
all or a Substantial Portion of their Properties, except for (a) such
transactions that occur between Wholly-Owned Subsidiaries or between Borrower
and a Wholly-Owned Subsidiary, (b) mergers solely to change the jurisdiction of
organization of a Subsidiary, and (c) as otherwise approved in advance by the
Required Lenders.
6.13 Sale and Leaseback. The Borrower will not, nor will it permit any of
its Subsidiaries to, sell or transfer a Substantial Portion of its Property in
order to concurrently or subsequently lease such Property as lessee.
6.14 Acquisitions and Investments. The Borrower will not, nor will it
permit any Subsidiary to, make or suffer to exist any Investments (including
without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, or become or remain a partner in any
partnership or joint venture, or to make any Acquisition of any Person, except:
(i) Cash Equivalents;
(ii) Investments in existing Subsidiaries, Investments in Subsidiaries
formed for the purpose of developing or acquiring Properties, Investments
in joint ventures and
-76-
partnerships engaged solely in the business of purchasing, developing,
owning, operating, leasing and managing retail properties and office and
industrial properties;
(iii) transactions permitted pursuant to Section 6.12; and
(iv) Acquisitions of Persons whose primary operations consist of the
ownership, development, operation and management of retail, office or
industrial properties;
provided that, after giving effect to such Acquisitions and Investments,
Borrower continues to comply with all its covenants herein. Acquisitions
permitted pursuant to this Section 6.14 shall be deemed to be "Permitted
Acquisitions".
6.15 Liens. The Borrower will not, nor will it permit any of its
Subsidiaries to, create, incur, or suffer to exist any Lien in, of or on the
Property of the Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or levies on
its Property if the same shall not at the time be delinquent or thereafter
can be paid without penalty, or are being contested in good faith and by
appropriate proceedings and for which adequate reserves shall have been set
aside on its books;
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the ordinary course of
business which secure payment of obligations not more than 60 days past due
or which are being contested in good faith by appropriate proceedings and
for which adequate reserves shall have been set aside on its books;
(iii) Liens arising out of pledges or deposits under workers'
compensation laws, unemployment insurance, old age pensions, or other
social security or retirement benefits, or similar legislation;
(iv) Easements, restrictions and such other encumbrances or charges
against real property as are of a nature generally existing with respect to
properties of a similar character and which do not in any material way
affect the marketability of the same or interfere with the use thereof in
the business of the Borrower or its Subsidiaries; and
(v) Liens other than Liens described in subsections (i) through (iv)
above arising in connection with any Indebtedness permitted hereunder to
the extent such Liens will not result in a Default in any of Borrower's
covenants herein.
Liens permitted pursuant to this Section 6.15 shall be deemed to be "Permitted
Liens".
6.16 Affiliates. The Borrower will not, nor will it permit any of its
Subsidiaries to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate except in the ordinary course of business and
pursuant to the reasonable requirements of the Borrower's or such Subsidiary's
-77-
business and upon fair and reasonable terms no less favorable to the Borrower or
such Subsidiary than the Borrower or such Subsidiary would obtain in a
comparable arms-length transaction.
6.17 Financial Undertakings. The Borrower will not enter into or remain
liable upon, nor will it permit any Subsidiary to enter into or remain liable
upon, any Financial Undertaking, except to the extent required to protect the
Borrower and its Subsidiaries against increases in interest payable by them
under variable interest Indebtedness.
6.18 Indebtedness and Cash Flow Covenants. The Borrower on a consolidated
basis with its Subsidiaries shall not permit, as of the last day of any fiscal
quarter:
(i) Consolidated Outstanding Indebtedness to exceed sixty percent
(60%) of Consolidated Market Value, provided that such percentage may be up
to sixty-five percent (65%) for up to two quarters during the term of the
Facility;
(ii) Consolidated Secured Indebtedness to exceed thirty-five percent
(35%) of Consolidated Market Value;
(iii) the Value of Unencumbered Assets to be less than 1.60 times the
Consolidated Unsecured Indebtedness;
(iv) Consolidated Cash Flow to be less than 1.5 times Fixed Charges,
based on the most recent two (2) fiscal quarters;
(v) Investments in Investment Affiliates (valued on a GAAP basis) to
exceed thirty percent (30%) of Consolidated Market Value; or
(vi) the Consolidated Group's aggregate Investment in Developable
Land, Passive Non-Real Estate Investments, First Mortgage Receivables,
Assets Under Development, and Properties not located in the United States
or Puerto Rico to exceed thirty percent (30%) of Consolidated
Capitalization Value. Developable Land, Passive Non-Real Estate Investments
and First Mortgage Receivables will be valued at the lower of acquisition
cost or market value.
6.19 Environmental Matters. Borrower and its Subsidiaries shall:
(a) Comply with, and use all reasonable efforts to ensure
compliance by all tenants and subtenants, if any, with, all applicable
Environmental Laws and obtain and comply with and maintain, and use
all reasonable efforts to ensure that all tenants and subtenants
obtain and comply with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable
Environmental Laws, except to the extent that failure to do so could
not be reasonably expected to have a Material Adverse Effect; provided
that in no event shall the Borrower or its Subsidiaries be required to
modify the terms of leases, or renewals thereof, with existing tenants
(i) at Projects owned by the Borrower or its Subsidiaries as of the
date hereof, or (ii) at Projects hereafter acquired by the Borrower or
its Subsidiaries as of the date of such acquisition, to add provisions
to such effect.
-78-
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required
under Environmental Laws and promptly comply in all material respects
with all lawful orders and directives of all Governmental Authorities
regarding Environmental Laws, except to the extent that (i) the same
are being contested in good faith by appropriate proceedings and the
pendency of such proceedings could not be reasonably expected to have
a Material Adverse Effect, or (ii) the Borrower has determined in good
faith that contesting the same is not in the best interests of the
Borrower and its Subsidiaries and the failure to contest the same
could not be reasonably expected to have a Material Adverse Effect.
(c) Defend, indemnify and hold harmless Administrative Agent and
each Lender, and their respective officers and directors, from and
against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature
known or unknown, contingent or otherwise, arising out of, or in any
way relating to the violation of, noncompliance with or liability
under any Environmental Laws applicable to the operations of the
Borrower, its Subsidiaries or the Projects, or any orders,
requirements or demands of Governmental Authorities related thereto,
including, without limitation, attorney's and consultant's fees,
investigation and laboratory fees, response costs, court costs and
litigation expenses, except to the extent that any of the foregoing
arise out of the gross negligence or willful misconduct of the party
seeking indemnification therefor. This indemnity shall continue in
full force and effect regardless of the termination of this Agreement.
(d) Prior to the acquisition of a new Project after the Agreement
Execution Date, perform or cause to be performed an environmental
investigation consistent with standards used by institutional
purchasers of similar properties. In connection with any such
investigation, Borrower shall cause to be prepared a report of such
investigation, to be made available to any Lenders upon reasonable
request, for informational purposes.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall constitute
a Default:
7.1 Nonpayment of any principal payment on any Note when due.
7.2 Nonpayment of interest upon any Note or of any Facility Fee or other
payment Obligations under any of the Loan Documents within five (5) Business
Days after the same becomes due.
7.3 The breach of any of the terms or provisions of Sections 6.2 through
6.18.
-79-
7.4 Any representation or warranty made or deemed made by or on behalf of
the Borrower or any of its Subsidiaries to the Lenders or the Administrative
Agent under or in connection with this Agreement, any Loan, or any material
certificate or information delivered in connection with this Agreement or any
other Loan Document shall be materially false on the date as of which made.
7.5 The breach by the Borrower (other than a breach which constitutes a
Default under Sections 7.1, 7.2, 7.3 or 7.4) of any of the terms or provisions
of this Agreement which is not remedied within fifteen (15) days after written
notice from the Administrative Agent or any Lender.
7.6 Failure of the Borrower or any of its Subsidiaries to pay when due any
Indebtedness, whether or not Recourse Indebtedness, in excess of $50,000,000 in
the aggregate; or the default by the Borrower or any of its Subsidiaries in the
performance of any term, provision or condition contained in any agreement, or
any other event shall occur or condition exist, which causes or permits
Indebtedness, whether or not Recourse Indebtedness, in excess of $50,000,000 in
the aggregate to be due and payable or required to be prepaid (other than by a
regularly scheduled payment) prior to the stated maturity thereof (provided that
the failure to pay any such Indebtedness shall not constitute a Default so long
as the Borrower or its Subsidiaries is diligently contesting the payment of the
same by appropriate legal proceedings and the Borrower or its Subsidiaries have
set aside, in a manner reasonably satisfactory to Administrative Agent, a
sufficient reserve to repay such Indebtedness plus all accrued interest thereon
calculated at the default rate thereunder and costs of enforcement in the event
of an adverse outcome).
7.7 The Borrower, or any Subsidiary having more than $20,000,000 of Equity
Value, shall (i) have an order for relief entered with respect to it under the
Federal bankruptcy laws as now or hereafter in effect, (ii) make an assignment
for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce
in, the appointment of a receiver, custodian, trustee, examiner, liquidator or
similar official for it or any Substantial Portion of its Property, (iv)
institute any proceeding seeking an order for relief under the Federal
bankruptcy laws as now or hereafter in effect or seeking to adjudicate it as a
bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any corporate
action to authorize or effect any of the foregoing actions set forth in this
Section 7.7, (vi) fail to contest in good faith any appointment or proceeding
described in Section 7.8 or (vii) admit in writing its inability to pay its
debts generally as they become due.
7.8 A receiver, trustee, examiner, liquidator or similar official shall be
appointed for the Borrower or any Subsidiary having more than $20,000,000 of
Equity Value, or for any Substantial Portion of the Property of the Borrower or
such Subsidiary, or a proceeding described in Section 7.7(iv) shall be
instituted against the Borrower or any such Subsidiary and such appointment
continues undischarged or such proceeding continues undismissed or unstayed for
a period of ninety (90) consecutive days.
7.9 The Borrower or any of its Subsidiaries shall fail within sixty (60)
days to pay, bond or otherwise discharge any judgments or orders for the payment
of money in an amount which, when added to all other judgments or orders
outstanding against Borrower or any
-80-
Subsidiary would exceed $20,000,000 in the aggregate, which have not been stayed
on appeal or otherwise appropriately contested in good faith.
7.10 The Borrower or any other member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan that it has incurred
withdrawal liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer Plans by
the Borrower or any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), exceeds $1,000,000 or requires
payments exceeding $500,000 per annum.
7.11 The Borrower or any other member of the Controlled Group 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, if as a result of such reorganization or termination the aggregate
annual contributions of the Borrower and the other members of the Controlled
Group (taken as a whole) to all Multiemployer Plans which are then in
reorganization or being terminated have been or will be increased over the
amounts contributed to such Multiemployer Plans for the respective plan years of
each such Multiemployer Plan immediately preceding the plan year in which the
reorganization or termination occurs by an amount exceeding $500,000.
7.12 Failure to remediate within the time period permitted by law or
governmental order, after all administrative hearings and appeals have been
concluded (or within a reasonable time in light of the nature of the problem if
no specific time period is so established), environmental problems at Properties
owned by the Borrower or any of its Subsidiaries or Investment Affiliates if the
estimated costs of remediation at all such Properties in the aggregate exceed
$20,000,000.
7.13 The occurrence of any "Default" as defined in any Loan Document or the
breach of any of the terms or provisions of any Loan Document, which default or
breach continues beyond any period of grace therein provided.
7.14 The occurrence of any Material Adverse Effect.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration. If any Default described in Section 7.7 or 7.8 occurs
with respect to the Borrower, the obligations of the Lenders to make Loans and
of the Issuing Lender to issue Facility Letters of Credit hereunder shall
automatically terminate and the Obligations shall immediately become due and
payable without any election or action on the part of the Administrative Agent
or any Lender. If any other Default occurs, the Required Lenders, at any time
prior to the date that such Default has been fully cured, may terminate or
suspend the obligations of the Lenders to make Loans hereunder and to issue
Facility Letters of Credit, or declare the Obligations to be due and payable, or
both, whereupon if the Required Lenders elected to accelerate (i) the
Obligations shall become immediately due and payable, without
-81-
presentment, demand, protest or notice of any kind, all of which the Borrower
hereby expressly waives and (ii) if any automatic or optional acceleration has
occurred, the Administrative Agent, as directed by the Required Lenders (or if
no such direction is given within 30 days after a request for direction, as the
Administrative Agent deems in the best interests of the Lenders, in its sole
discretion), shall use its good faith efforts to collect, including without
limitation, by filing and diligently pursuing judicial action, all amounts owed
by the Borrower under the Loan Documents.
In addition to the foregoing, following the occurrence of a Default and so
long as any Facility Letter of Credit has not been fully drawn and has not been
cancelled or expired by its terms, upon demand by the Administrative Agent, the
Borrower shall deposit in the Letter of Credit Collateral Account cash in an
amount equal to the LC Exposure as of such date plus any accrued and unpaid
interest thereon provided that (i) the portions of such amount attributable to
undrawn Alternative Currency Letters of Credit or LC Disbursements in an
Alternative Currency that the Borrowers are not late in reimbursing shall be
deposited in the applicable Alternative Currencies in the actual amounts of such
undrawn Letters of Credit and LC Disbursements and (ii) the obligation to
deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other notice
of any kind, upon the occurrence of any Default with respect to any Borrower
described in Section 7.7 or 7.8. For the purposes of this paragraph, the
Alternative Currency LC Exposure shall be calculated using the Exchange Rates on
the date notice demanding cash collateralization is delivered to a Borrower.
Each Borrower also shall deposit cash collateral pursuant to this paragraph as
and to the extent required by Section 2.8(b). Each such deposit pursuant to this
paragraph or pursuant to Section 2.8(b) shall be held by the Administrative
Agent as collateral for the payment and performance of the obligations of each
Borrower under this Agreement. The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such deposits,
which investments shall be made at the option and sole discretion of the
Administrative Agent and at the relevant Borrower's risk and expense, such
deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse the applicable Issuing Lender
for LC Disbursements for which it has not been reimbursed and, to the extent not
so applied, shall be held for the satisfaction of the Reimbursement Obligations
of the relevant Borrower for the LC Exposure at such time or, if the maturity of
the Loans has been accelerated (but subject to the consent of Domestic Revolving
Lenders with LC Exposure representing at least 51% of the total LC Exposure), be
applied to satisfy other obligations of such Borrower under this Agreement. If a
Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of a Default, such amount (to the extent not applied as
aforesaid) shall be returned to such Borrower within three Business Days after
all Defaults have been cured or waived. If a Borrower is required to provide an
amount of cash collateral hereunder pursuant to Section 2.8(b), such amount (to
the extent not applied as aforesaid) shall be returned to such Borrower as and
to the extent that, after giving effect to such return, such Borrower would
remain in compliance with Section 2.8(b), and no Default shall have occurred and
be continuing. The Borrower shall have no control over funds in the Letter of
Credit Collateral Account, which funds will be invested by the Administrative
Agent from time to time under the Facility Letters of Credit. Such funds, if
any, remaining in the Letter of Credit Collateral Account following the
-82-
payment of all Obligations in full shall, unless the Administrative Agent is
otherwise directed by a court of competent jurisdiction, be promptly paid over
to the Borrower.
If, after acceleration of the maturity of the Obligations or termination of
the obligations of the Lenders to make Loans hereunder or to issue Facility
Letters of Credit as a result of any Default (other than any Default as
described in Section 7.7 or 7.8 with respect to the Borrower) and before any
judgment or decree for the payment of the Obligations due shall have been
obtained or entered, all of the Lenders (in their sole discretion) shall so
direct, the Administrative Agent shall, by notice to the Borrower, rescind and
annul such acceleration and/or termination.
8.2 Amendments. Subject to the provisions of this Article VIII and the
right of the Borrower, solely with the agreement of the Administrative Agent and
such new banks or existing Lenders as may provide new or increased Commitments,
to increase the Aggregate Commitment as described in Section 2.1 above, the
Required Lenders (or the Administrative Agent with the consent in writing of the
Required Lenders) and the Borrower may enter into agreements supplemental hereto
for the purpose of adding or modifying any provisions to the Loan Documents or
changing in any manner the rights of the Lenders or the Borrower hereunder or
waiving any Default hereunder; provided however, that no such supplemental
agreement or waiver shall, without the consent in writing of all Lenders
affected thereby:
(i) Extend the Facility Termination Date or forgive all or any portion
of the principal amount of any Loan or accrued interest thereon or the
Facility Fee, reduce the Applicable Margins or any accepted Absolute Rate
(or modify any definition herein which would have the effect of reducing
the Applicable Margins or any accepted Absolute Rate) or the underlying
interest rate options or extend the time of payment of any such principal,
interest or Facility Fees.
(ii) Subject to releases given in accordance with Section 9.17,
release DDR from its guarantee of the obligations of Qualified Borrowers or
release any Subsidiary Guarantor (other than a Subsidiary Guarantor that
has liquidated all of its assets and applied all of the proceeds of such
liquidation in accordance with its organizational documents) from the
Subsidiary Guaranty or any other future guarantor (other than a Subsidiary
Guarantor that has liquidated all of its assets and applied all of the
proceeds of such liquidation in accordance with its organizational
documents) from any liability it may undertake with respect to the
Obligations.
(iii) Reduce the percentage specified in the definition of Required
Lenders.
(iv) Increase the Aggregate Commitment beyond $1,400,000,000 or
increase the Commitment of any Lender.
(v) Permit the Borrower to assign its rights or obligations under this
Agreement.
(vi) Amend Sections 2.3, 2.13(ii), 2.24, 8.1, 8.2, 11.1, 11.2 or the
definition of Required Lenders.
-83-
No amendment of any provision of this Agreement relating to the Administrative
Agent, the Issuing Lender or the Swingline Lender shall be effective without the
written consent of the Administrative Agent, the Issuing Lender or the Swingline
Lenders as the case may be. No amendment affecting the application of payments
among the Facilities shall be effective without the consent of the Required
Facility Lenders in respect of each of the Facilities adversely affected
thereby. Each Lender which has been designated a Designated Lender may act on
behalf of such Designated Lender with respect to any rights of such Designated
Lender to grant or withhold any consent hereunder to the fullest extent it has
been so delegated to act by such Designated Lender pursuant to its Designation
Agreement.
8.3 Preservation of Rights. No delay or omission of the Lenders or the
Administrative Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Loan notwithstanding the existence of a Default or
the inability of the Borrower to satisfy the conditions precedent to such Loan
shall not constitute any waiver or acquiescence. Any single or partial exercise
of any such right shall not preclude other or further exercise thereof or the
exercise of any other right, and no waiver, amendment or other variation of the
terms, conditions or provisions of the Loan Documents whatsoever shall be valid
unless in writing signed by the Lenders required pursuant to Section 8.2, and
then only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded shall be cumulative and all
shall be available to the Administrative Agent and the Lenders until the
Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1 Survival of Representations. All representations and warranties of the
Borrower contained in this Agreement shall survive delivery of the Notes and the
making of the Loans herein contemplated.
9.2 Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to the
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3 Taxes. Any taxes (excluding taxes on the overall net income of any
Lender) or other similar assessments or charges made by any governmental or
revenue authority in respect of the Loan Documents shall be paid by the
Borrower, together with interest and penalties, if any.
9.4 Headings. Section headings in the Loan Documents are for convenience of
reference only, and shall not govern the interpretation of any of the provisions
of the Loan Documents.
9.5 Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Administrative Agent and the Lenders and
supersede all
-84-
prior commitments, agreements and understandings among the Borrower, the
Administrative Agent and the Lenders relating to the subject matter thereof.
9.6 Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Administrative Agent is authorized to act as such). The failure of any Lender to
perform any of its obligations hereunder shall not relieve any other Lender from
any of its obligations hereunder. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns.
9.7 Expenses; Indemnification. The Borrower shall reimburse the
Administrative Agent for any costs, internal charges and out-of-pocket expenses
(including, without limitation, all reasonable fees for consultants and fees and
reasonable expenses for attorneys for the Administrative Agent, which attorneys
may be employees of the Administrative Agent) paid or incurred by the
Administrative Agent in connection with the amendment, modification, and
enforcement of the Loan Documents. The Borrower also agrees to reimburse the
Administrative Agent and the Lenders for any reasonable costs, internal charges
and out-of-pocket expenses (including, without limitation, all fees and
reasonable expenses for attorneys for the Administrative Agent and the Lenders,
which attorneys may be employees of the Administrative Agent or the Lenders)
paid or incurred by the Administrative Agent or any Lender in connection with
the collection and enforcement of the Loan Documents (including, without
limitation, any workout). The Borrower further agrees to indemnify the
Administrative Agent, the Syndication Agent, the Documentation Agent, each
Lender and their Affiliates, and their directors, officers, and employees
against all losses, claims, damages, penalties, judgments, liabilities and
expenses (including, without limitation, all fees and reasonable expenses for
attorneys of the indemnified parties, all expenses of litigation or preparation
therefor whether or not the Administrative Agent, the Syndication Agent, the
Documentation Agent or any Lender is a party thereto) which any of them may pay
or incur arising out of or relating to this Agreement, the other Loan Documents,
the Projects, the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Loan hereunder,
except to the extent that any of the foregoing arise out of the gross negligence
or willful misconduct of the party seeking indemnification therefor. The
obligations of the Borrower under this Section shall survive the termination of
this Agreement.
9.8 Numbers of Documents. All statements, notices, closing documents, and
requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
9.9 Accounting. Except as provided to the contrary herein, all accounting
terms used herein shall be interpreted and all accounting determinations
hereunder shall be made in accordance with GAAP.
9.10 Severability of Provisions. Any provision in any Loan Document that is
held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as
to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
-85-
9.11 Nonliability of Lenders. The relationship between the Borrower, on the
one hand, and the Lenders and the Administrative Agent, on the other, shall be
solely that of borrower and lender. Neither the Administrative Agent nor any
Lender shall have any fiduciary responsibilities to the Borrower. Neither the
Administrative Agent nor any Lender undertakes any responsibility to the
Borrower to review or inform the Borrower of any matter in connection with any
phase of the Borrower's business or operations.
9.12 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF NEW YORK, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
9.13 CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE
COURT SITTING IN NEW YORK COUNTY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST
THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
THE BORROWER AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY AFFILIATE OF
THE ADMINISTRATIVE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK, NEW YORK.
9.14 WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH
LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN
ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
9.15 No Bankruptcy Proceedings. Each of the Borrower, the Lenders and the
Administrative Agent agrees that it will not institute against any Designated
Lender or join any other Person in instituting against any Designated Lender any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding
under any federal or state bankruptcy of similar law, for one year and one day
after the payment in full of the latest maturing commercial paper note issued by
such Designated Lender.
9.16 Judgment Currency. (a) The Borrowers' obligations hereunder and under
the other Loan Documents to make payments in a specified currency (the
"Obligation Currency") shall not be discharged or satisfied by any tender or
recovery pursuant to any judgment
-86-
expressed in or converted into any currency other than the Obligation Currency,
except to the extent that such tender or recovery results in the effective
receipt by the Administrative Agent or a Lender of the full amount of the
Obligation Currency expressed to be payable to the Administrative Agent or such
Lender under this Agreement or the other Loan Documents. If, for the purpose of
obtaining or enforcing judgment against any Loan Party in any court or in any
jurisdiction, it becomes necessary to convert into or from any currency other
than the Obligation Currency (such other currency being hereinafter referred to
as the "Judgment Currency") an amount due in the Obligation Currency, the
conversion shall be made, at the rate of exchange (as quoted by the
Administrative Agent or if the Administrative Agent does not quote a rate of
exchange on such currency, by a known dealer in such currency designated by the
Administrative Agent) determined, in each case, as of the Business Day
immediately preceding the date on which the judgment is given (such Business Day
being hereinafter referred to as the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing between the
Judgment Currency Conversion Date and the date of actual payment of the amount
due, the Borrowers covenant and agree to pay, or cause to be paid, such
additional amounts, if any (but in any event not a lesser amount), as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate of exchange prevailing on the Judgment Currency Conversion
Date.
(c) For purposes of determining any rate of exchange or currency equivalent
for this Section, such amounts shall include any premium and costs payable in
connection with the purchase of the Obligation Currency.
9.17 Release of Subsidiary Guaranties. If a Subsidiary has delivered a
Subsidiary Guaranty, Borrower may at any time request a release of such
Subsidiary Guaranty. If there is no Default or Unmatured Default, and Borrower
would still be in compliance with all covenants if such Subsidiary were not a
Subsidiary Guarantor, then Administrative Agent shall deliver within ten (10)
Business Days a release of such Subsidiary Guarantor without the consent of any
Lender.
ARTICLE X
THE ADMINISTRATIVE AGENT
10.1 Appointment. JPMorgan Chase Bank, N.A. is hereby appointed
Administrative Agent hereunder and under each other Loan Document, and each of
the Lenders irrevocably authorizes the Administrative Agent to act as the agent
of such Lender. The Administrative Agent agrees to act as such upon the express
conditions contained in this Article X. The Administrative Agent shall not have
a fiduciary relationship in respect of the Borrower or any Lender by reason of
this Agreement and except as expressly set forth herein for information provided
to Administrative Agent in accordance with the requirements of this Agreement,
the Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to
-87-
disclose, any information relating to the Borrower or any of its Subsidiaries
that is communicated to or obtained by the bank serving as Administrative Agent
or any of its Affiliates in any capacity.
10.2 Powers. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Administrative Agent. The Administrative Agent shall
administer this Agreement in the same manner and with the same standard of care
as it administers similar agreements for its own account.
10.3 General Immunity. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Borrower, the
Lenders or any Lender for (i) any action taken or omitted to be taken by it or
them hereunder or under any other Loan Document or in connection herewith or
therewith except for its or their own gross negligence or willful misconduct; or
(ii) any determination by the Administrative Agent that compliance with any law
or any governmental or quasi-governmental rule, regulation, order, policy,
guideline or directive (whether or not having the force of law) requires the
Borrowings and Commitments hereunder to be classified as being part of a "highly
leveraged transaction". The foregoing shall not limit the liability of the
Administrative Agent for a breach of its express obligations and undertakings to
the Lenders hereunder which continues after written notice to the Administrative
Agent of such breach and its failure to cure such breach within a reasonable
time after such notice.
10.4 No Responsibility for Loans, Recitals, etc. Neither the Administrative
Agent nor any of its directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into, or verify (i) any
statement, warranty or representation made in connection with any Loan Document
or any borrowing hereunder; (ii) the performance or observance of any of the
covenants or agreements of any obligor under any Loan Document, including,
without limitation, any agreement by an obligor to furnish information directly
to each Lender; (iii) the satisfaction of any condition specified in Article IV,
except receipt of items required to be delivered to the Administrative Agent; or
(iv) the validity, effectiveness or genuineness of any Loan Document or any
other instrument or writing furnished in connection therewith. Except as
otherwise specifically provided herein, the Administrative Agent shall have no
duty to disclose to the Lenders information that is not required to be furnished
by the Borrower to the Administrative Agent at such time, but is voluntarily
furnished by the Borrower to the Administrative Agent (either in its capacity as
Administrative Agent or in its individual capacity). Notwithstanding anything to
the contrary herein, Administrative Agent shall make available promptly after
the Agreement Execution Date to any Lender copies of all Loan Documents in its
possession which are requested by any such Lender. Administrative Agent shall
also furnish to all Lenders promptly after such items are available in final
form copies of Default notices issued to the Borrower, amendments to any Loan
Documents being proposed by the Administrative Agent or the Borrower, financial
statements of the Borrower required hereunder, compliance certificates from the
Borrower required by this Agreement or any other notice or communication from
the Borrower specifically relating to this Agreement which is
-88-
actually received by the Administrative Agent. Promptly after the Administrative
Agent has actual knowledge of the occurrence of a Default hereunder, the
Administrative Agent shall so notify the Lenders.
10.5 Action on Instructions of Lenders. Notwithstanding anything herein to
the contrary, the Administrative Agent shall in all cases be fully protected in
so acting, or refraining from acting, hereunder and under any other Loan
Document in accordance with written instructions signed by the Required Lenders
or all of the Lenders, as the case may be, and such instructions and any action
taken or failure to act pursuant to such written instructions shall be binding
on all of the Lenders and on all holders of Notes and on the Administrative
Agent.
10.6 Employment of Agents and Counsel. The Administrative Agent may execute
any of its duties as Administrative Agent hereunder and under any other Loan
Document by or through employees, agents, and attorneys-in-fact and shall not be
answerable to the Lenders, except as to money or securities received by it or
its authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Administrative Agent
shall be entitled to advice of counsel concerning all matters pertaining to the
agency hereby created and its duties hereunder and under any other Loan
Document.
10.7 Reliance on Documents; Counsel. The Administrative Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
10.8 Administrative Agent's Reimbursement and Indemnification. The Lenders
agree to reimburse and indemnify the Administrative Agent ratably in proportion
to their respective Commitments (i) for any amounts not reimbursed by the
Borrower for which the Administrative Agent is entitled to reimbursement by the
Borrower under the Loan Documents (and without limiting the obligation of the
Borrower to so reimburse), (ii) for any other expenses incurred by the
Administrative Agent on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the Loan
Documents, if not paid by Borrower and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents, provided
that no Lender shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct or a breach of the
Administrative Agent's express obligations and undertakings to the Lenders which
is not cured after written notice and within the period described in Section
10.3, and provided further that no Designated Lender shall be liable for any
payment under this Section 10.8 so long as, and to the extent that, the Lender
designating such Designated Lender makes such payment. To the extent any amounts
so paid by Lenders are thereafter recovered by the Administrative Agent from the
Borrower or otherwise, such recovered amount shall be remitted to the Lenders
making such payment on a pro rata basis in accordance with their respective
portions of such payment. The
-89-
obligations of the Lenders and the Administrative Agent under this Section 10.8
shall survive payment of the Obligations and termination of this Agreement.
10.9 Rights as a Lender. In the event the Administrative Agent is a Lender,
the Administrative Agent shall have the same rights and powers hereunder and
under any other Loan Document as any Lender and may exercise the same as though
it were not the Administrative Agent, and the term "Lender" or "Lenders" shall,
at any time when the Administrative Agent is a Lender, unless the context
otherwise indicates, include the Administrative Agent in its individual
capacity. The Administrative Agent may accept deposits from, lend money to, and
generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Subsidiaries in which the Borrower or such
Subsidiary is not restricted hereby from engaging with any other Person. The
Administrative Agent, in its individual capacity, is not obligated to remain a
Lender but if the Administrative Agent is no longer a Lender, the Administrative
Agent shall resign and a successor shall be appointed as described in Section
10.11. The rights and duties of the Administrative Agent are separate from its
rights and duties as a Lender and no transfer of all or any part of the
Administrative Agent's Commitment or its interest as a Lender in the Loans
hereunder shall be deemed to transfer any of its rights and duties as
Administrative Agent to its successor or successors as a Lender.
10.10 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
10.11 Successor Administrative Agent. Except as otherwise provided below,
JPMorgan Chase Bank shall serve as Administrative Agent at all times during the
term of this Facility. JPMorgan Chase Bank may resign as Administrative Agent in
the event (x) JPMorgan Chase Bank and Borrower shall mutually agree in writing
or (y) a Default shall occur and be continuing under the Loan Documents, or (z)
JPMorgan Chase Bank shall determine, in its sole reasonable discretion, that
because of its other banking relationships with Borrower and/or Borrower's
Affiliates at the time of such decision JPMorgan Chase Bank's resignation as
Administrative Agent would be necessary in order to avoid creating an appearance
of impropriety on the part of JPMorgan Chase Bank. JPMorgan Chase Bank (or any
successor Administrative Agent) may be removed as Administrative Agent by
written notice received by Administrative Agent from the Required Lenders at any
time with cause (i.e., a breach by JPMorgan Chase Bank (or any successor
Administrative Agent) of its duties as Administrative Agent hereunder) or for
gross negligence or willful misconduct. Upon any such resignation or removal,
the Required Lenders shall have the right to appoint, on behalf of the Borrower
and the Lenders, a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders within
thirty days after the resigning or removed Administrative Agent's giving notice
of its intention to resign or its receipt of notice of removal, then the
resigning or
-90-
removed Administrative Agent shall, prior to the effective date of its
resignation, appoint, on behalf of the Borrower and the Lenders, a successor
Administrative Agent. No successor Administrative Agent shall be deemed to be
appointed hereunder until such successor Administrative Agent has accepted the
appointment. Any such successor Administrative Agent shall be a commercial bank
having capital and retained earnings of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the resigning Administrative Agent. Upon the effectiveness of the resignation
or removal of the Administrative Agent, the resigning or removed Administrative
Agent shall be discharged from its duties and obligations hereunder and under
the Loan Documents. After the effectiveness of the resignation or removal of an
Administrative Agent, the provisions of this Article XI shall continue in effect
for the benefit of such Administrative Agent in respect of any actions taken or
omitted to be taken by it while it was acting as the Administrative Agent
hereunder and under the other Loan Documents, subject to the limitations
contained in such Article XI.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1 Setoff. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender or
any of its Affiliates to or for the credit or account of the Borrower may be
offset and applied toward the payment of the Obligations owing to such Lender at
any time prior to the date that such Default has been fully cured, whether or
not the Obligations, or any part hereof, shall then be due.
11.2 Ratable Payments. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Loans (other than payments received pursuant to
Sections 3.1, 3.2 or 3.4) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to their Loans. In case any such payment is disturbed by legal
process, or otherwise, appropriate further adjustments shall be made.
-91-
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors and Assigns. The terms and provisions of the Loan Documents
shall be binding upon and inure to the benefit of the Borrower and the Lenders
and their respective successors and assigns, except that (i) the Borrower shall
not have the right to assign its rights or obligations under the Loan Documents
and (ii) any assignment by any Lender must be made in compliance with Section
12.3. Notwithstanding clause (ii) of this Section, any Lender may at any time,
without the consent of the Borrower or the Administrative Agent, assign all or
any portion of its rights under this Agreement and its Notes to a Federal
Reserve Bank; provided, however, that no such assignment shall release the
transferor Lender from its obligations hereunder. The Administrative Agent may
treat the payee of any Note as the owner thereof for all purposes hereof unless
and until such payee complies with Section 12.3 in the case of an assignment
thereof or, in the case of any other transfer, a written notice of the transfer
is filed with the Administrative Agent. Any assignee or transferee of a Note
agrees by acceptance thereof to be bound by all the terms and provisions of the
Loan Documents. Any request, authority or consent of any Person, who at the time
of making such request or giving such authority or consent is the holder of any
Note, shall be conclusive and binding on any subsequent holder, transferee or
assignee of such Note or of any Note or Notes issued in exchange therefor.
12.2 Participations.
12.2.1 Permitted Participants; Effect. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time
sell to one or more banks, financial institutions, pension funds, or any
other funds or entities ("Participants") participating interests in any
Loan owing to such Lender, any Note held by such Lender, any Commitment of
such Lender or any other interest of such Lender under the Loan Documents.
In the event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall
remain the holder of any such Note for all purposes under the Loan
Documents, all amounts payable by the Borrower under this Agreement shall
be determined as if such Lender had not sold such participating interests,
and the Borrower and the Administrative Agent shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under the Loan Documents.
12.2.2 Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other than
any amendment, modification or waiver with respect to any Loan or
Commitment in which such Participant has an interest which forgives
principal, interest or fees or reduces the interest rate or fees payable
with respect to any such Loan or Commitment or postpones any date fixed for
any regularly-scheduled payment of principal of, or interest or fees on,
any such Loan or Commitment or releases any Subsidiary from the Subsidiary
Guaranty.
-92-
12.2.3 Benefit of Setoff. The Borrower agrees that each Participant
which has previously advised the Borrower in writing of its purchase of a
participation in a Lender's interest in its Loans shall be deemed to have
the right of setoff provided in Section 11.1 in respect of its
participating interest in amounts owing under the Loan Documents to the
same extent as if the amount of its participating interest were owing
directly to it as a Lender under the Loan Documents. Each Lender shall
retain the right of setoff provided in Section 11.1 with respect to the
amount of participating interests sold to each Participant, provided that
such Lender and Participant may not each setoff amounts against the same
portion of the Obligations, so as to collect the same amount from the
Borrower twice. The Lenders agree to share with each Participant, and each
Participant, by exercising the right of setoff provided in Section 11.1,
agrees to share with each Lender, any amount received pursuant to the
exercise of its right of setoff, such amounts to be shared in accordance
with Section 11.2 as if each Participant were a Lender.
12.3 Assignments.
12.3.1 Permitted Assignments. Any Lender may, in the ordinary course
of its business and in accordance with applicable law, at any time assign
to any of such Lender's affiliates or to one or more banks, financial
institutions or pension funds, or with the prior approval of the Borrower,
which shall not be unreasonably withheld or delayed, any other entity
("Purchasers") all or any portion of its rights and obligations under the
Loan Documents provided that no assignee shall be entitled to receive any
greater amount pursuant to Section 3.5 arising from events prior to the
date of the assignment than the amount to which such assignor would have
been entitled to receive had no assignment occurred, and such assignee is
able to deliver the Form W-8BEN or W-8ECI referenced in Section 3.5(iv)
hereof. Notwithstanding the foregoing, no approval of the Borrower shall be
required for any such assignment if a Default has occurred and is then
continuing. Such assignment shall be substantially in the form of Exhibit D
hereto or in such other form as may be agreed to by the parties thereto.
The consent of the Administrative Agent shall be required prior to an
assignment becoming effective except in the case of an assignment to an
Affiliated Qualified Institution. Such consent shall not be unreasonably
withheld. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this
Section shall not apply to any such pledge or assignment of a security
interest; provided that any foreclosure or similar action by such pledgee
or assignee shall be subject to the provisions of this Section 12.3.1
concerning assignments; and provided, further that no such pledge or
assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
12.3.2 Effect; Effective Date. Upon (i) delivery to the Administrative
Agent of a notice of assignment, substantially in the form attached as
Exhibit "I" to Exhibit D hereto (a "Notice of Assignment"), together with
any consents required by Section 12.3.1, and (ii) payment of a $3,500 fee
by the assignor or assignee to the Administrative Agent for processing such
assignment, such assignment shall become effective on the effective date
specified in such Notice of Assignment. The Notice of Assignment shall
contain a
-93-
representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Commitment and Loans under
the applicable assignment agreement are "plan assets" as defined under
ERISA and that the rights and interests of the Purchaser in and under the
Loan Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser shall for all purposes be
a Lender party to this Agreement and any other Loan Document executed by
the Lenders and shall have all the rights and obligations of a Lender under
the Loan Documents, to the same extent as if it were an original party
hereto, and no further consent or action by the Borrower, the Lenders or
the Administrative Agent shall be required to release the transferor
Lender, and the transferor Lender shall automatically be released on the
effective date of such assignment, with respect to the percentage of the
Aggregate Commitment and Loans assigned to such Purchaser. Upon the
consummation of any assignment to a Purchaser pursuant to this Section
12.3.2, the transferor Lender, the Administrative Agent and the Borrower
shall make appropriate arrangements so that replacement Notes are issued to
such transferor Lender and new Notes or, as appropriate, replacement Notes,
are issued to such Purchaser, in each case in principal amounts reflecting
their Commitment, as adjusted pursuant to such assignment.
12.4 Dissemination of Information. The Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries, subject to
Section 12.6.
12.5 Tax Treatment. If any interest in any Loan Document is transferred to
any Transferee which is organized under the laws of any jurisdiction other than
the United States or any State thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to comply with
the provisions of Section 3.5.
12.6 Confidentiality. The Administrative Agent and Lenders agree to take
normal and reasonable precautions and exercise due care to maintain the
confidentiality of all non-public information provided to them by the Borrower
or by any other Person on the Borrower's behalf in connection with the Loan
Documents and agree and undertake that neither they nor any of their Affiliates
shall disclose any such information for any purpose or in any manner other than
pursuant to the terms contemplated by the Loan Documents. The Administrative
Agent and each Lender may disclose such information (1) at the request of (A)
any regulatory authority with jurisdiction over the Administrative Agent and/or
the Lenders or in connection with an examination of such Person by any such
authority, or (B) any self-regulated body (2) pursuant to subpoena or other
process of a court having jurisdiction over the Administrative Agent and/or the
Lenders, (3) when required to do so in accordance with the provisions of any
applicable law, (4) at the express direction of any other governmental
authority, with jurisdiction over the Administrative Agent and/or the Lenders,
of any State of the United States of America or of any other jurisdiction in
which such Person conducts its business, (5) to such Person's independent
auditors, attorneys and other professional advisors, (6) if such information has
become public other than through disclosure by such Person or any Lender, (7) in
connection with any litigation involving such Person, and (8) to any Affiliate
of such Person which agrees to be bound by this Section 12.6. Notwithstanding
the foregoing, the Borrower authorizes each of the
-94-
Administrative Agent and each Lender to disclose to any prospective or actual
Transferee such financial and other information in its possession (i) which has
been delivered to such Person pursuant to the Loan Documents or which has been
delivered to such Person by the Borrower prior to entering into the Loan
Documents, or (ii) which is reasonably necessary to effectuate the purposes of
this Agreement and the Loan Documents; provided that, unless otherwise agreed by
the Borrower, such Transferee shall agree to keep such information confidential
to the same extent required to the Administrative Agent or any Lender, as
applicable, hereunder. The Borrower hereby consents to the disclosure of any
non-public information with respect to it which is related to this transaction
by any Designated Lender to any rating agency, commercial paper dealer, or
provider of a surety, guaranty or credit or liquidity enhancement to such
Designated Lender.
12.7 USA Patriot Act. Each Lender hereby notifies the Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L 107-56
(signed into law October 26, 2001)) (the "Act"), it is required to obtain,
verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will
allow such Lender to identify the Borrower in accordance with the Act. Any
Lender may request additional information with respect to any Qualified Borrower
in connection with such Lender's "Know your customer" procedures.
12.8 Co-Agents: Lead Managers; No Fiduciary Relationship. None of the
Lenders identified on the facing page or signature pages of this Agreement as a
"documentation agent," "syndication agent," "managing agent", "co-agent" or
"joint arranger/joint book manager" shall have the right, power, obligation,
liability, responsibility or duty under this Agreement other than those
applicable to all Lenders as such. Without limiting the foregoing, none of the
Lenders so identified as a "documentation agent," "syndication agent," "managing
agent," "co-agent' or "joint arranger/joint book manager" shall have or be
deemed to have any fiduciary relationship with any Lenders. Each Lender
acknowledges that it has not relied, and will not rely, on any of Lenders so
identified in deciding to enter into this Agreement or in taking or not taking
action hereunder. In addition to the foregoing, the Borrower agrees that in
connection with all aspects of the transactions contemplated hereby and any
communications in connection therewith, the Borrower and its Affiliates, on the
one hand, and the Administrative Agent, the Lenders, and each of the Lenders
identified on the facing page or the signature page hereof as a "documentation
agent," "syndication agent," "managing agent, "co-agent" or "joint
arranger/joint book manager" and their Affiliates, on the other hand, will have
a business relationship that does not create, by implication or otherwise, any
fiduciary duty on the part of the Administrative Agent, the Lenders, or any
Lenders so identified as a "documentation agent," "syndication agent," "managing
agent," "co-agent" or "joint arranger/joint book manager" or their Affiliates,
and no such duty will be deemed to have arisen in connection with any such
transactions or communications.
-95-
ARTICLE XIII
NOTICES
13.1 Giving Notice. Except as otherwise permitted by Section 2.14 with
respect to Borrowing Requests, all notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by telex or by facsimile and addressed or delivered to such party at
its address set forth below its signature hereto or at such other address (or to
counsel for such party) as may be designated by such party in a notice to the
other parties (or in the case of Administrative Agent, all notices concerning
Loans in currencies other than Dollars shall be sent to the London
Administrative Office, with a copy to the New York Administrative Office). For
purposes of any notices required to be given to Borrower, such notices may be
given only to DDR. Any notice, if mailed and properly addressed with postage
prepaid, shall be deemed given when received; any notice, if transmitted by
telex or facsimile, shall be deemed given when transmitted (answerback confirmed
in the case of telexes).
13.2 Change of Address. The Borrower, the Administrative Agent and any
Lender may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be
effective when it has been executed by the Borrower, the Administrative Agent
and the Lenders and each party has notified the Administrative Agent by telex or
telephone, that it has taken such action.
(Remainder of page intentionally left blank.)
-96-
IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative Agent
have executed this Agreement as of the date first above written.
DEVELOPERS DIVERSIFIED REALTY
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
----------------------------
Title: Executive Vice President & CFO
---------------------------------
DDR PR VENTURES LLC, S.E.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
----------------------------
Title: Executive Vice President & CFO
---------------------------------
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Phone: 216/000-0000
Facsimile: 216/755-1775
Attention: Chief Financial Officer
with a copy to:
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Phone: 216/000-0000
Facsimile: 216/755-1560
Attention: General Counsel
S-1
JPMORGAN CHASE BANK, N.A.,
Individually and as Administrative Agent
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Print Name: Xxxxxxxx X. Xxxxxx
----------------------------
Title: Vice President
---------------------------------
New York Administrative Office:
000 Xxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: 212/000-0000
Facsimile: 646/534-0574
Attention: Xxxxxxxx Xxxxxx,
Vice President
London Administrative Office:
000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Attention of Agency Department
S-2
BANK OF AMERICA, N.A.,
Individually and as Syndication Agent
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
----------------------------
Title: Senior Vice President
---------------------------------
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Phone: 312/000-0000
Facsimile: 312/974-4970
Attention: Xx. Xxxxxx Xxxxx
X-0
XXXXXXXX XX, XXX XXXX BRANCH
Individually and as Documentation Agent
By: /s/ Xxxxx Xxxxxx
------------------------------------
Print Name: Xxxxx Xxxxxx
----------------------------
Title: Director
---------------------------------
and by:
By: /s/ Xxxxxxx Xxx
------------------------------------
Print Name: Xxxxxxx Xxx
----------------------------
Title: Director
---------------------------------
Head of Portfolio Operations
Eurohypo AG, New York Branch
1114 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Phone:(000) 000-0000
Fax: (000) 000-0000
With a copy to:
Head of Xxxxx Xxxxxxxxxx
Xxxxxxxx XX, Xxx Xxxx Branch
1114 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
S-4
WACHOVIA BANK, National Association,
Individually and as Documentation Agent
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Print Name: Xxxxx X. Xxxxx
Title: Managing Director
Mail Code XX-0000, 00xx Xxxxx
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Phone: 704/000-0000
Facsimile: 704/383-6205
Attention: Xx. Xxx X. Xxxx
S-5
XXXXX FARGO BANK, N.A.,
Real Estate Finance Group,
Individually and as Documentation Agent
By: /s/ Xxxxx Xxxxx
------------------------------------
Print Name: Xxxxx Xxxxx
Title: Vice President
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxx Xxxxx
S-6
LASALLE BANK NATIONAL ASSOCIATION
Individually and as Senior Managing
Agent
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Print Name: Xxxxxx X. Xxxxxxx
Title: Vice President
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxxx Xxxxxxx
X-0
US BANK N.A.,
Individually and as Senior Managing
Agent
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Print Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxxx
S-8
DEUTSCHE BANK AG, NEW YORK BRANCH
Individually and as Managing Agent
By: /s/ Xxxxxx Xxxxx
------------------------------------
Print Name: Xxxxxx Xxxxx
----------------------------
Title: Director
---------------------------------
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Print Name: Xxxxxx Xxxxxxx
----------------------------
Title: Assistant Vice President
---------------------------------
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxx Xxxxxx
[Signature Page to DDR Amended and Restated Credit Agreement dated as of
June 30, 2006]
S-9
ING REAL ESTATE FINANCE (USA) LLC
Individually and as Managing Agent
By: /s/ Xxxxxxxxxxx Xxxxxxxxx
------------------------------------
Print Name: Xxxxxxxxxxx Xxxxxxxxx
Title: Vice President
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 212-883-2734
Attention: Xx. Xxxxxxxxxxx Xxxxxxxxx
S-10
MIZUHO CORPORATE BANK, LTD.
Individually and as Managing Agent
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Print Name: Xxxxx Xxxxxxxx
----------------------------
Title: Senior Vice President
---------------------------------
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000/4489
Attention: Xx. Xxxxx Xxxxxxxx
S-11
XXXXXX XXXXXXX BANK
Individually and as Managing Agent
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Print Name: Xxxxxx Xxxxxx
Title: Vice President
0000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Phone: 000-000-0000 / 2484
Facsimile: 000-000-0000 / 1866
Attention: Xxxx Dell'aquila / Xxxxxx
Xxxxxx
S-12
THE BANK NEW YORK
Individually and as Managing Agent
By: /s/ Xxxx Loudisi
------------------------------------
Print Name: Xxxx Loudisi
----------------------------
Title: Managing Director
---------------------------------
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxx Loudisi
X-00
XXX XXXX XX XXXX XXXXXX
Individually and as Managing Agent
By: /s/ Xxxxxx Xxxxx
------------------------------------
Print Name: Xxxxxx Xxxxx
Title: Managing Director
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxxx Xxxxx
S-14
UBS LOAN FINANCE LLC
Individually and as Managing Agent
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Print Name: Xxxxxxx X. Xxxxxx
----------------------------
Title: Director
---------------------------------
and by:
By: /s/ Xxxx X. Xxxx
------------------------------------
Print Name: Xxxx X. Xxxx
----------------------------
Title: Associate Director
---------------------------------
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxxxx Xxxx
S-15
AMSOUTH BANK
Individually and as Co-Agent
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Print Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President
0000 Xxxxx Xxxxxx Xxxxx
XXX00
Xxxxxxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxx X. Xxxxxxx
S-16
KEYBANK NATIONAL ASSOCIATION
Individually and as Co-Agent
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Print Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxx Xxxxxx
S-17
PNC BANK, N.A.
Individually and as Co-Agent
By: /s/ Xxxxxx Xxxx Xxxxxxxxx
------------------------------------
Print Name: Xxxxxx Xxxx Xxxxxxxxx
Title: Senior Vice President
0 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxxx Xxxx Xxxxxxxxx
S-18
SOVEREIGN BANK
Individually and as Co-Agent
By: /s/ T. Xxxxxxx Xxxxxxx
------------------------------------
Print Name: T. Xxxxxxx Xxxxxxx
Title: Senior Vice President
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: T. Xxxxxxx Xxxxxxx
S-19
SUNTRUST BANK
Individually and as Co-Agent
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Print Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
0000 Xxxxx Xxxxxxxxx
0xx Xxxxx
Xxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxxx
S-20
CHARTER ONE BANK, N.A.
Individually and as Co-Agent
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Print Name: Xxxxxxx Xxxxxxxx
Title: Vice President
0000 Xxxxxxxx Xxx - XXX 000
Xxxxxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
S-21
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Print Name: Xxxxx X. Xxxxxx
Title: Vice President
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention Xx. Xxxxx X. Xxxxxx
S-22
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Print Name: Xxxxx X. Xxxxx
----------------------------
Title: Vice President
---------------------------------
Xxx Xxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, XX 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention Xx. Xxxxx X. Xxxxx
S-23
NOMURA FUNDING FACILITY CORPORATION LTD.
By: /s/ Xxxx Xxxxx
------------------------------------
Print Name: Xxxx Xxxxx
Title: Authorized Agent
Xxxxxxxxxxxxx Xxxxx
0 Xxxxxxxxxxxxx Xxxxx 0XXX
Xxxxxx 0, Xxxxxxx
Telephone: 0000 0000000
Facsimile: 3531 6700860
Attention: Xxxxxxx Xxxxxxx
S-24
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Print Name: Xxxxxxxx X. Xxxxxx
----------------------------
Title: Vice President
---------------------------------
000 Xxxxxx Xxxxxx, XX00
Xxxxxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxx X. Xxxxxxx
S-25
BANCO POPULAR DE PUERTO RICO,
NEW YORK BRANCH
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Print Name: Xxxxxx X. Xxxxxxxx
----------------------------
Title: Vice President
---------------------------------
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxxx X. Xxxxxxxx
S-26
CITICORP NORTH AMERICA, INC.
By: /s/ Xxxxx Xxxxx
------------------------------------
Print Name: Xxxxx Xxxxx
Title: Vice President
---------------------------------
000 Xxxxxxxxx Xxxxxx, Xxxxx 0
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxx Xxxxx
S-27
COMERICA BANK
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Print Name: Xxxxx Xxxxxxxxx
Title: VP
000 Xxxxxxxx Xxxxxx
XX 0000
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxx Xxxxxxxxx
S-28
XXXXXX COMMERCIAL PAPER INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Print Name: Xxxxxx X. Xxxxxx
----------------------------
Title: Authorized Signatory
---------------------------------
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxx
S-29
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Xxxxx X. Xxxx
------------------------------------
Print Name: Xxxxx X. Xxxx
Title: Senior Vice President
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxxx
S-30
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Print Name: Xxxxxx Xxxxxx
Title: Vice President
00 Xxxxx XxXxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxxx Xxxxxx
S-31
COMPASS BANK
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Print Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
0000 X. Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Commercial Real Estate
S-32
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION
By: /s/ Xxxx Xxxxxx
------------------------------------
Print Name: Xxxx Xxxxxx
Title: Senior Vice President
000 Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxx Xxxxxx
S-33
