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EXHIBIT 10.41
TERM LOAN AGREEMENT
by and among
NEW PLAN EXCEL REALTY TRUST, INC.
THE LENDERS PARTY HERETO,
AND
FLEET NATIONAL BANK
as Administrative Agent
Dated as of March 7, 2000
FLEET BOSTON XXXXXXXXX XXXXXXXX, INC.
as Sole Lead Arranger
and Bookrunner
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TABLE OF CONTENTS
Page
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1. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Definitional Provisions 19
2. AMOUNT AND TERMS OF LOANS 19
2.1 Loans 19
2.2 Notes 21
2.3 Procedure for Loan Borrowings 21
2.4 [Intentionally Omitted] 23
2.5 Termination or Reduction of Commitments 23
2.6 Repayment of Loans; Evidence of Debt 23
2.7 Prepayments of the Loans 24
2.8 Conversions 24
2.9 Interest Rate and Payment Dates 25
2.10 Substituted Interest Rate 27
2.11 Taxes; Net Payments 27
2.12 Illegality 28
2.13 Increased Costs 28
2.14 Indemnification for Break Funding Losses 30
2.15 Use of Proceeds 31
2.16 Capital Adequacy 31
2.17 Administrative Agent's Records 32
2.18 [Intentionally Omitted] 32
3. FEES; PAYMENTS 32
3.1 Facility Fee 32
3.2 Payments; Application of Payments 32
4. REPRESENTATIONS AND WARRANTIES 33
4.1 Existence and Power 33
4.2 Authority 33
4.3 Binding Agreement 34
4.4 Subsidiaries; DownREIT Partnerships 34
4.5 Litigation 34
4.6 Required Consents 35
4.7 No Conflicting Agreements 35
4.8 Compliance with Applicable Laws 35
4.9 Taxes 35
4.10 Governmental Regulations 36
4.11 Federal Reserve Regulations; Use of Loan Proceeds 36
4.12 Plans; Multiemployer Plans 36
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4.13 Financial Statements 36
4.14 Property 37
4.15 Franchises, Intellectual Property, Etc 37
4.16 Environmental Matters 37
4.17 Labor Relations 39
4.18 Burdensome Obligations 39
4.19 Solvency 39
4.20 REIT Status 40
4.21 Rent Roll and List of Unencumbered Assets 40
4.22 [Intentionally Omitted] 40
4.23 Operation of Business 40
4.24 No Misrepresentation 40
5. CONDITIONS TO FIRST LOANS 40
5.1 Evidence of Action 40
5.2 This Agreement 41
5.3 Notes 41
5.4 Guaranty 41
5.5 [Intentionally Omitted] 42
5.6 Litigation 42
5.7 Opinion of Counsel to the Borrower 42
5.8 Fees 42
5.9 Fees and Expenses of Special Counsel 42
5.10 [Intentionally Omitted] 42
6. CONDITIONS OF LENDING - ALL LOANS 42
6.1 Compliance 42
6.2 Loan Closings 43
6.3 Borrowing Request 43
6.4 Documentation and Proceedings 43
6.5 Required Acts and Conditions 43
6.6 Approval of Special Counsel 43
6.7 Supplemental Opinions 44
6.8 Other Documents 44
7. AFFIRMATIVE COVENANTS 44
7.1 Financial Statements 44
7.2 Certificates; Other Information 45
7.3 Legal Existence 48
7.4 Taxes 49
7.5 Insurance 49
7.6 Payment of Indebtedness and Performance of Obligations 49
7.7 Maintenance of Property; Environmental Investigations 50
7.8 Observance of Legal Requirements 50
7.9 Inspection of Property; Books and Records; Discussions 51
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7.10 Licenses, Intellectual Property 51
7.11 Required Additional Guarantors 51
7.12 REIT Status; Operation of Business 51
7.13 [Intentionally Omitted] 52
8. NEGATIVE COVENANTS 52
8.1 Liens 52
8.2 Merger, Consolidation and Certain Dispositions of Property 52
8.3 Investments, Loans, Etc 53
8.4 Business Changes 55
8.5 Amendments to Organizational Documents 55
8.6 Bankruptcy Proceedings 55
8.7 Sale and Leaseback 56
8.8 Transactions with Affiliates 56
8.9 Issuance of Additional Capital Stock by Subsidiary Guarantors 56
8.10 Hedging Agreements 56
8.11 Restricted Payments 56
8.12 Unencumbered Assets Coverage Ratio 57
8.13 Fixed Charge Coverage Ratio 57
8.14 Minimum Tangible Net Worth 57
8.15 Maximum Total Indebtedness 58
8.16 Liabilities to Assets Ratio 58
8.17 Maximum Book Value of Ancillary Assets 58
9. DEFAULT 58
9.1 Events of Default 58
10.1 Appointment 61
10.2 Delegation of Duties 62
10.3 Exculpatory Provisions 62
10.4 Reliance by Administrative Agent 62
10.5 Notice of Default 62
10.6 Non-Reliance on Administrative Agent and Other Lenders 63
10.7 Indemnification 63
10.8 Administrative Agent in Its Individual Capacity 64
10.9 Successor Administrative Agent 64
10.10 [Intentionally Omitted] 65
11. OTHER PROVISIONS 65
11.1 Amendments and Waivers 65
11.2 Notices 66
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11.3 No Waiver; Cumulative Remedies 67
11.4 Survival of Representations and Warranties 67
11.5 Payment of Expenses and Taxes 68
11.6 Lending Offices 69
11.7 Successors and Assigns 69
11.8 [Intentionally Omitted] 71
11.9 Counterparts 71
11.10 Adjustments; Set-off 71
11.11 Lenders' Representations 72
11.12 Indemnity 72
11.13 Governing Law 73
11.14 Headings Descriptive 73
11.15 Severability 73
11.16 Integration 73
11.17 Consent to Jurisdiction 74
11.18 Service of Process 74
11.19 No Limitation on Service or Suit 74
11.20 WAIVER OF TRIAL BY JURY 74
11.21 Termination 75
LIST OF EXHIBITS AND SCHEDULES
EXHIBITS:
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Exhibit A - Assignment and Assumption
Exhibit B - Commitment Amounts
Exhibit C - [Intentionally Omitted]
Exhibit D - Compliance Certificate
Exhibit E - Borrowing Request
Exhibit F - Guaranty
Exhibit G - [Intentionally Omitted]
Exhibit H - Note
Exhibit I - Secretary's Certificate (Borrower)
Exhibit J - Secretary's Certificate (Guarantor)
Exhibit K - Points for Legal Opinions
Exhibit L - [Intentionally Omitted]
Exhibit M - Form of Notice of Conversion
SCHEDULES:
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Schedule I - Domestic and Eurodollar Lending Offices
Schedule 4.4 - Subsidiaries (including Subsidiary Guarantors)
Schedule 4.5 - Litigation
Schedule 4.12 - Plans
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Schedule 4.21 - Rent Roll and List of Unencumbered Assets
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TERM LOAN AGREEMENT, dated as of March ___, 2000, by and among NEW
PLAN EXCEL REALTY TRUST, INC., a Maryland corporation (the "Borrower"), each
lender party hereto or which becomes a "Lender" pursuant to the provisions of
Section 11.7 (each a "Lender" and, collectively, the "Lenders"), and FLEET
NATIONAL BANK, as administrative agent (in such capacity, the "Administrative
Agent").
1. DEFINITIONS.
1.1 Defined Terms .
As used in this Agreement, terms defined in the preamble
have the meanings therein indicated, and the following terms have the
following meanings:
"ABR Advances": the Loans (or any portions thereof) at
such time as they (or such portions) are made and/or being maintained at a rate
of interest based upon the Alternate Base Rate.
"Accountants": PricewaterhouseCoopers LLP, or, after
the date hereof, any of: Xxxxxx Xxxxxxxx LLP; Deloitte & Touche LLP; Ernst &
Young LLP; KPMG LLP; or any successor to any of the foregoing; or such other
firm of certified public accountants of recognized national standing selected by
the Borrower and satisfactory to the Administrative Agent.
"Adjusted Net Operating Income": for any period, the
aggregate amount of the Net Operating Income from each Unencumbered Asset during
such period, less the Capital Expense Reserve for such Unencumbered Asset during
such period.
"Advance": an ABR Advance or a Eurodollar Advance, as
the case may be.
"Advance Termination Date": April 28, 2000.
"Affected Advance": as defined in Section 2.10.
"Affected Principal Amount": in the event that (i) the
Borrower shall fail for any reason to borrow or convert after it shall have
notified the Administrative Agent of its intent to do so in any instance in
which it shall have requested a Eurodollar Advance pursuant to Section 2.3 or
2.8, an amount equal to the principal amount of such Eurodollar Advance; (ii) a
Eurodollar Advance shall terminate for any reason prior to the last day of the
Interest Period applicable thereto, an amount equal to the principal amount of
such Eurodollar Advance; or (iii) the Borrower shall prepay or repay all or any
part of the principal amount of a Eurodollar Advance prior to the last day of
the Interest Period applicable thereto (including, without limitation, any
mandatory prepayment or a prepayment resulting from acceleration or illegality),
an amount equal to the principal amount of such Eurodollar Advance so prepaid or
repaid.
"Affiliate": as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this
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definition, control of a Person shall mean the power, direct or indirect, (i) to
vote 10% or more of the securities having ordinary voting power for the election
of directors of such Person or (ii) to direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Agreement": this Term Loan Agreement, as the same may
be amended, supplemented or otherwise modified from time to time.
"Agreement Regarding Fees": that certain Agreement
Regarding Fees dated of even date herewith between FNB and the Borrower.
"Alternate Base Rate": on any date, a rate of interest
per annum equal to the higher of (i) the Federal Funds Rate in effect on such
date plus 1/2 of 1% or (ii) the FNB Rate in effect on such date.
"Ancillary Assets": at any time, all Real Property of
the Borrower and its Subsidiaries, or in which the Borrower or any Subsidiary of
the Borrower has an interest (either directly or indirectly), and which is (i) a
Development Asset, (ii) a mortgage, or (iii) any other Real Property other than
an open air shopping center (including single tenant retail properties) or a
residential apartment building or residential apartment community (and
appurtenant amenities).
"Applicable Lending Office": in respect of any Lender,
(i) in the case of such Lender's ABR Advances, its Domestic Lending Office and
(ii) in the case of such Lender's Eurodollar Advances, its Eurodollar Lending
Office.
"Applicable Margin": with respect to the unpaid
principal balance of ABR Advances or Eurodollar Advances, at all times during
which the applicable Pricing Level set forth below is in effect, the respective
percentage set forth below next to such Pricing Level:
Pricing Level Eurodollar Advances ABR Advances
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Pricing Level I 0.80% 0%
Pricing Level II 0.90% 0%
Pricing Level III 1.15% 0%
Pricing Level IV 1.20% 0%
Pricing Level V 1.25% 0.25%
Changes in the Applicable Margin resulting from a change
in a Pricing Level shall become effective as of the opening of business upon the
date of any change in the Senior Debt Rating of the Borrower, as determined by
S&P or Xxxxx'x, as the case may be, which would affect the applicable Pricing
Level.
"Assignment and Assumption Agreement": an assignment and
assumption agreement executed by an assignor and an assignee pursuant to which
such assignor assigns to such assignee all or any portion of such assignor's
Notes and Commitments, substantially in the
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form of Exhibit A.
"Assignment Fee": as defined in Section 11.7(b).
"Authorized Signatory": the chairman of the board, the
president, any vice president, the Chief Financial Officer or any other duly
authorized officer (acceptable to the Administrative Agent) of the Borrower.
"Available Commitment Amount": on any day during the
Loan Period, an amount equal to the Total Commitment Amount at such time minus
the total of all Loans outstanding on such date.
"Benefitted Lender": as defined in Section 11.10.
"Borrower's Interest": for any period, (i) with respect
to Unencumbered Assets owned by a DownREIT Partnership, a fraction, expressed as
a percentage, the numerator of which is the Net Operating Income of such
Unencumbered Assets for such period, less any distributions required to be made
to partners or members of such DownREIT Partnership, other than the Borrower and
its Subsidiaries, and the denominator of which is the Net Operating Income of
such Unencumbered Assets for such period, and (ii) with respect to any Ancillary
Asset, the percentage of profits and losses with respect thereto to which the
Borrower or its Subsidiaries, directly or indirectly, may be entitled to receive
for such period.
"Borrowing Date": any Business Day specified in a
Borrowing Request delivered pursuant to Section 2.3 as a date on which the
Borrower requests the Lenders to make Loans.
"Borrowing Request": a borrowing request in the form of
Exhibit E.
"Business Day": for all purposes other than as set forth
in clause (ii) below, (i) any day other than a Saturday, a Sunday or a day on
which commercial banks located in Boston, Massachusetts, are authorized or
required by law or other governmental action to close and (ii) with respect to
all notices and determinations in connection with, and payments of principal and
interest on, Eurodollar Advances, any day which is a Business Day described in
clause (i) above and which is also a day on which dealings in foreign currency
and exchange and Eurodollar funding between banks may be carried on in London,
England.
"Capital Leases": leases which have been, or under GAAP
are required to be, capitalized.
"Capital Expense Reserve": during any period, (i) with
respect to each Unencumbered Asset other than a residential apartment building
or residential apartment community, an amount equal to (A) a per annum rate of
$.20 times (B) the total Net Rentable Area of such Unencumbered Asset, and (ii)
with respect to each Unencumbered Asset that is a residential apartment building
or residential apartment community, an amount equal to (A) $150 times (B) the
number of apartment units in such residential apartment building or community
(in each case whether or not such reserves are actually established by the
Borrower).
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"Change of Control": the occurrence of any one of the
following events:
(a) any Person or Persons acting as a group shall
acquire direct or indirect ownership of 30% or more of the Borrower's common
Stock; or
(b) during any twelve month period on or after the
Effective Date, individuals who at the beginning of such period constituted the
Board of Directors of the Borrower (together with any new directors whose
election by the Board of Directors or whose nomination for election by the
shareholders of the Borrower was approved by a vote of at least a majority of
the members of the Board of Directors then in office who either were members of
the Board of Directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the members of the Board of Directors then in office;
or
(c) there occurs a change of control of the Borrower of
a nature that would be required to be reported in response to Item 1a of Form
8-K filed pursuant to Section 13 or 15 under the Securities Exchange Act of
1934, or in any other filing by the Borrower with the Securities and Exchange
Commission; or
(d) the Borrower consolidates with, is acquired by, or
merges into or with any Person (other than a merger permitted by Section 8.2).
"Chief Financial Officer": at any time, the chief
financial officer of the Borrower, or if the Borrower does not have a chief
financial officer at such time, the officer designated by the Borrower as its
principal financial officer or such other officer of the Borrower that is
acceptable to the Administrative Agent.
"Code": the Internal Revenue Code of 1986, as the same
may be amended from time to time, or any successor thereto, and the rules and
regulations issued thereunder, as from time to time in effect.
"Commitment": in respect of any Lender, such Lender's
undertaking during the Loan Period to make Loans, subject to the terms and
conditions hereof, in an aggregate outstanding principal amount not exceeding
such Lender's Commitment Amount.
"Commitment Amount": the amount set forth next to the
name of such Lender in Exhibit B under the heading "Commitments" as such
Lender's Commitment Amount, as the same may be increased pursuant to Section
2.1(b) or reduced pursuant to Section 2.5.
"Commitment Percentage": on any day, and as to any
Lender, the quotient of (i) such Lender's Commitment Amount on such day, divided
by (ii) the Commitments of all Lenders on such day.
"Compliance Certificate": a certificate substantially in
the form of Exhibit D.
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"Consolidated": the Borrower and its Subsidiaries which
are consolidated for financial reporting purposes.
"Consolidated EBITDA": for any period, net income for
such period of the Borrower and its Subsidiaries, determined on a Consolidated
basis in accordance with GAAP, plus, without duplication and to the extent
deducted in determining such net income, the sum of (i) Consolidated Interest
Expense for such period, (ii) the aggregate amount of any taxes paid during such
period, (iii) the aggregate amount attributable to depreciation and amortization
for such period, (iv) the aggregate amount of extraordinary charges during such
period and (v) the aggregate amount of non-cash expenses during such period, and
minus, without duplication and to the extent added in determining such net
income for such period, the aggregate amount of extraordinary gains during such
period.
"Consolidated Fixed Charges": during any period, the sum
of each of the following with respect to the Borrower and its Subsidiaries
(without duplication), determined on a Consolidated basis in accordance with
GAAP: (i) the aggregate amount of all interest expense, both expensed and
capitalized (including Consolidated Interest Expense) for such period, (ii) the
aggregate of all scheduled principal amounts that become payable during such
period in respect of any Indebtedness of the Borrower or its Subsidiaries
(excluding balloon payments at maturity) and (iii) the aggregate amount of all
cash dividends paid during such period in respect of preferred stock of the
Borrower or its Subsidiaries.
"Consolidated Interest Expense": for any period,
interest and fees accrued, accreted or paid by the Borrower and its Subsidiaries
during such period in respect of Consolidated Total Indebtedness, determined in
accordance with GAAP, including (a) the amortization of debt discounts to the
extent included in interest expense in accordance with GAAP, (b) the
amortization of all fees (including fees with respect to interest rate cap
agreements or other agreements or arrangements entered into by the Borrower or
any of its Subsidiaries designed to protect the Borrower or such Subsidiaries,
as applicable, against fluctuations in interest rates) payable in connection
with the incurrence of any Indebtedness to the extent included in interest
expense in accordance with GAAP and (c) the portion of any rents payable under
capital leases allocable to interest expense in accordance with GAAP.
"Consolidated Total Indebtedness": as of any date, the
aggregate principal amount of all Indebtedness of the Borrower and its
Subsidiaries determined on a Consolidated basis in accordance with GAAP, plus,
if not otherwise required to be reflected in the Borrower's Consolidated balance
sheet (and without duplication) (i) Contingent Obligations of the Borrower and
its Subsidiaries on such date which are required in accordance with GAAP to be
disclosed in a footnote to any such balance sheet, and (ii) any guarantee by the
Borrower of any Indebtedness of an unconsolidated Subsidiary or joint venture in
which the Borrower is a direct or indirect investor (to the full extent of the
amount of such guaranteed Indebtedness on such date).
"Contingent Obligation": as to any Person, any
obligation of such Person guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations ("Primary Obligations") of
any other Person (the "Primary Obligor") in any manner, whether
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directly or indirectly, and whether arising from partnership or keep-well
agreements, including, without limitation, any obligation of such Person,
whether contingent or not contingent (a) to purchase any such Primary Obligation
or any Property constituting direct or indirect security therefor, (b) to
advance or supply funds (i) for the purchase or payment of any such Primary
Obligation or (ii) to maintain working capital or equity capital of the Primary
Obligor or otherwise to maintain net worth, solvency or other financial
statement condition of the Primary Obligor, (c) to purchase Property, securities
or services primarily for the purpose of assuring the beneficiary of any such
Primary Obligation of the ability of the Primary Obligor to make payment of such
Primary Obligation or (d) otherwise to assure, protect from loss or hold
harmless the beneficiary of such Primary Obligation against loss in respect
thereof; provided, however, that the term Contingent Obligation shall not
include the endorsement of instruments for deposit or collection in the ordinary
course of business. The term Contingent Obligation shall also include the
liability of a general partner in respect of the liabilities of the partnership
in which it is a general partner. The amount of any Contingent Obligation of a
Person shall be deemed to be an amount equal to the stated or determinable
amount of the Primary Obligation in respect of which such Contingent Obligation
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by such Person in good faith.
"Conversion Date": the date on which a Eurodollar
Advance is converted to an ABR Advance, or the date on which an ABR Advance is
converted to a Eurodollar Advance, or the date on which a Eurodollar Advance is
converted to a new Eurodollar Advance, all in accordance with Section 2.8.
"Credit Party": the Administrative Agent, the Lead
Arranger, each Lender and their successors and assigns.
"Default": any event or condition which constitutes an
Event of Default or which, with the giving of notice, the lapse of time, or any
other condition, would, unless cured or waived, become an Event of Default.
"Defaulting Lender": at any time, any Lender that, at
such time, (i) has failed to comply with any of its obligations to make a Loan
as required pursuant to Section 2.3 of this Agreement, (ii) has failed to pay to
the Administrative Agent or any Lender an amount owed by such Lender pursuant to
the terms of this Agreement or any of the other Loan Documents, or (iii) has
advised the Administrative Agent that it does not intend to comply with its
obligations under Section 2.3 by reason of having been deemed insolvent or
having become subject to a bankruptcy or insolvency proceeding.
"Development Asset": any Property of the Borrower or its
Subsidiaries, or in which the Borrower or any of its Subsidiaries has an
interest (either directly or indirectly) (i) which is new construction, or which
is undergoing an expansion which will increase the Net Rentable Area of such
Property by 20,000 square feet or more (provided that with respect to any
Property which is under expansion, if the balance thereof is a fully integrated,
rentable property, then only the portion of such Property that is under
expansion shall be a Development Asset),
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and (ii) for which a certificate of occupancy, whether temporary or permanent,
or the functional equivalent thereof, has not been issued with respect to such
construction or expansion. Notwithstanding the foregoing, any such new
construction or expansion which shall have been a Development Asset under the
criteria of this definition shall no longer be a Development Asset upon such
time as (A) the same is an income-producing Property in operating condition, and
(B) at least 70% of the Net Rentable Area (determined on an "as completed"
basis) of such construction or expansion is initially leased to tenants who have
taken possession thereof.
"Dollars" and "$": lawful currency of the United States
of America.
"Domestic Lending Office": in respect of any Lender,
initially, the office or offices of such Lender designated as such on Schedule
I; thereafter, such other office of such Lender through which it shall be making
or maintaining ABR Advances, as reported by such Lender to the Administrative
Agent and the Borrower.
"DownREIT Partnership": Excel Realty Partners, L.P., E.
H. Properties, L.P. and any other partnership or limited liability company
hereafter created by the Borrower for the purpose of acquiring assets qualifying
as "real estate assets" under Section 856(c) of the Code through the issuance of
partnership or limited liability company units in such partnership or limited
liability company to third parties, provided that, in the case of each such
entity (including Excel Realty Partners, L.P. and E. H. Properties, L.P.) (i)
the Borrower or a wholly owned Subsidiary of the Borrower is the sole general
partner or managing member of such partnership or limited liability company, as
the case may be, and (ii) the Borrower or its wholly owned Subsidiary shall be
entitled to receive not less than 99% of the net income and gains before
depreciation, if any, from such partnership or limited liability company after
the limited partners or non-managing members of such partnership or limited
liability company receive a stipulated distribution. Any partnership or limited
liability company created after the Effective Date must be approved by the
Administrative Agent as a "DownREIT Partnership" for purposes of being included
in this definition.
"Effective Date": the date on which the conditions
specified in Section 5 are satisfied.
"Environmental Laws": any and all federal, state and
local laws relating to the environment, the use, storage, transporting,
manufacturing, handling, discharge, disposal or recycling of hazardous
substances, materials or pollutants or industrial hygiene and including, without
limitation, (i) the Comprehensive Environmental Response, Compensation and
Liability Act, as amended, 42 USCA Section 9601 et seq.; (ii) the Resource
Conservation and Recovery Act of 1976, as amended, 42 USCA Section 6901 et seq.;
(iii) the Toxic Substance Control Act, as amended, 15 USCA Section 2601 et seq.;
(iv) the Water Pollution Control Act, as amended, 33 USCA Section 1251 et seq.;
(v) the Clean Air Act, as amended, 42 USCA Section 7401 et seq.; (vi) the
Hazardous Material Transportation Act, as amended, 49 USCA Section 1801 et seq.
and (viii) all rules, regulations, judgments, decrees, injunctions and
restrictions thereunder and any analogous state law.
"Environmental Risk Property": any Real Property of the
Borrower, a Subsidiary
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Guarantor or a DownREIT Partnership in respect of which, at any time:
(i) Hazardous Substances are (A) generated or
manufactured on, transported to or from, treated at, stored at or
discharged from such Real Property in violation of any Environmental Laws;
(B) discharged into subsurface waters under such Real Property in violation
of any Environmental Laws; or (C) discharged from such Real Property on or
into property or waters (including subsurface waters) adjacent to such Real
Property in violation of any Environmental Laws, and any of the foregoing
events in (A), (B) or (C) has an Adverse Environmental Impact; or
(ii) there exists with respect to such Real
Property (A) a claim, demand, suit, action, proceeding, condition, report,
directive, lien, violation, or non-compliance concerning any liability
(including, without limitation, potential liability for enforcement,
investigatory costs, cleanup costs, government response costs, removal
costs, remedial costs, natural resources damages, property damages,
personal injuries or penalties) arising in connection with: (x) any
non-compliance with or violation of the requirements of any applicable
Environmental Laws, or (y) the presence of any Hazardous Substance on such
Real Property or the release of any Hazardous Substance into the
environment from such Real Property, or (B) any actual liability in
connection with the presence of any Hazardous Substance on such Real
Property or the release of any Hazardous Substance into the environment
from such Real Property, and any of the foregoing events in (A) or (B) has
an Adverse Environmental Impact.
For purposes of this definition, the term "Adverse
Environmental Impact" shall mean any event described in clauses (A), (B) or
(C) of paragraph (i) above or clauses (A) or (B) of paragraph (ii) above
which could reasonably be expected to have a material adverse effect on (1)
the value of such Real Property, (2) the marketability of such Real
Property, or (3) the ability to finance or refinance such Real Property.
"ERISA": the Employee Retirement Income Security Act of
1974, as amended from time to time, and the rules and regulations issued
thereunder, as from time to time in effect.
"ERISA Affiliate": any Person which is a member of any
group of organizations (i) described in Section 414(b) or (c) of the Code of
which the Borrower is a member, or (ii) solely for purposes of potential
liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code
and the Lien created under Section 302(f) of ERISA and Section 412(n) of the
Code, described in Section 414(m) or (o) of the Code of which the Borrower is a
member.
"ERISA Liabilities": without duplication, the aggregate
of all unfunded vested benefits under all Plans and all potential withdrawal
liabilities under all Multiemployer Plans.
"Eurodollar Advance": collectively, the Loans (or any
portions thereof), at such time as they (or such portions) are made and/or being
maintained at a rate of interest based upon a particular Eurodollar Rate; and
"Eurodollar Advances" shall mean all such Eurodollar Advances in the aggregate.
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"Eurodollar Lending Office": in respect of any Lender,
initially, the office, branch or affiliate of such Lender designated as such on
Schedule I (or, if no such office branch or affiliate is specified, its Domestic
Lending Office); thereafter, such other office, branch or affiliate of such
Lender through which it shall be making or maintaining Eurodollar Advances, as
reported by such Lender to the Administrative Agent and the Borrower.
"Eurodollar Rate": with respect to each Eurodollar
Advance and as determined by the Administrative Agent, the rate of interest per
annum (rounded, if necessary, to the nearest 1/100 of 1% or, if there is no
nearest 1/100 of 1%, then to the next higher 1/100 of 1%) equal to a fraction,
the numerator of which is the rate per annum quoted by FNB at approximately
12:00 P.M. (or as soon thereafter as practicable) two Eurodollar Business Days
prior to the first day of such Interest Period to leading banks in the interbank
eurodollar market as the rate at which FNB is offering Dollar deposits in an
amount approximately equal to its Commitment Percentage of such Eurodollar
Advance and having a period to maturity approximately equal to the Interest
Period applicable to such Eurodollar Advance, and the denominator of which is an
amount equal to 1.00 minus the aggregate of the then stated maximum rates during
such Interest Period of all reserve requirements (including marginal, emergency,
supplemental and special reserves), expressed as a decimal, established by the
Board of Governors of the Federal Reserve System and any other banking authority
to which FNB and other major United States money center banks are subject, in
respect of eurocurrency liabilities.
"Event of Default": any of the events specified in
Section 9, provided that any requirement for the giving of notice, the lapse of
time or any other condition specified in Section 9 has been satisfied.
"Existing Credit Agreements" shall mean (i) that certain
Credit Agreement (Facility I) dated as of November 17, 1999 among the Borrower,
The Bank of New York, as Administrative Agent, and the lenders signatory
thereto, and (ii) that certain Credit Agreement (Facility II), dated as of
November 17, 1999, among the Borrower, The Bank of New York, as Administrative
Agent, and the lenders signatory thereto.
"Facility Fee": as defined in Section 3.1.
"Federal Funds Rate": for any day, a rate per annum
(expressed as a decimal, rounded upwards, if necessary, to the next higher 1/100
of 1%), equal to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day, provided that (i) if the day for
which such rate is to be determined is not a Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (ii) if
such rate is not so published for any day, the Federal Funds Rate for such day
shall be the average of the quotations for such day on such transactions
received by FNB as determined by FNB and reported to the Administrative Agent.
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"Financial Statements": as defined in Section 4.13.
"FNB": Fleet National Bank.
"FNB Rate": a rate of interest per annum equal to the
rate of interest publicly announced in Boston, Massachusetts, by FNB from time
to time as its prime commercial lending rate, such rate to be adjusted
automatically (without notice) on the effective date of any change in such
publicly announced rate.
"Funds from Operations": With respect to any Person for
any fiscal period, the sum of (i) the net income of such Person for such fiscal
period (computed in accordance with GAAP), excluding gains (or losses) from debt
restructuring and sales of property, (ii) depreciation and amortization, and
(iii) other non-cash items, and after adjustments for unconsolidated
partnerships and joint ventures. Adjustments for unconsolidated partnerships and
joint ventures will be calculated to reflect funds from operations on the same
basis.
"GAAP": generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statement by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination, consistently applied.
"Governmental Authority": any nation or government, any
state or other political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government and any court or arbitrator.
"Ground Lease": a ground lease in favor of the Borrower,
a wholly owned Subsidiary or a DownREIT Partnership which has an unexpired term
of 30 years or more (inclusive of any tenant-controlled renewal options) and
which includes within its terms those rights customarily required by mortgagees
making a loan secured by the interest of the holder of the leasehold estate
demised pursuant to such ground lease.
"Guaranty": collectively, (i) a Guaranty, substantially
in the form of Exhibit F executed by each of the Subsidiary Guarantors
identified on Schedule 4.4 and delivered to the Administrative Agent for the
benefit of the Lenders on or prior to the Effective Date, and (ii) each
additional Guaranty substantially in the form of Exhibit F executed by each
Required Additional Guarantor and delivered to the Administrative Agent for the
benefit of the Lenders after the Effective Date.
"Hazardous Substance": any hazardous or toxic substance,
material or waste, including, but not limited to, (i) those substances,
materials, and wastes listed in the United States Department of Transportation
Hazardous Materials Table (49 CFR 172.101) or by the Environmental Protection
Agency as hazardous substances (40 CFR Part 302) and amendments thereto and
replacements therefor and (ii) any substance, pollutant or material defined as,
or
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designated in, any Environmental Law as a "hazardous substance," "toxic
substance," "hazardous material," "hazardous waste," "restricted hazardous
waste," "pollutant," "toxic pollutant" or words of similar import.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"Highest Lawful Rate": with respect to any Lender, the
maximum rate of interest, if any, that at any time or from time to time may be
contracted for, taken, charged or received by such Lender on its Note or which
may be owing to such Lender pursuant to this Agreement under the laws applicable
to such Lender and this Agreement.
"Indebtedness": as to any Person, at a particular time,
all items which constitute, without duplication, (a) indebtedness for borrowed
money (including, without limitation, indebtedness under this Agreement and the
Notes) or the deferred purchase price of Property (other than trade payables
incurred in the ordinary course of business), (b) indebtedness evidenced by
notes, bonds, debentures or similar instruments, (c) obligations with respect to
any conditional sale or title retention agreement, (d) indebtedness arising
under acceptance facilities and the amount available to be drawn under all
letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder to the extent such Person shall not
have reimbursed the issuer in respect of the issuer's payment of such drafts,
(e) all liabilities secured by any Lien on any Property owned by such Person
even though such Person has not assumed or otherwise become liable for the
payment thereof (other than carriers', warehousemen's, mechanics', repairmen's
or other like non-consensual statutory Liens arising in the ordinary course of
business), (f) obligations under Capital Leases, (g) Contingent Obligations and
(h) ERISA Liabilities.
"Indemnified Person": as defined in Section 11.12.
"Intellectual Property": all copyrights, trademarks,
patents, trade names and service names.
"Interest Payment Date": (i) as to any ABR Advance, the
first day of each month commencing on the first such day to occur after such ABR
Advance is made or any Eurodollar Advance is converted to an ABR Advance, (ii)
as to any Eurodollar Advance in respect of which the Borrower has selected an
Interest Period of one, two or three months, the last day of such Interest
Period, and (iii) as to any Eurodollar Advance in respect of which the Borrower
has selected an Interest Period of six months, the day which is three months
after the first day of such Interest Period and the last day of such Interest
Period.
"Interest Period": with respect to any Eurodollar
Advance requested by the Borrower, the period commencing on, as the case may be,
the Borrowing Date or Conversion Date with respect to such Eurodollar Advance
and ending one, two, three or six months thereafter, as selected by the Borrower
in its irrevocable Borrowing Request as provided in
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Section 2.3 or its irrevocable notice of conversion as provided in Section 2.8;
provided, however, that all of the foregoing provisions relating to Interest
Periods are subject to the following:
(a) if any Interest Period pertaining to a Eurodollar
Advance would otherwise end on a day which is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on the immediately
preceding Business Day;
(b) if, with respect to the borrowing of any Loan as a
Eurodollar Advance or the conversion of one Advance to another pursuant to
Section 2.8, the Borrower shall fail to give due notice as provided in Section
2.3 or 2.8, as the case may be, the Borrower shall be deemed to have elected
that such Loan or Advance shall be made as an ABR Advance;
(c) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month;
(d) with respect to any Interest Period applicable to a
Eurodollar Advance, no such Interest Period shall end after the Maturity Date;
and
(e) the Borrower shall select Interest Periods so as not
to have more than six different Interest Periods outstanding at any one time
with respect to Eurodollar Advances.
"Investments": as defined in Section 8.3.
"Lead Arranger": Fleet Boston Xxxxxxxxx Xxxxxxxx, Inc.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit or preferential arrangement, encumbrance, lien (statutory or other), or
other security agreement or security interest of any kind or nature whatsoever,
including, without limitation, any conditional sale or other title retention
agreement and any capital or financing lease having substantially the same
economic effect as any of the foregoing.
"Loan" and "Loans": an individual term loan or the
aggregate term loans as the case may be, to be made by the Lenders hereunder.
All Loans shall be made in Dollars.
"Loan Documents": collectively, this Agreement, the
Guaranty (and each Guaranty subsequently delivered pursuant to Section 7.11) and
the Notes.
"Loan Period": the period from the Effective Date
through the day preceding the Advance Termination Date.
"Margin Stock": any "margin stock", as said term is
defined in Regulation U of the Board of Governors of the Federal Reserve System,
as the same may be amended or
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supplemented from time to time.
"Material Adverse Effect": a material adverse effect on
(i) the financial condition, operations, business, or Properties of (A) the
Borrower or (B) the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents or
(iii) the ability of the Administrative Agent and the Lenders to enforce the
Loan Documents.
"Maturity Date": the earlier of the date that is 364
days from the Effective Date (March 5, 2001)or the date on which the Notes shall
become due and payable, whether by acceleration or otherwise.
"Xxxxx'x": Xxxxx'x Investors Services, Inc.
"Multiemployer Plan": a plan defined as such Section
3(37) of ERISA to which contributions have been made by the Borrower or any
ERISA Affiliate and which is covered by Title IV of ERISA.
"Net Operating Income": for any period and with respect
to all assets which are Unencumbered Assets during such period, net income for
such period, determined in accordance with GAAP, attributable to Unencumbered
Assets, plus depreciation and amortization, interest expense and any
extraordinary or non-recurring losses deducted in calculating such net income,
minus extraordinary or non-recurring gains and payments (including rent
insurance proceeds and condemnation awards) included in such net income, minus
any portion of such net income attributable to rents paid by any tenant which is
an Affiliate of the Borrower, minus an amount (but not less than zero) equal to
the difference between (i) 3% of Operating Income for such period, less (ii)
management fees payable in respect of such Unencumbered Assets during such
period. For purposes of any calculation of Net Operating Income, real estate
taxes, ground rent and insurance, shall be included only at their stabilized,
recurring levels.
"Net Rentable Area": with respect to any Real Property,
the floor area of any buildings, structures or improvements thereof (expressed
in square feet) available for leasing to tenants, as determined in accordance
with the leases or site plans or leasing plans for such Real Property, or if
such leases or site plans do not set forth the floor area demised thereunder (or
if such Real Property is not subject to a lease), then as determined by the
Borrower in accordance with an industry-accepted protocol approved by the
Administrative Agent.
"Non-Recourse Exclusions": With respect to any
Indebtedness of any Person which is secured by one or more parcels of Real
Property or interests therein and which is not a general obligation of such
Person, any usual and customary exclusions from the non-recourse limitations
governing such Indebtedness, including, without limitation, exclusions for
claims that (i) are based on fraud, intentional misrepresentation or
misapplication of funds, (ii) result from intentional mismanagement of or waste
at such Real Property, (iii) arise from the presence of Hazardous Substances on
such Real Property; or (iv) are the result of any unpaid real estate taxes and
assessments.
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"Non-Recourse Indebtedness": At any time, Indebtedness
of the Borrower and of its Subsidiaries at such time which is secured by one or
more parcels of Real Property or interests therein and which is not a general
obligation of the Borrower or such Subsidiary, the holder of such Indebtedness
having recourse solely to the parcels of Real Property securing such
Indebtedness, the leases thereon and the rents and profits thereof (except for
recourse against the general credit of the Borrower or its Subsidiaries for any
Non-Recourse Exclusions), provided that in calculating the amount of
Non-Recourse Indebtedness at any time, the amount of any Non-Recourse Exclusions
which are the subject of a final judgment shall not be included in Non-Recourse
Indebtedness.
"Note" and "Notes": as defined in Section 2.2.
"Operating Property": Any Real Property which at any
time (i) is an income-producing property in operating condition and in respect
of which no material part thereof has been damaged by fire or other casualty
(unless such damage has been repaired) or condemned (unless such condemnation
has been restored), (ii) is a retail shopping center, residential apartment
building, office building or other operating Property, (iii) for which a
certificate of occupancy, whether temporary or permanent, or the functional
equivalent thereof, has been issued for all improvements comprising the same and
are in full force and effect, and (iv) is at least 60% occupied by tenants who
have accepted the property and are paying rent in accordance with the terms of
their leases, and "Operating Properties" means all such Operating Properties,
collectively.
"PBGC": the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA, or any Governmental
Authority succeeding to the functions thereof.
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"Permitted Liens": Liens permitted to exist under
Section 8.1.
"Person": an individual, a partnership, a corporation, a
business trust, a limited liability company, a joint stock company, a trust, an
unincorporated association, a joint venture, a Governmental Authority or any
other entity of whatever nature.
"Plan": any employee benefit or other plan established
or maintained by the Borrower or any ERISA Affiliate and which is covered by or
subject to the minimum funding standards of Title IV of ERISA, other than a
Multiemployer Plan.
"Pricing Level": one of the following five pricing
levels, as applicable, provided that if the ratings by S&P and Xxxxx'x in any
such Pricing Level are split by one equivalent rating level, the operative
rating would be deemed to be the higher of the two ratings, and if the ratings
by S&P and Xxxxx'x in any such Pricing Level are split by more than one
equivalent rating level, the operative rating would be deemed to be one rating
level higher than the lower of the two ratings, and provided, further, that
during any period that the Borrower has no Senior Debt Rating, Pricing Level V
would be the applicable Pricing Level:
"Pricing Level I": the Pricing Level which would be
applicable for so long as the Senior Debt Rating is greater than or equal to A-
by S&P or A3 by Xxxxx'x;
"Pricing Level II": the Pricing Level which would be
applicable for so long as the Senior Debt Rating is equal to BBB+ by S&P or Baa1
by Xxxxx'x and Pricing Level I is not applicable;
"Pricing Level III": the Pricing Level which would be
applicable for so long as the Senior Debt Rating is equal to BBB by S&P or Baa2
by Xxxxx'x and Pricing Levels I and II are not applicable;
"Pricing Level IV": the Pricing Level which would be
applicable for so long as the Senior Debt Rating is equal to BBB- by S&P or Baa3
by Xxxxx'x and Pricing Levels I, II and III are not applicable; and
"Pricing Level V": the Pricing Level which would be
applicable for so long as the Senior Debt Rating is less than BBB- by S&P or
Baa3 by Xxxxx'x and Pricing Levels I, II, III and IV are not applicable.
"Property": all types of real, personal, tangible,
intangible or mixed property.
"Rated Period": Any period during which S&P and Xxxxx'x
are maintaining a Senior Debt Rating and such Senior Debt Rating is at least
BBB- as determined by S&P, and at least Baa3, as determined by Xxxxx'x.
"Real Property": all real Property, and all interests in
real Property, owned, leased or held by the Borrower or any Subsidiary of the
Borrower.
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"REIT": a Person qualifying as a real estate investment
trust under sections 856-859 of the Code and the regulations and rulings of the
Internal Revenue Service issued thereunder.
"Remaining Interest Period": (i) in the event that the
Borrower shall fail for any reason to borrow a Loan in respect of which it shall
have requested a Eurodollar Advance or convert an Advance to a Eurodollar
Advance after it shall have notified the Administrative Agent of its intent to
do so pursuant to Section 2.3 or 2.8, a period equal to the Interest Period that
the Borrower elected in respect of such Eurodollar Advance; or (ii) in the event
that a Eurodollar Advance shall terminate for any reason prior to the last day
of the Interest Period applicable thereto, a period equal to the remaining
portion of such Interest Period if such Interest Period had not been so
terminated; or (iii) in the event that the Borrower shall prepay or repay all or
any part of the principal amount of a Eurodollar Advance (including, without
limitation, any mandatory prepayment or a prepayment resulting from acceleration
or illegality) prior to the last day of the Interest Period applicable thereto,
a period equal to the period from and including the date of such prepayment or
repayment to but excluding the last day of such Interest Period.
"Rent Roll": a schedule prepared by the Borrower from
time to time identifying (i) the Real Property owned by the Borrower or its
Subsidiaries and stating whether such items of Real Property are Unencumbered
Assets at such time, (ii) the annual base rent payable under each lease of Real
Property owned by the Borrower or any of its Subsidiaries, (iii) the
commencement and termination dates of the term of each such lease, (iv) any
renewal options with respect to such lease, (v) the Net Rentable Area of the
space demised under each such lease and (vi) such other information as the
Administrative Agent may reasonably require.
"Required Additional Guarantors": any Subsidiary
required to execute and deliver a Guaranty pursuant to Section 7.11.
"Required Lenders": means (a) so long as the Commitments
remain in effect (i) if no Loans are outstanding at such time, Lenders (other
than any Defaulting Lenders) having Commitments equal to at least 51% of the
Commitments of all Lenders at such time; or (ii) if Loans are outstanding at
such time, Lenders (other than any Defaulting Lenders) holding Notes having an
unpaid principal balance equal to at least 51% of the aggregate Loans then
outstanding; and (b) if the Commitments have been terminated, Lenders (other
than any Defaulting Lenders) whose Loans have an unpaid principal balance equal
to at least 51% of the aggregate Loans then outstanding.
"Restricted Payment": as to any Person, any dividend or
other distribution by such Person (whether in cash, securities or other
property) with respect to any shares of any class of equity securities or
beneficial interests of such Person, or any payment (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancellation or termination
of any such shares or beneficial interests or any option, warrant or other right
to acquire any such shares or beneficial interests.
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"Senior Debt Rating": the senior unsecured
non-credit-enhanced debt rating of the Borrower as determined by S&P and/or
Xxxxx'x from time to time.
"Special Counsel": Long Xxxxxxxx & Xxxxxx LLP, special
counsel to FNB.
"S&P": Standard & Poor's Ratings Group.
"Stock": any and all shares, rights, interests,
participations, warrants, depositary receipts or other equivalents (however
designated) of corporate stock, including, without limitation, so-called
"phantom stock," preferred stock and common stock.
"Subsidiary": as to any Person, any corporation,
association, partnership, limited liability company, joint venture or other
business entity of which such Person, directly or indirectly, either (i) in
respect of a corporation, owns or controls more than 50% of the outstanding
Stock having ordinary voting power to elect a majority of the board of directors
or similar managing body, irrespective of whether a class or classes shall or
might have voting power by reason of the happening of any contingency, or (ii)
in respect of an association, partnership, limited liability company, joint
venture or other business entity, is entitled to share, either directly or
indirectly through an entity described in clause (i) above, in more than 50% of
the profits and losses, however determined.
"Subsidiary Guarantor" means the Subsidiaries of the
Borrower listed on Schedule 4.4 and designated thereof as a Subsidiary
Guarantor, each Required Additional Guarantor, and their successors and assigns;
and "Subsidiary Guarantors" shall mean all such guarantors, collectively.
"Tangible Net Worth": as of any date of determination
thereof with respect to the Borrower and its Subsidiaries, determined on a
Consolidated basis in accordance with GAAP, the remainder of (i) the amounts
which would, in conformity with GAAP, be included under "shareholder's equity"
(or any like caption) on a Consolidated balance sheet of the Borrower and its
Subsidiaries as at such date, minus (ii) the net book value of all assets of the
Borrower and its Subsidiaries on a Consolidated basis (to the extent reflected
in the Consolidated balance sheet of the Borrower at such date) which would be
treated as intangibles under GAAP, including, without limitation, goodwill
(whether representing the excess cost over book value of assets acquired or
otherwise), patents, trademarks, trade names, franchises, copyrights, licenses,
service marks, rights with respect to the foregoing and deferred charges
(including, without limitation, unamortized debt discount and expense,
organization costs and research and development costs).
"Taxes": any present or future income, stamp or other
taxes, levies, imposts, duties, fees, assessments, deductions, withholdings, or
other charges of whatever nature, now or hereafter imposed, levied, collected,
withheld, or assessed by any Governmental Authority.
"Total Capital": on any date, the sum of, without
duplication, (i) all Indebtedness of the Borrower and its Subsidiaries on such
date which, in accordance with GAAP, is
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considered long term debt of the Borrower and its Subsidiaries, (ii) the amounts
which would, in conformity with GAAP, be included under "shareholder's equity"
(or any like caption) on a Consolidated balance sheet of the Borrower and its
Subsidiaries as at such date, (iii) the value of all issued and outstanding
preferred stock of the Borrower as set forth on the balance sheet of the
Borrower as at such date, and (iv) all Loans outstanding on such date.
"Total Commitment Amount": on any day, the sum of the
Commitment Amounts of all Lenders on such day.
"Unencumbered Asset": any Operating Property which at
any time (i) is wholly owned in fee simple by the Borrower, a wholly owned
Subsidiary of the Borrower or a DownREIT Partnership (or is the subject of a
Ground Lease), (ii) is free and clear of all Liens (other than Liens permitted
under clauses (i), (ii), (iii), (iv), (v) (vi), (viii) and (ix) of Section 8.1),
(iii) does not have applicable to it (or to any such Ground Lease) any
restriction on the pledge, transfer, mortgage or assignment of such Operating
Property or Ground Lease (including any restriction imposed by the
organizational documents of any such Subsidiary or DownREIT Partnership), (iv)
if owned by any such Subsidiary or DownREIT Partnership, the Stock, partnership
interests or membership interests, as the case may be, of such Subsidiary or
DownREIT Partnership that are owned by the Borrower or any Subsidiary are not
subject to any pledge or security interest in favor of any Person other than the
Borrower or a Subsidiary Guarantor, (v) is not an Environmental Risk Property;
(vi) does not have, to the best of the Borrower's knowledge, any title, survey,
environmental or other defect which could reasonably be expected to materially
and adversely affect the value, use or marketability thereof, and (vii) is
located within the contiguous 00 xxxxxx xx xxx xxxxxxxxxxx Xxxxxx Xxxxxx; and
"Unencumbered Assets" mean all such Unencumbered Assets, collectively.
"Unencumbered Assets Coverage Ratio": on any date of
determination the ratio of (i) the sum of all Adjusted Net Operating Income for
all Unencumbered Assets of the Borrower and its Subsidiaries on a Consolidated
basis, plus the Borrower's Interest in all Adjusted Net Operating Income for all
Unencumbered Assets owned by a DownREIT Partnership, in each case for the fiscal
quarter most recently then ending, to (ii) the portion of the Consolidated
Interest Expense consisting of interest on all unsecured Indebtedness of the
Borrower and its Subsidiaries as of such fiscal quarter end.
"Unencumbered Asset Value": as of any date the quotient
of (i) an amount equal to the Adjusted Net Operating Income for all Unencumbered
Assets in the aggregate for the four fiscal quarters of the Borrower most
recently ending as of such date, divided by (ii) 10%. For purposes of any
determination of Unencumbered Asset Value, the following limitations and
methodology shall apply: (A) the Adjusted Net Operating Income of any
Unencumbered Asset owned by a DownREIT Partnership shall be based on the
Borrower's Interest in the Adjusted Net Operating Income for each such
Unencumbered Asset for the four fiscal quarters having ended as of such date;
(B) in the event more than 10% of the gross base rents payable under all leases
for Properties of the Borrower, its Subsidiaries or a DownREIT Partnership
(including the Borrower's Interest in any Property) shall be payable by one
tenant and its Subsidiaries, then Unencumbered Asset Value shall be reduced by
the percentage amount of such excess multiplied
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by the Unencumbered Asset Value attributable to the Properties leased or
controlled by such tenant and its Subsidiaries, and (C) in the event that the
Borrower or a Subsidiary of the Borrower shall not have owned an Unencumbered
Asset for the entire previous four fiscal quarters, then for the purposes of
determining the Unencumbered Asset Value with respect to such Unencumbered
Asset, the Adjusted Net Operating Income for such Unencumbered Asset shall be
annualized in a manner reasonably satisfactory to the Administrative Agent.
1.2 Other Definitional Provisions .
(a) All terms defined in this Agreement shall have the
meanings given such terms herein when used in the Loan Documents or any
certificate, opinion or other document made or delivered pursuant hereto or
thereto, unless otherwise defined therein.
(b) As used in the Loan Documents and in any
certificate, opinion or other document made or delivered pursuant hereto or
thereto, accounting terms not defined in Section 1.1, and accounting terms
partly defined in Section 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein", "hereto" and
"hereunder" and similar words when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section, schedule and exhibit references contained herein shall refer to
Sections hereof or schedules or exhibits hereto unless otherwise expressly
provided herein.
(d) The word "or" shall not be exclusive; "may not" is
prohibitive and not permissive.
(e) Unless the context otherwise requires, words in the
singular number include the plural, and words in the plural include the
singular.
(f) Unless specifically provided in a Loan Document to
the contrary, references to time shall refer to Boston, Massachusetts time.
2. AMOUNT AND TERMS OF LOANS.
2.1 Loans .
(a) Subject to the terms and conditions set forth in
this Agreement, each of the Lenders severally agrees to lend to the Borrower
during the Loan Period, upon notice by the Borrower to the Administrative Agent
given in accordance with Section 2.3, such sums as are requested by the Borrower
for the purposes set forth in Section 2.15 up to the aggregate principal amount
of such Lender's Commitment Amount; provided, that, in all events no Default or
Event of Default shall have occurred and be continuing and the Borrower's
financial statements as required pursuant to Section 7.1 shall demonstrate
compliance with all covenants set forth therein; and provided, further, that the
outstanding principal amount of the Loans (after giving
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effect to all amounts requested) shall not at any time exceed the Total
Commitment Amount. The Loans shall be made pro rata in accordance with each
Lender's Commitment Percentage. Each request for a Loan hereunder shall
constitute a representation and warranty by the Borrower that all of the
conditions set forth in Section 5, in the case of the initial Loan, and Section
6, in the case of all other Loans, have been satisfied on the date of such
request. No Lender shall have any obligation to make Loans to the Borrower in
the maximum aggregate principal amount outstanding of more than the principal
face amount of its Note. Upon the expiration of the Loan Period, any unadvanced
portion of the Total Commitment Amount (as same may have been increased pursuant
to Section 2(b)), shall terminate and the Total Commitment Amount and each
Lender's Commitment Amount shall be reduced accordingly.
(b) In consideration for the payment by the Borrower to
FNB of an option fee described in the Agreement Regarding Fees, the Borrower
shall have the option, to be exercised by giving written notice to the
Administrative Agent prior to the Advance Termination Date, to increase the
Total Commitment Amount up to $75,000,000.00. The request by the Borrower to
increase the Total Commitment Amount by up to such additional $25,000,000.00
shall constitute a representation and warranty by the Borrower that all the
conditions set forth in this Section 2.1(b) shall have been satisfied on the
date of such request. The Borrower's election shall be subject to the
satisfaction of the following conditions precedent:
(i) the Borrower shall execute and deliver to the
Lenders replacement Notes reflecting each Lender's increased Commitment
Amount (each Lender's Commitment Amount shall be increased by such Lender's
Commitment Percentage of the amount of the increase requested by the
Borrower, up to an additional $25,000,000.00);
(ii) the Borrower shall pay to FNB an additional
Facility Fee as set forth in the Agreement Regarding Fees, which fee shall,
when paid, be fully earned and non-refundable under any circumstances (FNB
shall pay to the other Lenders a portion of the Facility Fee pursuant to
their separate agreement);
(iii) on the date such notice is given, there shall
exist no Default or Event of Default; and
(iv) the representations and warranties contained
in the Loan Documents shall be true and correct in all respects, both
immediately before and after giving effect to such request, as though such
representations and warranties had been made on the date of such request
(except for representations and warranties contained in the Loan Documents
that speak as of a specific date, which need only be true and correct as of
such date).
2.2 Notes .
(a) Notes as Evidence of Indebtedness. The Loans of each
Lender shall be evidenced by a promissory note of the Borrower, substantially in
the form of Exhibit H, with appropriate insertions therein as to date and
principal amount (each, as endorsed or modified
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from time to time, a "Note" and, collectively with the Notes of all other
Lenders, the "Notes"), payable to the order of such Lender for the account of
its Applicable Lending Office and representing the obligation of the Borrower to
pay the lesser of (a) the original amount of the Commitment of such Lender and
(b) the aggregate unpaid principal balance of all Loans of such Lender plus
interest and other amounts due and owing to the Lenders under the Loan
Documents.
(b) The Notes Generally. Each Note shall bear interest
from the date thereof on the unpaid principal balance thereof at the applicable
interest rate or rates per annum determined as provided in Section 2.9 and shall
be stated to mature on the Maturity Date. The following information shall be
recorded by each Lender on its books and, prior to any transfer of any such
Notes, endorsed by such Lender on the schedule attached thereto or any
continuation thereof: (i) the date and amount of each Loan of such Lender; (ii)
its character as an ABR Advance, a Eurodollar Advance or a combination thereof;
(iii) the interest rate and Interest Period applicable to Eurodollar Advances;
and (iv) each payment and prepayment of the principal thereof; provided, that
the failure of such Lender to make any such recordation or endorsement shall not
affect the obligations of the Borrower to make payment when due of any amount
owing under the Loan Documents.
2.3 Procedure for Loan Borrowings .
(a) Loans. Subject to the limitations set forth in
Sections 2.1 and 2.3(c), the Borrower may borrow under the Commitments on any
Business Day during the Loan Period by providing notice thereof in accordance
with Section 2.3(b).
(b) Borrowing Requests. To request Loans pursuant to
Section 2.3(a), the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Advance, not later than
12:00 P.M., Boston, Massachusetts time, two Business Days before the date of the
proposed borrowing of Loans or (b) in the case of an ABR Advance, not later than
12:00 P.M., Boston, Massachusetts time, one Business Day before the date of such
proposed advance. Each such telephonic Borrowing Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request signed by the Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information: (i) the aggregate amount of the requested borrowing of Loans; (ii)
the date of such borrowing of Loans, which shall be a Business Day; (iii)
whether the requested Loan is to be an ABR Advance or a Eurodollar Advance; (iv)
in the case of a Eurodollar Advance, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of
the term "Interest Period"; and (v) the location and number of the Borrower's
account to which funds are to be disbursed, which shall comply with the
requirements of Section 2.3(d).
(c) Limits on Advances. Each borrowing of (i) ABR
Advances shall be in a minimum aggregate principal amount equal to $1,000,000 or
such amount plus a whole multiple of $100,000 in excess thereof, or, if less,
the Available Commitment Amount, and (ii) Eurodollar Advances shall be in an
aggregate principal amount equal to $5,000,000 or such amount plus a whole
multiple of $100,000 in excess thereof, or, if less, the Available Commitment
Amount.
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(d) Funding of Loans. Upon receipt of each notice of
borrowing from the Borrower, the Administrative Agent shall promptly notify each
Lender of the contents thereof. Subject to its receipt of the notice referred to
in the preceding sentence, each Lender will make the amount of its Commitment
Percentage of each borrowing of Loans pursuant to this Section available to the
Administrative Agent for the account of the Borrower at the office of the
Administrative Agent set forth in Section 11.2 not later than 12:30 P.M. on the
relevant Borrowing Date requested by the Borrower in funds immediately available
to the Administrative Agent at such office. The amounts so made available to the
Administrative Agent on the Borrowing Date will then, subject to the
satisfaction of the terms and conditions of this Agreement, as determined by the
Administrative Agent, be made available on such date to the Borrower by the
Administrative Agent at the office of the Administrative Agent specified in
Section 11.2 by crediting the account of the Borrower on the books of such
office with the aggregate of said amounts received by the Administrative Agent.
(e) Effect of Incomplete Borrowing Request. If no
election is made as to the whether the Loans shall be ABR Advances or Eurodollar
Advances, then the requested Loans shall be an ABR Advance. If no Interest
Period is specified with respect to any requested borrowing of Eurodollar
Advances, then the Borrower shall be deemed to have selected an Interest Period
of one month's duration.
(f) Administrative Agent's Assumption. Unless the
Administrative Agent shall have received prior notice from a Lender (by
telephone or otherwise, such notice to be promptly confirmed by telecopy or
other writing) that such Lender will not make available to the Administrative
Agent such Lender's pro rata share of the Loans requested by the Borrower, the
Administrative Agent may assume that such Lender has made such share available
to the Administrative Agent on the Borrowing Date in accordance with this
Section, provided that such Lender received notice of the proposed borrowing
from the Administrative Agent, and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on the Borrowing Date a
corresponding amount. If and to the extent such Lender shall not have so made
such pro rata share available to the Administrative Agent, such Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount (to the extent not previously paid by the other),
together with interest thereon for each day from the date such amount is made
available to the Borrower until the date such amount is paid to the
Administrative Agent, at a rate per annum equal to, in the case of the Borrower,
the applicable interest rate set forth in Section 2.9 for ABR Advances or
Eurodollar Advances, as set forth in the applicable Conventional Borrowing
Request, and, in the case of such Lender, the Federal Funds Rate in effect on
each such day (as determined by the Administrative Agent). Such payment by the
Borrower, however, shall be without prejudice to its rights against such Lender.
If such Lender shall pay to the Administrative Agent such corresponding amount,
such amount so paid shall constitute such Lender's Loan as part of the Loans for
purposes of this Agreement, which Loan shall be deemed to have been made by such
Lender on the Borrowing Date applicable to such Loans, but without prejudice to
the Borrower's rights against such Lender.
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2.4 [Intentionally Omitted] .
2.5 Termination or Reduction of Commitments .
(a) Voluntary Reductions. The Borrower shall have the
right, upon at least three Business Days' prior written notice to the
Administrative Agent, at any time to terminate the Commitments or from time to
time to permanently reduce the Commitments, provided that (i) the total of the
Commitments shall not be reduced below an amount equal to the sum of the
aggregate principal balance of the Loans then outstanding thereunder, and (ii)
any such reduction of the Commitments shall be in the minimum amount of
$5,000,000 or such amount plus a whole multiple of $100,000 in excess thereof.
(b) In General. Reductions of the Commitments shall be
applied pro rata according to the Commitments of each Lender, as the case may
be. Simultaneously with each reduction of the Commitments under this Section,
the Borrower shall prepay the Loans outstanding thereunder by the amount, if
any, by which the aggregate unpaid principal balance of such Loans exceeds the
amount of the Commitments, as so reduced. If any prepayment is made under this
Section with respect to any Advances, in whole or in part, prior to the last day
of the applicable Interest Period, the Borrower agrees to indemnify the Lenders
in accordance with Section 2.14. No reduction or termination of the Commitments
may be reinstated.
2.6 Repayment of Loans; Evidence of Debt .
(a) Promise to Pay. The Borrower hereby unconditionally
promises to pay to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Loan on the Maturity Date.
(b) Lenders' Accounts. Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the debt of
the Borrower to such Lender resulting from each Loan made by such Lender,
including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder.
(c) Administrative Agent's Accounts. The Administrative
Agent shall maintain accounts in which it shall record (i) the amount of each
Loan made hereunder, the type of Advance thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender hereunder and
(iii) the amount of any other sum received by the Administrative Agent hereunder
for the account of the Lenders and each Lender's share thereof.
(d) Entries Made in Accounts. The entries made in the
accounts maintained pursuant to paragraphs (b) and (c) of this Section shall, to
the extent not inconsistent with any entries made in any Note and absent
manifest error, be prima facie evidence of the existence and amounts of the
obligations recorded therein, provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not in
any manner affect the obligation of the Borrower to repay the Loans in
accordance with the terms of this
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Agreement.
(e) Loans Evidenced by Notes. The Loans and interest
thereon shall at all times (including after assignment pursuant to Section 11.7)
be represented by one or more Notes in like form payable to the order of the
payee named therein and its registered assigns.
2.7 Prepayments of the Loans .
(a) Voluntary Prepayments. The Borrower may, at its
option, prepay the ABR Advances and Eurodollar Advances, in whole or in part,
without premium or penalty (other than any indemnification amounts, as provided
for in Section 2.14) at any time and from time to time by notifying the
Administrative Agent in writing at least one Business Day prior to the proposed
prepayment date in the case of Loans consisting of ABR Advances and at least
three Business Days prior to the proposed prepayment date in the case of Loans
consisting of Eurodollar Advances, specifying the Loans to be prepaid consisting
of ABR Advances, Eurodollar Advances or a combination thereof, the amount to be
prepaid and the date of prepayment. Such notice shall be irrevocable and the
amount specified in such notice shall be due and payable on the date specified,
together with accrued interest to the date of such payment on the amount
prepaid. Upon receipt of such notice, the Administrative Agent shall promptly
notify each Lender in respect thereof. Partial prepayments of ABR Advances
and/or Eurodollar Advances shall be in an aggregate minimum principal amount of
$1,000,000 or such amount plus a whole multiple of $100,000 in excess thereof,
or, if less, the outstanding principal balance thereof. After giving effect to
any partial prepayment with respect to Eurodollar Advances which were made
(whether as the result of a borrowing or a conversion) on the same date and
which had the same Interest Period, the outstanding principal amount of such
Eurodollar Advances shall be at least (subject to Section 2.3(c)) $1,000,000 or
such amount plus a whole multiple of $100,000 in excess thereof. Any Loans
prepaid shall not be readvanced.
(b) In General. If any prepayment is made in respect of
any Advance, in whole or in part, prior to the last day of the applicable
Interest Period, the Borrower agrees to indemnify the Lenders in accordance with
Section 2.14.
2.8 Conversions .
(a) Conversion Elections. The Borrower may elect from
time to time to convert Eurodollar Advances to ABR Advances by giving the
Administrative Agent at least one Business Day's prior irrevocable notice of
such election, specifying the amount to be so converted, provided, that any such
conversion of Eurodollar Advances shall only be made on the last day of the
Interest Period applicable thereto. In addition, the Borrower may elect from
time to time to convert ABR Advances to Eurodollar Advances or to convert
Eurodollar Advances to new Eurodollar Advances by giving the Administrative
Agent at least two Business Days' prior irrevocable notice of such election,
specifying the amount to be so converted and the initial Interest Period
relating thereto, provided that any such conversion of ABR Advances to
Eurodollar Advances shall only be made on a Business Day and any such conversion
of Eurodollar Advances to new Eurodollar Advances shall only be made on the last
day of the
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Interest Period applicable to the Eurodollar Advances which are to be converted
to such new Eurodollar Advances. Each such notice shall be in the form of
Exhibit M and must be delivered to the Administrative Agent prior to 12:00 noon
on the Business Day required by this Section for the delivery of such notices to
the Administrative Agent. The Administrative Agent shall promptly provide the
Lenders with notice of any such election. ABR Advances and Eurodollar Advances
may be converted pursuant to this Section in whole or in part, provided that
conversions of ABR Advances to Eurodollar Advances, or Eurodollar Advances to
new Eurodollar Advances, shall be in an aggregate principal amount of $5,000,000
or such amount plus a whole multiple of $100,000 in excess thereof.
(b) Effect on Conversions if an Event of Default.
Notwithstanding anything in this Section to the contrary, no ABR Advance may be
converted to a Eurodollar Advance, and no Eurodollar Advance may be converted to
a new Eurodollar Advance, if a Default or Event of Default has occurred and is
continuing either (i) at the time the Borrower shall notify the Administrative
Agent of its election to convert or (ii) on the requested Conversion Date. In
such event, such ABR Advance shall be automatically continued as an ABR Advance
or such Eurodollar Advance shall be automatically converted to an ABR Advance on
the last day of the Interest Period applicable to such Eurodollar Advance. If an
Event of Default shall have occurred and be continuing, the Administrative Agent
shall, at the request of the Required Lenders, notify the Borrower (by telephone
or otherwise) that all, or such lesser amount as the Required Lenders shall
designate, of the outstanding Eurodollar Advances shall be automatically
converted to ABR Advances, in which event such Eurodollar Advances shall be
automatically converted to ABR Advances on the date such notice is given.
(c) Conversion not a Borrowing. Each conversion shall be
effected by each Lender by applying the proceeds of its new ABR Advance or
Eurodollar Advance, as the case may be, to its Advances (or portion thereof)
being converted (it being understood that such conversion shall not constitute a
borrowing for purposes of Sections 4, 5 or 6).
2.9 Interest Rate and Payment Dates .
(a) Prior to Maturity. Except as otherwise provided in
Section 2.9(b), prior to the Maturity Date, the Loans shall bear interest on the
outstanding principal balance thereof at the applicable interest rate or rates
per annum set forth below:
ADVANCES RATE
-------- ----
Each ABR Advance Alternate Base Rate plus the Applicable Margin.
Each Eurodollar Advance Eurodollar Rate for the applicable Interest Period plus the
Applicable Margin.
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(b) Event of Default. After the occurrence and during
the continuance of an Event of Default, the outstanding principal
balance of the Loans and any overdue interest or other amount payable under the
Loan Documents shall bear interest, whether before or after the entry of any
judgment thereon, at a rate per annum equal to the Alternate Base Rate plus 2%.
(c) Interest Payment Dates. Accrued interest on each
Loan shall be payable in arrears on each Interest Payment Date for such Loan,
provided that (i) interest accrued pursuant to paragraph (b) of this Section
shall be payable on demand, (ii) in the event of any repayment or prepayment of
any Loan, accrued interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment and (iii) in the event of
any conversion of any Eurodollar Advance prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(d) General. Interest on (i) ABR Advances, to the extent
based on the FNB Rate, shall be calculated on the basis of a 365 day year (as
the case may be), and (ii) ABR Advances, to the extent based on the Federal
Funds Rate, Eurodollar Advances shall be calculated on the basis of a 360-day
year, in each case for the actual number of days elapsed, including the first
day but excluding the last. Any change in the interest rate on the Loans
resulting from a change in the Alternate Base Rate or a Pricing Level shall
become effective as of the opening of business on the day on which such change
shall become effective. The Administrative Agent shall, as soon as practicable,
notify the Borrower and the Lenders of the effective date and the amount of each
such change in the Alternate Base Rate or a Pricing Level, but any failure to so
notify shall not in any manner affect the obligation of the Borrower to pay
interest on the Loans in the amounts and on the dates required. Each
determination of the Alternate Base Rate, a Eurodollar Rate or a Pricing Level
by the Administrative Agent pursuant to this Agreement shall be conclusive and
binding on the Borrower and the Lenders absent manifest error. At no time shall
the interest rate payable on the Loans of any Lender, together with the Facility
Fee and all other amounts payable under the Loan Documents, to the extent the
same are construed to constitute interest, exceed the Highest Lawful Rate. If
interest payable to a Lender on any date would exceed the maximum amount
permitted by the Highest Lawful Rate, such interest payment shall automatically
be reduced to such maximum permitted amount, and interest for any subsequent
period, to the extent less than the maximum amount permitted for such period by
the Highest Lawful Rate, shall be increased by the unpaid amount of such
reduction. Any interest actually received for any period in excess of such
maximum allowable amount for such period shall be deemed to have been applied as
a prepayment of the Loans. The Borrower acknowledges that to the extent interest
payable on ABR Advances is based on the FNB Rate, the FNB Rate is only one of
the bases for computing interest on loans made by the Lenders, and by basing
interest payable on ABR Advances on the FNB Rate, the Lenders have not committed
to charge, and the Borrower has not in any way bargained for, interest based on
a lower or the lowest rate at which the Lenders may now or in the future make
loans to other borrowers.
2.10 Substituted Interest Rate .
In the event that (i) the Administrative Agent shall
have reasonably determined
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(which determination shall be conclusive and binding upon the Borrower) that by
reason of circumstances affecting the interbank eurodollar market either
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate
applicable pursuant to Section 2.9 or (ii) the Required Lenders shall have
notified the Administrative Agent that they have reasonably determined (which
determination shall be conclusive and binding on the Borrower) that the
applicable Eurodollar Rate will not adequately and fairly reflect the cost to
such Lenders of maintaining or funding loans bearing interest based on such
Eurodollar Rate, with respect to any portion of the Loans that the Borrower has
requested be made as Eurodollar Advances or Eurodollar Advances that will result
from the requested conversion of any portion of the Advances into Eurodollar
Advances (each, an "Affected Advance"), the Administrative Agent shall promptly
notify the Borrower and the Lenders (by telephone or otherwise, to be promptly
confirmed in writing) of such determination, on or, to the extent practicable,
prior to the requested Borrowing Date or Conversion Date for such Affected
Advances. If the Administrative Agent shall give such notice, (a) any Affected
Advances shall be made as ABR Advances, (b) the Advances (or any portion
thereof) that were to have been converted to Affected Advances shall be
converted to or continued as ABR Advances and (c) any outstanding Affected
Advances shall be converted, on the last day of the then current Interest Period
with respect thereto, to ABR Advances. Until any notice under clauses (i) or
(ii), as the case may be, of this Section has been withdrawn by the
Administrative Agent (by notice to the Borrower promptly upon either (x) the
Administrative Agent having determined that such circumstances affecting the
interbank eurodollar market no longer exist and that adequate and reasonable
means do exist for determining the Eurodollar Rate pursuant to Section 2.9 or
(y) the Administrative Agent having been notified by such Required Lenders that
circumstances no longer render the Advances (or any portion thereof) Affected
Advances), no further Eurodollar Advances shall be required to be made by the
Lenders nor shall the Borrower have the right to convert all or any portion of
the Loans to Eurodollar Advances.
2.11 Taxes; Net Payments .
(a) All payments made by the Borrower or Subsidiary
Guarantor under the Loan Documents shall be made free and clear of, and without
reduction for or on account of, any taxes, levies, imposts, deductions, charges
or withholdings required by law to be withheld from any amounts payable under
the Loan Documents. A statement setting forth the calculations of any amounts
payable pursuant to this paragraph submitted by a Lender to the Borrower shall
be conclusive absent manifest error. The obligations of the Borrower under this
Section shall survive the termination of this Agreement and the Commitments and
the payment of the Notes and all other amounts payable under the Loan Documents.
(b) Each Lender which is a foreign corporation within
the meaning of Section 1442 of the Code shall deliver to the Borrower such
certificates, documents or other evidence as the Borrower may reasonably require
from time to time as are necessary to establish that such Lender is not subject
to withholding under Section 1441 or 1442 of the Code or as may be necessary to
establish, under any law hereafter imposing upon the Borrower, an obligation to
withhold any portion of the payments made by the Borrower under the Loan
Documents, that payments to the Administrative Agent on behalf of such Lender
are not subject to withholding.
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2.12 Illegality .
Notwithstanding any other provisions herein, if any law,
regulation, treaty or directive hereafter enacted, promulgated, approved or
issued, or any change in any presently existing law, regulation, treaty or
directive, or in the interpretation or application thereof, shall make it
unlawful for any Lender to make or maintain its Eurodollar Advances as
contemplated by this Agreement, such Lender shall so notify the Administrative
Agent and the Administrative Agent shall forthwith give notice thereof to the
other Lenders and the Borrower, whereupon (i) the commitment of such Lender
hereunder to make Eurodollar Advances or convert ABR Advances to Eurodollar
Advances shall forthwith be suspended and (ii) such Lender's Loans then
outstanding as Eurodollar Advances affected hereby, if any, shall be converted
automatically to ABR Advances on the last day of the then current Interest
Period applicable thereto or within such earlier period as required by law. If
the commitment of any Lender with respect to Eurodollar Advances is suspended
pursuant to this Section and thereafter it is once again legal for such Lender
to make or maintain Eurodollar Advances, such Lender's commitment to make or
maintain Eurodollar Advances shall be reinstated and such Lender shall notify
the Administrative Agent and the Borrower of such event. Notwithstanding the
foregoing, to the extent that the conditions giving rise to the notice
requirement set forth in this Section can be eliminated by the transfer of such
Credit Party's Loans or Commitment to another of its branches, and to the extent
that such transfer is not inconsistent with such Credit Party's internal
policies of general application and only if, as determined by such Credit Party
in its sole discretion, the transfer of such Loan or Commitment, as the case may
be, would not otherwise adversely affect such Loans or such Credit Party, the
Borrower may request, and such Lender shall use reasonable efforts to effect,
such transfer.
2.13 Increased Costs .
In the event that any law, regulation, treaty or
directive hereafter enacted, promulgated, approved or issued or any change in
any presently existing law, regulation, treaty or directive therein or in the
interpretation or application thereof by any Governmental Authority charged with
the administration thereof or compliance by any Credit Party (or any corporation
directly or indirectly owning or controlling such Credit Party) with any request
or directive, whether or not having the force of law, from any central bank or
other Governmental Authority, agency or instrumentality:
(a) does or shall subject any Credit Party to any Taxes
of any kind whatsoever with respect to any Eurodollar Advances or its
obligations under this Agreement to make Eurodollar Advances, or change the
basis of taxation of payments to any Credit Party of principal, interest or any
other amount payable hereunder in respect of its Eurodollar Advances, including
any Taxes required to be withheld from any amounts payable under the Loan
Documents (except for imposition of, or change in the rate of, tax on the
overall net income of such Credit Party or its Applicable Lending Office for any
of such Advances by the jurisdiction in which such Credit Party is incorporated
or has its principal office or such Applicable Lending Office, including, in the
case of Credit Parties incorporated in any State of the United States,
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such tax imposed by the United States); or
(b) does or shall impose, modify or make applicable any
reserve, special deposit, compulsory loan, assessment, increased cost or similar
requirement against assets held by, or deposits of, or advances or loans by, or
other credit extended by, or any other acquisition of funds by, any office of
such Credit Party in respect of its Eurodollar Advances, which, in the case of
Eurodollar Advances, is not otherwise included in the determination of the
Eurodollar Rate;
and the result of any of the foregoing is to increase the cost to such Credit
Party of making, issuing, renewing, converting or maintaining its Eurodollar
Advances or its commitment to make such Eurodollar Advances, or to reduce any
amount receivable hereunder in respect of its Eurodollar Advances, then, in any
such case, the Borrower shall pay such Credit Party, upon its demand, any
additional amounts necessary to compensate such Credit Party for such additional
cost or reduction in such amount receivable which such Credit Party deems to be
material as determined by such Credit Party; provided, however, that nothing in
this Section shall require the Borrower to indemnify the Credit Parties with
respect to withholding Taxes for which the Borrower has no obligation under
Section 2.11. No failure by any Credit Party to demand compensation for any
increased cost during any Interest Period shall constitute a waiver of such
Credit Party's right to demand such compensation at any time. A statement
setting forth the calculations of any additional amounts payable pursuant to the
foregoing sentence submitted by a Credit Party to the Borrower shall be
conclusive absent manifest error. The obligations of the Borrower under this
Section shall survive the termination of this Agreement and any of the
Commitments or the payment of the Notes and all other amounts payable under the
Loan Documents. Failure to demand compensation pursuant to this Section shall
not constitute a waiver of such Credit Party's right to demand such
compensation. To the extent that any increased costs of the type referred to in
this Section are being incurred by a Credit Party and such costs can be
eliminated or reduced by the transfer of such Credit Party's Loans or Commitment
to another of its branches, and to the extent that such transfer is not
inconsistent with such Credit Party's internal policies of general application
and only if, as determined by such Credit Party in its sole discretion, the
transfer of such Loan or Commitment, as the case may be, would not otherwise
materially adversely affect such Loan or such Credit Party, the Borrower may
request, and such Lender shall use reasonable efforts to effect, such transfer.
2.14 Indemnification for Break Funding Losses .
Notwithstanding anything contained herein to the
contrary, if (i) the Borrower shall fail to borrow or convert on a Borrowing
Date or Conversion Date after it shall have given notice to do so in which it
shall have requested a Eurodollar Advance pursuant to Section 2.3 or 2.8, or
(ii) a Eurodollar Advance shall be terminated or prepaid for any reason prior to
the last day of the Interest Period applicable thereto (including, without
limitation, any mandatory prepayment or a prepayment resulting from acceleration
or illegality), the Borrower agrees to indemnify each Credit Party against, and
to pay on demand directly to such Credit Party, any loss or expense suffered by
such Credit Party as a result of such failure to borrow or convert, or such
termination or repayment, including, without limitation, an amount, if greater
than zero, equal to:
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A x (B-C) x D
---
360
where:
"A" equals such Credit Party's pro rata share of the
Affected Principal Amount;
"B" equals the applicable Eurodollar Rate;
"C" equals the applicable Eurodollar Rate (expressed as
a decimal) in effect on or about the first day of the
applicable Remaining Interest Period, based on the
applicable rates offered or bid, as the case may be, on
or about such date, for deposits in an amount equal
approximately to such Credit Party's pro rata share of
the Affected Principal Amount with an Interest Period
equal approximately to the applicable Remaining Interest
Period, as determined by such Credit Party;
"D" equals the number of days from and including the
first day of the applicable Remaining Interest Period to
but excluding the last day of such Remaining Interest
Period;
and any other out-of-pocket loss or expense (including any internal processing
charge customarily charged by such Credit Party) suffered by such Credit Party
in connection with such Eurodollar Advance, including, without limitation, in
liquidating or employing deposits acquired to fund or maintain the funding of
its pro rata share of the Affected Principal Amount, or redeploying funds
prepaid or repaid, in amounts which correspond to its pro rata share of the
Affected Principal Amount. A statement setting forth the calculations of any
amounts payable pursuant to this Section submitted by a Credit Party to the
Borrower shall be conclusive and binding on the Borrower absent manifest error.
The obligations of the Borrower under this Section shall survive the termination
of this Agreement and the Commitments and the payment of the Notes and all other
amounts payable under the Loan Documents.
2.15 Use of Proceeds .
The proceeds of Loans shall be used solely for (i)
acquisition of Borrower's common stock; and (ii) general business purposes,
including, without limitation, working capital and refinancing of existing
Indebtedness, and such use shall conform to the provisions of Section 4.11.
2.16 Capital Adequacy .
If (i) after the date hereof, the enactment or
promulgation of, or any change or phasing in of, any United States or foreign
law or regulation or in the interpretation thereof by any Governmental Authority
charged with the administration thereof, (ii) compliance with any
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directive or guideline from any central bank or United States or foreign
Governmental Authority (whether or not having the force of law) promulgated or
made after the date hereof, or (iii) compliance with the Risk-Based Capital
Guidelines of the Board of Governors of the Federal Reserve System as set forth
in 12 CFR Parts 208 and 225, or of the Comptroller of the Currency, Department
of the Treasury, as set forth in 12 CFR Part 3, or similar legislation, rules,
guidelines, directives or regulations under any applicable United States or
foreign Governmental Authority affects or would affect the amount of capital
required to be maintained by a Credit Party (or any lending office of such
Credit Party) or any corporation directly or indirectly owning or controlling
such Credit Party or imposes any restriction on or otherwise adversely affects
such Credit Party (or any lending office of such Credit Party) or any
corporation directly or indirectly owning or controlling such Credit Party and
such Credit Party shall have reasonably determined that such enactment,
promulgation, change or compliance has the effect of reducing the rate of return
on such Credit Party's capital or the asset value to such Credit Party of any
Loan made by such Credit Party as a consequence, directly or indirectly, of its
obligations to make and maintain the funding of its Loans at a level below that
which such Credit Party could have achieved but for such enactment,
promulgation, change or compliance (after taking into account such Credit
Party's policies regarding capital adequacy) by an amount deemed by such Credit
Party to be material, then, upon demand by such Credit Party, the Borrower shall
promptly pay to such Credit Party such additional amount or amounts as shall be
sufficient to compensate such Credit Party for such reduction in such rate of
return or asset value. A certificate in reasonable detail as to such amounts
submitted to the Borrower and the Administrative Agent setting forth the
determination of such amount or amounts that will compensate such Credit Party
for such reductions shall be presumed correct absent manifest error. No failure
by any Credit Party to demand compensation for such amounts hereunder shall
constitute a waiver of such Credit Party's right to demand such compensation at
any time. Such Credit Party shall, however, use reasonable efforts to notify the
Borrower of such claim within 90 days after the officer of such Credit Party
having primary responsibility for this Agreement has obtained knowledge of the
events giving rise to such claim. The obligations of the Borrower under this
Section shall survive the termination of this Agreement and the Commitments and
the payment of the Notes and all other amounts payable under the Loan Documents.
2.17 Administrative Agent's Records .
The Administrative Agent's records with respect to the
Loans, the interest rates applicable thereto, each payment by the Borrower of
principal and interest on the Loans, and fees, expenses and any other amounts
due and payable in connection with this Agreement shall be presumptively correct
absent manifest error as to the amount of the Loans, and the amount of principal
and interest paid by the Borrower in respect of such Loans and as to the other
information relating to the Loans, and amounts paid and payable by the Borrower
hereunder and under the Notes. The Administrative Agent will when requested by
the Borrower advise the Borrower of the principal and interest outstanding under
the Loans as of the date of such request and the dates on which such payments
are due.
2.18 [Intentionally Omitted] .
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3. FEES; PAYMENTS.
3.1 Facility Fee .
(a) The Borrower agrees to pay to the Administrative
Agent on the Effective Date and, if applicable, on the date the Borrower
exercises its option to increase the Total Commitment Amount pursuant to Section
2.1(b), for the account of the Lenders in accordance with each Lender's separate
agreement with Administrative Agent, a fee (the "Facility Fee"), as provided in
the Agreement Regarding Fees.
(b) The Borrower agrees to pay any other fees payable to
any Credit Party under any separate agreement at the times so agreed upon in
such separate agreements.
(c) The Facility Fee shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution
directly to the Credit Party to whom such Facility Fee is payable. The Facility
Fee shall not be refundable under any circumstances.
3.2 Payments; Application of Payments .
Each payment, including each prepayment, of principal
and interest on the Loans and the Facility Fee shall be made by the Borrower to
the Administrative Agent, without set-off, deduction or counterclaim, at its
office set forth in Section 11.2 in funds immediately available to the
Administrative Agent at such office by 12:00 noon on the due date for such
payment. Promptly upon receipt thereof by the Administrative Agent, the
Administrative Agent shall remit, in like funds as received, to the Lenders who
maintain any of their Loans as ABR Advances or Eurodollar Advances, each such
Lender's pro rata share of such payments which are in respect of principal or
interest due on such ABR Advances or Eurodollar Advances. The failure of the
Borrower to make any such payment by such time shall not constitute a default
hereunder, provided that such payment is made on such due date, but any such
payment made after 12:00 noon on such due date shall be deemed to have been made
on the next Business Day for the purpose of calculating interest on amounts
outstanding on the Loans. If any payment hereunder or under the Notes shall be
due and payable on a day which is not a Business Day, the due date thereof
(except as otherwise provided in the definition of Interest Period) shall be
extended to the next Business Day and (except with respect to payments in
respect of the Facility Fee) interest shall be payable at the applicable rate
specified herein during such extension. If any payment is made with respect to
any Eurodollar Advance prior to the last day of the applicable Interest Period,
the Borrower shall indemnify each Lender in accordance with Section 2.14.
4. REPRESENTATIONS AND WARRANTIES.
In order to induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans the Borrower makes the following
representations and warranties to the Administrative Agent and each Lender:
4.1 Existence and Power .
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(a) The Borrower is a Maryland corporation duly organized and
validly existing and in good standing under the laws of Maryland, has all
requisite power and authority to own its Property and to carry on its business
as now conducted, and is in good standing and authorized to do business in each
jurisdiction in which the nature of the business conducted therein or the
Property owned therein make such qualification necessary, except where such
failure to qualify could not reasonably be expected to have a Material Adverse
Effect.
(b) Each Subsidiary of the Borrower (including each Subsidiary
Guarantor) is a corporation, partnership, limited liability company, real estate
investment trust or business trust, is validly existing and in good standing
under the laws of the jurisdiction of its organization, has all requisite power
and authority to own its Property and to carry on its business as now conducted,
and is in good standing and authorized to do business in each other jurisdiction
in which the nature of the business conducted therein or the Property owned
therein make such qualification necessary, except where such failure to qualify
could not reasonably be expected to have a Material Adverse Effect.
4.2 Authority.
The Borrower has full legal power and authority to enter into,
execute, deliver and perform the terms of the Loan Documents to which it is a
party and to make the borrowings contemplated thereby, to execute, deliver and
carry out the terms of the Notes and to incur the obligations provided for
herein and therein, all of which have been duly authorized by all proper and
necessary corporate action.
4.3 Binding Agreement.
(a) The Loan Documents to which the Borrower is a party
constitute the valid and legally binding obligations of the Borrower,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally.
(b) The execution, delivery and performance by the Borrower of
the Loan Documents to which it is a party does not violate the provisions of any
applicable statute, law (including, without limitation, any applicable usury or
similar law), rule or regulation of any Governmental Authority.
4.4 Subsidiaries; DownREIT Partnerships.
As of the Effective Date, the Borrower has only the
Subsidiaries set forth on Schedule 4.4. Schedule 4.4 sets forth the name of, and
the ownership interest of the Borrower in, each Subsidiary of the Borrower and
identifies each Subsidiary that is a Subsidiary Guarantor, in each case as of
the Effective Date. The shares of each corporate Subsidiary of the Borrower that
are owned by the Borrower are duly authorized, validly issued, fully paid and
nonassessable and are owned free and clear of any Liens. The interest of the
Borrower in each non-corporate
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Subsidiary is owned free and clear of any Liens (other than Liens applicable to
a partner under the terms of any partnership agreement to secure the Borrower's
obligation to make capital contributions or similar payments thereunder). As of
the Effective Date, the only DownREIT Partnerships are Excel Realty Partners,
L.P. and E.H. Properties, L.P.
4.5 Litigation.
(a) There are no actions, suits or proceedings at law or in
equity or by or before any Governmental Authority (whether or not purportedly on
behalf of the Borrower or any Subsidiary of the Borrower) pending or, to the
knowledge of the Borrower, threatened against the Borrower or any Subsidiary of
the Borrower or any of their respective Properties or rights, which (i) if
adversely determined, could reasonably be expected to have a Material Adverse
Effect, (ii) call into question the validity or enforceability of any of the
Loan Documents, or (iii) could reasonably be expected to result in the
rescission, termination or cancellation of any franchise, right, license, permit
or similar authorization held by the Borrower or any Subsidiary of the Borrower,
which rescission, termination or cancellation could reasonably be expected to
have a Material Adverse Effect.
(b) As of the date hereof, Schedule 4.5 sets forth all
actions, suits and proceedings at law or in equity or by or before any
Governmental Authority (whether or not purportedly on behalf of the Borrower or
any Subsidiary of the Borrower) pending or, to the knowledge of the Borrower,
threatened against the Borrower, any Subsidiary of the Borrower or any of their
respective Properties or rights which, if adversely determined, could have a
Material Adverse Effect.
4.6 Required Consents.
No consent, authorization or approval of, filing with, notice
to, or exemption by, stockholders, any Governmental Authority or any other
Person not obtained is required to be obtained by the Borrower to authorize, or
is required in connection with the execution, delivery and performance of the
Loan Documents or is required to be obtained by the Borrower as a condition to
the validity or enforceability of the Loan Documents.
4.7 No Conflicting Agreements.
Neither the Borrower nor any Subsidiary of the Borrower is in
default beyond any applicable grace or cure period under any mortgage,
indenture, contract or agreement to which it is a party or by which it or any of
its Property is bound, the effect of which default could reasonably be expected
to have a Material Adverse Effect. The execution, delivery or carrying out of
the terms of the Loan Documents will not constitute a default under, or result
in the creation or imposition of, or obligation to create, any Lien upon any
Property of the Borrower or any Subsidiary of the Borrower pursuant to the terms
of any such mortgage, indenture, contract or agreement.
4.8 Compliance with Applicable Laws.
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Neither the Borrower nor any Subsidiary of the Borrower is in
default with respect to any judgment, order, writ, injunction, decree or
decision of any Governmental Authority which default could reasonably be
expected to have a Material Adverse Effect. The Borrower and each Subsidiary of
the Borrower is in compliance in all material respects with all statutes,
regulations, rules and orders applicable to Borrower or such Subsidiary of all
Governmental Authorities, including, without limitation, (i) Environmental Laws
and ERISA, a violation of which could reasonably be expected to have a Material
Adverse Effect and (ii) Sections 856-860 of the Code, compliance with which is
required to preserve the Borrower's status as a REIT.
4.9 Taxes.
Each of the Borrower and its Subsidiaries has filed or caused
to be filed all tax returns required to be filed and has paid, or has filed
appropriate extensions and has made adequate provision for the payment of, all
taxes shown to be due and payable on said returns or in any assessments made
against it (other than those being contested as permitted under Section 7.4) in
which the failure to pay could reasonably be expected to have a Material Adverse
Effect, and no tax Liens have been filed with respect thereto. The charges,
accruals and reserves on the books of the Borrower and each Subsidiary of the
Borrower with respect to all federal, state, local and other taxes are, to the
best knowledge of the Borrower, adequate for the payment of all such taxes, and
the Borrower knows of no unpaid assessment which is due and payable against it
or any of its Subsidiaries or any claims being asserted which could reasonably
be expected to have a Material Adverse Effect.
4.10 Governmental Regulations.
Neither the Borrower nor any Subsidiary of the Borrower is
subject to regulation under the Public Utility Holding Company Act of 1935, as
amended, the Federal Power Act, as amended, or the Investment Company Act of
1940, as amended, and neither the Borrower nor any Subsidiary of the Borrower is
subject to any statute or regulation which prohibits or restricts the incurrence
of Indebtedness under the Loan Documents, including, without limitation,
statutes or regulations relative to common or contract carriers or to the sale
of electricity, gas, steam, water, telephone, telegraph or other public utility
services.
4.11 Federal Reserve Regulations; Use of Loan Proceeds.
Neither the Borrower nor any Subsidiary of the Borrower is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any Margin Stock. No
part of the proceeds of the Loans will be used, directly or indirectly, for a
purpose which violates any law, rule or regulation of any Governmental
Authority, including, without limitation, the provisions of Regulations T, U or
X of the Board of Governors of the Federal Reserve System, as amended. No part
of the proceeds of the Loans will be used, directly or indirectly, to purchase
or carry Margin Stock or to extend credit to others for the purpose of
purchasing or carrying Margin Stock.
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4.12 Plans; Multiemployer Plans.
As of the Effective Date, each of the Borrower and its ERISA
Affiliates maintains or makes contributions only to the Plans and Multiemployer
Plans listed on Schedule 4.12. Each Plan, and, to the best knowledge of the
Borrower, each Multiemployer Plan, is in compliance in all material respects
with, and has been administered in all material respects in compliance with, the
applicable provisions of ERISA, the Code and any other applicable Federal or
state law, and no event or condition is occurring or exists concerning which the
Borrower would be under an obligation to furnish a report to the Administrative
Agent and each Lender as required by Section 7.2(d). As of December 31, 1998,
each Plan was "fully funded", which for purposes of this Section means that the
fair market value of the assets of such Plan is not less than the present value
of the accrued benefits of all participants in the Plan, computed on a plan
termination basis. To the best knowledge of the Borrower, no Plan has ceased
being fully funded.
4.13 Financial Statements.
The Borrower has heretofore delivered to the Administrative
Agent and the Lenders (i) copies of the audited Consolidated Balance Sheet of
the Borrower and its Consolidated Subsidiaries as of December 31, 1998, and the
related Consolidated Statements of Operations, Stockholders' Equity and Cash
Flows for the Borrower and its Consolidated Subsidiaries for the five months
ended December 31, 1998 and the 12 months ended July 31, 1999, and (ii) the
Consolidated Statements of Income and Cash Flows for the Borrower and its
Consolidated Subsidiaries for the fiscal quarters of the Borrower ending March
31, 1999, June 30, 1999 and September 30, 1999, certified by its Chief Financial
Officer (collectively, with the related notes and schedules, the "Financial
Statements"). The Financial Statements fairly present the Consolidated financial
condition and results of the operations of the Borrower and its Consolidated
Subsidiaries as of the dates and for the periods indicated therein and have been
prepared in conformity with GAAP. Except as reflected in the Financial
Statements or in the notes thereto, neither the Borrower nor any Subsidiary of
the Borrower has any obligation or liability of any kind (whether fixed,
accrued, contingent, unmatured or otherwise) which, in accordance with GAAP,
should have been shown on the Financial Statements and was not. Since June 30,
1999 through the Effective Date there has been no material adverse change in the
financial condition or business of the Borrower and its Subsidiaries taken as a
whole.
4.14 Property.
Each of the Borrower and its Subsidiaries has good and
marketable title to all of its Property, title to which is material to the
Borrower or such Subsidiary, subject to no Liens, except Permitted Liens. There
are no unpaid or outstanding real estate or similar taxes or assessments on or
against any Real Property other than (i) real estate or other taxes or
assessments that are not yet due and payable, and (ii) such taxes as the
Borrower or any Subsidiary of the Borrower is contesting in good faith or which
individually or in the aggregate could not reasonably be expected to have a
Materially Adverse Effect. There are no pending eminent domain proceedings
against any Real Property, and, to the knowledge of the Borrower, no such
proceedings are presently threatened or contemplated by any Governmental
Authority
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against any Real Property, which individually or in the aggregate could
reasonably be expected to have a Material Adverse Effect. None of the Real
Property is now damaged as a result of any fire, explosion, accident, flood or
other casualty which individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect.
4.15 Franchises, Intellectual Property, Etc.
Each of the Borrower and its Subsidiaries possesses or has the
right to use all franchises, Intellectual Property, licenses and other rights,
in each case that are material and necessary for the conduct of its business,
with no known conflict with the valid rights of others which could reasonably be
expected to have a Material Adverse Effect. No event has occurred which permits
or, to the best knowledge of the Borrower, after notice or the lapse of time or
both, or any other condition, could reasonably be expected to permit, the
revocation or termination of any such franchise, Intellectual Property, license
or other right and which revocation or termination could reasonably be expected
to have a Material Adverse Effect.
4.16 Environmental Matters.
(a) The Borrower and each of its Subsidiaries is in compliance
with the requirements of all applicable Environmental Laws except for such
non-compliance which could not, either individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect.
(b) No Hazardous Substances have been (i) generated or
manufactured on, transported to or from, treated at, stored at or discharged
from any Real Property in violation of any Environmental Laws; (ii) discharged
into subsurface waters under any Real Property in violation of any Environmental
Laws; or (iii) discharged from any Real Property on or into property or waters
(including subsurface waters) adjacent to any Real Property in violation of any
Environmental Laws, which violation, in the case of either (i), (ii) or (iii)
could, either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(c) Neither the Borrower nor any of its Subsidiaries (i) has
received notice (written or oral) or otherwise learned of any claim, demand,
suit, action, proceeding, event, condition, report, directive, lien, violation,
non-compliance or investigation indicating or concerning any potential or actual
liability (including, without limitation, potential liability for enforcement,
investigatory costs, cleanup costs, government response costs, removal costs,
remedial costs, natural resources damages, property damages, personal injuries
or penalties) arising in connection with (x) any non-compliance with or
violation of the requirements of any applicable Environmental Laws, or (y) the
presence of any Hazardous Substance on any Real Property (or any Real Property
previously owned by the Borrower or any Subsidiary of the Borrower) or the
release or threatened release of any Hazardous Substance into the environment
which, in either case, could, either individually or
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in the aggregate, reasonably be expected to have a Material Adverse Effect, (ii)
has any threatened or actual liability in connection with the presence of any
Hazardous Substance on any Real Property (or any Real Property previously owned
by the Borrower or any Subsidiary of the Borrower) or the release or threatened
release of any Hazardous Substance into the environment which, in either case,
could, either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, (iii) has received notice of any federal or state
investigation evaluating whether any remedial action is needed to respond to the
presence of any Hazardous Substance on any Real Property (or any Real Property
previously owned by the Borrower or any Subsidiary of the Borrower) or a release
or threatened release of any Hazardous Substance into the environment for which
the Borrower or any Subsidiary of the Borrower is or may be liable the results
of which could, in either case, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, or (iv) has received
notice that the Borrower or any Subsidiary of the Borrower is or may be liable
to any Person under any Environmental Law which liability could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(d) To the best of the Borrower's knowledge, no Real Property
is located in an area identified by the Secretary of Housing and Urban
Development as an area having special flood hazards, or if any such Real
Property is located in such a special flood hazard area, then the Borrower has
obtained all insurance that is required to be maintained by law or which is
customarily maintained by Persons engaged in similar businesses and owning
similar Properties in the same general areas in which the Borrower operates.
4.17 Labor Relations.
Neither the Borrower nor any of its Subsidiaries is a party to
any collective bargaining agreement, other than the collective bargaining
agreement covering fewer than 10 employees at the Roosevelt Mall Shopping Center
in Philadelphia, Pennsylvania, and, to the best knowledge of the Borrower, no
petition has been filed or proceedings instituted by any employee or group of
employees with any labor relations board seeking recognition of a bargaining
representative with respect to the Borrower or such Subsidiary. There are no
material controversies pending between the Borrower or any Subsidiary and any of
their respective employees, which could reasonably be expected to have a
Material Adverse Effect.
4.18 Burdensome Obligations.
Neither the Borrower nor any of its Subsidiaries is a party to
or bound by any franchise, agreement, deed, lease or other instrument, or
subject to any corporate restriction which, in the opinion of the management of
the Borrower or such Subsidiary, is so unusual or burdensome, in the context of
its business, as in the foreseeable future might adversely affect or impair the
revenue or cash flow of the Borrower or such Subsidiary in such a manner as
could reasonably be expected to have a Material Adverse Effect, or materially
and adversely affect or impair the ability of the Borrower or such Subsidiary to
perform its obligations under the Loan Documents. The Borrower does not
presently anticipate that future expenditures by the Borrower or any Subsidiary
of the Borrower needed to meet the provisions of federal or state statutes,
orders, rules or regulations will be so burdensome as to result in a Material
Adverse Effect.
4.19 Solvency.
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On the Effective Date and immediately following the making of
each Loan, and after giving effect to the application of the proceeds of such
Loan: (a) the fair value of the assets of the Borrower and its Subsidiaries,
taken as a whole, at a fair valuation, will exceed the debts and liabilities,
including Contingent Obligations, of the Borrower and its Subsidiaries, taken as
a whole; (b) the present fair saleable value of the property of the Borrower and
its Subsidiaries, taken as a whole, will be greater than the amount that will be
required to pay the probable liability of the debts and other liabilities,
subordinated, contingent or otherwise of the Borrower and its Subsidiaries, as
such debts and other liabilities become absolute and matured; (c) the Borrower
and its Subsidiaries, taken as a whole, will be able to pay its debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) the Borrower and its
Subsidiaries, taken as a whole, will not have unreasonably small capital with
which to conduct the business in which it is engaged as such business is now
conducted and is proposed to be conducted hereafter.
4.20 REIT Status.
The Borrower (i) has made an election pursuant to Section 856
of the Code to qualify as a REIT, (ii) has satisfied and continues to satisfy
all of the requirements under Sections 856-859 of the Code and the regulations
and rulings issued thereunder which must be satisfied for the Borrower to
maintain its status as a REIT, and (iii) is in compliance in all material
respects with all Code sections applicable to REITs generally and the
regulations and rulings issued thereunder.
4.21 Rent Roll and List of Unencumbered Assets.
A list of all the Unencumbered Assets of the Borrower as of
the date of this Agreement is attached hereto as Schedule 4.21. Upon the request
of the Administrative Agent, Borrower will provide the Administrative Agent with
a Rent Roll.
4.22 [Intentionally Omitted].
4.23 Operation of Business.
The Borrower is a self-advised, and self-managed REIT.
4.24 No Misrepresentation.
No representation or warranty contained herein and no
certificate or report furnished or to be furnished by the Borrower or any
Subsidiary of the Borrower in connection with the transactions contemplated
hereby, contains or will contain a misstatement of material fact, or, to the
best knowledge of the Borrower, omits or will omit to state a material fact
required to be stated in order to make the statements herein or therein
contained not misleading in the light of the circumstances under which made.
5. CONDITIONS TO FIRST LOANS.
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In addition to the conditions precedent set forth in Section 6, the
obligation of each Lender to make its first Loan shall be subject to the
fulfillment of the following conditions precedent:
5.1 Evidence of Action.
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(a) The Administrative Agent shall have received a
certificate, dated the first Borrowing Date, of the Secretary or Assistant
Secretary of the Borrower substantially in the form of Exhibit I (i) attaching a
true and complete copy of the resolutions of its Board of Directors authorizing
the execution and delivery of the Loan Documents by the Borrower and the
performance of the Borrower's obligations thereunder, and of all other documents
evidencing other necessary action (in form and substance reasonably satisfactory
to the Administrative Agent) taken by it to authorize the Loan Documents and the
transactions contemplated thereby, (ii) attaching a true and complete copy of
its articles of incorporation and by-laws, (iii) setting forth the incumbency of
its officer or officers who may sign the Loan Documents, including therein a
signature specimen of such officer or officers, and (iv) certifying that said
corporate charter and by-laws are true and complete copies thereof, are in full
force and effect and have not been amended or modified.
(b) The Administrative Agent shall have received a
certificate, dated the first Borrowing Date, of the Secretary or Assistant
Secretary of each Subsidiary Guarantor substantially in the form of Exhibit J
(i) attaching a true and complete copy of the resolutions of its Board of
Directors or Trustees, as the case may be, authorizing its execution and
delivery of the Guaranty and the performance of its obligations thereunder, and
of all other documents evidencing other necessary action (in form and substance
reasonably satisfactory to the Administrative Agent) taken by it to authorize
the Guaranty and the transactions contemplated thereby, (ii) attaching a true
and complete copy of its articles of incorporation or corporate charter or
declaration of trust and, if applicable, by-laws, (iii) setting forth the
incumbency of its officer or officers who may sign the Guaranty, including
therein a signature specimen of such officer or officers, and (iv) certifying
that said articles of incorporation, corporate charter or declaration of trust
and, if applicable, by-laws, are true and complete copies thereof, is in full
force and effect and has not been amended or modified.
(c) The Administrative Agent shall have received certificates
of good standing for the Borrower from the Maryland State Department of
Assessments and Taxation and for each Subsidiary Guarantor from the Secretary of
State for the State in which such Subsidiary Guarantor is incorporated, and for
the Borrower from each jurisdiction other than Maryland in which the Borrower is
qualified to do business, provided that such Secretaries issue such certificates
with respect to the Borrower. Notwithstanding the Administrative Agent's
acceptance on the Effective Date of certificates of good standing obtained in
connection with the closing under the Existing Credit Agreements, the Borrower
shall provide the Administrative Agent with current copies of such certificates
of good standing within fifteen (15) days of the Effective Date.
5.2 This Agreement.
The Administrative Agent shall have received counterparts of
this Agreement signed by each of the parties hereto (or receipt by the
Administrative Agent from a party hereto of a facsimile signature page signed by
such party which shall have agreed to promptly provide the Administrative Agent
with originally executed counterparts hereof).
5.3 Notes.
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The Administrative Agent shall have received the Notes, duly
executed by an Authorized Signatory of the Borrower.
5.4 Guaranty.
The Administrative Agent shall have received counterparts of
the Guaranty signed by each of the Subsidiary Guarantors (or receipt by the
Administrative Agent from a party hereto of a facsimile signature page signed by
such party which shall have agreed to promptly provide the Administrative Agent
with originally executed counterparts hereof).
5.5 [Intentionally Omitted].
5.6 Litigation.
There shall be no injunction, writ, preliminary restraining
order or other order of any nature issued by any Governmental Authority in any
respect affecting the transactions provided for herein and no action or
proceeding by or before any Governmental Authority shall have been commenced and
be pending or, to the knowledge of the Borrower, threatened, seeking to prevent
or delay the transactions contemplated by the Loan Documents or challenging any
other terms and provisions hereof or thereof or seeking any damages in
connection therewith and the Administrative Agent shall have received a
certificate of an Authorized Signatory of the Borrower to the foregoing effects.
5.7 Opinion of Counsel to the Borrower.
The Administrative Agent shall have received an opinion of (i)
Xxxxx & Xxxxxxx, L.L.P., outside counsel to the Borrower, and (ii) Xxxxxx X.
Xxxxxx, Esq., in-house counsel to the Borrower, and (iii) counsel to each
Subsidiary Guarantor, each addressed to the Administrative Agent and the
Lenders, and each dated the first Borrowing Date, covering the matters set forth
in Exhibit K.
5.8 Fees.
The Facility Fee, to the extent then due and payable, and all
fees payable to the Administrative Agent, the Lead Arranger and the Lenders
shall have been paid.
5.9 Fees and Expenses of Special Counsel.
The fees and expenses of Special Counsel in connection with
the preparation, negotiation and closing of the Loan Documents shall have been
paid.
5.10 [Intentionally Omitted].
6. CONDITIONS OF LENDING - ALL LOANS.
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The obligation of each Lender to make any Loan is subject to the
satisfaction of the following conditions precedent as of the date of such Loan:
6.1 Compliance.
On each Borrowing Date and after giving effect to the Loans to
be made or created, (a) the Borrower shall be in compliance with all of the
terms, covenants and conditions hereof, (b) there shall not exist and be
continuing any Default or Event of Default, (c) the representations and
warranties contained in the Loan Documents shall be true and correct with the
same effect as though such representations and warranties had been made on such
Borrowing Date (except for representations and warranties that speak as of a
specific date, which need only be true and correct as of such date), and (d) the
aggregate outstanding principal balance of the Loans shall not exceed the Total
Commitment Amount. Each notice requesting a Loan shall be deemed to constitute a
representation and warranty by the Borrower on the date thereof that each of the
foregoing matters is true and correct in all respects.
6.2 Loan Closings.
All documents required by the provisions of the Loan Documents
to be executed or delivered to the Administrative Agent on or before the
applicable Borrowing Date shall have been executed and shall have been delivered
at the office of the Administrative Agent set forth in Section 11.2 on or before
such Borrowing Date.
6.3 Borrowing Request.
With respect to each borrowing of a Loan, the Administrative
Agent shall have received a Borrowing Request duly executed by an Authorized
Signatory of the Borrower.
6.4 Documentation and Proceedings.
All corporate matters and legal proceedings and all documents
and papers in connection with the transactions contemplated by the Loan
Documents shall be reasonably satisfactory in form and substance to the
Administrative Agent and the Administrative Agent shall have received all
information and copies of all documents which the Administrative Agent or the
Required Lenders may reasonably have requested in connection therewith, such
documents (where appropriate) to be certified by an Authorized Signatory of the
Borrower or proper Governmental Authorities.
6.5 Required Acts and Conditions.
All acts, conditions and things (including, without
limitation, the obtaining of any necessary regulatory approvals and the making
of any filings, recordings or registrations) required to be done or performed by
the Borrower and to have happened on or prior to such Borrowing Date and which
are necessary for the continued effectiveness of the Loan Documents,
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shall have been done or performed and shall have happened in due compliance with
all applicable laws.
6.6 Approval of Special Counsel.
All legal matters in connection with the making of each Loan
shall be reasonably satisfactory to Special Counsel.
6.7 Supplemental Opinions.
If reasonably requested by the Administrative Agent with
respect to the applicable Borrowing Date, there shall have been delivered to the
Administrative Agent favorable supplementary opinions of counsel to the
Borrower, addressed to the Administrative Agent and the Lenders and dated such
Borrowing Date, covering such matters incident to the transactions contemplated
herein as the Administrative Agent may reasonably request.
6.8 Other Documents.
The Administrative Agent shall have received such other
documents and information with respect to the Borrower and its Subsidiaries or
the transactions contemplated hereby as the Administrative Agent or the Lenders
shall reasonably request.
7. AFFIRMATIVE COVENANTS.
The Borrower agrees that, so long as any Loan remains outstanding and
unpaid, any other amount is owing under any Loan Document to any Lender or the
Administrative Agent, or any Lender shall have any obligation to make or
maintain any Loan, the Borrower shall:
7.1 Financial Statements.
Maintain a standard system of accounting in accordance with
GAAP, and furnish or cause to be furnished to the Administrative Agent and each
Lender:
(a) Annual Statements. As soon as available, but in any event
within 120 days after the end of each fiscal year of the Borrower, a copy of its
Consolidated Balance Sheet as at the end of such fiscal year, together with the
related Consolidated Statements of Income, Stockholders' Equity and Cash Flows
as of and through the end of such fiscal year, setting forth in each case in
comparative form the figures for the preceding fiscal year. The Consolidated
Balance Sheets and Consolidated Statements of Income, Stockholders' Equity and
Cash Flows shall be audited and certified without qualification by the
Accountants, which certification shall (i) state that the examination by such
Accountants in connection with such Consolidated financial statements has been
made in accordance with generally accepted auditing standards and, accordingly,
includes the examination, on a test basis, of evidence supporting the amounts
and disclosures in such Consolidated financial statements, and (ii) include the
opinion of such Accountants that such Consolidated financial statements present
fairly, in all material respects,
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the Consolidated financial position of the Borrower and its Subsidiaries, as of
the date of such Consolidated financial statements, and the Consolidated results
of their operations and their cash flows for each of the years identified
therein in conformity with GAAP (subject to any change in the requirements of
GAAP).
(b) Annual Operating Statements and Rent Roll. As soon as
available, but in any event within 60 days after the end of each fiscal year of
the Borrower, copies of (i) the operating statements (in a form reasonably
satisfactory to the Administrative Agent) for all Real Property of the Borrower,
and (ii) a Rent Roll, each of which shall be certified by the Chief Financial
Officer to be true, correct and complete in all material respects.
(c) Quarterly Statements. As soon as available, but in any
event within 60 days after the end of the first three fiscal quarters of the
Borrower, a copy of the unaudited Consolidated Balance Sheet of the Borrower as
at the end of each such quarterly period, together with the related unaudited
Consolidated Statements of Income and Cash Flows for the elapsed portion of the
fiscal year through the end of such period, setting forth in each case in
comparative form the figures for the corresponding periods of the preceding
fiscal year, certified by the Chief Financial Officer as being true, correct and
complete in all material respects and as presenting fairly the Consolidated
financial condition and the Consolidated results of operations of the Borrower
and its Subsidiaries.
(d) Quarterly Information Regarding Unencumbered Assets. As
soon as available, but in any event 60 days after the end of each of the first
three fiscal quarters of the Borrower (120 days after the end of the last fiscal
quarter of the Borrower), a list of all the Unencumbered Assets owned by the
Borrower, any wholly owned Subsidiary of the Borrower and each DownREIT
Partnership as of the last day of such fiscal quarter setting forth the
following information with respect to each such Unencumbered Asset as of such
date: (i) asset type (i.e., retail shopping center or residential apartment
building); (ii) location; (iii) percentage of the Unencumbered Asset owned by
the Borrower, any wholly owned Subsidiary of the Borrower and each DownREIT
Partnership; and (iv) the Net Operating Income for such Unencumbered Asset
during such fiscal quarter.
(e) Compliance Certificate. Within 60 days after the end of
each of the first three fiscal quarters of the Borrower (120 days after the end
of the last fiscal quarter of the Borrower), a Compliance Certificate, certified
by the Chief Financial Officer, setting forth in reasonable detail the
computations demonstrating the Borrower's compliance with the provisions of
Sections 8.12, 8.13, 8.14, 8.15, 8.16 and 8.17.
(f) Other Information. Such other information as the
Administrative Agent or any Lender may reasonably request from time to time.
7.2 Certificates; Other Information.
Furnish to the Administrative Agent and each Lender:
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(a) Defaults Under Other Indebtedness. Prompt written notice
if: (i) any Indebtedness of the Borrower or any Subsidiary of the Borrower is
declared or shall become due and payable prior to its stated maturity, or called
and not paid when due, or (ii) a default that extends beyond any applicable
notice or grace period shall have occurred under any note (other than the Notes)
or the holder of any such note, or other evidence of Indebtedness, certificate
or security evidencing any such Indebtedness or any obligee with respect to any
other Indebtedness of the Borrower or any Subsidiary of the Borrower has the
right to declare any such Indebtedness due and payable prior to its stated
maturity, and, in the case of either (i) or (ii), the Indebtedness that is the
subject of (i) or (ii) is, in the aggregate, $7,500,000 or more;
(b) Action of Governmental Authorities. Prompt written notice
of: (i) any citation, summons, subpoena, order to show cause or other document
naming the Borrower or any Subsidiary of the Borrower a party to any proceeding
before any Governmental Authority which could reasonably be expected to have a
Material Adverse Effect or which calls into question the validity or
enforceability of any of the Loan Documents, and include with such notice a copy
of such citation, summons, subpoena, order to show cause or other document; (ii)
any lapse or other termination of any Intellectual Property, license, permit,
franchise or other authorization issued to the Borrower or any Subsidiary of the
Borrower by any Person or Governmental Authority, which lapse or termination
could reasonably be expected to have a Material Adverse Effect; and (iii) any
refusal by any Person or Governmental Authority to renew or extend any such
material Intellectual Property, license, permit, franchise or other
authorization, which refusal could reasonably be expected to have a Material
Adverse Effect;
(c) SEC or other Governmental Reports and Filings. Promptly
upon becoming available, copies of all regular, periodic or special reports
which the Borrower or any Subsidiary of the Borrower may now or hereafter be
required to file with or deliver to any securities exchange or the Securities
and Exchange Commission, or any other Governmental Authority succeeding to the
functions thereof, pursuant to the Securities Exchange Act of 1934, as amended.
(d) ERISA Information. Promptly, and in any event within ten
Business Days, after the Borrower knows or has reason to know that any of the
events or conditions enumerated below with respect to any Plan or Multiemployer
Plan has occurred or exists, a statement signed by the Chief Financial Officer
setting forth details with respect to such event or condition and the action, if
any, which the Borrower or an ERISA Affiliate proposes to take with respect
thereto; provided, however, that if such event or condition is required to be
reported or noticed to the PBGC, such statement, together with a copy of the
relevant report or notice to the PBGC, shall be furnished promptly and in any
event not later than ten days after it is reported or noticed to the PBGC:
(i) any reportable event, as defined in Section
4043(b) of ERISA with respect to a Plan, as to which the PBGC has not
by regulation waived the requirement of Section 4043(a) of ERISA that
it be notified within thirty days of the occurrence of such event
(provided that a failure to meet the minimum funding standard of
Section 412 of the Code or of Section 302 of ERISA, including, without
limitation, the failure to make,
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on or before its due date, a required installment under Section 412(m)
of the Code or Section 302(e) of ERISA or the disqualification of such
Plan for purposes of Section 4043(b)(1) of ERISA, shall be a reportable
event regardless of the issuance of any waivers in accordance with
Section 412(d) of the Code) and any request for a waiver under Section
412(d) of the Code for any Plan;
(ii) the distribution under Section 4041 of ERISA of
a notice of intent to terminate any Plan or any action taken by the
Borrower or any ERISA Affiliate to terminate any Plan;
(iii) the institution by the PBGC of proceedings
under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan, or the receipt by the Borrower or
any ERISA Affiliate of a notice from a Multiemployer Plan that such
action has been taken by the PBGC with respect to such Multiemployer
Plan;
(iv) the complete or partial withdrawal from a
Multiemployer Plan by the Borrower or any ERISA Affiliate that results
in liability under Section 4201 or 4204 of ERISA (including the
obligation to satisfy secondary liability as a result of a purchaser
default) or the receipt of the Borrower or any ERISA Affiliate of
notice from a Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA or that it intends
to terminate or has terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of
any Multiemployer Plan against the Borrower or any ERISA Affiliate to
enforce Section 515 of ERISA, which proceeding is not dismissed within
thirty days from its commencement;
(vi) the adoption of an amendment to any Plan
pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA that
would result in the loss of the tax-exempt status of the trust of which
such Plan is a part or the Borrower or any ERISA Affiliate fails to
timely provide security to such Plan in accordance with the provisions
of said Sections; and
(vii) any event or circumstance exists which may
reasonably be expected to constitute grounds for the incurrence of
material liability by the Borrower or any ERISA Affiliate under Title
IV of ERISA or under Sections 412(c)(11) or 412(n) of the Code with
respect to any employee benefit plan;
(e) ERISA Reports. Promptly after the request of the
Administrative Agent or any Lender therefor, copies of each annual report filed
pursuant to Section 104 of ERISA with respect to each Plan (including, to the
extent required by Section 104 of ERISA, the related financial and actuarial
statements and opinions and other supporting statements, certifications,
schedules and information referred to in Section 103 of ERISA) and each annual
report filed with respect to each Plan under Section 4065 of ERISA; provided,
however, that in the case of a
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Multiemployer Plan, such annual reports shall be furnished only if they are
available to the Borrower or any ERISA Affiliate;
(f) Notice of Proposed Sales or Transfers. Quarterly, on each
date that a Compliance Certificate is to be delivered pursuant to Section
7.1(e), a list of all sales or transfers of any Unencumbered Assets (including
any agreements for the sale or transfer of any Unencumbered Asset entered into
during such fiscal quarter but not yet consummated); provided that, if during
any such fiscal quarter of the Borrower any sale or transfer of an Unencumbered
Asset, which combined with all other such sales or transfers of Unencumbered
Assets during such fiscal quarter, would exceed $100,000,000 in the aggregate,
then the Borrower shall promptly provide such list and a certification of the
Chief Financial Officer as to the Borrower's compliance with Sections 8.12 and
8.16;
(g) Casualties or Condemnations. Prompt written notice of any
casualty or condemnation of any Real Property, if such casualty or condemnation
could reasonably be expected to have a Material Adverse Effect;
(h) Environmental Law Notices. Prompt written notice of any
order, notice, claim or proceeding received by, or brought against, the Borrower
or any Subsidiary of the Borrower, or with respect to any of the Real Property,
under any Environmental Law, which could reasonably be expected to have a
Material Adverse Effect;
(i) Management Letters and Reports. Promptly after the same
are received by the Borrower, copies of all management letters and similar
reports provided to the Borrower by the Accountants;
(j) New Subsidiaries. Notice of any Subsidiary that, as of the
end of any fiscal quarter of the Borrower, satisfies the criteria in Section
7.11 with respect to Required Additional Guarantors, such notice to be delivered
to the Administrative Agent concurrently with the delivery of the Compliance
Certificate with respect to such quarter;
(k) Changes in Name or Fiscal Year. Prompt written notice of
(i) any change in the Borrower's name, with copies of all filings with respect
to such name change attached thereto, and (ii) any change in its fiscal year
from that in effect on the Effective Date.
(l) Defaults or Events of Default. Prompt written notice if
there shall occur and be continuing a Default or an Event of Default; and
(m) Other Information. Such other information as the
Administrative Agent or any Lender shall reasonably request from time to time.
7.3 Legal Existence.
(a) Borrower's Legal Existence. Maintain its status as a
Maryland corporation in good standing in the State of Maryland and in each other
jurisdiction in which the failure so to
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do could reasonably be expected to have a Material Adverse Effect.
(b) Legal Existence of Subsidiaries. Cause each Subsidiary of
the Borrower to maintain its status as a real estate investment trust, business
trust, corporation, limited liability company or partnership, as the case may
be, in good standing in its state of formation and in each other jurisdiction in
which the failure so to do either (i) would result in the occurrence of a
Default, or (ii) could reasonably be expected to have a Material Adverse Effect.
7.4 Taxes.
Pay and discharge when due, and cause each Subsidiary of the
Borrower so to do, all Taxes, assessments and governmental charges, license fees
and levies upon, or with respect to, the Borrower or such Subsidiary and all
Taxes upon the income, profits and Property of the Borrower and its
Subsidiaries, which if unpaid, could reasonably be expected to have a Material
Adverse Effect, unless and to the extent only that such Taxes, assessments,
governmental charges, license fees and levies shall be contested in good faith
and by appropriate proceedings diligently conducted by the Borrower or such
Subsidiary and such contest has the effect of staying the collection of any Lien
from any Property of the Borrower or its Subsidiaries arising from such
non-payment, and provided that the Borrower shall give the Administrative Agent
prompt notice of such contest and that such reserve or other appropriate
provision as shall be required in accordance with GAAP (as determined by the
Accountants) shall have been made therefor.
7.5 Insurance.
Maintain, and cause each Subsidiary of the Borrower to
maintain, insurance on its Property against such risks and in such amounts as is
customarily maintained by Persons engaged in similar businesses and owning
similar Properties in the same general areas in which the Borrower or the
relevant Subsidiary operates, and file with the Administrative Agent within 10
Business Days after request therefor a detailed list of such insurance then in
effect, stating the names of the carriers thereof, the policy numbers, the
insureds thereunder, the amounts of insurance, dates of expiration thereof, and
the Property and risks covered thereby, together with a certificate of the Chief
Financial Officer certifying that in the opinion of such officer such insurance
complies with the obligations of the Borrower under this Section, and is in full
force and effect.
7.6 Payment of Indebtedness and Performance of Obligations.
Pay and discharge when due, and cause each Subsidiary of the
Borrower to pay and discharge, all lawful Indebtedness, obligations and claims
for labor, materials and supplies or otherwise which, if unpaid, (i) would
result in a Default, or (ii) could reasonably be expected to have a Material
Adverse Effect, unless (with respect to clause (ii)) such Indebtedness shall be
contested in good faith and by appropriate proceedings diligently conducted by
the Borrower or such Subsidiary and such contest has the effect of staying the
collection of any Lien from any
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Property of the Borrower or its Subsidiaries arising from such non-payment, and
provided that the Borrower shall give the Administrative Agent prompt notice of
such contest and that such reserve or other appropriate provision as shall be
required in accordance with GAAP (as determined by the Accountants) shall have
been made therefor.
7.7 Maintenance of Property; Environmental Investigations.
(a) In all material respects, at all times, maintain, protect
and keep in good repair, working order and condition (ordinary wear and tear
excepted), and cause each Subsidiary of the Borrower so to do, all Property
necessary to the operation of the Borrower's or such Subsidiary's business.
(b) In the event that the Administrative Agent shall have a
reasonable basis for believing that Hazardous Substances may be on, at, under or
around any Real Property in violation of any applicable Environmental Law which,
individually or in the aggregate could reasonably be expected to have a Material
Adverse Effect, promptly conduct and complete (at the Borrower's expense) all
investigations, studies, samplings and testings relative to such Hazardous
Substances as the Administrative Agent may reasonably request.
7.8 Observance of Legal Requirements.
(a) Observe and comply in all respects, and cause each
Subsidiary of the Borrower so to do, with all laws, ordinances, orders,
judgments, rules, regulations, certifications, franchises, permits, licenses,
directions and requirements of all Governmental Authorities, which now or at any
time hereafter may be applicable to it, except (i) where noncompliance with any
of the foregoing (individually or in the aggregate) could not reasonably be
expected to have a Material Adverse Effect, or (ii) such thereof as shall be
contested in good faith and by appropriate proceedings diligently conducted by
it and such contest has the effect of staying the collection of any Lien from
any Property of the Borrower or its Subsidiaries arising from such
noncompliance, and provided that the Borrower shall give the Administrative
Agent prompt notice of such contest and that such reserve or other appropriate
provision as shall be required in accordance with GAAP (as determined by the
Accountants) shall have been made therefor.
(b) Use and operate all of its facilities and property in
compliance with all Environmental Laws and cause each of its Subsidiaries so to
do, and keep all necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and remain in
compliance therewith and cause each of its Subsidiaries so to do, and handle all
Hazardous Materials in compliance with all applicable Environmental Laws and
cause each of its Subsidiaries so to do, except where noncompliance with any of
the foregoing (individually or in the aggregate) could not reasonably be
expected to have a Material Adverse Effect.
7.9 Inspection of Property; Books and Records; Discussions.
Keep proper books of record and account in which full, true
and correct entries in conformity with GAAP and all requirements of law shall be
made of all dealings and transactions
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in relation to its business and activities and permit representatives of the
Administrative Agent and any Lender during normal business hours and on
reasonable prior notice to visit its offices, to inspect any of its Property and
to examine and make copies or abstracts from any of its books and records as
often as may reasonably be desired, and to discuss the business, operations,
prospects, licenses, Property and financial condition of the Borrower or and its
Subsidiaries with the officers thereof and the Accountants.
7.10 Licenses, Intellectual Property.
Maintain, and cause each Subsidiary of the Borrower to
maintain, in full force and effect, all material licenses, franchises,
Intellectual Property, permits, authorizations and other rights as are necessary
for the conduct of its business.
7.11 Required Additional Guarantors.
At any time after the date hereof, and with respect to any
Subsidiary of the Borrower, whether presently existing or hereafter formed or
acquired (other than Excel Realty Partners, L.P. and E. H. Properties, L.P.)
which is not a Subsidiary Guarantor at such time, cause such Subsidiary to
execute and deliver a Guaranty to the Administrative Agent, for the benefit of
the Lenders, promptly after the Administrative Agent's request therefor, duly
executed by such Subsidiary (together with the certificates and attachments
described in Section 5.1(b) and (c) with respect to such Subsidiary and an
opinion of counsel in the form required pursuant to Section 5.7(iii)) if at such
time such Subsidiary owns Property having a book value of $75,000,000 or more.
Notwithstanding the foregoing, the foregoing book value conditions of this
Section shall not be applicable from and after the occurrence of, and during the
continuance of, an Event of Default (it being understood that at such time, the
Administrative Agent can require any Subsidiary of the Borrower which has not
executed a Guaranty to immediately comply with requirements of this Section).
7.12 REIT Status; Operation of Business.
(a) Maintain its status under Sections 856 et seq. of the Code
as a REIT.
(b) Carry on all business operations of the Borrower as a
self-advised, self-managed REIT.
(c) Manage, or cause one or more of its Subsidiaries at all
times to manage, at least 90% of all Properties of the Borrower and its
Subsidiaries.
7.13 [Intentionally Omitted].
8. NEGATIVE COVENANTS.
The Borrower agrees that, so long as any Loan remains outstanding and
unpaid, any other amount is owing under any Loan Document to any Lender or the
Administrative Agent, or any
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Lender shall have any obligation to make or maintain any Loan, the Borrower
shall not, directly or indirectly:
8.1 Liens.
Create, incur, assume or suffer to exist any Lien upon any of
its Property, whether now owned or hereafter acquired, or permit any Subsidiary
of the Borrower so to do, except (i) Liens for Taxes, assessments or similar
charges incurred in the ordinary course of business which are not delinquent or
the existence of which do not otherwise violate the representations in Section
7.4, (ii) Liens in connection with workers' compensation, unemployment insurance
or other social security obligations (but not ERISA), (iii) deposits or pledges
to secure bids, tenders, contracts (other than contracts for the payment of
money), leases, statutory obligations, surety and appeal bonds and other
obligations of like nature arising in the ordinary course of business, (iv)
zoning ordinances, easements, rights of way, use restrictions, exclusive use
limitations in any lease of Real Property, reciprocal easement agreements, minor
defects, irregularities, and other similar restrictions and encumbrances
affecting Real Property, which do not materially adversely affect the value of
such Real Property or the financial condition of the Borrower or such Subsidiary
of the Borrower or materially impair its use for the operation of the business
of the Borrower or such Subsidiary, (v) statutory Liens arising by operation of
law such as mechanics', materialmen's, carriers', warehousemen's liens incurred
in the ordinary course of business which are not delinquent or the existence of
which do not otherwise violate the representations in Section 7.6, (vi) Liens
arising out of judgments or decrees which are being contested in accordance with
Section 7.8 or the existence of which do not otherwise violate the
representations in Section 7.8 or result in a default pursuant to Section
9.1(j), (vii) mortgages on Real Property, provided that the existence of such
mortgages, and the indebtedness secured thereby, does not cause the Borrower to
be in violation of Section 8.12 or 8.16, (viii) Liens in favor of the Borrower
or any Subsidiary Guarantor, provided that the Indebtedness secured by any such
Lien is held by the Borrower or such Subsidiary Guarantor, (ix) the interests of
lessees and lessors under leases of real or personal property made in the
ordinary course of business which could not reasonably be expected (individually
or in the aggregate) to have a Material Adverse Effect and (x) Liens not
otherwise permitted by clauses (i) through (ix) of this Section which do not in
the aggregate exceed $5,000,000.
8.2 Merger, Consolidation and Certain Dispositions of Property.
(a) Consolidate with, be acquired by, or merge into or with
any Person, or sell, lease or otherwise dispose of all or substantially all of
its Property (in one transaction or a series of transactions), or permit any
Subsidiary Guarantor of the Borrower so to do, or liquidate or dissolve, except
(i) the merger or consolidation of any Subsidiary Guarantor of the Borrower into
or with the Borrower, (ii) the merger or consolidation of any two or more
Subsidiary Guarantors, or (iii) the merger or consolidation of the Borrower or
Subsidiary Guarantor with any other Person, provided that (A) the Borrower or
such Subsidiary Guarantor is the surviving entity in such merger or
consolidation, (B) the total book value of the assets of the entity which is
merged into or consolidated with the Borrower or such Subsidiary Guarantor is
less than 20% of the total book value of the assets of the Borrower immediately
following such merger or
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consolidation, (C) immediately prior to such merger or consolidation the
Borrower shall have provided to the Administrative Agent and each of the Lenders
a Compliance Certificate prepared on a pro-forma basis (and adjusted in the best
good faith estimate of the Borrower, based on the advice of the Accountants, to
give effect to such merger or consolidation) demonstrating that after giving
effect to such merger or consolidation, no Default shall exist with respect to
any of the covenants set forth in Sections 8.12, 8.13, 8.14, 8.15, 8.16 and 8.17
and (D) after giving effect to such merger or consolidation, no Event of Default
shall exist.
(b) Sell, transfer, master lease or dispose of any of its
Property, either directly or indirectly, except that if at the time thereof and
immediately after giving effect thereto, no Default shall have occurred, (i) any
Subsidiary of the Borrower may sell, transfer, master lease or otherwise dispose
of its assets to the Borrower or to any other Subsidiary, and (ii) the Borrower
or any Subsidiary of the Borrower may sell Property in an arm's length
transaction (or, if the transaction involves an Affiliate of the Borrower or a
Subsidiary of the Borrower, if the transaction complies with Section 8.8) for
the fair market value thereof, as reasonably determined by the Borrower,
provided that such sale could not reasonably be expected to have a Material
Adverse Effect and provided further that for any fiscal year of the Borrower,
any sale, transfer, master lease or disposition of Property in reliance on this
clause (ii) which when combined with all other such sales, transfers, master
leases or dispositions made in such fiscal year shall not exceed 25% of the
total book value of all Property of the Borrower and its Subsidiaries determined
as of the first day of such fiscal year.
8.3 Investments, Loans, Etc.
At any time, purchase or otherwise acquire, hold or invest in
the Stock of, or any other interest in, any Person, or make any loan or advance
to, or enter into any arrangement for the purpose of providing funds or credit
to, or make any other investment, whether by way of capital contribution, time
deposit or otherwise, in or with any Person, or permit any Subsidiary of the
Borrower so to do, (all of which are sometimes referred to herein as
"Investments") except the following (to the extent that maintaining any thereof
would not at any time violate the requirements of Section 856(c) of the Code):
(a) demand deposits, certificates of deposit, bankers
acceptances and domestic and eurodollar time deposits with any Lender, or any
other commercial bank, trust company or national banking association
incorporated under the laws of the United States or any State thereof and having
undivided capital, surplus and undivided profits exceeding $500,000,000 and a
long term debt rating of A or A2, as determined, respectively, by S&P and
Xxxxx'x;
(b) short-term direct obligations of the United States of
America or agencies thereof whose obligations are guaranteed by the United
States of America;
(c) securities commonly known as "commercial paper" issued by
a corporation organized and existing under the laws of the United States or any
State thereof which at the time of purchase are rated by S&P or Xxxxx'x at not
less than "A1" or "P1," respectively;
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(d) mortgage-backed securities guaranteed by the Governmental
National Mortgage Association, the Federal National Mortgage Association or the
Federal Home Loan Mortgage Corporation and other mortgage-backed bonds which at
the time of purchase are rated by S&P or Xxxxx'x at not less than "Aa" or "AA,"
respectively;
(e) repurchase agreements having a term not greater than 90
days and fully secured by securities described in the foregoing paragraph (b) or
(d) with banks described in the foregoing paragraph (a) or with financial
institutions or other corporations having total assets in excess of $50,000,000;
(f) shares of "money market funds" registered with the SEC
under the Investment Company Act of 1940 which maintain a level per-share value,
invest principally in the investments described in one or more of the foregoing
paragraphs (a) through (e) and have total assets of in excess of $50,000,000;
(g) Real Property and loans secured by mortgages on Real
Property;
(h) equity investments in any Person (other than Subsidiaries)
and notes receivable investments in any Person (other than Subsidiaries), the
aggregate principal amount of which (combined with any other equity investments
and notes receivable investments in any Person permitted pursuant to this
paragraph (h)) do not exceed 25% of the Total Capital of the Borrower;
(i) Investments (debt or equity) in Subsidiaries of the
Borrower;
(j) investments in respect of (1) equipment, inventory and
other tangible personal property acquired in the ordinary course of business,
(2) current trade and customer accounts receivable for services rendered in the
ordinary course of business, (3) advances to employees for travel expenses other
company-related expenses, and (4) prepaid expenses made in the ordinary course
of business;
(k) Hedging Agreements made in connection with any
Indebtedness;
(l) repurchases of any common or preferred stock or other
equity interests (or securities convertible into such interests) in the Borrower
or any Subsidiary that have been previously issued by the Borrower or such
Subsidiary, which do not exceed, in any calendar year, (1) 10% of the
outstanding shares of common or preferred stock or other equity interests in
Borrower or such Subsidiary, as applicable, as of the date hereof, plus (2) 10%
of any additional shares of common or preferred stock or other equity interests
in Borrower or such Subsidiary, as applicable, issued after the date hereof;
(m) redemptions of preferred stock of the Borrower in
accordance with the terms thereof;
(n) redemptions for cash or common Stock of the Borrower of
units of limited
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partner interests or limited liability company interests in a DownREIT
Partnership;
(o) loans to employees of the Borrower, provided that all such
loans in the aggregate do not at any time exceed $15,000,000 in the aggregate;
and
(p) any other Investments not included in paragraphs (a)
through (o) deemed appropriate by the Borrower, provided that in no event shall
Investments made in reliance upon the exception set forth in this paragraph (p)
exceed $50,000,000 at any one time;
8.4 Business Changes.
Change in any material respect the nature of the business of
the Borrower or its Subsidiaries as conducted on the Effective Date.
8.5 Amendments to Organizational Documents.
Amend or otherwise modify its corporate charter or by-laws in
any way (other than in connection with the issuance or classification of
preferred stock of the Borrower) which would adversely affect the interests of
the Administrative Agent and the Lenders under any of the Loan Documents, or
permit any Subsidiary of the Borrower to amend its organizational documents in a
manner which could have the same result.
8.6 Bankruptcy Proceedings.
Institute against the Administrative Agent or any Lender, or
join any other Person in instituting against the Administrative Agent or any
Lender, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other proceeding under any federal or state bankruptcy or similar
law, for one year and a day after the payment or prepayment in full of the
Indebtedness due hereunder.
8.7 Sale and Leaseback.
Enter into any arrangement with any Person providing for the
leasing by it of Property which has been or is to be sold or transferred by it
to such Person or to any other Person to whom funds have been or are to be
advanced by such Person on the security of such Property or its rental
obligations, or permit any Subsidiary of the Borrower so to do, except for sale
and leasing transactions described herein for which the combined selling price
of all Property subject to all such transactions does not exceed $50,000,000 in
the aggregate.
8.8 Transactions with Affiliates.
Become a party to any transaction in an amount that exceeds
$60,000 with an Affiliate unless the terms and conditions relating thereto (i)
have been approved by a majority of the disinterested directors of the Borrower,
(ii) have been approved by a majority of votes cast by the stockholders of the
Borrower, or (iii) are fair and reasonable to the Borrower, or permit any
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Subsidiary of the Borrower so to do.
8.9 Issuance of Additional Capital Stock by Subsidiary Guarantors.
Permit any Subsidiary Guarantor to issue any additional Stock
or other equity interest of such Subsidiary Guarantor, other than the issuance
of partnership or limited liability company units in a DownREIT Partnership
which is a Subsidiary Guarantor, provided that such units are issued in
consideration of the contribution to the DownREIT Partnership of assets
qualifying as "real estate assets" under Section 856(c) of the Code.
8.10 Hedging Agreements.
Enter into, or permit any of its Subsidiaries so to do, any
Hedging Agreement, other than Hedging Agreements entered into in the ordinary
course of business to hedge or mitigate interest rate risks to which the
Borrower or any Subsidiary of the Borrower is exposed in the conduct of its
business or the management of its liabilities.
8.11 Restricted Payments.
(a) Permit the Borrower to make Restricted Payments, except
that:
(i) except as set forth in clause (ii) below, the
Borrower may declare and pay dividends payable with respect to its
equity securities in any fiscal quarter of the Borrower if after giving
effect to such dividend, such dividend, when added to the amount of all
other such dividends paid in the same fiscal quarter and the preceding
three (3) fiscal quarters, would not exceed the greater of (A) ninety
percent (90%) of its Funds from Operations for the four consecutive
fiscal quarters ending prior to the quarter in which such dividend is
paid or (B) the minimum amount of such dividends required under the
Code to enable the Borrower to continue to maintain its status under
the Code as a REIT, as evidenced (in the case of clause (B)) by a
certification of Chief Financial Officer containing calculations in
reasonable detail satisfactory in form and substance to Administrative
Agent;
(ii) if an Event of Default under Section 9.1(a) or
(b) has occurred and is continuing, the Borrower may declare and pay
dividends with respect to its equity securities which shall not exceed
the minimum such dividends required under the Code to enable the
Borrower to continue to maintain its status under the Code as a REIT,
as evidenced by a certification of Chief Financial Officer containing
calculations in reasonable detail satisfactory in form and substance to
Administrative Agent;
(iii) the Borrower may effect Stock repurchases
to the extent permitted by Section .3(l);
(iv) the Borrower may effect "cashless exercises" of
options granted under the Borrower's stock option plans;
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(v) the Borrower may distribute rights or equity
securities under any rights plan adopted by the Borrower; and
(vi) the Borrower may declare and pay dividends (or
effect Stock splits or reverse Stock splits) with respect to its equity
securities payable solely in additional shares of its equity
securities.
8.12 Unencumbered Assets Coverage Ratio.
Permit the Unencumbered Assets Coverage Ratio to be less than
2.0:1.0 at any time.
8.13 Fixed Charge Coverage Ratio.
Permit the Fixed Charge Coverage Ratio to be less than
1.75:1.0 at any time.
8.14 Minimum Tangible Net Worth.
Permit the Tangible Net Worth of the Borrower and its
Subsidiaries on a Consolidated basis at any time to be less than the sum of (i)
$1,200,000,000, plus (ii) 80% of the aggregate net proceeds received by the
Borrower from and after the Effective Date in connection with the issuance of
any capital stock of the Borrower.
8.15 Maximum Total Indebtedness.
Permit at any time either (i) all Consolidated Total
Indebtedness at such time to be more than 55% of Total Capital at such time, or
(ii) the Consolidated Total Indebtedness secured by mortgages on Real Property
owned by the Borrower and its Subsidiaries at such time to exceed 40% of Total
Capital at such time.
8.16 Liabilities to Assets Ratio.
Permit, at any time, the portion of the Consolidated Total
Indebtedness consisting of Consolidated unsecured Indebtedness of the Borrower
and its Subsidiaries at such time to be more than 50% of Unencumbered Asset
Value at such time.
8.17 Maximum Book Value of Ancillary Assets.
Permit the book value of the Ancillary Assets at any time to
be more than 20% of the book value of all assets of the Borrower and its
Subsidiaries on a Consolidated basis at such time. For purposes of this Section
8.17 the book value of any Ancillary Asset not owned 100%, directly or
indirectly, by the Borrower or any of its Subsidiaries shall be adjusted by
multiplying the same by the Borrower's Interest in such Ancillary Asset during
the fiscal quarter of the Borrower ending as of any date of determination of
such book value.
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9. DEFAULT.
9.1 Events of Default.
The following shall each constitute an "Event of Default"
hereunder:
(a) The failure of the Borrower to pay any installment of
principal on any Note on the date when due and payable; or
(b) The failure of the Borrower to pay any installment of
interest or any other fees, expenses or other charges payable under any Loan
Document within five Business Days of the date when due and payable; or
(c) The use of the proceeds of any Loan in a manner
inconsistent with or in violation of Section 2.15; or
(d) The failure of the Borrower to observe or perform any
covenant or agreement contained in Section 7.3, 7.12(a), 7.12(b), or 8 (other
than Section 8.1, as to which the provisions of paragraph (e) below shall
apply); or
(e) The failure to observe or perform any other term,
covenant, or agreement contained in any Loan Document and such failure shall
have continued unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Borrower; or
(f) Any representation or warranty of the Borrower (or of any
officer of the Borrower on its behalf) made in any Loan Document to which it is
a party or in any certificate, report, opinion (other than an opinion of
counsel) or other document delivered or to be delivered pursuant thereto, shall
prove to have been incorrect or misleading (whether because of misstatement or
omission) in any material respect when made; or
(g) Any obligation of the Borrower (other than its obligations
under the Notes) or any Subsidiary of the Borrower, whether as principal,
guarantor, surety or other obligor, for the payment of any Indebtedness shall
(i) become or shall be declared to be due and payable prior to the expressed
maturity thereof, or (ii) shall not be paid when due or within any grace period
for the payment thereof, or (iii) shall be subject, by the holder of the
obligation evidencing such Indebtedness, to acceleration (after the expiration
of any applicable notice and cure periods) prior to the expressed maturity
thereof, and the sum of all such Indebtedness which is the subject of paragraphs
(i) - (iii) inclusive exceeds (A) at any time, in the case of Indebtedness other
than Non-Recourse Indebtedness, $7,500,000, and (B) in any calendar year, in the
case of Non-Recourse Indebtedness, $50,000,000 in the aggregate during such
year; or
(h) The Borrower or any Subsidiary Guarantor of the Borrower
shall (i) suspend or discontinue its business, (ii) make an assignment for the
benefit of creditors, (iii) generally not be paying its debts as such debts
become due, (iv) admit in writing its inability to
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pay its debts as they become due, (v) file a voluntary petition in bankruptcy,
(vi) become insolvent (however such insolvency shall be evidenced), (vii) file
any petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment of debt, liquidation or dissolution or similar relief
under any present or future statute, law or regulation of any jurisdiction,
(viii) petition or apply to any tribunal for any receiver, custodian or any
trustee for any substantial part of its Property, (ix) be the subject of any
such proceeding filed against it which remains undismissed for a period of 60
days, (x) file any answer admitting or not contesting the material allegations
of any such petition filed against it or any order, judgment or decree approving
such petition in any such proceeding, (xi) seek, approve, consent to, or
acquiesce in any such proceeding, or in the appointment of any trustee,
receiver, custodian, liquidator, or fiscal agent for it, or any substantial part
of its Property, or an order is entered appointing any such trustee, receiver,
custodian, liquidator or fiscal agent and such order remains in effect for 60
days, or (xii) take any formal action for the purpose of effecting any of the
foregoing; or
(i) An order for relief is entered under the United States
bankruptcy laws or any other decree or order is entered by a court having
jurisdiction (i) adjudging the Borrower or any Subsidiary Guarantor bankrupt or
insolvent, (ii) approving as properly filed a petition seeking reorganization,
liquidation, arrangement, adjustment or composition of or in respect of the
Borrower or any Subsidiary Guarantor under the United States bankruptcy laws or
any other applicable Federal or state law, (iii) appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other similar
official) of the Borrower or any Subsidiary Guarantor or of any substantial part
of the Property thereof, or (iv) ordering the winding up or liquidation of the
affairs of the Borrower or any Subsidiary Guarantor, and any such decree or
order continues unstayed and in effect for a period of 60 days; or
(j) Judgments or decrees against the Borrower or any
Subsidiary of the Borrower aggregating in excess of $5,000,000 shall not be
paid, stayed on appeal, discharged, bonded or dismissed for a period of 45 days;
or
(k) Any Loan Document shall cease, for any reason, to be in
full force and effect, or the Borrower shall so assert in writing or shall
disavow any of its obligations thereunder; or
(l) An event or condition specified in Section 7.2(d) shall
occur or exist with respect to any Plan or Multiemployer Plan and, as a result
of such event or condition, together with all other such events or conditions,
the Borrower shall be reasonably likely to incur a liability to a Plan, a
Multiemployer Plan, the PBGC, or any combination thereof which would constitute,
in the reasonable opinion of the Required Lenders, a Material Adverse Effect; or
(m) There shall occur a Change of Control; or
(n) If any Loan Document (i) is determined by any court or
Governmental Authority to be illegal, invalid or unenforceable in accordance
with its terms, or (ii) shall be canceled, terminated, revoked or rescinded
other than in accordance with its terms or with the
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written consent or approval of the Lenders; or
(o) (i) Any Subsidiary Guarantor shall fail to comply in any
material respect with any covenant made by it in the Guaranty or if at any time
any representation or warranty made by any Subsidiary Guarantor in the Guaranty
or in any other document, statement or writing made to the Administrative Agent,
the Lead Arranger or the Lenders shall prove to have been incorrect or
misleading in any material respect when made, or (ii) if a default by any
Subsidiary Guarantor shall occur under the Guaranty after the expiration of any
applicable notice and grace period; or (iii) if any Subsidiary Guarantor shall
revoke or attempt to revoke, contest, commence any action or raise any defense
(other than the defense of payment) against its obligations under the Guaranty;
or
(p) There shall occur and be continuing an Event of Default
under and as defined in the Existing Credit Agreements.
Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof, (a) if such event is an Event of
Default specified in clause (h) or (i) above, the Commitments shall immediately
and automatically terminate and the Loans, all accrued and unpaid interest
thereon, and all other amounts owing under the Loan Documents shall immediately
become due and payable, and the Administrative Agent may, and upon the direction
of the Required Lenders shall, exercise any and all remedies and other rights
provided in the Loan Documents, and (b) if such event is any other Event of
Default, any or all of the following actions may be taken: (i) with the consent
of the Required Lenders, the Administrative Agent may, and upon the direction of
the Required Lenders shall, by notice to the Borrower, declare the Commitments
to be terminated forthwith, whereupon the Commitments shall immediately
terminate; and (ii) with the consent of the Required Lenders, the Administrative
Agent may, and upon the direction of the Required Lenders shall, by notice of
default to the Borrower, declare the Loans, all accrued and unpaid interest
thereon and all other amounts owing under the Loan Documents to be due and
payable forthwith, whereupon the same shall immediately become due and payable,
and the Administrative Agent may, and upon the direction of the Required Lenders
shall, exercise any and all remedies and other rights provided pursuant to the
Loan Documents. Except as otherwise provided in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
The Borrower hereby further expressly waives and covenants not to assert any
appraisement, valuation, stay, extension, redemption or similar laws, now or at
any time hereafter in force which might delay, prevent or otherwise impede the
performance or enforcement of any Loan Document.
In the event that the Commitments shall have been terminated
or the Notes shall have been declared due and payable pursuant to the provisions
of this Section, any funds received by the Administrative Agent and the Lenders
from or on behalf of the Borrower shall be applied by the Administrative Agent
and the Lenders in liquidation of the Loans and the obligations of the Borrower
under the Loan Documents in the following manner and order: (i) first, to the
payment of interest on and then the principal portion of any Loans which the
Administrative Agent may have advanced on behalf of any Lender for which the
Administrative Agent has not then been reimbursed by such Lender or the
Borrower; (ii) second, to the payment
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of any fees or expenses due the Administrative Agent from the Borrower; (iii)
third, to reimburse the Administrative Agent and the Lenders for any expenses
(to the extent not paid pursuant to clause (ii)) due from the Borrower pursuant
to the provisions of Section 11.5; (iv) fourth, to the payment of accrued
Facility Fees, and all other fees, expenses and amounts due under the Loan
Documents (other than principal and interest on the Notes); (v) fifth, to the
payment of interest due on the Notes; (vi) sixth, to the payment of principal
outstanding on the Notes; and (vii) seventh, to the payment of any other amounts
owing to the Administrative Agent, the Lead Arranger and the Lenders under any
Loan Document or other document or agreement entered into in connection with the
transactions contemplated thereby.
10. THE AGENT.
10.1 Appointment.
Each Lender hereby irrevocably designates and appoints FNB as
the Administrative Agent of such Lender under the Loan Documents and each such
Lender hereby irrevocably authorizes FNB, as the Administrative Agent for such
Lender, to take such action on its behalf under the provisions of the Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of the Loan Documents,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in any Loan Document,
the Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth therein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into the Loan Documents or otherwise
exist against the Administrative Agent.
10.2 Delegation of Duties.
The Administrative Agent may execute any of its duties under
the Loan Documents by or through agents or attorneys-in-fact and shall be
entitled to rely upon the advice of counsel concerning all matters pertaining to
such duties.
10.3 Exculpatory Provisions.
Neither the Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such Person
under or in connection with the Loan Documents (except for its own gross
negligence or willful misconduct), or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by
the Borrower or any officer thereof contained in the Loan Documents or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, the Loan
Documents or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of any of the Loan Documents or for any failure of the Borrower
or any other Person to perform its obligations thereunder. The Administrative
Agent shall not be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance
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of any of the agreements contained in, or conditions of, the Loan Documents, or
to inspect the properties, books or records of the Borrower. The Administrative
Agent shall not be under any liability or responsibility whatsoever, as
Administrative Agent, to the Borrower or any other Person as a consequence of
any failure or delay in performance, or any breach, by any Lender of any of its
obligations under any of the Loan Documents.
10.4 Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, opinion, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation reasonably
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may treat each Lender, or the Person designated in the last
notice filed with it under this Section, as the holder of all of the interests
of such Lender in its Loans and in its Note until written notice of transfer,
signed by such Lender (or the Person designated in the last notice filed with
the Administrative Agent) and by the Person designated in such written notice of
transfer, in form and substance satisfactory to the Administrative Agent, shall
have been filed with the Administrative Agent. The Administrative Agent shall
not be under any duty to examine or pass upon the validity, effectiveness or
genuineness of the Loan Documents or any instrument, document or communication
furnished pursuant thereto or in connection therewith, and the Administrative
Agent shall be entitled to assume that the same are valid, effective and
genuine, have been signed or sent by the proper parties and are what they
purport to be. The Administrative Agent shall be fully justified in failing or
refusing to take any action under the Loan Documents unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under the Loan Documents in accordance
with a request or direction of the Required Lenders, and such request or
direction and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Notes.
10.5 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default unless the
Administrative Agent has received written notice thereof from a Lender or the
Borrower. In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall promptly give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders,
provided, however, that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem to be in the best interests
of the Lenders.
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10.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representations or warranties to it
and that no act by the Administrative Agent hereinafter, including any review of
the affairs of the Borrower, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
the Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own evaluation of and
investigation into the business, operations, Property, financial and other
condition and creditworthiness of the Borrower and made its own decision to
enter into this Agreement. Each Lender also represents that it will,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis, evaluations and decisions
in taking or not taking action under any Loan Document, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, Property, financial and other condition and creditworthiness of the
Borrower. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
Property, financial and other condition or creditworthiness of the Borrower
which may come into the possession of the Administrative Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates.
10.7 Indemnification.
Each Lender agrees to indemnify and reimburse the
Administrative Agent in its capacity as such (to the extent not promptly
reimbursed by the Borrower and without limiting the obligation of the Borrower
to do so), pro rata according to its Commitment, from and against any and all
liabilities, obligations, claims, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever
including, without limitation, any amounts paid to the Lenders (through the
Administrative Agent) by the Borrower pursuant to the terms of the Loan
Documents, that are subsequently rescinded or avoided, or must otherwise be
restored or returned) which may at any time (including, without limitation, at
any time following the payment of the Notes) be imposed on, incurred by or
asserted against the Administrative Agent in any way relating to or arising out
of the Loan Documents or any other documents contemplated by or referred to
therein or the transactions contemplated thereby or any action taken or omitted
to be taken by the Administrative Agent under or in connection with any of the
foregoing; provided, however, that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements to the extent
resulting solely from the gross negligence or willful misconduct of the
Administrative Agent. The agreements in this Section shall survive the payment
of all amounts payable under the Loan Documents.
10.8 Administrative Agent in Its Individual Capacity.
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FNB and its affiliates may make loans to, accept deposits
from, issue letters of credit for the account of, and generally engage in any
kind of business with, the Borrower as though FNB was not Administrative Agent
hereunder. With respect to the Commitment made or renewed by FNB and the Note
issued to FNB, FNB shall have the same rights and powers under the Loan
Documents as any Lender and may exercise the same as though it was not the
Administrative Agent, and the terms "Lender" and "Lenders" shall in each case
include FNB.
10.9 Successor Administrative Agent.
If at any time the Administrative Agent deems it advisable, in
its sole discretion, it may submit to each of the Lenders a written notice of
its resignation as Administrative Agent under this Agreement, such resignation
to be effective upon the earlier of (i) the written acceptance of the duties of
the Administrative Agent under the Loan Documents by a successor Administrative
Agent and (ii) on the 60th day after the date of such notice. Upon any such
notice of resignation, the Required Lenders shall have the right to appoint from
among the Lenders a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders and
accepted such appointment in writing within 45 days after the retiring
Administrative Agent's giving of notice of resignation, then the retiring
Administrative Agent shall, in consultation with the Borrower, appoint a
successor Administrative Agent on behalf of the Lenders prior to the end of the
60th day from such notice from among any of the Lenders who shall have at such
time a Commitment of at least $15,000,000 (an "Approved Successor"). If no
Lender has a Commitment of at least $15,000,000 (or no Lender whose Commitment
is at least $15,000,000 shall agree to accept such appointment), then the
retiring Administrative Agent shall, in consultation with the Borrower, appoint
any other Lender or any other commercial bank organized under the laws of the
United States of America or any State thereof and having a combined capital and
surplus of at least $100,000,000 as a successor Administrative Agent. Any
appointment of a successor Administrative Agent shall be subject to the approval
of the Borrower, which approval shall not be unreasonably withheld or delayed,
and shall be given in any event prior to the end of the 60th day from the date
of the retiring Administrative Agent's notice of resignation, provided that
during any period in which there exists and is continuing an Event of Default,
no approval from the Borrower to the appointment of an Approved Successor shall
be required. Upon the acceptance of an appointment as Administrative Agent
hereunder by a successor Administrative Agent and any required approval of such
successor Administrative Agent by the Borrower in accordance with the terms of
this Section, such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent's rights, powers,
privileges and duties as Administrative Agent under the Loan Documents shall be
terminated. The Borrower and the Lenders shall execute such documents as shall
be necessary to effect such appointment. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of the
Loan Documents shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under the Loan Documents.
10.10 [Intentionally Omitted].
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11. OTHER PROVISIONS.
11.1 Amendments and Waivers.
With the written consent of the Required Lenders, the
Administrative Agent and the Borrower may, from time to time, enter into written
amendments, supplements or modifications of the Loan Documents and, with the
consent of the Required Lenders, the Administrative Agent on behalf of the
Lenders may execute and deliver to any such parties a written instrument waiving
or a consent to a departure from, on such terms and conditions as the
Administrative Agent may specify in such instrument, any of the requirements of
the Loan Documents or any Default or Event of Default and its consequences;
provided, however, that no such amendment, supplement, modification, waiver or
consent shall, without the consent of all of the Lenders: (i) increase the
Commitments of any Lender or the Total Commitment Amount (except as provided in
Section 2.1(b)); (ii) extend the Maturity Date or the Advance Termination Date;
(iii) decrease the rate, or extend the time of payment, of interest of, or
change or forgive the principal amount of, or change the requirement that
payments and prepayments of principal of, and payments of interest on, the Notes
be made pro rata to the Lenders on the basis of the outstanding principal amount
of the Loans, (iv) amend the definition of "Required Lender", (v) amend the
definition of "Applicable Margin", (vi) release any Subsidiary Guarantor from
its obligations under a Guaranty, or (vii) change the provisions of Section 2.9,
2.10, 2.11, 2.12, 2.13, 2.14, 2.15, 2.16, 3.1 or 11.1; and provided further that
no such amendment, supplement, modification, waiver or consent shall amend,
modify, waive or consent to a departure from any provision of Section 10 or
otherwise change any of the rights or obligations of the Administrative Agent
under the Loan Documents without the written consent of the Administrative
Agent. The Administrative Agent shall cause a copy of each written request for
such an amendment, supplement or modification delivered by the Borrower to it to
be delivered to each Lender. Any such amendment, supplement, modification,
waiver or consent shall apply equally to each of the Lenders and shall be
binding upon the parties to the applicable agreement, the Lenders, the
Administrative Agent and all future holders of the Notes. In the case of any
waiver, the parties to the applicable agreement, the Lenders and the
Administrative Agent shall be restored to their former position and rights under
the Loan Documents, and any Default or Event of Default waived shall not extend
to any subsequent or other Default or Event of Default, or impair any right
consequent thereon.
11.2 Notices.
All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made when
delivered by hand, or if sent by certified mail (return receipt requested), when
the return receipt is signed on behalf of the party to whom such notice is
given, or in the case of telecopier notice, when sent, or if sent by overnight
nationwide commercial courier, the Business Day following the date such notice
is deposited with said courier, and in any case addressed as follows in the case
of the Borrower or the Administrative Agent, and at the Domestic Lending Office
in the case of each Lender, or to such other addresses as to which the
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Administrative Agent may be hereafter notified by the respective parties hereto
or any future holders of the Notes:
The Borrower:
New Plan Excel Realty Trust, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxx,
Senior Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
New Plan Excel Realty Trust, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.,
General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Administrative Agent:
Fleet National Bank
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Real Estate Division
with a copy to:
Fleet National Bank
000 Xxxxxxxxx Xxxxxx Xxxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxxxx, Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
except that any notice, request or demand by the Borrower to or upon the
Administrative Agent or the Lenders pursuant to Section 2.3 or 2.8 shall not be
effective until received. Any party to a Loan Document may rely on signatures of
the parties thereto which are transmitted by telecopier or other electronic
means as fully as if originally signed.
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11.3 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising any right,
remedy, power or privilege under any Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege under any Loan Document preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges under the Loan Documents are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
11.4 Survival of Representations and Warranties.
All representations and warranties made under the Loan
Documents and in any document, certificate or statement delivered pursuant
hereto or in connection therewith shall survive the execution and delivery of
the Loan Documents. After the termination of this Agreement in accordance with
its terms, without any extension thereof, the payment in full of all obligations
of the Borrower under the Loan Documents and the expiration of any obligations
of the Borrower hereunder which survive the termination of this Agreement, the
Borrower shall have no liability to the Lenders under such representations and
warranties, except that the foregoing shall not apply with respect to any claim,
action or proceeding made or brought under any such representations or
warranties prior to such termination or payment.
11.5 Payment of Expenses and Taxes.
The Borrower agrees, promptly upon presentation of a statement
or invoice therefor, and whether any Loan is made (i) to pay or reimburse each
Credit Party for all of its out-of-pocket costs and expenses reasonably incurred
in connection with the development, preparation, negotiation and execution of,
the Loan Documents, the syndication of the loan transaction evidenced by this
Agreement (whether or not such syndication is completed) and any amendment,
supplement or modification hereto (whether or not executed), any documents
prepared in connection therewith and the consummation of the transactions
contemplated thereby, including, without limitation, the reasonable fees and
disbursements of Special Counsel, (ii) to pay or reimburse each Credit Party for
all of its respective costs and expenses, including, without limitation,
reasonable fees and disbursements of counsel, incurred in connection with (x)
any Default or Event of Default and any enforcement or collection proceedings
resulting therefrom (including, without limitation, any costs incurred after the
entry of judgment in an attempt to collect money due in the judgment) or in
connection with the negotiation of any restructuring or "work-out" (whether
consummated or not) of the obligations of the Borrower under any of the Loan
Documents and (y) the enforcement of this Section, (iii) to pay, indemnify, and
hold each Credit Party harmless from and against, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other similar taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of, or consummation of any of the transactions contemplated by, or any
amendment, supplement or modification of, or any waiver or consent under or in
respect of, the Loan Documents and any such other documents, and (iv) to pay,
indemnify and hold each Credit Party and each of their respective officers,
directors, employees,
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affiliates, agents, controlling persons and attorneys (as used in this Section,
each an "indemnified person") harmless from and against any and all other
liabilities, obligations, claims, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever (including, without limitation, reasonable counsel fees and
disbursements) with respect to any claim, investigation or proceeding from any
third party relating to this Agreement or the Loan Documents, including the
enforcement and performance of the Loan Documents and the use of the proceeds of
the Loans (all the foregoing, collectively, the "indemnified liabilities"),
whether or not any such indemnified person is a party to this Agreement or the
Loan Documents, and to reimburse each indemnified person for all legal and other
expenses incurred in connection with investigating or defending any indemnified
liabilities, and, if and to the extent that the foregoing indemnity may be
unenforceable for any reason, the Borrower agrees to make the maximum payment
permitted or not prohibited under applicable law; provided, however, that the
Borrower shall have no obligation hereunder to pay indemnified liabilities to
any Credit Party arising from (A) the gross negligence or willful misconduct of
such Credit Party or (B) disputes solely between the Credit Parties and which
are not related to any act or failure to act on the part of the Borrower or the
failure of the Borrower to perform any of its obligations under this Agreement
or the Loan Documents.
Notwithstanding the foregoing, the fees and expenses referred
to in clause (iv) of the preceding paragraph shall not be payable by the
Borrower if (x) any such enforcement action brought by such Credit Party is
dismissed, with prejudice, on the pleadings or pursuant to a motion made by the
Borrower for summary judgment, and (y) if such Credit Party appeals such
dismissal, such dismissal is affirmed and the time for any further appeals has
expired. The obligations of the Borrower under this Section shall survive the
termination of this Agreement and the Commitments and the payment of the Notes
and all other amounts payable under the Loan Documents.
11.6 Lending Offices.
Each Lender shall have the right at any time and from time to
time to transfer its Loans to a different office, provided that such Lender
shall promptly notify the Administrative Agent and the Borrower of any such
change of office. Such office shall thereupon become such Lender's Domestic
Lending Office or Eurodollar Lending Office, as the case may be; provided,
however, that no such Lender shall be entitled to receive any greater amount
under Section 2.13, 2.14 or 2.16 as a result of a transfer of any such Loans to
a different office of such Lender than it would be entitled to immediately prior
thereto unless such claim would have arisen even if such transfer had not
occurred.
11.7 Successors and Assigns.
(a) The Loan Documents shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Administrative Agent, all future
holders of the Notes and their respective successors and assigns, except that
the Borrower may not assign, delegate or transfer any of its rights or
obligations under the Loan Documents without the prior written consent of the
Administrative Agent and all of the Lenders.
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(b) Each Lender shall have the right at any time, upon written
notice to the Administrative Agent of its intent to do so, to sell, assign,
transfer or negotiate all or any part of such Lender's rights and/or obligations
under the Loan Documents to one or more of its Affiliates, to one or more of the
other Lenders (or to Affiliates of such other Lenders) or, with the prior
written consent of the Borrower, and the Administrative Agent (which consent,
from each of them, shall not be unreasonably withheld or delayed and shall not
be required from the Borrower upon the occurrence and during the continuance of
an Event of Default), to sell, assign, transfer or negotiate all or any part of
such Lender's rights and obligations under the Loan Documents to any other bank,
insurance company, pension fund, mutual fund or other financial institution,
provided that there shall be paid to the Administrative Agent by the assigning
Lender a fee (the "Assignment Fee") of $3,500. For each assignment, the parties
to such assignment shall execute and deliver to the Administrative Agent for its
acceptance and recording an Assignment and Assumption Agreement. Upon such
execution, delivery, acceptance and recording by the Administrative Agent, from
and after the effective date specified in such Assignment and Assumption
Agreement, the assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Assumption Agreement, the assignor Lender
thereunder shall be released from its obligations under the Loan Documents. The
Borrower agrees upon written request of the Administrative Agent and at the
Borrower's expense to execute and deliver (1) to such assignee, a Note, dated
the effective date of such Assignment and Assumption Agreement, in an aggregate
principal amount equal to the Loans assigned to, and Commitments assumed by,
such assignee and (2) to such assignor Lender, a Note, dated the effective date
of such Assignment and Assumption Agreement, in an aggregate principal amount
equal to the balance of such assignor Lender's Loans and Commitment, if any, and
each assignor Lender shall cancel and return to the Borrower its existing Note.
Upon any such sale, assignment or other transfer, the Commitment Amounts set
forth in Exhibit B shall be adjusted accordingly by the Administrative Agent and
a new Exhibit B shall be distributed by the Administrative Agent to the Borrower
and each Lender.
(c) Each Lender may grant participations in all or any part of
its Loans, its Note and its Commitment to one or more banks, insurance
companies, financial institutions, pension funds or mutual funds, provided that
(i) such Lender's obligations under the Loan Documents shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties to the
Loan Documents for the performance of such obligations, (iii) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under the Loan Documents, (iv) no sub-participations shall be
permitted and (v) the voting rights of any holder of any participation shall be
limited to decisions that only do any of the following: (A) subject the
participant to any additional obligation, (B) reduce the principal of, or
interest on the Notes or any fees or other amounts payable hereunder, and (C)
postpone any date fixed for the payment of principal of, or interest on the
Notes or any fees or other amounts payable hereunder. The Borrower acknowledges
and agrees that any such participant shall for purposes of Sections 2.10, 2.11,
2.12, 2.13, 2.14, 2.15 and 2.16 be deemed to be a "Lender"; provided, however,
the Borrower shall not, at any time, be obligated to pay any participant in any
interest of any Lender hereunder any sum in excess of the sum which the Borrower
would have been obligated to pay to
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such Lender in respect of such interest had such Lender not sold such
participation.
(d) If any (i) assignment made pursuant to paragraph (b) above
or (ii) any participation granted pursuant to paragraph (d) above shall be made
to any Person that is organized under the laws of any jurisdiction other than
the United States of America or any State thereof, such Person shall furnish
such certificates, documents or other evidence to the Borrower and the
Administrative Agent, in the case of clause (i) and to the Borrower and the
Lender which sold such participation in the case of clause (ii), as shall be
required by Section 2.11(b) to evidence such Person's exemption from U.S.
withholding taxes with respect to any payments under or pursuant to the Loan
Documents because such Person is eligible for the benefits of a tax treaty which
provides for a zero % rate of tax on any payments under the Loan Documents or
because any such payments to such Person are effectively connected with the
conduct by such Person of a trade or business in the United States.
(e) No Lender shall, as between and among the Borrower, the
Administrative Agent and such Lender, be relieved of any of its obligations
under the Loan Documents as a result of any sale, assignment, transfer or
negotiation of, or granting of participations in, all or any part of its Loans,
its Commitment or its Note, except that a Lender shall be relieved of its
obligations to the extent of any such sale, assignment, transfer, or negotiation
of all or any part of its Loans, its Commitment or its Note pursuant to
paragraph (b) above.
(f) Notwithstanding anything to the contrary contained in this
Section, any Lender may at any time or from time to time assign all or any
portion of its rights under the Loan Documents to a Federal Reserve Bank,
provided that any such assignment shall not release such assignor from its
obligations thereunder.
11.8 [Intentionally Omitted].
11.9 Counterparts.
Each Loan Document (other than the Notes) may be executed by
one or more of the parties thereto on any number of separate counterparts and
all of said counterparts taken together shall be deemed to constitute one and
the same document. It shall not be necessary in making proof of any Loan
Document to produce or account for more than one counterpart signed by the party
to be charged. A telecopied counterpart of any Loan Document or to any document
evidencing, and of any an amendment, modification, consent or waiver to or of
any Loan Document shall be deemed to be an originally executed counterpart. A
set of the copies of the Loan Documents signed by all the parties thereto shall
be deposited with each of the Borrower and the Administrative Agent. Any party
to a Loan Document may rely upon the signatures of any other party thereto which
are transmitted by telecopier or other electronic means to the same extent as if
originally signed.
11.10 Adjustments; Set-off.
(a) If any Lender (a "Benefitted Lender") shall at any time
receive any
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payment of all or any part of its Loans or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 9.1(h) or
(i), or otherwise) in a greater proportion than any such payment to and
collateral received by any other Lender in respect of such other Lender's Loans
or interest thereon, such Benefitted Lender shall purchase for cash from each of
the other Lenders such portion of each such other Lender's Loans and shall
provide each of such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such Benefitted Lender to
share the excess payment or benefits of such collateral or proceeds ratably with
each of the Lenders, provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such Benefitted Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest. The Borrower agrees that
each Lender so purchasing a portion of another Lender's Loans may exercise all
rights of payment (including, without limitation, rights of set-off, to the
extent not prohibited by law) with respect to such portion as fully as if such
Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence of an Event of Default and the acceleration
of the obligations owing in connection with the Loan Documents, or at any time
upon the occurrence and during the continuance of an Event of Default under
Section 9.1(a) or (b), each Lender shall have the right, without prior notice to
the Borrower, any such notice being expressly waived by the Borrower to the
extent not prohibited by applicable law, to set-off and apply against any
indebtedness, whether matured or unmatured, of the Borrower to such Lender, any
amount owing from such Lender to the Borrower, at, or at any time after, the
happening of any of the above-mentioned events. To the extent not prohibited by
applicable law, the aforesaid right of set-off may be exercised by such Lender
against the Borrower or against any trustee in bankruptcy, custodian, debtor in
possession, assignee for the benefit of creditors, receiver, or execution,
judgment or attachment creditor of the Borrower, or against anyone else claiming
through or against the Borrower or such trustee in bankruptcy, custodian, debtor
in possession, assignee for the benefit of creditors, receivers, or execution,
judgment or attachment creditor, notwithstanding the fact that such right of
set-off shall not have been exercised by such Lender prior to the making, filing
or issuance, or service upon such Lender of, or of notice of, any such petition,
assignment for the benefit of creditors, appointment or application for the
appointment of a receiver, or issuance of execution, subpoena, order or warrant.
Each Lender agrees promptly to notify the Borrower and the Administrative Agent
after any such set-off and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such set-off and
application.
11.11 Lenders' Representations.
Each Lender represents to the Administrative Agent that, in
acquiring its Note, it is acquiring the same for its own account for the purpose
of investment and not with a view to selling the same in connection with any
distribution thereof, provided that the disposition of each Lender's own
Property shall at all times be and remain within its control.
11.12 Indemnity.
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The Borrower agrees to indemnify and hold harmless each Credit
Party and its affiliates, directors, officers, employees, affiliates, agents,
controlling persons and attorneys (each an "Indemnified Person") from and
against any loss, cost, liability, damage or expense (including the reasonable
fees and disbursements of counsel of such Indemnified Person, including all
local counsel hired by any such counsel) incurred by such Indemnified Person in
investigating, preparing for, defending against, or providing evidence,
producing documents or taking any other action in respect of, any commenced or
threatened litigation, administrative proceeding or investigation under any
federal securities or tax laws or any other statute of any jurisdiction, or any
regulation, or at common law or otherwise, which is alleged to arise out of or
is based upon: (i) any untrue statement of any material fact by the Borrower in
any document or schedule executed or filed with any Governmental Authority by or
on behalf of the Borrower; (ii) any omission to state any material fact required
to be stated in such document or schedule, or necessary to make the statements
made therein, in light of the circumstances under which made, not misleading; or
(iii) any acts, practices or omissions of the Borrower or its agents relating to
the use of the proceeds of any or all borrowings made by the Borrower which are
alleged to be in violation of Section 2.15, or in violation of any federal
securities or tax laws or of any other statute, regulation or other law of any
jurisdiction applicable thereto, whether or not such Indemnified Person is a
party thereto. The indemnity set forth herein shall be in addition to any other
obligations, liabilities or other indemnifications of the Borrower to each
Indemnified Person under the Loan Documents or at common law or otherwise, and
shall survive any termination of the Loan Documents, the expiration of the
Commitments and the payment of all indebtedness of the Borrower under the Loan
Documents, provided that the Borrower shall have no obligation under this
Section to an Indemnified Person with respect to any of the foregoing to the
extent found in a final judgment of a court having jurisdiction to have resulted
primarily out of the gross negligence or willful misconduct of such Indemnified
Person or arising solely from claims between one such Indemnified Person and
another such Indemnified Person.
11.13 Governing Law.
The Loan Documents and the rights and obligations of the
parties thereunder shall be governed by, and construed and interpreted in
accordance with, the internal laws of the State of New York, without regard to
principles of conflict of laws.
11.14 Headings Descriptive.
Section headings have been inserted in the Loan Documents for
convenience only and shall not be construed to be a part thereof.
11.15 Severability.
Every provision of the Loan Documents is intended to be
severable, and if any term or provision thereof shall be invalid, illegal or
unenforceable for any reason, the validity, legality and enforceability of the
remaining provisions thereof shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction shall not affect
the
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validity, legality or enforceability of any such term or provision in any other
jurisdiction.
11.16 Integration.
All exhibits to a Loan Document shall be deemed to be a part
thereof. The Loan Documents embody the entire agreement and understanding among
the Borrower, the Administrative Agent and the Lenders with respect to the
subject matter thereof and supersede all prior agreements and understandings
among the Borrower, the Administrative Agent and the Lenders with respect to the
subject matter thereof.
11.17 Consent to Jurisdiction.
The Borrower and each of the Credit Parties hereby irrevocably
submit to the jurisdiction of any New York State or Federal court sitting in the
City of New York over any suit, action or proceeding arising out of or relating
to the Loan Documents. The Borrower and each of the Credit Parties hereby
irrevocably waive, to the fullest extent permitted or not prohibited by law, any
objection which any of them may now or hereafter have to the laying of the venue
of any such suit, action or proceeding brought in such a court and any claim
that any such suit, action or proceeding brought in such a court has been
brought in an inconvenient forum.
11.18 Service of Process.
The Borrower hereby agrees that process may be served against
it in any suit, action or proceeding referred to in Section 11.17 by sending the
same by first class mail, return receipt requested or by overnight courier
service, to the address of the Borrower set forth in Section 11.2 or in the
applicable Loan Document executed by the Borrower. The Borrower hereby agrees
that any such service (i) shall be deemed in every respect effective service of
process upon it in any such suit, action, or proceeding, and (ii) shall to the
fullest extent enforceable by law, be taken and held to be valid personal
service upon and personal delivery to it.
11.19 No Limitation on Service or Suit.
Nothing in the Loan Documents or any modification, waiver,
consent or amendment thereto shall affect the right of the Administrative Agent
or any Lender to serve process in any manner permitted by law or limit the right
of the Administrative Agent or any Lender to bring proceedings against the
Borrower in the courts of any jurisdiction or jurisdictions in which the
Borrower may be served.
11.20 WAIVER OF TRIAL BY JURY.
THE ADMINISTRATIVE AGENT, THE LENDERS AND THE BORROWER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
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ARISING OUT OF, UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED THEREIN. FURTHER, THE BORROWER HEREBY CERTIFIES THAT
NO REPRESENTATIVE OR AGENT OF THE ADMINISTRATIVE AGENT, THE LENDERS, OR COUNSEL
TO THE ADMINISTRATIVE AGENT OR THE LENDERS, HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR THE LENDERS WOULD NOT, IN THE EVENT
OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL
PROVISION. THE BORROWER ACKNOWLEDGES THAT THE ADMINISTRATIVE AGENT AND THE
LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE
PROVISIONS OF THIS SECTION.
11.21 Termination.
After the termination of this Agreement in accordance with its
terms, without any extension thereof, and the payment in full of all obligations
of the Borrower under the Loan Documents (including without limitation, all
principal, interest, Facility Fees and other amounts payable hereunder and under
the Notes), the obligations of the Borrower hereunder (other than those which
are stated herein to survive any termination of this Agreement) shall terminate,
except that the foregoing shall not apply with respect to any claim, action or
proceeding made or brought under any other provision of the Loan Documents prior
to such termination or payment. At the request of the Borrower, each Lender
whose obligations under the Notes have been fully paid shall promptly return to
the Borrower its Note marked "paid" or shall deliver other evidence that such
Lender has received full payment of such obligations.
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IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ XXXX XXXXXXXXX
-------------------------------------
Xxxx Xxxxxxxxx
Senior Vice President
FLEET NATIONAL BANK,
as Administrative Agent and a Lender
By: /s/ XXXXXX X. XXXXXXXXXXXX
-------------------------------------
Xxxxxx X. Xxxxxxxxxxxx,
Vice President
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